Set____of 3 originals
LEASE AGREEMENT
This is a legal and binding contract. Before signing, read the entire
document, including the general printed provisions and attachments. If you
have any questions before signing, consult your attorney and/or accountant.
THIS LEASE AGREEMENT (hereinafter the "Lease") is made and entered into
as of the 7th day of July, 2000, by and between Stratford Park, L.C. whose
address is 0000 Xxxxx Xxxx Xxxx., Xxxx Xxxx 00000 (801) 226-8005
("hereinafter "Landlord") and Internet Development, Incorporated, whose
address is 000 Xxxxx Xxxxxxxx Xxxxx, Xxxx Xxxx 00000 (801) 224-4444
(hereinafter "Tenant").
W I T N E S S E T H:
In consideration of the rents, covenants and agreements hereinafter set
forth, Landlord and Tenant mutually agree as follows:
ARTICLE I: PREMISES
Landlord hereby leases and demises to Tenant and Tenant hereby leases
from Landlord that certain real property located in Utah County, State of Utah
and more particularly described as Stratford Office Park 000-000 Xxxx 000
Xxxxx Xxxx #0, Xxxx Xxxx 00000 (hereinafter the "Property"), together with
all buildings and other improvements now or hereafter located thereon and
affixed thereto (hereinafter collectively "Improvements"), and any and all
privileges, easements, and appurtenances belonging thereto or granted herein.
The Property and the Improvements are hereinafter collectively referred to as
the "Premises".
ARTICLE II: TERM COMMENCEMENT
2.1 Term of Lease. This Lease shall be for a term of Five year(s)
and 0 months commencing on September 1, 2000, (hereinafter the "Commencement
Date") and ending at 12:00 p.m. on August 30, 2005, unless sooner terminated
pursuant to the terms, covenants and conditions of this Lease or pursuant to
law. If the Tenant occupies earlier than September 1, 2000 Tenants per diem
base rent charges shall be $417.04. So long as Tenant is in full compliance
with all lease terms and conditions, Tenant shall have the right to renew this
lease for an additional Five year period. Should Tenant desire to renew this
lease, Tenant shall do so in writing 6 months prior to the termination of the
first term.
2.2 Delivery of Possession. Tenant acknowledges that Landlord is
currently completing construction of the Premises. In the event that Landlord
is not able to deliver possession of the Premises to Tenant on the
Commencement Date because construction of the Premises has not yet been
completed, Landlord shall not be liable to Tenant and Tenant may not terminate
this Lease or any of Tenant's rights or obligations hereunder; provided,
however, that in the event Landlord is unable to deliver possession of the
Premises to Tenant on or before the date which is sixty (60) days after the
Commencement Date, Tenant's sole remedy shall be to terminate this Lease and
all of Landlord's and Tenant's respective rights and obligations hereunder by
written notice from Tenant to Landlord. Such notice must be given, if at all,
on or before the date which is seventy-five (75) days after the Commencement
Date. Notwithstanding anything to the contrary in this Lease, Tenant shall
not be obligated to pay rent to Landlord for any fractional months or months
during which Landlord is unable to deliver possession of the Premises to
Tenant pursuant to the provisions of this Section 2.2.
2.3 Lease Year. The term "Lease Year" as used in this Lease shall
mean a period of twelve (12) consecutive calendar months during the term of
this Lease. The first Lease Year shall begin on the Commencement Date if the
Commencement Date occurs on the first day of a calendar month; if not, the
first Lease Year shall begin on the first day of the calendar month next
following the Commencement Date. Each succeeding Lease Year shall begin at
the expiration of the immediately preceding Lease Year.
ARTICLE III: RENT
3.1 Payment of Monthly Base Rent. As Monthly Base Rent for the
Premises, Tenant shall pay to Landlord, in advance on or before the first day
of each calendar month during the term of this Lease, an amount equal to the
"Monthly Base Rent" as defined in Section 3.2.
3.2 Monthly Base Rent. The "Monthly Base Rent" payable during each
Lease Year shall be determined in accordance with the following:
(a.) Refer To Exhibit B
ARTICLE IV: LATE CHARGES AND INTEREST
If Tenant fails to pay any Monthly Base Rent when such Monthly Base Rent
is due and payable in accordance with Article III of this Lease or if Tenant
fails to pay any additional amounts or charges of any character which are
payable under this Lease, Landlord, at Landlord's election, may assess and
collect a late fee charge equal to five percent (5%) of each payment of rent
not received within five (5) days from the date such rent payment is due.
Furthermore, and in addition to any late charges payable pursuant to the
provisions of this Article, to the extent that any payment of Monthly Base
Rent or any other amount payable to Landlord by Tenant pursuant to any
provision of this Lease is more than thirty (30) days past due, Tenant shall
pay Landlord interest at the rate of eighteen percent (18%) per annum on all
such past due amounts.
