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Exhibit 10.7
COMMERCIAL LEASE
THIS LEASE (the "Lease") dated this 3rd day of November, 1997, is
entered into by and between DRAPER LAND LIMITED PARTNERSHIP NO. 2, a Utah
limited partnership ("Landlord"), and 1-800-LENS-NOW, INC. DBA 1-800-CONTACTS,
a Utah Corporation ("Tenant").
1. PREMISES.
(a) Description. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, for the term and subject to the terms and
conditions hereinafter set forth, to each and all of which Landlord and Tenant
hereby mutually agree, those certain premises (the "Premises"), highlighted on
Exhibit A attached hereto, which include approximately 23,000 Rentable square
feet of office space (the exact Rentable square footage and location to be
determined by final space plan). The location of the Premises is commonly
known as: Building B, approximately 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxxx,
Xxxx.
(b) Additional Use. In addition, the Premises shall include the
appurtenant right to use, in common with others, the site, parking and
landscaped areas. Landlord shall provide Tenant, at no additional charge, the
use of 112 non-reserved parking stalls in the adjacent parking lot. Tenant
shall further have the use, at no additional charge, of 15 non-reserved stalls
located anywhere in the business park, subject to availability. Landlord shall
also provide Tenant with the use of an additional 65 stalls at a charge of $35
per month per stall which monthly charge shall be payable as Additional Rent.
Tenant shall be responsible for the costs of repair and maintenance on these 65
stalls which costs shall also be payable as Additional Rent.
(c) Acceptance of Premises. Unless otherwise notified by Tenant
within thirty (30) days of taking possession, by entry hereunder Tenant accepts
the Premises as being in the condition in which Landlord is obligated to
deliver the Premises. Tenant shall at the end of the term and any extension
herein surrender to Landlord the Premises and all alterations, additions and
improvements thereto in the same condition as when received; ordinary wear and
tear, damage by fire, earthquake, or act of God excepted. Landlord has no
liability and has made no representation to alter, improve, repair, or paint
the Premises or any part thereof, except as specified in Article 2(c), 2(d) & 6
herein.
2. TERM, OPTION, TENANT IMPROVEMENTS.
(a) Lease Term. The initial Lease Term shall be eighty-four (84)
months and shall commence on the earlier of substantial completion of tenant
improvements or May 25, 1998 ("Commencement Date"), which Commencement Date is
subject to the substantial completion of Tenant Improvements. If Landlord is
solely responsible for not delivering possession of the Premises to Tenant
within forty-five (45) days of the Commencement Date, Tenant may upon ten (10)
days written notice terminate the Lease. In the event of Tenant's termination
due to late delivery, Landlord shall not be liable to tenant for any damage of
any kind resulting from such late
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delivery or failure to deliver possession of the Premises. Tenant shall not be
responsible to pay any Rents for the first month of the Lease Term.
(b) Option. Provided that Tenant is not in default under the
Lease, Tenant may by written notice to Landlord, not later than one hundred
fifty (150) days prior to the expiration of the Lease, extend the Lease by
exercising a (one-time) 5-year option. Tenant shall possess the Premises
during the option period upon the same terms and conditions of the Lease,
except that Base Rent under Article 4(a) herein will be adjusted for the option
period to the then fair market rate for similar space in similar condition in
the surrounding area.
(c) Base Building Improvements. At Landlords sole cost and
expense, Landlord shall design, construct and install the Building's roof and
structural elements ("Shell"), shall provide basic utility access to and an
initial HVAC unit for the Premises, and shall design and construct the common
areas of the Premises and Building, as more specifically outlined in Exhibit B
- Base Building Improvements (collectively "Base Building Improvements"). Any
improvements made to Building at the request of Tenant beyond those specified
in Exhibit B shall be considered Tenant Improvements.
(d) Tenant Improvements. At execution of the Lease, Landlord shall
continence the building design, construction and installation of agreed-upon
Tenant Improvements as provided for in Exhibit C - Tenant Improvements
Construction With Tenant Improvement Allowance (collectively "Tenant
Improvements").
(e) Substantial Completion of Tenant Improvements. The Premises
shall be deemed complete when Landlord has substantially completed the Tenant
Improvements. "Substantial Completion" shall mean when (i) installation of
Tenant Improvements has occurred, (ii) Basic utility services are available to
the Premises, (iii) Landlord's Architect/Contractor shall have issued a
Certificate of Substantial Completion with respect to Premises or that portion
of the Building within are contained, whether or not Substantial Completion of
the entire Building itself shall have occurred, and (iv) issuance of a
temporary Certificate of Occupancy. Substantial Completion shall be deemed to
have occurred notwithstanding a requirement to complete "punch-list" work,
which shall be completed within a reasonable time by Landlord. Landlord shall
use its best efforts to advise Tenant of Substantial Completion at least thirty
(30) days prior to such date, but the failure to give such notice shall not
constitute a default hereunder by Landlord.
3. NON-OCCUPANCY OF IMPROVED SPACE.
In the event Tenant does not occupy the Premises and fails to pay Rents
as required in Article 4 of the Lease, all costs for Tenant Improvements become
due and payable upon invoicing by Landlord, subject to reasonable mitigation by
Landlord for use with next tenant. Further, such invoicing by Landlord does
not waive any other rights or remedies Landlord may have against Tenant for
failure to occupy.
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4. RENT.
(a) Base Rent. Total Base Rent shall be $16.50 per Rentable square
foot or (a)$379,500+-, subject to an annual increase as provided below,
payable as follows: $31,625+- per month payable in advance on or before the 1st
day of each month during the duration of the Lease, with the first such monthly
rental payments being due upon the execution of the Lease. This Base Rent is
estimated herein since the square footage is approximated. The exact Base Rent
will be determined according to the square footage stated in the final space
plan. Any partial months shall be prorated accordingly. Base Rent under this
Article shall be increased by $.60 per year after the thirteenth month of the
Lease Term and each year thereafter including during any option period (after
adjustment to fair market value at the beginning of the option period). All
Base Rent and Additional Rent (collectively "Rents") shall be paid as follows,
unless otherwise directed in writing: Draper Land Partnership II, 00 Xxxx
Xxxxxxxxx Xxxx Xx., Xxxxxx, XX 00000, Attn: Xxx Xxxxxxxxx.
(b) Additional Rent. All obligations payable by Tenant under the
Lease other than Base Rent are called "Additional Rent" and shall include but
not be limited to the costs of any Tenant Improvements to be paid by Tenant,
excess Operating Expenses and actual costs associated with the usage of the
HVAC system and lights other than during ordinary business hours. Additional
Rent shall be paid monthly with Base Rent pursuant to the Lease, unless
otherwise invoiced by Landlord.
(c) Interest, Late Charges, Costs and Attorneys' Fees. If Tenant
fails to pay within ten (10) days of the date due any Rents which Tenant is
obligated to pay under the Lease, the unpaid amount shall bear interest at ten
(10%) percent per annum. Tenant acknowledges that any late payments of Rents
shall cause Landlord to lose the use of that money and incur costs and expenses
not contemplated under the Lease, including without limitation administrative,
collection and accounting costs, the exact amount of which is difficult to
ascertain. Therefore, in addition to interest, any late payments shall be
accompanied by a payment of a late charge equal to five (5%) percent of the
late Rents. Further, as Additional Rent, Tenant shall be liable to Landlord
for costs and attorneys' fees incurred as a result of late payments or
non-payments. Acceptance of any interest, late charge, costs or attorneys'
fees shall not constitute a waiver of any default by Tenant nor prevent
Landlord from exercising any other rights or remedies under the Lease or at
law.
