BASIC LEASE INFORMATION
TIMPANOGOS RESEARCH & technology park
office building lease agreement
Lease Date: as of May 7, 1999
"Tenant": Galaxy Mall, Inc., a Wyoming corporation
Address of Tenant: 000 Xxxxxxxxxx Xxxx Xx., Xxxx, XX 00000
Contact: Xxxxx X. Xxxxxx, CFO Telephone: (000) 000-0000
"Landlord": Novell, Inc., a Delaware corporation
Address of Landlord: 0000 Xxxxx Xxxxxxxxxx Xxx, Xxxx,
Xxxxxxx: Xxxxxx Xxxxxx Telephone: (000) 000-0000
"Adjusted Rental": "The sum of the annual Basic Rental and the annual
Excess Operating Expenses and Excess Taxes.
"Agency": Xxxxxxx X. Xxxxx and B. Xxxxxx Xxxxxxxx both of Xxxxxxx
Commercial Real Estate Services, Inc. represents Landlord
only and the Tenant represents themselves.
"Base Year": Calendar year 1999
"Basic Rental": $125,912 per annum ($10,493 per month) for the
first year. $129,727 per annum ($10,811 per month) for the
second year. $133,543 per annum ($11,129 per month) for the
third year. $137,358 per annum ($11,446 per month) for the
fourth year. $141,173 per annum ($11, 764 per month) for the
fifth year.
"Broker": Xxxxxxx Commercial Real Estate Services, Inc.
"Building": The Building located in the Park known as "Timpanogos
Research and Technology Park (TRTP)" and designated as
Building F on the site plan of the park attached hereto as
Exhibit A.
"Commencement Date": May 15, 1999
"Common Roadways": The private common roadways shown cross-hatched
on Exhibit A.
"Estimated Excess Landlord's estimate of the Excess Operating Expenses, which
Operating shall be paid by Tenant to Landlord on a monthly
Expenses": basis.
"Estimated Excess Landlord's estimate of the Excess Taxes, which
Taxes" shall be paid by Tenant to Landlord on a monthly basis after
the base year.
"Excess Operating (i) The amount by which the Operating Expenses per Square
Expenses": Foot of RA (defined in Exhibit E) for any calendar year
or portion thereof during the Lease Term exceeds the
Operating Expenses Per Square Foot of RA
(defined in Exhibit E) during the Base Year multiplied by
(ii) the RA of the Premises.
"Excess Taxes": The product of (i) the amount by which the Taxes per
Square Foot of RA (defined in Exhibit E) for any calendar
year or portion thereof during the Lease Term exceeds the
Taxes per Square Foot of RA during the Base Year, multiplied
by (ii) the RA of the Premises.
"Furniture": Subject to availability, Landlord shall provide furniture
for the Premises from its existing inventory at no extra
charge to the Tenant. If Tenant requires additional
furniture, and it is available for Tenant use from
Landlord's existing inventory, Landlord shall provide it at
no extra cost. Landlord and Tenant shall agree on a basic
set of components (see Attachment A, Furniture inventory
List) prior to installation. Tenant is responsible for any
items needing to be purchased over and above current
inventory, for all furniture layout, design, delivery (to
and from Premises as directed by Landlord), installation by
a Landlord approved installer. Tenant is also responsible
for any damage to the furniture and for a day-to-day
maintenance. Any furniture currently located in the Premises
that is not wanted by Tenant shall be returned to Landlord's
storage location as directed by Landlord and at Tenant's
expense. Tenant accepts furniture in its "as is" condition
and shall return it in as good a condition as received,
normal wear and tear excepted.
"Guarantor": None.
"Land": The land upon which the Building is located, which land is
shown hatched on Exhibit A1 attached hereto.
"Legal Requirements": Laws and ordinances of all federal, state,
county, and municipal governments, and rules, regulations,
orders and directives of all departments, agencies or
offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the
Premises, the Property, the Park or any portion(s) thereof.
"Park": All of the Park Buildings together with all of the land in
Timpanogos Research and Technology Park outlined on Exhibit
A attached hereto comprised of approximately NA acres and
all landscaping, driveways, roadways, parking areas and
other improvements now or hereafter located on such land.
"Park Buildings": The Buildings located in the Park including,
without limitation, Building F, which Park Buildings are
shown on the site plan of the Park attached hereto as
Exhibit A.
"Parking": Upon the terms set forth in Exhibit I attached hereto.
"Permitted Use": Tenant shall use and occupy the Premises for general
and executive offices, research, development and sales of
computer software, hardware, Internet sales, service and
support, and for no other use or purpose.
"Premises": Approximately 7,631 rentable square feet located on the 3rd
floor of the Building. The Premises are shown cross-hatched
on the floor plan attached hereto as Exhibit B.
"Property": Collectively the Land, the Building together with all
landscaping, driveways, parking areas and other improvements
now or hereafter situated on the land.
"Rentable Area Approximately 7,631 rentable square feet on the 3rd floor of
(or "RA") of the Building F.
Premises":
"Restrictive The covenants set forth on Exhibit H attached hereto, and
Covenants": any amendments or additions thereto pursuant to
Paragraph 45.
"Right of First Subject to prior rights of any other tenant,
Offer": Tenant shall have a Right of First Offer on the
rental space in Building F as it becomes available for lease
during the initial Term of the Lease, subject to the terms
and conditions of this Lease including Exhibit J attached
hereto.
"Security Deposit": $11,764 payable upon execution of the Lease.
"Security Landlord currently provides basic security
Services": services which includes card access, 24 hour security
patrols and limited camera surveillance. Landlord shall
provide one access card, without charge but subject to
change without notice, to each employee at the beginning of
the lease term and to each new employee when they are
employed. There will be a $15.00 charge, subject to
adjustment without notice, to the Tenant for each card that
needs to be replaced or changed for any reason and that is
not returned at the end of the lease. Landlord will provide
two keys to the locks on the corridor doors entering the
Premises, with additional keys to be furnished by the
Landlord at Tenant's expense. Any keys or locks needed
within the Premises shall be provided by the Landlord at
Tenant's expense. Landlord reserves the right to change
these services upon notice.
"Shared Park The Common Roadways, Hard Disk Cafeteria,
Facilities": Fitness Center and other facilities of the Park described on
Exhibit G attached hereto which are used in common on a
non-exclusive basis by all tenants of the Park. Landlord
reserves the right to change the availability and use of the
Shared Park Facilities.
"Signage": Tenant's name shall be placed on all building standard
signage at Landlord's expense. If Tenant occupies more than
50% of the rental space in Building F, they shall have the
right to an exterior building sign, subject to Timpanogos
Research and Technology Park (TRTP) covenants, conditions
and restrictions, and to Landlord's approval, which shall
not be unreasonably withheld. Sign to be in keeping with
TRTP standards and policies and shall be designed to
maintain the professional look of the park.
"Tenant Landlord shall provide a Tenant Improvement
Improvements": Allowance of $1.00 per sq. ft. ($7,631). Otherwise Tenant
accepts the Premises in its "as is" condition. Tenant to do
own cabling and wiring for data and phone connections and
shall provide their own telephony equipment.
"Term": The period commencing on the Commencement Date (as defined
below) and subject to and upon the terms and conditions set
forth herein or in any exhibit or addendum hereto,
continuing for sixty (60) calendar months thereafter
provided however, that if the Commencement Date falls on a
date other than the first day of a calendar month the
expiration date of the primary term shall be extended so as
to give effect to the full term specified above in addition
to the remainder of the calendar month during which the
Commencement Date falls.
The foregoing Basic Lease Information is hereby incorporated into and
made a part of the Lease attached hereto (the "Lease").
Each reference in the Lease to any of the information and definitions
set forth in the Basic Lease information shall mean and refer to the information
and definitions hereinabove set forth and shall be used in conjunction with and
limited by all references thereto in the provisions of the Lease. In the event
of any conflict between any Basic Lease Information and the Lease, the Lease
shall control.
LANDLORD: Novell, Inc., a Delaware corporation
Date: , 1999 By:
---------------------
Name:
Title:
TENANT: Galaxy Mall, Inc. a Wyoming corporation
Date: , 1999 By:
---------------------
Name:
Title:
TIMPANOGOS RESEARCH AND TECHNOLOGY PARK
OFFICE BUILDING LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of the Lease Date set forth in
the Basic Lease Information by and between the Landlord and Tenant named in the
Basic Lease.
1. Definitions and Basic Provisions.
The definitions and basic provisions set forth in the Basic Lease
Information (the "Basic Lease Information") executed by Landlord and Tenant
contemporaneously herewith are incorporated herein by reference for all purposes
and shall be used in conjunction with and limited by the reference thereto in
the provisions of this Lease. As used herein, the term "RA," when referring to
the Premises (defined in the Basic lease Information) shall mean and refer to
the rentable area of the Premises measured in accordance with the Building
Owners and Managers Association ("BOMA") method of measurement. The term RA,"
when referring to the Building or any other Park Building, shall mean the
aggregate total of all RA in the Building in question or in all of the Park
Buildings, as applicable. The Landlord reserves the right to re-measure the
Premises in accordance with BOMA standards, in which event the Basic Rental will
be immediately adjusted to reflect the change in the RA of the Premises.
2. Lease Grant.
Landlord, in consideration of the rent to be paid and the other
covenants and agreements to be performed by Tenant and upon the terms
hereinafter stated, does hereby lease, demise and let unto Tenant the Premises
commencing on the Commencement Date and ending on the last day of the Term
unless sooner terminated as herein provided.
3. Rent.
(a) Tenant shall pay to Landlord Adjusted Rental, which is the sum of
the monthly Basic Rental, the monthly Excess Operating Expenses and the monthly
Excess Taxes (as defined in the Basic Lease Information), as estimated by
Landlord from time to time, in monthly installments in advance on the first day
of each month in lawful money of the United States to Landlord at its address
set forth above (or such other address as Landlord shall designate in writing to
Tenant) without notice or demand and without any abatement, deduction or
set-off, for each month of the entire Term. One such monthly installment, shall
be payable by Tenant to Landlord upon the execution of this Lease. A like
monthly installment shall be due and payable without demand beginning on the
first day of the calendar month immediately following the month in which the
Commencement Date occurs and continuing thereafter on or before the first day of
each succeeding calendar month during the Lease Term. Rent for any fractional
month at the beginning of the Lease Term shall be prorated based on one-three
hundred sixty-fifth (1/365) of the current annual Adjusted Rental for each day
of the partial month this Lease is in effect, and shall be due and payable on or
before the first day of the calendar month immediately following the month in
which the Commencement Date occurs.
(b) If all of any sum due under this Lease is not received by its due
date, then Tenant, to the extent permitted by law, shall pay, in addition to the
sum owed, a late payment charge equal to five percent (5%) of the sum (or
portion thereof) which is overdue. If a check remitted t0 pay any sum due to
Landlord hereunder shall not be honored upon presentment for payment, then
Tenant in addition to the amount owed, shall pay to Landlord on demand a fee of
five percent (5%) of the amount owed. Following the dishonor of any check
presented for payment, Landlord may require all further payments to be made
hereunder to be made by certified check or money order. Also, if Landlord does
not receive any Adjusted Rental within thirty (30) days after the due date
thereof, or fails to pay any sum (other than Adjusted Rental) which at any time
becomes due to Landlord under any provision of this Lease as and when the same
becomes due hereunder, then, in either such event, Tenant shall pay Landlord
interest on such overdue amounts from the due date thereof until paid at an
annual rate (the "Past Due Rate') which equals the lesser of (i) eighteen
percent (18%) of (ii) the highest rate then permitted by law. All late payment
charges and fees for dishonored checks are to reimburse Landlord for additional
costs and expenses which Landlord presently expects to incur in connection with
the handling and processing of late or dishonored payments. Provision for such
late charge, interest or fee for dishonor shall be in addition to all other
rights and remedies available to Landlord hereunder or at law or in equity and
shall not be construed as liquidated damages or limiting Landlord's remedies in
any manner.
(c) Tenant's covenants and obligations to pay Adjusted Rental and all
additional rental (collectively, the "Rent") hereunder are unconditional and
independent of any other covenant or condition imposed on either Landlord or
Tenant, whether under this Lease, at law or in equity.
4. Security Deposit.
Landlord shall hold the Security Deposit without liability for interest
and as security for the performance by Tenant of Tenant's obligations under this
Lease. Tenant agrees that such deposit will not be considered an advance payment
of rental or a measure of Landlord's damages in case of default by Tenant.
Landlord may, from time to time, without prejudice to any other remedy, use such
deposit to make good any arrearage in any amount due hereunder and to reimburse
Landlord for any other damage, injury, expense or liability caused to Landlord
by any breach of this Lease. Following any such application of the Security
Deposit, Tenant shall pay to Landlord on demand the amount so applied in order
to restore the Security Deposit to its original amount. If Tenant is not then in
default hereunder, one-half (1/2) of any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant within a reasonable period of
time after the expiration of this lease. The balance of the Security Deposit
shall be held by Landlord until final computation of any sums (such as the
Excess Operating Expenses) which Tenant may owe under this Lease. If Landlord
transfers its interest in the Premises during the Lease Term, Landlord may
assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of the Security Deposit. Landlord shall not be
required to keep the Security Deposit separate from its general funds.
5. Leasehold Improvements.
If Landlord has agreed to construct improvements upon the Premises,
such improvements shall be installed as provided in Exhibit D attached hereto.
6. Landlord's Obligations.
(a) Subject to the following limitations, Landlord shall furnish Tenant
while Tenant is occupying the Premises and performing all of its obligations
under this Lease, facilities to provide (i) water (hot and cold) for lavatory
and cleaning purposes at those points of supply provided for general use of
tenants in the Building; (ii) heated and refrigerated air conditioning in
season, during Customary Business Hours (defined below), and at such
temperatures and in such amounts as are reasonably considered by Landlord to be
standard; (iii) janitorial service to the Premises as is reasonably considered
by Landlord to be standard on weekdays other than Holidays (as hereinafter
defined) and such window-washing as may from time to time in Landlord's judgment
reasonably be required; (iv) elevator service in common with other tenants;
provided that Landlord may limit the number of elevators in operation at times
other than Customary Building Hours; and (v) replacement of Building standard
light bulbs and fluorescent tubes. Also, Landlord shall maintain the public and
common areas of the Building in reasonably good order and condition; provided,
however, that Tenant shall reimburse Landlord for the cost of repairing any
damage to such areas occasioned by Tenant, or its employees, contractors agents
of invitees. The cost of these facilities and services shall be included in
Operating Expenses (as defined in Exhibit F). If Tenant desires any of the
services specified in this Paragraph 6 at a time or in an amount other than
times or amounts herein designated, such excess service or services shall be
supplied to Tenant, subject to availability, upon Tenant's request for such
services, which request shall be made in accordance with Landlord's normal
operating procedures. Tenant shall pay to Landlord as additional rent the cost
of such excess service or services (which may include a charge for depreciation
of Landlord's equipment) within fifteen (15) days after Tenant's receipt of a
xxxx therefore. "Customary Business Hours" means 7:00 a.m. to 7:00 p.m. Monday
through Friday, and Saturday 9:00 a.m. to 1:00 p.m., except Holidays. "Holidays"
means New Year's Day, Xxxxxx Xxxxxx Xxxx Day, Presidents Day, Memorial Day, the
Fourth of July, Labor Day, Thanksgiving Day, the Friday following Thanksgiving
and Christmas Day. After hours heating, ventilating, air conditioning (HVAC) and
electrical service shall be charged at the rate of $10 per hour with the Tenant
providing an honest report of after hours usage to the Landlord upon request. If
Tenant requests after hours services requiring service personnel, Tenant will be
charged for the cost of such service plus an additional charge of 15% of such
cost to cover overhead.
(b) Landlord shall make available to Tenant electric power facilities
in the Premises sufficient to furnish power for lighting, personal computers,
typewriters, voice writers, calculating machines and other machines of similar
low electrical consumption; provided, however, that Landlord shall not provide
power in excess of five (5) xxxxx per square foot of RA of the Premises. If, in
Landlord's judgment, Tenant's use of power exceeds that permitted by the
preceding sentence, Tenant shall bear the entire cost of the excess, including
without limitation, the cost of any metering devices which may be necessary to
determine the amount of such excess. Landlord shall also make available electric
lighting and current for the common areas of the Building in the manner and to
the extent deemed by Landlord to be standard.
