Exhibit 10.162
ASSIGNMENT AND ASSUMPTION OF LEASES
This Assignment and Assumption of Leases (the "Assignment") is made and
entered into as of the 19th day of December, 2001, by and between HB PROPERTIES,
a Texas general partnership ("Assignor"), and JPET II COMPANY, LIMITED
PARTNERSHIP, a Utah limited partnership ("JPET"), and FAE HOLDINGS 0112009,
L.L.C., a Utah limited liability company ("FAE"). JPET and FAE are collectively
referred to herein as "Assignees".
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
is hereby acknowledged:
Assignor hereby grants, conveys, transfers and assigns to JPET an undivided
70.7% interest and FAE an undivided 29.3% interest, in all of Assignor's right,
title and interest in, to and under the leases (the "Leases") described in
Exhibit B attached hereto and incorporated herein by this reference, relating to
that certain real property located in Xxxxx County, Nevada, and more
particularly described in Exhibit A attached hereto (the "Real Property"),
together with any and all right, title, estate and interest of Assignor as
lessor under the Leases, whether now owned or hereafter acquired, in and to all
improvements and fixtures located thereon and any rights, privileges, easements,
rights of way or appurtenances appertaining thereto (including, without
limitation, any and all rents, issues, profits, royalties, income and other
benefits derived from the Real Property hereafter accruing, and any and all
claims, causes of action, rights of proceeds or awards related to the Real
Property hereafter accruing), together with all right, title, estate and
interest of Assignor in and to such security and other deposits and prepaid
rents, if any, as have been paid to Assignor pursuant to such Leases, together
with all right, title, estate and interest of Assignor in and to any subleases
relating to the Real Property.
Assignees hereby accept the foregoing assignment and agree to assume, pay,
perform and discharge, as and when due, all of the agreements and obligations of
Assignor under the Leases arising on or after the date hereof and agree to be
bound by all of the terms and conditions of the Leases arising on or after the
date hereof.
The provisions of this Assignment shall be binding upon, and inure to the
benefit of, the successors and assigns of Assignor and Assignees, respectively.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
ASSIGNOR:
HB PROPERTIES, a Texas General Partnership
By /s/ Xxxx Xxxxxxxx
---------------------------------------
Xxxx Xxxxxxxx, General Partner
ASSIGNEES:
ASSIGNEES:
JPET II COMPANY, LIMITED PARTNERSHIP
By /s/ XXXX XXXXX
---------------------------------------
Xxxx Xxxxx, General Partner
FAE HOLDINGS 0112009, L.L.C.
By: FIRST AMERICAN EXCHANGE
CORPORATION, its Manager
By /s/ XXXXXXX XXXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxxx, Vice President
STATE OF __________ )
:ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this day of December,
2001, by XXXX XXXXXXXX, as General Partner of HB PROPERTIES.
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Notary Public
Residing in____________________________
My Commission Expires:
----------------------
STATE OF UTAH )
:ss.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this 19th day of
December, 2001, by XXXX XXXXX, as the General Partner of JPET II COMPANY,
LIMITED PARTNERSHIP.
/s/ XXXXXX X. XXXX
---------------------------------------
Notary Public
Residing in____________________________
My Commission Expires:
----------------------
2
----------------------------------------
NOTARY PUBLIC
XXXXXX X. XXXX
[GRAPHIC 00 Xxxxxxx Xxxxxxx
XXXXXXX] Xxxx Xxxx Xxxx, Xxxx 00000
My Commission Expires
May 1, 2003
STATE OF UTAH
----------------------------------------
JPET II COMPANY, LIMITED PARTNERSHIP
By
--------------------------------------
Xxxx Xxxxx, General Partner
FAE HOLDINGS 0112009, L.L.C.
By: FIRST AMERICAN EXCHANGE
CORPORATION, its Manager
By
--------------------------------------
Xxxxxxx Xxxxxxxx, Vice President
STATE OF Texas )
:ss.
COUNTY OF Lubbock )
The foregoing instrument was acknowledged before me this 19th day of
December, 2001, by XXXX XXXXXXXX, as General Partner of HB PROPERTIES.
/s/ XXXXX XXXXXX
-----------------------------------------
Notary Public
Residing in Lubbock TX
My Commission Expires: -------------------------------
1-21-2005 XXXXX XXXXXX
---------------------- [GRAPHIC NOTARY PUBLIC
OMITTED] State of Texas
STATE OF UTAH ) Comm. Exp. 01-21-2005
:ss. -------------------------------
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this __ day of
December, 2001, by XXXX XXXXX, as the General Partner of JPET II COMPANY,
LIMITED PARTNERSHIP.
-----------------------------------------
Notary Public
Residing in______________________________
My Commission Expires:
----------------------
STATE OF UTAH )
2
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this July 9, 2001, by and
between HB PROPERTIES, as Landlord, and MEADOW VALLEY CORPORATION, INC., AN
ARIZONA CORPORATION, as Tenant.
ARTICLE 1. FUNDAMENTAL LEASE PROVISIONS. Each reference in this Lease to
the "Fundamental Lease Provisions" shall mean and refer to the following terms:
1.1 Landlord's Address" 0000 00xx Xxxxxx, Xxxxxxx, Xxxxx 00000.
1.2 Tenant's Notice Address: 0000 Xxxxx 00xx Xxxxxx, X-00, Xxxxxxx, XX
00000
1.3 Tenant's Trade Name: Meadow Valley Contractors, Inc.
1.4 Estimated Possession Date: October 1, 2001.
1.5 Rent Commencement Date: October 1, 2001.
1.6 Lease Term Five (5) years.
1.7 Initial Basic Rent: Two Thousand Nine Hundred Ninety-Eight and
NO/100's Dollars ($2,998.00).
1.8 Tenant's Proportionate Share of Common Area Operating Costs: 12.5%.
1.9 Tenant's Proportionate Share of Taxes: 12.5%.
1.10 Tenant's Proportionate Share of Insurance: 12.5%.
1.11 Use: General office and warehouse uses for a general contracting
business specializing in infrastructure projects.
1.12 Security Deposit: $2,998.00
1.13 Guarantors: None
ARTICLE 2. PREMISES.
2.1 The Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord certain premises in the building located at 0000 Xxxxxxx
Xxxxxx, Xxxxx "X", Xxxxx Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx 00000 (hereinafter the
"Building"), depicted on the site plan of the Building attached hereto as
Exhibit "A" (hereinafter referred to as the "Premises"), containing a total of
approximately 4,320 square feet of floor space.
2.2 Tenant's Rights to Use in Common. Tenant shall have the nonexclusive
right to use in common, subject to reasonable rules of general applicability to
tenants of the Building from time to time made by Landlord and of which Tenant
is given notice, all areas, space, equipment and signs provided for the common
or joint use or benefit of the tenants of the Building, including but not
limited to driveways, access roads, landscaped and vacant areas, truck
serviceways, lobbies, corridors, stairs, ramps, elevators, escalators,
entrances, exits, stairways, sidewalks, pavement, lighting facilities, utility
systems, HVAC systems, exterior and interior walls, and public facilities, are
collectively referred to herein as the "Common Areas". Tenant hereby agrees that
Landlord shall have the right, for the purposes of accommodating the other
tenants of the Building, to increase or decrease the configuration and
dimensions or to otherwise alter the Common Areas so long as Tenant's access to
the Premises is not unreasonably restricted thereby.
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2.4 No Warranty. Tenant agrees that neither Landlord nor any agent of
Landlord has made any representations or warranty as to the suitability of the
Premises for the conduct of Tenant's business, nor has Landlord agreed to
undertake any modification, alteration or improvement to the Premises or the
Building except as provided in this Lease. Tenant acknowledges and agrees that
neither Landlord nor any agent of Landlord has made any representation or
warranty whatsoever or at all concerning (a) the safety of the Premises, the
Building or of any part thereof, whether for the use of Tenant or any other
persons, including Tenant's employees, agents, invitees, or customers, or (b)
the existence or adequacy of any security system(s) which may be installed or
used by Landlord. All understandings and agreements heretofore made between the
parties hereto are merged in this Lease.
ARTICLE 3. PURPOSE.
3.1 Permitted Use. The Premises are to be used only for the use described
in the Fundamental Lease Provisions and for no other purpose without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
3.2 Restrictions. The parties agree that this Lease is subject to the
effect of any covenants, conditions, restrictions, easements, mortgages or deeds
of trust, ground leases, rights of way and any other matters or documents of
record; the effects of any zoning laws of the city, county and state where the
Building is situated, and general and special taxes not delinquent. Tenant
agrees that as to Tenant's leasehold estate Tenant and all persons in possession
or holding under Tenant, will conform to and will not violate the terms of any
covenants, conditions or restrictions of record which may now or hereafter
encumber the Building (the "Restrictions"); and this Lease is subordinate to the
Restrictions and any amendments or modifications thereto.
ARTICLE 4. TERM. The term of this Lease (herein referred to as the "term
of this Lease" or "the term hereof"), shall begin as of the date hereof, and,
unless sooner terminated as provided in this Lease, shall continue until Five
(5) years from the Rent Commencement Date, as defined in the Fundamental Lease
Provisions. The estimated possession date is set forth in the Fundamental Lease
Provisions (the "Estimated Possession Date").
ARTICLE 5. POSSESSION. Landlord agrees to deliver to the Tenant and
Tenant agrees to accept from Landlord, possession of the Premises forthwith upon
substantial completion of the Premises. The term "substantial completion of the
Premises" is defined as the date Landlord notifies Tenant that the Premises are
substantially complete to the extent of Landlord's work as specified in Exhibit
"B", to the point that Tenant's contractor may commence the construction of
Tenant's Work as specified in Exhibit "B". Certification by Landlord's architect
of the substantial completion of the Premises in accordance with Exhibit "B"
shall be conclusive and binding upon the parties hereto. If Landlord, for any
reason whatsoever, cannot deliver possession of the Premises to Tenant on or
prior to the Estimated Possession Date, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom.
ARTICLE 6. RENT.
6.1 Basic Rent.
(a) Tenant shall pay to Landlord, as rent for the Premises beginning
on the Rent Commencement Date and continuing throughout the term of this Lease,
the Basic Annual Rent (sometimes referred to as "Basic Rent") set forth in the
Fundamental Lease Provisions hereof, as such Basic Rent may be adjusted as
hereinafter provided. The Basic Rent shall be payable in equal monthly
installments in advance on or before the first day of each calendar month during
the term hereof. Basic Rent for any partial month shall be prorated on a per
diem basis based on a 360-day year.
