Exhibit 10.6
LEASE AGREEMENT
LANDLORD: TROLLEY CORNERS PARTNERSHIP,
BY ITS MANAGING PARTNER,
TROLLCO PROPERTIES, INC.
TENANT: SIMMONS MEDIA GROUP, INC
THE
BOYER
COMPANY
TABLE OF CONTENTS
DESCRIPTION PAGE
I. PREMISES 1
1.1 Description of Premises 1
1.2 Work of Improvement 2
1.3 Construction of Building 2
1.4 Changes to Building 2
II. TERM 2
2.1 Length of Term 2
2.2 Commencement Date; Obligation to Pay 2
2.3 Construction of Leased Premises 3
2.4 Acknowledgment of Commencement Date 3
III Basic Rental Payments 3
3.1 Basic Annual Rent 3
3.2 Additional Monetary Obligations 3
IV. ADDITIONAL RENT 4
4.1 Definitions 4
4.2 Report of Basic Costs and Statement of Estimated Costs 6
4.3 Payment of Additional Rent 7
4.4 Resolution of Disagreement 7
4.5 Limitations 7
V. SECURITY DEPOSIT 8
VI. USE 8
6.1 Use of Leased Premises by Tenant 8
6.2 Prohibition of Certain Activities or Uses 8
6.3 Affirmative Obligations with Reject to Use 9
6.4 Suitability 9
6.5 Taxes 10
VII. UTILITIES AND SERVICE 10
7.1 Obligation of Landlord 10
7.2 Tenant's Obligations 11
7.3 Additional Limitations 11
7.4 Limitation on Landlord's Liability 11
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DESCRIPTION PAGE
VIII. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS 12
8.1 Maintenance and Repairs by Landlord 12
8.2 Maintenance and Repairs by Tenant 12
8.3 Alterations 12
8.4 Landlord's Access to Leased Premises 13
IX. ASSIGNMENT AND SUBLETTING 13
9.1 Assignment 13
9.2 Consent Required 13
9.3 Landlord's Right in Event of Assignment 14
X. INDEMNITY 14
10.1 Indemnification By Tenant 14
10.2 Release of Landlord 14
10.3 Indemnification By Landlord 14
10.4 Release of Tenant 15
10.5 Notice 15
10.6 Litigation 15
XI. INSURANCE 15
11.1 Insurance on Tenant's Personal Property and Fixtures 15
11.3 Liability Insurance 16
11.4 Waiver of Subrogation 16
11.5 Lender 16
XII. DESTRUCTION 16
XIII. CONDEMNATION 17
13.1 Total Condemnation 17
13.2 Partial Condemnation 17
13.3 Landlord's Option to Terminate 17
13.4 Award 17
13.5 Definition 18
XIV. RIGHTS TO CURE 18
14.1 Landlord's General Right to Cure 18
14.2 Tenant's General Right to Cure 18
14.3 Mechanic's Lien 18
XV. FINANCING; SUBORDINATION 19
15.1 Subordination 19
15.2 Amendment 19
15.3 Attornment and Non-Disturbance 19
15.4 Financial Information 19
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DESCRIPTION PAGE
XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD 20
16.1 Default by Tenant 20
16.2 Remedies 20
16.3 Past Due Sums; Penalty 20
XVII. PROVISIONS APPLICABLE AT TERMINATION OF LEASE 21
17.1 Surrender of Premises 21
17.2 Holding Over 21
XVIII. ATTORNEYS' FEES 21
XIX. ESTOPPEL CERTIFICATE 21
19.1 Landlord's Right to Estoppel Certificate 21
19.2 Effect of Failure to Provide Estoppel Certificate 22
XX. COMMON AREAS 22
20.1 Definition of Common Areas 22
20.2 License to Use Common Areas 22
20.3 Parking 23
XXI. SIGNS, AWNINGS, AND CANOPIES 23
XXII. MISCELLANEOUS PROVISIONS 23
22.1 No Partnership 23
22.2 Force Majeure 23
22.3 No Waiver 23
22.4 Notice 23
22.5 Captions; Attachment; Defined Terms 24
22.6 Recording 24
22.7 Partial Invalidity 24
22.8 Broker's Commissions 24
22.9 Tenant Defined 25
22.10 Provisions Binding, Etc. 25
22.11 Entire Agreement, Etc. 25
22.12 Governing Law 25
22.13 Recourse by Tenant 26
22.14 Choice of Law 26
22.15 First Right of Refusal 26
22.16 Expansion Space 26
22.17 Option to Extend 27
22.18 Satellite Dishes 28
22.19 Option to Terminate 28
22.19 Option to Terminate. Landlord 28
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DESCRIPTION PAGE
SIGNATURES 29
NOTARIES 30 & 31
RIDER Yes No X
------- ------------
GUARANTY Yes No X
--------
EXHIBIT "A" DESCRIPTION OF REAL PROPERTY
EXHIBIT "B" FLOORPLAN OF LEASED PREMISES
EXHIBIT "C" WORK LETTER-CONSTRUCTION AND/OR FINISH OF
IMPROVEMENTS TO LEASED PREMISES
EXHIBIT "D" ACKNOWLEDGMENT OF COMMENCEMENT DATE & ESTOPPEL
CERTIFICATE.
EXHIBIT "E" COST TO CONSTRUCT LEASED PREMISES
EXHIBIT "F" BUILDING STANDARD FINISHES
EXHIBIT "G" SITE PLAN FOR SATELLITE DISH LOCATION
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LEASE AGREEMENT
TROLLEY OFFICE BUILDING
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of this 1st
day of August, 1999, by and between TROLLEY CORNERS PARTNERSHIP, A UTAH GENERAL
PARTNERSHIP, BY ITS GENERAL PARTNER, TROLLCO PROPERTIES, INC. (the "Landlord"),
and SIMMONS MEDIA GROUP, INC., A UTAH CORPORATION (the "Tenant").
For and in consideration of the rental to be paid by Tenant and of the
covenants and agreements herein set forth to be kept and performed by Tenant,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the
Leased Premises (as hereafter defined) and certain other areas, rights and
privileges for the term, at the rental and subject to and upon all of the terms,
covenants and agreements hereinafter set forth.
I. PREMISES
1.1 Description of Premises. Landlord does hereby demise, lease and
let unto Tenant, and Tenant does hereby take and receive from Landlord the
following:
(a) That certain floor area containing approximately 22,273 gross
rentable square feet on floors one and two, and basement space (the "Leased
Premises") (subject to architectural verification using Landlord's gross
inside method of calculation) in the office building (the "Building")
located at approximately 515 South 700 East, 1C in Salt Lake City, Utah, on
the real property (the "Property") described on Exhibit "A" attached hereto
and by this reference incorporated herein. The space occupied by Tenant
consists of that certain area crosshatched on Exhibit "B" which is attached
hereto and by this reference incorporated herein,
(b) The non-exclusive right to Tenant's use of the Common Areas (as
defined in Section 20.1 below).
(c) Such non-exclusive rights-of-way, easements and similar rights
with respect to the Building and Property as may be reasonably necessary
for access to and egress from, the Leased Premises.
(d) The non-exclusive right to use those areas adjacent and attached
to the building designated and suitable for vehicular parking, including
non-exclusive right to the use of eighty five (85) parking stalls plus four
(4) exclusive stalls, to be located at the main entrance for no additional
charge except operating costs maintenance as provided for in Section 4 of
the Lease.
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1.2 Work of Improvement. The obligation of Landlord and Tenant to
perform the work and supply the necessary materials and labor to prepare
the Leased Premises for occupancy are described in detail on Exhibit "C".
Landlord and Tenant shall expend all funds and do all acts required of them
as described on Exhibit "C" and shall perform or have the work performed
promptly and diligently in a first class and workmanlike manner.
1.3 Construction of Building. Landlord shall, at its own cost and
expense, construct and complete such Building and cause all of the
construction which is to be performed by it in completing the Building and
performing its work as set forth on Exhibit "C", to be substantially
completed, and the Leased Premises ready for Tenant to install its fixtures
and equipment and to perform its other work as described on Exhibit "C" as
soon as reasonably possible, but in no event later than four (4) months
from Landlord's receipt of working drawings. In the event that Landlord's
obligation of construction has not been fulfilled upon the expiration of
said four (4) month period. Tenant shall have the right to exercise any
right or remedy available to it under this Lease, including the right to
terminate this Lease; provided that under no circumstances shall Landlord
be liable to Tenant resulting from delay in construction.
1.4 Changes to Building. Landlord hereby reserves the right at any
time and from time to time to make changes, alterations or additions to the
Building or to the Property as long as the changes do not unduly interfere
with Tenants quiet use and enjoyment of the Premises. Further, Landlord
will notify Tenant for informational purposes only prior to commencing any
major changes/alterations to the building. Tenant shall not, in such event,
claim or be allowed any damages for injury or inconvenience occasioned
thereby and shall not be entitled to terminate this Lease.
II. TERM
2.1 Length of Term. The term of this Lease shall be for a period of
fifteen (15) years plus the partial calendar month, if any, occurring after
the Commencement Date (as hereinafter defined) if the Commencement Date
occurs other than on the first day of a calendar month.
2.2 Commencement Date; Obligation to Pay, The term of this Lease and
Tenant's obligation to pay rent hereunder shall commence on the first to
occur of the following dates ("Commencement Date"):
(a) The date Tenant occupies the Leased Premises and conducts
business.
(b) The date ninety (90) days after the Landlord, or Landlord's
supervising contractor, notified Tenant in writing that Landlord's
construction obligations respecting the Leased Premises have been fulfilled
and/or that the Leased Premises are ready for occupancy and/or performance
of Tenant's work.
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2.3 Construction of Leased Premises. Landlord shall provide a cost to
construct the improvements to the Leased Premises (see Exhibit "E").
Landlord shall itemize each part of the construct/on and its associated
cost. Landlord shall pay for $$380,000.00 of the costs listed and Tenant
shall be obligated for the remaining costs shown on Exhibit "E". Landlord
shall be obligated to pay for any increase in the actual cost of
construction over and above the construction costs shown on Exhibit "E",
unless such increase shall be the result of a requested change or upgrade
of the floorplan (Exhibit "B"), initiated by the Tenant, his agents or
assigns. Any special decorator items, equipment, furniture or furnishings
not designated on Exhibit "E", as well as changes initiated by the Tenant
to the floorplan (Exhibit "B"), shall be the sole cost of Tenant.
The Construction of Leased Premises as designated in this section 2.3, in
Exhibit "C", and Exhibit "E", shall be in accordance with the Building
standard finishes described in Exhibit "F".
2.4 Acknowledgment of Commencement Date. Landlord and Tenant shall
execute a written acknowledgment of the Commencement Date in the form
attached hereto as Exhibit "D".
III. BASIC RENTAL PAYMENTS
3.1 Basic Annual Rent. Tenant agrees to pay to Landlord as basic
annual rent (the "Basic Annual Rent") at such place as Landlord may
designate, without prior demand therefore and without any deduction or set
off whatsoever, the sum of Two Hundred Sixty Five Forty Eight and 70/100
Dollars ($265,048.70). Said Basic Annual Rent shall be due and payable in
twelve (12) equal monthly installments to be paid in advance on or before
the first day of each calendar month during the term of the Lease. The
Basic Annual Rent shall escalate at the beginning of the 2nd year and every
year thereafter by a rate of two percent (2%). Simultaneously with the
execution hereof, Tenant has paid to Landlord the first month's rent,
receipt whereof is hereby acknowledged, subject to collection, however, if
made by cheek. In the event the Commencement Date occurs on a day other
than the first day of a calendar month, then rent shall be paid on the
Commencement Date for the initial fractional calendar month prorated on a
per-diem basis (based upon a thirty (30) day month).
3.2 Additional Monetary Obligations. Tenant shall also pay as rental
(in addition to the Basic Annual Rent) all other sums of money as shall
become due and payable by Tenant to Landlord under this Lease. Landlord
shall have the same remedies in the case of a default in the payment of
said other sums of money as are available to Landlord in the case of a
default in the payment of one or more installments of Basic Annual Rent.
