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EXHIBIT 10.25
LEASE
by and between
PARADIGM RESOURCES, L.C.
A UTAH LIMITED LIABILITY COMPANY
as Landlord
and
PARTNET INC.,
A UTAH CORPORATION
as Tenant
FOR SUITE 204
OF A BUILDING LOCATED AT
000 XXXXXXX XXXXX
XXXX XXXX XXXX, XXXX
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INDEX TO LEASE AGREEMENT: PARADIGM RESOURCES, L.C.
SALT LAKE CITY, UTAH
ARTICLE 1. BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS ................ 1
SECTION 1.01 BASIC LEASE PROVISIONS ................................. 1
SECTION 1.02 SIGNIFICANCE OF A BASIC LEASE PROVISION ................ 3
SECTION 1.03 ENUMERATION OF EXHIBITS ................................ 3
ARTICLE II. GRANT AND PREMISES ............................................ 3
SECTION 2.01 PREMISES ............................................... 3
ARTICLE III. RENT ......................................................... 3
SECTION 3.01 BASE MONTHLY RENT ...................................... 3
SECTION 3.02 ESCALATION ............................................. 3
SECTION 3.03 TENANT'S SHARE OF LANDLORD'S EXPENSES .................. 4
SECTION 3.04 REPORT OF COSTS AND STATEMENT OF ESTIMATED COSTS ....... 4
SECTION 3.05 PAYMENT OF ADDITIONAL RENT ............................. 5
SECTION 3.06 TAXES .................................................. 5
SECTION 3.07 PAYMENTS ............................................... 5
ARTICLE IV. RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM ............. 5
SECTION 4.01 RENTAL TERM ........................................... 5
SECTION 4.02 RENTAL COMMENCEMENT DATE ............................... 5
SECTION 4.03 PRELIMINARY TERM ....................................... 6
ARTICLE V. CONSTRUCTION OF PREMISES ....................................... 6
SECTION 5.01 CONSTRUCTION BY LANDLORD ............................... 6
SECTION 5.02 CHANGES AND ADDITIONS BY LANDLORD ...................... 6
SECTION 5.03 DELIVERY OF POSSESSION ................................. 6
ARTICLE VI. TENANT'S WORK & LANDLORD'S CONTRIBUTION ....................... 6
SECTION 6.01 TENANT'S WORK .......................................... 6
ARTICLE VII. USE .......................................................... 7
SECTION 7.01 USE OF PREMISES ........................................ 7
SECTION 7.02 HAZARDOUS SUBSTANCES ................................... 7
ARTICLE VIII. OPERATION AND MAINTENANCE OF COMMON AREAS ................... 7
SECTION 8.01 CONSTRUCTION AND CONTROL OF COMMON AREAS ............... 7
SECTION 8.02 LICENSE ................................................ 8
ARTICLE IX. ALTERATIONS, SIGNS, LOCKS & KEYS .............................. 8
SECTION 9.01 ALTERATIONS ............................................ 8
SECTION 9.02 SIGNS .................................................. 8
SECTION 9.03 LOCKS AND KEYS ......................................... 8
ARTICLE X. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS ................... 9
SECTION 10.01 LANDLORD'S OBLIGATION FOR MAINTENANCE ................. 9
SECTION 10.02 TENANT'S OBLIGATION FOR MAINTENANCE ................... 9
SECTION 10.03 SURRENDER AND RIGHTS UPON TERMINATION ................. 9
ARTICLE XI. INSURANCE AND INDEMNITY ....................................... 9
SECTION 11.01 LIABILITY INSURANCE AND INDEMNITY ..................... 9
SECTION 11.02 FIRE AND CASUALTY INSURANCE ........................... 10
SECTION 11.03 WAIVER OF SUBROGATION ................................. 10
ARTICLE XII. UTILITY CHARGES .............................................. 10
SECTION 12.01 OBLIGATION OF LANDLORD ................................ 10
SECTION 12.02 OBLIGATIONS OF TENANT ................................. 11
SECTION 12.03 LIMITATIONS ON LANDLORDS LIABILITY .................... 11
ARTICLE XIII. OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION ............. 12
SECTION 13.01 OFF-SET STATEMENT ..................................... 12
SECTION 13.02 ATTORNMENT ............................................ 12
SECTION 13.03 SUBORDINATION ......................................... 12
SECTION 13.04 MORTGAGEE SUBORDINATION .............................. 12
SECTION 13.05 REMEDIES .............................................. 12
ARTICLE XIV. ASSIGNMENT ................................................... 12
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INDEX TO LEASE AGREEMENT: PARADIGM RESOURCES, L.C.
SALT LAKE CITY, UTAH
SECTION 14.01 ASSIGNMENT ............................................ 12
ARTICLE XV. WASTE OR NUISANCE ............................................. 12
SECTION 15.01 WASTE OR NUISANCE ..................................... 12
ARTICLE XVI. NOTICES ...................................................... 12
SECTION 16.01 NOTICES ............................................... 12
ARTICLE XVII. DESTRUCTION OF THE PREMISES ................................. 12
SECTION 17.01 DESTRUCTION ........................................... 12
ARTICLE XVIII. CONDEMNATION ............................................... 13
SECTION 18.01 CONDEMNATION .......................................... 13
ARTICLE XIX. DEFAULT OF TENANT............................................. 13
SECTION 19.01 DEFAULT - RIGHT TO RE-ENTER ........................... 13
SECTION 19.02 DEFAULT - RIGHT TO RE-LET ............................. 14
SECTION 19.03 LEGAL EXPENSES ........................................ 14
ARTICLE XX. BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP ........................ 14
SECTION 20.01 ACT OF INSOLVENCY, GUARDIANSHIP, ETC .................. 14
ARTICLE XXI. LANDLORD ACCESS .............................................. 14
SECTION 21.01 LANDLORD ACCESS ....................................... 14
ARTICLE XXII. LANDLORD'S LIEN ............................................. 15
SECTION 22.01 LANDLORD'S LIEN ....................................... 15
ARTICLE XXIII. HOLDING OVER ............................................... 15
SECTION 23.01 HOLDING OVER .......................................... 15
SECTION 23.02 SUCCESSORS ............................................ 15
ARTICLE XXIV. RULES AND REGULATIONS ....................................... 15
SECTION 24.01 RULES AND REGULATIONS ................................. 15
ARTICLE XXV. QUIET ENJOYMENT .............................................. 15
SECTION 25.01 QUIET ENJOYMENT ....................................... 15
ARTICLE XXVI. SECURITY DEPOSIT ............................................ 15
SECTION 26.01 SECURITY DEPOSIT ...................................... 15
ARTICLE XXV11. MISCELLANEOUS PROVISIONS ................................... 16
SECTION 27.01 WAIVER ................................................ 16
SECTION 27.02 ENTIRE AGREEMENT ...................................... 16
SECTION 27.03 FORCE MAJEURE ......................................... 16
SECTION 27.04 LOSS AND DAMAGE ....................................... 16
SECTION 27.05 ACCORD AND SATISFACTION ............................... 16
SECTION 27.06 NO OPTION ............................................. 16
SECTION 27.07 ANTI-DISCRIMINATION ................................... 16
SECTION 27.08 SEVERABILITY .......................................... 16
SECTION 27.09 OTHER MISCELLANEOUS PROVISIONS ........................ 16
SECTION 27.10 REPRESENTATION REGARDING AUTHORITY .................... 17
ADDITIONAL PROVISIONS ..................................................... 17
SIGNATURES ................................................................ 18
LANDLORD ACKNOWLEDGMENT ................................................... 18
TENANT ACKNOWLEDGMENT ..................................................... 18
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LEASE AGREEMENT
ARTICLE 1. BASIC LEASE PROVISIONS; ENUMERATION OF EXHIBITS
SECTION 1.01 BASIC LEASE PROVISIONS
(A) DATE: JANUARY 12, 1999
(B) LANDLORD: PARADIGM RESOURCES, L.C., a Utah limited liability company
(C) ADDRESS OF LANDLORD FOR NOTICES (SECTION 16.01): 0000 Xxxx Xxxxxxx Xxx,
Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000.
(D) TENANT: PARTNET INC., a Utah corporation
(E) ADDRESS OF TENANT FOR NOTICES (SECTION 16.01): 000 Xx. Xxxxxx xxx, Xxxx
Xxxx Xxxx, XX 00000. After opening for business at Leased Premises,
notice address will be the Leased Premises.
(F) PERMITTED USES (SECTION 7.01). Research, software programming, computer
network services assembly and general office uses.
(G) TENANT'S TRADE NAME (EXHIBIT "E" - SIGN CRITERIA): Partner Inc.
(H) BUILDING (SECTION 2.01): Situated at approx. 000 Xxxxxxx Xxxxx, in the
City of Salt Lake, County of Salt Lake, State of Utah.
(I) PREMISES (SECTION 2.01): A portion of the first floor of the Building at
the approximate location outlined on Exhibit "A-1" known as Suite 204
consisting of approximately 6,026 square feet of gross rentable area.
Said area is calculated by multiplying the full second floor usable area
of 5,019 s.f. by 1.2007 to account for Tenant's proportionate share of
common area corridors, lobby, mechanical, electrical, and other service
rooms etc. in the Building.
(J) DELIVERY OF POSSESSION (SECTION 5.03): On or before February 15, 1999,
Preliminary Term begins on Delivery of Possession (Section 4.03).
(K) RENTAL TERM, COMMENCEMENT AND EXPIRATION DATE (SECTIONS 4.01 & 4.02):
The Rental Term shall commence on the earlier of (a) fifteen (15) days
after Delivery of Possession or (b) opening of Tenant for business at
the Premises, and shall be for a period of five (5) full Lease Years
ending January 31, 2004, subject to Tenant right to terminate set forth
in Section 1.01(X).
(L) BASE MONTHLY RENT (SECTION 3.01):
Eight Thousand Two Hundred Eighty Five and 75/100ths Dollars ($8,285.75)
(M) ESCALATIONS IN BASE MONTHLY RENT (SECTION 3.02): The Base Monthly Rent
shall be increased annually on the first day of each February commencing
in the year 2000 ("Escalation Date") proportionate to any increase in
the U.S. Dept. of Labor, Bureau of Labor Statistics Consumer Price Index
for Urban Consumers, All City Average (1982-84=100). To calculate
said increase, Landlord shall use a fraction the denominator of which
shall be said index for the month of November, 1998 and the numerator of
which shall be the index for the November immediately previous the
Escalation Date. If there is a decrease in the relevant Consumer Price
Index, the Base Monthly Rent shall not be adjusted. If the U.S.
Department of Labor ceases to publish said Consumer Price Index, the
Landlord shall substitute an index which in Landlord's reasonable good
faith judgment most nearly approximates the Consumer Price Index
specified herein.
(N) LANDLORD'S SHARE OF OPERATING EXPENSES (SECTION 3.03): The Base Monthly
Rent shall be absolutely net to the Landlord as provided in Section
3.03.
(O) TENANT'S PRO RATA SHARE OF OPERATING EXPENSES (SECTION 3.03): Tenant
shall be responsible for all operating expenses as defined in Section
3.03. Tenant's proportionate of Basic Costs shall be 6.715%. Said
operating expenses include Basic Costs, Direct Costs and Metered Costs
as defined in Section 3.03 and are currently estimated to be $4.50 per
square foot or $2,259.75 monthly.
(P) UTILITIES AND SERVICES. Subject to the provisions of Section 3.03, 12.01
and 12.02, this Lease provides that the utilities and services shall be
paid or reimbursed by Tenant
(Q) LANDLORD'S CONTRIBUTION TO TENANT'S WORK (SECTION 6.02): Ninety Six
Thousand Four Hundred Sixteen and no/100ths Dollars ($96,416.00)
payable as set forth in Section 6.02 herein. If
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Tenant fails to spend all of Landlord's contribution then Landlord shall
reduce the Base Monthly Rent as set forth in Section 1.01 (L) by $ 1.00
for every $100.00 which Tenant does not spend.
(R) PREPAID RENT: $8,034.67 paid upon execution of this Lease to be applied
to the first installment(s) of Base Monthly Rent due hereunder.
(S) EXCESS HOUR UTILITY CHARGES AND HOURS OF OPERATION (SECTION 12.02):
Standard operating hours for the Building shall be 7:00 a.m. to 6:00
p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday,
excluding holidays. To the extent Tenant operates during any time in
excess of those specified above, Tenant shall pay an extra hourly
utility charge of $0.20 per hour per 1,000 usable square feet for
lighting and electricity and $3.00 per hour per 1,000 usable square feet
for mechanical/HVAC system for each full or partial hour during which
Tenant operates.
(T) ADJUSTMENTS BASED ON FINAL AREA DETERMINATION: Upon final completion,
the Building shall be measured and the actual rentable area of the
Premises determined in accordance with standards of Section 2.01. The
sums set forth in Sections 1.01 (L), (M), (O), (Q) and (U) shall then be
proportionately adjusted to reflect the actual area of the Premises.
(U) SECURITY DEPOSIT (SECTION 26.01): Eight Thousand Dollars ($8,000.00)
(V) GUARANTOR(S): Xxx X. Xxxxx
(W) GUARANTOR'S ADDRESS: 000 Xx. Xxxxxx Xxx, Xxxx Xxxx Xxxx, XX 00000
(X) TENANT RIGHT TO TERMINATE: If Tenant needs additional space and Landlord
can not provide sufficient space contiguous to Tenant's Leased Premises
in the Building, then Tenant may elect to terminate this Lease effective
on not less than ninety (90) days prior written notice given to Landlord
and upon payment of the "unamortized portion" of the Landlord's
Contribution to Tenant Work set forth in Section 1.01 (Q), which payment
shall be made not less than five (5) days prior to the Termination Date.
To calculate the "unamortized portion", Landlord shall multiply the
amount of Landlord Contribution set forth in Section 1.01 (Q) as
adjusted pursuant to Section 1.01 (T) by a fraction, the numerator of
which shall be the number of months between the Termination Date as
provided in this Section 1.01 (X) and January 31, 2004 and the
denominator of which shall be 60.
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SECTION 1.02 SIGNIFICANCE OF A BASIC LEASE PROVISION. The foregoing
provisions of Section 1.01 summarize for convenience only certain fundamental
terms of the Lease delineated more fully in the Articles and Sections referenced
therein. In the event of a conflict between the provisions of Section 1.01 and
the balance of the Lease, the latter shall control.
SECTION 1.03 ENUMERATION OF EXHIBITS. The exhibits enumerated in this
Section and attached to this Lease are incorporated in the Lease by this
reference and are to be construed as a part of the Lease.
EXHIBIT "A" - SITE PLAN
EXHIBIT "A-1" - FIRST LEVEL PLAN
EXHIBIT "B" - LEGAL DESCRIPTION(S)
EXHIBIT "C" - LANDLORD'S WORK
EXHIBIT "D" - TENANT'S WORK
ARTICLE II. GRANT AND PREMISES
SECTION 2.01 PREMISES. Landlord has heretofore obtained a long-term
ground lease covering that certain tract of real property situated in the
University of Utah Research Park in Salt Lake City, State of Utah, more
particularly described in Exhibit "B" attached hereto, together with certain
easement for access rights. (Said tract is hereinafter referred to as the
"Property").
Landlord owns a building on the Property referred to in Section 1.01 (H)
(hereinafter the "Building") suitable for use as office research and development
space, together with related parking facilities and other improvements necessary
to enable to the Building to be so used (the Building and related facilities and
improvements are hereinafter collectively referred to as the "Improvements").
In consideration for the rent to be paid and covenants to be performed
by Tenant, Landlord hereby leases to Tenant, and Tenant leases from Landlord for
the Term and upon the terms and conditions herein set forth premises described
in Section 1.01(I) (hereinafter referred to as the "Premises" or "Leased
Premises"), located in the Building. Gross rentable area measurements herein
specified are from the exterior of the perimeter walls of the building to the
center of the interior walls. In addition, the factor set forth in Section 1.01
(1) has been added to the area as measured above to adjust for Tenant's
proportionate share of common hallways, restrooms, elevators, stairways, etc. in
the building.
The exterior walls and roof of the Premises and the areas beneath said
Premises are not demised hereunder, and the use thereof together with the right
to install, maintain, use, repair, and replace pipes, ducts, conduits, and wires
leading through the Premises in locations which will not materially interfere
with Tenant's use thereof and serving other parts of the building or buildings
are hereby reserved to Landlord. Landlord reserves (a) such access rights
through the Premises as may be reasonably necessary to enable access by Landlord
subject to reasonable notice to Tenant to the balance of the building and
reserved areas and elements as set forth above; and (b) the right to install or
maintain meters on the Premises to monitor use of utilities. In exercising such
rights, Landlord will use reasonable efforts so as to not commit waste upon the
Premises and as far as practicable to minimize annoyance, interference or damage
to Tenant when making modifications, additions or repairs.
