EAST WEST CENTER LEASE AGREEMENT (SpectrumDNA)
EAST
WEST
CENTER LEASE AGREEMENT
0000
Xxxx
Xxxxxx, Xxxx Xxxx, Xxxx
(SpectrumDNA)
THIS
EAST
WEST CENTER LEASE AGREEMENT (this "Lease")
is
entered into as of the 17th day of July, 2007, by and between SPECTRUMDNA,
INC.,
a Delaware corporation ("Tenant"),
as of
the date of this Lease having an address at 000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxx
Xxxx, Xxxx, 00000, but upon the Commencement Date (defined below) its address
to
be changed to be 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx, Xxxx 00000, and
EAST
WEST CENTER, LLC, a Utah limited liability company ("Landlord"),
whose
address is 0000 X. Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
IN
CONSIDERATION of the mutual agreements set forth in this Lease, Landlord
and
Tenant agree as follows:
1. Definitions.
As used in this Lease, each of the following terms shall have the indicated
meaning:
1.1. "Base
Rent"
means
the payment of (i) $22.00 per rentable square foot of the Premises or FOUR
THOUSAND TWO HUNDRED SIXTY-FOUR AND 33/100 DOLLARS ($4,264.33) per month
during
the first twelve (12) months of this Lease, and (ii) $23.54 per rentable
square
foot of the Premises or FOUR THOUSAND FIVE HUNDRED SIXTY-TWO AND 84/100 DOLLARS
($4,562.84) per month during the thirteenth (13th)
through
the thirty-sixth (36th)
months
of this Lease. If Tenant exercises the Option to extend the Lease for an
additional three (3) years (as provided in Section 1.11 below), the Base
Rent
for the first year of this Option Term shall be the fair market rental value
of
the Premises as determined by Landlord in its reasonable discretion. At the
beginning of each twelve month period year thereafter during such Option
Term,
the Base Rent shall be increased by a percentage escalation commensurate
with a
change in the CPI during the immediately preceding twelve (12) months. The
Tenant shall be charged rent and operating expenses on the rentable square
feet
of the Premises throughout the Term and the Option Term.
1.2. "Building"
means
the East West Center building located at 0000 Xxxx Xxxxxx, Xxxx Xxxx, Xxxx.
1.3. "Commencement
Date"
means
the date on which Landlord delivers the Premises to Tenant with the Landlord
Work substantially completed. Landlord may, but is not required, to deliver
written notice to Tenant confirming the Commencement Date. On or promptly
after
the Commencement Date, Tenant shall (i) diligently obtain any necessary
governmental permits for Tenant's occupancy and use of the Premises, including,
without limitation, a "Certificate of Occupancy" or "Occupancy Permit", (ii)
diligently commence and complete the Tenant Improvements, (iii) install Tenant's
telephones, computer cabling, furniture, fixtures and equipment, and (iv)
take
all other actions necessary to make the Premises ready for Tenant to promptly
commence its business operations in the Premises. Tenant shall be granted
possession of the Premises upon the Commencement Date. Tenant shall indemnify
and hold Landlord harmless from any and all liens, costs, and liabilities
incurred in connection with the work described in this Section
that it
undertakes or has performed. Keys and access to the Premises shall be provided
to Tenant in accordance with this Section
and at a
time mutually agreeable to Landlord and Tenant.
1.4. "CPI"
means
"Consumer Price Index--U.S. City Average For All Items For All Urban Consumers
(1982-84=100) (the "CPI-U")
published by the Bureau of Labor Statistics, United States Department of
Labor
(the "Labor
Bureau");
provided,
however,
that:
1.4.1. if
the
CPI-U is discontinued, "CPI"
shall
mean "Consumer Price Index--U.S. City Average For All Items For Urban Wage
Earners and Clerical Workers (1982-84=100)" (the "CPI-W")
published by the Labor Bureau;
1.4.2. if
the
CPI-W is discontinued, "CPI"
shall
refer to comparable statistics on the purchas-ing power of the consumer dollar
published by the Labor Bureau or by another agency of the United States
reasonably selected by Landlord;
1.4.3. if
the
Labor Bureau or another agency of the United States no longer publishes
comparable statistics on the purchasing power of the consumer dollar,
"CPI"
shall
refer to comparable statistics published by a responsible financial periodical
or recognized authority reasonably selected by Landlord, and adjustments
shall
be made in the computation set forth in Section
1.1
as the
circumstances may require; and
1.4.4. if
the
base year "(1982-84=100)" or other base year used in computing the CPI-U
or the
CPI-W is changed, the figures used in making the adjustments in Section
1.1
shall be
changed accordingly so that all increases in the CPI-U and CPI-W are taken
into
account notwithstanding any such change in the base year.
1.5. "Common
Areas"
means
all areas, space, equipment, and special services provided for the common
or
joint use and benefit of the tenants or occupants of any and all portions
of the
Building, or their employees, agents, servants, customers and other invitees,
including without limitation, parking areas, access roads, driveways, retaining
walls, foundations, fences, landscaped areas, planters, building exteriors,
roofing, exterior canopies, building awnings constructed in accordance with
the
Building's standards and not individually installed by tenants, and supports,
utility lines, light poles and fixtures in parking areas, stairs, elevator,
ramps, sidewalks, washrooms, conduits, ducts, plumbing, pipes, electrical
systems, air conditioning systems, mechanical systems and other similar areas
or
improvements within or appurtenant to the Building as designated by Landlord.
Tenant shall share in a non-exclusive right to use the Common Areas in common
with the other tenants of the Building subject to the terms and provisions
of
this Lease and the oversight of Landlord.
2
1.6. "Execution
Date"
means
that certain date on which Tenant and Landlord executes this Lease, whichever
party is the last.
1.7. "Expiration
Date"
means
that certain date three (3) years after the last day of the month in which
the
Commencement Date falls. If Tenant duly exercises its option to extend the
term
for the additional three (3) year Option Term the Expiration Date shall be
extended an additional three (3) years.
1.8.
"Interest
Rate"
means
eighteen percent (18%) per annum.
1.9. “Landlord
Work”
means
the construction and other work to be done by Landlord at its sole cost and
expense to the Premises as further described in Exhibit
C
attached
hereto and incorporated herein.
1.10. "Occupants"
means
any assignee, subtenant, employee, agent, licensee or invitee of
Tenant.
1.11 “Option”
means
the right given to Tenant extent the Term of the Lease for an additional
three
(3) years. This Option may be exercised by Tenant upon Tenant’s delivery of
written notice to Landlord at least six (6) months before the Expiration
Date of
the Term. Shortly after receipt of such written notice, Landlord shall give
written notice to Tenant of the fair market rental value of the Premises
upon
which the Base Rent will be based as provided in Section 1.1 above. Tenant
may
then elect to accept the same and become bound to take the Premises for the
Option Term or Tenant may choose to reject the Option and let the Lease
terminate on the regularly scheduled Expiration Date. In either case, Tenant
shall provide written notice of its acceptance or rejection of the Option
within
seven (7) days after Landlord’s delivery of the notice of the fair market rental
value of the Premises (any failure to provide such written notice within
these
seven (7) days shall be deemed to constitute a rejection of the Option).
Tenant
shall pay the Base Rent during the Option Term as described in Section 1.1
above. Base Rent for the first year of this Option Term shall be the fair
market
rental value of the Premises as determined by Landlord in its reasonable
discretion.
