LEASE
by and between
PRACVEST,
a Utah general partnership,
as Landlord
and
ELECTRONIC TECHNOLOGY CORPORATION,
a Utah corporation
as Tenant
for
Suite #100
of building #3 at
UTAH VALLEY BUSINESS PARK
in
AMERICAN FORK CITY, UTAH
INDEX TO LEASE AGREEMIENT: UTAH VALLEY BUSINESS PARK
ARTICLE I. BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS ................. 2
SECTION 1.01. BASIC LEASE PROVISIONS ................................ 2
SECTION 1.02. SIGNIFICANCE OF A BASIC LEASE PROVISION ............... 3
SECTION 1.03. ENUMERATION OF EXHIBITS ............................... 3
ARTICLE II. GRANTAND LEASED PREMISES ....................................... 3
SECTION 2.01. PREMISES .............................................. 3
ARTICLE III. RENT .......................................................... 3
SECTION 3.01. BASE MONTHLY RENT .................................... 3
SECTION 3.02. ESCALATION ........................................... 3
SECTION 3.03. TENANT'S SHARE OF CAM, TAX AND INSURANCE
EXPENSES ..................................... 3
SECTION 3.04. TAXES ................................................ 4
SECTION 3.05. PAYMENTS ............................................. 4
ARTICLE IV. RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM .............. 4
SECTION 4.01. RENTAL TERM ........................................... 4
SECTION 4.02. RENTAL COMMENCEMENT DATE .............................. 4
SECTION 4,03. PRELIMINARY TERM ...................................... 4
ARTICLE V. CONSTRUCTION OF PREMISES ........................................ 4
SECTION 5.01. CONSTRUCTION BY LANDLORD .............................. 4
SECTION 5.02. CHANGES AND ADDITIONS BY LANDLORD ..................... 4
SECTION 5.03. DELIVERY OF POSSESSION ................................ 5
ARTICLE, VI. TENANT'S WORK AND LANDLORD'S CONTRIBUTION ..................... 5
SECTION 6.01. TENANT'S WORK ......................................... 5
SECTION 6.02. LANDLORD'S CONTRIBUTION ............................... 5
ARTICLE, VII USE ........................................................... 5
SECTION 7.01. USE OF PREMISES ....................................... 5
SECTION 7.02. HAZARDOUS SUBSTANCES .................................. 5
ARTICLE VIII, OPERATION AND MAINTENANCE OF COMMON AREAS .................... 6
SECTION 8.01. CONSTRUCTION AND CONTROL OF COMMON AREAS .............. 6
SECTION 8.02. LICENSE ............................................... 6
SECTION 8.03. COMMON AREA MAINTENANCE EXPENSES ...................... 6
ARTICLE IX. ALTERATIONS, SIGNS, LOCKS & KEYS ............................... 7
SECTION 9,01. ALTERATIONS ........................................... 7
SECTION 9.02. SIGNS ................................................. 7
SECTION 9.03. LOCKS & KEYS .......................................... 7
ARTICLE X. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS .................... 7
SECTION 10.01. LANDLORD'S OBLIGATION FOR MAINTENANCE ................ 7
SECTION 10.02. TENANT'S OBLIGATION FOR MAINTENANCE .................. 7
SECTION 10.03. SURRENDER AND RIGHTS UPON TERMINATION ................ 8
ARTICLE XI. INSURANCE AND INDEMNITY ........................................ 8
SECTION 11.01. LIABILITY INSURANCE AND INDEMNITY .................... 8
SECTION 11 02. FIRE AND CASUALTY INSURANCE .......................... 8
SECTION 11 03. WAIVER OF SUBROGATION ................................ 9
ARTICLE XII. UTILITY CHARGES ............................................... 9
SECTION 12.01. UTILITY CHARGES ...................................... 9
ARTICLE XIII. OFF-SET STATEMENT, ATTORNMENT AND SUBROGATION ................ 9
SECTION 13.01. OFF-SET STATEMENT .................................... 9
SECTION 13.02. ATTORNMENT ........................................... 9
SECTION 13.03. SUBROATION ........................................... 9
SECTION 13.04. MORTGAGE SUBROGATION ................................. 9
SECTION 13.05. REMEDIES ............................................. 9
ARTICLE XIV. ASSIGNMENT .................................................... 10
SECTION 14.01. ASSIGNMENT ........................................... 10
i
INDEX TO LEASE AGREEMENT: UTAH VALLEY BUSINESS PARK (CONTID)
ARTICLE XV. WASTE OR NUISANCE ............................................. 10
SECTION 15.01. WASTE OR NUISANCE .................................. 10
ARTICLE XVI, NOTICES ...................................................... 10
SECTION 16.01. NOTICES ............................................ 10
ARTICLE XVII. DESTRUCTION OF THE PREMISES ................................. 10
SECTION 17.01. DESTRUCTION ........................................ 10
ARTICLE XVIII. CONDEMNATION ............................................... 10
SECTION 18.01. CONDEMNATION ....................................... 10
ARTICLE XIX, DEFAULT OF TENANT ............................................ 11
SECTION 19.01. DEFAULT -RIGHT TO RE-ENTER ......................... 11
SECTION 19.02. DEFAULT - RIGHT TO RE-LET .......................... 11
SECTION 19.03. LEGAL EXPENSES ..................................... 10
ARTICLE XX. BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP ........................ 11
SECTION 20.01. ACT OF INSOLVENCY, GUARDIANSHIP, ETC ............... 11
ARTICLE XXI. LANDLORD ACCESS .............................................. 12
SECTION 21.01. LANDLORDACCESS ..................................... 12
ARTICLE XXII. LANDLORD'S LIEN ............................................. 12
SECTION 22.01. LANDLORD'S LIEN .................................... 12
ARTICLE XXIII. HOLDING OVER ............................................... 12
SECTION 23.01. HOLDING OVER ....................................... 12
SECTION 23,02. SUCCESSORS ......................................... 12
ARTICLE XXIV. RULES AND REGULATIONS ....................................... 12
SECTION 24.01. RULES AND REGULATIONS .............................. 12
ARTICLE XXV. QUIET ENJOYMENT .............................................. 12
SECTION 25.01. QUIET ENJOYMENT .................................... 12
ARTICLE XXVI. SECURITY DEPOSIT ............................................ 12
SECTION 26.01. SECURITY DEPOSIT ................................... 12
ARTICLE XXVII. MISCELLANEOUS PROVISIONS ................................... 13
SECTION 27.01. WAIVER ............................................. 13
SECTION 27.02. ENTIRE AGREEMENT ................................... 13
SECTION 27.03. FORCE MAJEURE ...................................... 13
SECTION 27 04. LOSS AND DAMAGE .................................... 13
SECTION 27.05. ACCORD AND SATISFACTION ............................ 13
SECTI0N 27.06. NO OPTION .......................................... 13
SECTION 27.07. ANTI-DISCRIMINATION ................................ 13
SECTION 27.08. SEVERABILITY ....................................... 13
SECTION 27.09. OTHER MISCELLANEOUS PROVISIONS ..................... 13
SECTION 27.10. REPRESENTATION REGARDING AUTHORITY ................. 13
SIGNATURES ................................................................ 14
LANDLORD ACKNOWLEDGEMENT .................................................. 14
TENANT ACKNOWLEDGMENT (CORPORATE) ......................................... 14
GUARANTEE ................................................................. 15
EXHIBITS
EXHIBIT "A" Pg. 1 - FLOOR PLAN
EXHIBIT "A" Pg. 2 - POWER PLAN
EXHIBIT "A" Pg. 3 - REFLECTED CEILING PLAN
EXHIBIT "A-2" - BUSINESS PARK PLOT PLAN
EXHIBIT "B" - LEGAL DESCRIPTION(S)
EXHIBIT "C" - LANDLORD'S WORK
EXHIBIT "D" - TENANT'S WORK
EXHIBIT "E" - SIGN CRITERIA
ii
UTAH VALLEY BUSINESS PARK
LEASE AGREEMENT
ARTICLE I BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS
SECTION 1.011 BASIC LEASE PROVISIONS
(A) DATE: May 17,1995
(B) LANDLORD: PRACVEST, a Utah general partnership
(C) ADDRESS OF LANDLORD FOR NOTICES (Section 16.01): 2677 East Parleys Way,
Salt Lake City, Utah 84109
(D) TENANT: Electronic Technology Corporation
(E) ADDRESS OF TENANT FOR NOTICES (Section 16.01). 435 West Universal Circle,
Sandy, Utah 84070
(I) PERMITTED USES (Section 7.01): Office/Light Electronic Manufacturing and
Assembly
(G) TENANT'STRADE NAME (Exhibit "E" - Sign Criteria): Electronic Technology
Corporation and EMA. Inc.
(H) BUILDING (Section 2.01): An approximate 28,000 sq. ft. building situated as
shown on Exhibit "A" attached hereto in tlie Utah Valley Business Park,
American Fork City, Utah County, State of Utah. Mailing address will be
determined prior to occupancy.
(1) PREMISES (Section 2.01): That portion of building #3 at the approximate
location outlined on Exhibit "A" known as Suite 100 consisting of
approximately 9,685 sq. ft. of net rentable area.
(J) DELIVERY OF POSSESSION (Section 5.03): July 1. 1995
(K) RENTAL TERM, COMMENCEMENT AND EXPIRATION DATE (Sections 4.01 & 4.02): The
Rental Term shall commence on the date Tenant receives possession of the
Leased Premises and shall be for a period ofthirty-six (36) full calendar
months plus any initial partial calendar month.
(L) BASE MONTHLY RENT (Section 3.01): Seven Thousand Five Hundred Eighty Seven
Dollars ($7,587.00) per calendar month
(M) ESCALATIONS IN BASE MONTHLY RENT (Section 3.02): None.
(N) TENANT'S PERCENTAGE OF OPERATING EXPENSES (Section 3.03): 35.00 percent
(35%) of all operating expenses as defined in Sections 3.03 and 8.03. Such
expenses include common area and utility system maintenance, taxes, and
insurance, but shall specifically exclude utilities, janitorial and any
management fees. L,andlord estimates that Tenant share will not exceed
$1.00 per sq. ft. during the first Lease Year and $1.15 per sq. 1@t, in the
second Lease Year. Utilities and janitorial expenses shall be paid by
Tenant pursuant to Sections L1.01 and 10.0", respectively.
(0) LANDLORD'S CONTRIBUTION TO TENANT'S WORK (Section 6.02): Actual cost of
Tenant's Work in accordance with specifications set forth in Exhibit "D"
and as mutually agreed, but not to exceed Fourteen and 55/100 Dollars
($14.55) per square foot of gross rentable area.
(P) PREPAID RENT: $7,587.00 paid upon delivery of the premises to Tenant and
shall be applied to the first installment(s) of Base Monthly Rent due
hereunder.
(Q) SECURITY DEPOSIT (Section 26.01): Seven Thousand Five Hundred and no/100ths
Dollars ($7,500.00)
(R) TENANT RIGHT TO CONSTRUCTION BUDGET SAVINGS: Tenant shall have the right to
apply unused
SECTION 1.02. SIGNIFICANCE OF A BASIC LEASE PROVISION. The foregoing
provisions of Section 1.01 summarize for convenience only certain fundamental
terms of the Lease delineated more fully in the Articles and Sections referenced
therein. In the event of a conflict between the provisions of Section 1.01 and
the balance of the Lease, the latter shall control.
SECTION 1.03. ENUMERATION OF EXIBBITS. The exhibits enumerated in this
Section and attached to this Lease are incorporated in the Lease by this
reference and are to be construed as a part of the Lease.