(b) Landlord and Tenant stipulate and agree for all purposes under
this Lease that the floor area of the Premises is 4,320 square feet,
notwithstanding any different measurement thereof that may be made hereafter by
or on behalf of either party.
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6.2 Basic Rental Adjustment (CPI). On January 1, 2002 and on the first
day of each calendar year of the term of this Lease (the "Adjustment Date"), the
Basic Rent shall be adjusted upwards by three percent (3%). The adjusted Basic
Rent shall become effective as of the applicable Adjustment Date and shall
remain in effect for the next succeeding twelve (12) calendar months.
6.3 Net Lease; Additional Rent. It is the intent of both parties that the
Basic Rent shall be absolutely net to Landlord throughout the terms of this
Lease, that all costs, expenses, and obligations of every kind relating to the
Premises which may arise or become due during the term hereof shall be paid by
Tenant, except for those which are specifically imposed upon Landlord pursuant
to the terms of this Lease. In furtherance thereof, Tenant specifically agrees
to pay to Landlord as additional rent, without demand therefore and without
offset or deduction, the expenses and charges set forth below:
(a) Tenant shall pay to Landlord its Proportionate Share (as defined
in Article 1 above) of the Common Area operating costs. The "Common Area
operating cost" means the total cost and expense incurred in connection with the
ownership, maintenance, repair, replacement and operation of Common Areas,
specifically including, without limitation, the costs and expenses for utilities
for lighting and cleaning the Common Areas, watering vegetation, and temperature
control in interior Common Areas; personal property taxes and assessments on the
Common Area personalty and equipment; real property taxes and assessments on the
land and improvements comprising the exterior Common Areas (to the extent not
included in subparagraph (c) below; premiums for insurance covering exterior
Common Areas, including fire and extended coverage, all risk public liability
and property damage, rental abatement insurance, earthquake insurance and such
other insurance as may otherwise be required by the first mortgagee of the
Building or by the Landlord in the exercise of its discretion, maintenance,
repair and replacement (including capital charges) of Common Area pavement,
sidewalks, walls, roofs, fences, curbs and bumpers, floor and wall coverings in
interior Common Areas, and all interior and exterior directional signs;
gardening and the maintenance and replacement of landscaping and irrigation
systems; striping and line painting; sweeping, sanitary and flood control,
removal of snow, ice, trash, rubbish, garbage, and other refuse; cleaning,
repair and replacement of lighting fixtures including bulbs and ballasts;
depreciation on, or rentals for, machinery and equipment used in such
maintenance; management fee (not to exceed five percent (5%); the cost of
supplies and personnel (and salaries, uniforms, workmen's compensation
insurance, group insurance, fidelity bonds and other fringe benefits) to
implement such service, to direct parking, and to police the Common Areas;
repair of all utility lines, custodial service for interior Common Areas, all
cost required by a governmental entity for energy conservation, life safety or
other purposes or made by Landlord to reduce operating expenses; fees required
for licenses and permits relating to the operation of parking areas, and fifteen
percent (15%) of all the foregoing costs (except for the cost of taxes and
insurance) to cover administrative and overhead expenses. Any of the services
which may be included in the computation of the Common Area operating costs may
be performed by subsidiaries or affiliates of Landlord, provided that the
contracts for the performance of such services shall be competitive with similar
contracts and transactions with unaffiliated entities for the performance of
such services in comparable projects in Salt Lake County.
(b) Tenant shall pay to Landlord its Proportionate Share (as defined
in Article 1 above) of the cost of Landlord's property damage insurance
described in Section 16.2 below.
(c) Tenant shall pay to Land lord its Proportionate Share (as defined
in Article 1 above) of all Real Estate Taxes (as defined below) levied against
the Building (and applicable land on which the Building is located) for any
period occurring during the term of this Lease.
(d) "Real Estate Taxes" or "Taxes" shall mean and include all general
and special taxes, assessments, duties and levies, charged and levied upon or
assessed by any governmental authority against the Building including the land,
the buildings, the Premises, any other improvements situated on the land other
than the buildings, the various estates in the land and the buildings, any
leasehold improvements, fixtures, installations additions and equipment whether
owned by Landlord or Tenant. Real Estate Taxes shall also include the reasonable
cost to Landlord contesting the amount, validity, or the applicability of any
Taxes mentioned in this Article. Further included in the definition of Taxes
herein shall be general and special assessments, fees of every kind and nature,
commercial rental tax, levy, penalty or tax (other than inheritance or estate
taxes)
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imposed by any authority having the direct or indirect power to tax, as against
any legal or equitable interest of Landlord in the Premises or in the Building
or on the act of entering into this Lease or as against Landlord's right to rent
or other income therefrom, or as against Landlord's business of leasing the
Premises, any tax, fee, or charge with respect to the possession, leasing,
transfer of interest, operation, management, maintenance alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Building, or any
tax imposed in substitution, partially or totally, for any tax previously
included within the definition of Taxes herein, or any additional tax, the
nature of which may or may not have been previously included within the
definition of Taxes. Further, if at any time during the term of this Lease the
method of taxation or assessment of real estate or the income therefrom
prevailing at the time of execution hereof shall be, or has been altered so as
to cause the whole or any part of the Taxes now or hereafter levied, assessed or
imposed on real estate to be levied, assessed or imposed upon Landlord, wholly
or partially, as a capital levy, business tax, permit or other charge, or on or
measured by the rents received therefrom, then such new or altered Taxes,
regardless of their nature, which are attributable to the land, the buildings or
to other improvements within the Building, shall be deemed to be included within
the term "Real Estate Taxes" for purposes of this Article, whether in
substitution for, or in addition to any other Real Estate Taxes, save and except
that such shall not be deemed to include any enhancement of said tax
attributable to other income of Landlord. With respect to any general or special
assessments which may be levied upon or against the Premises, the Buildings, the
underlying realty or which may be evidenced by improvement or other bonds, or
may be paid in annual or semi-annual installments, only the amount of such
installment, pro rated for any partial year, and statutory interest, shall be
included within the computation of Taxes for which Tenant is responsible
hereunder. When possible, Tenant shall cause its trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Landlord. If any of Tenant's said personal property
shall be assessed with Landlord's real property, Tenant shall pay to Landlord
the Taxes attributable to Tenant within ten (10) days after receipt of a written
statement setting forth the Taxes applicable to Tenant's property.
(e) All costs and expenses herein described which are incurred on a
Building-wide basis, such as exterior Common Area maintenance costs, liability
insurance, and taxes and assessments (if separate tax bills are not available),
shall be prorated among the various tenants within the Building, based upon the
square foot area within the Building. Notwithstanding the preceding provision,
Tenant's proportionate share as to certain expenses may be calculated
differently to yield a higher percentage share for Tenant as to certain expenses
in the event Landlord permits other lessees in the Building to directly incur
such expenses rather than have Landlord incur the expenses in common for the
Building. In such case Tenant's proportionate share of the applicable expense
shall be calculated as having its denominator the gross leasable area of all
premises in the Building less the gross leasable area of Tenants who have
incurred such expense directly. In any case in which Tenant, with Landlord's
consent, incurs such expenses directly, Tenant's proportionate share shall be
calculated specially so that expenses of the same character which are incurred
by Landlord for the benefit of other Tenants in the Building shall not be pro
rated to Tenant. Nothing herein shall imply that Landlord will permit Tenant or
any other Tenant of the Building to incur any Common Area costs or operating
costs. Any such permission shall be in the sole discretion of the Landlord,
which Landlord may grant or withhold in its arbitrary judgment.
(f) Tenant's Proportionate Share of the costs and expenses herein
described shall be estimated by Landlord for each twelve (12) month period, as
Landlord, in good faith, may determine and shall, where possible, be based upon
previous costs and expenses increased by an inflation factor and anticipated
forthcoming extraordinary expenditures. Tenant shall pay in equal installments
in advance on the first day of each calendar month on-twelfth (1/12th) of its
estimated Proportionate Share of such costs for such period and any adjustments
to be made as a result of any difference between the amount paid by Tenant (as
its estimated Proportionate Share) and Tenant's actual Proportionate Share. In
the case of a deficiency, Tenant shall promptly remit the amount of such
deficiency to Landlord. In the case of a surplus, Landlord shall apply such
surplus to payments next falling due from Tenant hereunder. Notwithstanding the
foregoing, however, Landlord may elect to prorate certain costs and expenses,
such as taxes and assessments, as they are incurred and, with respect to such
items, not following the "budget billing" concept described in this
subparagraph.
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6.4 Taxes on Rent. Tenant shall pay and be liable for all rental, sales
and use taxes or other similar taxes, if any, levied or imposed on Rent or any
part thereof by any city, county, state or other governmental body having
authority.
6.5 Payment; Late Charges. Except as otherwise specifically provided
herein, any sum, amount, item or charge designated or considered as additional
rent in this Lease or any other sum, amount, item or charge payable by Tenant to
Landlord pursuant to this Lease (all of which sums together with Basic Rent are
sometimes referred to in this Lease as "Rent") shall be paid to Landlord without
deduction or offset, in lawful money of the United States of America and shall
be paid at the office of Landlord, or to such other place as Landlord may from
time to time designate by written notice to Tenant. Any installment of Rent,
other sum or any portion of such installment or other sum required under this
Lease to be paid by Tenant which has not been paid within five (5) days after
the due date thereof shall, whether or not demand therefore is made or notice of
default is given, bear interest at the rate of one and one half percent (1-1/2%)
per month from the due date thereof or until paid in full. In addition thereto,
Landlord may charge a sum equal to five percent (5%) of each unpaid amount as a
service fee to compensate Landlord for the additional time and expense
necessitated in the handling of delinquent payments.
ARTICLE 7. USE OF PREMISES.
