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EXHIBIT 10.2
LEASE
THIS LEASE, made this 22nd day of November, 1996 between CAPITOL
PROPERTIES FOUR, L.C. a Utah limited liability company, hereinafter called
"Lessor" and CIMETRIX INC., a Nevada Corporation, hereinafter called "Lessee."
WITNESSETH:
Lessor hereby lets to Lessee, and Lessee hereby leases from Lessor the
following described premises:
Approximate address: 0000 Xxxxx 000 Xxxx
Xxxxxxx, XX 00000
Approximate size: Office 22,300 square feet
Assembly 8,400 square feet
Warehouse 1,300 square feet
Term of lease: Five (5) Years
Beginning date: April 1, 1997
Ending date: March 31, 2002
Monthly rent: $20,078.00
Prepaid rent: $40,156.00
1. RENT. Lessee hereby agrees to pay to Lessor, as rent for said premises
TWENTY THOUSAND SEVENTY EIGHT and NO/100 DOLLARS ($20,078.00) per month during
the term of this lease, payable in advance on or before the first day of each
and every month, with the last two month's rent paid upon execution of this
lease ($40,156.00) and the first month's rent shall be paid upon Lessees
occupancy.
In the event Lessee shall fail to pay said rentals on the due date or
within ten (10) days thereafter, a late charge of five (5) percent of the
monthly rental shall be added to the rental and paid to the Lessor for each
such late payment; provided, however, that the total late charges in any year
shall not exceed eighteen (18) percent of the annual rental due hereunder.
2. CONSTRUCTION AND CONDITION OF PREMISES. Lessor, at its own expense,
will complete the space in the building on the premises in accordance with the
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approved floor plan and outlined specifications therein, which is attached
hereto as Exhibit "A", and will deliver possession of said premises to Lessee
on or before the beginning of the term in good condition and repair, ready for
occupancy by Lessee, and free of all tenancies and occupancies, subject,
however, to delays occasioned by strikes, adverse weather conditions, acts of
God and other causes beyond the control of Lessor. In the event of such
delays, the effective beginning date of this lease will be the first day of the
month following completion of the building; provided, however, that the Lessee
may take possession immediately upon completion of the building and pay rent
pro-rated from such date until the first day of the following month.
3. USE OF PREMISES. The leased premises shall be used for offices and
for any other lawful purpose involved in the normal business of Lessee not in
violation of this lease.
4. UTILITIES. Lessee shall pay for all utilities.
5. LESSEE'S EQUIPMENT, ALTERATIONS AND SIGNS. Lessee shall have the
right to erect such partitions and install electrical or mechanical equipment
or fixtures desirable for use in Lessee's business and may at any time before
the end of this lease remove all of the same, even though attached to the
premises, providing only that in making such removal, Lessee shall repair any
damage caused to the premises. Lessee shall have the right to erect on the
premises such signs as may be reasonably necessary to identify and advertise
the Lessee and its business upon condition that Lessor gives written consent
to any such improvements, signs or alterations and that any such meet
zoning/code requirements.
6. MAINTENANCE OF PREMISES AND MECHANICAL EQUIPMENT.
(a) Lessor shall keep the premises and roof in good structural condition
and repair during the term of the lease and shall be responsible for
maintaining the building mechanical, electrical and plumbing equipment in good
condition, for the first year of occupancy in said space.
(b) Lessee shall be responsible for and pay for all janitorial services
and after the first year of occupancy in said space, Lessee shall be
responsible for minor repairs, routine servicing and maintenance of the
mechanical equipment, including but not limited to Exhibit X. Xxxxxx shall be
responsible for major repairs to the mechanical equipment except where damages
are due to the negligence of the Lessee, its employees, agents or
representatives. Lessee shall also be responsible for maintenance of
electrical, and plumbing equipment. Servicing and maintenance shall include,
but not be limited to, proper lubrication, replacement of belts, filters,
refrigerant, fuses and light bulbs, fluorescent tubes and ballasts. Lessee
shall also be responsible for all alterations, modifications and special
equipment installed by Lessee.
(c) Lessor, upon reasonable notice to Lessee, shall have the right to
enter into and upon the premises during the usual business hours for the
purpose of inspecting the same and
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making such repairs or alterations as may be necessary for the safety and
preservation thereof, provided the same does not interfere with Lessee's
business.
