LEASE AGREEMENT BETWEEN
EsNET PROPERTIES, L.C.,
A Utah limited liability Company, as
Landlord
and
Online Investor Advantage, Inc., as
Tenant
DATED May 25 ,1999
LEASE AGREEMENT
THIS LEASE AGREEMENT (THIS "LEASE") is enter as of the 25 day of May, 1999
by, between and among EsNET PROPERTIES, L.C., a Utah limited liability company,
as Landlord, and Online Investors Advantage Inc., as Tenant.
ARTICLE 1: DEFINITIONS.
The definitions of certain of the capitalized terms used in this Lease are
set forth in the Glossary of Defined terms attached as Exhibit A and by this
reference made a part hereof
ARTICLE 2: PREMISES
Subject to the provisions of this Lease, Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, approximately Three Thousand, Three
Hundred, Forty (3,340) square feet of Net Rentable Area in the Building, which
space is outlined on the floor plan attached hereto as Exhibit B and by this
reference made a part hereof (the "Premises"). In connection with such demise,
Landlord hereby grants to Tenant the non-exclusive right to use during the Term
all Common Areas designed for the use of all tenants in the Building, in common
with all tenants in the Building and their invitees, for the purposes for which
the common Areas are designed and in accordance with the requirements of this
Lease and all Legal Requirements. By occupying the Premises, Tenant Accepts the
Premises as being suitable for Tenant's intended use of the Premises.
ARTICLE 3: TERM
The Term of this Lease shall commence on the Commencement Date (which is
scheduled to be August 1, 1999) and shall expire at 5:00 p.m. on July 20, 2004,
unless earlier terminated as provided herein (the "Term".
ARTICLE 4: USE
Tenant shall occupy and use the Premises solely for lawful, general
business office purposes in strict compliance with the Building Rules and
Regulations from time to time in effect and all other Legal Requirements. Tenant
shall not use or occupy the Premises for any other use or purpose without the
prior written consent of Landlord, which consent can be withheld by Landlord in
Landlord's sole discretion.
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ARTICLE 5: RENT
5.1 Base Rent.
In consideration of Landlord's leasing the Premises to Tenant, Tenant shall
pay to Landlord, as "Base Rent" for the Premises, the following amounts:
MONTHLY ANNUAL
TERM AMOUNT AMOUNT
---------------------------------------------------------------------------
Year 1 Annual Letter of Credit $75,264.90
----------------------- ----------
Year 2 $4,156.91 $49,882.90
--------- ----------
Year 3 $4,281.62 $51,379.39
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Year 4 $4,410.06 $52,920.77
--------- ----------
Year 5 $4,542.37 $54,508.39
--------- ----------
5.2 Additional Rent. For purposes of this Lease, Tenant's "Additional Rent"
for any Fiscal Year (or portion thereof) shall mean the product of (a) Net
Rentable Area of the Premises multiplied by (b) the Operating Expenses, divided
by the Net Rentable Area of the Building, all as applicable for the period in
question. By the Commencement Date, Landlord shall estimate the Additional Rent
to be due by Tenant for the balance of the Fiscal Year in which the Commencement
Date occurs. Thereafter, unless Landlord delivers to Tenant a revision of the
estimated Additional Rent Tenant shall pay to Landlord, coincident with Tenant's
payment of Base Rent an amount equal to the estimated Additional Rent for the
remainder of such year divided by the number of months remaining in such year.
From time to time during any Fiscal Year, Landlord may estimate and re-estimate
the Additional Rent to be due by Tenant for that Fiscal Year and deliver a copy
of the estimate or re-estimate to Tenant. Thereafter, the monthly installments
of Additional Rent payable by Tenant shall be appropriately adjusted in
accordance with the estimation so that, by the end of the Fiscal Year, Tenant
shall have paid all of the additional Rent as estimated by Landlord. After the
conclusion of each Fiscal Year during the Term, and after the termination or
expiration of the Term, Landlord shall deliver to Tenant a statement of actual
Additional Rent due by Tenant for the Fiscal Year (or, with respect to
termination or expiration, the portion of the Fiscal Year) just ended. Within
thirty (30) days thereafter, Tenant shall pay to Landlord or Landlord shall
credit against the next installment of Additional Rent due by Tenant (or
Landlord shall refund to Tenant, if the Term has expired and all payments due by
Tenant to Landlord have been paid in full) the difference between the actual
Additional Rent due for such year and the estimated Additional Rent paid by
Tenant during such year. Tenant may review, at Tenant's expense and after giving
twenty (20) days prior written notice to Landlord, Landlord's records relating
to Operating Expenses for any periods within two Fiscal Years prior to the
review, provided, however, no review or audit shall extend to periods of time
preceding the Commencement Date. In lieu of allowing Tenant to review Landlord's
records under this Section 5.2, Landlord may deliver to Tenant a report of the
Operating Expenses prepared by a certified public accountant which report shall
be conclusive for purposes of this Lease.
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5.3 Parking Charge. Tenant shall at all times during the Term lease from
Landlord Zero (0) unassigned automobile parking spaces in the Parking Facility,
at a cost of Forty Dollars ($40.00) per month per space. Contemporaneously with
the payment of the first installment of Rent, Tenant shall pay to Landlord as
Additional Rent the product of the number of parking spaces multiplied Forty
Dollars ($40.00) for the access cards needed to gain access to the Parking
Facility.
5.4 Payment of Rent. Except as otherwise expressly provided in this Lease,
all Rent shall be due in advance monthly installments on the first day of each
calendar month during the Term. Rent shall be paid to Landlord at its address
recited in Section 27.7, or to such other person or at such other address as
Landlord may from time to time designate in writing. Rent shall be paid without
notice, demand, abatement, deduction or offset in legal tender of the United
States of America. If the Term commences or ends on other than the first or the
last day of a calendar month, the Rent for the partial month shall be prorated
on the basis of the number of days during such month for which the Term was in
effect. If the Term commences or ends on other than the first or the last day of
a Fiscal Year, the Additional Rent for the partial Fiscal Year shall be prorated
on the basis of the number of days during the Fiscal Year for which the Term was
in effect.
5.5 Delinquent Payments and Handling Charge. All Rent and other payments
required of Tenant hereunder shall bear interest from the date due until the
date paid at the rate of interest specified in Section 27.13. In addition to
interest, if any such Rent or other payment is not received within ten (10) days
from the date it is due, Tenant shall pay to Landlord a late charge equal to
five (5%) percent of the amount of such Rent or other payment to reimburse
Landlord for its cost and inconvenience incurred as a consequence of Tenant's
delinquency. In no event, however, shall the charges permitted under this
Section 5.5 or elsewhere in this Lease, to the extent the same are considered to
be interest under applicable law, exceed the maximum rate of interest allowable
under applicable law.
5.6 Security Deposit. On the date of this Lease, Tenant shall deposit with
Landlord the Security Deposit as security for the faithful performance by Tenant
under this Lease. The Security Deposit shall be returned (without interest) to
Tenant (or, at Landlord's option, to the last permitted assignee of Tenant's
interest under this Lease) after the expiration of the Term, or sooner
termination of this Lease and delivery of possession of the Premises to Landlord
in accordance with Article 26 if, at such time, Tenant is not in default under
this Lease. If - ' Landlord's interest in this Lease is conveyed, transferred or
assigned, Landlord shall transfer or credit the Security Deposit to Landlord's
successor in interest, and Landlord shall be released from any liability for the
return of the Security Deposit. Landlord may intermingle the Security Deposit
with Landlord's own funds, and shall not be deemed to be a trustee of the
Security Deposit. If Tenant fails to timely-pay or perform any obligation under
this Lease, Landlord may, prior to, concurrently with or subsequent to
exercising any other right or remedy, use, apply or retain all or any part of
the Security Deposit for the payment of any monetary obligation due under this
Lease, or to compensate Landlord for any other expense, loss or damage which
Landlord may incur by reason of Tenant's failure, including any damage or
deficiency in the reletting of the Premises. If all or any portion of the
Security Deposit is so used, applied or retained, Tenant shall immediately
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deposit with Landlord cash in an amount sufficient to restore the Security
Deposit to the original amount. Landlord may withhold the Security Deposit after
the expiration of the Term or sooner termination of the Lease Until tenant has
paid the full Tenant's Operating Expenses for the Fiscal Year in which such
expiration or sooner termination occurs and all other amounts payable under this
Lease. The Security Deposit is not a limitation on Landlord's damages or other
rights under this Lease, a payment of liquidated damages or prepaid Rent, and
shall not be applied by Tenant to the Rent for the last (or any) month of the
Term, or to any other amount due under this Lease. If this Lease is terminated
due to any default of Tenant, any portion of the Security Deposit remaining at
the time of such terminations shall immediately inure to the benefit of Landlord
as partial compensation for the costs and expenses incurred by Landlord in
connection with this Lease.
ARTICLE 6: CONSTRUCTION OF IMPROVEMENTS.
6.1 General. Subject to events of Force Majeure, Landlord shall install,
furnish, perform, and apply, at its expense, the Landlord's Work as specified in
the Work Letter. performance of the Landlord's Work shall constitute Landlord's
sole construction obligation to Tenant under this Lease.
6.2 Access by Tenant Prior to Landlord's Work Completion Date. Provided
that Tenant obtains and delivers to Landlord the certificates of policies of
insurance called for in Section 17.1, Landlord, in its sole discretion, may
permit Tenant and its employees, agents, contractors and suppliers to enter the
Premises before the Landlord's Work Completion Date (and such entry alone shall
not constitute Tenant's taking possession of the Premises for the purpose of
Section 6.3), to prepare the Premises for Tenant's occupancy. Tenant and each
other person or firm who or which enters the Premises before the Landlord's Work
Completion Date shall conduct itself so as to no interfere with Landlord or
other occupants of the Building. Landlord may withdraw any permission granted
under this Section 6.2 upon twenty-four (24) hours' notice to Tenant if
Landlord, in its sole discretion, determines that any such interference has been
or may be caused. Any prior entry shall be under all the terms of this Lease
(other than the obligation to pay Base Rent and Additional Rent) and at Tenant's
sole risk. Landlord shall not be liable in any way for personal injury, death or
property damage (including damage to any personal property which Tenant may
bring into, or any work which Tenant may perform in, the Premises) which may
occur in or about the Complex by Tenant or such other person or firm as a result
of any prior entry.
6.3 Commencement Date; Adjustments to Commencement Date. For purposes of
this Lease, the "Commencement Date" shall mean the earliest of (a) the date on
which Landlord substantially completes the Landlord's Work and tenders
possession of the Premises to Tenant, (b) the date on which Landlord would have
substantially completed the Landlord's work and tendered possession of the
Premises to Tenant but for (i) the delay or failure of Tenant to furnish
information or other matters required in the Work Letter, (ii) Tenant's request
for changes in the plans or non-Building Standard items, or (3) any other action
or inaction of Tenant, or any person or firm employed or retained by Tenant, or
(c) the date on which Tenant takes possession of the Premises. If by the
scheduled Commencement Date specified in Article 3, the Landlord's Work has not
been substantially completed, and such failure to substantially complete renders
the Premises unsuitable for the commencement of Tenant's business on the
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Premises as reasonably determined by Landlord, then the Commencement Date (and
the commencement of payment of Base Rent and Additional Rent) shall be postponed
until the Landlord's Work is substantially completed as reasonably determined by
Landlord or until possession of the Premises is tendered to Tenant, as the case
may be. Such postponement shall extend the scheduled expiration of the Term for
a number of days equal to the postponement. The postponement of the payment of
Base Rent and Additional Rent under this Section 6.3 shall be Tenant's exclusive
remedy for Landlord's delay in completing the Landlord's Work or tendering
possession of the Premises to Tenant.
ARTICLE 7: SERVICE TO BE FURNISHED BY LANDLORD
7.1 General. Subject to applicable Legal Requirements, the provisions of
this Lease, and Tenant's performance of its obligations hereunder, Landlord
shall use all reasonable efforts to furnish the following services:
(a) Air conditioning and heating to the Premises during Building
Operating Hours, at such temperatures and in such amounts as are considered
by Landlord to be suitable and standard (thus excluding air conditioning or
heating for electronic data processing or other specialized equipment). Air
conditioning and heating of any areas which require special treatment
because of excessive heat from machines, lights, or other sources, shall,
upon Landlord's written consent, be installed and paid for by Tenant and
the additional electrical consumption paid for by the Tenant at the then
current utility rate. I
(b) Hot and cold water at those points of supply common to all floors
for lavatory and drinking purposes only.
(c) Janitorial services shall be provided by Landlord in the manner
stated in the attached Exhibit C entitled "Janitorial Services", which by
this reference is incorporated as part of this Lease. Janitorial Services
shall be provided in the evening, Monday through Friday, and shall be of
the same quality as other first class buildings. These services shall be
provided to the Premises and all common areas in the Building.
(d) Elevator service during Building Operating Hours, if necessary, to
provide access to and egress from the Premises.
(e) Electricity (for normal business usage) for wall plugs 24 hours
per day and for lighting during Building Operating Hours. Tenant's use of
electric energy in the Premises shall not at any time exceed the capacity
of any of the electrical conductors and equipment in or otherwise serving
the Premises. To insure that such capacity is not exceeded and to avert
possible adverse effect upon the Building's electric service, Tenant shall
not, without Landlord's prior written consent in each instance, connect any
additional fixtures, equipment, or appliances (other than lamps,
typewriters and similar small office machines or personal computers which
singly consume not more than 0.5 kilowatts per hour at rated capacity and
use a voltage of 120 volts single phase) to the Building's electric
distribution system or make any alteration or addition to the electric
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system of the Premises existing on the Commencement Date. Should Landlord
grant such consent, and should such additional capacity exceed 4.5 ▇▇▇▇▇
per square foot of Net Rentable Area of the Premises, all additional risers
or other equipment required therefore, shall be provided by Landlord and
the cost thereof shall be paid by Tenant upon Landlord's demand. As a
condition to granting such consent, Landlord may require Tenant to agree to
an increase in the Base Rent by an amount which will reflect the value to
Tenant of the additional service to be furnished by landlord; that is, the
potential additional electrical energy to be made available to Tenant based
upon the estimated additional capacity of such additional risers or other
equipment.
(f) Replacement of fluorescent lamps in Building Standard light
fixtures installed by Landlord and of incandescent bulbs or fluorescent
lamps in all public rest rooms, stairwells and other Common Areas in the
Building
If any of the services described above or elsewhere in this Lease are
interrupted, Landlord shall use reasonable diligence to promptly restore the
same. However, neither the interruption nor cessation of such services, not the
failure of Landlord to restore same, shall render Landlord liable for damages
to person or property, or be construed as an eviction of Tenant, or work an
abatement of Rent or relive Tenant from fulfilling any of its other obligations
hereunder. If not previously installed, Landlord may cause an electric and/or
water meter(s) to be installed in the Premises in order to measure the amount
of electricity and/or water consumed for any such use.
7.2 After Hours Heating, Air Conditioning, and Lighting. Heating, lighting,
and air conditioning shall be provided to the Premises by Landlord during times
other than Building Operating Hours upon the request of Tenant; provided,
however, that Tenant shall pay Landlord the actual cost of providing such
additional services. Tenant shall request service(s) for hours other than
Building Operating Hours by telephoning Building Management 24-hours prior to
the time such service is desired.
