Exhibit 10.6
LEASE AGREEMENT
THIS LEASE AGREEMENT, is made and entered into this 8th day of August,
1997, by and between PWK INVESTMENT, LLC, a Utah limited liability company, as
Lessor, and TELTRUST, INC., a Utah corporation, as Lessee.
ARTICLE 1. PREMISES. Lessor is the owner, or shall become the owner, of
--------
real property situated at 401 North Xxxxx Xxxxxxxxxxxx Xxxxx, Xxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxxx, Xxxx 00000, and certain personal property located therein,
which real and personal property are described in Exhibits "A" and "B" attached
hereto. The real property described in Exhibit "A," the buildings and
improvements located thereon, and the personal property described in Exhibit
"B," are hereinafter referred to as the "Leased Property." "Leased Property"
shall also include all other buildings and improvements, and modifications and
additions thereto, hereafter located on the real property, to the extent such
improvements constitute the property of Lessor hereunder, and replacements of
the personal property.
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the
Leased Property, which includes a building containing a total of approximately
26,266 square feet of floor space. The parties agree that this Lease is subject
to the effect of any covenants, conditions, restrictions, easements, mortgages
or deeds of trust, ground leases, rights of way and any other matters or
documents of record; the effect of any zoning laws of the city, county and state
where the Leased Property is situated, and general and special taxes not
delinquent. Lessee agrees that Lessee, and all persons in possession or holding
under Lessee, will conform to and will not violate the terms of any covenants,
conditions or restrictions of record which may now or hereafter encumber the
Leased Property (the "Restrictions"); and this Lease is subordinate to the
Restrictions and any amendments or modifications thereto.
ARTICLE 2. PURPOSE. The Leased Property is to be used only for office
-------
and call center purposes, and for no other purpose without the prior written
consent of Lessor, which consent shall not be unreasonably withheld.
ARTICLE 3. TERM; OPTION. The term of this Lease shall be for a period
------------
of ten (10) consecutive full Lease Years, as the term Lease Year is hereinafter
defined, plus the fractional Lease Month, if any, from the "Commencement Date"
(as defined below) to the beginning of the first Lease Year ("Initial Term"),
plus any option periods exercised as provided below. The term "Lease Year" means
a period of twelve (12) full consecutive calendar months, beginning on the first
day of the calendar month coinciding with or immediately following the
Commencement Date.
Provided that Lessee is not in default of any of the terms, covenants
and conditions of this Lease at the time the option provided herein is required
to be exercised; then Lessee shall have the right to extend the term of this
Lease for one (1) additional option term of five (5) years, upon the terms
herein stated.
1
The option shall be exercised by Lessee giving Lessor written notice of
its intent to exercise the option at least 180 days prior to the expiration of
the Initial Term. If Lessee fails timely to exercise the option to extend, the
option shall be null and void and of no further force or effect. The option term
shall be governed by the same terms, covenants and conditions as the Initial
Term, with the exception of the length of the term, as referenced above, and the
rent. The minimum monthly rent during the option period shall be as set forth in
Article 5 below.
ARTICLE 4. COMMENCEMENT DATE; LESSOR'S PURCHASE. The
------------------------------------
"Commencement Date" shall be the date Lessor delivers possession of the Leased
Property to Tenant. Lessor shall notify Tenant in writing at least fifteen (15)
days prior to the Commencement Date that the Leased Property is ready for
Lessee's work or occupancy. The effectiveness of this Lease is expressly
conditioned upon the closing of Lessor's purchase of the Leased Property on or
before September 15, 1997. Should Lessor fail to close the purchase of the
Leased Property on or before said date, or within such additional time as may be
agreed by Lessor and Lessee, then this Lease shall become null and void.
ARTICLE 5. RENT. Lessee shall pay to Lessor, as Minimum Rent for the
----
Leased Property during the term of this Lease, according to the schedule set
forth in Exhibit "C." Rent shall be paid in advance on or before the third day
of each calendar month during the term hereof. Minimum Rent for any partial
month shall be prorated on a per diem basis.
Minimum Rent shall be abated for the first fourteen (14) months of the
Initial Term. Lessee shall, however, be obligated to pay Additional Rent and to
observe and perform all other covenants and conditions of this Lease during the
period Minimum Rent is abated.
Rent shall be paid to Lessor without deduction or offset, in lawful
money of the United States of America and shall be paid to Lessor at 0000 Xxxxx
Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, or to such other place as Lessor may
from time to time designate by written notice to Lessee. Any installment of
rent, other sum or any portion of such installment or other sum required under
this Lease to be paid by Lessee which has not been paid within eight (8) days
after the due date thereof (withstanding postal delays) shall, whether or not
demand therefor is made or notice of default is given, bear interest at the rate
of one and one half percent (1-1/2%) per month from the due date thereof until
paid in full. In addition thereto, Lessor may charge a sum equal to five percent
(5%) of each unpaid amount as a service fee to compensate Lessor for the
additional time and expense necessitated in the handling of delinquent payments.
ARTICLE 6. NET LEASE; ADDITIONAL RENT. Except as expressly provided in
--------------------------
this Lease, it is the intent of both parties that the Minimum Rent specified
herein shall be absolutely net to Lessor throughout each Lease Year of the term
of this Lease, and that all costs, expenses, and obligations of every kind
relating to the Leased Property, or the repair, replacement or maintenance of
the Leased Property, which may arise or become due during
2
the term hereof shall be paid by Lessee and that Lessor shall be indemnified by
Lessee against such costs, expenses, and obligations, except to the extent such
costs, expenses and obligations arise from Lessor's own fault or negligent
conduct. In addition to the other covenants and obligations set forth in this
Lease, Lessee specifically agrees to pay to Lessor, as Additional Rent, the
expenses and charges set forth below:
(i) If the Leased Property is included in any P.U.D.,
condominium, or other form of development in which the owner
of the Leased Property is liable, under the Restrictions or
otherwise, for the payment of any taxes, costs, fees,
assessments, or similar expenses, then Lessee shall pay all
such costs and expenses.
(ii) Lessee shall pay any and all Taxes (as defined below)
levied against the Leased Property for any period occurring
during the term of this Lease.
(iii) Lessee shall pay the premiums for insurance required by
Article 16.