(d) Lessee agrees to furnish and maintain such fire extinguishers as are
recommended or required by the fire department and/or insurance underwriters.
(e) Lessee shall reimburse Lessor for any costs incurred for replacement
of any and all broken glass in and about the premises, except glass broken by
Lessor or its agents.
(f) Where carpeting is provided over pad, chair mats shall be used under
all chairs used with desks. Where carpeting is glued down, chair mats are
recommended, but not required.
(g) Lessee shall reimburse Lessor for their pro-rata share of the
maintenance of landscaping and parking lot snow removal.
(h) Lessee shall be responsible for sweeping and snow removal of their
entrance walkway.
(i) Lessee is permitted to change any locks after notifying Lessor, AND
PROVIDED LESSEE SHALL GIVE LESSOR TWO KEYS FOR EACH NEW LOCK.
(j) If Lessor fails to perform any of its duties pursuant to this
paragraph as soon as reasonably possible after receipt of written notice of
such need from Lessee, Lessor agrees that Lessee may have the necessary work
done by a responsible contractor, selected after receiving three bona fide bids
for the required work, and deduct the cost of said work from the monthly rent.
(k) Lessee shall be responsible for its share of property management
expenses, which shall not exceed 1% of the lease gross income.
7. TAXES AND INSURANCE. Lessee shall pay for its portion of the property
taxes and fire insurance which is based on the ratio that its leased space
bears to the total leasable area in said premises (100%). This tax shall be
pro-rated from the date of entry and based on the taxes due in the tax years
(January 1 through December 31) of each year of occupancy. Lessee agrees to
pay this tax within ten (10) days after receipt of notice. Lessee further
agrees to pay any increase in the property taxes occasioned by any improvements
made by Lessee under Paragraph 5 above, and all taxes, assessments, license
fees and charges incidental to it's use of the premises. In the event the
taxes exceed the real market value, Lessor agrees to protest the taxes.
Lessee shall be solely responsible for all its property kept on the
premises and insurance coverage of Lessee's personal property and office
equipment.
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Lessee shall pay any special improvement district assessments levied
against the premises and shall provide fire insurance for the building during
the term of the lease.
8. DESTRUCTION OF PREMISES OR LOSS BY EMINENT DOMAIN. If the leased
premises are totally destroyed by fire or other casualty, or if all or
substantially all of the premises shall be taken under any condemnation or
eminent domain proceeding, then this lease shall terminate and the unearned
portion of the rent heretofore paid shall be returned to Lessee; provided,
however, that in the event of destruction by fire or other casualty, Lessor
shall have the right, with the consent of Lessee, to reconstruct or repair the
premises within a reasonable time, but no rent shall accrue or be payable
during the period that Lessee is deprived of the beneficial use of the
premises.
If the premises are partially destroyed by fire or other casualty or if
part of the premises are taken under condemnation or eminent domain proceeding,
and the remainder, in the judgment of Lessee, either is or is not reasonably
suitable for its business, then this lease shall either terminate or Lessee may
at its discretion continue to lease the remainder at a reduced rent determined
by the proportional loss of beneficial use of the premises. In the case of
fire or casualty, Lessor shall have the right to repair, within a reasonable
time, any damage, but no rent shall accrue or be payable on the damaged area
until repairs are completed.
9. LIABILITY INSURANCE AND INDEMNITY. Lessee agrees to indemnify and
hold harmless the Lessor from any and all claims of any kind or nature arising
from Lessee's use of the premises during the term hereof, and Lessee hereby
waives all claims against Lessor for damage to goods, wares or merchandise or
for injury to persons in and upon the premises from any cause whatsoever except
as might result from the negligence of Lessor or Lessor's representatives or
from failure of Lessor to perform its obligations hereunder within a reasonable
time after notice in writing by Lessee requiring such performance by Lessor.
Lessee shall at all times during the term hereof keep in effect in responsible
companies liability insurance in the name of and for the benefit of the Lessee
and Lessor with limits as follows:
Bodily Injury/Property Damage $2,000,000.00
Single Limit Coverage $2,000,000.00
Such insurance may, at Lessee's election, be carried under a general
blanket policy. A renewal policy shall be procured not less than ten (10) days
prior to the expiration of any policy. A satisfactory certificate of the
insurer evidencing insurance carried, with proof of payment of the premium,
shall be deposited with Lessor at his request. Lessee shall have the right to
settle and adjust all liability claims against the insuring companies, without
subjecting Lessor to any liability or obligation.
