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[EXHIBIT 10.27]
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into as of the 31st
day of October, 1997, by and between GENEVA ROCK PRODUCTS, INC., a Utah
corporation (hereinafter referred to as the "Landlord"), and Beehive Insurance
Agency, a Utah Corporation (hereinafter referred to as the "Tenant," whether one
or more).
The Landlord and the Tenant hereby agree as follows:
1. FUNDAMENTAL LEASE PROVISIONS.
1.1. Description of Premises. The Premises consist of approximately
1,291 square feet of finished useable area (hereinafter the "Useable Area") in
the Plaza 5300 Office Building (hereinafter the "Building") situated on certain
real property (hereinafter the "Property") located at 000 Xxxx 0000 Xxxxx, Xxxx
Xxxx Xxxx, Xxxx Xxxx Xxxxxx, Xxxxx of Utah. The Premises consist of the area
cross-hatched on the floor plan attached as Exhibit A hereto.
1.2. Rentable Area. The Premises are deemed to consist of 1,490 square
feet of rentable area (hereinafter the "Rentable Area"), which Rentable Area
consists of the Useable Area plus a portion of the Common Areas (as defined in
Section 1.12 hereof) which have been attributed to the Premises.
1.3. Parking. For purposes of Section 2.2 hereof, the parking stalls
consist of five (5) unidentified and unreserved parking stalls located in the
Parking Areas located upon the Property (hereinafter the "Parking Areas") and
related to the Building. Parking stalls located in the Parking Areas are
hereinafter sometimes referred to as the "Parking Stalls."
1.4. Landlord's Finishing Allowance. N/A.
1.5. Term. N/A
1.6. Rent. The annual rent under this Lease shall be the sum of Nineteen
Thousand Three Hundred Seventy Dollars ($19,370.00) per year, computed at the
rate of $13.00 per year per square foot of Rentable Area included in the
Premises. The annual rent shall be paid in monthly installments of One Thousand
Six Hundred Fourteen and 17/100 Dollars ($1,614.17) each as provided in Section
4.1 hereof.
1.7. Prepaid Rent. N/A.
1.8. Security Deposit. N/A.
1.9. Addresses for Notices. The initial addresses of the Landlord and
the Tenant for notices, demands, and other communications under this Lease as
provided in Section 13.1 hereof are as follows:
(a) Landlord's Address:
Geneva Rock Products, Inc.
0000 Xxxx 000 Xxxxx
Xxxx, Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxxxxx
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(b) Tenant's Address:
Beehive Insurance Agency
000 X. 0000 X., Xxxxx 000
Xxxxxx, Xxxx 00000
Attn: Xxxx Xxxx
1.10. Brokers. The names of all Real Estate Brokers involved with this
Lease are as follows:
- None - .
1.11. Common Areas. "Common Areas" means all areas, space, equipment,
and special services provided for the joint or common use and benefit of the
tenants or occupants of the Building and Property or portions thereof, and their
employees, agents, licensees, and other invitees (collectively referred to
herein as "Occupants"), including without limitation, the following: Parking
Areas, access roads, driveways, retaining walls, landscaped areas, serviceways,
pedestrian walks, courts, stairs, ramps, sidewalks, common corridors, restrooms,
air conditioning, fan, janitorial, electrical, and telephone rooms or closets,
elevators, and all other areas within the Building which are not intended for
exclusive use or occupancy by the Landlord or any tenant (whether or not at the
time leased or occupied).
1.12. Improvements. "Improvements" shall mean the Building, the Parking
Areas, and all other improvements on the Property necessary or appropriate to
enable use of the Building as contemplated from time to time.
1.13. Exhibits and Riders. Exhibits A through D, inclusive, attached
hereto are by this reference made a part hereof.
1.14. Deadline for Acceptance. N/A.
1.15. References. All references in this Section 1 to other sections of
this Lease are for convenience and designate only some of the other sections
where references to particular Fundamental Lease Provisions appear. Each
reference in this Lease to any of the Fundamental Lease Provisions contained in
this Section 1 shall be construed to incorporate all of the terms provided under
each such Fundamental Lease Provision. In the event of conflict between any
Fundamental Lease Provision and the balance of the Lease, the latter shall in
all events control.
2. PREMISES.
2.1. Premises. For and in consideration of the rents herein reserved and
the covenants and agreements herein contained on the part of the Tenant to be
performed and observed, the Landlord hereby leases and demises to the Tenant,
and the Tenant hereby takes from the Landlord, the Premises described in Section
1.1 hereof.
2.2. Parking Stalls. During the term of this Lease and subject to
reasonable rules and regulations from time to time adopted by the Landlord, the
Tenant shall have the nonexclusive right to use, on an unreserved basis up to,
but not exceeding, the number of Parking Stalls specified in Section 1.3. In
addition to other reasonable rules and regulations relating to parking, the
Landlord shall have the right to designate specific Parking Stalls or areas in
the Parking Areas located upon the Property for exclusive use by visitors or by
other lessees, occupants, or users of the Improvements. Automobiles of the
Tenant and all Occupants associated with the Tenant shall be parked only in
Parking Stalls designated by the Landlord for use by the Tenant and not
otherwise reserved by the Landlord for use by visitors or by any other tenant or
Occupant associated with any other tenant. The Landlord shall have no obligation
to
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ensure that the parking rights of the Tenant provided for in this Section 2.2
are not impaired or violated by other parties, including without limitation
other lessees, occupants, and users of the Improvements. In no event shall
automobiles, trucks, or vehicles of any nature be parked at any time in access
roads, driveways, serviceways, or loading docks (except for such periods of time
as are reasonably necessary for loading or unloading such trucks or vehicles and
not prohibited by the rules and regulations established by the Landlord).
2.3. Use of Additional Areas. During the term of this Lease and subject
to reasonable rules and regulations from time to time adopted by the Landlord,
the Tenant shall have the non-exclusive right to use the Common Areas with
respect to the Building and the Property as may be reasonably necessary for
access to and egress from the Premises and the Parking Areas.
2.4. No Airspace or Subsurface Rights. This Lease confers no rights with
respect to the subsurface of the Property below the lowest level of the floor of
the Premises, or with respect to airspace more than one (1) foot above the
interior ceiling of the top floor of the Premises.
2.5. Finishing of Premises. The arrangement that is to apply relative to
improvement and finishing of the Premises is described in Exhibit B attached
hereto. The monetary contribution that is to be made by the Landlord toward the
cost of such improvement and finishing (which is referred to in Exhibit B as the
"Landlord's Finishing Allowance"), if any, is the sum specified in Section 1.4
hereof as the Landlord's Finishing Allowance. The Landlord's Finishing Allowance
shall be disbursed to the contractors who have accomplished the improvement and
finishing of the Premises in accordance with the procedures and guidelines set
forth in Exhibit B attached hereto. The Tenant shall be solely responsible for
all other amounts expended or incurred in connection with improvement and
finishing of the Premises.
3. TERM AND OCCUPANCY.
3.1. Term. The term of this Lease shall be for the period specified in
Section 1.5 hereof.
4. RENT AND PAYMENT OF RENT.
4.1. Basic Rent. The Tenant shall pay to the Landlord as annual rent, in
excess of any other charge to be paid by the Tenant under this Lease, the sum
per year specified in Section 1.6 hereof, which annual rent shall be payable in
equal consecutive monthly installments each in the amount specified in said
Section 1.6, in advance on the first day of each and every calendar month
throughout the term hereof; (provided, however, that if the commencement date of
the term is other than the first day of a calendar month, then the Tenant shall
pay to the Landlord, on such date, a pro rata share of the monthly rent amount
as rent for the fractional calendar month with which the term hereof begins).
Any rent or other charges under this Lease not paid by the Tenant when due shall
bear interest from the due date thereof until paid at the rate of eighteen
percent (18%) per annum.