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IV. ADDITIONAL RENT
4.1 Definitions. It is the intent of both parties that the Basic
Annual Rent herein specified shall be absolutely net to the Landlord
throughout the term of this Lease, and that all costs, expenses and
obligations relating to the Building, Property and/or Leased Premises which
may arise or become due during the term shall be paid by Tenant in the
manner hereafter provided.
For purposes of this Part IV and the Lease in general, the following
words and phrases shall have the meanings set forth below:
(a) "Basic Costs" shall mean all actual costs and expenses incurred by
Landlord in connection with the ownership, operation, management and
maintenance of the Building and Property and related improvements located
thereon (the "Improvements"), including, but not limited to, all expenses
incurred by Landlord as a result of Landlord's compliance with any and all
of its obligations under this Lease (or under similar leases with other
tenants) other than the performance by Landlord of its work under Section
2.3 of this Lease or similar provisions of leases with other tenants, in
explanation of the foregoing, and not in limitation thereof, Basic Costs
shall include: all real and personal property taxes and assessments
(whether general or special, known or unknown, foreseen or unforeseen) and
any tax or assessment levied or charged in lieu thereof, whether assessed
against Landlord and/or Tenant and whether collected from Landlord and/or
Tenant; snow removal, trash removal, common area utilities, cost of
equipment or devices used to conserve or monitor energy consumption,
supplies, insurance, license, permit and inspection fees, cost of services
of independent contractors, cost of compensation (including employment
taxes and fringe benefits) of all persons who perform regular and recurring
duties connected with day-to-day operation, maintenance, repair, and
replacement of the Building, its equipment and the adjacent walk and
landscaped area (including, but not limited to janitorial, scavenger,
gardening, security, parking, elevator, painting, plumbing, electrical,
mechanical, carpentry, window washing, structural and roof repairs and
reserves, signing and advertising), but excluding persons performing
services not uniformly available to or performed for substantially all
Building tenants; and rental expense or a reasonable allowance for
depreciation of personal property used in the maintenance, operation and
repair of the Building.
The foregoing notwithstanding, Basic Costs shall not include
depreciation on the Building and Improvement,; amounts paid toward
principal or interest of loans of Landlord; "Direct Costs" as defined in
Section 4.1(b) below; costs of alterations or improvements to the Premises
or the premises of other tenants; costs of correcting defects in or
inadequacy of the initial design or construction of the Building; legal
fees, space planners' fees, real estate brokers' leasing commissions, and
advertising expenses incurred in connection with the original development
or original leasing of the Building or future leasing of the Building;
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costs for which Landlord is reimbursed by any tenant or occupant of the
Building or by insurance by its carrier or any tenant's carrier or by
anyone else; any bad debt loss, rent loss, or reserves for bad debts or
rent loss; costs associated with the operation of the business of the
partnership or entity which constitutes the Landlord, as the same are
distinguished from the costs of operation of the Building; the wages and
benefits of any employee who does not devote substantially all of his or
her time to the Building; fines, penalties, and interest; amounts paid as
ground rental by Landlord; wages and fees incurred in connection with the
ownership, management and operation of the parking structure; handicap or
other subsequent government code regulations; capital expenditures to
comply with applicable laws, including costs arising from the presence of
hazardous materials or substances in or about the Building, or the site
upon which the Building is situated, including, without limitation,
hazardous substances in the ground water or soil; costs, including permit,
license and inspection costs, incurred with respect to the installation of
tenant improvements made for new tenants in the Building or incurred in
renovating or otherwise improving, decorating, painting or redecorating
vacant space for tenants or other occupants of the Building; costs incurred
by Landlord for alterations which are considered capital improvements and
replacements under generally accepted accounting principles, consistently
applied; overhead and profit increment paid to Landlord or to subsidiaries
or affiliates of Landlord for services in the Building to the extent the
same exceeds the costs of such services rendered by unaffiliated third
parties on a competitive basis; all items and services for which Tenant or
any other tenant in the Building reimburses Landlord or which Landlord
provides selectively to one or more tenants (other than Tenant) without
reimbursement; costs arising from Landlords' political or charitable
contributions; costs arising from latent defects in the Base Building or
shell or core of the Building or improvements installed by Landlord or
repair thereof.
(b) "Direct Costs" shall mean all actual costs and expenses incurred
by Landlord in connection with the operation, management, maintenance,
replacement, and repair of tenants' premises, including but not limited to
janitorial services, maintenance, repairs, supplies, utilities, heating,
ventilation, air conditioning, and property management fees, which property
management fees shall be equal to a percentage of the sum of Tenant's Basic
Annual Rent and Estimated Costs, including electricity charges if
separately metered which percentage shall not exceed four percent (4%).
Tenant shall pay its share of Direct Costs of the Building. The amount of
Tenant's Direct Costs shall be obtained by multiplying the expenses in
question by a fraction, the numerator of which shall be the gross testable
square footage of the premises, and the denominator of which shall be the
average gross rentable square feet leased and occupied by tenants of the
Building during any given year in which the Direct Costs are then being
calculated.
Landlord may cause meters to be installed to measure actual electrical
and ventilation/air conditioning usage by Tenant. If such meters are
installed, Tenant shall pay Landlord monthly, as additional rent, the
estimated costs of such metered
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electrical and ventilation/air conditioning usage. At least annually,
Landlord shall reconcile the estimated costs of these metered services and
shall show the actual costs and shall apply any appropriate credits or
debits from the previous year's actual usage. All such billings will be
computed at the actual kilowatt hourly rate billed to the Landlord by the
public utility companies for each respective period, including taxes. The
costs of ventilation/air conditioning usage by Tenant shall be equitably
apportioned among all building tenants according to usage. Tenant shall
promptly pay to Landlord the amount due on each monthly billing received
for and throughout the term of the Lease.
(c) "Estimated Coats" shall mean the projected amount of Tenant's
Direct Costs and Tenant's Proportionate Share of Basic Costs, excluding the
costs of electricity and ventilation/air conditioning provided to Tenant's
Leased Premises, if separately metered. The Estimated Costs for the
calendar year in which the Lease commences are $89,092.00 (X) excluding ( )
including the costs of electricity and ventilation/air conditioning to the
Tenant's Leased Premises, and are not included in the Basic Annual Rent. If
the Estimated Costs as of the date Tenant takes occupancy are greater than
Tenant's Estimated Costs at the time this Lease is executed, the Estimated
Costs shall be increased to equal the Estimated Costs as of the date of
Tenant's occupancy.
(d) "Tenant's Proportionate Share of Basic Costs" shall mean the
percentage derived from the fraction, the numerator of which is the gross
rentable square footage of the Leased Premises (22,273), the denominator of
which is the gross rentable square footage of the Building (88,807). In
this Lease, Tenant's pro-rata share initially is 25%, subject to increase
or decrease due to increases or decreases in the gross rentable square
footage of the Leased Premises and/or the Building.
4.2 Report of Basic Costs and Statement of Estimated Costs.
(a) Within ninety (90) days after the expiration of each calendar year
occurring during the term of this Lease, Landlord shall furnish Tenant a
written statement of the Tenant's Proportionate Share of Basic Costs and
the Tenant's Direct Costs occurring during the previous calendar year. The
written statement shall specify the amount by which Tenant's Direct Costs
and Proportionate Share of Basic Costs exceeds or is less than the amounts
paid by Tenant during the previous calendar year pursuant to Section 4.3(b)
below.
(b) At the same time specified in Section 4.2(a) above, Landlord shall
furnish Tenant a written statement of the Estimated Cost for the then
current calendar year.
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4.3 Payment of Additional Rent. Tenant shall pay as additional rent
("Additional Rent") Tenant's Direct Costs and Tenant's Proportionate Share
of Basic Costs. The Additional Rent shall be paid as follows:
(a) With each monthly payment of Basic Annual Rent due pursuant to
Section 3.1 above, Tenant shall pay to Landlord, without offset or
deduction, one twelfth (1/12th) of the Estimated Costs as defined Section
4.1(c).
(b) Within thirty (30) days after delivery of the written statement
referred to in section 4.2(a) above, Tenant shall pay to Landlord the
amount by which Tenant's Direct Costs and Proportionate Share of Basic
Costs, as specified in such written statements, exceed the aggregate of
Estimated Costs actually paid by Tenant for the year at issue. Payments by
Tenant shall be made pursuant to this Section 4.3(b) notwithstanding that a
statement pursuant to Section 4.2(a) is furnished to Tenant after the
expiration of the term of this Lease.
(c) If the annual statement of costs indicates that the Estimated
Costs paid by Tenant pursuant to Section 4.3(a) above for any year exceeded
Tenant's Direct Costs and Tenant's Proportionate Share of Basic Costs for
the same year, upon such determination, Landlord, at its election, shall
either (i) promptly pay the amount of such excess to Tenant, or (ii) apply
such excess against the next installment of Basic Annual Rental or
Additional Rent due hereunder.
4.4 Resolution of Disagreement. Every statement given by Landlord
pursuant to Section 4.2 shall be conclusive and binding upon Tenant unless
within sixty (60) days after the receipt of such statement Tenant shall
notify Landlord that it disputes the correctness thereof, specifying the
particular respects in which the statement is claimed to be incorrect. If
such dispute shall not have been settled by agreement, the parties hereto
shall submit the dispute to arbitration within ninety (90) days after
Tenant's receipt of such statement. Pending the determination of such
dispute by agreement or arbitration as aforesaid, Tenant shall, within,
thirty (30) days after receipt of such statement, pay Additional Rent in
accordance with Landlord's statement, and such payment shall be without
prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith pay Tenant the amount of Tenant's
overpayment of rents resulting from compliance with Landlord's statement
Landlord agrees to grant Tenant reasonable access to Landlord's books and
records for the purpose of verifying operating expenses incurred by
Landlord.
4.5 Limitations. Nothing contained in this Part IV shall be construed
at any time so as to reduce the monthly installments of Basic Annual Rent
payable hereunder below the amount set forth in Section 3.1 of this Lease.
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V. SECURITY DEPOSIT
Intentionally deleted.
VI. USE
6.1 Use of Leased Premises by Tenant. The Leased Premises shall be
used and occupied by Tenant for general office purposes, radio
broadcasting, communications, advertising, and ancillary purposes only and
for no other purpose whatsoever without the prior written consent of
Landlord. For purposes of use of Premises, Tenant includes all subsidiaries
and affiliates of Tenant.
6.2 Prohibition of Certain Activities or Uses.
(a) The Tenant shall not do or permit anything to be done in or about,
or bring or keep anything in the Leased Premises which is prohibited by
this Lease or will, in any way or to any extent:
(i) Adversely affect any fire, liability or other insurance
policy carried with respect to the Building, the Improvements or any of the
contents of the Building (except with Landlord's express written
permission, which will not be unreasonably withheld, but which may be
contingent upon Tenant's agreement to bear any additional costs, expenses
or liability for risk that may be involved).
(ii) Obstruct or interfere with any right of any other tenant or
occupant of the Building or injure or annoy such persons;
(iii) Conflict with or violate any law, statute, ordinance, rule.
regulation or requirement of any governmental unit, agency or authority
(whether existing or enacted as promulgated in the future, known or
unknown, foreseen or unforeseen).
(iv) Adversely overload the floors or otherwise damage the
structural soundness of the Leased Premises or Building, or any part
thereof (except with Landlord's express written permission, which will not
be reasonably withheld, but which may be contingent upon Tenant's agreement
to bear any additional costs, expenses or liability for risk that may be
involved).
(b) The Landlord shall not do or permit anything to be done in or
about, or bring or keep anything in the Building which will in any way or
to any extent:
(i) Adversely affect any fire, liability or other insurance
policy carried with respect to the Leased premises, the Improvements or any
of the contents of the Leased Premises.
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(ii) Obstruct or interfere with any right of Tenant or injure or
annoy Tenant, its employees and invitees.
(iii) Conflict with or violate any law, statute, ordinance, rule,
regulation or requirement of any governmental unit, agency or authority
(whether existing or enacted as promulgated in the future, known or
unknown, foreseen or unforeseen).
(iv) Adversely overload the floors or otherwise damage the
structural soundness of the Building, or any part thereof.
