LEASE BETWEEN
WordCruncher Internet Technologies Inc. (W.C.T.I.)
AND
SLT III, LLC, a Utah limited liability company
at 405 East 12450 South Suite H,
Draper, Utah, 84020
FOR SPACE AT
TOWN SQUARE
PROFESSIONAL PLAZA, BLDG. II
405 East 12450 South Suite B
DRAPER, UT 84020
December 24, 1998
DATE
TABLE OF CONTENTS
ARTICLE PAGE
1 DEFINITIONS AND ENUMERATION OF EXHIBITS 3
2 CONSTRUCTION AND ACCEPTANCE OF LEASED PREMISES 4
3 RENT 5
4 COMMON AREAS 6
5 SECURITY DEPOSIT 7
6 USE AND CARE OF LEASED PREMISES 7
7 TENANT'S COVENANT 8
8 MAINTENANCE AND REPAIR OF LEASED PREMISES,
ALTERATIONS AND LANDLORDS RIGHT OF ACCESS 8
9 SIGNS, STORE FRONTS AND ROOF 9
10 UTILITIES 10
11 INDEMNITY AND NON-LIABILITY 10
12 INSURANCE 10
13 DAMAGE BY CASUALTY 12
14 EMINENT DOMAIN 12
15 ASSIGNMENT AND SUBLETT1NG 13
16 TAXES 14
17 DEFAULTS AND REMEDIES 14
18 HOLDING OVER EXPIRATION OR TERMINATION 17
19 SUBORDINATION 17
20 MISCELLANEOUS 18
LIST OF SCHEDULES
1 EXHIBIT "A" SITE PLAN
2 EXHIBIT "B" DESCRIPTION OF LANDLORDS WORK
3 EXHIBIT "C" TENANT'S WORK
4 EXHIBIT "D" SIGN CRITERIA
5 EXHIBIT "E" Deleted
6 EXHIBIT "F" Deleted
7 EXHIBIT "G" COMMENCEMENT DATE CERTIFICATE (Sign at Oupancy)
LEASE
This lease made, December 24, 1998, between
SLT, III, a Utah Limited Liability Company, at 405 East 12450 South Suite H,
Draper, Utah 84020, referred to as ("Landlord"),
and
WordCruncher Internet Technologies Inc.,405 E. 12450 So, Ste. B, Draper, Ut.
84020, referred to as ("Tenant")
RECITALS
In consideration of the obligation of Tenant to pay rent as herein provided
and in consideration of the other terms, covenants, and conditions hereof,
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord, the
Leased Premises, as defined in Section 1. 1 (b), for the term at the rental,
and subject to and upon all of the terms and conditions set forth below:
ARTICLE ONE
Definitions and Enumeration of Exhibits
1.1 In addition to other terms which are elsewhere defined in this Lease,
the following terms when used in the Lease shall have the meanings set forth
in this Section, and only such meanings, unless such meanings are expressly
limited or expanded elsewhere herein.
(a) Office Building: Town Square Professional Plaza Phase N,("Building"),
situated in Draper City, County of Salt Lake, State of Utah, which as of the
date hereof is as shown on Exhibit "A".
(b) The Leased Premises: That portion of Building which is shown as the
crosshatched area on Exhibit "A". The Leased Premises are deemed to contain
3994 square feet of Gross Rentable Area ("Tenants Square Footage"), but
reserving and excepting to Landlord the use of the roof and exterior walls and
beneath the floor of the Leased Premises and the right to install, maintain,
use repair, and replace pipes, ducts, conduits, wires, and appurtenant
fixtures, leading through the Leased Premises in locations which will not
materially interfere with the Tenants use thereof. Total Square Footage of
the Building shall mean 24,960 square feet of Gross Rentable Area. Space
Designated Ste. B & C, shall have useable square footage of 3,600 square
feet which shall consist of the net square feet from the outside of the
exterior walls within the designated leased premises exclusive of any common
areas in the Building.
(c) Ready For Occupancy: When Landlords Work on the Leased Premises as
described in Exhibit "B", hereto attached, has been substantially completed
(except for minor finishing operations or items necessarily awaiting
performance of Tenants Work).
(d) Rental Commencement Date: Either (i) March 15, 1999 provided the Leased
Premises are ready for occupancy or by the Scheduled Completion Date, or (ii)
sixty (60) days following the date on which the Leased Premises are Ready for
Occupancy.
(e) Lease Term or Term: 38 months Lease Years, as hereinafter defined. This
Lease shall terminate on the last day of the calendar month in which such date
falls. Landlord and Tenant agree that upon the demand of the other they shall
execute a document establishing the date on which the Term commenced as soon
as such date has been established in Exhibit "G".
Termination Date: March 31, 2002.
(f) Scheduled Completion Date/Scheduled Lease Commencement Date: January 15,
1999.
(g) Base Rent: $44,932.50 ($11.25 per square foot of Tenants Gross Rentable
Area Square Footage) per year, payable in monthly installments of $3,744.38
plus applicable sales tax, if any; the total Base Rent payable over the
entire Lease Term is $136,669.87 (this does not reflect annual increases) .
Base Rent Adjustment Date shall mean the first day of April, in each year of
the Lease Term commencing 2000.
(h) DELETED
(i) Advance Deposit: $5,075.71 applied as first month's rent and CAM fee.
(j) Security Deposit: $5,075.71 equal to (1) months base rental amount and CAM
fee.
(k) Tenant's Trade Name: WordCruncher Internet Technologies Inc. ("WCTI")
(l) Tenant's Work: Those items set forth in Exhibit "C" to be performed by
Tenant.
3
(m) Landlord's Work: Those items set forth in Exhibit "B"
(n) Landlord's Mailing Address: SLT, III, a Utah Limited Liability Company,
405 East 12450 South Suite H, Draper, Utah, 84020, or such other address as
may from time to time be designated by Landlord in a written notice to Tenant.
(o) Tenant's Mailing Address: 405 E. 12450 So. Ste. B Draper Utah 84020
---------------------------------------------
street city state zip code
(p) Use of Leased Premises. The Leased Premises may be used only for general
business office (provided that Landlord make no representation or warranty
that such use is permitted under applicable law), and for no other purpose.
(q) Common Areas: Those areas of the Building which are from time to time open
for joint use by tenants of the Building or by the public including, without
limiting the generality of the foregoing, parking areas, driveways, security
areas, truckways, delivery passages, walkways, concourses, planted areas,
landscaped areas, and public restrooms, break rooms, mechanical room, common
truck loading and receiving areas which are not leased to or reserved for
individual tenants based upon a (%) percentage of Tenant's gross square
footage. Common Area Maintenance Fee ("CAM"): $1,331.33. An estimated
monthly amount based on $4.00 per square foot of gross rentable area. This
amount will not increase in an amount more then 5% annually.
(r) Gross Rentable Area: In consideration of the Base Rent and the provisions
of this Lease, Landlord leases to Tenant and Tenant accepts from Landlord the
Leased Premises. Tenant's Square Footage is a stipulated amount based on
Landlord's method of determining Total Gross Squire Footage for rental
purposes and may not reflect the actual amount of useable floor space
available for Tenant's use.
(s) Liability Insurance Limits: Tenant shall, at its own expense, procure and
maintain during the Lease Term comprehensive general liability insurance with
respect to the Leased Premises and Tenant's activities in the Leased Premises,
providing bodily injury, broad form property damage with a maximum $ 1,000
deductible, as follows:
(1) $1,000,000 with respect to bodily injury or death to any one
person.
(2) $2,000,000 with respect to bodily injury or death arising out
of any one occurrence.
(3) $1,000,000 with respect to property damage or other loss arising
out of any one occurrence.
(4) fire and extended casualty insurance covering Tenant's trade
fixtures, merchandise and other personal property in an amount not less than
100% of their actual replacement cost, and
(5) worker's compensation insurance in it least the statutory
amounts.
(t) Occupancy Date: In the event that the Occupancy Date of this Lease
precedes the Rental Commencement Date, the parties hereto agree to be bound by
all the terms and provisions hereof, with the exception of Tenant's obligation
to pay rent, as of the Occupancy Date. The foregoing shall in no way affect
the obligations of the parties under all terms and conditions of the Lease as
of the Rental Commencement Date.
(u) Tenant means each person executing this Lease as a Tenant under this
Lease. If more than one person is set forth on the signature line as Tenant,
their liability under this Lease share be joint and several. If more than one
Tenant exists, any notice required or permitted by the terms of this Lease may
be given by or to any one Tenant, and shall have the same force and effect as
if given by or to all persons comprising Tenant.
(v) Tenant's Percentage of Operating Expenses means 16.0% percent, which is
the result obtained by dividing the gross rentable square feet of the Leased
Premises by the gross rentable square feet of all Premises within the Building
as reasonably determined by Landlord. Throughout this agreement, the term
"Operating Expenses" is used synonymously with, but not in addition to "Common
Area Maintenance Fees or CAM".
(w) Tenants Federal ID # 84-137O59O
1.2 The exhibits enumerated in this Section (if used) and attached to this
Lease are incorporated in this Lease by this reference and are to be construed
as a part of this Lease.
(a) Exhibit "A" Site Plan
(b) Exhibit "B" Landlord's Work
(c) Exhibit "C" Tenant's Work
(d) Exhibit "D" Sign Criteria
(e) Exhibit "E" Deleted
(f) Exhibit "F" Deleted
(g) Exhibit "G" Commencement Date Certificate
ARTICLE TWO
Construction and Acceptance of Leased Premises
2.1 Landlord's Work. Landlord agrees that it will complete Landlord's Work
as defined on Exhibit "B" with such minor variations as Landlord may deem
advisable. Tenant shall have no right to enter or occupy the Leased Premises
until the Leased Premises are Ready for Occupancy. If Landlord shall for any
reason fail to complete that part of Landlord's Work which is required in the
Leased Premises prior to the Scheduled Completion Date, Landlord shall not
be deemed to be in default hereunder or otherwise liable for damages to Tenant
nor shall the Term or any provision of the Lease be affected, other then the
Lease Commencement Date and the Rental Commencement Date. Should Landlord
fail to complete Landlord's Work and deliver possession of the Leased Premises
to Tenant within one month of the date hereof, either party may terminate this
Lease by written notice to the other party. In such event, Landlord shall
return Tenant's Advance Deposit and Security Deposit and this Lease shall be
null and void and the parties shall have no liability to each other.
2.2 Tenant's Work. Tenant agrees to submit to Landlord within thirty (30)
days after the date of the Lease, plans and specifications in such detail as
Landlord may reasonably request covering Tenant's Work (Tenant finish on
leased premises) as specified in Exhibit "C", and any other work which Tenant
proposes to do in the Leased Premises. Such plans and specifications shall
comply with all requirements set forth in Exhibit "B". Tenant shall not
commence any work in the Leased Premises until Landlord has approved such
plans and specifications in writing, which approval shall not be unreasonably
withheld or delayed.