(c) Landlord's obligation to make available the utilities described in
this Paragraph 6 is subject to the rules and regulations of the suppliers of
utilities and of any municipal or other governmental authority regulating the
business of providing utility services. Landlord shall not be responsible or
liable to Tenant for any loss, damage or expense that Tenant may sustain or
incur if either the quantity or character of any utility service is changed. Any
riser or risers or wiring to meet Tenant's excess electrical requirements will
be installed by landlord at Tenant's sole cost and expense (if approved by
Landlord in accordance with Paragraph 9 below). If heat generating machines,
equipment, fixtures or devices of any nature whatsoever which affect the
temperature otherwise maintained by the air conditioning system are used in the
Premises by Tenant, Landlord may install supplementary air conditioning units in
the Premises at Tenant's expense (including the cost of installation and the
cost of operation and maintenance thereof).
(d) Landlord's failure to any extent to make available, or any
slowdown, stoppage or interruption of, the service set forth in this Paragraph 6
resulting from any cause beyond Landlord's control (as defined in Paragraph 40)
shall not render Landlord liable in any respect for damages to person, property
or business, nor be construed an eviction of Tenant or work on abatement of
Rent, nor relieve Tenant from fulfilling any covenant or agreement hereof;
however, Landlord shall use reasonable efforts (and shall not be required to
employ any workers at overtime rates) to resume said services in a timely
manner.
7. Condition of Premises.
TENANT EXPRESSLY ACKNOWLEDGES THAT (A) TENANT HAS THOROUGHLY EXAMINED
THE PREMISES AND TAKES AND ACCEPTS THE PREMISES IN ITS "AS IS" CONDITION ON THE
COMMENCEMENT DATE, (B) LANDLORD AND LANDLORD'S AGENTS AND EMPLOYEES HAVE MADE NO
REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF THE PREMISES, THE BUILDING,
THE PROPERTY OR THE PARK, NOR HAS LANDLORD MADE ANY COMMITMENTS TO REMODEL,
REPAIR OR REDECORATE, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND (C) LANDLORD
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR
TENANT'S INTENDED COMMERCIAL PURPOSE. TENANT EXPRESSLY WAIVES AND RELEASES
LANDLORD FROM ANY OF SAME.
8. Use.
(a) Tenant shall use the Premises only for the Permitted Use (as
defined in the Basic Lease Information). Tenant shall not occupy or use the
Premises, or permit any portion of the Premises to be occupied or used, for any
business or purpose other than the Permitted Use or for any use or purpose which
is unlawful in part or in whole or deemed by Landlord to be disreputable in any
manor or extra hazardous on account of fire, nor permit anything to be done that
will in any way invalidate or increase the rate of insurance on the Building or
its contents. Tenant shall promptly upon demand reimburse Landlord for any
additional premium charged for any such insurance by reason of Tenant's failure
to comply with the provisions of this Paragraph. Tenant will conduct its
business and control its agents, employees and invitees in such a manner as not
to create any nuisance, interfere with, annoy or disturb other tenants or
interfere with Landlord in the management of the Building, the Property or the
Park. Tenant will maintain the Premises in a clean, healthful and safe condition
and will comply with all laws, ordinances, orders, rules and regulations of all
state, federal, municipal and other agencies or bodies having jurisdiction over
the Premises and governing the use, condition or occupancy of the Premises,
whether existing as of the Commencement Date or enacted subsequent thereto.
(b) If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof, Tenant shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord. Landlord agrees to cooperate with Tenant
and to execute such applications, certificates and other documents as Tenant
shall reasonably request in order for Tenant to procure or maintain any such
license or permit, provided that same is at no cost or expense to Landlord.
Tenant shall at all times comply with the terms and conditions of each such
license or permit. Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy the Premises, or do or permit anything to be done
in the Premises, in any manner which (i) violates the existing, permanent
Certificate of Occupancy for the Premises; (ii) causes or is likely to cause
injury to the Building or any equipment, facilities or systems therein; (iii)
constitutes a violation of the Legal Requirements; (iv) materially impairs the
character, reputation or appearance of the Building as Class A office Buildings;
or (v) materially impairs the proper and economic maintenance, operation and
repair of the Building and/or its equipment, facilities or systems.
9. Tenant's Repairs and Alterations.
(a) Tenant shall keep and maintain the Premises in a good, clean
condition of repair and maintenance. Tenant shall not damage or injure the
Premises. If any repairs or maintenance required to be performed by Tenant are
not commenced within fifteen (15) days and completed within thirty (30) days
after Landlord notifies Tenant of the need for same, Landlord may make such
repairs or replacement, and Tenant shall pay the cost thereof (plus an
additional charge of fifteen percent (15%) of such cost to cover overhead) to
Landlord within fifteen (15) days after Tenant's receipt of a statement from
Landlord. Tenant further agrees not to commit or allow any waste or damage to be
committed on any portion of the Property, and at the termination of this Lease,
by lapse of time or otherwise, Tenant shall deliver up the Premises to Landlord
in as good condition as at the Commencement Date, ordinary wear and tear
excepted. Except as may be set forth in Exhibit D, Landlord shall not be
required to make any improvements or repairs of any kind or character on or to
the Property, or any portion thereof, during the Lease Term. Notwithstanding the
foregoing, Landlord shall make all necessary repairs to the Building systems
servicing but located outside the Premises unless the need for such repair
arises out of (1) the performance by Tenant of any alterations or other work,
(2) any act or omission of Tenant or its employees, invitees or contractors or
(3) the installation of any equipment, fixtures or property by Tenant in the
Premises or the moving of the foregoing in or out of the Premises, in which
event Tenant shall be responsible to make the repairs.
(b) Tenant, without the prior written consent of Landlord, shall not
paint, install lighting or decorations (except wall hangings), or install any
signs, window or door lettering or advertising media of any type on or about the
Property, or any part thereof, or make any other alterations, improvements or
physical additions in or to the Property, or any part thereof. All alterations,
additions or improvements (whether temporary or permanent in character) made in
or upon the property, either by Landlord or Tenant, shall be Landlord's property
on termination of this Lease and shall remain on the Property without
compensation to Tenant or, at Landlord's option, Tenant shall restore those
portions of the Premises which Tenant altered, added to or improved to their
original condition. All furniture and unattached, movable trade fixtures and
equipment installed in the Premises by Tenant may be removed by Tenant at the
termination of this Lease if Tenant so elects. Landlord may require Tenant to
remove such items. If the items are not removed, landlord may elect that such
items will become Landlord's property. If removal occurs, Tenant, at Tenant's
expense, shall repair and restore to its original condition any portion of the
Premises which is damaged by such removal. All such installations, removals and
restorations shall be accomplished in a good workmanlike manner so as not to
damage the Premises or the primary structure or structural qualities of the
Building or any plumbing or electrical lines or other utility facilities. All
contractors used by Tenant in performance of any alterations or other work in
the Premises shall be subject to the approval of Landlord, such approval not to
be unreasonably withheld provided that with respect to any structural,
mechanical or electrical work (regardless of the cost thereof) Tenant will use
Landlord's contractors. If the cost of the alterations or other work to be
performed by Tenant as reasonably estimated by landlord shall exceed $30,000 (i)
Landlord shall have the right to require Tenant to use Landlord's architect and
(ii) Tenant shall at Landlord's option use Landlord, Landlord's property manager
or Landlord's outside construction manager as construction manager for the
project and Tenant shall pay to such construction manager a fee equal to 3% of
the cost of such alteration work. Notwithstanding anything herein to the
contrary, with respect to any non-structural alteration which (i) does not
affect any Building system or any portion of the Building outside the Premises
and (ii) does not cost more than $30,000, the consent of Landlord will not be
unreasonably withheld or delayed. In addition, with respect to painting and
other cosmetic work that does not cost more than $30,000 in the aggregate,
Landlord's consent shall not be required provided Landlord receives at least 10
days advance notice thereof. Promptly after Tenant completes any alteration, it
will deliver to Landlord a set of as-built drawings.
10. Assignment and Subletting.
(a) Tenant shall not, either voluntarily or by operation of law, assign
all or any portion of this Lease, nor sublet the Premises or any part thereof,
nor permit the Premises or any part thereof to be occupied by any person other
than Tenant or Tenant's employees, without the prior written consent of
Landlord. If Tenant desires to assign this lease or sublet the Premises or any
part thereof, Tenant shall so notify Landlord at least sixty (60) days prior to
the date on which Tenant desires to make such assignment or sublease, which
notice shall contain all material terms of the proposed assignment or sublease
and financial information regarding the proposed assignee or subtenant as a
condition of such sublease or assignment, Landlord may require plans to verify
compliance with Building and fire codes. Landlord may assess a reasonable fee
for review of such plans. If Tenant desires to assign this Lease, Landlord shall
have the option within thirty (30) days after receipt of such notice to notify
Tenant in writing that Landlord elects to terminate this Lease as of the date
specified by Tenant for said assignment. If Tenant desires to sublet more than
50% of the RA of the Premises, Landlord shall have the option within thirty (30)
days after receipt of such notice to notify Tenant in writing that Landlord
elects to terminate this Lease as of the date specified by Tenant for such
subletting. If Landlord fails to timely exercise the foregoing recapture right
or if the requested sublease does not trigger a recapture right on behalf of
Landlord, then Landlord shall have forty-five (45) days after receipt of such
notice to notify Tenant whether Landlord consents to such an assignment or
subletting. Landlord shall not unreasonably withhold or delay its consent to a
subletting provided that (a) the sublessee under any such subletting shall be
such person or entity as in the Landlord's judgment is of a character and
engaged in a business such as is in keeping with the standards of the Park and
its occupancy, (b) the sublessee shall have sufficient net worth to perform its
obligations under its sublease, (c) the sublessee shall not be a (i) government
or a governmental authority or a subdivision or an agency of any government or
any governmental authority, (ii) a tenant of the Landlord elsewhere in the Park,
(iii) an entity or person with whom the Landlord has negotiated (for purposes
hereof, "negotiated" shall mean exchanging of written proposals, leases being
prepared or drafts distributed and modified) for a proposed lease of space in
the Park at any time during the six (6) month period prior to the receipt of
said notice by the Landlord or (iv) competitor of Landlord and (d) the space so
to be sublet shall be regular in shape. If Landlord fails to notify Tenant in
writing of such election within said forty-five (45) day period, Landlord shall
be deemed to have denied consent to such assignment or sublease. If Landlord
consents to a sublease, Tenant shall provide, at its expense, direct access from
the sublet space to a public corridor of the Building in accordance with plans
and specifications approved by Landlord. No assignment or subletting by Tenant
shall relieve Tenant of any obligations under this lease. Landlord's consent to
any assignment, sublease or other transaction shall not be deemed a consent to
any other or subsequent transaction.
(b) If Landlord consents to any subletting or assignment by Tenant as
hereinabove provided and the rent, additional rent and other consideration
received by Tenant under or relating to such sublease exceeds the Rent payable
to Landlord under this Lease, or if Tenant receives any consideration from the
assignee under any such assignment, then 100% of such excess rents and
consideration under or relating to such sublease or 100% of such consideration
for any assignment shall automatically be due and payable by Tenant to Landlord
as additional rent hereunder.
(c) Landlord may transfer and assign, in whole or in part, its rights
and obligations hereunder concurrently with the transfer and assignment of all
or any portion of the Park and in such event and upon assumption by the
transferee of Landlord's obligations hereunder (any such transferee to have the
benefit of, and be subject to, the provisions of this Lease), no further
liability or obligation shall thereafter accrue against Landlord hereunder.
(d) If Tenant is a corporation, then any merger, consolidation,
dissolution or liquidation, or any change (whether in one or a series of
transactions) in ownership or power to vote of fifty percent (50%) or more of
its outstanding voting stock shall constitute an assignment of this Lease
requiring the consent of Landlord. If Tenant is a partnership, joint venture of
other entity, then any liquidation or dissolution, or any transfer of ownership
of interests totaling fifty percent (50%) or more of the total interests in such
entity (whether in one or a services of transactions) shall constitute an
assignment of this Lease requiring the consent of Landlord. The provisions of
this clause (d) shall not be applicable so long as the stock of Tenant is traded
at a recognized regional stock exchange.
(e) Tenant agrees that it shall not place (or permit the placement of)
any signs on or about the Premises or the Park, nor conduct (or permit anyone to
conduct) any public advertising which includes any pictures, renderings,
sketches or other representations of any Building (or a portion thereof) with
respect to any proposed assignment or subletting of the Premises, without
Landlord's prior written consent. In all events, Tenant shall comply with all
applicable governmental regulations.
(f) Tenant shall not mortgage, pledge, hypothecate or otherwise
encumber (or grant a security interests in) this Lease or any of Tenant's rights
hereunder.
(g) Landlord may terminate this Lease if Tenant sells, transfers,
exchanges, distributes, or otherwise disposes of more than thirty percent (30%)
of its assets (except in the ordinary course of business, in a public offering
of the Tenant's stock, or in a merger or acquisition) unless after such
disposition, the net worth of Tenant as demonstrated to the reasonable
satisfaction of Landlord is an amount acceptable to the Landlord.
(h) If Tenant assigns this Lease or sublets all or substantially all of
the Premises, any option then held by Tenant (such as an option to renew this
Lease or to expand the size of the Premises) shall terminate automatically upon
the assignment or sublease unless approved otherwise by Landlord.
(i) Tenant shall pay Landlord's reasonable expenses incurred in
reviewing any request by Tenant under this Paragraph upon demand.
(j) If the Premises or any part thereof are sublet or used or occupied
by anyone other than Tenant, whether or not in violation of this Lease, Landlord
may, after default by Tenant and expiration of tenant's time to cure such
default, collect rent from the subtenant or occupant. Landlord may apply the net
amount collected to the Rent, but no such subletting, occupancy or collection
shall be deemed a waiver of any of the provisions of this Paragraph 10 or the
acceptance of the subtenant or occupant as tenant, or a release of Tenant from
the performance of Tenant's obligations under this Lease. Landlord's consent to
any subletting or use or occupancy by others shall not relieve Tenant of its
obligations to obtain Landlord's written consent to any other subletting, use or
occupancy by others.
11. Compliance with Laws.
Tenant shall comply with all Legal Requirements which relate to
Tenant's use of the Premises or Tenant's method of operation therein , or impose
any violation, order or duty on Tenant by reason thereof. Tenant shall pay all
the costs, expenses, penalties and damages which may be imposed upon Landlord by
reason of Tenant's failure to fully and promptly comply with and observe the
provisions of this Paragraph. Landlord shall comply with all Legal Requirements
which relate to the Shared Park facilities. Landlord agrees to remedy any
non-compliance with Legal Requirements elsewhere in the Park if such
non-compliance has the effect of preventing or hindering Tenant from obtaining a
permit, certificate or approval that Tenant is entitled to obtain hereunder from
local authorities.
12. Indemnity.
(a) Landlord shall not be liable or responsible to Tenant for any loss
or damage to any property or person occasioned by theft, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or for any damage or inconvenience that
may arise through repair or alteration of any part of the Building or any part
of the Park, or failure to make any such repairs unless caused by the gross
negligence or willful misconduct of Landlord. In addition, Landlord shall not be
liable to Tenant, or to Tenant's agents, servants, employees, customers or
invitees and Tenant shall indemnify, defend and hold harmless Landlord of and
from all fines, suits, claims, demands, losses, liabilities, actions and costs
(including court costs and attorneys' fees, at trial and on appeal) arising in
whole or in part from (i) any injury to person or damage to property caused by
any act, omission or neglect of Tenant, Tenant's agents, servants, employees,
customers or invitees, (ii) Tenant's use of the Premises or the conduct of
Tenant's business or profession, (iii) any activity, work, or thing done,
permitted or suffered buy Tenant in or about the Premises or (iv) any breach or
default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease unless caused by the gross negligence or willful
misconduct of Landlord.