"Taxes" shall mean and include all general and special taxes,
assessments, duties and levies, charged and levied upon or assessed by any
governmental authority against the Leased Property or any portion thereof, or
any leasehold improvements, fixtures, installations, additions, and equipment
whether owned by Lessor or Lessee. Taxes shall also include the reasonable cost
to Lessor in contesting the amount, validity, or the applicability of any Taxes
mentioned in this Article. Further included in the definition of Taxes herein
shall be general and special assessments, fees of every kind and nature,
commercial rental tax, levy, penalty or tax (other than inheritance or estate
taxes) imposed by any authority having the direct or indirect power to tax, as
against any legal or equitable interest of Lessor in the Leased Property or on
the act of entering into this Lease or as against Lessor's right to rent or
other income therefrom, or as against Lessor's business of leasing the Leased
Property, any tax, fee, or charge with respect to the possession, leasing,
transfer of interest, operation, management, maintenance, alteration, repair,
use, or occupancy by Lessee of the Leased Property, or any tax imposed in
substitution, partially or totally, for any tax previously included within the
definition of Taxes herein, or any additional tax, the nature of which may or
may not have been previously included within the definition of Taxes. Further,
if at any time during the term of this Lease the method of taxation or
assessment of real estate or the income therefrom prevailing at the time of
execution hereof shall be, or has been altered so as to cause the whole or any
part of the Taxes now or hereafter levied, assessed or imposed on real estate to
be levied, assessed or imposed upon Lessor, wholly or partially, as a capital
levy, business tax, permit or other charge, or on or measured by the rents
received therefrom, then such new or altered Taxes, regardless of their nature,
which are attributable to the Leased Property shall be deemed to be included
within the term "Taxes'.' for purposes of this Article 6, whether in
substitution for, or in addition to any other Taxes, save and except that such
shall not be deemed to include any enhancement of said tax attributable to other
income of Lessor. With respect to any general or special assessments which may
be levied upon or against the Leased
3
Property, or which may be evidenced by improvement or other bonds, or may be
paid in annual or semi-annual installments, only the amount of such installment,
pro rated for any partial year, and statutory interest, shall be included within
the computation of Taxes for which Lessee is responsible hereunder.
During the term hereof Lessee shall pay prior to delinquency all taxes
assessed against and levied upon fixtures, furnishings, equipment and all other
personal property of Lessee and when possible Lessee shall cause said fixtures,
furnishings and equipment to be assessed and billed separately from the property
of Lessor. If any of Lessee's personal property shall be assessed with the
Leased Property, Lessee shall pay to Lessor or directly to the taxing authority,
the Taxes attributable to Lessee's personal property.
Lessor shall estimate the Taxes, insurance, assessments, and common
area (and similar charges) required to be paid by Lessee hereunder for the
current calendar year (or other convenient period established by Lessor) or
portion thereof, and Lessee shall pay to Lessor at the same time each payment of
Minimum Rent is due, the amount of the estimate divided by the total number of
months included in the period covered by the estimate. Within three months after
the end of each calendar year (or other period), Lessor shall render a statement
to Lessee showing the difference between the Lessee's obligations for such
amounts and the amounts collected by Lessor from Lessee. Lessee shall pay any
shortage to Lessor within thirty (30) days after the date of such statement.
Correspondingly, Lessee shall receive a credit in the amount of any overpayment,
which credit may be applied by Lessee to subsequent payments due under this
Section, as long as Lessee is not in default for failure to pay under this
Lease. Lessee may audit Lessor's estimates and the expenses paid by Lessor, at
Lessee's expense. If the audit reveals that the amounts charged to Lessee for
actual expenses (as opposed to estimated expenses) exceeded actual expenses by
more than five percent (5%), then Lessor shall reimburse Lessee for the cost of
the audit. If the Lessee has overpaid such expenses at the end of the term of
the Lease, Lessor shall reimburse Lessee the amount of such overpayment.
Lessee shall cause all bills, statements and other documents related to
Taxes, insurance, assessments, and common area (and similar charges) to be sent
directly to Lessor. The size of the monthly payments required by this Section to
be made by Lessee shall be adjusted from time to time as may be necessary in
light of the total taxes, assessments and insurance premiums to which such
payments are related.
ARTICLE 7. USE OF LEASED PROPERTY. Lessee shall not use the Leased
----------------------
Property or allow the Leased Property to be used for any improper, immoral, or
unlawful purpose, nor shall Lessee cause, maintain or permit any nuisance in, on
or about the Leased Property. Lessee shall not damage or deface or otherwise
commit or suffer to be committed any waste in, of or upon the Leased Property.
4
ARTICLE 8. COMPLIANCE WITH LAW. Lessee shall not use the Leased
-------------------
Property or permit anything to be done in or about the Leased Property which
will in any way conflict with any law, statute, ordinance or government rule or
regulation now in force or which may hereafter be enacted or promulgated. Lessee
shall at its sole cost and expense promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in force or
which may hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted related to or
affecting the condition, use or occupancy of the Leased Property, including
making such repairs, replacements, additions, or modifications to the Leased
Property as may be required (whether or not such are in the nature of capital
improvements). The judgment of any court of competent jurisdiction or the
admission of Lessee in an action against Lessee, whether Lessor be a party
thereto or not, that Lessee has violated any such law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of that fact
as between Lessor and Lessee.
Lessee accepts the Leased Property subject to all applicable zoning,
municipal, county and state laws, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the term or any part
of the term hereof regulating the Leased Property.
For purposes hereof, "Hazardous Materials" shall mean any and all
flammable explosives, radioactive material, hazardous waste, toxic substance or
related material, including but not limited to, those materials and substances
defined as "hazardous substances", "hazardous materials", "hazardous wastes" or
"toxic substances" in the Environmental Laws. For purposes hereof,
"Environmental Laws" shall mean all local, state and federal laws, statues,
rules and regulations, in force from time to time during the term of this Lease,
pertaining to Hazardous Materials and other environmental matters, including but
not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq.; the Hazardous Materials
Transportation Act, 39 U.S.C. Section 1801, et seq.; the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq.; the Federal Clean Water Act 33 U.S.C. Section 1251 et seq.; the
Clean Air Act 42 U.S.C. Section 7401 et seq.; the Xxxxxx-Cologne Water Quality
Act, including all amendments thereto, replacements thereof, and regulations
adopted and publications promulgated pursuant thereto.
Lessee agrees that, during the term of this Lease, Lessee shall not be
in violation of any federal, state or local law, ordinance or regulation then
applicable to the Leased Property and relating to industrial hygiene, soil,
water, or environmental conditions on, under or about the Leased Property
including, but not limited to, the Environmental Laws. Lessee further agrees
that during the term of this Lease, there shall be no use, presence, disposal,
storage, generation, release, or threatened release of Hazardous Materials on,
from or under the Leased Property. Lessee agrees to indemnify, defend, protect
and hold harmless Lessor, its directors, officers, employees, partners, and
agents from and against any and all losses, claims, demands, actions, damages
(whether direct or consequential), penalties, liabilities, costs and
5
expenses, including all reasonable attorney's fees and legal expenses, arising
out of any violation or alleged violation of any of the laws or regulations
referred to in this Article, or breach of any of the provisions of this Article.
Lessor warrants that, as of the Commencement Date, the real property
shall be free of Hazardous Materials, and Lessor agrees to indemnify and defend
Lessee against any losses, claims, and damages with respect to any violation of
this covenant.
The provisions of this Article shall survive the termination or
expiration of this Lease.
ARTICLE 9. INITIAL TENANT IMPROVEMENTS; ALTERATIONS. Lessee
----------------------------------------
shall make the tenant improvements described in Exhibit "D" hereto and within
the time specified therein. Such tenant improvements shall be at Lessee's sole
cost and expense.