2.3 Occupancy. When the Leased Premises are Ready for Occupancy, Tenant
agrees to accept possession thereof and to proceed with due diligence to
perform Tenant's Work as described in Tenants approved plans and
specifications, and to install its fixtures, furniture and equipment in the
Leased Premises. By occupying the Leased Premises, Tenant shall be deemed to
have acknowledged that the Landlord has complied with all of its covenants and
obligations with respect to the construction of the Leased Premises except for
latent defects of which Tenant advises Landlord within one (1) year of the
date of delivery of the Leased Premises to Tenant. In the event of any
dispute concerning work performed or required to be performed in the Leased
Premises by Landlord or Tenant, the matter in dispute shall be submitted to
Landlord's architect for determination and his certificate with respect
thereto shall be binding on Landlord and Tenant.
2.4 Parking. Landlord may, from time to time, change, alter and expand the
buildings, and/or the Common Areas then existing around the Buildings and/or
the Common Areas to be constructed, in the Building, provided that in no
event shall there be provided less than the minimum parking facilities as set
forth in Section 4.1 hereof, or required by the municipality regulations.
2.5 Notices. Any notice or other communication required or permitted to be
given under this Lease must be in writing and shall be effectively given or
delivered if hand delivered to the addresses for Landlord and Tenant stated
below, or if sent by certified United States Mail, return receipt requested,
to said addresses. Notice effected by hand delivery shall be deemed to have
been received at the time of actual delivery. Any notice mailed shall be
deemed to have been received upon the earlier of (a) actual receipt, (b)
refusal thereof, or (c) three (3) days after mailing of same. Either party
shall have the right to change its address to which notices shall thereafter
be sent and the party to whose attention such notice shall be delivered by
giving the other party notice thereof in accordance with the provisions of
this Paragraph 20. 1. Until such time as either party shall change its address
for notices, notices shall be forwarded as follows:
To Landlord: SLT III, LLC
405 East 12450 South Suite H
Draper, UT 84020
ATTN: Stephen L. Tripp
To Tenant: WordCruncher Internet Technologies, Inc. ("WCTI")
405 East 12450 South Suite B
Draper, UT 84020
ARTICLE THREE
Rent
3.1 Place of Payment. Rental and other charges due and payable hereunder
shall accrue hereunder from the Rental Commencement Date until the termination
of the Lease and shall be payable in advance, without demand, deduction or
set-off at Landlord's mailing address or at such place as Landlord may
designate.
3.2 Date of Payment. Tenant covenants and agrees to pay to Landlord the
Base Rent in twelve (12) equal monthly installments. The first such monthly
installment shall be due and payable on or before the Rental Commencement Date
(except that if the Rental Commencement Date falls on a day other than the
first day of a calendar month, the first payment shall be an amount equal to
that percentage of a monthly installment which the number of days from the
Rental Commencement Date to the end of such calendar month bears to the total
number of days in such month).
3.3 Annual Increase. On the annual anniversary date of the lease period,
the landlord shall be entitled to increase the base rent (2%) of the prior
(12) month period lease payment, which shall be added to the monthly base rent
and paid on a monthly basis at the same time as is required for the base rent.
ARTICLE FOUR
Common Areas
4.1 Parking. Landlord agrees that it will maintain parking
facilities adjacent to the Building or in reasonable proximity thereto, which
shall contain at all times after Tenant has opened the Premises to the public
for business adequate parking spaces, provided, however, that if a portion or
portions of the parking area shall be taken for any public or quasi-public use
under any governmental law, ordinance or regulation or by right of eminent
domain or by private purchase under threat thereof, Landlord shall be relieved
of its obligations to provide parking facilities in accordance with this
Section to the extent that such parking facilities cannot be provided without
unreasonable expense, or in reasonable proximity to the Building.
4.2 Use. Tenant, and its licensees, concessionaires, employees and
customers shall have the non-exclusive right to use the Common Areas as
constituted from time to time, such use to be in common with Landlord, other
tenants of the Building and other persons entitled to use the Common Areas,
subject to such reasonable rules and regulations as Landlord may from time to
time prescribe. Tenant shall not interfere with the rights of other persons
to use the Common Areas. Landlord may temporarily close any part of the
parking facilities or other portions of the Common Areas for such period of
time as may be necessary for (i) temporary use as a work area in connection
with the construction, repairs or building maintenance of buildings or other
improvements within the or contiguous property, (ii) repairs or alterations in
or to the Common Areas or to any sewers, utility facilities or distribution
lines located with the Common Areas, (iii) preventing the public from
obtaining prescriptive rights in or to the Common Areas, (iv) security reasons
or (v) doing and performing such other acts (whether similar or dissimilar to
the foregoing) in, to and with respect to, the Common Areas as in the use of
good business judgment the Landlord shall determine to be appropriate for the
Building, provided however, that Landlord shall use reasonable efforts not to
unduly interfere with or disrupt Tenant's business.
4.3 Common Area Maintenance Costs. Tenant agrees to pay as
additional rent, as herein provided and described in subparagraphs 1.1q and
1.1v, its proportionate share of expense incurred by Landlord at its
discretion for the operation and maintenance of the above Building,
("Operating Expenses"), including without limiting the generality of the
foregoing, costs, if any, incurred for lighting, painting, cleaning, Quarterly
HVAC maintenance, central trash disposal, traffic control, policing, licenses,
permits, inspecting, removal of snow and ice, landscaping, activities,
management services, administrative services, including, without limitation,
labor and personnel, and in general, all costs labor, materials supplies,
equipment and tools required for maintaining, repairing and replacing the
Common Areas, costs expanded by the Landlord to place and keep the Landlord's
property in compliance with all future governmental regulations, or any part
thereof together with a reasonable allowance for Landlord's direct overhead,
depreciation of maintenance equipment, hazard and public liability insurance
and property damage insurance, the costs, expenses and fees of the following
real and personal property taxes and assessments (and any tax levied in whole
or in part in lieu of or in addition to such taxes and assessments), rent and
gross receipts, taxes, or other person under a common maintenance regime
(janitorial), all water, electricity, natural gas, sewer use consumed in the
Building which is not separately metered to tenants (single or multiple) but
excluding depreciation of Landlord's original investment in the Building,
legal services, real estate brokerage and lease commissions, Landlord's income
taxes, income tax accounting, interest, general corporate overhead or capital
improvements to the Building except for capital improvements installed for
file purpose of reducing or controlling expenses. If any expense, though paid
in one year, relates to more than one calendar year, at option of Landlord,
such expense may be proportionately allocated among such related calendar
years. Tenant shall have sole responsibility for and shall pay when due all
taxes, assessments, charges and fees levied by any governmental or quasi-
governmental authority on Tenant's use of the Leased Premises or any leasehold
improvements, personal property or fixtures kept or installed in the Leased
Premises by Tenant. If any of Tenant's leasehold improvements, personal
property or fixtures are assessed and taxed with the Building, Tenant shall
within ten (10) days after delivery to Tenant of a written statement setting
forth the amount of taxes applicable to Tenant's leasehold improvements,
personal property or fixtures, pay such amounts to Landlord, pertaining to the
percentage of the premises occupied by the tenant. In addition to the
excluded Common Area Maintenance Costs cited above, the following expense
items are also excluded: mortgage payments, expenses incurred to the sole
benefit of (or arising from) other tenants in the complex, including but not
limited to: a) the leasing of other portions of the complex; b) rent
collection from other tenants of the complex; c) litigation, property damage,
building additions and/or modifications to the sole benefit (or arising from)
other tenants of the complex. Landlord agrees to use best efforts to minimize
the Common Area Maintenance costs while complying with Landlord's
responsibilities in a competent and professional manner. Upon written request
by Tenant, Landlord agrees to furnish reasonable documentation of CAM fee
calculations.
Each of the following words and phrases shall have the meaning set forth:
(a) "Operating Year" means each calendar year ending during the Term and the
calendar year ending on or immediately following the last day of the Term.
(b) "Operating Expenses" means collectively, all reasonable costs, expenses
and fees incurred or payable by Landlord in connection with the Lease and the
ownership, operation, management, maintenance and repair of the Building,
determined in accordance with the reasonable accounting procedures and
business practices customarily employed by Landlord, including, without
limitation, those costs listed above in this Paragraph 4.3.
(c) "Estimated Operating Expenses" means the projected amount of Operating
Expenses for any given Operating Year as estimated by Landlord in Landlord's
reasonable discretion.
(d) "Tenant's Estimated Share of Operating Expenses" means the result obtained
by multiplying Tenant's Percentage of Operating Expenses by the Estimated
Operating Expenses. Tenant's Estimated Share of Operating Expenses for any
fractional Operating Year shall be calculated by determining Tenant's
Estimated Share of Operating Expenses to the such fractional Operating Year.
(e) "Tenant's Share of Operating Expenses" means the result obtained by
multiplying Tenant's Percentage of Operating Tenant's Share of Operating
Expenses for any fractional Operating Year shall be calculated by determining
Tenant's Share of Operating Expenses for the relevant Operating Year and then
prorating such amount over such fractional Operating Year.
Tenant's proportionate share of Operating Expenses shall be computed by
multiplying Operating Expenses by a fraction, the numerator of which shall be
the number of square feet of Gross Rentable area of the Leased Premises and
the denominator of which shall be the number of square feet of Gross Rentable
Area within the building. In additional to the Base Rent, Tenant covenants to
pay to Landlord without abatement, deduction, offset, prior notice (except as
provided in this Paragraph 4.3) or demand Tenant's Share of Operating Expenses
in lawful money of the United States at such place as Landlord may designate
in accordance with the provisions of this Paragraph 4.3, in advance on or
before the first day of each calendar month during the Term, commencing on the
Commencement Date and prior to each Operating Year after the Commencement
Date. If reasonably practicable, Landlord shall furnish Tenant with a written
statement (the "Estimated Operating Expenses Statement") showing in reasonable
detail the computation of Tenant's Estimated Share of Operating Expenses. On
or prior to the Commencement Date, and on the first day of each month
following the Commencement Date, Tenant shall pay to Landlord one-twelfth
(1/12th) of Tenant's Estimated Share of Operating Expenses as specified in the
Estimated Operating Expenses as specified in the Estimated Operating Expenses
Statement for such Operating Year. If Landlord fails to give Tenant an
Estimated Operating Expenses Statement prior to any Operating Year, Tenant
shall continue to pay on the basis of the Estimated Operating Expenses
Statement for the prior Operating Year until the Estimated Operating Expenses
Statement for the current Operating Year is received. If at any time it
appears to Landlord that the Operating Expenses will vary from Landlord's
original estimate, Landlord may deliver to Tenant a revised Estimated
Operating Expenses Statement for such Operating Year, and subsequent payments
by Tenant for such Operating Year shall be based on such revised statement.
