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WILEY POST PLAZA LEASE
4750 Wiley Post Way
Salt Lake City, Utah
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SUMMARY OF BASIC LEASE PROVISIONS
DATE OF LEASE: February 12, 1996
TERM OF LEASE: Ends May 31, 1998
TENANT: Data Security Corporation
LEASED PREMISES: Suite # 550, see Exhibit A for description.
NET RENTABLE AREA: 20,079 square feet
MONTHLY PAYMENT, BASE ANNUAL RENT: $8,403.90
Base Annual Rent increases by amount of increase in
CPI (Not less than 3% or more than 6% per year).
ADDITIONAL RENT: Tenant's Proportionate Share of Taxes, Common Area
Expenses and Insurance. Estimated initial total
monthly payment for additional rent $2,610.27
SECURITY DEPOSIT: $8,403.90
LANDLORD'S ADDRESS FOR PAYMENT OF RENT:
GREEN/PRAVER ET AL
c/o ASSET MANAGEMENT SERVICES, INC.
428 East 6400 South, Suite 100
Salt Lake City, Utah 84107
TABLE OF CONTENTS
I. LEASE OF PREMISES, TERM................................... 1
1.1. Lease of Premises............................... 1
1.2. Use of Common Area.............................. 1
1.3. Term of Lease................................... 1
1.4. Holding Over.................................... 2
II. RENT, SECURITY............................................ 2
2.1. Annual Base Rent................................ 2
2.2. Additional Rent................................. 2
2.3. Security Deposit................................ 3
2.4. Late Charges.................................... 3
III. TAXES..................................................... 3
3.1. Real Estate Taxes............................... 3
3.2. Personal Property Taxes......................... 4
IV. COMMON AREA............................................... 4
4.1. Common Area..................................... 4
4.2. Maintenance of Common Area...................... 5
4.3. Tenant's Proportionate Share of Common Area
Expenses........................................ 5
V. INSURANCE, INDEMNITY...................................... 5
5.1. Insurance to be Maintained by Landlord.......... 5
5.2. Insurance to be Maintained by Tenant............ 5
5.3. Waiver of Subrogation........................... 6
5.4. Indemnification................................. 6
VI. UTILITIES................................................. 6
6.1. Utilities....................................... 6
6.2. Failure of Utility Service...................... 7
VII. CONDITION OF PREMISES, IMPROVEMENTS, REPAIRS.............. 7
7.1. Condition of Premises - Improvements............ 7
7.2. Alterations and Additions....................... 7
7.3. Maintenance and Repairs to Premises............. 7
7.4. Repairs to Building............................. 8
7.5. Liens........................................... 8
VIII. POSSESSION, USE........................................... 8
8.1. Quiet Possession................................ 8
8.2. Possession...................................... 8
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8.3. Use of Premises............................ 9
8.4. Compliance With Law........................ 9
8.5. Compliance With Hazardous Materials
Requirements and Rules..................... 9
8.6. Signs...................................... 9
8.8. Entry and Inspection....................... 10
IX. ASSIGNING, SUBLETTING, MORTGAGING......................... 10
9.1. No Assignment etc Without Landlord's Consent 10
9.2. No Release of Tenant....................... 10
X. DESTRUCTION, CONDEMNATION................................. 11
10.1. Destruction................................ 11
10.2. Condemnation............................... 11
XI. DEFAULT, REMEDIES......................................... 11
11.1. Default by Tenant.......................... 11
11.2. Landlord's Right to Reenter and Relet
Premises................................... 12
11.3. Tenant's Property.......................... 13
11.4. Other Rights and Remedies of Landlord...... 13
11.5. Waiver of Rights........................... 14
11.6. Default By Landlord........................ 14
XII. PROVISIONS APPLICABLE UPON TERMINATION OF LEASE........... 14
12.1. Surrender of Premises...................... 14
12.2. Tenants Fixtures and Property.............. 15
12.3. Surrender of Lease......................... 15
12.4. Tenant's Obligations to Survive Termination 15
XIII. FINANCING, SUBORDINATION, ESTOPPEL CERTIFICATES........... 15
13.1. Subordination.............................. 15
13.2. Amendment.................................. 16
13.3. Attornment................................. 16
13.4. Landlord's Right to Estoppel Certificate... 16
13.5. Sale of Premises by Landlord............... 16
XIV. ADDITIONAL PROVISIONS..................................... 17
14.1. Waiver..................................... 17
14.2. Notice..................................... 17
14.3. Joint Obligation........................... 17
14.4. Governing Law - Headings................... 17
14.5. Time....................................... 18
14.6. Successors and Assigns..................... 18
14.7. Recordation................................ 18
14.8. Prior Agreements........................... 18
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14.9. Force Majeure.............................. 18
14.10. Attorney's Fees............................ 18
14.11. Severability............................... 18
14.12. Cumulative Remedies........................ 18
14.13. Authority of Signatories.................. 18
14.14. Brokers.................................... 19
EXHIBITS
Exhibit Description
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A Description of Premises
B Estimate of Additional Rent
C Description of Improvements to
Premises to be Made by Landlord and/or Tenant
D Hazardous Materials Requirements
E Rules
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LEASE
THIS LEASE AGREEMENT, dated as of February , 1996 is made
and entered into by and between parties who are joint tenant owners referred
to as GREEN/PRAYER ET AL with a mailing address c/o Asset Management Services,
Inc. 428 East 6400 South, Suite 100 Salt Lake City, Utah 84107 (hereinafter
collectively called "Landlord") and DATA SECURITY CORPORATION, a Nevada
corporation, with a mailing address of 150 Wright Brothers Drive, Suite 550,
Salt Lake City, Utah 84116 (hereinafter called "Tenant").
THIS LEASE AGREEMENT IS TO BECOME EFFECTIVE
UPON THE CONDITIONS SET OUT IN THAT CERTAIN
AGREEMENT BETWEEN LANDLORD AND TENANT
DATED FEBRUARY , 1996.
FOR AND IN CONSIDERATION OF the mutual covenants, conditions and
agreements hereinafter set out, the parties agree as follows:
I. LEASE OF PREMISES, TERM
1.1. Lease of Premises. Landlord does hereby lease to Tenant and Tenant
hereby leases from Landlord those certain premises (hereinafter called
"Premises") described in Exhibit "A" to this Lease, known and described as Suite
# 550 situated in Building # 5 (hereinafter called the "Building") which is one
of four buildings in that certain commercial - industrial center located at
approximately 4750 Wiley Post Way, Salt Lake City, Utah known as Wiley Post
Plaza (hereinafter called the "Project"). It is agreed, for the purpose of this
Lease, that the Premises have a rentable area of 20,079 square feet. This Lease
is subject to the terms, covenants and conditions herein set forth and Tenant
covenants, as a material part of the consideration for this Lease, to keep and
perform each and all of said terms, covenants, and conditions to be kept and
performed by Tenant.
1.2. Use of Common Area. The use and occupation by Tenant of the
Premises shall include the non-exclusive right by Tenant, its agents,
employees, customers, licensees and subtenants, in common with Landlord, and
other present and future owners and tenants and their agents, employees,
customers, licensees and subtenants, to use the Common Area, as designated in
Section 5.1 of this Lease during the entire term of this Lease, or any
extension thereof, for ingress and egress, walkways and parking. Tenant agrees
to comply with the terms and conditions of this Lease and such reasonable
rules and regulations as Landlord may adopt from time to time for the orderly
and proper operation of Common Area.
1.3. Term of Lease. The term of this Lease (hereinafter called the "Lease
Term") shall commence on the date (hereinafter called the "Commencement Date")
that
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Tenant receives notice from Landlord that Landlord has acquired possession of
the Premises from the existing tenant of the Premises and that the Premises
are available for occupancy by Tenant and shall end May 31, 1998.
