EX-99.1
3
e991.htm
MASTER LEASE AGREEMENT
Exhibit 99.1
MASTER LEASE AGREEMENT
JUNE 12, 2005
LANDLORD:
FRANKLIN SALTLAKE LLC
a
Utah LIMITED LIABILITY COMPANY
TENANT:
FRANKLIN DEVELOPMENT CORPORATION,
a
UTAH CORPORATION
LEASE AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS
2. CONDITION OF PROPERTIES
3. TERM
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3.2
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First
Option to Extend
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3.3
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Second
Option to Extend
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3.4
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Third
Option to Extend
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3.5
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Fourth
Option to Extend
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3.6
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Fifth
Option to Extend
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3.7
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Sixth
Option to Extend
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3.8
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Surrender of
Properties; Holding Over
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4.
RENT AND DEPOSITS
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4.3
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Base
Monthly Rent During the Extension Periods
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5. RENT ESCALATIONS
6. LANDLORD’S COVENANTS
7.
USE OF THE PROPERTIES; COMPLIANCE
8. PROPERTY
TAXES, OTHER CHARGES, ASSESSMENTS AND UTILITIES
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8.1
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Tenant’s
Required Payments
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8.2
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Payments Not
Required by Tenant
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8.5
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Tenant’s
Right to Contest Utility Charges, Contest Taxes and Seek Reduction of
Assessed Valuation of the Properties
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8.6
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Landlord Not
Required to Join in Proceedings or Contest Brought by Tenant
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8.7
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Tax
Period and Adjustment of Taxes
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9.
FURNITURE, FIXTURES AND EQUIPMENT
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9.1
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Furniture,
Fixtures, and Equipment
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9.3
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Removal
of Tenant’s Personal Property at Expiration of Lease
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10. MAINTENANCE
OF THE PROPERTIES
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10.1
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Obligation
to Maintain the Properties
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10.2
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Obligation
to Keep the Properties Clear
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11.
NBSP; REPAIRS AND ALTERATIONS
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11.1
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Right
to Make Alterations
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11.2
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Tenant
Shall Not Render Properties Liable For Any Lien
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12. INDEMNITY
AND INSURANCE
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12.2
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Insurance
Company Requirement
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12.3
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Insurance
Certificate Requirements
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12.4
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Minimum
Acceptable Insurance Coverage Requirements
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12.6
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Mortgage
Endorsement
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12.7
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Renewals,
Lapses or Deficiencies
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12.8
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Waiver
of Subrogation
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13. PARTIAL AND TOTAL DESTRUCTION OF THE PROPERTIES
14. CONDEMNATION
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14.1
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Condemnation
Damages
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14.2
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Termination
of Lease Due to Condemnation
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15.
ASSIGNMENT AND SUBLETTING
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15.1
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Tenant’s
Right of Assignment and Subletting
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15.2
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Landlord’s
Option to Preserve Subtenancies
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15.3
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Continuing
Obligation of Tenant
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15.4
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Landlord’s
Right of Assignment
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16.
DEFAULT AND TERMINATION
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16.4
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Right
of Landlord to Re-Enter
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16.5
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Surrender of
Properties
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17. RIGHT OF INSPECTION
18. WAIVER OF BREACH
19. NOTICES
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19.2
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Payments
Under Lease
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20.
RELATIONSHIP OF THE PARTIES
21.
SUBORDINATION, ATTORNMENT AND ESTOPPEL
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21.1
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Subordination
and Non-Disturbance
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21.3
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Attornment
of Subtenants.
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21.4
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Estoppel
Certificate
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22.
TENANT’S FINANCIAL STATEMENTS
23.
ATTORNEYS’ FEES
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23.1
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Recovery of
Attorneys’ Fees and Costs of Suit
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24.
CONSENT
25.
AUTHORITY TO MAKE LEASE; COVENANT OF QUIET ENJOYMENT
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25.1
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Full
Power and Authority to Enter Lease
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25.3
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No
Violation of Covenants and Restrictions
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26.
HAZARDOUS MATERIAL
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26.1
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Environmental
Compliance
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26.2
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Tenant’s
Responsibility for Hazardous Materials
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26.3
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Tenant’s
Environmental Indemnification
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26.4
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Tenant’s
Notification Obligation
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26.5
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Landlord’s
Right of Entry
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27.
RIGHT OF FIRST OFFER
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27.1
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Right
of First Offer
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28.
GENERAL PROVISIONS
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28.8
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Joint
and Several Liability
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| | 28.13 | Successors and Assigns | |
| | 28.14 | Independent Covenants | |
| | 28.16 | Limitation of Landlord's Liability | |
| | 28.17 | No Lease Until Accepted | |
Exhibit “A” - Property List; Legal Descriptions of Properties
Exhibit “B” - Memorandum of Lease
LEASE AGREEMENT
This LEASE AGREEMENT (this “Lease”), dated for reference purposes
only as of June __, 2005, is made by and between FRANKLIN SALTLAKE LLC,
LLC, a
Utah limited liability company (“Landlord”), and FRANKLIN DEVELOPMENT
CORPORATION, a
Utah corporation (“Tenant”), with reference to the recitals set
forth below.
RECITALS
A. Landlord is the owner of four (4) parcels of land in Salt
Lake County,
Utah, together with all improvements located thereon (including,
but not limited to, five (5) office buildings) and appurtenances, gores, strips
of land, easements, rights of way, usufructs, mineral rights, water rights,
fixtures and personal property thereunto belonging, which real properties are
identified on the “Property List,” attached hereto and incorporated herein as
Exhibit “A.” The terms “Property” and “Properties” as used in this Lease shall
mean certain or all (as the context may require) of the real properties
identified on the Property List. Also attached as part of Exhibit “A” are legal
descriptions of the Properties shown on the Property List.
B. Landlord and Tenant acknowledge and agree that this Lease
is a master lease for all of the Properties, and further acknowledge and agree
that such master lease was an inducement to Landlord and Tenant to enter into
this Lease.
C. Landlord desires to lease the Properties to Tenant, and
Tenant desires to lease the Properties from Landlord pursuant to the provisions
of this Lease.
1. DEFINITIONS
The following terms, when used in this Lease, shall have the
meaning set forth in this Section.
The term “Lease Year” shall mean the first twelve (12) full
calendar months after the Commencement Date (as defined in Section 3) and each
subsequent twelve (12) month period thereafter during the term and any
extensions. If the Commencement Date is other than the first day of the month,
then the first Lease Year also will include the partial month in which the
Commencement Date occurs and the partial month in which the twelfth month of the
Term falls.
The term “Hazardous Material” includes, but is not limited to, any
and all hazardous or toxic substances, Wastes, or materials used, generated,
stored or transported on or to the Property, including but not limited to
asbestos or asbestos-containing materials, petroleum and petroleum products
(including without limitation, gasoline and diesel), pollutants, pollution,
contaminants or contamination as those terms are commonly used or as defined or
designated under any Environmental Law present at levels in excess of those
allowed under Environmental Laws.
The term “Wastes” includes any and all chemical, petroleum, or
biological wastes, contaminants, emissions, discharges, or pollutants, whether
hazardous or non-hazardous, liquid, solid or gaseous, chemically active or
inert, and whether from any production, operation, maintenance, manufacturing,
processing, storage, use or other activity, where such waste is regulated under
federal, state, or local law which is designed to protect health, safety or the
environment.
The term “Environmental Laws” includes, but is not limited to all
federal, state and local statutes, regulations or ordinances, all rules,
policies, directives, orders or requirements of any government agency, and all
common law requirements, regulating, relating to, affecting or imposing
liability or other obligations concerning hazardous substances, hazardous
wastes, Hazardous Materials, Pollutants, Waste, human health or the
environment.
The term “Release” means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment of any Hazardous Material, Pollutants or
Waste.
The term “Pollutants” means any Hazardous Materials or Wastes
arising out of Tenant’s past, present or future use or occupancy of the
Properties, Tenant’s acts or omissions which include, but are not limited to,
any Hazardous Materials or Wastes transported to or from the Properties, used,
stored, spilled, released, discharged, disposed or emitted by Tenant or its
invitees and any Hazardous Materials Released at, under, from, or to the
Properties, including without limitation the migration of Hazardous Materials or
Waste to or from the Properties, during or before the Lease term. As used
herein, Tenant includes Tenant’s employees, agents, successors, sublessees,
assigns, contractors, subcontractors, or persons acting on behalf of
Tenant.
2. CONDITION OF
PROPERTIES
Landlord leases to Tenant and Tenant leases from Landlord the
Properties in their “AS IS, WHERE IS, WITH ALL FAULTS”
condition with no representations or warranties of conditions or suitability for
use whatsoever and on the terms and conditions set forth in this Lease. By
affixing its initials below, Tenant acknowledges and agrees that: (i) no
representations have been or are made, or responsibility assumed by Landlord,
with respect to the Properties or their operations, or the condition or repair
of the Properties, or as to any fact, circumstance, thing or condition which may
effect or relate to the Properties, except as expressly or specifically set
forth in this Lease; (ii) the Properties are leased in their “AS IS,
WHERE IS, WITH ALL FAULTS” condition as of the Commencement Date; and
(iii) other than as specifically set forth in this Lease, Landlord shall have no
obligation to alter, restore, improve, repair or develop the Properties, and
further shall have no obligation to remove therefrom any parties or items of
personal property, or other trade fixtures or equipment which may be upon the
Properties on the Commencement Date.
TENANT’S INITIALS___ LANDLORD’S INITIALS
__
3. TERM
The effective date (the “Commencement Date”) of this Lease shall
be the date upon which escrow is deemed closed pursuant to that certain Purchase
Agreement and Escrow Instructions of even date herewith by and between Tenant,
as “Seller,” and Landlord, as “Buyer” (“Purchase Agreement”). The expiration
date of the primary term (the “Primary Term”) of this Lease shall be the last
day of the month twenty (20) years following the Commencement Date, unless
extended as set forth in Section 3.2, Section 3.3, Section 3.4, Section
3.5, Section 3.6 and Section 3.7. References to the term of the Lease shall
include extensions, if any. Except as otherwise expressly stated, the terms and
conditions of this Lease shall remain in effect during any extension, renewal or
holdover of the Primary Term.
| 3.2 |
First
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the Primary Term, provided there are no material uncured Events of
Default (as defined in Section 17) existing under the Lease, Tenant may extend
the term of this Lease for an additional five (5) years by notifying Landlord of
such intention in writing (“First Extension Period”). The maximum term of the
Lease with one extension is twenty-five (25) years.
| 3.3 |
Second
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the First Extension Period, provided there are no material uncured
Events of Default existing under the extended Lease, Tenant may extend the term
of this Lease for an additional five (5) years by notifying Landlord of such
intention in writing (“Second Extension Period”). The maximum term of the Lease
with two extensions is thirty (30) years.
| 3.4 |
Third
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the Second Extension Period, provided there are no material
uncured Events of Default existing under the extended Lease, Tenant may extend
the term of this Lease for an additional five (5) years by notifying Landlord of
such intention in writing (“Third Extension Period”). The maximum term of the
Lease with three extensions is thirty-five (35) years.
| 3.5 |
Fourth
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the Third Extension Period, provided there are no material uncured
Events of Default existing under the extended Lease, Tenant may extend the term
of this Lease for an additional five (5) years by notifying Landlord of such
intention in writing (“Fourth Extension Period”). The maximum term of the Lease
with four extensions is forty (40) years.
| 3.6 |
Fifth
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the Fourth Extension Period, provided there are no material
uncured Events of Default existing under the extended Lease, Tenant may extend
the term of this Lease for an additional five (5) years by notifying Landlord of
such intention in writing (“Fifth Extension Period”). The maximum term of the
Lease with five extensions is forty-five (45) years.
| 3.7 |
Sixth
Option to Extend
|
On or before one hundred and eighty (180) days prior to the
expiration of the Fifth Extension Period, provided there are no material uncured
Events of Default existing under the extended Lease, Tenant may extend the term
of this Lease for an additional five (5) years by notifying Landlord of such
intention in writing (“Sixth Extension Period”). The maximum term of the Lease
with six extensions is fifty (50) years.
The First Extension Period, Second Extension Period, Third
Extension Period, Fourth Extension Period, Fifth Extension Period and Sixth
Extension Period collectively shall be referred to as the “Extension Periods.”
