EXHIBIT 10.14
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LEASE
BASIC LEASE INFORMATION
1. Date: August 23, 1999
2. Landlord: M & S Balanced Property Fund, L.P., a California limited
partnership
3. Tenant: ▇▇▇▇▇▇▇ Com, LLC, a Delaware limited liability company
4. Property: The real property legally described on Exhibit B attached hereto
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5. Building: That certain office building which is known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, located on the Property
6. Premises: Three thousand five hundred eighty-five (3,585) rentable square
feet located on the eighteenth (18th) floor of the Building,
designated as Suite No. 1850, as outlined on the floor plan
attached hereto as Exhibit A.
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7. Initial Term: Sixty (60) months
8. Estimated
Delivery Date: October 1, 1999
9. Delivery Deadline: November 1, 1999
10. Commencement
Date: October 1, 1999
11. Expiration Date: September 30, 2004
12. Base Rental Rate:
Months Annual Base Rental Rate
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1 - 12 $15.50 per rentable square foot
13 - 24 $16.00 per rentable square foot
25 - 36 $16.50 per rentable square foot
37 - 48 $17.00 per rentable square foot
49 - 60 $17.50 per rentable square foot
BLI-i
Base Rent:
Months Monthly Base Rent
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1-12 $4,631
13-24 $4,780
25-36 $4,929
37-48 $5,079
49-60 $5,228
13. Security Deposit: $5,228
14. Base Year: 1999
15. Tenant's The ratio which the rentable area of the Premises bears to the
Proportionate Share: rentable area of the Building, which is agreed to be 1.65%
(3,585/216,976)
16. Tenant Improvement
Allowance: $71,700 ($20 per rentable square foot)
17. Space Plan
Deadline: Not Applicable
18. Working Drawing Deadline: Not Applicable
19. Landlord's Broker: CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
20. Tenant's Broker: Cottonwood Realty Services, LLC
21. Parking Spaces: 5 unreserved spaces in the Building, and an additional 5
unreserved spaces within a two block radius of the Building
pursuant to Article 24.
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22. Current Parking Sixty-Five Dollars ($65.00) per space per month, subject to
Space Rent: change in accordance with the terms of Section 24 of this Lease
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23. Early Termination One day after the date which is 36 months after the
Date: Commencement Date
24. Early Termination One day after the date which is 30 months after the
Notice Date: Commencement Date
BLI-ii
The foregoing basic lease information (the "Basic Lease Information") is
incorporated in and made a part of the Lease, dated as of the date written
above, by and between Landlord and Tenant, to which this Basic Lease Information
is attached. If there is any conflict between the Basic Lease Information and
the Lease, the Lease shall control.
LANDLORD: M & S BALANCED PROPERTY FUND, L.P.,
a California limited partnership
By: MSBMS, a California corporation, GENERAL
PARTNER
By: /S/ [ILLEGIBLE]^^
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Its: President
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Date: Sep. 20 , 1999
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Address:
Wood Island, Fourth Floor
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Att'n: President
TENANT: ▇▇▇▇▇▇▇ COM, LLC,
a Delaware limited liability company
By: /s/ [ILLEGIBLE]^^
---------------------------------
Its: EVP
--------------------------------
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Its: CFO & EVP
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Date: 8/23/99
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Address:
The Prudential Tower
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BLI-iii
TABLE OF CONTENTS
PAGE
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1. Premises................................................. 1
2. Term..................................................... 1
3. Acceptance of Premises................................... 2
4. Base Rent................................................ 2
5. Additional Rent.......................................... 3
6. Security Deposit......................................... 6
7. Uses; Hazardous Substances............................... 7
8. Maintenance and Repairs.................................. 8
9. Alterations.............................................. 8
10. Tenant's Property........................................ 10
11. Entry by Landlord........................................ 10
12. ▇▇▇▇▇ and Insolvency..................................... 11
13. Indemnification.......................................... 11
14. Damage to Tenant's Property.............................. 11
15. Eminent Domain........................................... 11
16. Tenant's Insurance....................................... 12
17. Damage or Destruction.................................... 14
18. Waiver of Subrogation.................................... 15
19. Assignment or Subletting................................. 15
20. Subordination............................................ 18
21. Estoppel Certificate..................................... 18
22. Services................................................. 19
23. Signs and Advertising.................................... 19
24. Parking.................................................. 20
25. Rules and Regulations.................................... 20
26. Time..................................................... 20
27. Quiet Enjoyment.......................................... 20
28. Defaults and Remedies.................................... 20
29. Transfer of Landlord's Interest.......................... 22
30. Right to Perform......................................... 22
31. Improvements............................................. 23
32. Notices.................................................. 23
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Page
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33. Attorneys' Fees........................................ 24
34. Holding Over........................................... 24
35. Surrender of Premises.................................. 24
36. Non-Waiver............................................. 24
37. Mortgagee Protection................................... 24
38. Building Planning...................................... 24
39. Changes to the Property................................ 25
40. Option to Terminate.................................... 25
41. General Provisions..................................... 25
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LEASE
THIS LEASE is entered into by and between Landlord and Tenant, as specified
in the Basic Lease Information, which is incorporated herein by reference, as of
the date shown in Paragraph 1 of the Basic Lease Information.
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1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises (as defined in Paragraph 6 of the Basic Lease Information)
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upon and subject to the terms, covenants and conditions herein set forth. Tenant
covenants, as a material part of the consideration for this Lease, to keep and
perform each and all of said terms, covenants and conditions for which ▇▇▇▇▇▇ is
responsible and that this Lease is entered into upon the condition of such
performance.
2. TERM.
a. INITIAL TERM. Except as otherwise provided herein, the term of this
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Lease shall be the Initial Term as set forth in Paragraph 7 of the Basic Lease
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Information, commencing on the earlier to occur of (i) Tenant's commencement of
regular business operations in the Premises or (ii) the Commencement Date (as it
may be extended pursuant to Section 2.b below), and ending as of the Expiration
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Date, as set forth in Paragraph 10 and Paragraph 11, respectively, of the Basic
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Lease Information. The Initial Term, together with any extension term as to
which a right has been properly exercised, shall be referred to as the "Term."
Notwithstanding the foregoing, if for any reason the Commencement Date occurs
pursuant to the terms of this Lease on a day other than the first day of a
calendar month, the period commencing on the Commencement Date and ending on the
last day of the calendar month in which the Commencement Date occurs shall be an
initial stub period which shall be added to the Initial Term and Tenant shall
pay all rent and other charges with respect to such stub period (on a prorated
basis as referenced in Section 4a) at the same rate applicable to the first full
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calendar month of this Lease. Following such stub period and commencing as of
the first day of the first full calendar month following the month in which the
Commencement Date occurs, Tenant shall commence the payment of rent and other
charges payable hereunder as if the Initial Term had actually commenced on such
date. The use of the stub period described above is intended to provide for ease
of administration and calculation of all amounts owed hereunder, since all
rental adjustments will be determined as of the first day of a calendar month
and the Term of the Lease will end as of the last day of a calendar month
(unless earlier terminated pursuant to the terms hereof).
b. DELIVERY OF PREMISES. Landlord shall substantially complete the
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improvements to the Premises to be provided by Landlord pursuant to Section 31,
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and deliver the Premises to Tenant on or before the Estimated Delivery Date
specified in Paragraph 8 of the Basic Lease Information, subject to extension as
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provided in this Section 2. If there is any delay in substantial completion of
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the improvements to the Premises due to (i) Tenant's failure to submit the Space
Plan or approve the Working Drawings (as such terms are defined in Section 31)
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within the periods specified in Section 31, (ii) Tenant's changes to the Space
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Plan or the Final Plans, (iii) any failure by Tenant to pay Excess Construction
Costs (as defined in Section 31 below), (iv) any work performed by Tenant in the
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Premises which interferes with the performance or delays the progress of
Landlord's Work, or (v) any other delay to the extent requested or caused by
Tenant (collectively, "Tenant's Delay"), the Estimated Delivery Date and the
Delivery Deadline (as specified in Paragraph 9 of the Basic Lease Information)
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shall
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each be extended by one day for each day of Tenant's Delay. If the improvements
in the Premises are not substantially complete on or before the Estimated
Delivery Date, this Lease shall remain in full force and effect, provided that
if such failure is not due to Tenant's Delay, the Commencement Date and the
Expiration Date shall be extended to reflect the delay occasioned by such
failure, and provided further, that in the event the improvements to the
Premises are not substantially complete by the Delivery Deadline, Tenant may
thereupon terminate this Lease by written notice to Landlord before the date
that is ten (10) days thereafter, in which event Landlord shall have no other or
further liability or obligation hereunder to Tenant. Landlord shall have no
liability to Tenant due to delay in completing the Premises. No Base Rent (as
defined in Section 4) or additional rent shall accrue prior to the Commencement
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Date. If any delay in substantially completing the improvements to the Premises
is occasioned by ▇▇▇▇▇▇'s Delay, the Term will commence as of the Commencement
Date. "Substantially Complete" means that the improvements to the Premises have
been completed in accordance with the Final Plans, even though minor details,
adjustments or punch list items that do not materially interfere with Tenant's
use or occupancy of the Premises for normal business operations may remain to be
completed. Landlord will use commercially reasonable efforts to complete all
punchlist items within thirty (30) days, or as soon as reasonably possible-
following the date the Premises are Substantially Complete.
c. CONFIRMATION OF LEASE TERM. When the Commencement Date and the
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Expiration Date have been ascertained, the parties shall promptly complete and
execute a Confirmation of Lease Term in the form of Exhibit C attached hereto.
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3. ACCEPTANCE OF PREMISES. Landlord shall have no obligation whatsoever to
construct leasehold improvements for Tenant or to repair or refurbish the
Premises, except as specifically set forth in Section 31 of this Lease. Landlord
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or Landlord's agents have made no representations or promises with respect to
the Building (as defined in Paragraph 5 of the Basic Lease Information), the
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Premises or this Lease except as expressly set forth herein. The taking of
possession of the Premises by Tenant shall be conclusive evidence that ▇▇▇▇▇▇
accepts the same "AS IS" and that the Premises and the Building are suited for
the use intended by ▇▇▇▇▇▇ and were in good and satisfactory condition at the
time such possession was taken. Tenant represents and warrants to Landlord that
(a) its sole intended use of the Premises is for general office use which has no
requirements other than those which are typical to office use, including but not
limited to, special security requirements, (b) it does not intend to use the
Premises for any other purpose, and (c) prior to executing this Lease it has
made such investigations as it deems appropriate with respect to the suitability
of the Premises for its intended use and has determined that the Premises is
suitable for such intended use.
4. Base RENT.
a. BASE RENT PAYMENTS. Tenant agrees to pay Landlord each month, as base
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monthly rent, the Base Rent as set forth in Paragraph 12 of the Basic Lease
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Information. Each monthly installment of Base Rent shall be payable in advance
on the first day of each calendar month during the Term, except that the first
month's installment shall be paid upon the execution hereof. If the Term
commences or ends on a day other than the first day of a calendar month, then
the rent for the months in which this Lease commences or ends shall be prorated
(and paid at the beginning of each such month) in the proportion that the number
of days this Lease is in effect during such month bears to the total number of
days in such month, and such partial month's installment shall be paid no later
than the commencement of the subject month. In addition to the Base Rent, ▇▇▇▇▇▇
agrees to pay as additional rent the
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amount of additional rent and rent adjustments and other charges required by
this Lease. All rent shall be paid to Landlord, without prior demand and without
any deduction or offset, in lawful money of the United States of America, at the
address of Landlord designated on the signature page of the Basic Lease
Information or to such other person or at such other place as Landlord may from
time to time designate in writing.
b. Late Charge. If Tenant fails to pay any installment of Base Rent,
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additional rent or other charges within five (5) days after the same are due, or
fails to make any other payment for which Tenant is obligated under this Lease,
then Tenant shall pay to Landlord a late charge equal to five percent (5%) of
the amount so payable. Tenant acknowledges that late payments will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which costs are extremely difficult and impracticable to calculate. The parties
agree that the late charge described above represents a fair and reasonable
estimate of the extra costs incurred by Landlord as a result of such late
payment. Such late charge shall not be deemed a consent by Landlord to any late
payment, nor a waiver of Landlord's right to insist upon timely payments at any
time, nor a waiver of any remedies to which Landlord is entitled hereunder. In
addition, all amounts payable by Tenant to Landlord hereunder, exclusive of the
late charge described above, if not paid within five (5) days after such amounts
are due, shall bear interest from the due date until paid at the greater of (i)
eighteen percent (18%) per annum, or (ii) maximum rate allowable by law.
5. ADDITIONAL RENT. In addition to the Base Rent provided in Section 4 of this
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Lease, Tenant shall pay Tenant's Proportionate Share as specified in Paragraph
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15 of the Basic Lease Information, of the increase in Actual Operating Costs for
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each Operating Year over the Base Amount (as such terms are defined below).