Within a reasonable time after the expiration of any Operating Year, and
subsequent payments by Tenant for such Operating Year, Landlord shall furnish
Tenant with a written statement (the "Actual Operating Expenses Statement")
showing in reasonable detail the computation of Tenant's Share of Operating
Expenses for such Operating Year and the amount by which such amount exceeds
or is less than the amounts paid by Tenant during such Operating Year. If the
Actual Operating Expenses Statement indicates that the amount actually paid by
Tenant for the relevant Operating Year is less than Tenant's Share of
Operating Expenses for such Operating Year, Tenant shall pay to Landlord such
deficit within thirty (30) days after delivery of the Actual Operating
Expenses Statement. Such payments by Tenant shall be made notwithstanding
that the Actual Operating Expenses Statement is furnished to Tenant or within
three (3) months of terminating this lease. If the Actual Operating Expenses
Statement indicates that the amount actually paid by Tenant for the relevant
Operating Year exceeds Tenant's Share of Operating Expenses to such Operating
Year, such excess shall be applied against any amount then payable or to
become payable by Tenant under this Lease. No failure by Landlord to require
the payment of Tenant's Share of Operating Expenses for any period shall
constitute a waiver of Landlord's right to collect such amount for such period
or for any subsequent period. Nothing contained in this paragraph shall be
constructed so as to reduce the Base Rent.
Every statement given to Tenant by Landlord under this Lease, including,
without limitation, any statement given Tenant pursuant to Paragraph 4.3,
shall be conclusive and binding on Tenant unless within forty-five (45) days
after the receipt of such statement, Tenant notifies Landlord that Tenant
disputes the correctness of such statement, specifying the particular respects
in which the statement is claimed to be incorrect. Pending the determination
of such dispute by agreement between Landlord and Tenant, Tenant shall within
thirty (30) days after receipt of such statement, pay the amounts set forth in
such statement in accordance with such statement and such payment shall be
without prejudice to Tenant's position. If such dispute exists and it is
subsequently determined that Tenant has paid amounts in excess of those then
due and payable under this Lease, Landlord, at Landlord's option, shall either
apply such excess to an amount to become payable under this Lease or return
such excess to Tenant. Landlord shall grant to an independent certified
public accountant retained by Tenant reasonable access to Landlord's books and
records for the purpose of verifying Operating Expenses incurred by Landlord
at Tenant's expense.
ARTICLE FIVE
Security Deposit
5.1 Payment and Refund. On the date of Signing this Lease, Tenant shall
deposit with Landlord the Security Deposit as security for the faithful
performance by Tenant under this Lease. The Security Deposit shall be
returned (without interest) to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest under this Lease) after the expiration of the
Term or earlier termination of this Lease and delivery of possession of the
Leased Premises to Landlord in accordance with Paragraph 18.2 if, at such
time, Tenant is not in default under the Lease. If Landlord's interest in the
Lease is conveyed, transferred or assigned, Landlord shall transfer or credit
the Security Deposit to Landlord's successor in interest, and Landlord shall
be released from any liability for the return of the Security Deposit.
Landlord may intermingle the Security Deposit with Landlord's own funds, and
shall not be deemed to be a trustee of the Security Deposit. If Tenant fails
to timely pay or perform any obligation under this Lease, Landlord may, prior
to, concurrently with or subsequent to, exercising any other right or remedy,
use, apply or retain all or any part of the Security Deposit for the payment
of any monetary obligation due under this Lease, or to compensate Landlord for
any other expenses, loss or damage which Landlord may incur by reason of
Tenant's failure, including any damage or deficiency in the reletting of the
Leased Premises. If all or any portion of the Security Deposit is so used,
applied or retained, Tenant shall immediately deposit with Landlord cash in an
amount sufficient to restore the Security Deposit to the original amount.
Landlord may withhold the Security Deposit after the expiration of the Term or
earlier termination of the Lease until Tenant has paid in full Tenant's Share
of Operating Expenses for the Operating Year in which such expiration or
earlier termination occurs. The Security Deposit is not a limitation on
Landlord's damages or other rights under this Lease, a payment liquidated
damages or prepaid rent and shall not be applied by Tenant to the rent for the
last (or any) month of the Term, or to any other amount due under this Lease.
If this Lease is terminated due to any default of Tenant, any portion of the
Security Deposit remaining at the time of such termination shall immediately
inure to the benefit of Landlord as partial compensation for the costs and
expenses incurred by Landlord in connection with this Lease and shall be in
addition to any other damages to which Landlord is otherwise entitled.
ARTICLE SIX
Use and Care of Leased Premises
6.1 Use. Tenant shall in good faith continuously throughout the Term of
this Lease conduct and carry on in the entire Leased Premises the type of
business described in Section 1.1 (p) and the Leased Premises shall not be
used for any other purpose. Tenant shall use Tenant's Trade Name in the
transaction of business in the Leased Premises. Tenant shall not sell,
display or solicit sales in the Common Areas. Tenant shall not use or permit
the use of any vending machines or public telephones on, at, or about the
Leased Premises except any located in nonpublic areas for the benefit of
Tenant's employees, without the prior written consent of Landlord. Tenant
shall not commit waste, perform any acts or carry on any practices which may
injure the Building or be a nuisance or menace to other tenants in the
Building.
6.2 Compliance With Law. In the use and occupancy of the Leased Premises,
Tenant shall comply with all laws and ordinances and all valid rules and
regulations of the United States; all governmental units or agencies having
jurisdiction and any other applicable government or agency thereof and all
requirements of any public or private agency having authority over insurance
rates
6.3 Temperature. Tenant shall at all times keep the Leased Premises at a
temperature sufficiently high to prevent freezing of water pipes and fixtures.
6.4 Hazardous Materials. Tenant agrees that Tenant, its agents and
contractors, licensees, or invitees shall not handle, use, manufacture, store
or dispose of any flammables, explosives, radioactive materials, hazardous
wastes or materials, toxic wastes or materials, or other similar substances,
petroleum products or derivatives (collectively "Hazardous Materials") on,
under, or about the Leased Premises, without Landlord's prior written consent
(which consent may be given or withheld in Landlord's sole discretion),
provided that Tenant may handle, store, use or dispose of products containing
small quantities of Hazardous Materials, which products are of a type
customarily found in offices and households (such is aerosol cans containing
insecticides, toner for copies, paints, paint remover, and the like), provided
further that Tenant shall handle, store, use and dispose of any such Hazardous
Materials in a safe and lawful manner and shall not allow such Hazardous
Materials to contaminate the Leased Premises or the environment.
6.5 Hold Harmless. Without Limiting the above, Tenant shall reimburse,
defend, indemnifv and hold Landlord harmless from and against any and all
claims, losses, liabilities, damages, costs and expenses, including without
limitation, loss of rental income, loss due to business interruption, and
attorneys' fees and costs, arising out of or in any way connected with the
use, manufacture, storage, or disposal of Hazardous Materials by Tenant, its
agents or contractors on, under or about the Leased Premises, including
without limitation the costs of any required or necessary investigation,
repair, cleanup or detoxification and the preparation of any closure or other
required plans in connection herewith, whether voluntary or compelled by
governmental authority. The indemnity obligations of Tenant under this clause
shall survive any termination of the Lease.
6.6 Third Parties. Notwithstanding anything set forth in this Lease,
Tenant's obligation under Paragraph 6.5 shall apply only to hazardous
Materials brought on the Leased Premises by Tenant or the agents or
contractors during the Lease Term and during any other period of time during
which Tenant is in actual or constructive possession of the Leased Premises.
Tenant shall take reasonable precautions to prevent the contamination of the
Leased Premises with Hazardous Materials by third parties.
ARTICLE SEVEN
Tenant's Covenant
7.1 Conduct of Business. Tenant shall use space as stated in accordance
with Section 1.1 (p).
7.2 Nuisance. Tenant (i) will keep all mechanical apparatus free of
vibration or noise which may be transmitted beyond the confines of the Leased
Premises; (ii) will not cause or permit odors to eliminate from the Leased
Premises; (iii) will not load or unload or permit the loading or unloading of
merchandise, supplies or other property except within the area designated by
Landlord from time to time; and (iv) will not permit the parking or standing
outside of such designated area, of trucks, trailers or other vehicles or
equipment engaged in such loading or unloading; (v) Tenant has the right to
ship small to medium freight from the Leased Premises via overnight carriers.
7.3 Cleanliness. Tenant (i) will keep clean the inside and pay through the
Cam Fee for all cleaning of outside glass in the doors and windows of the
Leased Premises; (ii) will replace promptly at its own expense with glass of
like kind and quality any plate or window glass that is broken by the Tenant,
Tenant's permitted assignees, sublessees, customers, invitees, employees
licensees or concessionaires; (iii) will replace doors or door hardware of the
Leased Premises which may become cracked or broken as a result of misuse or
abuse by the Tenant, Tenant's permitted assignees, sublessees, customers,
invitees, employees licensees or concessionaires; (iv) will maintain the
Leased Premises in a clean, orderly and sanitary condition and free of
insects, rodents, vermin, and other pests; (v) will not permit undue
accumulation of garbage, trash, rubbish or other refuse in the Leased
Premises; (vi) will keep such refuse in proper containers inside the Leased
Premises until such time as same is called for to be removed, and (vii) will
cause diffusers and grease traps (if any) to be cleaned not less frequently
than monthly and fire extinguisher to be checked not less frequently than
annually.
ARTICLE EIGHT
Maintenance and Repair of Leased Premises,
Alterations and Landlord's Right of Access
8.1 (a) Landlord's Responsibility. Landlord shall keep the foundation,
the roof and the exterior walls of the Leased Premises (except plate glass
doors, door closures, door frames, store fronts, windows and window frames
located in exterior building walls) in good repair, except that Landlord shall
not be required to make any repairs occasioned by the act or neglect of
Tenant, its permitted assignees, sublessees, servants, agents, employees,
licensees, or concessionaires or the servants, agents, employees, licensees,
or concessionaires of Tenants permitted assignees or sublessees or any damage
caused by or as a result of Tenant's occupancy of Leased Premises, or any
damage caused by break-in, burglary, or other similar acts in or to the Leased
Premises. In the event that the Leased Premises shall become in need of
repairs required to be made by Landlord hereunder, Tenant shall give prompt
written notice thereof to Landlord, and Landlord shall not be responsible in
any way for failure to make any such repairs until a reasonable time shall
have elapsed after the giving of such written notice.