6.3 Affirmative Obligations with Respect to Use.
(a) Tenant and Landlord will comply with all governmental laws,
ordinances, regulations, and requirements, now in force or which hereafter
may be in force, of any lawful governmental body or authorities having
jurisdiction over the Leased Premises and Building respectively, will keep
the Leased Premises and Building respectively and every part thereof in a
clean, neat, and orderly condition, of objectionable noise, odors, or
nuisances, will in all respects and at all times fully comply with all
health and policy regulations, and will not suffer, permit, or commit any
waste.
(b) At all times during the term hereof, Tenant shall, at Tenant's
sole cost and expense, comply with all statutes, ordinances, laws, orders,
rules, regulations and requirements of all applicable federal, state,
county, municipal and other agencies or authorities, now in effect or which
may hereafter become effective, which shall impose any duty upon Landlord
or Tenant with respect to the use, occupation or alterations of the Leased
Premises (including, without limitation, all applicable requirements of the
Americans with Disabilities Act of 1990 and all other applicable laws
relating to people with disabilities, and all rules and regulations which
may be promulgated thereunder from time to time and whether relating to
barrier removal, providing auxiliary aids and services or otherwise) and
upon request of Landlord shall deliver evidence thereof to Landlord.
6.4 Suitability. Tenant acknowledges that except as expressly set
forth in this Lease, neither Landlord nor any other person has made any
representation or warranty with respect to the Leased Premises or any other
portion of the Building, and that no representation has been made or relied
on with respect to the suitability of the Leased premises or any other
portion of the Building or Improvements for the conduct of Tenant's
business. The Leased Premises, Building and Improvements (and each and
every part thereof) shall be deemed to be in satisfactory condition unless,
with sixty (60) days after the Commencement Date, Tenant shall give
Landlord written notice specifying, in reasonable detail, the respects in
which the Leased Premises, Building or Improvements are not in satisfactory
condition. Notwithstanding the foregoing, Landlord shall at Landlords
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sole cost and expense, comply with all statutes, ordinances, laws, orders,
rules, regulations and requirements of all federal, state, county,
municipal and other agencies, now in effect or which may be hereafter
enacted which affect the Building generally.
6.5 Taxes. Tenant shall pay all taxes, assessments, charges, and fees
which during the term hereof may be imposed, assessed or levied by any
governmental or public authority against or upon Tenant's use of the Leased
Premises or any personal property or fixture kept or installed therein by
Tenant and on the value of leasehold improvements to the extent that the
same exceed Building allowances.
VII. UTILITIES AND SERVICE
7.1 Obligation of Landlord. During the term of this Lease the Landlord
agrees to cause to be furnished (a) to the general office portion of the
Leased Premises during customary business hours (7:00 a.m. to 10:00 p.m.
Monday through Saturday, and (b) to the radio/studio portion of the Leased
Premises 24 hours per day, 7 days per week, and during generally recognized
business days, the following utilities and services, the cost and expense
of which shall be included in Basic and/or Direct Costs:
(a) Electricity, water, gas and sewer service.
(b) Telephone connection, but not including telephone stations and
equipment (it being expressly understood and agreed that Tenant shall be
responsible for the ordering and installation of telephone lines and
equipment which pertain to the Leased Premises).
(c) Heat and air-conditioning to such extent and to such levels as, in
Landlord's judgment, is reasonably required for the comfortable use and
occupancy of the Leased Premises subject however to any limitations imposed
by any government agency. The parties agree and understand that the above
heat and air conditioning will be provided Monday through Saturday from
7:00 a.m. to 10:00 p.m., and 24 hours per day, seven days per week to the
radio/studio portion of the Leased Premises and in conformity with the
specifications contained in Section H on Exhibit "F".
(d) Janitorial service.
(e) Security (including the lighting of common halls, stairways,
entries and restrooms) to such extent as is usual and customary in similar
buildings in Salt Lake County, Utah.
(f) Snow removal service.
(g) Landscaping and groundskeeping service.
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(h) Elevator service.
7.2 Tenant's Obligations. Tenant shall arrange for and shall pay the
entire cost and expense of an telephone stations, equipment and use
charges, electric light bulbs (but not fluorescent bulbs used in fixtures
originally installed in the Leased Premises) and all other materials and
services not expressly required to be provided and paid for pursuant to the
provisions of Section 7.1 above.
7.3 Additional Limitations:
(a) Tenant will not, without the written consent of Landlord, which
consent shall not be unreasonably withheld, use any apparatus or device on
the Leased Premises (including but without limitation thereto, electronic
data processing machines, punch card machines or machines using current in
excess of 110 volts) which will in any way or to any extent increase the
amount of electricity or water usually furnished or supplied for use on the
Leased Premises for the use designated in Section 6.1 above, nor connect
with electrical current, except through existing electrical outlets in the
Leased Premises, or water pipes, any apparatus or device, for the purposes
of using electric current or water.
(b) If Tenant shall require water or electric current in excess of
that usually furnished or supplied for use of the Leased Premises, or for
purposes other than those designated in Section 6.1 above, Tenant shall
first procure the consent of Landlord for the use thereof, which consent
Landlord may refuse and/or Landlord may cause a water meter or electric
current meter to be installed in the Leased Premises, so as to measure the
amount of water and/or electric current consumed for any such use. The cost
of such meters and of installation maintenance, and repair thereof shall be
paid for by Tenant and Tenant agrees to pay Landlord promptly upon demand
by Landlord for all such water and electric current consumed as shown by
said meters, at the rates charged for such service by the City in which the
Building is located or the local public utility, as the case may be,
furnishing the same, plus any additional expense incurred in keeping
account of the water and electric current so consumed.
(c) If and where heat generating machines devices are used in the
Leased Premises which affect the temperature otherwise maintained by the
air conditioning system, Landlord reserves the right to install additional
or supplementary air conditioning units for the Leased Premises, and the
entire cost of installing, operating, maintaining and repairing the same
shall be paid by Tenant to Landlord promptly after demand by Landlord.
7.4 Limitation on Landlord's Liability. Landlord shall not be liable
for and Tenant shall not be entitled to terminate this Lease or to
effectuate any abatement or reduction of rent by reason of Landlord's
failure to provide or furnish any of the foregoing utilities or services if
such failure was reasonably beyond the control of Landlord. In no
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event shall Landlord be liable for loss or injury to persons or property,
however, arising or occurring in connection with or atttributable to any
failure to furnish such utilities or services even if within the control of
Landlord unless such loss or injury was caused by Landlord's negligence.
VIII. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS
8.1 Maintenance and Repairs by Landlord. Landlord shall maintain in
good order, condition and repair the Building and Improvements except the
Leased Premises and those other portions of the Building leased, rented or
otherwise occupied by persons not affiliated with the Landlord. Landlord
shall supply normal janitorial and cleaning services reasonably required to
keep the Leased Premises and the Building and Improvements in a clean,
sanitary and orderly condition, the cost and expense of which shall be
included in Direct and/or Basic Costs.
8.2 Maintenance and Repairs by Tenant. Tenant, at Tenant's sole cost
and expense and without prior demand being made, shall maintain the Leased
Premises in good order, condition and repair, and will be responsible for
the painting, carpeting or other interior design work of the Leased
Premises beyond the initial construction phase as specified in Section 2.3
and Exhibit "C" and "E" of the Lease and shall maintain all equipment and
fixtures installed by Tenant. If repainting or recarpeting is required and
authorized by Tenant, the cost for such are the sole obligation of Tenant
and shall be paid for by Tenant immediately following the performance of
said work and a presentation of an invoice for payment.
8.3 Alterations. Except as set forth on Exhibit "C" attached hereto,
Tenant shall not make or cause to be made any alterations, additions or
improvements or install or cause to be installed any fixtures, signs, floor
coverings, interior or exterior lighting, plumbing fixtures, or shades or
awnings, or make any other changes to the Leased Premises without first
obtaining Landlord's written approval, which approval shall not be
unreasonably withheld, Tenant shall present to the Landlord plans and
specifications for such work at the time approval is sought. In the event
Landlord consents to the making of any alterations, additions, or
improvements to the Leased Premises by Tenant, the same shall be made by
Tenant at Tenant's sole cost and expense. All such work with respect to any
alterations, additions, and changes shall be done in a good and workmanlike
manner and diligently prosecuted to completion such that, except as
absolutely necessary during the course of such work, the Leased Premises
shall at all times be a complete operating unit. Any such alterations,
additions, or changes shall be performed and done strictly in accordance
with all laws and ordinances relating thereto. In performing the Work or
any such alterations, additions, or changes, Tenant shall have the same
performed in such a manner as not to obstruct access to any portion of the
Building. Any alterations, additions, or improvements to or of the Leased
Premises, including, but not limited to, wallcovering, paneling, and
built-in cabinet work, but excepting movable furniture and equipment, shall
at once become a part of the realty and shall be surrendered with the
Leased Premises unless Landlord otherwise elects at the end of the term
hereof.
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8.4 Landlord's Access to Leased Premises. Landlord shall have the
right to place, maintain, and repair all utility equipment of any kind in,
upon, and under the Leased Premises as may be necessary for the servicing
of the Leased Premises and other portion of the Building. Landlord shall
upon providing adequate notice to Tenant, also have the right to enter the
Leased Premises at all times to inspect or to exhibit the same to
prospective purchasers, mortgagees, tenants, and lessees, and to make such
repairs, additions, alterations, or improvements as Landlord may deem
desirable. Landlord shall be allowed to take all material upon said Leased
Premises that may be required therefor without the same constituting an
actual or constructive eviction of Tenant in whole or in part and the rents
reserved herein shall in no wise abate while said work is in progress by
reason of loss or interruption of Tenant's business or otherwise, and
Tenant shall have no claim for damages unless Landlord adversely and
materially interferes with Tenant's quiet enjoyment of the Leased Premises.
During the three (3) months prior to expiration of this Lease or of any
renewal term, Landlord may place upon the Leased Premises "For Lease" or
"For Sale" signs which Tenant shall permit to remain thereon.
IX. ASSIGNMENT AND SUBLETTING
9.1 Assignment. Tenant shall have the right to transfer, assign,
mortgage, or hypothecate this Lease, in whole or in part, or permit the use
of the Leased Premises by any person or persons other than Tenant, or
sublet the Leased Premises, or any part thereof, but subject to the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, provided sufficient information is provided to
Landlord to accurately represent the financial condition of those to whom
this Lease will be transferred, assigned, mortgaged, or hypothecated. Any
such prohibition against assigning or subletting shall include any
assignment or subletting by operation of law. Any transfer of this Lease
from the Tenant by merger, consolidation, transfer of assets, or
liquidation shall constitute an assignment for purposes of this Lease. In
the event that Tenant hereunder is a corporation, an unincorporated
association, a partnership, or another entity, the transfer, assignment, or
hypothecation of any stock or interest in such corporation, association,
partnership, or other entity in the aggregate in excess of forty-nine
percent (49%) shall be deemed an assignment within the meaning of this
Section Tenant shall be granted the right to sublet subject to approval
from Landlord which approval shall not be unreasonably withheld.
Notwithstanding anything herein to the contrary, Tenant may assign its
rights without Landlord's consent to any subsidiary, member or affiliate
whose net worth immediately after such transaction is at least as much as
Tenant's net worth immediately prior to the transaction.
9.2 Consent Required:
(a) Any assignment or subletting without Landlord's consent shall be
void, and shall constitute a default hereunder which, at the option of
Landlord, shall result in the termination of this Lease or exercise of
Landlord's other remedies hereunder, Consent to
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any assignment or subletting shall not operate as a waiver of the necessity
for consent to any subsequent assignment or subletting, and the terms of
such consent shall be binding upon any person holding by, under, or through
Tenant.
(b) Landlord shall have no obligation to consent to the proposed
sublease or assignment if the proposed sublessee or assignee or its
business is or may be subject to compliance with additional requirements of
the law, including any related rules or regulations, commonly known as the
"Americans with Disabilities Act of 1990" or similar state or local laws
relating to persons with disabilities beyond those requirements which are
applicable to the tenant desiring to so sublease or assign.