4.2. Prepaid Rent. Concurrently with the Tenant's execution of this
Lease, the Tenant shall pay to the Landlord the sum specified in Section 1.7
hereof as prepaid monthly rent for the calendar month(s) specified in said
Section 1.7, to the extent such sum is sufficient therefor.
4.3. Adjustment of Basic Rent. As of January 1 of each year during the
term hereof and every January 1 thereafter (hereinafter the "Adjustment
Date(s)"), including the option term, the amount of the basic rent under Section
4.1 hereof (including the annual rent and the monthly installments) shall be
increased as provided in this Section 4.3. The base for computing the increase
shall be the United States Consumer Price Index--All Items (for all urban
consumers) published by the United States Department of Labor, Bureau of Labor
Statistics (hereinafter the "Index"), which is published nearest the date on
which the term of this Lease commences (hereinafter the "Base Index"). If the
Index published nearest the
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respective Adjustment Date (hereinafter the "Extension index") has increased
over the Base Index, then the basic rent under Section 4.1 hereof for the term
of this Lease remaining after the respective Adjustment Date shall be determined
by multiplying the basic rent by a fraction, the numerator of which is the
Extension Index and the denominator of which is the Base Index. If the Extension
Index has not increased over the Base Index, then the basic rent for the term of
this Lease remaining after the Adjustment Date (until the next Adjustment Date)
shall remain unchanged from the amount of basic rent immediately preceding such
Adjustment Date. Promptly following adjustment of the basic rent hereunder, the
Landlord and the Tenant shall execute an amendment to this Lease stating the new
basic rent; provided, however, failure of the parties to execute such amendment
shall not relieve the Tenant of its obligation to pay increases in back rent
pursuant to this Section 4.3. If publication of the Index is discontinued, the
Landlord and the Tenant agree to accept comparable statistics on the average
cost of living for urban areas or cities in the United States computed and
published by an agency of the United States or a responsible financial
periodical of recognized authority to be selected by the Landlord and approved
by the Tenant, such approval not to be unreasonably withheld by the Tenant.
4.4. Place of Payment. All payments of rent, additional rent, and other
amounts to be paid to the Landlord under the terms of this Lease shall be made
in lawful money of the United States, free from all claims, demands, set-offs,
and counterclaims of any kind or nature whatsoever, and shall be delivered to
the Landlord at such place as the Landlord may from time to time designate in
writing.
4.5. Option Term Rent. Basic rent under Section 4.1 hereof shall, during
the Option Term, be equal to the basic rent payable at the expiration of the
initial term of this Lease, subject to periodic adjustment during the Option
Term in accordance with Section 4.3 hereof.
5. SECURITY DEPOSIT.
5.1. Amount of Deposit. The Tenant, contemporaneously with the execution
of this Lease, shall deposit with the Landlord a security deposit in the sum
specified in Section 1.8 hereof. Such deposit shall be held by the Landlord,
without liability for interest, as security for the faithful performance by the
Tenant of all of the terms, covenants, and conditions of this Lease on the part
of the Tenant to be observed or performed during the term hereof. If at any time
during the term of this Lease any of the rent herein provided shall be overdue
and unpaid, or any other sum to be paid hereunder by the Tenant to the Landlord
shall be overdue and unpaid, then the Landlord shall at its option have the
right, but not the obligation, to appropriate and apply any portion of said
deposit to the payment of any such overdue rent or other sum. If the entire
deposit, or any portion thereof, should be appropriated and applied by the
Landlord for the payment of overdue rent or other sums to be paid hereunder by
the Tenant to the Landlord, then the Tenant shall immediately upon demand remit
to the Landlord a sufficient amount in cash to restore said security deposit to
the sum specified in Section 1.8 hereof, and the Tenant's failure to do so
within ten (10) days after receipt of such demand shall constitute a default
under this Lease. If the Tenant complies with all of said terms, covenants, and
conditions and promptly pays all of the rent herein provided for and all other
sums to be paid by the Tenant to the Landlord hereunder, then the said security
deposit shall be returned in full to the Tenant within thirty (30) days after
the termination of this Lease. The Landlord's obligations with respect to the
security deposit are those of a debtor, and not of a trustee.
5.2. Transfer of Deposit. In the event of an assignment or transfer of
the Landlord's interest in the Premises, the Landlord shall have the right to
transfer the security deposit or remaining balance thereof to the assignee or
transferee of the Landlord's interest, and the Landlord shall thereupon be
released and discharged from all liability for return of such deposit. In the
event of any permitted assignment of this Lease by the Tenant, the security
deposit shall be deemed to be held by the Landlord as a deposit made by the
assignee, and the Landlord shall have no further liability with respect to
return of said deposit to the assignor.
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6. USE OF PREMISES.
6.1. Use. The Tenant shall use the Premises only as general office space
(excluding medical and dental offices) and for purposes ordinarily incidental to
such use. The business to be conducted from the Premises shall be only the
insurance business; no other business or activity shall be conducted upon the
Premises without the prior written consent of the Landlord, which the Landlord
may withhold in its sole discretion. The Tenant shall not make any use of the
Premises which would in any way increase the cost of fire or other insurance on
the Building or limit any portion of the coverage thereunder. The Tenant shall
not commit any waste upon the Premises and shall not conduct or allow any
business, activity, or thing on the Premises which is or becomes unlawful,
prohibited, or a nuisance or which may be an annoyance or cause damage to the
Landlord or other lessees, occupants, or users of the Improvements. The Tenant
shall comply with and abide by all laws, ordinances, and regulations of all
municipal, county, state, and federal authorities which are now in force or
which may hereafter become effective with respect to use and occupancy of the
Premises, including without limitation all requirements imposed under the
Americans with Disabilities Act. The Tenant shall not overload the floor of the
Premises. The Tenant shall not obstruct or use for other than their intended
purposes any part of the Property, Parking Areas, or Common Areas.
6.2. Rules and Regulations. The Tenant shall comply with the rules and
regulations attached hereto as Exhibit C. In addition, the Landlord shall have
and reserves the right from time to time to adopt, promulgate, amend, and
supplement rules and regulations applicable to the Property, the Improvements,
and the use and operation thereof. Provided that such additional rules and
regulations are reasonable and do not discriminate against the Tenant in favor
of other lessees of space in the Building (other than the designation of
reserved Parking Stalls), the Tenant agrees to comply with and observe all such
rules and regulations. The Tenant's failure to do so shall constitute a default
under the terms of this Lease just as if such rules and regulations were
contained herein as covenants. The Landlord shall not be responsible to the
Tenant for enforcement of any such rules and regulations against other parties,
including other lessees of space in the Building.
6.3. Access to Premises. The Landlord shall have the right and the
Tenant shall permit the Landlord to enter the Premises at reasonable times for
the purpose of inspecting, altering, and repairing the Premises and ascertaining
compliance with the provisions of this Lease by the Tenant; provided, that such
right of access shall not create any duty or obligation of maintenance or repair
by the Landlord other than as expressly provided in this Lease. The Landlord may
show the Premises to prospective purchasers, lessees, or mortgagees at
reasonable times. During the nine months prior to the expiration of the term of
this Lease or any renewal term or any time the Tenant is in default, the
Landlord may exhibit the Premises to prospective tenants and place upon the
Premises the usual notices "To Let" or "For Rent," which notices the Tenant
shall permit to remain thereon without molestation. The Landlord may enter the
Premises without notice to the Tenant in the event of an emergency affecting the
Building.
6.4. Rights upon Termination. All alterations, additions, and fixtures,
other than the Tenant's movable personal property, which have been made or
installed by either the Landlord or the Tenant in the Premises shall be the
Landlord's property and shall be surrendered with the Premises as a part
thereof. Notwithstanding termination of the term of this Lease, the Tenant shall
be and remain liable to fully perform and fulfill all of its obligations under
this Lease relating to events occurring, circumstances existing, or obligations
or claims arising or attributable to, the period prior to the date of
termination.