Except as stated herein, Lessee shall not make or permit to be made any
other alterations, additions or improvements to or of the Leased Property or any
part thereof without the written consent of Lessor, which consent shall not be
unreasonably withheld, and any alterations, additions or improvements to, or on
the Leased Property, except movable furniture and trade fixtures, shall at once
become a part of the realty and belong to Lessor. Lessor's prior consent shall
not be required for minor alterations, additions or improvements that do not
affect the structure or roof of the buildings and that cost less than
$10,000.00. Lessee shall submit working drawings for any such alterations,
additions or improvements to Lessor for Lessor's prior written approval. In the
event Lessor consents to the making of any alterations, additions or
improvements to the Leased Property by Lessee, the same shall be made by Lessee
at Lessee's sole cost and expense and such work shall be performed in a
workmanlike manner.
Lessee shall keep the Leased Property free from any liens arising out
of any work performed, materials furnished, or obligations incurred by Lessee.
In the event a mechanic's or other lien is filed against the Leased Property as
a result of a claim arising through the Lessee, Lessee shall, upon request by
Lessor, furnish to Lessor a surety bond satisfactory to Lessor in an amount
equal to at least one hundred fifty percent (150%) of the amount of the
contested lien, claim or demand, indemnifying Lessor against liability for the
same. Lessor may require Lessee to pay Lessor's reasonable attorneys' fees and
costs in participating in any action to foreclose such lien if Lessor shall
decide it is to its best interest to do so.
Lessee shall return the Leased Property to Lessor at the expiration or
earlier termination of this Lease in good and sanitary order, condition and
repair, free of rubble and debris, broom clean, reasonable wear and tear
excepted. Any deferred maintenance or other conditions other than normal wear
and tear shall be remedied at Lessee's sole cost and expense. All damage to the
Leased Property caused by the removal of trade fixtures and other personal
property that Lessee is permitted to remove under the terms of this Lease and/or
such restoration shall be repaired by Lessee at its sole cost and expense prior
to termination.
6
Lessee shall have the right to remove its personal property, including,
Lessee's switches, emergency power systems and generators, and
telecommunications equipment (but not including replacements of the personal
property being leased hereunder).
ARTICLE 10. REPAIRS; MAINTENANCE; REPLACEMENT. Lessor shall be
---------------------------------
responsible for the repair and maintenance of the roofs of buildings (both
structure and membrane or covering) located on the Leased Property.
Lessee shall, at all times during the term hereof and at Lessee's sole
cost and expense, keep, maintain and repair the remainder of the Leased Property
in good, working, and sanitary order and condition, including, without
limitation, replacement of all broken or damaged glass, replacement of light
globes or tubes and doors, window casements, heating and air conditioning
systems, plumbing, pipes, electrical wiring conduit, interior partitions,
fixtures, leasehold improvements and alterations, walls (both exterior and
interior), and all structural components, floor slab and subgrade and
foundations and footings, pavement, sidewalks, walls, fences, curbs, bumpers,
landscaping, irrigations systems, striping and line painting, sweeping, removal
of snow, ice, trash, garbage and other refuse. Lessee shall pay all fees,
required licenses and permits relating to the Leased Property.
Lessor warrants that the HVAC system shall be in good working order on
the Commencement Date. On the Commencement Date, Lessor, Lessee, and an HVAC
professional mutually agreeable to the parties shall jointly inspect the HVAC
system, any deficiencies in the HVAC system then existing shall be noted in
writing, and Lessor shall cause any such deficiencies to be corrected promptly.
Except for such deficiencies noted in writing, the Lessee shall be deemed to
have accepted the HVAC system in good working order on the Commencement Date.
Except as stated in this Lease, Lessee accepts the Leased Property in
its "as-is" condition. Lessee agrees on the last day of the term or sooner
termination of this Lease to surrender the Leased Property in good and sanitary
order, condition and repair, and in compliance with Lessee's obligations to
repair, replace and maintain the Leased Property as set forth in this Lease.
Except as stated in this Lease, Lessee's obligations to repair and
maintain the Leased Property during the term hereof, and its obligations
respecting the condition of the Leased Property from time to time during the
term hereof and at the time the Leased Property are surrendered to Lessor, are
absolute and unconditional, and Lessee agrees that Lessor shall have no
obligation to repair, replace, or maintain the Leased Property regardless of the
existence of latent defects or circumstances now existing or hereafter arising.
ARTICLE 11. WASTE AND NUISANCE. (a) Lessee covenants that it:
------------------
(i) will keep the Leased Property and every part thereof in a clean, reasonably
neat and orderly condition; (ii) will in all respects and at all times
fully comply with all health and policy regulations; (iii)
7
shall not overload the floors or permit or allow any waste, abuse, deterioration
or destructive use of the Leased Property to occur.
(b) Lessee further covenants that it will (i) not cause or permit any
Hazardous Materials to be brought upon or used in or about the Leased Property;
(ii) immediately notify Lessor of any environmental concern raised by a private
party or governmental agency as it relates to the Leased Property; and (iii)
immediately notify Lessor of any Hazardous Material spill. In the event of a
violation hereof, Lessee shall immediately proceed, at Lessee's expense, to
remedy same. Failure of Lessee to commence clean up activities within five (5)
days after receipt of notice to so do shall be a default under this Lease.
Lessor shall, thereafter, have the right, but not the obligation, to remedy any
environmental violation upon the Leased Property and Lessee shall promptly
reimburse Lessor for all costs relating thereto. Lessor further retains the
right, in its sole, but reasonable discretion, to conduct any environmental
tests on the Leased Property should Lessor suspect a violation to exist upon the
Leased Property. Lessee shall and does agree to indemnify and hold Lessor
harmless from and against any and all damages, costs, expenses and liability
whatsoever, including, without limitation, attorneys' fees that Lessor may incur
because of Lessee's violation of, or the resulting enforcement of, any
Environmental Laws, which covenant shall survive the expiration or earlier
termination of this Lease.
ARTICLE 12. ABANDONMENT. Lessee shall not, except in case of default by
-----------
Lessor, abandon the Leased Property at any time prior to the expiration or
earlier termination of the term hereof. In the event Lessee shall abandon or
surrender the Leased Property or be dispossessed by process of law or otherwise,
any personal property belonging to Lessee and left on the Leased Property beyond
thirty (30) days shall be deemed to have been abandoned.
ARTICLE 13. ASSIGNMENT AND SUBLETTING. Lessee shall not assign this Lease
-------------------------
or sublet the Leased Property or any part thereof to occupy or use the Leased
Property or any portion thereof without the prior written consent of Lessor,
which consent shall not be unreasonably withheld. Acceptance of rent by Lessor
of Lessee or Assignee shall not be deemed approval or acceptance of assignment
or subletting. Lessee shall remain liable for all terms and conditions of this
Lease at all times notwithstanding assignment or subletting; provided, however,
in the event of an assignment of the lease to an assignee that has a stated net
worth equal to or greater than Fifty Million Dollars ($50,000,000.00), as
established by current audited financial statements of such assignee, prepared
in accordance with generally accepted accounting principles, then Lessee shall
be released from liability hereunder from and after the effective date of such
assignment. In the event Lessor grants permission in writing for Lessee to
sublet or assign, Lessee shall pay to Lessor its reasonable costs and attorney's
fees incurred in reviewing the Lessee's request (not to exceed $300.00). Any
assignment or subletting by Lessee without Lessor's consent shall be a default
by Lessee hereunder. Lessee may assign, transfer or sublet the Leased Property
to an affiliate, subsidiary or parent company
8
of Lessee without the consent of Lessor; provided, however, that Lessee shall
remain fully liable hereunder.