7.3 Keys. Landlord shall furnish Tenant, at Landlord's expense, with two
keys, and at Tenant's expense with such additional keys as Tenant may request,
to unlock each corridor door entering the Premises. Tenant shall not install, or
permit to be installed, any additional lock on any door into or in the Premises
or make, or permit to be made, an duplicates of keys to the Premises. Landlord
shall be entitled at all times to possession of a duplicate of all keys to all
doors to or inside of the Premises. All keys referred to in this Section 7.3
shall remain the property of the Landlord. Upon the expiration or termination of
the Term, Tenant shall surrender all such keys to Landlord and shall deliver to
Landlord the combination to all locks on all safes, cabinets, and vaults which
will remain in the Premises. Landlord shall be entitled to install, operate and
maintain security systems in or about the Premises and the Complex which
monitor, by closed circuit television or otherwise, all persons leaving or
entering the Complex, the Building and the Premises.
7.4 Tenant Identity. Landlord shall provide and install, in Building
Standard graphics, letters or numeral identifying Tenant's name and suite number
on entrance doors to the Premises. Without Landlord's prior written consent no
other signs, numerals, letters, graphics, symbols, or marks identifying Tenant
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shall be placed on the exterior, or in the interior if they are visible from the
exterior, of the Premises. Landlord shall install up to one (1) directory strip
for each three thousand (3,000) square feet of Net Rentable Area in the
Premises, listing the name(s) and suite number(s) of Tenant on the Building
directory board to be placed in the main lobby of the Building. Tenant shall not
place or suffer to be placed on any exterior door, wall or window of the
Premises, on any part of the inside of the Premises which is visible from the
outside of the Premises, or elsewhere on the Complex, any sign decoration,
lettering, attachment, advertising matter or other thing of any kind, without
first obtaining Landlord's written approval. Landlord may, at Tenant's cost, and
without notice or liability to Tenant, enter the Premises and remove any item
erected in violation of this Section. Landlord may establish rules and
regulations governing the size, type and design of all such items and Tenant
shall abide by such rules and regulations. All approved signs or letterings on
doors shall be printed, painted and affixed at the sole cost of Tenant by a
person approved by Landlord, and shall comply with all Legal Requirements. At
Tenant's sole cost, Tenant shall maintain all permitted signs and shall, on the
expiration of the Term or sooner termination of this Lease, remove all such
permitted sips and repair any damage caused by such removal.
7.5 Charges. Tenant shall pay to Landlord monthly as billed, as Additional
Rent, such charges as may be separately metered or as Landlord may compute for
(a) any utility services utilized by Tenant for computers, data processing
equipment or other electrical equipment in excess of that agreed to be furnished
by Landlord pursuant to Section 7.1(e), (b) lighting installed in the Premises
in excess of Building Standard lighting, (c) air conditioning heating and other
services in excess of that stated in Section 7. 1 (a) or provided at times other
than Building Operating Hours, and (d) janitorial services required with respect
to non-Building Standard Items within the Premises. Landlord may elect to
estimate the charges to be paid by Tenant under this Section 7.5 and ▇▇▇▇ such
charges to Tenant monthly in advance, in which event Tenant shall promptly pay
the estimated charges. When the actual charges are determined by Landlord, and
appropriate cash adjustment shall be made between Landlord and Tenant to account
for any underpayment or overpayment by Tenant.
7.6 Operating Hours. Subject to Building Rules and Regulations and such
security standards as Landlord may from time to time adopt, the Building shall
be open to the public during the Building Operating Hours and the Premises shall
be open to Tenant during hours other than Building Operating Hours.
ARTICLE 8: REPAIR AND MAINTENANCE
8.1 By Landlord. Landlord shall maintain the Building, excepting the
Premises and portions of the Building leased by persons not affiliated with
Landlord, in a good and operable condition, and shall make such repairs and
replacements as may be required to maintain the Building in such condition. This
Section 8.1 shall not apply to damage resulting from a Taking (as to which
Article 14 shall apply), or damage resulting from a casualty (as to which
Section 15.1 shall apply), or to damage for which Tenant is otherwise
responsible under this Lease.
8.2 By Tenant. Tenant, at Tenant's sole cost, shall maintain the Premises
and every part of the Premises (including, without limitation, all floors, walls
and ceilings and their coverings, doors, and locks, furnishings, trade fixtures,
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signage, leasehold improvements, equipment and other personal property from time
to time situated in or on the Premises) in good order, condition and repair, and
in a clean, safe, operable, attractive and sanitary condition. Tenant will not
commit or allow to remain any waste or damage to any portion of the Premises.
Tenant shall repair or replace, subject to Landlord's direction and supervision,
any damage to the Complex caused by Tenant or Tenant's agents, contractors or
invitees. If Tenant fails to make such repairs or replacements, Landlord may
make the same at Tenant's cost. Such cost shall be payable to Landlord by Tenant
on demand as Additional Rent. All contractors, workmen, artisans and other
persons which or whom Tenant proposes to retain to perform work in the Premises
(or the Complex, pursuant to the second sentence of this Section) pursuant to
this Section 8.2 or Article 11 shall be approved by Landlord prior to the
commencement of any such work.
ARTICLE 9: TAXES ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, before they become delinquent,
all taxes and assessments levied against any personal property placed by Tenant
in the Premises (even if same becomes a fixture by operation of law or the
property of Landlord by operation of this Lease), including any additional
Impositions which may be assessed, levied, charged or imposed against Landlord
or the Building by reason of non-Building Standard Items in the Premises. Tenant
may withhold payments of any taxes and assessments described in this Article 9
so long as Tenant contests its obligation to pay in accordance with applicable
law and non-payment thereof does not pose a threat of loss or seizure of the
Building or any interest of Landlord therein.
ARTICLE 10: TRANSFER BY TENANT.
10.1 General. Without the prior written consent of Landlord, Tenant shall
not effect or suffer any Transfer. Any attempted Transfer without such consent
shall be void. If Tenant desires to effect a Transfer, it shall deliver to
Landlord written notice thereof in advance of the date on which Tenant proposes
to make the Transfer, together with all the terms of the proposed Transfer and
the identity of the proposed Transferee. Landlord shall have thirty (30) days
following receipt of the notice and information within which to notify Tenant in
writing whether Landlord elects (a) to refuse to consent to the Transfer and to
terminate this Lease as to the space proposed to be Transferred as of the date
so specified by Tenant, in which event Tenant will be relieved of all further
obligations hereunder as to such space, (b) to refuse to consent to the Transfer
and to continue this Lease in full force as to the entire Premises, or (c) to
permit Tenant to effect the proposed Transfer. If Landlord fails to notify
Tenant of its election within said thirty (30) day period, Landlord shall be
deemed to have elected the option specified in Section 10.1 (b). The consent by
Landlord to a particular Transfer shall not be deemed a consent to any other
Transfer. If a Transfer occurs without the prior written consent of Landlord as
provided herein, Landlord may nevertheless collect rent from the Transferee and
apply the net amount collected to the Rent payable hereunder, but such
collection and application shall not constitute a waiver of the provisions
hereof or a release of Tenant from the further performance of its obligations
hereunder. No consent by Landlord to any Transfer shall relieve Tenant of any
obligation to be performed by Tenant under this Lease, whether such obligation
arises prior to or after such consent.
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10.2 Conditions. The following, conditions shall automatically apply to
each Transfer, without the necessity of same being stated or referred to in
Landlord's written consent:
(a) Tenant shall execute, have acknowledged and deliver to Landlord,
and cause the Transferee to execute, have acknowledged and deliver to
Landlord, an instrument in form and substance acceptable to Landlord in
which (1) the Transferee adopts this Lease and agrees to perform, jointly
and severally with Tenant, all of the obligations of Tenant hereunder, as
to the space Transferred to it, (2) the Transferee grants Landlord an
express first and prior security interest all its personal property brought
into the transferred space to secure its obligations to Landlord hereunder,
(3) Tenant subordinates to Landlord's statutory lien and security interest
any liens, security interests or other rights which Tenant may claim with
respect to any such property of the Transferee, (4) Tenant agrees with
Landlord that, if any rent or other consideration payable by the Transferee
to Tenant exceeds the Rent for the transferred space, then Tenant shall pay
Landlord as Additional Rent hereunder all such excess rent and other
consideration immediately upon Tenant's receipt thereof, (5) Tenant and the
Transferee agree to provide to Landlord, at their expense, direct access
from a public corridor in the Building to the transferred space, (6) The
Transferee agrees to use and occupy the Transferred space solely for the
purpose specified in Article 4 and otherwise in strict accordance with this
Lease, and (7) Tenant acknowledges that, notwithstanding the Transfer,
Tenant remains directly and primarily liable for the performance of all the
obligations of Tenant hereunder (including, without limitation, the
obligation to pay all Rent), and Landlord shall be permitted to enforce
this Lease against Tenant or the Transferee, or both, without prior demand
upon or proceeding in any way against any other persons; and
(b) Tenant shall deliver to Landlord a counterpart of all instruments
relative to the Transfer executed by all parties to such transaction
(except Landlord).
(c) If Tenant requests Landlord to consent to a proposed Transfer,
Tenant shall pay to Landlord, whether or not consent is given, Landlord's
reasonable attorney's fees incurred in connection with such request.
10.3 Liens. Without in any way limiting the generality of the foregoing,
Tenant shall not grant, place or suffer, or permit to be granted, placed or
suffered, against the Complex or any portion thereof, any lien, security
interest, pledge, conditional sale contract, claim, charge or encumbrance
(whether constitutional, statutory, contractual or otherwise) and, if any of the
aforesaid does arise or is asserted, Tenant will, promptly upon demand by
Landlord and at Tenant's expense, cause the same to be released.
ARTICLE 11: ALTERATIONS
Tenant shall not make (or permit to be made) any change, addition or
improvement to the Premises (including, without limitation, the attachment of
any fixture or equipment) unless such change, addition or improvement (a) equals
or exceeds the Building Standard and utilizes only new and first-grade
materials, (b) is in conformity with all Legal Requirements, and is made after
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obtaining any required permits and licenses, (c) is made with prior written
consent of Landlord, (d) is made pursuant to plans and specifications approved
in writing in advance by Landlord and prepared by an architect approved in
writing in advance by Landlord, (e) is made after Tenant has provided to
Landlord such indemnification, insurance, and/or bonds requested by Landlord,
including, without limitation, a performance and completion bond in such form
and amount as may be satisfactory. to Landlord to protect against claims and
liens for labor performed and materials furnished, and to insure the completion
of any change, addition or improvement, (f) is carried out by persons approved
in writing by Landlord who, if required by Landlord, deliver to Landlord before
commencement of their work proof of such insurance coverage as Landlord may
require, with Landlord named as an additional insured, and (g) is done only at
such time and in such mariner as Landlord may reasonably specify. All such
alterations, improvements and additions (including all articles attached to the
floor, wall or ceiling of the Premises) shall become the property of Landlord
and shall, at Landlord's election, be (1) surrendered with the Premises as part
thereof at the termination or expiration of the Term, without any payment,
reimbursement or compensation therefor, or (2) removed by Tenant, at Tenant's
expense with all damage caused by such removal repaired by Tenant. Tenant may
remove Tenant's trade fixtures, office supplies, movable office furniture and
equipment not attached to the Building, provided such removal is made prior to
the expiration of the Term, no uncured Event of Default has occurred and Tenant
promptly repairs all damage caused by such removal. Tenant shall indemnify,
defend and hold harmless Landlord from and against all liens, claims, damages,
losses, liabilities and expenses, including attorneys' fees, which may arise out
of, or be connected in any way with, any such change, addition or improvement.
Within ten (10) days following the imposition of any lien resulting from any
such change, addition or improvement, Tenant shall cause such lien to be
released of record by payment of money or posting of a proper bond.
ARTICLE 12: PROHIBITED USES
Tenant will not (a) use, occupy or permit the use or occupancy of the
Premises for any purpose or in any manner which is or may be, directly or
indirectly, violative of any Legal Requirement, or dangerous to life or
property, or a public or private nuisance, or disruptive of obstructive of any
other tenant or of the Building, (b) keep or permit to be kept any substance in,
or conduct or permit to be conducted any operation from, the Premises which
might emit offensive odors or conditions into other portions of the Building.,
or make undue noise or create undue vibrations, (c) commit or permit to remain
any waste to Premises, (d) install or permit to remain any improvements to the
Premises (other than window coverings which have first been approved by
Landlord) which are visible from the outside of the Premises, or exceed the
structural loads of floors or walls of the Building, or adversely affect the
mechanical, plumbing or electrical systems of the Building, or affect the
structural integrity of the Building in any way, (e) install any food, soft
drink or other vending machine in the Premises, or (f) commit or permit to be
committed any action or circumstance in or about the Building which, directly or
indirectly, would or might Justify any insurance carrier in canceling or
increasing the premium on the fire and extended coverage insurance policy
maintained by Landlord on the Building or contents, and if any increase results
from any act of Tenant, then Tenant shall pay such increase promptly upon demand
therefor by Landlord.
Page 11
ARTICLE 13: ACCESS BY LANDLORD
Landlord, its employees, contractors, agents, and representatives, shall
have the right (and Landlord, for itself and such persons and firms, hereby
reserves the right) to enter the Premises at all hours (a) to inspect, clean,
maintain, repair, replace or alter the Premises or the Building, (b) to show the
Premises to prospective purchasers (or, during the last twelve (12) months of
the Term, to prospective tenants), (c) to determine whether Tenant is performing
its obligations hereunder and, if it is not, to perform same at Landlord's
option and Tenant's expense, or (d) for any other purpose deemed reasonable by
Landlord. In an emergency, Landlord (and such persons and firms) may use any
means to open any door into or in the Premises without any liability therefor.
Entry into the Premises by Landlord or any other person or firm named in the
first sentence of this Article 13 for any purpose permitted herein shall not
constitute a trespass or an eviction (constructive or otherwise), or entitle
Tenant to any abatement or reduction of Rent, or constitute grounds for any
claim (and Tenant hereby waives any claim) for damages for any injury to or
interference with Tenant's business, for loss of occupancy or quiet enjoyment,
or for consequential damages.