9.3 Landlord's Right in Event of Assignment. If this Lease is assigned
or if the Leased Premises or any portion thereof are sublet or occupied by
any person other than the Tenant, Landlord may collect rent and other
charges from such assignee or other party, and apply the amount collected
to the rent and other charges reserved hereunder, but such collection shall
not constitute concern or waiver of the necessity of consent to such
assignment, subleasing, or other transfer, nor shall such collection
constitute the recognition of such assignee, sublessee, or other party as
the Tenant hereunder or a release of Tenant from the further performance of
all of the covenants and obligations, including obligation to pay rent, of
Tenant herein contained. In the event that Landlord shall consent to a
sublease or assignment hereunder, Tenant shall pay to Landlord reasonable
fees, not to exceed $100.00, incurred in connection with processing of
documents necessary to the giving of such consent.
X. INDEMNITY
10.1 Indemnification By Tenant. Tenant shall defend and indemnify
Landlord and save Landlord harmless from and against any and all suits,
actions, damage and claims, liability and expense in connection with loss
of life, bodily or personal injury, or property damage arising from or out
of any occurrence in, upon, at or from the Leased Premises. or occasioned
wholly or in part by any act or omission of Tenant or its agents,
contractors, employees, servants, invitees, licensees or concessionaires.
All insurance policies carried by Tenant and/or Landlord shall include a
waiver of subrogation endorsement which specifies that the insurance
carrier(s) will waive any right of subrogation against Tenant and/or
Landlord arising out of any insurance claim.
10.2 Release of Landlord. Landlord shall not be responsible or liable
at any time for any loss or damage to Tenant's personal property or to
Tenant's business, including any loss or damage to either the person or
property of Tenant that may be occasioned by or through the acts or
omissions of persons occupying adjacent, connecting, or adjoining space.
Tenant shall store its property in and shall use and enjoy the Leased
Premises and all other portions of the Building and Improvements at its own
risk, and hereby releases Landlord, to the full extent pertained by law,
from all claims of every kind resulting in loss of life, personal or bodily
injury, or property damage.
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10.3 Indemnification By Landlord. Landlord shall defend and indemnity
Tenant and save Tenant harmless from and against any and all suits,
actions, damage and claims, liability and expense in connection with loss
of life, bodily or personal injury, or property damage arising from or out
of any occurrence in, upon, at or from the Building, or occasioned wholly
or in part by any act or omission of Tenant or its agents, contractors,
employees, servants, invitees, licensees or concessionaires. All insurance
policies carried by Tenant and/or Landlord shall include a waiver of
subrogation endorsement which specifies that the insurance carrier(s) will
waive any right of subrogation against Tenant and/or Landlord arising out
of any insurance claim.
10.4 Release of Tenant. Tenant shall not be responsible or liable at
any time for any loss or damage to Landlord's personal property or to
Landlord's business, including any loss or damage to either the person or
property of Landlord that may be occasioned by or through the acts or
omissions of Landlord.
10.5 Notice. Tenant shall give prompt notice to Landlord in case of
fire or accidents in the Leased Premises or in the Building of which the
Leased Premises are a part or of defects therein or in any fixtures or
equipment.
10.6 Litigation. In case Landlord, or Tenant, as the case may be,
without fault on its part, shall be made a party to any litigation
commenced by or against Tenant or Landlord, as the case may be, then the
party joined without fault shall be protected and held harmless by the
other party, and such other party shall pay all costs, expenses, and
reasonable attorneys' fees incurred by the joined party without fault.
XI. INSURANCE
11.1 Insurance on Tenant's Personal Property and Fixtures. At all
times during the term of Lease, Tenant shall keep in force at its sole cost
and expense, hazardous insurance with special causes of loss including
theft coverage, insuring against fire and extended coverage risks
(including vandalism and malicious mischief) in companies acceptable to
Landlord, equal to the replacement cost of Tenant's fixtures, furnishings,
equipment, and contents upon the Leased Premises and all improvements or
additions made by Tenant to the Leased Premises. The Landlord shall be as a
loss payer on all such policies.
11.2 Property Coverage. Landlord shall obtain and maintain in force
"All Risk" insurance, including vandalism and malicious mischief, required
to cover any loss or destruction that the Leased Premises herein may
experience during the Lease period and any extension thereof, and
including, at Landlord's discretion, flood and earthquake coverage if
commercially available at reasonable rates. Such insurance shall also
include coverage against loss of rents. Tenant shall pay Landlord, as a
separate consideration, all reasonable costs to purchase the insurance
called for in this paragraph on the Leased Premises.
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11.3 Liability Insurance. Tenant shall, during the entire term hereof,
keep in full force effect a policy of public liability and property damage
insurance with respect to the Leased Premises and the business operated by
Tenant in the Leased Premises, with a combined single limit for personal or
bodily injury and property damage of not less than $1,000,000.00. The
policy shall name Landlord, any person, firms, or corporations designated
by Landlord and Tenant as insurance and shall contain a clause that the
insurer will not cancel or materially change the Insurance pertaining to
the Leased Premises without first giving Landlord ten (10) days' written
notice. Tenant shall at all times dining the term hereof provide Landlord
with evidence of current insurance coverage. All public liability, property
damage, and other liability policies shall be written as primary policies,
not contributing with coverage which Landlord may carry. All such policies
shall contain a provision that Landlord, although named as an insured,
shall nevertheless be entitled to recover under said policies for any loss
occasioned to it, its servants, agents, and employees by reason of the
negligence of Tenant. All such insurance shall specifically Insure the
performance by Tenant of the indemnity agreement as to liability for injury
to or death of persons or injury or damage to property contained in Part X.
11.4 Waiver of Subrogation. Landlord and Tenant waive all rights to
recover against each other, against any other tenant or occupant of the
Building and against the officers, directors, shareholders, partners, joint
venturers, employees, agents, customer, invitees or business visitors of
each other or of any other tenant or occupant of the Building, for any loss
or damage arising from any cause covered by any insurance carried by the
waiving party, to the extent that such loss or damage is actually covered.
11.5 Lender. Any mortgage lender interest in any part of the Building
or Improvements may, at Landlord's option, be afforded coverage under any
policy required to be secured by Tenant hereunder, by use of a mortgagee's
endorsement to the policy concerned.
XII. DESTRUCTION
If the Leased Premises shall be partially damaged by any casualty insured
against under any insurance policy maintained by Landlord. Landlord shall, upon
receipt of the insurance proceeds, repair the Leased Premises and until repair
is complete the Basic Annual Rent and Additional Rent shall be abated
proportionately as to that portion of the Leased Premises rendered untenantable.
Notwithstanding the foregoing, if: (a) the Leased Premises by reason of such
occurrence are rendered wholly untenantable, or (b) the Leased Premises should
be damaged as a result of a risk which is not covered by insurance, or (c) the
Leased Premises should be damaged in whole or in part during the last six (6)
months of the term or of any renewal hereof, or (d) the Leased Premises or the
Building (whether the Leased Premises are damaged or not) should be damaged to
the extent of fifty percent (50%) or more of the then-monetary value thereof,
then and in any such events, Landlord may either elect to repair the damage or
may cancel this Lease by notice of cancellation within ninety (90) days after
such event and thereupon this Lease shall expire, and Tenant shall
16
vacate and surrender the Leased Premises to Landlord. Tenant's liability for
rent upon the termination of this Lease shall cease as of the day following
Landlord's giving notice of cancellation. In the event Landlord elects to repair
any damage, any abatement of rent shall end five (5) days after notice by
Landlord to Tenant that the Leased Premises have bean repaired. If the damage is
caused by the willful acts of Tenant or its employees, agents, invitees, or
concessionaires, there shall be no abatement of rent. Unless this Lease is
terminated by Landlord, Tenant shall repair and refixture the interior of the
Leased Premises in a manner and in at least a condition equal to that existing
prior to the destruction or casualty and the proceeds of all insurance carried
by Tenant on its property and fixtures shall be held in trust by Tenant for the
purpose of said repair and replacement.
XIII. CONDEMNATION
13.1 Total Condemnation. If the whole of the Leased Premises shall be
acquired or taken by condemnation proceeding, then this Lease shall cease
and terminate as of the earlier of (i) date of title vesting in such
proceeding, or (ii) vacation by Tenant if an order or stipulated agreement
of condemnation has been entered.
13.2 Partial Condemnation. If any part of the Leased Premises shall be
taken as aforesaid, and such partial taking shall render that portion not
so taken unsuitable for the business of Tenant, them this Lease shall cease
and terminate as aforesaid. If such partial taking is not extensive enough
to render the Leased Premises unsuitable for the business of Tenant, then
this Lease shall continue in effect except that the Basic Annual Rent and
Additional Rent shall be reduced in the same proportion that the portion of
the Leased Premises (including basement, if any) taken bears to the total
area initially demised and Landlord shall, upon receipt of the award in
condemnation, make all necessary repairs or alterations to the Building in
which the Leased Premises are located, provided that Landlord shall not be
required to expend for such work an amount in excess of the amount received
by Landlord as damages for the part of the Leased Premises so taken.
"Amount received by Landlord" Shall mean that part of the award in
condemnation which is free and clear to Landlord of any collection by
mortgage lenders for the value of the diminished fee.
13.3 Landlord's Option to Terminate. If more than twenty percent (20%)
of the Building shall be taken as aforesaid, Landlord may, by written
notice to Tenant, terminate this Lease. If this Lease is terminated as
provided in this Section, rent shall be paid up to the day that possession
is so taken by public authority and Landlord shall make an equitable refund
of any rent paid by Tenant in advance.
13.4 Award. Tenant shall not be entitled to and expressly waives all
claim to any condemnation award for any taking, whether whole or partial
and whether for diminution in value of the leasehold or to the fee,
although Tenant shall have the right, to the extent that the same shall not
reduce Landlord's award, to claim from the condemnor, but not from the
Landlord, such compensation as may be recoverable by Tenant in its own
right for damages to Tenant's business and fixtures.
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13.5 Definition. As used in this Part XIII the term "condemnation
proceeding" means any action or proceeding in which any interest in the
Leased Premises is taken for any public or quasi-public purpose by any
lawful authority through exercise of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof.
XIV. RIGHTS TO CURE
14.1 Landlord's General Right to Cure. In the event of breach,
default, or noncompliance hereunder by Landlord, Tenant shall, before
exercising any right or remedy available to it, give Landlord written
notice of the claimed breach, default, or noncompliance. If prior to its
giving such notice Tenant has been notified in writing (by way of notice of
Assignment of Rents and Leases, or otherwise) of the address of a lender
which has furnished any of the financing referred to in Part XV hereof,
concurrently with giving the aforesaid notice to Landlord, Tenant shall, by
certified mail, return receipt requested, transmit a copy thereof to such
lender. For the thirty (30) days following the giving of the notice(s)
required by the foregoing portion of this section (or such longer period of
time as may be reasonably required to cure a matter which, due to its
nature, cannot reasonably be rectified within thirty (30) days, Landlord
shall have the right to cure the breach, default, or noncompliance
involved. If Landlord has failed to cure a default within said period, any
such lender shall have an additional thirty (30) days within which to cure
the same or, if such default cannot be cured willful that period, such time
as may be necessary if within such thirty (30) day period said lender has
commenced and is diligently pursuing the actions or remedies necessary to
cure the breach default, or noncompliance involved (including, but not
limited to, commencement and prosecution of proceedings to foreclose or
otherwise exercise its rights under its mortgage or other security
instrument, if necessary to effect such cure), in which event this Lease
shall not be terminated by Tenant so long as such actions or remedies are
being diligently pursued by said lender.
14.2 Tenant's General Right to Cure. In the event of breach, default,
or noncompliance hereunder by Tenant, other than a payment breach, Landlord
shall before exercising any right or remedy available to it, give Tenant
written notice of the claimed breach, default, or noncompliance. For the
thirty (30) days following the giving of the notice required by the
foregoing portion of this section (or such longer period of time as may be
reasonably required to cure a matter which, due to its nature, cannot
reasonably be rectified within thirty (30) days, Tenant shall have the
right to cure the breach, default, or noncompliance involved.
14.3 Mechanic's Lien. Should any mechanic's or other lien be filed
against the Leased Premises or any part thereof by reason of Tenant's acts
or omissions or because of a claim against Tenant, Tenant shall cause the
same to be canceled and discharged of record by bond or otherwise within
ten (10) days after notice by Landlord.