1.12 “Option
Term”
means
the three (3) year term from commencing the day after the Expiration Date
of the
original 3-year Term of the Lease.
1.13 "Permitted
Use"
means
the creation and operation of an internet and digital network application.
1.14. "Premises"
means
Suite No. 2020, the office located on the south-west part of the second floor
of
the Building, as further shown on Exhibit
A
attached
hereto. The Premises consist of 2,326 rentable square feet. The rentable
square
feet of the Premises has been and shall be calculated with measurements taken
from the windows of the outside exterior walls to the center of the interior
walls of the Premises and include Landlord's determined allocation of common
area space. The location, size and design of the Premises shall be accepted
by
Tenant "As Is" "Where Is" upon execution of this Lease.
3
1.15. "Security
Deposit"
shall
be $5,000.00.
1.16 “Tenant
Improvements”
means
the construction and other work to be done by Tenant at its sole cost and
expense to finish the Premises as further described in Exhibit
D
attached
hereto and incorporated herein. Landlord shall provide to Tenant a tenant
improvement allowance of FIVE AND NO/100 DOLLARS ($5.00) per useable square
foot
for completion of the Tenant Improvements as described in Exhibit
D
attached
hereto. If Tenant exercises the Option, Landlord shall provide a tenant
improvement allowance of TWO AND NO/100 DOLLARS ($2.00) per useable square
foot
to refresh the Premises.
1.17. "Tenant's
Percentage"
means
twelve and 62/100 percent (12.62%).
1.18. "Term"
means
the period commencing on the Commencement Date and expiring on the Expiration
Date.
2. Agreement
of Lease.
2.1. Agreement
of Lease.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord for the Term, together with such nonexclusive rights of pedestrian
and
vehicular ingress and egress, and vehicular parking on, over and across the
Common Areas as are reasonably necessary for the use of the Premises, in
accordance with the provisions set forth in this Lease.
2.2. Parking.
Tenant,
its guests, employees, licensees and invitees shall have the right to use
the
non-exclusive parking spaces contiguous to the Building subject to the Rules
and
Regulations (defined in Section
18.15
below).
4
3. Base
Rent.
Tenant shall be required to pay rent beginning on the Commencement Date.
On the
Commencement Date, Tenant shall prepay to Landlord the first twelve (12)
months
of Base Rent plus the pro-rated fraction of a month if the Commencement Date
falls on a day other than the first day of the month. On or between the first
and the tenth day of the ninth (9th)
month
of the Term, Tenant shall prepay to Landlord the Base Rent for the twelve
months
of the second full year of the Term. On or between the first and the tenth
day
of the twenty-first (21st)
month
of the Term, Tenant shall prepay to Landlord the Base Rent for the first
six (6)
months of the third full year of the Term. On or between the first and the
tenth
day of the twenty-sixth (26th)
month
of the Term, Tenant shall prepay to Landlord the remaining Base Rent for
the
last six (6) months of the third full year of the Term. Tenant covenants
to pay
to Landlord the Base Rent at the address for Landlord set forth at the outset
of
this Lease or at such other place as Landlord may designate. If Tenant exercises
the Option, it shall prepay the Base Rent owing for the Option Term on the
same
comparable schedule. If Tenant chooses not to exercise the Option but
holds-over, Tenant shall pay the amount of Base Rent due and owing for any
holdover on the first day of each month of any holdover term.
4. Operating
Expenses.
4.1. Definitions.
Each of
the following terms shall have the indicated meaning:
4.1.1. "Estimated
Expenses"
means
the amount of Operating Expenses reasonably projected by Landlord for any
Operating Year.
4.1.2. "Operating
Expenses"
means
the total costs and expenses incurred in operating, repairing, replacing,
securing, painting, insuring, managing and maintaining the Common Areas
excluding only items of expense commonly known and designated as carrying
charges, but specifically including, without limitation, the following: all
utilities serving the Common Areas including lighting, electricity, heating,
air
conditioning, power, sanitary sewer, storm drain and water; the Common Areas'
air conditioning, heating equipment, elevator and elevator systems, if any;
real
and personal property taxes, assessments, charges and fees levied by any
governmental authority on the Common Areas' land, improvements, fixtures,
personal property and equipment as well as the Building; surcharges levied
upon
or assessed against the Common Areas' parking spaces or areas by governmental
or
quasi-governmental authorities, payments toward mass transit or car pool
facilities or otherwise as required by governmental or quasi-governmental
authorities; costs and expenses in connection with maintaining federal, state
or
local governmental ambient air and environmental standards; the cost of all
materials, supplies and services purchased or hired therefor; premiums for
liability, fire and extended insurance coverage carried by Landlord with
respect
to the Common Areas and Building; policing and securing the Common Area and
Building (including the cost of uniforms, equipment and employment taxes);
alarm
and life safety systems; vandalism repair; the Common Areas' and Building's
pavement, storm and sanitary drainage systems and other utility systems and
mechanical equipment in and outside the Premises, such as fire protection
systems including, without limitation, fire protection water loops and fire
insulation and fire shielding; the Common Areas' and Building's structures
including without limitation floors, ceilings, roofs, foundations, truck
docks,
loading facilities, pipes, ducts conduits and similar items; plate glass
and
floor coverings; seasonal and holiday decorations; gardening and landscaping,
landscape sprinklers, planting and refurbishment of landscaped areas both
interior (if any) and exterior; sidewalks, walls, fences, parking areas,
curbs
and bumpers; line painting and restriping; building exteriors and lighting
fixtures; lighting; sanitary control; removal of snow, ice, trash, rubbish,
and
garbage, and other refuse removal; directional signs and markers and Building
signs and pylons; the Common Areas' and the Building's roof, foundation and
any
awnings constructed in accordance with Landlord's standards and not individually
installed by tenants; rain gutters and downspouts; depreciation on machinery
and
equipment used in such maintenance; supplies; the cost of personnel to implement
such services, to direct parking, and/or to police the Common Areas; and
administrative and overhead costs.
5
4.1.3. "Operating
Year"
means
each calendar year, all or a portion of which falls within the Term or any
Option Term.
4.1.4. "Tenant's
Estimated Share"
means
the result obtained by multiplying Tenant's Percentage by the Estimated Expenses
(prorated for any partial Operating Year).
4.1.5. "Tenant's
Share"
means
the result obtained by multiplying Tenant's Percentage by the Operating Expenses
actually incurred in any Operating Year (prorated for any partial Operating
Year).
4.2. Payment
of Operating Expenses.