7.1 Prohibited Uses. Tenant shall not do or permit anything to be done in
or about the Premises, nor bring or keep anything therein which will in any way
increase the existing rate or affect any policy of fire or other insurance upon
the Premises or any of its contents. Tenant shall not do or permit anything to
be done in or about the Premises which will in any way obstruct or interfere
with the rights of other lessees or occupants of the Building, injure or annoy
them or use or allow the Premises to be used to any improper, immoral, unlawful
or objectionable purposes, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not overload the floors or
damage or deface or otherwise commit or suffer to be committed any waste, abuse,
deterioration or destructive use in or upon the Premises. Tenant shall not place
any sign or advertisement upon any exterior wall or window without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
7.2 Compliance with Law. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or government rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall at its sole cost and
expense promptly comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements now in force or which may hereafter be in
force and with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted related to or affecting the condition,
use or occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in an action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated any such
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of that fact as between Landlord and Tenant. Tenant hereby accepts
the Premises in the condition existing as of the date of occupancy, subject to
all applicable zoning, municipal, county and state laws, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the term or any part of the term hereof regulating the Premises.
7.3 Hazardous Materials.
(a) For purposes hereof, "Hazardous Materials" shall mean any and all
flammable explosives, radioactive material, hazardous waste, toxic substance or
related material, including but not limited to, those materials and substances
defined as "hazardous substances", "hazardous materials", "hazardous wastes"
or "toxic substances" in the Environmental Laws. For purposes hereof,
"Environmental Laws" shall mean all local, state and federal laws, statutes,
rules and regulations relating to industrial hygiene, environmental protection,
or the use analysis, generation, manufacture, storage, disposal, or
transportation of any Hazardous Material, including but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601 et seq.; the Hazardous Materials Transportation Act, 39
U.S.C. Section 1801, et seq.; the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery
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Act, 42 U.S.C. Section 6901 et seq.; the Federal Clean Water Act 33 U.S.C.
Section 1251 et seq.; the Clean Air Act 42 U.S.C. Section 7401 et seq.; the
Xxxxxx-Cologne Water Quality Act, including all amendments thereto, replacements
thereof, and regulations adopted and publications promulgated pursuant thereto.
(b) Tenant agrees that during the term of this Lease Tenant shall not
be in violation of any federal, state or local law, ordinance or regulation
relating to industrial hygiene, soil, water, or environmental conditions on,
under or about the Premises or the Building including, but not limited to, the
Environmental laws. Tenant further agrees that during the term of this Lease,
there shall be no use, presence, disposal, storage, generation, release, or
threatened release of Hazardous Materials on, from or under the Premises of the
Building. Tenant further covenants that it will immediately notify Landlord of
any environmental concern raised by a private party or governmental agency as it
relates to the Premises or Tenant's use of the Building; and immediately notify
Landlord of any hazardous waste spill. In the event of a violation hereof,
Tenant shall immediately proceed, at Tenant's expense, to remedy same. Failure
of Tenant to commence clean up activities within five (5) days after receipt of
notice to do so shall result in a default under this Lease. Landlord shall,
thereafter, have the right, but not the obligation, to remedy any environmental
violation upon the Premises or the Building, and Tenant shall promptly reimburse
Landlord for all costs relating thereto. Landlord further retains the right, in
its sole, but reasonable discretion, to conduct any environmental tests should
Landlord suspect a violation to exist.
(c) Tenant agrees to indemnify, defend, protect and hold harmless
Landlord, its directors, officers, employees, partners, and agents from and
against any and all losses, claims, demands, actions, damages (whether direct or
consequential), penalties, liabilities, costs and expenses, including all
attorney's fees and legal expenses, arising out of any violation or alleged
violation of any of the laws or regulations referred to in this Article, or
breach of any of the provisions of this Article. Tenant's obligations under this
Article shall survive the expiration or earlier termination of the term of this
Lease.
ARTICLE 8. ALTERATIONS.
8.1 Consent. Tenant shall not make or permit to be made any alterations,
additions or improvements to or of the Premises or any part thereof without the
written consent of Landlord, which consent shall not be unreasonably withheld,
and any alterations, additions or improvements to, or on the Premises, except
movable furniture and trade fixtures, shall at once become a part of the realty
and belong to Landlord.
8.2 Plans. Tenant shall submit working drawings for any such alterations,
additions or improvements to Landlord for Landlord's prior written approval.
8.3 Performance. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, the same shall
be made by Tenant at Tenant's sole cost and expense and selection by Tenant of
any contractor of person to construct or install the same shall be subject to
the prior written approval of Landlord, which approval shall not be unreasonably
withheld. Such work shall be performed in a good and workmanlike manner, and
Tenant shall diligently prosecute such construction to completion. Tenant shall
have the work performed in such a manner so as not to (a) obstruct the access of
any other tenant in the Building, (b) interfere with the rights of quiet
enjoyment of the premises of the other tenants in the Building, or (c) damage
any portion of the Building or Common Areas.
8.4 Liens Not Permitted. Tenant shall keep the Premises and the Building
free from any liens arising out of any work performed, materials furnished or
obligations incurred by Tenant. In the event a mechanic's or other lien is filed
against the Premises or the Building of which the Premises forms a part as a
result of a claim arising through Tenant, Landlord may demand that Tenant
furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to
at least one hundred fifty percent (150%) of the amount of the contested lien,
claim or demand, indemnifying Landlord against liability for the same and
holding the Premises free from the effect of such lien notice from Landlord. In
addition, Landlord may require Tenant to pay Landlord's attorney's fees and
costs in participating in any action to foreclose such lien if Landlord shall
decide it is to its best interest to do so. Landlord may pay the claim prior to
the enforcement thereof, in which event
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Tenant shall reimburse Landlord in full, including attorney's fees, for any such
expense, as additional rent, with the next due rental.
8.5 Action Upon Expiration. Tenant shall return the Premises to Landlord
at the expiration or earlier termination of this Lease in good and sanitary
order, condition and repair, free of rubble and debris, broom clean, reasonable
wear and tear excepted. However, Tenant shall ascertain from Landlord at least
thirty (30) days prior to the termination of this Lease, whether Landlord
desires the Premises, or any part thereof, restored to its condition prior to
the making of permitted alterations, installations and improvements, and if
Landlord shall so desire, then Tenant shall forthwith restore said Premises or
the designated portions thereof as the case may be, to its original conditions,
entirely at its own expense, excepting normal wear and tear. Upon, or within ten
(10) days prior to termination of this Lease, Tenant will provide, at Tenant's
sole cost and expense a certification of the HVAC system by a contractor
acceptable to Landlord. In the event said certification indicates any deferred
maintenance or other conditions other than normal wear and tear, Tenant shall
promptly cause any such conditions to be remedied at Tenant's sole cost and
expense, by a contractor acceptable to Landlord. All damage to the Premises
caused by the removal of such trade fixtures and other personal property that
Tenant is permitted to remove under the terms of this Lease and/or such
restoration shall be repaired by Tenant at its sole cost and expense prior to
termination.
ARTICLE 9. MAINTENANCE AND REPAIRS.
9.1 Tenant's Obligations.
(a) Tenant shall, at all times during the term hereof, and at
Tenant's sole cost and expense, keep, maintain and repair the Premises in good
and sanitary order and condition and repair, including, without limitation,
interior surfaces of the ceilings, walls and floors located within the Premises,
replacement of all broken or damaged glass, replacement of light globes or
tubes, doors, window casements, heating, air conditioning and ventilating
systems servicing the Premises exclusively, plumbing, pipes, electrical wiring
conduit, interior partitions, fixtures, leasehold improvements and alterations.
(c) Tenant agrees to repair any damage to the Premises or the
Building caused by or in connection with (i) the use of the Premises or portions
of the Building by Tenant or its employees, agents or invitees, (ii) the moving
by Tenant or its employees or agents in to the Premises, or (iii) the removal of
any articles of personal property, business or trade fixtures, machinery,
equipment, cabinet work, furniture, movable partition or permanent improvements
or additions, including without limitation thereto, repairing the floor and
patching and painting the walls where required by Landlord to Landlord's
reasonable satisfaction, all at the Tenant's sole cost and expense.
(d) In the event Tenant fails to maintain the Premises in good order,
condition and repair, or to repair damage as provided above, Landlord may (but
shall not be obligated to) give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. In the event that after such notice Tenant
shall fail to promptly commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform such work.
Any amount so expended by Landlord shall be paid by Tenant promptly after demand
with interest from the date of such work.
Page -7-
9.2 Landlord's Obligations
(a) Landlord shall, at its sole cost and expense, keep and maintain
in good repair, the exterior walls and roof of the Building. By entering into
the Premises, Tenant shall be deemed to have accepted the Premises in "as-is"
condition and as being in good and sanitary order, condition and repair, and
Tenant agrees that on the last day of said term or sooner termination of this
Lease to surrender the Premises with appurtenance in the same condition as when
received, reasonable use and wear thereof and damage by fire, act of God or by
the elements is excepted.
(b) Landlord shall pay for maintenance and repair as defined herein
so long as the need for same does not result from any wrongful or negligent act
or omission of Tenant or its employees, invitees or licensees. The cost of any
such maintenance, repair, janitorial or other service which becomes necessary as
a result of any such act or omission shall be borne by Tenant. Landlord shall
not be required to make any repairs unless and until Tenant has notified
Landlord in writing of the need for such repairs and Landlord shall have a
reasonable period of time thereafter within which to commence and complete said
repairs. Landlord shall act within seventy-two (72) hours after receipt of
written notice and shall pursue to completion with due diligence; provided
however, Landlord shall not be liable for any damages, direct, indirect or
consequential, or for damages for personal discomfort, illness or inconvenience
of Tenant by reason of failure of such equipment facilities or systems or
reasonable delays in the performance of such repairs, replacements and
maintenance, unless caused by the deliberate act or omission of Landlord, its
servants, agents, or employees or anyone permitted by it to be in the Building,
or through it in any way, the cost of the necessary repairs, replacements or
alterations shall be borne by Tenant who shall pay the same to Landlord on
demand. Tenant waives all rights it may have under law to make repairs at
Landlord's expense.
ARTICLE 10. RIGHTS RESERVED TO LANDLORD
10.1 Entry. Tenant shall permit Landlord and its agents to enter into and
upon the Premises at all reasonable times to inspect the same or to perform any
obligation of Tenant hereunder which Tenant has failed to perform
satisfactorily, to exhibit the Premises to prospective purchasers or tenants, to
place upon the property in which the Premises are located any usual or ordinary
signs advertising the availability of the property for sale or lease prior to
the expiration of this Lease, to post and maintain notices of
non-responsibility, or any other notice, deemed necessary by Landlord for the
protection of its interest, to maintain or repair the Premises or to alter,
improve, maintain or repair any other portion of the Building, specifically
including its mechanical, electrical and telephone systems, all without being
deemed guilty of any eviction of Tenant and without abatement of Rent, and may,
in order to carry out such purposes, erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed as well as keep and store upon the Premises all tools, materials and
equipment necessary for such purposes, provided that the business of Tenant
shall not be unreasonably interfered with or disrupted. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open such doors in an emergency in order to
obtain entry to the Premises.