5. USE.
(a) The Premises shall be used for general office space and any
other lawful purpose incidental to Tenant's business, and no other, unless
consented to in writing by Landlord. Tenant shall not do or permit to be done
in or about the Premises or Building anything which is prohibited by or in any
way in conflict with any and all laws, statutes, ordinances, rules and
regulations now in force or which may hereafter be enacted or promulgated or
which is prohibited by the standard form of fire insurance policy, or which
will increase the existing rate of or affect any fire or other insurance upon
the Premises or Building or any of its contents, or cause a cancellation of any
insurance policy covering the Premises or Building or any part thereof or any
of its contents. Tenant shall not handle, use, store or otherwise put any
hazardous material on the Premises, without first notifying Landlord of its
intention to do so and identifying the hazardous material and safety plan which
shall ensure that any such hazardous material is properly controlled,
safeguarded, and
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disposed of, and obtaining Landlord's prior written consent, which consent may
be reasonably withheld and may be conditioned upon absolute indemnification by
Tenant and accompanying bond. Tenant shall not do or permit anything to be
done in or about the Premises or Building which will in any way violate Rules
or Regulations reasonably promulgated by Landlord throughout the Lease,
obstruct or interfere with the rights of other tenants, or injure them, or use
or allow the Premises or Building to be used for any improper, immoral, or
unlawful purpose, nor shall Tenant cause, maintain or permit any nuisance, in,
on or about the Premises or Building or commit or suffer to be committed any
waste in, on or about the Premises or Building.
(b) Tenant shall not use the name of the Building in which the
Premises are located, in connection with any business carried on in said
Premises (except as Tenant's address) without written consent of Landlord.
(c) Tenant shall not manufacture, assemble or store materials
inside the common areas outside of Building.
6. LANDLORD'S SERVICES.
(a) Landlord is responsible to maintain the Premises and Building
(including the roof and structure). All Operating Expenses, including but not
limited to repairs, maintenance, common area utilities, janitorial, sewer and
garbage, insurance, taxes, property management and other operating expenses
("Operating Expenses") on the Premises, Building, and common areas shall be
coordinated by Landlord and are the financial responsibility of Landlord to the
extent that Tenant's pro rata share of such expenses does not exceed on an
annual basis $4.25 per Rentable square foot of space leased by Tenant.
Proration shall be on a square footage basis with all other tenants and
Tenant's proration shall be calculated by multiplying the Operating Expenses by
an equation, the numerator being the Rentable square feet of the Premises and
the denominator being the total Rentable square feet of the Building. In the
event Operating Expenses exceed $4.25 per Rentable square foot of space,
Operating Expenses shall be prorated to Tenant and be payable by Tenant as
Additional Rent. As soon as is reasonably possible, but in any event within
ninety (90) days following the end of each calendar year, Landlord shall
furnish to Tenant a statement showing the Premises' and Building's actual
Operating Expenses for the preceding calendar year. In the case of excess
Operating Expenses, Tenant shall promptly remit its pro rata share of such
excess to Landlord. Tenant may review at his sole cost and expense any
Operating Expenses prorated to Tenant by Landlord, including assessed Real
Estate Taxes as may be statutorily allowed. All costs that are within the
reasonable control of the Landlord, excluding property taxes, shall not
increase by more than 4% per year. Landlord shall make available the
applicable Operating Expenses' invoices and statements. However, any such
review must be requested and completed within sixty (60) days of receipt of the
annual statement.
(b) Tenant shall be responsible for the costs associated with usage
of the HVAC and lighting systems during times other than Ordinary Business
Hours as set forth in the Rules and Regulations. Additional utility cost shall
be paid only when the tenant exceeds his square foot Operating Expense.
Landlord may separately meter all utility usage of Tenants premises.
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7. ALTERATIONS.
(a) Tenant will not make or suffer to be made any alterations,
additions or improvements in excess of $2,500, excluding the initial Tenant
Improvements, (collectively "Alterations") to or upon the Premises, Building,
or any part thereof, or attach any fixtures or equipment thereto, without first
obtaining Landlord's written approval, which shall not be unreasonably withheld
or delayed. Any Alterations to or upon the Premises shall be made by Tenant at
Tenant's sole cost and expense and any contractor selected by Tenant to make
the same shall be subject to Landlord's reasonable prior written approval. All
such Alterations permanent in character, made in or upon the Premises either by
Tenant or Landlord, may at the option of Landlord, become Landlord's property
and, at the end of the term or any extension hereof, shall remain on the
Premises without compensation to Tenant unless Landlord requests that Tenant
remove any such Alterations. Notwithstanding the above, Tenant's work stations
and other items of personal property shall remain Tenant's property.
(b) Any Alterations shall, when completed, be of such a character
as not to lessen the value of the Premises or such improvements as may be then
located thereon. Any Alterations shall be made promptly and in a good
workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws and with all other laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments, departments, commissions, boards and offices. The
costs of any such Alterations shall be paid by Tenant, so that the Premises be
free of liens, for services performed, labor and material supplied or claimed
to have been supplied. Before any Alterations shall be commenced, Tenant shall
pay any increase in premiums on insurance policies (provided for herein) or
ensure adequate coverage is in place for all risks related to the construction
of such Alterations and the increased value of the Premises.
8. LIENS.
Tenant shall keep the Premises and the Building free from any
mechanics' and/or materialmen's liens or other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Tenant shall
notify Landlord in writing at least seventy-two (72) hours before any work or
activity is to commence on the Premises which may give rise to such liens to
allow Landlord to post and keep posted on the Premises any notices which
Landlord may deem to be proper for the protection of Landlord and the Premises
from such liens.
9. DESTRUCTION OR DAMAGE.
(a) If the Premises is partially damaged by fire, earthquake, or
other Act of God, Landlord shall repair the same at Landlord's expense, subject
to the provisions of this Article and provided such repairs can, in Landlord's
reasonable opinion, be made within sixty (60) days. During such repairs, the
Lease shall remain in full force and effect, except that if there shall be
damage to the Premises and such damage is not the result of the negligence or
willful misconduct of Tenant, Tenant's employees, agents, or invitees, an
abatement of Rents shall be allowed Tenant for such portion of Premises and
period of time as the Premises was unusable by Tenant.
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(b) If in Landlord's reasonable opinion the partially damaged
Premises can be repaired, but not within sixty (60) days, the Landlord may
elect, upon written notice to Tenant within thirty (30) days of such damages,
to repair such damages over a longer time period and continue the Lease in full
force and effect, but with Rents partially abated as provided in Article 9(a).
In the event such repairs cannot be made within sixty (60) days, Tenant shall
have the option to terminate the Lease provided that written notice is given to
Landlord within thirty (30) days of receipt of Landlord's notice stated in this
paragraph.