EXHIBIT "A" Pg. 1 - FLOOR PLAN
EXHIBIT "A" Pg. 2 - POWER PLAN
EXHIBIT "A" Pg. 3 - REFLECTED CEILING PLAN
EXHIBIT "A-2" - BUSINESS PARK PLOT PLAN
EXHIBIT "B" - LEGAL DESCRIPTION(S)
EXHIBIT "C" - LANDLORD'S WORK
EXHIBIT "D" - TENANT'S WORK
EXHIBIT "E" - SIGN CRITERIA
ARTICLE II. GRANT AND PREMISES
SECTION 2.01. PREMISES. In consideration for the rent to be paid and
covenants to be performed by Tenant, Landlord hereby leases to Tenant, and
Tenant leases from Landlord for the Term and upon the terms and conditions
herein set forth premises described in Section 1.01(l) (hereinafter referred to
as the "Premises"), located in an office building development referred to in
Section 1.01(H) (hereinafter referred to as the "Building"). The legal
description of the Building is attached hereto as Exhibit "B". Gross rentable
area measurements herein specified are from the exterior of the perimeter walls
of the building to the center of the interior walls. In addition, the factor set
forth in Section 1.010.) has been added to the area as measured above to adjust
for Tenant's proportionate share of common hallways, restrooms, etc. in the
building.
The exterior walls and roof of the Premises and the areas beneath said
Premises are not demised hereunder and the use thereof together with the right
to install, maintain, use, repair, and replace pipes, ducts, conduits, and wires
leading through the Premises in locations which will not materially interfere
with Tenant's use thereof and serving other parts of the building or buildings
are hereby reserved to Landlord. Landlord reserves (a) such access rights
through the Premises as may be reasonably necessary to enable access by Landlord
to the balance of the building and reserved areas and elements as set forth
above; and (b) the right to install or maintain meters on the Premises to
monitor use of utilities. In exercising such rights, Landlord will use
reasonable efforts so as to not commit waste upon the Premises and as far as
practicable to minimize annoyance, interference or damage to Tenant when making
modifications, additions or repairs.
Subject to the provisions of Article VIII contained hereinbelow, Tenant
and its customers, agents and invitees have the right to the non-exclusive use,
in common with others of such unreserved automobile parking spaces, driveways,
footways, and other facilities designated for common use within the Building,
except that with respect to non-exclusive areas, Tenant shall cause its
employees to park their cars only in areas specifically designated from time to
time by Landlord for that purpose.
ARTICLE III RENT
SECTION 3.01 BASE MONTHLY RENT. Tenant agrees to pay to Landlord the
Base Monthly Rent set forth in Section 1.01(L) at such place as Landlord may
designate, without prior demand therefor, without offset or deduction and in
advance on or before the first day of each calendar month during the Rental
Term, commencing on the Rental Commencement Date. In the event the Rental
Commencement Date occurs on a day other than the first day of a calendar month,
then the Base Monthly Rent to be paid on the Rental Commencement Date shall
include both the Base Monthly Rent for the first full calendar month occurring
after the Rental Commencement Date, plus the Base Monthly Rent for the initial
fractional calendar month prorated on a per-diem basis (based upon a thirty (30)
day month).
SECTION 3.02 ESCALATION. Tenant's Base Monthly Rent shall be increased
on the Adjustment Dates set forth in Section 1..01(M).
SECTION 3.03 TENANT'S SHARE OF CAM, TAX AND INSURANCE EXPENSES. Tenant
shall pay as additiona Rent Tenant's pro-rated share of Landlord's expenses for
common area maintenance and security, if any, as defined in Section 8.03,
property taxes and assessments as defined in Section 3.04 and insurance as
defined in Section 11.01. Tenant's pro-rated share of Landlord's expenses is set
forth in Section 1.01(N) and is calculated by dividing the gross rentable area
of the premises by the gross rentable area of the Building.
Said additional rent shall be estimated annually at the beginning of
each Lease Year of the Rental Term. One-twelfth (1/12th) of Tenant's Share shall
be payable each month together with Base Monthly Rent as determined in Sections
3.01 and 3.02. Within sixty (60) days after the end of each Lease Year, Landlord
shall deliver to Tenant an accounting in reasonable detail of actual common area
maintenance, tax and insurance expenses certified by an officer of Landlord as
true and correct together with a calcualtion of Tenant's share of such expenses
incurred by Landlord in that Lease Year. Should the actual amount of such
expense exceed the estimated amount paid by Tenant during that
Lease Year, then Tenant shall pay the amount of any excess within twenty (20)
days after receipt of invoice. However if the estimated payments for the
previous year exceeded the actual amount incurred by Landlord, then Tenant may
deduct the excess amount from the next monthly estimated payment due from
Tenant.
SECTION 3.04 TAXES.
(a) Landlord shall pay all real property taxes and assessments
(all of which are hereinafter collectively referred (o as "Taxes")
which are levied against or which apply with respect to the Premises,
subject to reirribursement of Tenant's share as set forth in Section
3.03.
(b) Tenant shall prior to delinquency pay all taxes,
assessments, charges, and fees which during the Rental Term hereof may
be imposed, assessed, or levied by any governmental or public authority
against or upon Tenant's use of the Premises or any inventory, personal
property, fixtures or equipment kept or installed, or permitted to be
located therein by Tenant.
SECTION 3.05 PAYMENTS. All payments of Base Monthly Rent, Additional
Rent and other payments to be made to Landlord shall be made on a timely basis
and shall be payable to Landlord or as Landlord may otherwise designate. All
such payments shall be mailed or delivered to Landlord's principal office set
forth in Section 1.01(C), or at such other place as Landlord may designate from
time to time in writing. If mailed, all payments shall be mailed in sufficient
time and with adequate postage thereon to be received in Landlord's account by
no later than the due date for such payment, if Tenant shall fail to pay any
Base Monthly Rent or any additional rent or any other amounts or charges within
ten (10) days after the due date, Tenant shall pay a late fee equal to four (4%)
percent of such past due amount and, in addition, Tenant shall pay interest from
the due date of such past due amounts to the date of payment, both before and
after at a rate equal to the greater of fourteen (14%) percent per annum or two
(2%) percent over the "prime" or "base" rate charged by Zions First National
Bank of Utah at the due date of such payment; provided howeyer, that in any case
the maximum amount or rate of interest to be charged shall not exceed the
maximum non- usurious rate M accordance with applicable law.
ARTICLE IV RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM
SECTION 4.01 RENTAL TERM. The initial term of this Lease shall be for
the period defined as the Rental Term in Section 1,01(K), plus the partial
calendar month, if any, occurring after the Rental Commencement Date (as
hereinafter defined) if the Rental Commencement Date occurs other than on the
first day of a calendar month. "Lease Year" shall include twelve 1 12) calendar
months, except that first Lease Year will also include any partial calendar
month beginning on the Rental Date.
SECTION 4.02 RENTAL COMMENCEMENT DATE. The Rental Term of this Lease
and Tenant's obligation to pay rent. hereunder shall commence as set forth in
Section 1.01(K) (the "Rental Commencement Date"). Within five (5) (lays after
Landlord's request to do so, Landlord and Tenant shall execute a written
affidavit, in recordable form, expressing the Rental Commencement Date and the
termination date, which affidavit shall be deemed to be part of this Lease.
SE( TION 4.03 PRELIMINARY TERM. The period between the date Tenant
enters upon the Premises and the commencement of the Rental Term will be
designated as the "preliminary term" during which no Base Monthly Rent or other
common area expenses shall accrue; however, other covenants and obligations of
Tenant shall be in full force and effect. Delivery of possession of the Premises
to Tenant as provided in Section 5.03 shall be considered "entry" by Tenant and
commencement of "preliminary term".
ARTICLE V CONSTRUCTION OF PREMISES
SECTION 5.01 CONSTRUCTION BY LANDLORD. Landlord shall construct or
cause to be constructed the Building in which the Premises are to be located.
The Premises shall be constructed substantially in accordance with Outline
Specifications entitled "Landlord's Work" marked Exhibit "C" attached hereto and
Exhibit "D" to the extent set forth therein and made a pan hereof. Landlord's
construction obligation shall include Tenant Improvement pursuant to mutually
agreed space layout plans and specifications. After consultation with Tenant,
Landlord's architect shall furnish the plans and specifications for the Leased
Premises, but the cost thereof shall be charged toward Landlord Contribution It
is understood and agreed by Tenant that no minor changes from any plans or from
said Outline Specifications which may be necessary during construction of the
Premises or the Building shall affect or change this Lease or invalidate same.
SECTION 5.02 CHANGES AND ADDITIONS BY LANDLORD. Landlord hereby
reserves the right at any time, and from time to time, to make alterations or
additions to, and to build additional stories on the Building in which the
Premises are contained and to build adjoining the same and to modify the
existing parking or other common areas to accommodate additional buildings.
Landlord also reserves the right to construct other buildings or improvements in
the Building area from time to time, on condition that if the Building area is
expanded so as to include any additional buildings, Landlord agrees to create or
maintain a parking ratio adequate to meet local laws and ordinances, including
the right to add land to the Building or to erect parking structures thereon.
SECTION 5.03 DELIVERY OF POSSESSION. Except as hereinafter provided,
Landlord shall deliver the Premises to Tenant ready for Tenant's Work on or
before the date set forth in Section 1.01(J). The Premises shall be
deemed as ready for delivery when Landlord shall have substantially completed
construction of the portion of the said Premises to be occupied exclusively by
Tenant, in accordance with Landlord's obligations set forth in Exhibit "C".
Landlord shall, from time to time during the course of construction, provide
information to Tenant concerning the progress of construction of said Premises,
and will give written notice to Tenant when said Premises are in fact ready for
Tenant's Work. Notwithstanding the foregoing, Landlord shall have the right to
extend the date for delivery of possession of the Premises for a period of one
(1) month by notice in writing given to Tenant any time prior to said delivery
date. If any disputes shall arise as to the Premises being ready for delivery of
possession, a certificate furnished by Landlord's architect in charge so
certifying shall be conclusive and binding of that fact and date upon the
parties. It is agreed that by occupying the Premises as a tenant, Tenant
formally accepts the same and acknowledges that the Premises are In the
condition called for hereunder, except for items specifically excepted in
writing at date of occupancy as 1
ARTICLE VI TENANT'S WORK & LANDLORD'S CONTRIBUTION
SECTION 6.01 TENANT'S WORK. Tenant agrees to provide all work of
whatsoever nature in accordance with its obligations set forth in Exhibit "D"
except as set forth to be completed by Landlord during initial construction in
Exhibit "C". If Tenant desires to remodel the Premises, Tenant agrees to furnish
Landlord, prior to construction, with a complete and detailed set of plans and
specifications drawn by some qualified person acceptable to Landlord setting
forth and describing Tenant's Work in such detail as Landlord may require and in
compliance with Exhibit "D", unless this requirement be waived in writing by
Landlord. Landlord must approve all Tenant plans in writing prior to
construction. No substantive deviation from the final set of plans and
specifications once submitted to and approved by Landlord, shall be made by
Tenant without Landlord's prior written consent. Landlord shall have the right
to approve Tenant's contractor to be used in performing Tenant's Work, and the
right to require and approve insurance or bonds provided by Tenant or such
contractors. In due course after completion of Tenant's Work, Tenant shall
certify to Landlord the itemized cost of Tenant improvements and fixtures
located upon the Premise,@.
SECTION 6.02 LANDLORD'S CONTRIBUTION. Landlord agrees to make a
contribution to Tenant's Work set forth in Exhibit "D", in an amount not to
exceed the actual cost of Tenant's Work or the amount set forth in Section I
040), whichever amount is the lesser. Within thirty (30) days after invoice
therefore, Tenant shall reimburse to Landlord any construction cost in excess of
the sum of Landlord's Work pursuant to Exhibit "C" and Landlord's Contribution
toward work performed by Landlord shown in Exhibit "D".
ARTICLE VII USE
SECTION 7.01 USE OF PREMISES. Tenant shall use and occupy the Premises
solely for the purpose of conducting the business indicated in Section 1.01(F).