(b) Landlord's Responsibility (covered under "CAM") Landlord shall
at its sole cost and expense and discretion of the CAM fee, keep the Leased
Premises in a safe, sightly, and serviceable condition, and hereof, make all
needed maintenance, repairs. ,and replacements for the proper operation of
Tenant's business within the leased Premises, including, but not limited to,
all maintenance, repairs, and replacements to (i) the heating, ventilating,
and air conditioning system serving the Leased Premises; (ii) the exterior
portion of all doors, windows, window frames, plate glass, door closures, door
frames, and store fronts; (iii) all plumbing and sewage facilities within the
Leased Premises, including free flow up to the connection to the main sewer
line; (iv) all electrical systems serving the Leased Premises (whether or not
located within the Leased Premises); (v) all sprinkler systems serving the
Leased Premises; (vi) all repairs, replacements, or alterations required by
any governmental authority (including, but not limited to), alterations as
shall be required for compliance with the Americans with Disabilities Act of
1990, as now or hereafter amended, and the rules and regulations from time to
time promulgated thereunder.
8.2 Tenant Responsibility. Tenant shall at its sole cost and expense, keep
the Leased Premises in a safe, sightly, and serviceable condition hereof, make
all needed maintenance, repairs, and replacements for the proper operation of
Tenant's business within the Leased Premises, including, but not limited to,
all maintenance, repairs, and replacements to (i) all trade fixtures within
the Leased Premises; (ii) all interior walls, floors, and ceilings; (iii) any
of Tenant's Work; (iv) all necessary repairs and replacement of Tenant's trade
fixtures required for the proper conduct and operation of Tenant's business.
8.3 Tenant Alterations and Repairs. Tenant shall not make any alterations,
additions, or replacements to the Leased Premises, or any repairs required of
Landlord under Paragraph 8. 1 of this Lease, without the prior written consent
of Landlord, except for Tenant's Work and the installation of unattached
moveable fixtures which may be installed without drilling, cutting, otherwise
defacing the Leased Premises. All alterations, additions and improvements
made in and to the Leased Premises and all floor covering that is cemented or
adhesively fixed to the floor and all fixtures (other than trade fixtures)
which are installed in the Leased Premises shall remain in and be surrendered
with the Leased Premises and shall become the property of Landlord at the
expiration or earlier termination of this Lease. So long as Tenant is not in
default hereunder, Tenant shall have the right to remove its trade fixtures
from the Leased Premises, provided that Tenant shall repair and restore any
damage to the Leased Premises, caused or occasioned by such removal.
8.4 Approval of Work. All Tenants work and all repairs, alterations,
additions and improvements done by Tenant within the Leased Premises shall be
performed in a good and workmanlike manner, in compliance with all
governmental requirements, and at such times and in such manner as will cause
a minimum of interference with other construction in progress and with the
transaction of other Tenants in the Building. Whenever Tenant proposes to do
any construction work within the Leased Premises, Tenant shall first furnish
to Landlord plans and specifications covering such work in such detail as
Landlord may reasonably request. Such plan and specifications shall comply
with such requirements as Landlord may from time to time prescribe to
construction within the Building and shall be in compliance with all
applicable laws and governmental and quasi-governmental rules and regulations,
including without limitation, the Americans with Disabilities Act of 1990, as
now or hereafter amended. In no event shall any construction work be
commenced within the Leased Premises without Landlord's written approval of
such plans and specifications. Landlord's approval shall be conclusively
deemed given unless Landlord objects or comments within thirty (30) days
following tender of said plans and specifications. At least thirty (30) days
prior to the commencement of any approved construction work, Tenant agrees to
deliver or cause to be delivered to Landlord, policies or certificates of
insurance in companies licensed to do business in the state in which the
Building is located, and in a form satisfactory to Landlord, providing public
liability insurance coverage of not less than $2,000,000 single limit
coverage, said policy or policies naming Tenant, its general contractor, all
subcontractors, Landlord and its employees as insured parties and covering any
and all liability arising out of or in any manner connected with the work to
be performed on the Leased Premises by Tenant and additionally Tenant shall
deliver a policy or certificate of insurance evidencing worker's compensation
coverage. All such certificates and policies shall provide that Landlord
shall be given a minimum of thirty (30) days written notice by any insurance
company prior to cancellation, termination or change of any coverage.
8.5 Inspection. Landlord shall have the right, but not the duty, to enter
the Leased Premises at any time for the purpose of inspecting the same, or of
making repairs to the Leased Premises, or of making repairs, alterations, or
additions to adjacent property, or of showing the Leased Premises to lenders
or prospective lenders or to prospective purchaser of tenants with (24) hours
notice, except in the case of emergency. Landlord may place "For Rent" signs
on the windows of the Leased Premises ninety (90) days prior to the expiration
of the Lease.
8.6 Liens. Tenant shall not suffer or permit any materialmen's,
mechanics' artisans' or other liens to be filed or placed or exist against the
land or building or which the Leased Premises are a part, or Tenant's interest
in the Leased Premises by reason of work, services or materials supplied or
claimed to have been supplied to Tenant or anyone holding the Leased Premises
or any part thereof through or under the Tenant, and nothing contained in this
Lease shall be deemed or construed in any way as constituting the consent or
request of Landlord, expressed or implied, to any contractor, subcontractor,
laborer or materialman to the performance of any labor or the furnishing of
any materials for any improvements, alterations or repairs of the Leased
Premises or any part thereof, nor as giving Tenant any right, power or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of a
materialmen's, mechanics' or other lien against the Leased Premises or the
Building. If any such lien should, at any time, be filed, Tenant shall cause
the same to be discharged of record within fifteen (15) days after the date of
filing the same. If Tenant shall fail to discharge such lien within such
period, then, in addition to any other right or remedy of Landlord, Landlord
may, but shall not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such lien by a
deposit in court or by posting a bond. Any amount paid by Landlord by any of
the aforesaid purposes, or for the satisfaction of any other lien not caused
by Landlord, and all reasonable expenses of Landlord in defending any such
action or in procuring the discharge of such lien, shall be deemed additional
rent hereunder and shall be repaid by Tenant to Landlord on demand.
8.7 Landlord Liability. Landlord shall not be liable to Tenant for any
interruption of Tenant's business or inconvenience caused Tenant or Tenant's
permitted assignees, sublessees, customers, invitees, employees, licensees or
concessionaires in the Leased Premises on account of Landlord's performance of
any repair, maintenance or replacement in the Leased Premises or any other
work therein pursuant to Landlord's right or obligations under the Lease. The
Landlord will, however, be liable to the Tenant, if the Landlord, or
Landlord's assignees, agents, employees, licensees, or invitees are guilty of
willful misconduct or are found to be grossly negligent in the interruption of
the Tenant's business or inconvenience caused Tenant or Tenant's permitted
assignees, sublessees, customers, invitees, employees, licensees or
concessionaires.
ARTICLE NINE
SIGNS
9.1 Modifications Prohibited. Tenant shall not (i) paint, decorate or make
any changes to the front of the Leased Premises, (ii) install any exterior
lighting, awning, or protrusions, or any exterior signs, advertising matter,
decorations or painting, (iii) install ,any drapes, blinds, shades or other
coverings on exterior windows and doors, (iv) affix any window or door
lettering, placards, decorations, or advertising media of any type which can
be viewed from the exterior of the Leased Premises, excepting only dignified
displays of customary type. All approved signs or letterings on doors shall
be printed, painted and affixed at the sole cost of Tenant by a person
approved by Landlord, and shall comply with the requirements of the
governmental authorities having jurisdiction over the Building. Tenant shall
at all times keep all signs in good condition, in proper operating order and
in accordance with all applicable government regulations. Landlord may, at
Tenant's cost, and without notice or liability to Tenant, enter the Leased
Premises and remove any item erected in violation of this Paragraph 9. 1.
Landlord may establish rules and regulations governing the size, type and
design of all such items and Tenant shall abide by such rules and regulations.
Use of roof of the Leased Premises is reserved to Landlord, and Landlord may
install upon the roof equipment, signs, antenna, displays, and other objects
and may construct additional space above the Leased Premises, provided any
such use does not unreasonably interfere with Tenant's occupancy of the Leased
Premises.
If Landlord should undertake any remodeling or renovation of the Building,
which requires modification of Tenant's signs, then Tenant shall, if required
by Landlord, conform to the standard Sign Criteria used for such remodeling or
renovation.
ARTICLE TEN
Utilities
10.1 Landlord Provider. Landlord agrees to cause to be provided such
mains, conduits and other facilities necessary to supply electricity, water,
sewer, telephone and gas (if available) to the Leased Premises, in accordance
with and subject to any special provisions contained in Exhibit "B".
10.2 Tenant Responsibility. Tenant shall promptly pay all changes for
telephone furnished to the Leased Premises, including any and all connection
fees, or a portion thereof, attributable to Tenant's use of such services.
Tenant shall pay for all other utilities to the unit through the monthly CAM
assessment.
10.3 Interruption. Landlord shall not be liable in the event of any
interruption in the supply of any utilities. The Landlord will however, be
liable to the Tenant, if the Landlord, or Landlord's assignees, agents,
employees, licensees, or invitees are guilty of misconduct or are found to be
grossly negligent in the interruption of utilities that are provided to the
Tenant's business. Tenant agrees that it will not install any equipment which
will exceed or overload the capacity of any utility facilities serving the
Leased Premises and that if any equipment installed by Tenant shall require
additional utility facilities, the same shall be installed at Tenant's expense
in accordance with plans and specifications to be approved in writing by
Landlord.
10.4 Deleted.
ARTICLE ELEVEN
Indemnity and Non-Liability
11.1 Hold Harmless. Tenant does hereby agree to indemnify and hold
harmless Landlord from and against any and all liability for any injury or the
death of any person or persons or any damage to property in any way arising
out of or connected with the condition, use or occupancy of the Leased
Premises, or in any way arising out of the activities of Tenant, its permitted
assigns or sublessees or of the respective agents, employees, licensees,
concessionaires or invitees of Tenant in the Leased Premises, Common Areas or
other portions of the Building and from all costs, expenses and liabilities,
including but not limited to court costs and reasonable attorney's fees,
incurred by Landlord in connection therewith, excepting however, liability
caused by Landlord, or Landlord's assignees, agents, employees, licensees, or
invitees, gross negligence and or willful misconduct.
11.2 Non-Liability. Tenant covenants and agrees that Landlord shall not
be liable to Tenant for any injury to or death of any person or persons or for
damage to any property of Tenant, or any person claiming through Tenant,
arising out of any accident or occurrence in the Leased Premises or any other
portion of the Building, including, without limiting the generality of the
foregoing, injury, death or damage caused by the Leased Premises or other
portions of the Building becoming out of repair or caused by any defect in or
failure of equipment, pipes, or wiring, or caused by broken glass, or caused
by the backing tip of drains, or caused by gas, water, steam, electricity, or
on leaking, escaping or flowing into the Leased Premises, or caused by fire or
smoke, or caused by the acts of emissions of other tenants of the Building,
excepting however, liability caused by Landlord, or Landlord's assignees,
agents, employees, licensees, or invitees, gross negligence or willful
misconduct.
11.3 Loss. Landlord shall not be responsible or liable at any time for
any loss or damage to Tenant's merchandise, equipment, fixtures or other
personal property or to Tenant's business.