(c) If the partially damaged Premises is to be repaired under this
Article, Landlord shall repair such damages to the Premises itself, and to the
Tenant Improvements supplied by Landlord herein. Except in the event of
Landlord's gross negligence or willful misconduct, Tenant shall be responsible
for Tenant's equipment, furniture and fixtures, and other alterations,
additions and improvements made by Tenant to the Premises and Building.
(d) If in Landlord's reasonable opinion, the Premises is totally or
substantially destroyed by fire or other casualty, the Lease shall terminate
upon notice by Landlord.
10. SUBROGATION.
Landlord and Tenant shall each, prior to Tenant's taking possession or
immediately after the execution of the Lease, procure from each of the insurers
under all policies of fire, theft, public liability, workmen's compensation and
other insurance now or hereafter existing during the term and any extension
hereof and purchased by either of them insuring or covering the Premises and/or
Building or any portion thereof or operations therein, a waiver of all rights
of subrogation which the insurer might otherwise, if at all, have against the
other.
11. INDEMNIFICATION.
Tenant and Landlord hereby agree to indemnify and hold the other party
harmless from any damage to any property, including the release of any
hazardous materials, or injury to or death of any person arising from the use
of the Premises, Building, or common areas by Tenant or the ownership,
management or maintenance of the Premises, Building, or common areas by
Landlord, except such as is caused by reason of the negligent or willful act of
the other party, its agents, employees or contractors. The foregoing indemnity
obligation of Tenant and Landlord shall include reasonable fees, investigation
costs and all other reasonable costs and expenses incurred by Landlord or
Tenant from the first notice that any claim or demand is made, except in the
event of the other party's negligence or willful misconduct. The provisions of
this Article shall survive the Lease's termination with respect to any damage,
injury or death occurring prior to such termination.
12. COMPLIANCE WITH LEGAL REQUIREMENTS.
Tenant shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or requirements
now in force or which may hereafter be in force, the requirements of any board
of fire underwriters or other similar body now or hereafter constituted, any
direction or occupancy certificate issued pursuant to any law by any public
officer
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or officers, as well as the provisions of all recorded documents affecting the
Premises, (collectively the "Applicable Laws"), insofar as any thereof relate
to or affect the use or occupancy of the Premises, Building, or common areas,
excluding requirements of structural changes now related to or affected by
improvements made by or for Tenant.
Landlord shall, at its sole cost and expense, promptly comply with all
Applicable Laws, including the American with Disabilities Act ("ADA"), insofar
as any thereof relate to or affect Landlord's obligations under the Lease, or
its ownership of the Premises, Building, or common areas, except for Tenant's
requirements in the immediately preceding paragraph herein.
13. INSURANCE.
(a) Commercial General Liability. Tenant shall, maintain a
Commercial General Liability policy including all coverages normally provided
therein. Such policies shall specifically name Landlord as an additional
insured, with a cancellation period of thirty (30) days prior written notice of
a cancellation. A Certificate of Insurance shall be provided to Landlord. All
polices of insurance shall be issued by responsible insurance companies
licensed to do business in the State of Utah.
The minimum limits of coverage acceptable are:
(i) $1,000,000 Each Occurrence Combined Single Limit
for Bodily Injury and Property Damage and
(ii) $2,000,000 Annual Aggregate
(b) Premises and Building Insurance. Landlord shall insure the
Premises and Building, including Landlord supplied Core and Shell and Tenant
Improvements as deemed necessary in Landlord's reasonable discretion. Tenant
shall pay its pro rata share for such insurance as outlined in Article 6
herein, involving Tenant's prorated share of Operating Expenses. All policies
of insurance shall be issued by responsible insurance companies licensed to do
business in the State of Utah.
(c) Tenant's Additional Insurance. Tenant may, at its sole cost
and expense, cause all equipment, machinery, furniture and fixtures, personal
property, and Tenant Improvements supplied by Tenant from time to time used or
intended to be used in connection with the operation and maintenance of the
Premises, to be insured by Tenant against loss or damage. Tenant shall also
obtain appropriate business interruption coverage. Except for losses caused by
Landlord's gross negligence or wilful misconduct, Landlord is in no way liable
for any uninsured Tenant's property.
14. ASSIGNMENT AND SUBLETTING.
In the event Tenant should desire to assign the Lease or sublet the
Premises, Tenant shall give Landlord written notice of such desire at least
sixty (60) days in advance of the date on which Tenant desires to make such
assignment or sublease. Landlord shall then have a period of twenty-
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one (21) days following receipt of such notice within which to notify Tenant in
writing that Landlord elects either (1) to terminate the Lease as of the date
so specified by Tenant, in which event Tenant will be relieved of all further
obligations hereunder, or (ii) to permit Tenant to assign or sublet such space,
subject to prior written approval of the proposed assignee by Landlord, such
consent not to be unreasonably withheld or delayed, so long as the use of the
Premises by the proposed assignee would be a permitted use and the proposed
assignee is of sound financial condition as determined in Landlord's reasonable
discretion. Landlord may refuse to consent to any assignment or subletting if
Landlord believes that the new Tenant would have a negative impact on the
Premises or the Building's other tenants. If Landlord should fail to notify
Tenant in writing of such election within said twenty-one (21) day period,
Landlord shall have deemed to have waived option (i) above, but written
approval by Landlord of the proposed assignee shall still be required. Failure
by Landlord to approve a proposed assignee shall not cause a termination of the
Lease. Any rents or other consideration realized by Tenant under any such
sublease and assignment in excess of the Rents hereunder, after amortization of
the reasonable costs of extra tenant improvements for which Tenant has paid and
reasonable subletting and assignment costs, shall, at Landlord's option, (i) be
paid ninety percent (90%) to Landlord and ten percent (10%) to Tenant, in which
event Tenant shall be relieved from any future performance or obligation under
the Lease, or (ii) be paid to Tenant.
Notwithstanding the above, Tenant shall have the right to sublease or
assign all or any portion of the Premises during the Term to any related
entity, subsidiary, or affiliate of Tenant, having at least fifty-one (51%)
percent direct common ownership, without having to receive Landlord's consent,
but still requiring written notice to Landlord on or before such sublease or
assignment. No assignment or subletting by Tenant shall relieve Tenant of any
obligation under the Lease. Any assignment or subletting which conflicts with
the provisions hereof shall be void.
15. RULES.
Tenant shall faithfully observe and comply with all Rules and
Regulations reasonably promulgated by Landlord, in writing and after reasonable
notice, during the Term or any Option period herein. Landlord must apply rules
equitably against all Tenants, but shall not be responsible to Tenant for the
nonperformance by other Building tenants, or adjacent buildings' tenants, of
any of said Rules and Regulations. A copy of the Rules and Regulations are
attached as Exhibit D.