(b) Tenant shall not (i) do any act or things in respect of the
Premises, or use or occupy the Premises, or conduct Tenant's business in any
manner, or (ii) permit or suffer to be done any act or thing or fail to act in
respect of the Premises, whereby the fire insurance or any other insurance then
in effect for the Building, the Property or any other part of the Park or any
part thereof shall become void or suspended or whereby any insurance premiums
maintained by Landlord (or imputed premiums, if Landlords self-insures) shall be
higher than those which would normally have been in effect for the occupancy
contemplated under the Permitted Uses in this Paragraph, if the breach is not
due to circumstances beyond Tenant's reasonable control and if Tenant shall not
have remedied the breach within ten (10) days of Landlord's written notice of
the breach to tenant, then in addition to all other rights and remedies of
Landlord hereunder, Tenant shall (i) indemnify and hold Landlord and its
affiliates harmless from and against any loss which would have been covered by
insurance which shall have become void or suspended because of such breach by
Tenant, and (ii) pay to Landlord any and all increases of premiums (including
imputed premiums) on any insurance resulting from any such breach.
(c) Tenant shall defend, indemnify and hold harmless Landlord, its
affiliates and its or their officers, directors, employees and agents,
("Landlord's Indemnitees") from and against any and all claims arising from or
in connection with any work or thing whatsoever done in the Premises, any act,
omission, or any condition created in the Premises by Tenant or any of its
subtenants, or its or their agents, employees, invitees or contractors, or any
accident, bodily injury (including death) or damage to property, including
damage to property of Tenant or its employees, agents, or invitees occurring in
the Premises, unless (i) caused by the gross negligence of Landlord, its agents,
employees, or contractors, or (ii) caused by or relating to any breach or
default by Landlord in the full and promptly performance of Landlord's
obligations under this lease which remains uncured beyond a reasonable period of
time after Landlord is given notice thereof by Tenant.
(d) Tenant shall defend, indemnify and hold harmless Landlord's
Indemnities from and against any and all claims arising from or in connection
with (i) any condition or any accident, bodily injury (including death) or
damage to property, including damage to property of Tenant or its employees,
agents, invitees, or contractors, occurring in the Shared Park Facilities, to
the extent caused by the acts, omissions or negligence of Tenant, its agents,
employees, invitees, or contractors; (ii) any breach or default by Tenant in the
full and prompt performance of Tenant's obligations under this Lease; (iii)
bodily injuries (including death) suffered by Tenant's employees, agents,
contractors or invitees; and (iv) damage to property belonging to Tenant, its
employees, agents, contractors or invitees.
(e) Notwithstanding any provision to the contrary, Tenant shall look
solely to Landlord's interests in the Park in the event of any claim against
Landlord arising out of this Lease. No other properties or assets of Landlord or
any agent or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any remedy of Tenant arising out
of this Lease. Landlord in no event shall be liable for consequential damages
arising out of any loss of use of the Demised Premises or any equipment or
facilities therein by Tenant or any person claiming through Tenant.
(f) The indemnity and hold harmless agreements in this Paragraph shall
include indemnification from and against any and all liability, fines, suits,
demands, costs and expenses of any kind or nature (including, without
limitation, reasonable attorneys' fees and disbursements) incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof, but shall be limited to the extent any proceeds actually collected by
Landlord or Tenant (as the case may be) or such injured party under policies
owned by Landlord or Tenant (as the case may be) or such injured party with
respect to such damage or injury are insufficient to satisfy same. The indemnity
and hold harmless agreements in this Paragraph in favor or a party shall not
apply in cases of that party's sole negligence.
13. Subordination.
(a) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to any deeds of trust, mortgages or other instruments of
security ("Security Instruments"), as well as to any ground leases or primary
leases ("Master Leases"), that now or hereafter cover any of the Property or any
interest of Landlord therein, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications, consolidations,
replacements and extensions thereof. Landlord hereby expressly reserves the
right, at its option and declaration, to place Security Instruments and Master
Leases on and against any of the Property or any interest of Landlord therein,
superior in effect to this Lease and the estate created hereby. This clause
shall be self-operative and no further instrument of subordination need be
required, however, upon Landlord's request, or upon the request of any holder (a
"Holder") under any Security Instrument, or of any lessor (a "Lessor") under any
Master Lease, Tenant shall execute promptly any instrument (including without
limitation an amendment to this Lease that does not materially and adversely
affect Tenant's rights or duties under this Lease) or instruments intended to
subordinate this Lease or to evidence the subordination of this Lease to any
such Security Instrument or Master Lease. Tenant hereby appoints Landlord
Tenant's attorney in fact to execute any such instrument for and on behalf of
Tenant.
(b) In the event of the enforcement by a Holder under any Security
Instrument of the remedies provided for by law or by such Security Instrument,
or in the event of the termination of any Master Lease, the Holder or the Lessor
may terminate this Lease or may continue this lease in full force and effect as
a direct lease between such Holder or Lessor and Tenant. If the Holder or Lessor
continues this lease, Tenant will attorn to and automatically become the tenant
of such successor in interest without change in the terms or other provisions of
this Lease (Tenant hereby waiving any right Tenant may have to terminate this
Lease or surrender possession of the Premises) and this Lease shall continue in
full force and effect; provided however, that such successor in interest shall
not be bound by or liable for (i) any payment of Rent for more than one month in
advance, (ii) any amendment or modification of this lease made without the
written consent of such Holder, Lessor or successor in interest, or (iii) any
offset, claim or cause of action which Tenant may have against Landlord relating
to the period which is prior to the time Tenant becomes the tenant of such
successor in interest. Upon request by any Holder, Lessor or successor in
interest to either, Tenant shall execute and deliver an instrument confirming
this attornment herein provided for.
(c) Tenant agrees that any Holder or Lessor may at any time subordinate
any rights which Holder or Lessor may hold to the rights of Tenant under this
Lease.
14. Rules and Regulations.
Tenant shall comply fully with the rules and regulations of the
Building, the Property and the Park that are attached hereto as Exhibit C, and
made a part hereof as though fully set out herein. Tenant shall further be
responsible for the compliance with such rules and regulations by the employees,
servants, agents, contractors, visitors and invitees of Tenant. Landlord
reserves the right to amend or rescind any of the rules and regulations and to
make such other and further rules and regulations as in its reasonable judgment
shall from time to time be prudent in the operation and management of the
Premises, the Property and/or the Park, which rules and regulations shall be
binding upon Tenant upon notice to Tenant of same provided that Landlord agrees
to give advance notice to Tenant of any amendment to the rules and regulations
and to consider Tenant's comments thereto, if any.
15. Inspection.
Landlord and its officers, agents and representatives shall have the
right to enter into and upon any and all parts of the Premises at all reasonable
hours (or, if any emergency, at any hour) for all reasonable purposes,
including, without limitation, showing the Premises to prospective tenants,
purchasers or lenders; and Tenant shall not be entitled to any abatement or
reduction of Rent by reason thereof, nor shall such be deemed to be an actual or
constructive eviction. Unless there is an emergency, Landlord shall give prior
notice to Tenant and shall allow a representative to accompany Landlord provided
such representative does not interfere with such entry.
16. Condemnation.
(a) If all of the Premises shall be taken by any public or quasi-public
authority under the power of condemnation, eminent domain or expropriation, or
in the event of conveyance of all of the Premises in lieu thereof, this Lease
shall terminate as of the day possession shall be taken by such authority. If
ten percent (10%) or less of the Premises shall be so taken or conveyed, this
Lease shall terminate only in respect of the part so taken or conveyed as of the
day possession shall be taken by such authority. If more than ten percent (10%)
of the Premises or if a material portion of the Property shall be so taken or
conveyed, this Lease shall terminate only in respect of the part of the
Premises, so taken or conveyed as of the day possession shall be taken by such
authority, but Landlord and Tenant shall have the right to terminate this lease
upon notice given to the other party within 30 days after such taking of
possession.
(b) If this Lease shall continue in effect as to any portion of the
Premises not so taken or conveyed, the Basic Rent and the RA of the Premises
shall be computed on the basis of the remainder of the Premises as of the day
possession shall be taken. Except as specifically provided herein, in the event
of any such taking or conveyance there shall be no reduction in Rent. If this
Lease shall continue in effect, Landlord shall make all necessary alterations so
as to constitute the remainder of the Premises a complete tenantable unit.
Landlord shall do so at its expense, but shall be obligated only to the extent
of the net award or other compensation (after deducting all expenses in
connection with obtaining same) available to Landlord for the improvements taken
or conveyed (excluding any award or other compensation for land). Within thirty
(30) days of Landlord's receipt of the net award or other compensation, Landlord
shall advise Tenant whether such funds are sufficient or constitute the
remainder of the Premises a complete tenantable unit. If such funds are not
sufficient and if Landlord elects therefore not to proceed, or if for any other
reason Landlord does not make such alterations to constitute the remainder of
the Premises a tenantable unit, Tenant shall have the right upon notice to
terminate this Lease.
(c) All awards and compensation for any taking or conveyance, whether
for the whole or a part of the Premises, the Property or any other portion of
the Park shall be property of Landlord, and Tenant hereby assigns to Landlord
all of Tenant's right, title and interest in and to any and all such awards and
compensation. Tenant shall be entitled to claim in the condemnation proceeding
such award or compensation as may be allowed for Tenant's personal property and
for loss of business, and the cost of Tenant's relocation, but only if such
award or compensation shall be made by the condemning authority in addition to,
and shall not result in a reduction of, the award or compensation made by it to
Landlord.
17. Fire or Other Casualty.
If the Premises or the Building shall be destroyed or materially
damaged and Landlord is unable to restore the Premises or the Building to an
acceptable condition within a reasonable amount of time, then either party may
terminate this lease by notice to the other within thirty (30) days after the
occurrence of the casualty, and this lease shall terminate as of the date of the
casualty. If neither party terminates this Lease, Landlord shall proceed with
reasonable diligence and at its sole cost and expense to rebuild and repair the
Premises or the Building, as the case may be, and this Lease shall continue in
full force and effect. If the casualty is due wholly or in part to an act or
omission of Tenant or Tenant's agents, employees, invitees or contractors,
Tenant shall pay to Landlord any deductible under Landlord's insurance policies.
Notwithstanding the foregoing, if any Holder requires that the insurance
proceeds be used to retire a debt, or if any Lessor should terminate a Master
Lease as a result of any such casualty, then Landlord may elect not to rebuild
and this lease shall terminate upon delivery to Tenant of a notice to that
effect. Landlord's obligation to rebuild and repair under this Paragraph 17
shall in all events be limited to restoring the Premises to substantially the
condition same were in immediately preceding the casualty, excluding all signs,
fixtures, equipment or furniture of Tenant and any alterations, additions or
improvements to the Premises made by tenant, whether prior to or after the
Commencement Date. Tenant agrees that promptly after completion of such work by
Landlord, Tenant shall proceed with reasonable diligence and at its sole cost
and expense to rebuild, repair and restore all signs, furniture, equipment,
fixtures and other improvements which may have been placed by Tenant within the
Premises. Provided that the casualty did not occur by reason of any act or
omission of Tenant or Tenant's agents, employees, invitees or contractors,
Landlord shall allow Tenant a diminution of Basic Rental during the time the
Premises are unfit for occupancy, which diminution shall be based upon the
proportion of square feet which are unfit for occupancy to the total square feet
in the Premises. Except as hereinafter provided, any insurance which may be
carried by Landlord or Tenant against loss or damage to the Building or to the
Premises shall be for the sole benefit of the party carrying such insurance and
under its sole control. Tenant shall be responsible for obtaining fire and
extended coverage insurance for full replacement cost upon all improvements and
fixtures installed in the Premises at Tenant's expense, if any, and the contents
of the Premises.
18. Holding Over.
Should Tenant, or any of its successors in interest, hold over the
Premises, or any part thereof, after the expiration of the Lease Term, unless
otherwise agreed in writing by Landlord, such holding over shall constitute and
be construed as a tenancy at will only, at a daily rental equal to the daily
Rent payable for the last month of the Lease Term plus one hundred percent
(100%) of such amount. The inclusion of the preceding sentence shall not be
construed as landlord's consent for Tenant to hold over.
19. Taxes on Tenant's Property.
Tenant shall be liable for all taxes levied or assessed against all
personal property, furniture or fixtures placed by Tenant in the Premises. If
any such taxes for which Tenant is liable are levied or assessed against
landlord or Landlord's property and if Landlord pays same or if the assessed
value of Landlord's property is increased by inclusion of personal property,
furniture or fixtures placed by Tenant in the Premises, and Landlord pays the
taxes based on such increase, Tenant shall pay to Landlord upon demand that part
of such taxes for which Tenant is primarily liable hereunder.
20. Events of Default.
The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) Tenant shall fail to pay when due any Adjusted Rental or other sums
payable by Tenant hereunder and such failures continues for a period of five (5)
days after written notice to Tenant by Landlord (or under any other lease now or
hereafter executed by Tenant in connection with space in the Property).
(b) Tenant shall fail to comply with or observe any other provision of
this lease (or any other lease now or hereafter executed by tenant in connection
with space in the Park), and such failure continues for fifteen (15) days after
delivery to Tenant of notice thereof, provided that if such failure cannot with
due diligence be cured within said 15 days period, said failure shall not
constitute an event of default if Tenant commences to cure such default within
10 days after its occurrence and thereafter diligently proceeds to cure such
default to completion.
(c) Tenant shall make a transfer in fraud of creditors or an assignment
for the benefit of creditors.
(d) Any petition shall be filed by or against Tenant under any
appropriate federal or state bankruptcy or insolvency law and with respect to an
involuntary petition, same is not dismissed within 60 days after its filing; or
Tenant shall be adjudged bankrupt or insolvent in proceedings filed thereunder;
or Tenant shall admit that it cannot meet its financial obligations as they
become due. For additional provisions regarding Tenant's bankruptcy see Exhibit
F.
(e) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(f) One ore more of the event enumerated in clauses (c), (d) and (e)
occurs to Guarantor.
(g) Tenant shall abandon any portion of the Premises. For purposes of
this Lease, Tenant shall be deemed to have abandoned the Premises if Tenant
fails to utilize all or substantially all of the Premises for the purpose
permitted herein for ten (10) or more consecutive days.
(h) Tenant shall do or permit to be done anything which creates a lien
upon the Premises which is not removed within 20 days after its creation.
(i) Tenant shall fail to execute an Estoppel Certificate in the form
and time period requested by Landlord pursuant to Paragraph 30.
21. Remedies.
Upon the occurrence of any event of default by either party specified
in this Lease, the other party may pursue any and all remedies which it may then
have hereunder or at law or in equity, including, without limitation, any one or
more of the remedies listed in this section. In all cases, each party agrees
that it will make commercially reasonable efforts to mitigate damages from any
default by the other party.
(a) Terminate this Lease, in which event Tenant immediately shall
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or any
arrearage in Rent hereunder or at law or in equity, enter upon and take
possession of the Premises. To the extent permitted by law, Tenant agrees to pay
to Landlord on demand the amount of all loss, cost, expense and damage which
Landlord may suffer or incur by reason of such termination, whether through
inability (after a commercially reasonable effort) to relet the Premises on
satisfactory terms or otherwise, including the following:
(i) the worth at the time of award of any unpaid Rent which had been
earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss which Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; plus
(iv) any other amount, including court costs, or costs of reletting
(including leasing and refitting costs), necessary to compensate Landlord for
all detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom; plus
(v) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable law;
and
(vi) all reasonable attorneys' fees incurred by Landlord relating to
the default and termination of this Lease.
All Rent shall be computed on the basis of the amount thereof which was
due and payable to Landlord for the month immediately prior to default.
As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is to be computed by allowing interest at the Past Due Rate.
As used in subparagraph (iii) above, the "worth at the time of award is
to be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of New York at the time of the award plus one percent (1%).