ARTICLE 14: CONDEMNATION
If all of the Complex is Taken, or if so much of the Complex is Taken that,
in Landlord's opinion, the remainder cannot be restored to an economically
viable, quality office building, or if the awards payable to Landlord as a
result of any Taking are, in Landlord's opinion, inadequate to restore the
remainder to an economically viable, quality office building, Landlord may, at
its election, exercisable by the giving of written notice to Tenant within sixty
(60) days after the date of the Taking, terminate this Lease as of the date of
Taking or the date Tenant is deprived of possession of the Premises (whichever
is later). If this Lease is not terminated as a result of a Taking, Landlord
shall restore the Premises remaining after the Taking to a Building Standard
condition. During the period of restoration, Base Rent shall be abated to the
extent the Premises are rendered untenantable and, after the period of
restoration, Base Rent and Tenant's Share shall be reduced in the proportion
that the area of the Premises Taken or otherwise rendered untenantable bears to
the area of the Premises just prior to the Taking. If any portion of Base Rent
is abated under this Article 14, Landlord may elect to extend the expiration
date of the Term for the period of the abatement. All awards, proceeds,
compensation or other payments from or with respect to any Taking of the Complex
or any portion thereof shall belong to Landlord, and Tenant hereby assigns to
Landlord all of its right, title, interest and claim to same. Whether or not
this Lease is terminated as a consequence of a Taking. all damages or
compensation awarded for a partial or total Taking, including any award for
severance damage and any sums compensating for diminution in the value of or
deprivation of the leasehold estate under this Lease, shall be the sole and
exclusive property of Landlord. Tenant may assert a claim for and recover from
the condemning authority, but not from Landlord, such compensation as may be
awarded on account of Tenant's moving and relocation expenses, and depreciation
to and loss of Tenant's moveable personal property. Tenant shall have no claim
against Landlord for the occurrence of any Taking, or for the termination of
this Lease or a reduction in the Premises as a result of any Taking.
Page 12
ARTICLE 15: CASUALTY
15.1 General. Tenant shall give prompt written notice to Landlord of any
casualty to the Complex of which Tenant is aware and any casualty to the
Premises. If the Complex or the Premises are totally destroyed, or if the
Complex or the Premises are partially destroyed but in Landlord's opinion they
cannot be restored to an economically viable, quality office building, or if the
insurance proceeds payable to Landlord as a result of any casualty are, in
Landlord's opinion, inadequate to restore the portion remaining to an
economically viable, quality office building, Landlord may, at its election
exercisable by the giving of written notice to Tenant within sixty (60) days
after the casualty, terminate this Lease as of the date of the casualty or the
date Tenant is deprived of possession of the Premises (whichever is later). If
this Lease is not terminated as a result of a casualty, Landlord shall (subject
to Section 15.2) restore the Premises to a Building Standard condition. During
the period of restoration, Base Rent shall be abated to the extent the Premises
are rendered untentantable and, after the period of restoration, Base Rent and
Tenant's Share shall be reduced in the proportion that the area of the Premises
remaining tenantable after the casualty bears to the area of the Premises just
prior to the casualty. If any portion of Base Rent is abated under this Section
15. 1, Landlord may elect to extend the expiration date of the Term for the
period of the abatement. Except for abatement of Base Rent, if any, Tenant shall
have no claim against Landlord for any loss suffered by reason of any such
damage, destruction, repair or restoration, nor may Tenant terminate this lease
as the result of any statutory provision in effect on or after the date of this
Lease pertaining to the damage and destruction of the Premises or the Building.
The proceeds of all insurance carried by Tenant on Tenant's furnishings, trade
fixtures, leasehold improvements, equipment, merchandise and other personal
property shall be held in trust by Tenant for the purpose of the repair and
replacement of the same. Landlord shall not be required to repair any damage to
or to make any restoration of any furnishings, trade fixtures, lease hold
improvements, equipment, merchandise and other personal property installed in
the Premises by Tenant or at the direct or indirect expense of Tenant.
15.2 Acts of Tenant. Notwithstanding any provisions of this Lease to the
contrary, if the Premises or the Complex are damaged or destroyed as a result of
a casualty arising from the acts or omissions of Tenant, or any of Tenant's
officers, directors, shareholders, partners, employees, contractors, agents,
invitees or representatives, (a) Tenant's obligation to pay Rent and to perform
its other obligations under this Lease shall not be abated, reduced or altered
in any manner, (b) Landlord shall not be obligated to repair or restore the
Premises or the Complex, and (c) subject to Section 17.2, Tenant shall be
obligated, at Tenant's cost, to repair and to restore the Premises or the
Complex to the condition they were in just prior to the damage or destruction
under the direction and supervision of, and to the satisfaction of, Landlord and
any Landlord's Mortgage.
ARTICLE 16: SUBORDINATION AND ATTORNMENT.
16.1 General. This Lease, Tenant's leasehold estate created hereby, and all
Tenant's rights, titles and interests hereunder and in and to the Premises are
subject and subordinate to any Mortgage presently existing or hereafter placed
upon all or any portion of the Complex. However, Landlord and Landlord's
Mortgagee may, at any time upon the giving of written notice to Tenant and
without any compensation or consideration being payable to Tenant, make this
Lease, and the aforesaid leasehold estate and rights, titles and interests,
superior to any Mortgage. Upon the written request by Landlord or by Landlord's
Mortgagee to Tenant, and within five (5) days of the date of such request, and
without any compensation or consideration being payable to Tenant, Tenant shall
execute, have acknowledged and deliver a recordable instrument confirming that
this Lease, Tenant's leasehold estate in the Premises and all of Tenant's
rights, titles and interests hereunder are subject and subordinate (or, at the
election of Landlord or Landlord's Mortgagee, superior) to the Mortgage
benefiting Landlord's Mortgagee.
Page 13
16.2 Attornment. Upon the written request of any person. or party
succeeding to the interest of Landlord under this Lease, Tenant shall
automatically become the tenant of and attorn to such successor in interest
without any change in any of the terms of this Lease. No successor in interest
shall be (a) bound by any payment of Rent for more than one month in advance,
except payments of security for the performance by Tenant of Tenant's
obligations under this Lease, or (b) subject to any offset, defense or damages
arising out of a default or any obligations of any preceding Landlord. Neither
Landlord's Mortgagee nor its successor in interest shall be bound by any
amendment of this Lease entered into after Tenant has been given written notice
of the name and address of Landlord's Mortgagee and without the written consent
of Landlord's Mortgagee or such successor in interest. The subordination,
attornment and mortgagee protection clauses of this Article 16 shall be
self-operative and no farther instruments of subordination attornment or
mortgagee protection need be required by any Landlord's Mortgagee or successor
in interest thereto. Nevertheless, upon the written request therefor and without
any compensation or consideration being payable to Tenant, Tenant agrees to
execute, have acknowledged and deliver such instruments as may be requested to
confirm the same. Tenant shall from time to time, if so requested by Landlord
and if doing so will not materially and adversely affect Tenant's economic
interests under this Lease, join with Landlord in amending, this Lease so as to
meet the needs or requirements of any lender that is considering making or that
has made a loan secured by all or any portion of the Complex.
ARTICLE 17: INSURANCE.
17.1 General. Tenant shall obtain and maintain throughout the Term the
following policies of insurance:
(a) Commercial general liability insurance with a combined single
limit for bodily injury and property damage of not less than One Million
Dollars ($ 1,000,000) per occurrence and Two Million Dollars
($2,000,000.00) aggregate, including, without limitation, contractual
liability coverage for the performance by Tenant of the indemnity
agreements set forth in Article 18.
(b) Hazard insurance with special causes of loss, including theft
coverage, insuring against fire, extended coverage risks, vandalism and
malicious mischief, and including boiler and sprinkler leakage coverage, in
an amount equal to the full replacement cost (without deduction for
depreciation) of all furnishings, trade fixtures, leasehold improvements,
equipment, merchandise and other personal property from time to time
situated in or on the Premises.
Page 14
(c) Worker's compensation insurance satisfying Tenant's obligations
under the worker's compensation laws of the State of Utah.
(d) Such other policy or policies of insurance as Landlord
may reasonably require or as Landlord is then requiring from one or
more other tenants in the Building.
Such minimum limits shall in no event limit the liability of Tenant under this
Lease. Such liability insurance shall name Landlord, and any other person
specified from time to time by Landlord, as an additional insured; such property
insurance shall name Landlord as a loss payee as Landlord's interests may
appear; and both such liability and property insurance shall be with companies
acceptable to Landlord, having a rating of not less than in the most recent
issue of Best's Key Rating Guide, Property-Casualty. All liability policies
maintained by Tenant shall contain a provision that Landlord and any other
additional insured, although named as an insured, shall nevertheless be entitled
to recover under such policies for any loss sustained by Landlord and Landlord's
agents and employees as a result of the acts or omissions of Tenant. Tenant
shall furnish Landlord with certificates of coverage. No such policy shall be
cancelable or subject to reduction of coverage or other modification except
after thirty (30) days' prior written notice to Landlord by the insurer. All
such policies shall be written as primary policies, not contributing with and
not in excess of the coverage which Landlord may carry, and shall only be
subject to such deductibles as may be approved in writing in advance by
Landlord. Tenant shall, at least ten (10) days prior to the expiration of such
policies, furnish Landlord with renewals of, or binders for, such policies.
Landlord and Tenant waive all rights to recover against each other, against any
other tenant or occupant of the Complex, and against the officers, directors,
shareholders, partners, joint venturers, employees, agents, customers, 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. Tenant shall cause all other occupants of the Premises claiming by,
through or under Tenant to execute and deliver to Landlord a waiver of claims
similar to the waiver contained in this Section and to obtain such waiver of
subrogation rights endorsements. Any Landlord's Mortgagee may, at Landlord's
option, be afforded coverage under any policy required to be secured by Tenant
under this Lease by use of a mortgage's endorsement to the policy concerned.
17.2 Waiver of Subrogation. Landlord hereby waives all claims, rights of
recovery and causes of action that Landlord or any party claiming by, through or
under Landlord may now or hereafter have by subrogation or otherwise against.
Tenant or against any of Tenant's officers, directors, shareholders, members,
partners or employees for any loss or damage that may occur to the Complex, the
Premises, Tenant's improvements or any of the contents of any of the foregoing
by reason of fire or other casualty, or by reason of any other cause except
gross negligence, willful misconduct, or the failure by Tenant to observe any of
Tenant's obligations under this Lease (thus including simple negligence of the
Tenant or Tenant's officers, directors, shareholders, members, partners or
employees), that could have been insured against under the terms of the standard
fire and extended coverage insurance policies available in the state where the
Complex is located at the time of the casualty; provided, however, that the
waiver set forth in this Section 17.2 shall not apply to any deductibles on
insurance policies carried by Landlord or to any coinsurance penalty which
Landlord might sustain. Tenant hereby waives all claims,
Page 15
rights of recovery and causes of action that Tenant or any party claiming by,
through or under Tenant may now or hereafter have by subrogation or otherwise
against Landlord or against any of Landlord's officers, directors, members,
shareholders, members, partners or employees for any loss or damage that may
occur to the Complex, the Premises, Tenant's improvements or any of the contents
of any of the foregoing by reason of fire or other casualty, or by reason of any
other cause except gross negligence or willful misconduct (thus including simple
negligence of the Landlord or Landlord's officers, directors, shareholders,
members, partners or employees), that could have been insured against under the
terms of the fire and extended coverage insurance policies required to be
obtained and maintained under Section 17.1. Landlord and Tenant shall cause an
endorsement to be issued to their respective insurance policies recognizing this
waiver of subrogation.
ARTICLE 18: TENANT'S INDEMNITY
Subject to Section 17.2, Tenant shall defend, indemnify and hold harmless
Landlord and Landlord's officers, directors, shareholders, members, partners and
employees from and against liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs, expenses and disbursements (including, court
costs and reasonable attorneys' fees) resulting from any injuries to or death of
any person or damage to any property occurring during the Term in or about the
Premises.
ARTICLE 19: THIRD PARTIES; ACTS OF FORCE MAJEURE
Landlord shall have no liability to Tenant, or to Tenant's officers,
directors, shareholders, partners, employees, agents, contractors or invitees,
for bodily injury, death, property damage, business interruption, loss of
profits, loss of trade secrets or other tenant or such other direct or
consequential damages occasioned by (a) the acts or omissions of any other
tenant's officers, directors, shareholders, partners, employees agents,
contractors or other invitees; within the Complex, (b) Force Majeure, (c)
vandalism, theft, burglary and other criminal acts (other than those committed
by Landlord and its employees), (d) water leakage, or (e) the repair,
replacement, maintenance, damage, destruction or relocation of the Premises.
ARTICLE 20: SECURITY INTEREST
As security for Tenant's payment of Rent and performance of all of its
other obligations under this Lease, Tenant hereby grants to Landlord a security
interest in all property of Tenant now or hereafter placed in the Premises.
Landlord, as secured party, shall be entitled to all of the rights, remedies and
recourse afforded to a secured party under the Utah Uniform Commercial Code,
which rights, remedies and recourse shall be cumulative of all other rights,
remedies, recourse, liens and security interests afforded Landlord by law,
equity or this Lease. Contemporaneously with the execution of this Lease, Tenant
shall execute and deliver, as debtor, promptly upon request and without any
compensation or consideration being payable to Tenant, such additional financial
statement or statements as Landlord may request. However, Landlord may at any
time file a copy of this Lease as a financing statement.
Page 16
ARTICLE 21: CONTROL OF COMMON AREAS
Landlord shall have the exclusive control over the Common Areas. Landlord
may, from time to time, create different Common Areas, close or otherwise modify
the Common Areas, and modify the Building Rules and Regulations with respect
thereto.
ARTICLE 22: PLIGHT TO RELOCATE
Landlord retains the right and power, to be exercised reasonably and at
Landlord's expense, to relocate Tenant within the Building in space which is
comparable in size to the Premises and is suited to Tenant's use. Instances when
the exercise of Landlord's right and power to relocate Tenant shall be deemed
reasonable include, but shall not be limited to, instances where Landlord
desires to consolidate the rentable area in the Building to provide Landlord's
services more efficiently, or to provide contiguous vacant space for a
prospective tenant. Landlord shall not be liable to Tenant for any claims
arising in connection with a relocation permitted under this Article 22.
ARTICLE 23: QUIET ENJOYMENT
Provided Tenant has performed all its obligations under this Lease, Tenant
shall and may peaceably and quietly have, hold, occupy, use and enjoy the
Premises during the Term subject to the provisions of this Lease. Landlord shall
warrant and forever defend Tenant's right to occupancy of the Premises against
the claims of any and all persons whosoever lawfully claiming the same or any
part thereof, by, through or under Landlord, but not otherwise, subject to the
provisions of this Lease.
ARTICLE 24: DEFAULT BY TENANT.
24.1 Events of Default. Each of the following occurrences shall constitute
Event of Default (herein so called):
(a) The failure of Tenant to pay Rent as and when due hereunder and
continuance of such failure for a period of three days after written notice
from Landlord to Tenant specifying the failure; provided, however, after
Landlord has given Tenant written notice pursuant to this Section 24.1 (a)
on two separate occasions, Landlord shall not be required to give Tenant
any further notice under this Section 24.1 (a);
(b) The failure of Tenant to perform, comply with or observe any other
agreement, obligation or undertaking of Tenant, or any other term,
condition or provision in this Lease, and the continuance of such failure
for a period of ten (10) days after written notice from Landlord to Tenant
specifying the failure;
(c) The abandonment of the Premises by Tenant or the failure of Tenant
to occupy the Premises or any significant portion thereof,
Page 17
(d) The filing of a petition by or against Tenant (the term "Tenant"
also meaning, for the purpose of this Section 24.1 (d); any guarantor of
the named Tenant's obligations hereunder) (1) in any bankruptcy or other
insolvency proceeding (2) seeking any relief under the Bankruptcy Code or
any similar debtor relief law, (3) for the appointment of a liquidator or
receiver for all or substantially all of Tenant's property or for Tenant's
interest in this Lease, or (4) to reorganize or modify Tenant's capital
structure; and
(e) The admission by Tenant in writing that it cannot meet its
obligations as they become due or the making by Tenant of an assignment for
the benefit of its creditors.