In addition to the Base Rent, Tenant covenants to pay Tenant's Share to Landlord
at the same address at which Base Rent is payable, in advance on or before
the
first day of each calendar month during the Term, any Option Term and any
holdover term, commencing on the Commencement Date (which shall be pro-rated
for
any month if the Commencement Date begins on a date other than the first
day of
the calendar month). On or prior to the Commencement Date and prior to December
1 of each Operating Year after the Commencement Date, Landlord may furnish
Tenant with a written estimate (the "Estimate")
showing the computation of Tenant's Estimated Share. On or prior to the
Commencement Date, and on the first day of each month following the Commencement
Date, Tenant shall pay to Landlord one-twelfth (1/12th) of Tenant's Estimated
Share as specified in the Estimate for such Operating Year. The Estimate
for the
1st
Operating Year (September 1, 2007 through December 31, 2007) is $6.92/square
foot. If Landlord fails to give Tenant an Estimate prior to any Operating
Year,
Tenant shall continue to pay on the basis of the Estimate for the prior
Operating Year until the Estimate for the current Operating Year is
received. After the expiration of any Operating Year, Landlord will
furnish Tenant with a written statement (the "Actual
Statement")
showing in reasonable detail the computation of Tenant's Share for such
Operating Year and the amount by which Tenant's Share exceeds or is less
than
the amounts paid by Tenant during such Operating Year. If the Actual
Statement indicates that the amount actually paid by Tenant for the relevant
Operating Year is less than Tenant's Share for such Operating Year, Tenant
shall
pay to Landlord such deficit within thirty (30) days after delivery of the
Actual Statement. Such payments by Tenant shall be made notwithstanding that
the
Actual Statement is furnished to Tenant after the expiration of the Term
or
sooner termination of this Lease. If the Actual State-ment indicates that
the amount actually paid by Tenant for the relevant Operating Year exceeds
Tenant's Share for such Operating Year, such excess shall be promptly applied
to
any payments under this Lease next falling due from Tenant. Tenant may no
more
than once every two (2) years, within fifteen (15) days of Landlord's delivery
of an Actual Statement, make a written request to Landlord that Tenant be
allowed to make an audit of Landlord's records relating to Landlord's basis
for
the calculation of such Actual Statement. Landlord shall agree in writing
to
permit Tenant to make such an audit at a reasonable time and place designated
by
Landlord. Such audit shall be performed at Tenant's sole cost and expense
by an
independent, reputable, certified public accountant of Tenant's choice approved
by Landlord. If such audit shall disclose a discrepancy of twelve percent
(12%)
or more in the Actual Statement, Landlord may (i) credit to Tenant the amount
of
such discrepancy as provided in this Section
or (ii)
hire a second, independent, reputable certified public accountant at Landlord's
sole cost and expense to audit the Actual Statement to verify the result
obtained by Tenant's accountant. If both of the certified public accountants
agree on such discrepancy, Landlord shall credit to Tenant such discrepancy
as
provided in this Section;
however, if Landlord's certified public accountant finds in good faith that
the
discrepancy is less than twelve percent (12%) then no further action shall
be
taken by either party with respect to this matter and Tenant shall pay the
service costs charged by Landlord's certified public accountant that otherwise
would be paid by Landlord.
6
4.3. Payment
of Utilities and Services for the Use of the Premises.
In addition to the Base Rent and Operating Expenses, commencing on the date
of
this Lease Tenant shall pay directly to the provider of the following utilities
and services all costs, expenses, charges and amounts, of whatever kind or
character, for all electricity, telephone, gas, janitorial, maintenance and
other utilities and services separately and distinctly supplied to the Premises,
together with any taxes on such utilities and services, which are not included
in the Operating Expenses. If any of these utilities and services cannot
be discreetly and/or reasonably segregated and billed to Tenant by their
providers as determined by Landlord, then such utilities and services shall
be
added to and included in the Operating Expenses to be paid as part of Tenant's
Share. If any utility or service to the Premises is interrupted for any reason,
Landlord shall not be liable to Tenant for such interruption, such interruption
shall not be deemed to be an eviction or interference with Tenant's use and
occupancy of the Premises, and the rent required to be paid under this Lease
shall not be abated as a result of such interruption. Tenant also shall have
the
sole responsibility for and shall pay when due all taxes, assessments, charges
and fees levied by any governmental authority on Tenant's use of the Premises
as
well as the costs and expenses of and for any personal property or fixtures
kept
or installed by Tenant in the Premises, including, without limitation, any
heating or air conditioning equipment and systems.
5. Security
Deposit.
On the execution date of this Lease, Tenant shall deposit with Landlord the
Security Deposit. Landlord may commingle the Security Deposit with its own
funds
and use it as Landlord sees fit until required to return the Security Deposit
to
Tenant as provided herein. No interest shall be paid on the Security Deposit.
If
Tenant fails to timely pay or perform any obligation under this Lease, Landlord
may, prior to, concurrently with or subsequent to exercising any other right
or
remedy, use, apply or retain all or any part of the Security Deposit for
the
payment of any monetary obligation due under this Lease, or to compensate
Landlord for any other reasonable expense, loss or damage which Landlord
has
suffered or that Landlord reasonably estimates that it may suffer by reason
of
Tenant's failure, including any deficiency in the reletting of the
Premises. If all or any portion of the Security Deposit is so used,
applied or retained, Tenant shall on demand immediately deposit with Landlord
cash in an amount sufficient to restore the Security Deposit to its original
amount. The Security Deposit is not a limitation on Landlord's damages or
other rights under this Lease, a payment of liquidated damages or prepaid
rent
and shall not be applied by Tenant to the rent for the last (or any) month
of
the Term, or to any other amount due under this Lease. If Landlord transfers
its
interest in the Premises, Landlord may assign the Security Deposit to the
transferee and, upon such transfer and assignment to the transferee, Landlord
thereafter shall have no further liability for the return of the Security
Deposit. Subject to the foregoing, the Security Deposit shall be returned
(without interest) to Tenant after the expiration of the Term or sooner
termination of this Lease and delivery of possession of the Premises to Landlord
in accordance with Section
15
below
if, at such time, Tenant is not in default and has paid all amounts due under
this Lease.
7
6. Use;
Tenant's Exclusive Rights.
Tenant shall not use or occupy or permit the Premises to be used or occupied
for
any purpose other than for the Permitted Use, and shall not do or permit
anything to be done by Tenant's Occupants which may (a) increase the existing
rate or violate the provisions of any insurance carried with respect to the
Building, (b) create a public or private nuisance or unreasonably interfere
with
or disturb any other tenant or occupant of the Building, (c) overload the
floors
or otherwise damage the structure of the Building, (d) violate any applicable
governmental laws, ordinances, rules or regulations, or (d) engage in any
act of
moral turpitude. Tenant shall, at Tenant's sole cost, (x) use the Premises
in a careful, safe and proper manner; (y) in Tenant's use and occupancy of
the
Premises, comply with all governmental laws, ordinances, rules and regulations,
including, without limitation, those relating to hazardous substances, hazardous
wastes, pollutants or contaminants, and all requirements of any board of
fire
underwriters or other similar body relating to the Premises; and (z) not
store,
use or dispose of any hazardous substances, hazardous wastes, pollutants
or
contaminants on the Premises, except for normal and customary cleaning supplies
kept and promptly disposed in normal and customary quantities in accordance
with
applicable laws, ordinances, rules and regulations. Landlord may, in Landlord's
sole discretion, designate some or all of the Building (including the Premises)
as a non-smoking area.
7. Maintenance
and Repairs; Alterations; Access.
7.1. Maintenance
and Repairs.
Except as provided in the immediately following sentence, Tenant, at Tenant's
sole cost, shall throughout the Term maintain each and every part of the
Premises in the same condition and repair as it is in on the Commencement
Date
and in a good, clean and sanitary condition, including, without limitation,
all
glass and show window moldings, partitions, doors, fixtures, equipment,
appurtenances, lighting, heating, plumbing fixtures and sewage facilities
within
the Premises.