(b) Enter upon and take possession of the Premises by virtue of the
laws of the State of Utah for summary proceedings for possession of real estate
or such other proceeding as may be applicable, and if Landlord so elects, relet
all or any part of the Premises on such terms as Landlord shall deem advisable
(including, without limitation, such concessions and free rent as Landlord deems
necessary or desirable) and receive and retain all of the rent therefor; and
Tenant agrees (i) to pay to Landlord on demand any deficiency that may arise by
reason of such reletting for the remainder of the Lease Term (or any extension
thereof, if the event of default occurs during such extension term), and (ii)
that Tenant shall not be entitled to any rents or other payments received by
Landlord in connection with such reletting even if such rents and other payments
are in excess of the amounts that would otherwise be payable to Landlord under
this Lease. Tenant shall be liable immediately to Landlord for all costs
Landlord incurs in reletting the Premises, including, without limitation,
brokers' commissions, reasonable attorneys' fees incurred in connection with the
reletting and in connection with Tenant's default hereunder, expenses of
repairing, altering and remodeling the Premises required by the reletting, and
like costs. Tenant expressly acknowledges that Landlord has no duty to relet the
Premises, that Landlord may offer all or any part of the Premises for any
period, to any tenant and for any use which Landlord may elect, and that
Landlord may offer for lease any vacant space in the Park Buildings prior to
offering the Premises for lease.
(c) Make such payments or enter upon the Premises, and perform whatever
Tenant is obligated to pay or perform under the terms of this Lease; and Tenant
agrees to reimburse Landlord on demand for any expenditures and expenses
(together with interest thereon at the Past Due Rate from the date paid by
Landlord) which Landlord may make or incur in thus effecting compliance with
Tenant's obligations under this Lease.
(d) Receive from Tenant all sums, the payment of which may have been
waived or abated by Landlord or which may have been paid by Landlord pursuant to
any agreement to grant Tenant a rental abatement or other monetary inducement or
concession, including but not limited to any tenant finish allowance or moving
allowance, it being agreed that any such concession or abatement was made on the
basis that Tenant fully perform all obligations and covenants under the Lease
for the entire Lease Term.
(e) Collect, from time to time, by suit or otherwise, each installment
of Rent or other sum as it becomes due hereunder, or to enforce, from time to
time, by suit or otherwise, any term or provision hereof on the part of Tenant
required to be kept or performed.
(f) No re-entry or taking possession of the Premises by Landlord shall
be construed as an election on Landlord's part to terminate this Lease, unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time thereafter
terminate this Lease for a previous default. Pursuit of any remedy set forth
herein shall not preclude pursuit of any other remedy provided herein or
available at law, nor shall pursuit of any remedy constitute a forfeiture or
waiver of any Rent due to Landlord hereunder or of any damage suffered by
Landlord because of the violation of any term of this Lease. Landlord's
acceptance of any Rent following an event of default hereunder shall not waive
such event of default. No payment by Tenant or receipt by Landlord of any amount
less than the amounts due by Tenant hereunder shall be deemed to be other than
on account of the amounts due by Tenant hereunder, nor shall an endorsement or
statement on any check or document accompanying any payment be deemed an accord
and satisfaction.
(g) If Landlord takes possession of the Premises as permitted herein,
Landlord may keep in place and use all furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by a lessor
thereof or third party having a lien thereon. Landlord also may remove from the
Premises (without the necessity of obtaining a distress warrant, writ of
sequestration or other legal process) all or any portion of such furniture,
fixtures, equipment and other property located thereon and store same at any
premises within Utah County, Utah. In such event, Tenant shall pay to Landlord
all costs incurred by Landlord in connection with such removal and storage and
shall indemnify and hold Landlord harmless from all loss, damage, cost, expense
and liability in connection with such removal and storage. Landlord's rights
herein are in addition to any and all other rights which Landlord has or may
hereafter have at law or in equity.
(h) If Landlord must notify Tenant of any failure (monetary or
non-monetary) of Tenant to comply with any provision of this Lease, that
obligation to notify Tenant shall terminate following the second such notice
delivered to Tenant within any twelve-month period during the Lease Term.
22. Landlord's Liability.
Landlord shall not be in default under this lease unless and until it
fails to perform an obligation hereunder within thirty (30) days after written
notice by Tenant to Landlord specifying the obligation which Landlord had not
performed. However, if Landlord's obligation reasonably requires more than
thirty (30) days for its performance, Landlord shall not be in default if it
commences performance within such thirty-day period and uses reasonable efforts
to complete same. Tenant has no right to claim any nature of lien against the
Building or the Property or to withhold, deduct from or offset against any Rent
or other sums to be paid to Landlord. All obligations of Landlord hereunder are
binding upon Landlord only during the period of its ownership of the Property.
The term "Landlord" means only the owner, for the time being, of the Property.
In the event of the transfer by such owner of its interest in the Property, such
owner shall thereupon be released and discharged from all covenants and
obligations of Landlord thereafter accruing, but such covenants and obligations
shall be binding during the Lease Term upon each new owner for the duration of
such owner's ownership. Any liability of Landlord to Tenant relating to this
lease shall be limited to the interest of Landlord in the Premises, and Landlord
shall not be personally liable for any deficiency.
23. Surrender of Premises.
No act or thing done by Landlord or its agents during the Lease Term
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept a surrender of the Premises shall be valid unless the same be made in
writing and signed by Landlord.
24. Attorneys' Fees.
In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant, the
prevailing party in such action or proceeding shall be entitled to reasonable
attorneys' fees to be fixed by the court therein.
25. Mechanic's Liens.
Tenant will not permit any mechanic's liens or liens to be placed upon
the Premises, the Building or any other portion of the Park, or any portion
thereof, caused by or resulting from any work performed, materials furnished or
obligation incurred by or at the request of Tenant, and in the case of the
filing of any such lien; Tenant will immediately pay or otherwise obtain the
release of same. If default in compliance with this Paragraph shall continue for
fifteen (15) days after delivery to Tenant of a notice thereof from Landlord,
Landlord shall have the right and privilege at Landlord's option of paying the
same or any portion thereof without inquiry as to the validity thereof, and any
amounts so paid, including expenses and interest, shall be so much additional
rent hereunder due from Tenant to Landlord and shall be repaid to Landlord
(together with interest at the Past Due Rate from the date paid by landlord)
within fifteen (15) days after delivery to Tenant of a request from Landlord
therefor.
26. No Subrogation-Insurance.
(a) Each party hereto waives any cause of action it might have against
the other party on account of any loss or damage that is insured against under
any insurance policy (to the extent that such loss or damage is recoverable
under such insurance policy) that covers the Premises, the Building, Landlord's
or Tenant's fixtures, personal property, leasehold improvements or business and
which names Landlord or Tenant, as the case may be, as a party insured.
Notwithstanding the foregoing, the release in the preceding sentence shall be
applicable and in force and effect only so long as and to the extent that such
release does not invalidate any policy or policies of insurance now or hereafter
maintained by the other party hereto. Each party hereto agrees that it will
request its insurance carrier to endorse all applicable policies waiving the
carrier's rights of recovery under subrogation or otherwise against the other
party and obtain such waiver of subrogation if it is obtainable at no extra cost
or expense to the insured (or if there is an extra cost if the other party pays
such extra cost).
(b) Tenant shall maintain a policy of comprehensive general liability
insurance pertaining to its use and occupancy of the Premises hereunder, with
premiums thereof fully paid in advance, issued by and binding upon a solvent
insurance company qualified to do business in the State of Utah, such insurance
to name Landlord as an additional insured. Such policy shall afford minimum
protection of not less than Four Million and No/100 Dollars ($4,000,000.00)
combined single limit for bodily injury, death to any one person, or property
damage in any one occurrence. Additionally, Tenant shall obtain and maintain (i)
a contractual liability coverage endorsement with "incidental contract" coverage
including all oral or written contracts relating to the named insured's business
and (ii) All Risk insurance in respect to Tenant's stock in trade, fixtures,
furnishings, floor covering, equipment and all other property of Tenant in the
Premises, insuring 100% insurable value of such property. The adequacy of the
coverage afforded by said liability insurance shall be subject to review by
Landlord from time to time, and if Landlord is advised by Landlord's insurance
agent that a prudent businessman in Utah County, Utah, using the Premises for
the Permitted Use, would increase the limits of said insurance, Tenant shall to
that extent increase the insurance coverage required by this Paragraph 26. In
addition to the remedies provided in Paragraph 21 of this Lease, if Tenant fails
to maintain the insurance required by this Xxxxxxxxx 00, Xxxxxxxx may, but is
not obligated to, obtain such insurance without notice to Tenant and Tenant
shall pay to Landlord upon demand as additional rental the premium cost thereof
plus interest at the Past Due Rate from the date of payment by Landlord until
repaid by Tenant.
(c) Upon Tenant's execution of this Lease and at any time from time to
time thereafter when Landlord so requests, Tenant shall furnish a certificate of
insurance and other evidence satisfactory to Landlord of the maintenance of all
insurance coverages required hereunder, and Tenant shall obtain a written
obligation on the part of each insurance company to notify Landlord at least
thirty (30) days prior to cancellation or material change of any such insurance.
All insurance required by this Paragraph 26 shall be primary and noncontributing
with any insurance which may be carried by Landlord.
27. Brokerage.
Tenant warrants that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Lease other than the Broker
(as defined in the Basic Lease Information), and Tenant agrees to indemnify
Landlord against all costs, expenses, attorneys' fees or other liability for
commissions or other compensation or charges claimed by any broker or agent
other than Broker who claims same by, through or under Tenant.
28. Building Name.
Landlord reserves the right at any time to give a name to the Building
or to change the name by which the Building is designated.
29. Estoppel Certificates.
Tenant agrees to furnish from time to time when requested by (a)
Landlord, (b) a Holder or a Lessor, or (c) any prospective Holder, Lessor or
purchaser of the Building or the Property, a certificate signed by Tenant
confirming such factual certifications and representations as to the terms and
conditions of this Lease and amendments, if any, as may be deemed appropriate by
Landlord or any such Holder, Lessor, or purchaser, and Tenant shall, within
fifteen (15) days following Tenant's receipt of said proposed certificate from
Landlord, return a fully executed copy of said certificate to Landlord. In the
event Tenant fails to return a fully executed copy of such certificate to
Landlord within said fifteen-day period, then Tenant conclusively shall be
deemed to have approved and confirmed all of the terms, certifications and
representations contained in such certificate.
30. Notices.
Each provision of this Lease, or of any applicable governmental laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant or Landlord, shall be deemed to be complied with when and if
the following specs are taken:
(a) All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to, and must be received by, Landlord on the
date due and at the address set forth in the Basic Lease Information or at such
other address as Landlord may specify from time to time by written notice
delivered in accordance herewith.
(b) Any notice, request or documents (excluding Rent and other
payments) permitted or required to be delivered hereunder must be in writing and
shall be deemed delivered upon receipt if actually received and whether or not
received when deposited in the United States mail, postage prepaid, certified
mail (with or without return receipt requested), addressed to the parties hereto
at the respective addresses set forth in the Basic Lease Information or at such
other address as either of said parties have theretofore specified by written
notice delivered in accordance herewith.
If and when included within the term "Tenant" as used in this Lease there
are more than one person, firm or corporation, all shall arrange among
themselves for their joint execution of such notices specifying some individual
at some specific address for the receipt of notices and payments to Tenant. All
parties included within the term "Tenant" shall be bound by notices and payments
given in accordance with the provisions of this Paragraph the same as if each
had received such notice or payment.
31. Severability.
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term, then
and in that event, it is the intention of the parties hereto that the remainder
of this Lease shall not be affected thereby, and it is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added as part of this lease
a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
32. Amendments: No Waiver: Binding Effect.
This Lease may not be altered, changed or amended, except by instrument
in writing signed by both parties hereto. No provision of this lease shall be
deemed to have been waived by Landlord or Tenant unless such waiver be in
writing signed by the party making the waiver and addressed to the other party,
nor shall any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
33. Quiet Enjoyment.
Tenant shall peaceably and quietly hold and enjoy the Premises for the
Lease Term, without hindrance from Landlord or Landlord's successors or assigns,
subject to (i) the terms and conditions of this Lease, including the performance
by Tenant of all of the terms and conditions of this Lease to be performed by
Tenant, including the payment of rent and other amounts due hereunder, and (ii)
actions and claims of any person or entity holding superior title to that of
Landlord, including, but not by way of limitation, any person or entity who
holds an interest in the Premises to which the leasehold interests created by
this lease is subordinate.
34. Gender.
Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
35. Joint and Several Liability.
If there be more than one Tenant, the obligations hereunder imposed
upon Tenant shall be joint and several. If there be a Guarantor of Tenant's
obligations hereunder, the obligations hereunder imposed upon Tenant shall be
the joint and several obligations of Tenant and Guarantor and Landlord need not
first proceed against Tenant before proceeding against Guarantor nor shall
Guarantor be released from its guaranty for any reason whatsoever, including,
without limitation, in case of any amendments hereto, waivers hereof or failure
to give Guarantor any notices hereunder.
36. Certain Rights Reserved by Landlord.
Landlord shall have the following rights, exercisable without notice
and without liability to Tenant for damage or injury to property, person or
business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession or giving rise to any claim for
Set-off or abatement of Rent:
(a) To decorate and to make repairs, alterations, additions, changes or
improvement, whether structural or otherwise, in and about the Premises, the
Building and/or the Park, or any part thereof, and for such purpose to enter
upon the Premise, the Building or other parts of the park and, during the
continuance of any such work, to temporarily close doors, entryways, public
space and corridors in the Premises, the Building or other parts of the Park, to
store materials in the premises, to interrupt or temporarily suspend Building
services and facilities, to change the arrangement and location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, toilets, or other
public parts of the Building, and to change the arrangement and location of all
parking areas, sidewalks and driveways situated upon the Land or elsewhere in
the Park, all without abatement of Rent or affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible.
(b) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(c) To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises without the prior written permission of Landlord.
(d) To take all such reasonable measures as Landlord may deem advisable
for the security of the Property and its occupants, including, without
limitation, the evacuation of the Building for cause, suspected cause, or for
drill purposes, the temporary denial of access to the Building, and the closing
of the Building after Customary Business Hours and on Saturdays, Sundays and
Holidays, subject, however, to Tenant's right to admittance when the Building is
closed after Customary Business Hours under such reasonable regulations as
Landlord may prescribe from time to time which may include, by way of example
but not of limitation, that persons entering or leaving the Building, whether or
not during Customary Business Hours, use a pass key, or identify themselves to a
security officer by registration or otherwise and that such persons establish
their right to enter or leave the Building.
37. Notice to Lender.
Tenant agrees to deliver by certified mail to any Holder or Lessor a
copy of any written notice of nonperformance given by Tenant to Landlord,
specifying the alleged failure to perform in reasonable detail, provided that
prior to giving any such notice to Landlord, Tenant has been notified in writing
of the address of such Holder or Lessor. Tenant further agrees that if Landlord
fails to cure any nonperformance within the time provided for in this Lease,
then any such Holder or Lessor shall have an additional forty-five (45) days
within which to cure such nonperformance, or if same cannot be cured within that
time, then such additional time as may be necessary for cure if, within such
sixty-day period, such holder or lessor has commenced performance of such
obligation and diligently pursues the same to completion, including but not
limited to commencement of foreclosure proceedings necessary to effect such
cure.
38. Captions.
The captions contained in this Lease are for convenience of reference
only, and in no way limit or enlarge the terms and conditions of this Lease.
39. Miscellaneous.
(a) Any approval by Landlord or Landlord's architects and/or engineers
of any of Tenant's drawings, plans and specifications that are prepared in
connection with any construction of improvements in the Premises shall not in
any way be construed or operate to bind Landlord or to constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the improvements to which they relate,
for any use, purpose, or condition, but such approval shall merely be the
consent of Landlord as may be required hereunder in connection with Tenant's
construction of improvements in the Premises in accordance with such drawings,
plans and specifications.
(b) Each and every covenant and agreement contained in this Lease is,
and shall be construed to be, a separate and independent covenant and agreement.
(c) There shall be no merger of this Lease or of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof by reason
of the fact that he same person may acquire or hold, directly or indirectly,
this Lease or the leasehold estate herby created or any interest in this Lease
or in such leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate.