24.2 Remedies of Landlord. Upon any Event of default, Landlord may, at
Landlord's option and in addition to all other rights, remedies and recourse
afforded Landlord hereunder or by law or equity, of an one or more of the
following:
(a) At Landlord's option and without waiving any default by Tenant,
Landlord shall have the right to continue this Lease in full force and
effect and to collect all Base Rent, Additional Rent, and any other amounts
to be paid by Tenant under this Lease as and when due. During any period
that Tenant is in default, Landlord shall have the right, pursuant to legal
proceedings or pursuant to any notice provided for by law, to enter and
take possession of the Premises, without terminating this Lease, for the
purpose of reletting, the Premises or any part thereof and making any
alterations and repairs that may be necessary or desirable in connection
with such reletting. Any such reletting or relettings may be for such term
or terms (including periods that exceed the balance of the term of this
Lease), and upon such other terms, covenants and conditions as Landlord may
in Landlord's sole discretion deem advisable. If the rent or rents received
during, any month and applied as provided above shall be insufficient to
cover all such amounts including the Base Rent and any other amounts to be
paid by Tenant pursuant to this Lease for such month, Tenant shall pay to
Landlord any deficiency; such deficiencies shall be calculated and paid
monthly. No entry or taking possession of the Premises by Landlord shall be
construed as an election by Landlord to terminate this Lease, unless
Landlord gives written notice of such election to Tenant or unless such
termination shall be decreed by a court of competent jurisdiction.
Notwithstanding any reletting by Landlord without termination, Landlord may
at any time thereafter terminate this Lease for such previous default by
giving written notice thereof to Tenant.
(b) Terminate Tenant's right to possession by notice to Tenant, in
which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. I such event Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord
by reason of Tenant's default, including without limitation the following:
(1) all unpaid Rent which has been earned at the time of such termination
plus (2) the amount by which the unpaid Rent which would have been earned
after termination until the time of award exceeds the amount of such rental
loss that is proved could have been reasonably avoided; plus (3) any other
amount necessary to compensate Landlord for all the detriment proximately
Page 18
caused by Tenant's failure to perform Tenant's obligations under this
Lease, or in addition to or in lieu of the foregoing such damages as may be
permitted from time to time under applicable State law. Upon any such
re-entry Landlord shall have the night to make any reasonable repairs,
alterations or modifications to the Premises, which Landlord in Landlord's
sole discretion deems reasonable and necessary.
(c) If an Event of Default specified in Section 24. 1 (c) occurs,
Landlord may remove and store any property that remains on the Premises
and, if Tenant does not claim such property within ten (10) days after
Landlord has delivered to Tenant notice of such storage, Landlord may
appropriate, sell, destroy or otherwise dispose of the property in question
without notice to Tenant or any other person, and without an obligation to
account for such property.
24.3 Payment by Tenant. Upon any Event of Default, Tenant shall also pay to
Landlord all costs and expenses incurred by Landlord, including court costs and
reasonable attorneys' fees, in (a) retaking or otherwise obtaining possession of
the Premises, (b) removing and storing Tenant's or an other occupant's property,
(c) repairing, restoring, altering, remodeling or otherwise putting the Premises
into condition acceptable to a new tenant or tenants, (d) reletting all or an
part of the Premises, (e) paying or performing the underlying obligation which
Tenant failed to pay or perform, and (f) enforcing any of Landlords rights,
remedies of recourse arising as a consequence of the Event of Default.
24.4 Reletting. Upon termination of this Lease or upon termination of
Tenant's right to possession of the Premises, Landlord shall use reasonable
efforts to relet the Premises on such terms and conditions as Landlord in its
sole discretion may determine (including a term different than the Term, rental
concession, and alterations to and improvements of the Premises); however,
Landlord shall not be obligated to relet the Premises before leasing other
portions of the Building. Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, Landlord's failure to relet the
Premises or collect rent due with respect to such reletting. If Landlord relets
the Premises, rent Landlord receives from such reletting shall be applied to the
payment of: first, any indebtedness from Tenant to Landlord other than Rent (if
any); second, all costs, including for maintenance and alterations, incurred by
Landlord in reletting; and third, Rent due and unpaid. In no event shall Tenant
be entitled to the excess of any rent obtained by reletting over the Rent herein
reserved.
24.5 Landlord's Right to Pay or Perform. Upon an Event of Default, Landlord
may, but without obligation to do so and without thereby waiving or curing such
Event of Default, pay or perform the underlying Obligation for the account of
Tenant, and enter the Premises and expend the Security Deposit, if any, and any
other sums for such purpose.
24.6 No Waiver; No Implied Surrender. Provisions of this Lease may only be
waived by the party entitled to the benefit of the provision evidencing the
waiver in writing. Thus, neither the acceptance of Rent by Landlord following an
Event of Default (whether known to Landlord or not), nor any other custom or
practice followed in connection with this Lease, shall constitute a waiver by
Landlord of such Event of Default or an other Event of Default. Further, the
failure by Landlord to complain of any action or inaction by Tenant, or to
Page 19
assert that any action or inaction by Tenant constitutes (or would constitute,
with the giving of notice and the passage of time) an Event of Default,
regardless of how long such failure continues, shall not extinguish, waive or in
any way diminish the rights, remedies and. recourse of Landlord with respect to
such action or inaction. No waiver by Landlord of any provision of this Lease or
of any breach by Tenant of any obligation of Tenant hereunder shall be deemed to
be a waiver of any other provisions hereof, or of any subsequent breach by
Tenant of the same or any other provision hereof Landlord's consent to any act
by Tenant requiring Landlord's consent shall not be deemed to render unnecessary
the obtainin1c, of Landlord's consent to any subsequent act of Tenant. No act or
omission by Landlord (other than Landlord's execution of a document
acknowledging such surrender) or Landlord's agents, including the delivery of
the keys to the Premises, shall constitute an acceptance of a surrender of the
Premises.
ARTICLE 25: DEFAULT BY LANDLORD
Landlord shall not be in default under this Lease, and Tenant shall not be
entitled to exercise any right, remedy or recourse against Landlord or otherwise
as a consequence of any alleged default by Landlord under this Lease, unless
Landlord fails to perform any of its obligations hereunder and said failure
continues for a period of thirty (30) days after Tenant gives Landlord and
(provided that Tenant shall have been giving the name and address of Landlord's
Mortgagee) Landlord's Mortgagee written notice thereof specifying, with
reasonable particularity, the nature of Landlord's failure. If, however, the
failure cannot reasonably be cured within the thirty (30) day period, Landlord
shall not be in default hereunder if Landlord or Landlord's Mortgagee commences
to cure the failure within the thirty (30) days and thereafter pursues the
curing of same diligently to completion. If Tenant recovers a money judgement
against Landlord for Landlord's default of its obligations hereunder or
otherwise, the judgement shall be limited to Tenant's actual direct, but no
consequential, damages therefor and shall be satisfied only out of the interest
of Landlord in the Complex as the same may then be encumbered, and Landlord
shall not otherwise be liable for any deficiency. In no event shall Tenant have
the right to levy execution against any property of Landlord other than its
interest in the Complex. The foregoing shall not limit any right that Tenant
might have to obtain specific performance of Landlord's obligations hereunder.
ARTICLE 26: RIGHT OF RE-ENTRY
Upon the expiration or termination of the Term for whatever cause, or upon
the exercise by Landlord of its right to re-enter the Premises without
terminating this Lease, Tenant shall immediately, quietly and peaceably
surrender to Landlord possession of the Premises in "broom clean" and good
order, condition and repair, except only for ordinary wear and tear, damage by
casualty not covered by Section 15.2 and repairs to be made by Landlord pursuant
to Section 15. 1. If Tenant is in default under this Lease, Landlord shall have
a lien on such personal property, trade fixtures and other property as set forth
in Section 38-3-1, et seq., of the Utah Code ▇▇▇. (Or any replacement
provision). Landlord may require Tenant to remove any personal property, trade
fixtures, other property, alterations, additions and improvements made to the
Premises by Tenant or by Landlord for Tenant, and to restore the Premises to
their condition on the date of this Lease. All personal property, trade fixtures
and other property of Tenant not removed from the Premises on the abandonment of
Page 20
the Premises or on the expiration of the Term or sooner termination of this
Lease for any cause shall conclusively be deemed to have been, abandoned and may
be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to, and without any obligation to account to, Tenant or any other
person. Tenant shall pay to Landlord all expenses incurred in connection with
the disposition of such property in excess of any amount received by Landlord
from such disposition. Tenant shall not be released from Tenant's obligations
under this Lease in connection with surrender of the Premises until Landlord has
inspected the Premises and delivered to Tenant a written release. While Tenant
remains in possession of the Premises after such expiration, termination or
exercise by Landlord of its re-entry right, Tenant shall be deemed to be
occupying the Premises as a tenant-at-sufferance, subject to all of the
obligations of Tenant under this Lease, except that the daily Rent shall be
twice the per-day Rent in effect immediately before such expiration, termination
or exercise by Landlord. No such holding over shall extend the Term. If Tenant
fails to surrender possession of the Premises in the condition herein required,
Landlord may, at Tenant's expense, restore the Premises to such condition.
ARTICLE 27: GENERAL PROVISIONS
27.1 Independent Obligations; No Offset. The obligations of Tenant to pay
Rent and to perform the other undertakings of Tenant hereunder constitute
independent unconditional obligations to be performed at the times specified
hereunder, regardless of any breach or default by Landlord hereunder. Tenant
shall have no right, and Tenant hereby waives and relinquishes all rights which
Tenant might otherwise have, to claim any nature of lien against the Complex or
to withhold, deduct form or offset against any Rent or other sums to be paid to
Landlord by Tenant.
27.2 Time of Essence. Time is of the essence with respect to each date or
time specified in this Lease by which an event is to occur.
27.3 Applicable Law. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH. ALL MONETARY AND OTHER
OBLIGATIONS OF LANDLORD AND TENANT ARE PERFORMABLE IN THE COUNTY WHERE THE
COMPLEX IS LOCATED.
27.4 Assignment by Landlord. Landlord shall have the right to assign, in
whole or in part, any or all of its rights, titles or interests in and to the
Complex or this Lease and, upon any such assignment, Landlord shall be relieved
of all unaccrued liabilities and obligations hereunder to the extent of the
interest so assigned.
27.5 Estoppel Certificates; Financial Statements. Tenant shall, from time
to time and within ten (10) days of written request from either Landlord or
Landlord's Mortgagee, and without compensation or consideration execute have
acknowledged and deliver a certificate setting forth the following: (a) a
ratification of this Lease; (b) the Commencement Date and expiration date; (c)
that this Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writing as shall be stated); (d) that
this Lease, as modified, supplemented or amended (if such is the case)
constitutes the complete agreement between Landlord and Tenant with respect to
Page 21
the Premises, the Building, and the Complex and that Tenant does not hold an
option to purchase the Complex or any interest therein, (e) that all conditions
under this Lease to be performed by Landlord have been satisfied or, in the
alternative, those claimed by Tenant to be unsatisfied; (f) that no defenses or
offsets exist against the enforcement of this Lease by Landlord or, in the
alternative, those claimed by Tenant to exist; (g) whether within the knowledge
of Tenant there are any existing breaches or defaults by Landlord hereunder and,
if so, stating the defaults with reasonable particularity; (h) the amount of
advance Rent, if any (or none if such is the case), paid by Tenant; (1) the date
to which Rent has been paid; 6) the amount of the Security Deposit, if any; and
(k) such other information as Landlord or Landlord's Mortgagee may request.
Landlord's Mortgagee and purchasers from either Landlord's Mortgagee or Landlord
shall be entitled to rely on any estoppel certificate executed by Tenant. Tenant
shall, within ten (10) days after Landlord's request, furnish to Landlord
current financial statements for Tenant, prepared in accordance with generally
accepted accounting principles consistently applied and certified by Tenant to
be true and correct.
27.6 Signs, Building Name and Building, Address. Landlord may, from time to
time at its discretion, maintain any and all signs anywhere in the Complex, and
may change the name and street address of the Complex. Tenant shall not use the
name of the Building for any purpose other than as the address of the building
for the business to be conducted by Tenant from the Premises.
27.7 Notices. All notices and other cormmunications given pursuant to this
Lease shall be in writing and shall either be mailed by first class United
States mail, postage prepaid, registered or certified with return receipt
requested, and addressed as set forth in this Section 27.7, or delivered in
person to the intended addressee, or sent by prepaid telegram, cable or telex
followed by a confirmatory letter. Notice mailed in the aforesaid manner shall
become effective three (3) business days after deposit; notice given in any
other manner, and any notice given to Landlord, shall be effective only upon
receipt by the intended addressee. For the purposes of notice, the address of
(a) Landlord shall be at the Building manager's office at the Building, and (b)
Tenant shall be, prior to the Commencement Date, the address recited on the
signature page I hereof, and after the Commencement Date, the Premises. Each
party shall have the continuing right to change its address for notice hereunder
by the giving of fifteen (15) days' prior written notice to the other party in
accordance with this Section 27.7.
27.8 Entire Agreement, Amendment and Binding Effect. This Lease constitutes
the entire agreement between Landlord and Tenant relating to the subject matter
hereof, and all prior agreements relative hereto which are not contained herein
are terminated. This Lease may be amended only by a written document duly
executed by Landlord and Tenant (and, if a Mortgage is then in effect, by the
Landlord's Mortgagee entitled to the benefits, thereof), and any alleged 0 17
amendment which is not so documented shall not be effective as to either party.
The provision of this Lease shall be binding upon and inure to the benefit of
the parties hereto and their heirs, executors, administrators, successors and
assigns; provided, however, that this Section 27.8 shall not negate, diminish or
alter the restrictions on Transfer applicable to Tenant set forth elsewhere in
this Lease.
27.9 Severabilitv. This Lease is intended to be performed in accordance
with and only to the extent permitted by all Legal Requirements. If any
Page 22
provision of this Lease or the application thereof to any person or
circumstances shall, for any reason and to any extent, be invalid or
unenforceable, but the extent of the invalidity- or unenforceability does not
destroy the basis of the bargain between the parties as contained herein, the
remainder of this Lease and the application of such provision to other persons
or circumstances shall not be affected thereby, but rather shall be enforced to
the greatest extent permitted by law.
27.10 Number and Gender, Captions and References. As the context of this
Lease may require, pronouns shall include natural persons and legal entities of
every kind and character, the singular number shall include the plural, and the
neuter shall include the masculine and the feminine gender. Section headings in
this Lease are for convenience of reference only and are not intended, to any
extent and for any purpose, to limit or define any section hereof. Whenever the
terms "hereof," "hereby," "herein," "hereunder," or words of similar import are
used in this Lease, they shall be construed as referring to this Lease in its
entirety rather than to a particular section or provision, unless the context
specifically indicates to the contrary. Any reference to a particular "Section"
shall be construed as referring to the indicated section of this Lease.