Subject to the provisions of Article VIII, Tenant and its customers,
agents and invitees have the right to the non-exclusive use, in common with
others of such unreserved automobile parking spaces, driveways, footways, and
other facilities designated for common use within the Building, except that with
respect to non-exclusive automobile parking spaces, Tenant shall cause its
employees to park their cars only in areas specifically designated from time to
time by Landlord for that purpose. Landlord shall have the right to designate,
in its sole business judgment, certain spaces as "customer" parking spaces and
Tenant shall use its best efforts to cause its employees not to park in said
customer parking.
ARTICLE III. RENT
SECTION 3.01 BASE MONTHLY RENT. Tenant agrees to pay to Landlord the
Base Monthly Rent set forth in Section 1.01(L), as adjusted pursuant to Section
1.01(T), at such place as Landlord may designate, without prior demand
therefor, without offset or deduction and in advance on or before the first day
of each calendar month during the Rental Term, commencing on the Rental
Commencement Date. In the event the Rental Commencement Date occurs on a day
other than the first day of a calendar month, then the Base Monthly Rent to be
paid on the Rental Commencement Date shall include both the Base Monthly Rent
for the first full calendar month occurring after the Rental Commencement Date,
plus the Base Monthly Rent for the initial fractional calendar month prorated on
a per-diem basis (based upon a thirty (30) day month).
SECTION 3.02 ESCALATION. As set forth in Section 1.01(M).
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SECTION 3.03 TENANT'S SHARE OF LANDLORD'S EXPENSES.
(a) "Basic Costs" shall mean all reasonable actual costs and expense
incurred by Landlord in connection with the ownership, operation, management and
maintenance of the Property Improvements located thereon including, but not
limited to, all reasonable expenses incurred by Landlord as a result of
Landlord's compliance with any and all of its obligations under this Lease (or
under similar leases with other tenants). In explanation of the foregoing, and
not in limitation thereof, Basic Costs shall include: all real and personal
property taxes and assessments (whether general or special, known or unknown,
foreseen or unforeseen) and any tax or assessment levied or charged in lieu
thereof, whether assessed against Landlord and/or Tenant and whether collected
from Landlord and/or Tenant; snow removal, trash removal, common area utilities,
cost of equipment or devices used to conserve or monitor energy consumption,
supplies, insurance, license, permit and inspection fees, cost of services of
independent contractors, cost or compensation (including employment taxes and
reasonable fringe benefits) of all persons who perform regular and recurring
duties connected with day-to-day operation, maintenance, repair, and replacement
of the Building, its equipment and the adjacent walk, and landscaped area
(including, but not limited to janitorial, scavenger, gardening, security,
parking, elevator, painting, plumbing, electrical, mechanical, carpentry, window
washing, structural and roof repairs and reserves, signing and advertising), but
excluding persons performing services not uniformly available to or performed
for substantially all Building tenants; and rental expense or a reasonable
allowance FOR depreciation of personal property used in the maintenance,
operation and repair of the Building. The foregoing notwithstanding, Basic Costs
shall not include depreciation on the Building and Improvements; amounts paid
toward principal or interest of loans of Landlord; nor "Direct Costs" as defined
in Section 3.03 (b). If the cost of any repair or replacement exceeds $5,000.00
and is of the nature normally defined as a "capital cost" under generally
accepted accounting principles, then such cost shall be amortized together with
interest at 10% per annum and charged as a "Basic Cost" over the useful life of
said repair or replacement. Tenant shall pay its Proportionate Share of Basic
Costs. "Tenant's Proportionate Share of Basic Costs" shall mean the percentage
derived from a fraction, the numerator of which is the gross rentable area of
the Premises as set forth in Section 1.01(I) and the denominator of which is
the gross rentable square footage of the Building (89,741 s.f.). Tenant's
Proportionate Share of Basic Costs initially is set forth in Section 1.01(O),
subject to increase or decrease due to increases or decreases in the gross
rentable square footage of the Premises and/or the Building.
(b) "Direct Costs" shall mean all actual costs and expenses incurred by
Landlord in connection with the operation, management, maintenance, replacement,
and repair of the Premises, including but not limited to janitorial services,
maintenance, repairs, supplies, utilities, heating, ventilation, air
conditioning, and property management fees, (which property management fees
shall not exceed four (4%) percent of the Base Monthly Rent set forth herein).
If any category of Direct Costs can only be determined on a Building wide basis,
Tenant's proportionate share of any such category of Direct Costs will be based
on the same percentage established for Tenant's Proportionate Share of Basic
Costs.
(c) Landlord may cause at Landlord's sole cost and expense (which shall
not be reimbursable in whole or in part by Tenant) meters or monitors to be
installed to measure actual electrical and ventilation/air conditioning usage in
the Premises by Tenant. "Metered Costs" shall mean the actual cost of such
usage. If such meters are installed, Tenant shall pay Landlord monthly, as
Additional Rent, the estimated costs of such metered electrical and
ventilation/air conditioning usage. If the costs of ventilation/air conditioning
usage are not separately metered for tenants in the Building said costs shall be
considered Direct Costs and shall be calculated as set forth in 3.03(a).
(d) "Estimated Costs" shall mean the projected amount of Direct Costs,
Metered Costs and Proportionate Share of Basic Costs. The Estimated Costs for
the calendar year in which the Lease commences are set forth in Section 1.01(O),
and are not included in the Base Monthly Rent. If the Estimated Costs as of the
date Tenant takes occupancy are greater than the Estimated Costs at the time
this Lease is executed, the Estimated Costs shall be increased to equal the
Estimated Costs as of the date of Tenant's occupancy.
SECTION 3.04 REPORT OF COSTS AND STATEMENT OF ESTIMATED COSTS.
(a) Within sixty (60) days after the expiration of each calendar year
occurring during the term of this Lease, Landlord shall furnish Tenant a written
statement ("Annual Report of Costs") of the Tenant's actual Direct Costs,
Metered Costs and Proportionate Share of Basic Costs occurring during the
previous calendar year. Such Annual Report of Costs shall show in reasonable
detail a breakdown of the components of the Costs set forth herein. The Annual
Report of Costs shall specify the amount by which said actual costs for the
previous year exceeds or is less than the amounts paid by Tenant as Estimated
Costs during the previous calendar year.
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(b) At the same time specified in Section 3.04 (a), Landlord
shall furnish Tenant a written statement of the Estimated Costs for the
then current calendar year ("Annual Statement of Estimated Costs.")
(c) Landlord's records of costs shall be open to inspection by
Tenant at Landlord's office during business hours and upon five (5) days
prior written notice to Landlord of Tenant's desire to conduct such
inspection. If Tenant discovers any errors in Landlord's calculations as
a result of such inspections, Landlord shall immediately adjust such
costs and credit or charge Tenant for its share of the discrepancy.
SECTION 3.05 PAYMENT OF ADDITIONAL RENT. Tenant shall pay additional
rent ("Additional Rent") as follows:
(a) With each monthly payment of Base Monthly Rent pursuant to
Section 3.01 above, Tenant shall pay TO Landlord, without offset or
deduction, one-twelfth (1/12th) of the Annual Statement of Estimated
Costs. If at any time Landlord obtains information that indicates that
any of the categories of cost comprising Estimated Costs are
significantly different than as calculated in the Annual Statement of
Estimated Costs then in effect, Landlord may amend said Statement in
order to reflect a more accurate prediction of the actual costs that
will be incurred during the calendar year, and Tenant will pay amended
Additional Rent consistent with said amended Statement.
(b) Within thirty (30) days after delivery of the Annual Report
of Costs, Tenant shall pay to Landlord the amount by which Direct Costs,
Metered Costs and Proportionate Share of Basic Costs, as specified in
the Report, exceed the aggregate of Estimated Costs actually paid by
Tenant as Additional Rent for the year at issue.
(c) If the Annual Report of Costs indicates that the Estimated
Costs paid by Tenant exceeded the actual Direct Costs, Metered Costs and
Proportionate Share of Basic Costs for the same year, Landlord, at its
sole election, shall either (i) pay the amount of such excess to Tenant,
or (ii) apply such excess against the next installments) of Base Monthly
Rent and/or Additional Rent due hereunder and so notify Tenant.
SECTION 3.06 TAXES.
(a) Landlord shall pay all real property taxes and assessments
(all of which are hereinafter collectively referred to as "Taxes') which
are levied against or which apply with respect to the Premises to be
reimbursed by Tenant as a part of Basic Costs.
(b) Tenant shall prior to delinquency pay all taxes,
assessments, charges, and fees which during the Rental Term hereof may
be imposed, assessed, or levied by any governmental or public authority
against or upon Tenant's use of the Premises or any inventory, personal
property, fixtures or equipment kept or installed, or permitted to be
located therein by Tenant.
SECTION 3.07 PAYMENTS. All payments of Base Monthly Rent, Additional
Rent and other payments to be made to Landlord shall be made on a timely basis
and shall be payable to Landlord or as Landlord may otherwise designate. All
such payments shall be mailed or delivered to Landlord's principal office set
forth in Section 1.01 (C), or at such other place as Landlord may designate from
time to time in writing. If mailed, all payments shall be mailed in sufficient
time and with adequate postage thereon to be received in Landlord's account by
no later than the due date for such payment. If Tenant shall fail to pay any
Base Monthly Rent or any Additional Rent or any other amounts or charges within
five (5) days after the due date, Tenant shall pay interest from the due date of
such past due amounts to the date of payment, both before and after judgment at
a rate equal to the greater of fourteen (14%) percent per annum or two (2%)
percent over the "prime" or "base" rate charged by Zions First National Bank of
Utah at the due date of such payment; provided however, that in any case the
maximum amount or rate of interest to be charged shall not exceed the maximum
non-usurious rate in accordance with applicable law. Notwithstanding the above,
Landlord shall waive said interest for one late payment in any calendar year
provided that Tenant pays the past due charge within five (5) days after notice
from Landlord that the charge is past due.
ARTICLE IV. RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY TERM
SECTION 4.01 RENTAL TERM. The initial term of this Lease shall be for
the period defined as the Rental Term in Section 1.01(K), plus the partial
calendar month, if any, occurring after the Rental Commencement Date (as
hereinafter defined) if the Rental Commencement Date occurs other than on the
first day of a calendar month. "Lease Year" shall include twelve (12) calendar
months, except that first Lease Year will also include any partial calendar
month beginning on the Rental Commencement Date.
SECTION 4.02 RENTAL COMMENCEMENT DATE. The Rental Term of this Lease and
Tenant's obligation to pay rent hereunder shall commence as set forth in Section
1.01K (the "Rental Commencement Date"). Within five (5) days after Landlord's
request to do so, Landlord and Tenant shall execute a written
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affidavit, in recordable form, expressing the Rental Commencement Date and the
termination date, which affidavit shall be deemed to be part of this Lease.
SECTION 4.03 PRELIMINARY TERM. The period between the date Tenant enters
upon the Premises and the commencement of the Rental Term will be designated as
the "preliminary term" during which neither Base Monthly Rent nor Additional
Rent shall accrue; however, other covenants and obligations of Tenant shall be
in full force and effect. Delivery of possession of the Premises to Tenant AS
provided in Section 5.03 shall be considered "entry" by Tenant and commencement
of "preliminary term".
ARTICLE V. CONSTRUCTION OF PREMISES
SECTION 5.01 CONSTRUCTION BY LANDLORD. Landlord will construct the
Building in which the Premises are to be located. The Premises shall be
constructed substantially in accordance with Outline Specifications entitled
"Landlord's Work" marked Exhibit "C" attached hereto and made a part hereof. it
is understood and agreed by Tenant that no minor changes which do not impair
Tenant's efficient business use of the Leased Premises from any plans or from
said Outline Specifications made necessary during construction of the Premises
or the Building shall affect or change this Lease or invalidate same.
SECTION 5.02 CHANGES AND ADDITIONS BY LANDLORD. Landlord hereby reserves
the right at any time, and from time to time, to make alterations or additions
TO, and to build additional stories on the Building in which the Premises are
contained and to build adjoining the same and to modify the existing parking or
other common areas to accommodate additional buildings. Landlord also reserves
the right to construct other buildings or improvements in the Building area from
time to time, on condition that if the Building area is expanded so as to
include any additional buildings, Landlord agrees to create or maintain a
parking ratio adequate to meet local laws and ordinances, including the right to
add land to the Building or to erect parking structures thereon. Notwithstanding
the above, the addition of new improvements shall not, after constructed,
materially interfere with Tenant's access to or from or use of the Leased
Premises. Furthermore, during construction, Landlord shall undertake prudent
reasonable steps to minimize interference with Tenant's access to or from the
Leased Premises.
SECTION 5.03 DELIVERY OF POSSESSION. Except as hereinafter provided,
Landlord shall deliver the Premises to Tenant ready for Tenant's Work on or
before the date set forth in Section 1.01(j). The Premises shall be deemed as
ready for delivery when Landlord shall have substantially completed construction
of the portion of the said Premises to be occupied exclusively by Tenant, in
accordance with Landlord's obligations set forth in Exhibit "C". Landlord shall,
from time to time during the course of construction, provide information to
Tenant concerning the progress of construction of said Premises, and will give
written notice to Tenant when said Premises are in fact ready for Tenant's Work.
Notwithstanding the foregoing, Landlord shall have the right to extend the date
for delivery of possession of the Premises for a period of three one (1) month
periods by notice in writing given to Tenant any time prior to said delivery
date. If any disputes shall arise as to the Premises being ready for delivery of
possession, a certificate furnished by Landlord's architect in charge so
certifying shall be conclusive and binding of that fact and date upon the
parties. It is agreed that by occupying the Premises as a tenant, Tenant
formally accepts the same and acknowledges that the Premises are in the
condition called for hereunder, except for items specifically excepted in
writing at date of occupancy as "incomplete".
ARTICLE VI. TENANT'S WORK & LANDLORD'S CONTRIBUTION
SECTION 6.01 TENANT'S WORK. Tenant agrees to provide all work of
whatsoever nature in accordance with its obligations set forth in Exhibit "D".
Tenant agrees to furnish Landlord, within the time periods required in Exhibit
"D", with a complete and detailed set of plans and specifications drawn by some
qualified person reasonably acceptable to Landlord setting forth and describing
Tenant's Work in such detail as Landlord may reasonably require and in
compliance with Exhibit "D", unless this requirement be waived in writing by
Landlord. If said plans and specifications are not so furnished by Tenant within
the required time periods, then Landlord may, at its option, in addition to
other remedies Landlord may enjoy, cancel this Lease at any time thereafter
while such plans and specifications have not been so furnished. No material
deviation from the final set of plans and specifications once submitted to and
approved by Landlord, shall be made by Tenant without Landlord's prior written.
consent, which shall not be unreasonably withheld. Landlord shall have the right
to approve Tenant's architect and contractor to be used in performing Tenant's
Work, and the right to require and approve insurance or bonds provided by Tenant
or such contractors. in due course after completion of Tenant's Work, Tenant
shall certify to Landlord the itemized cost of Tenant improvements and fixtures
located upon the Premises.
SECTION 6.02 LANDLORD CONTRIBUTION TO TENANT'S WORK. In addition to
Landlord Work to be completed pursuant to Exhibit "C", Landlord shall contribute
the amount set forth in Section 1.01 (Q) toward Tenant's Work set forth in
Exhibit "D". If Tenant does not spend all of the Contribution to Tenant's Work,
then Landlord shall reduce the Base Monthly Rent as set forth in Section 1.01
(L) by $1.00 for each $100.00 of Landlord Contribution which Tenant does not
spend.
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ARTICLE VII. USE
SECTION 7.01 USE OF PREMISES. Tenant shall use the Premises solely for
the purpose of conducting the business indicated in Section 1.01(F) and for
purposes ordinarily incidental to such use and only for such purposes and in
such manner as are permitted both by the Protective Covenants relating to the
University of Utah Research Park and by any existing legislation concerning the
Research Park. Tenant shall not make any use of the Premises which might cause
cancellation or an increase in the cost of any insurance policy covering the
same unless Tenant commits to pay the amount of increase in said insurance
premium in addition to other payments set forth in this Lease. Tenant shall not
make any use of the Leased Premises any article, item, or thing which is
prohibited by the standard form of fire insurance policy. Tenant shall not
commit any waste upon the Leased Premises and shall not conduct or allow any
business activity, or thing on the Leased Premises which is an annoyance or
causes damage to Landlord, to other sub-tenants, occupants, or users of the
Improvements, or to occupants of the vicinity. Tenant shall comply with and
abide by all laws, ordinances, and regulations of all municipal, county, state,
and federal authorities which are now in force or which may hereafter become
effective with respect to use and occupancy of the Premises. Landlord represents
that to the best of its knowledge and understanding, that upon delivery of
possession as set forth in Section 5.03, the Building will comply with all
currently applicable laws, ordinances and regulations of municipal, county,
state and federal authorities.