(d) Neither Landlord nor Landlord's agents or brokers have made any
representations or promises with respect to the Property, or any portion
thereof, except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
(e) The submission of this Lease to Tenant for examination does not
constitute an offer, reservation or option in favor of Tenant, and Tenant shall
have no rights with respect to this Lease or the Premises unless and until
Landlord shall execute a copy of this Lease and deliver the same to Tenant.
(f) This Lease shall be subject to any and all easements,
rights-of-way, covenants, liens, conditions, restrictions, outstanding mineral
interest and royalty interests, if any, relating to the Park, to the extent, and
only to the extent, same still may be in force and effect and either shown in of
record in the Office of the County Clerk of Utah County, Utah or apparent on the
Property.
(g) Tenant shall not bring or permit to remain on the Premises any
asbestos, lead, PCBs, petroleum or petroleum products, explosives, toxic
materials, or substances defined as hazardous wastes, hazardous materials, or
hazardous substances under any federal, state, or local law or regulation
("Hazardous Materials"). Tenant's violation of the foregoing prohibition shall
constitute a material breach and default hereunder and Tenant shall indemnify,
hold harmless and defend Landlord from and against any claims, damages,
penalties, liabilities, and costs (including reasonable attorneys' fees and
court costs) caused by or arising out of (i) a violation of the foregoing
prohibition or (ii) the presence or any release of any Hazardous Materials on,
under, or about the Premises during Tenant's occupancy or control of the
Premises. Tenant shall clean up, remove, remediate and repair any soil or ground
water contamination and damage caused by the presence or release of any
Hazardous Materials in, on, under, or about the Premises during Tenant's
occupancy of the Premises in conformance with the requirements of applicable
law. Tenant shall immediately give Landlord written notice of any suspected
breach of this Paragraph, upon learning of the presence or any release of any
Hazardous Materials, and upon receiving any notices from governmental agencies
pertaining to Hazardous Materials which may affect the Premises. The obligations
of Tenant hereunder shall survive the expiration or earlier termination, for any
reason, of this Lease.
(h) Tenant shall not record this Lease.
(i) Tenant warrants that its signatory to this Lease is a duly
appointed officer of Tenant with authority to bind Tenant to all of the
obligations hereof.
(j) The tem "business day," when used herein, shall mean every day that
is not a Saturday, Sunday or Holiday.
(k) Except as expressly provided herein, whenever this Lease calls for
a consent or approval of Landlord, or the exercise of Landlord's judgment, the
granting or denial of such approval and the exercise of such judgment shall be
within the sole discretion of Landlord and Landlord shall not, for any reason or
to any extent, be required to grant such approval or consent or exercise such
judgment in any manner regardless of the reasonableness of either the request or
Landlord's judgment.
(l) Tenant shall have the right to use the Shared Park Facilities on a
nonexclusive basis together with Landlord and all other occupants of the Park
subject to the rules and regulations promulgated or to be promulgated by
Landlord with respect to the use of the Shared Park Facilities. Tenant shall pay
to Landlord, as additional rent hereunder, a subsidy on behalf of Tenant's
employees and invitees with respect to use of the Hard Disk Cafeteria located in
the Park. Such subsidy shall be based on the aggregate deficit of the cafeteria
and on the RA of the Premises and the rentable area of all Park Buildings. Such
subsidy under the Paragraph shall not exceed Five Thousand dollars ($5,000) in
any calendar year during the initial term hereof. Landlord reserves the right at
its sole discretion to discontinue the Fitness Center, the Hard Disk Cafe, and
other amenities as part of the Shared Facilities. Landlord reserves the right to
change the availability and use of the Shared Park Facilities.
(m) Tenant shall summon the appropriate municipal emergency forces
(police, fire department, or ambulance, as the case may be) in the event of
fire, serious injury or other emergency in the Premises immediately upon
obtaining knowledge thereof. Immediately after summoning municipal emergency
forces, Tenant shall advise Landlord and the security forces. Tenant shall
cooperate fully with local and/or regional emergency forces and with Landlord
during any emergency.
(n) Tenant acknowledges that certain of Landlord's employees are
members of a Site Emergency Control Force and will, in response to a signal by
Landlord, assemble to address an emergency anywhere in the Park. None of these
personnel will be held liable by Tenant for any actions taken in responding to
an emergency in the Park; further, Tenant shall indemnify and hold Landlord, its
agents and employees harmless from and against any and all claims brought by
Tenant's employees, contractors, agents or invitees and any of their dependents,
heirs, successors or assigns arising out of any act or omission, including
negligence, of the members of the Emergency Control Force and Landlord's
Emergency Medical Technicians which may occur while carrying out their duties in
responding to an emergency in the Park.
(o) All payments required to be made hereunder other than Basic Rent
shall constitute additional rent hereunder. Landlord shall have the same rights
and remedies with respect to the non-payment of additional rent as it is with
respect to the non-payment of Basic Rent.
(p) If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of five (5) days from the
date Landlord gives Tenant notice of the default. Bills for any such expenses
incurred by Landlord, and bills for all reasonable costs, expenses and
disbursements, including reasonable attorneys' fees and expenses, involved in
collecting the Rent or enforcing any rights against Tenant or Tenant's
obligations hereunder, may be sent by Landlord to Tenant immediately, and such
amounts shall be due and payable in accordance with their terms.
40. Force Majeure.
If Landlord is delayed in performing an obligation of Landlord
hereunder as a result of strikes, lockouts, shortages of labor, fuel or
materials, acts of God, legal requirements, fire or other casualty, or any other
cause beyond Landlord's control, then performance of such obligation shall be
excused for the period of such delay, and the period to perform such obligation
shall be extended by the number of days equivalent to the number of days of such
delay. Landlord shall not be required to settle or compromise any strike,
lockout or other labor disputes, the resolution thereof being within the sole
discretion of Landlord.
41. Applicable Law.
This Lease shall be governed in all respects by the laws of the State
of Utah. Landlord and Tenant intend to conform strictly to all applicable state
and federal usury laws. All agreements between Landlord and Tenant, whether now
existing or hereafter arising and whether written or oral, are expressly limited
so that in no contingency or event whatsoever shall the amount contracted for,
charged or received by Landlord for the use, forbearance or detention of money
exceed the maximum amount which Landlord is legally entitled to contract for,
charge or collected under applicable state or federal law. If, from any
circumstance whatsoever, fulfillment of any provision hereof at the time
performance of such provision shall be due shall involve transcending the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
automatically reduced to the limit of such validity, and if from any such
circumstance, Landlord shall ever receive as interest or otherwise an amount in
excess of the maximum that can be legally collected, then such amount which
would be excessive interest shall be applied to the reduction of the Rent; and
if such amount which would be excessive interest exceed the Rent, then such
additional amount shall be refunded to Tenant.
42. Third Party Rights.
Nothing herein expressed or implied is intended, or shall be construed,
to confer upon or give to any person or entity, other than the parties hereto,
any right or remedy under or by reason of this Lease.
43. Americans With Disabilities Act.
Landlord and Tenant acknowledge that during the term of this Lease, the
Americans With Disabilities Act. 42 U.S.C.A. 12101 et seq. (the "Act"), may
require modifications to the Premises, the Building and to the Park. With
respect to the Act, Landlord and tenant agree as follows:
(a) Landlord shall be responsible for any modifications to the Premises
required to bring the Premises into compliance with the Act as it reads as of
the date of commencement hereof.
(b) Landlord shall modify the improvements which constitute the
Building (other than the Premises) and the Shared Park Facilities if required to
bring the Building and the Shared Park Facilities in compliance with the Act, as
same may be modified from time to time. The cost of such modifications shall be
amortized upon such reasonable basis as Landlord may elect and shall be included
in the Operating Expenses.
(c) If, during the term hereof, changes in the Act require
modifications or alterations to the Premises or if Tenant makes any changes to
the Premises that cause the Premises to be out of compliance with the Act,
Tenant shall, following notification of Landlord, be responsible for, and
expressly agrees to pay (or reimburse Landlord) for the cost of any
modifications or alterations required to bring the Premises into compliance with
the Act. All alterations and modifications to the Premises shall be done in a
good and workmanlike manner and court costs) arising out of or related to the
other's failure to perform any of its obligations under this Paragraph 43.
44. Site Plan and restrictive Covenants.
Tenant agrees that it will not occupy or use the Premises in violation
of or perform any act which violates the site plan for the Park or any of the
Restrictive Covenants, as they may hereafter be amended from time to time.
45. Furniture.
Subject to availability, Landlord shall provide furniture for the
Premises from its existing inventory at no extra charge to Tenant. If Tenant
requires additional furniture, and it is available for Tenant use from Landlords
existing inventory, Landlord shall provide it at no extra cost. Landlord and
Tenant shall agree on a basic set of components (see Attachment A, Furniture
Inventory List) prior to installation. Tenant is responsible for any items
needing to be purchased over and above current inventory, for all furniture
layout, design, deliver (to and from Premises as directed by landlord),
installation by a Landlord approved installer. Tenant is also responsible for
any damage to the Furniture and for a day-to-day maintenance. Any furniture
currently located in the Premises that is not wanted by Tenant shall be returned
to Landlord's storage location as directed by Landlord and at Tenant's expense.
Tenant accepts furniture in its "as is" condition and shall return it in as good
a condition as received, normal wear and tear excepted.
46. Tenant Improvements.
Landlord shall not provide a Tenant Improvement Allowance. Any Tenant
improvements are subject to Landlord approval and the terms of the Lease and
shall be provided by the Tenant. Tenant to do own cabling and wiring for data
and phone connections and shall provide their own telephony equipment.
47. Right of First Offer.
Subject to Prior rights of any other tenant, Tenant shall have a Right
of First Offer on the rental space in Building F as it becomes available for
lease during the initial Term of the Lease, subject to the terms and conditions
of this Lease including Exhibit J attached hereto.
48. Security Services.
Landlord currently provides basic security services which includes card
access, 24 hour security patrols and limited camera surveillance. Landlord shall
provide one access card, without charge but subject to change without notice, to
each employee at the beginning of the lease term and to each new employee when
they are employed. There will be a $15.00 charge, subject to adjustment without
notice, to the Tenant for each card that needs to be replaced or changed for any
reason and that is not returned at the end of the lease. Landlord will provide
two keys to the locks on the corridor doors entering the Premises, with
additional keys to be furnished by the Landlord at Tenant's expense. Any keys or
locks needed within the Premises shall be provided by the Landlord at Tenant's
expense. Landlord reserves the right to change these services upon notice.
49. Signage.
Tenant's name shall be placed on all building standard signage at
Landlord's expense. If Tenant occupies more than 50% of the rental space in
Building F, they shall have the right to an exterior building sign, subject to
Timpanogos Research and Technology Park (TRTP) covenants, conditions and
restrictions, and to Landlord's approval, which shall not be unreasonably
withheld. Sign to be in keeping with TRTP standards and policies and shall be
designed to maintain the professional look of the Park.
50. Exhibits and Attachments.
All exhibits and attachments, riders and addenda referred to in this
Lease and the exhibits listed below and attached hereto are incorporated into
this Lease and made a part hereof for all intents and purposes as if fully set
out herein. All capitalized terms used in such documents shall, unless otherwise
defined therein, have the same meanings as are set forth herein.
Exhibit A -Site Plan of the Park
Exhibit A-1 -Land Owned and Controlled by Landlord
Exhibit B -Plans of Premises located in the Building
Exhibit C -Rules and Regulations
Exhibit D -Leasehold Improvements
Exhibit D-1 -Space Plan
Exhibit E -Operating Expenses
Exhibit F -Bankruptcy
Exhibit G -Shared Park Facilities
Exhibit H -Restrictive Covenants
Exhibit I -Parking
Exhibit J -Right of First Offer
Attachment A -Furniture Inventory List
DATED as of the date first written.
LANDLORD:
Novell, Inc., a Delaware corporation
Date: 14, May, 1999 By:
Name:
Title:
TENANT:
Galaxy Mall, Inc., a Wyoming corporation
Date 14 May, 1999 By:
Name:
Title:
exhibit A
OREM SITE PLAN
exhibit a-1
LAND
(Novell Owned & Controlled)
exhibit B
BOMA SPACE ALLOCATION
(Orem Building F)
exhibit C
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Property and the Park and to each portion thereof:
1. Smoking will not be permitted within the Building or any other Park
Building. No tenant or tenant's agent, employee, invitee or contractor may smoke
anywhere on the Land other than areas outside the Building which are expressly
designated as smoking areas.
2. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from that tenant's premises and for going
from one to another part of the Park.
3. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or such tenant's agents,
employees or invitees shall be paid by such tenant and Landlord shall not in any
case be responsible therefore.
4. No signs, advertisement or notices shall be painted or affixed on or
to any windows or doors or other exterior part of the Building (or be visible
from any public or common area) unless they are of such color, size and style
and in such places as shall be first approved in wiring by Landlord. Landlord,
at each tenant's sole cost and expense, shall install all letters or numbers by
or on doors in such tenant's premises which letters or numbers shall be in
Building standard graphics. No nails, hooks or screws shall be driven or
inserted in any part of the Building outside the premises except by any Building
maintenance personnel nor shall any part of any Building be defaced by tenants.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
5. Two keys to the locks on the corridor doors entering each tenant's
premises shall be furnished by Landlord free of charge, with any additional keys
to be furnished by landlord to each tenant, at such tenant's cost. Landlords
shall provide all locks for other doors in each tenant's premises, at the cost
of such tenant, and no tenant shall place any additional lock or locks on any
door in or to its premises without Landlord's prior written consent. All such
keys shall remain the property of Landlord. Each tenant shall give to Landlord
the explanation of the combination of all locks for safes, safe cabinets and
vault doors, if any, in such tenant's premises.
6. With respect to work being performed by tenants in any premises with
the approval of Landlord, all tenants will refer all contractors, contractors'
representatives and installation technicians rendering any service to them to
Landlord for Landlord's supervision, approval and control before the performance
of any contractual services. This provision shall apply to all work performed in
the Building including, but not limited to, installations of telephones,
telegraph equipment, electrical devices and attachments, doors, entrances, and
any and all installations of every nature affecting floors, walls, woodwork,
trim windows, ceilings, equipment and any other physical portion of the
Building.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material or merchandise which
requires use of elevators or stairways, or movement through the Building
entrances or lobby shall be restricted to such hours as Landlord shall
designate. All such movements shall be under the supervision of Landlord and in
the manner agreed between the tenants and landlord by pre-arrangement before
performance. Such pre-arrangement initiated by a tenant will include Landlord's
determination, and be subject to Landlord's decision and control, as to the
time, method, and routing of movement and as to limitations for safety or other
concern which may prohibit any article, equipment or any other item from being
brought in to the Building. Tenants shall assume all risk as to the damage to
articles moved and injury to persons or public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord if damaged or
injured as a result of acts in connection with carrying out this service for a
tenant from time of entering the Property to completion of work; and Landlord
shall not be liable for acts of any person engaged in, or damage or loss to any
of said property or persons resulting from, any act in connection with such
service performed for a tenant.
8. Landlord may prescribe the weight and position of safes and other
heavy equipment or items, which shall in all cases, to distribute weight, stand
on supporting devices approved by Landlord. All damages done to the Building by
the installation or removal of any property of a tenant, or done by a tenant's
property while in the Building, shall be repaired at the expense of such tenant.
Each tenant shall bear all costs incurred by Landlord or such tenant in
determining the feasibility or actual installation of any such heavy equipment.
A tenant shall notify the Building manager when safes or other heavy equipment
are to be taken in or out of the Building, and the moving shall be done under
the supervision of the Building manager, after written permission from Landlord.
Persons employed to move such property must be acceptable to Landlord.
9. Corridor doors, when not in use, shall be kept closed.
10. Each tenant shall cooperate with Landlord's employees in keeping
its premises neat and clean.
11. Landlord shall be in no way responsible to the tenants, their
agents, employees or invitees for any loss of property from the premises or
public areas or for any damages to any property thereon from any cause
whatsoever.
12. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any premises except
by persons appointed or approved by Landlord in writing.