27.11 Attornev's Fees. In the event either party commences a legal
proceeding to enforce an of the terms of this Lease, the prevailing party in
such action shall have the right to recover reasonable attorneys" fees and costs
from the other party, to be fixed by the court in the same action. "Lecral
proceedings" includes appeals from a lower court judgement as well as
proceedings in the Federal Bankruptcy Court ("Bankruptcy Court"), whether or not
they are adversary proceedings or contested matters. The "prevailing party" (a)
as used in the context of proceedings in the Bankruptcy Court means the
prevailing party in an adversary proceeding or contested matter, or an other
actions taken by the non-bankrupt party which are reasonably necessary to
protect its rights under this Lease, and (b) as used in the context of
proceedings in any court other than the Bankruptcy Court means the party that
prevails in obtaining a remedy or relief which most nearly reflects the remedy
or relief which the party sought; so that, for example, the prevailing party may
be a party which is ordered to pay One Hundred Dollars ($100) where the
obligation to pay Eighty Dollars ($80) was undisputed and the claiming party
alleged that it was entitled to One Thousand Dollars ($1,000).
27.12 Brokers. Tenant and Landlord hereby warrant and represent unto the
other that it has not incurred or authorized any brokerage commission, finders
fees or similar payments in connection with this Lease, other than that which is
due to D&B Real Estate, Inc. which payment shall by paid by Landlord Each party
shall defend, indemnify and hold the other han-n1ess from and against any claim
for brokerage commission, finder's fees or similar payment, arising by virtue of
authorization of such party, or any Affiliate of such party, in connection with
this Lease.
27.13 Interest on Tenant's Obligations. Any amount due from Tenant to
Landlord which is not paid when due shall bear interest at the lesser of
eighteen percent (18%) perannum or the maximum rate allowed by law from the date
such payment is due until paid, but the payment of such interest shall not
excuse or cure the default in payment.
Page 23
27.14 Authority. The -person executing this Lease on behalf of Tenant
personally warrants and represents to landlord that (a) Tenant is a duly
organized and existing legal entity, in good standing in the State of Utah, (b)
Tenant has full right and authority to execute, deliver and perform this Lease,
(c) the person executing this Lease on behalf of Tenant was authorized to do so,
and (d) upon request of Landlord, such person will deliver to Landlord
satisfactory evidence of his or her authority to execute this Lease on behalf of
Tenant.
27.15 Recording. Neither this Lease (including any Exhibit hereto) nor any
memorandum hereto shall be recorded without the prior written consent of
Landlord.
27.16 Exhibits. All Exhibits and written addenda hereto are incorporated
herein for any and all purposes.
27.17 Multiple Counterparts. This Lease may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one instrument.
27.18 Miscellaneous. Any guaranty delivered in connection with this Lease
is an integral part of this Lease and constitutes consideration given to
Landlord to enter into this Lease. No amendment to this Lease shall be binding
on Landlord or Tenant unless reduced to writing and signed by both parties. Each
provision to be performed by Tenant shall be construed to be both a covenant and
a condition. Venue on any action arising out of this Lease shall be proper only
in the District Court of Utah County, State of Utah. Landlord and Tenant waive
trial by jury in any action, proceeding or counterclaim brought by either of
them against the other on all matters arising, out of this Lease or the use and
occupancy of the Premises. The submission of this Lease to Tenant is not an
offer to lease the Premises for Tenant. Landlord shall not be bound to Tenant
until Tenant has duly executed and delivered duplicate original copies of this
Lease to Landlord and Landlord has duly executed and delivered one of those
duplicate original copies to Tenant.
Page 24
EXECUTED as of the date and year above first written.
TENANT ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES TO TENANT AS TO THE
CONDITION OF THE PREMISES, EITHER EXPRESS OR IMPLIED, AND LANDLORD AND TENANT
EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR
TENANT'S INTENDED COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT
HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES FOR THE
PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND TENANT SHALL CONTINUE
TO PAY THE RENT, WITHOUT ABATEMENT (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN), SET OFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS
DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
TENANT: Online Investors Advantage, Inc.
BY: /S/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
TITLE: V.P. Marketing & Sales
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇
DATE: May 25, 1999
ADDRESS:
LANDLORD: EsNET PROPERTIES, L.C., a
Utah limited liability company
BY: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
TITLE: Manager
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
DATE: May 28, 1999
ADDRESS: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Page 25
EXHIBIT
GLOSSARY OF DEFINED TERMS
-------------------------
1. "Addendum" shall mean the Addendum, if any, attached to this Lease.
2. "Affiliate" shall mean a person or party who or which controls, is
controlled by or is under common control with, another person or party.
3. "Building" shall mean that certain three-floor office building and
garage structure (if any) constructed on the Land, the street address of which
is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. The term "Building" shall
include all fixtures and appurtenances in and to the aforesaid structure,
including specifically but without limitation all above-grade walkways and all
electrical, mechanical, plumbing, security, elevator, boiler, HVAC, telephone,
water, gas, storm sewer, sanitary sewer, and all other utility systems and
connections, all life support systems, sprinklers, smoke detection and other
fire protection systems, and all equipment, machinery, shafts, flues, piping,
wiring, ducts, duct work, panels, instrumentation and other appurtenances
relating thereto.
4. "Building, Operating Hours" shall mean 7:30 a.m. to 6:00 p.m. Monday
through Friday, and Saturday 8:00 a. In. to 1:00 p.m., exclusive of Sundays and
Holidays.
5. "Building Rules and Regulations" shall mean the rules and regulations
governing the Complex promulgated by Landlord from time to time. The current
Building Rules and Regulations maintained by Landlord are attached as Exhibit D
hereto.
6. "Building Standard", when applied to an item, shall mean such item. as
has been designated by Landlord (orally or in writing) as generally applicable
throughout the leased portions of the Building.
7. "'Commencement Date" shall mean the date of the commencement of the Term
as determined pursuant to Section 6.3.
8.. "Common Areas" shall mean all area and facilities within the Complex
which have been constructed and are being- maintained by Landlord for the
common, general, nonexclusive use of all tenants in the Building, and shall
include rest rooms, lobbies, corridors, service areas, elevators, stairs and
stairwells, the Parking Facility, other parking areas, driveways, loading areas,
ramps, walkways and landscaped areas.
9. "Complex " shall mean the Land and all improvements thereon, including
the Building and the Parking Facility.
10. "Fiscal Year" shall mean the fiscal year (or portion thereof) of
Landlord as elapses during the Term. The Fiscal Year currently commences on
January 1; however, Landlord may change the Fiscal Year at any time or times.
Page 26
11. "Force Majeure" shall mean the occurrence of any event which
hinders, prevents or delays the performance by Landlord of any of its
obligations hereunder and which is beyond the reasonable control of Landlord.
12. "Holidays" shall mean (a) New Year's Day, Good Friday, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day, (b)
other days on which in national or state banks located in the state where the
Complex is located must or may close for ordinary operations, and (c) other
days which are commonly observed as Holidays by the majority of tenants of the
Building. If the Holiday occurs on a Saturday or Sunday, the Friday preceding
or the Monday following may, at the Landlord's discretion, be observed as a
Holiday.
13. "HVAC" shall mean the heating, ventilation, and air conditioning
systems in the Building.
14. "Impositions" shall mean (a) all real estate, personal property,
rental, water, sewer, transit, use, occupancy owners' association and other
taxes, assessments, charges, excises and levies (including any interest, cost or
penalties with respect thereto), general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which
are assessed, levied, charaed or imposed upon or with respect to the Complex, or
an portion thereof, or the sidewalks, streets or alleyways adjacent thereto, or
the ownership, use, occupancy or enjoyment thereof (including but not limited to
mortgage taxes and other taxes and assessments passed on to Landlord by
Landlord's Mortagee), and (b) all charges for any easement, license, permit or
agreement maintained for the benefit of the Complex. "Impositions" shall not
include income taxes, estate and inheritance taxes, excess profit taxes,
franchise taxes, taxes imposed on or measured by the income of Landlord from the
operation of the Complex, and taxes imposed on account of the transfer of
ownership of the Complex of the Land. If any or all of the Impositions shall be
discontinued and, in substitution therefor, taxes, assessments, charges, excises
or positions shall be assessed, levied, charged or posed wholly or partially on
the Rents received or payable hereunder (a "Substitute Imposition"), then the
Substitute Imposition shall be deemed to be included within the term
"Impositions."
15. "Land" shall mean the real property on which the Building is
constructed and which is further described in Exhibit E hereto.
16. "Landlord's Mortgagee" shall mean the mortgagee of any mortgage, the
beneficiary of any deed of trust, the pledgee of any pledge, the secured party
of any security interest, the assignee of any assignment and the transferee of
any other instrument of transfer (including the ground lessor of any ground
lease on the Land) now or hereafter in existence on all or any portion of the
Complex, and their successors, assigns and purchasers. "Mortgage" shall mean any
such mortgage, deed or trust, pledge, security agreement, assignment or transfer
instrument, including all renewals, extension and rearrangements thereof and of
all debts secured thereby.
17. "Landlord's Work" shall mean all improvements, components, assemblies,
installations, finish, labor, materials and services that Landlord is required
to furnish, install, perform, provide or apply to the Premises as specified in
the Work Letter.
Page 27
18. "Landlord's Work Completion Date" shall mean earliest of (a) the date
on which Landlord substantially completes the Landlord's Work and tenders
possession of the ~premises to Tenant, (b) the date on which Landlord would have
substantially completed the Landlord's Work and tendered possession of the
Premises to Tenant but for (1) the delay or failure of Tenant to furnish
information or other matters required in the Work Letter, (2) Tenant's request
for changes in the plans or non-Building Standard items, or (3) any other action
or inaction of Tenant, or any person or firm employed or retained by Tenant, or
(c) the date on which Tenant takes possession of the Premises.
19. "Legal Requirements"- shall mean any and all (a) judicial decisions,
order, injunctions, writs, statues, rulings, rules, regulations, promulgations,
directives, permits, certificates or ordinances of any governmental authority in
any way applicable to Tenant or the Complex, including but not limited to the
Building Rules and Regulations, zoning environmental and utility conservation
matter, requirements imposed on Landlord by any Landlord's Mortgagee, (c)
insurance requirements, and (d) other documents, instruments or agreements
(written or oral) relating to the Complex or to which the Complex may be bound
or encumbered.
20. "Net Rentable Area" whether of the Premises or the Building shall mean
the rentable area determined pursuant to the American National Standard Method
for Measuring Floor Area in Office Buildings, as set forth in American National
Standard's Institute publication Z65.1-1980 and as, from time to time, revised
("BOMA Standard"); provided, however, that for purposes of determining the
rentable area of either the Premises or the Building (or any portion 7 C., of
the Building), the initial "R/U Ratio" (as defined in the BOMA Standard) shall
be equal to 118.37% to reflect a stipulated pro rata portion of the area covered
by the lobbies, corridors, restrooms, mechanical rooms, electrical rooms and
telephone closets of the Building 1.71
21. "Net Usable Area" whether of the Premises or the Complex shall mean the
usable area determined pursuant to the American National Standard Method for
Measuring Floor Area in Office Buildings, as set forth in American National
Standard's Institute publication Z65. 1 -1980 and as, from time to time,
revised. Landlord and Tenant hereby stipulate that the Net Rentable Area of the
Premises shall be Two Thousand, Eight Hundred, Twenty-Two (2,822 square feet and
the Net Usable Area of the Premises shall be Three Thousand, Three Hundred,
Forty (3,240 square feet.
22. "Operating Expenses" shall mean all costs and expenses which Landlord
pays or accrues by virtue of the ownership, use, management, leasing,
maintenance, service, operation, insurance or condition of the Complex during a
particular Fiscal Year or portion thereof as determined by Landlord or its
certified public accountant in accordance with generally accepted accounting
principles, plus (in instances where the Building was not fully occupied for the
entire period in question) all additional costs and expenses which Landlord or
such accountant reasonably determines Landlord would have paid or accrued during
such period if the Building had been occupied (defined as ninety-five percent
(95%) occupied). "Operating Expenses" shall include, but shall not be limited
to, the following to the extent they relate to the Complex:
(a) all Impositions and other governmental changes;
Page 28
(b) all insurance premiums charged for polices obtained by Landlord, which
may include without limitation, at Landlord's election, (1) fire and extended
coverage insurance, including earthquake, windstorm, hail, explosion, riot,
strike, civil commotion, aircraft, vehicle and smoke insurance, (2) public
liability and property damage insurance, (3) elevator insurance, (4) workers'
compensation insurance for the employees covered by clause (h) below, (5)
boiler, machinery, sprinkler, water damage, legal liability, burglary, hold-up,
fidelity and pilferage insurance, (6) rental loss insurance, and (7) such other
insurance as Landlord may elect to obtain.
(c) all deductible amounts incurred in any Fiscal Year relating to an
insurable loss.
(d) all maintenance, repair, replacement and painting cost;
(e) all janitorial, custodial, cleaning, washing, landscaping, landscape
maintenance, trash removal and pest control costs;
(f) all security cost;
(g) all electrical, energy monitoring, water, water treatment, gas, sewer,
telephone and other utility and utility-related charges;
(h) all wages, salaries, salary-burdens, employee benefits, payroll taxes,
Social Security and insurance for all persons engaged by Landlord or an
Affiliate of Landlord;
(i) all costs of leasing or purchasing supplies, tools, equipment and
material;
(j) all management fees and other charges for management services
(including without limitation travel and related expenses), whether provided by
an independent management company, by Landlord or by an Affiliate of Landlord;
(k) all fees and other charges paid under all maintenance and service
agreement, including but not limited to window cleaning, elevator and HVAC
maintenance;
(l) all legal, accounting and auditing fees and expenses; and
(m) amortization of the cost of acquiring, financing and installing capital
items which are intended to reduce (or avoid increases in) operating expenses or
which are required by a governmental authority. Such costs shall be amortized
over the reasonable life of the items in accordance with generally accepted
accounting principles, but not beyond the reasonable life of the Building.
"Operating Expenses" shall not include (i) expenditures classified as capital
expenditures for federal income tax purposes except as set forth in clause (m),
(ii) costs for which Landlord is entitled to specific reimbursement by Tenant,
Page 29
by any other tenant of the Building or by any other third party, (iii)
allowances specified in the Work Letter for expenses incurred by Landlord for
improvements to the Premises, (iv) leasing commissions, and all non-cash
expenses (including depreciation), except for the amortized costs specified in
clause (m), (v) land or ground rent if applicable, and (vi) debt service on any
indebtedness secured by the Complex (except debt service on indebtedness to
purchase or pay for items specified as permissible "Operating Expenses" under
clauses (a) through (m)).
23. "Parking Facility" shall mean any parking garage located under the
Building.
24. "Permitted Use" shall mean the use specified in Article 4 of the Lease.
25. "Premises" shall mean the area leased by Tenant pursuant to this Lease
as outlined on the floor plan drawing attached as Exhibit B hereto and all other
space added to the Premises pursuant to the terms of this Lease. The Premises
included the space between the top surface of the floor slab of the outlined
area and the finished surface of the ceiling immediately above.