ARTICLE TWELVE
Insurance
12.1 Party. As used in this Article, the term "Insuring party" shall
mean the party who has the obligation to obtain the insurance required
hereunder. Where the insuring party is Tenant, Tenant shall pay the cost of
such insurance directly, where the insuring party is Landlord, such cost shall
be included in the Operating Expenses, unless otherwise provided herein.
12.2 (a) Landlord Responsibility. Landlord, as insuring party, under
this Article, shall obtain and keep in force during the Term of this Lease an
insurance policy or policies of all-risk fire, extended coverage, theft,
vandalism, malicious mischief and other casualty, covering loss or damages to
the Building and the Common Areas, as well as all improvements thereto,
structural improvements to and permanent fixtures in the Leased Premises,
including the heating, air-conditioning and ventilation system originally
installed in the Leased Premises ("HVAC") to the extent of at least eighty
percent (80%) of their replacement cost. Landlord shall not be responsible
for insuring carpeting installed in the Leased Premises. Landlord shall
provide insurance policy information as reasonably requested by Tenant.
(b) Common Areas. Landlord, as the insuring party under this
Article, shall also obtain and keep in force during the Term of this Lease
such other insurance in such amounts and with such policy provisions as if
shall deem necessary or appropriate, including without limitation, the
following: Comprehensive commercial general liability insurance pertaining to
the Building death and property damage arising or occurring therein, worker's
compensation insurance covering Landlord's personnel, fidelity bonds for
Landlord's personnel; insurance against liability for assault and battery,
defamation and claims of false arrest; and plate glass insurance for glass
exclusively securing the Common Areas or not otherwise payable by particular
tenants.
(c) Reimbursement. Tenant shall reimburse Landlord for any
increase in the cost of any of Landlord's insurance pertaining to the Building
if said increase is caused by or results from Tenant's use or occupancy of the
Leased Premises, the breach of this Lease by Tenant, or the acts, omissions,
or negligence of Tenant, its agents, employees, officers, concessionaires,
licensees, assignees, subtenants, customers, invitees, contractors or
subcontractors.
12.3 Tenant's Responsibility. Tenant shall, at Tenant's sole cost and
expense, obtain and maintain in force during the Term of this Lease the
following insurance coverage with respect to the insurable losses contemplated
by this section, insuring Landlord, Tenant and any lender of record
encumbering the Leased Premises.
(a) All Risk. Against fire, extended coverage, vandalism,
numerous mischief perils, and standard "all risk" protection with replacement
cost endorsement on Tenant's personally and trade fixtures in the Leased
Premises including but not limited to carpeting, furnishings, equipment,
excluding HVAC equipment, furniture, inventory, and stock, "all risk"
protection includes, but is not limited to, sprinkler leakage, vandalism and
malicious mischief perils.
(b) Electrical. Coverage under this section shall also extend
to miscellaneous electrical apparatus and all other insurable objects owned or
operated by Tenant or by others (other than Landlord) on behalf of Tenant in
the Leased Premises, or relating to or serving the Leased Premises.
(c) Liability. Against any liability arising out of the
ownership, use, occupancy, operation, or conduct of business from, or
maintenance of, the Premises and all areas appurtenant thereto; such insurance
shall be on an occurrence rather than a claims-made basis and shall be in the
form of a combined single limit comprehensive commercial general liability
insurance policy in an amount as stated in Paragraph 1.1 (s), and to insure
performance by Tenant of the indemnity provisions of the Lease, and to contain
a broad form general liability endorsement, it being further understood and
agreed to by Tenant that reasonable opinion of Landlord, the amount of
liability insurance required hereunder is not adequate; provided, however,
that in no event shall the amount of the liability insurance increase by more
than fifty percent (50%) the amount thereof during the preceding year of the
Term of this Lease, and provided further, the failure of Landlord to require
additional insurance coverage shall not be deemed to relieve Tenant from any
obligations under this Lease.
(d) Interruptions. Business interruption insurance in such
amount as will reimburse Tenant for direct or indirect loss of earnings
attributable to all such perils insured against and cover Tenant's obligation
to the Base Rent, Percentage Rent, and Operating Expenses due Landlord during
said interruption, and,
(e) Worker's Compensation. Worker's compensation insurance in
the statutorily required amounts covering all Tenant's employees working in
the Leased Premises.
12.4 Reimbursement. The limits of Tenant's insurance shall not limit the
liability of Tenant under this Lease. If Tenant shall fail to procure or
maintain any insurance required of Tenant hereunder, Landlord may, at its sole
option, but shall not be required to, procure and maintain the same at the
cost and expense of Tenant, and Tenant agrees to reimburse Landlord for same
as additional rent due hereunder within fifteen (15) days after receiving
notice of the amount thereof from Landlord.
12.5 Standard. All insurance required hereunder shall be by companies
holding a "General Policyholders Rating" of A or better as set forth in the
most current issue of "Best's Insurance Guide". The insuring party shall
deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Landlord. No insurance policy of Tenant shall
be cancelable, non-renewed, or subject to reduction of coverage or other
modification except after thirty (30) days prior written notice to Landlord.
If Tenant is the insuring party, Tenant shall, within fifteen (15) days prior
to the expiration of such policies, furnish Landlord with renewals or
"binders" thereof. Tenant shall not do or permit to be done anything which
shall invalidate the insurance policies Tenant is required to maintain under
this Lease.
12.6 Waiver. All fire and extended coverage insurance carried by Landlord
on Tenant covering losses arising out of destruction of or damage to the
Leased Premises or its contents or to other portions of the Building shall, to
the extent reasonably obtainable, without additional premium, provide for
waiver of subrogation against Landlord, Tenant and other Tenants in the
Building, on the part of the insurance carrier. Should an addition premium be
charged, the party benefitting from said waiver shall reimburse the party
obtaining said waiver for the cost of said additional premium, failing which
there shall be no obligation to obtain the waiver of subrogation otherwise
required hereunder. Evidence of the existence of such waiver will be
furnished by either party to the other party on request.
12.7 Lender Coverage. Notwithstanding any provisions to the contrary
contained in this Lease, the insuring party shall also provide insurance
against damage by such other perils as any party holding a mortgage, deed to
secure debt, deed of trust or other instrument in the nature thereof on the
Building including the Leased Premises, may from time to time require.
12.8 Applicable. If at any time during the Term of this Lease the
insuring party shall have in full force and effect a blanket policy of general
liability insurance and/or property insurance as applicable, which complies
with the requirements described above applicable to such insuring party, as
well as coverage of other premises and properties of the insuring party or in
which the insuring party has some interest, such blanket insurance shall
satisfy the requirements hereof
ARTICLE THIRTEEN
Damage by Casualty
13.1 Notice, Restoration. Tenant shall give immediate written notice to
Landlord of any damage to the Leased Premises caused by fire or other
casualty, and if Landlord does not elect to terminate the Lease as hereinafter
provided, Landlord shall proceed with reasonable diligence and at its sole
cost and expense to rebuild and repair the Leased Premises. Notwithstanding
the foregoing, in the event that (i) the insurance proceeds collected by
Landlord in connection with such damage and destruction shall be insufficient
to make such restoration, (ii) the building in which the Leased Premises are
located shall be destroyed or substantially damaged by casualty not covered by
standard fire or extended coverage insurance, (iii) said building, in which
the Leased Premises are located shall be destroyed or rendered untenantable by
any casualty to the extent of at least fifty percent (50%) of the Gross
Rentable Area of said building, (iv) Landlord shall not have actual and
unconditional receipt of the insurance proceeds payable in connection with
such damage and destruction, (v) the holder of any mortgage deed to secure
debt, deed of trust, or other instrument in the nature thereof which encumbers
Landlord's interest hereunder or in the Leased Premises shall require that
such proceeds shall be applied against any indebtedness owed to such holder,
or (vi) there shall be less than two (2) years remaining in the Term, or any
extension or renewal thereof, then, in any of such events, Landlord may elect
either, to terminate the Lease or to proceed to rebuild and repair the Leased
Premises. Landlord shall give written notice to Tenant of such election
within ninety (90) days after the occurrence of such casualty.
13.2 Liability of Parties. Landlord's obligation to rebuild and repair
the Leased Premises under this Article Thirteen shall in any event be limited
to restoring Landlord's Work to substantially the condition in which the same
existed prior to the casualty and Tenant agrees that promptly after the
completion of such work by Landlord, Tenant will proceed with reasonable
diligence and at its sole cost and expense to restore Tenant's Work to
substantially the condition in which the same existed prior to the casualty.
13.3 Reconstruction. Tenant agrees that during any period of
reconstruction or repair of the Leased Premises, it will continue the
operation of its business within the Leased Premises to the extent
practicable. During the period from the occurrence of a casualty until
Landlord's repairs are completed, the Base Rent shall be reduced and abated in
proportion to the amount of Gross Rentable Area of the Leased Premises which
is tendered untenantable as a result of such casualty, provided, however, that
if such damage or destruction is caused by the intentional or negligent acts
or omissions by Tenant, its permitted assignees, sublessees, servants, agents,
employees, licensees, or concessionaires, or the servants, agents, employees,
licensees, or concessionaires of Tenants permitted assignees or sublessees,
the, and in that event, the Base Rent shall not abate. Tenant shall not be
entitled to and hereby waives, releases, and relinquishes any and all claims
against Landlord, (except for any damage caused by the gross negligence or
willful misconduct of Landlord, or Landlord's assignees, agents, employees,
licensees, or invitees), for any compensation or damage for loss of use of all
or any part of the Leased Premises or for any inconvenience or annoyance
occasioned by any such damage, destruction, repair, or restoration of the
Leased Premises.
13.4 Termination. In the event that fifty percent (50%) or more of the
Gross Rentable Area of the Building shall be destroyed or substantially
damaged by any casualty, notwithstanding that the Leased Premises may be
unaffected by such casualty, Landlord may terminate this Lease by giving to
Tenant thirty (30) days prior written notice of Landlord's election to do so,
which notice shall be given if at all, within ninety (90) days following the
date of said occurrence. Rent shall be adjusted as of the date of such
termination.
ARTICLE FOURTEEN
Eminent Domain
14.1 Termination Upon Taking. If more than ten percent (10%) of the Gross
Rentable Area of the Leased Premises is taken for any public or quasi-public
use under any governmental law, ordinance, or regulation, or by right of
eminent domain, or by private purchase under threat thereof, this Lease shall
terminate upon the election of either party effective on the date possession
of a portion of the Leased Premises is taken by the condemning authority.