13. Should a tenant require telegraphic, telephonic, annunciator or
other communication service, Landlord will direct the electrician where and how
wires are to be introduced and placed and none shall be introduced or placed
except as Landlord shall direct. Except as provided in each tenant's lease,
electric current shall not be used for heating or nonstandard power requirements
without Landlord's prior written permission.
14. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
15. Nothing shall be swept or thrown into the corridors, halls,
elevator shafts or stairways. No birds or animals shall be brought into or kept
in, on or about any tenant's premises, except as may be allowed by law.
16. No machinery of any kind shall be operated by any tenant in its
premises without the prior written consent of Landlord, no shall any tenant use
or keep in the Building any inflammable or explosive fluid or substance.
17. No portion of any tenant's premises shall at any time be used or
occupied as sleeping or lodging quarters.
18. Each tenant and its agents, employees and invitees shall park only
in those areas designated by Landlord for parking and shall not park on nay
public or private streets contiguous to, surrounding or in the vicinity of the
Building without Landlord's prior written consent.
19. Landlord will not be responsible for lost or stolen property, money
or jewelry from any tenant's premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
exhibit D
LEASEHOLD IMPROVEMENTS
This Exhibit D sets forth the terms and conditions governing the design
and construction of the tenant improvements ("Tenant Work") to be installed in
the Premises.
1. Tenant's Representative. Tenant has appointed (to be designated) as
its authorized representative ("Tenant Representative"), who has full power and
authority to bind Tenant for all actions taken with regard to the Tenant Work.
In the event that the individual named above as Tenant's Representative is
unavailable for a period in excess of three (3) business days, Tenant shall
designate an alternative Tenant Representative who shall have full power and
authority to bind Tenant, and shall notify Landlord of the name of the
alternative Tenant Representative and of the duration of the period such person
shall act as Tenant's Representative and of the duration of the period such
person shall act as Tenant's Representative. Tenant hereby ratifies all actions
and decisions with regard to the Tenant Work that Tenant's Representative may
have taken or made prior to the execution of this Lease. Landlord shall not be
obligated to respond to or act upon any plan, drawing, change order or approval
or other matter relating to the Tenant Work until it has been approved by
Tenant's Representative. Landlord hereby designates (to be designated) as the
person(s) authorized to receive notices from Tenant. Neither Tenant nor Tenant's
Representative shall be authorized to receive notices from Tenant. Neither
Tenant nor Tenant's Representative shall be authorized to direct Landlord's
general contractor with respect to the Tenant Work. If Landlord's general
contractor performs any such work under the direction of Tenant or Tenant's
Representative, then Landlord shall have no liability for the cost of such work,
the cost of corrective work required as a result of such work, any delay that
may result from such work, or any other problem in connection with such work.
2. Leasehold Improvements. Landlord has constructed the base building
improvements in the Premises, including without limitation Building standard
light fixtures, Building standard HVAC, ceiling grids and ceiling ties.
3. Allowances.
(a) Allowance for Tenant Work. Tenant shall receive as a credit
against the cost of the Tenant Work an amount up to $7,631 less ten
percent (10%) of actual construction costs thereof which shall be
retained by Landlord for construction management, to be applied toward
the cost of the construction of the Tenant Work ("Improvement
Allowance"). Landlord shall pay the cost of construction of the Tenant
Work directly to Landlord's general contractor and charge the cost
thereof against the Improvement Allowance.
(b) Allowance for Design Services. Tenant shall receive as a
credit against the cost of the preparation or review by Landlord's
architect of the Space Plan and Drawings and Specifications (both as
defined below) (collectively, the "Tenant Plans") for the Tenant Work,
an allowance of $0 per usable square foot of the Premises (the "Plan
Allowance"). The Plan Allowance shall be in addition to the Improvement
Allowance. All costs and expenses of preparing the Tenant Plans shall
be credited first against the Plan Allowance. If said cost exceeds the
Plan Allowance, such excess shall be payable directly by Tenant to
Landlord within ten (10) days after Landlord's delivery to Tenant of an
invoice therefore.
4. Design.
(a) Tenant Plans.
(i) Space Plan: The term "Space Plan" shall mean the plan to be
agreed upon by Landlord and Tenant and attached hereto and made a part
hereof as Exhibit D-1 to the Lease.
(ii) Drawings and Specifications: The term "Drawings and
Specifications" shall mean the construction working drawings, the
mechanical, electrical and other technical specifications, and the
finishing details, including wall finishes and colors and technical and
mechanical equipment installation, if any, all of which detail the
installation of the Tenant Work. A list of the page titles, reference
numbers and dates which constitute the fully approved Drawings and
Specifications shall be initialed by each party and attached hereto and
made a part hereof as Exhibit D-2 to the Lease.
(b) Time Periods for Design of Tenant Plans. The following maximum time
periods shall be allowed for the following matters:
Action Time Limits (Based on Business Days)
------ ------------------------------------
(i) Tenant furnishes all necessary information to
Landlord's space planner to enable the space
planner to prepare the Space Plan (locates
partitions and doors, indicates
mechanical/electrical/plumbing requirements
(including HVAC, lighting, acoustical or extra
floorload requirements)
(i) 10 business days after the Lease Date (ii) 10 business days after receipt of information
(ii) Landlord delivers to Tenant draft of Space specified in (i)
Plan
(iii) Tenant approves Space Plan or delivers to (iii) 5 business days after delivery of Space Plan
Landlord any requested minor changes to Space
Plan
(iv) If necessary, Landlord delivers revised Space (iv) 5 business days after receipt of requested
Plan to Tenant revisions
(v) Tenant approves revised Space Plan to Tenant (v) 3 business days after deliver to Tenant
(vi) Tenant furnishes information to Landlords (vi) 5 business days after Tenant approves the
architect required to enable Landlord's Space Plan
architect to prepare Drawings and
Specifications (i.e mechanical, electrical,
telephones, finish selections, etc.)
(vii) Landlord delivers Drawings and Specifications (vii) 10 business days after receipt of information
to Tenant specified in (vi)
(viii) Tenant approves or requests minor changes to (viii) 3 business days after delivery of Drawings and
Drawings and Specifications Specifications to Tenant
(ix) If necessary, Landlord delivers revised (ix) 3 business days after receipt of requested
Drawings and Specifications to Tenant revisions
(x) Tenant approves revised Drawings and (x) 2 business days after delivery to Tenant
Specifications
(xi) Landlord provides Tenant with (1) the Cost (xi) 6 business days after agreement upon
estimate (as defined below) and (2) Drawings and Specifications
timing for installation of
Tenant Work
(c) Approvals by Landlord. Each party shall evidence its approval of
each component of the Tenant Plans by executing same. All Tenant Plans, and any
changes, additions or modifications that Tenant desires to make to the Tenant
Plans, shall be subject to Landlord's prior written approval.
5. Pricing and Construction.
(a) Cost Estimate. The "Cost Estimate" shall include all amounts
charged by Landlord's contractor for performing all work and providing all
materials in connection with the Tenant Work (including Landlord's contractor's
general conditions, overhead and profit).
(b) Payments by Tenant for Costs in Excess of the Improvement
Allowance. In the event the cost of the Tenant Work exceeds the Improvement
Allowance, all such excess costs shall be payable by Tenant as follows:
(i) Fifty percent (50%) shall be due and payable upon Tenant's
receipt of the Cost Estimate pursuant to Paragraph 4(b).
(ii) Fifty percent (50%) shall be due and payable when such work
is commenced.
(c) Construction. After approval of the Drawings and Specifications and
determination of the Cost Estimate, Landlord shall administer the construction
of the Tenant Work in accordance with the approved Drawings and Specifications
and approved change orders. All Tenant Work shall be constructed by Landlord's
general contractor.
6. Change Orders. If Tenant requests any change or addition to the
Tenant Work after Tenant's and landlord's approval of the Drawings and
Specifications and determination of the Cost Estimate, Landlord shall respond to
Tenant's request for consent as soon as possible. If Landlord approves such
request, Landlord shall as soon as practicable after such approval notify Tenant
of any increase in the cost of the Tenant Work due to such change order and the
delay in Substantial Completion of the Premises, if any, due to the change
order. To the extent the cost of the change order exceeds the Improvement
Allowance, all excess cost attributable to the change order shall be payable
along with the ten percent (10%) overhead and administration fee described in
Paragraph 3(a) above to Landlord by Tenant upon approval by Tenant of the change
order cost and/or delay, if any.
7. Substantial Completion.
(a) General. Landlord shall use reasonable efforts to
Substantially Complete (as defined below) the Tenant Work on or before
the Estimated Commencement Date, but neither the validity of this lease
nor the obligations of Tenant under this Lease shall be affected by a
failure to Substantially Complete the Premises by such date, and Tenant
shall have no claim against Landlord because of Landlord's failure to
Substantially Complete the Premises on the Estimated Commencement Date.
(b) Substantial Completion. "Substantial Completion" of the
Premises shall be deemed conclusively to have occurred as soon as the
Tenant Work has been constructed in accordance with the approved
Drawings and Specifications and approved change orders, and the
Premises are ready to be utilized for their intended purpose. The
Premises shall be considered Substantially Complete and ready to be
utilized for their intended purpose even though there remain to be
completed in the Premises minor details of construction, decoration or
mechanical adjustment, the lack of completion of which will not
materially interfere with Tenant's permitted use of the Premises and
which may be completed without undue noise or dust or without otherwise
unreasonably disrupting Tenant's operations from the Premises ("punch
list items"). In the event of a Tenant Delay, for purposes of
establishing the Commencement Date, Substantial Completion shall be
deemed to occur on the date it would have occurred but for the Tenant
Delay, as determined by Landlord's architect.
(c) Tenant Delays. The following items shall be referred to
individually as a "Tenant Delay": (i) Tenant's failure to comply with
any of the deadlines specified in this Exhibit D; (ii) Tenant's request
for changes or additions to the Tenant Work subsequent to the date of
Landlord's approval of the Drawings and Specifications; (iii) Tenant's
failure to pay when due any amounts required pursuant to this Exhibit
D; (iv) the performance of any work by any person or firm employed or
retained by Tenant which performance results in an increase in the time
to complete the Tenant Work; (v) Tenant's request for materials,
finishes or installations which are not available as needed to meet the
general contractor's schedule for Substantial Completion; (vi) Tenant's
or Tenant's agent, including Tenant's contractors, vendors, and
Representative's interference with the general contractor's schedule;
or (vii) any other delay which directly results from Tenant's actions.
(d) Punch List. Prior to delivery of possession of the Premises
to Tenant, Landlord shall prepare a preliminary punch list for Landlord
and Tenant's review and Landlord and Tenant shall examine the Premises
and shall agree on a final punch list which shall specify the items of
work that require correction, repair or replacement. Tenant shall
approve such punch list in writing within five (5) business days of the
walk-through.
8. Tenant Actions. If Tenant, with Landlord's prior written consent,
employs or acts as its own architect to provide any portion of Tenant's Plans,
Tenant shall assume all liability and responsibility for that portion of
Tenant's Plans provide by Tenant or Tenant's architect for compliance with all
applicable codes and ordinances. If Tenant, with Landlord's prior written
consent, employs or acts as its own contractor, Tenant shall assume all
liability and responsibility for the improvements to be constructed in
accordance with Tenant's Plans and all applicable codes and ordinances and
notwithstanding anything in this Lease to the contrary, the Commencement Date
shall not be later than the Estimated Commencement Date unless agreed to
otherwise by Landlord in writing. Tenant's liability shall include, but not be
limited to paying all architectural, engineering and construction costs to
correct Tenant's Plans and the Tenant Work to comply with all applicable codes
and ordinance. Notwithstanding Landlord's written consent for Tenant to assume
responsibility in the design or construction of the improvements, Landlord
reserves the right to complete such design or construction without interference
from Tenant, Tenant's architect or contractor, if such work is not being pursued
diligently.
9. Possession by Tenant. By occupying the Premises, Tenant shall be
deemed to have accepted same as suitable for the purpose herein intended and to
have knowledge that same comply fully with Landlord's obligations, except as to
items contained in the punch list prepared as provided in Paragraph 7(d).
Landlord agrees to correct and complete any such items outlined in the punch
list as soon as practicable. Within fifteen (15) days after Tenant's receipt of
a request from landlord, Tenant shall execute a certificate confirming the
Commencement Date and certifying that Tenant has accepted delivery of the
Premises and that the condition of the Premises complies with Landlord's
obligations hereunder.
exhibit D-1
PROPOSED FURNITURE LAYOUT
GALAXY MALL
exhibit E
OPERATING EXPENSES
In addition to the Basic Rental payable by Tenant under this Lease,
Tenant shall pay additional rent determined as follows:
1. The Operating Expenses (as hereinafter defined) attributable to the
Premises shall be computed by multiplying the "Operating Expenses Per Square
Foot of RA" (as defined in Paragraph (7) below) by the RA of the Premises. For
the purpose of this Exhibit E, the term "Operating Expenses" shall mean the sum
of (i) any and all costs, expenses and disbursements of every kind and
character, which Landlord shall incur, pay or become obligated to pay in
connection with the ownership of any estate or interest in, operation,
maintenance, repair, replacement and security of the Applicable Leased Buildings
(as hereafter defined), or any portion thereof and (ii) the Applicable Share (as
hereunder defined) of all costs, expenses and disbursements of every kind and
character which Landlord shall incur, pay or become obligated to pay in
connection with the ownership, operation, maintenance, repair, replacement and
security of the Shared Park Facilities in each instance, determined in
accordance with generally accepted accounting principles consistently applied,
including but not limited to the following:
(a) Wages, salaries and other benefits of all employees of Landlord
and/or any managing agent who are engaged in the operation, repair, replacement,
maintenance and security of the Applicable Leased Buildings and/or the Shared
Park Facilities and any property manager for the Park (including without
limitation, payroll, unemployment, social security and other taxes, insurance,
vacation, holiday and sick pay and other fringe benefits, but excluding any
profit sharing benefits) management fees of any managing agent of the Applicable
Leased Buildings and/or the Shared Park Facilities and legal fees and expenses
incurred in connection with the Applicable Leased Building and/or the Shared
Park Facilities.
(b) All supplies, equipment and materials used in the operation,
maintenance, repair, replacement and security of all or any portion of the
Applicable Leased Buildings and/or the Shared Park Facilities. A charge for
depreciation of equipment so used may be included in Operating Expenses.
(c) Annual cost of all capital improvements made to the Applicable
Leased Buildings and/or the Shared Park Facilities which although capital in
nature can reasonably be expected to reduce the normal operating costs of the
Applicable Leased Buildings and/or the Shared Park Facilities, as well as all
capital improvements made in order to comply with any statutes, rules,
regulations or directives of any governmental authority relating to energy
conservation, public safety or security or access for disabled individuals, as
amortized (with interest on the unamortized balance at the market rate then
generally available for such improvements) over the useful life of such
improvements by Landlord for federal income tax purposes.
(d) Cost of all utilities, other than the cost of excess or
individually metered utilities supplied to tenants of the Applicable Leased
Buildings which is actually reimbursed to Landlord by such tenants.
(e) Cost of all maintenance and service agreements on equipment
relating to or in the Applicable Leased Buildings and/or the Shared Park
Facilities, including without limitation alarm service, HVAC service, security
service, and elevator maintenance, and window cleaning for the Applicable Leased
Buildings and/or Shared Park Facilities.
(f) Cost of casualty, rental abatement and liability insurance
applicable to the Applicable Leased Building and/or the Shared Park Facilities
and Landlord's personal property, equipment and fixtures used in connection
therewith, together with any other insurance deemed necessary or desirable by
Landlord or any holder of a lien secured by the Property, including any
deductible under any policy of insurance.
(g) Cost of repairs, replacements and general maintenance of the
Applicable Leased Building and/or the Shared Park Facilities or any portion
thereof.
(h) Cost of service or maintenance contracts for the operation,
maintenance, repair, replacement or security of the Applicable Leased Building
and/or the Shared Park Facilities or any portion thereof, including without
limitation janitorial and cleaning contracts.