If Tenant elects to exercise an option to extend, it may exercise said option
with respect to any, some or all of the Properties subject to this Lease
immediately prior to the commencement of the applicable Extension Period.
| 3.8 |
Surrender
of Properties; Holding Over
|
On the last day or sooner termination of the term of this Lease,
Tenant shall quit and surrender the Properties, together with all alterations,
vacant and free of all tenancies and any leasehold rights therein and in good
condition and repair, normal wear and tear excepted, broom clean and free of
violations and Pollutants, and shall surrender all keys for the Properties to
Landlord at the place then fixed for the payment of rent and shall inform
Landlord of all combinations of locks, safes, and vaults, if any, in the
Properties. If Tenant does not do so, then after expiration of this Lease, it
will be a tenant at will upon the applicable conditions of this Lease. In such
event the rent payable shall be increased by ten percent (10%) over the rent
payable during the last full month of the term of this Lease that just ended,
prorated for any partial month. If the Properties are not surrendered as and
when aforesaid, Tenant shall indemnify Landlord from and against loss or
liability resulting from the delay by Tenant in so surrendering the Properties,
including without limitation, any claims made by any succeeding occupant or
purchaser founded on such delay, but excluding any consequential damages.
Tenant’s obligations under this Section shall survive the expiration or earlier
termination of this Lease.
4. RENT AND
DEPOSITS
This is a net-net-net (“triple net”) lease. It is the intention of
Landlord and Tenant that the Base Monthly Rent (as defined below) and other sums
and charges provided herein, including property taxes, repairs and routine
maintenance, and insurance, shall be absolutely net to Landlord. Except as
otherwise specifically set forth in this Lease, Tenant shall pay, as additional
rent, all Property Taxes and Other Charges as those terms are defined in Section
Eight hereunder, of every kind and nature against or relating to the use,
occupancy, possession, operation, maintenance or repair of the Properties, which
may arise or become due during the term hereof, whether or not now customary or
within the contemplation of the parties hereto.
The Base Monthly Rent to be allocated to each of the Properties
(the “Individual Building Rents”) is listed on Exhibit “A.” The parties
acknowledge and agree that the Individual Building Rents are included in Exhibit
“A” solely for the convenience and use of the parties in making certain
calculations as may be necessary from time to time pursuant to the provisions
hereof. By way of example only, in the event: (i) this Lease is terminated or
not extended pursuant to the terms hereof as to certain (but not all) of the
Properties; or (ii) of a conveyance by Landlord of Landlord’s interest in the
Lease as to one or more of the Properties prior to expiration or termination
hereof; or (iii) an assignment by Tenant of Tenant’s interest in this Lease as
to one or more of the Properties pursuant to the terms hereof, Base Monthly Rent
payable hereunder following said event shall be adjusted by the respective
Individual Building Rents.
Base Monthly Rent shall be payable by Tenant to Landlord in
advance in equal monthly installments commencing upon the Commencement Date and
on the first day of each calendar month thereafter, without prior notice,
invoice, demand, deduction or offset whatsoever. Landlord shall have the right
to accept all rent and other payments, whether full or partial, and to negotiate
checks and payments thereof without any waiver of rights, irrespective of any
conditions to the contrary sought to be imposed by Tenant. All rent shall be
paid to Landlord at the address to which notices to Landlord are given. The Base
Monthly Rent for any partial month shall be prorated based upon the actual
number of days in the period to be prorated.
| 4.3 |
Base
Monthly Rent During the Extension
Periods
|
In the event Tenant exercises its option(s) to extend the term of
this Lease as set forth above, the Base Monthly Rent shall be adjusted as
follows:
| 4.3.1 |
First
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the First Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the Primary Term
multiplied by one hundred and five percent
(105%).
|
| 4.3.2 |
Second
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the Second Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the First
Extension Period multiplied by one hundred and five percent (105%)
.
|
| 4.3.3 |
Third
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the Third Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the Second
Extension Period multiplied by one hundred and five percent
(105%).
|
| 4.3.4 |
Fourth
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the Fourth Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the Third
Extension Period multiplied by one hundred and five percent
(105%).
|
| 4.3.5 |
Fifth
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the Fifth Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the Fourth
Extension Period multiplied by one hundred and five percent
(105%).
|
| 4.3.6 |
Sixth
Extension Period: The Base Monthly Rent which is payable by Tenant during
the first year of the Sixth Extension Period shall be equal to the Base
Monthly Rent payable by Tenant during the last month of the Fifth
Extension Period multiplied by one hundred and five percent
(105%).
|
5. RENT
ESCALATIONS
Commencing with the sixth (6th) lease year and
continuing every year thereafter during the Term, Base Monthly Rent shall be
increased by two percent (2%) over the Base Monthly Rent in effect at the time
of the increase. Commencing with the second (2nd) lease year of any
Extension Period and continuing every year thereafter during said Extension
Period, the Base Monthly Rent shall be increased by two percent (2%) over the
Base Monthly Rent in effect at the time of the increase.
6. LANDLORD’S
COVENANTS
During the term of this Lease, Landlord shall not unreasonably
condition, withhold or delay its agreement to grant such utility, access or
other similar easements on over and above any of the Properties as Tenant may
reasonably request, provided, that such easements will not materially and
adversely interfere with Landlord’s ownership of, or the value of Landlord’s
interest in, such Properties.
7. USE OF THE
PROPERTIES; COMPLIANCE
Tenant may use the Properties for general office use, along with
related or ancillary uses and parking (“Initial Use”), or for such other use as
Tenant may determine in Tenant’s reasonable business judgment, provided that
such use: (i) is lawful; (ii) is in compliance with applicable environmental,
zoning and land use Laws, restrictions, and requirements, and Tenant obtains all
applicable permits for such uses prior to beginning the use; (iii) does not
violate matters of record or covenants, conditions or restrictions affecting the
Properties existing as of the date hereof or any matters of record or covenants,
conditions or restrictions hereafter created by or consented to by Tenant
applicable to the Properties; provided, however, Landlord shall not unreasonably
withhold its consent to future matters of record or restrictions that do not (i)
materially or adversely affect Tenant’s use and enjoyment of the Properties,
with materiality being determined based upon commercially reasonable standards,
(ii) reduce, xxxxx, diminish, lessen or limit any of Tenant’s rights under the
terms of, or reduce the value of Tenant’s leasehold estate created by, this
Lease, and (iii) otherwise result in any monetary impositions upon Tenant. A
change in use that is prohibited by the lender holding an encumbrance or lien on
the Properties is per se reasonably refused by the Landlord. In the event that
Tenant believes that Landlord has wrongfully withheld a consent pursuant to the
immediately preceding sentence, Tenant’s sole remedy shall be to seek relief
granting such consent. Tenant has satisfied itself, and represents to Landlord,
that its Initial Use is lawful and materially conforms to applicable zoning and
other use restrictions and regulations applicable to the Properties.
Tenant, at Tenant’s sole expense, promptly shall comply with all
applicable laws, statutes, ordinances, rules, regulations and orders and any
covenants and restrictions of record hereafter created by or consented to by
Tenant in effect during the term or any part of the term hereof, regulating the
use by Tenant of the Properties, including, without limitation, the obligation
at Tenant’s cost, to alter, maintain, or restore the Properties in compliance
and conformity with all laws relating to the condition, use or occupancy of the
Properties during the term (including, without limitation, any and all
requirements as set forth in the Americans with Disabilities Act) and regardless
of (i) whether such laws require structural or non-structural improvements, (ii)
whether the improvements were foreseen or unforeseen, and (iii) the period of
time remaining in the term.
8. PROPERTY TAXES, OTHER
CHARGES, ASSESSMENTS AND UTILITIES
| 8.1 |
Tenant’s
Required Payments
|
Tenant shall (i) pay at least ten (10) days before delinquency and
as additional rent, all Property Taxes and Other Charges (as such terms are
defined herein) that accrue during or are otherwise allocable to the term of
this Lease; and (ii) concurrently provide Landlord with evidence of payment
thereof. Property taxes and Other Charges together are referred to herein as
“Taxes.”
| 8.1.1 |
“Property
Taxes” shall mean all taxes, assessments, excises, levies, fees, and
charges (and any tax, assessment, excise, levy, fee, or charge levied
wholly or partly in lieu thereof or as a substitute therefor or as an
addition thereto) of every kind and description, general or special,
ordinary or extraordinary, foreseen or unforeseen, secured or unsecured,
whether or not now customary or within the contemplation of Landlord and
Tenant, that are levied, assessed, charged, confirmed, or imposed on or
against, or otherwise with respect to, the Properties or any part thereof
or any personal property used in connection with the Properties, which is
levied on the value of said Properties or personal property. It is the
intention of Landlord and Tenant that all new and increased taxes,
assessments, levies, fees, and charges be included within the definition
of Property Taxes for the purpose of this Lease, whether or not these
taxes, assessments, levies, fees and charges existed on the effective date
of this Lease.
|
| 8.1.2 |
“Other
Charges” shall mean all taxes, assessments, excises, levies, fees, and
charges other than Property Taxes (including, without limitation, common
area maintenance charges, charges relating to the cost of providing
facilities or services, and charges relating to documents or instruments
of record effecting or encumbering the Properties), whether or not now
customary or within the contemplation of Landlord and Tenant, that are
levied, assessed, charged, confirmed, or imposed upon, or measured by, or
reasonably attributable to (a) the Properties; (b) the cost or value of
Tenant’s furniture, fixtures, equipment, or personal property located in
the Properties or the cost or value of any leasehold improvements made in
or to the Properties by or for Tenant, regardless of whether title to such
improvements is vested in Tenant or Landlord; ; (c) the possession,
leasing, operation, management, maintenance, alteration, repair, use, or
occupancy by Tenant of the Properties; (d) any fees, charges, fines,
costs, assessments, taxes, demands, orders, directives, or other
requirements by any governmental agency asserting jurisdiction, or under
any Environmental Laws which arise from or relate to Tenant’s use of, or
Tenant’s activities at, the Properties, (e) this transaction or the
recording or cancellation of recording of any document to which Tenant is
a party creating or transferring an interest or an estate in the
Properties, and it includes (f) insurance, maintenance, and other costs
incurred by Tenant by which Landlord may
benefit.
|
| 8.1.3 |
In
addition to the foregoing, during the term of this Lease, Tenant
acknowledges and agrees it is obligated to and shall perform all
obligations of the owner of the Properties under, and pay all expenses
which the owner of the Properties may be required to pay in accordance
with, any reciprocal easement agreements or any other documents or
instruments of record now (or of record in the future if created or filed
by or with the consent of Tenant) affecting the Properties, herein
referred to collectively as the “REAs.” Tenant shall promptly comply with
all of the terms and conditions of the REAs during the term of this
Lease.
|
| 8.2 |
Payments
Not Required by Tenant
|
Notwithstanding anything to the contrary contained in this
Section 8, Tenant shall not be required to pay any state or federal income,
franchise or similar taxes of Landlord, or any state or federal estate,
succession, inheritance, or transfer taxes of Landlord.
If any assessment for a capital improvement made by a public or
governmental authority shall be levied or assessed against the Properties, and
the assessment is payable either in a lump sum or on an installment basis, then
Tenant shall have the right to elect the basis of payment; provided, however,
throughout the entire term of this Lease, Tenant shall pay all assessments that
become payable during or are otherwise allocable to the term of this
Lease.
Tenant shall promptly pay when due all charges for water, gas,
electricity, and all other utilities furnished to or used upon the Properties,
including all charges for installation, termination, and relocations of such
service. Landlord, at its option, may require Tenant to furnish Landlord with
evidence of payment of such charges. Tenant shall have the right to select the
utility providers for the Properties.
| 8.5 |
Tenant’s
Right to Contest Utility Charges, Contest Taxes and Seek Reduction of
Assessed Valuation of the Properties
|
Tenant, at Tenant’s sole cost and expense, shall have the right,
at any time, to seek a reduction in the assessed valuation of the Properties or
to contest any Property Taxes or utility charges that are to be paid by Tenant;
provided however, Tenant shall (i) give Landlord written notice of any such
intention to contest at least thirty (30) days before any delinquency could
occur; (ii) indemnify and hold Landlord harmless from all liability on account
of such contest; (iii) take such action as is necessary to remove the effect of
any lien which attached to any of the Properties or the improvements thereon due
solely to such contest, or in lieu thereof, at Landlord’s election, furnish
Landlord with adequate security for the amount of the Property Taxes due plus
interest and penalties, which may or may not be an escrow or impound account;
and (iv) in the event of a final determination adverse to Tenant, prior to
enforcement of a lien, foreclosure of a lien or sale to pay Property Taxes, pay
the amount involved together with all penalties, fines, interest, costs, and
expenses which may have accrued. Tenant may use any means allowed by law or
statute to protest Taxes or utility charges as defined in this Section 8 as long
as Tenant remains current as to all other terms and conditions of this Lease. If
the protested Taxes have not been paid, then at Landlord’s request Tenant shall
furnish to Landlord a surety bond issued by an insurance company qualified to do
business in the state where the Property is located. The amount of bond shall
equal one hundred ten percent (110%) of the total amount of Taxes in dispute.