26. "Rent" shall mean Base Rent, Additional Rent, the parking charge called
for in Section 5.3 and all other amounts provided for under this Lease to be
paid by Tenant, whether as Additional Rent or otherwise. "Base Rent" shall mean
the base rent specified in Section 5.1 "Additional Rent" shall mean the
additional rent specified in Section 5.2.
27. "Security Deposit" means Zero Dollars ($00.00).
28. "Taking" or "Taken" shall mean the actual or constructive condemnation,
or the actual or constructive acquisition by or under the threat of
condemnation, eminent domain or similar proceeding, by or at the direction of
any governmental authority or agency.
29. "Tenant's Share" shall mean the proportion by which the Net Rentable
Area of the Premises bears to the Net Rentable Area of the Building. "Tenant's
Share" shall be adjusted by Landlord from time to time to reflect adjustments to
the then-current Net Rentable Area of the Building or the Premises.
30. "Transfer" shall mean (a) an assignment (direct or indirect, absolute
or conditional, by operation of law of otherwise) by Tenant of all or any
portion of Tenant's interest in this Lease or the leasehold estate created
hereby, (b) a sublease of all or any portion of the Premises, or (c) the grant
or conveyance by Tenant of any concession or license within the Premises. If
Tenant is a corporation, then any transfer of this Lease by merger,
consolidation or dissolution, or by any change in ownership or power to vote a
majority of the voting stock (being the share of stock regularly entitled to
vote for the election of directors) in Tenant outstanding at the time of
execution of this Lease shall constitute a Transfer. If Tenant is a partnership
having one or more corporations as general partners, the preceding sentence
shall apply to each corporation as if the corporation alone had been the Tenant
hereunder. If Tenant is a general or limited partnership, joint venture or other
form of association, the Transfer of a majority of the ownership interests
therein shall constitute a Transfer. "Transferee" shall mean the assignee,
sublessee, pledgee, concessionaire, licensee or other transferee of all or any
portion of Tenant's interest in this Lease, the leasehold estate created hereby
or the Premises.
Page 30
31. "Work Letter" shall mean the agreement, if any, attached as Exhibit F
hereto between Landlord and Tenant for the construction of improvements in the
Premises.
Page 31
EXHIBIT B
PREMISES
[Attach floor plan of the Premises.]
Page 32
EXHIBIT C
JANITORIAL SERVICES
-------------------
The cleaning specifications are as follows:
The Main Lobby area will be maintained by the Landlord's personnel. This
area will be maintained in keeping with a Class A Office Building on a daily
basis (Monday through Saturday). The outside "courtyard" area will be kept neat
and clean (Monday through Saturday). The Landscaping will be well taken care of
in the appropriate seasons.
I. SERVICES OF ELEVATORS, LOBBIES AND CORRIDORS
1. Daily Services:
(a) Empty and clean ashtrays and cigarette urns.
(b) Vacuum all carpet. Clean carpet as needed.
(c) Clean drinking fountain tops, sides and fronts.
(d) Clean lights, vents, directional sips and glass on doors.
2. Weekly Services:
(a) Clean outside of flower pots and furnishings.
(b) Clean skylights.
3. Elevators Inside:
(a) Vacuum daily.
(b) Keep elevator thresholds clean.
(c) Clean light covers as needed.
(d) Clean metal, around buttons as needed.
(e) Clean walls and doors as needed.
(f) Make monthly cosmetic repairs to elevator walls and doors.
II. OFFICE AREAS
1. Daily Services:
(a) Empty all trash cans and deliver to designated areas. (b) Empty
and clean ashtrays and cigarette urns. (c) Mop all spills on resilient
floors.' (d) Vacuum all carpet. (e) Vacuum the edges of the carpet as
needed. They must be kept clean. (f) Clean partitions, partition
glass, doors and casings, electric.
cover plates, kick plates and push plates on doors.
Page 33
(g) Daily clean sinks, tables, counters, chairs, refrigerators,
machine sides, top and front, cupboard fronts, walls, lights,
vents, etc. All horizontal surfaces that can be reached without a
adder should be dusted daily.
(h) Clean all trash cans as needed. (i) Clean all drinking fountains.
2. Weekly Services:
(a) Clean all desk tops.
(b) Clean telephone receiver only.
(c) NEVER TOUCH OR CLEAN TERMINALS, COMPUTERS, OR CALCULATORS. Please
clean sides of and front of copy machines with glass cleaner only.
(d) Dust all horizontal surfaces, shelves, molding and air ducts that
cannot be reached without using a ladder.
3. Monthly Services:
(a) Clean desk plastic as needed.
(b) Vacuum under floor plastic as needed.
(c) Dust all light fixtures.
(d) Dust Venetian blinds -- DO NOT WASH THEM.
(e) Vacuum drapes as they hang on rod (do not remove drapes).
(f) Vacuum all grill work.
(g) Damp mop stairwells.
4. Tenant Furnitute Requirements:
(a) Do not clean leather furniture. Vacuum carefully.
(b) Do not spot clean the cloth on partitions or walls.
(c) Do not lemon oil wood desk fronts unless they are really dry. See
contract manager first.
(d) Clean coat racks, chairs, cupboard fronts, bookcases, tables,
files, counter top, etc.
III. RESTROOM SERVICES
1. Daily Services:
(a) Empty and remove trash.
(b) Enlenish M12lies (towels, toilet paper, soap, bags). (c) Mop floor
with a germicidal cleaner, including toilet and urinal
surfaces.
(d) Clean furniture as needed.
(e) Clean all horizontal surfaces with disinfectant strength germicidal
cleansers.
(f) Everything in the restrooms must be clean.
Page 34 Lease Agreement
(g) Keep all walls clean. (h) Clean mirrors.
2. Weekly Services:
(a) Clean vents and light covers.
IV. STAIRWAYS AND CORRIDORS LEADING TO STAIRWAYS
1. Daily and as Needed Services:
(a) Remove trash.
(b) Mop floors and/or vacuum carpet.
(c) Clean glass in doors, door jambs, thresholds, baseboards, steps,
step fronts, handrails, I-beams.
2. Bi-Yearly Services:
(a) Wash all walls.
V. WINDOWS
1. Inside Windows:
(a) Clean inside windows quarterly (Jan., April, July, Oct.).
VI. EXTRA CLEANING COSTS TO THE TENANT
1. For special cleaning services required by tenant and not covered in
the contract, Tenant will have the right to solicit desired
extraordinary services from the then existing contractor at its own
expense, i.e. cleaning of the upholstery, carpet cleaning more often
than every three years, vinyl floor stripping, waxing and polishing,
cleaning of artwork and displays, etc. However, should Tenant require
cleaning of the carpets more often, then those expenses win be paid by
the Tenant as the Tenant requests said service.
2. Many wall coverings require very special attention to maintain in an
attractive manner. The Tenants should be careful to choose wall
coverings which tend to not show the dirt, are reasonably maintainable
and resist hand and scuff marks. WaU coverings, which in the
Landlord's opinion will have to be maintained by wallcovering cleaning
professionals and will be cleaned at Tenant's request an expense.
Page 35
VII. MISCELLANEOUS
Tenant is entitled to designate the cleaning sequence of the floors
comprising the leased premises. No cleaning supplies will be routinely
deposited in the elevator lobbies or entryway to Tenant's suite.
If the Landlord's cleaning, services are deemed unsatisfactory, Tenant shall
notify the Landlord in writing. The Landlord shall have 60 days to correct any
deficiency, and if at the end of the 60 day period, Tenant is not satisfied,
then Tenant shall have the right to directly contract with a cleaning contractor
to provide cleaning services for its own space. Following the end of the 60day
period aforesaid, Tenant shall additionally give the Landlord 45 days advance
Written notice of the date the Landlords appropriate credit to its proportionate
share of operating expenses and taxes. If after six month Landlord is
dissatisfied with. the cleaning services Tenant has contracted for, Landlord and
Tenant will mutually select a third cleaning service.
Page 36
EXHIBIT D
RULES AND REGULATIONS
---------------------
1. Landlord may form time to time adopt appropriate systems and procedures
for the security or safety of the Building, any persons occupying, using or
entering the Building, or any equipment, finishing or contents of the Building,
and each tenant shall comply with such systems and procedures. Landlord shall in
no case be liable for damages for any error with regard to the admission to or
exclusion from the Building, of any person. In the event of an invasion, mob,
riot, public excitement or other commotion, Landlord reserves the right to
prevent access to the Building during the continuance of the same by closing of
the doors of the Building or any other reasonable method, for the safety of the
tenants and protection of the Building and property in the Building.
2. Tenant's employees, visitors, and licensees shall not loiter in or
interfere with the use of the Parking Facility or the Complex's driveway or
parking areas, nor consume alcohol in the Common Areas of the Complex or the
Parking Facility. The sidewalks, halls, passages, exits, entrances, elevators,
escalators, and stairways of the Building will not be obstructed by any tenants
or used by any of them for any purpose other than for ingress to and egress form
their respective premises. The halls, passages, exits, entrances, elevators,
escalators, and stairways are not for the general public, and Landlord may
control and prevent access to them by all persons whose presence, in the
reasonable judgement of Landlord, would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants. In determining whether
access will be denied, Landlord may consider attire worn by a person and its
appropriateness for an office building, whether shoes are being worn, use of
profanity, either verbally or on clothing actions of a person (including without
limitation spitting, verbal abusiveness, and the like), and such other matter as
Landlord may reasonably consider appropriate.
3. No sign, placard, picture, name, advertisement or notice visible form
the exterior of any tenant's premises shall be inscribed, painted, affixed or
otherwise displayed by any tenant on any part of the Building without the prior
written consent of Landlord. All approved signs or 0 or lettering on doors will
be printed, painted, affixed or inscribed at the expense of the tenant desiring
such by a person approved by Landlord. Material visible from the outside the
Building will not be permitted. Landlord may remove such material without any
liability, and may charge the expense incurred by such removal to the tenant in
question.
4. No curtains, draperies, blinds, shutters, shades, screens, or other
coverings, hangings or decorations will be attached to, hung or placed in, or
used in connection with any window of the Building, or the Premises.
5. The sashes, sash doors, skylights, windows, heating, ventilating, and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by any tenant, nor will any bottles, parcels or other articles be
placed on any window ▇▇▇▇▇.
Page 37
6. No showcases or other articles will be put in front of or affixed to any
part of the exterior of the Building, nor placed in the public halls, corridors
or vestibules without the prior written consent of Landlord.
7. No tenant will permit its premises to be used for lodging or sleeping.
No cooking will be done or permitted by any tenant on its premises, except in
areas of the premises which were specifically constructed for cooking, so long
as such use is in accordance with all applicable federal, state, and city laws,
codes, ordinances, rules and regulations.
8. No tenant will employ any person or persons other than the cleaning,
service of the Landlord for the purpose of cleaning the premises, unless
otherwise agreed by Landlord in writing. If any tenant's actions result in any
increased expense for any required cleaning, Landlord may assess such tenant for
such expenses. Janitorial service will not be furnished on nights to offices
which are occupied after business hours on those nights unless, by prior written
agreement of Landlord, service is extended to a later hour for specifically
designated offices. 9. The toilets, urinals, wash bowls and other plumbing
fixtures will not be used for any purpose other than those for which they were
constructed, and no sweeping, rubbing, rags or other foreign substances will be
thrown in them. All damages resulting from any misuse of the fixtures will be
borne by the tenant who, or whose servants, employees, agents, visitors or
licensees, have caused the damage.
10. No tenant will deface any part of the Premises or the Building. Without
the prior written consent of Landlord, no tenant will lay linoleum or other
similar floor covering so that it comes in direct contact with the floor of such
tenant's premises. If linoleum or other similar floor covering is to be used, an
interlining of builder's deadening felt will be first affixed to the floor by a
paste or other material soluble in water. The use of cement or other similar
adhesive material is expressly prohibited.
11. No tenant will alter, change, replace or re-key any lock or install a
new lock or a knocker on any door of the Premises. Landlord, its agent or
employee will retain a master key to all door locks on the Premises. Any new
door locks required by a tenant or any changes in keying of existing locks will
be installed or changed by Landlord following such tenant's written request to
Landlord and will i be at such tenant's expense. All new locks and re-keyed
locks will remain operable by Landlord's master key. Landlord will furnish to
each tenant, free of charge, two (2) keys to each door lock on its premises, and
two (2) Building access cards. Landlord will have the right to. collect a
reasonable charge for additional keys and cards requested by any tenant. Each
tenant, upon termination of its tenancy, will deliver to Landlord all keys and
access cards for the Premises and Building which have been furnished to such
tenant. Tenant shall keep the doors of the Premises closed and securely locked
when Tenant is not at the Premises.
12. The elevator designated for freight by Landlord will be available for
use by all tenants in the Building during the hours and pursuant to such
procedures as Landlord may determine from time to time. The persons employed to
move Tenant's equipment, material, furniture or other property in or out of the
Building must be acceptable to Landlord; such persons must be a locally
recognized professional mover whose primary business is the performing of
relocation services, and must be bonded and fully insured. A certificate or
Page 38
other verification of such insurance must be received and approved by Landlord
prior to the start of any moving operations. Insurance must be sufficient, in
Landlord's sole opinion, to cover all personal liability, theft or damage to the
Building, including without limitation floor coverings, doors, walls, elevators,
stairs, foliage and landscaping. All moving operations will be conducted at such
times and in such a manner as Landlord may direct, and all moving will take
place during nonbusiness hours unless Landlord otherwise agrees in writing. The
moving tenant shall be responsible for or the provision of Building security
during all moving operations, and shall be liable for all- losses and damages
sustained by an party as a result of the failure to supply adequate security.
Landlord may prescribe the weight, size, and position of all equipment,
materials, furniture or other property brought into the Building. Heavy objects
will, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to distribute the weight properly. Landlord will not
be responsible for loss of or damage to any such property from any cause, and
all damage done to the Building by moving or maintaining such property will be
repaired at the expense of the moving tenant. Landlord may inspect all such
property to be brought into the Building and to exclude from the Building all
such property which violates any of these rules and regulations or the lease of
which these rules and regulations are a part. Supplies, goods, materials,
packages, furniture and all other items of every kind delivered to or taken from
the Premises will be delivered or removed through the entrance and route
designated by Landlord.
13. No tenant will use or keep in the Premises or the Building any
kerosene, gasoline, inflammable, combustible or explosive fluid or material, or
chemical substance other than limited quantities of them reasonably necessary
for the operation or maintenance of office equipment or limited quantities of
cleaning, fluids and solvents required in the normal operation of the Premises.
Without Landlord's prior written approval, no tenant will keep any firearms
within the Premises. No tenant will use or keep, or permit to be used or kept,
any foul or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in any manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors, or
vibrations, nor interfere in any way with other tenants or those having business
in the Building.
14. Landlord may, without notice and without liability to any tenant,
change the name and street address of the Building.
15. Landlord will have the right to prohibit any advertising by Tenant
mentioning the building which, in Landlord's reasonable opinion, tends to impair
the reputation of the Building or its desirability as a Building for offices
and, upon written notice from Landlord, Tenant will discontinue such
advertising.
16. Tenant will not bring any animals or birds into the Building, and will
not permit bicycles or other vehicles inside or on the sidewalks outside the
Building, except in areas designated from time to time by Landlord for such
purposes.