ARTICLE 14. PARKING AND LANDSCAPING. Lessee shall, at its sole cost,
-----------------------
maintain in good condition and repair all of the pavement, parking, striping and
line painting, exterior lights, irrigation systems, shrubs, grass and landscaped
areas on the Leased Property, and shall repair, maintain and/or replace the
pavement, parking area and landscaping as may be reasonably necessary to keep it
in good condition and repair, regardless of whether the nature of such repairs
may be in the nature of capital expenditures.
ARTICLE 15. INDEMNIFICATION OF LESSOR. Lessee releases Lessor, and its
-------------------------
authorized representatives, from any claims for damage to any person, to the
Leased Property, or to the fixtures, personal property, Lessee's improvements
and alterations of either Lessor or Lessee, in or on the Leased Property,
including loss of income, that are caused by or result from risks insured or
required under the terms of this Lease to be insured against.
Except as otherwise provided herein, Lessee, as a material part of the
consideration to be rendered to Lessor, shall indemnify, defend, protect and
hold harmless Lessor against all actions, claims, demands, damages, liabilities,
losses, penalties, or expenses of any kind which may be brought or imposed upon
Lessor or which Lessor may pay or incur by reason of injury to person or
property, from whatever cause, all or in any way connected with the condition or
use of the Leased Property on or after the Commencement Date, or the
improvements or personal property therein or thereon, including without
limitation any liability or injury to the person or property of Lessee, its
agents, officers, employees or invitees. Lessee agrees to indemnify, defend and
protect Lessor and hold it harmless from any and all liability, loss, cost or
obligation on account of, or arising out of, any such injury or loss however
occurring, including breach of the provisions of this Lease, and for any
conditions or occurrences arising prior to the date hereof. Nothing contained
herein shall obligate Lessee to indemnify Lessor against Lessor's active
negligence or willful acts, for which Lessor shall indemnify Lessee.
In the event any action, suit or proceeding is brought against Lessor
by reason of such occurrence or condition, Lessee, upon Lessor's request will at
Lessee's expense resist and defend such action, suit or proceeding, or cause the
same to be resisted and defended by counsel designated either by Lessee or by
the insurer whose policy covers the occurrence and in either case approved by
Lessor. The obligations of Lessee under this Article arising by reason of any
occurrence taking place during the Lease term shall survive any termination of
this Lease.
Lessee, as a material part of the consideration to be rendered to
Lessor, hereby waives all claims against Lessor for damages to goods, wares,
merchandise and loss of business in, upon or about the Leased Property and for
injury to Lessee, its agents, employees, invitees or third persons in or about
the Leased Property from any cause arising at any time, including
9
breach of the provisions of this Lease and the negligence of the parties hereto,
unless caused by the gross negligence or willful acts of Lessor.
Wherever in this Article the term Lessor or Lessee is used and such
party is to receive the benefit of a provision contained in this Article, such
term shall refer not only to that party but also to its officers, directors,
employees, partners and agents.
ARTICLE 16. INSURANCE. (a) Lessor, at the expense of Lessee as provided
---------
herein, shall secure comprehensive general liability insurance on the Leased
Property on an occurrence basis with a minimum limit of liability in an amount
of One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars
($2,000,000.00) aggregate, or such other limits as Lessor may reasonably
determine. Lessor (and, at Lessor's option, the lender interested under any
mortgage or similar instrument then affecting the Leased Property) shall be
solely responsible for determining the amount of insurance and the specific
endorsements to be maintained.
The foregoing requirement shall be satisfied, and Lessor shall not
purchase a separate liability policy, if and only for those time periods that
Lessee furnishes a prepaid insurance policy having coverage and limits equal to
or in excess of the above-specified policy, as such limits may be adjusted by
Lessor from time to time, and Lessee furnishes evidence of such to Lessor. Any
such policy shall not be cancelable except upon thirty (30) days' prior written
notice to Lessor. Lessor and any lender on the Leased Property shall be named
therein as additional insureds.
(b) Lessor, at the expense of Lessee as provided herein, shall
procure insurance coverage insuring Lessor against loss of, or damage to, all
buildings and structures on the Leased Property by reason of fire or any other
casualties. Such insurance shall be underwritten by a responsible insurance
company qualified to do business in the State where the Leased Property is
located, shall be in the face amount equal to the full replacement cost of all
buildings and structures on the Leased Property, and may include coverage for
loss of rents. Such insurance may cover loss or damage by fire, windstorm, hail,
acts of God, explosion, riot attending a strike, civil commotion, aircraft,
vehicles, smoke, and earthquake. Lessor (and, at Lessor's option, the lender
interested under any mortgage or similar instrument then affecting the Leased
Property) shall be solely responsible for determining the amount of fire and
extended coverage insurance and the specific endorsements to be maintained.
Lessor may also maintain boiler insurance on all heating boilers within the
Leased Property in such amounts as it determines. Lessor shall be named as an
insured on each such policy. The proceeds of such insurance in case of loss or
damage shall be paid to Lessor to be applied on account of the obligation of
Lessor to repair and/or rebuild the Premises as provided herein. Any proceeds
not required for such purpose shall be the sole property of Landlord. In any
event, Tenant shall have no interest in or claim to any such proceeds.
(c) Lessee agrees during the entire term hereof, to keep in
full force and effect a policy of comprehensive general liability insurance with
respect to the Leased Property, the
10
business operated by Lessee, and any subtenants, concessionaires, or licensees
of Lessee in the Leased Property, with minimum limits of not less than
$1,000,000 per occurrence, $2,000,000 in the aggregate. The policy shall name
Lessor, any person, firms, or corporations designated by Lessor, and Lessee as
insureds.
At all times during the term hereof, Lessee shall keep in force at its
sole cost and expense, fire and extended coverage insurance, and against
sprinkler leakage or malfunction and water damage and against vandalism and
malicious mischief, on Lessee's trade fixtures, furnishings, equipment and other
personal property located or brought upon the Leased Property in full
replacement value thereof. Lessee shall also obtain broad form boiler and
machinery insurance on all air-conditioning equipment, boilers and other
pressure vessels or systems, whether fired or unfired, which are installed by
Lessee or which serve the Leased Property, except to the extent such items are
covered under insurance secured by Lessor. Such boiler and machinery insurance
shall cover the replacement value of such items. During the Lease term, the
proceeds from any such policy or policies of insurance shall be used for the
repair or replacement of the property so insured.
The foregoing insurance required to be procured by Lessee shall be
issued by an insurance company approved by Lessor and a copy of the policy or a
certificate of insurance shall be delivered to Lessor.