8
7.2. Alterations.
Tenant shall not make any change, addition or improvement to the interior
or
exterior of the Premises (including, without limitation, the attachment of
any
fixture or equipment, other than pictures and similar decorations) or Common
Areas, unless such change, addition or improvement (a) equals or exceeds
the
then-current standard for the Building and utilizes only new and first-grade
materials, (b) is in conformity with all applicable governmental laws,
ordinances, rules and regulations, and is made after obtaining any required
permits and licenses, (c) is made pursuant to plans and specifica-tions approved
in writing in advance by Landlord (except for any non-structural alterations
to
the interior of the Premises costing less than $1,000 in a calendar year
and
completed in a good and xxxxxxx like manner which shall not require Landlord's
prior approval), and (d) if required by Landlord, is made after Tenant has
provided to Landlord such indemnification or bonds, including, without
limitation, a performance and completion bond, in such form and amount as
may be
reasonably satisfactory to Land-lord, to protect against claims and liens
for
labor performed and materials furnished, and to insure the completion of
any
change, addition or improvement. Tenant shall promptly pay the entire cost
of any such change, addition or improvement, and the same shall immediately
become the property of Landlord. Landlord shall have the right, in Landlord's
sole discretion, from time to time and without liability or other payment
owed
to Tenant in connection therewith, to (t) make changes to the Common Areas,
including, without limitation, changes in the location, size, shape and number
of driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways
and
utility raceways; (u) close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(v)
designate other space within or outside of the Building to be part of the
Common
Areas; (w) add additional improvements to the Common Areas; (x) change the
address or other designation of the Building and/or the Premises; (y) use
the
Common Areas while engaged in making additional improvements, repairs or
alterations to the Building, or any portion thereof; and (z) do and perform
such
other acts and make such other changes in, to or with respect to the Common
Areas as Landlord may, in the exercise of sound business judgment, deem to
be
appropriate.
Landlord
hereby authorizes Tenant to install “walltalker” wall treatments (white board
material), white boards, cork boards, projection screens and other wall-mounted
project management and multi-media materials and equipment on one (1) wall
per
office and one (1) wall in the large open room in Suite 2020. Tenant shall
clean
and maintain these wall treatments in good working order and condition. Upon
termination of the Lease, if Landlord requests Tenant to remove these wall
treatments then Tenant at its sole cost and expense shall do so, which work
shall include removing, stripping, repairing, sheet-rocking, spackling, dry
wall, patch work, mudding and taping the walls so that they are ready for
paint,
but Tenant shall not be responsible for re-painting the walls.
7.3. Access.
Landlord and Landlord's employees, contractors and agents may enter the Premises
during normal business hours upon reasonable notice of no less than twenty-four
(24) hours to Tenant for the purpose of inspecting the Premises, performing
Landlord's obligations under this Lease and showing the Premises to prospective
purchasers, existing or prospective mortgagees and prospective tenants, provided
that Landlord shall not unreasonably interfere with Tenant's use or occupancy
of
the Premises. Notwithstanding the foregoing, Landlord shall have free access
to
the Premises in an emergency. Tenant shall not be permitted to separately
key or
lock any door to or within the Premises without Landlord's prior written
consent
and without providing copies of such keys to Landlord.
9
8. Assignment.
Tenant
shall be entitled to sublease part of the Premises to an entity owned or
controlled by Tenant without requiring any consent by Landlord although Tenant
shall provide prior written notice to Landlord of such sublease. Except as
provided in the preceding sentence, Tenant shall not assign, transfer, mortgage,
encumber, pledge or hypothecate this Lease or Tenant's interest in this Lease,
in whole or in part, permit the use of the Premises or any part of the Premises
by any persons other than Tenant or Tenant's employees, or sublease the Premises
or any part of the Premises, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. No consent by Landlord
to any
assignment or subleasing by Tenant shall relieve Tenant of any obligation
to be
paid or performed by Tenant under this Lease, whether occurring before or
after
such consent, assignment or subleasing, but rather Tenant and Tenant's assignee
or subtenant, as the case may be, shall be jointly and severally primarily
liable for such payment and performance and shall comply with all of the
terms
and provisions of this Lease and the Building Rules and Regulations. If
this Lease is assigned or the Premises are subleased and the compensation
actually received by Tenant exceeds the Base Rent and Tenant's Share applicable
to the period concerned, Tenant shall pay one hundred percent (100%) of such
excess to Landlord when and as received. Tenant shall promptly agree to attorn
in writing to any assignee of Landlord provided such assignee will agree
not to
disturb Tenant's possession of the Premises so long as Tenant is not in default
of this Lease.
9. Indemnity.
Tenant
shall indemnify, defend and hold harmless Landlord and Landlord's employees
and
agents from and against all demands, claims, causes of action, judgments,
losses, damages, liabilities, fines, penalties, costs and expenses, including,
without limitation, reasonable attorneys' fees, arising from the occupancy
or
use of the Premises, the Building or the Common Areas by Tenant or Tenant's
Occupants, including, without limitation, any hazardous substances, hazardous
wastes, pollutants or contaminants deposited, released or stored by Tenant
or
Tenant's Occupants, any violation of the Americans with Disabilities Act
introduced or caused by Tenant, or any litigation commenced by or against
Tenant
to which Landlord is made a party without fault on the part of Landlord.
Likewise, Landlord shall indemnify, defend and hold harmless Tenant and Tenant's
employees and agents from and against all demands, claims, causes of action,
judgments, losses, damages, liabilities, fines, penalties, costs and expenses,
including, without limitation, reasonable attorneys' fees, arising from any
hazardous substances, hazardous wastes, pollutants or contaminants deposited,
released or stored on the Building as of the date of this Lease or introduced
in
the future by Landlord, any violation of the Americans with Disabilities
Act
introduced or caused by Landlord, or any litigation commenced by or against
Landlord to which Tenant is made a party without fault on the part of Tenant.
If
any action or proceeding is brought against Landlord, Tenant, or their
respective employees or agents by reason of any of the matters set forth
in the
preceding sentences of this Section,
the
indemnifying party, on written notice from the party to be indemnified, shall
defend the indemnified party at the indemnifying party's expense with counsel
reasonably satisfactory to the indemnified party. This Section
is
subject to the waiver of subrogation provisions set forth in Section
10
below.
10
10. Insurance.
On or before the execution date of this Lease, Tenant shall, at Tenant's
sole
cost, procure and continue in force commercial general liability insurance
with
a combined single limit for bodily injury and property damage of not less
than
$2,000,000 per occurrence, and $3,000,000 in the aggregate, including, without
limitation, contractual liability coverage for the performance by Tenant
of the
indemnity agreement set forth in Section
9
above.
Such minimum limits shall in no event limit the liability of Tenant under
this
Lease. All such insurance policies shall be in form, and issued by
companies with a Best's rating of A+:VII or better, reasonably accep-table
to
Landlord, and Tenant shall furnish Landlord with certificates of coverage.