Tenant's Proportionate Share of the Building may change based on remeasurement
or adjustment of the area of the Building or the Premises. In addition, whenever
additional space is added to the Premises, ▇▇▇▇▇▇'s Proportionate Share of the
Building shall increase accordingly.
a. Estimated Operating Costs. After the close of each Operating Year
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(except the Base Year) during the Term, Landlord shall furnish Tenant a written
statement of the "Estimated Operating Costs" for such Operating Year, and a
corresponding calculation of additional rent, which shall be one-twelfth (1/12)
of Tenant's Proportionate Share of the amount, if any, by which the Estimated
Operating Costs exceed the Base Amount. Such additional amount shall be added to
the monthly installment of Base Rent payable by Tenant under this Lease for each
month during such Operating Year.
b. Actual Operating Costs. After the close of each Operating Year (except
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the Base Year) during the Term, Landlord shall deliver to Tenant a written
statement setting forth the Actual Operating Costs during the preceding
Operating Year. If such costs for any Operating Year exceed the Estimated
Operating Costs paid by Tenant to Landlord pursuant to Section 5.a, Tenant shall
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pay the amount of such excess to Landlord as additional rent within thirty (30)
days after receipt by Tenant of such statement. If such statement shows such
costs to be less than the amount paid by Tenant to Landlord pursuant to Section
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5.a, then the amount of such overpayment shall be paid by Landlord to Tenant
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within thirty (30) days following the date of such statement or, at Tenant's
election, credited by Landlord to the payment of rent next due.
c. Determinations. The determination of Actual Operating Costs and
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Estimated Operating Costs shall be made by Landlord in its reasonable
discretion, subject to Tenant's audit rights set forth in Section 5.f below. Any
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payments pursuant to this Section 5 shall be
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additional rent payable by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and in the event of nonpayment
thereof, Landlord shall have the same rights with respect to such nonpayment as
it has with respect to any other nonpayment of rent hereunder.
d. End of Term. If this Lease shall terminate on a day other than the last
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day of an Operating Year, the amount of any adjustment between Estimated
Operating Costs and Actual Operating Costs with respect to the Operating Year in
which such termination occurs shall be prorated on the basis which the number of
days from the commencement of such Operating Year, to and including such
termination date, bears to three hundred sixty-five (365); and any amount
payable by Landlord to Tenant or Tenant to Landlord with respect to such
adjustment shall be payable within thirty (30) days after delivery of the
statement of Actual Operating Costs with respect to such Operating Year.
e. Definitions. The following terms shall have the respective meanings
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hereinafter specified:
(1) "Base Amount" shall mean an amount equal to Actual Operating Costs
for the Base Year (as defined in Paragraph 14 of the Basic Lease
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Information).
(2) "Operating Year" shall mean a calendar year commencing January 1
and ending December 31.
(i) "Operating Costs" shall mean all expenses paid or incurred by
Landlord for maintaining, owning, operating and repairing the Property
(as defined in Paragraph 4 of the Basic Lease Information) and the
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Building, and the personal property used in conjunction therewith,
including, but not limited to expenses incurred or paid for: Property
Taxes (as hereinafter defined); utilities for the Property, including
but not limited to electricity, power, gas, steam, oil or other fuel,
water, sewer, lighting, heating, air conditioning and ventilating;
permits, licenses and certificates necessary to operate, manage and
lease the Property for office purposes; insurance Landlord deems
appropriate to carry or is required to carry by any mortgagee under
any mortgage encumbering the Building or any portion thereof or
interest therein or encumbering any of Landlord's or a property
manager's personal property used in the operation of the Building;
supplies, tools, equipment and materials used in the operation, repair
and maintenance of the Property; accounting, legal, inspection,
consulting, concierge and other services; equipment rental (or
installment equipment purchase or equipment financing agreements);
management agreements (including the cost of any management fee
actually paid thereunder and the fair rental value of any office space
provided thereunder, up to customary and reasonable amounts in
comparable buildings in the Salt Lake City area); wages, salaries and
other compensation and benefits (including the fair value of any
parking privileges provided) for all persons engaged in the operation,
maintenance or security of the Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes
which may be levied on such wages, salaries, compensation and
benefits; payments under any easement, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the
sharing of costs in any planned development or similar arrangement;
operation, repair, and maintenance of all systems and equipment and
components thereof (including replacement of components); janitorial
4
service; alarm and security service; window cleaning; trash removal;
elevator maintenance; cleaning of walks, parking facilities and
building walls; replacement of wall and floor coverings, ceiling tiles
and fixtures in lobbies, corridors, restrooms and other common or
public areas or facilities; maintenance and replacement of shrubs,
trees, grass, sod and other landscape items, irrigation systems,
drainage facilities, fences, curbs, and walkways; re-paving and re-
striping parking facilities; and roof repairs (excluding capital
repairs or replacement). Notwithstanding the foregoing, Operating
Costs shall not include depreciation, interest and amortization on
mortgages or other debt costs or ground lease payments, if any; legal
fees in connection with leasing, tenant disputes or enforcement of
leases; real estate brokers' leasing commissions; improvements or
alterations to tenant spaces; the cost of providing any service
directly to and to be paid directly by, any tenant; costs of any items
to the extent Landlord receives reimbursement from insurance proceeds
or from a third party (such proceeds to be deducted from Operating
Costs in the year in which received); and capital expenditures except
those capital expenditures made in good faith primarily to reduce
Operating Costs, or to comply with any laws or other governmental
requirements enacted or becoming effective after the date of this
Lease, or for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of
the Property required to keep such areas in good condition, which
capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of (i)
their useful lives, or (ii) three (3) years. In addition, Operating
Costs shall not include, for purposes of this Lease, (i) all items and
services for which Tenant or any other Tenant in the Building
reimburses Landlord or which Landlord provides selectively to one or
more tenant (other than Tenant) without reimbursement, (ii) the wages
of any employee to the extent that his time is devoted to properties
other than the Building, and (iii) the cost of Landlord's general
corporate overhead.
(3) "Estimated Operating Costs" shall mean Landlord's estimate of
Operating Costs for the following Operating Year, adjusted as if ninety-five
percent (95%) of the total rentable area of the Building had been occupied for
the entire Operating Year.
(4) "Actual Operating Costs" shall mean the actual Operating Costs for
any Operating Year, adjusted as if ninety-five percent (95%) of the total
rentable area of the Building had been occupied for the entire Operating Year.
(5) "Property Taxes" shall mean all real and personal property taxes
and assessments imposed by any governmental authority or agency on the Building
and the Property (including a pro rata portion of any taxes levied on any common
areas); any assessments levied in lieu of such taxes; any non-progressive tax on
or measured by gross rents received from the rental of space in the Building;
and any other costs levied or assessed by, or at the direction of, any federal,
state, or local government authority in connection with the use or occupancy of
the Building or the Premises or the parking facilities serving the Building and
the Premises; any tax on this transaction or any document to which Tenant is a
party creating or transferring an interest in the Premises, and any actual
expenses reasonably incurred, including the reasonable cost of attorneys or
experts, incurred by Landlord in seeking reduction by the taxing authority of
the above-referenced taxes, less any tax refunds obtained as a result of an
application for
5
review thereof; but shall not include any net income, franchise, estate or
inheritance taxes.
f. Right to Audit. Landlord agrees to maintain accurate books and records
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of the Operating Costs for each Operating Year (or partial Operating year)
throughout the Term and for a period of three (3) years thereafter. Once per
calendar year, within thirty (30) days after ▇▇▇▇▇▇'s request, Landlord shall
provide a written response to any questions that Tenant may have concerning the
calculation of the Actual Operating Costs for the immediately preceding
Operating Year. In the event of any reasonable good faith dispute or uncertainty
as to said amounts, Tenant shall have the right, at its own expense, to conduct
an audit of Landlord's books and records relating to the determination of
Operating Costs, upon reasonable prior written notice, during normal business
hours for the immediately preceding Operating Year of the Term. In addition,
Tenant shall have a one-time-only right to audit Operating Costs for the Base
Year. Notwithstanding any such dispute or uncertainty, Tenant shall pay Base
Rent and all additional rent in accordance with the terms of this Lease. If
▇▇▇▇▇▇, reasonably and in good faith, challenges ▇▇▇▇▇▇▇▇'s computations of the
Actual Operating Costs for the immediately preceding Operating Year, Tenant
shall notify Landlord in writing of its objections. If Tenant's audit indicates
that Tenant has been overcharged for the Actual Operating Costs, Landlord shall
revise its records and ▇▇▇▇▇▇▇▇ accordingly; provided, however, that if Landlord
disputes the findings of ▇▇▇▇▇▇'s audit, then Landlord and Tenant shall mutually
agree upon a nationally recognized firm of certified public accountants which
shall conduct an independent audit (and which shall not be compensated on a
contingency fee basis), and the findings of such firm shall be binding on the
parties hereto. Within thirty (30) days after resolution of such dispute, the
party which owes money to the other shall remit the sum owed. Subject to the
following, Tenant shall be responsible for the cost of its own audit and also
for the cost of any audit by an independent accounting firm; provided, however,
that notwithstanding the foregoing, if Tenant's audit, or if an audit was
conducted by an independent accounting firm then the independent audit,
determines that Tenant has been overcharged by seven and one-half percent
(7 1/2%) or more for the Actual Operating Costs for the immediately preceding
Operating Year of the Term, then Landlord shall pay for or reimburse Tenant for
the reasonable cost of Tenant's audit, and, if an audit by an independent
accounting firm was also conducted in accordance with the foregoing provisions
of this Section 5. Landlord shall also pay for the cost of such independent
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audit. If the audit determines that Tenant has been overcharged by an amount
less than 5%, Landlord and Tenant will each pay for its own auditor and shall
split the cost of any independent auditor making such determination.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security Deposit
specified in Paragraph 13 of the Basic Lease Information. Said sum shall be held
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by Landlord as security for the faithful performance by Tenant of all of
Tenant's obligations under this Lease. If Tenant defaults with respect to any
provision hereof, including but not limited to the provisions relating to the
payment of rent, Landlord may (but shall not be required to) use, apply or
retain all or part of the Security Deposit for the payment of any rent or any
other sum in default, or for the payment of any other amount which Landlord may
incur by reason of Tenant's default or to compensate Landlord for any other loss
or damage which Landlord may suffer by reason of Tenant's default. If any
portion of the deposit is so used or applied, Tenant shall, upon demand,
immediately deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount. Tenant's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep the
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform all of its obligations under this Lease, the Security Deposit or any
balance thereof shall
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be returned to Tenant (or, at Landlord's option, to the last assignee of
▇▇▇▇▇▇'s interests hereunder) at the expiration of the Term, provided that
Landlord may retain all or a portion of the Security Deposit in an amount
determined by Landlord in good faith as necessary to cover any amounts owed by
Tenant for Actual Operating Costs during the Term (it being agreed that if any
amount is so retained Landlord will deliver a reasonable explanation of the
amounts so withheld).
7. USES; HAZARDOUS SUBSTANCES.
a. Use. ▇▇▇▇▇▇ agrees that it will use the Premises solely for general
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office purposes, and for no other business or purpose. Tenant, at its sole cost
and expense, shall promptly comply with all local, state or federal laws,
statutes, ordinances and governmental rules, regulations or requirements now in
force or which may hereinafter be in force, including, without limitation, the
Americans with Disabilities Act, 42 U.S.C. (S) 12101 et seq. and any
governmental regulations relating thereto (the "ADA"), including any required
alterations for purposes of "public accommodations" under such statute,
provided, however, Landlord agrees to remedy any violations of the ADA occurring
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within the common areas of the Building or the Property, except to the extent
the violation results from Tenant's particular use or operation of its Premises.
Tenant shall not use or permit the Premises to be used in any manner nor do any
act which would increase the existing rate of insurance on the Building or cause
the cancellation of any insurance policy covering the Building, nor shall Tenant
permit to be kept, used or sold, in or about the Premises, any article which may
be prohibited by the standard form of fire insurance policy, unless Tenant
obtains an endorsement to the policy allowing such activity. Tenant shall not
during the Term (i) commit or allow to be committed any waste upon the Premises,
or any public or private nuisance in or around the Building or the Property,
(ii) allow any sale by auction upon the Premises, (iii) place any loads upon the
floor, walls, or ceiling of the Premises which endanger the Building, (iv) use
any apparatus, machinery or device in or about the Premises which will cause any
substantial noise or vibration or in any manner damage the Building, (v) place
any harmful liquids in the drainage system or in the soils surrounding the
Building, or (vi) disturb or unreasonably interfere with other tenants of the
Building. If any of Tenant's office machines or equipment disturbs the quiet
enjoyment of any other tenant in the Building, then Tenant shall provide
adequate insulation, or take such other action as may be necessary to eliminate
the disturbance, all at Tenant's sole cost and expense. Landlord will respond
promptly to ▇▇▇▇▇▇'s request for clarification of the Building's floor load and
sound/vibration requirements based upon actual information provided to Landlord
regarding equipment Tenant wishes to install.
b. Hazardous Materials. Tenant shall not generate, use, manufacture, keep,
-------------------
store, refine, release, discharge or dispose of any substance or material that
is described as a toxic or hazardous substance, waste or material or a pollutant
or contaminant by any federal, state or local law, ordinance, rule or regulation
now or hereafter in force, as amended from time to time, in any way relating to
or regulating human health or safety or industrial hygiene or environmental
conditions or pollution or contamination, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. (S)
9601, et seq., the Solid Waste Disposal Act, 42 U.S.C. (S) 6901, et seq.,
including, without limitation, PCBs, petroleum products, asbestos and asbestos-
containing materials (collectively, "Hazardous Substances"), on, under or near
the Premises or the Building, except that Tenant may use Hazardous Substances on
the Premises that are incidental to general office use, such as photocopier
toner, provided such use is in compliance with laws and prudent business
practices. Tenant shall not cause or permit any waste material or refuse to be
dumped upon or
7
remain upon any part of the Property outside the Premises, nor shall Tenant
cause or allow any materials, supplies, equipment, finished products or semi-
finished products or articles of any nature to be stored upon or remain upon the
Property outside the Premises. ▇▇▇▇▇▇ agrees to indemnify Landlord against and
hold Landlord harmless from any and all loss, cost, liability, claim, damage,
and expense including, without limitation, reasonable attorneys' fees and
disbursements, to the extent incurred in connection with or arising from the
generation. use, manufacture, storage, disposal or release of any Hazardous
Substances by Tenant or any person claiming through or under Tenant or any
contractor, agent, employee, visitor, assign or licensee of Tenant, on or about
the Property throughout the Term.