16. ENTRY BY LANDLORD.
The Landlord may enter the Premises or Building at reasonable hours,
upon 24 hours notice to Tenant and in the company of a designee of Tenant to
(a) inspect the same, (b) show the same to prospective purchasers, lenders or
tenants, (c) determine whether Tenant is complying with all of Tenant's
obligations hereunder, (d) post notices of non-responsibility or (e) make
repairs required of Landlord under the Lease, repairs to adjoining space or
utility service, or make repairs, alterations or improvements to the Building,
provided that all such work shall be done as promptly as possible and with as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises occasioned
by such entry. Landlord shall at all times have and retain a key to unlock all
doors in, on or about the Premises (excluding Tenant's vaults, safes and
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similar areas designated in writing by Tenant). In the event of an emergency,
Landlord shall have the right to use any and all means which Landlord may
deem proper to enter the Premises, without notice, for the limited purpose of
abating as possible said emergency. Such emergency entrance shall not be
construed or deemed to be a forcible or unlawful entry into or a detainer of
the Premises or an eviction, actual or constructive, of Tenant from the
Premises, or any portion thereof.
17. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events ("Events of
Default") shall constitute a breach of the Lease by Tenant: (a) if Tenant
fails to pay Rents when and as the same becomes due and payable and such
failure continues for more than ten (10) days after written notice thereof, or
(b) if Tenant fails to pay any other sum when and as the same becomes due and
payable and such failure continues for more than ten (IO) days after written
notice thereof, or (c) if Tenant fails to perform or observe any material term
or condition of the Lease, such failure continues for more than thirty (30)
days after written notice from Landlord, and Tenant does not within such period
begin with due diligence and dispatch the curing of such default, or, having so
began, thereafter fails or neglects to complete with due diligence and dispatch
the curing of such default; or (d) if Tenant shall make a general assignment
for the benefit of creditors, or shall admit in writing its inability to pay
its debts as they become due or shall file a petition in bankruptcy, or shall
be adjudicated as bankrupt or insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file any answer admitting or shall fail timely to contest
the material allegations of a petition filed against it in any such proceeding,
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or (e)
if within sixty (60) days after the commencement of any proceeding against
Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed, or if, within
sixty (60) days after the appointment without the consent or acquiescence of
Tenant, of any trustee, receiver or liquidator of Tenant or of any material
part of its properties, such appointment shall not have been vacated; or (f)
vacation or abandonment of the Premises for a continuous period in excess of
fifteen (15) days after initial occupancy, or (g) if the Lease or any estate of
Tenant hereunder shall be levied upon under any attachment or execution and
such attachment or execution is not vacated within thirty (30) days of receipt
thereof by Tenant.
18. TERMINATION UPON TENANT'S DEFAULT.
If an Event of Default shall occur, Landlord at any time thereafter may
give a written termination notice to Tenant, and on the date specified in such
notice (which shall not be less than three (3) days after service) Tenant's
right to possession shall terminate and the Lease shall terminate, unless on or
before such date all Rents, arrearages and other sums due by Tenant under the
Lease, including reasonable costs and attorneys' fees incurred by or on behalf
of Landlord, shall have been paid by Tenant and all other Events of Default by
Tenant shall have been fully cured to the satisfaction of Landlord. Upon such
termination, Landlord may recover from Tenant:
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(a) the worth at the time of award of the unpaid Rents which had
been earned at the time of termination; plus
(b) the worth at the time of award of the amount by which the
unpaid Rents which would have been earned after termination until the time of
award exceeds the amount of such Rents loss that Tenant proves could have been
reasonably avoided; plus
(c) the worth at the time of award of the amount by which the
unpaid Rents for the balance of the term of the Lease after the time of award
exceeds the amount of such Rents loss that Tenant proves could be reasonably
avoided; and plus
(d) any other amount reasonably necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom; and/or
(e) At Landlord's elections, such other amounts in addition or in
lieu of the foregoing as may be permitted from time to time herein or by
applicable law.
The "worth at the time of award" of the amounts referred to in clauses
(a) and (b) above is computed by allowing interest at the rate of 10% per
annum. The "worth at the time of award" of the amount referred to in clause (c)
above means the monthly sum of the Rents under the Lease. Failure of Landlord
to declare any default immediately upon occurrence thereof, or delay in taking
any action in connection therewith, shall not waive such default, but Landlord
shall have the night to declare any such default at any time thereafter.
19. CONTINUATION AFTER DEFAULT.
Even though Tenant has defaulted the Lease and abandoned the Premises,
the Lease shall continue in effect as long as Landlord does not terminate
Tenants right to possession, and Landlord may enforce all of its rights and
remedies under the Lease, including the right to recover the Rents as they
become due under the Lease. Acts of maintenance or preservation or efforts to
relet the Premises or the appointment of a receiver upon initiative of Landlord
to protect Landlord's interest under the Lease shall not constitute a
termination of Tenant's right to possession. If any fixture, equipment,
improvement, installation or appurtenance shall be required to be removed from
the Premises and/or Building by Tenant, then Landlord (in addition to all other
rights and remedies) may, at its election by written notice to Tenant, deem
that the same has been abandoned by Tenant to Landlord, or Landlord may remove
and store the same and restore the Premises to its original condition at the
reasonable expense of Tenant, as Additional Rent to be paid within ten (10)
days after written notice to Tenant of such expense.
20. LANDLORD'S DEFAULT.
If Landlord fails to perform or observe any of its material Lease
obligations herein and such failure continues for thirty (30) days after
written notice from Tenant, or such additional time, if any, that is reasonably
necessary to promptly and diligently cure such failure after receiving written
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notice, Landlord shall be in breach of the Lease (a "Default"). If Landlord
commits a Default, Tenant may pursue any remedies given in the Lease or under
law including terminating the lease and seeking the return of any unused
portion of the security deposit.
21. LANDLORD'S RIGHT TO CURE DEFAULTS.
All terms and provisions to be performed by Tenant under the Lease
shall be at Tenant's sole cost and expense and without any abatement of Rents.
If Tenant fails to pay any sum of money, other than Rents, required hereunder
or fails to perform any other act required hereunder and such failure continues
for thirty (30) days after notice by Landlord, Landlord may, but shall not be
obligated, and without waiving or releasing Tenant from any obligations of
Tenant, make any such payment or perform any such act on Tenant's part to be
made or performed as provided in the Lease. All sums paid by Landlord and all
incidental costs shall be deemed Additional Rent hereunder and shall be payable
within ten (10) days of written notice of such sums paid.
22. OTHER RELIEF.
The remedies provided for in the Lease are in addition to any other
remedies available to Landlord at law or in equity by statute or otherwise.
23. ATTORNEYS' FEES.
In the event either party places the enforcement of the Lease, or any
part thereof, or the collection of any Rents, or recovery of the possession of
the Premises, or files suit upon the same, then the prevailing party shall
recover its reasonable attorneys' fees and costs.
24. EMINENT DOMAIN.
If all or any part of the Premises shall be taken or conveyed as a
result of the exercise of the power of eminent domain, the Lease shall
terminate as to the part so taken as of the date of taking, and, in the case of
a partial taking, either Landlord or Tenant shall have the right to terminate
the Lease as to the balance of the Premises by written notice to the other
within thirty (30) days after such date; provided, however, that a condition to
the exercise by Tenant of such right to terminate shall be that the portion of
the Premises taken or conveyed shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance of the
Premises. In the event of any taking, Landlord shall be entitled to any and
all compensation, damages, income, rent awards or any interest therein
whatsoever which may be paid or made in connection therewith, and Tenant shall
have no claim against Landlord for the value of any unexpired term of the Lease
or otherwise, provided that Tenant shall be entitled to any and all
compensation, damages, income, rent or awards paid for or on account of
Tenant's moving expenses, trade fixtures, equipment and any leasehold
improvements in the Premises, the cost of which was borne by Tenant, to the
extent of the then unamortized value of such improvements for the remaining
term of the Lease. In the event of a taking of the Premises which does not
result in a termination of the Lease, the monthly rental herein shall be
apportioned as of the date of such taking so that thereafter the rent to be
paid by Tenant shall
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be in the ratio that the area of the Premises not so taken bears to the total
area of the Premises prior to such taking.
