EXHIBIT 10.5
COMMERCIAL LEASE
THIS LEASE (the "Lease") dated this 12TH DAY OF NOVEMBER, 1996, is entered
into by and between DRAPER PARK NORTH, L.C., a Utah Limited Liability Company
("Landlord"), and KEYTEX CORPORATION, a Delaware corporation ("Tenant").
1. PREMISES.
(a) Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, for the term and subject to the terms and conditions hereinafter set
forth, to each and all of which Landlord and Tenant hereby mutually agree, those
certain premises ("Premises"), shown on Exhibit A (site-plan) attached hereto,
which include approximately 25,530 Rentable square feet of office space, the
exact Rentable and Usable sq. ft. to be determined by final space plan. For The
location of the Premises is commonly known as: 000 Xxxx Xxxxxxxx Xx., Xxxx.
#00, 0xx xxxxx, Xxxxxx, XX 00000 ("Building").
(b) In addition, the Premises shall include the appurtenant right to use,
in common with others, the site, parking and landscaped areas. Landlord shall
provide Tenant 5 non-reserved parking stalls per 1,000 Rentable square feet of
Premises in the adjacent parking lots of the Premises.
(c) Acceptance of Premises. Unless otherwise notified by Tenant within
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thirty (30) days of taking possession, by entry hereunder Tenant accepts the
Premises as being in the condition in which Landlord is obligated to deliver the
Premises. Tenant shall at the end of the term and any extension herein
surrender to Landlord the Premises and all alterations, additions and
improvements thereto in the same condition as when received; ordinary wear and
tear, damage by fire, earthquake, or act of God excepted. Landlord has no
liability and has made no representation to alter, improve, repair, or paint the
Premises or any part thereof, except as specified in Article 2(c), 2(d) & 6
herein.
2. TERM, OPTION, TENANT IMPROVEMENTS.
(a) Lease Term. The initial Lease Term shall be FIVE (5) years and shall
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commence December 15, 1996 ("Commencement Date"), with commencement of Lease
Term subject to space plan and building permit completed and approved by
November 15, 1996 and subject to substantial completion of Tenant Improvements.
Tenant shall not be responsible for Rents until Landlord delivers possession of
the Premises to Tenant. If Landlord is solely responsible for not delivering
possession of the Premises to Tenant within forty-five (45) days of the
Commencement Date, Tenant may upon ten (10) days written notice terminate the
Lease. In the event of Tenant's termination due to late delivery, Landlord
shall not be liable for such late delivery or failure to deliver possession of
the Premises.
(b) Option. Provided that Tenant is not in default under the Lease, and
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not later than one hundred eighty (180) days of expiration of the Lease or any
extension period herein, Tenant
may by written notice to Landlord extend the Lease by exercising a 5-year option
on a timely basis. Tenant shall possess the Premises during the option period
upon the same terms and conditions of the Lease, except that Base Rent under
Article 4(a) herein will be adjusted for the option period to the then fair
market rate for similar space in similar condition in the surrounding area.
(c) Base Building Improvements. At Landlord's sole cost and expense,
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Landlord shall design, construct and install the Building's roof and structural
elements ("Shell"), shall provide basic utility access to and an initial HVAC
unit for the Premises, and shall design and construct the common areas of the
Premises and Building, as more specifically outlined in Exhibit B - Base
Building Improvements (collectively "Base Building Improvements").
(d) Tenant Improvements. At execution of the Lease, Landlord shall
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commence the building design, construction and installation of agreed-upon
Tenant Improvements requested by Tenant ("Tenant Improvements"). Tenant is
responsible for costs of Tenant Improvements in excess of $ 18.00 per Usable sq.
foot as determined by final space plan. Tenant Improvements' shall include all
improvements to the Premises, but exclude the Base Building Improvements.
(e) Substantial Completion of Tenant Improvements. The Premises shall be
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deemed complete when Landlord has substantially completed Tenant Improvements.
"Substantial Completion" shall mean when (i) installation of Tenant Improvements
has occurred, (ii) Basic utility services are available to the Premises, (iii)
Landlord's Architect/Contractor shall have issued a Certificate of Substantial
Completion with respect to Premises or that portion of the Building within which
they are contained, whether or not Substantial Completion of the entire Building
itself shall has occurred, and (iv) issuance of a temporary Certificate of
Occupancy. Substantial Completion shall be deemed to have occurred
notwithstanding a requirement to complete "punch-list" work. Landlord shall use
its best efforts to advise Tenant of Substantial Completion at least thirty (30)
days prior to such date, but the failure to give such notice shall not
constitute a default hereunder by Landlord.
3. NON-OCCUPANCY OF IMPROVED SPACE.
In the event Tenant does not occupy the Premises and fails to pay Rents as
required in Article 4 of the Lease, all Tenant Improvements become due and
payable upon invoicing by Landlord. Further, such invoicing by Landlord does
not waive any other rights or remedies Landlord may have against Tenant for
failure to occupy.