1.4. Holding Over. In the event Tenant remains in possession of the
Premises, or any part thereof, after the expiration of the Lease Term with the
consent of Landlord, such occupancy shall be a tenancy from month to month,
terminable upon 30 days written notice, at a rental of 150 percent of the
amount of the last monthly rent, plus all other additional rent and other
charges payable hereunder, and upon all the terms hereof applicable to a month
to month tenancy.
II. RENT, SECURITY
2.1. Annual Base Rent. Tenant agrees to pay to Landlord, without prior
notice or demand, as base rental for the Premises, monthly payments of
$8,403.90 on or before the first day of each month in advance. Rent for any
period which is for less than one month shall be a prorated portion of the
monthly installment, based on a thirty 30 day month. All rent to be paid by
Tenant to Landlord shall be in lawful money of the United States of America
and shall be paid without deduction or offset, at the address designated in
Section 14.2.
2.2. Additional Rent. Tenant shall pay, as additional rent, all sums of
money required to be paid by Tenant under any of the provisions of this Lease,
including but not limited to taxes, insurance and Common Area expenses whether
or not the same be designated "additional rent". In those cases where the
payments to be made by Tenant are based on "Tenant's Proportionate Share",
that term shall mean 10.62 percent, which is determined by dividing the 20,079
square feet being rented by Tenant by the 189,100 square feet of total
rentable space in the Project. In event that there are changes in either the
square feet being rented by Tenant or the total rentable space in the Project,
Tenant's Proportionate Share shall be recalculated on the same basis used
above to reflect such changes. If the amounts to be paid by Tenant are not
paid at the time provided in this Lease, they shall nevertheless be
collectible as additional rent with the next installment of annual base rent
thereafter falling due, but nothing herein contained shall be deemed to
suspend or delay the payment of any amount or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of Landlord.
Landlord may estimate Tenant's share of said costs and expenses, for a period
of not more than 12 months in advance, and may collect and impound Tenant's
estimated share in advance on a monthly basis. On or before March 15 of
each year, Landlord shall provide to Tenant a reconciliation of Tenant's
account for the twelve month period ending the preceding December 31. Said
reconciliation shall set forth in reasonable detail the costs and expenses
paid by Landlord, and shall include a computation as to Tenant's Proportionate
Share. In the event Tenant has overpaid its share of said costs and expenses,
the excess shall be credited on Tenant's next succeeding payment of additional
rent, and in the event of an underpayment, Tenant shall pay to Landlord said
underpayment within ten days after receipt of the reconciliation. The initial
estimated monthly charge for
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additional RENT is $2,610.27, as set out in Exhibit "B" hereto, and shall be
adjusted annually or at such time as there is a significant change in the
costs of any item of additional rent to be paid by Tenant.
2.3. Security Deposit. Tenant shall deposit with Landlord upon the
execution of this Lease the sum of $8,403.90 as a security deposit. Said sum
shall be security for the faithful performance by Tenant of all the terms,
covenants and conditions of this Lease during the Lease Term. If Tenant
defaults with respect to any provision of this Lease, including, but not
limited to the provisions relating to the payment of rent, Landlord may
(but shall not be required) to use, apply or retain all or any part of this
security deposit for the payment of any rent or any other sum in default, or
for the payment of any amount which Landlord may spend or become obligated to
spend by reason of Tenant's default, or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's Default. If any
portion of the security deposit is so used or applied, Tenant shall
deposit with Landlord an amount sufficient to restore the security deposit to
its original amount within ten days after written demand therefor by Landlord,
and Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep the security deposit separate from its
general funds, and Tenant shall not be entitled to interest on said deposit.
If Tenant shall fully perform every provision of this Lease to be performed
by Tenant, the security deposit or any balance thereof shall be returned to
Tenant (or, at Landlord's option, to the last valid assignee of Tenant's
interest hereunder) at the expiration of the Lease Term.
2.4. Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent or other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Accordingly, if any installment of rent or
other sum due from Tenant shall not be received by Landlord or Landlord's
designee within ten days after said amount is due, then Tenant shall pay to
Landlord a late charge equal to ten percent of such overdue amount.
Acceptance of such late charges by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
III. TAXES
3.1. Real Estate Taxes. In addition to all rents herein reserved, Tenant
shall pay to Landlord, as additional rent, all real estate taxes and
assessments levied upon the Premises and Tenant's Proportionate Share of all
real estate taxes and assessments levied upon the Common Area. Such amount
shall be payable in advance as estimated by Landlord as provided in Section
2.2 of this Agreement or, at Landlord's option, within ten days after
receipt of an annual statement to be sent by Landlord to Tenant setting forth
the amount of such tax based upon the actual tax bill received by Landlord. In
the event the Premises are not separately assessed, the taxes on the Premises
shall be Tenant's Proportionate Share if taxes are assessed on the Project as
a single tax parcel, or the ratio that the square feet of
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rentable area in the Premises bears to the total square feet of rentable area
in the Building or buildings in the Project covered by the tax parcel that
includes the Premises and Tenant's Proportionate Share of the taxes and
assessments levied on the Common Area. Any such tax for the year in which the
lease commences or ends shall be prorated. With respect to any assessment
which may be levied against or upon the Premises and which, under the laws
then in force, may be evidenced by improvement or other bonds payable in
annual installments, only the annual payments on said assessment shall be
included in computing Tenant's annual obligation for taxes and assessments.
The term "real estate taxes" as used herein shall be deemed to mean all taxes
imposed upon the real property and permanent improvements constituting the
Premises, all assessments levied against the Premises, and all excise,
privilege and other taxes levied or assessed by any federal, state or local
authority upon the rent received by Landlord hereunder, and any business tax
imposed upon Landlord by any governmental authority which is based or measured
in whole or in part by amounts charged or received by Landlord from Tenant
under this Lease but shall not include personal income taxes, personal
property taxes, inheritance taxes, or franchise taxes levied against the
Landlord, but not directly against the Premises or the Lease even though such
taxes shall become a lien against the Premises.
3.2. Personal Property Taxes. During the Lease Term, Tenant shall pay,
prior to delinquency, all taxes assessed against and levied upon fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Premises, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately
from the real property of Landlord. In the event any or all of Tenant's
fixtures, furnishings, equipment and other personal property shall be assessed
and taxed with Landlord's real property, Tenant shall pay to Landlord its
share of such taxes within ten days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property.
IV. COMMON AREA
4.1. Common Area. All area included in the Project not specified for
leasing to tenants shall be "Common Area" of the Project. Landlord has or
shall cause the Common Area to be improved, lighted and appropriately marked
and landscaped at no expense to Tenant as parking areas, service roads,
loading facilities, sidewalks, landscaped areas, and other facilities as
determined from time to time by Landlord. Landlord covenants that the
Common Area shall be available for the non-exclusive use of Tenant during the
term of this Lease as provided in Section 1.2 of this Lease and provided that
the condemnation or other taking by any public authority, or sale in lieu of
condemnation, of any or all of the Common Area shall not constitute a
violation of this covenant. Landlord reserves the right to change the
entrances, exits, traffic lanes and the boundaries and locations of the
parking area or other portions of the Common Area; provided that any such
changes do not unreasonably interfere with Tenant or Tenant's employees or
customers.
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4.2. Maintenance of Common Area. Landlord shall cause the Common Area
to be kept in a neat, clean and orderly condition, properly lighted and
landscaped, and shall maintain in good condition and repair any damage to the
facilities thereof, but all expenses in connection with the maintenance of the
Common Area shall be charged to tenants of the Project in the manner set forth
in section 4.3 of this Lease. It is understood and agreed that such "Common
Area Expenses" shall be construed to include, but not be limited to, all
sums expended by Landlord in connection with the Common Area for all general
maintenance and repairs, resurfacing, painting, restriking, cleaning, sweeping
and janitorial services, garbage collection, snow removal, landscaping,
lighting, security and other services, water, power and other utility charges
for the Common Area, assessments by the Salt Lake International Center Owners
Association, real estate taxes on the Common Area, unless billed pursuant to
Section 3.1, required fees or charges levied pursuant to any governmental
requirements and ten percent of said costs to Landlord as a management fee.