8. MAINTENANCE AND REPAIRS.
a. Landlord's Obligations. Landlord shall maintain and keep in good repair
----------------------
the foundations, exterior walls, structural portions of the roof and other
structural portions of the Building, and shall maintain the electrical,
plumbing, heating and ventilating equipment in the Building, except such
portions thereof as may be specially installed for Tenant or otherwise altered
by Tenant in connection with Tenant's work or otherwise; and except that all
damage or injury to the Premises, the Building or the equipment and improvements
therein caused by any act, neglect, misuse or omission of any duty by Tenant or
by any persons who may be in or upon the Premises or the Building with the
express or implied consent of Tenant shall be paid by ▇▇▇▇▇▇. Landlord shall not
be liable for any failure to make any such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given by Tenant to Landlord.
Tenant hereby waives and releases its right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect. Landlord
makes no warranty as to the quality, continuity or availability of the
telecommunications services in the Building, and Tenant hereby waives any claim
against Landlord for any actual or consequential damages (including damages for
loss of business) if Tenant's telecommunications services in any way are
interrupted, damaged or rendered less effective, except to the extent caused by
the gross negligence or willful misconduct of Landlord, its agents or employees.
b. Tenant's Obligations. Tenant shall at its expense maintain, repair and
--------------------
replace all portions of the Premises and the equipment or fixtures relating
thereto, except to the extent specified in Section 8.a, above, at all times in
-----------
good condition and repair, all in accordance with the laws of the State of Utah
and all health, fire, police and other ordinances, regulations and directives of
governmental agencies having jurisdiction over such matters. Tenant shall
replace at Tenant's sole expense any glass that may be broken in the Premises,
and elsewhere in the Building if done through any fault or negligence of Tenant
or any agent, employee, contractor, or invitee of Tenant, with glass of the same
size, specifications and quality, with signs thereon, if required. At the
expiration of the Term, Tenant shall surrender the Premises in good condition,
normal wear and tear and damage by fire or other casualty excepted, and will
clean all walls, floors, suspended ceilings and carpeting therein. Tenant shall
indemnify Landlord for any loss or liability resulting from any delay by Tenant
in surrendering the Premises to Landlord as provided herein.
9. ALTERATIONS.
a. Landlord's Consent. Tenant shall not make any alterations, additions or
------------------
improvements (collectively, "Alterations") in or to the Premises or make changes
to locks on doors or add, disturb or in any way change any plumbing or wiring
without obtaining the prior
8
written consent of Landlord, which consent shall not be unreasonably withheld
provided that the Alterations do not affect the Building's structure, safety,
systems or aesthetics or cause the release of Hazardous Substances.
Notwithstanding the foregoing, Tenant may make Alterations to the Premises, so
long as the Alterations (i) do not exceed a cost of $10,000 in the aggregate,
(ii) are non-structural in nature, (iii) do not affect the Building or any
building system including electrical, telephone cable or otherwise) or any other
Tenant in the building and (iv) Tenant notifies Landlord of the scope of the
intended improvements prior to commencing any work with respect thereto.
b. Performance of Work. All Alterations shall be made at Tenant's sole
-------------------
expense and by contractors or mechanics approved by Landlord, shall be made at
such times and in such manner as Landlord may from time to time designate, and
shall become the property of Landlord without its obligation to pay therefor.
All work with respect to any Alterations shall be performed in a good and
workmanlike manner, shall be of a quality equal to or exceeding the then
existing construction standards for the Building and must be of a type, and the
floors and ceilings must be finished in a manner, customary for general office
use and other uses common to first-class office buildings in the vicinity.
Alterations shall be diligently prosecuted to completion to the end that the
Premises shall be at all times a complete unit except during the period
necessarily required for such work. All Alterations shall be made strictly in
accordance with all laws, regulations and ordinances relating thereto, and no
interior improvements installed in the Premises may be removed unless the same
are promptly replaced with interior improvements of the same or better quality.
Landlord hereby reserves the right to require any contractor or mechanic working
in the Premises to provide lien waivers and liability insurance covering the
Alterations to the Premises and to require Tenant to secure, at Tenant's sole
cost and expense, completion and lien indemnity bonds satisfactory to Landlord,
and/or to require such other instruments as may be reasonably requested by
Landlord. Tenant shall give Landlord ten (10) days written notice prior to the
commencement of any Alterations and shall allow Landlord to enter the Premises
and post appropriate notices to avoid liability to contractors or material
suppliers for payment for any Alterations. All Alterations shall remain in and
be surrendered with the Premises as a part thereof at the termination of this
Lease, without disturbance, molestation or injury, provided that Landlord may
require any Alterations to be removed upon termination of this Lease provided
that Tenant shall not be obligated to remove Alterations requiring ▇▇▇▇▇▇▇▇'s
consent unless Landlord specified at the time of approving such Alteration that
removal would be required at Landlord's request. In such event, all expenses to
restore said space to normal building standards shall be borne by Tenant.
c. Landlord's Expenses: Administrative Fee. Tenant shall pay to Landlord,
---------------------------------------
as additional rent, any actual and reasonable out-of-pocket costs incurred by
Landlord in connection with the review, approval and supervision of the
Alterations and for any additional Building services provided to Tenant or to
the Premises in connection with any such alterations, additions or improvements
which are beyond the normal services provided to occupants of the Building.
Tenant shall also pay to Landlord an administration fee equal to ten percent
(10%) of the cost of the work to compensate Landlord for the administrative
costs incurred in the review, approval and supervision of the Alterations. Under
no circumstances shall Landlord be liable to Tenant for any damage, loss, cost
or expense incurred by Tenant on account of ▇▇▇▇▇▇'s plans and specifications,
▇▇▇▇▇▇'s contractors or subcontractors, or Tenant's design of any work,
construction of any work or delay in completion of any work.
9
10. TENANT'S PROPERTY.
a. Removal Upon Expiration of Lease. All articles of personal property and
--------------------------------
all business and trade fixtures, machinery and equipment, furniture and movable
partitions owned by Tenant or installed by Tenant at its expense in the Premises
shall be and remain the property of Tenant and may be removed by Tenant at any
time during the Term, subject to the other requirements of this Lease. If Tenant
shall fail to remove all of such property from the Premises at the expiration of
the Term or within ten (10) days after any earlier termination of this Lease for
any cause whatsoever, Landlord may, at its option, after two (2) days' written
notice to Tenant, remove the same in any manner that Landlord shall choose, and
store such property without liability to Tenant for loss thereof. In such event,
▇▇▇▇▇▇ agrees to pay Landlord upon demand any and all expenses incurred in such
removal, including court costs and attorneys' fees and storage charges on such
property for any length of time that the same shall be in Landlord's possession.
Landlord may, at its option, without further notice, sell said property or any
of the same, at private sale and without legal process, for such price as
Landlord may obtain and apply the proceeds of such sale to any amounts due under
this Lease from Tenant to Landlord and to the expense incident to the removal
and sale of said property.
b. Personal Property Taxes. Tenant shall be liable for and shall pay, at
-----------------------
least ten (10) days before delinquency, all taxes levied against any personal
property or trade fixtures placed by Tenant in or about the Premises. If any
such taxes on Tenant's personal property or trade fixtures are levied against
Landlord or Landlord's property or if the assessed value of the Premises or
Landlord's obligations are increased by a value placed upon such personal
property or trade fixtures of Tenant and if Landlord, after at least ten (10)
days written notice to Tenant, pays the taxes or obligations based upon Tenant's
personal property or trade fixtures, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by ▇▇▇▇▇▇, Tenant shall, upon demand, repay to Landlord the taxes or obligations
so levied against Landlord, or the portion of such taxes or obligations
resulting from such increase in the assessment.
11. ENTRY BY LANDLORD. After reasonable notice (except in emergencies, where no
such notice shall be required), Landlord, its authorized agents, contractors and
representatives shall at any and all times have the right to enter the Premises
(i) to inspect the same, (ii) to supply janitorial service and any other service
to be provided by Landlord to Tenant hereunder, (iii) to show the Premises to
prospective purchasers, (iv) to show the Premises to prospective tenants during
the last 6 months of the Initial Term, and any renewals thereof, and to
prospective tenants at any time if ▇▇▇▇▇▇ has vacated the Premises or defaulted
in its obligations hereunder, (v) to post notices required by law or necessary
for Tenant's safety or security, (vi) to alter, improve or repair the Premises
or any other portion of the Building, all without being deemed guilty of any
eviction of Tenant and without abatement of rent. Landlord may, in order to
carry out such purposes, erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, provided that
Landlord will exercise commercially reasonable efforts not to interfere with the
normal business operations of Tenant. Landlord shall at all times have and
retain a key with which to unlock all doors in the Premises, excluding ▇▇▇▇▇▇'s
vaults and safes. Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency in order to obtain
entry to the Premises. Any entry to the Premises obtained by Landlord pursuant
to the terms hereof shall not be deemed to be a forcible or unlawful entry into
the Premises, or an eviction of Tenant from the Premises or any portion thereof,
and Tenant hereby waives any claim for damages for any
10
injury or inconvenience to or interference with ▇▇▇▇▇▇'s business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss in, upon and
about the Premises.
12. LIENS AND INSOLVENCY. Tenant shall keep the Premises and the Building free
from any liens or encumbrances of any kind or nature arising out of any work
performed, materials ordered or obligations incurred by or on behalf of Tenant.
If Tenant becomes insolvent, makes an assignment for the benefit of creditors,
or if legal proceedings are instituted seeking to have Tenant adjudicated
bankrupt, reorganized or rearranged under the bankruptcy laws of the United
States, or if this Lease shall, by operation of law or otherwise, pass to any
person or persons or entity other than Tenant, Landlord may, at its option,
terminate this Lease, which termination shall reserve unto Landlord all of the
rights and remedies available under Sections 28 and 30 hereof, and Landlord may
----------- --
accept rent from such trustee, assignee or receiver without waiving or
forfeiting said right of termination.
13. INDEMNIFICATION. Tenant shall indemnify, defend and hold Landlord harmless
from all losses, liabilities, costs, expenses and claims arising from (a)
Tenant's use of the Premises or the conduct of its business or any activity,
work, or thing done, permitted or suffered by Tenant in or about the Premises,
(b) any breach or default in the performance of any obligation to be performed
by Tenant under the terms of this Lease, (c) any act, neglect, fault or omission
of Tenant or of its agents, employees, invitees or guests and (d) all costs,
attorneys' fees, expenses and liabilities incurred in or about such claims or
any action or proceeding brought thereon to the extent that such losses are not
caused by ▇▇▇▇▇▇▇▇'s gross negligence or willful misconduct or breach or default
of Landlord's obligations hereunder. In case any action or proceeding shall be
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel approved in
writing by ▇▇▇▇▇▇▇▇. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of and waives all claims against Landlord with
respect to damage to property or injury to persons in, upon or about the
Premises from any cause whatsoever except that which is caused by Landlord's
gross negligence or willful misconduct or by the failure of Landlord to observe
any of the terms and conditions of this Lease where such failure has persisted
for an unreasonable period of time after written notice to Landlord of such
failure.
14. DAMAGE TO TENANT'S PROPERTY. Notwithstanding anything to the contrary in
this Lease, Landlord or its agents shall not be liable for (a) any damage to any
property entrusted to employees of the Building or its property managers, (b)
loss or damage to any property by theft or otherwise, (c) any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water or rain which may leak from any part of the Building or
from the pipes, appliances or plumbing work therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
cause whatsoever, or (d) any damage or loss to the business or occupation of
Tenant arising from the acts or neglect of other tenants or occupants of, or
invitees to, the Building. Tenant shall give prompt notice to Landlord in case
of fire or accident in the Premises or in the Building or of defects therein or
in the fixtures or equipment.