17. All persons entering or leaving the Building at any time other than the
Building's business hours shall comply with such off-hour regulations as
Landlord may establish and
Page 39
modify from time to time. Landlord may limit or restrict access to the Building
during such periods.
18. Each tenant will store all its trash and garbage within its premises.
No material will be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without being in violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
will be made only through entryways and elevators provided for such purposes and
at such times as Landlord may designate. No furniture, appliances, equipment or
flammable products of any type may be disposed of in the Building trash
receptacles.
19. Canvassing, peddling, soliciting, and distribution of handbills or any
other written materials in the Building are prohibited, and each tenant will
cooperate to prevent same.
20. Each tenant shall keep the doors of the Premises closed and locked, and
shall shut off all water faucets, water apparatus, and utilities before tenant
or tenant's employees leave the Premises, so as to prevent waste or damage, and
for any default or carelessness in this regard Tenant shall be liable for all
injuries sustained by other tenants or occupants of the Building or Landlord. On
multiple-tenancy floors, all tenants will keep the doors to the Building
corridors closed at all times except for ingress and egress.
21. Except as permitted by Landlord by prior written consent, Tenant shall
not ▇▇▇▇ on, paint signs on, cut, drill into, drive nails or screws into, or in
any way deface the walls, ceilings, partitions or floors of the Premises or of
the Building, and any defacement, damage or injury directly or indirectly caused
by Tenant shall be paid for by Tenant. Pictures or diplomas shall be hung on
tacks or small nails; Tenant shall not use adhesive hooks for such purposes.
22. Tenant shall not grant any concessions, licenses or permission for the
sale or taking of orders for food or services or merchandise in the Premises,
install or permit the installation or use of any machine or equipment for
dispensing food or beverage in the Building nor permit the preparation, serving,
distribution or delivery of food or beverages in the Premises, without the prior
written approval of Landlord and only in compliance with arrangements prescribed
by Landlord. Only persons approved by Landlord shall be permitted to serve,
distribute or deliver food and beverage within the Building or to use the public
areas of the Building for that purpose. No cooking shall be done or permitted by
Tenant on the Premises.
Page 40
EXHIBIT E
DESCRIPTION OF LAND
-------------------
Page 41
EXHIBIT F
WORK LETTER AGREEMENT
--------------------
I. Landlord and Tenant Construction Obligations
A. By June 10, 1999, Tenant agrees to deliver to Landlord a detailed space
plan ("Space Plan") containing all information listed in Section II of this Work
Letter Agreement for all tenant improvements ("Tenant Improvements ") required
by Tenant in the Premises. If the Space Plan is not delivered by the date listed
above, then each calendar day of delay in delivery shall constitute on day of
"Tenant Delay" hereunder.
B. Landlord will review the Space Plan upon receipt and upon mutual
approval of the Space Plan, Landlord will notify Tenant, in writing, that the
Space Plan is approved by Landlord and that preparation of working drawings may
begin.
If the Space Plan does not conform to the requirements of Section H below,
Landlord will return the Space Plan to Tenant for corrections or revisions.
Tenant will deliver a corrected Space Plan to Landlord no later than ten (10)
calendar days after the initial Space Plan has been returned to Tenant. If the
corrected Space Plan is not delivered to Landlord within such ten (10) day
period, then each calendar day of delay in delivery shall constitute one day of
Tenant Delay.
C. Upon final mutual approval of the Space Plan, Landlord shall authorize
the preparation of working drawings ("Working Drawings") based on the approved
Space Plan. Tenant shall deliver the Working Drawings, accompanied by Tenant's
written approval thereof, to Landlord no later than ten (10) days after Landlord
authorizes preparation thereof If the approved Working Drawings are not
delivered to Landlord within the aforementioned ten (10) day period, then each
day of delay in delivery shall constitute on day of Tenant Delay.
D. Tenant, at its own expense, may authorize changes in the Tenant
Improvements during construction; provided; however, that such authorization is
directed solely in accordance with the procedures outlined herein by Landlord.
Tenant shall bear the full costs for any and all such changes in the Tenant
Improvements and any delays associated with such changes shall constitute Tenant
Delay.
E. "Net Tenant Delay" shall mean the total number of days of Tenant Delay
minus the total number of days of Landlord Delay. If the Premises are not ready
for occupancy on or before the date specified in Article III of this Lease, and
there exists Net Tenant Delay, Tenant shall pay Landlord, as Additional Rent, a
sum equal to one day's Rent (including Base Rent and all other charges provided
for in this Lease) multiplied by the Net Tenant Delay. Such Additional Rent
shall be paid by Tenant within seven (7) days of receipt of invoice.
Page 42
F. Tenant has selected and Landlord has approved D&S Construction, Inc., A
Utah Corporation ("Tenant Finish Contractor") to complete the construction of
all Tenant Improvement. Together, Tenant and Tenant Finish Contractor, jointly
and severely, make the following representations, warranties and
acknowledgements:
1. Tenant Finish Contractor is duly licensed in the State of Utah and will
provide to Landlord evidence of such licensure. Tenant Finish Contractor
will provide all required insurance certificates.
2. Tenant Finish Contractor has experience in the construction of
professional office space.
3. ▇▇▇▇▇ ▇. ▇▇▇▇▇ is an officer of Online Investors Advantage and a
shareholder of D&S Construction, Inc.
4. Tenant Finish Contractor will construct the Premises in accordance with
the Lease Agreement and will obtain all necessary building permits and
inspections, including the final certificate of occupancy. Tenant Finish
Contractor will notify Landlord of all City *inspections and will deliver a
copy of each inspection report to Landlord within one day of the
inspection-
5. Landlord, or its representative, Quantum Construction and Development,
L.C. will review and approve the construction of the Tenant Improvements.
Landlord or its representative may enter the Premises during the
construction of the Tenant Improvements in order to inspect
6. All improvements will be constructed using the Building Standard
materials and in accordance with the lease agreement.
7. Landlord will pay 50% of the Construction Allowance 30 days after
building plans are drawn, including any applicable Lien Waivers, and the
remaining 50% to be paid after the final approval by Provo City, the
issuance of a certificate of occupancy and final approval by the Landlord.
8. Tenant Finish Contractor will pay for architectural and engineering fees
related to this work
9. Tenant Finish Contractor shall perform final cleaning of the
construction, including any associated cleaning required in the common
areas of the building.
10. Tenant Finish Contractor will complete the work in an 8-week period of
time, beginning when the permit is issued by Provo City.
II. Tenant Space Plan Must Contain, as a Minimum, the Following Information:
A. Floor plan showing:
1. Partitions: indication location and type of all partitions.
Page 43
2. Doors: indication location, swing and type of all doors. Also indicating
hardware and providing keying schedule.
3. Standard Electrical Items: indicating the location of all building
standard electrical items listed herein (wall-mounted 110 volt duplex outlets,
single-pole light switches and building standard light fixtures).
4. Standard Telephone Outlets: indicating the location of all building
standard telephone wall outlets, as listed herein.
5. "Above Standard" Electrical Items: indicating the location and type of
all "above standard" electrical items, including lighting.
6. Special Electrical Equipment: indicating the location and type of
equipment that will require special electrical requirements. Providing
manufacturer's specifications of this equipment.
7. Telephone Equipment Location: indicating location of telephone equipment
room, if any, accompanied by written approval by the telephone company and a
copy of the telephone company installation specifications for this equipment.
8. Glass Items: indicating location, dimensions and type of glass
partitions, windows and doors. Including details if not building standard.
9. Heavy Items: indicating location, dimensions, weight per square foot and
description of any exceptionally heavy equipment of filing system exceeding
fifty (50) pounds per square foot live load.
10. Special HVAC Requirements: indicating location and specific
requirements for any special heating or air conditioning beyond that provided by
the building HVAC system.
11. Floor Covering: indicating location, type and color of all floor
covering.
12. Special Wall Covering: indicating location, type and color of all
"above standard" wall coverings.
13. Paint: indicating location, type and color of both building standard
and "above standard" paint finishes.
14. Millwork: indicating location and basic dimensions of all cabinets,
shelving and other carpentry items.
15. Plumbing: indicating location and type of all plumbing items.
Page 44
16. Appliances: indicating location, type, dimensions and special
requirements of all appliances.
17. Critical Dimensions: indicating all critical dimensions necessary for
construction.
III. Building Standard Tenant improvement Materials and Ouantity Allowable. In
connection with all improvements to be constructed in the Premises, Landlord
shall provide the Building Standards and the Construction Allowance set forth in
Schedule F-1.
It is hereby acknowledged by both Tenant and Landlord that this Exhibit "F"
has been executed as of, and shall become part of the Lease Agreement dated May
25th 1999.
LANDLORD: EsNet Properties, L.C.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS________________________
TENANT: Online Investors Advantage, Inc.
BY /s/ ▇▇▇▇▇ ▇▇▇▇▇
ITS
Page 45
SCHEDULE F- I
The Building Standard (herein so called) materials are the following:
I FLOORS
------
1. Concrete floors. Holes for electrical and telephone services
or chases may be cut through concrete floors with the prior
approval of the building manager. Any additional holes
required will be at extra cost to Tenant.
2. Carpet.
Building Standard Carpet shall be equal to Dimension Carpet
"Aiken 30". Cut C, Pile, 100% Nylon, 1/10 gauge, 30 oz.,
directly glue down. Other carpets desired C; by Tenant may be
used with owners approval and at extra cost to Tenant.
3. Vinyl Composition Tile. Vinyl composition tile shall be equal
to Standard. Imperial Texture, 12xl2 1/8" guage. Install as
recommended by manufacturer. Use of this material is limited
to storage, utility and break rooms. Any other areas must be
approved by owner.
II BASE
----
1. Carpet base. Carpet base shall be 4" high with bound top,
same material as carpet flooring (insert color). Mechanically
and glue attached to wall.
2. Rubber base. Rubber base to be equal to Johnsonlite color
integrated wall base rubber. 1/8" guage. 4" high coil.
III PARTITIONS
----------
1. Drywall Partitions. Drywall partitions shall be built with
3-5/8", C shape, 25 guage galvanized sheet steel studs not
more than 16" oc, with top and bottom tracks, assembled as
recommended by manufacturer. Partitions shall be overhead
braced to structure at 8' on center. Drywall shall be 5/8"
gypsum board, taped and finished. (type x at fire rated
partitions.) Finish to be smoothwall ready. for paint or
wall coverings. Inside corners to be taped and finished.
Outside comers shall be reinforced with metal trim, taped
and finished. Partitions interior to the Tenant space shall
be 9'-2" high. Demising partitions between Tenants and
common areas shall extend to the bottom of the concrete
deck. 2. Sound walls. Sound walls interior to the Tenant
finish area are not included in standard Tenant finish
allowance. If requested these sound walls shall be steel
stud walls with 3 inch sound ▇▇▇▇▇ in the wall cavity. 5/8"
gypsum board each side.
Page 46
3. Wall Penetrations. Any penetrations of fire walls and common
walls will be at extra cost.
4. Exterior Wall at Windows. Exterior wall at windows shall be 3.5"
steel studs, 25 c,a. at 16" oc. 3.5" R-13 thermal ▇▇▇▇▇, 5/8"
gypsum board taped and finished 0 smoothwall, with marble stool.
IV CEILINGS.
1. Ceiling Tiles. Ceiling tiles shall be equal to United States
Gypsum Omni Fissured, white, tegular edge, 2x2' lay in panels.
2. Ceiling and. Ceiling grid meeting requirements of ASTM C635,
intermediate duty, non fire rated, exposed T, DX configuration,
components die cut and interlocking with all necessary
accessories. Braced seismically as recommended by manufacturer.
White in color.
V DOORS, FRAMES INTERIOR WINDOWS.
1. Doors. Doors shall be plain sliced wood veneer (Cherry), 1-3/4"
solid core slab, particle board core, fully warranted. Equal to-
Weyerheuser DPC-l. 3-O" x 7-O".
2. Door Frames. Hollow metal frames. Fully welded units, 16 gauge
steel, fabricated with reinforcement plates welded in place.
Prepare frame for silencers and install. Baked primer. Extra cost
optional sidelite frames to be directly adjacent to door frames
built as integral unit, sized for 12" wide 1/4" thick tempered
glass unit. Other optional windows shall be similar in
construction with 3/16" float -glass unless within 24" of a door.
Any interior glazing not included in Tenant finish allowance.
3. Entry Doors. Tenant entry doors from common areas shall be same
as A. Except 3-6" wide x 8'-0" tall. Sidelites shall be same as
B. Total width approximately 8. Door veneer to be plain sliced
Cherry.
VI PAINTING.
1. Walls. The standard paint for gypsum board partitions shall be
one coat latex primer sealer and two coats satin finish latex.
2. Hollow metal frames. Frames shall be pre-primed, paint with two
coats alkyd enamel, semigloss.
Page 47
3. Doors. Doors shall be stained equal to ▇▇▇▇▇▇ 0 ▇▇▇▇▇ Penchrome,
Cherry A 640- 08, with 3 coats polyurethane or come
pre-finished).
VIII GRAPHICS. Only Building standard graphics, approved by the building
management will be permitted in Common Areas. See graphics package provided
by building manager.
IX HARDWARE
1. Tenant Interior Doors. Tenant interior doors shall be hung with 1-1/2 pair
hinges equal to ▇▇▇▇▇ full mortise, standard weight, 4-1/2 x 4-1/2, BB,
Butt hinges, Brushed stainless finish. Locksets shall be schlague D series,
lever handle, bored lock, Brushed stainless finish, keyed to building
master system. Passage sets are standard. Door stops shall be floor or wall
mounted brushed stainless finish, with rubber cushion. Door closers, if
required, shall be ▇▇▇▇▇▇▇ 350 series.
2. Tenant Entry Doors From Common Area. Hardware shall be same as Tenant
Interior Doors except lockset shall be Equal to Schlage L Series Heavy Duty
Mortise Lock, brushed stainless.
X HVAC OUTLINE SPECIFICATIONS
Tenant heating and cooling system description. Cooling is supplied to the
building from a central rooftop cooling unit. Heating is supplied to the
building from a central hot water boiler heating system located in the
lower level of the building.
The Tenant lease spaces are divided into the desired number of
temperature controlled zones. Each temperature controlled zone is
provided with a fan powered variable air volume terminal, referred to
as fan powered terminal hereafter. The fan powered terminals are
located 'in the ceiling plenum near their respective zone.
Cold air is supplied to each fan powered terminal through a supply air
duct system from the central rooftop cooling unit. Hot water is
supplied to a hot water heating coil in each fan powered terminal
through a hot water distribution piping system from a central hot water
boiler heating system. Each fan powered terminal supplies air to its
respective temperature controlled zone through a supply air duct system
and ceiling supply air diffusers. Return air to the fan powered
terminals and the rooftop cooling unit is through the ceiling plenum.
The temperature control system in the building is a direct digital
control system, referred to as DDC system hereafter. A space
temperature sensor is located in each respective temperature
controlled zone. The space temperature sensors are controlled through
a PC Host unit located in the Building Manager's Office. The space
temperature sensors will maintain the respective zone temperature
setting by controlling the amount of cold air required from the
central rooftop cooling unit supplied to the zone fan powered terminal
Page 48
and the amount of hot water required from the central boiler heating
system supplied to the heating coil in the zone fan powered terminal.