4.3. Tenant's Proportionate Share of Common Area Expenses. Tenant shall
pay to Landlord, Tenant's Proportionate Share of Common Area Expenses. Such
amount shall be payable in advance as estimated by Landlord as provided in
Section 2.2 of this Agreement. There shall be appropriate adjustments of
Tenant's share of Common Area Expenses as of the commencement and expiration
of the Lease Term.
V. INSURANCE, INDEMNITY
5.1. Insurance to be Maintained by Landlord. Landlord shall maintain
standard form fire insurance with extended coverage endorsement throughout the
Lease Term on the Building in such amount and with such deductibles as
Landlord shall reasonably determine, together with such other insurance as may
be required by Landlord's lender or by any governmental agency. Landlord shall
also maintain public liability and property damage insurance on the Common
Area under which Tenant shall be named as an additional insured, with limits
as determined by Landlord. Tenant agrees to pay to Landlord Tenant's
Proportionate Share of the cost of the insurance to be secured by Landlord
under this Section; or if the fire and extended coverage insurance covering
the Premises does not include all of the leasable space in the Project,
Tenant's share of that insurance in shall be determined by the ratio that the
square feet of rentable area in the Premises bears to the total square feet of
rentable area in the Building or the buildings in the Project covered by that
insurance. Such amount shall be payable in advance as estimated by Landlord as
provided in Section 2.2 of this Agreement. There shall be appropriate
adjustments of Tenant's share of insurance as of the commencement and
expiration of the Lease Term.
5.2. Insurance to be Maintained by Tenant. During the entire Lease Term,
Tenant shall, at Tenant's sole cost and expense, but for the mutual benefit of
Landlord and Tenant, maintain comprehensive public liability insurance against
claims for personal injury, death or property damage occurring in, upon or
about the Premises. The limitation of liability of such insurance shall not be
less than $2,000,000. All such policies of insurance shall be issued in the
name of Tenant and Landlord and for the mutual and joint benefit and
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protection of the parties, and such policies of insurance or copies thereof
shall be delivered to the Landlord and renewal certificates or other evidence
of coverage shall be provided to Landlord annually. Such policy or polices
shall provide for not less than thirty days' prior written notice to Landlord
and any mortgagee of Landlord in the event of cancellation or material
modification of the terms and conditions thereof. Such insurance may be
provided under a blanket policy, provided that an endorsement naming Landlord
and Landlord's property manager as additional insureds is attached thereto. In
addition to the foregoing, Tenant shall maintain insurance against such other
perils and in such amounts as Landlord may from time to time reasonably
require.
5.3. Waiver of Subrogation. Tenant hereby waives any right of recovery
from Landlord, its officers and employees, and Landlord hereby waives any
right of recovery from Tenant, its officers or employees, for any loss or
damage (including consequential loss) resulting from any of the perils insured
against in the fire and extended coverage insurance; and each party, on behalf
of its insurance company or companies, to the extent allowed by applicable
law, waives any right of subrogation that it may have against the other party.
5.4. Indemnification. Tenant, as a material part of the consideration to
be rendered to Landlord under this lease, hereby waives all claims against
Landlord for damages to goods, wares and merchandise in, upon or about the
Premises and for injuries to persons in, upon or about the Premises, from any
cause arising at any time, and Tenant will hold Landlord exempt and harmless
from any damage or injury to any person, or the goods, wares, and merchandise
of any person, arising from the use of the Premises by Tenant or from the
failure of Tenant to keep the Premises in good condition and repair, as herein
provided.
VI. UTILITIES
6.1. Utilities. Throughout the Lease Term, Tenant shall pay for all
public and other utilities and related services rendered or furnished to the
Premises, including, but not limited to, water, hot water, gas, electricity,
telephone, heat, light, sewer charges, installation and connection charges or
deposits therefor and refuse or garbage collection or disposal. Tenant shall
not allow refuse, garbage, or trash to accumulate inside or outside of
the Premises. In the event that one or more of such utilities or related
services shall be supplied to the Premises and to one or more other tenants
within the Building or the Project without being individually metered or
measured to the Premises, Tenant's proportionate share thereof shall be paid
as additional rent and shall be determined by Landlord with such consultants
as Landlord shall deem advisable, based upon Landlords estimate of Tenant's
usage. Payment for Tenant's share of any and all unmetered water, gas,
electricity and other utilities used by Tenant shall be made monthly and
within ten days of the presentation of bills to Tenant. Landlord may cut off
and discontinue, without notice to Tenant, water, gas, electricity, or any
other service whenever and during any period for which bills for the
service, or any sum under this lease, are not properly paid by Tenant.
Landlord shall
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provide and maintain the necessary mains, conduits, wires, and cables to bring
water and electricity to the Premises.
6.2. Failure of Utility Service. Landlord shall not be liable in damages,
consequential or otherwise, arising out of any failure or interruption in
utility services which are due to causes beyond the control of Landlord or any
interruptions in such service which are necessary to the making of
alterations, repairs or improvements. Any such failure or interruption of
utility service shall not entitle Tenant to terminate this Lease or offset
against rent payable under this Lease.
VII. CONDITION OF PREMISES, IMPROVEMENTS, REPAIRS
7.1. Condition of Premises - Improvements. Except for the improvements,
if any, to be made by Landlord and/or Tenant, as set out in Exhibit C" to this
Lease, the Premises are leased in an "as is condition", without any liability
or obligation on the part of Landlord to make any alterations or improvements
of any kind. Unless otherwise agreed in writing by Landlord, upon occupancy of
the Premises by Tenant, all of the obligations of Landlord to make
Improvements shall be deemed to be satisfactorily completed.
7.2. Alterations and Additions. Tenant shall not make or suffer to be
made any alterations, additions, or improvements to the Premises without the
prior written consent of Landlord. In the event Landlord consents to Tenant
making alternations, additions or improvements to the Premises, they shall be
made at Tenant's sole cost and expense and by a contractor or person approved
by Landlord. Any alterations, additions or improvements made by Tenant,
including, but not limited to, wall covering, carpeting, paneling and built-in
cabinet work, but excepting movable furniture and trade fixtures, shall upon
the expiration of the Lease Term become a part of the realty and belong to
Landlord and shall be surrendered with the Premises. At Landlord's election
and upon written demand by Landlord, Tenant shall remove any alternations,
additions, or improvements made by Tenant without Landlord's prior approval
and repair all damage caused to the Premises by their removal at Tenant's sole
cost and expense.
7.3. Maintenance and Repairs to Premises. Tenant shall be responsible for
all maintenance and report to the Premises of whatsoever kind or nature that
is not set forth specifically as the obligation of Landlord in this Lease.
Tenant shall take good care of the Premises and fixtures, and keep them in
good repair and free from filth, overloading, danger of fire or any pest or
nuisance, and repair any damage or breakage done by Tenant or Tenant's
agents, employees or invitees, including damage done to the Building by
Tenant's equipment or installations. Tenant shall be responsible for the
repair and replacement of all glass and plate glass on the Premises. Tenant
shall furnish and pay for the upkeep, maintenance, repair and periodic
servicing of the heating, ventilation and air conditioning system servicing
the Premises. In the event Tenant fails to maintain the Premises, including
the heating, ventilation and air conditioning system, as provided for herein,
Landlord shall have the right, but not the obligation, to perform such
maintenance as is required of Tenant,
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in which event Tenant shall promptly reimburse Landlord for its costs in
providing such maintenance or repairs together with a ten percent charge for
landlord's overhead. Tenant shall enter into a service contract for the
heating, ventilation and air conditioning system providing for periodic
inspection, servicing and repair of the system with a contractor approved by
Landlord, which approval shall not be unreasonably withheld, and Tenant shall
provide a copy of such service contract to Landlord. At the end of the Lease
Term or any renewal thereof, Tenant shall quit and surrender the Premises
broom clean in as good condition as when received by Tenant, normal wear and
tear excepted.