(d) Each party shall cause each insurance policy obtained by
it to provide that the insurance company waives all rights of recovery by way of
subrogation against either party in connection with any damage covered by such
policy. Neither party shall be liable to the other for any damage caused by fire
or any other risks insured against under any property insurance policy carried
under the terms of this Lease.
(e) Any mortgage lender interested in any part of the Leased
Property may, at Lessor's option, be afforded coverage under any policy required
to be secured by Lessee hereunder, by use of a mortgagee's endorsement to the
policy concerned.
(f) No use shall be made or permitted to be made on the Leased
Property, nor acts done, which will increase the existing rate of insurance upon
the Leased Property or cause the cancellation of any insurance policy or any
part thereof as a result of such use or acts, nor shall Lessee sell, or permit
to be kept, used or sold, in or about the Leased Property, any article which
may be prohibited by the standard form of fire insurance policies. Lessee shall,
at its sole cost and expense, comply with any and all requirements pertaining to
the Leased Property, of any insurance organization or company, necessary for the
maintenance of reasonable property damage and public liability insurance,
covering the Leased Property.
ARTICLE 17. UTILITIES; JANITORIAL SERVICE. (a) Lessee shall be solely
-----------------------------
responsible for, and shall promptly pay before delinquency, all charges for use
or consumption
11
of heat, sewer, water, gas, electricity, telephone or any other utility services
supplied to Lessee or to the Leased Property during the term hereof.
(b) Unless caused by Lessor's negligence or willful act,
Lessor shall not be liable in the event of any interruption in the supply of any
utility service to the Leased Property. Lessee agrees that it will not install
any equipment which will exceed or overload the capacity of any utility
facilities and that if any equipment installed by Lessee shall require
additional utility facilities, the same shall be installed at Lessee's expense
in accordance with plans and specifications first approved in writing by Lessor.
(c) Lessee shall provide at its sole expense regular
janitorial service for the Leased Property. In addition, Lessee shall provide an
adequate sized dumpster for the storage of refuse. Lessee shall arrange for the
removal of such refuse and periodic cleaning of such dumpster and the areas
immediately adjacent thereto.
ARTICLE 18. ENTRY AND INSPECTION. Lessee shall permit Lessor and its
--------------------
agents to enter into and upon the Leased Property at all reasonable times and
upon twenty-four (24) hours advance notice for the purpose of inspecting the
same. During the six (6) months preceding the expiration of the term of this
Lease, Lessor may place usual and ordinary signs on the Leased Property
advertising the availability of the property for sale or lease. Lessor or its
agents may, during normal business hours, enter upon said Leased Property and
exhibit same to prospective lessees.
ARTICLE 19. DEFAULT. In the event of any failure of Lessee to pay any
-------
rental or other sum due hereunder within eight (8) days after the same shall be
due, or any failure to perform any other of the terms, conditions or covenants
of this Lease to be observed or performed by Lessee for more than thirty (30)
days after written notice of such default shall have been given to Lessee (or,
if such failure cannot reasonably be cured within such thirty (30) days, if
Lessee fails to commence the cure within thirty (30) days or thereafter fails to
diligently prosecute such cure to completion), or if Lessee or any guarantor of
the Lease shall become bankrupt or insolvent or file any debtor proceedings or
take or have taken against Lessee or any guarantor of this Lease in any court
pursuant to any statute either of the United States or of any state a petition
in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a portion of Lessee's or any such guarantor's
property, or if Lessee or any such guarantor makes an assignment for the benefit
of creditors or petitions for or enters into an arrangement, or if Lessee shall
abandon said Leased Property or suffer this Lease to be taken under any writ of
execution, Lessor, besides other rights or remedies it may have, shall have the
immediate right of re-entry and may remove all persons and property from the
Leased Property and such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Lessee, all without
service of notice or resort to legal process and without being deemed guilty of
trespass or becoming liable, absent Lessor's negligence or willful misconduct,
for any loss or damage which may be occasioned thereby.
12
Should Lessor elect to re-enter, as herein provided, or should it take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may from time to time without
terminating this Lease, make such alterations and repairs as may be necessary in
order to relet the Leased Property and relet said Leased Property or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals and upon such other terms and
conditions as Lessor in its sole discretion may deem advisable, upon such
reletting, all rentals received by Lessor from such reletting shall be applied,
first, to the payment of any indebtedness other than rent due hereunder from
Lessee to Lessor, second, to the payment of any costs and expenses of such
alterations, repairs, and reletting (including commissions), third, to the
payment of rent due and unpaid hereunder, and the residue, if any, shall be held
by Lessor and applied toward payment of future rent as the same may become due
and payable hereunder. No such re-entry or taking possession of the Leased
Property by Lessor shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention be given to Lessee or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, in addition to any other
remedies it may have, it may recover from Lessee all damages it may incur by
reason of such breach, including the worth at the time of such termination of
the excess, if any, of the present value of the rent and charges equivalent to
rent reserved in this Lease for the remainder of the stated term (using a
discount rate of 10.0%) over the present value of the then reasonable rental
value of the Leased Property for the remainder of the stated term (using a
discount rate of 10.0%), all of which amounts shall be immediately due and
payable from Lessee to Lessor. To give effect to the remedies provided herein,
Lessee expressly waives the benefit of any statutory or common law that limits
or delays the Lessor's ability to recover damages for future rents and agrees
that such rents may be accelerated for purposes of determining Lessee's
liability and Lessor's damages.
The remedies given to Lessor in this section shall be in addition and
supplemental to all other rights or remedies which Lessor may have under the
laws then in force.
ARTICLE 20. DESTRUCTION. (a) If any building or structure on the Leased
-----------
Property shall be damaged or destroyed by fire or other casualty or cause,
Lessor shall repair such building or structure to a condition which is
substantially similar to the condition in existence prior to such casualty.
(b) Notwithstanding the foregoing, however, if the building or
structure on the Leased Property is damaged to the extent of thirty-three and
one-third percent (33-1/3%) or more of its then replacement value, or if the
repair of the Leased Property would require more than one hundred twenty (120)
days, either party may terminate this Lease upon written notice given to the
other within thirty (30) days following such casualty or loss. If Lessee
determines, in its reasonable judgment, that its business on the Leased Property
cannot be carried on notwithstanding the repair or replacement of the Leased
Property, then Lessee shall
13
have the right to terminate this Lease upon written notice given to Lessor
within thirty (30) days following such casualty or loss.
(c) Unless this Lease is terminated, Lessee shall, at its
expense, repair the fixtures and improvements installed by it within the Leased
Property and repair or replace any of Lessee's furniture, equipment or other
personal property damaged by such casualty or event.
(d) If any building or structure on the Leased Property shall
be damaged or destroyed by fire or other casualty or cause, Minimum Rent shall
xxxxx proportionately as to the portion of the Leased Property rendered
untenantable; but only upon the condition that insurance covers Lessor's loss of
rents for such period.