Tenant shall promptly comply with all present or future laws, ordinances, lawful
orders and regulations affecting the Premises and the cleanliness, safety,
occupancy and use of same. Tenant shall not make any use of the Premises which
will cause cancellation or an increase in the cost of any insurance policy
covering the same. Tenant shall not keep or use on the Premises any article,
item, or thing which is prohibited by the standard form of fire insurance
policy. Neither Tenant nor Landlord shall not commit any waste upon the Premises
and shall not conduct or allow any business, activity, or thing on the Premises
which is an annoyance or causes damage to landlords Tenant to other subtenants,
occupants, or users of the improvements, or to occupants of the vicinity.
SECTION 7.02 RAZARDOUS SUBSTANCES.
a) Landlord shall be responsible for removal of any Hazardous
Substances that existed at the Leased Premises prior to construction or any that
Landlord has or does install at the Leased Premises or Building. After
reasonable inquiry, Landlord is not aware of any existing Hazardous Substances
in the Building or Common Areas.
b) Tenant shall not use, produce, store, release, dispose or
handle in or about the Leased Premises or transfer to or from the Leased
Premises (or permit any other party to do such acts) any Hazardous Substance
except in compliance with all applicable Environmental Laws. Tenant shall not
construct or use any improvements, fixtures or equipment or engage in any act on
or about the Leased Premises that would require the procurement of any license
or permit pursuant to any Environmental Law and Tenant shall remove any
Hazardous Substance resulting from Tenant's or its agent's contractors, or
business invitee's acts. Tenant shall immediately notify Landlord of (i) the
existence of any Hazardous Substance on or about the Leased Premises that may in
violation of any Environmental Law (regardless of whether Tenant is responsible
for the existence of such Hazardous Substance), (ii) any proceeding or
investigation by any governmental authority regarding the presence of any
Hazardous Substance on the Leased Premises or the migration thereof to or from
any other property, (iii) all claims made or threatened by any third party
against Tenant relating to any loss or injury resulting from any Hazardous
Substance in or about the Leased Premises. "Environmental Laws" shall mean any
federal, state or local statute, ordinance, rule, regulation or guideline
pertaining to health, industrial hygiene, or the environment, including without
limitation, the federal Comprehensive Environmental Response, Compensation, and
Liability Act; "Hazardous Substance' shall mean all substances, materials and
wastes that are or become regulated, or classified as hazardous or toxic, under
any Environmental Law.
c) The party herein responsible for removal of Hazardous
Substances shall upon learning of such condition proceed within five (5) days
thereafter to commence removal of such Hazardous Substance and shall diligently
continue to effect such removal until completion. Removal shall be accomplished
in accordance with any applicable safety standards.
ARTICLE VII OPERATION AND MAINTENANCE OF COMMON AREAS
SECTION 8.01 CONSTRUCTION AND CONTROL OF COMMON AREAS. All
automobile parking areas, driveways, entrances and exits thereto, and other
facilities furnished by Landlord in or near the buildings or Building, including
if any, employee parking areas, truck ways, loading docks, mail rooms or mail
pickup areas, pedestrian sidewalks and hallways, landscaped areas, retaining
walls, stairways, restrooms, HVAC, electrical and other utility systems, and
other areas and improvements provided by Landlord for the general use in common
tenants, their officers, agents, employees and customers, (hereinafter "Common
Facilities") shall at all times be subject to the exclusive control and
management of Landlord which shall have the right from time to time to
establish, modify and enforce reasonable Rules and Regulations with respect to
all facilities and areas mentioned in this Section. Landlord shall have the
right to construct, maintain and operate lighting and drainage facilities on or
in all said areas and improvements; to police the same, front time to time to
change the area, level, location and arrangement of parking areas and other
facilities hereinabove referred to; to restrict parking by tenants, their
officers, agents and employees to employee parking areas; to close temporarily
all or any portion of said areas or facilities to such extent as may, in the
opinion of counsel, be legally sufficient to prevent a dedication thereof or the
accrual of any rights to any person or the public therein; to assign "reserved"
par-king spaces for exclusive use of certain tenants or for customer parking, to
discourage non-employee and non-custorrier parking; and to do and perform such
other acts in and to said areas and improvements as, in the exercise ofgood
businessjudgment, the Landlord shall determine to be advisable with a view
toward maintaining of appropriate convenience uses, amenities, and for permitted
uses by tenants, their officers, agents, employees and customers. Landlord will
operate and maintain the common facilities referred to above in such a manner as
it, in its sole discretion, shall determine from time to time. Without limiting
the scope of such discretion, Landlord shall have the full right and authority
to employ all personnel and to make all Rules and Regulations pertaining to and
necessary for the proper operation, security and maintenance of the common areas
and facilities. Building and/or project signs, traffic control signs and other
signs determined by Landlord to be in best interest of the Building, will be
considered part of common area and common facilities.
SECTION 8.02 LICENSE. All common areas and facilities not
within the Premises, which Tenant may be permitted to use and occupy, are to be
used and occupied under a revocable license, and if the amount of such areas be
diminished, Landlord shall not be subject to any liabilities nor shall Tenant be
entitled to any compensation or diminution or abatement of rent, nor shall such
diminution of such areas be deemed constructive or actual eviction, so long as
such revocations or diminutions are deemed by Landlord to serve the best
interests of the Building.
SECTION 8.03 COMMON AREA MAE14TENANCE EXPENSES.
a) Pursuant to Section 3.03, Tenant shall pay its share of the
"Common Area Operating Cost" for the Common Facilities
b) For the purpose of this Section 8.03 the "Common Area
Operating Cost" means the total cost and expense incurred in operating and
maintaining, equipping, policing, protecting, lighting, repairing and replacing
the Common Facilities, actually used or available for use by tenants and the
employees, agents, servants and other invitees of tenants, excluding carrying
charges, "on-site employee expenses" and management fees or Landlord
administrative fee, but specifically including fire and other casualty, public
liability and property damage insurance, real estate taxes and assessments,
security personnel and equipment, utility charges, heating and air conditioning,
on and off-site traffic control, directories, repairs, line painting, lighting,
and sanitary control. Notwithstanding the above, the following items are to be
specifically excluded from "Common Area Operating Cost":
1) Costs attributable to original development, or seeking and
obtaining new tenants or lease extensions, such as advertising,
brokerage commissions, architectural, engineering, attorney's fees,
renovations and improvements
2) Costs attributable to enforcing leases against tenants in
the project, such as attorney's fees, court costs, adverse judgments
and similar expenses, except for a reasonable allocation of costs to
extent action relates to common area collections or operations;
3) Costs that are reimbursed to the Landlord by tenants as a
result of provisions contained in their specific leases;
4) Costs for alterations and additions that are in the nature
of new, rather than replacement of existing common area capital
improvements;
5) Reserves for bad debts or future expenditures which would
be incurred subsequent to the then current accounting year;
6) Interest on any mortgages of the Landlord (except that this
shall not restrict charges for depreciation of amortization (including
principal and interest) of permitted capital improvements or equipment
regardless of whether or not acquisition proceeds may have been
borrowed);
7) Repairs and other work occasioned by fire, windstorm or
other casualty to the extent that the Landlord is reimbursed by
insurance that was required to be carried under the Lease:
8) Any costs, fines or penalties incurred due to violations by
Landlord of any leases or any governmental rule or authority, except to
the extent that Landlord reasonably determines that Operating Expenses
had been reduced in prior years as a result thereof;
9) The costs of correcting originally-constructed conunon area
improvements in order to comply with codes that were applicable at the
time such improvements were constructed;
10) Costs attributable to repairing items that are covered by
warranties to the extent that Landlord recovers such costs under the
warranties;
11) Repairs and maintenance performed exclusively for a
particular tenant exclusive space and not in the common areas, or
tenant improvements in a tenant's space rather than for improvements
intended generally for the common benefit of the office building
tenant.
12) Costs of correcting defective conditions in the Building
resulting from failure to comply with applicable building and
construction codes at the time such improvements were constructed;
13) Building structural, roof and other costs set forth as
Item 2 in Landlord maintenance obligations in Section 10.01.
14) Costs resulting from Landlord's negligent acts.
ARTICLE IX ALTERATIONS, SIGNS, LOCKS & KEYS
SECTION 9.01 ALTERATIONS. Tenant shall not make or suffer to be made
any alterations or additions to the Premises or any part thereof without the
prior written consent of Landlord. Any additions to, or alterations of the
Premises except movable furniture, equipment and trade fixtures shall become a
part of the realty and belong to Landlord upon the termination of Tenant's lease
or renewal term or other termination or surrender of the Premises to Landlord.
SECTION 9.02 SIGNS. Subject to prior municipal or required public
approvals and to full conformity with Exhibit " E ", Tenant may place, at its
own expense, suitable tenant identification signs on the Premises and/or
Building, provided that such sign shall be in the Landlord-approved building
location, and that general design conforms to the design and style of other
tenant signs on the buildings and provided that written approval of the sign
design and proposed location is obtained in advance from Landlord. If any sign
is installed or posted prior to obtaining such approval or which does not
conform to the conditions herein specified, Tenant shall be required to remove
said sign and repair any damage caused thereby at its sole cost and expense. At
the termination of this Lease, Tenant shall remove said sign. Tenant shall
repair any damage caused by the installation or removal of any Tenant signs. All
work shall be completed in a good and workmanlike manner.
SECTION 9.03 LOCKS AND KEYS. Tenant may change locks or install other
locks on doors, but if Tenant does, Tenant must provide Landlord with duplicate
keys within twenty four hours after said change or installation. Tenant upon
termination of this Lease shall deliver to Landlord all the keys to the Premises
including any interior offices, toilet rooms, combinations to built-in safes,
etc. which shall have been furnished to or by the Tenant or are in the
possession ot the 'Tenant
ARTICLE X MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS
SECTION 10.01 LANDLORD'S OBLIGATION FOR MAMTENANCE. Landlord shall
maintain and repair: (1) the areas outside the Premises including hallways,
public restrooms, if any, general landscaping, parking areas, driveways and
walkways; (2) the Building structure including roof, exterior walls, and
foundation; and (3) all plumbing, electrical, heating, and air conditioning
systems. However, if the need for such repairs or maintenance results from any
careless, wrongful or negligent act or omission of Tenant, Tenant shall pay the
entire cost of any such repair or maintenance including a reasonable charge to
cover Landlord's supervisory overhead. Landlord shall not be obligated to repair
any damage or defect until receipt of written notice from Tenant of the need of
such repair and Landlord shall have a reasonable time after receipt of such
notice in which to make such repairs. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the Premises or in the building of
which the Premises are a part or of defects therein or in any fixtures or
equipment provided by Landlord.
SECTION 10.02 TENANT'S OBLIGATION FOR MAINTENANCE.
(a) Tenant shall provide its own janitorial service and keep
and maintain the Premises including the interior wall surfaces and
windows, floors, floor coverings and ceilings in a clean, sanitary and
safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health
officer, fire marshall, building inspector, or other proper officials
of the governmental agencies having jurisdiction, at the sole cost and
expense of Tenant, and Tenant shall comply with all requirements of
law, ordinance and otherwise, affecting said Premises.
(b) Tenant shall pay, when due, all claims for labor or
material furnished, for work under Sections 9.01, 9.02 and 9.03 hereof,
to or for Tenant at or for use in the Premises, and shall bond such
work if reasonably required by Landlord to prevent assertion of claims
against Landlord.
(c) Tenant agrees to be responsible for all furnishings
fixtures and equipment located upon the Premises from time to time and
shall replace carpeting within the Premises if same shall be damaged by
tearing, burning, or stains resulting from spilling anything on said
carpet, reasonable wear and tear accepted. Tenant further agrees to use
chairmats or floor protectors wherever it uses chairs with wheels or
casters on carpeted areas.
SECTION 10.03 SURRENDER AND RIGHTS UPON TERMINATION.
(a) This Lease and the tenancy hereby created shall cease and
terminate at the end of the Rental Term hereof, or any extension or
renewal thereof, without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives
notice to vacate the Premises and agrees that Landlord shall be
entitled to the benefit of all provisions of law respecting summary
recovery of possession of Premises from a Tenant holding over to the
same extent as if statutory notice has been given.