ARTICLE V: SECURITY DEPOSIT
Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord the sum of FOURTEEN THOUSAND TWO HUNDRED SEVENTY SEVEN AND
08/100 ($14,277.08) (hereinafter the "Security Deposit"). The Security
Deposit shall be held by Landlord for the faithful performance by Tenant of
all of the terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term of this Lease. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of Monthly Base Rent, and any costs,
expenses, and charges payable under the provisions of this Lease, Landlord
may, but shall not be obligated to use, apply or retain all or a part of the
Security Deposit for the payment of any amount which Landlord may spend by
reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of the Security Deposit is so used or applied, Tenant shall, within
ten (10) days after written demand, deposit with Landlord an amount sufficient
to restore the Security Deposit to its original amount; and Tenant's failure
to do so shall be a material breach of this Lease. Landlord shall not be
required to keep the Security Deposit separate from Landlord's general funds,
and Tenant shall not be entitled to interest on the Security Deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by Tenant, the Security Deposit or any balance thereof shall be
returned to Tenant or, at Landlord's option, to the last permitted assignee of
Tenant's interest under this Lease within thirty (30) days of the expiration
of the term of this Lease and after Tenant or Tenant's permitted assignee has
vacated the Premises or within fifteen (15) days of receipt of Tenant's new
mailing address, whichever is later. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer the Security
Deposit to Landlord's successor in interest whereupon Tenant agrees to release
Landlord from liability for the return of the Security Deposit or any
accounting therefore.
ARTICLE VI: QUIET ENJOYMENT
Landlord hereby covenants to Tenant that, subject to Tenant's compliance
with the terms and provisions of this Lease, Tenant shall peaceably and
quietly hold and enjoy the full possession and use of the Premises during the
term of this Lease.
ARTICLE VII: TAXES, ASSESSMENTS AND OTHER CHARGES
7.1 Taxes and Assessments. Tenant shall pay to Landlord all real
estate taxes, assessments (general and special), and other charges which may
be levied, assessed or charged against the Premises, accruing or becoming due
and payable during the term of this Lease and any extension thereof at least
ten (10) days before such taxes, assessments, or other charges become
delinquent. The charges shall be as follows (these are estimates only and are
subject to annual increases): $1,139.95 for Real Estate Taxes, $130.00 for
Building Insurance, and $300.00 for Common Area Charges (CAM) due at the first
of every month.
7.2 Right to Contest Taxes. Tenant, at its sole cost, shall have the
right to contest, in accordance with the provisions of the laws relating to
such contests, any real estate taxes, assessments, or other charges against
the premises and the failure of Tenant to pay such taxes, assessments, or
charges shall not constitute a default by Tenant so long as Tenant complies
with the provisions of this Section 7.2. Prior to initiating any contest or
proceeding, Tenant shall give Landlord written notice of such contest, or
proceeding and shall either deposit with Landlord, or furnish good and
sufficient undertaking and sureties designating Landlord as the beneficiary
thereof, in such amount as Landlord deems to be sufficient, considering the
amount of such taxes, charges, assessments, any potential penalties and
interest thereon, and any potential expenses that might be incurred by
Landlord with respect thereto. Landlord shall not be required to join in any
proceeding or contest brought by Tenant unless the provisions of any law
require that the proceeding or contest be brought by or in the name of
Landlord or any owner of the Premises. In that case, Landlord shall join in
the proceeding or contest or permit such proceeding or contest to be brought
in its name as long as Landlord is not required to bear any cost. Tenant, on
final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered, together with all costs, charges,
interest and penalties incidental to the decision or judgment.
ARTICLE VIII: UTILITIES
Tenant shall be solely responsible for, and pay when due, all charges for
water, gas, heat, light, power, telephone, and other utilities or services
used by or supplied to Tenant or to the Premises, together with any taxes
thereon, during the term of this Lease.
ARTICLE IX: INSURANCE
9.1 Tenant's Insurance Coverage. Tenant shall, at all times during
the term of this Lease, and at Tenant's own cost and expense, pay for and
continue in force the following insurance coverage:
(a) Comprehensive liability insurance with limits of not less
than $500,000.00 per person and $500,000.00 per occurrence insuring against
any and all liability of the insured with respect to the Premises or arising
out of the maintenance, use or occupancy thereof, and property damage
liability insurance with a limit of not less than $500,000.00 per accident or
occurrence.
(b) Insurance covering any buildings and all improvements on
the Premises, including Tenant's leasehold improvements and personal property
in or upon the Premises in an amount not less than one hundred percent (100%)
of full replacement cost, providing protection against any peril generally
included within the classification "Fire and Extended Coverage", together with
insurance against sprinkler damage, vandalism and malicious mischief and a
standard inflation guard endorsement. Tenant hereby assigns Landlord any and
all proceeds payable with respect to such policies except to the extent such
proceeds are payable with respect to any property that would remain the
property of Tenant upon the termination of this Lease; provided, however, that
to the extent required pursuant to the provisions of Article XIV, such
proceeds shall be applied to the repair and restoration of the Premises.