ARTICLE 21. EMINENT DOMAIN. If all or more than 33-1/3% of the Leased
--------------
Property shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, or transfer in lieu thereof, either party
hereto shall have the right, at its option, to terminate this Lease as of the
date title vests in the condemning entity. Lessor shall be entitled to any
award, or other payment made in connection with such condemnation. Lessee,
however, shall have the right to pursue a claim in any condemnation proceeding
against the condemning authority (but not against Lessor) for compensation for
any resulting damages to Lessee's business, trade fixtures and personal property
(but not for any diminution or loss of Lessee's leasehold estate). If a part of
the Leased Property shall be so taken or appropriated and this Lease is not
thereafter terminated, the rental thereafter to be paid shall be reduced in the
proportion that the area of the Leased Property so taken bears to the entire
Leased Property. Notwithstanding the foregoing, however, before Lessee may
terminate this Lease by reason of a taking or appropriation as described above,
such taking or appropriation shall be of such an extent and nature as to
substantially handicap, impede or impair Lessee's use of the Leased Property for
a period in excess of ninety (90) days.
ARTICLE 22. MORTGAGE REQUIREMENTS. This Lease and all rights of Lessee
---------------------
under this Lease are hereby subordinate hereunder to any lien of any mortgage or
mortgages or lien or other security interest resulting from any other method of
financing or refinancing, now or hereafter in force against the Leased Property.
The provisions of this Article notwithstanding, so long as Lessee is not in
default hereunder, this Lease shall remain in full force and effect for the full
term hereof and shall not be terminated as a result of any foreclosure or sale
or transfer in lieu of such proceedings pursuant to a mortgage or other
instrument to which Lessee has subordinated its rights pursuant hereto.
In the event of the sale or assignment of Lessor's interest in the
Leased Property, or in the event of any proceeding brought for the foreclosure
of, or in the event of exercise of the power of sale under any mortgage or other
security instrument made by Lessor covering the Leased Property, Lessee shall
attorn to the assignee or purchaser and recognize such purchaser as Lessor under
this Lease.
14
Lessee agrees to give any mortgagees (as defined below), by registered
mail, a copy of any notice of default served by Lessee upon Lessor, provided
that prior to such notice, Lessee has been notified, in writing (by way of a
Notice of Assignment of Rents and Leases or otherwise) of the addresses of any
such mortgagees. Lessee further agrees that if Lessor shall have failed to cure
such default within the time set forth in this Lease, then any such mortgagees
shall have an additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary, if within such thirty (30) days, any such mortgagee has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated. "Mortgagee" shall mean the holder of any mortgage, the beneficiary
under any deed of trust or the holder of any other security interest which
encumbers the Leased Property.
ARTICLE 23. RULES REGULATIONS AND RESTRICTIVE COVENANTS.
--------------------------------------------
Lessee shall faithfully observe and comply with any rules, regulations and/or
restrictive covenants applicable to the Leased Property.
ARTICLE 24. HOLDING OVER. If Lessee holds possession of the Leased
------------
Property after the term of this Lease with Lessor's consent, and Lessor accepts
rent in the amounts hereinafter provided, Lessee shall become a lessee from
month-to-month upon terms equal to the then existing terms hereunder, except
that the Minimum Rent shall be the then existing Minimum Rent then payable
hereunder at the end of the term (on a monthly basis) multiplied by one hundred
twenty-five percent (125%). Minimum Rent and Additional Rent shall be paid in
advance on or before the third day of each month and Lessee shall continue in
possession until such tenancy shall be terminated by Lessor or until Lessee
shall have given to Lessor a written notice at least thirty (30) days prior to
the date of termination of such tenancy of its intention to terminate such
tenancy.
ARTICLE 25. NOTICES. All notices and demands which may or are required
-------
to be given by either party to the other hereunder shall be sent by overnight
courier or United States certified or registered mail, postage prepaid,
addressed to:
LESSOR LESSEE
Xxxxxx X. Xxxx Teltrust, Inc.
0000 Xxxxx Xxxxxx Xxxxx Attn: Vice President and General Counsel
Xxxx Xxxx Xxxx, XX 00000 000 X. Xxxxxxx Xxxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
15
ARTICLE 26. LESSOR'S RIGHT TO CURE DEFAULTS. All covenants and
-------------------------------
agreements to be performed by Lessee under any of the terms of this Lease shall
be at its sole cost and expense and, except as otherwise specifically provided
herein, without any abatement of rent. If Lessee shall fail to pay any sum of
money, other than rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, shall fail to cure
any such default within the applicable cure period, and such failure shall
continue for five (5) days after Lessee has received notice thereof by Lessor,
Lessor may, but shall not be obligated to do so, and without waiving any rights
of Lessor or releasing Lessee from any obligations of Lessee hereunder, make
such payment or perform such other act. All sums to be paid by Lessor and all
necessary incidental costs together with interest thereon at the rate of one and
one-half percent (1-1/2%) per month from the date of such payment by Lessor in
connection with the performance of any such act by Lessor shall be considered
additional rent hereunder and, except as otherwise in this Lease expressly
provided, shall be payable to Lessor on demand or, at the option of Lessor, in
such installments as Lessor may elect and may be added to any rent then due or
thereafter becoming due under this Lease.
ARTICLE 27. FORCE MAJEURE. Lessor shall not be responsible or liable
-------------
for any delay in the observance or performance of any term or condition of this
Lease to be observed or performed by Lessor to the extent such delay results
from action of governmental authorities, civil commotions, strikes, fires, acts
of God, whether or not similar to the matters herein specifically enumerated and
any such delay shall extend by like time any period of performance by Lessor and
shall not be deemed a breach of or failure to perform this Lease or any
provision hereof.
ARTICLE 28. TRANSFER OF LESSOR'S INTEREST. In the event Lessor
-----------------------------
transfers its interest in the Leased Property (other than a transfer for
security purposes), Lessor shall be relieved of all obligations accruing
hereunder after the effective date of such transfer, provided that such
obligations have been expressly assumed in writing by the transferee.
ARTICLE 29. QUIET ENJOYMENT. Lessor covenants that so long as Lessee
---------------
performs all of its obligations hereunder it shall peacefully and quietly have,
hold and enjoy the Leased Property for the term hereof.
ARTICLE 30. SIGNS. Lessee shall have the right to use the monument sign
-----
located on the Leased Property. Lessee shall comply with all applicable
governmental regulations and other restrictions in the placement of signs or
advertisements on or in the Leased Property. The cost of installation and
regular maintenance of any signs shall be at the sole expense of Lessee. At the
termination of this Lease, or any extensions thereof, Lessee shall remove such
signs as are requested to be removed by Lessor, and alt damage caused by such
removal shall be repaired at Lessee's expense.
ARTICLE 31. SURRENDER OF LEASE. The voluntary or other surrender of
------------------
this Lease by Lessee, or a mutual cancellation thereof, shall not work as a
merger, and shall, at the
16
option of Lessor, terminate all or any existing subleases or subtenancies, or
may, at the option of Lessor, operate as an assignment to it of any or all such
subleases or subtenancies.
ARTICLE 32. LESSOR'S EXCULPATION. Anything in this Lease to the
--------------------
contrary notwithstanding, Lessee agrees that it shall look solely to the estate
and property of Lessor in the Leased Property for the collection of any judgment
(or other judicial process) requiring the payment of money by Lessor in the
event of any default or breach by Lessor with respect to any of the terms,
covenants, and conditions of this Lease to be observed and/or performed by
Lessor, and no other assets of Lessor shall be subject to levy, execution, or
other procedures for the satisfaction of Lessee's remedies.