The bond shall hold Landlord and the Property harmless from any damage arising
out of the proceeding or contest and shall insure the payment of any judgment
that may be rendered. If Tenant seeks a reduction or contests any Taxes or
utility charges, the failure on Tenant’s part to pay the Taxes or utility
charges shall not constitute a default as long as Tenant complies with the
provisions of this Section.
| 8.6 |
Landlord
Not Required to Join in Proceedings or Contest Brought by
Tenant
|
Landlord shall not be required to join in any proceeding or
contest brought by Tenant unless the provisions of the law require that the
proceeding or contest be brought by or in the name of Landlord or the owner of
the Property. In that case, Landlord shall join in the proceeding or contest or
permit it to be brought in Landlord’s name as long as Landlord is not required
to bear any cost. Tenant, on final determination of the proceeding or contest,
shall immediately pay or discharge any decision or judgment rendered, together
with all costs, charges, interest, and penalties incidental to the decision or
judgment.
| 8.7 |
Tax
Period and Adjustment of Taxes
|
For the purpose of this Lease, the calculation of Taxes payable by
Tenant for any particular Lease Year shall be based upon the Taxes actually due
and payable in accordance with applicable law during such Lease Year even though
such Taxes may relate to a different period of time (such as the taxing
authority’s fiscal year). [For example, if Taxes are payable on or before
November 30 of each year with respect to the fiscal period beginning on the
immediately preceding January 1 and ending on the immediately succeeding
December 31, then, for all purposes of this Lease, Taxes for Lease Year “X”
refers to the Taxes due and payable on November 30 of such Lease Year even
though the same may relate in part to both such Lease Year and the succeeding
Lease Year.] The parties hereby understand that, notwithstanding the foregoing,
Taxes payable by Tenant in accordance with the terms of this Lease shall be
appropriately adjusted for any partial Lease Year.
9. FURNITURE, FIXTURES AND
EQUIPMENT
| 9.1 |
Furniture,
Fixtures, and Equipment
|
During the term Tenant may, at Tenant’s expense, place or install
such machinery, appliances, furniture, equipment and other articles of personal
property (collectively, “Tenant’s Personal Property”) on the Properties as may
be needed for the conduct of Tenant’s business.
Tenant may finance Tenant’s Personal Property at any time and from
time to time during the term of this Lease. Upon request of Tenant, Landlord
shall execute and deliver to any lender a Landlord’s Waiver in such form as
shall be reasonably acceptable to Landlord. Tenant may replace or remove
Tenant’s Personal Property from time to time as Tenant may determine during the
term of this Lease.
| 9.3 |
Removal
of Tenant’s Personal Property at Expiration of
Lease
|
At the expiration or earlier termination of the Lease, Tenant’s
Personal Property may be removed at the option of Tenant. In the alternative, at
the expiration or earlier termination of the Lease, Landlord may require Tenant
to remove Tenant’s Personal Property within a reasonable time following receipt
of written notice from Landlord. Tenant immediately shall make such repairs and
restoration of the Properties as are necessary to repair any damage to the
Properties from the removal of Tenant’s Personal Property. Any of Tenant’s
Personal Property not so removed shall be deemed abandoned, and Landlord may
cause such property to be removed from the Properties and disposed of, but the
cost of any such removal shall be borne by Tenant. The provisions of this
paragraph shall survive the expiration or termination of this Lease.
Tenant shall have the right, without Landlord’s consent, to affix
signs customarily used in its business upon the windows, doors, interior, and
exterior walls of the Properties, and such free-standing signs as may seem
appropriate to Tenant and are authorized by any governmental authority having
jurisdiction over the Properties and permitted by any covenants, conditions, and
restrictions encumbering the Properties. Upon the expiration or earlier
termination of the Lease, Tenant shall remove such signs within a reasonable
time following receipt of written notice from Landlord. Tenant immediately shall
make such repairs and restoration of the Properties as are necessary to repair
any damage to the Properties from the removal of the signs.
10. MAINTENANCE OF THE
PROPERTIES
| 10.1 |
Obligation
to Maintain the Properties
|
During the term of this Lease, Tenant shall, at its own expense,
keep and maintain the entirety of the Properties in good order and repair,
including, but not limited to, the interior, exterior, foundations, floors,
walls, roof and structure of the building; the sidewalks, curbs, trash
enclosures, landscaping with sprinkler system (if installed), light standards,
parking areas which are a part of the Properties, and any common areas required
to be maintained by Landlord under a common area maintenance agreement or
similar recorded document. Tenant shall make such repairs and replacements as
may be necessary, regardless of whether the benefit of such repair or
replacement extends beyond the term of this Lease. The Properties shall be
returned to Landlord at the termination or expiration of this Lease in good
condition, ordinary wear and tear excepted. In the event of destruction of the
Properties by fire or other casualty, the condition of the Properties upon
termination of this Lease shall be governed by Section 13. Landlord shall have
no obligation whatsoever to alter, remodel, improve, repair, renovate, retrofit
or maintain the Properties or any portion thereof.
| 10.2 |
Obligation
to Keep the Properties Clear
|
Tenant shall keep the Properties, including sidewalks adjacent to
the Properties and loading area allocated for the use of Tenant, clean and free
from rubbish and debris at all times. Tenant shall store all trash and garbage
within the Properties and arrange for regular pickup and cartage of such trash
and garbage at Tenant’s expense.
11. REPAIRS AND
ALTERATIONS
| 11.1 |
Right
to Make Alterations
|
At all times during the term of this Lease, except as provided in
Section 16, Tenant shall have the right to make alterations, additions and
improvements (collectively, “Alterations”) to the interior or exterior of the
Properties and parking areas adjacent to the Properties as more particularly set
forth herein. Tenant shall have the right to make Alterations in its reasonable
business judgment at any time to the extent such Alterations are non-structural
or are structural in nature but shall cost less than the Alteration Threshold
(as defined below), provided, as to structural alterations that are less than
the Alteration Threshold but more than the Notice Threshold (as defined below),
Tenant shall provide notice to Landlord of any such alterations no later than
twenty (20) business days prior to beginning such alterations, such that the
Landlord has sufficient time to post a notice of non-responsibility. Alterations
that will cost in excess of the Alteration Threshold in the aggregate and that
are structural in nature shall not be made by Tenant without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, delayed
or conditioned. Any Alterations that may be made or installed by Tenant shall
remain upon the Properties and, at the expiration or earlier termination of this
Lease, shall be surrendered with the Properties to Landlord, except to the
extent involving Tenant’s Personal Property. All Alterations shall be
accomplished by Tenant in a good workmanlike manner, in conformity with
applicable laws, regulations and covenants, conditions and restrictions
encumbering the Properties, and by a licensed contractor. At least twenty (20)
days prior to commencement of any work that requires Landlord’s approval, Tenant
shall provide to Landlord copies of all required permits and governmental
approvals, and within thirty (30) days following such work, Tenant shall provide
to Landlord copies of all available completion of inspection reports and proof
of payment of all labor and materials, including, without limitation, a copy of
the general contractor’s and subcontractors’ final unconditional lien releases.
Tenant shall pay when due all claims for such labor and materials and shall give
Landlord at least twenty (20) days’ prior written notice of the commencement of
any such work the cost of which shall exceed the Notice Threshold. Landlord may
enter upon the Properties, in such case, for the purpose of posting appropriate
notices, including, but not limited to, notices of non-responsibility. For
purposes of this Section 11.1, the term “Alteration Threshold” shall initially
mean Two Hundred Fifty Thousand Dollars ($250,000.00) and the term “Notice
Threshold” shall initially mean Fifty Thousand Dollars ($50,000.00).
| 11.2 |
Tenant
Shall Not Render Properties Liable For Any
Lien
|
Tenant shall have no right, authority, or power to bind Landlord,
or any interest of Landlord in the Properties, nor to render the Properties
liable for any lien or right of lien for the payment of any claim for labor,
material, or for any charge or expense incurred to maintain, to repair, or to
make Alterations to the Properties. Tenant shall in no way be considered the
agent of Landlord in the construction, erection, modification, repair, or
alteration of the Properties. Notwithstanding the above, Tenant shall have the
right to contest the legality or validity of any lien or claim filed against a
Property. No contest shall be carried on or maintained by Tenant after the time
limits in the sale notice of the Property for any such lien or claim unless
Tenant (i) shall have duly paid the amount involved under protest prior to such
time limits; (ii) shall have procured and recorded a lien release bond from a
bonding company acceptable to Landlord in an amount not less than one hundred
ten percent (110%) of the amount being contested; or (iii) shall have procured a
stay of all proceedings to enforce collection. Upon a final adverse
determination of any contest, Tenant shall pay and discharge the amount of the
lien or claim determined to be due, together with any penalties, fines,
interest, cost, and expense which may have accrued, and shall provide proof of
payment to Landlord.
Tenant
shall pay or otherwise cause to be discharged and satisfied in full such that
the Landlord obtains a complete release to its satisfaction of any and all
liens, claims, demands, bills, costs, items, actions or impounds against the
Properties which are caused by Tenant’s construction, alteration, addition to,
or improvement of the Properties, prior to foreclosure or other loss to the
Landlord because of such liens, claims, demands, bills, costs, items, actions or
impounds, in the event that the Tenant does not elect the protest procedures in
paragraph 11.2.
12. INDEMNITY AND
INSURANCE
Subject to the last sentence of this Section 12.1, Tenant
shall indemnify, defend, and protect Landlord, and hold Landlord harmless from
any and all loss, cost, damage, expense and/or liability (including, without
limitation, court costs and reasonable attorneys’ fees) incurred in connection
with or arising at any time from any cause whatsoever in or about the
Properties, other than damages proximately caused by reason of the gross
negligence or willful misconduct of Landlord or its agents and employees,
including, without limiting the generality of the foregoing: (i) any default by
Tenant in the observance or performance of any of the terms, covenants, or
conditions of this Lease on Tenant’s part to be observed or performed; (ii) the
use or occupancy of the Properties by Tenant, or any person claiming by,
through, or under Tenant; (iii) the condition of the Properties or any
occurrence or happening on the Properties from any cause whatsoever; or (iv) any
acts, omissions, or negligence of Tenant or any person claiming by, through, or
under Tenant, or of the contractors, agents, servants, employees, visitors, or
licensees of Tenant or any such person, in, on, or about the Properties, either
prior to or during the Lease term (including, without limitation, any holdovers
in connection therewith), including, without limitation, any acts, omissions, or
negligence in the making or performance of any alterations. Tenant further
agrees to indemnify and hold harmless Landlord, Landlord’s agents, and the
landlord or landlords under all ground or underlying leases, from and against
any and all loss, cost, liability, damage, and expense (including, without
limitation, reasonable attorneys’ fees) incurred in connection with or arising
from any claims by any persons by reason of injury to persons or damage to
property occasioned by any use, occupancy, condition, occurrence, happening,
act, omission, or negligence referred to in the preceding sentence. The
provisions of this Section shall survive the expiration or sooner termination of
this Lease with respect to any claims or liability occurring prior to such
expiration or termination, and shall not be limited by reason of any insurance
carried by Landlord and Tenant. Notwithstanding anything to the contrary
contained in this Section 12.1 or otherwise in this Lease, the foregoing
indemnity by Tenant shall not cover actions, events, conditions or omissions to
the extent (i) occurring after the termination of this Lease and the vacating of
such Property or Properties at issue by Tenant unless otherwise caused by
Tenant, or (ii) arising from the gross negligence or willful misconduct of
Landlord or its employees or agents, except to the extent caused by Tenant;
provided that said indemnification expressly applies to the Landlord’s
negligence, whether or not the court deems the negligence to be active or
passive in nature.
| 12.2 |
Insurance
Company Requirement
|
Insurance
required by this Lease shall be issued by companies holding a general
policyholder’s rating of A-VIII or better as set forth in the most current issue
of Best’s Insurance Guide and authorized to do business in the state in
which the Property is located. If this publication is discontinued, then another
insurance rating guide or service generally recognized as authoritative shall be
substituted by Landlord.
| 12.3 |
Insurance
Certificate Requirements
|
| 12.3.1 |
Tenant
shall deliver to Landlord evidence of the existence and amounts of the
insurance with additional insured endorsements and loss payable clauses as
required herein. Tenant shall deliver to Landlord an XXXXX Form 25-S
Certificate of Insurance in connection with Tenant’s liability
policy(ies), and an XXXXX Form 27 Evidence of Property Insurance in
connection with Tenant’s property policy(ies). No policy shall be
cancelable or subject to reduction of coverage or other modification
except after thirty (30) days’ prior written notice to Landlord. Neither
the issuance of any insurance policy required hereunder, nor the minimum
limits specified herein with respect to any insurance coverage, shall be
deemed to limit or restrict in any way the liability of Tenant arising
under or out of this Lease.