9.2 Insurance Policies. The minimum limits of insurance policies as
set forth in Section 9.1 shall in no event limit the liability of Tenant
hereunder. The insurance policies shall name Landlord as an additional
insured and shall be with companies having a rate of not less than an "A"
company rating and a Financial Rating of Class VI in "Best's Insurance
Reports." Tenant shall furnish from the insurance companies or cause the
insurance companies to furnish to Landlord certificate of coverage. No such
policy shall be cancelable or subject to reduction of coverage or other
modification or cancellation except after thirty (30) days prior written
notice to Landlord by the insurer. All such policies shall be written as
primary policies, not contributing with and not in excess of any coverage
which Landlord may carry. Tenant shall at least twenty (20) days prior to the
expiration of such policies furnish Landlord with renewals or binders. If
Tenant does not procure and maintain such insurance, Landlord may, but is not
obligated to, procure such insurance on Tenant's behalf and all sums paid by
Landlord shall bear interest at the rate of eighteen percent (18%) and shall
be immediately due and payable. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by Tenant provided
such blanket policies expressly afford coverage to the Premises and to
Landlord as required by this Lease.
9.3 Waiver of Subrogation. To the extent permitted under the
insurance policies obtained by Landlord, if any, and Tenant, Landlord and
Tenant each hereby waive any and all right of recovery against the other or
against the officers, employees, agents and representatives of the other, on
account of loss or damage occasioned to such waiving party or its property or
the property of others under its control to the extent that such loss or
damage is insured against under any fire and extended coverage insurance
policy which either may have in force at the time of such loss or damage.
ARTICLE X: USE OF PREMISES
10.1 Use. The Premises shall be used and occupied by Tenant solely
for office use and for no other purpose without the prior written consent of
Landlord, which consent may be withheld by Landlord in Landlord's sole
discretion.
10.2 Suitability. Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to the
Premises or the Improvements or with respect to the suitability of either for
the conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises except as specifically
provided in this Lease. The continued possession of the Premises by Tenant
shall conclusively establish that the Premises and the Improvements are at the
date of possession in satisfactory condition. Landlord shall not be
responsible for any latent defects or deficiencies in the construction of the
Premises or the Improvements or any improvements or fixtures therein.
10.3 Prohibited Uses.
(a) Tenant shall not do or permit anything to be done in or
about the Premises, nor bring or keep anything therein which will cause a
cancellation of any insurance policy covering the Premises, nor shall Tenant
sell or permit to be kept, used or sold in or about the Premises any articles
which may be prohibited by a standard form policy of fire insurance unless
Tenant provides additional insurance coverage extending protection to cover
all risks associated with these articles.
(b) Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation or requirement of duly
constituted public authorities now in force or which may hereafter be enacted,
promulgated or created. Tenant shall, at Tenant's 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 relating to or affecting the use or
occupancy of the Premises, including structural changes that relate to or
affect the use
(c) Tenant shall comply with all requirements of any
recorded restrictive covenants or bylaws of any association affecting the
Premises. Tenant acknowledges receipt of a copy of the Declaration of
Covenants, Conditions and Restrictions and a copy of the Bylaws of the
Condominium Owners' Association affecting the Premises.
(d) Tenant shall not permit smoking on the Premises at any
time.
ARTICLE XI: MAINTENANCE AND REPAIRS
11.1 Tenant Maintenance and Repairs. During the Term of the Lease,
Tenant, at Tenant's expense, shall keep the Premises in good order and
condition and shall maintain and shall make any and all repairs and
replacements to the interior surfaces of the Premises (including, but not
limited to, floor coverings, window coverings, and wall coverings), all
windows and glass which are part of the Premises, all light fixtures, and all
doors to the Premises. Tenant is required to have plastic chair mats
underneath the desks in order to protect floor coverings. Tenant shall be
liable for floor covering replacement if the mats are not used. Tenant shall,
at all times, and at Tenant's expense, keep the Premises in a neat, clean, and
sanitary condition and shall comply with all valid federal, state, county and
city laws and ordinances and all rules and regulations of any duly constituted
authority, present or future, affecting or respecting the use or occupancy of
the Premises by Tenant. Tenant, at Tenant's expense, shall also repair any
structural damage to the Premises caused by Tenant, or Tenant's employees,
agents, contractors, invitees, licensees, customers, or clients.
11.2 Landlord Maintenance and Repairs. Subject to the provisions of
Article XIV below, Landlord shall, during the Term of this Lease, maintain and
make necessary structural repairs to the Premises not included as Tenant's
responsibility pursuant to the provisions of Section 11.1, 14.3, and repairs
to heating, ventilation or air conditioning equipment servicing the Premises;
provided, however, that damage to such equipment caused by Tenant shall be
repaired at Tenant's expense. Tenant shall promptly notify Landlord in
writing of any condition requiring maintenance or repair and Tenant shall also
immediately notify Landlord by telephone in the case of an emergency.
Landlord shall make the repairs required under this section within a
reasonable time after receiving written notice by Tenant. Nothing in this
section shall be construed to excuse Tenant from any obligations under this
Lease, including without limitation, the payment of any rent.