SECTION 7.02 HAZARDOUS SUBSTANCES.
(a) Landlord shall be responsible for removal of any Hazardous
Substances that existed at the Project prior to construction or any that
Landlord has or does install at the Premises OR Building. After
reasonable inquiry, Landlord is not aware of any existing Hazardous
Substances within the Project areas.
(b) Tenant shall not use, produce, store, release, dispose or
handle in or about the Leased Premises or transfer to or from the Leased
Premises (or permit any other party to do such acts) any Hazardous
Substance except in compliance with all applicable Environmental Laws.
Tenant shall not construct or use any improvements, fixtures or
equipment or engage in any act on or about the Leased Premises that
would require the procurement of any license or permit pursuant to any
Environmental Law. Upon Tenant obtaining actual knowledge of same,
Tenant shall immediately notify Landlord of (i) the existence of any
Hazardous Substance on or about the Leased Premises that may be in
violation of any Environmental Law (regardless of whether Tenant is
responsible for the existence of such Hazardous Substance), (ii) any
proceeding or investigation by any governmental authority regarding the
presence of any Hazardous Substance on the Leased Premises or the
migration thereof to or from any other property, (iii) all claims made
or threatened by any third party against Tenant relating to any loss or
injury resulting from any Hazardous Substance, or (iv) Tenant's
notification of the National Response Center of any release of a
reportable quantity of a Hazardous Substance in or about the Leased
Premises. "Environmental Laws" shall mean any federal, state or local
statute, ordinance, rule, regulation or guideline pertaining to health,
industrial hygiene, or the environment, including without limitation,
the federal Comprehensive Environmental Response, Compensation, and
Liability Act; "Hazardous Substance" shall mean all substances,
materials and wastes that are or become regulated, or classified as
hazardous or toxic, under any Environmental Law. If it is determined
that any Hazardous Substance exists on the Leased Premises resulting
from any act of Tenant or its employees, agents, contractors, licensees,
subtenants or customers, then Tenant shall immediately take necessary
action to cause the removal of said substance and shall remove such
within ten (10) days after discovery. Notwithstanding the above, if the
Hazardous Substance is of a nature that can not be reasonably removed
within ten (10) days Tenant shall not be in default if Tenant has
commenced to cause such removal and proceeds diligently thereafter to
complete removal, except that in all cases, any Hazardous Substance must
be removed within sixty (60) days after discovery thereof. Furthermore,
notwithstanding the above, if in the good faith judgment of Landlord,
the existence of such Hazardous Substance creates an emergency or is of
a nature which may result in immediate physical danger to persons AT the
Property, Landlord may enter upon the Leased Premises and remove such
Hazardous Substances and, if the existence was a result of the act of
the Tenant or its employee, agent, contractor, licensee, subtenant, or
customers, Landlord may charge the cost thereof to Tenant as Additional
Rent.
ARTICLE VIII. OPERATION AND MAINTENANCE OF COMMON AREAS
SECTION 8.01 CONSTRUCTION AND CONTROL OF COMMON AREAS. All automobile
parking areas, driveways, entrances and exits thereto, and other facilities
furnished by Landlord in or near the buildings or Building, including if any,
employee parking areas, truck ways, loading docks, mail rooms or mail pickup
areas, pedestrian sidewalks and hallways, landscaped areas, retaining walls,
stairways, elevators, utility rooms, restrooms and other areas and improvements
provided by Landlord for the general use in common tenants, their officers,
agents, employees and customers, shall at all times be subject to the exclusive
control and management of Landlord which shall have the right from time to time
to establish,
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reasonable non-discriminatory Rules and Regulations with respect to all
facilities and modify and enforce areas mentioned in this Section. Landlord
shall have the right to construct, maintain and operate lighting and drainage
facilities on or in all said areas and improvements; to police the same, from
time to time to change the area, level, location and arrangement of parking
areas and other facilities hereinabove referred to; to restrict parking by
tenants, their officers, agents and employees to employee parking areas; to
close temporarily all or any portion of said areas or facilities to such extent
as may, in the opinion of counsel, be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person or the public therein; to
assign "reserved" parking spaces for exclusive use of certain tenants or for
customer parking, to discourage non-employee and non-customer parking; and to do
and perform such other acts in and to said areas and improvements as, in the
exercise of good business judgment, the Landlord shall determine to be advisable
with a view toward maintaining of appropriate convenience uses, amenities, and
for permitted uses by tenants, their officers, agents, employees and customers.
Landlord will operate and maintain the common facilities referred to above in
such a manner as it, in its sole discretion, shall determine from time to time
but in any event, Landlord shall maintain the common facilities in a clean,
sanitary and safe condition in accordance with applicable laws, rules and
regulations. Landlord shall take reasonable measures to minimize to the extent
reasonably possible interference with Tenant's business while performing
Landlord's common area maintenance responsibilities, but Landlord shall not be
liable for any interference resulting from Landlord's prudent performance of
said responsibilities. Without limiting the scope of such discretion, Landlord
shall have the full right and authority to employ all personnel and to make all
Rules and Regulations pertaining to and necessary for the proper operation,
security and maintenance of the common areas and facilities. Building and/or
project signs, traffic control signs and other signs determined by Landlord to
be in best interest of the Building, will be considered part of common area and
common facilities.
SECTION 8.02 LICENSE. All common areas and facilities not within the
Premises, which Tenant may be permitted to use and occupy, are to be used and
occupied under a revocable license, and if the amount of such areas be
diminished, Landlord shall not be subject to any liabilities nor shall Tenant be
entitled to any compensation or diminution or abatement of rent, nor shall such
diminution of such areas be deemed constructive or actual eviction, so long as
such revocations or diminutions are deemed by Landlord to serve the best
interests OF the Building. Notwithstanding the above, Landlord shall not
permanently materially alter Tenant's access to or from the Leased Premises.
ARTICLE IX. ALTERATIONS, SIGNS, LOCKS & KEYS
SECTION 9.01 ALTERATIONS. Tenant shall not make or suffer to be made any
alterations or additions to the Premises in excess of $5,000 or which may affect
the building structure or building HVAC, electrical or plumbing systems without
the prior written consent of Landlord. Any additions to, or alterations of the
Premises except movable furniture, equipment and trade fixtures shall become a
part of the realty and belong to Landlord upon the termination of Tenant's lease
or renewal term or other termination or surrender of the Premises to Landlord.
SECTION 9.02 SIGNS. Subject to the restrictions of the University
Research Park and obtaining written prior approval of University Research Park
and of Landlord and any required municipal or other public approvals and subject
to full conformity with Exhibit "E" Tenant at its own expense, may place a
suitable Tenant identification sign on the Building and/or Premises, provided
that any such sign shall be in the same general Building location and the
general design conforms to the same design and style of other tenant signs on
the Building. If any sign is erected prior to obtaining written University
Research Park and Landlord approval Tenant shall be required to remove said sign
and repair any damage caused thereby at its sole cost and expense. At the
termination of this Lease, Tenant shall remove said signs. Tenant shall repair
any damage caused by the installation or removal of any Tenant signs. All work
shall be completed in a good and workmanlike manner
SECTION 9.03 LOCKS AND KEYS.
(a) The building shall be equipped with an electronic card
access system at entrance to building as well as primary doors of the
Leased Premises. Landlord shall issue, monitor, and program key cards
for Tenant and Tenant's employees, as reasonably needed. Tenant shall
pay the Landlord's cost for program key cards requested by Tenant. When
employment relationships change, Tenant shall cooperate to attempt to
retrieve said key cards from employees leaving Tenant.
(b) Where key access exists, Tenant may change locks or install
other locks on doors, but if Tenant does, Tenant must provide Landlord
with duplicate keys within twenty four hours after said change or
installation.
(c) Upon termination of this Lease Tenant shall deliver to
Landlord all cards and keys to the Premises including any interior
offices, toilet rooms, combinations to built-in safes, etc. which shall
have been furnished to or by the Tenant or are in the possession of the
Tenant.
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ARTICLE X. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS
SECTION 10.01 LANDLORD'S OBLIGATION FOR MAINTENANCE. Landlord shall
maintain and repair: (1) the areas outside the Premises including hallways,
stairways, elevators, public restrooms, if any, general landscaping, parking
areas, driveways and walkways; (2) the Building structure including roof,
exterior walls, and foundation; and (3) all plumbing, electrical, heating, and
air conditioning systems. However, if the need for such repairs or maintenance
results from any careless, wrongful or negligent act or omission of Tenant,
Tenant shall pay the entire cost of any such repair or maintenance including a
reasonable charge to cover Landlord's supervisory overhead. Except in case of
emergency repairs of which Landlord becomes aware of, Landlord shall not be
obligated to repair any damage or defect until receipt of written notice from
Tenant of the need of such repair and Landlord shall have a reasonable time
after receipt of such notice in which to make such repairs. Tenant shall give
immediate notice to Landlord in case of fire or accidents in the Premises or in
the building of which the Premises are a part or of defects therein or in any
fixtures or equipment provided by Landlord. If Landlord does not repair such
items within a reasonable time, Tenant may do so on behalf of Landlord and xxxx
the cost thereof to Landlord who shall pay such within twenty (20) days after
receipt thereof unless Landlord notifies Tenant in writing that Landlord
disputes the repair or cost thereof.
SECTION 10.02 TENANT'S OBLIGATION FOR MAINTENANCE.
(a) Tenant shall provide its own janitorial service and keep and
maintain the Premises including the interior wall surfaces and windows,
floors, floor coverings and ceilings in a clean, sanitary and safe
condition in accordance with the laws of the State and in accordance
with all directions, rules and regulations of the health officer, fire
xxxxxxxx, building inspector, or other proper officials of the
governmental agencies having jurisdiction, at the sole cost and expense
of Tenant, and Tenant shall comply with all requirements of law,
ordinance and otherwise, affecting said Premises.
(b) Tenant shall pay, when due, all claims for labor or material
furnished, for work under Sections 9.01, 9.02 and 10.02 hereof, to or
for Tenant at or for use in the Premises, and shall bond such work if
reasonably required by Landlord to prevent assertion of claims against
Landlord.
(c) Tenant agrees to be responsible for all furnishings,
fixtures and equipment located upon the Premises from time to time and
shall replace carpeting within the Premises if same shall be damaged by
tearing, burning, or stains resulting from spilling anything on said
carpet, reasonable wear and teat accepted.
SECTION 10.03 SURRENDER AND RIGHTS UPON TERMINATION.
(a) This Lease and the tenancy hereby created shall cease and
terminate at the end of the Rental Term hereof, or any extension or
renewal thereof, without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives
notice to vacate the Premises and agrees that Landlord shall be entitled
to the benefit of all provisions of law respecting summary recovery of
possession of Premises from a Tenant holding over to the same extent as
if statutory notice has been given.
(b) Upon termination of this Lease at any time and for any
reason whatsoever, Tenant shall surrender and deliver up the Premises to
Landlord in the same condition as when the Premises were delivered to
Tenant or as altered as provided in Section 9.01, ordinary wear and tear
excepted. Upon request of Landlord, Tenant shall promptly remove all
personal property from the Premises and repair any damage caused by such
removal. Obligations under this Lease relating to events occurring or
circumstances existing prior to the date of termination shall survive
the expiration or other termination of the Rental Term of this Lease.
ARTICLE XI. INSURANCE AND INDEMNITY
SECTION 11.01 LIABILITY INSURANCE AND INDEMNITY. Tenant shall, during
all terms hereof, keep in full force and effect a policy of public bodily injury
and property damage liability insurance with respect to the Premises, with a
combined single limit of not less than Two Million Dollars ($2,000,000.00) per
occurrence. The policy shall name Landlord, Property Manager (i.e., Woodbury
Corporation) and any other persons, firms or corporations designated by Landlord
and Tenant as insured, and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the Landlord ten (10) days
prior written notice. Such insurance shall include an endorsement permitting
Landlord and Property Manager to recover damage suffered due to act or omission
of Tenant, notwithstanding being named as an additional "Insured party" in such
policies. Such insurance may be furnished by Tenant under any blanket policy
carried by it or under a separate policy therefor. The insurance shall be with
an insurance company approved by Landlord and a copy of the paid-up policy
evidencing such insurance or a certificate of insurer
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certifying to the issuance of such policy shall be delivered to Landlord. If
Tenant fails to provide such insurance, Landlord may do so and charge same to
Tenant.
Tenant will indemnify, defend and hold Landlord harmless from and
against any and all claims, connection with loss of life, personal injury and/or
damage to actions, damages, liability and expense in property arising from or
out of any occurrence in, upon or at the Premises or from the occupancy or use
by Tenant of the Premises or any part thereof, or occasioned by any act or
omission of Tenant, its agents, contractors, employees, servants, sublessees,
concessionaires or business invitees unless caused by the negligence of Landlord
its employees, contractors or agents, and to the extent not covered by its fire,
casualty and liability insurance. In case Landlord shall, without fault of its
part, be made a party to any litigation commenced by or against Tenant, then
Tenant shall protect and hold Landlord harmless and shall pay ALL costs,
expenses and reasonable attorney fees incurred or paid by either in defending
itself or enforcing the covenants and agreements of this Lease.
SECTION 11.02 FIRE AND CASUALTY INSURANCE.
(a) Subject to the provisions of this Section 11.02, Landlord
shall secure, pay for, and at all times during the terms hereof
maintain, insurance providing coverage upon the building improvements in
an amount equal to the full insurable value thereof (as determined by
Landlord) and insuring against the perils of fire, extended coverage,
vandalism, and malicious mischief. All insurance required hereunder
shall be written by reputable, responsible companies licensed in the
State of Utah. Tenant shall have the right, at its request at any
reasonable time, to be furnished with copies of the insurance policies
then in force pursuant to this Section, together with evidence that the
premiums therefor have been paid.
(b) Tenant agrees to maintain at its own expense such fire and
casualty insurance coverage as Tenant may desire or require in respect
to Tenant's personal property, equipment, furniture, fixtures or
inventory and Landlord shall have no obligation in respect to such
insurance or losses. All property kept or stored on the Premises by
Tenant or with Tenant's permission shall be so done at Tenant's sole
risk and Tenant shall indemnify Landlord against and hold it harmless
from any claims arising out of loss or damage to same.
(c) Landlord represents that the Premises will be initially
designed to permit the operation of Tenant's computer-related business
as described to Landlord as of the date of this Lease without any
increase in casualty insurance premium. Thereafter, Tenant will not
permit said Premises to be used for any purpose which would render the
insurance thereon void or cause cancellation thereof or increase the
insurance risk or increase the insurance premiums (unless Tenant agrees
to pay such increased premiums) in effect just prior to the commencement
of this Lease. Tenant agrees to pay as additional rent the total amount
of any increase in the insurance premium of Landlord over that in effect
prior to the commencement of this lease resulting from Tenant use of the
Premises. If Tenant installs any electrical or other equipment which
overloads the lines in the Premises, Tenant shall at its own expense
make whatever changes are necessary to comply with the requirements of
Landlord's insurance.
(d) Tenant shall be responsible for all glass breakage within
the Premises and any exterior glass breakage resulting from acts or
negligence of Tenant, its employees, agents, contractors, licensees,
subtenants, or customers and agrees to immediately replace all glass
broken or damaged, for which Tenant is responsible, with glass of the
same quality as that broken or damaged. Landlord may replace, at
Tenant's expense, any such broken or damaged glass if not replaced by
Tenant within five (5) days after such damage and charge the cost
thereof to Tenant. Landlord shall be responsible for replacement of any
other damaged glass at the Premises or the Building and shall similarly
replace such in the same manner required of Tenant hereunder.
SECTION 11.03 WAIVER OF SUBROGATION. Each party hereto does hereby
release and discharge the other party hereto and any officer, agent, employee or
representative of such party, of and from any liability whatsoever hereafter
arising from loss, damage or injury caused by fire or other casualty for which
insurance (permitting waiver of liability and containing a waiver of
subrogation) is carried by the injured party at the time of such loss, damage or
injury to the extent of any recovery by the injured party under such insurance.
ARTICLE XII. UTILITY CHARGES
SECTION 12.01 OBLIGATION OF LANDLORD. Subject to the terms of Section
3.03 and unless otherwise agreed in writing by the parties, during the term of
this Lease the Landlord shall cause to be furnished to the Premises during
standard business hours (7:00 a.m. to 6:00 p.m. Monday through Friday and 8:00
a.m. to 1:00 p.m. on Saturday), except Holidays, the following utilities and
services, the cost and expense of which shall be included in Direct Costs,
Metered Costs and/or Basic Costs as appropriately categorized by the Landlord:
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(a) Electricity, water, gas and sewer service.