15. EMINENT DOMAIN.
a. Complete Taking. If the whole of the Property, the Building or the
---------------
Premises or so much thereof shall be taken by condemnation or in any other
manner for any public or quasi-public use or purpose so that a reasonable amount
of reconstruction will not result in the Premises being suitable for Tenant's
continued occupancy, this Lease and the term and estate
11
hereby granted shall terminate as of the date that possession of the Property,
the Building or the Premises is so taken (herein called "Date of the Taking"),
and the Base Rent and other sums payable hereunder shall be prorated and
adjusted as of such termination date. Landlord shall notify Tenant in writing
within thirty (30) days of a final condemnation order, specifying whether the
Lease will terminate under the terms of the provision.
b. Partial Taking. If only a part of the Building, the Property or the
--------------
Premises shall be so taken and the remaining part thereof after reconstruction
is suited for Tenant's continued occupancy, this Lease shall be unaffected by
such taking, except that Landlord may, at its option, terminate this Lease by
giving Tenant notice to that effect within sixty (60) days after the Date of the
Taking if a portion of the Building is affected by any such taking. In such
event, this Lease shall terminate on the date that such notice from the Landlord
to Tenant shall be given, and the Base Rent and other sums payable hereunder
shall be prorated and adjusted as of such termination date. Upon a partial
taking after which this Lease continues in force as to any part of the Premises,
the Base Rent and other sums payable hereunder shall be adjusted according to
the rentable area remaining.
c. Award. Landlord shall be entitled to receive the entire award or
-----
payment in connection with any taking without deduction therefrom for any estate
vested in Tenant by this Lease, and Tenant shall receive no part of such award,
including any award for the "leasehold bonus value" of this Lease. Tenant hereby
expressly assigns to Landlord all of its right, title and interest in and to
every such award or payment. Notwithstanding the foregoing, so long as
Landlord's award is not affected thereby, Tenant may pursue a separate award for
loss of its personal property and relocation expenses.
d. Waiver. Except as may be otherwise provided herein, Tenant hereby
------
waives and releases any right to terminate this Lease under any law, statute or
ordinance now or hereafter in effect relative to eminent domain, condemnation or
takings.
16. TENANT'S INSURANCE. Tenant shall, during the entire term of this Lease and
any other period of occupancy, at its sole cost and expense, keep in full force
and effect the following insurance:
a. All-Risk Insurance. Standard form property insurance insuring against
------------------
the perils of fire, vandalism, malicious mischief, cause of loss-special form
("All-Risk"), sprinkler leakage, earthquake sprinkler leakage and earthquake
coverage. This insurance policy shall be upon all trade fixtures and other
property owned by Tenant, for which Tenant is legally liable and/or that was
installed at Tenant's expense, and which is located in the Building including,
without limitation, furniture, fittings, installations, fixtures and any other
personal property, in an amount not less than the full replacement cost thereof.
If there shall be a dispute as to the amount which comprises full replacement
cost, the decision of Landlord or any mortgagees of Landlord shall be
conclusive. This insurance policy shall also insure the direct or indirect loss
of ▇▇▇▇▇▇'s earnings attributable to Tenant's inability to use fully or obtain
access to the Premises or the Building in the amount as will properly reimburse
Tenant for a period of one (1) year following such loss of use or access. Such
policy shall name ▇▇▇▇▇▇▇▇ and any mortgagees of Landlord as additional insured
parties, as their respective interests may appear.
b. Liability Insurance. Commercial General Liability Insurance insuring
-------------------
Tenant against any liability arising out of the lease, use, occupancy, or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be in the amount of Five Million Dollars
12
($5,000,000) Combined Single Limit for injury to or death of one or more persons
in an occurrence, and for damage to tangible property (including loss of use) in
an occurrence, with an Additional Insured --Landlord's Endorsement. The policy
shall insure the hazards of premises and operations, independent contractors,
contractual liability (covering the indemnity contained in Section 13 hereof)
----------
and shall (i) name Landlord as an additional insured, (ii) contain a cross-
liability provision, (iii) contain a provision that "the insurance provided the
landlord hereunder shall be primary and noncontributing with any other insurance
available to the landlord," and (iv) include fire legal liability coverage in
the amount of One Million Dollars ($1,000,000).
c. Workers' Compensation Insurance. Workers' Compensation and Employer's
-------------------------------
Liability Insurance (as required by state law).
d. Boiler and Machinery Insurance. If Tenant installs any boiler, pressure
------------------------------
object, machinery, fire suppression system, supplemental air conditioning or
other mechanical equipment within the Premises, Tenant shall also obtain and
maintain at Tenant's expense, boiler and machinery insurance covering loss
arising from the use of such equipment.
e. Other Insurance. Any other form or forms of insurance as Tenant or
---------------
Landlord or any mortgagees of Landlord may reasonably require from time to time
in form, amounts and for insurance risks against which a prudent tenant would
protect itself.
All such policies shall be written in a form satisfactory to Landlord and
shall be taken out with insurance companies qualified to issue insurance in the
State of Utah and holding a General Policyholder's Rating of "A" and a Financial
Size Rating of "X" or better, as set forth in the most current issue of Best's
Key Rating Guide. Such insurance shall provide that it is primary insurance, and
not contributory with any other insurance in force for or on behalf of Landlord.
Within ten (10) days after the execution of this Lease, Tenant shall deliver to
Landlord copies of policies or certificates and endorsements evidencing the
existence of the amounts and forms of coverage satisfactory to Landlord. No such
policy shall be cancelable or reducible in coverage except after thirty (30)
days prior written notice to Landlord. Tenant shall, at least thirty (30) days
prior to the expiration of such policies, furnish Landlord with renewals or
"binders" thereof, or upon five (5) days written notice to Tenant, Landlord may
order such insurance and charge the cost thereof to Tenant as additional rent,
if Tenant fails to so notify Landlord. If Landlord obtains any insurance that is
the responsibility of Tenant under this Section 16, Landlord shall deliver to
----------
Tenant a written statement setting forth the cost of any such insurance and
showing in reasonable detail the manner in which it has been computed.
f. Landlord's Insurance. Throughout the term of this Lease, Landlord shall
--------------------
maintain with respect to the Building commercial general liability insurance and
"all risk" property insurance, with commercially reasonable coverage amounts.
Landlord further covenants that its insurance coverage shall be consistent with
the coverage carried by owners of buildings of comparable size, type and quality
in Salt Lake City, Utah and surrounding areas.
13
17. DAMAGE OR DESTRUCTION. If the Building and/or the Premises are damaged by
fire or other perils covered by insurance carried by Landlord, Landlord shall
have the following rights and obligations:
a. Repair and Restoration.
----------------------
(1) If the Building and/or the Premises are damaged or destroyed by
any such peril, to the extent the cost to repair exceeds twenty-five
percent (25%) of the then full replacement value thereof or the damage
thereto is such that the Building and/or the Premises cannot reasonably be
repaired, reconstructed and restored within six (6) months from the date of
such damage or destruction, Landlord shall, at its sole option, as soon as
reasonably possible thereafter, either (i) commence or cause the
commencement of the repair, reconstruction and restoration of the Building
and/or the Premises and prosecute or cause the same to be prosecuted
diligently to completion, in which event this Lease shall remain in full
force and effect; or (ii) within sixty (60) days after such damage or
destruction, elect not to so repair, reconstruct or restore the Building
and/or the Premises, in which event this Lease shall terminate. In either
event, Landlord shall give Tenant written notice of its intention within
said sixty (60) day period. If Landlord elects not to restore the Building
and/or the Premises, this Lease shall be deemed to have terminated as of
the date of such damage or destruction.
(2) If the Building and/or the Premises are partially damaged or
destroyed by any such peril, to the extent the cost to repair is twenty-
five percent (25%) or less of the then full replacement value thereof, and
if the damage thereto is such that the Building and/or the Premises
reasonably may be repaired, reconstructed or restored within a period of
six (6) months from the date of such damage or destruction, then Landlord
shall commence or cause the commencement of and diligently complete or
cause the completion of the work of repair, reconstruction and restoration
of the Building and/or the Premises and this Lease shall continue in full
force and effect.
b. Uninsured Casualties. If damage or destruction of the Building and/or
--------------------
the Premises is due to any cause not covered by collectible insurance carried by
Landlord at the time of such damage or destruction, Landlord may elect to
terminate this Lease. If the repairing or restoring of the damage is delayed or
prevented for longer than six (6) months after the occurrence of such damage or
destruction by reason of acts of God, war, governmental restrictions, inability
to procure the necessary labor or materials, or other cause beyond the control
of Landlord may elect to be relieved of its obligation to make such repairs or
restoration and terminate this Lease. Further, Landlord shall not have any
obligation to repair, reconstruct or restore the Premises and may terminate this
Lease when the damage resulting from any casualty covered under this Section 17
----------
occurs during the last twelve (12) months of the Term to such an extent that
more than thirty percent (30%) of the floor area of the Premises is rendered
untenantable for a period of more than sixty (60) days.
c. Tenant's Termination Right. If the work of repair, reconstruction and
--------------------------
restoration in connection with damage or destruction of the Building and/or
Premises initially affects more than thirty percent (30%) of the floor area of
the Premises and shall require a period longer than nine (9) months to complete,
then Tenant may elect to terminate this Lease, provided that Tenant shall give
written notice to Landlord of its intention within sixty (60) days after the
date it is advised of such repair period.
14
d. Termination of Lease. Upon any termination of this Lease under any of
--------------------
the provisions of this Section 17, Landlord and Tenant shall each be released
----------
without further obligation to the other from the date possession of the Premises
is surrendered to Landlord or such other date as is mutually agreed upon by
Landlord and Tenant except for payments or other obligations which have
theretofore accrued and are then unpaid or unperformed.
e. Base Rent Abatement. In the event of repair, reconstruction and
-------------------
restoration by or through Landlord as herein provided, the Rent payable under
this Lease shall be abated proportionately to the degree to which ▇▇▇▇▇▇'s use
of the Premises is impaired during the period of such repair, reconstruction or
restoration (i.e. Tenant cannot use and does not use the Premises for its
business operations). Tenant shall not be entitled to any compensation or
damages for loss of the use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by such damage, repair, reconstruction or
restoration, nor shall Tenant be entitled to any insurance proceeds, including
those in excess of the amount required by Landlord for such repair,
reconstruction or restoration. Tenant shall not be released from any of its
obligations under this Lease due to damage or destruction of the Building and/or
the Premises except to the extent and upon the conditions expressly stated in
this Section 17.
----------
f. Extent of Repair Obligation. If Landlord is obligated to or elects to
---------------------------
repair or restore as herein provided, Landlord shall be obligated to make repair
or restoration only of those portions of the Building and the Premises which
were originally provided at Landlord's expense, and the repair and restoration
of items not provided at Landlord's expense shall be the obligation of Tenant.
18. WAIVER OF SUBROGATION. Whether any loss or damage to or within the Building
and/or the Premises is due to the negligence of either of the parties hereto,
their agents or employees, or any other cause, Landlord and Tenant do each
herewith and hereby release and relieve the other from responsibility for, and
waive their entire claim of recovery, for (a) any loss or damage to the real or
personal property of the other located anywhere in the Building and including
the Building itself, arising out of or incident to the occurrence of any of the
perils which are covered by the fire insurance policy, with extended coverage
endorsement, in common use in Salt Lake City, Utah; or (b) loss resulting from
business interruption at the Premises, arising out of or incident to the
occurrence of any of the perils which are covered by the business interruption
insurance policy in common use in Salt Lake City, Utah. To the extent that such
risks under (a) and (b) are, in fact, covered by insurance, each party shall
cause its insurance carriers to consent to such waiver and to waive all rights
of subrogation against the other party. Notwithstanding the foregoing, no such
release shall be effective unless the aforesaid insurance policy or policies
shall expressly permit such a release or contain a waiver of the carrier's right
to be subrogated.
19. ASSIGNMENT OR SUBLETTING.
a. Landlord's Consent. Without the express written consent of Landlord,
------------------
Tenant shall not directly or indirectly, voluntarily or by operation of law,
sell, assign, encumber, pledge, or otherwise transfer or hypothecate all of its
interest in or rights with respect to the Premises (collectively, "Assignment"),
or permit all or any portion of the Premises to be occupied by anyone other than
Tenant or sublet all or any portion of the Premises or transfer a portion of its
interest in or rights with respect to the Premises (collectively, "Sublease").
Notwithstanding anything in this Section 19 to the contrary, Tenant (but not any
----------
of its permitted successors or assigns) shall have the right, without obtaining
▇▇▇▇▇▇▇▇'s consent, to enter into (i) an
15
Assignment or Sublease of all or a portion of the Premises with an Affiliate of
Tenant, on the condition that Tenant delivers to Landlord fifteen (15) days
prior written notice containing the name of the Affiliate and the manner in
which it is affiliated with Tenant, the most recent audited financial statements
of the Affiliate, and the commencement and termination dates of the Sublease or
Assignment, or (ii) an Assignment of all of the Premises with an entity
resulting directly from a merger or consolidation with Tenant or an entity
purchasing or succeeding to substantially all of the assets of Tenant on the
condition that (1) Tenant delivers to Landlord fifteen (15) days prior written
notice containing the name of the proposed assignee, the commencement and
termination dates of the Assignment, together with the most recent financial
statement or other equivalent financial information reasonably available to
Tenant concerning the proposed assignee, and (2) the net worth and
creditworthiness of the proposed assignee is at least comparable to that of
Tenant (a "Merged Entity"). For purposes of this Section 19, the term
----------
"Affiliate" shall mean a corporation or entity which controls, is controlled by,
or is under common control with Tenant, that has a net worth equivalent or
greater than Tenant's, as reasonably determined by Landlord, based on its review
of the financial statements of the such corporation or entity.
b. Notice to Landlord. If Tenant desires to enter into an Assignment or a
------------------
Sublease, Tenant shall give notice to Landlord of its intention to do so (the
"Transfer Notice"), containing (i) the name of the proposed assignee or
subtenant (collectively, "Transferee"), (ii) the nature of the proposed
Transferee's business to be carried on in the Premises, (iii) the material terms
of the proposed Assignment or Sublease, including, without limitation, the
commencement and expiration dates thereof and the rent payable thereunder, (iv)
the portion of the Premises proposed to be subleased (the "Transfer Space"), and
(v) the most recent financial statement or other equivalent financial
information reasonably available to Tenant concerning the proposed Transferee.