(b) Upon termination of this Lease at any time and for any reason
whatsoever, Tenant shall surrender and deliver up the Premises to Landlord
in the same condition as when the Premises were delivered to Tenant or as
altered as provided in Section 9.01, ordinary wear and tear excepted. Upon
request of Landlord, Tenant shall promptly remove all personal property from
the Premises and repair any damage caused by such removal. Obligations
under this Lease relating to events occurring or circumstances existing prior
to the date of termination shall survive the expiration or other termination
of the Rental Term or this Lease. Liabilities accruing after date of
termination are defined in Sections 19.01 and 19.02.
ARTICLE XI INSURANCE AND INDEMNITY
SECTION 11.01 LIABILITY INSURANCE AND INDEMNITY. Tenant shall, during
all terms hereof, keep in full force and effect a policy of public bodily injury
and property damage liability insurance with respect to the Premises, with a
combined single limit of not less than One Million Dollars ($1,f000,000.00) per
occurrence. The policy shall name Landlord, Property Manager (i.e., Woodbury
Corporation) and any other persons, firms or corporations designated by Landlord
and Tenant as insureds, and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the Landlord ten (10) days
prior written notice. Such insurance shall include an endorsement permitting
Landlord and Property Manager to recover damage suffered due to act or omission
of Tenant, notwithstanding being named as an additional "Insured party" in such
policies. Such insurance may be furnished by Tenant under any blanket policy
carried by it or under a separate policy therefor. The insurance shall be with
an insurance company approved by Landlord and a copy of the paid-up policy
evidencing such insurance or a certificate of insurer certifying to the issuance
of such policy shall be delivered to Landlord. If Tenant fails to provide such
insurance, Landlord may do so and charge same to Tenant.
Tenant will indemnify, defend and hold Landlord harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Premises or from the occupancy
or use by Tenant of the Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors, employees,
servants, sublessees, concessionaires or business invitees unless caused by the
negligence of Landlord and to the extent not covered by its fire, casualty and
liability insurance. In case Landlord shall, without fault of its part, be made
a party to any litigation commenced by or against Tenant, then Tenant shall
protect and hold Landlord harmless and shall pay all costs, expenses and
reasonable attorney fees incurred or paid by either in defending itself or
enforcing the covenants and agreements of this Lease.
Landlord will indemnify, defend and hold Tenant harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any misconduct or negligent omission of Landlord, its agents,
contractors, employees or servants, to the extent not covered by its fire,
casualty and liability insurance. In case Tenant shall, without fault of its
part, be made a party to any litigation commenced by or against Landlord, then
Landlord shall protect and hold Tenant harmless and shall pay all costs,
expenses and reasonable attorney fees incurred or paid by either in defending
itself or enforcing the covenants and agreements of this Lease.
SECTION 11.02 FIRE AND CASUALTY INSURANCE.
(a) Subject to the provisions of this Section 11.02, Landlord
shall secure, pay for, and at all times during the terms hereof
maintain, insurance providing coverage upon the building improvements
in an amount equal to the full insurable value thereof (as determined
by Landlord) and insuring against the perils of fire, extended
coverage, vandalism, and malicious mischief. All insurance required
hereunder shall be written by reputable, responsible companies licensed
in the State of Utah. Tenant shall have the right, at its request at
any reasonable time, to be furnished with copies of the insurance
policies then in force pursuant to this Section, together with evidence
that the premiums therefor have been paid.
(b) Tenant agrees to maintain at its own expense such fire and
casualty insurance coverage as Tenant may desire or require in respect
to Tenant's personal property, equipment, furniture, fixtures or
inventory and Landlord shall have no obligation in respect to such
insurance or losses. All property kept or stored on the Premises by
Tenant or with Tenant's permission shall be so done at Tenant's sole
risk and Tenant shall indemnify Landlord against and hold it harmless
from any claims arising out of loss or damage to same.
(c) Tenant will not permit said Premises to be used for any
purpose which would render the insurance thereon void or cause
cancellation thereof or increase the insurance risk or increase the
insurance premiums in effect just prior to the commencement of this
Lease. Tenant agrees to pay as additional rent the total amount of any
increase in the insurance premium of Landlord over that in effect prior
to the commencement of this lease resulting from Tenant use of the
Premises. If Tenant installs any electrical or other equipment which
overloads the lines in the Premises, Tenant shall at its own expense
make whatever changes are necessary to comply with the requirements of
Landlord's insurance.
(d) Tenant shall be responsible for all glass breakage at
Leased Premises from any cause whatsoever and agrees to immediately
replace all glass broken or damaged during the terms hereof with glass
of the same quality as that broken or damaged. Landlord may replace, at
Tenant's expense, any broken or damaged glass if not replaced by Tenant
within five (5) days after such damage.
(e) Tenant shall reimburse to Landlord Tenant's share of
casualty insurance provided by Landlord pursuant to subsection (a)
above in the manner set forth in Section 3.03 herein.
SECTION 11.03 WAIVER OF SUBROGATION. Each party hereto does hereby
release and discharge the other party hereto and any officer, agent, employee or
representative of such party, of and from any liability whatsoever hereafter
arising from loss, damage or injury caused by fire or other casualty for which
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried by the injured party at the time of such loss, damage or
injury to the extent of any recovery by the injured party under such insurance.
ARTICLE XII UTILITY CHARGES
SECTION 12.01 UTILITY CHARGES. Landlord shall install all utility
systems and shall have electricity and gas sub-metered or monitored such that
Tenant shall pay only for actual electrical and gas usage at the Leased
Premises. Water and sewer charges shall be included in common area maintenance
pursuant to Section 8.O3 Landlord shall pay all utility charges to utility
companies promptly when due, but Tenant shall pay to Landlord its actual share
within ten (10) days after invoice by Landlord. Tenant shall pay for all
telephone installation, equipment and monthly use charges. If utility
companies bill Tenant direct for separately metered utility charges, Tenant
agrees to pay when due all such charges direct to the utility company.
ARTICLE XIII OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01 OFF-SET STATEMENT. Tenant agrees within ten (10) days
after request therefor by Landlord to execute in recordable form and deliver
to Landlord a statement in writing, certifying (a) that this Lease is
in full force and effect (b) the date of commencement of the Rental Term of
this Lease, (c) that rent is paid currently without any off-set or defense
thereto, (d) the amount of rent, if any paid in advance. and (e) that there
are no uncured defaults by Landlord or stating those claimed by Tenant.
SECTION 13.02 ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of
sale under any mortgage or deed of trust made by Landlord covering the
Premises, attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as the Landlord under this Lease.
SECTION 13.03 SUBORDINATION. Tenant agrees that this Lease shall, at the
request of Landlord, be subordinate to any first mortgages or deeds of trust
that may hereafter be placed upon said Premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof, provided the mortgagees or trustees named
in said mortgages or deeds of trust shall agree to recognize and not disturb
the Lease of Tenant in the event of foreclosure, if Tenant is not in default.
SECTION 13.04 MORTGAGEE SUBORDINATION. Tenant hereby agrees that this
Lease shall, if at any time requested by Landlord or any lender in respect to
Landlord's financing of the building or project in which the Premises are
located or any portion hereof, be made superior to any mortgage or deed of
trust that may have preceded such Lease.
SECTION 13.05 REMEDIES. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for the Tenant with full power and authority to execute and
deliver in the name of the Tenant any such instruments described in this
Article XIII upon failure of the Tenant to execute and deliver any of the
above instruments within fifteen (15) days after written request so to do by
Landlord; and such failure shall constitute a breach of this Lease entitling
the Landlord, at its option, to cancel this Lease and terminate the Tenant's
interest therein.
ARTICLE XIV ASSIGNMENT
SECTION 14.01 ASSIGNMENT. Tenant shall not assign this Lease or sublet
the Premises, or any part thereof, without first obtaining the written consent
of the Landlord, which consent shall not be unreasonably withheld. The consent
of Landlord shall not relieve Tenant or Guarantors of this Lease from continuing
liability for all obligations under this Lease. Any Assignment by operation of
law or if the Tenant be a corporation, unincorporated association or
partnership, the transfer, assignment or hypothecation of any stock or interest
in such corporation, association or partnership in the aggregate in excess of
50% shall be deemed an "Assignment" within the meaning of this Section.
ARTICLE XV WASTE OR NUISANCE
SECTION 15.01 WASTE OR NUISANCE. Tenant shall not commit or suffer to
be committed any waste upon the Premises, or any nuisance or other act or thing
which may disturb the quite enjoyment of any other tenant in the building in
which the Premises may be located, or elsewhere within the Building.
ARTICLE XVI NOTICES
SECTION 16.01 NOTICES. Except as provided in Section 19.01 any notice
required or permitted hereunder to be given or transmitted between the parties
shall be either personally delivered, or mailed postage prepaid by registered
mail, return receipt requested, addressed if to Tenant at the address set forth
in Section 1.01(E), and if to Landlord at the address set forth in Section
1.01(C). Either party may, by notice to the other given as prescribed in this
Section 16.01, change its above address for any future notices which are mailed
under this Lease.
ARTICLE XVII DESTRUCTION OF THE PREMISES
SECTION 17.01 DESTRUCTION.
(a) If the Premises are partially or totally destroyed by fire
or other casualty insurable under standard fire insurance policies with
extended coverage endorsement so as to become partially or totally
untenantable, the same shall be repaired or rebuilt as speedily as
practical under the circumstances at the expense of the Landlord,
unless Landlord elects not to repair or rebuild as provided in
Subsection (b) of this Section 17.01. During the period required for
restoration, a just and proportionate part of Base Rent, additional
rent and other charges payable by Tenant hereunder shall be abated
until the Premises are repaired or rebuilt.
(b) If the Premises are (I) rendered totally untenantable by
reason of an occurrence described in Subsection (a), or (II) damaged or
destroyed as a result of a risk which is not insured under Landlord's
fire insurance policies, or (III) at least twenty percent (20%) damaged
or destroyed during the last year of the Rental Term, or (IV) if the
Building is damaged in whole or in part (whether or not the Premises
are damaged), to such an extent that Tenant cannot practically use the
Premises for its intended purpose, then and in any such events Landlord
or Tenant may at its option terminate this Lease Agreement by notice in
writing to the Tenant within sixty (60) days after the date of such
occurrence. Unless Landlord gives such notice, this Lease Agreement
will remain in full force and effect and Landlord shall repair such
damage at its expense as expeditiously as possible under the
circumstances.
(c) If Landlord should elect or be obligated pursuant to
Subsection (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Building any other work or improvements which may have been originally
performed or installed at Landlord's expense. If the cost of performing
Landlord's obligation exceeds the actual proceeds of insurance paid or
payable to Landlord on account of such casualty, Landlord may terminate
this Lease Agreement unless Tenant, within fifteen (15) days after
demand therefor, deposits with Landlord a sum of money sufficient to
pay the difference between the cost of repair and the proceeds of the
insurance available for such purpose Tenant shall replace all work and
improvements not originally installed or performed by Landlord at its
expense.
(d) Except as stated in this Article XVII and as otherwise
provided in this Lease, Landlord shall not be liable for any loss or
damage sustained by Tenant by reason of casualties mentioned
hereinabove or any other accidental casualty.