7.4. Repairs to Building. Landlord shall, subject to Tenant's
reimbursement as herein provided, maintain in good repair the exterior walls
(excluding glass or plate glass), roof, gutters and downspouts of the Building
in good condition and repair. Tenant agrees that it will not, nor will it
authorize any person to, go onto the roof of the Building without the prior
written consent of Landlord. Landlord shall not be required to make any
repairs to the exterior walls, roof and sidewalks unless and until Tenant has
notified Landlord in writing of the need for such repairs and Landlord shall
have had a reasonable period of time thereafter to commence and complete said
repairs. Tenant shall reimburse Landlord for its prorate share of the cost of
said repairs and maintenance incurred by Landlord, said prorate share to be
determined according to the square feet of rentable area included in the
Premises as it relates to the total square feet of rentable area of the
Building. There shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from
the making of any repairs, alterations or improvements in or to any portion of
the building or the Premises or to fixtures, appurtenances and equipment
therein. Tenant waives the right to terminate this Lease in the event of any
failure to make repairs or maintenance and the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
7.5. Liens. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished or obligations incurred by
Tenant.
VIII. POSSESSION, USE
8.1. Quiet Possession. Upon Tenant paying the rent reserved hereunder and
observing and performing all of the covenants, conditions, and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire Lease Term, subject to all
provisions of this Lease.
8.2. Possession. Tenant shall be deemed to have taken possession of the
Premises as of the Commencement Date. In the event Tenant acquires equipment
currently located on the Premises and the equipment remains on the Premises
prior to the Commencement Date, the provisions of ARTICLE V of this Lease
shall apply and be in effect prior to the Commencement Date.
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8.3. Use of Premises. Tenant shall use the Premises solely for purposes
of office and light manufacturing or fabrication. Tenant shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord. No use shall be made or permitted to be made of the
Premises, nor acts done, which will increase the rate of insurance upon the
Building (once said rate is established), or cause a cancellation of any
insurance policy covering the Building or any part thereof, nor shall Tenant
sell or permit to be kept, used or sold in or about the Premises any article
which may be prohibited by standard form of fire insurance policies. Tenant
shall, at his sole cost, comply with any and all requirements, pertaining to
the use of the Premises, of any insurance organization or company necessary
for the maintenance of reasonable fire and public liability insurance,
covering the Premises and appurtenances. In the event Tenant's uses of the
premises, as recited in this Section, results in a rate increase for the
Building, Tenant shall pay annually on the anniversary date of this lease, as
additional rent, a sum equal to that of the additional premium occasioned by
said rate increase. Tenant shall not do or permit anything to be done
in or about the Premises which will unreasonably disturb or interfere with
other tenants of the Project or their customers; or use or allow the Premises
to be used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises. Tenant will not commit or suffer to be committed any waste in or to
the Premises.
8.4. Compliance With Law. Tenant shall not use the Premises or permit any
thing to be done in or about the Premises which will in any way conflict with
any law, statue, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall at its sole cost
and expense, promptly comply with all laws, statues, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force. The judgement of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any law, statue, ordinance or
governmental rule, regulation or requirement, shall be conclusive of that fact
as between the Landlord and Tenant.
8.5. Compliance With Hazardous Materials Requirements and Rules. Tenant
shall faithfully observe and comply with the Hazardous Materials Requirements
set out in Exhibit "D" to this Lease. Tenant shall faithfully observe and
comply with the rules relating to the Project that Landlord shall from time to
time promulgate. A copy of the current rules are attached as Exhibit "E" to
this Lease (hereinafter called the "Rules"). Landlord reserves the right from
time to time to make all reasonable modifications to the Rules and
modifications to the Rules shall be binding on Tenant upon delivery of a copy
of them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any of the Hazardous Materials Requirements or the Rules by
any other tenant or occupants. Violations by Tenant of the Hazardous Materials
Requirements or the Rules shall constitute a default under this Lease.
8.6. Signs. Tenant shall not place or permit to be placed any sign upon
the exterior or in the windows of the Premises, the Building or the Project
without Landlords
9
prior written consent, nor shall Tenant change the color or exterior
appearance of the Premises without Landlord's prior written consent.
8.8. Entry and Inspection. Tenant shall permit Landlord and its agents to
enter into and upon the Premises at all reasonable times for the purpose of
inspecting the same or for the purpose of maintaining the Building, or for the
purpose of making repairs, alterations, or additions to any other portion of the
Building, including the erection and maintenance of such scaffolding, canopy,
fences and props as may be required, or for the purpose of posting notices of
non-liability for alterations, additions or repairs, or for the purpose of
placing upon the Building or the Project any usual or ordinary "For Sale' signs.
Landlord shall be permitted to do any of the above without any rebate of rent
and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Premises thereby occasioned. Tenant shall permit Landlord, at
any time within 30 days prior to the expiration of this lease, to place upon the
Premises any usual or ordinary "For Lease" signs, and during such 30 day period
Landlord or his agents may, during normal business hours, enter upon the
Premises and exhibit same to prospective Tenants.
IX. ASSIGNING, SUBLETTING, MORTGAGING
9.1. No Assignment etc Without Landlord's Consent. Tenant shall not
transfer, assign, sublet, enter into license or concession agreements, mortgage
or pledge this Lease or the Tenant's interest in and to the Premises nor permit
the occupancy or use of any part thereof by another, without the prior written
consent of Landlord. Any assignment, mortgage, pledge, encumbrance, subletting
or license of this Lease, the leasehold estate hereby created, or the Premises
or any portion thereof, either voluntary or involuntary, whether by operation of
law or otherwise, without the prior written consent of Landlord shall be null
and void and shall at the option of Landlord terminate this Lease. If Tenant is
a corporation which is not deemed to be a "public corporation" under the laws of
the State of Utah, or if Tenant is an unincorporated association or partnership,
the assignment or transfer of more than 25 percent of the stock or other
ownership interest in Tenant shall be deemed an assignment within the meaning
and provisions of this Section. Tenant agrees to reimburse Landlord for
Landlord's reasonable attorney fees and other costs incurred in conjunction with
the processing and documentation of approval of any requested transfer,
assignment, subletting, licensing or concession agreement, mortgage or pledge of
this Lease or Tenant's interest in and to the Premises.
9.2 No Release of Tenant. No consent by Landlord to any assignment,
subletting shall relieve Tenant from any of the provisions, Covenants, and
conditions of this Lease on the part of Tenant to be kept and performed, The
consent by Landlord to any assignment, subletting, licensing or concession
agreement, mortgage or pledge of this Lease or Tenant's interest in and to the
Premises shall not relieve Tenant from the obligation to obtain the consent of
Landlord to any other or subsequent assignment, subletting, licensing or
concession agreement, mongage or pledge of this Lease or Tenant's interest in
and to the Premises.
10
X. DESTRUCTION, CONDEMNATION
10.1 Destruction. In the event the Premises or the Building are damaged by
fire or other perils covered by extended coverage insurance and Landlord
receives sufficient proceeds to cover the cost of replacing the damage and said
proceeds are made available by Landlord's Mortgagee, then Landlord agrees to
forthwith repair the same and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate reduction of the rent
while such repairs are being made, such proportionate reduction to be based upon
the extent to which the making of such repairs materially interferes with the
business carried on by the Tenant in the Premises. If the damage is due to the
fault or neglect of Tenant or his employees, there shall be no abatement of
rent. Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever, to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Section either destroys 25 percent of the Building or occurs during the
last 12 months of the Lease Term or any extension thereof, and under either of
such circumstances, Landlord shall have the right to terminate this Lease
without liability on its part. Landlord shall not be required to repair any
damage by fire or other cause, or to make any repairs or replacements of any
panels, decoration, office fixtures, railings, floor covering, partitions, or
any other property installed in the Premises by Tenant. Tenant shall not be
entitled to any compensation or damages from Landlord for loss of the use of the
whole or any part of the Premises, Tenant's personal property or any
inconvenience or annoyance occasioned by such damage, repair, reconstruction or
restoration.
