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EXHIBIT 10.22
LEASE
In consideration of the rights, covenants and agreements herein contained,
Landlord does hereby lease, demise and let unto Tenant the Premises hereinafter
described for the term of this Lease upon the following terms and conditions:
1. BASIC LEASE INFORMATION.
1.1 Lease Date: September 15, 1999
1.2 Lease Term: The Lease Term for the Premises shall be seven (7) years,
commencing on January 1, 2000 (the "Commencement Date") and terminating on
December 31, 2007 (the "Termination Date").
1.3 Tenant: Ascensus Insurance Services
Tenant's Address: Attn: Xxxxxxx Xxxxxxxx or Xxxxxx Xxxxxxxxxxx, 000
Xxxxx 000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, 00000
1.4 Landlord: Pioneer Partners, L.C.
Landlord's Address: Attn: Xxxx X. Xxxxxxxx, 00 Xxxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxx Xxxx, Xxxx 00000.
1.5 Land: The real property more particularly described on Exhibit "A"
attached hereto.
1.6 Landlord's Building: The building known as the Ford Building located
at 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, XX. 00000, which is situated on the Land.
1.7 Premises: Suite No. 100, which is approximately 35,880 rentable square
feet on the first floor and mezzanine of Landlord's Building ("Premises").
1.8 Annual Basic Rent: The rent for the Premises shall be as follows:
Year 1 $17.50 per rentable square foot.
Year 2 $17.50 per rentable square foot.
Year 3 $17.50 per rentable square foot.
Year 4 $18.03 per rentable square foot.
Year 5 $18.57 per rentable square foot.
Year 6 $19.12 per rentable square foot.
Year 7 $19.70 per rentable square foot.
1.9 Security Deposit: $58,900.00 which represents the last months rent.
1.10 Rentable Square Feet in the Premises: The Premises consists of
approximately
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35,880 rentable square feet based on Building Owners and Managers Association
("BOMA") standards for measurement.
1.11 Useable Square Feet in the Premises: The Premises consists of
approximately 31,480 usable square feet based on BOMA standards for measurement.
1.12 Rentable Square Feet in Landlord's Building: Approximately 84,500
rentable square feet based on BOMA standards for measurement.
1.13 Parking Spaces: Throughout the Lease Term, Landlord shall make
available up to one hundred and sixty (160) parking spaces in the Parking Lot
(as defined in Section 36.a.) free of charge. If Tenant exercises it's Right of
First Refusal to lease additional space in the building, Landlord shall make
available three parking spaces per thousand square feet of usable space within
the additional space in a Parking Lot within 600 feet of Landlord's Building.
1.14 Exhibits:
Exhibit A: Legal Description of Land
Exhibit B: Space Plan of Premises
Exhibit C: Tenant Building Improvements
Exhibit D: Rules and Regulations
Exhibit E: Option to Renew
The above Basic Lease Information and attached Exhibits are hereby
incorporated into and made a part of this Lease. Any reference in the Lease to
the above terms shall mean and refer to the information and terms set forth in
the above Basic Lease Information, as well as all of the additional terms and
provisions of the applicable sections of the Lease where such Basic Lease
Information is more fully set forth.
2. PARTIES.
This Lease is made by and between the Landlord and Tenant identified in
Section 1.
3. PREMISES.
a. Landlord hereby rents to Tenant and Tenant hereby leases from Landlord
the Premises identified in Section 1 and as more fully described in the Space
Plan attached as Exhibit "B".
b. The respective obligations of Landlord and Tenant to perform the work
and supply the necessary materials and labor to prepare the Premises for
occupancy are described in detail on Exhibit "C", Tenant Building Improvements.
c. Unless otherwise agreed in writing by Landlord, upon occupancy of the
Premises by Tenant, all of the obligations of Landlord set forth in Exhibit "C",
except for punch list and latent defects shall be deemed to be satisfactorily
completed.
4. TERM AND POSSESSION.
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a. The term of the Lease shall be for the period which commences on the
Commencement Date and ends on the Termination Date identified in Section 1,
unless sooner terminated pursuant to any provision hereof.
b. If the Landlord, for any reason whatsoever, cannot deliver possession
of the Premises to the Tenant on or before January 1, 2000, this Lease may be
voidable by Tenant upon thirty (30) days notice unless Landlord delivers
possession of the Premises within such thirty (30) day period. This Section 4.b.
is conditioned upon Landlord and Tenant agreeing to a construction plan for the
Premises by September 15, 1999.
c. Tenant's occupancy of the Premises prior to the Commencement Date shall
be subject to all the provisions of this Lease including but not limited to the
obligation to pay all Basic Rent. Any early possession shall not advance the
Termination Date.
5. RENT.
a. Tenant agrees to pay to Landlord the Basic Rent set forth in Section 1,
payable in monthly installments, in advance, on or before the first day of each
calendar month during the term hereof. Rent for any partial month occurring
during the term hereof shall be pro-rated on a per diem based upon a thirty (30)
day month. All rent shall be paid to Landlord without deduction or offset at
Landlord's Address.
b. Simultaneously with the execution of this Lease, Tenant has paid the
Basic Rent for the first full calendar month or any initial partial month of the
term, receipt of which is hereby acknowledged by Landlord.
c. If Tenant's rent or other payments due under this Lease are received by
Landlord more than ten (10) days after their due date more than once during any
consecutive twelve (12) month period, Tenant may be charged a late fee equal to
ten percent (10%) late fee of the current late payment. Such late fee shall
compensate Landlord for costs not contemplated by this Lease, including, but not
limited to (i) the costs attributable to giving notice of delinquency, (ii) the
expense of servicing the mortgage loan on Landlord's Building from alternative
funds, and (iii) Landlord's loss of interest. Any rent or other payments which
are not paid within thirty (30) days of their due date shall also bear interest
thereafter at the rate of one and one-half percent (1 -1/2%) per month, until
paid.