10. RIGHT OF LESSOR TO SHOW PREMISES. Lessee, upon reasonable notice from
Lessor, shall permit inspection of the premises during the three (3) months
next
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preceding the expiration of this lease, by or in behalf of prospective Lessees,
providing that such inspection does not interfere with the conduct of Lessee's
business. Lessee shall permit, during the month preceding the expiration of
this lease, signs and notices indicating that the premises are to be let or for
sale to be posted and remain upon the premises.
11. ASSIGNMENT OF LEASE AND SUBLETTING. Lessee shall not assign this lease
or any part thereof or sublet all or part of the premises without Lessor's
written consent, which shall not be unreasonably conditioned, withheld or
delayed. However it shall not be necessary for Lessor's consent of assignment
to one of Lessee's subsidiary or affiliated companies. In any event of
assignment or subletting, Lessee shall remain liable for the performance of all
terms of this lease.
12. NOTICE OR DEMAND. Any notice, demand or communication under or in
connection with this lease may be served upon the parties hereto by mailing to
same by registered mail as follows:
Lessor: 0000 Xxxxx Xxxx Xxxxxx #000
Xxxx Xxxx Xxxx, XX 00000
Lessee: 0000 Xxxxx Xxxx Xxxx Xxxxx (185 West)
Xxxxxxx, XX 00000
or at such other address as may be designated in writing by the Lessor or
Lessee.
13. DEFAULT AND TERMINATION. Lessee shall be in default under the terms of
this lease if Lessee:
(1) fails to pay any rent of other amounts due hereunder within ten (10)
days after the same becomes due;
(2) fails to perform or observe any other of the terms, covenants, or
conditions of this lease for more than ten (10) days after written notice
thereof from Lessor;
(3) becomes bankrupt or insolvent, or any voluntary or involuntary
proceedings under any bankruptcy or debtor relief law are initiated by Lessee,
or Lessee makes any general assignment for the benefit of creditors; or
(4) abandons the premises and ceases to pay rent.
In each of the above events Lessor shall have a right of re-entry and is
entitled to recovery of the leased premises and/or to recover judgment for any
and all delinquent installments of rent or other amounts including court and
other costs and attorney fees. The parties agree that payment by Lessee and
acceptance by Lessor of past due rents or other amounts shall not operate as a
waiver of any other right arising because of any other default by Lessee.
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In addition, Lessor shall have the right to continue this lease and
collect all rents and other amounts as and when due, and this lease shall
continue in full force and effect until Lessor gives Lessee written notice of
intent to terminate Lessee's right to possession. On written notice of
termination, on account of default, Lessee shall immediately and peacefully
surrender possession to Lessor and Lessor shall be entitled to recover from
Lessee all damages sustained by Lessor by reason of such default and all unpaid
rents and other amounts due under the lease to the date of termination.
As security for payment of all sums payable by Lessee under the terms of
this lease, Lessee hereby grants to Lessor a Landlord's lien and security
interest in and to all trade fixtures, equipment, furnishings and other
personal property now or hereafter owned by Lessee and located in or upon the
premises during the term of this lease, equivalent to the amount owed at the
time of default. Lessee shall have no right to remove any of said property
unless and until all defaults are cured and Lessor shall have a lien on all
such property even though removed from the premises. All exemption laws are
hereby waived and such security interest shall be in addition to any statutory
lien or other lien or security interest given or which may be given to Lessor.
So long as Lessee is not in default under the terms of this lease, Lessee shall
have the right to remove from the leased premises all machinery, office
equipment, appliances, and any and all other trade fixtures and equipment
installed, whether or not attached to walls, floors, ceilings or woodwork, or
other part of said premises. All damages to the leased premises caused by such
removal shall be repaired by and at Lessee's sole cost and expense.