10.2. Condemnation. If all or a substantial portion of the Premises shall
be taken or appropriated by any public or quasi-public authority under the power
of eminent domain, either party hereto shall have the right, at its option, to
terminate this Lease and Landlord shall be entitled to any and all income,
rent, award, or any interest therein which may be paid or made in connection
with such public or quasi-public use or purpose and Tenant shall have no claim
against Landlord for the value of any unexpired portion of the Lease Term. If
any part of the Project is so taken or appropriated which, in Landlord's
judgement, materially interferes with the ability to operate the Project or a
substantial portion thereof, Landlord shall have the right, at its option, to
terminate this Lease and shall be entitled to the entire award as above
provided. If a portion of the Premises is taken and neither party terminates
this Lease as herein provided, the rent thereafter to be paid shall be equitably
reduced.
XI. DEFAULT, REMEDIES
11.1. Default by Tenant. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
11
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder within a period of ten days
after the same is due and payable.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions, or provisions of this Lease to be observed or performed by the
Tenant, other than to make the payments set out in subsection (b) above,
where such failure shall continue for a period of 30 days after written
notice thereof to Tenant by Landlord.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against
Tenant of a petition to have Tenant adjudged bankrupt, or a petition or
reorganization or arrangernent under any law relating to bankruptcy
(unless, in the case of the petition filed against Tenant, the same is
dismissed within 60 days); or the appointment of a trustee or a receiver to
take possession of substantially all of Trenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within 30 days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged in 30 days.
(e) The failure of the Tenant to keep the Premises free of liens as
required by this Lease.
11.2. Landlord's Right Reenter and Relet Premises. In the event of any
default or breach by Tenant, Landlord may elect to re-enter the Premises, as
herein provided, or take possession pursuant to legal proceedings or pursuant to
any notice provided for by law, and Landlord 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 relet the
Premises or any part thereof for such term or terms (which may be for a term
extending beyond the Lease Term) and at such rent or rents and upon such other
terms and conditions as Landlord, in its sole discretion, may deem advisable.
Upon each such reletting, all rents received by Landlord from such reletting
shall be applied: first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and attorney's fees to the
payment of rent due and unpaid hereunder; and, the residue, if any, shall be
held by Landlord and applied in payment of further rent as the same may become
due and payable hereunder. If rents received from such reletting during any
month are less than that to be paid during that month by Tenant hereunder,
Tenant shall pay such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly or at such greater intervals as Landlord may see
fit; or Landlord may institute action for the whole of such deficiency
immediately upon effecting any letting or reletting and shall not thereafter be
precluded from further like action in the event such
12
letting or reletting shall not embrace the whole unexpired portion of the Lease
Term. 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 of competent jurisdiction. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including the cost of recovering the Premises and 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 Lease Term over the then reasonable rental value of the
Premises for the remainder of the Lease Term, all of which amount shall be
immediately due and payable by Tenant.
11.3. Tenant's Property. In the event Landlord shall take possession of the
Premises upon any default or breach by Tenant, all property of Tenant placed on
the Premises may be taken, possessed and used by Landlord without compensation
to the Tenant, and may be let with the Premises upon any reletting provided for
in this Lease, and may be taken, possessed and used by the substitute tenant in
the conduct of the substitute tenant's business, without compensation to Tenant
and without constituting an eviction of Tenant from the Premises or any part
thereof. Said right of taking, using and letting shall apply to any of said
property which may be subject to a lease or to a conditional sales contract,
lease contract, reserved or soecurity title, chattel mortgage or other security
agreement to secure the balance of the purchase price thereof, or other
obligation of Tenant. The Landlord or receiver or trustee shall be subrogated to
all rights of Tenant in such property and shall have the right to make such
payments as may be required to prevent repossession or foreclosure or the
exercise of any remedy by the obligee under any such lease or security
agreement; and the amount so paid, with interest therein, shall be added to the
sum due from Tenant to Landlord. In the alternative, upon taking possession of
the Premises, Landlord may require Tenant to remove all property of Tenant on
the Premises or have such property removed from the Premises and stored at the
cost of and for the account of Tenant.
11.4. Other Rights and Remedies of Landlord. Each of the remedies set out
in sections 11.2 and 11.3 of this Lease may be exercised jointly or severally
with any of the remedies provided by this Lease or by law, at the option of
Landlord or any receiver or trustee; and any remedy election may be abandoned or
terminated and may be resumed after such abandonment or termination, at the
option of Landlord or receiver or trustee. The rights and remedies herein set
forth and granted to Landlord shall be cumulative and in addition to any and all
other rights and remedies provided and given to Landlord under applicable 1aw.
The use of any one or more of the rights and remedies herein enumerated, shall
not be an election of remedies; nor, in such event, shall Landlord be barred or
estopped from using or asserting any other or different or concurrent or
cumulative right or remedy at the same or any other or different time or place.
Tenant hereby agrees to hold Landlord safe and harmless from any claim of any
character by any person arising out of or in any wise
13
connected with the entry and the taking possession of the Premises and/or the
property of Tenant by Landlord or receiver or trustee, by reason of Tenants
default or breach of this Lease.
11.5. Waiver of Rights. In the event Landlord commences any proceeding for
nonpayment of rent, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding. This shall not, however, be
construed as a waiver of the Tenant's right to assert such claims in any
separate actions brought by the Tenant. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises by reason of the violation by
Tenant of any of the covenants or conditions of the Lease or otherwise.
11.6. Default By Landlord. In the event Landlord shall neglect or fail to
perform or observe any of the covenants, provisions or conditions contained in
this Lease on its part to be performed or observed within 30 days after written
notice of default (or if more than 30 days shall be required because of the
nature of the default, if Landlord shall fail to proceed diligently to cure such
default after notice), then in that event Landlord shall be responsible to
Tenant for any and all damages sustained by Tenant as a result of Landlord's
breach, unless such damages are or would be covered by insurance provided or
required to be provided by Tenant. If the Premises or any part thereof are at
any time subject to any mortgage or deed of trust and this Lease or the rentals
due from Tenant hereunder are assigned to such mortgagee, trustee or beneficiary
(called "Assignee" for purposes of this Section only), then Tenant shall give
written notice to such Assignee, specifying the default in reasonable detail,
and affording such Assignee a reasonable opportunity to make performance for and
on behalf of Landlord. If and when the said Assignee has made performance on
behalf of Landlord, such default shall be deemed cured. If, after such notice to
Landlord and Assignee, if any, Landlord and Assignee shall fail to cure such
default as provided herein, Tenant shall have the right to cure any such default
at Landlord's expense including in such expenditure all costs and attorney's
fees incurred to cure such default or breach of this Lease. Tenant shall have no
right to terminate this Lease except as herein otherwise specifically provided.
XII. PROVISIONS APPLICABLE UPON TERMINATION OF LEASE
12.1. Surrender of Premises. Tenant shall upon expiration of the Lease
Term, or any earlier termination of this Lease for any cause surrender to
Landlord the Premises, including, without limitation, all building apparatus and
equipment then upon the Premises (other than the trade fixtures, signs and other
personal property which Tenant has the right to remove); and all alternations,
improvements, and other additions thereto that may have been made or installed
by either party to, in or upon the Premises in the same condition as when
received, reasonable use and wear thereof excepted without payment therefore.
Tenant, at its expense, shall immediately repair any damage to the Premises
caused by it vacating the same
14
or by Tenant's removal of such trade fixtures, signs and other personal
property, and shall leave the Premises in a neat and clean condition, free of
debris.