6. SECURITY DEPOSIT.
Tenant shall provide the amount specified in Section 1.9 as a security
deposit. The Security Deposit shall be paid on the first business day prior to
Tenant moving into the Premises. If Tenant is in default, Landlord can use the
Security Deposit, or any portion of it, to cure the default or to compensate
Landlord for all damages sustained by Landlord resulting from Tenant's default.
Tenant shall immediately on demand pay to Landlord a sum equal to the portion of
the Security Deposit expended or applied by Landlord as provided in this
paragraph so as to maintain the Security Deposit in the sum initially deposited
with Landlord. If Tenant is not in default at the expiration or termination of
this Lease, Landlord shall return the deposit to Tenant within thirty (30) days
of the termination of this Lease. Landlord's obligations with respect to the
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Security Deposit are those of a debtor and not a trustee. Landlord can maintain
the Security Deposit separate and apart from Landlord's general funds or can
commingle the Security Deposit with Landlord's general and other funds. Landlord
shall not be required to pay Tenant interest on the Security Deposit unless
Landlord has failed to timely return the same, and in such event, interest shall
accrue on the unreturned portion at the rate of one and one-half percent
(1-1/2%) per month.
7. RESTRICTIONS ON USE.
a. Tenant shall use and occupy the Premises and all parts thereof only for
general office purposes; and no use shall be made or permitted to be made of the
Premises, nor acts done, which will cause a cancellation of any insurance policy
covering Landlord's Building or any part thereof, nor shall Tenant sell, or
permit to be kept, used, or sold, in or about the Premises, anything which may
be prohibited by standard forms of fire insurance policies. Tenant shall, at its
expense, comply with all requirements pertaining to the Premises of any
insurance organization or company covering Landlord's Building.
b. Tenant shall not permit or allow any wasteful, abusive, destructive or
nuisance use of the Premises to occur.
c. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
tenants of Landlord's Building by reason of noise, odors, or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or in
Landlord's Building. Tenant shall not use or keep in the Premises or in
Landlord's building any firearms, kerosene, gasoline or inflammable or
combustible fluid or material
d. Tenant shall not install any telephone or other special utility lines
within the Premises without first obtaining Landlord's consent, which consent
shall not be unreasonably withheld. Landlord shall designate the areas within
the Premises in which telephone and other special utility lines and related
equipment may be installed and how and where such lines are to be introduced.
e. Tenant shall not dispose of any hazardous substances in, on, or under
Landlord's Building and Tenant shall not otherwise handle, treat, deal with, or
otherwise use in, on, or under Landlord's Building any hazardous substances
except as may be directly required in connection with the use of the Premises as
authorized by Landlord and in complete conformity and compliance with all
governmental laws, ordinances, regulations, rules and other and prudent industry
practices relating to any such substances. Upon expiration or earlier
termination of this Lease, Tenant shall cause any and all hazardous substances
placed on the Premises by Tenant, its agents, employees or contractors to be
removed in accordance with applicable laws, regulations, rules, ordinances and
orders. As used in this Lease, the term "hazardous substance" shall mean any and
all hazardous or toxic substances, chemicals, materials, or waste, including,
but not limited to, those substances, chemicals, materials or wastes listed,
identified, or otherwise characterized as hazardous or toxic under now existing
or hereafter enacted local, state and federal laws, ordinances, regulations,
rules or orders.
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f. Tenant shall faithfully observe and comply with the Rules and
Regulations, attached as Exhibit "D". Landlord reserves the right from time to
time to make all reasonable non-discriminatory modifications to the Rules and
Regulations. Any reasonable additions and modifications to these Rules and
Regulations shall be binding upon delivery of a copy to Tenant. Violations by
Tenant, its employees, invitees and others acting on its behalf of the Rules and
Regulations shall constitute a default under this Lease. Landlord shall not be
responsible to Tenant for the nonperformance of any said Rules and Regulations
by any other tenant or occupants.
8. COMPLIANCE WITH LAW.
Tenant shall not use the Premises in any way which may violate any law,
statute, ordinance, or governmental rule or regulation now in force or which may
hereinafter be enacted or promulgated, including without limitation, all laws
relating to toxic or hazardous substances. Tenant shall, at its sole cost and
expense, comply with such laws, statutes, ordinances and governmental rules,
regulations or requirements relating to the conduct of Tenant's business from
and use of the Premises.
9. ALTERATIONS.
Tenant shall not make or permit to be made any alterations, additions or
improvements to the Premises or any part thereof in excess of three thousand
dollars ($3,000.00) without the written consent of Landlord. Any request for
Landlord's consent shall be accompanied by plans and specifications showing in
detail Tenant's proposed alterations, additions or improvements. Any approval by
Landlord may be conditional upon Landlord first approving the contractor which
is to perform the permitted work and upon Tenant first making certain
modifications to its proposed plans and specifications if requested by Landlord.
Any alterations, additions or improvements to the Premises made by Tenant,
except for removal of trade fixture, shall at once become a part of the realty
and belong to Landlord. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, they shall be
made by Tenant at Tenant's sole cost and expense. Tenant shall cause any
alterations, additions or improvements made by it pursuant to this Section to be
constructed by a bonded general contractor who carries comprehensive coverage
and broad form property damage endorsement in the single limit amount of
$1,000,000.00 and who carries adequate workers' compensation and other insurance
required by law.
10. MECHANIC'S LIENS.
Tenant shall keep the Premises and the property in which the Premises are
situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Tenant shall cause any permitted
alterations, additions or improvements to be constructed in a good and
workmanlike manner free of any liens for labor and materials and in strict
accordance with the plans and specifications approved by Landlord. Tenant agrees
to indemnify, hold harmless from, and defend Landlord against any loss,
liability, injury or damage resulting from such work. Landlord may require, at
Landlord's sole option, that Tenant shall provide, at Tenant's sole cost and
expense, a lien payment and completion bond in an amount equal to one and
one-quarter (1-1/4) times any and all estimated cost of any permitted
improvements, additions, or alterations to the Premises with an estimated cost
in excess of
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twenty five thousand dollars ($25,000.00) to insure Landlord against any
liability for mechanics and materialmen's liens and to insure completion of the
work.