14.2 Rent Reduction. If less than ten percent (10%) of the Gross Rentable
Area of the Leased Premises is taken for any public or quasi-public use under
any governmental law, ordinance, or regulation, or by right of eminent domain,
or by private purchase under threat thereof, this Lease shall not terminate,
or if more than ten percent (10%) of the Gross Rentable Area of the Leased
Premises is so taken and the Lease is not terminated in accordance with
Section 13. 1, then in either of such events the Base Rent (but not Percentage
Rental) payable hereunder during the unexpired portion of the Term shall be
reduced by the percentage which the area taken bears to the area of the Leased
Premises prior to the date possession of such portion of the Leased Premises
is taken by the condemning authority.
14.3 Common Area. If any portion of the Common Areas should be taken for
any public or quasi-pubic use under any governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase under threat
thereof, this Lease shall not terminate, nor shall the rent payable hereunder
be reduced, noir shall Tenant be entitled to any part of the award to such
taking, except that either Landlord or Tenant may terminate this Lease if the
area of the Common Areas remaining following such taking, plus any additional
parking area provided within a reasonable time by Landlord in reasonable
proximity to the Building, shall be less than as stated in Paragraph 14. 1. If
Common Areas should be taken under the above stated conditions, and if Common
Area expenses are reduced by such a taking, then the reduction will be passed
on to the 'Tenant as a reduction in CAM fees.
14.4 Notice. Any election to terminate this Lease following condemnation,
shall be evidenced by written notice of termination, delivered to the other
party within thirty (30) days after the date by which both Landlord and Tenant
are notified of such taking or such sale, and, in the event that neither
Landlord nor Tenant shall so exercise such election to terminate the Lease,
then this Lease shall continue in full force and effect.
14.5 Repairs. If this Lease is not terminated following any condemnation,
Landlord shall make all necessary repairs or alterations within the scope of
Landlord's Work, necessary to make the Leased Premises an architectural whole,
and Tenant agrees that promptly after completion of such work by Landlord,
Tenant will proceed with reasonable diligence and at its sole cost and expense
to make all necessary repairs or alterations within the scope of Tenant's work
necessary to make the Leased Premises an architectural whole.
14.6 Compensation. All compensation awarded for any taking (or the
proceeds of private sale under threat thereof), whether for the whole or a
part of the Leased Premises, shall be the property of Landlord, whether such
award is compensation for damage to Landlord's or Tenant's interest in the
Leased Premises, and Tenant hereby assigns all of its interest or any such
award to Landlord, provided, however, Landlord shall have no interest in any
award made to Tenant for loss of business, for the taking of Tenant's fixtures
and personal property within the Leased Premises, or for moving expenses, if a
separate award for such items is made to Tenant.
ARTICLE FIFTEEN
Assignment and Subletting
15.1 Consent Required. Tenant, for itself, its heirs, its
distributees, executors, administrators, legal representatives, successors,
and assigns, covenants that it will not assign, mortgage or encumber the
Lease, nor sublease or permit the Leased Premises or any part of the Leased
Premises to be used or occupied by others, without the prior written consent
of Landlord in such instance. Landlord shall not unreasonably delay or
withhold said approval. Tenant shall give Landlord prior written notice of
the transfer of control or of a majority of the issued and outstanding capital
stock of Tenant. The transfer of outstanding capital stock of any corporate
tenant for purposes of this Article, will not include any sale of such stock
by persons other than those deemed "insiders" within the meaning of the
Securities Exchange Act of 1934 as amended , and which sale is effected
through the "over-the-counter-market" or through any recognized stock
exchange.
15.2 Conditions. Landlord and Tenant hereby agree that the granting of
consent by Landlord shall be preconditioned upon the fulfillment of the
following, and other reasonable, requirements of Landlord.
(a) Landlord shall be provided with at least thirty (30)
days written notice prior to any proposed assignment or subletting.
(b) Tenant shall remain liable under this Lease until
released from obligations of this Lease in writing by the Landlord.
(c) Any proposed assignee or sublessee shall assume in a
writing acceptable to Landlord, all of the obligation of Tenant hereunder.
(d) No use shall be employed in connection with the Leased
Premises other than the permitted use set forth in this Lease.
(e) The Leased Premises shall remain intact. Any
alterations must be approved in writing by the landlord, which approval will
not be unreasonably delayed or withheld.
(f) The use of the Leased Premises by the proposed
subtenant/assignee will not violate or create any potential violation of any
laws, nor will it violate any other agreements affecting the Leased Premises,
Landlord or other tenants of the Building, and
(g) The proposed assignee or sublessee will not create
traffic congestion or an unreasonable burden on existing parking.
15.3 Hazardous Materials. It shall not be unreasonable for Landlord to
withhold its consent to any proposed assignment or sublease if (i) the
proposed assignee's or sublessee's anticipated use of the Leased Premises
involves the generation, storage, use, treatment or disposal of Hazardous
Materials; (ii) the proposed assignee or sublessee has been required by any
prior Landlord, lender, or governmental authority to take remedial action in
connection with Hazardous Materials contaminating a property if the
contamination resulted from such assignee's or sublessee's actions or use of
the property in question; or (iii) the proposed assignee or sublessee is
subject to an enforcement order issued by any governmental authority in
connection with the use, disposal, or storage of Hazardous Material.
15.4 Tenant Responsible. Any assignment or sublease in violation of this
Article shall be void. If this Lease is assigned, or if the Leased Premises
or any part of the Leased Premises are subleased or occupied by anyone other
than Tenant, Landlord may, after default by Tenant collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to Base
Rent. No assignment, sublease, occupancy, or collection will be deemed (a) a
waiver of the provisions of this Article or (b) the acceptance of the
assignee, subtenant, or occupant as Tenant, or (c) release Tenant from the
further performance by Tenant of covenants on the part of Tenant contained in
this Lease. The consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from obtaining Landlord's prior written consent in
writing to any further assignment or sublease. No permitted subtenant will
assign or encumber its sublease of further sublease all or any portion of its
subleased space, or otherwise permit the subleased space or any part of its
subleased space to be used or occupied by others, without Landlord's prior
written consent in each instance.
15.5 Waiver. Tenant will not be entitled to make, or will Tenant make, any
claim, and Tenant by this Paragraph 16 waives any claim, for money damages
(nor will Tenant claim any money damages by way of set-off, counterclaim or
defense) based upon any claim connected with Landlord's non-granting of
consent to a proposed assignee or sublessee of Tenant. Tenant's sole remedy
will be an action or proceeding to enforce any such provision, or for specific
performance, injunction, or declaratory judgment.
ARTICLE SIXTEEN
Taxes
16.1 Personal Property Taxes. Tenant shall be liable to and shall pay all
taxes levied against its personal property, fixtures, and Tenant's Work in the
Leased Premises. If taxes to which Tenant is liable hereunder are levied
against Landlord of Landlord's property and if Landlord elects to pay the same
or if the assessed value of Landlord's property is increased by inclusion of
any such terms and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord an additional rent, upon demand that part of such
taxes to which Tenant is liable hereunder.
16.2 Real Property Taxes. Tenant agrees to pay as Tenant's Percentage of
Operating Expenses, its share of general real estate taxes, assessments, and
governmental charges levied against the Building for each calendar year
beginning with the Rental Commencement Date and during the Lease Term and any
renewals or extensions thereof. Said taxes, assessments, and governmental
charges shall be appropriately pro-rated during the first and last years of
the Lease Term if such years are less thin full calendar years. The
proportionate share to be paid by Tenant shall be that percentage of said
general real estate taxes, assessments, and governmental charges which the
Gross Rental Area of the Leased Premises bears to the Gross Rentable Area of
the Building. Landlord may, at its option, make monthly or other periodic
charges based upon the estimated annual taxes, payable in advance, but subject
to adjustment after receipt of the tax statement by Landlord. Landlord shall
have the sole, absolute and unrestricted right, but not the obligation, to
contest the validity or amount of any tax, assessment to governmental charge
to appropriate proceedings, and Tenant shall pay its proportionate share of
the costs incurred by Landlord in the course of such proceedings as additional
rent.
16.3 Rental Taxes. Tenant agrees to pay as additional rent, any rent tax or
other tax imposed upon rent payments or imposed upon Landlord based upon rent
payments by Tenant to Landlord; however, Tenant shall not be required to pay
any income tax of Landlord.
ARTICLE SEVENTEEN
Defaults and Remedies
17.1 Interest. Any installment of rent or any other charge or money
obligation herein required to be paid by Tenant which is not paid when due
shall be subject to a late fee of (4%) of the late payment to be assessed on
the Fifth day such payment is due. All unpaid amounts overdue (30) days
shall bear interest at the rate of eighteen percent (18%) per annum or at the
maximum rate allowed by law, whichever is less, from the due date until paid
and the Landlord may treat any such charge or money obligation as additional
rent hereunder. Tenant shall either pay interest on the late rent or pay the
late fee, which ever is the greater amount.
17.2 Events of Default. The occurrence of any of the following shall
constitute an event of default hereunder by Tenant:
(a) The rent payable under this Lease (including Base Rent, and any
additional rent) or any other sum of money due hereunder is not paid when due
and such failure to pay continues to more than five (5) days after Tenant's
receipt of notice thereof from Landlord. Provided however, that Landlord
shall not be required to provide Tenant with the notice and five-day period
set forth in the Subparagraph 17.2(a) more than three (3) times during one
calendar year, and the fourth and each subsequent failure to timely pay such
items shall immediately constitute an event of default hereunder.
(b) The Leased Premises are deserted, vacated, or not used is regularly
or consistently is would normally be expected for similar premises put to the
same or similar purposes as set forth herein, and if the Tenant discontinues
to pay the stipulated rent, and such condition is not corrected within (10)
days of Tenant's receipt of notice thereof from Landlord. Provided however,
that Landlord shall not be required to provide Tenant with the notice and ten
day period set forth in this Subparagraph 17.2(b) more than once during one
calendar year and the second and each subsequent occurrence of such condition
shall immediately constitute an event of default hereunder.
(c) Tenant files any petition for debt relief under any section or
chapter of the national or federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar act.
(d) Any petition is filed against Tenant under any section or chapter of
the national or federal Bankruptcy Code or any other applicable federal or
state bankruptcy, insolvency or other similar act, and such petition is not
dismissed within ninety (90) days after the date of such filing.
(e) Tenant shall become insolvent or transfer property to defraud
creditors.
(f) Tenant makes material misrepresentations to Landlord prior to or
contemporaneously with the execution of this Lease.
(g) Tenant shall make an assignment to the benefit of creditors.
(h) A receiver is appointed to any of Tenant's assets and such
receiver is not removed within (90) days of Tenant's receipt of notice from
Landlord to obtain such removal.
(i) A lien is filed against the Leased Premises or landlord's estate
therein by reason of any work, labor, services or materials performed or
furnished or alleged to have been performed or furnished, for or to Tenant or
anyone holding the Leased Premises by, through or under Tenant, and Tenant
fails to cause the same to be vacated and cancelled of record, or bonded off
in accord with the provisions of this Lease, within thirty (30) days after the
filing date thereof, or,
(j) Tenant fails to observe, perform and keep each and every one of
the covenants, agreements, provisions, stipulations, and conditions contained
in this Lease to be observed, performed and kept by Tenant, including without
limitation the "Rules and Regulations" for the project of which the Leased
Premises is a part, and unless otherwise specified herein, Tenant persists in
such failure for thirty (30) days after receipt of notice by Landlord
requiring that Tenant correct such failures.