12.2. Tenants Fixtures and Property. If Tenant shall not be in default upon
surrender of the Premises, Tenant may remove its trade fixtures, signs and other
personal property, but not including ceiling, light fixtures, air conditioning
equipment and duct work, floor and wall coverings, doors, windows, window
coverings including blinds, and partitions, which items shall remain in the
Premises and become the property of Landlord without any payment therefore. If
Tenant shall be in default, Tenant shall not have the right to remove any of
said trade fixtures, signs and other personal property and the same shall remain
and become the property of Landlord. Landlord shall have a Landlord's lien
against Tenant's property until said default is remedied. If Tenant fails to
remove the trade fixtures, signs and other personal property which Tenant has a
right to remove within three days after the expiration of the Lease Term, or
earlier termination of the Lease, Landlord may, at its election: (i) consider
the same abandoned and retain the same as Landlord's property; or (ii) remove
and store the same for the account of Tenant and at Tenant's cost and expense.
12.3. Surrender of Lease. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to
him of any or all of such subleases or subtenancies.
12.4. Tenant's Obligations to Survive Termination. Tenant's obligation to
observe and perform any of the provisions of this Article shall survive the
expiration of the Lease Term or earlier termination of this Lease.
XIII. FINANCING, SUBORDINATION, ESTOPPEL CERTIFICATES
3.1. Subordination. Tenant acknowledges that it might be necessary for
Landlord or its successors or assigns to secure mortgage loan financing or
refinancing affecting the Premises. Tenant also acknowledges that the lender
interested in any given loan may desire that Tenant's interests under this Lease
be either superior or subordinate to the mortgage then held or to be taken by
said Lender. Accordingly, Tenant agrees that at the request of Landlord at any
time and from time to time Tenant shall execute and deliver to Landlord an
instrument, in form reasonably acceptable to Landlord, whereby Tenant
subordinates its interests under this Lease in the Premises to any mortgage or
trust deed and customary related instruments are herein collectively referred to
merely as a "Mortgage" securing a loan obtained by Landlord or its successors or
assigns for the purpose of enabling acquisition of the Project and/or
construction of additional improvements to the Project or to provide standing or
permanent financing for the Project, or for the purpose of refinancing any such
construction, acquisition, standing or permanent loan as may be specified by
Landlord. Provided, however, that any such instrument or subordination executed
by Tenant shall provide that so long as Tenant continues to perform all of its
obligations under this Lease its tenancy shall remain in full force and effect
notwithstanding Landlord's default in
15
connection with the Mortgage concerned or any resulting foreclosure or sale or
transfer in lieu of such proceedings. Tenant shall not subordinate its interests
hereunder or in the Premises to any lien or encumbrance other than the Mortgages
described in and specified pursuant to this Section without the prior written
consent of Landlord. Any such unauthorized subordination by Tenant shall be void
and of no force or effect.
13.2. Amendment. Tenant recognizes that Landlord's ability from time to
time to obtain construction, acquisition, standing, and/or permanent mortgage
loan financing for the Project may in part be dependent upon the acceptability
of the terms of this lease to the lender concerned. Accordingly, Tenant agrees
that from time to time it shall, if so requested by Landlord and if doing so
will not materially and adversely affect Tenant's economic interests hereunder
join with Landlord in amending this Lease so as to meet the needs or
requirements of any lender which is considering making or which has made a loan
secured by a mortgage affecting the Premises.
13.3. Attornment. Any sale, assignment, or transfer of Landlord's interest
under this Lease or in the Premises including any such disposition resulting
from Landlord's default under a mortgage, shall be subject to this Lease and
also Tenant shall attorn to Landlord's successor and assigns and shall recognize
such successor or assigns as landlord under this Lease, regardless of any rule
of law to the contrary or absence of privity of contract.
13.4. Landlord's Right to Estoppel Certificate. Tenant shall, within 15
days after Landlord's request, execute and deliver to Landlord a written
declaration in recordable form ("Estoppel Certificate"): (i) ratifying this
Lease; (ii) expressing the commencement date and termination date hereof; (iii)
certifying that this Lease is in full force and effect and has not been
assigned, modified, supplemented or amended (except as shall be stated); (iv)
that all conditions under this Lease to be performed by Landlord have been
satisfied (except as shall be stated); (v) that there are no defenses or offsets
against the enforcement of this Lease by the Landlord (or stating those claimed
by Tenant); (vi) the amount of advance rental, if any, (or none if such is the
case) paid by Tenant; (vii) the date to which rental has been paid; (viii) the
amount of security deposited with Landlord; and (ix) such other information as
Landlord may reasonably request. Landlord's mortgage lenders and/or purchasers
shall be entitled to rely upon such declaration. If Tenant shall fail to furnish
any Estoppel Certificate within 15 days after request therefor shall be deemed a
default hereunder and, moreover, it shall be conclusively presumed that: (i)
this Lease is in full force and effect without modification in accordance with
the terms set forth in the request; (ii) that there are no unusual breaches or
defaults on the part of the Landlord; and (iii) no more than one month's rent
has been paid in advance.
13.5. Sale of Premises by Landlord. In the event of any sale of the Project
or the Building Landlord shall be and is hereby entirely freed and relieved of
all liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, Occurrence or omission occurring
after the consummation of such sale;
16
and the purchaser, at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of the Landlord
under this Lease.
XIV. ADDITIONAL PROVISIONS
14.1. Waiver. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition on any subsequent breach of the same or any other term, covenant or
condition herein contained. The acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of Tenant to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of the acceptance of such rent.
14.2. Notice. Any notice given under this Lease shall be in writing and
shall be delivered personally, be mailed by first class or express mail, or be
sent by facsimile transmission ("Fax") addressed as follows:
To Landlord: GREEN/PRAVER ET AL
c/o ASSET MANAGEMENT SERVICES INC.
428 East 6400 South, Suite 100
Salt Lake City, Utah 84107
Fax No. (801) 281-4888
Attention: Gregory Strong
To Tenant: DATA SECURITY CORPORATION
150 Wright Brothers Drive, Suite 150
Salt Lake City, Utah 84116
Fax No. (801) 575-6621
Attention: Gary Peterson
or at such other address as either party may designate by written notice to the
other party as herein provided. Notice shall be deemed given when actually
received if personally delivered; if faxed, when the fax is received, except
that if the fax is received after normal business hours of the office at which
it is received, on the next regular business day; and if by mail, the earlier of
the day actually received or the third business day after the notice is
deposited in the United States mail properly addressed and postage prepaid.
14.3. Joint Obligation. If there be more than one Tenant, the obligations
hereunder imposed upon Tenants shall be joint and several.
14.4. GoverninG Law - Headings. This Lease shall be governed as to
validity, enforcement, construction, effect and in all other respects by the
laws of the State of
17
Utah. The section headings and captions appearing in this Lease are for
convenience only and are not to be used to construe, interpret or define the
provisions of this Lease.
14.5. Time. Time is of the essence of this Lease and each and every
provision hereof.
14.6. Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment contained elsewhere in
this Lease, apply to and bind the heirs, successors, personal representatives,
administrators and assigns of the parties hereto.
14.7. Recordation. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
party.
14.8. Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreements or understanding pertaining to any such matters shall be
effective for any purpose. No provisions of this Lease may be amended or added
to, except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
14.9 Force Majeure. This Lease and the obligations of the Tenant hereunder
shall not be affected or impaired because the Landlord is unable to fulfill any
of its obligations hereunder or is delayed in doing so, if such inability or
delay is caused by reason of strike, labor troubles, acts of God, or any other
causes beyond the reasonable control of the Landlord.
14.10. Attorney's Fees. The parties agree that should any party default in
any of the covenants or agreements herein contained, the defaulting party shall
pay all costs and expenses, including reasonable attorney's fees, which may
arise or accrue from enforcing this Lease or in pursuing any remedy provided
hereunder or by applicable law, whether such remedy is pursued by filing suit or
otherwise.
14.11. Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way effect, impair or invalidate any other
provisions hereof and such other provisions shall remain in full force and
effect.
14.12. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
14.13. Authority of Signatories. The persons executing this Lease on behalf
of Landlord and Tenant, each represent and warrant that he or she has the
authority to execute this Agreement and to bind the responsive party.