11. SURRENDER.
Upon the Termination Date or sooner expiration of this Lease, Tenant shall
peaceably deliver up and surrender the Premises in their same condition as they
were on the Commencement Date, reasonable wear and tear and permitted
alterations, additions and improvements excepted. Before surrendering the
Premises, Tenant shall remove all personal property and trade fixtures and shall
repair any damage caused by such property or the removal thereof and shall leave
the Premises in a clean and orderly condition. Without limiting the foregoing,
and after taking into account normal wear and tear, Tenant agrees to repair any
damage on walls or to floor coverings, to repair any damage to light fixtures,
window coverings or other fixtures within the Premises, to steam clean all
carpeting within the Premises. On or prior to the Termination Date or sooner
expiration of this Lease, Tenant shall surrender all keys to the Premises.
12. ABANDONMENT.
Tenant shall not vacate or abandon the Premises at any time during the
term hereof, and if Tenant shall so abandon, vacate or surrender the Premises,
or be dispossessed by process of law, or otherwise, or default in the terms
hereof, any personal property or trade fixtures belonging to Tenant shall remain
and become the property of the Landlord in accordance with the provisions of
Landlord's Lien Rights in Section 24 hereof.
13. ASSIGNMENT OR SUBLETTING.
Tenant shall not assign, transfer, mortgage, pledge, hypothecate or
encumber this Lease, or any interest therein, and Tenant shall not sublet the
Premises or any part thereof, or any right or privilege appurtenant thereto, or
suffer any other person to occupy or use the Premises, or any portion thereof,
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld. Without in any way limiting Landlord's right to refuse
such consent, Landlord may refuse to give such consent unless Tenant remains
fully liable during the unexpired term of the Lease and Landlord further may
refuse to give such consent if in Landlord's reasonable opinion the quality of
tenancy is or may be in any way adversely affected during the term of the Lease
or the financial worth of the proposed new tenant is less than that of the
Tenant executing this Lease. Tenant agrees to reimburse Landlord up to one
thousand dollars ($1,000.00) for Landlord's reasonable attorney's fees and other
costs incurred in conjunction with the processing and documentation of any such
requested assignment, transfer, subletting, change of ownership or hypothecation
of this Lease or Tenant's interest in and to the Premises. Any assignment
consented to by Landlord shall in no way relieve or release Tenant from
liability hereunder of from any of the terms, covenants and obligations required
to be performed by Tenant under this Lease. This Lease shall not, nor shall any
interest herein, be assignable as an interest of Tenant by operation of law,
without the prior written consent of Landlord. Any profit recognized from an
assignment or subletting shall be divided evenly between Tenant and Landlord.
Commensurate with the signing of this Lease, Landlord consents to Tenant
entering into a sublease with AgencyWorks for a portion of the Premises.
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14. CONDITION AND REPAIR OF PREMISES.
Subject to Landlord's obligation set forth on Exhibit "C" attached hereto,
Tenant has accepted the Premises "as is" and acknowledges that the Premises are
in good, sanitary condition and repair and are satisfactory for Tenant's
occupancy and use. Except as specifically provided in Exhibit "C" to this Lease,
Landlord shall have no obligation whatsoever to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the parties hereto affirm
that Landlord has made no representations to Tenant respecting the condition of
the Premises or Landlord's Building except as specifically herein set forth.
15. REPAIRS.
a. Landlord shall, at all times during the term of this Lease, keep in
good order, condition and repair those portions of the roof, foundations and
structural walls of Landlord's Building which affect the use and occupancy of
the Premises. Landlord shall also, at its cost and expense, keep and maintain
the heating and air conditioning systems, plumbing, lighting fixtures within or
serving the Premises and the other utility lines to the Premises in good order
condition and repair. Notwithstanding the foregoing, however, Landlord shall not
be responsible to repair any damage to the Premises or to Landlord's Building
resulting from the negligent acts or omissions of Tenant, Tenant's employees or
invitees, or resulting from fire, acts of God, or other casualties or resulting
from condemnation, except to the extent described in Sections 26 and 27 below.
b. Notwithstanding subparagraph (a) above, Tenant shall repair, at its
expense, any damage to Landlord's Building or the Premises caused by, or
resulting from, any negligent act of Tenant, its employees, invitees or others
acting on its behalf. Tenant shall also, at its cost and expense, maintain in
good order, condition and repair all wall, window and floor coverings, all trade
fixtures and all personal property of Tenant within the Premises.
c. Landlord shall not be required to make any repairs hereunder until
Tenant has notified Landlord of the need for such repairs. Following receipt of
such notice, Landlord shall promptly pursue the completion of any such repairs
with due diligence. Except as provided herein, there shall be no abatement of
rent and no liability of Landlord by reason of any damages to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of Landlord's Building or the Premises or in
or to fixtures, appurtenances and personal property therein. Tenant waives the
right to terminate this Lease in the event of any failure to make repairs or
maintenance and the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect. Nothing in the Section 15.c.
will impair Tenant's right to recover damages from Landlord.
16. INDEMNIFICATION AND RELEASE.
a. Tenant and all those claiming through or under Tenant shall store their
property in and shall occupy and use the Premises solely at their own risk.