6.5. Signs and Advertising. The Tenant, at its sole cost and expense,
shall have the right to place, construct, and maintain an interior sign on the
door to the Premises. Such interior sign shall be placed in the location in the
Building, in conformity with the size, location, construction, and style
specifications, and installed in accordance with the specifications set forth in
Exhibit B attached hereto. Except for the sign approved in Exhibit B, the Tenant
shall not have the right to place, construct, or
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maintain any other sign, advertisement, awning, banner, or other decoration
visible from the exterior of the Premises without the Landlord's prior written
consent, which consent may be withheld in the sole discretion of the Landlord.
Upon termination of this Lease, the Tenant shall, at the Tenant's sole cost and
expense, remove all signage from the Building, repair any damage occasioned by
or resulting from the installation and/or removal of such signage, and restore
the Building to the condition as existed prior to installation of the Tenant's
sign.
6.6. Hazardous Substances. The Tenant represents, warrants, and
covenants that the Tenant will not permit the Premises to be used to generate,
manufacture, refine, transport, store, use, handle, dispose of, transfer,
produce, process, or contain any "Hazardous Substances," as defined below. The
Tenant shall hold harmless, indemnify, and defend the Landlord and its
shareholders, officers, directors, employees, representatives, successors, and
assigns from and against any and all claims, fines, penalties, costs, injury,
expenses (including costs and expenses of remediation or clean-up), losses,
liabilities, and damages of any nature, arising from or related to any Hazardous
Substances brought upon the Premises during the term of this Lease or any
extensions hereof. The Tenant will not permit any petroleum products or
Hazardous Substances to be brought upon, stored, used, located, or installed in
or upon the Premises. As used herein, "Hazardous Substances" shall mean any
substances or material defined or designated as hazardous or toxic waste,
hazardous or toxic chemical, hazardous or toxic material, hazardous or toxic
substance, or other similar term, by any federal, state, or local environmental
statute, regulation, or ordinance presently in effect or coming into effect
prior to the termination of this Lease and surrender of the Premises by the
lessee pursuant to Section 13.4 hereof, and, as to the substances and materials
which are not specifically identified in any such statute, regulation, or
ordinance by name, which are known to be toxic or hazardous under presently
existing and generally accepted scientific knowledge.
7. UTILITIES, MAINTENANCE, AND ALTERATIONS.
7.1. Tenant's Maintenance.
The Tenant shall, at the Tenant's sole cost and expense, keep and
maintain the Premises in good condition and repair, and shall suffer no waste
with respect thereto. The Tenant shall, at the Tenant's sole cost and expense,
make all needed repairs and replacements, ordinary and extraordinary, including,
but not limited to replacement of cracked or broken glass, and shall keep the
plumbing units, pipes, and connections free from obstruction and protected
against ice and freezing. The Tenant shall replace or repair, at the Tenant's
sole cost and expense, any damage caused to any portion of the Property, the
Building, or any other Improvement by the Tenant, its employees, contractors,
representatives, or invitees. All repairs by the Tenant shall be at the Tenant's
sole expense, under the Landlord's supervision. These repairs and replacements
will be of a quality equal to the original work. Although the Landlord shall
have no duty or obligation to notify the Tenant of needed repairs or
maintenance, if any repairs or maintenance required to be made by the Tenant
hereunder are not made within ten (10) days after written notice delivered to
the Tenant by the Landlord designating the need for such repairs or maintenance,
the Landlord may, at its option, make such repairs, and the Tenant shall pay to
the Landlord, upon demand, as additional rent hereunder, the cost of such
repairs plus fifteen percent (15%) as an administration fee to the Landlord. At
the expiration of this Lease, the Tenant shall surrender the Premises in the
same condition in which they existed at the commencement of this Lease,
reasonable wear excepted, and shall surrender all keys for the Premises to the
Landlord and shall inform the Landlord of all combinations on locks, safes, and
vaults, if any, in or upon the Premises.
7.2. Alterations. The Tenant shall not make any alterations to the
Premises without the Landlord's prior written consent. Any alterations shall
remain on and be surrendered with the Premises on expiration or termination of
the termination of the term of this Lease, except that the Landlord can elect
prior to expiration of the term, or within ninety (90) days after termination of
the term, to require the Tenant to remove any alternations that the Tenant has
made to the Premises. If the Landlord elects to
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require the Tenant to remove any alterations from the Premises, the Tenant, at
its sole cost and expense, shall remove such alternations and restore the
premises to their condition existing prior to the Tenant's alterations, before
the last day of the term, or within twenty (20) days after notice of election as
given, whichever is later. If the Tenant makes any alterations to the Premises
as provided in this Section 7.2, the alterations shall not be commenced until
ten (10) days after the Landlord has received written notice from the Tenant
stating the date the installation of the alterations is to commence, describing
in detail the alterations to be made, and providing satisfactory evidence to the
Landlord of arrangements for payment for such alterations. All alterations by
the Tenant must be made by a contractor licensed to perform such work in the
State of Utah. This notice shall not relieve the Tenant of the necessity for
obtaining the consent of the Landlord as provided in this Section 7.2.
7.3. Mechanic's Liens. The Tenant shall pay all costs for construction
done by it or caused to be done by it on the Premises as permitted by this
Lease. The Tenant shall keep the Premises free and clear of all mechanic's liens
or other liens or encumbrances resulting from construction by or for the Tenant.
The Tenant shall have the right to contest the correctness or validity of any
such lien if, immediately on demand by the Landlord, the Tenant procures and
records a lien release bond issued by a corporation authorized to issue surety
bonds in Utah and reasonably acceptable to the Landlord in an amount equal to
two (2) times the amount of the claim of lien. The bond shall provide for the
payment of any sum that the claimant may recover on the claim (together with
attorneys' fees and costs of suit, if it recovers in the action). In the event
such bond is insufficient to cause the lien to be released from the Property,
the Tenant shall be required to make payment of the claims as necessary to
release and discharge the liens from the Property.
7.4. Utilities and Services. In addition to the rent and additional rent
as provided herein, the Tenant shall make all arrangements for and pay for all
utilities and services furnished to or used on or in the Premises at the request
of the Tenant, including without limitation telephone, cable, and internet
service, and hook-up and connection charges. In the event that the Tenant fails
to pay any charges for utilities to be paid by it pursuant to this Lease, such
payment may, but need not, be made by the Landlord and upon such payment, the
amount paid by the Landlord plus fifteen percent (15%) for administration, shall
be treated as additional rent due from and immediately payable by the Tenant to
the Landlord hereunder.
The Landlord shall provide heat and air conditioning as required for the
comfortable occupancy of the Demised Premises under normal business conditions,
daily from 7:00 a.m. to 6:00 p.m., Saturdays, Sundays, and holidays excepted.
Further, the foregoing refers to heating and air conditioning under normal use
and does not include any areas which develop excessive heat from machines,
lights, or other sources. The air conditioning and heating in all such areas
which require special treatment shall, upon the Landlord's written consent as to
the design and quality thereof, be installed and paid for by the Tenant and the
additional electrical or gas consumption shall be paid by the Tenant at the
utility rates in effect from time to time.
The Landlord may, at its option, but at the Tenant's expense, install
appropriate meters to properly record the Tenant's utility useage. The Tenant
agrees to pay the Landlord for any electrical consumption in excess of
electrical consumption customary for other tenants in the Building for normal
business hours.
7.5 Janitorial Services. Janitorial services shall be provided by the
Landlord in the attached Exhibit D entitled "JANITORIAL SERVICES", which by this
reference is incorporated as part of this Lease. Janitorial services shall be
provided in the evening, Monday through Friday, and shall be of the same quality
as other Class B buildings located in the geographical area of the Building.
These services shall be provided to the Premises and all Common Areas in the
Building.
8. INDEMNITY AND EXCULPATION; INSURANCE.
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8.1. Exculpation of Landlord. The Landlord shall not be liable to the
Tenant for any damage to the Tenant or the Tenant's property from any cause. The
Tenant waives all claims against the Landlord for damage to person or property
arising for any reason, except that the Landlord shall be liable to the Tenant
for damage to the Tenant resulting from the negligent or wrongful acts or
omissions of the Landlord or its authorized representatives.