ARTICLE XVIII CONDEMNATION
SECTION 18.01 CONDEMNATION. As used in this Section the term
"Condemnation Proceeding" means any action or proceeding in which any interest
in the Premises or Building is taken for any public or quasi-public purpose by
any lawful authority through exercise of the power of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof. If the whole of the
Premises is taken through Condemnation Proceedings, this Lease shall
automatically terminate as of the date possession is taken by the condemning
authority. If in excess of twenty-five (25%) percent of the Premises is taken,
either party hereto shall have the option to terminate this Lease by giving the
other written notice of such election at any time within thirty (30) days after
the date of taking. If less than twenty-five (25%) percent of the space is taken
and Landlord determines, in Landlord's sole discretion, that a reasonable amount
of
reconstruction thereof will not result in the Premises or the Building
becoming a practical improvement reasonably suitable for use for the purpose for
which it is designed, then Landlord may elect to terminate this Lease Agreement
by giving thirty (30) days written notice as provided hereinabove. In all other
cases, or if neither party exercises its option to terminate, this Lease shall
remain in effect and the rent payable hereunder from and after the date of
taking shall be proportionately reduced in proportion to the ratio of: (1) the
area contained in the Premises which is capable of occupancy after the taking;
to (II) the total area contained in the Premises which was capable of occupancy
prior to the taking. In the event of any termination or rental reduction
provided for in this Section, there shall be a proration of the rent payable
under this Lease and Landlord shall refund any excess theretofore paid by
Tenant. Whether or not this Lease is terminated as a consequence of Condemnation
Proceedings, all damages or compensation awarded for a partial or total taking,
including any sums compensating Tenant for diminution in the value of or
deprivation of its leasehold estate, shall be the sole and exclusive property of
Landlord, except that Tenant will be entitled to any awards intended to
compensate Tenant for expenses of locating and moving Tenant's operations to a
new space.
ARTICLE XIX DEFAULT OF TENANT
SECTION 19.01 DEFAULT - RIGHT TO RE-ENTER. In the event of any failure
of Tenant to pay any rental due hereunder within ten (10) days after written
notice that the same is past due shall have been mailed by certified mail to
Tenant, or any failure by Tenant to perform any other of the terms, conditions
or covenants required of Tenant by this Lease within thirty (30) days after
written notice of such default shall have been mailed by certified mail to
Tenant, or if Tenant shall abandon said Premises, or permit this Lease to be
taken under any writ of execution, then Landlord, besides other rights or
remedies it may have, shall have the right to declare this Lease terminated and
shall have the immediate right of re-entry and may remove all persons and
property from the Premises. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
evidence of notice or resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be occasioned
thereby. Tenant hereby waives all compensation for the forfeiture of the term or
its loss of possession of the Premises in the event of the forfeiture of this
Lease as provided for above. Any notice that Landlord may desire or is required
to give Tenant with reference to the foregoing provision may, in lieu of
mailing, at the option of Landlord, be conspicuously posted for ten (10)
consecutive days at the main entrance to or in front of the Premises, and such
notice shall constitute a good, sufficient, and lawful notice for the purpose of
declaring a forfeiture of this Lease and for terminating all of the rights of
the Tenant hereunder.
SECTION 19.02 DEFAULT - RIGHT TO RE-LET. Should Landlord elect to
re-enter, as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Premises, and may relet said Premises or any part thereof for such term or
terms (which may be for a term extending beyond the term of this Lease) and at
such rental or rentals and upon such other terms and conditions as Landlord in
its sole discretion may deem advisable. Upon each such reletting, all rentals
received by Landlord from such reletting shall be applied first to the payment
of any costs and expenses of such reletting, including brokerage fees and
attorney's fees and costs of such alterations and repairs; second, to the
payment of rent or other unpaid obligations due hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as the same
may become due and payable hereunder. If such rental received from such
reletting during any month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a court or competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time elect to terminate this Lease for such previous default. Should
Landlord at any time terminate this Lease for any default, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such default, including the cost of recovering the Premises,
reasonable attorney's fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Premises for the remainder of the stated
term, all of which amounts shall be immediately due and payable.
SECTION 19.03 LEGAL EXPENSES. In case of default by either party in the
performance and obligations under this Lease, the defaulting patty shall pay all
costs incurred in enforcing this Lease, or any right arising out of such
default, whether by suit or otherwise, including a reasonable attorney's fee.
ARTICLE XX BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP
SECTION 20.01 ACT OF INSOLVENCY, GUARDIANSHIP, ETC. The following shall
constitute a default of this Lease by the Tenant for which Landlord, at
Landlord's option, may immediately terminate this Lease.
(a) The appointment of a receiver to take possession of all or
substantially all of the assets of the Tenant.
(b) A general assignment by the Tenant of his assets for the
benefit of creditors.
(c) Any action taken or suffered by or against the Tenant
under any federal or state insolvency or bankruptcy act.
(d) The appointment of a guardian, conservator, trustee, or
other similar officer to take charge of all or any substantial part of
the Tenant's property.
Neither this Lease, nor any interest therein nor any estate thereby
created shall pass to any trustee, guardian, receiver or assignee for the
benefit of creditors or otherwise by operation of law.
ARTICLE XXI LANDLORD ACCESS
SECTION 21.01 LANDLORD ACCESS. Landlord or Landlord's agent shall have
the right to enter the Premises at all reasonable times to examine the same, or
to show them to prospective purchasers or lessees of the Building, or to make
all repairs, alterations, improvements or additions as Landlord may deem
necessary or desirable, and Landlord shall be allowed to take all material into
and upon said Premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part, and rent shall not abate
while said repairs, alterations, improvements, or additions are being made, by
reason of loss or interruption of business of Tenant, or otherwise which shall
not materially affect Tenant. During the ninety days prior to the expiration of
the Rental Term of this Lease or any renewal term, Landlord may exhibit the
Premises to prospective tenants and place upon the Premises the usual notices
"To Let" or "For Rent" which notices Tenant shall permit to remain thereon
without molestation.
ARTICLE XXII LANDLORD'S LIEN
SECTION 22.01 LANDLORD'S LIEN. Tenant hereby grants to Landlord a lien
upon the improvements, trade fixtures and furnishings of Tenant to secure full
and faithful performance of all of the terms of this Lease.
ARTICLE XXIII HOLDING OVER
SECTION 23.01 HOLDING OVER. Any holding over after the expiration of
the Rental Term hereof shall be construed to be a tenancy at sufferance and all
provisions of this Lease Agreement shall be and remain in effect except that the
monthly rental shall be double the amount of rent (including any adjustments as
provided herein) payable for the last full calendar month of the Rental Term
including renewals or extensions. Notwithstanding the aforementioned double rent
penalty, should Tenant and Landlord agree to construct or lease another building
to the Tenant, this penalty can be waived.
SECTION 23.02 SUCCESSORS. All rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and bind the
several respective heirs, executors, administrators, successors and assigns of
the said parties; and if there shall be more than one tenant, they shall all be
bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing.
ARTICLE XXIV RULES AND REGULATIONS
SECTION 24.01 RULES AND REGULATIONS. Tenant shall comply with all
reasonable rules and regulations which are now or which may be hereafter
prescribed by the Landlord and posted in or about said Premises or otherwise
brought to the notice of the Tenant, both with regard to the project as a whole
and to the Premises including common facilities.
ARTICLE XXV QUIET ENJOYMENT
SECTION 25.01 QUIET ENJOYMENT. Upon payment by the Tenant of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Premises for the term hereby demised
without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under the Landlord, subject,
nevertheless, to the terms and conditions of this Lease and actions resulting
from future eminent domain proceedings and casualty losses.
ARTICLE XXVI SECURITY DEPOSIT
SECTION 26.01 SECURITY DEPOSIT. The Landlord herewith acknowledges
receipt of the amount set forth in Section 1.01(Q), which it is to retain as
security for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall the Landlord be obliged to apply
the same upon rents or other charges in arrears or upon damages for Tenant's
failure to perform the said covenants, conditions and agreements. The Landlord
may so apply the security, at its option, and the Landlord's right to possession
of the Premises for non-payment of rent or for any other reason shall not in any
event be affected by reason of the fact that the Landlord holds this security.
The said sum, if not applied toward the payment of rent in arrears or toward the
payment of damages suffered by the Landlord by reason of the Tenant's breach of
the covenants, conditions and agreements of this Lease, is to be returned to the
Tenant without interest when this Lease is terminated,according to these terms,
and in no event is the said security to be returned until the Tenant has vacated
the Premises and delivered possession to the Landlord.
In the event that the Landlord repossesses the Premises because of the
Tenant's default or because of the Tenant's failure to carry out the covenants,
conditions and agreements of this Lease, the Landlord may apply the said
security toward damages as may be suffered or shall accrue thereafter by reason
of the Tenant's default or breach. The Landlord shall not be obligated to keep
the said security as a separate fund, but may mix the said security with its own
funds.
ARTICLE XXVII MISCELLANEOUS PROVISIONS
SECTION 27.01 WAIVER. No failure on the part of Landlord to enforce any
covenant or provision of this Lease shall discharge or invalidate such covenant
or provision or affect the right of Landlord to enforce the same in the event of
any subsequent breach. One or more waivers of any covenant or condition by
Landlord shall not be construed as a waiver of a subsequent breach of the same
covenant or condition and the consent to or approval of any subsequent similar
act by Tenant. No breach of a covenant or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing signed
by Landlord.
SECTION 27.02 ENTIRE AGREEMENT. This Lease constitutes the entire
Agreement and understanding between the parties hereto and supersedes all prior
discussions, understandings and agreements. This Lease may not be altered or
amended except by a subsequent written agreement executed by all parties.
SECTION 27.03 FORCE MAJEURE. Any failure to perform or delay in
performance by either party of any obligation under this Lease. other than
Tenant's obligation to pay rent, shall be excused if such failure or delay is
caused by any strike, lockout, governmental restriction or any similar cause
beyond the control of the party so failing to perform, to the extent and for the
period that such continues.
SECTION 27.04 LOSS AND DAMAGE . Except as otherwise provided in this
Lease, the Landlord shall not be responsible or liable to tile Tenant for any
loss or damage that may be occasioned by or through the acts or omissions of
persons occupying all or any part of the premises adjacent to or connected with
the Premises or any part of the building of which the Premises are a part, or
for any loss or damage resulting to the Tenant or his property from bursting,
stoppage or leaking of water, gas sewer or steam pipes or for any damage or loss
of property within the Premises from any cause whatsoever.
SECTION 27.05 ACCORD AND SATISFACTION. No payment by Tenant or receipt
by Landlord of a lesser amount than the amount owing hereunder shall be deemed
to be other than on account of the earliest stipulated amount receivable from
Tenant, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or receivable or pursue any other
remedy available under this Lease or the law of the state where the Premises are
located.
SECTION 27.06 NO OPTION. The submission of this Lease for examination
does not constitute a reservation of or option for the Premises and this Lease
becomes effective as a lease only upon full execution and delivery thereof by
Landlord and Tenant.
SECTION 27.07 ANTI-DISCRIMINATION. Tenant herein covenants by and for
itself, its heirs, executors, administrators and assigns and all persons
claiming under or through it, and this Lease is made and accepted upon and
subject to the following conditions That there shall be no discrimination
against or segregation of any person or group of persons on account of race,
sex, marital status, color, creed, national origin or ancestry, in the leasing,
subleasing, assigning, use, occupancy, tenure or enjoyment of the Premises, nor
shall the Tenant itself, or any person claiming under or through it, establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, or subtenants in the Premises.
SECTION 27.08 SEVERABILITY. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall be invalid
or unenforceable to any extent, the remainder of this Lease, or the application
of such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
SECTION 27.09 OTHER MISCELLANEOUS PROVISIONS. This instrument shall not
be recorded without the prior written consent of Landlord; however, upon the
request of either party hereto, the other party shall join in the execution of a
memorandum or "short form" lease for recording purposes which memorandum shall
describe the parties, the Premises, the Rental Term and shall incorporate this
Lease by reference, and may include other special provisions. The captions which
precede the Sections of this Lease are for convenience only and shall in no way
affect the manner in which any provisions hereof is construed. In the event
there is more than one Tenant hereunder, the liability of each shall be joint
and several. This instrument shall be governed by and construed in accordance
with the laws of the State wherein the Premises are located. Words of any gender
used in this Lease shall be held to include any other gender, and words in the
singular number shall be held to include the plural when the sense requires.
Time is of the essence of this Lease and every term, covenant and condition
herein contained.
