1
Exhibit 10.6
OFFICE SPACE LEASE
THIS LEASE, dated September 9, 1996, is made and entered into by and between
Xxxxxxx Group, an L.C. (hereinafter referred to as "Landlord"), and Tomax
Technologies, Inc. (hereinafter referred to as "Tenant," whether one or more).
Landlord and Tenant hereby agree as follows:
1. Property and Improvements. Landlord is owner of a certain parcel of realty
(the "Property") situated at approximately 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx,
XX. There is currently situated on the Property, a building (the "Building")
intended for use as office space, together with a related parking area (the
"Parking Area") and other improvements necessary to enable to Building to be so
used (the Building, Parking Area and other improvements are hereinafter
collectively referred to as the "Improvements"). If the Improvements are not
currently complete, Landlord intends to cause them to be constructed and
completed substantially in accordance with the plans and specifications
describing the same.
2. Lease Premises. Landlord hereby leases to Tenant, and Tenant rents from
Landlord, the part of the 1st, 2nd, 3rd floors and basement of the Building as
outlined on the floor plan attached hereto as Exhibit "A" and incorporated
herein by this reference (such part of said floor is hereinafter referred to as
the "Premises"). During the term of this Lease, Tenant shall also have such
non-exclusive licenses with respect to the Building as may be reasonably
necessary to access to the Premises.
The area of the Premises as shown on Exhibit "A" is approximately 24,000 square
feet (which shall hereinafter be referred to as the "Usable Area" of the
Premises). For purposes of determining the rent payable hereunder, the Premises
are deemed to consist of 28,000 square feet of "Rentable Area," which square
footage has been arrived at by attributing to the Premises a portion of those
areas in the Building (the Building "Common Areas") which are not intended for
actual use and occupancy by lessees or which are intended to be used in common
by some or all of the lessees of space in the building.
3. Finishing of Premises. On or before October 1, 1996, Tenant shall deliver to
Landlord a detailed floor plan layout, including working drawings and
specifications, showing the partitions, improvements and installations desired
by Tenant in the Premises ("Tenant's Plans"), the Tenant's Plan to include
specifications regarding how the finishing obligations of Landlord described on
Exhibit "B" attached hereto and incorporated herein by this reference are to be
incorporated into the work. Tenant's Plans are to be in sufficient detail to
enable Landlord to obtain firm contracts for the necessary construction and
installations. Within 10 days after its receipt of Tenant's Plans, Landlord
shall notify Tenant of its approval of Tenant's Plans or its disapproval thereof
and the reasons therefor. If Tenant's Plans are disapproved by Landlord, Tenant
shall resubmit Tenant's Plans for Landlord's approval within 10 days after
notice of disapproval. This process shall continue until Tenant's Plans are
approved by Landlord.
1
2
After approval of Tenant's plans, Landlord or it's contractors shall perform the
construction and make the installations called for by Tenant's Plans. The cost
of the finishing obligations of the landlord described on Exhibit "B" shall be
borne by the Tenant. With the exception of such finishing obligations of
Landlord, all construction and installations called for by Tenant's Plans shall
be for Tenant's account and within 10 days after being invoiced therefore,
Tenant shall pay to Landlord an amount equal to Landlord's actual cost of such
construction and installation plus an amount equal to five percent (5%) of such
actual cost as payment to Landlord for overhead and supervision. At Landlord's
option, it may delay prosecution of such construction and installation until the
aforesaid amount has been paid by Tenant.
4. Term and Occupancy. The term of this Lease shall be for fifteen years,
commencing on April 1, 1997, and terminating on March 31, 2012. If the Premises
are not available or ready for occupancy on such scheduled commencement date,
the term shall commence on such later date as the Premises are ready for
occupancy, or on the date that Tenant commences occupancy of the Premises,
whichever date occurs first, and the termination date of the term shall be
extended to a date which corresponds with the period elapsed between the
scheduled commencement date and the extended commencement date, plus the balance
of the days remaining in that month if said extended termination date is a date
other than the last day of the month. Notwithstanding the foregoing, if the
commencement date has not arrived prior to the expiration of two years after the
date of this Lease, this Lease shall thereupon automatically cease to be of any
force or effect.
The Premises shall be deemed to be ready for occupancy upon substantial
completion of the work required to be accomplished by Landlord pursuant to the
forgoing Section 3, subject to such remaining "punch list" items as may be
subsequently completed without substantial impairment of Tenant's ability to use
and enjoy the Premises. In the event of any dispute over when the Premises are
ready for occupancy, the decision of the Landlord's architect shall be final.