Such
insurance shall not be cancelable or subject to reduction of coverage or
other
material modification except after at least ten (10) days' prior written
notice
to Landlord by the insurer. Such insurance shall be written as a primary
policy, not con-tributing with and not in excess of the coverage which Landlord
may carry, and shall name Landlord as an additional insured. Tenant shall,
at
least ten (10) days prior to the expiration of such insurance, furnish Landlord
with a renewal certificate for such insurance. Landlord and Tenant waive
all
rights to recover against each other for any loss or damage arising from
any
cause covered by any insurance carried by the waiving party, to the extent
that
such damage is actually covered, provided that, if required, Landlord and
Tenant
shall exercise reasonable, good faith efforts to obtain the consent of their
respective insurance companies to such waiver. Landlord shall procure and
continue in force commercial general liability insurance with a combined
single
limit for bodily injury and property damage of not less than $1,000,000 per
occurrence, and hazard insurance with special causes of loss, insuring against
fire, extended coverage risks, vandalism and malicious mischief, in an amount
equal to the full replacement cost of the Building (but not any furnishings,
equipment and other personal property installed in the Premises by Tenant).
The
cost of Landlord's insurance shall be part of the Operating
Expenses.
11. Damage
or Destruction.
If the Premises are partially damaged or destroyed due to no fault or cause
of
Tenant, its agents, licensees and invitees, then Landlord shall promptly
commence and diligently pursue to completion the repair of the Premises to
substantially the condition the Premises were in immediate-ly prior to such
damage or destruction. Landlord's obligation under the preceding sentence
shall not exceed the proceeds received by Landlord from the hazard insurance
maintained by Landlord in accordance with Section
10,
provided that Landlord has, in fact, maintained such insurance. Until such
repair is complete, the Base Rent shall be abated proportionately commencing
on
the date of such damage or destruction as to that portion of the Premises
rendered untenantable, if any. If (a) the Premises are damaged as a result
of a risk not covered by insurance, or the necessary insurance proceeds are
unavailable to Landlord for any reason, (b) the Premises are damaged in whole
or
in part during the last six (6) months of the Term, or (c) the Premises are
damaged to the extent of thirty-five percent (35%) or more of then-replacement
value or to the extent that it would take in excess of ninety (90) days to
complete the requisite repairs, Landlord may elect to either repair the damage
or cancel this Lease by written notice of cancellation within thirty (30)
days
after such event, and on such notice Tenant shall vacate and surrender the
Premises to Landlord. Landlord shall not be required to repair any damage
or to make any restoration or replacement of any furnishings, equipment and
other personal property installed in the Premises by Tenant, unless caused
by
the gross negligence of Landlord.
11
12. Condemnation.
If the whole of the Premises or all of the Common Areas are taken through
the
exercise of the power of eminent domain or by purchase or other means in
lieu of
such exercise, this Lease shall automatically terminate as of the date of
the
taking. If thirty-five percent (35%) or more, but not all, of the Premises
is so taken, either Landlord or Tenant may terminate this Lease by written
notice given within thirty (30) days after the date of such taking. If one
of the aforementioned events of condemnation occurs and this Lease is not
terminated, then this Lease shall continue and remain in full force and effect
but the Base Rent shall be reduced in the proportion that the floor area
taken
bears to the total floor area of the Premises im-mediately prior to the taking,
and Tenant's Percentage shall be appropriately adjusted. Whether or not
this Lease is terminated as a consequence of Condemnation Proceedings, all
damages or compensation awarded for a partial or total taking, including
any
award for severance damage and any sums compensat-ing for diminution in the
value of or deprivation of the lease-hold estate under this Lease, shall
be the
sole and exclusive property of Landlord, provided that Tenant shall be entitled
to any award for Tenant's loss of business or moving expenses, if a separate
award is actually made to Tenant. If this Lease is not terminated pursuant
to
this Section,
Landlord shall promptly commence and diligently pursue to completion the
restoration of the Premises to substantially the condition the Premises were
in
immediate-ly prior to such condemnation to the extent of any award attributable
to improvements (but not to land) actually received by Landlord with respect
to
the Premises. Landlord shall not be required to repair any damage or to
make any restoration or replacement of any furnishings, equipment and other
personal property installed in the Premises by Tenant, unless Landlord receives
an award which includes the restoration or replacement of such furnishings,
equipment and other personal property.
13. Landlord's
Financing.
This Lease shall be subordinate to any deed of trust, mortgage, ground lease
or
other security instrument (each a "Mortgage")
that
now or hereafter covers all or any part of the Premises (the mortgagee under
any
such Mortgage is referred to herein as a "Landlord's
Mortgagee").
The
provisions of this Section
shall be
self-operative and no further instrument of subordination shall be required.
Nevertheless, Tenant shall, within ten (10) days after Landlord's written
request, execute such documents as may reasonably be required by Landlord
to
evidence the subordination of this Lease to any first mortgage or first deed
of
trust, provided that the lender relying on such subordination agrees that
Tenant
shall not be disturbed in the event of foreclosure so long as Tenant is not
in
default under this Lease and no event has occurred which with the passage
of
time or the giving of notice or both would constitute such a default. This
Lease
shall be deemed prior to any mortgage or deed of trust if the lender concerned
gives written notice of such election to Tenant. Any sale, assignment or
transfer of Landlord's interest under this Lease or in the Premises, including
any such disposition resulting from Landlord's default under a debt obligation,
shall be subject to this Lease, and Tenant shall attorn to Landlord's successors
and assigns and shall recognize such successors and assigns as the landlord
under this Lease regard-less of any rule of law to the contrary or the absence
of privity of contract.
12
14. Default.
14.1. Default
by Tenant.
The occurrence of any of the following events shall constitute a default
by
Tenant under this Lease: (a) Tenant fails to timely pay any installment of
Base
Rent, Tenant's Share, payments required under Section
4.3
above,
late fees, interest or the utility payments after they are due (note, the
payment of the Base Rent may be made within the 1st
to the
10th
day of
the applicable month as provided in Section 3 above, any Base Rent paid after
those periods shall be an event of default, and Tenant’s Share and the other
payments required under this Lease shall be paid within three (3) days of
the
1st day of each month and any payment later than that shall be an event of
default); (b) Tenant fails to timely pay any other amount due under this
Lease
or to perform any other non-monetary obligation to be performed by Tenant
under
this Lease, and such failure to perform the non-monetary obligation is not
cured
within thirty (30) days after written notice is given to Tenant; (c) Tenant's
cessation of its normal business operations in the Premises or if Tenant
vacates, abandons or lets the Premises go dark for a period of seven (7)
days,
unless such vacation or abandonment is caused by earthquake, fire, flood,
or
other acts of God; (d) Tenant's action, permission or authorization of itself
or
any other person to do anything which creates a lien upon the Premises which
is
not paid, bonded over or discharged promptly; (e) Tenant files a petition
in
bankruptcy, becomes insolvent, has taken against Tenant in any court, pursuant
to state or federal statute, a petition in bankruptcy or insolvency or for
reorganization or appointment of a receiver or trustee, which involuntary
petition is not dismissed within sixty (60) days, petitions for or enters
into
an arrangement for the benefit of creditors or suffers this Lease to become
subject to a writ of execution, and such writ is not released within thirty
(30)
days; or (f) Tenant's breach of any terms or provisions of this Lease subject
to
the express notice and cure periods provided in this Section.