4. RENT.
(a) Base Rent. Total Base Rent shall be $1.629.579.30, ($11.90 PER
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RENTABLE SQ. FT. ANNUALLY; 25,530 RENTABLE SQ. FT.; 3.5% INCREASE/YR; NUMBERS
ROUNDED TO 2 DECIMAL PLACES) calculated as follows:
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YEAR RENT/SQ. FT. ANNUAL BASE RENT MONTHLY BASE RENT
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Year 1 $11.90/Rent. sq. ft. $303,807.00 $25,317.25
Year 2 12.32 314,529.00 26,210.80
Year 3 12.75 325,507.50 27,125.63
Year 4 13.20 336,996.00 28,083.00
Year 5 13.66 348,739.80 29,061.65
payable in advance each month on or before the 1ST day of each month during the
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duration of the Lease, with the first and second such monthly rental payments
being due upon the execution of the Lease. Any partial months shall be prorated
accordingly. Base Rent will be increased (approximately 3.5% annually) during
the Lease Term, as indicated in the schedule above and subject to final space
plan, and during any Option period (after adjustment to fair market value at
beginning of any Option period). All Base Rent and Additional Rent
(collectively "Rents") shall be paid as follows, unless otherwise directed in
writing: Xxxxxx Park North, L.C.; Attn: Xxxxx Xxxxxxx; 0000 Xxxxx Xxxx; Xxxx
Xxxx Xxxx, XX 00000.
(b) Additional Rent. All obligations payable by Tenant under the Lease
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other than Base Rent are called "Additional Rent." Unless otherwise provided,
Additional Rent shall be paid with the next monthly installment of Base Rent
upon invoicing from Landlord.
(c) Interest, Late Charges, Costs and Attorneys' Fees. If Tenant fails to
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pay within ten (10) days of the date due any Rents which Tenant is obligated to
pay under the Lease, the unpaid amount shall bear interest at ten (10%) percent
per annum. Tenant acknowledges that any late payments of Rents shall cause
Landlord to lose the use of that money and incur costs and expenses not
contemplated under the Lease, including without limitation administrative,
collection and accounting costs, the exact amount of which is difficult to
ascertain. Therefore, in addition to interest, any payments not received by
Landlord within ten (10) days from the date it is due, Tenant shall also pay
Landlord a late charge equal to five (5%) percent of the late Rents. Further,
as Additional Rent, Tenant shall be liable to Landlord for costs and attorneys'
fees incurred as a result of late payments or non-payments. Acceptance of any
interest, late charge, costs or attorneys' fees shall not constitute a waiver of
any default by Tenant nor prevent Landlord from exercising any other rights or
remedies under the Lease or at law.
5. USE.
(a) The Premises shall be used for general office and warehouse, assembly,
equipment, testing and development, distribution purposes, and any other lawful
purpose incidental to Tenant's business, and no other, unless consented to in
writing by Landlord. Tenant shall not do or permit to be done in or about the
Premises or Building anything which is prohibited by or in any way in conflict
with (in the case of hazardous materials, Tenant shall notify Landlord of any
such materials and shall ensure that any such hazardous material is properly
controlled, safeguarded, and disposed of) any and all laws, statutes,
ordinances, rules and regulations now in force or which may hereafter be enacted
or promulgated or which is
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prohibited by the standard form of fire insurance policy, or which will increase
the existing rate of or affect any fire or other insurance upon the Premises or
Building or any of its contents, or cause a cancellation of any insurance policy
covering the Premises or Building or any part thereof or any of its contents.
Tenant shall not do or permit anything to be done in or about the Premises or
Building which will in any way violate Rules or Regulations reasonably
promulgated by Landlord throughout the Lease, obstruct or interfere with the
rights of other tenants, or injure them, or use or allow the Premises or
Building to be used for any improper, immoral, or unlawful purpose, nor shall
Tenant cause, maintain or permit any nuisance, in, on or about the Premises or
Building or commit or suffer to be committed any waste in, on or about the
Premises or Building.
(b) Tenant shall not use the name of the Building in which the Premises are
located, in connection with any business carried on in said Premises (except as
Tenant's address) without written consent of Landlord.
(c) Tenant shall not manufacture, assemble or store materials inside the
common areas outside of Building.
6. LANDLORD'S SERVICES.
Landlord, at its sole expense, is only responsible to maintain the Shell of
the Premises and Building. All other operating services, including but not
limited to repairs, maintenance, common area utilities, tenant utilities, common
area janitorial, mutually-agreed tenant janitorial, sewer and garbage,
insurance, taxes, and property management on the Premises, Building, and common
areas shall be coordinated by Landlord, but are the financial responsibility of
the Tenant through prorated Operating Expenses as more fully outlined in Article
7 herein.
7. OPERATING EXPENSES - REPAIRS, MAINTENANCE, INSURANCE, TAXES AND PROPERTY
MANAGEMENT.