|
| 12.3.2 |
The
insurance required to be maintained herein may be carried under blanket
policies. The insurance shall provide for payment of loss jointly to
Landlord and Tenant.
|
| 12.3.3 |
In
connection with the subletting of one or more of the Properties, which
subletting is approved by Landlord, subtenant’s compliance with Tenant’s
insurance obligations shall fulfill Tenant’s obligations with respect
thereto.
|
| 12.4 |
Minimum
Acceptable Insurance Coverage
Requirements
|
| 12.4.1 |
Tenant
shall, at Tenant’s expense, obtain and keep in full force during the term
of this Lease a policy of combined single limit bodily injury and property
damage insurance written on an occurrence basis insuring Tenant (with
Landlord as an additional insured) against any liability or damage arising
out of ownership, use, occupancy, or maintenance of each of the Properties
and all of their appurtenant areas. The insurance shall be in an amount
not less than Five Million Dollars ($5,000,000.00) per occurrence, and Ten
million dollars ($10,000,000) in the aggregate; provided however,
following receipt of written notice from Landlord the limits of such
insurance shall be increased from time to time during the term of the
Lease to such amount as may be deemed commercially reasonable by Landlord;
provided, however, that such increases shall not exceed those required of
tenants in like properties in the Salt Lake City metropolitan area. The
policy shall provide blanket contractual liability coverage. However, the
limits of the insurance shall not limit the liability of Tenant. In
addition, Tenant shall, at Tenant’s expense, obtain and keep in full force
during the term of this Lease an umbrella liability policy in an amount
not less than Thirty Million Dollars ($30,000,000.00) in excess of primary
insurance. The insurance to be maintained by Tenant pursuant to this
Section 12.4.1 shall be primary and not contributory to any other
insurance maintained by Landlord.
|
| 12.4.2 |
Tenant
shall, at Tenant’s expense, obtain and keep in force during the term of
this Lease a “Special Form” (as such term is used in the insurance
industry) policy of insurance covering loss or damage to the Properties.
The insurance shall be in an amount not less than the full guaranteed
replacement cost of the building(s) (less slab, foundation, supports and
other customarily excluded improvements). The policy shall contain only
standard printed exclusions; include an agreed value endorsement waiving
any co-insurance penalty, and an ordinance or law coverage endorsement
covering increased costs resulting from changes in laws or codes, and
demolition and removal of the damaged structure, and it will contain a
changed conditions endorsement and an endorsement for insurance against
acts of terrorism. In no event shall any deductible payable in connection
with such policy, together with any other form of self-insurance, exceed
One Hundred Thousand Dollars ($100,000.00); provided, Tenant shall be
permitted to maintain a self-insured retention program so long as an
insurer, meeting the conditions described herein, is primarily liable for
such deductible to all third parties, including Landlord. The records and
books of such self-insured retention program shall be open to Landlord’s
inspection at all times. Landlord may disapprove of such self-insured
retention program if at any time it deems the program to contain
insufficient reserves to cover probable losses, under commercially
objective standards. In addition, if any of the Properties are located in
flood zone A or V (including any flood zone commencing with the letters A
or V) as defined by the Federal Emergency Management Agency (FEMA), or
earthquake zone 1, 2, or 3 as defined by the Insurance Services Office
(ISO), Tenant shall, at Tenant’s expense, obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or
damage due to earthquake and flood with respect to such
Properties.
|
| 12.4.3 |
Tenant
shall also obtain and keep in force during the term of this Lease a policy
of Business Interruption insurance covering a period of one (1) year. This
insurance shall cover all Taxes and insurance costs for the same period in
addition to one (1) year’s lease rent amount. Such policy shall be
maintained as an endorsement to the Tenant’s property and casualty
insurance policy to the extent that it is feasible to do
so.
|
| 12.4.4 |
Tenant
shall also obtain and keep in force during the term of this Lease a
worker’s compensation policy, insuring against and satisfying Tenant’s
obligations and liabilities under the worker’s compensation laws of each
state in which the Properties are located, including Employer’s Liability
insurance, in an amount of not less than One Million Dollars
($1,000,000.00).
|
Tenant shall name as additional insureds (by way of a CG 20 26
endorsement) and loss payees on all insurance (other than on the liability
policy), Landlord, Landlord's officers and directors, subsidiaries or affiliates
of, or any joint venture, partnership or corporation involving Landlord, and
Landlord's successor(s) and assignee(s) with an insurable interest under this
Lease, but solely as respects property leased by the Tenant from the
Landlord.
| 12.6 |
Mortgage
Endorsement
|
If requested by Landlord, the policies of insurance required to be
maintained hereunder shall bear a standard first mortgage endorsement in favor
of any holder or holders of a first mortgage lien or security interest in the
property with loss payable to such holder or holders as their interests may
appear.
| 12.7 |
Renewals,
Lapses or Deficiencies
|
Tenant shall, at least thirty (30) days prior to the expiration of
such policies, furnish Landlord with renewal certificates of insurance or
renewal binders. Should Tenant fail to provide to Landlord the renewals or
renewal binders, or in the event of a lapse or deficiency of any insurance
coverage specified herein for any reason, Landlord may immediately replace the
deficient insurance coverage with a policy of insurance covering the Properties
of the type and in the limits set forth above. Upon written notice from Landlord
of the placement of insurance, Tenant shall immediately pay to Landlord, as
additional rent, an amount equal to the total cost of premiums and expense of
such insurance placement. Tenant shall not do or permit to be done anything that
shall invalidate the insurance policies. If Tenant does or permits to be done
anything which shall increase the cost of the insurance policies, then upon
Landlord’s demand Tenant shall immediately pay to Landlord, as additional rent,
an amount equal to the additional premiums attributable to any acts or omissions
or operations of Tenant causing the increase in the cost of insurance.
| 12.8 |
Waiver
of Subrogation
|
Tenant hereby waives and releases any and all right of recovery
against Landlord, including, without limitation, employees and agents, arising
during the term of the Lease for any and all loss (including, without
limitation, loss of rental) or damage to property located within or constituting
a part of the Properties, which loss or damage arises from any type of peril
which is covered or could be covered by a Special Form policy. This waiver is in
addition to any other waiver or release contained in this Lease. Tenant shall
have its insurance policies issued in such form as to waive any right of
subrogation that might otherwise exist, and shall provide written evidence
thereof to Landlord upon written request.
13. PARTIAL AND
TOTAL DESTRUCTION OF THE PROPERTIES
In the event any part or all of the improvements on the Property
shall at any time during the term of this Lease be damaged or destroyed,
regardless of cause, Tenant shall give prompt notice to Landlord. Tenant shall
repair and restore the Property to substantially the same use, function, quality
and value as existed, in accordance with this Lease, immediately prior to such
damage or destruction using new materials except as may otherwise be
appropriate, to the extent commercially reasonably possible, including buildings
and all other improvements on the Property, as soon as circumstances permit.
Tenant shall hold Landlord free and harmless from any and all liability of any
nature whatsoever resulting from such damage or destruction, and such repairs
and restoration. Tenant, and not Landlord, shall be responsible for paying for
any cost of repairs and restoration in excess of the proceeds available from
insurance policies maintained by Tenant. Tenant is not entitled to any rent
abatement during or resulting from any disturbance from partial or total
destruction of the Properties, and in no event shall Tenant be entitled to
terminate the Lease. Notwithstanding the foregoing, Tenant shall not be under
any obligation to restore one or more buildings that may be wholly or
substantially destroyed at any time during the last three (3) years of the
Primary Term or during the last two (2) years of any applicable Extension
Period. For this purpose “wholly or substantially” shall mean thirty-three and
one - third percent (33 1/3%) or more of the Properties’ insured replacement
value.
14. CONDEMNATION
| 14.1 |
Condemnation
Damages
|
In the event of the taking or conveyance of the whole or any part
of any of the Properties by reason of condemnation by any public or quasi-public
body (“Condemnation”), Landlord and Tenant shall represent themselves
independently in seeking damages before the condemning body. Landlord shall be
entitled to the entirety of the award from such condemning authority with the
exception of such portion (to which portion Tenant shall be entitled) of the
award attributable to or, if no portion of the award was attributed or allocated
by the determining body, the value of:
| 14.1.1 |
Tenant’s
leasehold improvements made to the Property by Tenant in accordance with
this Lease, which improvements Tenant has the right to remove from the
Property upon the expiration or termination of the Lease pursuant to the
provisions of this Lease, but elects not to
remove;
|
| 14.1.2 |
Tenant’s
Personal Property installed in the Property in accordance with this Lease,
which Tenant has the right to remove from the Property upon the expiration
or termination of the Lease pursuant to the provisions of this Lease, but
which are to remain in the Property as a result of such taking;
and
|
| 14.1.3 |
the
unexpired portion of Tenant’s interest in the leasehold estate created by
this Lease assuming the exercise of all remaining extension terms;
provided that, Tenant can prove that this Leasehold has “bonus”
value.
|
Notwithstanding the foregoing and provided the same does not
reduce the amount awarded on account of the Properties pursuant to this Section
14.1, Tenant shall be entitled to seek, to the extent applicable, an award from
the condemning authority with respect to (i) removal of Tenant’s Personal
Property; (ii) damage or loss to Tenant’s business and good will, including
without limitation, Tenant’s lost profits, and (iii) Tenant’s moving and
relocation expenses.
| 14.2 |
Termination
of Lease Due to Condemnation
|
In the event the Condemnation materially adversely affects the use
by Tenant of the Property (“Condemned Property”), Tenant may terminate the Lease
as to the Condemned Property by giving Landlord written notice of its intention
to terminate the Lease within sixty (60) days of receipt of written notice of
the Condemnation, which notice substantially shall disclose the material nature,
scope and extent of the Condemnation. The effective date of the termination
shall be the date upon which fee simple interest is vested in the condemning
authority, and Tenant shall be released from further obligations or liabilities
arising under the Lease thereafter with respect to the Condemned Property;
however Tenant shall not be released from liabilities, charges and items
accruing under the Lease prior to the Termination. In the event of termination,
Individual Building Rent, Property Taxes, Other Charges and any other items of
additional rent (collectively, “Rent and Charges”) shall be prorated based upon
the actual number of days in the period to be prorated. Within thirty (30) days
following the termination, Landlord shall refund to Tenant any Rent and Charges
paid to Landlord in advance of the termination. Notwithstanding any termination
of this Lease with respect to the Condemned Property, this Lease shall continue
in full force and effect with respect to the remaining Properties; provided,
however, Base Monthly Rent shall be adjusted by the Individual Building Rent
allocated to the Condemned Property.
In the event of a temporary condemnation or taking, Tenant shall
be entitled to the amount awarded by such condemning authority or court making
such allocation with respect to Tenant’s leasehold estate under this Lease and
Landlord shall be entitled to the amount awarded with respect to Landlord’s
interest as Landlord in this Lease or to Landlord’s fee simple interest in the
Properties to the extent such temporary taking or condemnation relates to a
period after the expiration or termination of this Lease. Notwithstanding the
foregoing and provided the same does not reduce the amount awarded on account of
the Properties, Tenant shall be entitled to seek an award, to the extent
applicable, with respect to the interruption of Tenant’s business, the
relocation of Tenant or its business, or Tenant’s personal property.
15. ASSIGNMENT AND
SUBLETTING
| 15.1 |
Tenant’s
Right of Assignment and Subletting
|
Tenant may assign its interest in this Lease and may sublet the
Properties in whole or in part, from time to time. Tenant shall provide Landlord
with a copy of the assignment or sublease no later than thirty (30) days prior
to the date that the assignee or subtenant assumes possession. Except as
otherwise expressly provided in this Lease, in no event shall Tenant be released
from any of its obligations or liabilities under this Lease following any such
assignment or subletting. In connection with the sublease of one or more (or a
portion of one or more) of the Properties, Landlord may, but is not required to,
execute and deliver to such subtenant a non-disturbance or recognition agreement
in form reasonably satisfactory to the proposed subtenant, which shall provide
for the continuation of possessory and all other rights of the subtenant through
a direct lease with Landlord in the event of a termination of this Lease.