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XV. FINANCING; SUBORDINATION
15.1 Subordination, Tenant acknowledges that it might be necessary for
Landlord or its successors or assigns to secure mortgage loan financing or
refinancing affecting the Leased Premises. Tenant also acknowledges that
the lender interested in any given loan may desire that Tenant's interest
under this Lease be either superior or subordinate to the mortgage then
held or to be taken by said Lender. Accordingly, Tenant agrees that at the
request of Landlord at any time and from time to time Tenant shall execute
and deliver to Landlord an instrument, in form reasonably acceptable to
Landlord, whereby Tenant subordinates its interest under this Lease and in
the Leased Premises to any first mortgage or deed of trust covering the
Leased Premises (a "Mortgage"); provided, however, that any such instrument
or subordination executed by Tenant shall provide that so long as Tenant
continues to perform all of its obligations under this Lease its tenancy
shall remain in full force and effect notwithstanding Landlord's default in
connection with the Mortgage concerned or any resulting foreclosure or sale
or transfer in lieu of such proceedings. Tenant shall not subordinate its
interests hereunder or in the Leased Premises to any lien or encumbrance
other than the Mortgages described in and specified pursuant to this
Section 15.1 without the prior written consent of Landlord and of the
lender interested under each Mortgage then affecting the Leased Premises.
Any such unauthorized subordination by Tenant shall be void and of no force
or effect whatsoever.
15.2 Amendment. Tenant recognizes that Landlord's ability from time to
time to obtain construction, acquisition, standing, and/or permanent
mortgage loan financing for the Building and/or the Leased Premises may in
part be dependent upon the acceptability of the terms of this Lease to the
lender concerned. Accordingly, Tenant agrees that from time to time it
shall, if so requested by Landlord and if doing so will not substantially
and adversely affect Tenant's economic interests hereunder join with
Landlord in amending this Lease so as to meet the needs or requirements of
any lender which is considering making or which has made a loan secured by
a Mortgage affecting the Leased Premises.
15.3 Attornment and Non-Disturbance. Any sale, assignment, or transfer
of Landlord's interest under this Lease or in the Leased Premises including
any such disposition resulting from Landlord's default under a Mortgage,,
shall be subject to this Lease and also Tenant shall attorn to Landlord's
successor and assigns and shall recognize such successor or assigns as
Landlord under this Lease, regardless of any rule of law to the contrary or
absence of privity of contract, Landlord shall as soon as reasonably
possible provide Tenant a non-disturbance agreement from any and all
existing lenders or lien homers on the Property.
15.4 Financial information. As a condition to Landlord's acceptance of
this Lease, Tenant shall provide financial information sufficient to verify
to Landlord the financial condition of Tenant. Tenant hereby represents and
warrants that none of such information contains or will intentionally
contain any untrue statement of material fact, nor
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will such information intentionally omit any material fact necessary to
make the statements contained therein misleading or unreliable.
XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD
16.1 Default by Tenant. Upon the occurrence of any of the following
events, Landlord shall have the remedies set forth in Section 16.2:
(a) Tenant fails to pay any installment of Basic Annual Rent or
Additional Rent or any other sum due hereunder within ten (10) days after
Tenant receives written notice of rent due.
(b) Tenant fails to perform any other term, condition, or covenant to
be performed by it pursuant to this Lease within ten (10) days after
written notice of such default shall have been given to Tenant by Landlord
or, if cure would reasonably require more than ten (10) days to complete,
if Tenant fails to commence performance within the ten (10) day period or
fails diligently to pursue such cure to completion.
(c) Tenant of this Lease shall become bankrupt or insolvent or file
any debtor proceedings or have taken against such party in any court
pursuant to state or federal statute, a petition in bankruptcy or
insolvency, reorganization, or appointment of a receiver or trustee; or
Tenant petitions for or enters into an arrangement; or suffers this Lease
to be taken under a writ of execution.
16.2 Remedies. In the event of any default by Tenant hereunder,
Landlord may at any time, without waiving or limiting any other right or
remedy available to it, terminate Tenant's rights under this Lease by
written notice, reenter and take possession of the Leased Premises by any
lawful means (with or without terminating this Lease), or pursue any other
remedy allowed by law. Tenant agrees to pay to Landlord the cost of
recovering possession of the Leased Premises, all costs of reletting, and
all other costs and damages arising out of Tenant's default, including
attorneys' fees. Notwithstanding any reentry, the liability of Tenant for
the rent reserved herein shall not be extinguished for the balance of the
Term, and Tenant agrees to compensate Landlord upon demand for any
deficiency arising from reletting the Leased Premises at a lesser rent than
applies under this Lease; provided however, Landlord has a duty to
diligently pursue a re-let of the Premises and diligently and in good faith
take such other action to mitigate Landlord's damages.
16.3 Past Due Sums; Penalty. If Tenant fails to pay, when the same is
due and payable, any Basic Annual Rent, Additional Rent, or other sum
required to be paid by it hereunder, such unpaid amounts shall bear
interest from the due date thereof to the date of payment at a fluctuating
rate equal to two percent (2%) per annum above the prime rate of interest
charged by First Security Bank of Utah, Salt Lake City, Utah, In addition
thereto, Tenant shall pay a sum of two and one half percent (2.5%) of such
unpaid amount as a service fee. Notwithstanding the foregoing, however,
Landlord's right concerning such
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interest and service fee shall be limited by the maximum amount which may
properly be charged by Landlord for such purposes under applicable law and
shall not be compounded and shall not be compounded.
XVII. PROVISIONS APPLICABLE AT TERMINATION OF LEASE
17.1 Surrender of Premises. At the expiration of this Lease, except
for changes made by Tenant that were approved by Landlord, Tenant shall
surrender the Leased premises in the same condition, less reasonable wear
and tear, as they were in upon delivery of possession or Commencement Date
thereto under this Lease and shall deliver all keys to Landlord. Before
surrendering the Leased Premises, Tenant shall remove all of its personal
property and trade fixtures and such property or the removal thereof shall
in no way damage the Leased Premises, and Tenant shall be responsible for
all costs, expenses and damages incurred in the removal thereof. If Tenant
fails to remove its personal property and fixtures upon the expiration of
this Lease, the same shall be deemed abandoned and shall become the
property of Landlord.
17.2 Holding Over. Any holding over after the expiration of the term
hereof or of any renewal term with the prior written consent of Landlord
shall be construed to be a tenancy month to month at 110% of the rate then
in effect as Landlord may designate and on the terms herein specified so
far as possible.
XVIII. ATTORNEYS' FEES
In the event that at any time during the term of this Lease either Landlord
or the Tenant institutes any action or proceeding against the other relating to
the provisions of this Lease or may default hereunder, then the unsuccessful
party in such action or proceeding agrees to reimburse the successful party for
the reasonable expenses of such action including reasonable attorneys' fees,
incurred therein by the successful party.
XIX. ESTOPPEL CERTIFICATE
19.1 Landlord's Right to Estoppel Certificate. Tenant shall, within
fifteen (15) days after Landlord's request, execute and deliver to Landlord
a written declaration, in form and substance similar to Exhibit "D", in
recordable form: (1) ratifying this Lease; (2) expressing the Commencement
Date and expiration date hereof; (3) certifying 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); (4) that all
conditions under this Lease to be performed by Landlord have been
satisfied; (5) that there are no defenses or offsets against the
enforcement of this Lease by the Landlord, or stating those claimed by
Tenant; (6) the amount of advance rental, if any, (or none if such is the
case) paid by Tenant; (7) the date to which rental has been paid; (8) the
amount of security deposited with Landlord;
21
and (9) such other information as Landlord may reasonably request.
Landlord's mortgage lenders and/or purchasers shall be entitled to rely
upon such declaration.
19.2 Effect of Failure to Provide Estoppel Certificate. Tenant's
failure to furnish any Estoppel Certificate within fifteen (15) days after
request therefor shall be deemed a default hereunder and moreover, it shall
be conclusively presumed that: (a) this Lease is in full force and effect
without modification in accordance with the terms set forth in the request;
(b) that there are no unusual breaches or defaults on the part of the
Landlord; and (c) no more than one (1) month's rent has been paid in
advance.
XX. COMMON AREAS
20.1 Definition of Common Areas. "Common Areas" means all areas,
space, equipment and special services provided for the joint or common use
and benefit of the tenants or occupants of the Building and Property or
portions thereof, and their employees, agents, servants, patients,
customers, and other invitees (collectively referred to herein as
"Occupants") including without limitation, parking, access roads,
driveways, retaining walls, landscaped areas, serviceways, loading docks,
pedestrian walks; courts, stairs, ramps, and sidewalks; common corridors,
rooms and restrooms; air-conditioning, fan, janitorial, electrical and
telephone rooms or closets; and all other areas within the Building which
are not specified for exclusive use or occupancy by Landlord or any tenant
(whether or not they are leased or occupied).
20.2 License to Use Common Areas. The Common Areas shall be available
for the common use of all Occupants and shall be used and occupied under a
revocable license. If any such license shall be revoked, or if the amount
of such areas shall be changed or diminished, Landlord shall not be subject
to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent nor shall revocation or diminution of such
areas be deemed constructive or actual eviction. All Common Areas shall be
subject to the exclusive control and management of Landlord. Landlord shall
have the right to construct, maintain and operate lighting and other
facilities on all said areas and improvements; to police the same; to
change the area, level, location, and arrangement of parking areas and
other facilities; to restrict parking by tenants, their officers, agents,
and employees; to close all or any portion of said areas or facilities to
such extent as may be legally sufficient to prevent a dedication thereof or
the accrual of any right to any person or the public therein; and to close
temporarily all or any portion of the parking areas or facilities to
discourage non-occupant parking. Landlord shall operate and maintain the
Common Areas in such manner as Landlord in its discretion shall determine,
shall have full right and authority to employ and discharge all personnel
with respect thereto, and shall have the right, through reasonable rules,
regulation, and/or restrictive covenants promulgated by it from time to
time, to control use and operation of the Common Areas in order that the
same may occur in a proper and orderly fashion.
22
20.3 Parking. Automobiles of Tenant and all Occupants (as defined
above) associated with Tenant shall be parked only within parking areas not
otherwise reserved by Landlord. Landlord or its agents shall, without any
liability to Tenant or its Occupants, have the right to cause to be removed
any automobile that may be wrongfully parked in a prohibited or reserved
parking area, and Tenant agrees to indemnify, defend and hold Landlord
harmless from and against any and all claims, losses, demands, damages and
liabilities asserted or arising with respect to or in connection with any
such removal of an automobile. Tenant shall from time to time, upon request
of Landlord, supply Landlord with a list of license plate numbers of all
automobiles owned by Tenant or its day-to-day Occupants.
XXI. SIGNS, AWNINGS, AND CANOPIES
Tenant shall have the right to install an exterior sign on the Building
subject to Landlord's approval which shall not be unreasonably withheld. Tenant
shall be entitled to maintain its exterior signage on the Building consistent
with City ordinances. All interior signage shall conform to the rules and
regulations established for the Building. Landlord shall notify Tenant of any
unconforming signage. If not corrected within thirty (30) days, Landlord may, at
Tenant's cost, and without liability to Tenant, enter the Leased Premises and
remove any item erected in violation of this Section. Tenant further agrees to
maintain such sign, awning, canopy, decoration, lettering, advertising matter,
or other things, as may be approved, in good condition and repair at all times.
XXII. MISCELLANEOUS PROVISIONS
22.1 No Partnership. Landlord does not by this Lease,, in any way or
for any purpose, become a partner or joint venturer of Tenant in the
conduct of its business or otherwise.
22.2 Force Majeure. Landlord shall be excused for the period of any
delay in the performance of any obligations hereunder when prevented from
so doing by cause or causes beyond Landlord's control, including labor
disputes, civil commotion, war, governmental regulations or controls, fire
or other casualty, inability to obtain any material or service, or acts of
God.
22.3 No Waiver. Failure of Landlord to insist upon the strict
performance of any provision or to exercise any option hereunder shall not
be deemed a waiver of such breach. No provision of this Lease shall be
deemed to have been waived unless such waiver be in writing signed by
Landlord.