8.2. Indemnity. The Tenant shall release, defend, indemnify and hold the
Landlord and its officers, shareholders, directors, employees, agents,
representatives, successors, and assigns harmless from all claims, injury, loss,
liability, judgments, or damages arising out of any damage to any person or
property occurring in, on, or about the Premises, except that the Landlord shall
be liable to the Tenant for damage resulting from the gross negligence or
intentional wrongful acts or omissions of the Landlord or its authorized
representatives. The Landlord shall hold the Tenant harmless from all damages
arising out of any such damage resulting solely from its gross negligence or
intentional wrongful acts or omissions with respect to the Premises.
8.3. Insurance to be Provided by Tenant. The Tenant shall maintain the
insurance described below throughout the Term of this Lease, all extensions
thereof, and during any period when the Premises is in the possession of the
Tenant, and each policy of such insurance will name, as insureds, the Tenant,
the Landlord, and any lender or mortgagee of the Landlord as their respective
interests may appear. The insurance which the Tenant is required to maintain is
as follows:
(i) Insurance on all Improvements erected by the Tenant on the Premises
and all personal property, equipment, fixtures, or inventory of the
Tenant located upon the Premises against loss or damage by fire and such
other risks as are now or hereafter included in an extended coverage (all
risks) endorsement in common use for commercial structures, including
vandalism, malicious mischief, and theft. The amount of such all risks
property insurance shall be sufficient to prevent either the Landlord or
the Tenant from becoming a co-insurer under the provisions of the
policies, but in no event shall the amount be less than ninety percent
(90%) of the then actual replacement cost of such Improvements, personal
property, equipment, fixtures, or inventory on the Premises, without
deduction for depreciation. Such policies shall include an agreed amount
endorsement.
(ii) Commercial general liability insurance, including without
limitation, public liability and property damage insurance, personal
injury liability, broad form contractual liability (sufficient to cover
the Tenant's indemnification obligations under this Lease), employer's
liability, and owner's and contractor's protective insurance coverage, as
well as owned and nonowned auto liability, with respect to the Premises
and those areas of the Property used by the Tenant as Common Areas, and
all Improvements located thereon or therein, with coverage including the
activities and operations conducted by the Tenant and any other person on
the Premises and by the Tenant and any other person performing work on
behalf of the Tenant and those for whom the Tenant is in law responsible.
These policies will be (1) written with limits of at least One Million
and No/100 Dollars ($1,000,000.00) per occurrence for bodily injury and
property damage combined, and aggregate coverage limits of at least One
Million and No/100 Dollars ($1,000,000.00) for bodily injury and for any
one or more persons, or property damage (but the Landlord, acting
reasonably, or the mortgagee of the Landlord, may require higher limits
from time to time), and (2) containing a severability of interests clause
and cross-liability clauses.
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(iii) All statutory xxxxxxx'x compensation insurance, including without
limitation all employer's liability coverage and other employer's
insurance commonly insured against by prudent tenants.
(iv) Automobile liability insurance, with a minimum combined single
limit coverage of Three Hundred Thousand and No/100 Dollars ($300,000.00)
or greater.
8.4. Insurance Requirements. The policies of insurance required under
Section 8.3 above will contain the mortgagee's standard mortgage clause and may
have reasonable deductibles of up to Five Thousand and No/100 Dollars
($5,000.00). If there is a dispute as to the amount of the replacement cost, the
Landlord shall reasonably determine such amount. All policies will (i) be taken
out with insurers acceptable to the Landlord, having a Best rating of A- or
better; (ii) be in a form reasonably satisfactory to the Landlord; and (iii)
contain an undertaking and agreement by the insurers to notify the Landlord and
the Landlord's mortgagee(s) in writing not less than thirty (30) days before any
material change, cancellation, or termination of any such insurance. The policy
shall name the Landlord and the Tenant as insureds, and shall contain a clause
that the insurer will not cancel or materially change the insurance pertaining
to the Premises without first giving the Landlord and the Landlord's lender, if
any, thirty (30) days written notice of change or cancellation. In addition to
delivery of evidence of insurance as provided in Section 8.6 hereof, the Tenant
shall at all times during the term hereof provide the Landlord with evidence of
current insurance coverage within ten (10) days of the Landlord's written
request for the same. All public liability, property damage, and other liability
policies shall be written as primary policies, not contributing with coverage
which the Landlord may carry. All such policies shall contain a provision that
the Landlord, although named as an insured, shall nevertheless be entitled to
recover under said policies for any loss occasioned to it, its representatives,
agents, and employees by reason of the negligence of the Tenant. All such
insurance shall specifically insure the performance by the Tenant of the
indemnity agreement as to liability for injury to or death of persons or injury
to or damage to property contained in Section 8.2 hereof.
8.5. Waiver of Subrogation. Each party shall cause each insurance policy
obtained by it to provide that the insurance company waives all right of
recovery by way of subrogation against either party in connection with any
damage covered by any policy. Neither party shall be liable to the other for any
damage caused by fire or any of the risks insured against under any insurance
policy required by this Lease. If any insurance policy cannot be obtained with a
waiver of subrogation, or is obtainable only by the payment of an additional
premium charge above that charged by insurance companies issuing policies
without waiver of subrogation, the party undertaking to obtain the insurance
shall notify the other party of this fact. The other party shall have a period
of ten (10) days after receiving the notice either to place the insurance with a
company that is reasonably satisfactory to the other party and that will carry
the insurance with a waiver of subrogation, or to agree to pay the additional
premium if such a policy is obtainable at additional cost. If the insurance
cannot be obtained or the party in whose favor a waiver of subrogation is
desired refuses to pay the additional premium charged, the other party is
relieved of the obligation to obtain a waiver of subrogation rights with respect
to the particular insurance involved.
8.6. Evidence of Insurance. The Tenant shall deliver certificates of
insurance, reasonably acceptable to the Landlord, executed by the Tenant's
insurers evidencing that the required insurance is in force, or, if required by
the Landlord or the Landlord's mortgagee, the Tenant will deliver certified
copies of each insurance policy as soon as possible after the placing of the
insurance. No review or approval of any insurance certificate or insurance
policy by the Landlord derogates from or diminishes the Landlord's rights under
this Lease.
8.7. Cancellation of Insurance. The Tenant shall not do or permit
anything to be done that results in the cancellation or threatened cancellation
or the reduction of coverage, or the threatened
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reduction of coverage, or the increase in the cost of premiums, under any
insurance policy on the Property, the Building, or the Improvements.
9. DAMAGE, DESTRUCTION, AND CONDEMNATION.
9.1. Except as otherwise provided in this Lease, in the event the
Premises are damaged by fire or other casualty, such damages shall be repaired
by and at the expense of the Landlord, but only to the extent that insurance
proceeds are available to the Landlord in an amount sufficient to accomplish
such repairs.
In the event such repairs cannot, in the reasonable opinion of the
Landlord, be substantially completed within sixty (60) days after the occurrence
of such damage (without the payment of overtime or other premiums) or with the
amount of insurance proceeds paid to the Landlord, the Landlord may, at its
option, exercisable by giving written notice to the Tenant within thirty (30)
days after the occurrence of such damage, make such repairs within a reasonable
time. In such event, this Lease shall continue in full force and effect and the
rent payable by the Tenant hereunder shall be reduced in accordance with the
provisions of this Section 9, until such repairs are completed.
In the event the Landlord determines in its reasonable opinion that such
repairs cannot be substantially completed within such sixty (60) day period, or
with the amount of insurance proceeds paid to the Landlord, and the Landlord
does not elect within thirty (30) days after the occurrence of such damage to
make such repairs, then either the Landlord or the Tenant may, by written notice
given to the other party within forty (40) days after the occurrence of such
damage, terminate this Lease. Such termination shall not release or discharge
the Tenant from its obligations to indemnify the Landlord pursuant to Section
8.2 hereof or its obligations resulting from a breach of the provisions of this
Lease occurring prior to termination.