Within ten (10) days after ▇▇▇▇▇▇▇▇'s receipt of the Transfer Notice, Landlord
shall, by notice to Tenant, elect to (1) terminate this Lease as to the Transfer
Space, with a proportionate reduction in Base Rent and Tenant's Proportionate
Share of Operating Costs, effective upon the date the proposed Sublease or
Assignment would actually have commenced (determined by taking into account all
relevant factors), or (2) consent to the Sublease or Assignment, or (i)
disapprove the Sublease or Assignment; provided, however, that, if Landlord does
not make an election under (1) above, ▇▇▇▇▇▇▇▇ agrees not to unreasonably
withhold its consent to the Sublease or Assignment. ▇▇▇▇▇▇▇▇'s consent shall not
be deemed to have been unreasonably withheld if the proposed sublessee or
assignee is a new concern with no previous business history or if the proposed
sublessee or assignee intends to use the Premises (x) for executive suites or
any other use inconsistent with Section 7 or the operation of a first-class
---------
office building or (y) in a manner which would increase the use of, or the
possibility of disturbance of, Hazardous Substances on the Property. ▇▇▇▇▇▇▇▇'s
failure to make such election within fifteen (15) days after ▇▇▇▇▇▇▇▇'s receipt
of the Transfer Notice shall be deemed to be Landlord's disapproval of the
proposed Sublease or Assignment.
16
c. Permitted Transfers. If Landlord consents to any Sublease or
-------------------
Assignment as set forth in Section 19.b:
------------
(1) Tenant may thereafter, within ninety (90) days after ▇▇▇▇▇▇▇▇'s
consent, enter into such Assignment or Sublease, but only with the party
and upon substantially the same terms as set forth in the Transfer Notice,
and Tenant shall promptly send to Landlord a copy of the fully executed
Assignment or Sublease;
(2) In the case of a Sublease, Tenant shall pay to Landlord monthly,
together with monthly installments of rent hereunder, fifty percent (50%)
of any sums payable to Tenant in connection with such Sublease in excess of
the proportionate amount (on a rentable square footage basis) of Base Rent
payable by Tenant under this Lease for the space covered by such Sublease
less any actual and reasonable expenses incurred by Tenant in connection
----
with such subleasing, such as brokers' fees, improvement costs and
advertising costs, but excluding down time;
(3) In the case of an Assignment, Tenant shall pay to Landlord, as
and when received fifty percent (50%), any transfer or assignment fee,
purchase price or other consideration received by Tenant in connection with
the Assignment attributable to the value of this Lease;
(4) Any Sublease or Assignment shall be subject to all of the
provisions of this Lease, and ▇▇▇▇▇▇▇▇'s consent to any Sublease or
Assignment shall not be construed as a consent to any terms thereof which
conflict with any of the provisions of this Lease except to the extent that
Landlord specifically agrees in writing to be bound by such conflicting
terms; and
(5) No Transferee, other than an Affiliate or Merged Entity, shall
have the right to exercise any right or option under this Lease to lease
additional space, extend the Term, or terminate this Lease under any
circumstance.
d. Continuing Liability. Tenant shall not be relieved of any obligation
--------------------
to be performed by Tenant under this Lease, including the obligation to obtain
Landlord's consent to any other Assignment or Sublease, regardless of whether
Landlord consented to any Assignment or Sublease. Any Assignment or Sublease
that fails to comply with this Section 19 shall be void and, at the option of
----------
Landlord, shall constitute an Event of Default by Tenant under this Lease. The
acceptance of Base Rent or other sums by Landlord from a proposed Transferee
shall not constitute Landlord's consent to such Assignment or Sublease.
e. Assumption by Transferee. Each Transferee, including an Affiliate or
------------------------
Merged Entity, under an Assignment shall assume all obligations of Tenant under
this Lease and shall be and remain liable jointly and severally with Tenant for
the payment of Base Rent, additional rent and other charges, and for the
performance of all other provisions of this Lease. Each Transferee, including an
Affiliate or Merged Entity, under a Sublease, other than Landlord, shall be
subject to this Lease. No Assignment shall be binding on Landlord unless
Landlord shall receive a counterpart of the Assignment and an instrument in
recordable form that contains a covenant of assumption by the Transferee,
including an Affiliate or Merged Entity, reasonably satisfactory in substance
and form to Landlord and consistent with the requirements of this Section 19 but
----------
the failure of the Transferee to execute such instrument shall not release the
Transferee from its liability as set forth above. Tenant shall reimburse
Landlord, within fifteen
17
(15) days after ▇▇▇▇▇▇'s receipt of an invoice therefor, for any costs that
Landlord may actually and reasonably incur in connection with any proposed
Assignment or Sublease, including Landlord's reasonable attorneys' fees and the
costs of investigating the acceptability of any proposed Transferee.
f. Default: Waiver. Any Assignment or Sublease in violation of this
---------------
Section 19 shall be void and, at the option of Landlord, shall constitute a
----------
material default by Tenant under this Lease. The acceptance of rent or
additional charges by Landlord from a purported assignee or sublessee shall not
constitute a waiver by Landlord of the provisions of this Section 19.
----------
g. Change in Control. Any sale or other transfer, including by
-----------------
consolidation, merger or reorganization, of a majority of the voting stock of
Tenant, if Tenant is a corporation (other than a sale of the majority of the
stock of a publicly traded company in normal open market transactions), or any
sale or other transfer of a majority of or a controlling interest in the
partnership interests in Tenant, if Tenant is a partnership, or any sale or
other transfer of a majority of or a controlling interest in the membership
interests in Tenant, if Tenant is a limited liability company, or any sale or
other transfer of a majority of the beneficial interests in Tenant or of any
controlling interest in Tenant, if Tenant is a trust or other type of entity,
shall be an Assignment for purposes of this Section 19. As used in this Section
---------- -------
19, the term "Tenant" shall also mean any entity which has guaranteed Tenant's
--
obligations under this Lease or any entity which directly or indirectly owns a
majority of the voting stock or partnership or limited liability company or
other beneficial interest of Tenant, and the prohibition hereof shall be
applicable to any sales or transfers of the stock or partnership or limited
liability company or other beneficial interest of said guarantor or majority
owner.
20. Subordination. ▇▇▇▇▇▇ agrees, subject to the terms of this Section 20, that
----------
this Lease is and shall be subordinate to any mortgage, deed of trust, ground
lease, underlying lease or other prior lien (hereinafter "Prior Lien") that may
heretofore or hereafter be placed upon the Property and the Building, and all
renewals, replacements and extensions thereof. If any Prior Lien holder wishes
to have this Lease prior to its Prior Lien, then and in such event, upon such
Prior ▇▇▇▇ ▇▇▇▇▇▇'▇ notifying Tenant to that effect, this Lease shall be deemed
prior to the Prior Lien. If any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a conveyance in
lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the tenant of the successor in interest to
▇▇▇▇▇▇▇▇, provided that such successor in interest recognizes the interest of
Tenant under this Lease and agrees not to disturb Tenant's rights hereunder if
no default under this Lease then exists. Within fifteen (15) days of
presentation, Tenant shall execute any documents which any such Prior Lien
holder may require to effectuate the provisions of this Section 20 provided that
----------
such documents are in commercially reasonable and generally customary form..
Landlord agrees, notwithstanding and without modification of the foregoing, that
it will use commercially reasonable efforts to obtain from the existing lender
for the Building the lender's standard form of subordination, non-disturbance
and attornment agreement. Tenant shall pay the costs and expenses incurred by
Landlord to obtain for Tenant this agreement from the lender, including any
processing fees or costs charged by the lender.
21. Estoppel Certificate. Tenant will, upon ten (10) days prior request by
▇▇▇▇▇▇▇▇, execute, acknowledge and deliver to Landlord a statement in writing
executed by ▇▇▇▇▇▇; substantially in the form of Exhibit D, attached hereto,
---------
certifying, the date of this Lease, that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that this Lease is in
full force and effect as modified, and setting forth such modifications) and the
date to
18
which the Base Rent and additional rent and other sums payable hereunder have
been paid, and either stating that to the knowledge of Tenant no default exists
hereunder on the part of Landlord or Tenant or specifying each such default of
which Tenant may have knowledge and such other matters as may be reasonably
requested by Landlord. The parties agree and intend that any such statement by
Tenant may be relied upon by any prospective purchaser or mortgagee of the
Building. Tenant's failure to timely deliver such a statement shall be deemed to
be an acknowledgment by Tenant that this Lease is in full force and effect
without modification (except as set forth by Landlord), there are no uncured
defaults under this Lease by Landlord and no more than one monthly installment
of Base Rent and additional rent and other sums payable hereunder have been paid
in advance.
22. SERVICES. Landlord shall maintain the public and common areas of the
Property and the Building, such as lobbies, stairs, corridors and restrooms, in
good order and condition except for damage provided, however, to the extent
damage results or repairs are required due to the negligence or willful
misconduct of Tenant, its agents, employees, or contractors, such repairs shall
be made at Tenant's sole cost and expense. Landlord shall furnish the Premises
with electricity for lighting and operation of low power usage office machines
and elevator service at all times during the Term. Landlord shall furnish the
Premises with heating or normal office air conditioning between the hours of
7:00 a.m. and 6:00 p.m., Monday through Friday, and 8:00 a.m. and 1:00 p.m. on
Saturdays, except for legal holidays. Air conditioning units and electricity
therefor or special air conditioning requirements, such as for any computer
centers, and after-hours heating and air conditioning shall be at Tenant's
expense (the current charge for after hours heating and air conditioning is
$15.00 per hour, which is subject to change at Landlord's sole discretion).
Landlord shall also provide lighting replacement for Landlord-furnished
lighting, toilet room supplies, window washing with reasonable frequency and
customary janitorial service. Landlord shall not be liable to Tenant for any
loss or damage caused by or resulting from any variation, interruption or
failure of said services due to any cause whatsoever; and no temporary
interruption or failure of such services incident to the making of repairs,
Alterations or improvements due to accident or strike or conditions or events
not under ▇▇▇▇▇▇▇▇'s control shall be deemed an eviction of Tenant or relieve
Tenant from any of Tenant's obligations hereunder.
23. SIGNS AND ADVERTISING. Landlord will provide Tenant, at Landlord's sole
cost and expense, with Building standard signage (as such standard is
established from time to time by Landlord) on the Building directory in the
lobby of the Building. Tenant shall not erect or install or otherwise utilize
signs, lights, symbols, canopies, awnings, window coverings or other advertising
or decorative matter (collectively, "Signs") on the windows, walls and exterior
doors or otherwise visible from the exterior of the Premises without first (a)
submitting its plans to Landlord and obtaining Landlord's written approval
thereof and (b) obtaining any required approval of any applicable governmental
authority. All Signs approved by Landlord shall be professionally designed and
constructed in a first-class workmanlike manner. Landlord shall have the right
to promulgate from time to time additional reasonable rules, regulations and
policies relating to the style and type of said advertising and decorative
matter which may be used by any occupant, including Tenant, in the Building, and
may change or amend such rules and regulations from time to time as in its
discretion it deems advisable. ▇▇▇▇▇▇ agrees to abide by such rules, regulations
and policies. At the expiration or earlier termination of this Lease, all such
signs, lights, symbols, canopies, awnings or other advertising or decorative
matter attached to or painted by Tenant upon the Premises, whether on the
exterior or interior thereof, shall be removed by Tenant at its own expense, and
Tenant shall repair any damage or injury to
19
the Premises, and correct any unsightly condition, caused by the maintenance and
removal thereof.
24. PARKING. Subject to the rules and regulations of Salt Lake City, Tenant
shall have the right to rent the Parking Spaces specified in Paragraph 21 of the
------------
Basic Lease Information during the term of the Lease at the prevailing market
rent, as established from time to time by Landlord, which is currently equal to
the Current Parking Space Rent specified in Paragraph 22 of the Basic lease
------------
Information. Tenant's parking space rent shall not be adjusted more than once
per calendar year during the Initial Term. Tenant's use of the Parking Spaces is
subject to the rules and regulations applicable to the parking areas, including,
without limitation, hours of operation and the prohibition on parking in spaces
assigned to persons other than Tenant. Such rent shall be paid at the same times
as the Base Rent and shall constitute additional rent under this Lease. To the
extent any of the Parking Spaces are reserved spaces, Landlord shall have the
right, upon three (3) days written notice, to relocate such Parking Spaces to
other spaces in the parking areas. Tenant, upon not less than thirty (30) days
prior written notice to Landlord, shall have the right to reduce the number
and/or types of parking spaces to be provided to Tenant. It is further
acknowledged that the location of the off-site parking spaces may be designated
by Landlord from time to time so long as they are within the 2-block radius
specified.
25. RULES AND REGULATIONS. ▇▇▇▇▇▇ agrees to observe and be bound by the Rules
and Regulations applicable to the Building and the Property, a copy of which is
attached hereto as Exhibit E. Landlord reserves the right to amend said Rules
---------
and Regulations as Landlord in its judgment may from time to time deem to be
necessary or desirable for the safety, care and cleanliness of the Premises, the
Building or the Property and the preservation of good order therein, and ▇▇▇▇▇▇
agrees to comply therewith. To the extent the Rules and Regulations conflict
with this Lease, this Lease shall control.