(b) Telephone connection, but not including telephone stations and
equipment (it being expressly under-stood and agreed that Tenant
shall be responsible for the ordering and installation of
telephone lines and equipment which pertain to the Premises).
(c) Heat and air-conditioning to such extent and to such levels as,
in Landlord's judgment, is reasonably required for the
comfortable use and occupancy of the Premises subject however to
any limitations imposed by University Research Park or any
government agency. The parties agree and understand that the
above heat and air-conditioning will be provided Monday through
Friday from 7:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m.
to 1:00 p.m.
(d) Snow removal and parking lot sweeping services.
(e) Elevator service.
SECTION 12.02 OBLIGATIONS OF TENANT. Tenant shall arrange for and shall
pay the entire cost and expense of all telephone stations, equipment and use
charges, electric light bulbs (but not fluorescent bulbs used in fixtures
originally installed in the Premises) and ALL other materials and services not
expressly required to be provided and paid for pursuant to the provisions of
Section 12.01 above. Tenant covenants to use good faith efforts to reasonably
conserve utilities by turning off lights and equipment when not in use and
taking such other reasonable actions in accordance with sound standards for
energy conservation. Landlord reserves the right at Landlord's sole expense
(without reimbursement for such installation and meter costs from Tenant) to
separately meter or otherwise monitor any utility usage and to separately charge
Tenants for its own utilities, in which case an equitable adjustment shall be
made to Base Rental and Tenant's share of Operating Expenses as set forth in
this Lease. Additional limitations of Tenant are as follows:
(a) Tenant will not, without the written consent of Landlord,
which consent shall not be unreasonably withheld, use any machine or
device at the Premises using current in excess of 208 volts which will
in any way or to any extent increase the amount of electricity or water
usually furnished or supplied for use on the Premises for the use
designated in Section 7.01 above, nor connect with electrical current,
except through existing electrical outlets in the Premises, or water
pipes, any apparatus or device, for the purposes of using electric
current or water.
(b) If Tenant shall require water or electric current in excess
of that usually furnished or supplied for use of the Premises, or for
purposes other than those designated in Section 7.01 above, Tenant shall
first procure the written consent of Landlord for the use thereof, which
consent Landlord may refuse and/or Landlord may cause a water meter or
electric current meter to be installed in the Leased Premises, so as to
measure the amount of water and/or electric current consumed for any
such use. The cost of such meters and of installation maintenance, and
repair thereof shall be paid for by Tenant and Tenant agrees to pay
Landlord promptly upon demand by Landlord for all such water and
electric current consumed as shown by said meters, at the rates charged
for such service by the City in which the Building is located or the
local public utility, as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the water and electric
current so consumed.
(c) If and where heat generating devices are used in the
Premises which materially affect the temperature otherwise maintained by
the air conditioning system, Landlord reserves the right to install
additional or supplementary air conditioning units for the Premises, and
the entire cost of installing operating, maintaining and repairing the
same shall be paid by Tenant to Landlord promptly after demand by
Landlord.
To the extent that Tenant operates hours in excess of the stated
standard business hours, Tenant may cause Landlord to provide services
set forth in Section 12.01 (a), (b), (c) and (e) above; however, Tenant
shall pay extra hourly utility charges as set forth in Section 1.01(S)
herein. If electricity is metered pursuant to Section 3.03(c), then
Tenant shall not be required to pay extra electrical charges as
electrical usage during 'excess hours' will be metered and charged to
Tenant in any case.
SECTION 12.03 LIMITATIONS ON LANDLORDS LIABILITY. Landlord shall not be
liable for and Tenant shall not be entitled to terminate this Lease or to
effectuate any abatement or reduction of rent by reason of Landlord's failure to
provide or furnish any of the foregoing utilities or services if such failure
was reasonably beyond the control of Landlord. In no event shall Landlord be
liable for loss or injury to persons or property, however, arising or occurring
in connection with or attributable to any failure to furnish such utilities or
services even if within the control of Landlord.
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ARTICLE XIII. OFF-SET STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01 OFF-SET STATEMENT. Tenant agrees within ten (10) days
after request therefor by Landlord to execute in recordable form and deliver to
Landlord a statement in writing, certifying
(a) that this Lease is in full force and effect,
(b) the date of commencement of the Rental Term of this
Lease,
(c) that rent is paid currently without any off-set or
defense thereto,
(d) the amount of rent, if any paid in advance, and
(e) that there are no uncured defaults by Landlord or
stating those claimed by Tenant.
SECTION 13.02 ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of sale
under any mortgage or deed of trust made by Landlord covering the Premises,
attorn to the purchaser upon any such foreclosure or sale and recognize such
purchaser as the Landlord under this Lease.
SECTION 13.03 SUBORDINATION. Tenant agrees that this Lease shall, at the
request of Landlord, be subordinate to any first mortgages or deeds of trust
that may hereafter be placed upon said Premises and to any and all advances to
be made thereunder, and to the interest thereon, and all renewals, replacements
and extensions thereof, provided the mortgagees or trustees named in said
mortgages or deeds of trust shall agree to recognize the Lease of Tenant in the
event of foreclosure, if Tenant is not in default and execute a non-disturbance
agreement in a form acceptable to Landlord's lender.
SECTION 13.04 MORTGAGEE SUBORDINATION. Tenant hereby agrees that this
Lease shall, if at any time requested by Landlord or any lender in respect to
Landlord's financing of the building or project in which the Premises are
located or any portion hereof, be made superior to any mortgage or deed of trust
that may have preceded such Lease.
SECTION 13.05 REMEDIES. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for the Tenant with full power and authority to execute and
deliver in the name of the Tenant any such instruments described in this Article
XIII upon failure of the Tenant to execute and deliver any of the above
instruments within fifteen (15) days after written request so to do by
Landlord; and such failure shall constitute a breach of this Lease entitling the
Landlord, at its option, to cancel this Lease and terminate the Tenant's
interest therein.
ARTICLE XIV. ASSIGNMENT
SECTION 14.01 ASSIGNMENT. Tenant may assign or sublet all or any portion
of the Premises, or any part thereof for the same use permitted in Section 1.01
(F), provided that Tenant shall maintain continuing liability for all
obligations under this Lease. Tenant may not assign or sublet for any other use
without the written consent of Landlord, which consent will not be withheld
unreasonably.
ARTICLE XV. WASTE OR NUISANCE
SECTION 15.01 WASTE OR NUISANCE. Tenant shall not commit or suffer to be
committed any waste upon the Premises, or any nuisance or other act or thing
which may disturb the quite enjoyment of any other tenant in the building in
which the Premises may be located, or elsewhere within the Building.
ARTICLE XVI. NOTICES
SECTION 16.01 NOTICES. Except as provided in Section 19.01, any notice
required or permitted hereunder to be given or transmitted between the parties
shall be either personally delivered, or mailed postage prepaid by registered
mall, return receipt requested, addressed if to Tenant at the address set forth
in Section 1.01 (E), and if to Landlord at the address set forth in Section
1.01(C). Either party may, by notice to the other given as prescribed in this
Section 16.01, change its above address for any future notices which are mailed
under this Lease.
ARTICLE XVII. DESTRUCTION OF THE PREMISES
SECTION 17.01 DESTRUCTION.
(a) If the Premises are partially or totally destroyed by fire
or other casualty insurable under standard fire insurance policies with
extended coverage endorsement so as to become
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partially or totally untenantable, the same shall be repaired or rebuilt
as speedily as practical under the circumstances at the expense of the
Landlord, unless Landlord elects not to repair or rebuild as provided in
Subsection (b) of this Section 17.01. During the period required for
restoration, a just and proportionate part of Base Rent, additional rent
and other charges payable by Tenant hereunder shall be abated until the
Premises are repaired or rebuilt. Notwithstanding the above, if Landlord
cannot reasonably restore the Premises to a tenantable condition within
120 days after the occurrence of the casualty, then Landlord shall
notify Tenant and Tenant may elect to terminate this Lease by giving
written notice to Landlord within 10 days after receipt of Landlord's
notice.
(b) If the Premises are (I) rendered totally untenantable by
reason of an occurrence described in Subsection (a), or (II) damaged or
destroyed as a result of a risk which is not insured under Landlord's
fire insurance policies, or (III) at least twenty percent (20%) damaged
or destroyed during the last two years of the Rental Term, or (IV) if
the Building is damaged in whole or in part (whether or not the Premises
are damaged), to such an extent that Tenant cannot practically use the
Premises for its intended purpose, then and in any such events Landlord
may at its option terminate this Lease Agreement by notice in writing to
the Tenant within sixty (60) days after the date of such occurrence.
Unless Landlord gives such notice, this Lease Agreement will remain in
full force and effect subject to this Section 17.01 and Landlord shall
repair such damage at its expense as expeditiously as possible under the
circumstances.
(c) If Landlord should elect or be obligated pursuant to
Subsection (b) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Building any other work or improvements which may have been originally
performed or installed at Landlord's expense. If the cost of performing
Landlord's obligation exceeds the actual proceeds of insurance paid or
payable to Landlord on account of such casualty, Landlord may terminate
this Lease Agreement unless Tenant, within fifteen (15) days after
demand therefor, deposits with Landlord a sum of money sufficient to pay
the difference between the cost of repair and the proceeds of the
insurance available for such purpose. Tenant shall replace all work and
improvements not originally installed or performed by Landlord at its
expense.
(d) Except as stated in this Article XVII, Landlord shall not be
liable for any loss or damage sustained by Tenant by reason of
casualties mentioned hereinabove or any other accidental casualty.
ARTICLE XVIII. CONDEMNATION
SECTION 18.01 CONDEMNATION. As used in this Section the term
"Condemnation Proceeding" means any action or proceeding in which any interest
in the Premises or Building is taken for any public or quasi-public purpose by
any lawful authority through exercise of the power of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof. If the whole of the
Premises is taken through Condemnation Proceedings, this Lease shall
automatically terminate as of the date possession is taken by he condemning
authority. If in excess of twenty-five (25%) percent of the Premises is taken,
either party hereto shall have the option to terminate this Lease by giving the
other written notice of such election at any time within thirty (30) days after
the date of taking. If less than twenty-five (25%) percent of the space is taken
and Landlord determines, in Landlord's sole discretion, that a reasonable amount
of reconstruction thereof will not result in the Premises or the Building
becoming a practical improvement reasonably suitable for use for the purpose for
which it is designed, then Landlord may elect to terminate this Lease Agreement
by giving thirty (30) days written notice as provided hereinabove. In all other
cases, or if neither party exercises its option to terminate, this Lease shall
remain in effect and the rent payable hereunder from and after the date of
taking shall be proportionately reduced in proportion to the ratio of: (1) the
area contained in the Premises which is capable of occupancy after the taking;
to (II) the total area contained in the Premises which was capable of occupancy
prior to the taking. in the event of any termination or rental reduction
provided for in this Section, there shall be a proration of the rent payable
under this Lease and Landlord shall refund any excess theretofore paid by
Tenant. 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 sums compensating Tenant for diminution in the value of or
deprivation of its leasehold estate, shall be the sole and exclusive property of
Landlord, except that Tenant will be entitled to any awards intended to
compensate Tenant for expenses of locating and moving Tenant's operations to a
new space.
ARTICLE XIX. DEFAULT OF TENANT
SECTION 19.01 DEFAULT - RIGHT TO RE-ENTER. In the event of any failure
of Tenant to pay any rental due hereunder within ten (10) days after written
notice that the same is past due shall have been mailed to Tenant, or any
failure by Tenant to perform any other of the terms, conditions or covenants
required of Tenant by this Lease within thirty (30) days after written notice of
such default shall have been mailed to Tenant, or if Tenant shall permit this
Lease to be taken under any writ of execution, then Landlord, besides other
rights or remedies it may have, shall have the right to declare this Lease
terminated and shall
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have the immediate right of re-entry and may remove all persons and property
from the Premises. Such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant, without evidence of
notice or resort to legal process and without being deemed guilty of trespass,
or becoming liable for any loss or damage which may be occasioned thereby.
Tenant hereby waives all compensation for the forfeiture of the term or its loss
of possession of the Premises in the event of the forfeiture of this Lease as
provided for above. If Tenant has abandoned the Premises and notices are not
deliverable to Tenant at the address provided by Tenant for notices, in lieu of
mailing, Landlord may conspicuously post such notice for ten (10) consecutive
days at the main entrance to or in front of the Premises, and such notice shall
constitute a good, sufficient, and lawful notice for the purpose of declaring a
forfeiture of this Lease and for terminating all of the rights of the Tenant
hereunder.
SECTION 19.02 DEFAULT - RIGHT TO RE-LET. Should Landlord elect to
re-enter, as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such reasonable alterations and repairs as may be necessary in order
to relet the Premises, and may relet said Premises or any part thereof for such
term or terms (which may be for a term extending beyond the term of this Lease)
and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable. Upon each such reletting,
all rentals received by Landlord from such reletting shall be applied first to
the payment of any reasonable costs and expenses of such reletting, including
brokerage fees and attorney's fees and costs of such alterations and repairs;
second, to the payment of rent or other unpaid obligations due hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. If such rental received
from such reletting during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a court or competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time elect to terminate this Lease for such previous default. Should
Landlord at any time terminate this Lease for any default, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such default, including the cost of recovering the Premises,
reasonable attorney's fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Premises for the remainder of the stated
term, all of which amounts shall be immediately due and payable.
SECTION 19.03 LEGAL EXPENSES. In case of default by either party in the
performance and obligations under this Lease, the defaulting party shall pay all
costs incurred in enforcing this Lease, or any right arising out of such
default, whether by suit or otherwise, including a reasonable attorney's fee.
ARTICLE XX. BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP
SECTION 20.01 ACT OF INSOLVENCY, GUARDIANSHIP, ETC. The following shall
constitute a default of this Lease by the Tenant for which Landlord, at
Landlord's option, may immediately terminate this Lease.
(a) The appointment of a receiver to take possession of all or
substantially all of the assets of the Tenant.
(b) A general assignment by the Tenant of his assets for the
benefit of creditors.
(c) Any action taken or suffered by or against the Tenant under
any federal or state insolvency or bankruptcy act.
(d) The appointment of a guardian, conservator, trustee, or
other similar officer to take charge of all or any substantial part of
the Tenant's property.
Except as set forth herein, neither this Lease, nor any interest therein
nor any estate thereby created shall pass to any trustee, guardian, receiver or
assignee for the benefit of creditors or otherwise by operation of law.
ARTICLE XXI. LANDLORD ACCESS
SECTION 21.01 LANDLORD ACCESS. Landlord or Landlord's agent shall have
the right to enter the Premises at all reasonable times to examine the same, or
to show them to prospective purchasers or
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lessees of the Building, or to make all repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon said Premises that may be required
therefor without the same constituting an eviction of Tenant in whole or in
part, and rent shall not xxxxx while said repairs, alterations, improvements, or
additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise. During the ninety days prior to the expiration of the
Rental Term of this Lease or any renewal term, Landlord may exhibit the Premises
to prospective tenants and place upon the Premises the usual notices "To Let" or
"For Rent" which notices Tenant shall permit to remain thereon with molestation.
ARTICLE XXII. LANDLORD'S LIEN
SECTION 22.01 LANDLORD'S LIEN. Tenant hereby grants to Landlord a lien
upon the improvements, trade fixtures and furnishings of Tenant to secure full
and faithful performance of all of the terms of this Lease. Landlord agrees to
subordinate its lien to Tenant's equipment financing lender provided such is on
the form provided by Landlord.
ARTICLE XXIII. HOLDING OVER
SECTION 23.01 HOLDING OVER. Any holding over after the expiration of the
Rental Term hereof shall be construed to be a tenancy at sufferance and all
provisions of this Lease Agreement shall be and remain in effect except that the
monthly rental shall be double the amount of rent (including any adjustments as
provided herein) payable for the last full calendar month of the Rental Term
including renewals or extensions.
SECTION 23.02 SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors and assigns of the said
parties; and if there shall be more than one tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein.
ARTICLE XXIV. RULES AND REGULATIONS
SECTION 24.01 RULES AND REGULATIONS. Tenant shall comply with all
reasonable nondiscriminatory rules and regulations which are now or which may be
hereafter prescribed by the Landlord and posted in or about said Premises or
otherwise brought to the notice of the Tenant, both with regard to the project
as a whole and to the Premises including common facilities.
ARTICLE XXV. QUIET ENJOYMENT
SECTION 25.01 QUIET ENJOYMENT. Upon payment by the Tenant of the rents
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Premises for the term hereby demised
without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under the Landlord, subject,
nevertheless, to the terms and conditions of this Lease and actions resulting
from future eminent domain proceedings and casualty losses.