The control of a zone is independent of the control of all other
zones. This means that a zone can be heating while other zones are
cooling or a zone can be cooling, while other zones are heating. Each
respective zone temperature is set at the PC Host control unit. The
temperature sensors located in each respective temperature controlled
zone can be manually reset at the temperature control sensor in the
space, plus or minus 2 degrees farenheit.
X ELECTRICAL OUTLINE SPECIFICATIONS
---------------------------------
I . Light fixtures.
Lithonia Parabolic Trofferft 2PM3 340. 2x4 3 lamps rapid
start, white. Pre anodized aluminum louver, electronic
ballast. Provide I fixture for each ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇. Approx. 48 footcandles at 9' ceiling.
Recessed Can down lights. (optional at extra cost). Lithomia
AFV 26TRT 6AR Recessed Can wall washers. (optional at extra
cost). Lithonia ATW 26/32TRT 6AR 120
2. Duplex outlets. Zinc coated steel boxes. All wiring in flex
conduit. Cover plates will be plastic ivory. Provide I
duplex outlet per ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇.
3. Wall switches. Zinc coated steel boxes. All wiring in flex
conduit. Cover plates shall be plastic ivory. Provide I
switch for each 4 light fixtures.
4. Telephone and computer wiring are not included in Tenant
finish package.
XI FIRE SPRINKLING
---------------
The fire sprinkler riser, mains, lines and heads to protect the
unoccupied Tenant spaces are all existing and in service. In order to
maintain warranty and system integrity, the owner is responsible to
contact Firetrol Protection Systems, Inc. (485-6900) for modifications
to the fire sprinkler system. Based on the Tenant plan, the temporary
fire sprinkler heads will be lowered to the Tenants new ceiling and
spaced per NFPA #13 and the Uniforrn Building Code. The hydraulic
demand will be verified with the fire sprinkler system piping and
water supply. The finished fare sprinkler heads in the Tenants new
ceilings will be Chrome Recessed Heads and Escutcheons. Firetrol will
coordinate the fire sprinkler heads with the lights, diffusers, and
locate the fire sprinkler heads not closer then 6" to acoustical grid.
XII CONSTRUCTION $21.50 per square foot of Net Useable
ALLOWANCE: Area.
Page 49
EXHIBIT G
RENEWAL OPTION
---------------
Provided that no Event of Default has ever occurred under any Term or
provision contained in this Lease and no condition exists which with the passage
of time or the giving of notice, or both, would constitute an Event of Default
pursuant to this Lease, and provided that Tenant has continuously occupied the
Premises for the Permitted Use during the Lease Term, Tenant (but not any
assignee or subtenant) shall have the right and option (the "Renewal Option") to
renew this Lease, by written notice delivered to Landlord no later than (_)
months prior to the expiration of the initial Lease Term for an additional term
(the "Renewal Term") of months under the same terms, conditions and covenants
contained in the Lease, except that (a) no abatements or other concessions, if
any, applicable to the initial Lease Term shall apply to the Renewal Term, (b)
the Base Rent shall be equal to the market rate for comparable office space
located in the Building as of the end of the initial Lease Term as determined by
Landlord, (c) Tenant shall have no option to renew this Lease beyond the
expiration of the Renewal Term, and (d) all leasehold improvements within the
Premises shall be provided in their then-existing condition (on an "as is"
basis) at the time the Renewal Tenn commences. Failure by Tenant to notify
Landlord in writing of Tenant's election to exercise the Renewal Option herein
granted within the time limits set forth for such exercise shall constitute a
waiver of such Renewal Option. In the event Tenant elects to exercise the
Renewal Option as set forth above, Landlord shall, within ( ) days thereafter,
notify Tenant in writing of the Proposed rental for the Renewal Term (the
"Proposed Renewal Rental"). Tenant shall within days following delivery of the
Proposed Renewal Rental by landlord, notify Landlord in writing of the
acceptance or rejection of the Proposed Renewal Rental. If Tenant accepts
Landlord's proposal, then the Proposed Renewal Rental shall be the rental rate
effect during the Renewal Term. Failure of Tenant to respond in writing during
the aforementioned ( ) day period shall be deemed an acceptance by Tenant of the
Proposed Renewal Rental. Should Tenant reject Landlord's Proposed Renewal Rental
during such day period, then Landlord and Tenant shall negotiate during the
(___) day period commencing upon Tenant's rejection of Landlord's Proposed
Renewal Rental to determine the rental for the Renewal Term. In the event
Landlord and Tenant are unable to agree to a rental for the Renewal Term during
such day period, then the Renewal Option shall terminate and be null and void,
and the Lease shall, pursuant to its terms and provisions, terminate at the end
of the original Lease Term.
Upon exercise of the Renewal Option by Tenant and subject to the conditions
set forth hereinabove, the Lease shall be extended for the period of such
Renewal Term without the necessity of the execution of any Ruther instrument or
document, although, if requested by either party, Landlord and Tenant shall
enter into a written agreement modifying and supplementing the Lease in
accordance with the provisions hereof. Any termination of the Lease during the
initial Lease Term shall terminate all renewal rights hereunder. The renewal
rights of Tenant hereunder shall not be severable from the Lease, nor may such
rights be assigned or otherwise conveyed in connection with any permitted
assignment of the Lease. Landlord's consent to any assignment of the Lease shall
not be construed as allowing an assignment of such rights to any assignee.
Page 50
CHECK REQUEST FOR LEASE
DATE May 24, 1999
TENANT Online Investor Advantage, Inc.
ADDRESS ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇/▇▇▇▇▇/▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
CONTACT PERSON FOR TENANT
TENANTS PHONE NUMBER
MONTHLY EXPENSES MONTH MONTHLY
July THEREAFTER
July THEREAFTER
2000
BASE RENTAL AMOUNT (MONTH ONE) $4,156.91 $4,156.91
OPERATING EXPENSES $1,564.23 $1,564.23
TOTALS $5,721.14 $5,721.14
PLEASE MAKE ALL CHECKS PAYABLE TO: EsNet Properties, L.C.
(MONTHLY RENTAL CHECKS SHOULD BE MAILED TO THE LANDLORD)
LANDLORD'S ADDRESS EsNet Properties, L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
LANDLORD'S PHONE NUMBER (▇▇▇) ▇▇▇-▇▇▇▇
P.S. PAYMENTS FOR TAXES, INSURANCE, AND CAM FEES ARE ESTIMATES ONLY AND MAY
BE ADJUSTED PER INVOICE
Exhibit H
On Line Investor Advantage
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Base Rental Term
Square Price/ Annual No. Monthly
Year Footage Sq Foot Rental Months Rental
-------------------------------------------------------------------------------
1 3,340 $20.12 $67,200.80 12 $5,600.07
$8,064.10
Letter of Credit Guaranty $75,264.90 Cost of LC $752.65
2 3,340 $14.94 $49,882.92 12 $4,156.91
3 3,340 $15.38 $51,379.41 12 $4,281.62
4 3,340 $15.84 $52,920.79 12 $4,410.07
5 3,340 $16.32 $54,508.41 12 $4,542.37
Sub Totals $21.51 $359,221.32 60 $5,987.02
Option Term
6 3,340 $16.81 $56,143.67 12 $4,678.64
7 3,340 $17.31 $57,827.98 12 $4,819.00
8 3,340 $17.83 $59,562.82 12 $4,963.57
9 3,340 $18.37 $61,349.70 12 $5,112.47
10 3,340 $18.92 $63,190.19 12 $5,265.85
Sub Totals $17.85 $298,074.35 60 $4,967.91
TOTAL $19.78 $657,295.67 120 $5,477.46
Exhibit I
This is an addition to the Lease Agreement entered into on May 25, 1999 between
Online Investor Advantage. Inc. as the Lessee (the "Tenant"), and EsNet
Properties. L.C. as the Lessor (the "Landlord"). The following items are hereby
incorporated as part of the Lease Agreement, and to the extent that they modify
or conflict with any provisions of the Lease Agreement, including all prior
additions, these terms shall control. All other terms of the Lease Agreement,
including all prior additions, not modified shall remain the same:
1. Tenant has the right to move within Riverwoods Research & Business Park at
any time during the term of this lease, while still retaining all
responsibilities, obligations, and liabilities of this Lease, under the
following requirements:
(a) Landlord has sole discretion and final approval of Tenant's move.
(b) The space moved into must be owned by EsNet Properties, L.C.
(c) If the space moved into is to be new construction, the building
must be built by Quantum Construction & Development, L.C.
LANDLORD: Esnet Properties, L.C.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS
TENANT: Online Investors Advantage, Inc.
BY /s/ ▇▇▇▇▇ ▇▇▇▇▇
ITS
Exhibit J
(Online Investor Advantage, Inc.)
Lease Agreement between EsNet Properties, L.C. ("Landlord") and Online Investor
Advantage, Inc. ("Tenant") dated the 25th day of May 1999.
1
Letters of Credit:
------------------
In Lieu of Tenant paying Landlord regular monthly rental payments during the
first 12 months of the Lease Term, Tenant shall upon execution of the Lease
deposit with Landlord a letter of credit in the amount of $$75,264.90 Seventy
Five Thousand, Two Hundred Sixty Four dollars and 90 cents and otherwise in a
form and issued by a financial institution satisfactory to Landlord (the "Letter
of Credit"). This letter of credit is the amount of rents from commencement and
a prepayment of the rents for the balance of the first year, including 12%
interest paid on the first year's rent. If Tenant fails to pay to Landlord the
full amount due as rental consideration for the first 12 months of occupancy by
April 15, 2000, Landlord may draw down the full amount of the existing letter of
credit and hold cash as rental consideration pursuant to the provisions of the
Lease. In the event that Landlord makes any draw upon a Letter of Credit, Tenant
shall vacate the Premises within five (5) days of such draw pursuant to the
provisions of the Lease. The term of the Letter of Credit shall be at least
thirty (30) days longer than the April 15, 2000 due date.
In the event that the Tenant pays the amount due, without Landlord having to
draw down the Letter of Credit, Tenant shall then deposit with Landlord a
Security Deposit in an amount equal to two (2) months of the then current base
rent amount.
LANDLORD: EsNet Properties, L.C.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS
TENANT: Online Investors Advantage, Inc.
BY /s/ ▇▇▇▇▇ ▇▇▇▇▇
ITS
AGENCY DISCLOSURE
This is a legally binding document. If it is not understood, consult with
legal counsel.
Names of Lessee(s): Online Investors Advantage
Agent representing Lessee: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Brokerage: D&B Real Estate Inc. (the "Company")
-------------------------------------------------------------------------------
Name of Lessor(s): EsNet Properties, L.C.
Agent representing Lessor: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
The Lessee and the Lessor are both presently using the services of the
Company in a possible real estate transaction involving real property located
at: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (referred to below as the
"Property").
AS THE LESSEE AND THE LESSOR PROCEED WITH THIS TRANSACTION, IT IS IMPORTANT
THAT THEY EACH UNDERSTAND THEIR PROFESSIONAL RELATIONSHIP WITH THE REAL ESTATE
AGENTS(S) AND WITH THE COMPANIES. WHAT FOLLOWS IS A BRIEF BUT VERY IMPORTANT
EXPLANATION OF THE NATURE OF AGENCY RELATIONSHIPS BETWEEN THE LESSOR, THE
LESSEE, THE COMPANY AND THE REAL ESTATE AGENTS WORKING IN THIS TRANSACTION.
1. Principal or Branch Broker. Every real estate agent must affiliate with
a real estate broker. The broker is referred to as a Principal Broker or a
Branch Broker (if the brokerage has a branch office). The broker is responsible
for operation of the brokerage and for the professional conduct of all agents.
2. Right of Agents to Represent Lessor and/or Lessee- An agent may
represent through the brokerage, a Lessor who wants to Lease out property or a
Lessee who wants to Lease property. On occasion, an agent will represent both
Lessor and Lessee in the same transaction. When an agent represents a Lessor,
the agent is a "Selles Agent"; when representing a Lessee, the agent is a
"Buyers Agent"; and when representing both Lessor and Lessee, the agent is a
"Limited Agent"
3. Sellers Agent. A Seller's Agent works to assist the Lessor in locating a
Lessee and in negotiating a transaction suitable to the Lessees specific needs.
A Seller's Agent has fiduciary duties to the Lessor which include loyalty, full
disclosure, confidentiality, diligence, obedience, reasonable care, and holding
safe monies entrusted to the agent.
4. Buyer's Agent A Buyers Agent works to assist the Lessee in locating and
negotiating the acquisition of a property suitable to that Lessee's specific
needs. A Buyees Agent has the same fiduciary duties to the Lessee that the
Seller's Agent has to the Lessor.
5. Limited Agent A Limited Agent represents both Lessor and Lessee in the
same transaction and works to assist in negotiating a mutually acceptable
transaction. A Limited Agent has fiduciary duties to both Lessor and Lessee.
However, those duties are "limited" because the agent cannot provide to both
parties undivided loyalty and full disclosure of all information known to the
agent For this reason, a Limited Agent must remain neutral in the representation
of a Lessor and Lessee, and may not disclose to either party information likely
to weaken the bargaining position of the other, such as, the highest price the
Lessee will pay or the lowest price the Lessor will accept A Limited Agent must,
however, disclose to both parties material information known to the Limited
Agency regarding a defect in the Property and/or the ability of each party to
fulfill agreed upon obligations.
6. In-House Lease. If the Lessee and the Lessor are both represented by one
or more agents in the same brokerage, that transaction is commonly referred to
as an "In-House Lease." Consequently, most In-House Leases involve limited
agency because Lessor and Lessee are represented by the same brokerage.
7. Conflicts with the In-House Lease. There are conflicts associated with
an In-House Lease; for example, agents affiliated with the same brokerage
discuss with each other the needs of their respective Lessees or Lessors. Such
discussions could inadvertently compromise the confidentiality of discussions
between agents and access to confidential client and transaction files.
8. Authorization for Limited Agency. The Lessor and Lessee are advised that
they are not required to accept a limited agency situation in the Company.
However, it is the business practice of the Company to participate in In-House
Leases. By signing this agreement, Lessee and Lessor consent to a limited agency
within the Company as provided below:
___ A. One Agent. The Lw3.e and the Lessor consent to (Name of Agent); and the
Principal/Branch Broker representing both the Lame and the Lessor as a
Limited Agent as described above.
___ B. Two Agents. The Lessee and the Lessor consent to ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
(Seller's Agent) continuing to represent the Lessor; and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Buyer's Agent) continuing to represent the Lessee; and the
Principal/Brunch Broker acting as a Limited Agent as described above.
/s/ May 25, 1999
LESSEE: Online Investors Advantage Date
/s/ May 25, 1999
LESSOR: EsNet Properties Date
The Company: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ May 25, 1999
(Authorized Agent)
P.S. PAYMENTS FOR TAXES, INSURANCE, AND CAM FEES ARE ESTIMATES ONLY AND MAY BE
ADJUSTED PER INVOICE