17.3 Landlord Options. Upon the occurrence of an event of default,
Landlord shall have the option to do and perform any one or more of the
following, in addition to, and not in limitation of, any other right or remedy
available to Landlord at law or in equity or elsewhere under the Lease.
(a) Terminate. Termination of this Lease, in which event
Tenant shall immediately surrender the Leased Premises to Landlord, but if
Tenant shall fail to do so, Landlord may, without further notice and without
prejudice to any other remedy Landlord may have for possession or arrearages
in rent, enter upon the Leased Premises and expel or remove Tenant and
Tenant's effects, by force if necessary, without being subject to prosecution
or liable for any claim for damages therefore and Tenant agrees to indemnify
Landlord for all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Leased Premises or through
decrease in rent, or otherwise, and/or
(b) Enter. Terminate Tenant's right of possession of the
Leased Premises without terminating this Lease, and enter the Leased Premises
as the agent of Tenant, by force if necessary, without being subject to
prosecution or liable for any claim for damages therefore and relet the Leased
Premises as the agent of Tenant without advertisement and by private
negotiations and to any term landlord deems proper, and receive the rent
thereto, and Tenant shall pay Landlord upon demand any deficiency that may
arise by, reason of such reletting, but Tenant shall not be entitled to any
surplus funds generated by such reletting. Tenant shall reimburse Landlord
for all costs of reletting the Leased Premises including, but not limited to,
advertising expenses and commissions and/or
(c) Meet Provisions of Lease. As agent of Tenant, do whatever
Tenant is obligated to do by the provisions of this Lease and enter the Leased
Premises, by force if necessary, without being subject to prosecution or
liable for any claims for damages therefore, in order to accomplish the
purpose. Tenant agrees to reimburse Landlord immediately upon demand for any
expenses which Landlord may incur in thus effecting compliance with the Lease
on behalf of Tenant, and Tenant further agrees that Landlord shall not be
liable for any damages resulting to Tenant from such action, whether caused by
the negligence of Landlord or otherwise, and/or
(d) Damages. In addition to all rent and other amounts
previously due and unpaid under the terms and conditions of this Lease,
Landlord shall be entitled to collect actual damages associated with
termination of the lease.
(e) Recover Costs. If the Landlord exercises any of the
remedies set forth in Subparagraphs (a), (b), or (c) of this Paragraph 17.3 in
addition to all other costs and expenses Landlord shall be entitled to recover
under this Lease. Landlord shall also be entitled to recover (i) all sums
expended by Landlord and not previously reimbursed to Landlord by Tenant in
connection with improving or repairing the Lease Premises to Tenants
specifications, and (ii) all costs and expenses incurred by Landlord in
connection with the termination of this Lease and eviction of Tenant,
including attorney's fees.
(f) Store Property. In the event that Landlord elect to
terminate this Lease, or to terminate Tenant's right of possession of the
Leased Premises without terminating the Lease, as provided in this Paragraph
17.3 or the Lease is terminated by authority of law, Landlord shall be
entitled, but not required to store in a commercially reasonable manner any
personal property of Tenant or any subtenant which shall remain in the Leased
Premises after the termination of this Lease and the removal of Tenant or
subtenant from the Leased Premises. Landlord shall have a lien on such
properly, which may be discharged by Tenant upon payment of arrearage due
under the Lease, plus payment of Landlord's storage and administrative costs.
At the end of the sixty (60) day period following termination of the Lease, or
termination of Tenant's right of possession, such property shall be
conclusively deemed to have been abandoned by Tenant. The foregoing
provisions of this Paragraph 17.3 shall be without prejudice to any election
by Landlord that Tenant's failure to remove its property constitutes a holding
over by Tenant.
17.4 Other Remedies. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided or any other
remedies provided by law, nor shall pursuit of any remedy, herein provided
constitute a forfeiture or waiver of any rent or other sum due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the covenants and provisions herein contained. Forbearance by Landlord
to enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such
definite
17.5 Bankruptcy. It is understood and agreed that the following shall apply
in the event of the bankruptcy or insolvency of Tenant.
(a) Chapter 7. If a petition is filed by, or an order for
relief is entered against Tenant under Chapter 7 of the Bankruptcy Code, and
the trustee of Tenant elects to assume this Lease for the purpose of assigning
it, such election or assignment or both may be made only if all of the terms
and conditions of Subparagraphs 17.5(b) and (d) below are satisfied. To be
effective, an election to assume this Lease must be in writing and addressed
to Landlord and in Landlord's business judgement, all of the conditions
hereinafter stated, which Landlord and Tenant acknowledge to be commercially
reasonable, must have been satisfied. If the trustee fails so to elect to
assume this Lease within sixty (60) days after the bankruptcy petition is
filed, this Lease will be deemed to have been rejected and Landlord shall then
immediately be entitled to possession of the Leased Premises without further
obligation to Tenant or the trustee, and the Lease shall be terminated.
Landlord's right to be compensated to damage in the bankruptcy proceeding,
however, shall survive such termination.
(b) Chapter 11. If Tenant files a petition for reorganization
under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or
against Tenant under any other chapter of the Bankruptcy Code is converted to
a Chapter 11 or 13 proceeding, and Tenant's trustee, or Tenant as debtor-in-
possession, fails to assume this Lease within sixty (60) days from the date of
the filing of such petition or conversion, then the trustee or the debtor-in-
possession shall be deemed to have rejected the Lease. To be effective, any
election to assume this Lease must be in writing addressed to Landlord and in
Landlord's business judgement, all of the following conditions which Landlord
and Tenant acknowledge to be commercially reasonable, must have been
satisfied.
(i) The trustee of the debtor-in-possession has cured, or has
provided to Landlord adequate assurance, as hereinafter defined, that the
trustee cure, all monetary defaults under this Lease within ten (10) days from
the date of assumption, and will compensate Landlord for all pecuniary losses
it has incurred as a result of the Tenant's default.
(ii) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance of each of Tenant's
obligations under this Lease
(iii) For purposes of this Subparagraph, "adequate assurance"
shall mean that:
(1) Landlord determines that the debtor-in-possession has and will continue to
have, sufficient unencumbered assets, after the payment of all secured
obligations and administrative expenses, to assure Landlord that the trustee
or the debtor-in-possession will have sufficient funds to fulfill, in a timely
manner, Tenant's obligations under this lease, and, (2) An order shall have
been entered segregating sufficient cash payable to Landlord, and/or a valid
and perfected first lien on and security interest in property of Tenant,
trustee, or debtor-in-possession shall have been granted, which is acceptable
in value and kind to Landlord, to secure to Landlord the obligation of the
trustee or debtor-in-possession to cure all monetary and nonmonetary defaults
under this Lease within the time period set forth above.
(c) Trustee. In the event this Lease is assumed by a trustee
appointed for Tenant, or by Tenant as debtor-in-possession, under the
provisions of Subparagraph 17.5 (b) above, and thereafter Tenant is either
adjudicated bankrupt, or files a subsequent petition for arrangement under
Chapters 11 or 13 of the Bankruptcy Code, then Landlord may, at its option,
terminate this Lease and all the Tenant's rights under it, by giving written
notice of Landlord's election so to terminate.
(d) Assignment. Pursuant to Subparagraph 17.5 (a) or (b)
above, if the trustee or the debtor-in-possession has assumed this Lease to
assign or elect to assign Tenant's interest under this lease, or the estate
created by that interest, to any other person, such interest or estate may be
assigned only if the intended assignee has provided adequate assurance of
future performance, as defined below, of all of the terms, covenants, and
conditions of this Lease. For the purposes of this Subparagraph 17.5 (d),
"adequate assurance of future performance" means that Landlord has ascertained
that each of the following conditions has been satisfied:
(i) The assignee has submitted to Landlord a current financial
statement, audited by a certified public accountant, which shows a net worth
and working capital in amounts determined by Landlord to be sufficient to
assure the future performance by the assignee of the Tenant's obligations
under this Lease.
(ii) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to Landlord, from one or more
persons who satisfy Landlord's standards of credit worthiness, and, (iii) To
enable Landlord to permit such assignment, Landlord has obtained consents or
waivers from any third parties which may be required under any lease,
mortgage, financing arrangement or other agreement by which Landlord is bound.
(e) Use Fees. When pursuant to the Bankruptcy Code, the trustee
or the debtor-in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Leased Premises, it is agreed that
such charges will not be less than the Base Rent as defined in this Lease,
plus additional rents and other monetary obligations of Tenant included
herein.
(f) Consent. Neither Tenant's interest in this Lease or any
estate of Tenant created in this Lease, shall pass to any trustee, receiver,
or assignee for the benefit of creditors, or any person or entity, nor
otherwise by operation of law under the laws of the state having jurisdiction
of the person or property of Tenant, unless Landlord consents in writing to
such transfer. Landlord's acceptance of rent or any other payments from any
trustee, receiver, assignee, person, or other entity will not be deemed to
have waived or waive either the requirement of Landlord's consent or, in the
event of any transfer of Tenant's interest, in the Lease without such consent,
the Landlord's right to terminate this Lease.
17.6 Writing Required. No act or thing done by Landlord or Landlord's
agents during the Term shall be deemed an acceptance of a surrender of the
Leased Premises, and no agreement to accept a surrender of the Leased Premises
shall be valid unless the same is in writing and executed by Landlord. Any
waiver of or redress to any violation of any covenant or condition contained
in this Lease or any of the Rules and Regulations now, or hereafter adopted by
Landlord, shall not prevent a subsequent act, which should have originally
constituted a violation, from having all the force and effect of an original
violation.
17.7 Deleted.
17.8 Deposit. Landlord hereby acknowledges receipt from Tenant of the
Advance Deposit set forth in Section 1.1 (i), which shall be applied to the
first accruing instruments of rent. Landlord further acknowledges receipt
from Tenant of the Security Deposit as set forth in Section 1.1 (j) which
shall be held by Landlord without interest as security for the Lease, it being
expressly understood that such deposit is not an advance payment of rent or a
measure of Landlord's damages in case of default by Tenant. Upon the
occurrence of any event of default by Tenant, Landlord may, from time to time,
without prejudice to any other remedy provided herein, or provided by law, use
the Security Deposit to the extent necessary, to make good any arrears of rent
and any other damage, injury, expense or liability caused to Landlord by such
event of default. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to
restore the Security Deposit to its original amount. If Tenant is not then in
default hereunder, any remaining balance of the Security Deposit shall be
returned by Landlord to Tenant upon termination of this Lease and surrender of
possession of the Leased Premises to Landlord as herein provided.