ARTICLE XXVI. SECURITY DEPOSIT
SECTION 26.01 SECURITY DEPOSIT. The Landlord herewith acknowledges
receipt of the amount set forth in Section 1.01 (U) which it is to retain as
security for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall the Landlord be obliged to apply
the same upon rents or other charges in arrears or upon damages for the Tenant's
failure to perform the said covenants, conditions and agreements; the Landlord
may so apply the Security Deposit, at its option; and the Landlord's right to
the possession of the Leased Premises for non-payment of rents or for other
reasons shall not in any event be affected by reason of the fact that the
Landlord holds this Security Deposit. The said sum, if not applied toward the
payment of rents in arrears or toward the payment of damages suffered by the
Landlord by reason of the Tenant's breach of the covenants, conditions and
agreements of this Lease, is to be returned to Tenant without interest when this
Lease is terminated, according to these terms, and in no event is the said
Security Deposit to be returned until Tenant has vacated the Leased Premises and
delivered possession to the Landlord.
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In the event that the Landlord repossesses Leased Premises because of
the Tenant's default or because of the Tenant's failure to carry out the
covenants, conditions and agreements of this Lease, Landlord may apply the said
Security Deposit toward damages as may be suffered or shall accrue thereafter by
reason of the Tenant's default or breach. In the event of bankruptcy or other
debtor-creditor proceedings against Tenant as specified in Article XX, the
Security Deposit shall be deemed to be applied first to the payment of Rents and
other charges due Landlord for the earliest possible periods prior to the filing
of such proceedings. The Landlord shall not be obliged to keep the said Security
Deposit as a separate fund, but may mix the same with its own funds.
ARTICLE XXVII. MISCELLANEOUS PROVISIONS
SECTION 27.01 WAIVER. No failure on the part of Landlord or Tenant to
enforce any covenant or provision of this Lease shall discharge or invalidate
such covenant or provision or affect the right of that party to enforce the same
in the event of any subsequent breach. One or more waivers of any covenant or
condition by Landlord or Tenant shall not be construed as a waiver of a
subsequent breach of the same covenant or condition and the consent to or
approval of any subsequent similar act by the other party. No breach of a
covenant or condition of this Lease shall be deemed to have been waived by
Landlord or Tenant, unless such waiver be in writing signed by the waiving
party.
SECTION 27.02 ENTIRE AGREEMENT. This Lease constitutes the entire
Agreement and understanding between the parties hereto and supersedes all prior
discussions, understandings and agreements. This Lease may not be altered or
amended except by a subsequent written agreement executed by all parties.
SECTION 27.03 FORCE MAJEURE. Any failure to perform or delay in
performance by either party of any obligation under this Lease, other than
Tenant's obligation to pay rent, shall be excused if such failure or delay is
caused by any strike, lockout, governmental restriction or any similar cause
beyond the control of the party so falling to perform, to the extent and for the
period that such continues.
SECTION 27.04 LOSS AND DAMAGE. The Landlord shall not be responsible or
liable to the Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying all or any part of the premises
adjacent to or connected with the Premises or any part of the building of which
the Premises are a part, or for any loss or damage resulting to the Tenant or
his property from bursting, stoppage or leaking of water, gas sewer or steam
pipes or for any damage or loss of property within the Premises from any cause
whatsoever.
SECTION 27.05 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 Premises are
located.
SECTION 27.06 NO OPTION. The submission of this Lease for examination
does not constitute a reservation of or option for the Premises and this Lease
becomes effective as a lease only upon full execution and delivery thereof by
Landlord and Tenant.
SECTION 27.07 ANTI-DISCRIMINATION. Tenant herein covenants by and for
itself, its heirs, executors, administrators and assigns and all persons
claiming 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 the Tenant itself, or any person claiming 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 tenants,
lessees, sublessees, or subtenants in the Premises.
SECTION 27.08 SEVERABILITY. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall be invalid
or unenforceable to any extent, the remainder of this Lease, or the application
of such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
SECTION 27.09 OTHER MISCELLANEOUS PROVISIONS. This instrument shall not
be recorded without the prior written consent of Landlord; however, upon the
request of either party hereto, the other party shall join in the execution of a
memorandum or "short form" lease for recording purposes which memorandum shall
describe the parties, the Premises, the Rental Term and shall incorporate this
Lease by reference, and may include other special provisions. The captions which
precede the Sections of this Lease
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are for convenience only and shall in no way affect the manner in which any
provisions hereof is construed. In the event there is more than one Tenant
hereunder, the liability of each shall be joint and several. This instrument
shall be governed by and construed in accordance with the laws of the State
wherein the Premises are located. 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 sense requires. Time is of the essence of
this Lease and every term, covenant and condition herein contained.
SECTION 27.10 REPRESENTATION REGARDING AUTHORITY. The persons who have
executed this Agreement represent and warrant that they are duly authorized to
execute this Agreement in their individual or representative capacity as
indicated.
ADDITIONAL PROVISIONS: None
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year first above written.
SIGNATURES:
LANDLORD
PARADIGM RESOURCES, L.C., A UTAH
LIMITED LIABILITY COMPANY
By: /s/ X. XXXXXXXX XXXXXXXX
-------------------------------------
X. Xxxxxxxx Woodbury, Manager
By: /s/ XXX X. XXXXX
-------------------------------------
Xxx X. Xxxxx, Manager
TENANT
PARTNET, INC., A UTAH CORPORATION
By: /s/ XXX X. XXXXX
-------------------------------------
Xxx X. Xxxxx, President
LANDLORD ACKNOWLEDGMENT
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
On this 12 day of January, 1999 before me personally appeared X. XXXXXXXX
XXXXXXXX and XXX X. XXXXX to me personally known, who being by me duly sworn
did each for himself say that he is a Manager of that certain limited liability
company known as PARADIGM RESOURCES, L.C., and that the within instrument was
executed on behalf of said company by authority granted in said companies
operating agreement.
NOTARY PUBLIC
STATE OF UTAH
[SEAL] My Commission Expires /s/ XXX X. KUBOTA
June 21, 2001 -----------------------------------
XXX X. KUBOTA Notary Public
0000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
TENANT ACKNOWLEDGMENT
(CORPORATE)
STATE OF UTAH )
:ss
COUNTY OF SALT LAKE )
On this 12 day of January, 1999 before me personally appeared Xxx X.
Xxxxx, known to me to be the President of Partnet, Inc., the corporation that
executed the within instrument, known to me to be the person who executed the
within instrument on behalf of the corporate therein named, and acknowledged to
me that such corporation executed the within instrument pursuant to its bylaws
or a resolution of its board of directors.
NOTARY PUBLIC
STATE OF UTAH
[SEAL] My Commission Expires /s/ XXX X. KUBOTA
June 21, 2001 -----------------------------------
XXX X. KUBOTA Notary Public
0000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
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GUARANTY
TO INDUCE PARADIGM RESOURCES L.C., a Utah limited company, to enter into
that certain Lease Agreement dated the 12 day of January, 1999 by and between
PARADIGM RESOURCES L.C., a Utah limited liability company, and Xxx Xxxxx hereby
guarantees to PARADIGM RESOURCES L.C., a Utah limited liability company, the
Landlord, and its successors and assigns the due and punctual payment of all
rent thereunder, and the performance of all covenants, conditions and agreements
to be paid or performed by Tenant in or under the foregoing Lease.
Notwithstanding the above, the dollar amount of this Guaranty is expressly
limited amount of the "unamortized value" of the Landlord's Contribution to
Tenant's Work plus any interest accrued at fourteen (14%) percent per annum from
the date of demand for payment under this Guaranty to the date of actual
payment. Said "unamortized value" shall be product calculated by multiplying the
Landlord's Contribution to Tenant's Work as set forth in Section 1.01 (Q) as
adjusted pursuant to Section 1.01 (T) by a fraction the denominator of which
shall be sixty (60) and the numerator of which shall be the number of months
remaining in the lease term for which rent has not been paid.
The undersigned waives any demand for performance upon Tenant and any
notice to the undersigned of non-payment or non-performance by Tenant and hereby
waives all suretyship defenses. The undersigned further consents to any
indulgences granted or allowed to Tenant, including but not limited to granting
of extensions of times for payment or taking of any notes or other obligations
or any security for payment of sums due or to become due, without notice to the
undersigned and without thereby in any manner releasing or affecting the
liability of the undersigned.
DATED JANUARY 12, 1999
/s/ XXX X. XXXXX
-----------------------------------
Xxx X. Xxxxx
ACKNOWLEDGMENT
STATE OF UTAH )
: ss.
COUNTY OF SL )
On this 12 day of JANUARY 1999 personally appeared before me Xxx X. Xxxxx,
signer of the foregoing instrument, who duly acknowledged to me that he executed
the same.
NOTARY PUBLIC
STATE OF UTAH
[SEAL] My Commission Expires /s/ XXX X. KUBOTA
June 21, 2001 -----------------------------------
XXX X. KUBOTA Notary Public
0000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
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[FLOOR PLAN]
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[FLOOR PLAN]
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[FLOOR PLAN]
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EXHIBIT "B"
LEGAL DESCRIPTION
Beginning at a point on the northwesterly right-of-way line of Chipeta Way
said point being South 44(degrees)00'00" West along the monument line 546.107
feet and North 46(degrees)00'00" East 52.00 feet from a Salt Lake City monument
located at the P.T. of Chipeta Way and running thence South 44(degrees)00'00"
West along said northwesterly right-of-way line 43.261 feet to a point of
curvature; thence along the arc of a 660.000 foot radius curve to the right and
said northwesterly right-of-way line, through a central angle of
24(degrees)00'07", 276.484 feet to a point of compound curvature; thence along
the arc of a 45.000 foot radius curve to the right, through a central angle of
81(degrees)21'51 ", 63.903 feet to a point of reverse curvature, said point also
being on the northeasterly right-of-way line of Arapeen Drive; thence along the
arc of a 600.575 foot radius curve to the left, through a central angle of
18(degrees)21'58", 192.515 feet to a point of tangency; thence North
49(degrees)00'00" West along said northeasterly right-of-way line 484.077 feet;
thence North 41(degrees)00'00" East 300.000 feet; thence South 49(degrees)00'00"
East 800.892 feet to the point of beginning.
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EXHIBIT "C"
LANDLORD'S WORK
The following is a description of the construction, and limitations of
same, which will be provided exclusively by the Landlord at Landlord's expense
unless indicated otherwise herein. The basic site, common areas, and building
shell improvements will be provided by Landlord in accordance with plans and
specifications, prepared by Landlord's Architect, and shall be of a type and
quality indicated herein or determined by Landlord's Architect. Where two types
of materials, structures, or installations are indicated, the option will be
exclusively with the Landlord.
A. GENERAL
1. CODE COMPLIANCE: Work shall satisfy all regulatory agency requirements
having jurisdiction over the project, including but not limited to, meeting all
applicable building codes, regulations and ordinances in force and adapted by
the local municipality, County and State building officials. The project shall
comply with the provisions of the Americans With Disability Act (ADA) in regard
to site and building accessibility, and parking requirements.
2. GENERAL CONDITIONS: Work shall include all usual and customary costs
for General Conditions associated with Landlords work, including but not limited
to the following:
a. Liability and builder's risk insurance;
b. Costs for permits, sewer and water connection fees, etc.;
c. Sales and use taxes;
d. Temporary field offices, toilet facilities, supplies and
equipment;
e. Miscellaneous equipment rentals;
f. Trash removal and clean-up;
g. Survey, staking & layout;
h. Jobsite field supervision;
i. Mobilization;
j. Temporary utility hook-ups and expenses for water, electricity
and telephone;
k. Quality assurance, including materials testing, inspections and
special inspections;
l. No performance and payment bonds are provided but Landlord
warrants the completion of the work, and agrees to make payment for all
obligations pertaining to Landlord's work.
3. WARRANTY: All work shall have a minimum of one (1) year general
building warranty from the date of initial building completion, five (5) years
for HVAC compressors, and ten (10) years roof membrane and flashings.
4. ENGINEERING: All construction shall be performed according to the
recommendations contained in Geotechnical Investigation and other engineering
reports specific to the site, and in accordance with good engineering and design
practices.
B. SITE WORK
1. EARTHWORK AND DRAINAGE: Perform all earthwork, excavation, grading, and
preparation of building pads and parking lot areas to receive final finishes.
Site to be graded to provide adequate site drainage, including storm water
retention areas, culverts, catch basins, drywalls, and other storm water
appurtenances. Storm water retention may occur in parking areas and drives
except at principal entries and access points.
2. CONCRETE: Install all exterior concrete, curb and gutter, vertical
curbs, valley gutters, sidewalks, retaining walls, transformer and trash
enclosure pads, and patio areas.
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3. LANDSCAPING: Furnish and install landscaping and automatically
controlled underground sprinkler systems in planters around the perimeter of the
building and parking lots where indicated on the Site Plan - Exhibit "A". The
general character and quality of such landscape improvements shall be similar to
that provided at other adjacent buildings.
4. PARKING LOT PAVING: Install all parking lot improvements, asphalt
paving, striping, and signage substantially in accordance with the Site Plan -
Exhibit A. Parking to be laid out in a 90E configuration with designated
handicapped parking stalls and signage, and ten (10) designated guest parking
stalls near the main building entrance.
5. UTILITIES: Provide all utility mains including culinary water, fire
protection, storm drainage, sanitary sewer, gas, electrical, and telephone and
install in accordance with the governing municipal and utility company
standards. Utility lines shall be sized to meet the requirements of the intended
building use and those set forth in this Exhibit C and Exhibit D.
6. POWER AND TELEPHONE: Extend power and telephone mains to electrical
rooms and provide distribution panels at a central location as more specifically
described herein. Fiber optic service, if available, to be provided exclusively
by the telephone utility at the request of the Tenant. Cost, if any, of fiber
optic systems is not included in Landlord's work.
7. TRASH ENCLOSURE: Provide one (1) trash enclosure to contain a standard
sized dumpster, located where shown on Site Plan. The enclosure shall be a
minimum of 5' high, constructed of materials and finishes compatible with the
exterior building and shall include access gates, concrete-filled protective
pipe bollards and a concrete housekeeping pad and apron.
8. EXTERIOR LIGHTING: Provide parking lot lighting throughout the site
which shall consist of 30'-0" high pole-mounted fixtures on raised concrete
bases, with spacing and lamp sizes to achieve a minimum lighting level of 1.5
footcandles to ensure nighttime security for employees and to enhance the
property. Provide soffit or wall-mounted fixtures at all building entrances and
exits.
9. EXTERIOR SIGNAGE: See Exhibit 'E' Sign Criteria.
C. SHELL BUILDING
1. SUPERSTRUCTURE: Construct a three-story building consisting of steel
structural support members on continuous concrete or spot footings of the shape,
size, and configuration as shown on Exhibit "A-1". All work to be in accordance
with plans and specifications prepared by Landlord's Architect and as follows.
a. FOUNDATION: Design and install a concrete foundation system to
resist all superimposed horizontal and vertical loads based upon the
recommendations of the geotechnical investigation report and customary
structural engineering practices.
b. SLAB-ON-GRADE: The slab-on-grade shall be a minimum of 4" thick,
3,000 psi concrete, with welded wire fabric reinforcing, supported on a 4"
aggregate base course. Sawcut control joints at spacing intervals
recommended by the structural engineer. Slabs shall be constructed with a
flatness tolerance of 1/4" in 10' radius.
c. COLUMNS: Structural columns shall be steel tube, wide flange or
pipe, spaced at approximately 28'0" x 30'0" typical.
d. STRUCTURAL FRAME. Combination of wide flange beams and girders
with open web steel joist and girder/beams and composite steel and
concrete suspended floor deck. Spacing to be as required to support
suspended loads and support appropriate lateral and vertical loads.
Lateral loads to be resisted utilizing moment frame design
e. SUSPENDED FLOOR SLABS: 6" concrete on 3" steel deck capable of
supporting a live load of 80 lbs. per square foot, and a dead load of 20
lbs. per square foot, with a designed vibration frequency rating not more
than 16,000 micro-in./sec.
f. ROOF STRUCTURE: To be a combination of steel beam and open web
steel joist and girder with steel deck. Roof structure shall slope to
perimeter roof drains/scuppers at a minimum pitch of 1/4' per 1'-0".
Provide built-up crickets around the building perimeter and at rooftop
equipment to divert run-off toward roof drains.
g. CLEARANCE: The clear height from floor to the underside of the
first floor and structure above shall be 12'6" at the lowest point and
from the wombsecond and third floors to the floor or roof structure above
at the lowest point shall be 12'0" with approximately 2'0" depth
of
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structural support joists. Floor to floor height between first and second
floor is 15'0" and between second and third floors and the roof is 14'6"
total.