The rights to renew this lease are personal, and do not inure to
the benefit of an assignee or subtenant, except with the Landlord’s prior
written consent. In the event that Tenant subleases to a subtenant for a term
longer than the term of this Lease as originally fixed by this Lease or the term
of this Lease as actually renewed, the sublease shall be null, void and of no
effect whatsoever; and the subtenant has no right to possession for the portion
of the term of the sublease which is longer than the term of this Lease under
the void sublease. Tenant may sublease to anyone for a term equal to the
original term of this Lease with an option to renew which is coextensive with
the option to renew of the Tenant, so long as the subtenant’s option to renew is
expressly conditioned upon the Tenant’s exercise of its option to renew in this
Lease.
| 15.2 |
Landlord’s
Option to Preserve Subtenancies
|
In the event of Tenant’s surrender of this Lease or the
termination of this Lease in any other manner, Landlord may, at its option,
either terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord thereunder. No merger shall result from Tenant’s sublease of the
Properties under this Section, Tenant’s surrender of this Lease, or the
termination of this Lease in any other manner.
| 15.3 |
Continuing
Obligation of Tenant
|
Except as provided below in this Section 15.3, no transfer
permitted by this Section 15 shall release Tenant or change Tenant’s primary
liability to pay the rent and to perform all other obligations of Tenant under
this Lease. Landlord’s acceptance of rent from any other person is not a waiver
of any provision of this Section. Consent to one transfer is not a consent to
any subsequent transfer. If Tenant’s transferee defaults under this Lease,
Landlord may proceed directly against Tenant without pursuing remedies against
the transferee. Landlord shall not consent to subsequent assignments or
modifications of this Lease by Tenant’s transferee without first notifying
Tenant and obtaining its written consent. Such action shall not relieve Tenant’s
liability under this Lease, except that Tenant shall not be liable for any
extension of the term or increase in rentals made without Tenant’s prior written
consent. Notwithstanding the above, upon the assignment of this Lease to an
entity or individual with a net worth equal to or greater than the net worth of
Tenant on the date of execution of this Lease, Tenant shall be released and
relieved of all further liability under this Lease from and after the effective
date of such assignment. Each subsequent assignee, upon making a further
assignment in compliance with the terms and conditions of this Section 15.3
shall be released and relieved of all further liability under this Lease from
and after the effective date of such further assignment.
| 15.4 |
Landlord’s
Right of Assignment
|
Subject to the terms of Section 27 below, Landlord shall be free
at all times, without need of consent or approval by Tenant, to assign its
interest in this Lease and/or to convey fee title to the Properties. Each
conveyance by Landlord of Landlord’s interest in the Lease or the Properties
prior to expiration or termination hereof shall be subject to this Lease and
shall relieve the grantor of any subsequent obligations or liability as
Landlord, and Tenant shall look solely to Landlord’s successor in interest for
all future obligations of Landlord. Tenant hereby agrees to attorn to Landlord’s
successors in interest, whether such interest is acquired by sale, transfer,
foreclosure, deed in lieu of foreclosure, or otherwise. The term “Landlord” as
used in this Lease, so far as covenants and obligations on the part of Landlord
are concerned, shall be limited to mean and include only the owner at the time
in question of the fee title of the Properties. Without further agreement, the
transferee of such title shall be deemed to have assumed and agreed to observe
and perform any and all obligations of Landlord hereunder during its ownership
of the Properties.
At Tenant’s request, Landlord agrees to execute and deliver
separate and independent leases for one or more of the Properties, containing
terms and provisions consistent with this Lease, with appropriate prorations and
adjustments, including without limitation, an adjustment in Tenant’s rental
obligations for a particular Property, but in no event shall Landlord be
required to comply with more than one such request for each Property during the
term of this Lease.
16. DEFAULT AND
TERMINATION
The occurrence of any of the following events (each an “Event of
Default”) shall constitute a default by Tenant:
| 16.1.1 |
Monetary
Default: Failure by Tenant to pay rent or any other monetary obligation
(“rent”) within five (5) business days from the date of receipt of
Landlord’s written notification to Tenant that the rent is past due (a
“Late Notice”).
|
| 16.1.2 |
Non-monetary
Default: Failure by Tenant to perform or comply with any provision of this
Lease (other than as set forth in Subsection 16.1.1) if the failure is not
cured within thirty (30) days after notice has been given to Tenant. If,
however, the failure cannot reasonably be cured within the cure period,
Tenant shall not be in default of this Lease if Tenant commences to cure
the failure within the cure period and diligently and in good faith
continues to cure the failure.
|
| 16.1.3 |
To
the extent permitted by law, a general assignment by Tenant or any
guarantor of the Lease for the benefit of creditors, or the filing by or
against Tenant or any guarantor of any proceeding under any insolvency or
bankruptcy law, unless in the case of a proceeding filed against Tenant or
any guarantor the same is dismissed within ninety (90) days, or the
appointment of a trustee or receiver to take possession of all or
substantially all of the assets of Tenant or any guarantor, unless
possession is restored to Tenant or such guarantor within sixty (60) days,
or any execution or other judicially authorized seizure of all or
substantially all of Tenant’s assets located upon the Properties or of
Tenant’s interest in this Lease, unless such seizure is discharged within
sixty (60) days.
|
| 16.1.4 |
Any
notice delivered pursuant to this Section 16.1 shall be in lieu of, and
not in addition to, any notice required by
law.
|
Landlord shall have any one or more of the following remedies
after the occurrence of an uncured Event of Default by Tenant. These remedies
are not exclusive; they are cumulative in addition to any remedies now or later
allowed by law, in equity, or otherwise:
| 16.2.1 |
With
respect to a default under subsection 16.1.2 above attributable to one or
more Properties, terminate the Lease with respect to each affected
Property, by giving written notice of termination to Tenant, in which
event Tenant immediately shall surrender the affected Property to
Landlord. If Tenant fails to so surrender the affected Property, then
Landlord, without prejudice to any other remedy it has for possession of
the affected Property or arrearages in rent or other damages, may re-enter
and take possession of the affected Property and expel or remove Tenant
and any other person or entity occupying the affected Property or any part
thereof, without being liable for any damages, whether caused by
negligence of Landlord or otherwise. If Landlord does terminate the Lease
under this Paragraph, the Tenant is released from all future obligations
hereunder, but it is not released from obligations accruing prior to the
Termination.
|
| 16.2.2 |
With
respect to all other defaults under the Lease, terminate the Lease in its
entirety by giving written notice of termination to Tenant, in which event
Tenant immediately shall surrender the Properties to Landlord. If Tenant
fails to so surrender the Properties, then Landlord, without prejudice to
any other remedy it has for possession of the Properties or arrearages in
rent or other damages, may re-enter and take possession of the Properties
in a manner consistent with applicable law and expel or remove Tenant and
any other person or entity occupying the Properties or any part
thereof.
|
| 16.2.3 |
No
act by Landlord other than giving express notice of termination to Tenant
shall terminate this Lease. Acts of maintenance, efforts to relet the
Properties, or the appointment of a receiver on Landlord’s initiative to
protect Landlord’s interest under this Lease shall not, without more,
constitute a termination of this Lease. Subject to Section 16.2.1 of
this Lease, on termination of the Lease, Landlord shall have the right to
recover from Tenant:
|
| (i) |
Those damages recoverable under Utah law following such
termination; and
|
| (ii) |
Any other amount, including, without limitation, attorneys’
fees and court costs, necessary to compensate Landlord for all detriment
proximately caused by Tenant’s default.
|
| 16.2.4 |
At
its election, Landlord may re-enter and take possession of the Properties
in a manner consistent with applicable law without terminating this Lease
and without being liable for any damages, except to the extent caused by
the negligence or willful misconduct of Landlord. Landlord shall use
commercially reasonable efforts to relet the Properties. Landlord may
relet the Properties on whatever terms and conditions Landlord, in its
reasonable discretion, deems advisable. Reletting can be for a period
shorter or longer than the remaining term of this Lease. Landlord’s action
under this Subsection is not considered an acceptance of Tenant’s
surrender of the Properties unless Landlord so notifies Tenant in writing.
Tenant shall be immediately liable to Landlord for all reasonable costs
Landlord incurs in reletting the Properties, including brokers’
commissions, expenses of remodeling the Properties required by the
reletting, and like costs. Tenant shall pay to Landlord the rent due under
this Lease on the dates the rent is due, less the rent Landlord receives
from any reletting.
|
If Landlord elects to relet the Properties without terminating
this Lease, any rent received will be applied to the account of Tenant, not to
exceed Tenant’s total indebtedness to Landlord; no reletting by Landlord is
considered to be for its own account unless Landlord has notified Tenant in
writing that the Lease has been terminated. If Landlord elects to relet the
Properties, rent that Landlord receives from reletting will be applied to the
payment of: (i) first, any indebtedness from Tenant to Landlord other than rent
due from Tenant; (ii) second, all reasonable costs, including maintenance,
incurred by Landlord in reletting; and (iii) third, rent due and unpaid under
the Lease. After deducting the payments referred to in this Subsection, any sum
remaining from the rent Landlord receives from reletting will be held by
Landlord and applied in payment of future rent as rent becomes due under this
Lease. If, on the date rent is due under this Lease, the rent received from the
reletting is less than the rent due on that date, Tenant will pay to Landlord,
in addition to the remaining rent due, all reasonable costs, including
maintenance, Landlord incurred in reletting which remain after applying the rent
received from the reletting. Tenant shall have no right to or interest in the
rent or other consideration received by Landlord from reletting to the extent it
exceeds Tenant’s total indebtedness to Landlord.
| 16.2.5 |
Re-enter
the Properties in a manner consistent with applicable law without
terminating this Lease and without being liable for any damages, except to
the extent caused by the negligence or willful misconduct of Landlord, and
do whatever Tenant is obligated to do under the terms of this Lease. The
reasonable expenses incurred by Landlord in affecting compliance with
Tenant’s obligations under this Lease immediately shall become due and
payable to Landlord as additional rent.
|
| 16.2.6 |
In
all events, Tenant is liable for all damages of whatever kind or nature,
direct or indirect, suffered by Landlord as a result of the occurrence of
an Event of Default. If Tenant fails to pay Landlord in a prompt manner
for the damages suffered, Landlord may pursue a monetary recovery from
Tenant. Included among these damages are all reasonable expenses incurred
by Landlord in repossessing the Properties (including, but not limited to,
increased insurance premiums resulting from Tenant’s vacancy), all
reasonable expenses incurred by Landlord in reletting the Properties
(including, but not limited to, those incurred for advertisements,
brokerage fees, repairs, remodeling, and replacements), all concessions
granted to a new tenant on a reletting, all losses incurred by Landlord as
a result of Tenant’s default (including, but not limited to, any
unamortized commissions paid in connection with this Lease), and all
reasonable attorneys’ fees incurred by Landlord in enforcing any of
Landlord’s rights or remedies against
Tenant.
|
| 16.2.7 |
Pursuit
of any of the foregoing remedies does not constitute an irrevocable
election of remedies nor preclude pursuit of any other remedy provided
elsewhere in this Lease or by applicable law, and none is exclusive of
another unless so provided in this Lease or by applicable law. Likewise,
forbearance by Landlord to enforce one or more of the remedies available
to it on an Event of Default does not constitute a waiver of that default
or of the right to exercise that remedy later or of any rent, damages, or
other amounts due to Landlord hereunder.
|
| 16.2.8 |
Whether
or not Landlord elects to terminate this Lease or Tenant’s right to
possession of the Properties on account of any default by Tenant, Landlord
shall have all rights and remedies at law or in equity, including, but not
limited to, the right to re-enter the Properties in a manner consistent
with applicable law and, to the maximum extent provided by law, Landlord
shall have the right to terminate any and all subleases, licenses,
concessions, or other consensual arrangements for possession entered into
by Tenant and affecting the Properties (subject to the terms of any
applicable non-disturbance or recognition agreement) or, in Landlord’s
sole discretion, may succeed to Tenant’s interest in such subleases,
licenses, concessions, or arrangements. In the event of Landlord’s
election to succeed to Tenant’s interest in any such subleases, licenses,
concessions, or arrangements, Tenant shall have no further right to or
interest in the rent or other consideration receivable thereunder as of
the date of notice by Landlord of such
election.
|
| 16.2.9 |
If
Landlord retakes possession of the Property, either with or without
termination of this Lease, Landlord agrees to use commercially reasonable
efforts to mitigate its damages.
|
| 16.2.10 |
Notwithstanding
anything to the contrary contained herein, in the case of a default under
Section 16.1.2 above attributable to one or more Properties, the
rights contained in Sections 16.2.4 through and including 16.2.8
shall be limited to those affected Properties
only.
|
If Tenant fails to pay when due any payment of rent or other
charges which Tenant is obligated to pay to Landlord under this Lease and which
are unpaid after any notice and cure period allowed, there shall be a late
charge, immediately payable by Tenant as additional rent, in the amount of three
percent (3%) of each such obligation. Landlord and Tenant agree that this sum is
reasonable to compensate Landlord for accounting and administrative expenses
incurred by Landlord. In addition to the late charge, any and all rent or other
charges which Tenant is obligated to pay to Landlord under this Lease which are
unpaid shall bear interest at the rate set forth in Section 16.6 from the date
said payment was due until paid, said interest to be payable by Tenant as
additional rent. Landlord and Tenant agree that this sum is reasonable to
compensate Landlord for the loss of the use of funds. Notwithstanding the
foregoing, Tenant shall not be obligated to pay the late charge and interest
otherwise due pursuant to this Section 16.3 unless ten (10) days shall have
lapsed following Tenant’s receipt of notice pursuant to Section 16.1.1, if
such notice is required thereunder and the delinquent amount(s) shall not have
been paid.
| 16.4 |
Right
of Landlord to Re-Enter
|
In the event of any termination of this Lease, Landlord shall have
the immediate right to enter upon and repossess the Properties, and any personal
property of Tenant may be removed from the Properties and stored in any public
warehouse at the risk and expense of Tenant.
| 16.5 |
Surrender
of Properties
|
No act or thing done by Landlord or any agent or employee of
Landlord during the Lease term shall be deemed to constitute an acceptance by
Landlord or a surrender of any or all of the Properties unless such intent is
specifically acknowledged in a writing signed by Landlord. The delivery of keys
to any of the Properties to Landlord or any agent or employee of Landlord shall
not constitute a surrender of the Properties or effect any partial or full
termination of this Lease, whether or not the keys are thereafter retained by
Landlord and, notwithstanding such delivery, Tenant shall be entitled to the
return of such keys at any reasonable time upon request until this Lease shall
have been terminated properly. The voluntary or other surrender of this Lease by
Tenant, whether accepted by Landlord or not, or a mutual termination hereof,
shall not work a merger, and at the option of Landlord shall operate as an
assignment to Landlord of all subleases or subtenancies affecting the
Properties.