ARTICLE XII: HAZARDOUS SUBSTANCES
12.1 Environmental Compliance. Tenant (a) shall at all times comply
with, or cause to be complied with, any "Environmental Law" (hereinafter
defined) governing the Premises or the use thereof by Tenant or any of
Tenant's employees, agents, contractors, invitees, licensees, customers, or
clients, (b) shall not use, store, generate, treat, transport, or dispose of,
or permit any of Tenant's employees, agents, contractors, invitees, licensees,
customers, or clients to use, store, generate, treat, transport, or dispose
of, any "Hazardous Substance" (hereinafter defined) on the Premises without
first obtaining Lessor's written approval, (c) shall promptly and completely
respond to, and clean up, in accordance with applicable laws and regulations,
any Release (as hereinafter defined) occurring on the Premises as a direct
result of actions of Tenant or Tenant's employees or authorized agents; and
(d) shall pay all costs incurred as a result of any failure by Tenant to
comply with any Environmental Law, which failure results in a Release or other
change in the environmental state, condition, and quality of the Premises
necessitating action under applicable Environmental Laws, including with
limitation the costs of any Environmental Cleanup Work (hereinafter defined)
and the preparation of any closure or other required plans (all of the
foregoing obligations of Tenant under this Section 12.1 are hereinafter
collectively "Tenant's Environmental Obligations"). Landlord hereby releases
and indemnifies Tenant from and against any and all claims, damages, or
liabilities (including, without limitation, attorneys' fees and reasonable
investigative and discovery costs) resulting from the environmental condition
or quality of the Premises prior to the Commencement date or from actions of
Landlord or its agents or employees. The provisions of this Article XII shall
survive the expiration or other termination of this Lease.
12.2 Definitions. As used in this Lease (a) "Hazardous Substance"
shall mean (1) any "hazardous waste", "hazardous substance", and any other
hazardous, radioactive, reactive, flammable, infectious, solid wastes, toxic
or dangerous substances or materials, or related materials, as defined in,
regulated by, or which form the basis of liability now or hereafter under any
Environmental Law; (2) asbestos, (3) polychlorinated biphenyls (PCBs); (4)
petroleum products or materials; (5) underground storage tanks, whether empty
or filled or partially filled with any substance; (6) flammable explosives,
(7) any substance the presence of which on the Premises is or becomes
prohibited by Environmental Law; (8) urea formaldehyde foam insulation; and
(9) any substance which under Environmental Law requires special handling or
notification in its use, collection, storage, treatment or disposal; (b)
"Environmental Cleanup Work" shall mean an obligation to perform work,
cleanup, removal, repair, remediation, construction, alteration, demolition,
renovation or installation in or in connection with the Premises in order to
comply with any Environmental Law; (c) "Environmental Law" shall mean any
federal, state or local law, regulation, ordinance or order, whether currently
existing or hereafter enacted, concerning the environmental state, condition
or quality of the Premises or use, generation, transport, treatment, removal,
or recovery of Hazardous Substances, including building materials, and
including, but not limited to, the following: (1) the Solid Waste Disposal Act
as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
Section 6901, et seq.), as amended, and all regulations promulgated
thereunder; (2) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601, et seq.), as amended, and all
regulations promulgated thereunder; (3) the Hazardous Materials Transportation
Act (49 U.S.C. Section 1801, et seq.), as amended, and all regulations
promulgated thereunder; (4) the Toxic Substances Control Act (15 U.S.C.
Section 2601, et seq.), as amended, and all regulations promulgated
thereunder; (5) the Clean Air Act (42 U.S.C. Section 7401, et seq.), as
amended, and all regulations promulgated thereunder; (6) the Federal Water
Pollution Control Act (33 U.S.C. Section 1251, et seq.), as amended, and all
regulations promulgated thereunder; and (7) the Occupational Safety and Health
Act (29 U.S.C. Section 651, et seq.), as amended, and all regulations
promulgated thereunder; and (d) "Release" means any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, presence, dumping, migration on or from the
Premises or adjacent property, or disposing of Hazardous Substances into the
environment.
ARTICLE XIII: FIXTURES AND ALTERATIONS
13.1 Alterations. Tenant shall not make any physical alteration in
the Premises or any of the fixtures located therein or install or cause to be
installed any trade fixtures, exterior signs, floor coverings, interior or
exterior lighting, plumbing fixtures, shades or awnings or make any changes to
the Improvements front without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant shall
present to Landlord plans and specifications for the installation of any
improvements or fixtures at the time approval is sought from Landlord. Any
physical change and all rearrangements which are made by Tenant with the
approval of Landlord shall be made at Tenant's expense. Such alterations,
decorations, additions and improvements shall not be removed from the Premises
during the term of this Lease without the prior written consent of Landlord.
Upon expiration of this Lease all such alterations, decorations, additions and
improvements shall at once become the Property of Landlord.
13.2 Conditions and Limitations. Landlord may impose as a condition
to granting any consent required by Section 13.1, such requirements,
restrictions and limitations as Landlord may deem necessary in Landlord's sole
discretion, including without limitation, the manner in which the work is
done, the contractors by whom it is performed, and the time during which the
work is accomplished.