2. EXTERIOR ENCLOSURE: To be a combination of load bearing masonry,
masonry veneer, and window wall more or less as depicted on Exhibit A-1.
a. STRUCTURAL FRAME: To be covered with colored and/or decorative
masonry units in a decorative configuration of colors, textures, and
coursing that will provide relief to the primary building wall material.
Veneers to use standard or large size brick units.
b. GLAZING: Glazing shall be provided around the building perimeter,
utilizing a combination of floor-to-ceiling storefront systems, full
height slab-to-roof curtain wall systems and "ribbon" or strip window
openings. The extent of glazing shall be as shown on the attached Exhibit
A-1. Vision glass and spandrel panels shall consist of 1" thick tinted or
reflective, insulated units set in manufacturer's standard color anodized
aluminum frames.
c. ENTRANCE DOORS AND HARDWARE: The main building entrance shall
match the shell building glazing systems. A pair of main entrance doors
and vestibule shall be provided with sidelights and manufacturer's
standard push/pull entrances hardware assemblies. Secondary employee
entrances shall be provided matching the shell building glazing systems
with a single door and sidelight and manufacturers standard push/pull
entrance hardware assembly. Entrances to be equipped with electronic key
pad or card reading security lock mechanism at Landlord's option.
d. EXTERIOR EXIT AND MAN-DOORS AND HARDWARE: Where a exterior door
is for service use only, Landlord may provide a standard, painted,
hollow-metal door and frame. Provide lockset-type hardware, closures and
exit devices as required by code and to maintain building security.
e. LOADING DOCK: Provide covered loading area with a 6'0 by 8'0
double door at grade and secure area for temporary storage of delivered
supplies and materials.
3. ROOF: Roof structure to be designed to carry imposed equipment,
structural and snow drift loads and a 30 pound live load. Roof membrane and
roofing appurtenances to generally be as follows:
a. MEMBRANE: To be a single-ply 60 mil un-reinforced or 45 mil
reinforced mechanically fastened or ballasted EPDM membrane system.
Provide a ten (10) year manufacturer's roof warranty.
b. INSULATION: Roof insulation shall provide a minimum insulating
value of R-19. Roof insulation shall be rigid board-type installed over
the deck or fiberglass batt below the deck or combination thereof.
c. DRAINAGE: The roof structure shall be designed and constructed to
slope to perimeter roof drains and interior roof leaders that extend
exposed down the inside face of the exterior walls. Primary drains to
connect underground to storm water system. Over flow drains to be provided
with turnouts daylighting at on-grade concrete splash blocks.
d. ROOF ACCESS: Provide one (1) 2'-6" x 3'-0" interior roof hatch,
with metal ships ladder, safety "ladder-up" post device and padlock, or at
Landlord's option, extend a stairway to roof.
e. ROOF CURBS: Provide permanent roof curbs, integrated into the
roof structure, at all roof-mounted equipment.
f. ROOF FLASHING: Provide a minimum of 24 gauge sheetmetal flashing,
counter-flashing and reglets where necessary to establish a weather tight
and moisture resistant condition.
g. ROOF-MOUNTED EQUIPMENT SCREENING: Extend perimeter walls above
the roof deck to a sufficient height, or construct equipment screen walls,
to satisfy the local municipality's requirements for visually screening
all roof-mounted equipment.
D. COMMON AREAS, LOBBIES, CORRIDORS, AND RESTROOMS
1. RESTROOMS FOR TENANT'S OCCUPYING FULL FLOORS: Tenant shall have
independent restrooms for its exclusive use which shall be constructed as part
of the "Additional Work To Which Construction Contribution Is Applied" or to
"Tenant Work".
2. RESTROOMS FOR TENANT'S OCCUPYING PARTIAL FLOORS: Landlord shall
construct men's and women's restrooms containing the number of stalls required
by code in conformance with the American's With Disabilities Act and with
finishes indicated.
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a. FINISHES: Floors to have ceramic tile with tile base. Wet walls
to be ceramic tile. Other walls to have vinyl wall coverings over gypsum
board. Ceilings to be painted gypsum board. All colors and types to be as
selected by Landlord's architect.
b. ACCESSORIES: Provide floor mounted enameled metal toilet
partitions; and stainless steel or chrome plated surface mounted paper
holders, coat hooks, grab bars, mirrors, soap dispensers, paper towel
dispensers, waste receptacles, and sanitary napkin dispensers all in
accordance with codes.
c. MILLWORK: Provide artificial marble or laminate covered counter
tops and drop panels with recessed ceramic or integral artificial marble
walls bowls, Utilize chrome plated brass-bodied, electronically operated
flush valves and faucets.
3. COMMON AREAS: Common lobbies will be created at each main building
entrance together with stairways, elevator, elevator equipment, janitor's
mechanical and other such rooms which serve and/or are available for use by all
tenants within the building. Such common facilities may also include restrooms
on floors serving multiple tenants and connecting corridors where deemed
necessary.
4. PUBLIC AREA FINISHES: Common lobbies, stairways, and corridors shall
have all finishes provided as follows:
a. WALLS: Walls to be exposed decorative masonry, marble or ceramic
tile, or gypboard. All gypboard walls to be either painted or covered with
vinyl wall coverings or tile as selected by Landlord's architect.
b. FLOORS: To have ceramic or marble tile and/or carpet. Carpet to
be cut pile and/or loop nylon, 32 oz. minimum face weight, either
stretched over pad or direct glued to floor surface at the option of
Landlord's architect.
c. BASE AND TRIM: Floor base to either be 6" high ceramic or marble
tile or wood (stained or painted) as selected by Landlord's architect.
Walls may also include other wood trims, chair rails, or crown molds as
may be selected by Landlord's architect to achieve a pleasing and
attractive decor.
d. CEILINGS: To be a combination of suspended painted gypboard and
2'0" x 2'0" acoustical tile and grid. Acoustical tile to have beveled or
tegular edge on 1" wide grid. Colors to be as selected by Landlord's
architect.
5. INTERIOR DOORS AND HARDWARE: Landlord shall provide 3'-0" x 7'-0" solid
core wood doors with hollow metal or wood frame at Landlord's option, stained
and finished on all interior doors within or adjoining common areas. Hardware
will typically include 1-1/2 pair hinges, door stop, and commercial grade
lockset. Closer and rated assemblies to be provided where required by code.
6. TENANT ENTRANCE DOORS AND SIDELIGHTS: To be provided between common
lobbies and Leased Premises. Assemblies to be constructed and rated in
accordance with codes. Doors to be flush panel solid core wood 3'0" x 7'0" with
adjoining sidelight in painted hollow metal frames together with 1-1/2" pair
hinges, door stop, and closer. Sidelight(s) to be 2'0" x 7'0" minimum width with
clear wired/tempered glass. Entrances to be equipped with electronic card
reading security lock mechanism or standard mortise type lockset with deadbolt
at Landlord's option.
7. EQUIPMENT AREA FINISHES: Provide mechanical and/or service and
equipment areas including walkways, trash rooms, janitors rooms, common
electrical rooms, mechanical rooms and shafts. Finishes to be as follows:
a. WALLS: Painted gypboard.
b. FLOORS: Sealed concrete or vinyl composition tile as selected by
Landlord's architect.
c. BASE: 4" coved vinyl base where provided. Penthouse mechanical
rooms will have no base.
d. CEILINGS: Suspended gypboard, 2'0" x 4'0" acoustical tile, or
exposed to structure as deemed appropriate by Landlord's architect.
8. HVAC AND LIGHTING: All common areas shall include complete HVAC system,
distribution, ventilation, controls, and finishes, and complete electrical power
service and lighting. Lighting in common lobbies and corridors to either be
recessed cans with fluorescent lamps, lay-in parabolic fixtures, or other
decorative fixture as selected by Landlord's architect.
31
9. ALTERATIONS: Landlord reserves the right to make any additional
changes, modifications, alterations, or additions to common areas utilizing a
design and materials as determined appropriate by Landlord's Architect to
achieve overall building design schemes developed by Landlord's Architect.
10. DEMISING WALLS: Landlord shall install demising partitions between
common lobbies, corridors, stairways, restrooms, and leased premises which shall
be one-hour fire-rated and constructed of masonry or steel studs and 5/8" gypsum
board. Such partitions shall extend from floor to underside of roof or floor
construction above. No gypsum board to be installed on Tenant side of demising
walls, corridors, and exterior walls. Make
E. LANDLORD'S WORK WITHIN THE PREMISES (PAID FOR LANDLORD AS PART OF SHELL
CONSTRUCTION)
1. UTILITIES: Basic functional main utility lines and systems shall be
provided to all common facilities and to mechanical equipment, central
telephone, and electrical rooms or panels on each floor or within the Leased
Premises as indicated:
2. HEATING, VENTILATING AND AIR CONDITIONING (HVAC): The facility shall
contain a complete heating, ventilating and air conditioning system, consisting
of common boiler, chiller, air handling fans, building exhaust, relief, and
makeup air fans, water towers, and other central mechanical equipment required
for a variable air volume distribution system. The HVAC system shall be designed
to meet ASHRAE standards and shall be based upon the occupancy levels and
loading conditions indicated herein. Central mechanical equipment shall be
housed in a mechanical room in or around the central core of the building or
where otherwise determined necessary.
a. DESIGN CRITERIA: The HVAC system shall be designed to maintain
the facility with an inside design temperature between 74E F and 78E F dry
bulb summer and 68E F and 70E F dry bulb winter when outside temperatures
are 8E F dry bulb winter and 95E F dry bulb - 66E F wet bulb summer.
Internal gain design shall be based upon 2.75 xxxxx per square foot
lighting maximum, 4 xxxxx per square foot power and miscellaneous maximum,
and 1 person per 100 sq. ft. of net usable building area. Ventilation
shall be 15 CFM per person.
b. ZONES: The mechanical engineering design shall incorporate
perimeter and interior zones, based upon solar exposure. Landlord to
initially provide VAV boxes and controls for one zone per 2,000 sq. ft. of
gross leaseable area.
c. DUCTWORK: The base HVAC system shall include all central plant
equipment, sheetmetal plenum drops, medium pressure supply air loop, and
branch takeoffs with VAV boxes to each zone. Return air collection shell
generally be by means of open air plenum above ceiling. A return
air collection branch duct will be provided to within the Leased Premises
for connection of laboratory return and / or exhaust air. Main supply
ductwork shall be entirely insulated. Return air collection ductwork to be
un-insulated.
d. EXHAUST AND RELIEF AIR FANS: Provide central roof-mounted power
exhaust fans and shafts, with factory curbs, and branch ductwork extended
to Leased Premises to which tenant exhaust systems may attach. Exhaust and
makeup air capacity shall be 150 cfm per 1,000 sq. ft. of gross leaseable
area. Additional capacity is available for laboratory areas, fume hoods,
etc. if needed at a cost of $1,000.00 per 1,000 cfm.
e. TEMPERATURE CONTROL: The operation of each VAV box shall be
controlled by a temperature sensor located within the zoned space. All
temperature sensors and smoke detectors shall be interconnected with an
energy management and monitoring system with pre-set limited controls
adjustable from within the Premises.
f. ENERGY MANAGEMENT SYSTEM (EMS): The HVAC system shall be
controlled by a computerized energy management system, sufficient in
capacity to monitor and control the operation of each piece of mechanical
equipment during normal business hours, as well as after hour occupancy.
The system shall also have the capability for lighting control and to
interface with smoke detectors, fire alarm and security hardware devices.
g. HOURS OF OPERATION: Unless indicated otherwise in this Lease,
mechanical systems shall operate during all normal business hours from
7:00 a.m. to 6:00 p.m. five days per week and 8:00 a.m. to 1:00 p.m. on
Saturdays, except on holidays. Each leased space shall be equipped with
one keyed manual, timed override switch per approximately 6,000 sq. ft. to
permit operation of mechanical systems during after hours or weekend and
holiday periods. Tenant to pay additional rent at Landlord's customary
standard rate for off hours mechanical operation.
32
h. OTHER: All other HVAC secondary distribution supply and return
air ductwork, registers, diffusers, grills, dampers, etc. shall be
supplied as part of "Work Included To Which Construction Contribution Is
Applied".
3. PLUMBING: The building plumbing system shall include all main utility
piping to the Leased Premises together with piping necessary for interior storm
piping (roof leaders) and piping insulation; and all HVAC central equipment
piping and branch distribution piping to VAV boxes supplied by Landlord.
Plumbing systems to common facilities and exterior hose bibs to also be
provided.
a. WATER: Provided in ceilings above restrooms, janitor's rooms,
mechanical rooms, etc. A 1-1/2 inch water supply and shutoff valve to be
provided to each leased premises.
b. SEWER: Underground mains to be extended to restrooms, janitor's
rooms, etc. A four (4) inch sewer line to be provided to each leased
premises of sufficient depth to enable sewer access to all points within
the premises.
c. NATURAL GAS: None provided except as required to common boilers,
HVAC equipment, and water heaters. Gas is available for Tenant at Tenant's
cost for extending service and making a separate metered connection at gas
service meter center.
d. OTHER GASES: None provided. All such facilities and piping to be
provided by Tenant.
4. AUTOMATIC FIRE SPRINKLER SYSTEM: An overhead wet, fully automatic fire
sprinkler system shall be provided, consisting of a main fire riser, horizontal
distribution piping, and a combination of upright sprinkler heads at exposed
areas and pendent sprinkler heads at finished ceiling conditions. The fire
sprinkler system shall be designed for Light Hazard Group density in accordance
with NFPA 13. supplied by Tenant. Landlord shall provide a complete system
within the shell building and one drop and head per 130 sq. ft. within Leased
Premises.
a. MONITORING: The fire sprinkler system shall incorporate all
requirements of the local Fire Marshal. The fire sprinkler riser shall
include electric alarm, water flow valve, and tamper devices for hook-up
to a fire alarm monitoring service.
b. CODE: All sprinkler piping shall be installed in accordance with
NFPA 13 for seismic protection as required by local codes.
c. OTHER: In IDF, Main Server Rooms, Computer Rooms, and other
special areas, fire suppression units shall be supplied as part of "Work
Included To Which Construction Contribution Is Applied".
5. ELECTRICAL: Main building electrical systems to be provided of
sufficient size and capacity to accommodate Tenant's needs including main
electrical service which shall be brought from the closest available electrical
utility power source to a utility owned transformer and from such transformer to
interior service entrance sections located in a building main electrical room.
a. POWER: Power to be of a sufficient size to accommodate Tenant's
requirements as described herein. Main service to either be 277/480 volt
with step down transformers for 120/208 volt receptacles and equipment or
120/208 volt power supply throughout in a three phase, four-wire
configuration.
b. DESIGN CRITERIA: Tenant's designed power capacity shall be based
upon an occupancy load of 1 person per 100 sq. ft. of net usable area,
with 6 xxxxx per square foot general and miscellaneous power use, and 2.75
xxxxx per sq. ft. lighting.
c. PANELS: The service entrance section cabinet, current
transformers, metering sections, main distribution panels and sub-panels
shall be consolidated in an Electrical Room located in or around the
central core of the building. To the extent determined advisable by the
electrical engineer, if determined to be more economical, subpanels may be
provided in locations outside of the main electrical room subject to
approval of Tenant as to location. Panels to be of sufficient size to
handle Tenant's requirements and to include main disconnect switch,
together with wiring and raceways between main distribution cabinets and
panels.
d. POWER METERS: Power circuitry to accommodate Tenant's
requirements for receptacles and equipment shall be 120/208 volt
throughout in a three phase, four-wire configuration. Consumption shall be
measured by means of a sub-meter placed around all power circuits used by
Tenant. Tenant shall pay as additional rent for all power usage. Amount
shall be determined by multiplying the watt hours used by the standard
rate charged by the municipal power utility company.
33
e. LIGHTING: All ceiling lights to be 277/480 volt. Lights to be
operable during all normal business hours as indicated herein and
monitored to automatically shutoff at the close of normal operating hours.
Leased Premises to be equipped with one keyed manual, timed override
switch per approximately 6,000 sq. ft. to permit operation of ceiling
lighting during after hours or weekend and holiday periods. Tenant to pay
additional rent at Landlord's customary standard rate for off hours
lighting operation
f. TELEPHONE: Landlord to provide main telephone service trunk line
into building and main cable to telephone equipment rooms on each floor.
All terminations, cross-overs, and distribution wiring from panels to the
various equipment and receptacles shall be supplied as part of "Work
Included To Which Construction Contribution Is Applied".
g. EMERGENCY POWER: Landlord has provided a diesel powered emergency
generator to serve building emergency power needs with additional capacity
for Tenant usage. Tenant may connect to the emergency power system at a
cost of $350.00 per kilowatt of capacity. Tenant to pay all costs related
to the extension of emergency circuits to Tenant's Leased Premises from
central panels located on each floor.
h. OTHER: All other electrical power distribution systems from
panels to the various electrical equipment receptacles lighting, data, and
telephone cabling, etc. shall be supplied as part of "Work Included To
Which Construction Contribution Is Applied".