18
14.14. Brokers. Except as agreed upon in writing by Landlord, Tenant
represents, and warrants that there are no claims for brokerage commissions or
finder's fees in connection with this Lease and agrees to indemnify Landlord
against and hold it harmless from all liabilities arising from such claim,
including any attorneys' fees connected therewith.
THE PARTIES HERETO have caused this Lease to be executed as of the date
first hereinabove set out.
TENANT:
DATA SECURITY CORPORATION
By /s/ xxxxxxxxxx
-----------------------
Its: President
LANDLORD:
GREEN/PRAVER ET AL
By /s/ xxxxxxxxxx
-----------------------
Its: Project Manager
19
EXHIBIT "B"
ATTACHED TO AND FORMING A PART OF
THE LEASE DATED FEBRUARY 12, 1996
BETWEEN GREEN/PRAVER ET AL
AND DATA SECURITY CORPORATION
COVERING PREMISES AT WILEY POST PLAZA
ESTIMATE OF ADDITIONAL RENT
20,079 Square Feet x $0.13 = $2,610.27
20
EXHIBIT "C"
ATTACHED TO AND FORMING A PART OF
THE LEASE DATED FEBRUARY 12, 1996
BETWEEN GREEN/PRAVER ET AL
AND DATA SECURITY CORPORATION
COVERING PREMISES AT WILEY POST PLAZA
DESCRIPTION OF IMPROVEMENTS TO PREMISES
TO BE MADE BY LANDLORD AND/OR TENANT
No improvements are to be made. Tenant is leasing the Premises in their "AS
IS" condition.
EXHIBIT "D"
ATTACHED TO AND FORMING A PART OF
THE LEASE DATED FEBRUARY 12, 1996
BETWEEN GREEN/ RAVER ET AL
AND DATA SECURITY CORPORATION
COVERING PREMISES AT WILEY POST PLAZA
HAZARDOUS MATERIAL REQUIREMENTS
The following Hazardous Material Requirements are additional provisions of
the above referenced Lease (the "Lease") to which they are attached. Terms used
herein shall have the same meanings as are given those Terms in the Lease.
1. For purposes of these Requirements, the following terms shall be
defined as follows:
"Disposal of Hazardous Material" shall mean any emitting, releasing,
spilling, leaking, pumping, pouring, emptying, disposing or dumping of any
Hazardous Material into air or waters (including ground water) or onto
lands.
"Environmental Compliance Audit" shall mean an audit of the Premises
and of Tenant's operations at or affecting the Premises for the purpose of
determining whether Tenant and Tenant's operations are in full compliance
with all applicable Environmental Laws. The audit sHall include, without
limitation, (i) a determination of all environmental registrations and
notices required to be filed by Tenant with respect to its operations or
the Premises, (ii) a determination of all permits and approvals required to
be obtained or maintained by Tenant with respect to its operations or the
Premises, (iii) an examination of the Premises to determine whether there
has been any Disposal of Hazardous Material on or under the Premises or any
other Violation of any applicable Environmental Law affecting Tenant or the
Premises which has not been fully and finally corrected, and (iv) a review
of Tenant's facilities, records, training programs, policies, procedures
and ongoing operations to determine whether Tenant's operations are being
conducted in full compliance with all applicable Environmental Laws.
"Environmental Compliance Audit Certificate" shall mean a certificate
addressed to Landlord issued by a competent, independent environmental
consultant reasonably acceptable to Landlord certifying (i) that the
consultant has completed an Environmental Compliance Audit of Tenant and
the Premises, (ii) that, as of the effective date of
the certificate, Tenant and the Premises are in full compliance with all
applicable Environmental Laws, (iii) that there has been no known Disposal
of Hazardous Material at, in, on or under the Premises, and (iv) that in
the consultant's opinion after due inquiry there is no basis for the
consultant to recommend or require further investigation or testing with
respect to any suspected or possible contamination at the Premises.
"Environmental Laws" shall mean all federal, state and local laws and
ordinances pertaining to the generation, manufacture, refining, recycling,
treatment, handling, use, storage, transportation, disposal and cleanup of
hazardous, radioactive, reactive, flammable, infectious, toxic or dangerous
substances or materials or the protection of public health or of the
environment, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601,
et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
Section 6901, et seq.), the Toxic Substances Control Act (15 U.S.C. Section
2601, et seq.), the Clean Air Act (42 U.S.C. Section 7401, et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251, et seq.), and
any similar state law, including all amendments thereto and all regulations
promulgated thereunder, and further including the conditions and
requirements of all permits and regulatory approvals issued thereunder.
"Hazardous Material" shall mean oil, petroleum, petroleum products,
asbestos, PCB's, dioxins and any other pollutants, contaminants, hazardous
substances, hazardous wastes and toxic or dangerous substances or materials
as defined in or regulated under any Environmental Laws.
2. Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises or the Project by Tenant,
its agents, employees, contractors or invitees, except for such Hazardous
Material as is necessary or useful to Tenant's business.
3. At the commencement of the Lease Term and the commencement of each
subsequent year of the Lease Term, Tenant shall disclose to Landlord the names
and approximate amounts of all Hazardous Material which Tenant intends to store
or use on the Premises in the coming lease year. In addition, at the
commencement of each year of the Lease Term beginning with the second year,
Tenant shall disclose to Landlord the names and amounts of all Hazardous
Material which were actually used or stored on the Premises if such materials
were not
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previously identified to Landlord at the commencement of the previous year of
the Lease Term.
4. Tenant (and each other occupant of the Premises) shall comply fully
with all Environmental Laws applicable to the Premises or to activities on or
uses of the Premises. Any Hazardous Material permitted on the Premises as
provided in Section 2 above, and all containers therefor, shall be used, kept,
stored and disposed of in a manner that complies with all Environmental Laws.
5. Tenant shall not cause or permit to exist, as a result of any
intentional or unintentional act or omission on Tenant's part or on the part of
any occupant of the Premises, any Disposal of Hazardous Material on, in or under
the Premises or the Project.
6. Tenant shall promptly notify Landlord of any event or occurrence,
whether occurring on the Premises or on the Project or nearby lands, which
causes or poses a risk of contamination of the Premises or of air or water on,
under or near the Premises with any Hazardous Material. Tenant shall also
promptly provide to Landlord with a copy of every summons, citation, directive,
letter, order, information request, notice of violation (NOV) or other
communication received or obtained by Tenant, written or oral, from any local,
state or federal agency or department concerning any known, alleged or suspected
intentional or unintentional action or omission on Tenant's or any other
person's part which resulted or may have resulted in the Disposal of Hazardous
Materials on, in or under the Premises or the Project, or which alleges the
violation by Tenant or any other occupant of the Premises of any Environmental
Law.
7. If and whenever so requested by Landlord, Tenant shall promptly
provide Landlord wiih complete and accurate copies of all reports, notices
applications or other documents filed with any governmental authority, including
accompanying or related correspondence and all responsive notices and
correspondence, under any Environmental Law with respect to any events or
activities occurring at or on the Premises. If so requested by Landlord, Tenant
shall provide Landlord, on an ongoing basis and without needing further
requests, with copies of all such materials as and when filed with or received
from such governmental authorities.
8. Tenant shall promptly provide Landlord with copies of any tests,
analyses or reports obtained by Tenant pertaining to Tenant's compliance with
Environmental Laws, the existence or nonexistence of any Hazardous Material on,
in or under the Premises, or the condition of the Premises.