13.3 Contractors and Materialmen. If any fixtures, alterations or
improvements are allowed by Landlord, Tenant shall promptly pay all contracts
and materialmen, so as to eliminate the possibility of a lien attaching to the
Improvements or the Land, and should any such lien be made or filed by reason
of any fault of Tenant, Tenant shall bond against or discharge the same within
ten (10) days after written request by Landlord. Landlord shall have the
right, but not the obligation, to pay and discharge any such lien that
attaches to the Premises and Tenant shall reimburse Landlord for any such sums
paid together with interest at the rate of eighteen percent (18%) within
thirty (30) days after written demand by Landlord.
ARTICLE XIV: DAMAGE OR DESTRUCTION
14.1 Landlord to Repair Improvements. Subject to the provisions of
Sections 11.1; 14.2 and 14.3, if during the term of this Lease any of the
Improvements are damaged or destroyed by fire or other casualty, Landlord
shall repair or restore the Improvements. The work of repair or restoration,
which shall be completed with due diligence, shall be commenced within a
reasonable time after the damage or loss occurs. To the extent that such
damage or destruction interferes with Tenant's ability to use the Premises, as
determined by Landlord, rent shall be abated after the damage or destruction
of the Improvements until the repair or restoration of the Improvements has
been completed.
14.2 Landlord's Option to Terminate Lease. Notwithstanding anything
to the contrary in this Article XIV, in the event that any of the Improvements
are damaged or destroyed by fire or other casualty, Landlord shall have the
right to terminate this Lease, which termination shall be deemed to be
effective as of the date of such casualty, upon the occurrence of any of the
following events:
(a) Insurance proceeds payable with respect to such damage
or destruction are not sufficient to pay for the repair and/or restoration of
the Improvements;
(b) Repair and restoration of the Improvements cannot be
completed within sixty (60) days after the occurrence of the casualty causing
such damage or destruction;
(c) More than thirty percent (30%) of the Improvements have
been damaged or destroyed by such casualty.
Landlord's option to terminate the Lease pursuant to the provisions of
this Section 14.2 must be exercised within thirty (30) days of the date of the
casualty causing such damage or destruction by written notice from Landlord to
Tenant. In the event that Landlord elects to terminate the Lease pursuant to
this Section 14.2, Tenant shall immediately surrender possession of the
Premises to Landlord and shall assign to landlord (or if the same has already
been received by Tenant, pay to Landlord) all of Tenant's right, title, and
interest in and to the insurance proceeds payable with respect to the
Premises.
14.3 Tenant's Option to Terminate Lease. If no default by Tenant
under this Lease has occurred and is then continuing and if no event has
occurred and is then continuing which, with the giving of notice or lapse of
time, or both, would become such a default, Tenant shall, if the Improvements
are damaged or destroyed by fire or other casualty and repair or restoration
of the Improvements cannot be completed within sixty (60) days following the
occurrence of the casualty causing such damage or destruction, have the option
of terminating this Lease by written notice to Landlord, which termination
shall be deemed to be effective as of the date of the casualty. Tenant's
option to terminate the Lease pursuant to the provisions of this Section 14.3
must be exercised within thirty (30) days of the date of the casualty causing
such damage or destruction. In the event that Tenant elects to terminate this
Lease pursuant to this Section 14.3, Tenant shall immediately surrender
possession of the Premises to Landlord and shall assign to landlord (or if the
same has already been received by Tenant, pay to Landlord) all of Tenant's
right, title, and interest in and to the insurance proceeds payable with
respect to the Premises.
ARTICLE XV: CONDEMNATION
If all or any part of the Premises is taken or appropriated for public or
quasi-public use by right of eminent domain with or without litigation or
transferred by agreement in connection with such public or quasi-public use,
Landlord and Tenant shall each have the right within thirty (30) days of
receipt of notice of taking, to terminate this Lease as of the date possession
is taken by the condemning authority; provided, however, that before Tenant
may terminate this Lease by reason of taking or appropriation, such taking or
appropriation shall be of such an extent and nature as to substantially
handicap, impede or impair Tenant's use of the Premises. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns to
Landlord any award which may be made in such taking or condemnation, together
with any and all rights of Tenant now or hereafter arising in or to the award
or any portion thereof; provided, however, that nothing contained herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property and
fixtures belonging to Tenant, for the interruption of or damage to Tenant's
business and for Tenant's unamortized cost of leasehold improvements. In the
event of a partial taking which does not result in a termination of this
Lease, rent shall be abated in the proportion which the part of the Premises
so made unusable bears to the rented area of the Premises immediately prior to
the taking. No temporary taking of the Premises or Tenant's right therein or
under this Lease shall terminate this Lease or give Tenant any right to any
abatement of rent thereunder; and any award made to Tenant by reason of any
such temporary taking shall belong entirely to Tenant, and Landlord shall not
be entitled to any portion thereof.