26. TIME. Time is of the essence of this Lease.
27. QUIET ENJOYMENT. Landlord covenants to control its activities and personnel
such that if and so long as Tenant pays the rent and performs the covenants
contained in this Lease, Tenant shall hold and enjoy the Premises peaceably and
quietly, subject to the provisions of this Lease.
28. DEFAULTS AND REMEDIES.
a. Defaults. The occurrence of any one or more of the following events
--------
shall constitute a default hereunder by ▇▇▇▇▇▇ (each an "Event of Default"):
(1) The vacation or abandonment of the Premises by ▇▇▇▇▇▇.
Abandonment is herein defined to include, but is not limited to, any
absence by Tenant from the Premises for ten (10) business days or longer
with no intent to continue business operations therein.
(2) The failure by Tenant to make any payment of Base Rent,
additional rent, other charges or any other payment required to be made by
Tenant hereunder, as and when due, where such failure shall continue for a
period of three (3) days after written notice thereof from Landlord to
Tenant; provided, however, that any such notice shall be
20
in lieu of, and not in addition to, any notice required under Utah Code
Annotated sec. 78-36-3 regarding unlawful detainer actions.
(3) The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed
by Tenant, other than as specified in subsections 28.b(1) or 28.b(2) above,
------------------ ------
where such failure shall continue for a period of fifteen (15) days after
written notice thereof from Landlord to Tenant. Any such notice shall be in
lieu of, and not in addition to, any notice required under Utah Code
Annotated sec. 78-36-3 regarding unlawful detainer actions. If the nature
of Tenant's default (other than a default specified in subsections 28.b(1)
------------------
or 28.b(2) above) is such that more than ten (10) days are reasonably
------
required for its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said fifteen (15) day period and
thereafter diligently prosecute such cure to completion, and such
completion shall occur not later than ninety (90) days from the date of
such notice from Landlord.
(4) Any of the following: (i) The making by Tenant of any general
assignment for the benefit of creditors; (ii) the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed
within sixty (60) days); (iii) the appointment of a trustee or receiver to
take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within sixty (60) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such
seizure is not discharged within sixty (60) days.
b. Remedies. If an Event of Default exists, in addition to any other
--------
remedies available to Landlord at law or in equity, Landlord shall have the
following rights and remedies:
(1) The right to terminate ▇▇▇▇▇▇'s right to possession of the
Premises and to present value (assuming an interest rate of eight percent
(8%) or such other amount prescribed by law, if any) of rents and other
charges due over the remainder of the Term as liquidated damages due from
Tenant to Landlord, less, the amount of rental loss for the same period
that the Tenant proves could be reasonably avoided;
(2) The right to continue this Lease in effect and to enforce all of
its rights and remedies under this Lease, including the right to recover
Base Rent, additional rent and other charges as they become due, for so
long as Landlord does not terminate ▇▇▇▇▇▇'s right to possession. Acts of
maintenance or preservation, efforts to relet the Premises or the
appointment of a receiver upon ▇▇▇▇▇▇▇▇'s initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's
right to possession;
(3) The right to enter the Premises and remove therefrom all persons
and property, store such property in a public warehouse or elsewhere at the
cost of and for the account of Tenant, and sell such property and apply the
proceeds therefrom pursuant to applicable Utah law;
21
(4) The right to take steps necessary or appropriate to have a
receiver appointed for Tenant in order to take possession of the Premises
and apply any rental collected and exercise all other rights and remedies
granted to Landlord;
(5) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law; and
(6) If an Event of Default occurs prior to the expiration of the
Initial Term, the right to recover the full amount of the unamortized
portion of the Tenant Improvement Allowance and any free rent granted by
Landlord.
c. Reentry. If an Event of Default exists, Landlord shall also have the
-------
right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. Neither the re-entry or taking possession of the Premises by Landlord
pursuant to this Section 28.c, nor the service by Landlord of any notice
------------
pursuant to the forcible entry and detainer statutes of the State of Utah and
the surrender of the Premises pursuant to such notice, shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction.
d. Remedies Cumulative: Waiver. All rights, options and remedies of
---------------------------
Landlord contained in this Lease or provided by law or in equity shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other except to the extent the remedies conflict with one another directly
and cannot be exercised together at the same time. No waiver of any default
hereunder shall be implied from any acceptance by Landlord of any Base Rent,
additional rent or other charges due hereunder or any omission by Landlord to
take any action on account of such default, and no express waiver shall affect
any default other than as specified in said waiver. The consent or approval of
Landlord to or of any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord's consent or
approval to or of any subsequent similar acts by ▇▇▇▇▇▇.
29. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer or transfers
of Landlord's interest in the Property or the Building, other than a transfer
for security purposes only, ▇▇▇▇▇▇ agrees that Landlord shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer and Tenant agrees to attorn to
the transferee provided that such transferee has assumed Landlord's obligations
under this Lease effective as of the date of any such transfer.
30. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, other than
Base Rent required to be paid by it hereunder, or shall fail to perform any
other act on its part to be performed hereunder, and such failure shall continue
for ten (10) business days after written notice thereof by Landlord, Landlord
may, but shall not be obligated so to do, and without waiving or releasing
Tenant from any obligations of Tenant, make any such payment or perform any such
other act on Tenant's part to be made or performed as provided in this Lease.
Tenant shall reimburse Landlord for all costs incurred in connection with such
payment or performance immediately upon demand.
22
31. Improvements.
a. Tenant Improvement Allowance. Landlord shall cause its contractor to
----------------------------
complete Landlord's Work, and the Tenant Improvement Allowance shall be used for
the payment of Construction Costs (as hereinafter defined), provided, however,
-------- -------
Landlord shall in no circumstances be obligated to expend more than $71,700 in
constructing such improvements (the "Tenant Improvement Allowance"). In order to
complete Landlord's Work, it is estimated that the actual cost of construction
will exceed the Tenant Improvement Allowance by $11,615.40 (the "Additional
Charges"), which sum Tenant shall deliver to Landlord upon execution of this
Lease. Tenant shall not receive any credit or other benefit for any unused
portion of the Tenant Improvement Allowance. Tenant shall pay or reimburse
Landlord within five (5) days after Landlord's request for any increased costs
in excess of the Tenant Improvement Allowance and Additional Charges
(collectively, "Excess Construction Costs") incurred by Landlord as a result of
(i) Tenant's changes to the Space Plan or the Final Plans, or any changes to the
work reflected in the bid attached hereto as Exhibit G, (ii) any failure by
---------
Tenant to pay Excess Construction Costs, (iii) any work performed by ▇▇▇▇▇▇ in
the Premises, or (iv) any other Tenant's Delay.
b. Plans and Drawings. Tenant and Landlord have approved the space plan
------------------
for the Premises (the "Space Plan"), attached hereto as Exhibit F and the
---------
Working Drawings attached hereto as Exhibit G. The Working Drawings as approved
---------
by ▇▇▇▇▇▇ are referred to as the "Final Plans". Landlord shall obtain all
permits and approvals and construct or modify the improvements to the Premises
in accordance with the Final Plans, in a first-class workmanlike manner, and
charge the Tenant Improvement Allowance for an amount equal to the costs
incurred by Landlord in constructing the improvements, including, without
limitation, Landlord's actual cost of the work performed and materials provided,
architectural fees, engineering fees, mechanical costs, structural costs,
electrical costs, construction management fees (which construction management
fees shall not exceed $1,792.50), permit fees, out-of-pocket expenses, and any
increased costs incurred by Landlord as a result of any changes to the Final
Plans requested by Tenant or any Tenant's Delay (collectively, "Construction
Costs").
c. Substantial Completion. Landlord shall substantially complete the
----------------------
improvements and deliver the Premises to Tenant on or before the Delivery
Deadline. Landlord shall use reasonable efforts to notify Tenant of the
projected date of substantial completion of the Premises at least fifteen (15)
days prior thereto.
32. Notices. All notices under this Lease shall be in writing to Landlord at
the same place rent payments are made (with a copy sent to ▇▇▇▇▇ & Siebel, Wood
Island, Fourth Floor, ▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President), and to Tenant at the Premises and additional copies to
▇▇▇▇▇▇▇ Corn, LLC, The Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and to ▇▇▇▇▇▇▇ Procter & ▇▇▇▇ LLP, Exchange Place,
Boston, MA, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.C.., or such addresses as may hereafter be
designated by either party in writing. Any such notices shall be either sent by
certified mail, return receipt requested, in which case notice shall be deemed
delivered three business days after timely deposit, postage prepaid in the U.S.
Mail; sent by a nationally recognized overnight courier, in which case notice
shall be deemed delivered one business day after timely deposit with such
courier; or personally delivered, in which case notice shall be deemed delivered
upon receipt.
23
33. Attorneys' Fees. If either party places the enforcement of this Lease or
any part hereof, or the collection of any Base Rent, additional rent or other
charges due or to become due hereunder, or recovery of the possession of the
Premises, in the hands of an attorney, or files suit upon the same, the non-
prevailing (or defaulting) party shall pay the other party's reasonable
attorneys' fees and court costs, including paralegal fees and any attorneys'
fees and court costs in connection with any appeals and any bankruptcy or
insolvency proceedings involving Tenant or this Lease. If Landlord is named as a
defendant in any suit brought against Tenant in connection with or arising out
of ▇▇▇▇▇▇'s occupancy hereunder, Tenant shall pay to Landlord its costs and
expenses in such suit, including its reasonable attorneys' fees. Any such
attorneys' fees and other expenses incurred by either party in enforcing a
judgment in its favor under this Lease shall be recoverable separately from and
in addition to any other amount included in such judgment, and such attorneys'
fees obligation is intended to be severable from the other provisions of this
Lease and to survive and not be merged into any such judgment.
34. Holding Over. If Tenant holds over after the expiration or earlier
termination of the Term without the express consent of Landlord, Tenant shall
become a tenant at sufferance only, at a rental rate equal to one hundred fifty
percent (150%) of the Base Rent, additional rent and other charges in effect
upon the date of such expiration (subject to adjustment as provided in Section 5
---------
hereof and prorated on a daily basis), and otherwise subject to the terms,
covenants and conditions herein specified, so far as applicable. Acceptance by
Landlord of rent after such expiration or earlier termination shall not result
in a renewal of this Lease. If ▇▇▇▇▇▇ fails to surrender the Premises upon the
expiration of this Lease despite demand to do so by Landlord, Tenant shall
indemnify, defend and hold Landlord harmless from all loss or liability,
including without limitation, any claim made by any succeeding tenant founded on
or resulting from such failure to surrender.
35. Surrender of Premises. The voluntary or other surrender of this Lease by
▇▇▇▇▇▇, or a mutual cancellation hereof, shall not work a merger, and shall, at
the option of Landlord, operate as an assignment to it of any subleases or
subtenancies.
36. Non-Waiver. Neither the acceptance of rent nor any other act or omission of
Landlord at any time or times after the happening of any event authorizing the
cancellation or forfeiture of this Lease shall operate as a waiver of any past
or future violation, breach or failure to keep or perform any covenant,
agreement, term or condition hereof, or deprive Landlord of its right to cancel
or forfeit this Lease, upon the notice required by law, at any time that cause
for cancellation or forfeiture may exist, or be construed so as to at any future
time stop Landlord from promptly exercising any other option, right or remedy
that it may have under any term or provision of this Lease.
37. Mortgagee Protection. In the event of any default on the part of Landlord,
Tenant will give notice by registered or certified mail to any beneficiary of a
deed of trust or mortgagee under a mortgage covering the Property or the
Building whose address shall have been furnished to Tenant, and shall offer such
beneficiary or mortgagee a reasonable opportunity to cure the default, including
time to obtain possession of the Property or the Building by power of sale or a
judicial foreclosure, if such should prove necessary to effect a cure.
38. Building Planning. If Landlord requires the Premises for use in conjunction
with another suite or other reasons connected with the Building planning
program, upon notifying Tenant in writing, Landlord shall have the right to move
Tenant to other similar space in the Building (which space shall have a similar
view, location and finishes as the Premises) at
24
Landlord's sole cost and expense, including the cost of providing Tenant with
replacement business cards, brochures and stationery reflecting such change.
Landlord shall also pay the Tenant's actual costs of moving to the new space,
including the costs of rewiring and connecting Tenant's cabling (such as for
Tenant's computers and telephones). Tenant shall also be permitted to conduct
its move over a weekend. The terms and conditions of the original Lease shall
remain in full force and effect with respect to any new space, save and
excepting that a revised Exhibit A shall become part of this Lease and shall
---------
reflect the location of the new space. However, if the new space does not meet
with ▇▇▇▇▇▇'s approval, Tenant shall have the right to cancel this Lease upon
giving Landlord notice within ten (10) days of receipt of Landlord's
notification. Such cancellation shall not be effective for thirty (30) days
after such notice from Tenant and Landlord may, at its option, reinstate this
Lease by giving Tenant notice within five (5) days after ▇▇▇▇▇▇▇▇'s receipt of
notice from Tenant that Tenant may keep the original Premises.
39. Changes to the Property. Landlord reserves the right at any time to make
changes, alterations, reductions and additions to the Property other than the
Premises, including the construction of other buildings or improvements in the
Property, the leasing of space to restaurant uses, the building of additional
stories on any building, without any liability or responsibility to Tenant so
long as Tenant's rights to the Premises and reasonable access thereto is not
materially adversely affected. Landlord will not block ingress and egress to the
Premises.