ARTICLE 33. ATTORNEYS' FEES. In any action or proceeding brought by
---------------
either party to enforce or interpret this Lease or any provision hereof, the
prevailing party shall be entitled to recover its reasonable attorney fees and
costs incurred therein. Further, Lessee hereby agrees to pay, as additional
rent, all reasonable attorney's fees and disbursements, and all other court
costs or expenses of legal proceedings or other legal services which Lessor may
incur or pay out by reason of, or in connection with:
(a) any appearance by Lessor (or any officer, partner, or
employee of Lessor) as a witness or otherwise in any action or proceeding
whatsoever involving or affecting Lessee or this Lease (provided, however, that
this clause shall not apply to actions between Lessor and Lessee, which are
governed by the first sentence of this Article);
(b) subject to the provisions of Article 13 above, any
assignment, sublease, or leasehold mortgage proposed or granted by Lessee
(whether or not permitted under this Lease), and all negotiations with respect
thereto; and
(c) any alteration of the Leased Property by Lessee or at the
request of Lessee, and all negotiations with respect thereto.
Lessee's obligations under this Article shall survive the expiration or
any other termination of this Lease. This Article is intended to supplement (and
not to limit) other provisions of this Lease pertaining to indemnities and/or
attorney's fees.
Should it be necessary for Lessor to employ legal counsel to enforce
any of the provisions of this Lease, Lessee agrees to pay, as additional rent,
all reasonable attorney's fees and court costs reasonably incurred thereby,
whether or not Lessor commences any legal action or proceeding.
ARTICLE 34. ESTOPPEL CERTIFICATES AND FINANCING. Lessee agrees at any
-----------------------------------
time and from time to time upon not less than ten (10) days prior request by
Lessor, to execute, acknowledge and deliver to Lessor a written certificate in
recordable form certifying (if true), as of the date of such certificate: (1)
the beginning and termination dates hereof; (2)
17
that this Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writings as shall be stated); (3)
stating that all conditions under this Lease to be performed by either party
have been satisfied (or stating which conditions remain unsatisfied); (4)
stating that there are no defenses or offsets against the enforcement of this
Lease by the Lessor, or stating those claimed by Lessee; (5) verifying the
amount of advance rental, if any paid by Lessee; (6) stating the date to which
rental has been paid; and (7) setting forth such other factual information
pertaining to the terms of the Lease as Lessor may reasonably request. Lessor,
Lessor's mortgage lenders and any purchasers of all or a portion of the Leased
Property shall be entitled to rely upon such certificate. Should Lessee fail
timely to comply with this Article, Lessor shall have the right to execute such
certificate as attorney in fact for Lessee and such certificate and the
representations contained therein shall be fully binding on Lessee as though
duly executed by Lessee.
ARTICLE 35. SUCCESSORS AND ASSIGNS. The covenants and conditions herein
----------------------
contained shall, subject to the provisions as to assignment, apply to and bind
the heirs successors, executors, administrators and assigns of all of the
parties hereto.
ARTICLE 36. TIME. Time is of the essence of this Lease with respect to
----
each and every Article, Section and Subsection hereof.
ARTICLE 37. MISCELLANEOUS. Subject to any limitations on assignment set
-------------
forth herein, all of the terms and provisions of this Lease shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto.
The waiver by Lessor of any term, covenant or condition herein
contained shall not be deemed to be a waiver of the same or any other term,
covenant or condition or any subsequent breach of the same of any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Lessor shall not constitute a waiver of any preceding breach by
Lessee of any term, covenant or condition of this Lease, other than the failure
of Lessee to pay the particular rent so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such rent.
This Lease shall be governed by and construed in accordance with law of
Utah.
The invalidity or enforceability of any provision hereof shall not
affect or impair any other provision hereof.
The term "Lessor" as used herein shall include the agents, officers and
employees thereof. If there is more than one Lessee, the obligations of Lessee
hereunder shall be joint and several.
Paragraph headings in this Lease are for convenience only and shall not
define or limit the scope or intent of any provision hereof.
18
Lessee shall not record this Lease or a Memorandum thereof without the
written consent of Lessor. Lessor may file this Lease for record with the
Recorder of the County in which the Leased Property is located.
Any consent required or permitted herein of Lessor or Lessee, as the
case may be, shall not be unreasonably withheld or delayed.
ARTICLE 38. ENTIRE AGREEMENT. This Lease and the Exhibits and addenda
----------------
if any, attached hereto constitute the entire agreement between the parties. All
Exhibits and addenda mentioned in this Lease are incorporated herein by
reference. No subsequent amendment to this Lease shall be binding upon Lessor or
Lessee unless reduced to writing and signed by the party to be charged
therewith. Submission of this Lease for examination does not constitute an
option for the Leased Property and becomes effective as a Lease only upon
execution and delivery thereof by Lessor to Lessee. If any provision contained
in an Exhibit or addendum is inconsistent with a provision in the body of this
Lease, the provision contained in said Exhibit addendum shall control. It is
hereby agreed that this Lease contains no restrictive covenants binding on other
lessees or exclusive use provisions in favor of Lessee. There are no
representations or promises by either party to the other except as are
specifically set forth herein. This Lease supersedes and revokes all previous
conversations, negotiations, arrangements, letters of intent, writings,
brochures, understandings, and information conveyed, whether oral or in writing,
between the parties hereto or their respective representatives or any agents of
any of them.
ARTICLE 39. AUTHORITY OF SIGNATORIES. Each person executing this Lease
------------------------
individually and personally represents and warrants that he is duly authorized
to execute and deliver the same on behalf of the entity for which he is signing
(whether it be a corporation, general or limited partnership or otherwise) and
that this Lease is binding upon said entity in accordance with its terms.
19
IN WITNESS WHEREOF, Lessor and Lessee executed this Lease as of the
date first above written.
"LESSOR"
PWK INVESTMENT, LLC, a Utah limited
liability company
/s/Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx, its Manager
"LESSEE"
TELTRUST, INC., a Utah corporation
By/s/ Xxxx X. Xxxx
-----------------------------
Its CHAIRMAN
----------------
20
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
A parcel of land located in Xxxx 0 xxx 0, Xxxx 0 Xxxx Xxxx International
Center, an industrial subdivision located in Section 35, Township 1 North,
Range 2 West, Salt Lake Base & Meridian, and being more particularly
described as follows:
Beginning at a point which lies 2190.34 feet South and 57.85 feet West of the
Northeast corner of said Section 35, said point being on the west
right-of-way line of 0000 Xxxx Xxxxxx (also known as Xxxxx Xxxxxxxxxxxx
Drive); thence following said right-of-way line South 0 degrees 02'54" West
470.04 feet to the point of tangency on a 30.00 foot radius curve to the
right (central angle 89 degrees 55'08"); thence departing from said
right-of-way line Southwesterly 47.08 feet along the arc of said curve to a
point on the North right-of-way line of Xxxxxx Xxxxxxx Drive; thence
following said right xx xxx xxxx Xxxxx 00 degrees 58'02" West 220.99 feet to
the point of tangency on a 600.00 foot radius curve to the right (central
angle = 44 degrees 59'44"); thence following said right-of-way Northwesterly
471.19 feet along the arc of said curve; thence North 45 degrees 02'14"
West, 118.70 feet; thence departing from said right-of-way line North 44
degrees 57'46" East, 367.12 feet to a point on a 200.00 foot radius curve to
the left (central angle = 24 degrees 51'42") radial to which bears North 24
Degrees 54'36" East; thence Southeasterly 86.78 feet along the arc of said
curve; thence South 89 degrees 57'06" East, 416.19 feet to the point of
beginning.