Any amount not paid by one party to the other when due to the
other party will bear interest from the date due at the lesser of (i) the “prime
rate” identified in the “Money Rates” section of the Wall Street Journal
in effect on the date due plus two percent (2%) per annum; or (ii) the maximum
rate permitted by law.
Landlord
shall be in default if Landlord fails to perform any provision of this Lease
required of it and the failure is not cured within thirty (30) days after prior
written notice has been given to Landlord. If, however, the failure cannot
reasonably be cured within the cure period, Landlord shall not be in default of
this Lease if Landlord commences to cure the failure within the cure period and
diligently and in good faith continues to cure the failure. Notices given under
this Section 16.7 shall specify the alleged breach and the applicable Lease
provisions. If Landlord shall at any time default beyond the applicable notice
and cure period, Tenant shall have the right to cure such default on Landlord’s
behalf. Any sums expended by Tenant in doing so, and all reasonably necessary
incidental costs and expenses incurred in connection therewith, shall be payable
by Landlord to Tenant within thirty (30) days following demand therefor by
Tenant.
17. RIGHT OF
INSPECTION
Landlord and Landlord’s authorized representatives shall have the
right after prior written notice to Tenant, to enter upon the Properties during
Tenant’s usual business hours for the purpose of inspecting the Properties or,
if Landlord is otherwise permitted to do so under this Lease, of making repairs,
additions or alterations in or upon the Properties, and for the purpose of
exhibiting the Properties to prospective tenants (during the last six (6) months
of the term of this Lease as the same may be extended) or purchasers. Provided
no Event of Default is continuing and Tenant has not vacated the Property,
Landlord shall not exhibit any “for sale” signs during the term of the Lease.
The exercise of Landlord’s right of inspection shall be conducted so as to
minimize any interference with Tenant’s business operations at the Properties,
and shall be subject to compliance with Tenant’s reasonable instructions and
security requirements.
18. WAIVER OF
BREACH
No waiver by Landlord of any breach of any one or more of the
terms, covenants, conditions, or agreements of this Lease shall be deemed to
imply or constitute a waiver of any succeeding or other breach. Failure of
Landlord to insist upon the strict performance of any of the terms, conditions,
covenants, and agreements of this Lease shall not constitute or be considered as
a waiver or relinquishment of Landlord’s rights to subsequently enforce any
default, term, condition, covenant, or agreement, which shall all continue in
full force and effect. The rights and remedies of Landlord under this Lease
shall be cumulative and in addition to any and all other rights and remedies
which Landlord has or may have.
19. NOTICES
All notices, requests, or demands herein provided to be given or
made, or which may be given or made by either party to the other, shall be given
or made only in writing and shall be deemed to have been duly given: (i) when
delivered personally at the address set forth below, or to any agent of the
party to whom notice is being given, or if delivery is rejected when delivery
was attempted; or (ii) on the date delivered when sent via Overnight Mail,
properly addressed and postage prepaid; or (iii) on the date sent via facsimile
transmission; or (iv) upon delivery, or if delivery is rejected when delivery
was attempted of properly addressed first class mail, postage prepaid with
return receipt requested. The proper address to which notices, requests, or
demands may be given or made by either party shall be the address set forth at
the end of this Section or to such other address or to such other person as any
party shall designate. Such address may be changed by written notice given to
the other party in accordance with this Section.
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If to Landlord: Franklin Saltlake
LLC
|
|
c/o Platinum Realty
Management
|
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000 Xxxxxxxx Xx., Xxxxxx
Xxxxx
|
|
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
|
|
With a copy to: Xxxxxxx X. Xxxxxx
Xxxxxx Law Company
000 Xxxxxxxx Xx., Xxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
|
|
If to Tenant:
Franklin Development Corporation
|
|
0000 Xxxxxxx Xxxx.
|
|
Xxxx Xxxx Xxxx, XX 00000
|
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Attention:Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
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| |
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With a copy to:
|
| |
|
Val Xxxx Xxxxxxxxxxx, Esquire
|
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0000 Xxxx Xxxxxx Xxxx.
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Xxxx Xxxx Xxxx, XX 00000
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Phone Number: (000) 000-0000
|
|
Fax Number: (000)
000-0000
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| 19.2 |
Payments
Under Lease
|
Rent and all other payments due to Landlord under this Lease shall
be paid in lawful money of the United States of America without offset or
deduction to the name and at the address first given above or to such other
persons or parties or at such other places as Landlord may from time to time
designate in writing.
20. RELATIONSHIP OF
THE PARTIES
This Lease shall not be deemed or construed by the parties, nor by
any third party, as creating the relationship of (i) principal and agent, (ii)
partnership, or (iii) joint venture between the parties. Neither the method of
computation of rent nor any other provision of this Lease, nor any acts of the
parties are other than in the relationship of Landlord and Tenant.
21. SUBORDINATION,
ATTORNMENT AND ESTOPPEL
| 21.1 |
Subordination
and Non-Disturbance
|
Subject to the provisions of this Section, this Lease and the
leasehold estate created hereby shall be, at the option and upon written
declaration of Landlord, subject, subordinate, and inferior to the lien and
estate of any mortgage, trust deeds, and similar encumbrances (“Mortgages”), and
all renewals, extensions, or replacements thereof, now or hereafter imposed by
Landlord upon the Properties; provided, however, that this Lease shall not be
subordinate to any Mortgage, or any renewal, extension, or replacement thereof,
unless and until Landlord provides Tenant with an agreement (“Non-Disturbance
Agreement”), signed and acknowledged by each holder of any such interest setting
forth that so long as Tenant is not in default hereunder after all applicable
notice and cure periods, Landlord’s and Tenant’s rights and obligations
hereunder shall remain in full force and effect and Tenant’s right to possession
shall be upheld and undisturbed. The Non-Disturbance Agreement may contain
additional provisions as are customarily requested by secured lenders with liens
encumbering real property security similar to the Properties, including, without
limitation, Tenant’s agreement to attorn as set forth in Section 21.2
below, provided, the same are reasonably acceptable to Tenant. Tenant shall,
promptly following a request by Landlord and after receipt of the
Non-Disturbance Agreement, execute and acknowledge any subordination agreement
or other documents required to establish of record the priority of any such
encumbrance over this Lease, so long as such agreement does not otherwise
increase Tenant’s obligations or diminish Tenant’s rights hereunder.
In the event of foreclosure of any Mortgage, whether superior or
subordinate to this Lease, then (i) this Lease shall continue in force; (ii)
Tenant’s quiet possession shall not be disturbed if Tenant is not in default
hereunder after all applicable notice and cure periods; (iii) Tenant shall
attorn to and recognize the mortgagee or purchaser at private or public
foreclosure sale (“Successor Landlord”) as Tenant’s landlord for the remaining
term of this Lease; and (iv) the Successor Landlord shall not be bound by (a)
any payment of rent for more than one month in advance not otherwise delivered
to such Successor Landlord; (b) any amendment, modification, or ending of this
Lease without the Successor Landlord’s consent after the Successor Landlord’s
name is given to Tenant, unless the amendment, modification, or ending is
specifically authorized by the original Lease and does not require Landlord’s
prior agreement or consent; and (c) any liability for any act or omission of a
prior Landlord. At the request of the Successor Landlord, Tenant shall execute a
new lease for the Properties, setting forth all of the provisions of this Lease
except that the term of the new lease shall be for the balance of the term of
this Lease with the same extension rights to the extent remaining.
| 21.3 |
Attornment
of Subtenants.
|
In any Subleases executed by Tenant, the Sublease shall contain an
express clause that in case of default hereunder by Tenant whereby the Landlord
exercises its right to terminate the Lease or to repossess the Property in
accordance with Paragraphs 16.2.2, 16.2.3 and/or 16.2.4, the Subtenants shall
attorn to, and recognize the Landlord as their Landlord who is solely entitled
to the rent from the Sublease. At the request of Landlord, upon exercise of its
right to terminate this Lease, the Subtenants shall execute a Lease for the
Property or Properties with Landlord as Landlord, setting forth all of the
provisions of the Sublease for the Property or Properties, except that the term
of the new Lease executed by the Subtenants shall be the same as the balance of
the term of the Sublease with any extension rights therein remaining in effect.
| 21.4 |
Estoppel
Certificate
|
Each party shall execute and deliver to the other, within twenty
(20) days after receipt of Landlord’s request, any estoppel certificate or other
statement to be furnished to Landlord, any prospective purchaser of or any
lender against the Properties or to Tenant or any assignee or sublessee of
Tenant. Such estoppel certificate shall acknowledge and certify each of the
following matters, to the extent each may be true: that the Lease is in effect
and not subject to any rental offsets, claims, or defenses to its enforcement;
the commencement and expiration dates of the term; that Tenant is paying rent on
a current basis; that any improvements required to be furnished under the Lease
have been completed in all respects; that the Lease constitutes the entire
agreement between Tenant and Landlord relating to the Properties; that Tenant
has accepted the Properties and is in possession thereof; that the Lease has not
been modified, altered, or amended except in specified respects by specified
instruments; that Tenant has no notice of any prior assignment, hypothecation,
or pledge of rents or the Lease; that no default exists under the Lease; and
such other matters as reasonably may be requested. Tenant shall also, upon
request of Landlord, certify and agree for the benefit of any lender against the
Properties or the building (“Lender”) that Tenant will not look to such Lender
as being liable for any act or omission of Landlord; as being obligated to cure
any defaults of Landlord under the Lease which occurred prior to the time
Lender, its successors or assigns, acquired Landlord’s interest in the
Properties by foreclosure or otherwise except to the extent the same continues
after such time, as being bound by any payment of rent or additional rent by
Tenant to Landlord for more than one (1) month in advance; or as being bound by
Landlord to any amendment or modification of the Lease without Lender’s written
consent. Failure to deliver the documents required under this Section 21 in
the time period required shall constitute an Event of Default if such failures
continues for five (5) business days after written notice of the same.
22. TENANT’S
FINANCIAL STATEMENTS
During the term of the Lease, Tenant shall provide Landlord with
current financial statements as follows: within one hundred twenty (120) days of
the end of each fiscal year, Tenant’s profit and loss statement, balance sheet,
statement of changes in financial position, and notes to the financial
statements as reviewed or audited by an independent certified public accountant
or accounting firm; provided, to the extent Tenant ever becomes subject to the
reporting requirements of the Securities and Exchange Act of 1934 (the “Act”),
such annual financial reports filed pursuant to the Act shall be provided to
Landlord in lieu of the foregoing statements. Tenant covenants to provide the
foregoing information which is in unaudited form as soon as it is reasonably
available to Tenant, upon request from Landlord. Landlord agrees to hold all
information provided to Landlord under or in connection with this Lease,
including, without limitation, this Section 22, in confidence and shall not
disclose any such information to any third party without first obtaining a
confidentiality agreement reasonably acceptable to Tenant, except to the extent
such disclosure is by order of a court or as otherwise required by law and
except with respect to information otherwise made public by Tenant.