Since the Premises is part of a Building or group of buildings, Tenant is
responsible for a prorated share of Operating Expenses, including but not
limited to repairs, maintenance, common area utilities, tenant utilities, common
area janitorial, tenant janitorial, sewer and garbage, insurance, taxes, and
property management incurred in the operation and management of the Premises,
Building, and common areas as shall be reasonably determined by the Landlord
(recent approximation for normal business operations and hours at $4.52 per
Rentable sq. foot). Proration shall be on a square footage basis with all other
tenants and Tenant's proration shall be calculated by multiplying the Operating
Expenses by an equation, the numerator being the Rentable square feet of the
Premises and the denominator being the total Rentable square feet of the
Building. The Operating Expenses shall be prorated to Tenant and be payable by
Tenant as Additional Rent on a monthly basis. Further, the following terms and
conditions apply:
(a) Tenant's prorated share of the Operating Expenses shall be computed and
paid in twelve (12) equal monthly estimated payments as determined in the
Landlord's reasonable discretion. Such Additional Rent shall be paid by Tenant
on or before the 1st day of each month
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with Base Rent. As soon as reasonably possible, but in any event within ninety
(90) days following the end of each calendar year, Landlord shall furnish to
Tenant a statement showing the Premises' and Building's actual Operating
Expenses for the preceding calendar year. In the case of a deficiency, Tenant
shall promptly remit its prorata share of such deficiency to Landlord. In the
case of a surplus, Landlord shall apply said surplus to the next Additional Rent
due from Tenant.
(b) Right to Review. Tenant may review at his sole cost and expense any
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Operating Expenses prorated to Tenant by Landlord, including assessed Real
Estate Taxes as may be statutorily allowed. Landlord shall make available the
applicable Operating Expenses' invoices and statements. However, any such
review must be requested and completed within sixty (60) days of receipt of the
annual statement.
8. ALTERATIONS.
(a) Tenant will not make or suffer to be made any alterations, additions or
improvements in excess of $1,000, excluding the initial Tenant Improvements,
(collectively "Alterations") to or upon the Premises, Building, or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written approval, which shall not be unreasonably withheld or
delayed. Any Alterations to or upon the Premises shall be made by Tenant at
Tenant's sole cost and expense and any contractor selected by Tenant to make the
same shall be subject to Landlord's reasonable prior written approval. All such
Alterations permanent in character, made in or upon the Premises either by
Tenant or Landlord, may at the option of Landlord, become Landlord's property
and, at the end of the term or any extension hereof, shall remain on the
Premises without compensation to Tenant unless Landlord requests that Tenant
remove any such Alterations. Notwithstanding the above, Tenant's work stations
and other items of personal property shall remain Tenant's property.
(b) Any Alterations shall, when completed, be of such a character as not to
lessen the value of the Premises or improvements as may be located thereon. Any
Alterations shall be made promptly, in a workmanlike manner, and in compliance
with all applicable permits, building and zoning laws, and with all other laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments, departments, commissions, boards and offices. The
costs of any Alterations shall be paid by Tenant, so that the Premises be free
of liens for services performed, labor and material supplied or claimed to have
been supplied. Before any Alterations shall be commenced, Tenant shall pay any
increase in premiums on insurance policies (provided for herein) or ensure
adequate coverage is in place for all risks related to the construction of such
Alterations and the increased value of the Premises.
9. PERSONAL PROPERTY & SIGNAGE.
Tenant will be allowed to place a monument sign adjacent to the Building.
Placement of signs on the exterior of the Building or monument, including the
type, size, and lighting of signs and the sign location and availability of
space, must be approved in writing by Landlord prior to
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installation. Such signs must be in compliance with applicable ordinances and
must be removed at the end of the Lease Term, or upon Tenant's failing to
possess the Premises.
10. LIENS.
Tenant shall keep the Premises and the Building free from any mechanics'
and/or materialmen's liens or other liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Tenant shall notify
Landlord in writing at least seventy-two (72) hours before any work or activity
is to commence on the Premises which may give rise to such liens to allow
Landlord to post and keep posted on the Premises any notices which Landlord may
deem to be proper for the protection of Landlord and the Premises from such
liens.
11. DESTRUCTION OR DAMAGE.
(a) If the Premises is partially damaged by fire, earthquake, or other Act
of God, Landlord shall repair the same at Landlord's expense, subject to the
provisions of this Article and provided such repairs can, in Landlord's
reasonable opinion, be made within sixty (60) days. During such repairs, the
Lease shall remain in full force and effect, except that if there shall be
damage to the Premises and such damage is not the result of the negligence or
willful misconduct of Tenant, Tenant's employees, agents, or invitees, an
abatement of Rents shall be allowed Tenant for such portion of Premises and
period of time as the Premises was unusable by Tenant.
(b) If in Landlord's reasonable opinion the partially damaged Premises can
be repaired, but not within sixty (60) days, the Landlord may elect, upon
written notice to Tenant within thirty (30) days of such damages, to repair such
damages over a longer time period and continue the Lease in full force and
effect, but with Rents partially abated as provided in Article 11(a). In the
event such repairs cannot be made within sixty (60) days, Tenant shall have the
option to terminate the Lease provided that written notice is given to Landlord
within thirty (30) days of receipt of Landlord's notice stated in this
paragraph.