40. Option to Terminate. Tenant (but not any permitted successor or assign)
shall have the right to terminate this Lease in its entirety, provided that
Tenant delivers a written notice of termination to Landlord prior to the Early
Termination Notice Date as specified in Paragraph 24 of the Basic Lease
------------
Information, which notice shall be irrevocable. The termination shall be
effective as of the later to occur of (a) the Early Termination Date as
specified in Paragraph 23 of the Basic Lease Information or (b) Landlord's
------------
receipt of the Termination Fee (as defined below) in good funds. If Tenant
elects to terminate this Lease hereunder, Tenant shall pay Landlord, in addition
to all sums payable for the period prior to such termination of the Lease, a fee
(the "Termination Fee") equal to the sum of (i) the unamortized cost of the
Improvements to the Premises provided or paid for by Landlord and not otherwise
reimbursed by ▇▇▇▇▇▇, (ii) the unamortized leasing commissions paid or payable
by Landlord in connection with this Lease and (iii) two months of then current
rent, all of which costs and commissions shall be amortized on a straight-line
basis over the Term at an interest rate of twelve percent (12%) per annum. Upon
▇▇▇▇▇▇▇▇'s determination of the aggregate cost of the improvements to the
Premises provided by Landlord and the leasing commissions payable by Landlord in
connection with this Lease, Landlord shall inform ▇▇▇▇▇▇ in writing of such
costs. Notwithstanding the foregoing, if Tenant is in default under this Lease
either at the time Tenant delivers the termination notice or at any time
thereafter prior to the effective date of the termination, Landlord shall have,
in addition to all of Landlord's other rights and remedies under this Lease, the
right to terminate ▇▇▇▇▇▇'s right to terminate this Lease hereunder and to
cancel unilaterally Tenant's exercise of its right to terminate this Lease
hereunder, in which event the Expiration Date of this Lease shall be and remain
the then scheduled Expiration Date.
41. General Provisions.
a. Entire Agreement. This Lease contains all of the agreements of the
----------------
parties, and there are no verbal or other agreements which modify or affect this
Lease. This Lease
25
supersedes any and all prior agreements made or executed by or on behalf of the
parties hereto regarding the Premises.
b. Terms and Headings. The words "Landlord" and "Tenant" include the
------------------
plural as well as the singular, and words used in any gender include all
genders. The titles to sections of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
c. Successors and Assigns. All of the covenants, agreements, terms and
----------------------
conditions contained in this Lease shall inure to and be binding upon Landlord
and Tenant and their respective successors in interest and assigns.
d. No Brokers. Each party represents and warrants to the other party
----------
that it has not engaged any broker, finder or other person, except for the
respective Broker (as defined in Paragraph 19 and Paragraph 20 of the Basic
------------ ------------
Lease Information) who would be entitled to any commission or fees in respect
of the negotiation, execution or delivery of this Lease and each party shall
indemnify, defend and hold harmless the other party against any loss, cost,
liability or expense incurred by such party as a result of any claim asserted
by any such broker, finder or other person, except for ▇▇▇▇▇▇'s Broker or
Landlord's Broker on the basis of any arrangements or agreements made or
alleged to have been made by or on behalf of such party. Landlord shall have
no obligation to pay ▇▇▇▇▇▇'s Broker any leasing commissions but ▇▇▇▇▇▇'s
Broker may be compensated by Landlord's Broker pursuant to the terms of a
separate written agreement between ▇▇▇▇▇▇▇▇'s Broker and ▇▇▇▇▇▇'s Broker. The
provisions of this section shall not apply to brokers with whom Landlord has
an express written broker agreement. Landlord shall be responsible for paying
all leasing commissions due Landlord's Broker in connection with this Lease.
e. Liability of Landlord. Landlord's obligations and liability to Tenant
---------------------
under this Lease shall be limited solely to Landlord's interest in the
Building, and neither Landlord nor any of the partners in Landlord, nor any
officer, director, shareholder or partner of or in Landlord or any partners in
Landlord shall have or incur any personal liability whatsoever with respect to
this Lease.
f. Severability. Any provision of this Lease which shall prove to be
------------
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof, and the remaining provisions hereof shall nevertheless remain
in full force and effect.
g. Force Majeure. Except as may be otherwise specifically provided
-------------
herein, time periods for Landlord's or Tenant's performance under any provisions
of this Lease not involving the payment of money shall be extended for periods
of time during which the non-performing party's performance is prevented due to
circumstances beyond the party's control, including, without limitation,
strikes, embargoes, governmental regulations, acts of God, war or other strife.
Tenant hereby waives and releases its right to terminate this Lease under any
law, statute or ordinance now or hereafter in effect.
h. [Intentionally omitted]
i. Examination of Lease. Submission of this instrument for examination
--------------------
or signature by Tenant does not constitute a reservation of or option to
lease, and it is not effective as a lease or otherwise until execution by and
delivery to both Landlord and Tenant.
26
j. Modification for Lender. If, in connection with ▇▇▇▇▇▇▇▇'s obtaining
-----------------------
construction, interim or permanent financing for the Building, the lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's rights hereunder.
k. Recording. Neither Landlord nor Tenant shall-record this Lease nor a
---------
short form memorandum hereof without the consent of the other.
l. Applicable Laws. This Lease shall be governed by and construed
---------------
pursuant to the laws of the State of Utah.
m. Survival of Obligations. All provisions of this Lease which require
------------------------
the payment of money or the delivery of property after the termination of this
Lease or require Landlord or Tenant to indemnify, defend or hold the other party
harmless shall survive the termination of this Lease.
n. Appendices and Riders. The following appendices and riders are
---------------------
attached hereto and by this reference made a part of this Lease:
Exhibit A Floor Plan of the Premises
---------
Exhibit B Description of the Real Property
---------
Exhibit C Confirmation of Lease Term
---------
Exhibit D Form of Tenant Estoppel Certificate
---------
Exhibit E Rules and Regulations
---------
Exhibit F Space Plan
---------
Exhibit G Working Drawings and Tenant Improvement Work
---------
o. Authority. Each individual executing this Lease represents that it has
---------
all requisite power and authority to execute and deliver this Lease on behalf of
the entity for which it is signing, and by his or her signature, will bind such
party to the terms of this Lease.
p. Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
27
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
LANDLORD: M & S BALANCED PROPERTY FUND, L.P.
a California limited partnership
By: MSBMS, a California corporation,
General Partner
By: /s/ [ILLEGIBLE]
------------------------------------
Its: President
------------------------------------
Date: Sept 20 , 1999
------------
TENANT: ▇▇▇▇▇▇▇ COM, LLC,
a Delaware limited I liability company
By: /s/ [ILLEGIBLE]
-------------------------------------------
Its: EVP
-------------------------------------------
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Its: EVP & CFO
-------------------------------------------
Date: 8/23/99 , 1999
------------
28
EXHIBIT A
Floor Plan Of The Premises
18th Floor Plan
June 24, 1999
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
[CHART HERE]
A-1
EXHIBIT B
Description Of The Real Property
Legal Description
All that certain real property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. County of Salt Lake, State of Utah, described as
follows:
Beginning at the Northeast corner of Lot 6, Block 74, Plat "A" Salt Lake City
Survey, and running thence South 166 feet; thence West 82.5 feet; thence North 1
foot; thence West 82.5 feet; thence North 80.5 feet; thence East 7 feet; thence
North 84.5 feet; thence East 158 feet to the point of beginning.
B-1
EXHIBIT C
Confirmation Of Lease Term
This Confirmation is made as of _________________,199_,between M & S
BALANCED PROPERTY FUND, L.P., a California limited partnership ("Landlord") and
▇▇▇▇▇▇▇ COM, LLC, a Delaware limited liability company ("Tenant").
Landlord and Tenant have entered into that certain 136 East South Temple
Lease (the "Lease") dated _______________,1999, in which Landlord leased to
Tenant and Tenant leased from Landlord certain premises consisting of
approximately 3,585 rentable square feet, situated on the 18th floor of the
office building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇.
Pursuant to Section 2 of the Lease, Landlord and Tenant hereby confirm the
---------
Commencement Date and Expiration Date of the term of the Lease as follows:
______________________ is the Commencement Date of the term of the Lease.
______________________ is the Expiration Date of the term of the Lease.
LANDLORD: M & S BALANCED PROPERTY FUND, L.P.,
a California limited partnership
By: MSBMS, a California corporation,
GENERAL PARTNER
By: ________________________________
Its:________________________________
TENANT: ▇▇▇▇▇▇▇ COM, LLC,
a Delaware limited liability company
By: _____________________________________
Its:_____________________________________
By: _____________________________________
Its:_____________________________________
C-1
EXHIBIT D
Form Of Tenant Estoppel Certificate
TENANT ESTOPPEL CERTIFICATE
---------------------------
Tenant: ▇▇▇▇▇▇▇ Com, LLC, a Delaware limited liability company
Premises Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ (the "Property")
Suite: ______ Area: 3,585 Sq. Ft. (Rentable)
Date of Lease: August 23, 1999
Date(s) of Lease Amendment(s): _________________________________________
Commencement Date: _____________________________________________________
Expiration Date: _______________________________________________________
Current Base Monthly Rental: $__________________________________________
Base Monthly Rental Increases: _________________________________________
Operating Expense and Tax Base Year(s): $_______________________________
Percentage Share of Operating Expenses and Taxes: __________%
Current Monthly Payments of Operating Expenses and Taxes: $_____________
Security Deposit: ______________________________________________________
Guarantor: None
The undersigned, as Tenant under the Lease of the above-referenced premises
("Premises") executed by M&S Balanced Property Fund, L.P. ("Landlord"), as
Landlord, and Tenant on the above-referenced date, does hereby represent,
certify and covenant to ___________________ ("Buyer") ("Lender"), and its
assignees, as follows:
1. Lease. The copy of the Lease, including all addenda and amendments thereto,
-----
attached hereto as Exhibit A is a true and correct copy of the Lease which is in
------- -
full force and effect and which has not been further amended, supplemented or
changed by letter agreement or otherwise.
2. Completion of Premises / No Disputes. Tenant has accepted possession of all
------------------------------------
of the premises and all conditions to be satisfied by Landlord under the Lease
have been satisfied pursuant to the terms of the Lease, including but not
limited to, completion of construction of any required improvements to the
Premises except those listed below.
_________________________________________________________________________
_________________________________________________________________________
3. No Defaults / Claims. Neither Tenant nor Landlord is in default under any
--------------------
terms of the Lease nor has any event occurred which with the passage of time
(after notice, if any, required by the Lease) would become an event of default
under the Lease. Tenant has no disputes, claims, counterclaims, defenses or
setoffs against Landlord or liens against the Property arising
D-1
from the Lease. Tenant is not entitled to any concessions, rebate, allowance or
free rent for any period after this certification, not is Landlord obligated to
construct or install any additional improvements in the Premises except those
listed below
_________________________________________________________________________
_________________________________________________________________________
4. No Advance Payments: Security Deposit. No rent or other amount payable
-------------------------------------
under the Lease has been paid in advance by ▇▇▇▇▇▇ except the current month's
rent. Landlord has no obligation to segregate the security deposit (if any) or
to pay interest thereon.
5. No Extension, Purchase or Termination Rights. Tenant has no option and no
--------------------------------------------
right of first refusal to purchase the Property or any interest therein and no
right to cancel or terminate the Lease or extend the term of the Lease.
6. No Sublease / Assignment. Tenant has not entered in any sublease,
------------------------
assignment or other agreement transferring any of its interest in the Lease or
the Premises.
7. No Notice. Tenant has not received notice of any assignment, hypothecation,
---------
mortgage, or pledge of Landlord's interest in the Lease or the rents or other
amounts payable thereunder, nor any violation of any federal, state, county or
municipal laws, regulations or orders related to the use or condition of the
Premises or the Property except those listed below:
_________________________________________________________________________
_________________________________________________________________________
8. Hazardous Materials. No Hazardous Material has been used, treated, stored
-------------------
or disposed of on the Premises by Tenant. Tenant does not have any permits or
identification numbers issued by the United States Environmental Protection
Agency or by any state, county or municipal agencies with respect to its
operations on the Premises, except those listed below. For the purposes hereof,
-------------------------
the term "Hazardous Material" shall mean any substance, chemical, waste or other
material which is listed, defined or otherwise identified as "hazardous" or
"toxic" under any federal, state, local or administrative agency ordinance or
law or any regulation, order, rule or requirement adopted thereunder, as well as
any petroleum, petroleum product or by-product, crude oil, natural gas liquids,
liquefied natural gas, or synthetic gas usable as fuel, and "source", "special
nuclear" and "by-product" material as defined in the Atomic Energy Act of 1985,
42 U.S.C. (S) 3011 et seq.
_________________________________________________________________________
_________________________________________________________________________
9. No Modification of Lease. From the date of this Certificate through
------------------------
_____________, no modification or amendment to the Lease, forgiveness of payment
of rent or other amount due under the Lease, grant of extension or option, or
prepayment of rents more than one month in advance may be made except with the
written consent of Buyer.