The rights and remedies of each party hereunder and those provided by
law shall be construed as cumulative and no one of them is exclusive of any
other right or remedy hereunder or allowed by law, and shall be continuing
rights, none of which shall be exhausted by being exercised on one or more
occasions. Waiver of any one default shall not be considered a waiver of any
other. Each party shall be entitled in a proper case to an injunction to
enforce any part or parts of this lease, or to prevent or terminate any
violation or default.
In the event the leased premises become vacated and Lessee ceases to pay
rent, during the term of this lease, Lessor or its representatives may re-enter
said premises using such force as may be necessary therefor, without being
liable therefor, and in addition to any other remedy provided by law or by this
lease, may at its option re-let said premises on behalf of Lessee, applying any
monies collected first to the payment of expenses and fees incurred in assuming
or obtaining possession, second to the payment of rent due hereunder, and third
to the payment of any other charges due to Lessor. Any surplus shall be paid
to Lessee, and Lessee shall remain liable for any deficiency in rent and costs.
14. Parking shall be provided according to the attached Exhibit B.
15. COVENANTS OF PARTIES. Lessor covenants that Lessee upon paying the
rents and keeping the covenants of this lease, shall lawfully, peaceably and
quietly hold and enjoy the premises for the aforesaid term. Lessee covenants
that it will not commit, or suffer
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to be committed, any waste of the leased premises. It is further understood
and agreed that the covenants and agreements contained herein are binding on
the parties hereto and their legal representatives, heirs and successors.
16. OPTION TO RENEW LEASE. If Lessee is not then in default under the
terms of this lease, Lessee shall have the option to renew this lease for one
five (5) year option period. Lessee shall notify Lessor of its intent to
exercise its option hereunder by written notice of such election no later than
90 days prior to the end of the initial term. The rental option period shall
be in proportion to the increase in the Department of Labor's Consumer Price
Index for Urban Wage Earners & Clerical Workers all items for all cities
Average Statistical Area on the basis of 1967 = 100%. The increase in the
Index which has occurred between the first and last month of the five year
lease term shall be the basis for the rent adjustment. Said rentals shall in
no event be less than the rental during the initial term of the lease.
17. HOLD OVER PROVISION. Should Lessee hold over the leased premises or
any part thereof after the expiration of the term of this lease, unless
otherwise agreed in writing, such holding over shall constitute a tenancy from
month to month only, and Lessee shall pay as monthly rental the then reasonable
value of the use and occupation of the leased premises, which shall not be
less, however, than the rent to be paid for the last month under this lease.
Upon expiration of this lease, thirty (30) days written notice to vacate from a
rent due date shall be required by either Lessee to Lessor, or Lessor to
Lessee, of either party's desire to have the space vacated.
Lessor and Lessee agree that if either defaults in any of the conditions
and terms of this lease, the defaulting party shall pay all costs and expenses,
including attorney fees, which may arise or accrue from enforcing this lease or
in obtaining possession of the premises or in pursuing any remedy provided by
the laws of the State of Utah whether by filing suit or otherwise.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto respectively executed
duplicate originals of this Lease as of the day and year first above written.
WITNESS CAPITOL PROPERTIES FOUR, L.C.
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Lessor
CIMETRIX, INC.
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Lessee
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EXHIBIT "C"
Service and maintenance of mechanical equipment to include the following:
ROOFTOP UNITS, FAN COILS W/CONDENSERS, FURNACES AND UNIT HEATERS:
1. Lubricate moving parts.
2. Inspect air filter, and replace as needed.
3. Adjust belts and replace if necessary.
4. Inspect all valves.
5. Install new batteries in thermostats if necessary.
6. Inspect and clean burner, ignitors and pilots.
7. Inspect flue and diverter.
8. Visually inspect heat exchanger.
9. Inspect refrigerant system and controls. (cost of refrigerant included)
10. Inspect safety controls.
11. Inspect and clean condensate pans and drains.
12. Brush clean air cooled condensers.
AIR FILTER CHANGING:
Four times a year including material and labor.
EVAPORATIVE COOLERS:
1. Inspect electrical connections.
2. Lubricate.
3. Inspect and adjust belts, replace when necessary.
4. Inspect fan and motor bearings.
5. Inspect reservoir pan, clean as needed.
6. Inspect controls.
7. Inspect water distribution system, adjust and clean as needed.
8. Inspect pads, replace as needed, including material and labor.
9. Install covers.
10. Provide seasonal startup and shut down.
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