Notwithstanding anything contained in this Lease to the contrary, the
Landlord shall not be responsible for any repairs or replacements caused by or
resulting from the negligence or wrongful acts of the Tenant or the Tenant's
employees, invitees, agents, or representatives. The Tenant shall be responsible
to repair and restore all damages caused by or resulting from the negligence or
wrongful acts of the Tenant or the Tenant's employees, invitees, agents, or
representatives. The Tenant shall not be entitled to terminate this Lease or to
obtain a reduction in rent pursuant to the provisions of this Section 9 if the
damage or destruction to the Premises is caused by or results from the
negligence or wrongful acts of the Tenant or the Tenant's employees, invitees,
agents, or representatives.
The Landlord shall not be required to make any repairs to or
replacements of any property installed in the Premises by the Tenant. Unless
this Lease is terminated by the Landlord, the Tenant shall repair and refixture
the interior of the Premises in a manner and in at least a condition equal to
that existing prior to the destruction or casualty, and the proceeds of all
insurance carried by the Tenant on its property and fixtures shall be held in
trust by the Tenant for the purpose of said repair and replacement.
To the extent covered by insurance, the Landlord and the Tenant hereby
release each other from responsibility from loss or damage occurring on or to
the Premises or to the contents thereof, caused by fire or other hazards covered
by the fire and extended coverage insurance policies in force on the Premises
and each waives all rights of recovery against the other for such loss or
damage. Willful misconduct lawfully attributable to either party, whether in
whole or in part a contributing cause of the casualty giving rise to the loss or
damage, shall not be excused under the foregoing release and waiver.
9.2. Tenant Finish. The Landlord shall not be required to repair any
damage by fire or other cause to, or to make any repairs or replacements of, any
panels, decorations, office fixtures, floor coverings, partitions, or other
property installed in the Premises by the Tenant. The Tenant shall not be
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entitled to any compensation or damages from the Landlord for loss of the use of
the whole or any part of the Premises, or the Tenant's personal property, or any
inconvenience or annoyance occasioned by such damage, repair, reconstruction, or
restoration.
9.3. Abatement. In the event the Landlord elects to undertake repair of
the Premises in accordance with the provisions of Section 9.1 hereof, any
abatement of rent shall end five (5) days after notice by the Landlord to the
Tenant that the Premises have been repaired to the condition existing
immediately prior to the date of such damage. If the damage is caused by the
negligence or wrongful conduct of the Tenant or its employees, agents, invitees,
or concessionaires, there shall be no abatement of rent.
9.4. Condemnation. As used in this section, the term "Condemnation
Proceeding" shall mean any action or proceeding in which any interest in the
Property or in the Improvements is taken for any public or quasi-public purpose
by any lawful authority through exercise of the power of eminent domain or by
purchase or otherwise in lieu thereof. If the whole of the Premises is taken
through Condemnation Proceedings, then this Lease shall automatically terminate
as of the date of taking. If part, but not all, of the Premises is taken, either
the Landlord or the Tenant may terminate this Lease. The Landlord shall have the
right to terminate this Lease in the event any portion of the Improvements
(whether or not including the Premises) or of the Property is taken which, in
the Landlord's reasonable judgment, substantially interferes with the ability to
operate or use the Property and Improvements for the purposes for which they
were intended. Any such right of termination must be accomplished through
written notice to the other party given no later than sixty (60) days after the
later of the date of taking or the date on which the condemning authority takes
possession. In all other cases, or if neither party exercises its right to
terminate, this Lease shall remain in effect. If a portion of the Premises is
taken, the rent payable hereunder shall be reduced in the proportion that the
Useable Area taken bears to the original total Useable Area included in the
Premises. Whether or not this Lease is terminated as a consequence of
Condemnation Proceedings, all damages or compensation awarded for a partial or
total taking, including any award for severance damages and any sums
compensating for diminution in the value of or deprivation of the leasehold
estate under this Lease, shall be the sole and exclusive property of the
Landlord; provided, however, that the Tenant shall be entitled to any award for
the loss of or damage to the Tenant's alterations approved hereunder, trade
fixtures, and removable personal property.
10. ASSIGNMENT AND SUBLETTING.
10.1. Assignment and Subletting. The Tenant shall not, either
voluntarily or by operation of law, assign, transfer, mortgage, or encumber this
Lease or any interest herein, or sublet the Premises or any part thereof,
without first obtaining the written consent of the Landlord, which consent the
Landlord may grant or withhold in its sole and absolute discretion. A consent to
one such transaction shall not be deemed to be a consent to any subsequent
transaction. Consent to any assignment or subletting shall in no way relieve the
Tenant of any of its obligations under this Lease. Any assignment or subletting
without the Landlord's written consent shall constitute a default under this
Lease. The Landlord's acceptance of rent hereunder from any party other than the
Tenant shall in no event be or be deemed to be a waiver by the Landlord of any
provision of this Lease or a consent by the Landlord to any assignment,
transfer, mortgage, encumbrance, or subletting.
Any dissolution, merger, consolidation, or other reorganization of the
Tenant, or the sale or other transfer of a controlling percentage of the capital
stock or other ownership interests of the Tenant, or the sale of at least
fifty-one percent (51%) of the value of the assets of the Tenant, shall be
deemed a voluntary assignment. The phrase "Controlling Percentage" means the
ownership of, and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of the governing body of the Tenant.
This section shall not apply to corporations, the stock of which is traded
through an exchange or over the counter.
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The Tenant immediately and irrevocably assigns to the Landlord, as
security for the Tenant's obligations under this Lease, all rent from any
subletting of all or a part of the Premises as permitted by this Lease, and the
Landlord, as the assignee and as attorney-in-fact for the Tenant, or a receiver
for the Tenant appointed on the Landlord's application, may collect such rent
and apply it toward the Tenant's obligations under this Lease; except that,
until the occurrence of an act of default by the Tenant, the Tenant shall have
the right to collect such rent.
If the Tenant requests the Landlord to consent to a proposed assignment
or subletting, the Tenant shall pay the Landlord, whether or not consent is
ultimately given, the Landlord's reasonable attorneys' fees incurred in
connection with each such request.
11. DEFAULT AND REMEDIES.
11.1. Default by Tenant. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by the
Tenant: (a) The vacating or abandonment of the Premises; (b) the failure by the
Tenant to make any payment of rent hereunder within five (5) days after such
payment falls due; (c) the failure by the Tenant to make any other payment
required to be made by the Tenant hereunder, as and when due, where such failure
shall continue for a period of five (5) days after notice from the Landlord that
said payment is due and payable; or (d) the failure by the Tenant to observe or
perform any of the covenants, conditions, or provisions of this Lease to be
observed or performed by the Tenant, other than those described above, where
such failure shall continue for a period of thirty (30) days after written
notice thereof by the Landlord to the Tenant.
11.2. Remedies for Tenant's Default. In the event of any default under
this Lease by the Tenant, the Landlord shall have the following remedies:
(a) At its option and without waiving any default by the Tenant, the
Landlord shall have the right to continue this Lease in full force and effect
and to collect all rent, additional rent, and other amounts to be paid by the
Tenant hereunder as and when due. During any period that the Tenant is in
default hereunder, the Landlord shall also have the right, pursuant to legal
proceedings or pursuant to any notice provided for by law, to enter and take
possession of the Premises, without terminating this Lease, for the purpose of
reletting said Premises or any part thereof and making any alterations and
repairs that may be necessary or desirable in connection with such reletting.