ARTICLE XVI: ASSIGNMENT AND SUBLETTING
16.1 Landlord's Consent Required. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest therein,
either voluntarily or involuntarily by operation of law or otherwise, and
Tenant shall not sublet the Premises or any part thereof, without the prior
written consent of Landlord and any attempt to do so without such consent
being first had and obtained shall be void and shall constitute a breach of
this Lease, such consent shall not be unreasonably withheld.
16.2 No Release of Tenant. No consent by Landlord to any assignment
or subletting by Tenant shall relieve Tenant of any obligation to be performed
by Tenant under this Lease, whether occurring before or after such consent,
assignment or subletting. The consent by Landlord to any assignment or
subletting shall not relieve Tenant from the obligation to obtain Landlord's
express written consent to any other assignment or subletting. The acceptance
of rent by Landlord from any other person or legal entity shall not be deemed
to be a waiver by Landlord of any provision of this Lease or to be a consent
to any assignment, subletting or other transfer. Consent to one assignment,
subletting or other transfer shall not be deemed to constitute consent to any
subsequent assignment, subletting or other transfer.
16.3 Increased Expenses. Tenant shall pay Landlord the amounts of
any increase in costs or expenses incident to the occupancy of the Premises by
such assignee or subtenant, including but not limited to, reasonable
attorney's fees incurred in connection with giving such consent.
ARTICLE XVII: SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES
17.1 Subordination. This Lease at Landlord's option shall be subject
and subordinate to the lien of any mortgages or deeds of trust in any amount
or amounts whatsoever now or hereafter placed on or against the Premises, the
Improvements, or on or against Landlord's interest or estate therein, without
the necessity of the execution and delivery of any further instruments on the
part of Tenant to effectuate such subordination. Notwithstanding anything to
the contrary in this Article XVII, this Lease shall remain in full force and
effect for the full term hereof, including any extensions, so long as Tenant
is not in default hereunder.
17.2 Subordination Agreements. Tenant shall execute and deliver upon
demand without charge therefore, such further instruments evidencing such
subordination of this Lease to the lien of any such mortgages or deeds of
trust as may be required by Landlord.
17.3 Attornment. In the event of any foreclosure or the exercise of
the power of sale under any mortgage or deed of trust made by Landlord
covering the Premises or the Building, Tenant shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease, provided said purchaser expressly agrees in writing to be
bound by the terms of this Lease.
17.4 Estoppel Certificates. Tenant shall, from time to time and
within ten (10) days from receipt of prior written notice from Landlord,
execute, acknowledge and deliver to Landlord a statement in writing (a)
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 and the date to which the
rent and other charges are paid in advance, if any, (b) certifying that the
Lease and any modifications of this Lease constitute the entire agreement
between Landlord and Tenant with respect to the Premises and, except as set
forth in this Lease and any modification of this Lease, Tenant does not claim
any right, title, or interest in or to the Premises or any part thereof, (c)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults
on the part of Landlord hereunder, or specifying such defaults, if any are
claimed, and (d) certifying such other matters with respect to the Lease
and/or the Premises as Landlord may reasonably request.
17.5 Failure to Deliver Certificate. If Tenant fails to deliver such
statement within the time period referred to in Section 17.4 above, it shall
be deemed conclusive upon Tenant that the (a) this Lease is unmodified and in
full force and effect, (b) this Lease constitutes the entire agreement between
Landlord and Tenant with respect to the Premises and, except as set forth in
this Lease, Tenant does not claim any right, title, or interest in or to the
Premises, or any part thereof, (c) there are no uncured defaults in Landlord's
performance of Landlord's obligations under this Lease, and (d) not more than
one month's Monthly Base Rent has been paid in advance.
17.6 Transfer of Landlord's Interest. In the event of a sale or
conveyance by Landlord of Landlord's interest in the Premises other than a
transfer for security purposes only, Landlord shall be relieved from and after
the date specified in any such notice of transfer of all obligations and
liabilities to Tenant which accrue after such sale or conveyance on the part
of Landlord, provided that any funds in the possession of Landlord at the time
of transfer in which Tenant has an interest shall be delivered to the
successor Landlord. This Lease shall not be affected by any such sale or
transfer and Tenant shall attorn to the purchaser or other transferee provided
that all of Landlord's obligations accruing hereunder from and after such sale
or transfer are assumed in writing by such purchaser or transferee.
ARTICLE XVIII: DEFAULT AND REMEDIES
18.1 Default. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant:
(a) Any failure by Tenant to pay the Monthly Base Rent, or
any other monetary sums required to be paid under this Lease, where such
failure continues for five (5) days after written notice thereof by Landlord
to Tenant;
(b) Any material false statement made by Tenant to Landlord
or its agents in any document delivered to Landlord in connection with the
negotiation of this Lease.
(c) The abandonment or vacation of the Premises by Tenant;
(d) A failure by Tenant to observe and perform any other
term, covenant or condition of this Lease to be observed or performed, by
Tenant, where such failure continues for thirty (30) days after written notice
thereof by Landlord to Tenant; provided, however, that if the nature of the
default is such that the default cannot reasonably be cured within the thirty
(30) day period, Tenant shall not be deemed to be in default if Tenant shall
within the thirty (30) day period commence action to cure the default and
thereafter diligently prosecute the same to completion;
(e) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); the appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; or the attachment, execution, or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty
(30) days.