10.2 Relocation. Landlord shall have the right, at any time during the
term hereof, upon not less than ninety (90) days prior written notice to Tenant,
to substitute for the Premises such other space in the Building as shall be
substantially the same size as the Premises (the "Substituted Premises"),
provided that Landlord shall pay all expenses of Tenant incidental to Tenant's
relocation to the Substituted Premises and that Landlord shall improve the
Substituted Premises for Tenant's use and occupancy at least to the same extent
as the Premises occupied by Tenant prior to such relocation.
10.3 Transfer of Landlord's Interest. In the event Landlord transfers its
interest in the Premises (other than a transfer for security purposes only),
Landlord shall be relieved of all obligations accruing hereunder after the
effective date of such transfer, including any obligations arising out of any
act, occurrence or omission relating to the Premises or this Lease which occur
after the consummation of such transfer.
Page -8-
10.4 Right to Obtain Estoppel Certificate. Tenant agrees at any time and
from time to time upon not less than ten (10) days prior request by Landlord, to
(a) execute, acknowledge and deliver to Landlord a statement in writing
certifying that (i) this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), (ii) the dates to which the Rent and
other charges have been paid in advance, if any, (it being intended that any
such statement delivered pursuant to this subparagraph may be relied upon by a
prospective purchaser, mortgagee or assignee of any mortgage of the Premises),
and (iii) acknowledging that there are not any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if they are claimed, and/or (b)
execute any document or provide any statement as required by Landlord's lender
provided such document shall not affect the rental or term of this Lease.
10.5 Building Name Change. Landlord reserves to itself and shall at any
and all times have the right to change the name or street address of the
Premises or the Building.
10.6 Signs. Landlord reserves to itself and shall at any and all times
have the right to install and maintain signs on the exterior and interior of the
Building, except within the Premises.
10.7 Other Tenancies. Landlord reserves to itself and shall at any and all
times have the right to effect such other tenancies in the Building as Landlord
in the exercise of its sole business judgment shall determine to best promote
the interest of the Building. Tenant does not rely on the fact nor does Landlord
represent that any specific tenant or number of tenants shall during the term of
this Lease occupy any space in the Building.
10.8 Work in or Near Building. Landlord reserves to itself and shall at
any and all times have the right to do or permit to be done any work in or about
the exterior of the Building.
10.9 Non-Recourse. The obligations of Landlord under this Lease do not
constitute personal obligations of the individual entities which comprise
Landlord nor their respective partners, members, directors, officers or
shareholders, and Tenant shall look solely to the real estate that is the
subject of this Lease and to no other assets of the entities comprising Landlord
for satisfaction of any liability in respect of this Lease and will not seek
recourse against the individual entities which comprise Landlord nor against
their respective partners, members, directors, officers or shareholders nor
against any of their personal assets for such satisfaction other than the
Building or any interest they may have in or to the Building or any portion
thereof.
ARTICLE 11. ABANDONMENT. Tenant shall not vacate or abandon the Premises
at any time prior to the expiration or earlier termination of the term hereof
nor permit the Premises to remain unoccupied for a period longer than ten (10)
consecutive days. In the event Tenant shall abandon, vacate or surrender the
Premises or be dispossessed by process of law or otherwise, any personal
property belonging to tenant and left on the Premises shall be deemed to have
been abandoned.
ARTICLE 12. LIENS. Should any mechanic's or other liens be filed against
the Premises by reason of Tenant's acts or omissions or because of a claim
against Tenant or against Tenant's agents or contractors, Tenant shall cause the
same to be canceled and discharged of record and shall indemnify, defend and
hold Landlord harmless from any such lien and shall deal with any such lien in
accordance with the terms of Article 8 above.
ARTICLE 13. ASSIGNMENT AND SUBLETTING.
13.1 Landlord's Consent Required. Tenant acknowledges and agrees that it
has entered into this Lease in order to acquire the Premises for its own
personal use and not for the purpose of obtaining the right to convey the
leasehold to others. Tenant shall not assign, license, transfer, mortgage,
hypothecate, or otherwise encumber all or any part of this Lease or any interest
therein, or sublet the Premises or any part thereof to occupy or use the
Premises or any portion thereof without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Landlord's consent
shall not be deemed unreasonably withheld if the proposed new tenant is anyone
with whom Landlord has negotiated for a direct lease within the preceding twelve
(12) months, anyone with whom Landlord is negotiating a direct lease at the time
of such proposed
Page -9-
assignment of sublease, anyone on Landlord's list of prospective new tenants, or
any current or prior occupant or tenant of the Building; or if in Landlord's
opinion the business operation conducted on the Premises is or may in any way
adversely affect the Building or other tenants during the term of the Lease by
such proposed assignment, license, transfer, mortgage, encumbrance or
subletting; or the financial worth of a proposed new tenant is less than that of
Tenant or the financial worth or the guarantor of a proposed new tenant is less
than that of Tenant or the financial worth or the guarantor of a proposed new
tenant is less than that of the guarantor of Tenant. Acceptance of rent by
Landlord of Tenant or Assignee shall not be deemed approval or acceptance of
assignment or subletting. Tenant shall remain liable for all terms and
conditions of this Lease Agreement at all times even upon Lease assignment or
subletting. Any assignment or subletting by Tenant without Landlord's consent
shall be a default by Tenant hereunder.
13.2 Tenant's Application. In the event that Tenant desires at any time to
assign this Lease or to sublet the Premises or any portion thereof, Tenant shall
submit to Landlord at least 60 days prior to the proposed effective date of the
assignment of sublease ("Proposed Effective Date"), in writing: (a) a request
for permission to assign or sublease, setting forth the Proposed Effective Date,
which shall be no less than 60 nor more than 120 days after the sending of such
notice; (b) the name of the proposed subtenant or assignee; (c) the nature of
the proposed subTenant's or assignee's business to be carried on in the
Premises; (d) the name of the guarantor, if any, of the proposed subtenant or
assignee; (e) the terms and provisions of the proposed sublease or assignment;
(f) current audited financial statements of the proposed subtenant or assignee
and the guarantor, if any, and (g) the fee for review pursuant to Section 13.4
below.
13.3 Recapture. If Tenant proposes to assign this Lease, Landlord may, at
its option, exercisable upon written notice to Tenant within 30 days after
Landlord's receipt of the notice from Tenant, elect to recapture the Premises
and terminate this Lease. If Tenant proposes to sublease all or part of the
Premises, Landlord may, at its option, exercisable upon written notice to Tenant
within 30 days after Landlord's receipt of the notice from Tenant, elect to
recapture such portion of the Premises as Tenant proposes to sublease and, upon
such election by Landlord, this Lease shall terminate as to the portion of the
Premises recaptured.
13.4 Fee for Review. In the event Tenant shall request to assign,
transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest
therein, or sublet the Premises or any part thereof, Tenant shall pay to
Landlord a non-refundable fee of $500.00 for Landlord's time and processing
efforts and for expenses incurred by Landlord in reviewing such transaction. In
addition to such fee, Tenant shall pay to Landlord in the event Landlord retains
the services of an attorney to review the transaction, all reasonable attorneys=
fees incurred by the Landlord in connection therewith, Tenant shall pay such
attorneys= fees to Landlord within five days after written request therefor and
such payment shall be a condition to any approval by Landlord.
13.5 Implied Assignment. If Tenant hereunder is a corporation, an
unincorporated association, a limited liability company or a partnership, the
transfer, merger, assignment or hypothecation or any stock or interest in such
entity in the aggregate in excess of 25% shall be deemed an assignment within
the meaning and provisions of this Article; provided however, that a transfer or
assignment of any such stock or interest by a shareholder, partner or member to
his or her spouse, children or grandchildren is excepted from the foregoing
provision.
ARTICLE 14. PARKING AND COMMON AREAS.
14.1 Parking. Tenant shall have the non-exclusive right to use parking
spaces in the parking area provided by Landlord adjacent to or near the
Premises, subject to such reasonable rules and regulations as Landlord may
impose from time to time. Nothing contained herein shall be deemed to create any
liability or responsibility upon Landlord for any damage to motor vehicles or
Tenant, its customers, invitees and employees or for loss of property from
within such motor vehicles, unless caused by the gross negligence of Landlord,
its agents or employees.
14.2 Rules and Regulations. Landlord shall have the right, through
reasonable rules, regulations and/or restrictive covenants promulgated or
modified by it from time to time, to control use and operation of the parking
and the Common Areas in order that the same may occur in proper and orderly
fashion; provided, however, that any such promulgated or modified rules,
regulations and/or restrictive covenants shall not discriminate against Tenant
in favor of other tenants or portions of the Building.
Page -10-
14.3 Changes. Landlord reserves the right to change from time to time the
dimensions and location of the Common Areas as shown on Exhibit "A" as well as
the dimensions identity and type of the Building (except the Premises of Tenant)
shown on Exhibit "A" and to construct additional buildings, modify existing
buildings or make other improvements.
ARTICLE 15. INDEMNITY AND WAIVER
15.1 Assignment of Risk. This Article 15 is written and agreed to in
respect of the intent of the parties to assign the risk of loss whether
resulting from negligence of the parties or otherwise, to the party who is
obligated hereunder to cover the risk of such loss with insurance. Thus, the
indemnity and waiver of claims provisions of this Lease have as their object, so
long as such object is not in violation of public policy, the assignment of risk
for a particular casualty to the party carrying the insurance for such risk,
without respect to the causation thereof.
15.2 Release. Landlord and Tenant release each other, and their respective
authorized representatives, from any claims for damage to any person or to the
Premises and the Building and other improvements in which the Premises are
located, and to the fixtures, personal property, Tenant's improvements and
alterations of either Landlord or Tenant, in or on the Premises and the Building
and other improvements in which the Premises are located, including loss of
income, that are caused by or result from risks insured or required under the
terms of this Lease to be insured against under any property insurance policies
carried or to be carried by either of the parties.