SECTION 27.10 REPRESENTATION REGARDING AUTHORITY. The persons who have
executed this Agreement represent and warrant that they are duly authorized to
execute this Agreement in their individual or representative capacity as
indicated.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
TENANT: LANDLORD:
ELECTRONIC TECHNOLOGY CORP. PRACVEST, A UTAH GENERAL PARTNERSHIP
By: William E Chipman Sr. By: /s/ W. Richards Woodbury
- ------------------------- ---------------------------------------
William E Chipman Sr. W. Richards Woodbury, Attorney-in-Fact
Director and Chief Financial Officer
By: /s/ Orin R. Woodbury
---------------------------------------
Orin R. Woodbury, Attorney-in-Fact
LANDLORD ACKNOWLEDGMENT
STATE OF UTAH )
)ss.
COUNTY OF SALT LAKE )
On this 21st day of May, 1995 before me personally appeared W.
RICHARDS WOODBURY and ORIN R WOODBURY to me personally known who being by me
duly sworn did each for himself say that he is Attorney In Fact for that
certain partnership known as PRACVEST and that the within instrument was
executed by them for and on behalf of said partnership.
O. Randall Woodbury
-----------------------------------------
Notary Public
TENANT ACKNOWLEDGEMENT
(CORPORATE)
STATE OF UTAH )
)ss.
COUNTY OF UTAH )
On this 17 day of May, 1995, before me personally appeared WILLIAM E CHIPMAN,
known to me to be the Director and Chief Financial Officer , of ELECTRONIC
TECHNOLOGY CORP., the corporation that executed the within instrument, known
to me to be the person who executed the within instrument on behalf of the
corporate therein named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution of its board of
directors.
Melvin A. Clement
-----------------------------------------
Notary Public
GUARANTY
TO INDUCE PRACVEST, a Utah general partnership, to enter into that
certain Lease Agreement dated the 17th day of May, 1995, by and between
PRACVEST, a Utah general partnership, and ELECTRONIC TECHNOLOGY CORP, William
E. Chipman,Sr. hereby guarantees to PRACVEST a Utah general partnership, the
Landlord, and its successors and assigns the due and punctual payment of all
rent thereunder, and the performance of all covenants, conditions and
agreements to be paid or performed by Tenant in or under the foregoing Lease.
The undersigned jointly and severally waive any demand for performance
upon Tenant and any notice to the undersigned of non-payment or
non-performance by Tenant and hereby waive all suretyship defenses The
undersigned further consents to any indulgences granted or allowed to Tenant,
including but not limited to granting of extensions of times for payment or
taking of any notes or other obligations or any security for payment of sums
due or to become due, without notice to the undersigned and without thereby in
any manner releasing or affecting the liability of the undersigned.
DATED May 17, 1995
/s/ William E Chipman, Sr.
-----------------------------------------
William E Chipman, Sr.
STATE OF UTAH )
)ss.
COUNTY OF )
On this 17 day of May, 1995, personally appeared before me William E. Chipman,
Sr., signer of the foregoing instrument, who duly acknowledged to me that he
executed the same.
Melvin A. Clement
-----------------------------------------
Notary Public
PICTURE OF FLOOR PLAN
PICTURE OF POWER PLAN
PICTURE REFLECTED CEILING PLAN
PICTURE OF UTAH VALLEY BUSINESS PARK
EXHIBIT "B"
LEGAL DESCRIPTION
Lots 15 and 16 of Plat G, Utah Valley Business Park Subdivision.
EXHIBIT "C"
LANDLORD'S WORK
The following is a description of the construction, and limitations of same,
which will be provided exclusively by the Landlord at Landlord's expense unless
indicated otherwise herein. The basic site, exterior common area, and building
shell improvements are existing or will be provided by Landlord in accordance
with plans and specifications, prepared by Landlord's Architect, and shall be of
a type and quality indicated herein or determined by Landlord's Architect. Where
two types of materials, structures, or installations are indicated, the option
will be exclusively with the Landlord.
A. SITE WORK
1. Perform all earthwork, excavation, grading, and preparation of
building pads and parking lot areas to receive final finishes.
2. Install new curb, sidewalks, landscaping, underground sprinkler
systems, and other improvements as indicated on site plans and in
planters around the perimeter of the building.
3. Install all parking lot improvements, asphalt paving, striping, and
signage.
4. Install parking lot drainage, retention, and other site utilities,
including installation of pole and/or building mounted parking lot
lighting.
B. UTILITY DISTRIBUTION SYSTEMS EXTERIOR TO THE PREMISES
1. Provide all utility mains including culinary water, fire protection,
storm drainage, sanitary sewer, gas, electrical, and telephone and
install in accordance with the governing municipal and utility company
standards.
2. Extend power and telephone mains to electrical rooms and provide
distribution panels at a central location as more specifically
described in Paragraph I.E. of this Exhibit.
C. BUILDINGS
1. Construct a one-story building consisting steel and/or wood framed
structural support members on continuous concrete or spot footings of
the shape, size, and configuration as shown on Exhibit "A". All work
to be in accordance with plans and specifications prepared by
Landlord's Architect.
2. The exterior envelope shall consist of integrally colored or painted
of 4" x 8" x 16" clay or concrete masonry units in combination with
fixed glass and aluminum window framing and entrance door system.
Configuration and design of windows, masonry units, and other exterior
finishes to be as determined by Landlord's Architect. Roof to be
constructed of single-ply, PVC or EPDM membrane system over rigid
insulation.
3. Landlord shall install demising partitions which shall be one-hour
fire-rated and constructed of masonry or steel studs and 5/8" gypsum
board. Such partitions shall extend from floor to underside of roof or
floor construction above.
D. COMMON AREAS, LOBBIES, CORRIDORS, AND RESTROOMS
1. Each occupant will generally have independent restrooms, entrances,
and exits serving its Leased Premises. Common lobbies, corridors, and
restrooms are not anticipated but may be provided at Landlord's option
where deemed necessary to serve building occupants.
2. Provide mechanical and/or service and equipment areas including
walkways, trash rooms, janitors rooms, electrical rooms, and shafts.
3. Landlord reserves the right to make any additional changes,
modifications, alterations, or additions to common areas utilizing a
design and materials as determined appropriate by Landlord's Architect
to achieve overall building design schemes developed by Landlord's
Architect.
E. LANDLORD'S WORK WITHIN THE PREMISES
1. Basic functional main utility lines and systems shall be brought to
restrooms, mechanical equipment, and electrical panels within the
Leased Premises as follows:
a. Water: Provided in restrooms, janitor's rooms, mechanical rooms,
drinking fountains, etc.
b. Sewer: Provided except in restrooms, janitor's rooms, mechanical
rooms, drinking fountains, etc.
C. Electrical Service: shall be 120/208 volt 3-phase service.
Landlord shall either provide for a separate electrical
disconnect panel within tenant space with main power extending
therefrom to building central panels, or power shall be
provided from tenant space directly to building central panels at
Landlord's option.
d. Gas: Provided as required for boilers, HVAC equipment.
e. Telephones: None provided except for main service to electrical
rooms.
2. Landlord will provide functional packaged heating and air conditioning
roof-top units, sized, positioned, and zoned as required and supply
and return air duct distribution system, grilles,
Page 1
diffusers, and controls within each lease space. System shall be
designed to maintain 72 degrees F. indoor at 95 degrees F., outdoor
summer condition; and 70 degrees F. indoor at O degrees F., outdoor
winter condition. All work will be installed in accordance with good
engineering practice based on the exposure and areas served.
3. Landlord shall provide handicapped accessible and equipped restrooms
within Leased Premises. Restrooms shall include complete hot and cold
water service, number and type of fixtures, finishes, and accessories
as indicated below. All work to be installed in accordance with
applicable laws and codes.
a. Fixtures - Provide quantity required by code. To include ceramic
floor-mounted, tank-type water closets; matching ceramic
urinals; recessed ceramic vanities in counter-top with
brass-bodied, chrome plated hardware.
b. Accessories - Provide steel, floor-mounted bathroom partitions or
wall-hung privacy screens between water closet compartments and
urinals. Also, provide handicap grab bars, toilet paper holders,
soap dispensers, paper towel dispensers, and vanity mirrors as
required by code and to serve each restroom.
c. Finishes - Provide 4'-0" high, plastic laminate or marlite
wainscot on all walls with painted sheetrock walls and ceilings
above. Floor to have vinyl composition tile and 4" covered vinyl
base. Cabinet bases and counter-tops to be as indicated
elsewhere.
4. Landlord shall provide a complete fire sprinkler system throughout in
accordance with NFPA #13 including risers, valves, fire department
connections, alarms, main and branch piping, drops, and heads. System
to be based on the layout as shown in Exhibit A.
5. Landlord shall provide additional improvements and finishes within the
Premises as indicated below and as shown on attached Exhibit A Floor
Plan, Reflected Ceiling Plan, and Power Plan. Any work that is
otherwise required to place the Premises in a finished occupiable
condition shall be provided by Tenant in accordance with Design and
Construction Standards.
a. Interior Partitioning: 8 - 9 ft. high partitions extending to
underside of ceiling with 5/8" or 1/2" gypsum board each side,
fire-taped and painted.
b. Paint and Wall Covering: Landlord shall provide a 3-coat paint
application on all demising walls and Landlord provided interior
partitions. Color to be at Tenant's option. Two different colors
can be used but only one color per wall.
c. Interior Doors and Hardware: Landlord shall provide 3'-0" x
6'8" solid core wood doors with hollow metal or wood frame at
Landlord's option, stained and finished on all interior doors
shown on plan. Hardware will typically include 1-1/2 pair hinges,
door stop, and commercial grade lockset.
d. Entrance Doors and Hardware: Landlord shall provide 3'-0" x
7'-0" glass and aluminum door and frame together with 1-1/2"
pair hinges, door stop, closer, and mortise type lockset with
deadbolt for all exterior entrance and exit doors. Where a
exterior door is for service use only, Landlord may provide a
standard, painted, hollow-metal door and frame.
e. Millwork: Landlord will provide plastic laminate counter-top with
4" back-splash and base cabinets in restrooms and breakroom as
shown on Floor Plan. At Landlord's option, wood casings and/or
base matching color and finish of wood doors may be used around
doors and windows or in other locations where deemed advisable by
Landlord's Architect.
f. Electrical: Landlord shall provide overhead lighting, switches,
duplex outlets, and phone outlets as shown on Power Plan and
Reflected Ceiling Plan. Light fixtures to be 2'0" x 4'0"
standard recessed 3-tube light fixture with acrylic tenses or
8'0" strip lights as applicable. Light switches and outlets to
be standard ivory colored 20 amp devices or the quantity shown on
plan or of any other type specifically indicated. Empty telephone
junction outlets extending to ceiling plenum to be provided where
shown.
g. Window Coverings: Landlord shall provide 1-inch mini-blinds of a
uniform type and color on all exterior windows.
h. Floor Coverings: Landlord shall provide 26 oz. level-loop carpet
directly glued to floor throughout the Premises except in the
product assembly area. Restrooms and equipment rooms to have
vinyl composition tile. Color at Tenant's option, selected from
manufacturer's standard line for the type of carpet provided.
i. Wall Base: Landlord shall provide 4-inch high, straight vinyl
base on all carpeted and VCT floors at Landlord provided
partitions. Color at Tenant's option, selected from
manufacturer's standard line.
j. Ceilings: Landlord shall provide a standard 2'0" x 4'0",
suspended acoustical lay-in ceiling system and grid where shown
on plan. Landlord may provide suspended gypsum board ceilings
where deemed advisable by Landlord's Architect in lieu of
standard 2'0" x 4'0" ceiling. Other areas to remain unfinished.
6. Locating of Landlord's Work Within the Premises.
a. In addition to any rights that Landlord or other building
occupants might have through the Restrictions, Rules, and
Covenants related to this project, Landlord and other Tenants
shall have the right to locate utility mains and other facilities
within the Premises, when such location is dictated by
necessities of engineering design, good practice, and/or code
requirements. These shall be located, wherever possible, in
ceiling plenums and walls or so as to cause the minimum of
interference with the Tenant and to be unobtrusive in appearance,
and so as not to materially interfere with Tenant's business or
use of space.