Tenant and all those claiming through or under Tenant hereby release Landlord
from all claims of every kind, including loss of life, personal or bodily
injury, damage to equipment, fixtures or other property, or damage to business
(including business interruption) arising, directly or indirectly, out of or
from or on account of such occupancy and use or resulting from any present or
future condition or state of repair thereof, except to the extent caused by the
willful misconduct or active negligence of Landlord,
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its agents, employees or contractors, including without limitation any damage or
injury caused by or resulting from (i) the bursting, breaking, leaking,
overflowing or backing up of utility lines, (ii) water, steam, gas, sewage, snow
or ice in any part of Landlord's Building, (iii) acts of God or the elements, or
(iv) any defect in the construction, operation or use of Landlord's Building or
any of the equipment, fixtures, machines, appliances or apparatus therein, or
adjacent thereto.
b. Tenant shall indemnify and hold harmless Landlord against and from any
and all claims arising from Tenant's use of the Premises or the conduct of its
business or from any activity, work, or other thing done, permitted or suffered
by the Tenant in or about Landlord's Building or the Premises, and shall further
indemnify and hold harmless Landlord against and from 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 the Tenant, or of any employee, invitee or other person acting on
Tenant's behalf, and from and against all costs, reasonable attorney's fees,
expenses and liabilities incurred because of any such claim or any action or
proceeding brought thereon, and in the event any action or proceeding is brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord or Landlord shall have the right to retain its own counsel to defend
any action with all costs to be paid by Tenant. Notwithstanding any provision
contained herein, Tenant shall have no liability to Landlord for any injury or
damage to the extent caused by the acts or omissions of Landlord or its agents,
employees or contractors.
17. INSURANCE.
a. Landlord shall maintain fire and extended coverage insurance on the
Landlord's Building, including any additions and improvements by Tenant which
Tenant does not have the right to remove upon termination of this Lease. Such
insurance shall be in amounts and with deductibles desired by Landlord at the
expense of Landlord (as a part of the Operating Costs), and payments for losses
thereunder shall be made solely to Landlord and/or Landlord's lender(s), as
their interests may appear. Tenant shall maintain at its expense fire and
extended coverage insurance on all of its personal property, including removable
trade fixtures, located in the Premises and on all additions and improvements
made by Tenant and not required to be insured by Landlord above. If the annual
premiums to be paid by Landlord shall exceed the standard rates because Tenant's
operations, contents of the Premises, or improvements with respect to the
Premises beyond Building standard result in extra-hazardous exposure, Tenant
shall pay the excess amount of the premium upon request therefor by Landlord.
b. Tenant shall, at its expense, procure and at all times maintain
comprehensive general liability insurance covering Landlord and Tenant, as
coinsureds, against death, bodily or personal injury or property damage
occurring within the Premises or Landlord's Building. Such insurance as obtained
by Tenant shall be in a combined single limit not less than $2,000,000.00 for
injury or death, and shall contain cross-liability endorsements.
c. All insurance shall be underwritten by insurance companies with a
rating of A or better according to AM Best and authorized to do business in the
State of Utah. Tenant shall furnish Landlord with certificates issued by
approved insurance companies certifying that such insurance is in effect. Such
certificates shall provide the insurance may not be canceled without at least 10
days advance notice to Landlord.
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d. To the extent permitted by applicable law in the State of Utah and
under the insurance policies, and to the extent any loss is actually covered by
insurance proceeds, each of the parties hereby waives any rights it may have
against the other party on account of any loss or damage to its property
(including the Premises and the contents thereof) or injury which arises from
any risk covered by insurance obtained hereunder, whether or not such party may
have been negligent or at fault in causing such loss or damage.
18. SERVICES AND UTILITIES.
a. During the term of this Lease and so long as Tenant is not in default,
Landlord agrees to cause to be furnished to the Premises in such manner as is
customary in similar buildings in the same geographical area, the following
utilities and services (the cost of which shall be included within Operating
Costs):
(1) Electricity, water, gas and sewer service. The interruption or
curtailment of any service caused by any event beyond Landlord's reasonable
control shall not constitute constructive eviction and shall not entitle Tenant
to any abatement of rent or any other claim against Landlord, nor shall any
interruption be grounds for constructive eviction, rent abatement or termination
of this Lease or any other claim provided Landlord exercises reasonable
diligence to remedy such interruption. Tenant will not, without the written
consent of Landlord, use any apparatus or device in the Premises which will
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space. If such extra service is permitted
by Landlord, Landlord may cause a water meter or electric meter to be installed
in the Premises. The cost of such meters, and any increase in utility charges
shall be promptly paid by Tenant.
(2) Telephone connection to the core space on the floor on which the
Premises are located, but not including wiring from the core, telephone stations
and equipment (it being expressly understood and agreed that Tenant shall be
responsible for the ordering and installation of telephone lines and equipment
to and within the Premises).
(3) Heat and air conditioning to such extent and to such levels as
are reasonably required for the comfortable use and occupancy of the Premises.
If the Premises are rendered untenantable by reason of Landlord's failure to
maintain such levels then Tenant shall be entitled to a full abatement of Basic
Rent for each day the Premises are untenantable, after two working days. Tenant
shall not use any method of heating, ventilating or air conditioning other than
that supplied by Landlord.
(4) Snow and trash removal service.
(5) Landscaping and groundskeeping service.
(6) Elevator service.
(7) Janitorial service five (5) days per week, holidays excluded;
provided if the cost to Landlord for cleaning the Premises is increased due to
the installation in the Premises, at Tenant's request, of any materials or
finish other than those which are Building standards, Tenant
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shall pay to Landlord an amount equal to such increase in cost. Except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be permitted to enter Landlord's Building for the purpose of
cleaning the same; provided, Tenant shall be entitled to have separate
contractors clean and vacuum the Premises if desired by Tenant, at Tenant's sole
cost and expense. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Janitor service shall include ordinary dusting, normal vacuuming
and trash removal, and annual cleaning of carpets, but excludes cleaning of
rugs, moving of furniture or other special services. Janitor service will not be
furnished on nights when rooms are occupied after 9:30 p.m. or when janitor
service is refused.
b. Tenant may activate the HVAC system after hours. The cost for such
after hour's HVAC use is $25.00 per hour.
19. TAXES.
Tenant shall pay all taxes and assessments levied against the fixtures,
furnishings, equipment and other personal property of Tenant contained within
the Premises and, if possible, shall cause such personal property taxes to be
assessed and billed separately from the taxes on real property owned by
Landlord.