25. SUBORDINATION, ATTORNMENT & NONDISTURBANCE; AND ESTOPPEL
CERTIFICATE.
At Landlord's request, Tenant agrees to execute, acknowledge, and
deliver within ten (10) days to Landlord a Subordination, Attornment &
Nondisturbance Agreement ("Subordination Agreement"), subject to Landlord's
reasonably proposed form(s). Such Subordination Agreement shall subordinate the
Lease to any ground lease, mortgage, deed of trust, or any other hypothecation
for security now or hereafter placed upon the Premises, Building or common
areas, or any part thereof, to any and all advances made on the security, and
to all renewals, modification, consolidations, replacements and extensions
thereof, whether the Lease is dated prior or subsequent to the date of said
ground lease, mortgage, deed of trust or other hypothecation or the date of
recording thereof. Further, at Landlord's request, Tenant agrees to execute,
acknowledge, and deliver within ten (10) days to Landlord an Estoppel
Certificate, subject to Landlord's reasonably proposed form(s). Such
Subordination Agreement and Estoppel Certificate may be relied upon by any I
prospective purchaser, mortgagee, or beneficiary under any ground lease,
mortgage, deed of trust, or any other hypothecation of the Premises, Building,
or common areas, or any part thereof. Notwithstanding such Subordination
Agreement, Tenant's right to quiet possession of the Premises shall not be
disturbed so long as Tenant is not in default under the Lease, unless the Lease
is otherwise terminated pursuant to its terms.
In the event that Tenant fails to execute, acknowledge, and deliver to
Landlord such Subordination Agreement and Estoppel Certificate within ten (10)
days of Landlord's request, the parties herein expressly agree that Tenant
shall be deemed in default of the Lease without further notice. In such event,
the parties herein further expressly agree that the Subordination Agreement and
Estoppel Certificate are deemed to have been executed by Tenant.
26. NO MERGER.
The voluntary or other surrender of the Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
27. SALE.
In the event the original Landlord hereunder, or any successor owner of
the Premises, Building, and common areas shall sell or convey the Premises,
Building, and common areas, and the purchaser assumes the obligations of
Landlord under the Lease, all liabilities and obligation on the part of the
original Landlord, or such successor owner, under the Lease accruing after such
Sale shall terminate, and thereupon all such liabilities and obligations shall
be binding upon the new owner. Tenant agrees to attorn to such new owner.
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28. NO LIGHT OR VIEW EASEMENT.
Any diminution or shutting off of light or view by any structure
erected on lands adjacent to the Building shall in no way affect the Lease or
impose any liability on Landlord.
29. HOLDING OVER.
If, without objection by Landlord, Tenant holds possession of the
Premises after expiration of the Term or any Option period of the Lease, Tenant
shall become a tenant from month to month upon the terms herein specified, but
at a monthly Base Rent equivalent to 125% of the Base Rent at the end of the
term or extension period pursuant to Article 4, payable in advance on or before
the 1st day of each month. All Additional Rent shall also apply. Each party
shall give the other notice at least one month prior to the date of termination
of such monthly tenancy of its intention to terminate such tenancy.
30. ABANDONMENT.
If Tenant shall abandon or surrender the Premises, or be dispossessed
by process of law or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of
Landlord, except such property as may be mortgaged to Landlord.
31. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon execution of the Lease a
security deposit in an amount equal to one month's Base Rent during the last
year of the Lease Term ("Security Deposit"). The Security Deposit shall be
held by Landlord as security for the faithful performance by Tenant of all of
the provisions of the Lease to be performed or observed by Tenant. In the
event Tenant fails to perform or observe any of the provisions of the Lease to
be performed or observed by it, then, at the option of the Landlord, Landlord
may (but shall not be obligated to do so) apply the Security Deposit, or so
much thereof as may be necessary to remedy such default or to repair damages to
the Premises caused by Tenant. In the event Landlord applies any portion of
the Security Deposit to remedy any such default or to repair damages to the
Premises caused by Tenant, Tenant shall pay to Landlord, within thirty (30)
days after written demand for such payment by Landlord, all monies necessary to
restore the Security Deposit up to the original amount. Any portions of the
Security Deposit remaining upon termination of the Lease shall be returned.
32. WAIVER.
All waivers by either party herein must be in writing and signed by
such party. The waiver of any term or conditions herein shall not be deemed to
be a waiver of any subsequent breach of the same or any other agreement,
condition or provision herein contained, nor shall any custom or practice which
may grow upon between the parties in the administration of the terms hereof be
construed to waive or to lessen the right of either party to insist upon the
performance by the other party in strict accordance with said terms. The
subsequent acceptance of Rents hereunder by Landlord shall not be deemed to be
a waiver of any breach by Tenant of any term or condition of
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the Lease, regardless of Landlord's knowledge of such breach at the time of
acceptance of such Rents.
33. NOTICES.
All notices and demands which may or are required to be given by either
party to the other under the Lease shall be in writing and shall be deemed to
have been fully given when deposited in the United States mail, certified or
registered, postage prepaid, and addressed as follows: to Tenant at 00000
Xxxxx Xxxxxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000, or to such other place as Tenant
may from time to time designate in a notice to Landlord; to Landlord at Draper
Land Partnership II, 00 Xxxx Xxxxxxxxx Xxxx Xx., Xxxxxx, XX 00000, Attn: Xxx
Xxxxxxxxx, or to such other place as Landlord may from time to time designate
in a notice to Tenant, or in the case of Tenant, delivered to Tenant at the
Premises. Tenant hereby appoints as its agent to receive the service of all
dispossessory or distraint proceedings and notices hereunder the person in
charge of or occupying the Premises at the time, and if no person shall be in
charge of or occupying the same, then service may be made by attaching same on
the main entrance of the Premises.
34. COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant affecting the
Lease, and the Lease supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between
Landlord and Tenant with respect to the subject matter of the Lease. The Lease
may not be altered, changed or amended, except by an instrument in writing
signed by both parties hereto.
35. AUTHORITY.
The person(s) executing the Lease on behalf of the parties herein
hereby covenants and warrants that (a) such party is a duly authorized and
validly existing entity under the laws in which it was formed, (b) such party
has and is qualified to do business in Utah, (c) such entity has full right and
authority to enter into the Lease, and (d) each person executing the Lease on
behalf of such entity is authorized to do so.
36. GUARANTEE OF LEASE.
Tenant guarantees, upon execution of the Lease, to occupy the Premises.
Any failure to occupy the Premises does not release the Tenant from the
obligation of paying Rents or any other terms set forth herein.
37. MISCELLANEOUS.
(a) The words "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
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(b) Time is of the essence on the Lease and each and all of its
terms and conditions.