9. Tenant shall protect, indemnify, defend and save harmless Landlord
and its directors, officers, trustees, agents and employees from and
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against any and all obligations, duties, liabilities, expenses, fines, penalties
and damages of every kind and nature and from all suits, claims, notices, orders
and demands, including reasonable legal fees and expenses, on account of any
matter or thing, whether in suit or not, (i) arising out of or relating to any
violation or alleged violation of Environmental Laws at, on or with respect to
the Premises during the Lease Term, (ii) arising out of or relating to the
investigation, testing, study, removal, monitoring or remediation of any known
or suspected Disposal of Hazardous Material during the Lease Term from the
Premises, (iii) arising out of or relating to the presence, investigation,
testing, study, removal, monitoring or remediation of any known or suspected
Hazardous Material at or from lands, air or water in the vicinity of the
Premises resulting from any actual or alleged Disposal of Hazardous Material or
violation of Environmental Laws at or on the Premises during the Lease Term, or
iv) arising out of or relating to the inaccuracy of any representation by Tenant
or to the breach by Tenant of any warranty, covenant or agreement contained
herein.
10. If Landlord, in its sole discretion, has reason to suspect that a
violation of any Environmental Law has occurred, or that a Disposal of Hazardous
Material at, on, in or under the Premises has occurred, Landlord may request and
Tenant shall provide an Environmental Compliance Audit Certificate at any time
during the Lease Term. In addition if the information provided pursuant to
Section 3 of these requirements discloses the use of a significant amount of
Hazardous Material on the Premises or the use of Hazardous Material on the
Premises in a manner that Landlord reasonably believes creates a significant
risk of a Disposal of Hazardous Material, Landlord may request and Tenant shall
provide Landlord with an Environmental Compliance Audit Certificate within 30
days following each anniversary of the beginning of the Lease Term, effective as
of a date no earlier than 60 days prior to the date of delivery of the
certificate.
11. In the event Tenant fails or refuses promptly to provide Landlord
with an Environmental Compliance Audit Certificate when required under Section
10 of these Requirements Landlord may, at Tenants risk and expense, arrange to
obtain such a certificate. Landlord and any consultant retained by or for the
benefit of Landlord shall have the right, without further permission from or
notice to Tenant, to enter upon the Premises for the purpose of performing any
examination or testing required in order to provide such a certificate, and
Tenant shall provide the consultant with reasonable access to Tenant's records
for such purposes. Any costs incurred by Landlord in obtaining such a
certificate shall constitute additional rent under the Lease, and shall be due
and payable as provided in the Lease.
12. During the Lease Term, Tenant shall have, sufficient control over
all employees, agents, and other persons using or occupying the Premises to
ensure compliance with these Requirements.
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13. The obligations of Tenant and the rights and remedies of Landlord
under these Requirements shall survive the termination of the Lease.
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EXHIBIT "E"
ATTACHED TO AND FORMING A PART OF
THE LEASE DATED FEBRUARY 12, 1996
BETWEEN GREEN/PRAVER ET AL
AND DATA SECURITY CORPORATION
COVERING PREMISES AT WILEY POST PLAZA
RULES
The following Rules are additional provisions of the above referenced
Lease (the "Lease") to which they are attached. Terms used herein shall have the
same meanings as are given those Terms in the Lease.
1. Use of Common Areas. Tenant will not obstruct the sidewalks, exits
and entrances of the Building and Common Areas, and Tenant will not use the
Common Areas for any purpose other than ingress and egress to and from the
Premises. The Common Areas are not open to the general public and Landlord
reserves the right to control and prevent access to the Common Areas of any
person whose presence, in Landlord's opinion, would be prejudicial to the
safety, reputation and interests of the Project and its tenants.
2. No Access to Roof. Tenant has no right of access to the roof of the
Building and will not install, repair or replace any antenna, aerial, aerial
wires, fan, air-conditioner or other device on the roof of the Building,
without prior written consent of Landlord. Any such device installed without
such written consent is subject to the removal at Tenant's expense without
notice at any time. In any event Tenant will be liable for any damages or
repairs incurred or required as a result of its installation, use or removal of
such devices on the roof.
3. Signage. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the premises will be inscribed, painted, affixed or
otherwise displayed by Tenant on or in any part of the Building without prior
written consent of Landlord. Landlord reserves the right to adopt and furnish
Tenant with general guidelines relating to signs in or on the Building. All
approved signage will be inscribed, painted or affixed at Tenant's expense by a
person approved by Landlord, which approval will not be unreasonably withheld.
4. Freight. Landlord reserves the right to prescribe the weigh, size
and position of all equipment, materials, furniture or other property brought
into the Building. Landlord reserves the right to require that heavy objects
will stand on wood strips of such length and thickness as is necessary to
properly distribute weight. Landlord will not be responsible for loss of or
damage to any such property from any cause, and Tenant will be liable for all
damage or injuries caused by moving such property.
5. Electrical Installations. Landlord will direct Tenant's electricians
as to where and how telephone, telegraph and electrical wires are to be
installed. No boring or cutting from wires will be allowed without the prior
written consent of Landlord. The location of burglar alarms, smoke detectors,
telephone, call boxes and other office equipment affixed to the premises shall
be subject to the written approval of Landlord.
6. Building Closing Procedures. Tenant will see that the doors of the
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant or its employees leave the Premises, so as
to prevent waste or damage Tenant will be liable for all damage or injuries
sustained by other tenants or occupants of the Building or Landlord resulting
from Tenant's carelessness in this regard or violation of this rule. Tenant will
keep the doors to the Building closed at all times except for ingress and
egress.
7. Plumbing Facilities. The toilet rooms, toilets, urinals, wash bowls
and other apparatus shall not be used for purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
disposed of therein. Tenant will be liable for any breakage, stoppage or damage
resulting from the violation of this rule by Tenant, its employees or invitees.
8. Refuse. Tenant will store all its trash and garbage within the
Premises or in designated dumpsters or trash receptacles provided by Landlord in
the Common Areas. No material will be placed in the dumpsters or receptacles if
such material may not be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage in Salt Lake City without being in
violation of any law or ordinance governing such disposal. All trash and garbage
removal will be only through the Common Areas provided for such purposes and at
such times as Landlord may designate.
9. Soliciting. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building and Common Areas are
prohibited, and Tenant will cooperate to prevent the same.
10. Parking. Tenant will use, and will cause its agents, employees,
contractors, invitees and visitors to use, the parking spaces to which it is
entitled under the Lease in a manner consistent with Landlord's directional
signs and markings in the parking areas. Specifically, but without limitations,
Tenant will not park, in a manner that impedes access to and from the Building
or the parking areas or that violates space reservations for handicapped
drivers. Landlord may use such reasonable means as may be necessary to enforce
the directional signs and markings in the parking areas, including but not
limited to towing services, and Landlord will not be liable for any damage to
vehicles towed as a result of non-compliance with such parking regulations.
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11. Fires, Security and Safety-Regulations. Tenant will comply with all
safety, security, fire protection and evacuation measures and procedures
established by Landlord or any governmental agency.
12. Responsibility for Theft. Tenant assumes any and all responsibility
for protecting the Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises closed.
13. Sales and Auctions. Tenant will not display or sell merchandise
outside the exterior walls and doorways of the Premises nor use such areas for
storage. Tenant will not install any exterior lighting, amplifiers or similar
devices or use in or about the premises any advertising medium which may be
heard or seen outside the Premises, including flashing lights, searchlights,
loudspeakers, phonographs or radio broadcasts. Tenant will not conduct or permit
to be conducted any sale by auction in, upon or from the Premises or elsewhere
in the Project, whether auction be voluntary, involuntary, pursuant to any
assignment for the payment of creditors or pursuant to any bankruptcy or other
insolvency proceeding.
14. Enforcement. Landlord may waive any one or more of these Rules for
the benefit of a particular tenant or tenants, but no such waiver by Landlord
will be construed as a waiver of such Rules in favor of any other tenant or
tenants nor prevent Landlord from enforcing or waiving these Rules with regard
to any other tenant or tenants.
15. Effect on Lease. These Rules are in addition to, shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Violation of these Rules
constitutes a default under the Lease.
16. Additional and Amended Rules. Landlord reserves the right to
rescind or amend these Rules and/or adopt any other and reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Project and for the preservation of good order
therein.
17. No portion of the Project shall be used for lodging purposes.
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