Any such reletting or relettings may be for such term or terms (including
periods that would exceed the remaining term hereof), and at such rent or rents,
and upon such other terms and conditions as the Landlord may in its sole
discretion deem advisable. The Tenant agrees to pay to the Landlord the cost of
recovering possession of the Premises, all expenses of reletting (including
without limitation broker's commissions, expenses of remodeling the Premises
required by the reletting, and like costs), and any other costs or damages
arising out of the Tenant's default. Notwithstanding any reentry, the liability
of the Tenant for the rent provided for herein shall not be extinguished for the
balance of the term of this Lease; and the Tenant agrees to pay to the Landlord
any deficiency arising from reletting the Premises at a lesser rent than applies
under this Lease. No act by the Landlord nor entry or taking possession of the
Premises by the Landlord shall be construed as an election by the Landlord to
terminate this Lease, unless the Landlord gives written notice of such election
to the Tenant or unless such termination shall be decreed by a court of
competent jurisdiction. Notwithstanding any reletting by the Landlord without
termination, the Landlord may at any time thereafter terminate this Lease for
such previous default by giving written notice thereof to the Tenant. If the
Landlord elects to relet the Premises as provided in this Section 11.2(a), rent
that the Landlord receives from reletting shall be applied to the payment of:
(i) first, any indebtedness from the Tenant to the Landlord other than rent due
from the Tenant; (ii) second, all costs, including maintenance, incurred by the
Landlord in reletting; and (iii) third, rent, additional rent, and other amounts
due and unpaid under this Lease. After deducting the payments referred to in
this Section 11.2(a), any sum remaining from the
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rent the Landlord receives from reletting shall be held by the Landlord and
applied in payment of future rent as rent becomes due under this Lease. In no
event shall the Tenant be entitled to any excess rent received by the Landlord.
If, on the date rent is due under this Lease, the rent received from the
reletting is less than the rent or other costs or indebtedness due on that date
as provided in this Section 11.2(a), the Tenant shall pay such deficiency to the
Landlord immediately upon demand therefor by the Landlord.
(b) The Landlord shall have the right at its option to terminate this
Lease and the Tenant's right to possession hereunder by giving notice thereof to
the Tenant, in which case this Lease shall terminate and the Tenant shall
immediately surrender possession of the Premises to the Landlord. In such event
the Landlord shall be entitled to recover from the Tenant all damages incurred
by the Landlord by reason of the Tenant's default, determined as follows: (i)
The worth, at the time of the award, of the unpaid rent, additional rent, and
other amounts payable under the terms and provisions of this Lease that had been
earned and were unpaid at the time of termination of this Lease; (ii) the worth,
at the time of the award, of the amount by which the unpaid rent, additional
rent, and other amounts that would have been earned after the date of
termination of this Lease until the time of award exceeds the amount of the loss
of such rent, additional rent, and other amounts that the Tenant proves could
have been reasonably avoided; (iii) the worth, at the time of the award, of the
amount by which the unpaid rent, additional rent, and other amounts for the
balance of the term of the Lease after the time of the award exceeds the amount
of the loss of rent, additional rent, and other amounts that the Tenant proves
could have been reasonably avoided; and (iv) any other amount, and court costs,
necessary to compensate the Landlord for all detriment, injury, or loss
proximately caused by the Tenant's default. "The worth, at the time of the
award," as used in (i) and (ii) of this Section 11.2(b), is computed by allowing
interest at the lesser of eighteen percent (18%) per annum or the maximum rate
an individual is permitted by law to charge "the worth, at the time of the
aware," as referred to in (iii) of this Section 11.2(b), is to be computed by
discounting the amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%).
(c) The Landlord, at any time after the Tenant commits a default and has
failed to perform within fifteen (15) days of notice of such default from the
Landlord, can cure the default at the Tenant's cost. If the Landlord, by reason
of the Tenant's default, pays any sum or does any act that requires the payment
of any sum, the sum paid by the Landlord shall be immediately due from the
Tenant to the Landlord at the time the sum is paid, and if paid at a later date
shall bear interest at the lesser of eighteen percent (18%) per annum or the
maximum rate an individual is permitted by law to charge from the date the sum
is paid by the Landlord until the Landlord is reimbursed by the Tenant. The sum,
together with interest on it, shall be additional rent.
(d) In addition to the remedies provided in Sections 11.2(a) and (b)
hereof, the Landlord shall have all remedies now or hereafter provided by law
for enforcing the provisions of this Lease and the Landlord's rights hereunder.
In the event of any default hereunder by the Tenant, the Landlord shall be
entitled to recover from the Tenant all costs and expenses (including reasonable
attorneys' fees and court costs) incurred by the Landlord, with or without suit,
in obtaining possession of the Premises, in collecting any rent, additional
rent, or other amount due hereunder, or in enforcing or interpreting the
provisions of this Lease or any right of the Landlord hereunder.
11.3. Late Charge. The Tenant hereby acknowledges that late payment by
the Tenant to the Landlord of rent or other sums due hereunder will cause the
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges and late charges which may be
imposed upon the Landlord under the terms of any mortgage or deed of trust
affecting real property that includes the Premises. Accordingly, if any payment
of rent or any other sum due from the Tenant is not received by the Landlord or
the Landlord's designee within five (5) days after said amount is due, the
Tenant shall pay to the Landlord a late charge equal to the greater of $ 161.42
or ten percent (10%) of such overdue
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amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the cost that the Landlord will incur by reason of the
late payment by the Tenant. Such late charge shall be in addition to, and not in
lieu of, interest at the rate of eighteen percent (18%) per annum until paid on
any delinquent amounts owing in connection with this Lease and any and all costs
and expenses, including attorneys' fees, incurred by the Landlord in collecting
or attempting to collect any such delinquent amounts.
11.4. Default by Landlord. The Landlord shall not be in default under
this Lease unless the Landlord fails to perform an obligation required of it
within thirty (30) days after written notice by the Tenant to the Landlord and
to the holder of any first mortgage or deed of trust covering the real property
of which the Premises are a part, whose name and address have theretofore been
furnished to the Tenant in writing, specifying the respects in which the
Landlord has failed to perform such obligation; provided, however, that if the
nature of the Landlord's obligation is such that more than thirty (30) days are
reasonably required for performance or cure, then the Landlord shall not be in
default if the Landlord or such holder commences performance within such 30-day
period and thereafter diligently prosecutes the same to completion. In no event
shall the Tenant have the right to terminate this Lease or to withhold the
payment of rent or other charges provided for herein as a result of the
Landlord's default.
12. FINANCING AND SUBORDINATION.
12.1. Subordination. The Tenant agrees that this Lease shall
automatically be subordinate to the lien of any first-position mortgage or deed
of trust now or hereafter placed against the real property of which the Premises
comprise a part and to all renewals, modifications, supplements, consolidations,
and extensions thereof; provided, however, that in the event the holder of any
such mortgage or deed of trust shall so elect, its mortgage or deed of trust
shall, upon the terms required by such holder, be subordinate to this Lease.
Notwithstanding any of the foregoing, so long as the Tenant is not in default
hereunder, the Tenant shall not be disturbed in its possession of the Premises
during the full term of this Lease. The Tenant agrees to execute such further
documents in addition to this Lease as may be desired by the Landlord or by the
holder of any first-position mortgage or deed of trust with respect to the
subordination arrangement that is provided for above.
12.2. Attornment. In the event any proceedings are brought for
foreclosure of, or in the event of the exercise of the power of sale under, any
mortgage or deed of trust covering the Premises, the Tenant shall attorn to the
purchaser and shall recognize such purchaser as the Landlord under this Lease.
12.3. Financing Requirements. The Tenant recognizes that the Landlord's
ability from time to time to obtain mortgage loan financing for the real
property of which the Premises comprise a part may in part be dependent upon the
acceptability of the terms of this Lease to the lender concerned. Accordingly,
the Tenant agrees that from time to time it shall, if so requested by the
Landlord and if doing so will not substantially and adversely affect the
Tenant's economic interests hereunder, join with the Landlord in amending this
Lease so as to meet the needs or requirements of any lender which is considering
making or which has made a loan secured by a mortgage or deed of trust affecting
the Premises.