20. HOLDING OVER.
If, with Landlord's consent, Tenant holds possession of the Premises after
the Termination Date or sooner expiration of this Lease, Tenant shall become a
tenant from month-to-month upon the terms herein specified and at a monthly rent
of one hundred twenty five percent (125%) of the last monthly rent paid by
Tenant under this Lease. Tenant shall continue in possession until such tenancy
shall be terminated by either party giving the other party fifteen (15) day's
prior written notice of its election to terminate.
21. ENTRY BY LANDLORD.
Landlord and Landlord's representatives shall have the right to enter upon
the Premises at all reasonable times to inspect or exhibit the same to
prospective purchasers, mortgagees and tenants, to place, maintain and repair
all utility lines and equipment in or adjacent to the Premises and Landlord's
Building, and to make such repairs, additions, alterations or improvements as
Landlord may deem necessary or appropriate. Landlord shall be allowed to take
all material upon the Premises that may be reasonably required to accomplish the
foregoing without the same constituting a forcible entry into or an unlawful
detainer of the Premises or an actual or constructive eviction of Tenant, and
the rents reserved herein shall not xxxxx while any such work described herein
is in progress.
22. DEFAULT.
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The occurrence of any of the following shall constitute a material default
and breach of this Lease by Tenant:
a. The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder within a period of five (5) days after
notice of nonpayment provided after the date the same is due and payable;
b. Failure by Tenant to observe or perform any provision of this Lease
concerning abandonment or vacating the Premises, restrictions on use or
compliance with law, assignment or subletting of the Premises without Landlord's
prior written consent, or the failure to procure and maintain insurance;
c. Tenant makes any general assignment for the benefit of creditors; a
petition is filed by or against Tenant to have Tenant adjudged bankrupt or for
reorganization or arrangement under any law relating to bankruptcy or insolvency
(unless, in the case of a petition filed against Tenant, the same is dismissed
within sixty (60) days); a trustee or receiver is appointed to take possession
of substantially all of Tenant's Lease, or any trustee under the Federal
Bankruptcy Code or other similar statute attempts to assume this Lease or take
possession of the Premises; or there occurs any 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 and such seizure is not discharged within
thirty (30) days; or
d. Failure to observe and perform any other provision of this Lease to be
observed or performed by Tenant, where such failure continues for ten (10) days
after written notice is given to Tenant; provided, however, that if the nature
of such default is such that the same cannot reasonably be cured within such ten
(10) day period, Tenant shall not be deemed to be in default if Tenant within
such period commences such cure and thereafter diligently prosecutes the same to
completion.
23. REMEDIES.
Upon the occurrence of any default described above, Landlord shall have
the option to take any or all of the following actions, without further notice
or demand of any kind to Tenant, or to any other person.
a. Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right of possession and forthwith repossess the Premises by
forcible entry and detainer suit or otherwise without liability for trespass or
conversion and be entitled to recover as damages a sum of money equal to the
total of (i) the cost of recovering the Premises, (ii) the unpaid rent due and
payable at the time of termination, plus interest thereon at the rate
hereinafter specified from the due date, (iii) the balance of the rent for the
remainder of the term less the fair market rental value of the Premises for such
period, and (iv) any other sum of money and damages owed by Tenant to Landlord.
b. Landlord may terminate Tenant's right of possession and may repossess
the Premises by forcible entry or detainer suit or otherwise without liability
for trespass or conversion, without demand or notice of any kind to Tenant and
without terminating this Lease, in which event Landlord may, but shall be under
no obligation to, relet the same for the account of Tenant for
12
such rent and upon such terms as shall be satisfactory to Landlord. For the
purpose of such reletting, Landlord is authorized to decorate or to make any
repairs, changes, alterations, or additions in or to the Premises that may be
necessary or convenient to restore Premises to the same condition as of the date
of occupancy. If Landlord exercised the remedies provided in this paragraph,
Tenant shall pay to Landlord, and Landlord shall be entitled to recover from
Tenant, an amount equal to the total of the following: (i) unpaid rent, plus
interest at the rate hereinafter provided, owing under this Lease for all
periods of time that the Premises are not relet; plus (ii) the cost of
recovering possession, and all of the costs and expenses of such decorations,
repairs, changes, alterations, and additions, and the expense of such reletting
and of the collection of the rent accruing therefrom to satisfy the rent
provided for in this Lease to be paid; plus (iii) any deficiency in the rentals
and other sums actually received by Landlord from any such reletting from the
rent and additional rent required to be paid under this Lease with respect to
the periods the Premises are so relet, and Tenant shall satisfy and pay any such
deficiency upon demand therefor from time to time. Tenant agrees that Landlord
may file suit to recover any sums falling due under the terms of this paragraph
from time to time; and that no delivery or recovery of any portion due Landlord
hereunder shall be a defense in any action to recover any amount not theretofore
reduced to judgment in favor of Landlord, nor shall such reletting be construed
as an election on the part of Landlord to terminate this Lease unless a written
notice of such intention be given to Tenant by Landlord. Notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous default.
c. Landlord may offset against any rents, damages or other sums of money
owed by Tenant any security deposit and/or any advance rent applicable to any
time period after the occurrence of the default and any sums which would then or
thereafter otherwise be due from Landlord to Tenant.
d. Should Tenant fail to make any payment or to do any act as herein
provided, then Landlord, but without obligation so to do and without demand upon
Tenant and without releasing Tenant from any obligation hereof, may (i) make or
do the same in such manner and to such extent as Landlord may deem necessary to
protect Landlord's interest in the Premises, (ii) commence, appear in and defend
any action or proceeding purporting to affect Landlord's interest in the
Premises or its rights hereunder, including without limitation, any suit brought
by a third party for recovery of possession of the Premises, for the attachment
of rent or any other amount due under the provisions of this Lease, or because
of the breach of any other covenant herein contained on the part of Tenant to be
kept or performed, (iii) pay, purchase, contest, or compromise any encumbrance,
charge or lien which in the judgment of Landlord appears to affect Landlord's
interest in the Premises, and (iv) in exercising any such powers, incur any
liability, expend whatever amounts in its absolute discretion it may deem
necessary therefor, employ counsel, and pay reasonable attorney's fees. In the
event Landlord expends such sums are set forth above, Tenant shall immediately
reimburse Landlord for such sums expended, and any sums not immediately
reimbursed shall carry interest at the rate of twelve percent (12%) per annum
from the date they were incurred.