Page 2
b. This right to locate work within the Premises shall include the
right to locate work in ceiling plenum areas between finished
ceiling and roof or floor deck above, as well as on the roof or
under the roof thereof.
c. Facilities may include, but are not necessarily limited to:
drains, water supply, sewerage lines, refrigerant lines,
sprinkler risers, electric power circuits, telephone circuits,
pump stations, electric panel boards, sanitary vents, air supply,
ducts and shafts, exhaust ducts, and flues servicing other
building occupants.
d. Such areas shall be located adjacent to an interior wall and
shall in no event exceed 1.0% of the floor area.
7. Construction plans and specifications will be prepared by Landlord's
Architect showing final location of all partitions, doors, ceiling
layout, etectrical fixtures and outlets, heating and air conditioning
diffusers, and other construction within the Leased Premises. All
plans shall be subject to Tenant's approval. Landlord will not
commence with Tenant finish construction prior to obtaining Tenant's
approval of finish plans. Landlord may make minor deviations to the
approved plan where deemed necessary by Landlord's Architect due to
site conditions or where good engineering and design may so dictate
provided the aesthetic effect or function of the space is not
materially altered.
Page 3
EXHIBIT "D"
TENANT'S WORK
A. GENERAL
1. Any work which is not specifically described as being Landlord's work
herein but which is required to complete and place the premises in a
finished condition shall be done by Tenant at Tenant's cost and in
full accordance with Design and Construction Standards.
2. Tenant's work shall include all design, finishes, decorating,
equipment, furniture and any other costs or fees required to complete
construction or obtain occupancy permits, business licenses, or
utility services except as specifically required to be performed by
Landlord herein.
3. Tenant may not enter upon premises to commence Tenant's work or to
deliver fixtures or equipment prior to substantial completion of
Landlord's work within the premises except with prior written approval
of Landlord. If so permitted, such entry shall not be deemed an
acceptance by the Tenant of possession of the premises, but in such
event Tenant shall hold Landlord and Landlord's General Contractor
harmless for any loss or damage to Tenant's property, fixtures, or
equipment and for injury to any persons, unless same be directly
caused by the wanton negligence of Landlord or its agents or its
General Contractor.
4. Tenant will provide Landlord with all necessary information with
respect to space needs, equipment requirements, and other special
conditions or provisions that must be planned for. Such information
shall be provided promptly at Landlord's request.
B. PLANS AND SPECIFICATIONS
1. Tenant will provide plans, drawings, or other necessary information to
Landlord's Architect with respect to space layout needs, electrical
and mechanical criteria, and with respect to special requirements and
additional improvements to be provided by Tenant. Tenant shall pay an
architectural fee equal to 6% of the value of all construction costs
for Tenant provided work or work exceeding the allowances provided by
Landlord.
2. Landlord shall make changes to preliminary plans as requested by
Tenant. Any changes, modifications, or additions to plans requested by
Tenant thereafter may be made prior to proceeding with construction.
However, to the extent that such changes require re-engineering or
material alterations to construction drawings, Tenant shall pay for
the cost of making such changes or modifications.
3. From approved preliminary plans, Landlord shall prepare final
construction drawings and perform the necessary engineering,
circuiting design, HVAC distribution design, and other details
required for construction of the Leased Premises.
4. Landlord shall submit final construction drawings to Tenant for review
and approval. Construction of Tenant improvements may commence only
after completion of construction drawings by Landlord's Architect and
final approval by Tenant.
5. Where possible, Landlord will provide to Tenant for approval a cost of
all Tenant work prior to proceeding with construction. However,
Landlord may proceed with such work prior to obtaining cost where it
is necessary in order to maintain construction progress.
6. Tenant shall pay for the cost of all changes, modifications, or
alterations in approved drawings or construction requested by Tenant
after completion of final construction drawings.
7. Any questions, clarifications, or interpretations regarding design
criteria, plans, or specifications and all submissions for approval
shall be directed to Landlord at 2677 East Parley's Way, SLC, UT,
84109, Attention: Lynn S. Woodbury.
8. At Tenant's option, Tenant may separately prepare additional drawings
describing Tenant construction or additional improvements not provided
by Landlord. In such event, all such drawings shall be submitted to
Landlord's Architect for approval prior to Tenant proceeding with such
work.
C. CONSTRUCTION BY TENANT CONTRACTORS
1. Where initial construction is to be performed by Tenant and Landlord
is paying an agreed upon allowance toward the cost of the construction
of Tenant's work, the Tenant and Tenant's contractors will be
responsible for the entire cost of the work, including the cost of
permits, fees, and other general conditions as described in the
General Construction Requirements.
2. Tenant's contractors shall conform with the General Construction
Requirements herein, secure necessary permits and be responsible for
any damage to basic building systems caused by or incidental to its
work.
3. Upon completion, Landlord shall inspect and upon verification of
compliance with design criteria and proper tie-in with building
systems, construction allowance will be paid.
4. For any subsequent remodeling to the Leased Premises, or, where
initial additional Tenant construction is to be performed by Tenant,
such work may only be performed after receipt of written approval from
Landlord. Tenant shall prepare all plans and fully describe any
remodeling work to be performed.
Page 1
5. Tenant is encouraged to utilize Landlord's contractor for the
completion of Tenant work in light of contractor's familiarity with
the project and the construction requirements and operating systems.
Landlord's contractor will submit complete cost breakdown for the
performance of all work and, upon receipt of Tenant's approval, will
commence construction and complete all work in a timely manner.
D. CONSTRUCTION BY LANDLORD CONTRACTORS
1. Initial construction work is to be performed by Landlord's
contractors. Tenant shall pay the cost of any work required beyond
that set forth in Exhibits "A-1" or "C". Where Landlord is
performing Tenant work, the procedure shall be as follows:
a. Landlord's contractor will submit to Tenant complete cost
breakdowns for the portion of the work to be paid for by Tenant.
b. Contractor shall not proceed with any work until after receipt of
Tenant's written approval and acceptance of the cost and a
deposit in the amount of 50% of the value thereof.
c. Landlord's contractor shall notify Tenant of substantial
completion at which time an inspection will be performed and a
"punch list" of deficiencies prepared. Tenant shall immediately
make payment of the remaining portion of the cost to be paid by
Tenant, less a reasonable retainage based on the value to correct
or complete any of the deficiencies or items of work on the punch
list.
d. Tenant may then enter upon the premises and install any other
equipment, fixtures, furnishings, decorations, or improvements
not included as part of the construction contract.
e. Landlord's contractor shall correct in a timely manner any
deficiencies on the punch list.
f. Tenant shall make payment of any retainages held to Landlord's
contractor within 10 days after completion of all punch list
items.
2. Tenant shall promptly repair or be responsible for the cost of
repairing any damage to Landlord provided improvements caused by
Tenant's Contractors or the installation of Tenant's fixtures and
furnishings.
3. Tenant shall also pay an amount equal to $____________________ toward
the cost of work to be provided by Landlord per Exhibit "C". Such
amount is determined as follows.
E. DESIGN AND CONSTRUCTION STANDARDS
1. Purpose and Scope
a. The design criteria as set forth in this section represent
minimum standards for all systems, finishes, mechanical,
electrical, and other construction work and installations and
design.
b. These standards also describe the specification and construction
standard to be used with respect to all Landlord provided work.
If there is a discrepancy between these construction standards
and Exhibit "C" descriptions, the Exhibit "C" descriptions shall
govern.
c. These standards and criteria are established to assure the proper
and efficient operation and functioning of common building
systems, to verify the compatibility of all installations with
basic building systems, to set a standard of quality which will
enhance and maintain building values and to establish uniform
criteria relating to the overall aesthetics and appearance of the
project.
d. All construction and installations shall conform with the
standards set forth herein and shall be subject to the prior
written approval of Landlord's Architect, who shall have absolute
authority with respect to the design and construction issues and
whose decisions shall be binding upon all building tenants.
Tenant hereby agrees to abide by the decisions of said Architect.
2. General Construction Requirements
a. The design, type of construction, engineering of mechanical and
electrical systems, types of materials and finishes, and each of
Tenant's proposed contractors must be approved by Landlord or
Landlord's Architect prior to the commencement of any
construction work.
b. Construction and use shall comply with applicable statutes,
ordinances, regulations, laws, building codes, zoning statutes
including, without limiting, the foregoing: Uniform Building
Code, National Electric Code, Uniform Plumbing Code, Uniform
Mechanical Code, and any other applicable City, County and State
Building, Plumbing, Mechanical, Fire, Health, Pollution,
Electrical, Safety, Americans With Disabilities Act, and other
codes.
c. All required permits shall be obtained and paid for by Tenant
and/or Tenant's Contractor.
d. Quality of workmanship and materials shall be first class,
acceptable to Landlord's Architect and in keeping with the
project standards.
e. On completion, all facilities shall be in full use without
defects.
Page 2
f. Contractors shall be required to show evidence of possessing good
labor relations, compatible with other labor on the project, and
Tenant and its contractors shall avoid labor practices or
disputes which will interfere with other work or operations in
the project.
g. Contractors shall be required to work in harmony with other
contractors on the project. Tenant's contractors shall coordinate
their work and any systems shut downs with the contractors and
occupants of the building.
h. Landlord shall have the right to order any Tenant or Tenant's
Contractor, who willfully violates the above requirements, to
cease work, and to remove himself, his work, his equipment, and
his employees from the property.
i. Tenant's contractors shall carry such types of insurance in such
amounts as shall be designated by Landlord, and all policies
shall name the Landlord and its agents as additional insureds.
Prior to starting construction, Tenant's contractor shall submit
to Landlord a copy of or other evidence of such insurance.
j. Landlord shall have the right to perform by its own contractor or
subcontractors, on behalf of and for the account of the Tenant,
any of the Tenant's work which Landlord determines should be so
performed. Generally, such work shall be that which affects
structural components, or the general utility systems for the
project. If Landlord so determines, Landlord shall notify Tenant
prior to commencement of said work, and Tenant shall reimburse
Landlord for all costs of planning and performing such work.
k. No approval by Landlord shall be deemed valid unless same shall
be in writing signed by Landlord or Landlord's Architect.
l. In the event that the premises have not been constructed in
accordance with said approved drawings, Tenant shall not be
permitted to open the premises for business until the premises
comply in all respects with said approved drawings, in the
reasonable exercised judgement of the Landlord's Architect. Where
final drawings are in conflict with design criteria, the
provisions of the design criteria shall prevail unless specific
exceptions were agreed upon in writing.
3. Architectural (To the extent not otherwise provided by Landlord.)
a. Exterior Walls and Windows
1) Modifications to exterior walls after Landlord's initial
construction will generally not be permitted.
2) Wall finish shall be 4" x 8" x 16" clay or concrete
masonry units in the pattern, design, finish, color,
texture, and style determined by Landlord's Architect. A
landscaped beam will be constructed to a point approximately
6" below the sill of all windows. Any modifications thereto
must match precisely the materials and other project details
established by Landlord in the original construction.
3) Glass shall be 1" double-glazed, medium gray tinted,
insulated glass. Exterior pane to be tinted and interior
pane to be clear.
4) Aluminum frame shall extend from sill to underside of
masonry head or finish ceiling structure above and shall be
4" wide at door and window recess areas and 2-3/4" wide at
other windows. Finish shall be clear anodized.
5) Penetrations or modifications of exterior walls for exhaust
vents, ducts, or other purposes will not be permitted except
where specifically agreed otherwise by Landlord's Architect.
Detailing must be in strict accordance with Landlord's
requirements.
b. Interior Walls and Partitions
1) Demising walls generally to have 5/8" sheetrock (one-hour
rated construction) on light-gauge metal studs extending
from floor to underside of structure above.
2) Office partitioning shall generally be of light gauge metal
studs with 1/2" sheetrock extending from floor to underside
of acoustical ceiling. One-hour construction must be
utilized in corridors or other areas where required by code.