(i) Any costs incurred by reason of easements or restrictions affecting
all or any portion of the Applicable Leased Building and/or the Shared Park
Facilities (including without limitation any fees, charges or assessments of any
property owners association) and any costs incurred in the operation,
maintenance, repair, replacement and security of the common and public areas on
or serving the Property, or any portion thereof, including, but not limited to,
the parking garages or parking facilities serving the Applicable Leased Building
and/or the Shared Park Facilities.
"Operating Expenses" shall not including capital improvements made to
the Applicable Leased Building and/or the Shared Park Facilities, other than (A)
capital improvements described in subparagraph (1)(c) above and (B) items which,
though capital for accounting purposes, are properly considered maintenance and
repair items (such as painting of common areas, replacement of carpet, and the
like), or payments made by Tenant or other tenants of the Applicable Leased
Building, either to third parties or to Landlord, under agreements for direct
reimbursement for services.
"Operating Expenses" shall also not include the following expenses: (i)
Taxes, (ii) costs with respect to services for which Landlord is reimbursed by
tenants of the Applicable Leased Buildings (other than pursuant to an operating
expense escalation provision) provided such service is not of a type being
supplied by Landlord to Tenant under this Lease.
2. For purposes of determining, "Excess Taxes" (as such term is defined in
the Basic Lease Information), "Taxes Per Square Foot of RA" shall mean Taxes,
(hereinafter defined) attributable to the Applicable Leased Buildings divided by
the aggregate rentable square feet of office space in the Applicable Leased
Buildings. As used herein, the term "Taxes" shall mean all taxes and assessments
and government charges whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing or by others,
subsequently created or otherwise, and any other taxes or assessments
attributable to the Applicable Leased Buildings and its operations, excluding,
however, federal and state taxes on income (except as specifically permitted by
this subparagraph (2), together with all costs and expenses of contesting the
validity or amount of such taxes and assessments. If at any time during the
Lease Term, the present method of taxation shall be changed so that in lieu of
or in addition to the whole or any part of the Taxes, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly on the
rents received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents of the Applicable
Leased Buildings, then all such taxes, assessments, levies or charges, or the
part thereof so measured or based, shall be deemed to be included within the
term "Taxes" for purposes of this Exhibit E. Notwithstanding the foregoing, if
during any calendar year the Applicable Leased Buildings are not separately
taxed from other portions of the Park, then the term Taxes per Square Foot of RA
shall be deemed equal to the Taxes for the entire Park multiplied by Applicable
Share and divided by the aggregate rentable square feet in the Applicable Leased
Buildings.
3. During the Lease Term, Tenant shall pay as a component of the Adjusted
Rental, the Excess Operating Expenses and the Excess Taxes (both as defined in
the Basic Lease Information). With respect to each calendar year during the
Lease Term commencing with calendar year 1999, Landlord shall have the option of
making a good faith estimate of the Excess Operating Expenses and the Excess
Taxes for the calendar year in question or the upcoming calendar year as the
case may be, and upon thirty (30) days written notice to Tenant may require that
Tenant pay said estimated Excess Operating Expenses and estimated Excess Taxes
in equal monthly installments in the manner and at the times set forth in
Paragraph 3 of the Lease for payment of the Adjusted Rental. Alternatively,
Landlord may require payment of the Excess Operating Expenses and the Excess
Taxes in a lump sum at the time when the Operating Expenses and Taxes are
available for each calendar year. For purposes of calculating the Excess
Operating Expenses and the Excess Taxes payable with respect to any fractional
calendar year during the Lease Term, Landlord may either (i) estimate Operating
Expenses and Taxes for the portion of the Lease Term during such partial year,
or (ii) estimate Operating Expenses and Taxes for the entire calendar year and
reduce the same to an amount bearing the same proportion to the full amount of
estimated Operating Expenses and estimated Taxes for such year as the number of
days in such fractional calendar year bears to the total number of days in such
full calendar year. All payments of Excess Operating Expenses and Excess Taxes
based upon an estimate of Landlord shall be subject to adjustment as more
particularly described in Paragraph 3 of this Exhibit E.
4. On or before May 1 of each calendar year during the Lease Term (or of
the calendar year immediately succeeding the termination of this Lease), or as
soon thereafter as practical, Landlord shall furnish to Tenant a statement of
the Operating Expenses, the Operating Expenses Per Square Foot of RA and the RA
of the Premises for the previous calendar year. If Tenant's total payments of
Excess Operating Expenses for any calendar year (or portion thereof) during the
Lease Term (based on Landlord's estimate of the Excess Operating Expenses)
exceed the Excess Operating Expenses actually due during such year (or portion
thereof), then Landlord, at Landlord's sole option, either shall credit to
Tenant's account or shall refund to Tenant any overpayment. Likewise, Tenant
shall pay to Landlord within ten (10) days after written demand, the amount by
which the Excess Operating Expenses for any calendar year (or portion thereof)
during the Lease Term, exceed the Excess Operating Expenses payments received by
Landlord from Tenant for such calendar Year (or portion thereof).
5. If the Applicable Leased Buildings taken as a whole shall be less than
ninety-five percent (95%) occupied during any calendar year, Operating Expenses
for such calendar year shall be increased to equal Operating Expenses for the
Applicable Leased Buildings as if they were 95% occupied during such calendar
year.
6. Tenant's obligation to pay additional rent pursuant to this Exhibit E
shall survive any termination or expiration of this Lease, and shall continue
and shall cover all periods+ up to the termination date of this Lease as
calculated pursuant to the Basic Lease Information. If Landlord terminates this
Lease without specifically waiving in writing Landlord's right to seek damages
against Tenant, Tenant's obligations to pay any and all additional rent pursuant
to this Lease shall not terminate as a result thereof.
7. Definitions. As used herein:
(a) The term "Applicable Leased Buildings" shall mean Buildings ___ as
shown on the site plan for the Park provided that (i) if any of said
Buildings shall not be occupied by at least one tenant of Landlord for
at least 180 days during any calendar year, then such Building shall
not be deemed an Applicable Leased Building for such calendar year and
(ii) if any Park Building other than the Buildings listed above shall
be occupied by at least one tenant of Landlord for at least 180 days
during any calendar year then such Building shall be deemed an
Applicable Leased Building for such calendar year;
(b) The term "Applicable Share" shall mean ___%, provided that if the RA of
any Applicable Leased Building or any Park Building shall increase or
decrease such percentage shall be appropriately modified, it being the
intent of the parties that Applicable Share shall mean the aggregate RA
of the Applicable Leased Buildings divided by the RA of all Park
Buildings; and
(c) The term "Operating Expenses Per Square Foot of RA" shall mean
Operating Expenses during the calendar year in question divided by the
aggregate RA of the Applicable Leased Buildings.
Exhibit F
Bankruptcy
1. If a petition is filed by, or an order for relief is entered
against, Tenant under Chapter 7 of the United States Bankruptcy Code (the
"Code") and the trustee of Tenant elects to assume this Lease for the purpose of
assigning it, the election or assignment, or both, may be made only if all of
the terms and conditions of subparagraph a(i) are satisfied. If the trustee
fails to elect to assume this Lease for the purpose of assigning it within sixty
(60) days after his appointment, this Lease will be deemed to have been
rejected. Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee, and this Lease
will be cancelled. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive.
(a) If Tenant files a petition for reorganization under Chapters 11 or
13 of the Code or a proceeding that is filed by or against Tenant under any
other chapter of the Code is converted to a Chapter 11 or 13 proceeding and
Tenant's trustee or Tenant as a debtor-in-possession fails to assume this Lease
within sixty (60) days from the date of the filing of the petition or the
conversion, the trustee or the debtor-in-possession will be deemed to have
rejected this Lease. To be effective, an election to assume this Lease must be
in writing and addressed to Landlord and, in Landlord's business judgment, all
of the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable, must have been satisfied.
(i) The trustee or the debtor-in-possession has cured or has provided
to Landlord adequate assurance, as defined in this subparagraph a, that:
(1) The trustee will cure all monetary defaults under this Lease within
ten (10) days from the date of the assumption; and
The Trustee will cure all non-monetary defaults under this Lease within
thirty (30) days from the date of the assumption.
(2) The trustee or the debtor-in-possession has compensated Landlord,
or has provided to Landlord adequate assurance, as defined in this subparagraph
a, that within ten (10) days from the date of the assumption Landlord will be
compensated for any pecuniary loss Landlord incurred arising from the default of
Tenant, the trustee, or the debtor-in-possession as recited in Landlord's
written statement of pecuniary loss sent to the trustee or the
debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord with
adequate assurance of the future performance of each of Tenant's obligations
under this Lease; provided, however, that:
The trustee or debtor-in-possession will also deposit with Landlord, as
security for the timely payment of rental, an amount equal to three months'
Adjusted Rental and other monetary charges accruing under this Lease.
From and after the date of the assumption of this Lease, the trustee or
debtor-in-possession will pay when due each Adjusted Rental payment due
hereunder.
The obligations imposed upon the trustee or the debtor-in-possession
will continue for Tenant after the completion of bankruptcy proceedings.
(4) Landlord has determined that the assumption of this Lease will not
breach any provision in any other lease, mortgage, financing agreement, or other
agreement by which Landlord is bound relating to the Premises.
(5) For purposes of this subparagraph a, "adequate assurance" means
that:
Landlord will determine that the trustee or the debtor-in-possession
has, and will continue to have, sufficient unencumbered assets after the payment
of all secured obligations and administrative expenses to assure Landlord that
the trustee or the debtor-in-possession will have sufficient funds to fulfill
Tenant's obligations under this Lease; and
(6) An order will have been entered segregating sufficient cash payable
to Landlord and/or a valid and perfected first lien and security interest will
have been granted in property of Tenant, trustee, or debtor-in-possession that
is acceptable for value and kind to Landlord, to secure to Landlord the
obligation of the trustee or debtor-in-possession to cure the monetary or
nonmonetary defaults under this Lease within the time periods set forth above.
(b) In the event that this Lease is assumed by a trustee appointed for
Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph
a and, thereafter, Tenant is either adjudicated a bankrupt or files a subsequent
petition for rearrangement under Chapter 11 of the Code, then Landlord may
terminate, at its option, this Lease and all Tenant's rights under it, by giving
written notice of Landlord's election to terminate.
(c) If the trustee or the debtor-in-possession has assumed this Lease,
under the terms of subparagraph a, to assign or to elect to assign Tenant's
interest under this Lease or the estate created by that interest to any other
person, that interest or estate may be assigned only if Landlord acknowledges in
writing that the intended assignee has provided adequate assurance, as defined
in this subparagraph c, of future performance of all of the terms, covenants,
and conditions of this Lease to be performed by Tenant.
For the purposes of this subparagraph c, adequate assurance of future
performance means that Landlord has ascertained that each of the following
conditions has been satisfied:
(i) The assignee has submitted a current financial statement, audited
by a certified public accountant, that shows a net worth and working capital in
amounts determined by Landlord to be sufficient to assure the future performance
by the assignee of Tenant's obligation under this Lease;
(ii) If requested by Landlord, the assignee will obtain guarantees, in
form and substance satisfactory to Landlord, from one or more persons who
satisfy Landlord's standards of credit worthiness; and
(iii) Landlord has obtained all consents or waivers from any third
party required under any lease, mortgage, financing arrangement, or other
agreement by which Landlord is bound, to enable Landlord to permit the
assignment.
(d) When, pursuant to the Code, the trustee or the debtor-in-possession
is obligated to pay reasonable use and occupancy charges for the use of all or
part of the Premises, the charges will not be less than the Adjusted Rental then
required to be paid by Tenant hereunder.
(e) Neither Tenant's interest in this Lease nor any estate of Tenant
created in this Lease will pass to any trustee, receiver, or assignee for the
benefit of creditors, or any other person or entity, or otherwise by operation
of law under the laws of any state having jurisdiction of the person or property
of Tenant, unless Landlord consents in writing to this transfer. Landlord's
acceptance of rental or any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have, the need to obtain
Landlord's consent or Landlord's right to terminate this Lease for any transfer
of Tenant's interest under this Lease without that consent.
exhibit G
orem site plan
City of Orem EXHIBIT H Appendix E
TIMPANOGOS RESEARCH AND TECHNOLOGY PARK
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
TIMPANOGOS RESEARCH AND TECHNOLOGY PARK
DECLARATION OF COVENANTS; CONDITIONS AND RESTRICTIONS
This Declaration is made this 10th day of April, 1984 by the City of
Orem, Utah, a Utah municipal corporation hereinafter referred to as "Declarant."
Witnesseth:
WHEREAS; Declarant is the owner of certain property in the City of
Orem, County of Utah, State of Utah, known as the Timpanogos Research and
Technology Park, which is more particularly described in "Exhibit A" attached
hereto and by this reference incorporated herein, hereinafter referred to as the
"Entire Property"; and
WHEREAS, Declarant desires to create on the Entire Property a research
and technology park and desires to provide for the preservation of the values
and amenities in said development. To this end, and for the benefit of the
Entire Property and the Owners thereof, Declarant desires to subject the Entire
Property to the covenants, conditions, restrictions charges and liens
hereinafter set forth; and
WHEREAS, Declarant desires to develop the Entire Property in individual
units (hereinafter referred to as "Lots"), each of which shall be subject to
this Declaration.
NOW, THEREFORE, Declarant hereby declares that the Entire Property
described above shall be held, sold, conveyed, transferred, developed, leased,
subleased, and occupied subject to the following covenants, conditions and
restrictions which shall run with the Entire Property or any portion thereof and
which are for the purpose of protecting the value and desirability of the Entire
Property, and every portion thereof, and shall be binding upon all parties
having any right, title, or interest in the Entire Property or any portion
thereof, their heirs, successors and assigns, and shall inure to the benefit of
each Owner thereof.
ARTICLE 1
Definitions
Section 1. "Owner" shall mean the record owner, whether one or more
persons or entities, fee simple title to any Lot which is part of the Entire
Property (or in the event of a sale/leaseback transaction involving any Lot, the
lessee or lessees thereunder) but excluding those having such interest solely as
security for the performance of any obligation in which event the equitable
owner of such fee simple title shall be deemed to be the Owner thereof.
Section 2. "Lot" shall mean any parcel of land shown upon any recorded
subdivision plat of the Entire Property, except dedicated public rights-of-way.
Section 3. "Committee" shall mean the Architectural and Development
Control Committee as defined in Article III hereof.
Section 4. "Declarant" shall mean the City of Orem, Utah or its
Successors and Assigns, if such successors and assigns are the owners of any
portion of the Entire Property an/or are designated by the City of Orem, Utah to
perform the obligations of Declarant hereunder.
Section 5. "Building" shall mean and include, but not be limited to,
the main portion of a structure built for permanent use and all projections or
extensions thereof, including but not limited to garages, outside storage
structures and areas, outside platforms, canopies, enclosed malls and porches.
Section 6. "Improvements" shall mean and include, but not be limited
to, buildings, driveways, exterior lighting, fences, landscaping, lawns, loading
areas, parking areas, retaining walls, roads, screening walls, signs, utilities,
walkways, and berms, which are located on a Lot.
Section 7. "Landscaping" shall mean a space of ground covered with
lawn, living ground cover, shrubbery, trees and similar vegetation which may be
complimented with earth berms, masonry or similar materials, all harmoniously
combined with other improvements.
Section 8. "Occupant" shall mean an entity, whether it be an
individual, corporation, joint venture, partnership or association, which has
purchased, leased, rented or otherwise legally acquired the right to occupy and
use any building or Lot, whether or not such right is exercised.
Section 9. "Park" shall mean the Entire Property as from time to time
developed and known as the "Timpanogos Research and Technology Park."
Section 10. "Land Areas" shall mean the entire parcel referred to
except dedicated public rights-of way.
Section 11. "Set Back" shall mean the distance from the property line
of the Lot to the Improvement that is subject to the Set Back requirement is
provided for in this Declaration.
ARTICLE 2
USES
Section 1. Entire Property: Each Lot shall be developed pursuant to a
conditional use permit issued by the City. No portion of the Entire Property may
be occupied by any use which is in violation of applicable ordinances, laws, and
regulations of any governmental entity having jurisdiction over the use of any
portion of the Entire Property.