(c) The terms and conditions herein shall apply to and bind the
heirs, executors, administrators, successors and assigns of the parties hereto.
(d) The captions of the Lease are solely to assist the parties and
are not a part of the terms or conditions of the Lease.
(e) The Lease shall be governed by and construed in accordance with
the laws of the State of Utah, and is deemed to be executed within the State of
Utah.
38. SEVERABILITY.
If any term provision of the Lease, or the application thereof to any
person or circumstance, shall to any extent be invalid or unenforceable, the
remainder of the Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each provision of the Lease shall be valid
and shall be enforceable to the extent permitted by law.
39. BROKERS.
Landlord is represented by CB Commercial Real Estate Group Inc. and
Tenant is represented by Commerce Properties. Agreed-upon commissions shall be
due and payable by Landlord upon execution.
40. PRIOR LEASE.
Upon Tenant's occupancy of the Premises, Tenant shall be released from
its obligations under its prior lease with Landlord except that Tenant shall be
responsible (1) for the payment of all Base Rent due under the prior lease for
a period of ninety (90) days or until a new tenant occupies Tenant's former
space, whichever is earlier; and (2) for fifty percent (50%) of the total cost
of any tenant improvement required by the new tenant. Tenant's obligation for
the costs of such improvements to its prior space shall not exceed $4.00 per
Useable square foot of Tenant's prior space.
41. FIRST RIGHT OF REFUSAL.
(a) Provided that Tenant is not in default under the Lease, Tenant
is granted a first right of refusal on the Building which will afford Tenant
the opportunity to purchase the Building on the same terms and conditions of an
offer from a third-party acceptable to Landlord. In the event such acceptable
offer includes real property in addition to the Building, Tenant shall be
obligated to purchase such additional property in order to exercise the first
right of refusal. Tenant must exercise its first right of refusal within seven
(7) business days of receiving notice of an acceptable offer.
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(b) After the first year of the Lease Term and provided that Tenant
is not in default under the Lease, Tenant is granted a first right of refusal
on other rentable space in the Building which will afford Tenant the
opportunity to lease such space on the same terms and conditions agreed to by a
third-party acceptable to Landlord. Tenant must exercise its first right of
refusal within five (5) business days of receiving notice.
42. PERFORMANCE DELIVERY.
Landlord shall deliver the Premises to Tenant on May 25, 1998
("Delivery Date"), so long as Tenant provides Landlord with an approved space
plan by November 14, 1997. In the event that Tenant fails to deliver the space
plan or Tenant otherwise requests changes or takes any action which delays
construction of the Building and/or Tenant Improvement, the Delivery Date shall
be adjusted one day for every day of delay resulting from Tenant's action.
In the event the Landlord does not deliver the premises substantially
complete by the Delivery Date, the Landlord will provide Tenant two (2) days
free base rent for each day of delayed delivery.
* * * * *
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IN WITNESS WHEREOF, the parties have executed the Lease dated the day
and year first above written.
TENANT, LANDLORD,
1-800-LENS-NOW, INC. dba DRAPER LAND PARTNERSHIP II
1-800-CONTACTS
By: /s/ Xxxxxxxx Xxxx By:
------------------------ --------------------------
Its: President Its: Partner
------------------------ -------------------------
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EXHIBIT A
SPACE PLAN
(ATTACHED)
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EXHIBIT B
BASE BUILDING IMPROVEMENTS
The Base Building Improvements and systems as described below shall be
furnished by Landlord at Landlord's sole cost and expense. These include:
1. The Building structure will be designed for a maximum floor load of 50
lb. live load plus a 20 lb. partition dead load.
2. The Building shell will include a core consisting of: 2 elevators with
equipment room, 2 stairwell enclosures, 1 men's and 1 women's rest-room on
each floor, electrical room, mechanical room, custodian closet, an area of
refuge, finished lobbies and exterior perimeter walls and windows and all
building columns.
3. A Concrete floor will be installed with a smoothed trowel finish for
installation of glued-down carpet. The Floor will be poured level and
finished in accordance with current ACI Standard Specifications 117.
4. A Life Safety system will be installed in accordance with national, state
and local codes and the Americans with Disabilities Act, throughout the
Building, including all corridors, stairwells and rest-rooms (strobes).
5. Electrical distribution will be provided to the main panel boxes in the
electrical closet on each floor. The electrical system shall be sized for
seven (7) xxxxx per usable square foot (000-000-0 Phase) for Tenant's
consumption, over and above base building electrical requirements.
6. The Building will be equipped with a packaged-unit heating, ventilation
and air conditioning system sufficient for Tenant's anticipated occupancy
requirements. The system will be designed to maintain a space temperature
between 70'-78'degrees F on a year-round basis, based on a maximum average
occupancy of one (1) person for each 150 square feet of usable area (very
important to tenant who uses cubicles). The requirements for ventilation
shall comply with present ASHRAE (American Society of Heating,
Refrigeration and Air-Conditioning Engineers) standard 62-1989 as a minimum
requirement. Tenant shall be furnished with a price per ton for package
unit if additional air conditioning is required. All distribution and
controls of HVAC, within tenant space, shall be subject to Tenant
Improvement allowance.
7. Telephone service, as provided by the local utility, will be brought to
Tenant's or Building's main telephone room.
8. Common corridor walls and walls between tenant suites will be provided
with the side finished only to the common areas.
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9. All roadways necessary for Tenant's access to and egress from the Building
will be completed, along with parking, landscaping and sprinklers for
irrigation.
10. HVAC system will consist of 3 each 60 ton roof top units connected to VAV
(variable air volume) terminal units. Each VAV unit is controlled by its
own thermostat which is connected to a central computer terminal allowing
one area, to be heated while another area is being cooled.
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EXHIBIT C
TENANT IMPROVEMENTS CONSTRUCTION WITH
TENANT IMPROVEMENT ALLOWANCE
This Exhibit is part of the Lease relating to certain premises
("Premises") which are more particularly described in the Lease.
1. PLANS AND SPECIFICATIONS
A. Working Drawings. Within three (3) days after any request by
Landlord, Tenant shall furnish the additional information requested by Landlord
for the preparation by Landlord's architect, engineer or space planner of
working drawings and specifications. If Tenant fails to furnish the information
within the three (3) day period, Tenant's failure shall be deemed a Tenant
Delay pursuant to Section 7 of this Agreement. Within three (3) working days
after working drawings and specifications which have been prepared by
Landlord's architect, engineer or space planner are submitted to Tenant, Tenant
shall reasonably approve or disapprove the working drawings and specifications.
The working drawings and specifications shall be deemed approved if Tenant
fails to disapprove them within the three (3) business day periods.
If Tenant disapproves the working drawings and specifications, Tenant
shall have three (3) business days after the date of disapproval to provide
sufficient information to Landlord's architect, engineer or space planner so
that revised working drawing and specifications may be prepared. If Tenant
fails to submit the required information to revise the plans within the three
(3) business day period or if the working drawings and specifications, as
revised, are not approved by Tenant within three (3) business days after
submission to Tenant, Tenant's failure shall be deemed a Tenant Delay pursuant
to Section 7 of this Agreement.
The working drawings and specifications which have been approved by
Landlord and Tenant hereinafter are referred to as the "Approved Working
Drawings".