12.4. Estoppel Certificates. The Tenant shall from time to time, within
ten (10) business days after receiving written request therefor from the
Landlord, execute, acknowledge, and deliver to the Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease as so modified is in full force and effect), (ii) certifying the
date to which rent and other charges hereunder are paid in advance, (iii)
acknowledging that there are no uncured defaults under this Lease on the part of
the Landlord (or specifying such defaults if any are claimed), (iv)
acknowledging the commencement date and termination date of the term of this
Lease, (v) certifying the amount of the security deposit held by the Landlord,
and (vi) stating such other information as the Landlord may request. Any such
statement may be conclusively
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relied upon by any prospective purchaser or encumbrancer of the real property of
which the Premises are a part or any portion thereof or interest therein. The
Tenant's failure to deliver any such statement within such time shall be
conclusive upon the Tenant that (i) this Lease is in full force and effect,
without modification except as represented by the Landlord, (ii) not more than
one month's rent has been paid in advance, except as represented by the
Landlord, (iii) there are no uncured defaults hereunder in the Landlord's
performance, (iv) the commencement and termination dates are as represented by
the Landlord, (v) the amount of the security deposit is as represented by the
Landlord; and (vi) such other information requested is as represented by the
Landlord.
13. GENERAL PROVISIONS.
13.1. Notices. Any notice, demand, or other communication required
hereunder shall be in writing and shall be sufficient for all purposes if
personally delivered or if sent by certified or registered U.S. mail, return
receipt requested, postage prepaid, and addressed to the Landlord or to the
Tenant, as the case may be, at their respective addresses specified in Section
1.9 hereof or at such other address as either party may hereafter designate by
notice to the other party as herein provided. Notices, demands, and other
communications under this Lease shall be deemed to have been given and received
and shall be effective when personally delivered or two (2) business days after
deposited in the U.S. mail in the form herein provided, whichever first occurs.
13.2. Taxes on Tenant's Property. The Tenant shall pay or cause to be
paid, before delinquency, any and all taxes payable during or attributable to
any period during the term hereof which are levied or assessed upon the Tenant's
leasehold improvements, equipment, furniture, fixtures, or personal property
located in the Premises. In the event any or all of the Tenant's leasehold
improvements, equipment, furniture, fixtures, and personal property shall be
assessed and taxed with the Building, the Tenant shall pay to the Landlord its
share of such taxes within ten (10) days after the Landlord's delivery to the
Tenant of a written statement setting forth the amount of such taxes applicable
to the Tenant's property.
13.3. Limitation of Recourse. Anything in this Lease to the contrary
notwithstanding, the Tenant agrees that it shall look solely to the estate and
interest of the Landlord in the Property and Improvements, subject to prior
rights of the holder of any mortgage or deed of trust, for the collection of any
judgment (or other judicial process) requiring the payment of money by the
Landlord in the event of any default or breach by the landlord with respect to
any of the terms, covenants, and conditions of this Lease to be observed and/or
performed by the Landlord, and no other assets of the Landlord shall be subject
to levy, execution, or other procedures for the satisfaction of the Tenant's
remedies.
13.4. Surrender of Premises. At the expiration of this Lease, the Tenant
shall surrender the Premises in the same condition, less reasonable wear and
tear, as they were in upon delivery of possession of the Premises to the Tenant,
and shall deliver all keys to the Landlord. Before surrendering the Premises,
the Tenant shall remove all of its personal property and trade fixtures. The
Tenant shall restore and repair all damage occasioned by or resulting from the
removal of such property and fixtures. If the Tenant fails to remove its
personal property and fixtures upon the expiration of this Lease, the same shall
be deemed abandoned and shall, at the election of the Landlord, become the
property of the Landlord. In the event the Landlord does not elect to treat the
abandoned property as property of the Landlord, the Landlord shall have the
right to remove the Tenant's property and fixtures and store the same, at the
Tenant's cost and expense, or cause the same to be disposed of at the cost and
expense of the Tenant.
13.5. Tenant to Notify Landlord of Damage, Accidents, or Defects. The
Tenant shall give immediate notice to the Landlord in case of fire or other
physical damage or accidents in the Premises or the Building in which the
Premises are located or in areas adjacent to the Premises. The Tenant shall also
give immediate notice to the Landlord of any defects in the Premises, in the
Building in which the Premises are located, or in areas adjacent to the
Premises, and in any fixtures or equipment.
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13.6. Waiver. The waiver by the Landlord of the breach of any term,
covenant, or condition herein contained shall not be deemed to be a waiver of
such term, covenant, or condition or any subsequent breach of the same or any
other term, covenant, or condition. The subsequent acceptance of rent by the
Landlord shall not be deemed to be a waiver of any preceding default by the
Tenant of any term, covenant, or condition of this Lease, other than the failure
of the Tenant to pay the particular rent so accepted, regardless of the
Landlord's knowledge of such preceding default at the time of acceptance of such
rent.
13.7. Multiple Parties Tenant. If there is or comes to be more than one
party that constitutes the Tenant hereunder: (a) Their obligations shall be
joint and several; and (b) any notice required or permitted to be given to the
Tenant may be given by or to any one of such parties and shall have the same
force and effect as if given by or to all of such parties.
13.8. Quiet Enjoyment. The Landlord covenants and agrees that if the
Tenant pays the annual rent, additional rent, and other charges herein provided
and shall perform all of the covenants and agreements herein stipulated to be
performed on the Tenant's part, the Tenant shall, at all times during said term,
have the peaceable and quiet enjoyment and possession of said Premises without
any manner of hindrance from the Landlord or any persons lawfully claiming
through or under the Landlord, except as to such portion of the demised Premises
as shall be taken under the power of eminent domain.
13.9. Entire Agreement and Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreements or understandings pertaining to any of
such matters shall be effective for any purpose. No provision of this Lease may
be amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest. This Lease shall not be
effective or binding on either party until fully executed by both.
13.10. Inability to Perform. In the event that either party hereto shall
be delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, other labor troubles, inability to
procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, or other reason not the fault of the
party delayed, then performance of the action in question shall be excused for
the period of delay and the period for the performance of such act shall be
extended for a period equivalent to the period of such delay. The provisions of
this Section 13.10 shall not, however, operate to excuse the Tenant from the
prompt payment of rent, additional rent, or any other payments required by the
terms of this Lease.
13.11. Authority of Signatories. Each person executing this Lease on
behalf of the Tenant individually and personally represents and warrants that he
is duly authorized to execute and deliver the same on behalf of the entity for
which he is signing (whether it be a corporation, general or limited
partnership, or otherwise), and that this Lease is binding upon said entity in
accordance with its terms.
13.12. Attorneys' Fees. If any action is brought to recover any rent or
other amount under this Lease, or because of any default under or to enforce or
interpret any of the provisions of this Lease, or for recovery of possession of
the Premises, the party prevailing in such action shall be entitled to recover
from the other reasonable attorneys' fees (including those incurred in
connection with any appeal or bankruptcy proceedings), the amount of which shall
be fixed by the court and made a part of any judgment rendered.
13.13. Sale of Premises by Landlord. In the event of any sale or
transfer by the Landlord of the real property of which the Premises are a part,
the Landlord shall be entirely freed and relieved of all
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liability under any and all of its covenants and obligations contained in this
Lease arising out of any act, occurrence, or omission occurring after the
consummation of such sale or transfer.
13.14. Brokers. The Tenant warrants that it has had no dealings with any
real estate brokers or agents in connection with this Lease, excepting only any
persons named in Section 1.10 hereof, and that it knows of no other real estate
broker or agent who may be entitled to a commission in connection with this
Lease. The Tenant agrees to indemnify the Landlord from and against any and all
commissions, fees, and compensation that may be due to or claimed by any real
estate broker or agent (other than any person named in Section 1.10 hereof, if
such person was retained by the Landlord) in connection with this Lease, and
from and against all costs, expenses, and attorneys' fees which the Landlord may
incur as a result of any such claim.