(c) If the partially damaged Premises is to be repaired under this Article,
Landlord shall repair such damages to the Premises itself, and to the Tenant
Improvements supplied by Landlord herein. Except in the event of Landlord's
gross negligence or willful misconduct, Tenant shall be responsible for Tenant's
equipment, furniture and fixtures, and other alterations, additions and
improvements made by Tenant to the Premises and Building.
(d) If in Landlord's reasonable opinion, the Premises is totally or
substantially destroyed by fire or other casualty, the Lease shall terminate
upon notice by Landlord.
12. SUBROGATION.
Landlord and Tenant shall each, prior to Tenant's taking possession or
immediately after the execution of the Lease, procure from each of the insurers
under all policies of fire, theft, public liability, workmen's compensation and
other insurance now or hereafter existing during the term and any extension
hereof and purchased by either of them insuring or covering the
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Premises and/or Building or any portion thereof or operations therein, a waiver
of all rights of subrogation which the insurer might otherwise, if at all, have
against the other.
13. INDEMNIFICATION.
Tenant and Landlord hereby agree to indemnify and hold the other party
harmless from any damage to any property, including the release of any hazardous
materials, or injury to or death of any person arising from the use of the
Premises, Building, or common areas by Tenant or the ownership, management or
maintenance of the Premises, Building, or common areas by Landlord, except such
as is caused by reason of the negligent or willful act of the other party, its
agents, employees or contractors. The foregoing indemnity obligation of Tenant
and Landlord shall include reasonable fees, investigation costs and all other
reasonable costs and expenses incurred by Landlord or Tenant from the first
notice that any claim or demand is made, except in the event of the other
party's negligence or willful misconduct. The provisions of this Article shall
survive the Lease's termination with respect to any damage, injury or death
occurring prior to such termination.
14. COMPLIANCE WITH LEGAL REQUIREMENTS.
Tenant shall, at its sole cost and expense, promptly comply with all laws,
statutes, ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force, the requirements of any board of fire
underwriters or other similar body now or hereafter constituted, any direction
or occupancy certificate issued pursuant to any law by any public officer or
officers, as well as the provisions of all recorded documents affecting the
Premises, (collectively the "Applicable Laws"), insofar as any thereof relate to
or affect the use or occupancy of the Premises, Building, or common areas,
excluding requirements of structural changes now related to or affected by
improvements made by or for Tenant.
Landlord shall, at its sole cost and expense, promptly comply with all
Applicable Laws, including the American with Disabilities Act ("ADA"), insofar
as any thereof relate to or affect Landlord's obligations under the Lease, or
its ownership of the Premises, Building, or common areas, except for Tenant's
requirements in the immediately preceding paragraph herein.
15. INSURANCE.
(a) Commercial General Liability. Tenant shall maintain a Commercial
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General Liability policy including all coverages normally provided therein.
Such policies shall specifically name Landlord as an additional insured, with a
cancellation period of thirty (30) days prior written notice of a cancellation.
A Certificate of Insurance shall be provided to Landlord. All polices of
insurance shall be issued by responsible insurance companies licensed to do
business in the State of Utah.
The minimum limits of coverage acceptable are:
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(i) $1,000,000 Each Occurrence Combined Single Limit for Bodily
Injury and Property Damage and
(ii) $2,000,000 Annual Aggregate
(b) Premises and Building Insurance. Landlord shall insure the Premises
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and Building, including Landlord supplied Shell and Tenant Improvements, as
deemed necessary in Landlord's reasonable discretion. Tenant shall pay for such
insurance as outlined in Article 7 herein, involving Tenant's prorated share of
Operating Expenses. All policies of insurance shall be issued by responsible
insurance companies licensed to do business in the State of Utah.
(c) Tenant's Additional Insurance. Tenant may, at its sole cost and
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expense, cause all equipment, machinery, furniture and fixtures, personal
property, and Tenant Improvements supplied by Tenant from time to time used or
intended to be used in connection with the operation and maintenance of the
Premises, to be insured by Tenant against loss or damage. Except for losses
caused by Landlord's gross negligence or willful misconduct, Landlord is in no
way liable for any uninsured Tenant's property.