3) All walls to be painted with one prime coat and two finish
coats of alkyd-enamel paint with satin finish. Color at
Tenant's option.
4) Floor base to be 4" high straight edge vinyl. Color at
Tenant's option.
5) Other types of partitioning systems, base material, or wall
finishes may be applied at Tenant's option. Tenant shall be
responsible for any additional cost related thereto.
c. Ceilings
1) Ceilings shall be suspended 2' x 4' fissured, white acoustical
ceiling tile in T-bar grid or suspended gypsum board.
2) In one-hour rated corridors or spaces, ceilings must be 1-hour
fire-rated construction with fire dampers at grilles and boxed
"USG Thermal Fiber" light fixture protection or equal, unless
approved otherwise by the local building official. Fixtures may
be surface mounted where approved by Landlord.
1) Carpet to be 26 oz., Level loop, nylon or olefin, directly glued
to concrete floor. Color at Tenant's option selected from palette
of standard colors offered by manufacturer.
2) Vinyl tile may be substituted in file rooms, storage rooms, print
rooms, restrooms, or other areas where use of such floor covering
is prudent.
3) Other type or quality of floor coverings may be used with
Landlord's Architect's approval. Tenant shall be responsible for
any additional costs related thereto.
f. Cabinetry & Millwork - Type, style and color at Tenant's option.
4. Structural and Roof (To the extent not otherwise provided by Landlord.)
a. There shall be no penetrations of the roof or installation of radio or
television antennas or any other equipment on the roof without the
prior written approval of Landlord's Architect.
b. Any and all roof penetrations shall be engineered and installed in
accordance with standard project details.
c. Any rooftop equipment or exhaust fans, if permitted, shall be
installed on fully contained curbs in a location specifically approved
by Landlord's Architect.
1) Roof curbs shall be fully framed and the structure will be
reinforced as necessary and in a manner so as to leave it as
strong or stronger than original design with finish unimpaired.
2) Equipment shall be located so as not to be visible from the
ground or parking lot areas. Metal screen walls may be required
by Landlord's Architect to shield equipment where location makes
visible.
d. Floor construction and loads are designed of adequate capacity to
generally support typical offices uses. However, Tenant shall indicate
on plans the weight of any special equipment, heavy equipment,
computers, library cases, etc., so that Landlord's Architect may
evaluate load carrying capacity. If inadequate, additional reinforcing
will be required.
e. Under no condition shall any penetrations or cutting of the floor or
roof joists be permitted except with Landlord's Architect's specific
written approval and then only in accordance with any special
requirements that Landlord's Architect may impose.
f. The dimension to the underside of structural joists is typically no
less than 11'-0". Consequently, approximately 2'-0" of clear plenum
space is available for utility distribution systems.
g. Any cutting of stabs must be by sawcutting or core drilling. Take
precautions to protect adjoining finishes and construction.
5. Plumbing (To the extent not otherwise provided by Landlord.)
a. Restrooms, janitor's rooms, and drinking fountains of adequate size
and capacity to meet applicable building codes are provided by
Landlord as shown on plans.
b. Tenant shall be responsible for the installation of all additional
plumbing within premises as may be desired including but not limited
to additional restrooms, water heaters, vanities, fountains, sinks,
wet bars, floor drains, associated rough-ins, distribution and vents
and all other plumbing work unless specifically indicated otherwise
herein.
c. Tenant shall connect to building water and sewer mains in locations
designated by Landlord's Architect.
d. Any other special systems for natural gas or plumbing for Tenant
equipment or other special Tenant facilities shall be by Tenant
including any grease interceptors, chemical holding pots or other
types of special waste traps from laboratories that may be needed to
safeguard and assure the proper operations and maintenance of basic
building systems in accordance with good engineering design as
determined by Landlord's Architect.
6. Heating, Ventilating, and Air Conditioning (HVAC) (To the extent not
otherwise provided by Landlord.)
a. Landlord has provided rooftop heating and air conditioning units and
associated gas piping, together with supply and return air duct
distribution system, ceiling diffusers and registers, and controls to
serve the Leased Premises. Units shall have
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e. Each restroom will have a separate exhaust fan with back-draft damper
appropriately sized for the area exhausted and interlocked with the
lighting.
f. Additional exhaust fans, exhaust hoods and make-up air vents or
additional cooling will be installed by Tenant if such units in
the determination of Landlord's Architect are necessary. All exhaust
fans must be provided with back-draft dampers.
g. Any separate HVAC systems that may be required for Tenant's special
needs or special purpose areas shall be provided by Tenant at Tenant's
expense.
h. The ceiling plenum area is used as a return-air plenum.
7. Fire Protection: (To the extent not otherwise provided by Landlord.)
a. A complete fire sprinkler system is provided throughout with
approximately one head per 125 sq. ft. All fire sprinkler work must
conform to NFPA #13 for light hazard occupancies.
b. Heads shall be chrome-plated brass pendant with semi-recessed
chrome-plated escutcheons.
c. Tenant shall relocate existing heads or install new heads as required
to achieve proper coverages in compliance with NFPA #13 with respect
to the construction or installation of any Tenant partitioning.
d. Tenant to provide fire extinguishers as determined necessary by local
fire marshall.
8. Electrical (To the extent not otherwise provided by Landlord.)
a. Electric power available to Tenant's premises shall be 120/208 volt, 3
phase, 4 wire. Except for work to be provided by Landlord, Tenant
shall pay all costs related to the modification of Landlord provided
electrical or the installation and distribution of Tenant provided
electrical equipment.
b. Tenant power shall be brought to panels or subpanels within electrical
rooms located adjacent to the Leased Premises or in the wall of a
partition within the Leased Premises.
c. Tenant shall do any and all electrical work it may require beyond that
provide by Landlord including but not limited to distribution center
requirements and branch wiring, duplex and convenience outlets,
under-floor ducts for outlets and telephone, lighting, distribution
and fixture installation, lamps, control wiring, equipment time
clocks, and electrical work required for special equipment. All Tenant
circuiting shall be installed so as to maintain a balance between
phases.
d. Exit lights and emergency exit lighting are provided by Landlord at
each main exit. Additional exit lights and emergency lighting when
required by the building official shall be provided by Tenant.
9. Telephone Communications (To the extent not otherwise provided by
Landlord.)
a. Landlord has provided main telephone service to the building at
telephone distribution panels located in building electrical rooms.
Telephone outlet boxes stubbed to plenum area have also been provided.
b. Tenant shall be responsible for all telephone and communication
systems, distribution wiring, outlets, and equipment required to
satisfy its needs and shall make any necessary arrangements with the
local utility company and/or private telephone companies.
c. Telephone wiring shall be of a type permitted by building codes.
Wiring shall be installed in conduit or be Teflon coated.
10. Data and Computer Equipment and Associated Wiring (To the extent not
otherwise provided by Landlord.)
a. Landlord has provided data outlet boxes stubbed to plenum area.
b. Tenant shall be responsible for all data and computer systems,
distribution wiring, outlets, and equipment required to satisfy its
needs.
c. Data and computer wiring shall be of a type permitted by building
codes. Wiring shall be installed in conduit or be Teflon coated.
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2 Prior to proceeding with the fabrication and installation of any
exterior signage, Tenant shall submit to Landlord a sign fabrication
drawing showing the dimensions, construction details, method of
attachment, location of lighting, and other pertinent information. All
sign fabrication drawings must be approved by Landlord in writing.
3. The wording of Tenant's exterior signage shall be as set forth in
Section 1.01 (G) of the Lease. Use of corporate logos, shields, or
crests will be permitted.
4. Business identification signage will be required of all tenants. Such
signage will be of a uniform type and size, located on the side
masonry panel immediately adjacent to the Tenant entrance. Optional
identification signage may be installed by Tenant at Tenant expense.
Such signage shall be of a uniform type and size, located the masonry
parapet fascia above the windows where specifically approved by
Landlord.
5. Exterior signs shall be used to identify the names of businesses only.
Advertising, identification of products sold or services provided will
generally be prohibited.
6. All signs must be approved by Landlord prior to fabrication and
installation. No approval shall be deemed valid unless given in
writing.
7. Tenant shall be responsible for the removal of all signs at the
termination of any lease. Tenant shall repair any damage to building
materials and shall completely remove any remnants of signage
including, if necessary, cleaning the masonry surface to remove dirt
or other surface stains. Tenant shall patch all holes using mortar
matching that used on the other parts of the building. Tenant agrees
to pay Landlord $500 penalty for failure to remove signage or properly
repair and restore building surfaces to a condition satisfactory to
Landlord.
C. BUSINESS IDENTIFICATION SIGNAGE CRITERIA
1. All signs shall be non-illuminated individual letter type. Letters
shall be cut, 1" thick, plastic faces without edge trim, painted to
match window frames.
2. Maximum letter size shall be 6".
3. Letter style shall be ____________________. Where Tenant logo or trade
mark utilizes a different letter style, such style may be used only
when specifically approved by Landlord.
4. Logos may be utilized using the same type materials and design. Size
of logo may be increased to 12".
5. Signs shall be Located on the masonry panel between the entrance and
window. Signs shall be centered horizontally on the panel and maintain
a minimum of 1'-0", clear space each side. Signs shall also be
centered vertically between the window sill and the head. In no case
may signage extend above the window head.
6. Where multiple businesses are located within Leased Premises, each
business may have separate identification signage. Signs shall be on
separate lines, appropriately spaced and separated.
7. Tenant may install one set of signs at each entrance.
D. OPTIONAL IDENTIFICATION SIGNAGE CRITERIA
1. All signs shall be reversed channel, individual letter type signs
constructed from sheet metal with 4" deep painted returns and faces
matching the color used in the exterior aluminum framing system. No
exposed fasteners shall be permitted. Signs may be illuminated or
non-illuminated at Tenant's option.
a. If sign is illuminated, construction shall provide a halo effect
wherein lighting is by way of white neon concealed within each
letter with a clear back. Letter shall be set off from the face
of the wall by 1".
b. If sign is non-illuminated, construction shall be the same as for
illuminated signs except that neon and clear plastic backer will
not be instated.
2. Maximum letter size shall be 24" high.
3. Letter style shall be as selected by Tenant.
4. Logos may be utilized using illuminated faces, cabinets, and
backgrounds without the halo effect. Size of logo may be increased to
32". Color, style, and design of face shall be at Tenant's option. The
returns shall be painted to match the other Lettering.
5. Tenant may install one sign on the face of each elevation upon which
the Leased Premises
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Such lettering will be 6" high and located and centered on the
masonry band above each entrance recess.
3. No other signage will be permitted on buildings.
4. Interior signage of the type and style selected by Tenant may be
provided by Tenant at Tenant's option and expense.
F. PARKING STALL IDENTIFICATION
1. Reserved parking spaces may be designated. Reserved parking spaces
shall be identified by painting "Reserved," "Business Name Only," or
such other mutually approved designation. The location of spaces
reserved for Tenant is designated on Exhibit "A", Site Plan.
2. Other parking spaces may be designated for visitor or customer use
only in a similar manner.
3. Tenant will not permit its employees to park in spaces that are
reserved or designated for specific tenants, visitors, or customers.
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a. The design, type of construction, engineering of mechanical and
electrical systems, types of materials and finishes, and each of
Tenant's proposed contractors must be approved by LandLord or
Landlord's Architect prior to the commencement of any
construction work.
b. Construction and use shall compLy with applicable statutes,
ordinances, regulations, Laws, building codes, zoning statutes
including, without Limiting, the foregoing: Uniform Building
Code, National Electric Code, Uniform Plumbing Code, Uniform
Mechanical Code, and any other applicable City, County and State
Building, Plumbing, Mechanical, Fire, Health, Pollution,
Electrical, Safety, Americans With Disabilities Act, and other
codes.
c. ALL required permits shall be obtained and paid for by Tenant
and/or Tenant's Contractor.
d. Quality of workmanship and materials shall be first class,
acceptable to Landlord's Architect and in keeping with the
project standards.
e. on completion, all facilities shaLL be in full use without
defects.