13.15. Holding Over. Any holding over after the expiration of the term
of this Lease with the consent or approval of the Landlord shall be construed to
be a tenancy from month to month at the rents herein specified (pro rated on a
monthly basis) and shall otherwise be on the terms herein specified so far as
possible.
13.16. Interpretation. The Tenant shall not record this Lease or any
memorandum or short form hereof without the written consent of the Landlord. Any
provision of this Lease which may prove to be invalid shall in no way affect or
invalidate any other provision hereof, and such other provision shall be valid
to the maximum extent permitted by law. The headings and titles of the various
provisions of this Lease shall have no effect upon the construction or
interpretation of any part hereof. As used in this Lease, the singular shall
include the plural, the plural shall include the singular, the whole shall
include each part thereof, any gender shall include both other genders, and the
term "person" shall include any individual, partnership (general or limited),
limited liability company, association, trust, or corporation or any combination
of the foregoing. The covenants and conditions herein contained shall, subject
to the provisions of Section 10 hereof, apply to and bind the heirs, personal
representatives, successors, and assigns of the parties hereto. Time is the
essence of this Lease and of each and all of its provisions in which performance
is a factor. This Lease shall be governed by and construed in accordance with
the internal substantive laws of the State of Utah.
13.17. No Smoking Building. In order to maintain building indoor air
quality, the Building has been designated a non-smoking building. Any variation
to this policy must be approved in writing by the Landlord, and must be in
accordance with the Utah Indoor Clean Air Act or any amendment thereto.
IN WITNESS WHEREOF, the Landlord and the Tenant have executed this Lease
as of the day and year first above written.
LANDLORD: TENANT:
GENEVA ROCK PRODUCTS, INC., Beehive Insurance Agency,
a Utah corporation, a Utah corporation,
By __________________________________ By _____________________________
Xxxxxx X. Xxxxxxxxxxxx Its ______________________
Vice President
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GUARANTY
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, and for the purpose of inducing GENEVA ROCK
PRODUCTS, INC., a Utah corporation (hereinafter the "Landlord"), to enter into
the foregoing Lease Agreement for office space in that certain office building
located at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx Xxxx Xxxxxx, Xxxx with
Beehive Insurance Agency, a Utah corporation (hereinafter the "Tenant", whether
one or more), the undersigned unconditionally guarantees to the Landlord the
full, prompt, and complete payment and performance by the Tenant of all of the
terms, obligations, covenants, and conditions of said Lease to be paid, kept, or
performed by the Tenant, including the payment of all rent, additional rent, and
other charges thereunder. This is a guaranty of prompt payment and not of
collection. The undersigned shall pay all of the Landlord's expenses, including
attorneys' fees, incurred in enforcing the obligations of the Tenant under said
Lease or in enforcing this Guaranty.
The undersigned hereby waive all requirements of notice of acceptance of
this Guaranty and all requirements of notice of default or non-performance by
the Tenant. The obligations of the undersigned under this Guaranty shall remain
fully binding although the Landlord may have waived one or more defaults by the
Tenant, extended the time of performance by the Tenant, modified or amended said
Lease, released, returned, or misapplied other collateral given as additional
security (including other guaranties), or released the Tenant from the
performance of its obligations under said Lease. In the event any right of
action accrues to the Landlord under said Lease, the Landlord may, at its
option, proceed directly against the undersigned without first having commenced
any action, first having pursued any remedy, or first having obtained any
judgment, against the Tenant.
If this Guaranty is signed by more than one person, their obligations
shall be joint and several, and the release of one guarantor shall not release
any other guarantor. This Guaranty shall inure to the benefit of the Landlord
and its successors and assigns and shall be binding upon the undersigned and
their respective heirs, personal representatives, successors, and assigns.
EXECUTED by the undersigned guarantor(s) as of the ____ day of
_______________, 19____.
---------------------- ---------------------------------
---------------------- ---------------------------------
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EXHIBIT C
BUILDING RULES AND REGULATIONS
1. All loading and unloading of goods shall be done through the loading
dock designated for use by tenants of the Building and their invitees, and shall
be done only at such times designated for such purposes by the Landlord. The
deliveries shall then be carted to the basement of the Building and taken to
their destination via the freight elevator. No other elevators shall be used for
deliveries without prior approval from the Landlord.
2. No freight deliveries will be permitted through the Main Lobby
without prior approval from the Landlord. In addition, such deliveries will not
be permitted during business hours as defined in the Lease. Arrangements for
delivery transport through the Main Lobby must be scheduled with the Landlord at
least 24 hours prior to the time use of the Main Lobby is expected.
3. Unless special arrangements have been made with the Landlord,
delivery personnel are not allowed exclusive use of the freight elevator.
Arrangements for exclusive use of the freight elevator must be scheduled with
the Landlord at least 24 hours prior to the time use of the freight elevator is
required.
4. The delivery or shipping of merchandise, supplies, and fixtures, to
and from the Demised Premises, shall be subject to such rules and regulations as
the Landlord deems necessary for the proper operation of the Building.
5. No aerial shall be erected on the roof or exterior walls of the
Demised Premises, or on the grounds, without, in each instance, the written
consent of the Landlord. Any aerial so installed without such written consent
shall be subject to removal without notice by the Landlord, and at the Tenant's
expense.
6. No loud speakers, televisions, electronic equipment, radios, or other
devices shall be used in manner so as to be heard or seen outside of the Demised
Premises without the prior written consent of the Landlord.
7. The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no refuse of any kind shall be thrown
therein. The expense of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by the Tenant, who shall, or whose
employees, agents, or invitees shall, have caused it.
8. The Tenant may choose to use non-standard lighting in the Demised
Premises. However, the Tenant will be responsible to pay the difference in bulb
replacement costs and the number of hours that bulb will burn when compared with
the standard lighting bulb cost and life of that bulb.
9. Surge suppressors are required on all copiers.
10. No canvassing, soliciting, or peddling shall be permitted in the
Building. Please report any violation immediately to the Landlord.
11. The Landlord reserves the right to approve all telecommunications
carriers that may be granted access to the Building.
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EXHIBIT D
JANITORIAL SERVICES
The cleaning specifications are as follows:
The Main Lobby area will be maintained by the Landlord's personnel. This
area will be maintained in keeping with a Class B office building on a daily
basis (Monday through Friday). The landscaping will be well taken care of in the
appropriate seasons.
1. SERVICES OF ELEVATORS, LOBBIES, AND CORRIDORS
A. Daily Services:
1. Vacuum all carpet. Clean carpet as needed.
2. Clean drinking fountain tops, sides, and fronts.
B. Elevators Inside:
1. Vacuum daily.
2. Keep elevator thresholds clean.
3. Clean light covers as needed.
4. Clean metal around buttons as needed.
5. Clean walls and doors as needed.
2. OFFICE AREAS
A. Daily Services:
1. Empty all trash cans.
2. Mop all spills on resilient floors.
3. Vacuum all carpet.
4. Daily clean sinks, tables, and counters.
5. Clean all drinking fountains.
B. Weekly Services:
1. Dust all desk tops.
2. WE WILL NOT CLEAN TERMINALS, COMPUTERS, OR CALCULATORS.
3. Dust all horizontal surfaces, shelves, and molding
that cannot be reached without using a ladder.
3. RESTROOM SERVICES
A. Daily Services:
1. Empty and remove trash.
2. Replenish supplies (towels, toilet paper, soap, bags).
3. Mop floor with a germicidal cleaner, including toilet and
urinal surfaces.
4. Clean all horizontal surfaces with disinfectant
strength germicidal cleansers.
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5. Keep walls clean.
6. Clean mirrors.
4. STAIRWAYS AND CORRIDORS LEADING TO STAIRWAYS
A. As Needed Services:
1. Remove trash.
2. Mop floors and/or vacuum carpet.
5. WINDOWS
A. Clean inside and outside of windows semi-annually.
2