F. PLANS AND SPECIFICATIONS
1. SHELL DRAWINGS: Landlord shall initially prepare all final construction
drawings, details, and specifications completely describing site and building
improvements for Landlord provided work and building shell construction.
Landlord shall pay all costs and engineering fees required and related thereto.
2. TENANT SPACE LAYOUT AND DESIGN: Landlord shall provide building shell
construction drawings to Tenant's space planner/architect. Space planner shall
prepare a preliminary space layout plan showing the configuration of various
spaces desired within the Leased Premises. Such drawing shall be prepared on CAD
using Landlord's shell building configuration. Landlord's architect shall review
such drawing, discuss any required modifications until the layout meets Landlord
and Tenant's mutual approval. After approval of space layout drawing Tenant's
space planner shall provide the following additional services:
a. REFLECTED CEILING PLAN: To show the layout of lay-in ceilings and
the location of all desired lay-in light fixtures, recessed cans, and
other decorative lighting if any.
b. ELECTRICAL POWER PLAN: To show the location of all electrical
outlets, telephone or data connection points in fixed walls, special
equipment, power poles if any, or other points of connection of electrical
power to tenant landscaped furniture systems. Plan should include a
complete description of the power requirements to each work station,
conference rooms, server room, computer room, or other designated spaces.
c. FINISH SCHEDULE: A schedule of finishes for each room, including
specification or description of each finish material, paint color, floor
covering, tile colors, etc.
d. ELEVATIONS AND DETAILS: Elevations, details, or other information
requested by Landlord's architect showing cabinetry and millwork or other
special details and finishes.
e. SPECIFICATIONS: Written data or cut sheets with respect to
materials and finishes or other accessories, fixtures, hardware, and
installations requested by Tenant to be provided by Landlord.
3. TENANT CONSTRUCTION DRAWINGS: Upon receipt of final Tenant layout
drawings reflected ceiling plans, power plans, etc. Landlord shall prepare final
engineered working drawings including mechanical, plumbing, and electrical
drawings completely describing all work to be performed related to Tenant's
interior finishes and work required to which construction contributions is to be
applied. Tenant shall pay Landlord 65 cents per sq. ft. of gross leaseable area
for the cost of final engineering required and related thereto.
4. TENANT'S APPROVAL: Tenant shall review final construction drawings. Any
changes required shall be promptly communicated to Landlord who shall revise the
construction drawings and re-submit to Tenant until such drawings are
satisfactory and agreeable to Tenant in all respects. Landlord will not commence
construction of Tenant's interior finishes until receipt of written approval
from Tenant of final construction plans.
34
5. TIMING: All plans and approvals or comments thereto shall be
communicated by Express Mail and where possible fax. Upon submission of plans to
either party, reviews and responses shall be given within five (5) working days
of receipt thereof. All plans shall be prepared as expeditiously as reasonably
possible so as to not delay construction. It is the intent that plans for
interior tenant finishes be completed within 45 days after the date of the
Lease.
6. DEVIATIONS: Landlord may make minor deviations to the approved plan
where deemed necessary by Landlord's Architect due to site conditions or where
good engineering and design may so dictate provided the aesthetic effect or
function of the space is not materially altered.
7. TENANT'S REPRESENTATIVE; RESPONSIBILITIES: Tenant shall designate an
individual to be considered as Tenant's representative who shall have authority
to approve and/or initiate changes with respect to Tenant's finish work. Unless
specifically notified otherwise, Landlord may rely on the directives or
instructions given by Tenant's representative and Tenant shall accept all
decisions and be responsible for the payment of all cost for work related to
changes or other improvements within the Lease Premises, as implemented under
the direction of the representative.
G. CONSTRUCTION OF TENANT'S LEASED PREMISES
1. GENERAL: The construction of Tenant's improvements shall generally be
by Landlord in accordance with the procedures and criteria herein. Tenant shall
be responsible for the entire cost thereof except to the extent that a Tenant
Improvement Allowance or Construction Contribution is specified in the Lease.
Tenant interior finish plans showing all Tenant finish construction to be
performed by Landlord will be prepared as indicated above.
2. CONSTRUCTION PROCEDURE: Tenant finish plans shall be separately bid
from other construction work within the facility. Landlord shall obtain a
minimum of three proposals. Tenant shall review such proposals and may request
changes and modifications thereto to implement cost savings or other
requirements. Landlord will not commence construction until receipt of Tenant's
written approval of cost proposals, authorization to proceed, and payment of any
deposit is made.
3. PAYMENT: Tenant may either provide a letter of credit in a form and
from a financial institution acceptable to landlord in the full amount of the
construction cost, or deposit funds in the full amount of the construction cost
in an escrow account upon which Landlord may draw, or provide some other
assurance acceptable to Landlord that Tenant has the financial capacity to pay
for its construction obligation. Where a Construction Allowance or Contribution
is provided by Landlord, Tenant shall only be required to provide evidence or
deposit funds in the amount by which the construction cost exceeds Landlord's
contribution.
4. PROGRESS PAYMENTS: Tenant shall pay 50% of the payment required
pursuant to Section 6.3 above and the remaining fifty (50%) percent shall be
paid on or before January 15, 1999. Late payments to be assessed an interest
charge at a rate of one percent (1 %) per month.
5. INSPECTION: Upon completion of the work, Tenant and Landlord shall
jointly inspect the space and prepare a deficiency list which describes any
defects or incomplete work. Landlord's contractor shall immediately make any
necessary corrections.
6. CONSTRUCTION BY TENANT: In the event that this Lease requires Tenant's
interior finish to be constructed by Tenant or a contractor hired directly by
Tenant, all procedures regarding the preparation of plans and construction
drawings shall remain as indicated herein. The procedures regarding bidding,
contracting for, and payment described herein shall not apply. Tenant may not
proceed with any construction until all plans have been approved in writing by
Landlord. Tenant shall perform all work in accordance with Exhibit "D".
H. ADDITIONAL WORK WITHIN TENANT'S LEASED PREMISES TO BE PROVIDED BY
LANDLORD. (BEYOND THAT DESCRIBED ABOVE OR THAT WHICH CURRENTLY EXISTS).
None
I. WORK PROVIDED BY LANDLORD TO WHICH CONSTRUCTION CONTRIBUTION IS APPLIED.
1. DRYWALL CONSTRUCTION: All drywall surfaces shall be prepared for a
smooth painted finish.
a. PERIMETER, DEMISING, AND AREA SEPARATION WALLS: Install 5/8"
Type X sheetrock extending from floor to window sill and from
window head to the underside of deck above, or where no
windows exist from floor to underside of deck. Fire tape as
required to achieve a 1-hour rating and install rockwool,
other acceptable insulation, or otherwise fill voids between
top of wall and deck flutes on all rated assemblies. Provide 2
layers of 5/8" sheetrock on area separation wall to achieve
2-hour rated assembly. Make allowance for deflection at top
track
35
b. INTERIOR PARTITIONS: Conference rooms, server rooms, and other
designated walls to be constructed of 3-5/8" metal studs at
24" o.c., with sound insulation and 5/8" sheetrock on both
sides extending full height. Sheetrock shall be taped, sanded
and ready for wall finishes. Provide fire rated partition
assemblies where required by code. Partitions dividing other
Tenant rooms shall be similarly constructed except that no
sound insulation will be installed and partitions shall extend
to approximately 6" above the finished ceiling height. Ceiling
height is generally at 9'-0". In laboratory or other wet areas
use water resistant sheetrock.
c. COLUMNS: All perimeter and interior columns except tube
columns not engaging any partition wall shall be furred out
with metal studs and 5/8" gypsum board to 6" above finished
ceiling. Sheetrock shall be taped, sanded and ready for
finishes.
d. CEILINGS: Restroom, janitor's room, or other areas designated
by Tenant's space planner shall be suspended sheetrock on
metal tracks, taped and finished, ready for paint. Storage,
equipment or other special purpose rooms may be left exposed
to the structure where approved by Landlord.
2. DOORS, FRAMES & HARDWARE: Tenant interior doors, frames and hardware
shall be consistent with those to be supplied by Landlord as part of
building shell construction and as follows.
a. DOORS: Restroom and utility room doors shall be 3'-0" x 8'-0"
solid core, clear maple/with plain sliced veneers, or plastic
laminate clad doors, clad to match; pre-machined for hardware.
Provide UL fire rating labels as required.
b. FRAMES: All frames shall be 8'-0" height of welded hollow
metal construction with painted finish or pre-finished three
piece metal construction with snap on covers (Timely). Provide
UL fire rating labels as required.
c. HARDWARE: Provide a complete assembly of hardware for each
door, including locksets with lever handles, 1-1/2 pair
hinges, and door stops. Provide door closers where required by
code. Hardware shall be commercial grade, have a clear
aluminum (26D) finish, and meet the requirements of the ADA,
where applicable. Keying shall be coordinated with building
shell.
d. DOORS WITH SIDELIGHTS: Frames used in conjunction with doors
with sidelights to be clear anodized aluminum. Openings to
match standard details and to extend from floor to height of
door with intermediate, horizontal divider at 30". Provide
clear tempered glass. Where wireglass is required by code, use
type with square vertical and horizontal pattern.
3. WALL FINISHES: All interior sheetrock walls shall receive a standard
three coat paint application. Colors to be at Tenant's option except
in front reception areas. Vinyl wall covering to be provided in
front reception areas. Vinyl wall covering of Tenant's choice and
option may be utilized elsewhere in lieu of paint. In laboratory or
other wet areas use epoxy paint, FRP board or other water resistant
finish.
4. FLOOR FINISHES: Landlord shall provide 26 oz. level-loop carpet
directly glued to floor throughout the Premises or other floor
coverings as may be designated by Tenant's space planner. Equipment
rooms, file rooms, or other areas designated by Tenant's space
planner to have vinyl composition tile or static resistive tile.
Laboratory areas subject to water or chemical spillage shall utilize
chemical resistant and water tight materials and application
methods. Colors and styles at Tenant's option, selected from
manufacturer's standard line.
5. WALL BASE: To be 4" high, sewn edged carpet, straight or coved,
vinyl base, wood or tile to be provided throughout. Colors at
Tenant's option.
6. CEILING FINISHES: To be a factory finished, 1" wide suspended, metal
grid system with 2'0" x 4'0" tegular edge and standard fissure
finish, with a minimum STC rating of 65. Suspended gypboard or open
ceilings may be utilized in special purpose rooms where requested by
Tenant's space planner. Ceilings shall generally be constructed at
9'-0" above finished floor except where Tenant's equipment or other
structural elements dictate otherwise.
7. MILLWORK: Provide plastic laminate counter-top with 4" back-splash
and base cabinets in breakrooms and other areas as mutually
determined by Landlord's architect and Tenant's space planner. Wood
casings, chair rails, ceiling coves, and/or base matching color and
finish of wood doors may be used around doors and windows or in
other locations where deemed acceptable by Tenant. Other millwork or
shelving to be provided as detailed or directed by Tenant's space
planner.
8. RESTROOMS: Not included, but provided as indicated in Section D of
this Exhibit "C" Tenant may install additional restrooms, showers,
or other special facilities requiring plumbing connections to the
extent desired at Tenant's sole cost and expense.
9. BREAKROOM: Breakroom construction shall generally include plastic
laminate clad, base cabinets, countertops, and wall cabinets of the
length determined necessary by Tenant, with a two compartment sink,
in-line electric water heater, and special electrical outlets for
refrigerator, dishwasher, and microwave oven or other appliances.
10. WINDOW COVERINGS: To be 3" vertical shades of a uniform type and
color as dictated by Landlord's architect on all exterior windows.
Coverings on interior windows are at Tenant's option subject to
approval by Landlord as to type and color.
36
11. HVAC: Provide additional VAV boxes, associated water piping, and
controls as required to augment that provided by Landlord, if
necessary. All secondary supply and return air distribution from all
VAV boxes and return air collection ducts, including all diffusers,
registers, dampers, outlets, and grilles shall be provided. Make
connections to shell provided systems. Provide final control wiring,
balancing, and start-up, etc. utilizing materials and systems
matching those provided elsewhere in the facility by Landlord.
Exhaust fans in conference rooms and breakrooms shall be extended to
main supply lines.
a. ZONES: The mechanical engineering design shall incorporate
perimeter and interior zones, based upon solar exposure, and
individual zones for spaces with special heating or air
conditioning demands, such as Computer Room; Main Server Room;
IDF Rooms; and all conference Rooms and Vendateria.
b. CONTROLS: All temperature sensors and smoke detectors shall be
interconnected with Landlord's energy management and
monitoring system. Each zone shall be equipped with
thermostatic control boxes adjustable within preset limits for
individual comfort. Type shall match those utilized elsewhere
in the building and each control shall be equipped with an
override switch for HVAC operation and a separate override
switch for ceiling lights. Override switches may be keyed at
Tenant's option.
c. SPECIAL PURPOSE ROOMS: Such rooms requiring 24 hour cooling or
which contain extraordinary loads must be equipped with
independent cooling equipment that is self-contained to the
extent possible. Remote condensers, if required, shall be
located within ceiling plenums, mechanical penthouses, or if
necessary, in alternate locations determined by Landlord (but
not on rooftops). All such equipment shall be connected to
Tenant's power panel and circuited through Tenant's power
submeter. Landlord reserves the right to assess a power
consumption surcharge to Tenant based on the load requirement
and demand factor associated with any such special purpose
equipment.
d. DUCTWORK: All supply ductwork to be metal with 1" wrap
insulation and/or insulated duct liner. Branch takeoffs from
supply air mains to be a minimum of 5'-0" in length. Flexible
ductwork may be utilized for drops but shall not exceed 10'-0"
in length. Provide balancing dampers as necessary. All bends
to have turning vanes.
e. EXHAUST SYSTEMS: Exhaust fans in conference rooms and
breakrooms shall be extended to main supply lines. Exhaust
duct from equipment hoods etc. to be connected to main exhaust
shafts and all required balancing and smoke/fire dampers and
controls provided. Utilize Teflon lined or other special duct
where good engineering practice may dictate.
12. FIRE SPRINKLERS: Tenant is responsible for the relocation or
addition of any fire sprinkler heads and drops including the
adjustment of the height of any sprinkler heads provided by Landlord
to the extent required in order to maintain a design in conformance
with NFPA #13 and other applicable codes and requirements of
Landlord's insurance carrier. All heads and escutcheons shall match
the type and color provided elsewhere in the facility. Tenant to
provide special chemical sprinkler systems where operations dictate.
13. ELECTRICAL: Provide overhead lighting, special lighting, emergency
lighting, switches, duplex outlets, horns, strobes, phone outlets,
and other electrical devices as required by codes and as determined
by Tenant's space planner. Work shall include all circuitry,
wiring, conduits, raceways, disconnects and breakers, and
termination devices extending from panels to equipment and fixtures
provided.
a. CONDUIT AND WIRING: Wire to be copper, minimum #12 THW and
enclosed in minimum 1/2" rigid steel conduit. All conduit and
wiring to be concealed in walls or ceiling plenums above. MC
cabling and wiring or flexible conduit may only be utilized
where specifically approved by Landlord. Low voltage,
telephone and data wiring shall be plenum rated of the size
and type required for the specific application. Category V
wire to be provided for all data cabling.
b. POWER DISTRIBUTION IN FIXED WALLS:
1) Light switches and outlets to be white colored, 20 amp
devices or of any other matching type specifically
required.
2) Provide duplex outlets where required or indicated by
Tenant's space planner. Outlets for computerized
equipment to be on isolated ground circuits. GFI
receptacles to be provided in breakrooms and other areas
adjacent to water sources.
3) Provide box and conduit extending to ceiling plenum
above for required data or telephone outlets.
c. WORK STATION DISTRIBUTION SYSTEMS: Provide in-slab and/or
overhead electrical power distribution systems to power poles
or other designated location to connect to and deliver
services to each work station.
1) In-slab distribution shall consist of empty conduit and
floor junction boxes or a premanufactured ducted system.
Overhead distribution shall consist of a grid of empty
conduit and junction boxes mounted to the roof
structure. These distribution
37
systems, combined, shall be of sufficient size, spacing
and density to serve the initial work stations as well
as to provide flexibility for future work station
reconfigurations.
2) Cable trays are recommended for data and
telecommunication distribution. If not provided, such
wiring should be bundled together and hung from the
structure in a uniform and well organized manner and
shall not be laid loosely in a random alignment on top
of ceiling systems. All wiring terminations and
equipment to be provided, installed, and paid for by
Tenant.