22.4 Notice. Any notice, demand, request, or other instrument which
may be or is required to be given under this Lease shall be delivered in
person or sent by United States certified or registered mail, postage
prepaid and shall be addressed (a) if to Landlord, at the place specified
for payment of rent, which is set forth below, and (b) if to Tenant, either
at
23
the Leased Premises or at any other current address for Tenant which is
known to Landlord, including the address set forth below. Either party may
designate such other address as shall be given by written notice.
Landlord: Trolley Corners Partnership
c/o Trollco Properties Inc.
515 South 700 East, Suite 1A
Salt Lake City, Utah 84102
(801) 364-7231
Fax (801) 364-7249
Tenant: Simmons Media Group, Inc.
515 South 700 East, Suite 1C
Salt Lake City, Utah 84111
(801)_______________________
Fax (801)___________________
22.5 Captions; Attachments; Defined Terms:
(a) The captions to the section of this Lease are for convenience of
reference only and shall not be deemed relevant in resolving questions of
construction or interpretation under this Lease.
(b) Exhibits referred to in this Lease, and any addendums and
schedules attached to this Lease shall be deemed to be incorporated in this
Lease as though part thereof.
22.6 Recording. Tenant may not record this Lease or a memorandum
thereof without the written consent of Landlord, which consent shall not be
unreasonably withheld. Landlord, at its option and at any time, may file
this Lease for record with the Recorder of the County in which the Building
is located.
22.7 Partial Invalidity. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be
invalid, the remainder of this Lease or the application of such provision
to persons or circumstance, other than those as to which it is held invalid
shall not be affected thereby and each provision of this Lease shall be
valid and enforced to the fullest extent permitted by law.
22.8 Broker's Commissions. Tenant represents and warrants that there
are no claims for brokerage commissions or finder's fees in connection with
this Lease other than GVA Business Properties Group and The Boyer Company
and agrees to indemnify Landlord against and hold it harmless from all
liabilities arising from such claims, including any attorneys' fees
connected therewith.
24
22.9 Tenant Defined: Use of Pronouns. The word "Tenant" shall be
deemed and taken to mean each and every person or party executing this
document as a Tenant herein. If there is more than one person or
organization set forth on the signature line as the Tenant, the liability
hereunder shall be joint and several. If there is more than one Tenant, any
notice required or permitted by the terms of this Lease may be given by or
to any one thereof, and shall have the same force and effect as if given by
or to all thereof. The use of the neuter singular pronoun to refer to
Landlord or Tenant shall be deemed a proper reference even though Landlord
or Tenant may be an individual, a partnership, a corporation, or a group of
two or more individuals or corporations. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense
where there is more than one Landlord or Tenant and to corporations,
associations, partnerships, or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
22.10 Provisions Binding, Etc.. Except as otherwise provided, all
provisions herein shall be binding upon and shall inure to the benefit of
the parties, their legal representative, heirs, successors, and assigns.
Each provision to be performed by Tenant shall be construed to be both a
covenant and a condition, and if there shall be more than one Tenant, they
shall all be bound, jointly and severally, by such provisions. In the event
of any sale or assignment (except for purposes of security or collateral)
by Landlord of the Building, the Leased Premises, or this Lease, Landlord
shall, from and after the Commencement Date (irrespective of when such sale
or assignment occurs), be entirely relieved of all of its obligations
hereunder.
22.11 Entire Agreement, Etc.. This Lease and the Exhibits, Riders,
and/or Addenda, if any, attached hereto, constitute the entire agreement
between the parties. Any guaranty attached hereto is an integral part of
this Lease and constitutes consideration given to Landlord to enter in this
Lease. Any prior conversations or writings are merged herein and
extinguished. No subsequent amendment to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed. Submission of this
Lease for examination does not constitute an option for the Leased Premises
and becomes effective as a lease only upon execution and delivery thereof
by Landlord to Tenant. If any provision contained in the rider or addenda
is inconsistent with a provision in the body of this Lease, the provision
contained in said rider or addenda shall control. It is hereby agreed that
this Lease contains no restrictive covenants or exclusives in favor of
Tenant. The captions and Section numbers appearing herein are inserted only
as a matter of convenience and are not intended to define, limit, construe,
or describe the scope or intent of any section or paragraph.
22.12 Governing Law: The interpretation of this Lease shall be
governed by the laws of the State of Utah. Tenant hereby expressly and
irrevocably agrees that Landlord may bring any action or claim to enforce
the provisions of this Lease in the State of Utah, County of Salt Lake, and
the Tenant irrevocably consents to personal jurisdiction in the State of
Utah for the purposes of any such action or claim. Tenant further
irrevocably consents to service of process in accordance with the
provisions of the laws of the State of Utah. Nothing herein shall be deemed
to preclude or prevent Landlord from bringing any
25
action or claim to enforce the provisions of this Lease in any other
appropriate place or forum.
22.13 Recourse by Tenant. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that it shall look solely to the estate and
property of Landlord in the land, Buildings and Improvements thereto, and
subject to prior rights of any mortgagee, for the collection of any
judgment (or other judicial process) requiting the payment of money by
Landlord in the event of any default or breach by Landlord with respect to
any of the terms, covenants, and conditions of this Lease to be observed
and/or performed by Landlord, and no other assets of Landlord or any of its
partners, shareholders, successors, or assigns shall be subject to levy,
execution, or other procedures for the satisfaction of Tenant's remedies.
22.14 Choice of Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Utah.
22.15 First Right of Refusal. If, prior to the expiration or sooner
termination of this Lease, any space adjoining the Premises becomes vacant
and available for lease during this Lease term, Landlord shall notify
Tenant of its availability in writing and Tenant shall have (30) days from
the date of Landlord's notice to Tenant to advise Landlord in writing that
Tenant accepts such space offered in its present condition, and agrees that
it shall become a part of the Premises. Failure by Tenant to notify
Landlord within the time specified shall constitute Tenant's waiver of its
right to add such space to its Premises. The Base Right for the space
offered and the approximate dates possession is to be delivered shall be
included in Landlord's notice to Tenant. Tenant's obligation to commence
payment of Base Rent shall occur on the earlier of the date possession is
delivered to Tenant by Landlord or when Tenant occupies all or a portion of
such space and continues until the expiration or sooner termination of this
Lease.
Any additional rental obligation of Tenant contained in this Lease and
based upon the relationship of area of the Premises to the rentable area of
the Building shall be adjusted to reflect the increase in the area of the
Premises. Prior to delivery of possession, Tenant shall execute an
amendment to this Lease reflecting the addition to the Premises, the
additional Base Rental, the change in ratio of the Premises to the Building
area and any other revisions necessary because of such additional space
being added to the additional Premises. All other terms and conditions of
this Lease shall apply to the additional Premises.
22.16 Expansion Space. Tenant shall lease the approximate 2,637 usable
square foot space shown on Exhibit "B" upon the same terms and conditions
as contained in this Lease beginning July 1, 2003. Landlord shall notify
Tenant in writing if the space becomes available sooner than July 2003, and
Tenant shall have sixty (60) days to move into the space before rent
commences. An additional ten (10) parking spaces shall be added to Tenant's
non-exclusive parking rights when the space becomes part of the Leased
Premises. Furthermore, Landlord shall provide a $16.00 per square foot
allowance for tenant improvement work performed by Tenant in the expansion
space.
26
22.17 Option to Extend. Landlord hereby grants to Tenant the right and
option to extend this Lease for two (2) periods of five (5 years each on
the same terms and conditions as contained herein; provided, however, that
the rent applicable during each such option period shall be adjusted as of
the beginning of each such option period (the "Option Date") as follows:
(a) Average Market Rate. At least ninety (90) days prior to the
applicable Option Date, Landlord and Tenant shall, in good faith and using
reasonable diligence, determine the average market leasing rate (including
market rent concessions, cash allowances, tenant improvement allowances,
and all other concession being offered to tenants) per rentable square foot
of the Leased Premises (the "Average Market Rate") then existing for
potential tenants for like office space of buildings of similar quality to
the Building in Salt Lake City, Utah (the "Comparable Buildings"). Landlord
and Tenant shall take into consideration location of each such building and
the market appeal of each such building in determining which buildings then
existing are of similar quality to the Building. If Landlord and Tenant
fail to agree upon the Average Market Rate at least ninety (90) days prior
to the Option Date, then Landlord and Tenant shall attempt to agree, in
good faith, upon a single appraiser not later than seventy-five (75) days
prior to the Option Date. If Landlord and Tenant are unable to agree upon a
single appraiser within such time period, then Landlord and Tenant shall
each appoint one appraiser not later than sixty-five (65) days prior to the
Option Date. Within ten (10) days thereafter, the two appointed appraisers
shall appoint a third appraiser. If either Landlord or Tenant shall fail to
appoint its appraiser within the prescribed time period, the single
appraiser appointed shall determine the Average Market Rate for the Lease
Premises. If both parties shall fail to appoint appraisers within the
prescribed time periods, then the first appraiser thereafter selected by
either party shall determine the Average Market Rate for the Leased
Premises. Each party shall bear the cost of its own appraiser and the
parties shall share equally the costs of the single or the third appraiser
if applicable. Each appraiser selected pursuant hereto shall have at least
five (5) years experience in appraising commercial real property comparable
to the Building in Salt Lake County, Utah. Unless a single appraiser is
chosen, the Average Market Rate for the Leased Premises shall be the
arithmetic average of the two (2) of the three (3) appraisals which are
closest in amount, and the third appraisal shall be disregarded, Landlord
ad Tenant shall instruct the appraiser(s) to complete their determination
of Average Market Rate not later than thirty (30) days prior to the Option
Date. If the Average Market Rate is not determined prior to the Option
Date, then Tenant shall continue to pay to Landlord the rent applicable to
the Leased Premises immediately prior to such additional term until the
Average Market Rate is determined. When the Average Market Rate of the
Leased Premises is determined, Landlord shall deliver notice thereof to
Tenant and Tenant shall pay to Landlord within ten (10) days affix receipt
of such notice the difference between the rent actually paid by Tenant to
Landlord and the new rental determined hereunder. Notwithstanding the
foregoing, in the event that the Average
27
Market Rate is less than eighty percent (80%) of the rent applicable to the
Leased Premises immediately prior to the Option Date, Landlord shall have
the right to terminate this Lease by written notice to Tenant within five
(5) days of the determination of the Average Market Rate, such termination
to become effective six (6) months following the date of such notice to
Tenant. During the six (6) month additional period, Tenant shall continue
to pay Landlord the rent applicable to the Leased Premises immediately
prior to such additional term.
(b) Exercise. Between the twelfth (12th) and seventh (7th) months
prior to the expiration of the then-current term, Landlord shall give
Tenant written notice reminding Tenant that Tenant must exercise its option
to extend at least six (6) months prior to the expiration of such current
term (the "Reminder Notice"). Tenant shall exercise the option to extend by
giving Landlord written notice thereof at least six (6) month prior to the
expiration of such current term; provided, that if Landlord fails to timely
give the Reminder Notice to Tenant, and if Tenant fails to timely give
Landlord written notice exercising the option to extend, then Landlord
shall give Tenant written notice that such option to extend has not been
exercised, and Tenant then shall have an additional thirty (30) days after
receiving Landlord's notice during which to exercise such option to extend
by giving Landlord written notice thereof within that additional thirty
(30) day period.
22.18 Satellite Dishes. Landlord shall lease to Tenant at no
additional charge the ground indicated and shown on Exhibit "G" attached
hereto for the propose of installing Tenant's satellite dishes and
communication equipment. Any improvements shall be at Tenant's sole cost
and expense and shall be in accordance with all applicable codes.
22.19 Option to Terminate, Landlord grants Tenant the option to
terminate this Lease provided the Lease is in full force and effect as of
the one hundred twentieth (120th) month of the lease term by giving
Landlord written notice of its intent to terminate on or before the one
hundred eighth (108th) month of the initial fifteen (15) year term. Tenant
shall pay Landlord as consideration Landlord's unamortized costs in the
amount of Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00).
28
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease
on the date first set forth above.
LANDLORD: TROLLEY CORNERS PARTNERSHIP,
A UTAH GENERAL PARTNERSHIP, BY
ITS GENERAL PARTNER, TROLLCO
PROPERTIES, INC.