B. Tenant's Approval. Whenever Tenant's approval is required pursuant to
the terms of this Agreement, the approval shall not be unreasonably withheld or
delayed. Tenant's approvals or disapprovals shall be in writing.
C. Termination. If this Agreement and the Lease are terminated by
Landlord based upon Tenant's breach thereof or Tenant for any reason other than
Landlord's breach thereof, the parties' rights and obligations hereunder shall
be discharged; provided, however, that Tenant shall pay Landlord, within ten
(10) days after the date of Tenant's receipt of a statement for the same, the
costs incurred by Landlord through the date of termination in connection with
the preparation of any plans, drawings and specification and all costs incurred
by Landlord in applying for any governmental approvals, including a building
permit, required for construction of the Tenant Improvements or any
construction costs associated with Tenant Improvements and any and all
improvements become the property of the Landlord.
2. CONSTRUCTION OF TENANT IMPROVEMENTS.
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A. Construction to Landlord. Landlord shall cause construction of the
Tenant Improvements according to the Approved Working Drawings to be completed
in a good and workmanlike manner provided that Landlord shall not be required
to expend funds in excess of the Base Allowance of $20.00 per Useable square
foot.
B. Tenant Improvements Cost. The Tenant Improvement cost ("Tenant
Improvement Cost") to be paid by Landlord shall include, but not be limited to:
(i) All costs of preliminary and final architectural and
engineering plans, drawings and specifications for the Tenant
Improvements, and engineering costs;
(ii) All costs of obtaining building permits and other necessary
authorizations from the applicable governmental authority
(e.g., the City in which the Building is located);
(iii) All costs of interior design and finish schedule plans,
drawings and specifications including as-built plans, drawings;
(iv) All direct and indirect costs of procuring and installing
Tenant Improvements in the Premises, including the
contractor's fee for overhead and profit, the cost of all of
contractor's on-site supervisory and administrative staff,
office, equipment and temporary services provided in
connection with construction of the Tenant Improvements to the
extent set forth in the construction contract ("Contract")
that is entered into between Landlord and the Contractor
(hereinafter defined);
(v) All fees payable to Landlord's architect, engineer or space
planner if they are required to redesign any portion of the
Tenant Improvements following Tenant's approval of the
preliminary or working drawings;
(vi) Sewer connection fee, if any;
(vii) The fee charged by any construction cost consultant employed
in connection with the Tenant Improvement; a construction
management fee equal to 5% of the entire cost of the Tenant
Improvement will be assessed as part of the Allowance.
3. EXCESS TENANT IMPROVEMENT COST.
If the Tenant Improvement Cost exceed the Base Allowance and are between
$20.01 and $25.00 per Useable square foot, Tenant shall be charged only the
actual cost incurred by Landlord on the excess portion of the costs. Any costs
in excess of $25.00 per Useable square foot are subject
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to a charge for construction management and/or profit not to exceed 10%.
Excess Tenant Improvements Costs shall be paid by Tenant to Landlord, in cash,
within ten (10) days after receipt of a statement from Landlord. Landlord
reserves the right to invoice Tenant in advance for excess Tenant Improvement
Costs after Contract has been awarded to tenant improvement contractor and
prior to commencement of Tenant Improvements,
4. CHANGE REQUESTS.
A. No change to the Approved Working Drawings requested by Tenant
shall be made without Landlord's prior approval, which approval shall not be
unreasonably withheld; provided, however, that no change request shall affect
the Landlord and Tenant prior to the change being made. Tenant shall not
instruct or direct Contractor's workmen, subcontractor's, material suppliers or
others performing the Tenant Improvements construction. Tenant shall direct
all inquiries and requests relating to the construction work to Landlord of
Landlord's designated agent. Tenant shall be responsible for any added costs
or delay resulting from Tenant's actions which are contrary to this Section.
B. Tenant shall pay Landlord, in cash, within ten (10) days after
receipt of an itemized written xxxx from Landlord, any additional costs for
changes requested by Tenant, including, without limitation, architectural fees
and increases in construction costs caused by the delay. A change request
shall constitute an agreement by Tenant to any reasonable delay in substantial
completion caused by reviewing, processing and implementing the change; and the
Lease, at Landlord's option, shall commence on the date it would have otherwise
commenced but for any such delays.
C. As soon as reasonably possible after receipt of a written change
request from Tenant, Landlord shall notify Tenant of Landlord's approval or
disapproval of the request, and, if the request is approved, of an estimated
increase or decrease in costs and an estimate of the effect the change shall
have on the projected date for substantial completion of the Tenant
Improvements.
D. Landlord shall have the authority, without the consent of Tenant,to
order minor changes in the Tenant Improvements not involving an increase in
cost to Tenant or a delay in the Actual Commencement Date and not inconsistent
with the intent of the Approved Working Drawings.
5. COOPERATION.
Landlord and Tenant shall cooperate and diligently assist the architect,
engineer or space planner in completing the Approved Working Drawings and
specifications, and the Contractor in completing construction of the Tenant
Improvements.
6. CONDITION OF TENANT IMPROVEMENTS.
Within seven (7) days after the Actual Commencement Date, Tenant shall
"walk-through" the Premises with Landlord and they shall complete a punch-list
of items needing additional work by Landlord. Other than the items specified
in the punch list, by taking possession of the Premises,
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Tenant shall be deemed to have accepted the Premises and the Building in good,
clean and completed condition and repair, subject to all applicable laws, codes
and ordinances. The punch list shall not include any damage to the Premises or
the Building caused by Tenant's move-in, which damage shall be promptly
repaired or corrected by Tenant at its sole expense. If Tenant fails to
complete a punch list with Landlord's cooperation within the seven (7) day
period specified above, it shall be deemed that there are not items needing
additional work or repair. Landlord shall complete all reasonable punch list
items within thirty (30) days after the walk-through inspection or as soon as
practicable thereafter and upon notification of completion of the punch list
items, Tenant shall approve or state its reasons for disapproval of the
completed items in writing to Landlord within seven (7) days of such items
shall be deemed approved by Tenant.
7. TENANT DELAYS.
If the Actual Commencement Date of the Lease has not occurred on or before
the Projected Commencement Date specified in the Basic Lease Information, and
if the cause of the delay in the occurrence of the Commencement Date is
attributable to Tenant, the Actual Commencement Date shall be the date the
Actual Commencement Date otherwise would have occurred but for the Tenant
Delays. Delays attributable to Tenant ("Tenant Delays") shall include those
caused by:
a. Tenant's request for special materials, finishes or installations
which are not readily available;
b. Tenant's failure to reasonably approve plans and working drawings
in accordance with this Agreement;
c. Tenant's failure to reasonably approve plans and working drawings
in accordance with this Agreement;
d. Tenant's change requests pursuant to this Agreement that result in
delays;
e. Tenant's failure to approve cost estimates if any approvals are
required pursuant to this Agreement.
f. Interference with Landlord's work caused by Tenant or Tenant's
agents; and
g. Tenant's failure to pay any amounts due hereunder.
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EXHIBIT D
RULES AND REGULATIONS
The rules and regulations set forth in this Exhibit "D" shall be and
hereby are made a part of the Lease (the "Lease") to which they are attached.