3) Perimeter furred walls, interior partitions and furred
columns shall be used to extend conduit feeds and
conductors from the overhead grid system to Tenant's
work station wire management raceways. Dropped cables
not enclosed in walls or power poles are prohibited.
d. INTERIOR LIGHTING: General office areas and conference rooms
to have 2'-0" x 4'-0" and/or 18-cell deep parabolic light
fixtures with T-8 lamps and electronic ballasts. Exit lights
to have clear aluminum finish and LED type lettering. Provide
recessed fluorescent can lights or other special fixtures
selected by Tenant's space planner. Utility rooms, breakrooms,
and storage rooms may be furnished with lay-in fixtures with
acrylic lenses or surface mounted, acrylic wrapped flourescent
fixtures. Provide exit, life-safety and emergency battery-pack
lighting as required to meet applicable codes.
e. FIRE ALARM: Tenant shall provide a fire alarm system
throughout the premises as required by codes including but not
limited to local annunciators, strobes, manual pull stations,
smoke detectors, controls at dampers and emergency lighting.
All devices must match those used elsewhere in the facility
must be interconnected with Landlord's master alarm control
panel.
f. SECURITY: Building security shall consist of rough-in for
electrically operated card access devices located at each
building main entrance. At Tenant's option main entrance doors
may also be provided with a card access lock control mechanism
connected with Landlord's building system. All materials must
match those used elsewhere within the facility. Additional
security systems may be provided by the Tenant at Tenant's
option.
g. TELEPHONE & DATA: Overhead telephone and data distribution
systems shall be provided as indicated above. All other work
associated with telecommunications and data services shall be
provided, installed, and paid for by Tenant. On-site fiber
optic may be utilized by Tenant at Tenant's option. Tenant
responsible for contracting with a local telephone dial-tone
provider.
h. UN-INTERRUPTED POWER SUPPLY: Provide all panels, circuitry,
wiring, batteries, switching devices and other items required
to provide an uninterrupted power source.
i. EMERGENCY GENERATOR: Make connection to emergency panels
provided by Landlord as set forth in Section E.5.g. of this
Exhibit "C/D". Pay any additional costs to augment or enlarge
existing system or for extraordinary use and equipment as
described in Exhibit "C".
14. GENERAL CONDITIONS: All general conditions as described in Paragraph
A, relating to Tenant interior finishes shall be included.
15. SEISMIC BRACING: All fixtures, equipment, suspended ceiling systems,
other equipment, and piping supported from the structure above shall
be seismically braced in accordance with local codes and good
engineering design.
16. OTHER: Any work that is otherwise required to place the Premises in
a finished occupiable condition shall be provided by Tenant in
accordance with plans and specifications approved in advance by
Landlord's architect.
J. LOCATING THE WORK OF OTHER TENANT'S WITHIN THE PREMISES
1. LANDLORD'S RIGHT: In addition to any rights that Landlord or other
building occupants might have through the Restrictions, Rules, and Covenants
related to this project, Landlord and other Tenants shall have the right to
locate utility mains and other facilities within the Premises, when such
location is dictated by necessities of engineering design, good practice, and/or
code requirements. These shall be located, wherever possible, in ceiling plenums
and walls or so as to cause the minimum of interference with the Tenant and to
be unobtrusive in appearance, and so as not to materially interfere with
Tenant's business or use of space.
2. CEILING PLENUMS: This right to locate work within the Premises shall
include the right to locate work in ceiling plenum areas between finished
ceiling and roof or floor deck above, as well as on the roof or under the roof
thereof.
3. TYPES: Facilities may include, but are not necessarily limited to:
drains, water supply, sewerage lines, refrigerant lines, sprinkler risers,
electric power circuits, telephone circuits, pump stations,
38
electric panel boards, sanitary vents, air supply, ducts and shafts, exhaust
ducts, and flues servicing other building occupants.
4. LOCATION: Such areas shall be located adjacent to an interior wall and
shall in no event exceed one (1.0%) percent of the floor area.
39
EXHIBIT "D"
TENANT'S WORK
The following is a description of the construction, and limitations of same,
which will be provided exclusively by the Tenant unless indicated otherwise
herein. Except as specifically described in Exhibit "C" of this Lease, the
Tenant is responsible for the final design and construction of all interior
improvements within its premises including all architectural, plumbing,
mechanical, electrical, finishes, and furnishings necessary to place the
premises in a complete and occupiable condition in accordance with the
requirements and specifications described herein. Where two types of materials,
structures, or installations are indicated, the option will be the Tenant's.
A. PLANS AND SPECIFICATIONS
To be prepared in accordance with the criteria and procedures outlined in
Exhibit "C" of this Lease. Notwithstanding anything to the contrary
elsewhere in the Lease, Tenant shall pay the costs of all plan preparation
and construction documents describing Tenant Finish work. Landlord's
mechanical and electrical engineers shall be utilized to perform all final
construction documents describing plumbing, HVAC, and electrical
installations required.
B. LANDLORD'S WORK WITHIN THE PREMISES (PAID FOR BY TENANT AS PART OF TENANT
FINISH)
1. PURCHASES BY LANDLORD: Landlord reserves the right to provide
certain materials and/or improvements on behalf of Tenant where
deemed prudent by Landlord. Wherever materials and/or improvements
are provided by Landlord, Tenant will be charged at Landlord's
actual cost thereof, but may include markup for a ratable share of
General Conditions and contractor overhead and fee plus five (5%)
percent for Landlord's overhead.
2. SCOPE: Such items of work may include but is not limited to the
following:
a. ENTRANCE DOOR CARD ACCESS: At the election of Tenant, provide
card access pad, magnetic lock or electric strike and
installation of electronic controls compatible with main
building system.
b. DOORS: To facilitate timely completion for doors that have
special sizes or finishes.
c. VAV BOXES: Provide branch takeoff, hot water piping, and box
including electrical connection where deemed prudent.
d. TEMPERATURE CONTROL: Provide controls compatible with building
system including installation and programming.
3. TENANT SPACE LAYOUT AND DESIGN: Where requested by tenant only. Rate
to be 75 cents per sq. ft. Final electrical and mechanical
engineering to be provided at a competitive rate based on the scope
and complexity of the installation required.
C. TENANT'S WORK TO WHICH LANDLORD CONTRIBUTION SHALL NOT BE APPLIED
1. SIGNAGE: Suite identification signs and signage within the premises.
Exterior signs, if permitted.
2. SPECIAL MILLWORK: Reception counters and other special purpose work
stations, counters, and cabinetry.
40
3. FURNITURE SYSTEMS: Landscape office furniture, shelving, desks, and
other associated accessories, tables, chairs, couches, artwork,
planters and plants, and other furnishings.
4. EQUIPMENT: Office equipment, copy machines, faxes, computers,
servers, telephone equipment, switch boards, handsets, sound
systems, security equipment, safes, audio visual equipment, etc.
5. OTHER SPECIALTIES: Chalk boards, white boards, tack boards,
projection screens, movable or operable wall systems, postal
accessories, etc.
41
AMENDMENT TO LEASE
WHEREAS, PARADIGM RESOURCES L.C., as Landlord, entered into a Lease dated
January 12, 1999, with PARTNET, INC., as Tenant, for space known as Suite 204 in
a building located at 000 Xxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx; and
WHEREAS, XXXXXXX.XXX, INC. purchased PARTNET, INC. and desires to lease
additional space contiguous to Suite 204 as cross-hatched on the attached
Exhibit "A."
NOW THEREFORE, PARADIGM RESOURCES L.C., as Landlord, and XXXXXXX.XXX,
INC., as Tenant, hereby agree to amend the lease as follows:
1. In addition to the currently leased Suite 204, Tenant agrees to lease
Suite 203, consisting of 6,490 square feet, resulting in a total of
12,516 square feet.
2. The provisions of Section 1.01, set forth on Exhibit "B" attached
hereto, shall be substituted for the existing Section 1.01 effective
on the Rental Commencement Date.
3. CONSTRUCTION CONTRIBUTION FOR SUITE 203. Landlord shall make an
additional contribution toward Tenant Work in Suite 203 of Eighty
Three Thousand Seventy Two Dollars ($83,072.00) payable in accordance
with the terms of this Lease.
4. FIRST RIGHT TO LEASE. Landlord shall grant Tenant a first right to
lease. Subject to conditions set forth in paragraph 5 below, all of
the space north of Western Systems on the west side of level two
(hereinafter "the West Space") at the same rents applicable at the
time and upon the same terms and conditions set forth herein, except
that the Landlord contribution toward Tenant Work shall be adjusted
proportionate to the ratio that the then expected rental term of the
West Space bears to five (5) years. For example, if there is expected
to be three (3) years rental term on the West Space, then the $16 per
square foot construction contribution shall be sixty percent (60%) of
$16/SF or $9.60/SF. Notwithstanding the above, at the time Tenant
elects to lease the West Space, Tenant may elect to extend the
primary lease term for Suites 203 and 204 to at least sixty (60)
months from the expected rental commencement date on the West Space
and receive a full $16/SF construction contribution to Tenant Work.
5. CONDITIONS OF FIRST RIGHT TO LEASE.
a. Such right is subordinate to the right of Western Systems which
occupies space on level two contiguous on the south to the West
Space.
b. Landlord shall notify Tenant in writing when Landlord deems that
Landlord has a user for the West Space and Tenant shall have ten
(10) days from the
42
date of such notice to elect in writing whether or not to take
said West Space. A failure by Tenant to respond within the
required time period shall be deemed a rejection of Tenant's
first right to lease.
c. If Tenant rejects its first right to lease as granted herein and
Landlord fails to enter into a lease with Landlord's prospective
tenant within sixty (60) days after Tenant rejects its first
right to lease, then Tenant's first right to lease shall be
renewed and Landlord shall repeat the process set forth in
paragraph 5.b. above.
d. Tenant may not be required to lease all of the West Space, but
must elect to lease at least the space for which Landlord has
notified Tenant that Landlord has a prospective user.
6. SPACE PLANNING. Upon execution of this Amendment, Landlord will
proceed immediately to assist Tenant with space planning and
construction of Tenant Work.
Dated this 29th day of February, 2000.
PARADIGM RESOURCES, INC., a Utah limited
liability company
By /s/ XXXXXXXX XXXXXXXX
-------------------------------------
X. Xxxxxxxx Woodbury, Manager
By /s/ XXX XXXXX
-------------------------------------
Xxx Xxxxx, Manager
XXXXXXX.XXX, INC., a Delaware corporation
By /s/ XXXXXX XXXXXXXX
-------------------------------------
Its EVP & CFO
---------------------------------
43
LANDLORD ACKNOWLEDGEMENT
STATE OF UTAH )
ss.
COUNTY OF SALT LAKE )
On this ____ day of February 2000, before me personally appeared X.
XXXXXXXX, WOODBURY and XXX X. XXXXX, to me personally known, who being by me
duly sworn, did say that they are Managers of that certain limited liability
company known as PARADIGM RESOURCES, L.C., and that the within instrument was
executed by them, for and on behalf of said partnership.
-----------------------------
Notary Public
TENANT ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN DIEGO )
On this 6th day of March 2000, before me personally appeared Xxxxxx
Xxxxxxxx known to me to be the EVP & CFO of XXXXXXX.XXX, INC., the corporation
that executed the within instrument, known to me to be the person who executed
the within instrument on behalf of the corporation therein named, and
acknowledged to me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
/s/ XXXXX XXXXXX
-----------------------------
Notary Public
[NOTARY SEAL]
44
EXHIBIT "A"
[LAYOUT OF U OF U RESEARCH PARK]
45
EXHIBIT "B"
LEASE AGREEMENT
ARTICLE 1. BASIC LEASE PROVISIONS: ENUMERATION OF EXHIBITS
SECTION 1.01 BASIC LEASE PROVISIONS
(A) DATE: February , 2000
(B) LANDLORD: PARADIGM RESOURCES, L.C., a Utah limited liability company
(C) ADDRESS OF LANDLORD FOR NOTICES (SECTION 16.01): 0000 Xxxx Xxxxxxx Xxx,
Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000.
(D) TENANT: xxxxxxx.xxx, Inc., a Delaware corporation
(E) ADDRESS OF TENANT FOR NOTICES (SECTION 16.01): 00000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
(F) PERMITTED USES (SECTION 7.01): Research, software programing, computer
network services, assembly and general office uses.
(G) TENANT'S TRADE NAME (EXHIBIT "D" - SIGN CRITERIA): PartNET or xxxxxxx.xxx
(H) BUILDING (SECTION 2.01): Situated at 000 Xxxxxxx Xxxxx, in the City of
Salt Lake, County of Salt Lake, State of Utah.
(I) PREMISES (SECTION 2.01): That portion of the building at the approximate
location outlined on Exhibit "A" known as Suites 203 and 204 consisting of
approximately 12,516 square feet of gross rentable area. Approximately
16.619% of such area is Tenant's proportionate share of common area
hallways, restrooms, etc. in the building.
(J) DELIVERY OF POSSESSION (SECTION 5.03): Tenant is already in possession as
to Suite 204. Within sixty (60) days after execution of Lease and
completion of Tenant space plans and specifications, Preliminary Term
begins on Delivery of Possession (Section 4.03).
(K) RENTAL TERM, COMMENCEMENT AND EXPIRATION DATE (SECTIONS 4.01 & 4.02): The
Rental Term shall commence on the earlier of (a) fifteen (15) days after
Delivery of Possession of Suite 203 or (b) opening of Tenant for business
at the Premises at Suite 203, and shall be for a period of four (4) full
Lease Years ending March 31, 2004.
(L) BASE MONTHLY RENT (SECTION 3.01): Seventeen Thousand Five Hundred Fifty
and 00/100ths Dollars ($17,550.00).
(M) ESCALATIONS IN BASE MONTHLY RENT (SECTION 3.02): The Base Monthly Rent
shall be increased annually on the first day of each April commencing in
the year 2001 ("Escalation Date") proportionate to any increase in the
U.S. Dept. of Labor, Bureau of Labor Statistics Consumer Price Index for
Urban consumers, All City Average (1982-84 = 100). To calculate said
increase, Landlord shall use a fraction the denominator of which shall be
said index for the month of January, 2000, and the numerator of which
shall be the index for the January immediately previous the Escalation
Date.
46
If there is a decrease in the relevant Consumer Price Index, the Base
Monthly Rent shall not be adjusted. If the U.S. Department of Labor ceases
to publish said Consumer Price Index, the Landlord shall substitute an
index which in Landlord's reasonable good faith judgment most nearly
approximates the Consumer Price Index specified herein.
(N) LANDLORD'S SHARE OF OPERATING EXPENSES (SECTION 3.03): The Base Monthly
Rent shall be absolutely net to the Landlord as provided in Section 3.30.
(O) TENANT'S PRO RATA SHARE OF OPERATING EXPENSES (SECTION 3.03): Tenant shall
be responsible for all operating expenses as defined in Section 3.03.
Tenant's proportionate of Basic Costs shall be 13.947%. Said operating
expenses include Basic Costs. Direct Costs, and Metered Costs as defined
in Section 3.03 and are currently estimated to be $4.60 per square foot or
$4,797.80 monthly.
(P) UTILITIES AND SERVICES. Subject to the provisions of Section 3.03, 12.01
and 12.02, this Lease provides that the utilities and services shall be
paid or reimbursed by Tenant.
(Q) LANDLORD'S CONTRIBUTION TO TENANT'S WORK (SECTION 6.02): Landlord has made
contribution relating to Suite 204. Landlord shall make an additional
contribution at Suite 203 of Eighty Three Thousand Seventy Two and
00/100ths Dollars ($83,072.00).
(R) PREPAID RENT: $ None paid upon execution of this Lease to be applied to
the first installment(s) of Base Monthly Rent due hereunder.
(S) EXCESS HOUR UTILITY CHARGES AND HOURS OF OPERATION (SECTION 12.02):
Standard operating hours for the Building shall be 7:00 a.m. to 6:00 p.m.
Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday, excluding
holidays. To the extent Tenant operates during any time in excess of those
specified above, Tenant shall pay an extra hourly utility charges of $0.20
per hour per 1,000 square feet for lighting and electricity and $3.00 per
hour per 1,000 square feet for mechanical/HVAC system for each full or
partial hour during which Tenant operates.
(T) SECURITY DEPOSIT (SECTION 26.01): Seventeen Thousand Six Hundred and
00/100ths Dollars ($17,600.00), which consists of Nine Thousand and
00/100ths Dollars ($9,000.00) in previously held Security Deposits for
Suite 204 and Eight Thousand Six Hundred and 00/100ths Dollars ($8,600.00)
of additional Security Deposit due upon execution of this Lease.