14.2. Remedies.
On any default by Tenant under this Lease, Landlord may at any time, without
waiving or limiting any other right or remedy available to Landlord and as
permitted under Utah law: (a) immediately enter the Premises, take and hold
possession thereof, remove all persons and property from the Premises storing
said property in a public place, warehouse, or elsewhere at the cost of Tenant,
without notice or resort to legal process and without being deemed guilty
of or
liable to trespass or conversion and attempt to lease the Premises without
such
entry or attempts or re-leasing of the Premises terminating this Lease or
releasing Tenant in whole or in part from Tenant's obligations hereunder
for the
full Term; (b) perform in Tenant's stead any obligation that Tenant has failed
to perform, and Landlord shall be reimbursed promptly for any reasonable
cost
incurred by Landlord with interest from the date of such expenditure until
paid
in full at the rate of the Interest Rate, (c) terminate any, some or all
of
Tenant's rights under this Lease by written notice, including, without
limitation, rights of occupancy, or (d) pursue any other remedy allowed by
law. Landlord shall exercise commercially reasonable, good faith efforts
to mitigate its damages as required by applicable Utah law. In the event
of
Tenant's default, Landlord shall not be required to accept any tenant offered
by
Tenant or to observe any instruction given by Tenant about such reletting.
Tenant shall pay to Landlord the cost of recovering possession of the Premises,
all costs of reletting, including reasonable renovation, remodeling and
alteration of the Premises, the amount of any commissions paid by Landlord
in
connection with such reletting, and all other costs and damages arising out
of
Tenant's default, including reasonable attorneys' fees and costs. If the
consideration collected by Landlord upon any such reletting, after deducting
all
expenses incidental thereto, including brokerage fees and legal expenses,
is not
sufficient to pay monthly the full amount provided in this lease, Tenant
shall
pay Landlord the amount of each monthly deficiency upon demand. No reentry
or
taking possession of the Premises or other action by Landlord on or following
the occurrence of any default by Tenant shall be construed as an election
by
Landlord to terminate this Lease or as an acceptance of any surrender of
the
Premises, unless Landlord provides Tenant written notice of such termination
or
acceptance.
13
In
addition, if Tenant fails to remove or recover any of Tenant's property stored
by Landlord within thirty (30) days of Landlord's retaking the Premises,
Landlord may, at its option and without notice, sell the personal property,
exclusive of consigned inventory, or any of the same, at private sale and
without legal process, for such prices as Landlord may obtain, and apply
the
proceeds of such sale upon any amounts due under this Lease from the Tenant
to
the Landlord and upon the expense incidental to the removal, storage, and
sale
of the personal property, rendering the surplus, if any, to the Tenant. All
of
Landlord's rights, remedies and benefits provided in this Lease shall be
cumulative and shall not be exclusive of any other remedies or rights allowed
by
law. Landlord's election of one remedy for any default shall not foreclose
its
election of any other remedy for any other default or for a default of the
same
matter at a latter date. The recovery of any damages from Tenant by Landlord
shall be applied in the following order: (i) first to any costs of collection
including, without limitation, Landlord's attorneys' fees and court costs;
(ii)
second to any late fees and interest owed by Tenant; and (iii) third to the
payment of any Base Rent, Tenant Share, utilities and other costs and expenses
owed by Tenant under this Lease.
14.3. Past
Due Amounts.
If Tenant fails to pay the Base Rent, Tenant’s Share or other payments required
under this Lease in time such that they are deemed to constitute an event
of
default under Section 14.1, then Landlord may charge a sum of five percent
(5%)
of such unpaid amount as a service fee (if the unpaid amount is for Base
Rent,
then Landlord may only charge two and one-half percent (2.5%) of such unpaid
Base Rent if the Base Rent is repaid between the tenth (10th)
and
thirtieth (30th)
day of
the month when due, but if the Base Rent is repaid after the thirtieth
(30th)
day of
the month when due then the service fee shall be five percent (5%) of the
full
amount of the required payment) and such unpaid amount additionally shall
bear
interest at the Interest Rate from the due date of such amount to the date
of
payment in full, with interest, compounded annually. All amounts due under
this
Lease are and shall be deemed to be rent or additional rent, and shall be
paid
without abatement, deduction, offset or prior notice or demand, unless
specifically provided by the terms of this Lease. Landlord shall have the
same remedies for a default in the payment of any amount due under this Lease
as
Landlord has for a default in the payment of Base Rent.
14
14.4. Default
by Landlord.
Landlord shall not be liable for any damage to Tenant occurring in connection
with the Premises, the Common Areas or the Building unless caused by the
gross
negligence or willful act of Landlord. Landlord shall not be liable for any
damage to Tenant occurring by reason of the act or negligence of any other
tenant or occupant of the Building. Further, Landlord shall not be in default
under this Lease unless Landlord or the holder of any mortgage or deed of
trust
covering the Building whose name and address have been furnished to Tenant
in
writing fails to perform an obligation required of Landlord under this Lease
within thirty (30) days after written notice by Tenant to Landlord and to
such
holder, specifying the respects in which Landlord has failed to perform such
obligation. If the nature of Landlord's obligation is such that more than
thirty
(30) days are reasonably required for performance or cure, Landlord shall
not be
in default if Landlord or such holder commences performance within such thirty
(30) day period and after such commencement diligently prosecutes the same
to
completion. In no event may Tenant terminate this Lease or offset or withhold
the payment of rent or other charges provided for in this Lease as a result
of
Landlord's default. Tenant waives and agrees not to assert against Landlord
any
claim for incidental or consequential damages sustained by Tenant in connection
with any loss, injury or damage attributable to this Lease, the Building
or the
Premises.
15. Expiration
or Termination.
On the
expiration of the Term or sooner termination of this Lease, Tenant shall,
at
Tenant's sole cost, (a) promptly and peaceably surrender the Premises to
Landlord "broom clean" and, subject to Section
11,
in the
same condition as when delivered to Tenant and after any landlord authorized
tenant improvements have been completed, normal wear and tear excepted, (b)
repair any damage caused by or in connection with the removal of any property
from the Premises, and (c) deliver all keys to the Premises to Landlord.
Before surrendering the Premises, Tenant shall, if and as directed by Landlord,
at Tenant's sole cost, remove Tenant's movable personal property only, and
all
other property shall, unless otherwise directed by Landlord, remain in the
Premises as the property of Landlord without compensation to
Tenant.
16. Estoppel
Certificate; Financial Statements.
16.1. Estoppel
Certificate.
Tenant
shall, within seven (7) days after Landlord's written request, execute and
deliver to Landlord an estoppel certificate in favor of Landlord and such
other
persons as Landlord shall request setting forth the following: (a) a
ratification of this Lease; (b) the Commence-ment Date and Expiration Date;
(c)
that this Lease is in full force and effect and has not been assigned, modified,
supple-mented or amended (except by such writing as shall be stated); (d)
that
all conditions under this Lease to be performed by Landlord have been satisfied,
or, in the alternative, those claimed by Tenant to be unsatisfied; (e) that,
to
the best of Tenant's knowledge, no defenses or offsets exist against the
enforcement of this Lease by Landlord, or, in the alternative, those claimed
by
Tenant to exist; (f) the date to which rent has been paid; (g) the amount
of the
Security Deposit; (h) Tenant's agreement to attorn to any purchaser, assignee
or
successor of Landlord; and (i) such other information as Landlord may reasonably
request. Landlord's mortgage lenders and purchasers shall be entitled to
rely on any estoppel certificate executed by Tenant.
15
16.2. Financial
Statements.
Tenant
shall, within seven (7) days after Landlord's request (but not more than
twice
in any calendar year), furnish to Landlord the most recent annual financial
statements for Tenant, prepared in accordance with generally accepted accounting
principles consistently applied and certified by Tenant to be true and correct.