18.2 Nonexclusive Remedies. In the event of any such material
default or breach by Tenant, Landlord shall have, in addition to any other
remedies provided in this Lease, the following nonexclusive remedies:
(a) At Landlord's option and without waiving any default by
Tenant, Landlord shall have the right to continue this Lease in full force and
effect and to collect all Monthly Base Rent, and any other amounts to be paid
by Tenant under this Lease as and when due. During any period that Tenant is
in default, Landlord shall 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 the
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
exceed the balance of the term of this Lease), and upon such other terms,
covenants and conditions as Landlord may in Landlord's sole discretion deem
advisable. Upon each and any such reletting, the rent or rents received by
Landlord from such reletting shall be applied as follows: (1) to the payment
of any indebtedness (other than rent) due hereunder from Tenant to Landlord;
(2) to the payment of costs and expenses of such reletting, including
brokerage fees, reasonable attorney's fees, court costs, and costs of any
alterations or repairs; (3) to the payment of any Monthly Base Rent and any
other amounts due and unpaid hereunder; and (4) the residue, if any, shall be
held by Landlord and applied in payment of future Monthly Base Rent and any
other amounts as they become due and payable hereunder. If the rent or rents
received during any month and applied as provided above shall be insufficient
to cover all such amounts including the Monthly Base Rent and any other
amounts to be paid by Tenant pursuant to this Lease for such month, Tenant
shall pay to Landlord any deficiency; such deficiencies shall be calculated
and paid monthly. No entry or taking possession of the Premises by Landlord
shall be construed as an election by Landlord to terminate this Lease, unless
Landlord gives written notice of such election to Tenant or unless such
termination shall be decreed by a court of competent jurisdiction.
Notwithstanding any reletting by Landlord without termination, Landlord may at
any time thereafter terminate this Lease for such previous default by giving
written notice thereof to Tenant.
(b) Terminate Tenant's right to possession by notice to
Tenant, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord by
reason of Tenant's default, including without limitation the following: (1)
all unpaid rent which has been earned at the time of such termination plus (2)
the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss
that is proved could have been reasonably avoided; plus (3) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform Tenant's obligations under this Lease, or in
addition to or in lieu of the foregoing such damages as may be permitted from
time to time under applicable State law. Upon any such re-entry Landlord
shall have the right to make any reasonable repairs, alterations or
modifications to the Premises, which Landlord in Landlord's sole discretion
deems reasonable and necessary.
ARTICLE XIX: ENTRY BY LANDLORD
Landlord shall, during the term of this Lease, have the right to enter
the Premises at reasonable times and upon reasonable notice to Tenant, to
inspect or to show to prospective tenants or purchasers, or to make necessary
repairs. For purposes of this section, twenty-four (24) hours is deemed to be
reasonable notice. In the event of an emergency, however, Landlord shall not
be required to give Tenant such notice, provided that Landlord furnishes
Tenant with the reason for the emergency entry within three days of such
entry.
ARTICLE XX: INDEMNITY
Tenant shall indemnify and hold Landlord harmless from any and all claims
of liability for any injury or damage to any person or property whatsoever
occurring in, on or about the Premises or any part thereof during the term of
this Lease. Tenant shall further indemnify and hold Landlord harmless from
and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or negligence of Tenant, or any of
Tenant's agents, contractors, employees, licensees or invitees and from and
against all costs, reasonable attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon. Tenant shall not, however, be liable for damage or injury occasioned
by the negligence or intentional acts of Landlord and Landlord's designated
agents or employees. Tenant's obligations under this Article XX shall survive
the expiration or other termination of this Lease.
ARTICLE XXI: SURRENDER
21.1 Surrender. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender to Landlord the Premises, together with
the Improvements and all other property affixed to the Premises, excluding
Tenant's fixtures, in good order and condition, ordinary wear and tear
excepted. Tenant shall, prior to the expiration or other termination of this
Lease remove all personal property belonging to Tenant and failing to do so,
Landlord may cause all of said personal property to be removed at the cost and
expense of Tenant. Tenant's obligation to observe and perform this covenant
shall survive the expiration or other termination of this Lease. In the
alternative, Landlord may, at Landlord's option, treat any and all items not
removed by Tenant on or before the date of expiration or of the termination of
this Lease as having been relinquished by Tenant and such items shall become
the property of Landlord with the same force and effect as if Tenant had never
owned or otherwise had any interest in such items.
21.2 Hazardous Substances. No spill, deposit, emission, leakage or
other release of Hazardous Substance in the soils, ground waters or waters
shall be deemed to result in either (a) wear and tear that would be normal for
the term of the Lease; or (b) a casualty to the Premises. Tenant shall be
responsible to promptly and completely cleanup any Release occurring on the
Premises during the term of the Lease which directly results form the actions
of Tenant or its employees or authorized agents. Tenant shall surrender the
Premises free of any contamination or other damage caused by such a Release
during the term of the Lease. Tenant's obligation to cleanup the Premises
pursuant to the provisions of this Article XXI shall survive the expiration or
other termination of this Lease.