By: /s/ JERRY M. PLACE
--------------------------
Jerry M. Place
President
TENANT: SIMMONS MEDIA GROUP, INC., A
UTAH CORPORATION
By: /S/ DAVID E. SIMMONS
--------------------------
Its: PRESIDENT
------------------------
29
NOTARY
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 10TH day of SEPTEMBER, 1999, personally appeared before me JERRY M.
PLACE, who duly acknowledged that he executed the foregoing Lease as the
PRESIDENT of TROLLEY CORNERS PARTNERSHIP, A UTAH GENERAL PARTNERSHIP, BY ITS
GENERAL PARTNER, TROLLCO PROPERTIES, INC.
My commission Expires: /s/ GARTH T. BUNKER
8/1/00 ----------------------------------
---------------- Notary Public
Residing at SALT LAKE COUNTY
[Notary Seal]
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
This foregoing instrument was acknowledged before me this day of
----
, 1999, by , the manager of
- ------------ ------------------------ ---------------
, a limited liability company.
- ----------------------------- ------------------
My Commission Expires:
----------------------------------
Notary Public
4/28/01 Residing at
- -------------------------- -----------------------
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 9 day of SEPTEMBER, 1999, personally appeared before me, one of the
signers of the foregoing Lease, who duly acknowledged to me that he executed the
same.
My Commission Expires: /s/ NANCY NAPPI
----------------------------------
APRIL 1, 2002 Notary Public
- ------------------------
Residing at 1273 W. Koradine Dr.
SO. JORDAN, UTAH
-----------------------
[Notary Seal]
30
STATE OF )
---------------------------
) ss
COUNTY OF )
---------------------------
On this day of , 199 ,
----------- ------------------------------------ -----
personally appeared before me, who duly
-------------------------------
acknowledged to me that he executed the foregoing Lease as one of the
----------
Partners in ,a
----------------------------------- --------------------------------
Partnership.
My commission Expires:
----------------------------------
- ------------------------ Notary Public
Residing at
-----------------------
STATE OF )
---------------------------
) ss
COUNTY OF )
---------------------------
On this day of , 199 , personally
----------- --------------------------- -----
appeared before me , and
-------------------------------------- -------------------
,who being duly sworn, did say that they are the
------------------------------
and respectfully, of
------------------------------- ----------------------------
, a Corporation, and that said instrument was
-----------------------------------
signed in behalf of said corporation by authority of its by-laws or a resolution
of its Board of Directors, and said and
----------------------------- ------------
acknowledged that said corporation executed the same.
- ---------
My Commission Expires:
----------------------------------
- ---------------------------- Notary Public
Residing at
-----------------------
31
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
TROLLEY CORNERS
TROLLEY CORNERS is situated in the City of Salt Lake, Salt Lake County,
State of Utah, and is described as follows:
Beginning at the northwest corner of Lot 5, Block 26, Plat "B" Salt Lake
City Survey running; thence East 330.0 feet; thence South 202.12 feet; thence
East 60.0 feet; thence South 37.13 feet; thence West 60.0 feet; thence South
99.0 feet to a point 8.25 feet South of the Southeast corner of Lot 4, Block 26,
Plat "B", Salt Lake City Survey; thence West 177.0 feet; thence North 90.75
feet; thence West 153.0 feet; thence North 247.50 feet to the point of the
beginning.
A-1
EXHIBIT "B"
PLANS OF LEASED PREMISES
EXHIBIT "B" TO BE PROVIDED FOLLOWING COMPLETION OF
ARCHITECTURAL CONCEPTUAL DRAWINGS.
B-1
EXHIBIT "C"
WORK LETTER
CONSTRUCTION AND/OR FINISHING OF
IMPROVEMENTS TO LEASED PREMISES
In accordance with the provisions of the body of the Lease to which this
Exhibit "C" is attached, the improvements to the Leased Premises shall be
constructed and/or finished (as the case may be) in the manner described, and
upon all of the terms and conditions contained in the following portion of this
Exhibit "C".
I. GENERAL DESCRIPTION OF WORK:
A. LANDLORD'S CONSTRUCTION OBLIGATION: Landlord's Construction Obligation
respecting improvements to the Leased Premises shall consist of the following
described items or elements of work (where more than one type of material,
structure, or method is indicated, Landlord shall have the option of selecting
or employing any thereof):
1. STRUCTURAL:
(a) FRAME: The building shall be of steel or concrete frame,
reinforced concrete, or bearing wall construction designed in
accordance with the applicable building code.
(b) EXTERIOR WALLS: Insulated exterior walls of the building
shall be of masonry, concrete, or such other material(s) as may be
selected by Landlord's architect.
(c) FLOOR: Floor shall be of concrete slab.
2. BASE BUILDING: The Landlord shall provide the Tenant the following
as part of the base building shell and parking: Landscaping, site
identification, stairwells, mechanical rooms, and janitorial closets on
Leased Premise floors.
3. UTILITIES:
(a) WATER AND SEWER: Water and sewer service shall be furnished
to the toilet rooms on the floors of the Leased Premises.
C-1
(b) ELECTRICITY: Electrical service shall be provided to panel on
the floors of the Leased Premises.
4. HEATING, AIR CONDITIONING, AND SPRINKLERS:
(a) AIR CONDITIONING AND HEATING: HVAC trunk lines shall be
provided to the floor area. No distribution or controls shall be
provided by Landlord.
(b) SPRINKLERS: Automatic sprinkler system, if and to the extent
required by the applicable code, shall be installed in the Leased
Premises.
5. DEMOLITION: Landlord shall demolish the existing interior walls,
ceilings, etc., as indicated on Valentiner's demolition plans.
B. TENANT'S CONSTRUCTION OBLIGATION: The work to be performed by Landlord
in satisfying its obligations respecting construction improvements to the Leased
Premises shall be limited to that described in the foregoing Section. All other
items or elements of work shall be provided by Tenant at Tenant's expense. Such
other work shall constitute Tenant's Construction Obligation respecting
improvements to the Leased Premises and shall include, but not necessarily be
limited to, the purchase, installation, and/or performance (as the case may be)
of the following described items or elements of work:
1. ELECTRIC FIXTURES AND EQUIPMENT: All electrical work and
distribution from panel:
2. TELEPHONE: All arrangements for telephone service and all conduits
for telephone wires in the Leased Premises.
3. UTILITY METERS: All meters necessary to separately measure
electricity, water, and gas consumption in the Lease Premises.
4. WALLS: All interior partitioning and drywall on all party or the
walls surrounding the Leased Premises.
5. DOORS: All interior doors and door frames.
6. FLOOR COVERING: All floor covering and floor materials other than
concrete.
7. ALARM SYSTEM: Any alarm systems or other protective devices.
8. DEMISING WALLS: Demising walls (i.e., walls dividing the Leased
Premises for areas, if any, in the same building occupied by other lessees)
shall be of wood frame, steel stud, or masonry.
C-2
9. SPECIAL PLUMBING AND WATER HEATER: All extra plumbing (either
roughing-in or fixtures) required for Tenant's special needs and any water
heater required.
10. SPECIAL VENTILATION: All ventilation and related equipment not
installed under Landlord's Construction Obligation.
11. SPECIAL EQUIPMENT: All special equipment such as conveyors, lifts,
etc.
12. PAINTING: All interior painting.
13. CEILING: The following shall be furnished and installed: suspended
type ceiling using pre-formed panels; drywall blown acoustical tile
ceilings; light coves and specially hung or furred ceiling.
14. HEATING AND AIR CONDITIONING: All ducting distribution and
controls.
15. RESTROOMS: Restrooms or elevators within the Premises.
16. SIGNAGE: All exterior and interior signage.
17. SIDEWALK: Sidewalk or entrances exclusive to Tenant's Premises.
II. PLANS
A. LANDLORD'S PLANS: To the extent that the same has not heretofore
occurred, Landlord shall furnish, construct and install the items and elements
comprising Landlord's Construction Obligation substantially in accordance with
the plans, specifications, and working drawings applicable thereto (hereinafter
referred to as "Landlord's Plans") prepared by the architectural firm of
Valentiner & Associates as Landlord's Plans may be changed or modified from time
to time.
B. TENANT'S PLANS: Landlord and Tenant shall collaborate in preparation of
complete plans and specifications (hereinafter referred to as "Tenant's Plans")
detailing the item and elements comprising Landlord's Construction Obligation
and Tenant's Plans. Tenant shall then proceed promptly to prepare Tenant's Plans
and shall submit such Plans to Landlord for written approval (not to be
unreasonably withheld.) The approval by Landlord of Tenant's plans for work to
be performed on the Demised Premises, whether by Landlord or Tenant, shall in no
way create any responsibility or liability on the part of Landlord for their
completeness, design sufficiency or compliance with any and all laws, rules and
regulations of federal, state, county and municipal agencies or authorities. Any
objections by Landlord and the reason therefore shall
C-3
be given to Tenant's Plans as proposed, If Tenant fails within forty-five (45)
days after receiving the necessary information from Landlord to furnish to
Landlord Tenant's Plans as proposed, Landlord shall have the right to terminate
the Lease upon written notice to Tenant (without prejudice to any right Landlord
may have against Tenant for damages arising out of Tenant's failure).
III. CONSTRUCTION
A. COMPLETION BY LANDLORD: To the extent that the same has not heretofore
occurred, Landlord shall construct and complete all the items or elements or
work entering into Landlord's Construction Obligation as soon as reasonably
possible, but in no event later than four (4) months after the date of the
Lease. In the event Landlord's Construction Obligations have not been fulfilled
upon the expiration of said four (4) month period, Tenant shall have the right
to exercise any right or remedy available to it under applicable law, except
that under no circumstances shall Landlord be liable to Tenant for any
incidental or consequential loss or damage to Tenant resulting from delay in
construction. All of the items or elements of work entering into Landlord's
Construction Obligation shall be furnished, constructed, and installed
substantially in accordance with those portions or Tenant's Plans applicable
thereto. Tenant agrees that by entering into possession of the Leased Premises
pursuant to the following Section B Tenant will have thereby accepted all of the
construction work performed by Landlord and will have thereby accepted the
Leased Premises in their then condition and hereby waives any claim against
Landlord thereafter arising out of the condition of improvements to the Leased
Premised. Landlord shall not be liable for any latent, patent, or observable
defects in such improvements after such acceptance by Tenant. Landlord does,
however, warrant the work performed hereunder by Landlord against latent defects
discovered at any time during the one (1) year period following the time of such
acceptance by Tenant.
B. CONSTRUCTION BY TENANT: At such time as construction has progressed to a
suitable point, Landlord, or Landlord's architect or supervising contractor,
shall notify Tenant in writing that work on the items or elements entering into
Tenant's Construction Obligation may begin. Upon receipt of such notice Tenant
shall promptly commence and thereafter shall diligently pursue to completion all
of the matters entering into Tenant's Construction Obligation and such matters
shall be performed or accomplished in accordance with the applicable law, in a
good and workmanlike manner, by contractors approved in writing by Landlord, and
in such manner as to maintain harmonious and suitable labor relations and
working conditions. Tenant shall timely obtain all licenses or permits required
for the work performed by Tenant.
Tenant shall, at Landlord's request, furnish Landlord with a bond or bonds
assuring payment to all those furnishing labor, materials, or services in
connection with Tenant's Construction Obligation. Any work or change which
Tenant desires to accomplish and which is
C-4
not reflected by Tenant's Plans shall be subject to Landlord's prior written
approval (not to be unreasonably withheld). Upon completion of Tenant's
Construction Obligation, Tenant shall furnish to Landlord a complete set of "as
built" plans and specifications for the items and elements entering into
Tenant's Construction Obligation.
C. INTERRELATIONSHIP OF WORK: In performing its Construction Obligation.
Tenant shall comply with all directions of Landlord or Landlord's contractor so
as to coordinate its construction activities with those being pursued by others
(whether on the Leased Premises or elsewhere in the Building, and whether by
Landlord or by other tenants). Any improvements or items of equipment installed
by Tenant which are to be visible from outside of the Leased Premises shall be
finish painted by Tenant in accordance with Landlord's standard paint schedule.