15.3 Waiver of Subrogation. Each party shall cause each such insurance
policy obtained by it to provide that the insurance company waives all rights of
recovery by way of subrogation against either party in connection with any
damage covered by such policy. Neither party shall be liable to the other for
any damage caused by fire or any other risks insured against under any property
insurance policy carried under the terms of this Lease. If any such insurance
policy cannot be obtained with a waiver of subrogation without payment of an
additional premium charge above that charged by the insurance companies issuing
such policies without waiver of subrogation, the party receiving the benefit
shall elect to either forfeit the benefit or shall pay such additional premium
to the insurance carrier requiring such additional premium. It is understood
that subrogation waivers may be operative only as long as such waivers are
available in the State of Utah. In the event subrogation waivers are allegedly
not operative in such State, notice of such fact shall be promptly given by
party obtaining the insurance in question to the other party.
15.4 Indemnification. Tenant, as a material part of the consideration to
be rendered to Landlord, shall indemnify, defend, protect and hold harmless
Landlord against all actions, claims, demands, damages, liabilities, losses,
penalties, or expenses of any kind which may be brought or imposed upon Landlord
or which Landlord may pay or incur by reason of injury to person or property,
from whatever cause, all or in any way connected with the condition or use of
the Premises, on the improvements or personal property therein or thereon,
including without limitation any liability or injury to the person or property
of Tenant, its agents, officers, employees or invitees. Tenant agrees to
indemnify, defend and protect Landlord and hold it harmless from any and all
liability, loss, cost of obligation on account of, or arising out of, any such
injury or loss however occurring, including beach of the provisions of this
Lease and the negligence for the parties hereto. Nothing contained herein shall
obligate Tenant to indemnify Landlord against its own sole or gross negligence
or willful acts, for which Landlord shall indemnify Tenant. In the event any
action, suit or proceeding is brought against Landlord by reason of such
occurrence, Tenant, upon Landlord's request will at Tenant's expense resist and
defend such action, suit or proceeding, or cause the same to be resisted and
defended by counsel designated either by Tenant or by the insurer whose policy
covers the occurrence and in either case approved by Landlord. The obligations
of Tenant under this Article arising by reason of any occurrence taking place
during the Lease term shall survive any termination of this Lease.
15.5 Waiver. Tenant, as a material part of the consideration to be
rendered to Landlord, hereby waives all claims against Landlord for damages to
goods, wares, merchandise and loss of business in, upon or about the Premises
and for injury to Tenant, its agents, employees, invitees or third persons in or
about the Premises from any cause arising at any time, including breach of the
provisions of this Lease and the negligence of the parties hereto.
Page - 11 -
15.6 Construction. Wherever in this Article the term Landlord or Tenant is
used and such party is to receive the benefit of a provision contained in this
Article, such term shall refer not only to that party but also to its officers,
directors, employees, partners and agents.
ARTICLE 16. INSURANCE
16.1 Tenant's Insurance
(a) Tenant agrees to secure and keep in force from and after the date
Landlord shall deliver possession of the Premises to Tenant and throughout the
term of this Lease, at Tenant's sole cost and expense comprehensive general
liability insurance on the Premises under Tenant's care, custody and control,
and all areas appurtenant thereto, on an occurrence basis with a minimum limit
of liability in an amount of One Million Dollars ($1,000,000.00) per occurrence,
Two Million Dollars ($2,000,000.00) aggregate. Evidence of said insurance shall
be provided to Landlord within thirty (30) days of occupancy and shall name
Landlord as an additional insured. The policy shall contain cross liability
endorsements and shall insure performance by Tenant of the indemnity provisions
of this Lease; shall cover contractual liability, and products liability; shall
be primary, not contributing with, and not in excess of coverage which Landlord
may carry; shall state that Landlord is entitled to recovery for the negligence
of Tenant even though Landlord and Landlord's lender are named as an additional
insured, shall provide for severability of interest; shall provide that an act
or omission of one of the insured or additional insured which would void or
otherwise reduce coverage shall not void or reduce coverage as to the other
insured or additional insured; and shall afford coverage after the term of this
Lease (by separate policy or extension if necessary) for all claims based on
acts, omissions injury or damage which occurred or arose (or the onset of which
occurred or arose) in whole or in part during the term of this Lease. The limits
of said insurance shall not limit any liability of Tenant hereunder. Not more
frequently than every three (3) years, if, in the reasonable opinion of
Landlord, the amount of liability insurance required hereunder is not adequate,
Tenant shall promptly increase said insurance coverage as required by Landlord.
(b) At all times during the term hereof, Tenant shall keep in force
at its sole cost and expense, fire and extended coverage insurance, and against
sprinkler leakage or malfunction and water damage and against vandalism and
malicious mischief, Tenant's leasehold improvements, trade fixtures,
furnishings, equipment and contents upon the Premises in full replacement value
thereof. Tenant shall also obtain broad form boiler and machinery insurance on
all air-conditioning equipment, boilers and other pressure vessels or systems,
whether fired or unfired, which are installed by Tenant or which exclusively
serve the Premises. Such boiler and machinery insurance shall cover the
replacement value of such items. Tenant shall also obtain plate glass insurance
for all plate glass upon the Premises. During the Lease term, the proceeds from
any such policy or policies of insurance shall be used for the repair or
replacement of the property so insured. Landlord shall have no interest in the
insurance upon Tenant's equipment and fixtures.
(c) Tenant shall procure pollution liability insurance covering
Landlord against any diminution in value of the Premises or Building as a result
of Tenant's handling of any Hazardous Material (as defined herein) the cost of
any on or off site clean up of any such hazardous material, any toxic waste
liability including a complete indemnification of Landlord against any and all
claims whatsoever made in any connection whatsoever with Tenant's bringing any
Hazardous Material onto the Premises or the Building.
16.2 Landlord's Insurance. Landlord shall procure insurance coverage
insuring Landlord against loss of, or damage to, the Building by reason of fire
and certain other casualties. Such insurance shall be underwritten by a
responsible insurance company qualified to do business in the State where The
Building is located and shall be in the face amount equal to the full
replacement cost of The Building. Such insurance shall cover loss or damage by
fire, and loss or damage arising out of the normal extended coverage perils
which are windstorm, hail, acts of god, explosion, riot, attending a strike,
civil commotion, aircraft, vehicles, and smoke.
16.3 Violations. No use shall be made or permitted to be made on the
Premises, nor acts done, which will increase the existing rate of insurance upon
the Building, or cause the cancellation of any insurance policy are located, or
cause the cancellation of any insurance policy covering the Building, or any
part thereof, nor shall Tenant sell, or permit to be kept, used or sold, in or
about the
Page -12-
Premises, any article which may be prohibited by the standard form of fire
insurance policies. Tenant shall at its sole cost and expense, comply with any
and all requirements pertaining to the Premises, of any insurance organization
or company, necessary for the maintenance of reasonable property damage and
public liability insurance, covering the Premises or the Building. Tenant agrees
to pay to Landlord, as additional rent, any increase resulting from Landlord's
use in premium on policies which may be carried by Landlord on the Premises or
the Building, or any blanket policies which include the Building, covering
damage thereto and loss of rent caused by fire and other perils above the rates
for the least hazardous type of occupancy of office use. Tenant further agrees
to pay Landlord, as additional rent, any increases in such premiums resulting
from the nature of Tenant's occupancy or any act or omission of Tenant.
ARTICLE 17. UTILITIES; JANITORIAL SERVICE.
17.1 Utilities.
(a) Tenant shall be solely responsible for, and shall promptly pay
before delinquency, all charges for use or consumption of heat, sewer, water,
gas, electricity, telephone or any other utility services supplied to Tenant or
to the Premises during the term hereof. Should Landlord elect to supply any
utility service, Tenant agrees to purchase and pay for the same at the
applicable rates then prevailing in the community. Should any utility service be
provided on a joint meter to the Premises and to other spaces within the
Building, Tenant shall reimburse Landlord for its pro rata share (based upon
floor area square footage) of such jointly supplied utility service. Such
reimbursement shall be made within ten (10) days following the receipt of
Landlord's statement indicating the share owed by Tenant and such shall be
considered additional rent hereunder.
(b) Landlord shall not be liable in the event of any interruption in
the supply of any utility service to the Premises or to the Building. Tenant
agrees that it will not install any equipment which will exceed or overload the
capacity of any utility facilities and that if any equipment installed by Tenant
shall require additional utility facilities, the same shall be installed at
Tenant's expense in accordance with plans and specifications first approved in
writing by Landlord.
(c) In the event any governmental authority promulgates or revises
any statute, ordinance or building, fire or other code, or imposes mandatory or
voluntary controls or guidelines on Landlord or the Building or any part
thereof, relating to the use or conservation of energy, water, gas, light or
electricity or the provision of any other utility or service provided with
respect to this Lease. Landlord may, in its sole and absolute discretion, take
any action necessary to comply with such mandatory or voluntary controls or
guidelines, including making alterations to the Building. Such compliance and
the making of such alterations shall in no event entitle Tenant to any damages,
relieve Tenant of the obligation to pay the full Rent or to perform each of its
other covenants hereunder or constitute or be construed as a constructive or
other eviction of Tenant.
17.2 Janitorial. Tenant shall provide, at its sole expense, regular
janitorial service for the Premises which shall include at least ordinary
dusting and cleaning, emptying of waste baskets and vacuuming. In addition,
Tenant shall provide an adequate sized dumpster for the storage of refuse in the
location acceptable to Landlord. Tenant shall arrange for the removal of such
refuse and periodic cleaning of such dumpster and the areas immediately adjacent
thereto.
ARTICLE 18. PERSONAL PROPERTY TAXES. During the term hereof Tenant shall
pay prior to delinquency all taxes assessed against and levied upon fixtures,
furnishings, equipment and all other personal property of Tenant as well as any
alterations or leasehold improvements contained in the Premises and when
possible Tenant shall cause said fixtures, furnishings and equipment to be
assessed and billed separately from the real property of Landlord.
ARTICLE 19. DEFAULT.
19.1 Action Upon Default. In the event of any failure of Tenant to pay any
Rent due hereunder within five (5) days after the same shall be due or any
failure to perform any other of the terms, conditions or covenants of this Lease
to be observed or performed by Tenant for more than ten (10) days after written
notice of such default shall have been given to Tenant or if Tenant or any
guarantor of the Lease shall become bankrupt or insolvent or file any debtor
proceedings or take or
Page -13-
have taken against Tenant or any guarantor of this Lease in any court pursuant
to any statute either of the United States or any state a petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant's or any such guarantor's property or if
Tenant or any such guarantor makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement or if Tenant shall abandon said
Premises or suffer this Lease to be taken under any writ of execution, Landlord,
besides other rights or remedies it may have, shall have the immediate right of
re-entry and may remove all persons and property from the Premises and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Tenant, all without service 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. Any two (2) failures by
Tenant to observe and perform any provisions of this Lease during any twelve
(12) month period of the term, as such may be extended, shall constitute, at the
option of Landlord, a separate and non-curable default.