Excepting therefrom all oil, gas, minerals and ores situated in, upon, or
under the above described tract of land, together with all rights in
connection with or relative to the exploration, mining, removal or sale of
the same.
Street Address: 000 Xxxxx Xxxxx Xxxxxxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000
21
EXHIBIT "B"
DESCRIPTION OF PERSONAL PROPERTY
July 2, 1997
To. Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xx Xxxx, Xxxxx Xxxxxxx
cc: Xxxx Xxxxx, Xxx Xxxx, Xxxxxxx Xxxxx
Xxxxxx and Gentlemen: On July 2, 1997 I conducted a tour of our facility at
000 X Xxxxx Xxxxxxxxxxxx Xx. xx Xxxx Xxxx Xxxx Xxxx with Xxx Xxxx and Xxxxxxx
Xxxxx in order to determine what fixtures and equipment was in the building. The
following is a list of the items that we felt would be included in the sale. If
any of these are determined to be not included, all parties should be notified.
OUTSIDE
2, METAL PICNIC TABLES
1, CONCRETE PICNIC TABLE (no benches)
1, METAL BENCH AT EMPLOYEES ENTRANCE
CAFE
1, SCOTSMAN WATER AND ICE DISPENSER ASSET #68175
1, ICE CREAM XXXX #00000
APPROXIMATELY 50' OF STAINLESS STEEL COUNTERS SERVING AS CAFE SERVING LINE
#68166
1, REFRIGERATED DISPLAY CASE
1, STEAM TABLE
1, COFFEE DISPENSER #68170
APPROXIMATELY 20' OF STAINLESS STEEL COUNTER WITH SINK
2, MEAT SLICERS
1, 4 BURNER STOVE WITH GRIDDLE #68164
1, GAS FRYER #68173
1, 4 SLICE TOASTER
1, RANGE HOOD
ALL SCULLERY EQUIPMENT INKLING STAINLESS STEEL COUNTERS #68161, AND
RACKS #68172, TWO GARBAGE DISPOSERS, 1 DISHWASHER #68282, 1 SUPERSTRUCTURE
#68163,
POT SINK #68160
1, FREE STANDING MIXER #68278
1, 36" DESK WITH 2 CHAIRS
1, HUSSMAN REFRIGERATOR #68167
1, FREEZER #68169
1, REMOTE CONDENSER #68168
1, 6' METAL STORAGE CABINET
MISC. DISHES AND SILVERWARE AND DISH TRAYS
1, ANSUL FIRE SUPPRESSION XXXX #00000
0, XXXX XXXXX
1, SALAD BAR #68158
1, CONDIMENT UNIT #68157
OFFICES
WINDOW BLINDS IN CAFE, CONFERENCE ROOM, PLANT MANAGER'S OFFICE AND GENERAL
OFFICE
22
EXHIBIT "B"
DESCRIPTION OF PERSONAL PROPERTY
CLOSET SHELVING IN PROD. MGR., PLANT MGR , CONFERENCE ROOM AND ZONE SALES MGR.
OFFICES
EMERGENCY LIGHTING SYSTEM (6 CHARGING STATIONS WITH BATTERIES)
1, KEY SAFE
3, XXXX METAL STORAGE SHELF UNITS
PRODUCTION AREA
2, FREE STANDING SINKS #67711
1, FREE STANDING SINK IN MACHINE MAINTENANCE ROOM
1, COMPUTER SYSTEM FOR HVAC CONTROL
1, AIR DRYER UNIT #32059
4, WALL MOUNTED ELECTRICAL TRANSFORMERS #67908.
MECHANICAL ROOM
1, STORAGE CABINET
I, FUSE STORAGE CABINET
1, WATER TREATMENT TANK
1, XXXXXX WATER SOFTENER UNITS# WET309I
1, SALT STORAGE TANK
1, AiR COMPRESSOR #67173
1, AIR COMPRESSOR #67174
1, BOILER PUMP STATION
1, XXXXXX BOILER MODEL K250-S- 15-GI
AUTO SPINKLER SYSTEM
ROOF
1, MAMOTH HVAC UNIT #67904 S#00000-00-00
1, MAMOTH HVAC UNIT S# 00000-00-00
1, MAMOTH HVAC UNIT S# 00000-00-00
8, ROOF EXHAUST FANS # FAN3091, 3092, 3093,3094,3095, 3096,3097 PLUS 1 W/O A
NUMBER
LOADING DOCK
2, TRUCK LOADING LIGHTS
2, DOCK LEVELERS
1, TRUCK TRAILER LOCK SYSTEM
1, TRASH COMPACTOR SYSTEM INCLUDING BIN #67911
1, XXXX METAL SHELF UNIT (SOLVENT ROOM)
MISC
1, POWERS TEMPERATURE CONTROL XXXX #00000
1, HUMIDIFICATION UNIT, #67905
2, COAT RACKS WITH HANGERS (EMPLOYEES ENTRANCE)
1, ADT BURGLAR ALARM SYSTEM #68176. INCLUDES TWO CONTROLS AND ALL RELATED
MOTION DETECTORS
2, XXXX SHELF UNITS (JANITORS ROOM)
1, CARPET VACUUM
, FLOOR BROOMS
EXHIBIT "C"
RENT SCHEDULE
Minimum Rent: Lease Year Annual Rent Monthly Rent
1-5* $236,394.00 $19,699.50
6-10 $256,093.50 $21,341.13
Option term:
11-15 $295,492.50 $24,624.38
* plus the initial partial Lease Month, if any
EXHIBIT "D"
TENANT IMPROVEMENTS
1) Add 2 airlock entries, enclose electrical panels and seal dock doors.
Sheetrock, carpet and suspend ceiling in production area per attached
specifications and drawings.
2) Grade, pave and stripe north and west areas to increase total parking
to 301 spaces per attached specification and drawings. Adequate
lighting will be provided for all new parking areas.
3) Create change over ducting in production area for fail over operation
of HVAC system, including 5 ton split system and wall mounted
humidifier per attached specification and drawings.
4) Create new electrical feeds and systems to accommodate transfer switch
and generator system per attached specification and drawings.
5) Tenant, at tenant sole cost and expense, will obtain all permits and
complete all improvement in accordance with all applicable codes and
regulations.
6) All Tenant Improvement will be completed within 90 days of Lease
----
commencement date.