16. ASSIGNMENT AND SUBLETTING.
In the event Tenant should desire to assign the Lease or sublet the
Premises, Tenant shall give Landlord written notice of such desire at least
ninety (90) days in advance of the date on which Tenant desires to make such
assignment or sublease. Landlord shall then have a period of thirty (30) days
following receipt of such notice within which to notify Tenant in writing that
Landlord elects either (i) to terminate the Lease as of the date so specified by
Tenant, in which event Tenant will be relieved of all further obligations
hereunder, or (ii) to permit Tenant to assign or sublet such space, subject to
prior written approval of the proposed assignee by Landlord, such consent not to
be unreasonably withheld or delayed, so long as the use of the Premises by the
proposed assignee would be a permitted use and the proposed assignee is of sound
financial condition as determined by Landlord. If Landlord should fail to
notify Tenant in writing of such election within said thirty (30) day period,
Landlord shall have deemed to have waived option (i) above, but written approval
by Landlord of the proposed assignee shall still be required. Failure by
Landlord to approve a proposed assignee shall not cause a termination of the
Lease. Any rents or other consideration realized by Tenant under any such
sublease and assignment in excess of the Rents hereunder, after amortization of
the reasonable costs of extra tenant improvements for which Tenant has paid and
reasonable subletting and assignment costs, shall be divided and paid fifty
(50%) percent to Landlord and fifty (50%) percent to Tenant.
Notwithstanding the above, Tenant shall have the right to sublease or
assign all or any portion of the Premises during the Term or any Option period
to any related entity, subsidiary, or affiliate of Tenant, having at least
fifty-one (51%) percent direct common ownership, without having to receive
Landlord's consent, but still requiring written notice to Landlord on or before
such sublease or assignment. No assignment or subletting by Tenant shall
relieve Tenant of any obligation under the Lease. Any assignment or subletting
which conflicts with the provisions hereof shall be void.
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17. RULES.
Tenant shall faithfully observe and comply with all Rules and Regulations
reasonably promulgated by Landlord, in writing and after reasonable notice,
during the Term or any Option period herein. Landlord must apply rules
equitably against all Tenants, but shall not be responsible to Tenant for the
non-performance by other Building tenants, or adjacent buildings' tenants, of
any of said Rules and Regulations.
18. ENTRY BY LANDLORD.
The Landlord may enter the Premises or Building at reasonable hours and
upon 24 hours written notice to Tenant to (a) inspect the same, (b) show the
same to prospective purchasers, lenders or tenants, (c) determine whether Tenant
is complying with all of Tenant's obligations hereunder, (d) post notices of
non-responsibility or (e) make repairs required of Landlord under the Lease,
repairs to adjoining space or utility service, or make repairs, alterations or
improvements to the Building, provided that all such work shall be done as
promptly as possible and with as little interference to Tenant as reasonably
possible. Tenant hereby waives any claim for damages for any inconvenience to
or interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises occasioned by such entry. Landlord shall at all times have and
retain a key to unlock all doors in, on or about the Premises (excluding
Tenant's vaults, safes and similar areas designated in writing by Tenant). In
the event of an emergency, Landlord shall have the right to use any and all
means which Landlord may deem proper to enter the Premises, without notice, for
the limited purpose of abating as possible said emergency. Such emergency
entrance shall not be construed or deemed to be a forcible or unlawful entry
into or a detainer of the Premises or an eviction, actual or constructive, of
Tenant from the Premises, or any portion thereof.
19. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events ("Events of
Default") shall constitute a breach of the Lease by Tenant: (a) if Tenant fails
to pay Rents when and as the same becomes due and payable and such failure
continues for more than ten (10) days, or (b) if Tenant fails to pay any other
sum when and as the same becomes due and payable and such failure continues for
more than ten (10) days after written notice hereof; or (c) if Tenant fails to
perform or observe any material term or condition of the Lease, such failure
continues for more than thirty (30) days after written notice from Landlord, and
Tenant does not within such period begin with due diligence and dispatch the
curing of such default, or, having so began, thereafter fails or neglects to
complete with due diligence and dispatch the curing of such default; or (d) if
Tenant shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as they become due or shall file
a petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or
shall file a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file any answer admitting or shall
fail timely to contest the material allegations of a petition filed against it
in any such proceeding, or shall seek or consent
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to or acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or any material part of its properties; or (e) if within thirty (30) days
after the commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, such
proceeding shall not have been dismissed, or if, within thirty (30) days after
the appointment without the consent or acquiescence of Tenant, of any trustee,
receiver or liquidator of Tenant or of any material part of its properties, such
appointment shall not have been vacated; or (f) vacation or abandonment of the
Premises for a continuous period in excess of fifteen (15) days, or (g) if the
Lease or any estate of Tenant hereunder shall be levied upon under any
attachment or execution and such attachment or execution is not vacated within
ten (10) days or receipt thereof by Tenant.
20. TERMINATION UPON TENANT'S DEFAULT.
If an Event of Default shall occur, Landlord at any time thereafter may
give a written termination notice to Tenant, and on the date specified in such
notice (which shall not be less than three (3) days after service) Tenant's
right to possession shall terminate and the Lease shall terminate, unless on or
before such date all Rents, arrearages and other sums due by Tenant under the
Lease, including reasonable costs and attorneys' fees incurred by or on behalf
of Landlord, shall have been paid by Tenant and all other Events of Default by
Tenant shall have been fully cured to the satisfaction of Landlord. Upon such
termination, Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid Rents which had been
earned at the time of termination; plus
(b) the worth at the time of award of the amount by which the unpaid Rents
which would have been earned after termination until the time of award exceeds
the amount of such Rents loss that Tenant proves could have been reasonably
avoided; plus
(c) the worth at the time of award of the amount by which the unpaid Rents
for the balance of the term of the Lease after the time of award exceeds the
amount of such Rents loss that Tenant proves could be reasonably avoided; and
plus
(d) any other amount reasonably necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under the Lease or which in the ordinary course of things would be likely to
result therefrom; and/or
(e) At Landlord's elections, such other amounts in addition or in lieu of
the foregoing as may be permitted from time to time herein or by applicable law.