ARTICLE XXII: OPTION TO PURCHASE
22.1 Grant of Option. This section does not apply to this Lease.
ARTICLE XXIII: MISCELLANEOUS
23.1 Signs. Tenant, at its own cost, may place and maintain a sign
advertising Tenant's business in the window of the Premises so long as the
sign complies with the rules and regulations of the Condominium Owners'
Association for the Premises.
23.2 Parking Spaces. Tenant shall be entitled to the use of 57
unreserved parking spaces appurtenant to the Premises for the benefit of
Tenant, its employees, agents, and invitees for the Term of the Lease.
23.3 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and
Tenant relative to the Premises and this Lease and the exhibits and
attachments may be altered, amended or revoked only by an instrument in
writing signed by both Landlord and Tenant. All prior or contemporaneous oral
agreements between and among Landlord and Tenant and their agents or
representatives relative to the leasing of the Premises are merged in or
revoked by this Lease.
23.4 Severability. If any term or provision of this Lease shall, to
any extent, be determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Lease shall not be affected thereby,
and each term and provision of this Lease shall be valid and be enforceable to
the fullest extent permitted by law.
23.5 Costs of Suit. If Tenant or Landlord shall bring any action
for any relief against the other, declaratory or otherwise, arising out of
this Lease, including any suit by Landlord for the recovery of rent or
possession of the Premises, the losing party shall pay the successful party a
reasonable sum for attorney's fees whether or not such action is prosecuted to
judgment.
23.6 Time and Remedies. Time is of the essence of this Lease and
every provision hereof. All rights and remedies of the parties shall be
cumulative and nonexclusive of any other remedy at law or in equity.
23.7 Binding Effect, Successors and Choice of Law. All time
provisions of this Lease are to be construed as both covenants and conditions
as though the words importing such covenants and conditions were used in each
separate Section of this Lease. Subject to any provisions restricting
assignment or subletting by Tenant as set forth in Article XVI, all of the
terms hereof shall bind and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors and assigns. This
Lease shall be governed by the laws of the State of Utah.
23.8 Waiver. No term, covenant or condition of this Lease shall be
deemed waived, except by written consent of the party against whom the waiver
is claimed, and any waiver of the breach of any term, covenant or condition
shall not be deemed to be a waiver of any preceding or succeeding breach of
the same or any other term, covenant or condition. Acceptance by Landlord of
any performance by Tenant after the time the same shall have become due shall
not constitute a waiver by Landlord of the breach or default of any term,
covenant or condition unless otherwise expressly agreed to by Landlord in
writing.
23.9 Holding Over. If Tenant remains in possession of all or any
part of the Premises after the expiration of the term of this Lease, with or
without the express or implied consent of Landlord, such tenancy shall be from
month to month only, and not a renewal hereof or an extension for any further
term, and in such case, rent and other sums due hereunder shall be payable at
one hundred fifty percent (150%) of the Monthly Base Rent in effect
immediately prior to such holdover period.
23.10 Recording. No copy of this Lease will be recorded on behalf of
either party, but in lieu thereof, Landlord and Tenant agree that each will ,
upon the request of the other, execute, in recordable form, a "short form" of
the Lease, which "short form" shall contain a description of the Premises, the
term of the Lease, the parties to the Lease. The "short form" of the Lease
shall not modify the terms of the Lease or be used in interpreting the Lease
and in the event of any inconsistency between this Lease and the "short form"
of the Lease, the terms and conditions of this Lease shall control.
23.11 Reasonable Consent. Except as limited elsewhere in this Lease,
wherever in this Lease Landlord or Tenant is required to give consent or
approval to any action on the part of the other, such consent or approval
shall not be unreasonably withheld. In the event of failure to give any such
consent, the other party shall be entitled to specific performance at law and
shall have such other remedies as are reserved to such party under this Lease.
23.12 Notice. Any notice required to be given under this Lease shall
be given in writing and shall be delivered in person or by registered or
certified mail, postage prepaid, and addressed to the addresses for Landlord
and Tenant set forth above. Such notice shall be deemed delivered when
personally delivered or upon deposit of the notice in the United States mail
in the manner provided above.
23.13 No Partnership. Landlord does not, as a result of entering
into this Lease, in any way or for any purpose become a partner of Tenant in
the conduct of Tenant's business, or otherwise, or joint venturer or a member
of a joint enterprise with Tenant.
23.14 Exhibits. This lease agreement has 3 exhibits attached and
made a part thereof.
Exhibit A Floor Plans
Exhibit B Base Rental Schedule
Exhibit C Landlord/Tenant Work Letter Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD: Stratford Park, L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
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Its:
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TENANT: Internet Development, Inc.
By: /s/ Xxxxx Xxxxx
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Its: CEO
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File: leid2