ARTICLE EIGHTEEN
Holding Over Expiration or Termination
18.1 Deleted.
18.2 Surrender. On the expiration of the Term or earlier termination
of this Lease, Tenant shall at Tenant's own cost, (a) promptly and peaceably
surrender the Leased Premises to Landlord "broom clean," in good order and
condition, (b) repair any damage to the Building caused by or in connection
with the removal of any property from the Leased Premises by or at the
direction of Tenant, (c) repair, patch and paint in a good and workmanlike
manner satisfactorily to Landlord all holes and other marks in the floors,
walls and ceilings of the Leased Premises, and, (d) deliver all keys to the
Leased Premises to Landlord. Before surrendering the Leased Premises, Tenant
shall at Tenant's sole cost, remove Tenant's moveable personal property and
trade fixtures (including signage) only, and all other property shall, unless
otherwise directed by Landlord, remain in the Leased Premises as the property
of Landlord without compensation, however, Tenant shall not remove any
personal property or trade fixtures from the Leased Premises without
Landlord's prior written consent if such removal will impair the structure of
the Building or Tenant is in default under this Lease. If Tenant is in
default under this Lease, Landlord shall take a lien on such personnel
property, trade fixtures and other property as set forth in Section 38-3-1, et
seq, of the Utah Code Ann. (or any replacement provision). Landlord may
require Tenant to remove any personnel property, trade fixtures, or other
property, alterations, additions and improvements made to the Leased Premises
by Tenant or by Landlord for Tenant, and to restore he Leased Premises to
their condition at the date of this Lease. All personal property, trade
fixtures and other property of Tenant not removed from the Leased Premises on
the abandonment of the Leased Premises or on the expiration of the Term or
earlier termination of this Lease for any cause shall conclusively be deemed
to have been abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without notice to, and without any
obligation to account to Tenant or any other person. Tenant shall pay to
Landlord all expenses incurred in connection with the disposition of such
property in excess of any amount received by Landlord from such disposition.
No surrender of Leased Premises share be effected by Landlord's acceptance of
the keys or of the rent or by any other reasons without Landlord's written
acknowledgment of such acceptance as a surrender. Tenant shall not be
released from Tenants obligations under this Lease in connection with
surrender of the Leased Premises until Landlord has inspected the Leased
Premises and delivered to Tenant a written release.
ARTICLE NINETEEN
Subordination
19.1 First Priority. This Lease and all rights of Tenant hereunder are and
shall be subject and subordinate to the lien of any first priority mortgage,
deed to secure debt, deed of trust, or other instrument in the nature thereof
which may now or hereafter affect Landlords fee title to the Leased Premises
or Landlord's interest hereunder and to any modifications, renewals,
consolidations, extensions, or replacements of any of the foregoing.
This clause shall be self-operative and no further instrument of subordination
shall be required by any mortgages. In confirmation of such subordination,
Tenant shall, upon demand at any time or times, execute, seal and deliver to
Landlord, without expense to Landlord, any and all instruments in recordable
form that may be requested by Landlord to evidence the subordination of this
Lease and all rights hereunder to the lien of any such mortgage, deed to
secure debt, deed of trust or other instrument in the nature thereof, and each
renewal, modification, consolidation, replacement, and extension thereof, and
if Tenant shall fail at any time to execute, seal and deliver any such
instrument, Landlord in addition to any other remedies available to it in
consequence thereof, may execute, seal and deliver the same as the attorney in
fact of Tenant and in Tenant's name, place and stead and Tenant hereby
irrevocably makes, constitutes, and appoints Landlord, its successors and
assigns, as such attorney in fact for that purpose.
In addition Tenant shall upon Landlord's request, at any time or times,
execute, seal and deliver to Landlord without expense to Landlord, any and all
instruments that may be necessary to make this Lease superior to the lien of
any such mortgage, deed to secure debt, deed of trust, or other instrument in
the nature thereof, and such renewal, modification, consideration,
replacement, and extension thereof, and, if Tenant shall fail at any time to
execute, seal and deliver such instrument, Landlord in addition to any other
remedies available to it in place and stead, and Tenant hereby irrevocably
makes, constitutes, and appoints Landlord its successors and assigns such
attorney in fact for that purpose.
19.1 (a) Lease to Continue - Attornment. If the holder of any mortgage,
deed to secure debt, deed of trust, or other instrument in the nature thereof,
shall hereafter succeed to the rights of Landlord, under this Lease, then, at
the option of such holder this Lease shall remain in effect. Tenant shall
attorn to and recognize such successor as Tenant's Landlord under this Lease,
and shall promptly execute and deliver any instrument that may be necessary to
evidence such attornment.
(b) Advance Rent. Upon the attornment provided for in subsection
(a) above, this Lease shall continue in full force and effect as a direct
Lease between such successor Landlord and Tenant subject to all the terms,
covenants, and conditions of this Lease, Including advance rent.
ARTICLE TWENTY
Miscellaneous
20.1 Notices. Tenant agrees that upon the request of either Landlord or
the holder of any first priority mortgage, deed to secure debt, deed of trust,
or other security instrument in the nature thereof encumbering Landlord's
interest hereunder or in the Leased Premises, Tenant shall send to such holder
copies of all notices sent to Landlord, such copies to be forwarded to such
holder as and when such notices are sent to Landlord and at the retailing
address front time to time provided to Tenant by either Landlord or such
holder. In addition, Tenant agrees that it may not exercise any of its
remedies on account of a default by Landlord under this Lease unless and until
such holder shall have received written notice of such default from Tenant and
a period of thirty (30) days after receipt of such notice for curing such
default shall thereafter have elapsed.
20.2 Captions. The captions and the table of contents used in this Lease
are for convenience only and do not in any way limit or amplify the terms and
provisions hereof. Whenever the singular number is used the same shall
include the plural, and words, of any gender shall include each other gender.
20.3 Waiver. One or more waivers of any covenant, term or condition of
this Lease by either party shall not be constituted as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waived or render unnecessary
consent to or approval of any subsequent similar act.
20.4 Quiet Enjoyment. Landlord hereby covenants and agrees that if Tenant
shall perform all of the covenants and agreements herein required to be
performed on the part of Tenant, Tenant shall subject to the terms of this
Lease, at all times during the continuance of this Lease have the peaceable
and quiet enjoyment and possession of the Leased Premises.
20.5 Entire Agreement. This Lease contains and exhibits the entire
agreement between the parties and no agreement, representation or inducement
shall be effective to change, modify, or terminate this Lease in whole or in
part unless in writing and signed by the parties.
20.6 Deleted.
20.7 Estoppel Certificate. At any time and from time to time, Tenant
shall, within five (5) days after Landlord's request, execute and deliver to
Landlord an estoppel certificate in favor of Landlord and other persons as
Landlord shall request setting forth the following: (a) a ratification of the
Lease, (b) the Commencement Date and Expiration Date, (c) that this Lease is
in full force and effect and has not been assigned, modified, supplemented or
amended (except by such writing as shall be stated), (d) that all conditions
under this Lease to be performed by Landlord have been satisfied, or in the
alternative, those claimed by Tenant, (f) The amount of advance rent, if any
(or none if such is the case), paid by Tenant, (g) the date to which rent has
been paid, (h) the amount of the Security Deposit, and (i) such other
information as Landlord may request; Landlord's mortgage lenders and
purchasers shall be entitled to rely on any estoppel certificate.
Each certificate delivered pursuant to this Section 20.7 may be relied on by
any prospective purchaser or transferee of the Building or of Landlord's
interest hereunder or by any mortgage of the Building or of Landlord's
interest hereunder or by any assignee of any such mortgage.
20.8 Binding. The terms, provisions and covenants contained in this
Lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto and if permitted hereunder their respective heirs, assigns, successors
in interest and legal representatives,
20.9 Time. Time is of the essence in this agreement.
20.10 Applicable Law. The laws of the state in which the Building is
located shall govern the interpretation, validity, performance, and
enforcement of this Lease. If any provision of this Lease shall be held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Lease shall not be affected thereby.
20.11 Surrender. Tenant shall, on or before the last day of the Term or
if the Lease is terminated prior thereto as herein provided, peaceably and
quietly leave, surrender and yield up onto Landlord the Leased Premises,
together with all alterations, additions, improvements, betterments, fixtures
and equipment installed therein or pertaining thereto but excluding non-
attached trade fixtures and other personal property of Tenant, any permitted
assignee, sublessee, licensee or concessionaire of Tenant, or any other
occupant of the Leased Premises. Such alterations, additions, improvements,
betterments, fixtures and equipment to be in good order and repair; ordinary
wear and tear, obsolescence, damage by fire or other casualty, acts of God,
condemnation, civil riot and commotion excepted. All such trade fixtures and
other personal property shall be removed by Tenant on or before the last day
of the Term thereof, and all such property not so removed shall be deemed
abandoned by Tenant and conveyed to Landlord unless Landlord shall give notice
to Tenant to remove all or any part thereof, in which event Tenant shall
promptly at its expense remove same, or Landlord may do so at Tenant's
expense.
20.12 Agency. Nothing herein contained shall be deemed or construed by
the parties hereto, not by any third party, as creating the relationship of
principal and agent or of partnership or joint venture between the parties
hereto, it being understood and agreed that neither the method of computation
of rent, nor any other provision contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between the parties hereto
other than the relationship of Landlord and Tenant.
20.13 Controlling. To the extent that the Special Stipulations, if any,
set forth in Exhibit "E" conflict with any of the printed provisions of this
Lease, such Special Stipulations shall control.
20.14 Execution Required. The submission of this Lease for examination
does not constitute a reservation of or option for the Leased Premises and the
Lease becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant. If Tenant is a corporation or partnership, Tenant shall
furnish Landlord with such evidence as Landlord reasonably requires to
evidence the binding effect on Tenant of the execution and delivery of this
Lease.
20.15 Limitation of Actions. In the event Landlord commences any summary
proceedings or actions for nonpayment of rent or other charges provided for in
this Lease, Tenant and Landlord both waive a trial by jury of any or all
issues arising in any action or proceeding between the parties hereto or their
successors, under or connected with this Lease, or any of its provisions.
20.16 Representations. Tenant acknowledges that neither Landlord nor
Landlord's agents, employees or contractors have made any representations or
promises with respect to the Leased Premises, the Building or this Lease
except as expressly set forth herein.
20.17 Deleted.
20.18 Deleted.
20.19 Deleted.
IN WITNESS WHEREOF the parties have executed this Lease, or caused this
Lease to be executed by their duly authorized officers, and have sealed this
Lease as of the day and year first written above.
LANDLORD: TENANT:
SLT, III, LLC, a Utah Limited WordCruncher Internet Technologies,
Liability Company Inc."WCTI"
By: /s/ Stephen L Tripp By: Kenneth W. Bell
Its Its: Sr. V.P and CEO