The "worth at the time of award" of the amounts referred to in clauses (a)
and (b) above is computed by allowing interest at the rate of 10% per annum.
The "worth at the time of award" of the amount referred to in clause (c) above
means the monthly sum of the Rents under the Lease. Failure of Landlord to
declare any default immediately upon occurrence thereof, or delay
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in taking any action in connection therewith, shall not waive such default, but
Landlord shall have the right to declare any such default at any time
thereafter.
21. CONTINUATION AFTER DEFAULT.
Even though Tenant has defaulted the Lease and abandoned the Premises, the
Lease shall continue in effect as long as Landlord does not terminate Tenant's
right to possession, and Landlord may enforce all of its rights and remedies
under the Lease, including the right to recover the Rents as they become due
under the Lease. Acts of maintenance or preservation or efforts to relet the
Premises or the appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under the Lease shall not constitute a termination of
Tenant's right to possession. If any fixture, equipment, improvement,
installation or appurtenance shall be required to be removed from the Premises
and/or Building by Tenant, then Landlord (in addition to all other rights and
remedies) may, at its election by written notice to Tenant, deem that the same
has been abandoned by Tenant to Landlord, or Landlord may remove and store the
same and restore the Premises to its original condition at the reasonable
expense of Tenant, as Additional Rent to be paid within ten (10) days after
written notice to Tenant of such expense.
22. LANDLORD'S DEFAULT.
If Landlord fails to perform or observe any of its Lease obligations herein
and such failure continues for thirty (30) days after written notice from
Tenant, or such additional time, if any, that is reasonably necessary to
promptly and diligently cure such failure after receiving written notice,
Landlord shall be in breach of the Lease (a "Default"). If Landlord commits a
Default, Tenant may pursue any remedies given in the Lease or under law.
23. LANDLORD'S RIGHT TO CURE DEFAULTS.
All terms and provisions to be performed by Tenant under the Lease shall be
at Tenant's sole cost and expense and without any abatement of Rents. If Tenant
fails to pay any sum of money, other than Rents, required hereunder or fails to
perform any other act required hereunder and such failure continues for thirty
(30) days after notice by Landlord, Landlord may, but shall not be obligated,
and without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such act on Tenant's part to be made or performed as
provided in the Lease. All sums paid by Landlord and all incidental costs shall
be deemed Additional Rent hereunder and shall be payable within ten (10) days of
written notice of such sums paid.
24. OTHER RELIEF.
The remedies provided for in the Lease are in addition to any other
remedies available to Landlord at law or in equity by statute or otherwise.
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25. ATTORNEYS' FEES.
In the event either party places the enforcement of the Lease, or any part
thereof, or the collection of any Rents, or recovery of the possession of the
Premises, or files suit upon the same, then the prevailing party shall recover
its reasonable attorneys' fees and costs.
26. EMINENT DOMAIN.
If all or any part of the Premises shall be taken or conveyed as a result
of the exercise of the power of eminent domain, the Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of a partial
taking, either Landlord or Tenant shall have the right to terminate the Lease as
to the balance of the Premises by written notice to the other within thirty (30)
days after such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the Premises
taken or conveyed shall be of such extent and nature as substantially to
handicap, impede or impair Tenant's use of the balance of the Premises. In the
event of any taking, Landlord shall be entitled to any and all compensation,
damages, income, rent awards or any interest therein whatsoever which may be
paid or made in connection therewith, and Tenant shall have no claim against
Landlord for the value of any unexpired term of the Lease or otherwise, provided
that Tenant shall be entitled to any and all compensation, damages, income, rent
or awards paid for or on account of Tenant's moving expenses, trade fixtures,
equipment and any leasehold improvements in the Premises, the cost of which was
borne by Tenant, to the extent of the then unamortized value of such
improvements for the remaining term of the Lease. In the event of a taking of
the Premises which does not result in a termination of the Lease, the monthly
rental herein shall be apportioned as of the date of such taking so that
thereafter the rent to be paid by Tenant shall be in the ratio that the area of
the Premises not so taken bears to the total area of the Premises prior to such
taking.
27. SUBORDINATION, ATTORNMENT & NONDISTURBANCE; AND ESTOPPEL CERTIFICATE.
At Landlord's request, Tenant agrees to execute, acknowledge, and deliver
within ten (10) days to Landlord a Subordination, Attornment & Nondisturbance
Agreement ("Subordination Agreement"), subject to Landlord's proposed form(s).