Whenever the term "Tenant" is used in these rules and regulations, it shall be
deemed to include Tenant, its employees or agents and any other persons
permitted by Tenant to occupy or enter the Premises. The following rules and
regulations may from time to time be modified by Landlord.
1. Obstruction. The sidewalks, entries, passages, corridors, halls,
lobbies, stairways, elevators and other common facilities of the Building shall
be controlled by Landlord and shall not be obstructed by Tenant or used for any
purpose other than ingress or egress to and from the Premises, Tenant shall not
place any item in any of such locations, whether or not any such item
constitutes an obstruction. Landlord may remove any such item without notice
to Tenant and at the expense of Tenant.
2. Ordinary Business Hours. Whenever used in these regulations, the
ordinary business hours of the Building shall be from 7:00 a.m. to 6:00 p.m.,
Monday through Friday and Saturday from 8:00 a.m. to 12:00 noon only excluding
legal holidays (both state and national), irrespective of Landlord's
obligations to provide heat and airs conditioning pursuant to subsection 5.1(c)
of the Lease. All persons entering or leaving the Building between the hours
of 6:00 p.m. and 8:00 a.m., Monday through Friday, before 8:00 a.m. or after
12:00 noon on Saturday, or at any time on Sundays or Holidays, may be required
to do so under such regulations as Landlord may impose.
3. Deliveries. Tenant shall insure that all deliveries of supplies
to the Premises shall be made only through such access as may be designated by
Landlord for deliveries and only during the ordinary business hours of the
Building. If any person delivering supplies to Tenant damages any part of the
Building, Tenant shall pay to Landlord upon demand the amount required to
repair such damage.
4. Moving. Furniture and equipment shall be moved in or out of the
Building only through such access as may be designated by Landlord for
deliveries and then only during such hours and in such manner as may be
prescribed by Landlord. If Tenant's movers damage any part of the Building,
Tenant shall pay to Landlord upon demand the amount required to repair such
damage.
5. Heavy Articles. No safe or article, the weight of which may, in the
opinion of Landlord, constitute a hazard of damage to the Building or its
equipment, shall be moved in the Premises. Safes and other heavy equipment,
the weight of which will not constitute a hazard or damage the Building or its
equipment shall be moved into from or about the Building only during such hours
and in such manner as shall be prescribed by Landlord in its sole and absolute
discretion and Landlord shall have the right to designate the location of such
articles.
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6. Nuisance. Tenant shall not do or permit anything to be done in the
Premises, or bring or keep anything therein which would in any way constitute a
nuisance or waste, or obstruct or interfere with the rights of other tenants of
the Building, or in any way inure or annoy them, or conflict with the laws
relating to fire, or with any regulation of the fire department, or with any
insurance policy upon the Building or any part thereof, or conflict with any of
the rules or ordinances of the Department of Health to the County and City in
which the Building is located.
7. Building Security. Landlord may require identification of persons
entering and leaving the Building during the period outside of the ordinary
business hours of the Building and, for the purpose, may issue building passes
to Tenants of the Building.
8. Pass Key. The janitor of the Building may at all times keep a pass
key to the Premises and he and other agents of Landlord shall at all times be
allowed admittance to the Premises.
9. Locks and Keys for Premises. No additional lock or locks shall be
placed by Tenant on any door in the Building and no existing lock shall be
changed unless written consent of Landlord shall first have been obtained. A
reasonable number of keys to the Premises and to the toilet rooms, if locked by
Landlord, will be furnished by Landlord, and Tenant shall not have any
duplicate key made. At the termination of this tenancy, Tenant shall promptly
return to Landlord all keys for any locks, safes, cabinets and vaults remaining
in the Premises.
10. Use of Water Fixtures. Water closets and other water fixtures shall
not be used for any purpose other than for which the same are intended, and any
damage resulting to the same from use on the part of Tenant shall be paid for
by Tenant. No persons shall waste water by tying back or wedging the faucets
or in any other manner. Upon leaving the Premises, Tenant shall shut off all
water faucets and major electrical apparatus located within the Premises.
11. No Animals; Excessive Noise. No animals shall be allowed in the
offices, halls or corridors in the Building. No persons shall be allowed in
the offices, halls or corridors in the Building. No persons shall disturb the
occupants of this building or adjoining building or space by making excessive
noises, causing disturbances or vibrations, any of which may be reasonable
offensive to the occupants of the Building or adjoining Buildings or space.
12. Bicycles. Bicycles or other vehicles shall not be permitted anywhere
inside or on the sidewalks outside of the Building, except in those areas
designated by Landlord for bicycle parking.
13. Trash. Tenant shall not allow anything to be placed on the outside of
the Building, nor shall anything be thrown by Tenant out of the windows or
doors, or down the corridors or ventilating ducts or shafts of the Building.
All trash shall be placed in receptacles provided by Landlord for the Building
or Tenant for the Premises.
14. Windows. No window shades, blinds, screens, or draperies will be
attached or detached by Tenant and no awnings shall be placed over the windows
without Landlord's prior written consent.
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15. Hazardous Operations and Items. Tenant shall not install or operate
any steam or gas engine or boiler, or carry on any mechanical business in the
Premises without Landlord's prior written consent, which consent may be
withheld in Landlord's absolute discretion. The use of oil, gas or inflammable
liquids for heating, lighting, or any other purpose is expressly prohibited.
Explosives or other articles deemed extra hazardous shall not be brought into
the Building.
16. Hours for Repairs, Maintenance and Alteration. Any repairs,
maintenance and alterations required or permitted to be done by Tenant under
the Lease shall be done only during the weekday ordinary business hours of the
Building unless Landlord shall have first consented in writing to such work
being done outside of such times. If Tenant desires to have such work done by
Landlord's employees on Saturdays, Sundays, holidays or weekdays outside of
ordinary business hours, Tenant shall pay the extra cost for such labor.
17. No Defacing of Premises. Except as permitted by Landlord by prior
written consent, Tenant shall not xxxx upon, paint signs upon, cut drill into,
drive nails or screws into, or in any way deface the walls, ceilings,
partitions, or floors of the Premises or of the Building, and any defacement,
damage or injury directly or indirectly caused by Tenant shall be paid for by
Tenant. Pictures of diplomas shall be hung on tacks or small nails. Tenant
shall not use adhesive hooks for such purposes.
18. Solicitation: Food and Beverages. Landlord reserves the right to
restrict, control or prohibit canvassing, soliciting and peddling within the
Building. Tenant shall not grant any concessions, licenses or permission for
the sale or taking of orders for food or services or merchandise in the
Premises, nor install or permit the installation or use of any machine or
equipment for dispensing goods or foods or beverages in the building, nor
permit the preparation, serving, distribution or delivery of food or beverages
in the Premises without the prior written approval of Landlord and only in
compliance with procedures prescribed by Landlord. Only persons approved by
Landlord shall be permitted to serve, distribute or deliver food and beverages
within the Building, or to use the public areas of the Building for that
purpose.
19. Captions. The caption for each of these rules and regulations is
provided as a matter of convenience only and shall be considered of no effect
in the construction of any provision or interpretation of these rules and
regulations.
20. Parking. Parking shall be only during Tenant's standard hours of
operation.
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