19.2 Landlord Options; Reletting. 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
alterations and repairs as may be necessary in order to relet the Premises and
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 such reletting, all rentals received by Landlord from such
reletting shall be applied, first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord, second, to the payment of any costs
and expenses of such alterations and repairs, third, to the payment of rent due
and unpaid hereunder, and the residue, if any, shall be held by Landlord and
applied toward payment of future rent as the same may become due and payable
hereunder. If such rentals 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 of competent jurisdiction. Notwithstanding any
such reletting without termination, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, 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 from Tenant to Landlord.
19.3 Use of Property. In the event of default, all Tenant's fixtures,
furniture, equipment, improvements, additions, alterations and other personal
property shall remain on the subject Premises and in that event and continuing
during the length of said default, Landlord shall have the right to take the
exclusive possession of the same and to use the same, rent or charge free, until
all defaults are cured, or, at its option, at an time during the term of this
Lease, to require Tenant to forthwith remove the same, and Tenant hereby waives
all rights to notice and all common law and statutory claims and causes of
actions which it may have against Landlord subsequent to such date as regards to
storage, distribution, damage, loss of use and ownership of the personal
property affected by the terms of this Article. Tenant acknowledges Landlord's
need to relet the Premises upon termination of this Lease for repossession of
the Premises and understands that the forfeitures and waivers provided herein
are necessary to said reletting and to prevent Landlord incurring a loss for
inability to deliver the Premises to a prospective Tenant.
19.4 Landlord's Lien. It is agreed that Landlord shall have a first lien
on all of the equipment, fixtures, furnishings and other personal property
brought upon the Premises by Tenant for use thereon. In the event of a default
in the payment of any sum required to be paid under this Lease by Tenant,
Landlord shall have the right, at its option, without service 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, to take
possession of such personal property and sell the same at a private or public
sale and apply the proceeds thereof upon the sums owing to Landlord hereunder.
Tenant agrees to execute and deliver to Landlord during the duration of this
Lease such further instruments as Landlord may reasonably deem necessary or
desirable to accomplish or facilitate the
Page -14-
arrangement contemplated herein or to perfect or continue the perfection of the
interests of Landlord hereunder, including UCC Financing Statements and
Continuation Statements. Tenant agrees that for purposes of the Utah Uniform
Commercial Code, this Lease shall also constitute a Security Agreement. Tenant
hereby designates Landlord as Tenant's attorney-in-fact for purposes of
executing such documents as may be necessary to perfect the lien and security
interest granted hereunder.
19.5 Remedies Cumulative. The remedies given to Landlord in this section
shall be in addition and supplemental to all other rights or remedies which
Landlord may have under laws then in force.
ARTICLE 20. DESTRUCTION.
20.1 Damage/Restoration. If the Building shall be partially damaged by
fire or other casualty insured against under Landlord's property damage
insurance policies, Landlord shall, upon receipt of the insurance proceeds,
repair the Building to a condition which is substantially similar to the
condition in existence prior to such casualty.
20.2 Exceptions to Obligation to Rebuild. Notwithstanding the foregoing,
however, if the Building is damaged as a result of flood, earthquake, nuclear
radiation or contamination, act of war or other risk which is not covered by
Landlord's insurance, or if the Premises or the Building are damaged to the
extent of thirty-three and one third percent (33-1/3%) or more of their then
replacement value, or if the repair of the Premises, or the Building, would
require more than one hundred twenty (120) days, Landlord shall either terminate
this Lease upon written notice given to Tenant within forty-five (45) days
following such casualty or commence as soon as is reasonably possible the
restoration of the Building.
20.3 Extent of Landlord's Obligations to Rebuild. Landlord's obligations
to restore shall in no way include any construction originally performed by
Tenant or subsequently undertaken by Tenant, but shall include solely that
property constructed by Landlord prior to commencement of the term hereof. The
cost of any repairs made by Landlord, pursuant to this Article 20 of this Lease,
shall be paid by Landlord utilizing available insurance proceeds. Tenant shall
reimburse Landlord upon completion of the repairs for any deductible for which
no insurance proceeds will be obtained under Landlord's insurance policy, or if
other premises are also repaired, a pro rata share based on total costs of the
repair equitability apportioned to the Premises. Tenant shall, however, not be
responsible to pay any deductible for which no insurance proceeds will be
obtained under Landlord's insurance policy, or if other premises are also
repaired, a pro rata share based on total costs of the repair equitability
apportioned to the Premises. Tenant shall, however, not be responsible to pay
any deductible or its share of any deductibles to the extent that Tenant's
payment would be in excess of $10,000.00 if Tenant's consent has not been
received by Landlord, unless such denial of consent by Tenant is unreasonable.
20.4 Tenant's Obligations. Unless this Lease is terminated, Tenant shall,
at its expense, repair the fixtures and improvements installed by it within the
Premises and repair or replace any of Tenant's furniture, equipment or other
personal property damaged by such casualty.
20.5 Abatement of Rent. In the event this Lease is not terminated and
Landlord undertakes to repair any portion of the Premises, until such repair is
complete, Basic Rent shall xxxxx proportionately as to the portion of the
Premises rendered untenable unless (i) Landlord shall make available to Tenant,
during the period of such repair, other space in the Building which is
reasonably suitable for the temporary conduct of Tenant's business, or (ii) the
damage being repaired was caused by the fault or negligence of Tenant or its
employees, agents, licensees or concessionaries.
20.6 Last Year of Term. Notwithstanding anything to the contrary contained
in this Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Building or the Premises when damage resulting from
any casualty covered under this Article occurs during the last 18 months of the
term of this Lease or any extension hereof.
ARTICLE 21. EMINENT DOMAIN. If all or more than 33-1/3% of the Premises or
all or a material portion of the Common Areas shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, or
transfer in lieu thereof, either party hereto shall have the right, at its
option, to terminate this Lease as of the date title vests in the condemning
entity. Landlord shall be entitled to any award, or other payment made in
connection with such
Page -15-
condemnation. Tenant, however, shall have the right to pursue a claim in any
condemnation proceeding against the condemning authority (but not against
Landlord) for compensation for any resulting damages to Tenant's business, trade
fixtures and personal property (but not for any diminution or loss of Tenant's
leasehold estate). If a part of the Premises shall be so taken or appropriated
and this Lease is not thereafter terminated, the rental thereafter to be paid
shall be reduced in the proportion that the area of the Premises so taken bears
to the entire Premises. Notwithstanding the foregoing, however, before Tenant
may terminate this Lease by reason of a taking or appropriation as described
above, such taking or appropriation shall be of such an extent and nature as to
substantially handicap, impede or impair Tenant's use of the Premises for a
period in excess of ninety (90) days (assuming Landlord shall promptly commence
any repairs necessary to restore the remaining Premises to a complete
architectural unit). If any material part of the Building other than the
Premises shall be so taken or appropriated, Landlord shall have the right, at
its option, to terminate this Lease. Landlord shall be entitled to the entire
condemnation award or payment attributable to any such taking of the Building or
to any taking of any portion of the Common Areas.
ARTICLE 22. MORTGAGE REQUIREMENTS.
22.1 Tenant's Right Subordinate. This Lease and all rights of Tenant under
this Lease are hereby subordinate hereunder to any lien of any mortgage or
mortgages or lien or other security interest resulting from any other method of
financing or refinancing, now or hereafter in force against the land and/or
buildings hereafter placed upon the land of which the Premises are a part and to
all advances made or thereafter to be made upon the security thereof. The
provisions of this Article notwithstanding, so long as Tenant is not in default
hereunder, this Lease shall remain in full force and effect for the full term
hereof and shall not be terminated as a result of any foreclosure or sale or
transfer in lieu of such proceedings pursuant to a mortgage or other instrument
to which Tenant has subordinated its rights pursuant hereto.
22.2 Attornment. In the event of the sale or assignment of Landlord's
interest in the buildings of which the Premises are a part, or in the event of
any proceeding, brought for the foreclosure of, or in the event of exercise of
the power of sale under any mortgage or other security instrument made by
Landlord covering the Premises, Tenant shall attorn to the assignee or purchaser
and recognize such purchaser as Landlord under this Lease.
22.3 Notice and Cure. Tenant agrees to give any mortgagees (as defined
below), by registered mail, a copy of any notice of default served by Tenant
upon Landlord, provided that prior to such notice, Tenant has been notified, in
writing (by way of a Notice of Assignment of Rents and Leases or otherwise) of
the addresses of any such mortgagees. Tenant further agrees that if Landlord
shall have failed to cure such default within the time set forth in this Lease,
then any such mortgagees shall have an additional thirty (30) days within which
to cure such default or if such default cannot be cured within that time, then
such additional time as may be necessary, if within such thirty (30) days, any
such mortgagee has commenced and is diligently pursuing the remedies necessary,
to cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such "mortgagee" shall mean the holder of any mortgage,
the beneficiary under any deed of trust or the holder of any other security
interest which encumbers the Building.
ARTICLE 23. RULES, REGULATIONS AND RESTRICTIVE COVENANTS. Tenant shall
faithfully observe and comply with the Rules, Regulations and Restrictive
Covenants attached hereto as Exhibit "C" and all reasonable modifications of and
additions thereto from time to time put into effect by Landlord, provided
however, that any such promulgated or modified Rules, Regulations and/or
Restrictive Covenants shall not discriminate against Tenant in favor of other
lessees of portions of the Building. Landlord shall not be responsible to Tenant
for the nonperformance by any other lessee or occupant of the Building of any
such Rules, Regulations and Restrictive Covenants, but shall take reasonable
steps to secure such other Tenant's compliance.
ARTICLE 24. HOLDING OVER. If Tenant holds possession of the Premises after
the term of this Lease with Landlord's consent, and Landlord accepts Rent in the
amounts hereinafter provided, Tenant shall become a lessee from month-to-month
upon terms equal to the then existing terms hereunder, except that the Basic
Rent shall be the then existing Basic Rent then payable
Page -16-
hereunder at the end of the term (on a monthly basis) multiplied by one hundred
twenty-five percent (125%). Rent shall be paid in advance on or before the first
day of each month and Tenant shall continue in possession until such tenancy
shall be terminated by Landlord or until Tenant shall have given to Landlord a
written notice at least thirty (30) days prior to the date of termination of
such tenancy of its intention to terminate such tenancy.