e. The exercise of any remedies hereunder by Landlord shall not be
construed as an election by Landlord to terminate this Lease unless a written
notice of such intention is given by Landlord to Tenant. In the event of
termination of this Lease by written notice to Tenant, Tenant agrees to
immediately surrender possession of the Premises and Tenant understands that
such
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termination shall not relieve Tenant of any obligation hereunder, including
without limitation the obligation to pay rent for the full term hereof.
f. The remedies given to Landlord in this paragraph may be exercised
jointly or severally, shall be cumulative and shall be in addition and
supplemental to all the rights and remedies which Landlord may have at equity or
under the laws then in force.
24. LANDLORD'S LIEN.
As security for payment of rent, damages and all other payments required
to be made by this Lease, Tenant hereby grants to Landlord a lien upon all
property of Tenant now or subsequently located upon the Premises. If Tenant
abandons or vacates any substantial portion of the Premises or is in default of
any provisions of this Lease, Landlord may enter upon the Premises, and take
possession of all or any part of Tenant's trade fixtures or personal property,
store such property in a private or public place, and may sell all or any part
of the fixtures or personal property at a public or private sale, in one or
successive sales, with or without notice, to the highest bidder for cash. The
proceeds of the sale shall be applied by Landlord towards the costs of removal
and storage, next towards reasonable costs and expenses of the sale, including
attorney's fees, and then toward the payment of all sums due by Tenant to
Landlord under the terms of this Lease.
25. ATTORNEY'S FEES.
If any action or proceeding is taken or brought for the enforcement of
this Lease, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Lease, the
successful or prevailing party shall be entitled to recover reasonable
attorney's fees, expert witness fees and all other costs and expenses incurred
whether by filing suit, commencing an arbitration proceeding, or otherwise, in
addition to any other relief to which it may be entitled.
26. RECONSTRUCTION.
a. If Landlord's Building shall be partially damaged by fire or other
casualty insured against under property damage insurance and if Landlord is not
required to apply the proceeds of such insurance toward repayment of the debt
secured by any mortgage or deed of trust covering the Landlord's Building,
Landlord shall, within a reasonable period of time, but in no event later than
sixty (60) days following the casualty, commence repair to Landlord's Building
to a condition which is substantially similar to the condition in existence
prior to such casualty. If either (i) Landlord's Building is damaged as a result
of flood, earthquake, nuclear radiation or contamination, act of war or other
risk which is not covered by insurance, or (ii) Landlord is required to apply
the available insurance proceeds toward repayment of debt secured by a deed of
trust or mortgage covering the Landlord's Building, and if in either of these
events the Landlord reasonably estimates the cost of repair or reconstruction to
exceed one million dollars, Landlord may terminate this lease upon written
notice given to Tenant at any time within thirty (30) days after the occurrence
of such damage.
b. Notwithstanding the foregoing, if the Premises or Landlord's Building
would require more than one hundred eighty (180) days to repair and restore to
the condition in existence prior
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to such casualty, Landlord or Tenant may terminate this Lease upon written
notice given by Tenant or Landlord to the other party hereto at any time within
thirty (30) days after the occurrence of such damage. If neither party exercises
its right to terminate, or if both parties waive their right to terminate, then
Landlord shall commence as soon as is reasonably possible restoration of
Landlord's Building.
c. In the event this Lease is not terminated and Landlord undertakes to
repair any portion of the Premises, until such repair is complete, rent shall
xxxxx proportionately by the portion of the Premises rendered untenable.
d. Landlord shall have no responsibility to repair the trade fixtures and
improvements installed by Tenant within the Premises or to repair and replace
any of Tenant's furniture or other property damaged by such casualty.
27. EMINENT DOMAIN.
If all or more than twenty percent (20%) of the Premises shall be taken or
appropriated by any public or other authority under the power of eminent domain,
or transferred in lieu thereof, either party hereto shall have the right, at its
option, to terminate this Lease. If all or such part of the Premises (more than
20%) shall be so taken or appropriated and neither party hereto elects to
terminate this Lease or if twenty percent (20%) or less of the Premises shall be
taken or appropriated, the rental thereafter to be paid shall be proportionately
reduced by the portion of the Premises so taken. Landlord shall be entitled to
any award or other payment made by any public or other authority in connection
therewith.
28. SALE BY LANDLORD OR CHANGE OF LOCATION.
a. In the event of a sale or conveyance by Landlord of the Premises or
Landlord's Building, the same shall operate to release Landlord from any
liability arising upon any of the covenants or conditions, express or implied,
herein contained in favor of Tenant following the sale or conveyance, and in
such event Tenant agrees to look solely to the successor-in-interest of Landlord
for performance of such covenants and conditions. This Lease shall not be
affected by any such sale, and Tenant agrees to recognize and attorn to
Landlords successor-in-interest as the Landlord hereunder.
b. Landlord, subject to the approval of Tenant, said approval not to be
unreasonably withheld, may relocate the Premises and substitute as the Premises
other space within Landlord's Building, for all purposes hereunder as though
originally leased to Tenant; provided, however (i) that the substituted Premises
shall contain an area not less than the square footage contained in the original
Premises without any increase in the rent hereunder, (ii) that the power under
this subparagraph may be exercisable by Landlord only once during the Term, and
(iii) that Landlord shall pay the expenses reasonably incurred by Tenant as a
result of such substitution of Premises, excluding consequential damages, but
including moving expenses, door lettering and expenses in connection with change
of telephone. In the event of such relocation, Landlord agrees to provide in the
substitute Premises decorations and improvements reasonably equivalent to those
which were in the original Premises. If Landlord gives notice to Tenant to
relocate, then Tenant shall have the right to terminate this Lease, without
receiving compensation therefore, by written notice to Landlord given not more
than sixty (60) days after receipt of Landlord's notice to
15
relocate, effective at the end of the calendar month next following the month in
which Tenant gives notice of such termination or forty five days following the
date Tenant gives notice of such termination, whichever shall last occur.