23. ATTORNEYS’
FEES
| 23.1 |
Recovery
of Attorneys’ Fees and Costs of Suit
|
Tenant shall reimburse Landlord, upon demand, for any reasonable
costs or expenses incurred by Landlord in connection with any breach or default
under this Lease, whether or not suit is commenced or judgment entered. Such
costs shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights, or otherwise. Furthermore, if any action for
breach of or to enforce the provisions of this Lease is commenced, the court in
such action shall award to the party in whose favor a judgment is entered, a
reasonable sum as attorneys’ fees and costs. Such attorneys’ fees and costs
shall be paid by the losing party in such action.
Except to the extent arising from Landlord’s negligence or willful
misconduct, Tenant shall indemnify Landlord against and hold Landlord harmless
from all costs, expenses, demands, and liability incurred by Landlord if
Landlord becomes or is made a party to any claim or action (i) instituted by
Tenant, or by any third party against Tenant, or by or against any person
holding any interest under or using the Properties by license of or agreement
with Tenant; (ii) for foreclosure of any lien for labor or material furnished to
or for Tenant or such other person; (iii) otherwise arising out of or resulting
from any action or transaction of Tenant or such other person; or (iv) necessary
to protect Landlord’s interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 11 of the United States Code, as amended. Tenant
shall defend Landlord against any such claim or action at Tenant’s expense with
counsel reasonably acceptable to Landlord or, at Landlord’s election, Tenant
shall reimburse Landlord for any reasonable legal fees or costs incurred by
Landlord in any such claim or action.
Tenant shall pay Landlord’s reasonable attorneys’ fees and other
costs incurred in an action or proceeding in connection with Tenant’s request
for Landlord’s consent in connection with any act which Tenant proposes to do
and which requires Landlord’s consent, with respect to which Tenant and Landlord
are not adversarial parties, up to a maximum of Twenty Thousand Dollars
($20,000.00).
24. CONSENT
Landlord shall have no liability for damages resulting from, nor
may Tenant terminate this Lease as a result of, Landlord’s failure to give any
consent, approval, or instruction reserved to Landlord. Tenant’s sole remedy in
any such event shall be an action for declaratory or injunctive relief.
Notwithstanding anything to the contrary contained in this Lease, unless
otherwise expressly provided for herein, Landlord’s consent shall not be
unreasonably withheld, conditioned or delayed and shall be deemed granted if
Landlord does not respond to a written request for consent within twenty (20)
days of such request.
25. AUTHORITY TO
MAKE LEASE; COVENANT OF QUIET ENJOYMENT
| 25.1 |
Full
Power and Authority to Enter Lease
|
The parties covenant and warrant that each has full power and
authority to enter into this Lease.
Landlord covenants and warrants that Tenant shall have and enjoy
full, quiet, and peaceful possession of the Properties, their appurtenances and
all rights and privileges incidental thereto during the term, as against all
persons claiming by, through, or under Landlord, subject to the provisions of
this Lease and any title exceptions or defects in existence on the Commencement
Date.
| 25.3 |
No
Violation of Covenants and Restrictions
|
Tenant leases the Properties subject to all encumbrances,
covenants, conditions, restrictions, easements, rights of way, and all other
matters of record affecting the Properties as of the date hereof or future ones
agreed to by Tenant in accordance with the terms of this Lease. Tenant shall not
violate, permit a violation, or cause Landlord to violate any recorded covenants
and restrictions affecting the Properties as of the date hereof or future ones
agreed to by Tenant in accordance with the terms of this Lease. Tenant shall
defend, indemnify, and hold harmless Landlord from any costs or expenses
incurred from such a violation.
Landlord reserves the right to close the Common Areas to Tenant or
the public as necessary to make repairs or capital improvements. Unless it is an
emergency, Landlord covenants that it will provide five (5) days prior written
notice of the closure to Tenant.
26. HAZARDOUS
MATERIAL
| 26.1 |
Environmental
Compliance
|
Tenant shall comply with all laws, including Environmental Laws,
relating to the use, storage, transportation, dispensing, sale or Release of
Pollutants at the Properties. Tenant shall not use, store, transport, dispense
or sell Pollutants at the Properties, or surrounding areas, except as is
customary for the operation of Tenant’s business at the Properties in accordance
with the terms of this Lease, and is otherwise permitted by Environmental Laws.
Tenant shall not Release, nor shall Tenant permit any employee, contractor,
agent or invitee to Release, any Pollutants on the Properties, into the air or
the surrounding land, surface water or ground water except as expressly
permitted by law, including Environmental Laws. Tenant shall provide Landlord
with copies of all reports, studies, complaints, claims, directives, citations,
demands, inquiries, notices of violation, or orders relating to Pollutants at or
emanating from or to the Properties, or any alleged non-compliance with
Environmental Laws at the Properties, reasonably promptly (and in no event later
than thirty (30) days) after such documents are provided to or generated by
Tenant. Tenant also shall promptly notify Landlord of any Release of Pollutants
at, on, under or from the Properties and promptly shall address any such
Releases as required by Environmental Laws. All reporting, investigation and/or
remediation requirements under any Environmental Law with respect to any and all
Releases of Pollutants at, on, from or near the Properties are the
responsibility of Tenant.
| 26.2 |
Tenant’s
Responsibility for Hazardous Materials
|
At Tenant’s cost, Tenant shall be responsible for (i) permitting,
reporting, assessment, testing, investigation, treatment, removal, remediation,
transportation and disposal of Pollutants as directed by any governmental
agency, as required by Environmental Laws; (ii) damages, costs, expenditures and
claims for injury to persons, property, the Properties and surrounding air,
land, surface water, and ground water resulting from such Pollutants; (iii)
claims by any governmental agency or third party associated with injury to
surrounding air, land, surface water and ground water or other damage resulting
from such Pollutants; (iv) damages for injury to the buildings, fixtures,
appurtenances, equipment and other personal property of Landlord to the extent
caused by such Pollutants; (v) fines, costs, fees, assessments, taxes, demands,
orders, directives or any other requirements imposed in any manner by any
governmental agency asserting jurisdiction, or under any Environmental Laws,
with respect to such Pollutants; (vi) damages, costs and expenditures for
injury to natural resources to the extent caused by such Pollutants as directed
by any governmental agency or otherwise as required by applicable law, including
Environmental Laws; (vii) compliance with Environmental Laws regarding the use,
storage, transportation, release, disposal, dispensing or sale of Pollutants;
and (viii) any other liability or obligation related to such Pollutants, except
to the extent such Pollutants (i) arose after the expiration of the term of this
Lease and the vacating of the affected Property or Properties by Tenant unless
due to Tenant or its employees or agents, or (ii) to the extent caused solely by
Landlord or its employees or agents.
| 26.3 |
Tenant’s
Environmental Indemnification
|
Tenant shall indemnify, defend, and hold Landlord harmless from
any and all claims, judgments, damages, penalties, fines, costs, liabilities, or
losses which arise during or after the term of the Lease as a result of
Pollutants present at the Properties, provided, Tenant shall have no liability
to the extent such Pollutants (i) arose after the expiration or termination of
this Lease unless due to Tenant or its employees or agents, or (ii) to the
extent caused by Landlord or its employees or agents. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation or site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Pollutants present in the soil or ground water
on or under the Properties, provided, Tenant shall have no liability to the
extent such Pollutants (i) arose after the expiration of the term of this Lease
unless due to Tenant or its employees or agents, or (ii) were caused solely by
Landlord or its employees or agents. Without limiting the foregoing, if the
presence of any Pollutants on the Properties results in any contamination of the
Properties, Tenant shall promptly take all actions at its sole expense as are
required to bring such Properties into compliance with Environmental Laws.
| 26.4 |
Tenant’s
Notification Obligation
|
Tenant shall promptly notify Landlord of Tenant obtaining actual
knowledge of any of the following: (i) any correspondence or communication from
any governmental entity regarding the application of Environmental Laws to the
Properties or Tenant’s operation of the Properties; (ii) any correspondence,
communication or notifications as are required by either the Federal or State
Emergency Planning and Community Right to Know Acts; (iii) any change in
Tenant’s operations on the Properties that will change or has the potential to
change Tenant’s obligations or liabilities under the Environmental Laws; (iv)
any Releases or suspected Releases of any and all Pollutants at, from or near
the Properties.
| 26.5 |
Landlord’s
Right of Entry
|
Following receipt of a notice described in Section 26.4 above
and Tenant’s failure to comply with the terms of this Section 26, Landlord, or
its representatives or consultants, shall have the right to enter upon the
Properties and make any inspection, tests, borings, measurements, investigation
or assessment Landlord deems necessary in the exercise of its reasonable
judgment in order to determine the presence of Pollutants or other Hazardous
Materials. Landlord shall select a qualified environmental consultant to
complete such tasks. Nothing herein shall be deemed to require Landlord to
conduct any such testing, measurement, investigation or assessment. Landlord
shall give Tenant a minimum of five (5) days written notice prior to conducting
any such inspection, tests, borings, measurements, investigation or assessment
except no such notice is required under emergency conditions. Landlord’s right
of entry and inspection shall include the right to inspect Tenant’s records
required to be maintained pursuant to Environmental Laws. If any Pollutants
present on or released from the Properties are detected requiring remedial
action as required by Section 26 of this Lease, Landlord’s reasonable expenses
incurred in performing the tests, measurements, investigation or assessment
shall be treated as an advance from Landlord to Tenant, and shall be promptly
paid by Tenant on demand by Landlord. This is in addition to Tenant’s obligation
to conduct all required testing, investigation, assessment, cleanup and
remediation at Tenant’s sole cost of any suspected or actual Pollutants.
In the event that Landlord has a reasonable basis to believe that
Pollutants or other Hazardous Materials are present at a Property in violation
of any Environmental Law or that Tenant has not otherwise complied with any
Environmental Law, Landlord shall provide written notice to Tenant of such
belief along with a description of, and any supporting documentation for, the
basis for such belief. If after a reasonable period of time following such
notice, Tenant has failed to demonstrate to the reasonable satisfaction of
Landlord that no such Pollutants or other Hazardous Materials are present at the
Property or that Tenant is in compliance with all Environmental Laws. Landlord
shall have the right to enter the Properties upon reasonable notice to Tenant
for the purpose of conducting an environmental audit or assessment to assure
that the Properties are in compliance with any applicable Environmental
Laws.
Provisions of this Section 26 shall survive expiration or
termination of the tenancy.
27. RIGHT OF FIRST
OFFER
| 27.1 |
Right
of First Offer
|
Landlord grants to Tenant a right of first offer with respect to
each Property; provided that this right of first offer is null, void and of no
effect whatsoever if at the time of the Landlord’s intent to sell a Property the
Tenant is in default of any of the provisions of this Lease. If Landlord intends
to sell a Property (“Sale Property”), Landlord shall submit to Tenant a proposal
(“Proposal”) setting forth the proposed purchase price and other material terms
of the proposed sale.
Tenant shall have five (5) business days to elect to accept the
terms of the Proposal, in which case Landlord and Tenant shall enter into a
purchase agreement providing for a closing within ninety (90) days of Tenant’s
acceptance of the Proposal and such other terms as are mutually acceptable to
the parties; provided, however, Tenant acknowledges and agrees:
| (i) |
Landlord shall deliver to Tenant a special warranty deed in
the form customarily used in connection with commercial real property
transactions in the state in which the Sale Property is situated, which
shall be subject only to: (i) matters of record; (ii) such additional
matters as specifically consented to by Tenant; (iii) anything of record
or not of record that in any way affects title to the Sale Property
resulting from the acts or omissions of Tenant and matters that would be
shown by a then current inspection or survey of the Sale Property.
Landlord shall execute such documents as shall be required to deliver good
and marketable title to the Sale Property (subject to the foregoing
matters) to Tenant in form and substance reasonably satisfactory to the
title company;
|
| (ii) |
The Sale Property shall be conveyed by Landlord to Tenant
“AS IS, WHERE IS, WITH ALL FAULTS,” in such condition as the same may be
on the closing of the transaction, without any representations or
warranties by Landlord except customary representations and warranties
pertaining to Landlord’s quality of title, Landlord not having encumbered
or sold, or granted any option or other rights with respect to the sale
of, the Property and the due authorization, execution and delivery of such
documents; and
|
| (iii) |
This Lease shall be amended to delete the Sale Property from
the Property List effective on the date upon which fee simple interest is
vested in Tenant, and the parties thereafter shall be released from all
liabilities and obligations under this Lease with respect to the Sale
Property, with the exception of those obligations that survive the
expiration or earlier termination of the Lease. This Lease shall continue
in full force and effect with respect to the remaining Properties;
provided, however, Base Monthly Rent shall be adjusted by the Individual
Building Rent allocated to the Sale Property.
|
If Tenant elects not to accept the Proposal or fails to make an
election within such thirty (30) days, Landlord may sell the Sale Property in
accordance with the terms of the Proposal. If Landlord fails to sell the Sale
Property within one (1) year following Tenant’s election or deemed election to
not purchase the Sale Property, or if Landlord intends to sell the Sale Property
on terms that are materially less favorable to Landlord (it being agreed that
any price lower than ninety-five percent (95%) of the price set forth in the
Proposal shall be deemed materially less favorable), Landlord shall re-offer the
Sale Property to Tenant on such less favorable terms pursuant to the terms of
this right of first offer.