Section 2. Partial Prohibition: No portion of the Entire Property shall
be used for activities other than those related to, compatible with, or in
support of scientific, technological or innovative research and development,
both basic and applied, and those uses which will allow the Timpanogos Research
and Technology Park to be self-sufficient and self-contained. Research and
production operations may be permitted wherein: (1) because of the nature of the
technology involved in such production (such as the production of integrated
circuits and solid state products), the research and production facilities on
said land are mutually dependent, or (2) the production operations are: (i)
developmental in nature, and (ii) are substantially dependent on frequent and
close collaboration with research personnel working in these facilities.
However, support services directly related to and in support of the ongoing
purposes and nature of the Park or for the establishment of a public park and/or
recreational facilities for the use and enjoyment of Park tenants and others may
be permitted. All support services shall be located within the main buildings.
The type and location of all uses shall be approved by the Orem City Council.
Section 3. Performance Standards: No Lot or Improvement shall be used
for any activity which does not comply with federal, state, and local laws and
regulations regarding noise, odor, air quality, water quality, waste water
discharge, electrical interference, and hazardous materials.
Section 4. Hours of Use: The Declarant may determine hours of use of
each business as a requirement of the Conditional Use Permit.
ARTICLE 3
Architectural and Development Controls
Section 1. Architectural and Development Control Committee: The Orem
City Council shall appoint a five (5) member Architectural and Development
Control Committee, herein referred to as the "Committee," the function of which
shall be to insure that all improvements on the Entire Property harmonize with
existing surroundings and structures and meet the restrictions and requirements
described in this Declaration or as contained in any Development Guidelines
established by the Declarant.
Section 2. Submission to Committee: No Improvement shall be constructed
and no significant alteration of any Improvement situated on a Lot shall be
performed, unless complete plans and specifications therefore have first been
submitted to and approved in writing by the Committee, which approval shall not
be unreasonably refused.
Section 3. Approval Procedure: Any plans and specifications submitted
to the Committee shall be approved or disapproved by it in writing within thirty
(30) days after submission. In the event the Committee fails to take any action
within such period, it shall be deemed to have approved the material submitted;
provided, however, that with respect to any such material which constitutes a
variation or waiver of any of the requirements in this Declaration stated, such
variation or waiver shall be deemed to have been refused. Approval by the
Committee shall be in addition to, and shall not supercede compliance with all
City requirements involving, but not limited to, the conditional use permit
controlling the development of the Lot.
Section 4. Standards: In deciding whether to approve or disapprove
plans and specifications submitted to it, the Committee shall use its best
judgment to insure that all improvements, construction, landscaping, and
alterations on Lots within the Entire Property conform to and harmonize with the
requirements and restrictions of this Declaration.
Section 5. Development Guidelines:
(a) The Declarant shall adopt such Development Guidelines as it
deems necessary to inform owners and interested parties of the
standards which will be applied in approving or disapproving proposed
construction.
(b) Such guidelines may amplify but may not be less restrictive
than the regulations and restrictions stated in this Declaration and
shall be binding upon all Owners of Lots within the Entire Property
provided, however, that such Owners may modify such guidelines as set
forth in Article V. Section 4 of this Declaration.
(c) Such guidelines shall specifically state the rules and
regulations of the Declarant with respect to the submission of plans
and specifications for approval, time or times within which such plans
and specifications must be submitted, and state such other rules,
regulations, and policies which the Committee will consider in
approving or disapproving proposed construction of or alteration to
Improvements.
Section 6. Basis for Approval: Review and approval by the Committee
must be based upon the standards set forth in this Declaration and in the
Development Guidelines. The Committee shall consider not only the quality of the
specific proposal but also its effect and impact upon neighboring Lots, the
Entire Property, and the surrounding residential neighborhoods
Section 7. No liability for damages: The Committee shall not be liable
for damages by reason of any action, inaction, approval, or disapproval by it
with respect to any requirement made pursuant to this Article.
Section 8. Declarant's Obligation: Declarant hereby covenants in favor
of each Owner that all Improvements erected by it shall be architecturally
compatible with respect to one another, with this Declaration, and with the
Development Guidelines.
ARTICLE 4
Improvements
Improvements on Lots shall be constructed strictly in accordance with
the following restrictions and requirements:
Section 1. Construction of Improvements:
(a) Temporary Structures: No temporary building or other
temporary structure shall be permitted on any Lot: provided, however, that
trailers, temporary buildings and the like shall be permitted for construction
purposes during the construction period of a permanent building. Such structures
shall be placed as inconspicuously as practicable, shall cause no inconvenience
to Owners or Occupants or other Lots, and shall be removed no later than the
date of the issuance of an occupancy permit for the Building in connection with
which the temporary structure was used.
(b) Construction Period: Construction of principal buildings
shall be commenced within twelve (12) months of the date of closing of the
purchase of the lot provided, however, that the Declarant may grant a one (1)
time written extension of up to one (1) year's time period upon conditions it
deems appropriate. In order to ensure that construction begins within the twelve
(12) month period, the owner shall post a cash bond equal to ten percent (10%)
of the purchase price of the Lot(s) purchased at the time the lot was purchased.
In the event construction is not begun within the twelve (12) month period and
no extension is granted, the Owner shall deed the property and all improvements
thereon back to the Declarant, free of all title defects and encumbrances of any
kind, the Declarant shall pay to the Owner a sum equal to the purchase price of
the Lot, and the bond shall be forfeited to Declarant as liquidated damages. If
construction is begun in a timely fashion. Declarant shall reimburse the amount
of the bond plus interest accrued thereon to the owner upon issuance of the
final occupancy permit by the City.
Section 2. Location of Buildings
(a) Setbacks: Buildings on all Lots shall be set back a
minimum of fifty (50) feet from any dedicated street and twenty (20) feet from
any other property line.
(b) Land Coverage: The size of any Lot shall be limited to a
minimum of three (3) acres and a maximum of twenty-five (25) acres. All building
and parking areas on any Lot shall not occupy more than sixty (60) percent of
the total area of said Lot. The remaining portion of the Lot, not to be less
than forty (40) percent, shall be landscaped.
Section 3. Building Standards: Buildings shall be constructed according
to the following standards and guidelines:
(a) Materials: All structures must be finished on all sides
with materials approved by the Committee. The following materials shall not be
allowed for exterior finish: Metal clad, metal roofs, wooden and metal materials
other than accent trim, concrete block and plaster. Acceptable finishing
materials include brick, glass, and select forms of aggregate.
(b) Colors: All buildings shall be finished in colors which
will blend with the environment
(c) Height: Building height is restricted to a maximum of
thirty-six (36) feet exclusive of roof mounted mechanical equipment.
(d) Outside Storage: All storage and storage activities
outside of the main buildings, except loading and unloading, shall be conducted
within a building or enclosure constructed with the same exterior finish as the
main building. The design of all storage buildings and enclosures shall be
approved by the Committee.
Section 4. Parking Areas: Parking Areas shall be constructed and
maintained by the Owner as follows:
(a) Parking Surfaces: All parking spaces, parking areas and
driveways must be constructed in accordance with standards established by the
City.
(b) Parking Setbacks: All parking areas shall be set back a
minimum of fifty (50) feet from all dedicated public streets. Where possible,
all parking areas shall be located to the rear of the building(s).
(c) Parking Requirements: Parking on public streets within
the Park is prohibited. There shall be sufficient land allocated by the Owner to
provide one space per 000 xxxxxx xxxx xx xxxxx xxxxx xxxx. The minimum parking
requirements may be modified by the Declarant in its judgment and discretion.
(d) Screening of Parking Areas: All parking areas shall be
substantially screened from streets and adjoining Lots by appropriate
landscaping.
Section 5. Site Landscaping:
(a) Landscaping and lighting plans shall be submitted to the
Declarant for approval as a part of the site plan.
(b) All site landscaping requirements shall be completed
within ninety (90) days of completion of the building construction. However,
this requirement may be varied by the Declarant.
Section 6. Signs shall be in conformance with standards and guidelines
established by the City.
Section 7. Maintenance: Buildings, Landscaping, and other improvements
shall be continuously maintained so as to preserve a well kept appearance. If
the Committee is not satisfied with the level of maintenance on a Lot, it shall
so notify the Owner in writing and the Owner shall have thirty (30) days
thereafter in which to restore its Lot to a level of maintenance acceptable to
the Committee. If in the Committee's opinion, the Owner has failed to bring the
Lot to any acceptable standard within such thirty (30) day period, the Committee
may order the necessary work performed on the Lot at the Owner's expense.
Failure to properly maintain Improvements shall be adequate grounds for
revocation of the Conditional Use Permit by the City.
Section 8. Utility Connections: All utility lines, connections and
installations must be underground and rise within a building or fixture. Any
external transformers, meters, or similar fixtures shall be installed below
ground level or shall be located no more than three (3) feet from a building,
must be installed no more than three (3) feet above ground level and must be
screened.
Section 9. Mechanical Equipment: All mechanical equipment incidental to
any building, including roof mounted mechanical equipment, shall be totally
enclosed or screened so as to be an integral part of the architectural design of
the building to which it is attached or related unless otherwise approved by the
Committee and the Declarant.
ARTICLE 5
General Provisions
Section 1. Enforcement: The Declarant, the Committee, or any Owner
shall have the right to enforce, by any proceeding at law or in equity, all
restrictions, conditions, covenants, and reservations of this Declaration.
Failure of the Declarant, the Committee or any Owner to enforce any covenant or
restriction herein contained shall in no event be deemed a waiver of the right
to do so thereafter.
Section 2. Severability: Invalidation of any one of these covenants or
restrictions by judgment or court order shall in no way affect any other
provisions which shall remain in full force and effect.
Section 3. Duration: The covenants and restrictions of this Declaration
shall run with and bind the land for a term of twenty (20) years from the date
this Declaration is recorded, after which time they shall be automatically
extended for successive periods of ten (10) years, to a maximum of 99 years
unless terminated at the end of any such period by vote of the Owners and
Declarant as set forth in Section 4 of this Article.
Section 4. Modification, Consents, Terminations and Amendments: Any
modification of the Development Guidelines (as authorized to be established in
Article III Section 5 hereof), termination of this Declaration (as set forth in
Article V Section 3 hereof) or amendments of this Declaration shall take place
only by the affirmative vote of two-thirds of all votes entitled to be voted.
Each Owner, except Declarant, shall have one vote for each acre of land, or any
fraction thereof owned by it. Declarant shall have votes equal to the total
votes of all Owners other than Declarant or one vote per acre or any fraction
thereof owned by it in the Entire Property, whichever is greater. Any
modification of this Declaration must be recorded.
Section 5. No Severance of Right From Ownership of a Lot: No Owner of
any Lot shall convey his interest under this Declaration.
Section 6. Interpretation: The captions which precede the Articles and
Sections of this Declaration are for convenience only and shall in no way affect
the manner in which any provision hereof is construed. Whenever the context so
requires, the singular shall include the plural, the plural shall include the
singular, the whole shall include any part thereof, and any gender shall include
both genders. The provisions of any portion of this Declaration shall be
liberally construed to effect all of its purposes. These Covenants, Conditions
and Restrictions shall be construed in accordance with the laws of the State of
Utah.
PASSED AND APPROVED this 10th day of April, 1984.
XxXxxxx X. Xxxxxx
------------------------
CITY OF OREM, BY
XxXxxxx X. Xxxxxx, Mayor
ATTEST:
Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, City Recorder
STATE OF UTAH )
: ss.
COUNTY OF UTAH )
On the 14th day of March, 1985, personally appeared before me XxXxxxx
X. Xxxxxx, who, being by me duly sworn, did say that he is the Mayor of the City
of Orem, a Utah municipal corporation, that the foregoing instrument was signed
in behalf of said City of Orem by authority of its ordinances and State law and
the said XxXxxxx X. Square acknowledged to me that said City of Orem executed
the same.
Xxxxxx Xxxxxx
-------------
NOTARY PUBLIC
My Commission expires: July 27, 1986
-------------
Residing at: Orem, Utah
----------
Timpanogos Research and Technology Park Boundary Description
Commencing at the Southeast Xxxxxx xx Xxxxxxx 0, Xxxxxxxx 0 Xxxxx,
Xxxxx 2 East, Salt Lake Base and Meridian: thence S 89(degree) 54' 39" W along
the Section Line 1679.04 feet: Thence N 0(degree) 05' 21" W 792.00 feet; thence
S 89(degree) 54' 39" W 330.03 feet: thence N 0(degree) 05' W 1677.89 feet to the
North Right-of-Way Line of the Xxxxxxx Canal; thence N 74(degree) 34' 30" E
along said Right-of-Way Line 155.91 feet to a point of curvature of a 235.00
foot radius curve to the right: thence along said curve and said Right-of-Way
Line 151.76 feet through a central angle of 37(degree) 00' 04": thence N
0(degree) 58' 39" W 194.68 feet on the North Right-of-Way Line of 0000 Xxxxx
Xxxxxx; thence along said Right-of-Way Line the next five courses; S 89(degree)
37' E 521.35 feet to a point of curvature of a 533.00 foot radius curve to the
right; thence along said curve 191.79 feet through a central angle of 20(degree)
37'; thence S 69(degree) 00' E 476.34 feet to a point of curvature of a 533.00
foot radius curve to the right; thence along said curve 158.14 feet through a
central angle of 17(degree) 00'; thence S 52(degree) 00' E 494.01 feet to the
Section Line; thence S 1(degree) 00' 22" E along the Section Line 2103.89 feet
to the Point of Beginning.
Contains 109.7155 acres.
Basis of Bearing is the Utah State Plane Coordinates System, Central
Zone
Exhibit I
Parking
Provided Tenant is not in default hereunder, Tenant shall be permitted
to use the parking area situated upon the Land for parking (i.e. 1 parking space
for each 300 rentable square feet of the Premises), on a free and unreserved
basis subject to such terms, conditions and regulations as are from time to time
applicable to patrons of said parking area. Notwithstanding the foregoing,
Landlord reserves the right to designate, in its sole discretion, certain
parking spaces as reserved spaces as Landlord so chooses. Tenant agrees that
without written permission from Landlord, Tenant and Tenant's agents and
employees shall not park within the areas so designated by Landlord as reserved
spaces, or spaces for visitors, handicapped, security and service vehicles.
Landlord shall not be liable or responsible for any loss of or to any car or
vehicle or equipment or other property therein or damage to property or injuries
(fatal or nonfatal) from any cause whatsoever while such car or vehicle is on
the Land or parked within said parking areas. Landlord may make, modify, and
enforce rules and regulations relations to the parking of vehicles and Tenant
will abide by such rules and regulations provided same do not materially and
adversely affect Tenant's parking hereunder. Landlord shall have no liability to
Tenant, its employees and visitors for any damage, loss, injury, etc. to person
or property by reason of Tenant's use of the parking area.
Exhibit J
Right of first offer
If at any time after the Commencement Date during the initial Term of
the Lease, Landlord desires to lease the Right of First Offer Space as defined
in the Basic Lease information (the "ROFO space") to a third party, Landlord
will give Tenant prompt written notice of such availability, the date of the
availability, the Basic Rental which Landlord will be offering to lease the ROFO
Space and all other material terms. For a period of ten (10) business days after
Tenant's receipt of Landlord's notice, provided Tenant is not in default
hereunder on the day Tenant exercises such right and on the commencement date of
the new Lease. Tenant will have the right (the "ROFO Right") to notify Landlord
of its desire to lease the ROFO Space at the Basic Rental and other materials
terms set forth in Landlord's notice. If Landlord shall timely receive Tenant's
notice of its desire to lease ROFO Space, Landlord and Tenant will execute a
lease memorializing Tenant's lease for the ROFO Space, which will contain the
terms set forth in Landlord's notice and the terms and transaction. Tenant's
failure to timely notify Landlord of its desire to Lease the ROFO Space being
offered within the time period set forth above will be deemed a waiver of
Tenant's ROFO Right with respect to such ROFO Space and such offer. TIME SHALL
BE OF THE ESSENCE with respect to Tenant exercising its ROFO Right. This Right
of First Offer is subject to the prior rights of any other tenant.