Such financial statements, if not in the public domain, shall be maintained
by
Landlord in confidence, but may be delivered to any prospective purchaser
or any
existing or prospective lender of the Building.
17. Signage.
Tenant
shall be allowed to place interior signage comparable to the other tenants
of
the Building as reasonably approved by Landlord. Subject thereto, Tenant
shall
not place on any exterior door, wall, window or other surface of the Premises
or
the Building any sign, decoration, letter-ing, attachment, advertising matter
or
other thing of any kind, without first obtaining Landlord's prior written
approval which may be given or withheld in Landlord's sole discretion (as
well
as subsequently rescinded by Landlord). Landlord may, at Tenant's cost, and
without notice or liability to Tenant, remove any item erected in violation
of
this Section.
If Landlord establishes rules and regulations governing the size, type and
design of all such items, Tenant shall abide by such rules and
regulations. All approved signs or letterings on doors shall be printed,
painted and affixed at the sole cost of Tenant by a person approved by Landlord,
and shall comply with the requirements of the governmental authorities having
jurisdiction over the Building. At Tenant's sole expense, Tenant shall
maintain all permitted signs and shall, on the expiration of the Term or
sooner
termination of this Lease, remove all such permitted signs and repair any
damage
caused by such removal.
18. General
Provisions.
18.1. Force
Majeure.
If either Landlord or Tenant is delayed in or prevented from the performance
of
any act required under this Lease by reason of acts of God, strikes, riots,
insurrection or war, performance of the action in question shall be excused
for
the period of delay and the period for the performance of such act shall
be
extended for a period equivalent to the period of such delay. The provisions
of
this Section
shall
not, however, operate to excuse Tenant from the prompt payment of rent or
any
other amounts required to be paid under this Lease.
18.2. Notices.
Any notice, demand request, or other instrument which may be or is required
to
be given under this Lease shall be delivered in person or only sent by United
States certified mail, return receipt requested, postage prepaid or by overnight
courier and shall be addressed (a) if to Landlord, at the place specified
for
payment of rent and (b) if to Tenant, either at the Premises or at any other
current address for Tenant which is known to Landlord. Either party may
designate such other address as shall be given by written notice. Any such
notice shall be deemed to have been given, and shall be effective, on delivery
to the notice address then applicable for the party to which the notice is
directed, or, in the case of delivery by certified, United States mail, within
two (2) days of delivery into the United States mail system (as shown by
a
United States postmark and not by a metered postmark operated by Tenant,
Landlord or their agents). Further, any refusal to accept delivery of such
notice or the inability to deliver a notice because of an address change
which
was not properly communicated shall not defeat or delay the giving of a notice.
16
18.3. Severability.
If any provision of this Lease or the application of any provision of this
Lease
to any person or circumstance shall to any extent be invalid, the remainder
of
this Lease or the application of such provision to persons or circumstances
other than those as to which such provision is held invalid shall not be
affected by such invalidity. Each provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
18.4. Brokerage
Commissions.
Tenant shall indemnify, defend and hold harmless Landlord from and against
all
claims, liabilities and expenses, including reasonable attorneys' fees, relating
to any brokerage commission or finder's fee arising out of any agreement
made by
Tenant. Landlord shall indemnify, defend and hold harmless Tenant from and
against all claims, liabilities and expenses, including reasonable attorneys'
fees, relating to any brokerage commission or finder's fee arising out of
any
agreement made by Landlord. Landlord has disclosed and Tenant acknowledges
that
Xxxx Xxxx, a principal of one of the members of Landlord, is a licensed real
estate agent with the State of Utah (although no real estate commission is
due
to him by either Landlord or Tenant in connection with this Lease).
18.5. Successors.
Subject
to the terms and provisions of Section
8
above,
this Lease shall be binding on and shall inure to the benefit of Landlord
and
Tenant and their respective heirs, personal representatives, successors and
assigns, provided, however, that Tenant shall not assign, convey or transfer
any
or all of its rights and duties hereunder without the prior written consent
of
Landlord that may be withheld in Landlord's sole discretion. On any sale
or
assignment (except for purposes of security or collateral) by Landlord of
the
Premises or this Lease, Landlord shall, on and after such sale or assignment,
be
relieved entirely of all of Landlord's obligations under this Lease accruing
after the date of such sale or assignment, and such obligations shall, as
of the
time of such sale or assignment, pass to Landlord's successor in
interest.
18.6. Recourse
by Tenant.
Anything in this Lease to the contrary notwithstanding, Tenant shall look
solely
to the equity of Landlord in the Building and the land serving the Building,
subject to the prior rights of the holder of any mortgage or deed of trust,
for
the collection of any judgment (or other judicial process) requiring the
payment
of money by Landlord on any default or breach by Landlord with respect to
any of
the terms, covenants and condi-tions of this Lease to be observed or performed
by Landlord, and no other asset of Landlord or any other person shall be
subject
to levy, execution or other procedure for the satisfaction of Tenant's
remedies.
17
18.7. Quiet
Enjoyment.
Provided that Tenant timely pays and performs all of Tenant's obligations
under
this Lease, Tenant shall have quiet enjoyment of the Premises for the Term,
subject to all of the provisions of this Lease.
18.8. Rights
and Remedies.
No failure by Landlord to insist on the strict performance of any provision
of
this Lease or to exercise any right or remedy consequent on a breach of this
Lease shall constitute a waiver of any such breach or of such provision.
The
rights and remedies of Landlord shall not be mutually exclusive and the exercise
of one or more of the provisions of this Lease shall not preclude the exercise
of any other provision. The parties confirm that damages at law may be
inadequate or may not fully compensate Landlord for a breach or threatened
breach by Tenant of any of the provision of this Lease. Accordingly,
Landlord's rights and interests under this Lease shall be enforceable by
specific performance, injunction and any other equitable remedy together
with
monetary and other financial remedies.
18.9. Authorization.
Each individual executing this Lease does represent and warrant to each other
so
signing (and each other entity for which another person may be signing) that
he
or she has been duly authorized to deliver this Lease in the capacity and
for
the entity set forth where he or she signs.
18.10. Attorneys'
Fees.
If either Landlord or Tenant brings suit to enforce or interpret this Lease,
the
prevailing party shall be entitled to recover from the other party the
prevailing party's reasonable attorneys' fees and costs incurred in any such
action or in any appeal from such action, in addition to the other relief
to
which the prevailing party is entitled.
18.11. Landlord
Lien.
Landlord is hereby given a first lien upon all property, other than consigned
inventory, which shall come in or be placed upon the Premises before or after
the date hereof to secure the payment of rent and the performance of each
and
every covenant herein to be performed by Tenant and Tenant authorizes Landlord
to execute, acknowledge and file for Tenant (to the extent Tenant's execution,
acknowledgment or authorization is required) any and all UCC-1 financing
statements and security agreements prepared by Landlord in connection herewith.
If the property is sold pursuant to Utah law, the proceeds of any such sale
shall be applied first to the payment of expenses thereof, second to the
discharge of the rent or other liability hereunder unpaid and the balance,
if
any, shall be held for the account of the Tenant.
18.12 No
Accord and Satisfaction.
No
payment by Tenant or receipt by Landlord of a lesser amount than the amount
owing hereunder shall be deemed to be other than on account of the earliest
stipulated amount receivable from Tenant, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent
or
receivable or pursue any other remedy available under this Lease or the law
of
the state where the Leased Premises are located.