28. GENERAL
PROVISIONS
The Recitals set forth above are hereby incorporated by this
reference.
The use of (i) the neuter gender includes the masculine and
feminine and (ii) the singular number includes the plural, whenever the context
requires.
Captions in this Lease are inserted for the convenience of
reference only and do not define, describe, or limit the scope or the intent of
this Lease or any of its terms.
All attached exhibits are a part of this Lease and are
incorporated in full by this reference. Except as specifically provided herein,
if any provision contained in any exhibit hereto is inconsistent or in conflict
with any provisions of this Lease, the provisions of this Lease shall supersede
the provisions of such exhibit and shall be paramount and controlling.
This Lease contains the entire agreement between the parties
relating to the transactions contemplated hereby and all prior or
contemporaneous agreements, understandings, representations and statements, oral
or written, are merged into this Lease.
This Lease shall not be construed more strictly against one party
than the other because it may have been drafted by one of the parties or its
counsel, each having contributed substantially and materially to the negotiation
and drafting hereof.
No modification, waiver, amendment, discharge, or change of this
Lease shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge, or
change is or may be sought.
| 28.8 |
Joint
and Several Liability
|
If any party consists of more than one person or entity, the
liability of each such person or entity signing this Lease shall be joint and
several.
Tenant warrants and represents that the terms of this Lease are
fully enforceable in the localities in which the Properties are located. In the
event any provision contained in this Lease is inconsistent or in conflict with
local law, custom, or practice, the provisions of this Lease shall supersede and
shall be paramount and controlling.
With respect to Section 23 and any other provision in this Lease
providing for payment or indemnification of attorneys’ fees, such fees shall be
deemed to include reasonable fees incurred through any applicable appeal
process, and shall include fees attributable to legal services provided by any
in-house counsel and staff to the prevailing or indemnified party. For purposes
hereof, the services of in-house counsel and their staff shall be valued at
rates for independent counsel prevailing in the metropolitan area in which such
counsel and staff practice.
Time is of the essence of every provision of this Lease.
In the event any term, covenant, condition, or provision of this
Lease is held to be invalid, void, or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant, condition, or
provision is invalid, void, or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition, or
provision of this Lease.
| 28.13 |
Successors
and Assigns
|
Except as otherwise provided herein, all terms of this Lease shall
be binding upon, inure to the benefit of, and be enforceable by the parties and
their respective legal representatives, successors, and assigns.
| 28.14 |
Independent
Covenants
|
This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and not dependent, and Tenant hereby
expressly waives the benefit of any statute to the contrary and agrees that if
Landlord fails to perform its obligations set forth herein, Tenant shall not be
entitled to make any repairs or perform any acts hereunder at Landlord’s expense
or to any offset of the rent or other amounts owing hereunder against Landlord;
provided, however, the foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof so long as notice is first given to Landlord and any holder of
a mortgage or deed of trust covering the Properties (of whose address Tenant has
theretofore been notified) and an opportunity is granted to Landlord and such
holder to correct such violation as provided above.
This Lease shall be governed by and construed in accordance with
the laws of the State of
Utah, without regard to its conflicts of law
principles.
| 28.16 |
Limitation
of Landlord’s Liability
|
Notwithstanding anything contained in this Lease to be contrary,
Landlord shall not incur any liability beyond Landlord’s interest in the
Properties upon a breach of this Lease, and Tenant shall look exclusively to
such interest in the Properties for the payment and discharge of any obligations
imposed upon Landlord under this Lease.
| 28.17 |
No
Lease Until Accepted
|
Landlord’s delivery of unexecuted copies or drafts of this Lease
is solely for the purpose of review by the party to whom delivered and is in no
way to be construed as an offer by Landlord nor in any way implies that Landlord
is under any obligation to lease the Properties. When this Lease has been
executed by both Landlord and Tenant, it shall constitute a binding agreement to
lease the Properties upon the terms and conditions provided herein and Landlord
and Tenant agree to execute all instruments and documents and take all actions
as may be reasonably necessary or required in order to consummate the lease of
the Properties as contemplated herein.
This Lease may be executed in any number of counterparts, each of
which shall be deemed an original. The counterparts shall together constitute
but one agreement. Any signature on a copy of this Lease or any document
necessary or convenient thereto sent by facsimile shall be binding upon
transmission by facsimile and the facsimile copy may be utilized for the
purposes of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally
bound, have executed this Land and Building Lease Agreement the day and year
first set forth above.
|
LANDLORD:
|
TENANT:
|
| | |
|
FRANKLIN
SALTLAKE LLC, a Utah limited liability company
|
FRANKLIN
DEVELOPMENT CORPORATION, a Utah corporation
|
| | |
| | |
| | |
|
By:
|
By:
|
|
Its:
|
Its:
|
| | |
| | |
|
Date:
|
Date:
|
| | |
Exhibit A
to
Lease Agreement
Base Monthly Rent: Two Hundred and Fifty-Three Thousand and Six
Hundred and Sixty-Seven Dollars ($253,719.25)
Franklin Building $12.00
Xxxxxxx Xxxxx Building $9.00
Xxxxx Building $9.00
Washington Building $9.00
Jefferson Building $9.00
Property List; Legal Descriptions of Properties
Parcel 1
Garden Area Parcel
Beginning at a point on the Easterly Right of Way line of Xxxxxx Lake
Boulevard, said point being xxx Xxxx 3067.40 feet and due South 1207.42 feet
from the Center of Section 22, Township 1 South, Range 1 West, Salt Lake Base
and Meridian, said point also being on a 167.00 foot radius curve to the right,
the radius point of which bears North 05°50’30” East; thence along said Easterly
line the following three (3) courses: Northerly along the arc of said curve
245.29 feet through a central angle of 84°09’27” (Chord to said curve bears
North 42°04’54” West 223.84 feet); thence North 173.73 feet to the point of an
1974.03 foot radius curve to the right, thence Northerly along the arc of said
curve 46.54 feet; thence East 149.44 feet; thence South 386.13 feet to the point
of beginning.
Parcel 2
Franklin Building
Beginning at a point on the Westerly Right of Way line of Xxxxxx Lake
Boulevard, said point being South 00°03'10' East 540.23 feet and West 1279.14
feet and South 25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet
and North 37°00'33" West 60.00 feet and South 52°59’27” West 40.00 feet and
North 37°00’03” West 282.82 feet from the Center of Section 22, Township 1
South, Range 1 West, Salt Lake Base and Meridian, said point also being xxx Xxxx
2394.73 feet and due South 1763.83 feet from said Center Section Monument, said
point also being on a 368.22 foot radius cure to the left, the radius point of
which bears South 41°50’56” West; thence Northwesterly along the arc of said
curve 268.95 feet, through a central angle of 41°50’56” (Chord bears North
69°04’32” West 263.01 feet); thence West 29.97 feet; thence South 30°00’00” East
195.52 feet; thence South 45°03’09” West 129.64 feet; thence North 44°56’51”
West 44.17 feet; thence West 177.02 feet; thence South 45°00’00” West 109.13
feet; thence North 45°00’00” West 78.37 feet; thence North 251.40 feet; thence
West 45.24 feet to a point of a 233.00 foot radius curve to the right; thence
Northerly 366.00 feet along the arc of said curve, through a central angle of
90°00’00” (Chord to said curve bears North 45°00’00” West 329.51 feet); thence
North 395.61 feet to a point on the Westerly right-of-way line of Xxxxxx Lake
Boulevard, said point also being on a curve to the left, the radius point of
which bears East 233.00 feet; thence Southeasterly 366.00 feet along the arc of
said curve and said Westerly line through a central angle of 90°00’00” (Chord
bears South 45°00’00” East 329.51 feet); thence along said Westerly line the
following six(6) courses: East 291.65 feet to a point of a 268.56 foot radius
curve to the right, the radius point of which bears South; thence Southeasterly
383.17 feet along the arc of said curve through a central angle of 81°44’53”
(Chord bears South 49°07’34” East 351.49 feet); thence South 08°15’07” East
61.35 feet to a point of a 334.56 foot radius curve to the left, the radius
point of which bears North 81°44’53” East; thence Southeasterly along the arc of
said curve 167.92 feet through a central angle of 28°45’26” (Chord bears South
22°37’50” East 166.16 feet); thence South 52°59’27” West 7.00 feet; thence South
37°00’33” East 51.64 feet to the point of beginning.
Parcel 3
Jefferson, Xxxxx & Washington
Buildings
Beginning at a point on the Westerly Right of Way line of Xxxxxx Lake
Boulevard, said point being South 00°03'10' East 540.23 feet and West 1279.14
feet and South 25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet
and North 37°00'33" West 60.00 feet and South 52°59’27” West 40.00 feet from the
Center of Section 22, Township 1 South, Range 1 West, Salt Lake Base and
Meridian, said point also being xxx Xxxx 2224.50 feet and due South 1989.67 feet
from said Center Section Monument and running thence South 07°59’27” West 28.03
feet to the Northerly right-of-way line of Parkway Boulevard said point also
being on an 1102.87 foot radius curve to the right, the radius point of said
curve bears North 35°59’21” West; thence Westerly along the arc of said curve
and said right-of-way line 691.27 feet, through a central angle of 35°54’45”
(Chord to said curve bears South 71°58’01” West 680.01 feet); thence South
89°55’56” West 115.06 feet; thence North 83°32’31” West 75.29 feet; thence North
06°27’29” East 57.95 feet; thence North 45°00’00” West 199.09 feet; thence North
77.78 feet; thence North 45°00’00” West 95.35 feet; thence North 45°00’00” East
105.79 feet; thence North 59°22’26” West 127.77 feet; thence North 40°01’24”
East 157.77 feet to a point on a 233 foot radius curve to the left, the radius
point of which bears North 40°01’24” East; thence Easterly 162.76 feet along
said curve through a central angle of 40°01’24” (Chord to said curve bears South
69°59’18” East 159.47 feet); thence East 45.24 feet; thence South 251.40 feet;
thence South 45°00’00” East 78.37 feet; thence North 45°00’00” East 109.13 feet;
thence East 177.02 feet; thence South 44°56’51” East 44.17 feet; thence North
45°03’09” East 129.64 feet; thence North 30°00’00” West 195.52 feet; thence East
29.97 feet to a point of a 368.22 foot radius curve to the right; thence along
the arc of said curve 268.95 feet, through a central angle of 41°50’56” to a
point of non-tangency said point also being on said Westerly right-of-way line;
thence South 37°00’33” East along said right-of-way line 282.82 feet to the
point of beginning.
Parcel 4
Xxxxxxx Xxxxx Building
Beginning at a point on the Easterly Right of Way line of Xxxxxx Lake
Boulevard, said point being South 00°03'10' East 540.23 feet and West 1279.14
feet and South 25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet
and North 37°00'33" West 60.56 feet and North 52°59’27” East 40.00 feet from the
Center of Section 22, Township 1 South, Range 1 West, Salt Lake Base and
Meridian, said point also being xxx Xxxx 2160.95 feet and due South 1941.07 feet
from said Center Section Monument, and running thence along said Easterly line
the following five(5) courses: North 37°00’33” West 333.90 feet; thence South
52°59’27” West 7.00 feet to a point on a 268.56 foot radius curve to the right,
the radius point of which bears North 52°59’27” East; thence Northerly 134.79
feet along the arc of said curve, through a central angle of 28°45’26” (Chord to
said curve bears North 22°37’50” West 133.38 feet); thence North 08°15’07” West
61.35 feet to a point of a 334.56 foot radius curve to the left, the radius of
said curve bears South 81°44’53” West; thence Northwesterly 477.34 feet along
the arc of said curve, through a central angle of 81°44’53” (Chord to said curve
bears North 49°07’33” West 437.87 feet); thence East 284.95 feet; thence South
36°58’23” East 775.35 to a point on the Northerly right-of-way line of Parkway
Boulevard, said point also being on a 1438.24 foot radius curve, the radius
point of which bears North 46°14’40” West; thence Southwesterly 172.48 feet
along the arc of said curve, through a central angle of 06°52’16” to a point on
said Easterly line; thence North 82°00’33” West along said Easterly line 27.34
feet to the point of beginning.