Such Subordination Agreement shall subordinate the Lease to any ground lease,
mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the Premises, Building or common areas, or any part
thereof, to any and all advances made on the security, and to all renewals,
modification, consolidations, replacements and extensions thereof, whether the
Lease is dated prior or subsequent to the date of said ground lease, mortgage,
deed of trust or other hypothecation or the date of recording thereof. Further,
at Landlord's request, Tenant agrees to execute, acknowledge, and deliver within
ten (10) days to Landlord an Estoppel Certificate, subject to Landlord's
proposed form(s). Such Subordination Agreement and Estoppel Certificate may be
relied upon by any prospective purchaser, mortgagee, or beneficiary under any
ground lease, mortgage, deed of trust, or any other hypothecation of the
Premises, Building, or common areas, or any part thereof. Notwithstanding such
Subordination Agreement, Tenant's right to
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quiet possession of the Premises shall not be disturbed so long as Tenant is not
in default under the Lease, unless the Lease is otherwise terminated pursuant to
its terms.
In the event that Tenant fails to execute, acknowledge, and deliver to
Landlord such Subordination Agreement and Estoppel Certificate (sample documents
attached hereto as Exhibits C & D) within ten (10) days of Landlord's request,
the parties herein expressly agree that Tenant shall be deemed in default of the
Lease without further notice. In the event of such Tenant default, the parties
herein further expressly agree that the Subordination Agreement and Estoppel
Certificate are deemed to have been executed by Tenant.
28. NO MERGER.
The voluntary or other surrender of the Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord terminate all or any existing subleases or subtenancies, or may, at the
option of Landlord, operate as an assignment to it of any or all such subleases
or subtenancies.
29. SALE.
In the event the original Landlord hereunder, or any successor owner of the
Premises, Building, or common areas shall sell or convey the Premises, Building,
or common areas, and the purchaser assumes the obligations of Landlord under the
Lease, all liabilities and obligation on the part of the original Landlord, or
such successor owner, under the Lease accruing thereafter shall terminate, and
thereupon all such liabilities and obligations shall be binding upon the new
owner. Tenant agrees to attorn to such new owner.
30. NO LIGHT, AIR OR VIEW EASEMENT.
Any diminution or shutting off of light, air or view by any structure
erected on lands adjacent to the Building shall in no way affect the Lease or
impose any liability on Landlord.
31. HOLDING OVER.
If, without objection by Landlord, Tenant holds possession of the Premises
after expiration of the Term or any Option period of the Lease, Tenant shall
become a tenant from month to month upon the terms herein specified, but at a
monthly Base Rent equivalent to 110% of the Base Rent at the end of the term or
extension period pursuant to Article 4, payable in advance on or before the 1st
day of each month. All Additional Rent shall also apply. Each party shall give
the other notice at least one month prior to the date of termination of such
monthly tenancy of its intention to terminate such tenancy.
32. ABANDONMENT.
If Tenant shall abandon or surrender the Premises, or be dispossessed by
process of law or otherwise, any personal property belonging to Tenant and left
on the Premises shall be deemed
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to be abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
33. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon execution of the Lease as security
deposit equal to a month's full Base Rent ("Security Deposit"). The Security
Deposit shall be held by Landlord as security for the faithful performance by
Tenant of all of the provisions of the Lease to be performed or observed by
Tenant. In the event Tenant fails to perform or observe any of the provisions
of the Lease to be performed or observed by it, then, at the option of the
Landlord, Landlord may (but shall not be obligated to do so) apply the Security
Deposit, or so much thereof as may be necessary to remedy such default or to
repair damages to the Premises caused by Tenant. In the event Landlord applies
any portion of the Security Deposit to remedy any such default or to repair
damages to the Premises caused by Tenant, Tenant shall pay to Landlord, within
thirty (30) days after written demand for such payment by Landlord, all monies
necessary to restore the Security Deposit up to the original amount. Any
portions of the Security Deposit remaining upon termination of the Lease shall
be returned.
34. WAIVER.
All waivers by either party herein must be in writing and signed by such
party. The waiver of any term or conditions herein shall not be deemed to be a
waiver of any subsequent breach of the same or any other agreement, condition or
provision herein contained, nor shall any custom or practice which may grow upon
between the parties in the administration of the terms hereof be construed to
waive or to lessen the right of either party to insist upon the performance by
the other party in strict accordance with said terms. The subsequent acceptance
of Rents hereunder by Landlord shall not be deemed to be a waiver of any breach
by Tenant of any term or condition of the Lease, regardless of Landlord's
knowledge of such breach at the time of acceptance of such Rents.