ARTICLE 25. NOTICES. All notices and demands which may or are required to
be given by either party to the other hereunder shall be sent by overnight
courier or United States certified or registered mail, postage prepaid,
addressed to the parties at the addresses set forth in the Fundamental Lease
Provisions, or at such other address as may have been specified by a party
giving prior written notice to the other party.
ARTICLE 26. LANDLORD'S RIGHT TO CURE DEFAULTS. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease shall
be at its sole cost and expense and, except as otherwise specifically provided
herein, without any abatement of Rent. If Tenant shall fail to pay any sum of
money, other than Rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, and such failure
shall continue for five (5) days after Tenant has received notice thereof by
Landlord, Landlord may, but shall not be obligated to do so, and without waiving
any rights of Landlord or releasing Tenant from any obligations of Tenant
hereunder, make such payment or perform such other act. All sums to be paid by
Landlord and all necessary incidental costs together with interest thereon at
the rate of one and one-half percent (1-1/2%) per month from the date of such
payment by Landlord in connection with the performance of any such act by
Landlord shall be considered additional rent hereunder and, except as otherwise
in this Lease expressly provided, shall be payable to Landlord on demand or, at
the option of Landlord, in such installments as Landlord may elect and may be
added to any rent then due or thereafter becoming due under this Lease.
ARTICLE 27. FORCE MAJEURE. Landlord shall not be responsible or liable for
any delay in the observance or performance of any term or condition of this
Lease to be observed or performed by Landlord to the extent such delay results
from action of governmental authorities, civil commotions, strikes, fires, acts
of God, whether or not similar or the matters herein specifically enumerated and
any such delay shall extend by like time any period of performance by Landlord
and shall not be deemed a breach of or failure to perform this Lease or any
provision hereof.
ARTICLE 28. SECURITY DEPOSIT. Tenant will deposit with Landlord or its
agent the sum of $2,998.00, as security (and not as rent) for the full and
faithful performance by Tenant of all of Tenant's obligations hereunder. In the
event Tenant defaults in the performance of any of the terms hereof or abandons
the Premises, Landlord may use, apply or retain the whole or any part of such
security for the payment of any Rent or any other payment to be made by Tenant
hereunder which is in default or of any other cost, expense or liability which
Landlord may incur by reason of Tenant's default. If all or any portion of the
security deposit is so used or applied, Tenant shall, no later than five (5)
days after written demand is made therefor, deposit cash with the Landlord in an
amount sufficient to restore the security deposit to its original amount. In the
event of bankruptcy or other debtor-creditor proceedings, either voluntarily or
involuntarily instituted by or against Tenant, the security deposit shall be
deemed to be applied in the following order: to actual damages, obligations and
other charges, including any damages sustained by Landlord, other than unpaid
Rent, due to Landlord for all periods prior to the filing of such proceedings;
to accrued and unpaid Rent prior to the filing of such proceeding; and
thereafter to actual damages, obligations, other charges and damages sustained
by Landlord and Rent due the Landlord for all periods subsequent to such filing.
If Tenant shall, at the end of the term hereof, including extensions and
holdover periods, have fully and faithfully complied with all of the terms and
provisions of this Lease (but not otherwise) the security deposit, or any
balance thereof shall then be returned to Tenant. Tenant shall not be entitled
to interest on any such security deposit, and Landlord shall not be required to
maintain the deposit in a segregated account, unless required by applicable law.
Tenant shall not assign or encumber the funds deposited by it as security
hereunder and neither Landlord nor its successors or assigns shall be bound by
any such assignment or encumbrance. In the event of a sale of the Premises or
all or a portion of the Building, Landlord shall have the right to transfer the
security deposit to the buyer, and Landlord shall thereupon be relieved of all
obligations to return the security deposit to Tenant, and tenant agrees to look
solely to the buyer for the return of the security deposit.
Page -17-
ARTICLE 29. QUIET ENJOYMENT. Landlord covenants that so long as Tenant
performs all of its obligations hereunder it shall peacefully and quietly have,
hold and enjoy the Premises for the term hereof.
ARTICLE 30. SIGNS. Tenant shall not place on the Premises or in the
Building, any exterior signs or advertisements, nor any interior signs or
advertisements that are visible from the exterior of the premises, without
Landlord's prior written consent, which Landlord reserves the right to withhold
for any aesthetic reason in its sole judgment. All signing by Tenant shall be in
accordance with the sign criteria set forth in Exhibit _______ attached hereto.
The cost of installation and regular maintenance of any such signs approved by
Landlord shall be at the sole expense of Tenant. At the termination of this
Lease, or any extensions thereof, Tenant shall remove all its signs, and all
damage caused by such removal shall be repaired at Tenant's expense.
ARTICLE 31. SURRENDER OF LEASE. The voluntary or other surrender of this
Lease by Tenant, or a mutual cancellation thereof, shall not work as a merger,
and shall, at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
ARTICLE 32. ESTOPPEL CERTIFICATES AND FINANCING. Within ten (10) days of
request therefor by Landlord, Tenant shall execute a written statement
acknowledging the commencement and termination dates of this Lease, that it is
in full force and effect, has not been modified (or if is has stating such
modifications), and providing any other pertinent information as Landlord or its
agent might reasonably request. Failure to comply with this Article shall be a
material breach of this Lease by Tenant giving Landlord all rights and remedies
under Article 19 hereof, as well as a right to damages caused by the loss of a
loan or sale which may result from such failure by Tenant.
ARTICLE 33. MISCELLANEOUS
33.1 Successors and Assigns. The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
33.2 Arbitration. The parties agree that in the event a dispute arises
with respect to this Lease, and the parties, after good faith efforts, have
failed to resolve the dispute among themselves, that such dispute will be
submitted to arbitration pursuant to the rules then in force of the American
Arbitration Association, or a mutually acceptable alternative organization. If
reasonably necessary, judgment upon an arbitration award may be entered in any
court having jurisdiction.
33.3 Attorneys' Fees. In the event that at any time during the term of
this Lease either Landlord or Tenant institutes any action or proceeding against
the other relating to the provisions of this Lease or any default hereunder,
then the unsuccessful party in such action or proceeding agrees to reimburse the
prevailing party therein for the reasonable expense of attorneys' fees and
disbursements incurred therein by the prevailing party. In the event that at any
time during the term of this Lease, Landlord consults with an attorney with
respect to a delinquency or nonperformance of Tenant or serves Tenant with a
notice to pay (or perform) or quit and Tenant subsequently cures, or is
permitted by Landlord to cure, such delinquency or nonperformance, Tenant shall
pay to Landlord all of Landlord's reasonable service of process fees, filing
fees and attorneys' fees.
33.4 Time. Time is of the essence of this Lease with respect to each and
every Article, Section and Subsection hereof.
33.5 Waiver. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of the same or any other
term, covenant or condition or any subsequent breach of the same of any other
term, covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not constitute a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, other than the failure
of Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent.
Page -18-
33.6 Applicable Law. This Lease shall be governed by and construed in
accordance with Nevada law.
33.7 Separability. The invalidity or enforceability of any provision
hereof shall not affect or impair any other provision hereof.
33.8 Entire Agreement. This Lease and the Exhibits, Riders and Addenda, if
any attached hereto and the rules and regulations adopted pursuant to Article 23
above constitute the entire agreement between the parties. All Exhibits, Riders
or Addenda mentioned in this Lease are incorporated herein by reference. No
subsequent amendment to this Lease shall be binding upon Landlord or Tenant
unless reduced to writing and signed. Submission of this Lease for examination
does not constitute an option for the Premises and becomes effective as a Lease
only upon execution and delivery thereof by Landlord to Tenant. If any provision
contained in a River or Addendum is inconsistent with a provision in the body of
this Lease, the provision contained in said Rider or Addendum shall control. It
is hereby agreed that this Lease contains no restrictive covenants binding on
other lessees or exclusive use provisions in favor of Tenant. There are no
representations or promises by either party to the other except as are
specifically set forth herein. This Lease supersedes and revokes all previous
conversations, negotiations, arrangements, letters of intent, writings,
brochures, understandings, and information conveyed, whether oral or in writing,
between the parties hereto or their respective representatives or any agents of
them. The captions and section numbers appearing herein are inserted only as a
matter of convenience and are not intended to define, limit, construe or
describe the scope or intent of any Section or Article.
33.9 Terminology. The term "Landlord" as used herein shall include the
agent or agents of Landlord. The term "Tenant" as used herein shall include the
plural as well as the singular and shall include the masculine, feminine and
neuter. If there is more than one Tenant, the obligations of Tenant hereunder
shall be joint and several.
33.10 No Recording by Tenant. Tenant shall not record this Lease or a
Memorandum thereof without the written consent of Landlord. Landlord may file
this Lease for record with the Recorder of the County in which the Building is
located.
33.11 Authority of Signatories. Each person executing this Lease
individually and personally represents and warrants that he is duly authorized
to execute and deliver the same on behalf of the entity for which he is signing
(whether it be a corporation, general or limited partnership or otherwise) and
that this Lease is binding upon said entity in accordance with its terms.
33.12 Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of an amount less than is due hereunder shall be deemed to be other than payment
towards or on account of the earliest portion of the amount then due, nor shall
any endorsement or statement on any check or payment (or any letter accompanying
any check or payment) be deemed an "accord and satisfaction" (or payment in
full), and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such amount or pursue any other
remedy provided herein. Any statement on any check or instrument or any
accompanying written communication rendered by Tenant to Landlord, claiming full
satisfaction of a claim, shall be sent to the following designated person and
address:
Xxxx Xxxxxxxx
HB Properties
0000 00xx Xxxxxx
Xxxxxxx, XX 00000
ARTICLE 34. LANDLORD'S ACCEPTANCE. Landlord's execution of this Lease is
subject to Tenant providing financial statements of the Tenant and/or
Guarantor(s) which are acceptable to the Landlord.
ARTICLE 35. GUARANTEE. FOR VALUE RECEIVED, the undersigned hereby
unconditionally and irrevocably guarantees the prompt and faithful performance
by Tenant of all of the obligations of the Tenant as set forth in the aforesaid
Lease.