18
18.13 No
Discrimination.
Tenant
herein covenants by and for itself, and all persons claiming by, under or
through it, and this Lease is made and accepted upon and subject to the
following conditions: That there shall be no discrimination against or
segregation of any person or group of persons on account of race, sex, marital
status, color, creed, national origin or ancestry, in the leasing, subleasing,
assigning, use, occupancy, tenure or enjoyment of the Premises, nor shall
Tenant
itself, or any person claiming by, under or through it, establish or permit
any
such practice or practices of discrimination or segregation with reference
to
the selection, location, number, use or occupancy of tenant's, employees,
customer, licensees, invitees, subtenants, or vendees in the
Premises.
18.14 No
Other Warranties.
It is
expressly understood and agreed between the parties hereto that there are
no
warranties, representations, covenants, or agreements between the parties
hereto
except as specifically set forth herein.
18.15 Rules
and Regulations.
Landlord or such other person(s) as Landlord may appoint shall have the
exclusive control and management of the Common Areas and shall have the right,
from time to time, to establish, modify, amend and enforce reasonable Rules
and
Regulations with respect to the Common Areas and the rest of the Building.
Tenant agrees to abide by and conform to all such Rules and Regulations,
and to
cause its employees, suppliers, shippers, customers, contractors and invitees
to
so abide and conform. Landlord shall not be responsible to Tenant for the
non-compliance with said rules and regulations by other tenants of the Building.
The present Rules and Regulations for the Common Areas and the Building are
attached hereto as Exhibit
B.
18.16 Holding
Over.
Any
holding over by Tenant after the expiration of the Term without a written
extension thereof shall not constitute an extension thereof. In such case,
Tenant shall be a tenant for month-to-month and shall be subject to all the
conditions and covenants of this Lease other than those relating to its term
and
the Base Rent. In the case of such a holdover, the monthly Base Rent paid
by
Tenant during this holdover period shall automatically increase by fifty
percent
(50%) on the first day of the holdover term and thereafter, if such holdover
continues, shall annually increase an additional fifty percent (50%) on the
anniversary of the first day of holdover term until this Lease terminates.
Tenant shall give Landlord at least thirty (30) days prior written notice
of any
intention to quit the Premises.
18.17 Recording.
Tenant
shall not record this Lease or any memorandum of this Lease without the prior
written consent of Landlord, which consent may be withheld or denied in the
sole
and absolute discretion of Landlord, and any recordation by Tenant shall
be a
material breach of this Lease. Tenant grants to Landlord a power of attorney
to
execute and record a release releasing any such recorded instrument of record
that was recorded without the prior written consent of Landlord.
19
18.18 Joint
and Several Liability.
If
Tenant is comprised of more than one company, corporation or partnership
as
defined in the opening paragraph of this Lease or as shown on the signature
lines hereafter, then each such company, corporation or partnership shall
be
jointly and severally liable for Tenant's obligations under this Lease. All
unperformed obligations of Tenant hereunder not fully performed at the end
of
the Term shall survive the end of the Term, including payment obligations
with
respect to Rent and all obligations concerning the condition and repair of
the
Premises.
18.19 Telecommunications.
Tenant
and its telecommunications companies, including local exchange
telecommunications companies and alternative access vendor services companies,
shall have no right of access to and within the Building, for the installation
and operation of telecommunications systems, including voice, video, data,
Internet, and any other services provided over wire, fiber optic, microwave,
wireless, and any other transmission systems ("Telecommunications
Services"),
for
part or all of Tenant's telecommunications within the Building and from the
Building to any other location without Landlord's prior written consent,
not to
be unreasonably withheld. All providers of Telecommunications Services shall
be
required to comply with the rules and regulations of the Building, applicable
Laws and Landlord's policies and practices for the Building. Tenant acknowledges
that Landlord shall not be required to provide or arrange for any
Telecommunications Services and that Landlord shall have no liability to
any
Tenant Party in connection with the installation, operation or maintenance
of
Telecommunications Services or any equipment or facilities relating thereto.
Tenant, at its cost and for its own account, shall be solely responsible
for
obtaining all Telecommunications Services, but Landlord will be responsible
for
providing for normal business telecommunications and internet cables, lines
or
wiring to a point in the Premises reasonably selected by Landlord after
consultation with Tenant.
18.20 Confidentiality.
Tenant
acknowledges that the terms and conditions of this Lease are to remain
confidential for Landlord's benefit, and may not be disclosed by Tenant to
anyone, by any manner or means, directly or indirectly, without Landlord's
prior
written consent. The consent by Landlord to any disclosures shall not be
deemed
to be a waiver on the part of Landlord of any prohibition against any future
disclosure.
18.21 Miscellaneous.
This
Lease constitutes the entire agreement between the parties. No amendment
to this Lease shall be binding on Landlord or Tenant unless reduced to writing
and signed by both parties. This Lease shall be governed by and construed
and interpreted in accordance with the laws of the State of Utah. All
applicable provisions of this Lease shall survive the expiration of the Term
or
sooner termination of this Lease. Time is of the essence of each provision of
this Lease. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR
COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER IN ANY MATTER ARISING
OUT OF THIS LEASE OR THE USE AND OCCUPANCY OF THE PREMISES. The provisions
of
this Lease with respect to any obligation of Tenant to pay any sum owing
in
order to perform any act after the expiration or other termination of this
Lease
shall survive the expiration or other termination of this Lease unless
prohibited by law. The failure of any party to enforce any of the provisions
of
this Lease shall not constitute a waiver of its right to enforce such provision
at a future time nor shall it constitute a waiver of its right to enforce
any
other provision of this Lease or any other such provision unless specifically
stated in writing, signed by the party whose rights are deemed waived,
regardless of a party's knowledge of a breach hereunder. Words of any gender
used in this Lease shall be held to include any other gender and words in
the
singular number shall be held to include the plural when the context requires.
The parties agree that this Lease is not intended to and does not create
any
agency, joint venture, partnership or other relationship or business association
of any kind between them other than that of landlord and tenant. This Lease,
including any exhibits hereto, constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements or understandings. This Lease
represents the wording selected by the parties to define their agreement
and no
rule of strict construction shall apply against either party. Each party
represents that it has had or has been advised to have the representation
of its
legal counsel in connection with the preparation of this Lease. The section
and
paragraph headings are inserted only for convenience and are in no way to
be
construed as part of such sections or paragraphs or as a limitation on the
scope
of the particular section or paragraph to which they refer. This Lease may
be
signed in any number of counterparts with the same effect as if the signatures
upon any counterpart were upon the same instrument, and all signed counterparts
shall be deemed to be part of the original Lease. Facsimile signatures and
signatures scanned and emailed on this Lease shall bind the party transmitting
such signature to the same extent as an original.
[Signature
Page Follows]
20
LANDLORD
AND TENANT have executed this Lease on the respective dates set forth below,
to
be effective as of the date first set forth above.
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LANDLORD:
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EAST
WEST CENTER, LLC,
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|
a
Utah limited liability company
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By:
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Name:
|
|||||
|
Title:
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|
Date
|
|||||
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TENANT:
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SPECTRUMDNA,
|
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a
Delaware corporation
|
|||||
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By:
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|||||
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Name:
|
|||||
|
Title:
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|
Date
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21