35. NOTICES.
All notices and demands which may or are required to be given by either
party to the other under the Lease shall be in writing and shall be deemed to
have been fully given when deposited in the United States mail, certified or
registered, postage prepaid, and addressed as follows: to Tenant at KEYTEX
CORPORATION; ATTN: XXXXXX X. XXXXXX; 000 XXXXXXX XX., XXXXX 000, XXX XXXXXXXXX,
XX 00000, or to such other place as Tenant may from time to time designate in a
notice to Landlord; to Landlord at XXXXXX PARK NORTH, L.C.; ATTN: XXXXX XXXXXXX,
MANAGER; 0000 XXXXX XXXX XXXXXX, XXXX XXXX XXXX, XXXX, 00000 or to such other
place as Landlord may from time to time designate in a notice to Tenant, or in
the case of Tenant, delivered to Tenant at the Premises. Tenant hereby appoints
as its agent to receive the service of all dispossessory or distraint
proceedings and notices hereunder the person in charge of or occupying the
Premises at the time, and if no person shall be in charge of or occupying the
same, then service may be made by attaching same on the main entrance of the
Premises.
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36. COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant affecting the
Lease, and the Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between Landlord
and Tenant with respect to the subject matter of the Lease. The Lease may not
be altered, changed or amended, except by an instrument in writing signed by
both parties hereto.
37. CORPORATE AUTHORITY.
The person(s) executing the Lease on behalf of the parties herein hereby
covenants and warrants that (a) such party is a duly authorized and validly
existing entity under the laws in which it was formed, (b) such party has and is
qualified to do business in Utah, (c) such entity has full right and authority
to enter into the Lease, and (d) each person executing the Lease on behalf of
such entity is authorized to do so.
38. GUARANTEE OF LEASE.
Tenant guarantees, upon execution of the Lease, to occupy the Premises.
Any failure to occupy the Premises does not release the Tenant from the
obligation of paying Rents or any other terms set forth herein.
39. MISCELLANEOUS.
(a) The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
(b) Time is of the essence on the Lease and each and all of its terms and
conditions.
(c) The terms and conditions herein shall apply to and bind the heirs,
executors, administrators, successors and assigns of the parties hereto.
(d) The captions of the Lease are solely to assist the parties and are not
a part of the terms or conditions of the Lease.
(e) The Lease shall be governed by and construed in accordance with the
laws of the State of Utah, and is deemed to be executed within the State of
Utah.
40. SEVERABILITY.
If any term provision of the Lease, or the application thereof to any
person or circumstance, shall to any extent be invalid or unenforceable, the
remainder of the Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of the Lease shall be valid and
shall be enforceable to the extent permitted by law.
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41. EXPANSION AND SUBLEASE.
In order to satisfy Tenant's expansion needs, Tenant and Landlord agree
that Landlord shall by separate agreement sublease from Tenant a portion of the
Premises.
42. BROKERS.
Tenant is represented by Xxxxxx Xxxxx of Wardley Better Homes and Gardens.
Landlord is represented by Prime Commercial, Inc. Agreed-upon commissions shall
be due and payable by Landlord; 50% upon execution, and 50% upon Tenant taking
possession.
IN WITNESS WHEREOF, the parties have executed the Lease dated the day and
year first above written.
TENANT, LANDLORD,
KEYTEX CORPORATION XXXXXX PARK NORTH, L.C.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------- --------------------------
Xxxxx X. Xxxxxxx, Manager
Its: CFO
--------------------
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EXHIBIT B
BASE BUILDING IMPROVEMENTS
The Base Building Improvements and systems as described below shall be
furnished by Landlord at Landlord's sole cost and expense. These include:
1. The Building structure will be designed for a minimum floor load of 50
lb. live load plus a 20 lb. partition dead load.
2. The Building shell will include a core consisting, elevator with
equipment room, stairwell enclosures, 1 man and 1 woman rest-room on each floor,
finished lobbies and exterior perimeter walls and windows and all building
columns.
3. A Concrete floor will be installed with a smoothed trowel finish for
installation of glued-down carpet. The Floor will be poured level and finished
in accordance with current ACI Standard Specifications 117.
4. A Life Safety system will be installed in accordance with the more
stringent of applicable national, state and local codes or the Americans with
Disabilities Act Regulations, throughout the Building, including all corridors,
stairwells and rest-rooms (strobes). The sprinkler system will be installed to
code and connected to alarms.
5. Electrical distribution will be provided to the main panel boxes in the
electrical closet on each floor. The electrical system shall be sized for seven
(7) xxxxx per usable square foot for Tenant's consumption, over and above base
building electrical requirements.
6. The Building will be equipped with a packaged-unit heating, ventilation
and air conditioning system sufficient for Tenant's anticipated occupancy
requirements. The system will be designed to maintain a space temperature
between 70-75 degrees F on a year-round basis, based on a maximum average
occupancy of one (1) person for each 150 square feet of usable area. The
requirements for ventilation shall comply with present ASHRAE (American Society
of Heating, Refrigeration and Air-Conditioning Engineers) standard 62-1989 as a
minimum requirement. Tenant shall be furnished with a price per ton for package
unit if additional air conditioning is required.
7. Telephone service, as provided by the local utility, will be brought to
Tenant's main telephone room.
8. Common corridor walls and walls between tenant suites will be provided
with the side finished only to the common areas.
9. Roadways necessary for Tenant's access to and egress from the Building,
along with parking, landscaping and sprinklers.
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