Page -19-
LANDLORD TENANT
HB Properties Meadow Valley Corporation, Inc.
/s/ XXXX XXXXXXX /s/ XXXXXX XXXXXX
--------------------------- ---------------------------
By: Xxxx Xxxxxxx, Partner By: Xxxxxx Xxxxxx, Area Manager
00-0000000 00-000-0000
--------------------------- ---------------------------
TAX ID #: TAX ID #:
7/12/01 7/15/01
--------------------------- ---------------------------
Date Date
Address: 0000 00xx Xxxxxx Address: 0000 Xxxxx 00xx Xxxxxx, "X-00"
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
IN WITNESS WHEREOF, Landlord and Tenant executed this Lease as of the date
first above written.
AFFIX CORPORATE
SEAL (HERE)
Page -20-
ADDENDUM 1
This Addendum 1 to Lease is executed concurrently with and is part of that
certain Lease dated July 9, 2001 and hereinafter referred to as "Lease", which
is attached hereto, by and between HB Properties ("Landlord") and Meadow Valley
Corporation, Inc., an Arizona Corporation ("Tenant") for that Property known as
0000 Xxxxxxx Xxxxxx, Xxxxx "X", Xxxxx Xxx Xxxxx, XX 00000. In the event of any
conflict between this Addendum 1 to Lease and the Lease, the provisions of this
Addendum 1 to Lease shall prevail. Unless otherwise provided, all capitalized
terms shall have the same meaning as set forth in the Lease.
1. TENANT IMPROVEMENTS: Landlord shall provide Tenant with approximately
1,914 square feet of HVAC office space as shown on attached Exhibit
"B", per Brimont Construction Work letter and Tenant's specifications
attached as Exhibit "B-1". Landlord's cost for said work shall not
exceed $97,310.00. In addition, Landlord shall provide Tenant with
doors, frames and hardware with a budget not to exceed $1,400.00.
Landlord shall contract for all tenant improvement work directly with
a licensed and bonded contractor and said work shall comply with
current building codes.
2. BASE RENT: The base rent as specified in Section 1.06 of the lease
shall be as follows:
Month 1-12 $2,998.00 per month, plus CAM Charges
Months 13-24 $3,088.00 per month, plus CAM Charges
Months 25-36 $3,180.00 per month, plus CAM Charges
Months 37-48 $3,276.00 per month, plus CAM Charges
Months 49-60 $3,374.00 per month, plus CAM Charges
3. FINANCIAL INFORMATION: Tenant shall furnish to Landlord 1999, 2000 and
current year balance sheet and income statements.
4. TIME IS OF THE ESSENCE: In the event this lease is not executed by
Tenant on or before July 20, 2001, this lease agreement shall become
null and void.
5. HAZARDOUS WASTE: Landlord agrees to disclose to Broker and to
prospective tenants any and all information which Landlord has
regarding present and future zoning and environmental matters
affecting the property and regarding the condition of the property,
including, but not limited to structural, mechanical and soils
conditions, the presence and location of asbestos, PCB transformers,
other toxic, hazardous or contaminated substances, and underground
storage tanks in, on, or about the property. Broker is authorized to
disclose any such information to prospective tenants.
6. AMERICANS WITH DISABILITIES ACT: Please be advised that an owner or
tenant of real property may be subject to the Americans With
Disabilities Act (the ADA), a Federal law codified at 42 USC Section
12101 et seq. Among other requirements of the ADA that could apply to
your property, Title III of the ADA requires owners and tenants of
"public accommodations" to remove barriers to access by disabled
persons and provide auxiliary aids and services for hearing, vision or
speech impaired persons. The regulations under Title III of the ADA
are codified at 28 CFR Part 36.
The Industrial Property Group (IPG) recommends that you and your
attorney review the ADA and the regulations and, if appropriate, your
proposed lease agreement to determine if this law would apply to you,
and the nature of the requirements. These are legal issues. You are
responsible for conducting your own independent investigation of these
issues. The Industrial Property Group cannot give you legal advise on
these issues.
LANDLORD TENANT
HB Properties Meadow Valley Corporation, Inc.
/s/ XXXX XXXXXXX /s/ XXXXXX XXXXXX
-------------------------- ---------------------------
By: Xxxx Xxxxxxx, Partner By: Xxxxxx Xxxxxx, Area Manager
00-0000000 00-0000000
-------------------------- ---------------------------
TAX ID #: TAX ID #:
Address: 0000 00xx Xxxxxx Address: 0000 Xxxxx 00xx Xxxxxx, "X-00"
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
AFFIX CORPORATE
SEAL (HERE)
CONSTRUCTION OF IMPROVEMENTS BY LANDLORD LEASE RIDER
This Rider is attached to and made part of that certain Industrial Real Estate
Lease dated July 9, 2001 between HB Properties, as Landlord, and Meadow Valley
Corporation, Inc., as Tenant, covering the Property commonly known as 0000
Xxxxxxx Xxxxxx, Xxxxx "X", Xxxxx Xxx Xxxxx, XX 00000. ("Lease"). The terms used
in this Rider shall have the same definitions as set forth in the Lease. The
provisions of this Rider shall prevail over any inconsistent or conflicting
provisions of the Lease.
A. Description of Improvements. Landlord shall, at Landlord's expense,
construct certain improvements on or about the Property ("Work") in accordance
with certain plans and specifications attached hereto as Attachment "A" and
incorporated herein by this reference. Attachment "A" shall consist of
construction (bidset) drawings and specifications. Any such plans and
specifications shall be submitted to Tenant's facilities manager for prior
reasonable approval.
B. Preliminary Plans/Final Plans. If the plans and specifications attached
hereto are agreed upon as final plans and specifications, (a) initial here,
Landlord _______________ and Tenant ___________________, (b) such final plans
and specifications are hereinafter referred to as the "Final Plans," and (c) the
remainder of this Paragraph shall be inoperative. If the plans and
specifications attached hereto are preliminary plans, Landlord shall prepare
final working drawings and outlined specifications for the Work and submit such
plans and specifications to Tenant for its approval. Tenant shall approve or
disapprove such drawings and specifications within five (5) business days after
receipt from Landlord. Tenant shall have the right to disapprove such drawings
and specifications only if they materially differ from the plans and
specifications attached hereto. If Tenant disapproves such drawings and
specifications, Landlord and Tenant shall promptly meet in an attempt to resolve
any dispute regarding such drawings and specifications. If the parties are
unable to agree upon the final working drawings and specifications for the Work
on or before July 31, 2000, Landlord may, at Landlord's option, either (i)
terminate this Lease upon seven (7) days' prior written notice to Tenant, in
which case neither Landlord nor Tenant shall have further liability to the
other, or (ii) submit the matter to conclusive and binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Final working drawings and specifications prepared in accordance
with this Paragraph B and approved by Landlord and Tenant are hereinafter
referred to as the "Final Plans".
C. Completion of the Work. Landlord shall use its best efforts to complete the
Work described in the Final Plans prior to the scheduled Commencement Date set
forth in Section 1.05 of the Lease. Notwithstanding the date set forth in
Section 1.05, the Commencement Date shall be the date upon which the Work is
substantially completed and the Property is delivered to Tenant. For the
purposes of this Paragraph B, the Work shall be conclusively deemed to be
substantially completed when all Work described in the Final Plans is completed,
except for minor items of work (e.g., "pick-up work") which can be completed
with only minor interference with Tenant's conduct of business on the Property,
and there is a Certificate of Occupancy for the property.
D. Changes. Landlord's obligation to prepare the Property for Tenant's
occupancy is limited to the completion of the Work set forth in the plan and
specifications attached hereto as Attachment A. Landlord shall not be required
to furnish, construct or install any items not shown thereon. If Tenant requests
any change, addition or alteration ("Changes") in such plans and specifications
or in the construction of the Work, Landlord shall promptly give Tenant an
estimate of the cost of such Changes and the resulting delay in the delivery of
the Property to Tenant. Any request made by Tenant shall be from Tenant's real
estate department. Within five (5) business days after receipt of such estimate,
Tenant shall give Landlord written notice whether Tenant elects to proceed with
such Changes. If Tenant notifies Landlord in writing that Tenant elects to
proceed with such Changes and if Landlord approves such Changes, Landlord shall,
at Tenant's expense, promptly make such Changes. If Tenant fails to notify
Landlord of its election within the five (5) business day period, Landlord may
complete the Work without making such Changes. Tenant shall pay or reimburse
Landlord for the costs of such Changes within fifteen (15) days after billing.
The Work shall be the property of Landlord and shall remain upon and be
surrendered with the Property upon the expiration of the Lease Term.
E. Tenant's Work. All work not within the scope of the Work, such as the
furnishing and installing of furniture, trade fixtures, telephone equipment and
office equipment shall be furnished and installed by Tenant at Tenant's sole
cost and expense. Tenant shall adopt a schedule which is consistent with the
schedule of Landlord's contractors and conduct its work in such a manner as to
maintain harmonious labor relations and not interfere with or delay the work of
Landlord's contractors. All work and labor to be performed by Tenant shall (a)
be carried out in a good and workmanlike manner; (b) comply with all
governmental rules, regulations, statutes and directives; (c) not commence until
proof of insurance reasonably required by Landlord is provided; and e) not
adversely affect the proper functioning of any of the mechanical, electrical,
sanitary and other service systems or installations of the Property or the
Building of which the Property is a part.
F. Building Permit. If for any reason Landlord is not able to obtain a
building permit for the Work based solely upon the Final Plans, or upon such
modifications thereto as are agreed to by Tenant and Landlord, then this Lease
shall be null and void and of no further force and effect. In either event,
Landlord shall forthwith return any sums paid to Landlord by Tenant and Landlord
and Tenant shall have no further obligations to or claims against the other
arising from this Lease.
G. Delays. In the event that Landlord is delayed in completing the Work as a
result of: (a) delays in the delivery of non-building standard materials,
finishes or installations requested by Tenant after plan approval; (b) changes
to the Final Plans requested by Tenant after approval thereof; (c) the carrying
out of work on the Property by Tenant or its subcontractors; or (d) any other
types of delays caused by Tenant, then, in such event, the Work shall be deemed
to be substantially completed upon the date Landlord would have completed the
Work in the absence of such delays as determined by Landlord's architect or
contractor, and, if not already commenced, the Lease Term shall commence.