All work performed by Tenant shall leave Landlord's structure as strong or
stronger than original design and with finishes unimpaired. Any roofing or
flashing work accomplished by Tenant shall conform to original work and shall be
performed at Tenant's expense by Landlord's roofing subcontractor who installed
the original roof. Either party hereto may eliminate and inspect the work of the
other at any reasonable time and shall promptly give notice of any observed
defects.
1. ROOF PENETRATIONS: Tenant agrees that neither it nor its
contractors or employees will, during the construction of the Leased
Premises or at any time during the term of this Lease, make or cause to be
made in the roof of the Premises any penetration whatsoever without first
obtaining the prior written approval from Landlord. Tenant acknowledges
that Landlord may require Tenant to use Landlord's designated roofing
contractor to perform or supervise any roof cuts or penetrations to which
Landlord may agree or give its consent.
In the event Tenant fails to observe this condition, Landlord may hire
a roofing contractor of its choice to inspect any penetrations in the
roofing material over the Demised Premises and to perform any needed
modifications or corrections to the roof surface or its components in order
to preserve the integrity of the roof structure. Landlord may bill Tenant
for the expenses of any such roof inspection and/or repairs, plus a 20%
overhead fee for such work. Tenant agrees to pay for said inspection and/or
repairs immediately upon presentation of said invoice.
2. HEATING/VENTILATING/AIR CONDITIONING DISTRIBUTION AND CONTROL WORK:
In order to insure that the rooftop mechanical equipment, originally
provided by the Landlord, will work efficiently and effectively to provide
the specified heating, ventilating and/or cooling to the Leased Premises,
Tenant agrees and covenants that prior to its installation of any duct
work, distribution equipment, controls or other related components of the
mechanical system, it will first obtain from Landlord or from Landlord's
designated mechanical contractor, written approval of its plans for same.
C-5
D. PAYMENT: Landlord shall furnish, construct, and complete all of the
matters entering into Landlord's Construction Obligation at its into own cost
and expense; Tenant shall furnish, construct and complete all of the matters
entering Tenant's Construction Obligation at its own cost and expense. All fees
of Tenant's architect or engineer shall be paid by Tenant.
Landlord agrees to provide a Tenant Finish Allowance not to exceed
$380,000.00.
This allowance shall be provided in accordance with the following
conditions:
(i) All items of work specifically listed or implied under Tenant's
Construction Obligation shall be certified complete by Tenant and invoiced
by supplier;
(ii) Any such invoices with the necessary certification shall be
forwarded to the Landlord for consideration and payment;
(iii) If such work is found to be complete as certified, Landlord
shall remit to the supplier of all such certified materials and/or labor
thus invoice, a total amount due within thirty (30) days.
The above notwithstanding, Landlord shall not be obligated to remit
any payment prior to its receipt of the following documents:
1. A Certificate of Occupancy from the municipality involved;
2. A signed copy of Exhibit "D" of this Lease as defined in Section
2.2, or an equivalent document provided by Landlord and as required by
lender;
3. A copy of Liability Insurance or Certificate of Insurance as
defined in Section 11; and
4. All copies of necessary lien waivers involved with any general or
subcontractors involved with Tenant's Construction Obligation.
All expenses arising by reason of Tenant's Construction Obligation in
excess of this aggregate amount shall be borne exclusively by the Tenant.
(iv) No personal property shall be included as part of the Tenant
Finish Allowance.
C-6
EXHIBIT "D"
ACKNOWLEDGMENT OF COMMENCEMENT DATE
AND TENANT ESTOPPEL CERTIFICATE
TO: DATE:
RE:
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Gentlemen:
The undersigned, as Tenant. has been advised that the Lease has been or
will be assigned to you as a result of your financing of the above-referenced
property, and as an inducement therefor hereby confirms the following:
1. That it has accepted possession and is in full occupancy of the
Premises, that the Lease is in full force and effect, that Tenant has
received no notice of any default of any of its obligations under the
Lease, and that the Lease Commencement Date is
-----------------------
2. That the improvements and space required to be furnished according to
the Lease have been completed and paid for in all respects, and that
to the best of its knowledge, Landlord has fulfilled all of its duties
under the terms, covenants and obligations of the Lease and is not
currently in default thereunder.
3. That the Lease has not been modified, altered, or amended, and
represents the entire agreement of the parties, except as follows:
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D-1
4. That there are no offsets, counterclaims or credits against rentals,
nor have rentals been prepaid or forgiven, except as provided by the
terms of the Lease.
5. That said rental payments commenced or will commence to accrue on
, and the Lease term expires
------------------ ----------------------.
The amount of the security deposit and all other deposits paid to
Landlord is $ .
--------------------
6. That Tenant has no actual notice of a prior assignment, hypothecation
or pledge of rents of the Lease, except:
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--------------------------------------------------------------.
7. That this letter shall inure to your benefit and to the benefit of
your successors and assigns and shall be binding upon Tenant and
Tenant's heirs, personal representatives, successors and assigns. This
letter shall not be deemed to alter or modify any of the terms,
covenants or obligations of the Lease.
The above statements are made with the understanding that you will
rely on them in connection with the purchase of the above-referenced
property.
Very truly yours,
---------------------------
Date of Signature: By:
---------------------- ------------------------
D-2
EXHIBIT "E"
COST TO CONSTRUCT LEASED PREMISES
TENANT: SIMMONS MEDIA GROUP, INC.
DATE: AUGUST 1, 1999
SQUARE FOOTAGE; 22,273
ITEM COST ESTIMATE
1. Building Permit $
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2. Mechanical
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3. Electrical
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4. Walls
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5. Doors, Frames, Hardware
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6. Painting
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7. Floorcovering
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8. Base
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9. Ceiling
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10. Glass
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11. Exterior Blinds
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12. Millwork/Plumbing
--------------------------
13. Clean Up
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14. Contingency
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15. Supervision
--------------------------
16. Architect
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17. Engineer
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18. Other
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Shelving
--------------------------
Wallcovering
--------------------------
Stain of Woodwork
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TOTAL COST $
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LANDLORD ALLOWANCE
(Section 2.3) $ 380.000,00
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TENANT CONSTRUCTION
COST OBLIGATION $
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E-1
EXHIBIT "F"
BUILDING STANDARD FINISHES
A. FLOORCOVERINGS:
1. 30 ounce face-weight carpet cut-pile on pad, color to be selected by
Tenant.
2. Designated areas to receive vinyl composite tile made by Ken Tile,
Avanti type, rubber base on all walls.
B. WALLS: All interior walls shall be sheetrock 5/8" on metal studs, taped and
ready for paint
C. DOORS/HARDWARE/GLASS: Doors shall be twenty-minute rated, solid core, oak
veneer faced, 7' in height, 3' in width.
Hardware shall be a one-hour rated assembly to include a closure and lock
set on the hallway doors. All other doors to receive passage hardware,
building standard. Exterior doors shall have heavy duty hardware.
Door frames to be 2" face hollow metal frames; frames must comply with
U.B.C. requirements for fire rating.
All interior glass shall be wired, clear. Glass put in by Tenant shall
conform to U.B.C. and C.P.S.C. requirements.
D. LEVELORS: All exterior windows to receive Levelor, Riviera window blinds,
building standard color.
E. PAINT: All sheetrock interior walls and core walls to receive one coat
prime, two coats Ameritone; color to be selected by Tenant.
F-1
F. PLUMBING/CABINETRY: Laminate base cabinet only with shelving; laminate
color to be selected by Tenant.
G. ELECTRICAL:
1. 2X4 four-tube, recessed, florescent light fixtures with parabolic lens
to produce a lighting level of not less than 75 foot candles lighting
at desk level.
2. One telephone outlet per 200 square feet of usable space.
3. One duplex outlet per 75 square feet of usable space,
4. One light switch per 200 square feet of usable space.
H. HVAC: The Landlord shall provide heating, ventilation and air conditioning
on a year-round basis throughout the premises and common areas. The
equipment shall maintain uniform indoor temperature of 75 degrees F.D.B, in
summer and 72 degrees F.D.B. in the winter. Temperature control shall be
automatic and shall maintain temperature set point plus/minus 2 degrees F.
AT-Stat control system with no more than 1,000 square foot exterior zones
and 3,000 square foot interior zones.
All systems shall conform to local and national codes. HVAC design and
systems selected shall be submitted for review and approval by the Tenant.
Approval by the Tenant does not release the Landlord from his strict
responsibility to ensure furnishing design conditions as stated herein.
I. CEILING TILE: 2x2 Acoustical tile 5/8" fissured tile.
F-2
EXHIBIT "G"
SITE PLAN FOR A SATELLITE DISH LOCATION
EXHIBIT "G" TO BE PROVIDED FOLLOWING COMPLETION OF
ARCHITECTURAL CONCEPTUAL DRAWINGS.
G-1
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT is made and entered into this __________
day of May, 2000 by and between TROLLEY CORNERS PARTNERSHIP A UTAH GENERAL
PARTNERSHIP, BY ITS MANAGING PARTNER, TROLCO PROPERTIES, INC,, hereinafter
referred to as "Landlord" and SIMMONS MEDIA GROUP, INC. , A UTAH CORPORATION
hereinafter referred to as "Tenant."
RECITALS
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement
dated September 10, 1999 pursuant to which Tenant agreed to lease that certain
office space on floors one and two and basement space in the office building
located at approximately 515 South 700 East, Suite 1C, Salt Lake City, Utah (the
"Building"); and
WHEREAS, Landlord and Tenant desire to amend the Lease Agreement in certain
respects, more particularly verification of square footage has been performed by
the architect resulting in certain changes to the Lease contained herein;
NOW, THEREFORE, based on mutual covenants and premises hereinafter set
forth, Landlord and Tenant hereby agree that the Lease Agreement is and shall be
amended as follows:
1. ARTICLE 1.1(A), DESCRIPTION OF PREMISES, The number 22,273 gross
rentable square feet shall be deleted and the number 24,591 rentable
square feet shall be inserted in its place.
2. ARTICLE 1.1(D), PARKING. The number eighty five (85) parking stalls
shall be deleted and the number ninety four (94) shall be inserted in
its place.
3. ARTICLE 2.2, COMMENCEMENT DATE; OBLIGATION TO PAY. The date of lease
commencement agreed to by Landlord and Tenant shall be June 15, 2000,
at which time the term of this Lease and Tenants obligation to pay
rent hereunder shall commence.
4. ARTICLE 2.3, CONSTRUCTION OF LEASED PREMISES. The number $380,000
shall be deleted and the number $418,040 shall be inserted in its
place (tenant finish allowance).
5. ARTICLE 3.1, BASIC ANNUAL RENT. The number Two Hundred Sixty Five
Thousand Forty Eight and 70/100 Dollars ($265,048,70) shall be deleted
and the number Two Hundred Ninety Two Thousand Six Hundred Thirty Two
and 90/100 Dollars ($292,632,90) shall be inserted in its place.
1
6. ARTICLE 4.1(C), ESTIMATED COSTS. The number 89,092 shall be deleted
and the number 98,364 shall be inserted in its place.
7. ARTICLE 4.1(D), TENANT'S PROPORTIONATE SHARE OF BASIC COSTS. The
number 22,273 (numerator) shall be deleted and the number 24,591 shall
be inserted in its place. Further, the number 88,807 (denominator)
shall be deleted and the number 96,553 shall be inserted in its place.
Tenant's pro rata share shall he 25.47%.
8. EXHIBIT "C", ARTICLE III.D, PAYMENT. The tenant finish allowance of
$380,000 shall be deleted and the new tenant finish allowance of
$418,040 shall be inserted in its place.
The Lease Agreement and this Amendment to Lease Agreement shall remain in
full force and effect as therein stated except as herein modified.
IN WITNESS WHEREOF, the Amendment to Lease Agreement has been executed as
of the day and year first herein above written.
LANDLORD: TROLLEY CORNERS PARTNERSHIP A
UTAH GENERAL PARTNERSHIP, BY
ITS MANAGING PARTNER,
TROLCO PROPERTIES, INC.
By: /s/ JERRY M. PLACE
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TENANT: SIMMONS MEDIA GROUP, INC., A
UTAH CORPORATION
By: /s/ G. CRAIG HANSON
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Name: G. CRAIG HANSON
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Title: VICE PRESIDENT
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2