If the Premises are not ready for occupancy on the scheduled commencement date,
Landlord shall not be liable in any manner to Tenant; but the rent and all other
charges under this Lease shall xxxxx for the period between the scheduled
commencement date and the extended commencement date. Notwithstanding the
foregoing, however, if the Premises are not ready for occupancy on the scheduled
commencement date due, in whole or in part, to Tenant's failure to timely
deliver Tenant's Plans or to timely pay amounts due from Tenant in accordance
with Section 3, the rent and all other charges shall not xxxxx, but rather
Tenant shall pay to Landlord such rent and other charges from and after the
scheduled commencement date.
Those provisions of this Lease which govern the general relationship of the
parties and do not relate specifically to the payment of rent or the use and
occupancy of the Premises shall be effective immediately upon execution of this
Lease.
5. Rent. Tenant shall pay to the Landlord as rent, exclusive of any other charge
to be paid by Tenant under this Lease, the sum of $10.00 per square foot for the
leased areas of the 1st, 2nd and 3rd floors and $5.00 per square foot for the
basement per year for the first two years of Lease term, with a rate escalation
at the commencement of years three and five, said increase to be determined.
Rent will be payable in equal consecutive monthly installments of $18,333.00
each, in advance on the first day of each month throughout the term hereof (if
any commencement date
2
3
of the term is other than the first day of the month, Tenant shall pay to
Landlord on such date, a pro rata share of the monthly rent, as rent for the
fractional calendar month with which the term hereof begins). Each rental
payment and other sum required to be paid by Tenant under this Lease shall be
delivered to Landlord at such place as Landlord may from time to time designate
in writing. Each installment of rent or other sum required under this Lease to
be paid by Tenant shall be paid to Landlord without any offset or deduction
whatsoever.
6. Prepaid Rent and Security Deposit. Upon execution of this Lease, Tenant shall
deposit with Landlord the sum of $29,000.00 (the "Deposit") as prepaid rent and
a security deposit. The Deposit shall be allocated as follows:
a. Prepaid Rent:
$12,000.00 of the Deposit shall be applied to rent due for the first month of
the Lease term.
$12,000.00 of the Deposit shall be applied to rent due for the last month of the
Lease term.
b. Security Deposit:
$5,000.00 of the Deposit shall be applied to a security deposit for the
performance by Tenant of the provisions of this Lease.
If Tenant is in default, Landlord shall have the right to use the Deposit, or
any portion thereof, to cure the default or to compensate Landlord for damage
sustained by it resulting from Tenant's default. Tenant shall, on demand,
immediately pay to Landlord the sum necessary to replenish the security deposit
to that initially deposited with the Landlord. If Tenant is not in default at
the expiration or termination of this Lease, Landlord shall return the Deposit
to Tenant. Landlord's obligations with respect to the Deposit are those of a
debtor and not a trustee. Landlord shall have the right to maintain the Deposit
separate and apart from Landlord's general and other funds. Landlord shall not
be required to pay to Tenant any interest on the Deposit.
In the event that this Lease is for any reason terminated before the end of the
full term, any rent paid for any period beyond the termination shall be
considered to be an additional security deposit.
In the event of an assignment or transfer of Landlord's interest under this
lease, Landlord shall have the right to transfer the security deposit to its
assignee or transferee, and Landlord shall thereupon be released from all
liability for the return of such Deposit. In the event of any permitted
assignment of this Lease by Tenant, the security deposit shall be deemed to be
held by Landlord as a Deposit made by the assignee, and the Landlord shall have
no further liability with respect to return of said Deposit to the assignor.
7. Operating Expenses. As used herein, the term "Operating Expenses" shall mean
and include all costs, expenses and amounts, determined through the accrual
method of accounting, which are incurred by Landlord during the period in
question or which all allocable to said period in question or which all
allocable to said period in connection with Landlord's ownership,
3
4
operation, management or maintenance of the Property, the Improvements, or any
portion or portions thereof. Said costs, expenses and amounts shall be
determined in accordance with the accounting procedures and business practices
customarily employed by Landlord, and shall include, but not limited to, the
cost of all of the following: real estate taxes and installments on special
assessments; any tax or other charge levied or assessed upon Landlord or upon
the rent payable under the Lease in lieu, in whole or in part of real estate
taxes or special assessments; all insurance which Landlord deems necessary or
advisable to obtain and maintain; permit and inspection fees; electricity; gas;
heating; air conditioning; water; sewer; other utilities; supplies and
materials; labor, maintenance and repairs; refurbishing; reasonable reserves for
replacement or repair of components or the Improvements; landscaping; janitorial
and security services; snow removal; professional fees; and reasonable
management fees. Notwithstanding the breadth of the foregoing, Operating
Expenses shall not include principal or interest paid by Landlord on any
mortgage or deed of trust affecting the Property or Improvements. In the event
the exact amount of any ingredient of the Operating Expenses is known at the
time it is necessary to determine such Expenses, Landlord's reasonable estimate
of the amount of such ingredient shall be used.