29. TENANT'S CERTIFICATE.
From time to time after the Commencement Date and when requested by
Landlord, Tenant shall execute and deliver to Landlord within fifteen (15) days
following such request a written certificate:
a. Ratifying this Lease;
b. Affirming the Commencement Date and Termination Date hereof;
c. Certifying this Lease is in full force and effect and had not been
assigned, modified or amended (except by such writings as shall be described);
d. Stating all conditions under this Lease to be performed by Landlord
have been so performed or have been waived by Tenant (or stating which
conditions remain unsatisfied);
e. Declaring there are no uncured defaults or defenses or offsets against
the enforcement of this Lease (or describing such defaults, defenses and offsets
as are then known by Tenant);
f. Stating the date to which rentals have been paid and whether there have
been any advanced rentals then paid by Tenant;
g. Agreeing that no amendment, modification or cancellation of this Lease
shall be effective without the prior written consent of any mortgagee of
Landlord; and
h. Setting forth such other information as Landlord may reasonably
request.
Landlord, Landlord's mortgage lenders and any purchasers of Landlord's
Building shall be entitled to rely upon such certificate.
30. FINANCING AND SUBORDINATION.
a. Tenant agrees that from time to time it shall, if so requested by
Landlord and if doing so will not materially and adversely affect Tenant's
economic interests under this Lease or its use of the Premises, join with the
Landlord in amending the terms of this Lease so as to meet the reasonable needs
or requirements of any lender who is considering furnishing, or who has
furnished, any financing which is, or will be, secured by Landlord's Building or
the Premises.
b. Upon request by Landlord, Tenant will subordinate its rights in this
Lease to the lien of any mortgage or deed of trust or other security interest
resulting from any method of financing or refinancing which encumbers or is
intended to encumber Landlord's Building or the Premises, and to all advances
subsequently made upon the strength of such security. Tenant may require, as a
condition of such subordination, that the lender agree that Tenant's rights
under this Lease shall not be terminated as a result of any foreclosure (or
transfer in lieu thereof) of such mortgage
16
or other security instrument to which Tenant's rights are subordinated pursuant
to this subparagraph, if Tenant agrees to attorn to the purchaser at such
foreclosure (or transferee in lieu thereof).
31. WAIVER.
a. The waiver by Landlord of any term, covenant or condition herein
contained shall not be deemed to be a continuing waiver of such term, covenant
or condition or a waiver of such term, covenant or condition in the event of any
subsequent breach of the same or any other term, covenant or condition herein
contained. The subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
rental so accepted, regardless of Landlord's knowledge of such preceding breach
at the time of acceptance of such rent. No waiver shall be binding unless
executed in writing by the party granting the waiver.
b. No payment by Tenant or receipt by Landlord of an amount less than is
due hereunder shall be deemed to be other than payment towards or on account of
the earliest portion of the amount then due (being first applied to late
charges, interest and attorney's fees, if any); nor shall any endorsement or
statement on any check or payment (or any letter accompanying any check or
payment) be deemed an "accord and satisfaction" (or payment in full) and
Landlord may accept such check or payment without prejudice to Landlord's rights
to recover the balance of such amount or pursue any other remedy provided
herein.
32. NOTICES.
All notices and demands which may or are required to be given by either
party to the other under this Lease shall be delivered in person or sent by
United States mail, postage prepaid, and shall be addressed as set forth in
paragraph 1 or to such other person or place as the parties may from time to
time designate in a notice. Any such notice or demand shall be deemed given on
the date personally delivered, or on the date deposited in the United States
mail, properly addressed and stamped. If the notice is to Landlord, a copy shall
be personally delivered or mailed to Xxxx Xxxx, Van Cott, Xxxxxx, Cornwall and
XxXxxxxx, 00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxx, XX 00000.
33. INTERPRETATION AND JOINT OBLIGATION.
The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular where appropriate. Words used in one gender shall be
deemed to include the other genders. If there is more than one Tenant, such
Tenants shall be jointly and severally obligated for performance of all terms,
covenants and conditions hereunder. The laws of the State of Utah shall govern
the performance, enforcement and interpretation of this Lease. The invalidity or
unenforceability of any provision hereof shall not affect or impair any other
provision of this Lease.
34. SUCCESSORS AND ASSIGNS.
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The covenants and conditions herein contained shall, subject to the
provisions of this Lease relating to Assignment or Subletting, apply to and bind
the heirs, successors, executors, administrators and assigns of the parties
hereto.
35. FORCE MAJEURE.
Landlord shall be excused for the period of any delay in the performance
of any of its obligations hereunder when prevented from doing so by a cause
beyond its control, including without limitation, strikes and labor disputes;
civil commotion; war; governmental regulations or controls; fire or other
casualty; inability to obtain any material (or a reasonable substitute
therefor), labor or service; acts of God; or failure or slowness of governmental
entities to take action.