10. Reliance: Buyers Rights. Tenant recognizes and acknowledges it is making
-----------------------
these representations to Buyer with the intent that Buyer or its assignees will
rely on ▇▇▇▇▇▇'s representations in connection with ▇▇▇▇▇'s acquisition of the
Property. All rent payments under the Lease shall continue to be paid to
Landlord in accordance with the terms of the Lease until Tenant is notified
otherwise in writing. As of the effective date of the purchase of the Property
by ▇▇▇▇▇, Tenant will recognize ▇▇▇▇▇ as landlord under the Lease. ▇▇▇▇▇▇
further acknowledges and agrees that ▇▇▇▇▇ and its successors and assigns
(including any entity
D-2
holding a Deed of Trust at any time after the date of this Certificate) shall
have the right to rely on the information contained in this Certificate.
11. Binding. The provisions hereof shall be binding upon and inure to the
-------
benefit of the successors, assigns, personal representatives and heirs of ▇▇▇▇▇▇
and ▇▇▇▇▇.
12. Due Execution and Authorization. The undersigned, and the person(s)
-------------------------------
executing this Certificate on behalf of the undersigned, are duly authorized to
execute this Certificate on behalf of Tenant and to bind Tenant thereto.
TENANT:
▇▇▇▇▇▇▇ COM, LLC,
a Delaware limited liability company
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
D-3
EXHIBIT E
RULES AND REGULATIONS
1. Tenant shall have access to the Building and the Premises at all times
during the Term, except to the extent otherwise necessary for emergencies,
maintenance or repairs, which maintenance and repairs shall be accomplished with
as little interference to Tenant as commercially reasonable. On Saturdays,
Sundays and legal holidays, and on other days between the hours of 6:00 P.M. and
8:00 A.M. the following day, or such other hours as Landlord shall determine
from time to time, access to the Property and/or to the passageways, entrances,
exits, shipping areas, halls, corridors, elevators or stairways and other areas
in the Property may be restricted and access gained by use of a key to the
outside doors of the Property, or pursuant to such security procedures Landlord
may from time to time impose. All such areas, and all roofs, are not for use of
the general public, and Landlord shall in all cases retain the right to control
and prevent access thereto by all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety, character, reputation and interests
of the Property and its tenants, provided, however, that nothing herein
contained shall be construed to prevent such access to persons with whom Tenant
deals in the normal course of Tenant's business unless such persons are engaged
in activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees. Tenant shall keep doors to corridors
and lobbies closed except when persons are entering or leaving.
2. Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Property, or on any part of the inside of
the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at Tenant's
expense all matter not so installed or approved without notice to Tenant.
3. Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without ▇▇▇▇▇▇▇▇'s
express consent in writing.
4. Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof are first approved by Landlord.
5. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Property
E-1
by moving or maintaining such furniture, freight or articles shall be repaired
by Landlord at Tenant's expense. Landlord may inspect items brought into the
Property or Premises with respect to weight or dangerous nature. Landlord may
require that all furniture, equipment, cartons and similar articles removed from
the Premises or the Property be listed and a removal permit therefor first be
obtained from Landlord. Tenant shall not take or permit to be taken in or out of
other entrances or elevators of the Property any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to remain in or
obstruct in any way, any lobby, corridor, sidewalk, passageway, entrance, exit,
hall, stairway, shipping area, or other such area. Tenant shall move all
supplies, furniture and equipment as soon as received directly to the Premises,
and shall move all such items and waste (other than waste customarily removed by
Property employees) that are at any time being taken from the Premises directly
to the areas designated for disposal. Any handcarts used at the Property shall
have rubber wheels.
6. Tenant shall not overload any floor or part thereof in the Premises,
or Property, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of safes and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
7. Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefor by Tenant. Tenant, upon termination of
its tenancy, shall deliver to Landlord all keys of offices, rooms and toilet
rooms which have been furnished Tenant or which Tenant shall have had made, and
in the event of loss of any keys so furnished shall pay Landlord therefor.
8. If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
▇▇▇▇▇▇▇▇'s direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Property and the Premises
and the needs of tenants of the Property, and shall not in any event connect a
greater load than such safe capacity.
9. Tenant shall not obtain for use upon the Premises janitor and other
similar services, except from Persons approved by Landlord. Any Person engaged
by ▇▇▇▇▇▇ to provide janitor or other services shall be subject to direction by
the manager or security personnel of the Property.
10. The toilet rooms, urinals, washbowls and other such apparatus shall
not be used for any purpose other than that for which they were constructed, and
no foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
Rule shall be borne by Tenant who, or whose employees or invitees, shall have
caused it. Tenant shall not cause any unnecessary labor by reason of ▇▇▇▇▇▇'s
carelessness or indifference in the preservation of good order and cleanliness
in and around the building.
E-2
11. The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties, without Landlord's prior written consent.
12. Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules. Tenant shall not at any time manufacture, sell, use or give away,
any spirituous, fermented, intoxicating or alcoholic liquors on the Premises,
nor permit any of the same to occur (except in connection with occasional social
or business events conducted in the Premises which do not violate any laws nor
bother or annoy any other tenants). Tenant shall not at any time sell, purchase
or give away food in any form by or to any of Tenant's agents or employees or
any other parties on the Premises, nor permit any of the same to occur (other
than in lunchrooms or kitchens for employees as may be permitted or installed by
Landlord, which does not violate any laws or bother or annoy any other tenant).
13. Tenant shall not make any room-to-room canvass to solicit business or
information or to distribute any article or material to or from other tenants or
occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
14. Tenant shall not waste electricity, water, heat or air conditioning or
other utilities or services, and agrees to cooperate fully with Landlord to
ensure the most effective and energy-efficient operation of the Property and
shall not allow the adjustment (except by ▇▇▇▇▇▇▇▇'s authorized Property
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
15. Tenant shall conduct no auction, fire or "going out of business" sale
or bankruptcy sale in or from the Premises, and such prohibition shall apply to
Tenant's creditors.
16. Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
17. Tenant will comply with all municipal, county, state, federal or other
governmental laws, statutes, codes, regulations and other requirements,
including without limitation, environmental health, safety and police
requirements and regulations respecting the Premises, now or hereinafter in
force, at its sole cost, and will not use the Premises for any immoral purposes.
18. Tenant shall not (i) carry on any business, activity or service except
those ordinarily embraced within the permitted use of the Premises specified in
the Lease and more
E-3
particularly, but without limiting the generality of the foregoing, shall not
(ii) install or operate any internal combustion engine, boiler, machinery,
refrigerating, heating or air conditioning equipment in or about the Premises,
(iii) use the Premises for housing, lodging or sleeping purposes or for the
washing of clothes, (iv) place any radio or television antennae other than
inside of the Premises, (v) operate or permit to be operated any musical or
sound producing instrument or device which may be heard outside the Premises,
(vi) use any source of power other than electricity, (vii) operate any
electrical or other device from which may emanate electrical or other waves
which may interfere with or impair radio, television, microwave, or other
broadcasting or reception from or in the Property or elsewhere, (viii) bring or
permit any bicycle or- other vehicle, or dog (except in the company of a blind
person or except where specifically permitted) or other animal or bird in the
Property, (ix) make or permit objectionable noise or odor to emanate from the
Premises, (x) do anything in or about the Premises tending to create or maintain
a nuisance or do any act tending to injure the reputation of the Property, (xi)
throw or permit to be thrown or dropped any article from any window or other
opening in the Property, (xii) use or permit upon the Premises anything that
will invalidate or increase the rate of insurance on any policies of insurance
now or hereafter carried on the Property or violate the certificates of
occupancy issued for the Premises or the Property, (xiii) use the Premises for
any purpose, or permit upon the Premises anything, that may be dangerous to
persons or property (including but not limited to flammable oils, fluids,
paints, chemicals, firearms or any explosive articles or materials), (xiv) do or
permit anything to be done upon the Premises in any way tending to disturb any
other tenant at the Property or the occupants of neighboring property nor (xv)
at any time go upon the roof of the building without prior approval from
Landlord.
19. The following Rules shall apply regarding the parking area:
(i) Parking shall be available in areas designated generally for
tenant parking, for such daily or monthly charges as Landlord may establish
from time to time. In all cases, parking for Tenant and its employees and
visitors shall be on a "first come, first served," unassigned basis, with
Landlord and other tenants at the Property, and their employees and
visitors, and other Persons to whom Landlord shall grant the right or who
shall otherwise have the right to use the same, all subject to these Rules,
as the same may be amended or supplemented, and applied on a non-
discriminatory basis. Notwithstanding the foregoing to the contrary,
Landlord reserves the right to assign specific spaces, and to reserve
spaces for visitors, small cars, handicapped individuals, and other
tenants, visitors of tenants or other Persons, and Tenant and its employees
and visitors shall not park in any such assigned or reserved spaces.
Landlord may restrict or prohibit full size vans and other large vehicles.
Landlord shall set aside a portion of the parking areas near the Building
entrance for parking by visitors of the tenants, including Tenant's
visitors.
(ii) In case of any violation of these provisions, Landlord may refuse
to permit the violator to park, and may remove the vehicle owned or driven
by the violator from the Property without liability whatsoever, at such
violator's risk and expense. Landlord reserves the right to close all or a
portion of the parking areas or facilities in order to make repairs or
perform maintenance services, or to alter, modify, re-stripe or renovate
the same, or if required by casualty, strike, condemnation, act of God, law
or governmental requirement, or any other reason beyond Landlord's
reasonable control. In the event access is denied for any reason, any
monthly parking charges shall be abated to the extent access is denied, as
▇▇▇▇▇▇'s sole recourse. Tenant acknowledges that such parking areas or
facilities may be operated by an independent contractor not
E-4
affiliated with Landlord, and ▇▇▇▇▇▇ acknowledges that in such event,
Landlord shall have no liability for claims arising through acts or
omissions of such independent contractor, if such contractor is reputable.
(iii) The parking areas shall be accessible twenty-four (24) hours a
day, provided that access may be controlled by a cardkey system; cars must
be parked entirely within the stall lines, and only small cars may be
parked in areas reserved for small cars; all directional signs and arrows
must be observed; the speed limit shall be 5 miles per hour; spaces
reserved for handicapped parking must be used only by vehicles properly
designated; every ▇▇▇▇▇▇ is required to park and lock his own car; washing,
waxing, cleaning or servicing of any vehicle is prohibited; parking spaces
may be used only for parking automobiles; parking is prohibited in areas:
(a) not striped or designated for parking, (b) aisles, (c) where "no
parking" signs are posted, (d) on ramps, and (e) loading areas and other
specially designated areas. Delivery trucks and vehicles shall use only
those areas designated therefor.
20. The directory of the building will be provided for the display of the
name and location of tenants only, and Landlord reserves the right to exclude
any other names therefrom. Any additional name that Tenant shall desire to be
placed upon the directory must first be approved by Landlord, and if so
approved, a charge will be made therefor.
21. Landlord may waive any one or more of these Rules for the benefit of a
particular tenant, but no such waiver by Landlord shall be construed as a waiver
of these Rules in favor of any other tenant nor prevent Landlord from thereafter
enforcing any such Rules against any or all of the tenants of the building.
22. Tenant assumes any and all responsibility for protecting the premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
23. Landlord reserves the right to make such other and reasonable rules as
in its sole and absolute discretion may from time to time be needed for the
safety, care, efficiency, cleanliness, management and operation of the building,
and for the preservation of good order therein.
E-5
EXHIBIT F
Space Plan
18th Floor Plan
[CHART HERE]
F-1
EXHIBIT G
Working Drawings and Tenant Improvement Work
. WORKING DRAWINGS
----------------
The Working Drawings prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated August 4, 1999,
attached hereto as pages G-3 through G-13
. TENANT IMPROVEMENT WORK
-----------------------
Attached hereto as page G-2
G-1
Project: 136 East South Temple
------------------------------------
Tenant: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
------------------------------------
Rentable Area: 3,585
------------------------------------
Usable Area: 3,132
------------------------------------
T.I. Cost per Owner's
---- -------- -------
Cost R.S.F. Cost
---- ------ ----
Construction Cost:
Rcon Const. $77,046 $21.49
------------------------------------
------------------------------------
------------------------------------
--------- -------- --------
Total Contractor Cost: $77,046 $21.49 $ -
Construction Contingency @ 3% $ 2,311
--------- -------- --------
Space Planning/Working Drawings
estimated cost per square foot $0.60 $ 2,151
--------- -------- --------
Reimbursables (est): $ -
--------- -------- --------
Other: $ -
--------- -------- --------
Keying: $ -
--------- -------- --------
Window Treatment: $ -
--------- -------- --------
Signage: $ -
--------- -------- --------
Sub total: $81,508 $ -
--------- -------- --------
CM Fee($0.50/rsf) $ 1,793
--------- -------- --------
Total: $83,301 $23.24 $ -
========= ======== ========
Notes:
Deficiencies:
G-2
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
General Notes
[DIAGRAM APPEARS HERE]
G-3
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Specifications
[DIAGRAM]
G-4
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Demolition Plan
[DIAGRAM APPEARS HERE]
G-5
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Floor Plan
[DIAGRAM APPEARS HERE]
G-6
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Dimension Plan
[DIAGRAM APPEARS HERE]
G-7
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Suite 1810
Existing Ceiling Plan
[DIAGRAM APPEARS HERE]
G-8
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Power Plan
[DIAGRAM APPEARS HERE]
G-9
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Suite 1810
Door Schedule / Details
[DIAGRAM APPEARS HERE]
G-10
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Details
[DIAGRAM APPEARS HERE]
G-11
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Temple
Suite 1810
Interior Elevators
[DIAGRAM APPEARS HERE]
G-12
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Temple
Suite 1810
Interior Elevators
[DIAGRAM APPEARS HERE]