As used herein, the term "Proportional Share" shall mean a fraction whose
numerator is the Usable Area of the Premises and whose denominator is the total
Useable Area (as reasonably determined by Landlord) contained in the Building.
In addition to all other payments by Tenant to Landlord required by this Lease,
Tenant shall pay to Landlord, for each year or portion thereof during the term
of this Lease, Tenant's Proportional Share of the amount by which Operating
Expenses incurred in any lease year or portion thereof exceed the Operating
Expenses for the base calendar year of 1997.
At a time convenient for Landlord after the end of each calendar year (or, at
Landlord's option, at or about the end of the term of this Lease), Landlord
shall provide to Tenant a statement of Tenant's Proportional Share of excess
Operating Expenses. Within 30 days after its receipt to such statement, Tenant
shall pay the entire amount shown to be due. However, Landlord reserves and
shall have the right at any time to reasonable estimate Tenant's Proportional
Share of excess Operating Expenses for any current calendar year or portion
thereof and to require that Tenant pay to Landlord, on a monthly basis at the
same time the rent is payable under this Lease, the total amount of the estimate
divided by the total number of months included in the period covered by the
estimate. If Landlord exercises such right, Tenant shall thus pay the necessary
amount monthly, and within three months after the end of each calendar year
during which tenant has paid to Landlord such estimated payments, Landlord shall
render a statement to Tenant showing the difference between Tenant's actual
Proportional Share of excess Operating Expenses for such year or portion thereof
and the total amount of Landlord's estimate for the year or portion thereof
collected from Tenant. Tenant shall pay any shortage to Landlord within 10 days
after Tenant's receipt of such statement. Correspondingly, Tenant shall receive
a credit in the amount of any overpayment, which credit may be applied by Tenant
to subsequent payments due under this Section 7, so long as Tenant is not in
default under this Lease.
Tenant shall be required to make the annual payment called for in this Section 7
even though the term of the Lease has expired or terminated prior to the time
Landlord renders a statement for such payment. However, if the term of this
Lease has not been in effect for the entirety of the
4
5
annual or other period covered by a statement contemplated hereby, the amount
required to be paid by Tenant shall be determined through a proration which
takes into account the length of time that the term has been or was in effect.
Each of the final statements and determinations provided for above shall become
absolutely binding on Tenant, and not subject to challenge by Tenant, one year
after the time the statement in question is furnished to Tenant, unless prior to
the expiration of such one-year period Tenant furnished Landlord with a writing
wherein Tenant disputes such statement and determination.
8. Parking. During the term of this Lease, Tenant and its employees shall have a
license to use a total of 30 parking spaces situated within such portion or
portions of the Parking Area as Landlord may from time to time designate for
that purpose. Unless and except during such periods s Landlord designates the
specific parking spaces that are to be used by Tenant and its employees, Tenant
and its employees shall not have the exclusive right to use any particular
parking spaces. Rather, Tenant and its employees shall have a license to use
parking spaces, in the above-specified number, situated within the portion or
portions of the Parking Area then designated by Landlord for such purpose.
Tenant and its employees shall only park vehicles within the area or areas (or
in the specific parking spaces, in the event Landlord designates specific
spaces) in the Parking Area that are from time to time designated for use by
Tenant and shall not park elsewhere within the Parking area or on the Property.
At no time shall Tenant and its employees use, in the aggregate, more than the
total number of parking spaces specified at the outset of this paragraph.
During the use of this Lease, Tenant, along with other Building Tenants, shall
also have a license to use as parking for its visitors and business invitees, a
total of 39 parking spaces situated within such portion or portions of the
Parking Area as Landlord may from time to time designate for that purpose.
Unless and except during such periods as Landlord designates the specific
parking spaces that are to be used by Tenant for visitor parking purposes,
Tenant shall not have the exclusive right to have its visitors and business
invitees use any particular parking spaces. Rather, Tenant shall have a license
to use (as parking for its visitors and business invitees) parking spaces, in
the above-specified number, situated within the portion or portions of the
Parking Area then designated by Landlord as reserved for such purpose. Tenant
shall cause its visitors and business invitees to park vehicles only within the
area or areas ( or in the specific parking spaces, in the event Landlord
designates specific spaces) in the Parking Area that are from time to time
designated for use by Tenant's visitors, and shall not allow its visitors or
business invitees to park elsewhere within the Parking Area or on the Property.
At no time shall Tenant or the employees of Tenant park any vehicles in any of
the parking spaces or areas that are designated as visitor parking for Tenant.
Landlord shall have no obligation t ensure that the parking rights of Tenant
provided for in this Section 8 are not impaired or violated by other parties,
including lessees, occupants or users of the Improvements.
9. Use. Tenant shall use the Premises only as office space and for purposes
ordinarily incidental to such use. Tenant shall not make nay use of the Premises
which would in any way increase the cost of fire or other insurance on the
Building or limit any portion of the coverage thereunder. Tenant shall not
commit any waste upon the Premises and shall not conduct or allow any business,
activity or thing on the Premises which is or becomes unlawful, prohibited or a
5
6
nuisance, or which may be an annoyance or cause damage to Landlord or other
lessee, occupants or uses of the Improvements. Tenant shall comply with and
abide by all laws, ordinances and regulations of all municipal, county, state
and federal authorities which are not in force or which may hereafter become
effective with respect to use and occupancy of the Premises. Tenant shall not
overload the floor of the Premises. Tenant shall not obstruct or use for other
than their intended purposes any part of the Property, Parking Garage or
Building Common Area, including entries, halls, elevators, stairways and toilet
rooms.
10. Services and Utilities. Tenant shall have use of the Premises during
reasonable hours of generally recognized business days, subject to approval by
the Landlord and subject to the rules and regulation of the Building and Tenant
is responsible for 86% of the total Building costs for electricity for normal
lighting, office machines, heat and air conditioning, water usage, replacement
of light bulbs, janitorial services, garbage removal, grounds maintenance and
upkeep, and any and all other normal and customary operating expenses associated
with the Building. Tenant, at its cost and expense, shall provide telephone
service to the premises, and Tenant shall pay all charges for such services.
11. Care of Premises. By taking possession of the Premises, Tenant shall be
deemed to have accepted the Premises as being in good order, condition and
repair. Tenant shall: (a) maintain the Premises in clean and sanitary condition
(but Landlord shall furnish service described in Section 10 above); (b) Maintain
the Premises in as good condition and repair as they were in at
12. Alterations. Subsequent to the initial finishing that occurs pursuant to
Section 3, tenant at its cost and expense and with no right to reimbursement
from Landlord, may make changes, additions and improvements to the Premises to
better adapt the Premises for its use and occupancy; provided, however, that any
such change, addition or improvement shall (a) equal or exceed the then-current
standard for Building and utilize only new and first-grade materials; (b) be in
conformity with all applicable laws and ordinances; (c) be made only with the
prior written consent of Landlord; (d) be made pursuant to plans and
specifications approved in writing by Landlord, and upon obtaining any required
permits and licenses; (e) be made only after Tenant has provided Landlord such
indemnification and/or bonds, in such form and amount as may be satisfactory to
Landlord, to protect against claim and liens for labor performed and materials
furnished; and (f) be carried out only by persons or entities approved in
writing by Landlord, who, if required by Landlord, shall deliver to Landlord
before commencement of the work, proof of such insurance coverage as Landlord
may require, with Landlord named as an additional insured. Any such change,
addition or improvement shall be done only at such item and in such manner as
Landlord may specify. Tenant shall promptly pay the cost thereof. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all liens,
claims and liabilities, including attorney's fees, which may arise out of or be
connected in any way with such change, addition or improvement. Any increase in
property taxes on or insurance cost for the Building attributable to such
change, addition or improvement shall be borne by Tenant of Landlord's invoice
thereof.
13. Rules and Regulations. Landlord shall have and reserves the right from time
to time to adopt, promulgate, amend and supplement rules and regulations
applicable to the property, the Improvements and the use and operation thereof.
Provided that such rules and regulations are
6
7
reasonable and do not discriminate against Tenant in favor of other lessees of
space in the Building, Tenant agrees to comply with and observe all such rules
and regulations. Tenant's failure to do so shall constitute a default under the
terms of this Lease just as if such rules and regulations were contained herein
as covenants. Landlord shall not be responsible to Tenant for enforcement of any
such rules and regulations against other parties, including other tenants of
space in the Building.
14. Landlord's Financing. Tenant agrees that this Lease shall automatically be
subordinate to the lien of any firs-position mortgage or deed of trust now or
hereafter placed against the realty of which the Premises comprise a part and to
all renewals, modifications, supplements consolidations and extensions thereof,
provided, however, in the event that the holder of any such mortgage or deed of
trust shall so elect, its mortgage or deed of trust shall not be disturbed in
its possession of the Premises during the full term of this Lease. Tenant agrees
to execute such further documents in addition to this Lease as may be desired by
Landlord or by holder of any firs-position mortgage or deed of trust with
respect to the subordination arrangement that is provided for above.
In the event any proceedings are brought for foreclosure of, or in the event of
the exercise of the power of sale under, any mortgage or deed of trust covering
the Premises, Tenant shall attorn to the purchaser and shall recognize such
purchaser as the Landlord under this Lease.
Tenant recognizes that Landlord's ability from time to time to obtain loan
financing for the realty of which the Premises comprise a part may in part be
dependent upon the acceptability of the terms of this Lease to the lender
concerned. Accordingly, Tenant agrees that from time to time it shall, if so
requested by Landlord and if doing so will not substantially and adversely
affect Tenant's economic interest hereunder, join with Landlord in amending this
Lease so as to meet the needs or requirements of any lender which is considering
making or which has made a load secured by a mortgage or deed of trust affecting
the Premises.
15. Tenant's Insurance and Indemnity. Tenant shall provide and at all times
maintain comprehensive liability insurance covering the Premises, written by an
underwriter satisfactory to the Landlord, with minimum limits of liability,
regarding personal injury or death, of $1,000,000.00 per occurrence, and
regarding property damage, of $100,000.00 per occurrence. Landlord shall be
named as an additional insured and shall be furnished with a certificate of
insurance. The insurance policy shall contain provisions requiring 30 days
notice to Landlord prior to any cancellation or reduction in amount of coverage.
Tenant shall defend, indemnify and hold harmless Landlord from and against any
and all claims, costs and liabilities, including attorneys' fees, arising from
Tenant's use or occupancy of Premises, from the conduct of Tenant's business or
from any activity, work or thing done, permitted or suffered by Tenant or by any
of Tenant's agents, contractors or employees.
16. Destruction. Landlord shall have the right to terminate this Lease in the
event the Building is destroyed or damaged by fire, earthquake or other casualty
to such an extent that it is untenantable in whole or part. Any such right of
termination must be exercised through written notice given by Landlord to Tenant
within 60 days following the date of destruction or damage.
7
8
In the event of any other destruction or damage, or in the event Landlord does
not exercise the above-mentioned right of termination, Landlord shall proceed
with reasonable diligence to repair and reconstruct the Building. During the
period from destruction or damage until restoration, rent hereunder shall be
abated in the same ratio as that portion of the Premises which Landlord
determines is unfit for occupancy bears to the whole Premises. However, if
damage is due to the fault or neglect of Tenant or its agents, contractors or
employees, there shall be no abatement of rent.
Landlord shall not be required to repair any damage by fire or other cause to,
or to make any repairs or replacements of, any panels, decoration, office
fixtures, floor coverings, partitions or other property installed in the
Premises by Tenant. Tenant shall not be entitled to any compensation or damages
from Landlord for loss of the use of the whole or part of the Premises, Tenant's
personal property or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.
17. Condemnation. As used in this Section, the term "Condemnation Proceeding"
means any action or proceeding in which any interest in the property or in the
Improvements is taken for any public or quasi-public purpose by any lawful
authority through exercise of the power of eminent domain or by purchase or
otherwise in lieu thereof. if the whole of the Premises is taken through
Condemnation Proceedings, this Lease shall automatically terminate this Lease in
the event any portion of the improvements (whether or not including the
Premises) or of the Property is taken which, in Landlord's judgment,
substantially interferes with the ability to operate or use the Property and
Improvements for the purposes for which they were intended. Any such right of
termination must be accomplished through written notice to the other party given
no later than 60 days after the later of the date of taking or the date on which
the condemning authority takes possession. In all other cases, or if neither
party exercises it's right to terminate, the Lease shall remain in effect. If a
portion of the Premises is taken, the rent payable hereunder shall be reduced in
proportion that the floor area taken bears to the original total floor area of
the Premises. Whether or not this Lease is terminated as a consequence of
Condemnation Proceedings, all damages or compensation awarded for a partial or
total taking, including any award for severance damage and any sums compensation
for diminution in the value or deprivation of the leasehold estate under this
Lease, shall be the sole and exclusive property of Landlord; provided, however,
that Tenant shall be entitled to any award for the loss of or damage to Tenant's
trade fixtures and removable personal property.
18. Assignment and Subletting. Tenant shall not, either voluntarily or by
operation of law, assign, transfer, mortgage or encumber this Lease or any
interest herein, or sublet the Premises or any part thereof, without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. A consent to one such transaction shall not be deemed to
be a consent to any subsequent transaction. Consent to any assignment or
subletting shall in no way relieve Tenant of any of its obligations under this
Lease. Any assignment or submitting without landlord's consent shall constitute
a default under this Lease.
19. Default by Tenant. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant: (a) the vacating
or abandonment of the
8
9
Premises; (b) the failure of Tenant to make any payment of rent within five days
after such payment falls due; (c) the failure by Tenant to make any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of 10 days after notice from Landlord that
said payment is due and payable; or (d) the failure by Tenant to observe or
perform any of the covenants, conditions or provisions of this Lease to be
observed or performed by the Tenant, other than those described above, where
such failure shall continue for a period of 30 days after written notice thereof
by Landlord to Tenant.
20. Remedies for Tenant's Default. In the event of any default or breach by
Tenant, Landlord may at any time, without waiving or limiting any other right or
remedy available to it, terminate Tenant's rights under this Lease by written
notice or by any lawful means, or reenter and take possession of the Premises
(with or without terminating this Lease), or pursue any remedy allowed by law.
Tenant agrees to pay to Landlord the cost of recovering possession of the
Premises, all expenses of relating, and any other costs or damages arising out
of Tenant's default. Notwithstanding any reentry or termination, the liability
of Tenant for the rent provided for herein shall not be extinguished for the
balance of the term of this Lease, and Tenant agrees to make good to Landlord
any deficiency arising from relenting the Premises at a lesser rent than applies
under this Lease. Any rent or other charges under this Lease not paid by Tenant
when due shall bear interest from the due date thereof at a rate of eighteen
percent (18%) per annum.
21. Late Charge. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and late charges which may be imposed upon Landlord under
the terms of any mortgage or deed of trust affecting realty that includes the
Premises. Accordingly, if any payment of rent or any other sum due from Tenant
is not received by Landlord or Landlord's designee within five days after said
amount is due, Tenant shall pay to Landlord a late charge equal to the greater
of $100.00 or five percent (5%) of such overdue amount. The parties hereby agree
that such let charge represents a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment make by Tenant. Such late
charge shall be in addition to, and not in lieu of, interest at the rate of
eighteen percent (18%) per annum until paid on any delinquent amounts owing in
connection with this Lease and any and all costs and expenses, including
attorney's fees, incurred by Landlord in collection or attempting to collect any
such delinquent amounts.
22. Default by Landlord. Landlord shall not be in default under this Lease
unless Landlord fails to perform an obligation required of it within 30 days
after written notice by Tenant to Landlord and to the holder of any first
mortgage or deed of trust covering the realty of which the Premises are a part
whose name and address have therefor been furnished to Tenant in writing,
specifying the respects in which Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than 30 days are reasonably required for performance or cure, then Landlord
shall not be in default if Landlord or such holder commences performance within
such 30-day period and thereafter diligently prosecutes the same to completion.
In no event shall Tenant have the right to terminate this Lease or to withhold
the payment of rent or other charges provided for herein as a result of
Landlord's default.
9
10
23. Attorney's Fees. If any action is brought to recover any rent or other
amount under this lease, or because of any default under or to enforce or
interpret any of the provisions of this Lease, or for recovery of possession of
the Premises, the party prevailing in such action shall be entitled to recover
from the other reasonable attorneys' fees (including those incurred in
connection with any appeal), the amount of which shall be fixed by the court and
made a part of and judgment rendered.
24. Estoppel Certificate. Tenant shall at any time from time to time, within
three days after receiving written request therefore from Landlord, execute,
acknowledge and deliver to Landlord a statement in writing (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease as so modified is
in full force and effect), and the date to which the rental and other charges
hereunder have been paid; and (b) certifying that there are not, to Tenant's
knowledge, and defaults on the part of Landlord hereunder, or specifying such
defaults if any are claimed; and (c) setting forth the date of commencement and
the date of expiration of the term hereof; and (d) setting forth such other
matters and Landlord may request. Any such statement may be relied upon by any
prospective purchaser or encumbrance of the realty of which the Premises are a
part.
25. Sale of Premises by Landlord. In the event of any sale or transfer by
Landlord of the realty of which the Premises are a part, Landlord shall be
entirely freed and relieved of all liability under any and all of its covenants
and obligations contained in this Lease arising out of any act, occurrence or
commission occurring after the consummation of such sale or transfer.
26. Notices. Any notice required or permitted hereunder to be given or
transmitted between the parties shall be either personally delivered or mailed
postage prepaid addressed, if to Landlord, at 000 Xxxxx 000 Xxxx, Xxxx Xxxx
Xxxx, XX 00000 (or such other address for not purposes as Landlord may hereafter
designate in writing). Any notice which is mailed shall be effective on the
second business day following its day of mailing.
27. Rights upon Termination. All alterations, additions and fixtures, other than
Tenant's movable personal property, which have been made or installed by either
Landlord or Tenant in the premises shall be Landlord's property and shall be
surrendered with the Premises as a part thereof. Notwithstanding termination of
the term of this Lease, Tenant shall be and remain liable to fully perform and
fulfill all of its obligations under this Lease relating to events occurring,
circumstances existing or obligations or claims arising or attributable to the
period prior to the date of termination.
28. Taxes and Tenant's Property. Tenant shall pay or cause to be paid, before
delinquency, any and all taxes payable during or attributable to any period
during the term thereof which are levied or assessed upon Tenant's leasehold
improvements, equipment, furniture, fixtures or personal property located in the
Premises (except that which has been paid for by Landlord and is the standard of
the Building). In the event any or all of Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property shall be assessed and taxed
with the Building, Tenant shall pay to Landlord its share of such taxes within
10 days after Landlord's delivery to Tenant of written statement setting forth
the amount of such taxes applicable to Tenant's property.
10
11
29. Access to Premises. Tenant shall permit Landlord to enter the Premises at
reasonable times for the purpose of cleaning, inspecting, altering and repairing
the Premises and ascertaining compliance with the provisions of this Lease by
Tenant. Landlord may also show the Premises to prospective purchasers, lessees
or mortgages at reasonable times.
30. Signs. Tenant, at its own cost and expense, shall cause to be installed on
the outside surface of the entrance door to the Premises, or on the wall area
adjacent to such entrance door, as Landlord may direct, a sign or lettering
which identifies the occupant of the Premises. such sign or lettering shall be
in such form, style, size color as Landlord may specify or approve.
31. Nonrecourse Provision. Anything in the Lease to the contrary
notwithstanding, Tenant agrees that it shall look solely to the estate and
property of Landlord in the Property and Improvements, subject to prior rights
of the holder of any mortgage or deed of trust, for the collection of any
judgment (or other judicial process) requiring the payment of money by Landlord
in the event of any default or breach by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed and/or performed by
Landlord, and not other assets of Landlord shall be subject to levy, execution
or other procedures for the satisfaction of Tenant's remedies.
32. Waiver and Cumulative Remedies. The waiver by Landlord of the breach of any
term, covenant or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition of any subsequent breach of the same or any
other term, covenant or condition. The subsequent acceptance of rent by Landlord
shall not be deemed to be a waiver of any preceding default by Tenant of any
term, covenant or condition of this Lease, other than the failure of tenant to
pay the particular rent so accepted, regardless of Landlord's knowledge of such
preceding default at the time of the acceptance of such rent. No remedy or
election hereunder shall be deemed exclusive but shall, whenever possible, be
cumulative with all other remedies at law or in equity.
33. Multiple Parties Tenant. If there is or comes to be more than one party that
constitutes Tenant hereunder: (a) their obligation shall be joint and several;
and (b) any notice required or permitted to be given to Tenant may be given by
or to any one of such parties and shall have the same force and effect as if
given by or to all of such parties.
34. Prior Agreements, Lease Amendments and Time Effective. This lease contains
all of the agreements of the parties hereto with respect to any matter covered
or mentioned in this Lease, and no prior agreements or understanding pertaining
to any of such matters shall be effective for any purpose. No provision of this
Lease may be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. This Lease shall not
be effective or binding on either party until fully executed by both.
35. Inability to Perform. In the event that either party hereto shall be delayed
or hindered or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, other labor troubles, inability to procure
materials, failure of power, restrictive government laws or regulations, riots,
insurrection, war or other reason not the fault of party delayed, then
performance of the action in question shall be excused for the period of delay
and the period for
11
12
the performance of such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Section 35 shall not, however,
operate to excuse Tenant from the prompt payment of rent or any other payments
required by the terms of this Lease.
36. Authority of Signatories. Each person executing this lease on behalf of
Tenant individually and personally represents and warrants that they are duly
authorized to execute and deliver the same on behalf of the entity for which
they are signing (whether it be a corporation, general or limited partnership or
otherwise), and that this Lease is binding upon said entity in accordance with
its terms.
37. Substitution. At any time after the execution of this Lease, Landlord may
substitute for the Premises other premises (the "New Premises") in the Building,
in which event the new Premises shall, as of the effective date of substitution,
be deemed to be the Premises for all purposes hereunder. The following
additional provision shall govern the arrangement established in this Section
38: (a) such right of substitution shall only apply if the Premises comprise
less than 1,200 square feet of Usable Area; (b) the New Premises must be similar
to the Premises in area of suitability for Tenant's purposes; (c) any such
substitution must be accomplished for the purpose of accommodating a lessee that
will occupy all or a substantial portion of the floor on which the Premises are
located; and (d) if Tenant is occupying the Premises at the time of such
substitution, Landlord shall pay the actual out-of-pocket expense of moving
Tenant and its property and equipment to the new Premises and shall, at its sole
cost, improve the New Premises with improvements substantially similar to those
located in the Premises. Landlord shall not be responsible for any other costs
that may be incurred by Tenant in connection with relocation.
38. Miscellaneous. All Exhibits, addenda, riders and provisions, if any,
attached to this lease are a part thereof. Tenant shall not record this Lease or
any memorandum or short form thereof without the written consent of Landlord.
Any provision of the Lease which may prove to be invalid shall in no way affect
or invalidate any other provision hereof, and such other provision shall be
valid to the maximum extent permitted by law. The headings and titles of the
various provisions of the Lease shall have no effect upon the construction or
interpretation of any part hereof. As used in the Lease, the singular shall
include the plural, the plural shall include the singular, the whole shall
include each part thereof, and any gender shall include both other genders. The
covenants and conditions herein contained shall, subject to the provisions of
Section 18 hereof, apply to and bind the heirs, personal representatives,
successors and assigns of the parties hereto. Time is the essence of this Lease
and of all its provisions in which performance is a factor. This Lease shall be
governed by the internal substantive laws of the State of Utah.
12
13
IN WITNESS THEREOF, the parties hereto have caused this Lease to be executed on
or as of the day and year first above written.
"Landlord": "Tenant":
Xxxxxxx Group, X.X. Xxxxx Technologies, Inc.
-------------------------------- ------------------------------------
0000 X. Xxxxxx Xxxxx 205 North 400 West
-------------------------------- ------------------------------------
Xxxx Xxxx Xxxx, XX 00000 Xxxx Xxxx Xxxx, XX 00000
-------------------------------- ------------------------------------
/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxxx
By By
------------------------------ ----------------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Title: Manager Title: Vice President
--------------------------- ------------------------------
13
14
ADDENDUM TO OFFICE SPACE LEASE
THIS LEASE ADDENDUM, date January 1, 1998, is made and entered into by and
between Xxxxxxx Group, an L.C. (hereinafter referred to as "Landlord"), and
Tomax Technologies, Inc. (hereinafter referred to as "Tenant," whether one or
more). Landlord and Tenant hereby agree that Tenant shall take over an
additional approximate 4,000 sq. ft. of office space in the building located at
000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, XX. All terms and conditions contained in
the original lease agreement pertaining to original space leased from Landlord,
including term of lease, applies to the additional space covered in this
addendum. The rate for the additional space is $10.00 per sq. ft. This brings
the total montly lease payment due to $21,666.67.
IN WITNESS THEREOF, the parties hereto have caused this Lease to be executed on
or as of the day and year first above written.
"Landlord": "Tenant":
Xxxxxxx Group, X.X. Xxxxx Technologies, Inc.
-------------------------------- ------------------------------------
0000 X. Xxxxxx Xxxxx 205 North 400 West
-------------------------------- ------------------------------------
Xxxx Xxxx Xxxx, XX 00000 Xxxx Xxxx Xxxx, XX 00000
-------------------------------- ------------------------------------
/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxxx
By By
------------------------------ ----------------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Title: Manager Title: VP Software Development
--------------------------- ------------------------------
1
15
ADDENDUM TO OFFICE SPACE LEASE
THIS LEASE ADDENDUM, date July 1, 1999, is made and entered into by and between
Xxxxxxx Group, an L.C. (hereinafter referred to as "Landlord"), and Tomax
Technologies, Inc. (hereinafter referred to as "Tenant," whether one or more).
Landlord and Tenant hereby agree that Tenant's rate of office space in the
building located at 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, XX shall increase to
$11.00 per sq. ft. for all 28,000 square feet currently being leased. All other
terms and conditions contained in the original lease agreement that have not
been addressed in this addendum or any previous addendums shall remain in
effect. This brings the total montly lease payment due to $25,666.67.
In addition, the notice address of the Landlord has been changed to address
listed below.
IN WITNESS THEREOF, the parties hereto have caused this Lease to be executed on
or as of the day and year first above written.
"Landlord": "Tenant":
Xxxxxxx Group, X.X. Xxxxx Technologies, Inc.
-------------------------------- ------------------------------------
0000 X. Xxxxxx Xxxxx 205 North 400 West
-------------------------------- ------------------------------------
Xxxx Xxxx Xxxx, XX 00000 Xxxx Xxxx Xxxx, XX 00000
-------------------------------- ------------------------------------
/s/ Xxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxxx
By By
------------------------------ ----------------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Title: Manager Title: SVP Development
--------------------------- ------------------------------
16
FIRST AMENDMENT TO OFFICE SPACE LEASE AGREEMENT
This First Amendment to Office Space Lease Agreement ("First Amendment")
is made and entered into this day of August, 2000, by and between XXXXXXX GROUP
L.C., a Utah limited liability company ("Landlord") and TOMAX TECHNOLOGIES INC.,
a Utah corporation ("Tenant").
WITNESSETH:
The parties entered into an Office Space Lease effective September 9,
1996, as amended by addenda dated January 1, 1998 and July 1, 1999, and desire
to amend certain provisions therein as set forth hereinafter.
NOW THEREFORE, in consideration of the mutual agreements and promises
set forth hereinafter, the parties hereto hereby agree as follows:
1. Paragraph 4 of the Office Space Lease is hereby amended to provide
that the Office Space Lease shall terminate upon sixty (60) days written notice
by the Tenant to the Landlord.
Capitalized Terms used in this First Amendment have the meanings
ascribed to them in the Office Space Lease. Except as modified as set forth in
this First Amendment, the Office Space Lease shall continue in full force and
effect.
DATED as of the date set forth above.
XXXXXXX GROUP X.X.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Title: Manager
-----------------------------------
TOMAX TECHNOLOGIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Title: CTO
-----------------------------------