36. PARKING.
a. The parking lot adjacent to Landlord's Building (the "Parking Lot"), or
designated portions thereof, shall be available for the use of Tenant, but
subject to the Rules and Regulations (Exhibit "D"), posted non-discriminatory
parking regulations and signs, and monthly passes as established by the Landlord
from time to time. The driveways and loading zones next to Landlord's Building
shall be kept free by Tenant of parked automobiles.
b. During the term of this Lease and provided Tenant is not in breach
hereof, Landlord shall provide Tenant the number of unreserved parking stalls in
the Parking Lot set forth in Section 1. The Parking Lot will be available to
Landlord after Normal Business Hours as defined in Exhibit "D", Rules and
Regulations, for use by the public at large.
c. Landlord shall have the right to cause to be removed any cars parked in
violation of the terms, including the posted parking regulations and signs,
without liability. Tenant agrees to hold Landlord harmless from and defend it
against any and all claims, losses, or damage and demands asserted or arising in
automobiles of Tenant or Tenant's employees and invitees parked in violation
hereof. Tenant shall from time to time upon request of Landlord, supply Landlord
with a list of license plate numbers of all automobiles owned by Tenant and
Tenant's employees who are to have parking privileges hereunder. Landlord may
require that Tenant cause an identification sticker to be hung from the rear
view mirror of all automobiles authorized to park in the Parking Lot.
37. QUIET POSSESSION.
Tenant, upon paying the rent and observing and performing all of the
terms, covenants and conditions on its part to be performed hereunder, shall
peaceably and quietly enjoy the Premises for the term hereof.
38. ENTIRE AGREEMENT AND RECORDATION.
a. This Lease and any exhibits attached hereto constitute the entire
agreement between the parties. Any prior conversations or writings are merged
herein and are extinguished. No subsequent amendments to this Lease shall be
binding upon Landlord unless reduced to writing and signed.
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b. Tenant shall not record this Lease or a memorandum hereof without
Landlord's written consent which shall not be unreasonably withheld.
39. NO PARTNERSHIP INTENDED.
Landlord shall not be construed or held to be a partner or associate of
Tenant in the conduct of the business of Tenant upon the Premises or elsewhere.
It is expressly understood and agreed that the relationship between the parties
hereto is and shall at all times remain and be that of Landlord and Tenant.
40. TIME.
Time is of the essence of this Lease and every provision hereof to be
performed by Tenant.
41. BROKERS.
Tenant and Landlord agree that no commission is due or payable to any
broker, agent or brokerage firm, and Tenant or Landlord have not retained a
broker, agent or brokerage firm to represent them in this transaction.
42. AUTHORITY OF SIGNATORIES.
Each person executing this Lease on behalf of an entity, individually and
personally represents and warrants that he or she is duly authorized to execute
and deliver the same on behalf of the entity for which he or she is signing
(whether it be a corporation, general or limited partnership, or otherwise) and
that this Lease is binding upon such entity in accordance with its terms.
43. RIGHT OF FIRST REFUSAL.
Landlord grants Tenant a right of first refusal at market rates on any
contiguous space that becomes available in the building during the Lease Term,
to lease the contiguous space. Contiguous space is defined as any space on
Tenant's initial floor(s), and the floor above and below such floor(s), as
applicable. This Right of First Refusal shall be subordinate to rights already
granted KISN Broadcast, LP. In the event Landlord receives an offer to lease the
contiguous space, Landlord shall promptly notify Tenant of the identity of the
proposed new tenant. Tenant shall have ten calendar (10) days following
Landlord's notice during which to notify Landlord that Tenant shall exercise its
right to lease the contiguous space, following which the parties shall amend
this Lease to include the contiguous space and adjust the rental obligations
proportionately.
44. SECURITY.
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Landlord agrees to provide a security guard at Landlord's building
twenty-four hours a day, seven days a week, until such time that Tenant and
Landlord mutually agree that 24 hour security services are not necessary.
IN WITNESS WHEREOF, the parties have duly executed this Lease as of
the day and year written above in Section 1.
LANDLORD: Pioneer Partners, L.C.
By: ________________________________
Its: ________________________________
TENANT: Ascensus Insurance Services
By: __________________________________
Its: ________________________________
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is entered into this
___ day of March, 2000 by and between PIONEER PARTNERS, L.C., a Utah limited
liability company, ("Landlord") and ASCENSUS INSURANCE SERVICES, a Utah
corporation ("Tenant").
WITNESSETH:
WHEREAS, the parties have entered into that certain Lease dated September
15, 1999 (the "Lease") for Suite 100 on the first (1st) floor and west mezzanine
of Landlord's building commonly known as the Ford Building located at 000 Xxxxx,
000 Xxxx, Xxxx Xxxx Xxxx, Xxxx (the "Premises");
WHEREAS, the parties wish to amend the Lease as provided herein.
NOW, THEREFORE, for mutual and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree with each other as
follows:
1. TERMS. All terms used in this First Amendment shall have the same
meaning as in the Lease except when the context of this First Amendment requires
otherwise. Except as specifically modified or amended by this First Amendment,
the Lease shall continue in full force and effect unchanged.
2. NO DEFAULT. The parties acknowledge and agree that as of the date of
this First Amendment, to the best of their knowledge and belief, each of the
parties are in full and complete compliance with all of the terms and conditions
of the Lease.
3. PREMISES. Suite #100, which is approximately 43,626 rentable square
feet on the first floor and mezzanine of Landlord's building (the "Premises").
4. LEASE TERM. The Lease Term for the Premises shall be seven (7) years
Commencing on March 1, 2000 (the "Commencement Date") and terminating on
February 28, 2007 (the "Termination Date").
5. SECURITY DEPOSIT. $71,619.35, which represents the last months rent.
6. RENTABLE SQUARE FEET IN THE PREMISES. The Premises consists of
approximately 43,626 rentable square feet based on modified Building Owners and
Managers Association ("BOMA") standards for measurement agreed to by Tenant and
Landlord at the time of this Amendment.
7. USABLE SQUARE FEET IN THE PREMISES. The Premises consists of
approximately 38,268 usable square feet based on modified BOMA standards for
measurement.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
on the date first written above.
PIONEER PARTNERS, L.C., ASCENSUS INSURANCE SERVICES,
A UTAH LIMITED LIABILITY A UTAH CORPORATION
CORPORATION
By: _________________________ By: ________________________________
Name: Xxxx X. Xxxxxxxx Name:
Title: Managing Member Title:
