Exhibit 10(gg)
LEASE AGREEMENT
July 1, 1996
LANDLORD:
BROADWAY ASSOCIATES
TENANT:
FTI COMMUNICATIONS
7.2 Loss or Damage................................... 8
7.3 Abatement or Reduction or Rent................... 8
7.4 Loss During Last Part of Term.................... 8
SECTION 8 - CONDEMNATION..................................... 8
8.1 Condemnation..................................... 8
8.2 Partial Condemnation............................. 8
SECTION 9 - ASSIGNMENT...................................... 9
9.1 Prohibition Against Voluntary Assignment,
Subletting and Encumbering...................... 9
9.2 Involuntary Assignment.......................... 10
SECTION 10 - DEFAULT......................................... 10
10.1 Tenant's Default................................. 10
10.2 Landlord's Remedies.............................. 11
10.3 Interest......................................... 13
10.4 Late Charge...................................... 13
10.5 Tenant's Right To Cure Landlord's Default........ 13
SECTION 11 - SIGNS; ADVERTISING.............................. 13
11.1 Tenant's Default................................. 13
11.2 Compliance With Laws............................. 14
11.3 Removal of Signs................................. 14
SECTION 12 - LANDLORD'S ENTRY ON PREMISES.................... 14
12.1 ................................................. 14
SECTION 13 - PRIOR TENANT EQUIPMENT.......................... 15
13.1 Prior Tenant Equipment........................... 15
SECTION 14 - SECURITY DEPOSIT................................ 15
14.1 Amount of Deposit................................ 15
SECTION 15 - PARKING......................................... 16
15.1 Parking.......................................... 16
SECTION 16 - GRANT OF SECURITY INTEREST...................... 16
16.1 Grant of Security Interest....................... 16
SECTION 17 - REPRESENTATIONS AND WARRANTIES.................. 16
17.1 Tenant's Representations and Warranties.......... 16
SECTION 18 - ESTOPPEL........................................ 17
18.1 Estoppel Certificate............................. 17
SECTION 19 - MISCELLANEOUS................................... 17
19.1 Notice........................................... 17
19.2 Waiver........................................... 18
19.3 Sale or Transfer or Premises..................... 18
19.4 Enforcement...................................... 18
19.5 Surrender of premises............................ 19
19.6 Holding Over..................................... 19
19.7 Time of Essence.................................. 19
19.8 Consent of Parties............................... 19
19.9 Corporate Authority.............................. 19
19.10 Entire Agreement................................. 20
19.11 Successors....................................... 20
19.12 Rent Payable in U.S. Money....................... 20
19.13 Exhibits - Incorporation in Lease............... 20
19.14 Controlling Law.................................. 20
19.15 Use of Definitions............................... 20
19.16 Definitions...................................... 20
19.17 Captions: Table of Contents...................... 22
19.18 Singular and Plural.............................. 23
19.19 Severability..................................... 23
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into as of the 1/st/ day
of July, 1996, by and between BROADWAY ASSOCIATES, a Utah general partnership
(hereinafter referred to as "Landlord"), as landlord, and FTI COMMUNICATIONS, a
________ corporation (hereinafter referred to as "Tenant"), as tenant.
WITNESSETH:
Tenant desires to lease from Landlord the Premises hereinafter described,
and Landlord is willing to lease such Premises to Tenant, all on the terms,
provisions, and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, covenants, and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Landlord and Tenant hereby enter into
this Lease and as follows:
SECTION 1 - PREMISES
1.1 Existing Building. Landlord leases to Tenant and Tenant leases from
Landlord the real property known as Suite 100, 345 East Broadway, Salt Lake
City, Salt Lake County, Utah, such real property being the first floor of the
building at 000 Xxxx Xxxxxxxx, Xxxx Xxxx
Xxxx, Xxxx, consisting of approximately 5,100 square feet of gross leasable area
(herein referred to as the "Premises"). The real property (herein referred to
as the "Property") of which the Premises is part is more particularly described
in Exhibit A attached hereto.
2.1 Fixed Term. The initial term of this Lease shall be for a period of
five (50) years commencing on the 1/st/ day of July, 1996, and expiring on the
30/th/ day of June, 2001.
2.2 Option to Extend Term. Tenant shall have the right, at Tenant's
option, to extend the term of this Lease for one (1) additional consecutive
period of five (5) years commencing on expiration of the initial term of this
Lease and expiring on the 30th day of minimum monthly rent under Section 3
hereof for said extended term shall be increased in accordance with the
provisions of Section 3.3 hereof. This option shall be exercised, if at all, by
Tenant giving irrevocable written notice of such exercise to Landlord on or
before December 31, 2000. Any attempted exercise of this option at a time when
Tenant is in default or breach of the terms of this Lease shall be null and
void.
3.1 Minimum Monthly Rent. Tenant shall pay to Landlord as a minimum
monthly rent, without deduction, setoff, prior notice, or demand, the sum of
Five Thousand Three Hundred Twelve and 50/100 Dollars ($5,312.50) per month in
advance on the first day of each month, commencing on the date the term
commences, and continuing during the term. Minimum monthly rent shall be
increased during the option period in accordance with the provisions of Section
3.3 hereof. Minimum monthly rent for the first shall be paid commencing with
the execution of this Lease. Minimum monthly rent per day. All rent shall be
paid to Landlord at the address to which notices to Landlord are given.
3.2 First Ten Days Rent Free. Subject to timely payment of the prorated
July 1996 rent, The First ten days of the term of this Lease (from July 1, 1996,
to and including July 10,1996), shall be rent free to Tenant. This will result
in a July 1996, rent payment of Three Thousand Five Hundred Forty- One and
67/100 Dollars ($3,541.67).
3.3 Increase of Minimum Monthly Rent. As of the third anniversary of the
commencement date of the term hereof and every two (2) years (hereinafter the
"Adjustment Date(s)"), including the option term, the amount of the basic rent
under Section 3.1 hereof shall be increased as provided in this Section 3.3.
The base for computing the increase shall be the United States Consumer Price
Index - All Items (for all urban consumers) published by the United States
Department of Labor, Bureau of Labor Statistics (hereinafter the "Index'), which
is published nearest the date on which the term of this Lease commences
(hereinafter the "Base Index"). If the Index published nearest the respective
Adjustment Date (hereinafter the 'Extension Index") has increased over the Base
Index by at least ten percent(10%), then the basic rent under Section 3.1 hereof
for the term of this Lease remaining after the respective Adjustment Date shall
be determined by multiplying the basic rent by a fraction, the numerator of
which is the Extension Index and the denominator of which is the Base Index. If
the Extension Index has not increased over the Base Index by at least ten
percent (10%), then the basic rent for the term of this Lease remaining after
the adjustment Date (until the next
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Adjustment Date) shall be determined by multiplying the basic rent b ten percent
(10%). Promptly following adjustment of the basic rent hereunder, the Landlord
and the Tenant shall execute and amendment to this Lease stating the new basic
rent. If publication of the Index is discontinued, the Landlord and the Tenant
agree to accept comparable statistics on the average cost of living for urban
areas or cities in the United States computed and published by an agency of the
United States or a responsible financial periodical of recognized authority to
be selected by the Landlord and approved by the Tenant, such approval not to be
unreasonably withheld by the Tenant.
3.4 Personal Property Taxes. Tenant shall pay before delinquency all
taxes, assessments, license fees, and other charges ("taxes") that are levied
and assessed against the trade fixtures and personal property of Tenant
installed or located in or on the premises, and that become payable during the
term, On demand by Landlord, Tenant shall furnish Landlord with satisfactory
evidence of these payments.
3.5 Real Property Taxes. Tenant shall pay to Landlord an amount equal to
all increases in real property taxes and general and special assessments (real
property taxes) levied and assessed against the Premises. Such increases shall
be calculated from the base amount of real property taxes for the tax fiscal
year 1996. Each year Landlord shall notify Tenant of the amount of increase in
real property taxes over the tax fiscal year 1996 and promptly upon receipt to
tax xxxx shall timely furnish Tenant with a copy of the tax xxxx, whichever is
later. If the tax xxxx is not submitted to Tenant within ten (10) days of
Tenant's receipt of the tax xxxx. All notices of taxes and tax bills delivered
to Tenant pursuant to this Section 3.5 shall be sent to Tenant at the address
set forth in Section 1 hereof.
3.6 Proration of Taxes. The increases in real property taxes payable by
Tenant pursuant to Section 3.5, with the respect to tax fiscal years in which
the term of this Lease shall commence and terminate, shall be apportioned at the
commencement date and at the final termination of this Lease, respectively, so
that Tenant shall pay only those portions there of which correspond to the
portions of said tax fiscal years as are within the term of this Lease and any
extensions hereof.
SECTION 4 - USE LIMITATIONS ON USE
4.1 Use. Tenant shall use the Premises for general office purposes and for
no other use without Landlord's prior written consent, which consent will not be
unreasonably withheld.
4.2 Limitations on Use. Tenant's use of the Premises as provided in this
Lease shall be in accordance without Landlord's prior written consent, which
consent will not be unreasonably withheld.
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Limitations on Occupancy. At no time during the term of this Lease
shall Tenant permit more than fifteen (15) parking spaces located upon the
Property of which the Premises is part to be use by persons claiming by, through
or under Tenant by authority of this Lease.
Compliance With Laws. Tenant shall comply with all laws concerning
the Premises or Tenant's use of the Premises, including, without limitation, the
obligation at Tenant's use of the Premises, including, without limitation, the
obligation at Tenant's cost to alter, maintain, or restore the Premises in
compliance and conformity with all laws relating to the condition, use, or
occupancy of the Premises during the term.
Waste: Nuisance. Tenant shall not use the Premises in any manner that will
constitute waste, nuisance, or unreasonable annoyance (including, without
limitation, the use of loudspeakers or sound or light apparatus that can be
heard or seen outside the Premises) to owners or occupants of the building in
which the Premises are located or the occupancy of adjacent properties.
Tenant shall not use the Premises for sleeping, preparation of food,
washing clothes, or the preparation, manufacture, or mixing of anything that
might emit any odor or objectionable noises or lights onto adjacent properties.
Hazardous Substances. Tenant shall not bring upon the Premises, or in the
Premises, use on the Premises, or permit to be brought upon, stored, or used
upon the Premises, any wastes, petroleum products, of Hazardous Substances.
Tenant shall hold harmless and indemnify Landlord from any and all damage, loss,
injury, or liability of any nature arising from or associated with Tenant's use,
storage, or bringing upon the Premises of any Hazardous Substances.
For purposes of this Lease, the term "Hazardous Substances" shall mean any
substance; (i) The presence of which requires investigation or remediation under
any federal, state or local statute, regulation, ordinance, order, decree,
judgment, action, policy, or common law; or (ii) which is or becomes defined as
a "hazardous waste" "hazardous substance," pollutant or containment under any
federal, state, or local statute, regulation, rule, or ordinance or amendments
thereto including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 6901 et seq.), as amended; and
comparable statutes of the State of Utah; or (iii) which is toxic, explosive,
corrosive, ignitable, reactive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by
any governmental authority, agency, department, commission, board, agency or
instrumentality of the United States, the State of Utah or any political
subdivision thereof; or (iv) the presence of which on the Premises causes or
threatens to cause a nuisance upon the Premises or to adjacent properties or
poses or threatens to pose a hazard to the health or safety of persons on or
about the Premises; or (v) the presence of which on adjacent properties could
constitute a trespass by the Tenant, the Landlord, or either of them; or (vi)
without limitation which contains gasoline, diesel fuel, or petroleum
hydrocarbons; or (vii)
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without limitation which contains polychlorinated biphenyls (PCBs), asbestos, or
urea formaldehyde foam insulation; or (viii) without limitation radon gas.
SECTION 5 - MAINTENANCE
5.1 Tenant's Maintenance. During the term of this Lease and all
extensions thereof, Tenant agrees to keep and maintain, in good order,
condition, and repair the interior of the Premises, ordinary wear excepted.
5.2 Landlord's Maintenance and Utilities. Landlord agrees, at
Landlord's sole cost and expense, to furnish to the Premises lighting,
electricity, water (hot and cold), sewer, hear and air conditioning, and light
janitorial services ( which shall consist of emptying waste baskets and light
vacuuming on regular business days). Landlord's sole cost and expense, shall
maintain in good order, condition, and repair all external parts of the property
and the building of which the Premises are a part, and shall maintain in good
order, condition, and repair all plumbing and hearing, air conditioning and
ventilation equipment located upon employees, agents, or invitees. Landlord, at
Landlord's sole cost and expense, shall be responsible for snow and ice removal
from parking areas and walkways which serve the Premises, in a manner consistent
with reasonable practices for this area.
5.3 Increases in Maintenance and Utility Charges. Tenant agrees that if
the cost and expense to Landlord for insuring the Property at any time during
the initial term or any extended term of this Lease shall increase over the
amount of costs and expenses for insurance, maintenance of the Property, and/or
supplying utilities to the Property over the cost and expense of insurance,
maintenance of the Property, and/or providing services or utilities to the
Property in the calendar year 1996 (for insurance costs only) and calendar year
Tenant shall reimburse Landlord for fifty percent (50%) of the amount of such
increase: provided, however, that Tenant's liability for reimbursement to
Landlord for the maintenance of the Property, and/or providing services or
utilities to the property in the calendar year 1996 (for insurance costs only)
and the calendar year 1995 for maintaining the Property and/or providing any
services or utilities to the Property, Tenant shall reimburse Landlord for fifty
percent (50%) of the amount of such increase; provided, however, that Tenant's
liability for reimbursement to Landlord for the maintenance component of such
reimbursement obligation pursuant to this Section 5.3 shall not increase in
any particular year of the initial term or in any year of any extended term
hereof by an amount in excess of five percent (5%) of the above-described costs
and expenses of maintenance of Landlord for the preceding year of the Lease
term. There shall be no cap on tenant's obligation for reimbursement of its
portion of increases in the insurance, services, and utilities components of
such costs and expenses. For the first year of the initial term of this Lease,
the prior years' costs of maintenance for purposes of calculating the five
percent (5%) cap on maintenance increases payable by Tenant shall be determined
using the 1995 portion of increased insurance, maintenance, and utility costs
and expenses to landlord pursuant to this Section 5.3 on an annual basis within
twenty (20) days after receipt from Landlord of a statement and accounting of
the costs and expenses of insurance, maintenance and utilities on the Property
for the preceding year of the term of this Lease.
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5.4 Increases in Utility Usage. Tenant agrees that if the cost and
expense for utilities supplied to the Property at any time during the initial
term or any extended term of this Lease increase over the amount of utility
charges for utilities supplied to the Premises in the calendar year 1995, as a
result of increased usage of the electricity or other utilities by tenant, in
addition to the portion of increased utility charges payable pursuant to
Section 5.3 hereof, Tenant shall pay to Landlord the entire amount or increased
utility costs resulting from such increased usage of utilities by Tenant upon
demand by Landlord for payment of such amounts.
5.5 Alterations or Tenant's Improvements. Tenant shall not make any
alterations or Tenant's Improvements to the Premises without Landlord's prior
written consent except those noted in Exhibit B attached hereto. Any
alterations or Tenant's Improvements made shall remain on and be surrendered
with the Premises on expiration or termination of the term and shall be the
property of Landlord, except that Landlord can elect within thirty (300 days
before expiration of the term or within thirty (30) days after termination of
the term and Tenant's surrender of the Premises to require Tenant to remove any
alterations that Tenant has made to the Premises, If Landlord so elects, Tenant
at its cost shall restore the Premises to their condition existing prior to
Tenant's alterations before the last day of the term, or within twenty (20) days
after notice of election is given, whichever is later.
If Tenant makes any alterations to the Premises as provided in this Section
5.5, the alterations or Tenant's Improvements shall not be commenced until ten
(10) days after landlord has received notice from Tenant stating the date the
installation of the alterations is to commence.
5.6 Mechanics' Liens. Tenant shall pay all costs for construction or
alterations or Tenant's Improvements done by it or caused to be done by it on
the Premises as permitted by this Lease. Tenant shall keep the Premises free
and clear of all mechanics' liens resulting from construction done by or for
Tenant. Tenant shall have the right to contest the correctness or the validity
of any such lien if, immediately on demand by Landlord, Tenant procures and
records a lien release bond issued by a corporation authorized to issue surety
bonds in Utah in an amount equal to one and one-half (1-1/2) times the amount of
the claim of lien. The bond shall provide for the payment of any sum that the
claimant may recover on the claim (together with attorney's fees and costs of
suit, if it recovers in the action).
SECTION 6 - INDEMNITY AND EXCULPATION: INSURANCE
6.1 Indemnity of Landlord. Tenant shall hold Landlord harmless from any
and all damages to any person or property occurring in, on or about the
Premises, except for damages caused solely by the negligence or willful acts of
Landlord.
6.2 Public Liability and Property damage Insurance. Tenant at its cost
shall maintain public liability and property damage insurance and products
liability insurance with a single combined liability limit of not less than
$2,000,000, and property damage limits of not less that
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$500,000, insuring against all liability of Tenant and authorized
representatives arising out of and in connection with Tenant's use or occupancy
of the Premises.
All public liability insurance, products liability insurance, and property
damage insurance shall insure performance by Tenant of the indemnity provisions
of Section 6.1. Both parties shall be named as insurers and the policy shall
contain cross-liability endorsements.
6.3 Increase in Amount of Public Liability and Property Damage Insurance.
Not more frequently than each two (2) years, if in the opinion of Landlord's
lender or of the insurance broker retain by Landlord, the amount of public
liability and property damage insurance coverage at that time is not adequate,
Tenant shall increase the insurance broker. Such opinion shall be reasonably
taken and arrived at to provide the same relative coverage as was provided
hereunder at time of execution of this Lease.
6.4 Tenant's Fire Insurance. Tenant at its cost shall maintain on all its
personal property, Tenant's improvements, and alterations, in, on, or about the
Premises, a policy of standard fire and extended coverage insurance, with
vandalism and malicious mischief endorsements, to the extent of at least eighty
percent (80%) of their full replacement value. Unless this Lease is terminated
pursuant to the provisions of Sections 7 or 8 hereof, the proceeds from any such
policy shall be used by Tenant for the replacement of personal property or the
restoration of Tenant's improvements or alterations.
6.5 Waiver of Subrogation. The parties release each other, and their
respective authorized representatives, from any claims for damage to any person
or to the Premises and to the fixtures, personal property, Tenant's
improvements, and alterations of either Landlord or Tenant in or on the Premises
that are caused by or result from risks insured against under any insurance
policies carried by the parties in force at the time or any such damage to the
extent that such policies cover the loss or damage.
SECTION 7 - DESTRUCTION
7.1 Destruction by Fire or Other Casualty. If the Premises shall be
damaged by fire, unavoidable accident, or other casualty covered by fire and
exceeded coverage insurance and such damage is not caused by the act, or failure
to act, of Tenant, its employees, agents, licensees, permittees, or invitees.
Landlord shall cause such damage to be repaired. If the Premises shall be
rendered wholly untenantable by reason of such occurrence, Landlord shall cause
such damage to be repaired: provided, however, in the event the Premises cannot
be repaired within one hundred twenty (120) days. Landlord may, at its
election, make within thirty (300 days following the occurrence of such damage
or destruction, elect to terminate this Lease. In the event of such
termination, rent shall be abated from and after such date of the damage or
destruction. In the event Landlord does not terminate this complete a
restoration of the Premises, Landlord shall commence and complete a restoration
of the Premises with a reasonable time after such damage or destruction. Tenant
agrees to give Landlord immediate notice of any damages to the Premises by fire,
the elements, or any other casualty.
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7.2 Loss or Damage. Landlord shall not be liable for:
(a) Any loss or damage to any property damage to any property of
Tenant or of others located on the Premises, by theft or otherwise; or
(b) any injury, or damage to persons or property resulting from fire,
explosion, falling plaster, gas, electricity, water, rain or snow or leaks from
any part of the Property or from the pipes, appliances, or plumbing works or
from the roof, street, or subsurface or from any other place whereby dampness or
by any other cause of whatsoever nature, unless such damage shall be caused by
the willful acts or gross negligence of Landlord, its agents, representatives,
or employees. Except for loss, damage, or injury resulting solely from the
willful acts or negligence of Landlord, its agents, representatives, or
employees, all property of Tenant kept or stored on the Premises shall be so
kept at or stored at the risk of Tenant only. Tenant shall hold Landlord
harmless from any claims arising out of damage to or loss of property and from
any claims for personal injury, for any event occurring on the Premises, unless
such damage shall be caused solely by the willful acts or negligence of
Landlord, its agents, representatives, or employees.
7.3 Abatement or Reduction of Rent. In case of damage or destruction, and
in the event this Lease is not terminated pursuant to Section 7.1 hereof, the
rent shall be abated wholly or proportionately, as the case may be, until the
damage shall be repaired and the Premises restored; provided, however, that in
the event such damage or destruction is caused by Tenant, its agents,
representatives, or employees there shall be no abatement of rent.
7.4 Loss During Last Part of Term. If destruction to the Premises occurs
during the last year of the term or of any extended term, and the cost or
restoration exceeds five percent (5%) of the then replacement value of the
Premises, either Landlord or Tenant can terminate this Lease by filing notice to
the other not more than fifteen (15) days after the destruction, provided,
however, that in the event Tenant has a n unexercised and exercisable option to
extend pursuant to Section 2.2 hereof, and in the further event that Tenant
irrevocably exercises such option to extend within five (5) days after
Landlord's notice to Tenant of termination pursuant to this Section 2.2, then in
such events this Lease shall not be terminated by reason of the destruction
which was the subject of Landlord's notice to Tenant unless permitted pursuant
to section 7.1 hereof.
SECTION 8 - CONDEMNATION
8.1 Condemnation. In the event the whole or any part of the Premises
shall be taken or condemned for a public or quasi-public use or purpose by any
competent authority and as a result thereof the balance of said Premises cannot
be used for the same purpose as before such taking or condemnation, then and in
either or such events, the term of this Lease shall terminate when possession of
the Premises shall be taken by the condemning authorities.
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Any award, compensation, or damages (hereinafter sometimes referred to as
the "award") for that portion of the Premises which does not include any
personal property of the Tenant, shall be paid to and be the property of
Landlord. It is understood that in the event of the termination of this Lease
as aforesaid, neither Landlord nor Tenant shall have any claim against the
other of this Lease as aforesaid, neither Landlord nor Tenant shall have
any claim against the other for the value or any unexpired term of this Lease,
and Tenant shall have no right or claim to any part of the award on account
thereof, except as may pertain to any tangible person property of Tenant which
it would be entitled to remove upon any termination of this Lease.
8.2 Partial Condemnation. In the event only a part of the Premises shall
be taken or condemned for a public or quasi - public use or purpose by any
competent authority, and as a result thereof the balance of said Premises can be
used for the same purpose as before such taking or condemnation, this lease
shall not terminate as a result thereof and Landlord, at its sole cost and
expense, but only to the extent of the award for such taking received by
Landlord, shall repair and restore the Premises can be used for the same purpose
shall be made by Tenant, subject to the requirement that such determination is
reasonably made Tenant. Any award paid as a consequence of such taking or
condemnation, shall be paid to Landlord and be applied to the cost of said
repairing and restoration. Any sums remaining after such application shall be
the proportion to the reduction of the Premises as a result of such taking.
SECTION 9 - ASSIGNMENT
9.1 Prohibition Against Voluntary Assignment, Subletting, and
Encumbering. Tenant shall not voluntarily assign or encumber its interest in
this Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity (except Tenant's authorized representatives) to
occupy or use all or any part of the Premises, without first obtaining
Landlord's consent. Any assignment, encumbrance, or sublease without Landlord's
consent shall be voidable and, at Landlord's election shall constitute a
default. No consent to any assignment, encumbrance, or sublease shall constitute
a further waiver of the provisions of this Section.
Any dissolution, merger, consolidation, or other reorganization of Tenant,
or the sale or other transfer of a controlling percentage of the capital stock
of Tenant, or the sale of at lease fifty-one percent (51%) of the value of the
assets of Tenant, shall be deemed a voluntary assignment. The phrase
"controlling percentage" means the ownership of, and the right to vote, stock
possessing at least fifty-one percent (51%) of the total combined voting power
of all classes of Tenant's capital stock issued, outstanding, and entitled to
vote for the election of directors. This Section shall not apply to
corporations the stock of which is traded through an exchange or over the
counter.
Tenant immediately and irrevocable assigns to Landlord, as security for
Tenant's obligations under this Lease, all rent from any subletting of all or a
part of the Premises as
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permitted by this Lease, and Landlord, as assignee and as attorney-in-fact for
Tenant, or a receiver for tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease;
except that, until the occurrence of an act of default by Tenant, Tenant shall
have the right to collect such rent.
Any assignment, subletting, or other transfer of Tenant's interest
hereunder, whether pursuant to written consent of Landlord or as permitted
hereunder, shall not release or discharge Tenant or Guarantor from liability
unless such release is expressly granted in writing by Landlord.
If Tenant requests Landlord to consent to a proposed assignment or
subletting, Tenant shall pay to Landlord, whether or not consent is ultimately
given, Landlord's reasonable attorneys fees incurred in connection with each
such request.
9.2 Involuntary Assignment. No interest of Tenant in this Lease shall be
assignable by operation of law (including, without limitation, the transfer of
this Lease by testacy or intestacy). Each of the following acts shall be
considered an involuntary assignment:
(1) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a
proceeding under the Bankruptcy Act in which Tenant is the
bankrupt; or, if Tenant is a partnership or consists of more than
one person or entity, if any partner of the partnership or other
person or entity is or becomes bankrupt or insolvent, or makes an
assignment for the benefit of creditors;
(2) If a writ of attachment or execution is levied on this Lease;
(3) If, in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the
Premises.
Any involuntary assignment shall constitute a default by Tenant and
Landlord shall have the right to elect to terminate this Lease, in which case
this Lease shall not be treated as an asset of Tenant.
SECTION 10 --- DEFAULT
10.1 Tenant's Default. The occurrence of any of the following shall
constitute a default by Tenant:
(1) Failure to pay rent or any other sums payable by Tenant hereunder
when due, if the failure continues for five (5) days after the
date when such rent or other amount was due.
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(2) Abandonment and vacation of the Premises (failure to occupy and
operate the Premises for ten (10) consecutive days shall be
deemed an abandonment and vacation).
(3) Failure to perform any other provision of this Lease if the
failure to perform is not cured within fifteen (15) days after
notice has been given to Tenant. If the default cannot reasonably
be cured within fifteen (15) days, Tenant shall not be in default
of this Lease if Tenant commences to cure the default within the
fifteen (15) day period and diligently and in good faith
continues to cure the default.
(4) Any representation or warranty by Tenant was materially false or
inaccurate at the time of the execution of this Lease.
(5) Violation of the occupancy and parking limitations in Section 4.2
hereof more than three times during the term and any extended
term of this Lease shall constitute default and provides Landlord
the right, but not the obligation to exercise Landlord's rights
for default hereunder not withstanding any efforts to cure by
Tenant.
Notices given under Section 10.1(3) shall specify the alleged default and
the applicable lease provisions, and shall demand that Tenant perform the
provisions of this Lease within the applicable period of time, or quit the
Premises. No such notice shall be deemed a forfeiture or a termination of this
Lease unless Landlord so elects in the notice.
10.2 Landlord's Remedies. Landlord shall have the following remedies if
Tenant commits a default and, where applicable, fails to cure within the times
set forth in Section 10.1 hereof. These remedies are not exclusive; they are
cumulative in addition to any remedies now or later allowed by law.
(a) Tenant's Right to Possession Not Terminated. Landlord can
continue this Lease in full force and effect, and the Lease will continue in
effect as long as Landlord does not terminate Tenant's right to possession, and
Landlord shall have the right to collect rent when due. During the period
Tenant is in default, Landlord can enter the Premises and let them, or any part
of them, to third parties for Tenant's account. Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in reletting the Premises,
including, without limitation, brokers' commissions, expenses of remodeling the
Premises required by the reletting, and like costs. Reletting can be for a
period shorter or longer than the remaining term of this Lease. Tenant shall pay
to Landlord the rent due under this Lease on the dates the rent is due, less the
rent Landlord receives from any reletting. No act by Landlord allowed by this
Section shall terminate this Lease unless Landlord notifies Tenant that Landlord
elects to terminate this Lease. After Tenant's default and for as long as
Landlord does not terminate Tenant's right to possession of the Premises, if
Tenant obtains Landlord's consent Tenant shall have the right to assign or
sublet its interest in this Lease, but Tenant shall not be released from
liability.
If Landlord elects to relet the Premises as provided in this Section, rent
that Landlord receives from reletting shall be applied to the payment of:
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First, any indebtedness from Tenant to Landlord other than rent due
from Tenant;
Second, all costs, including for maintenance, incurred by Landlord in
reletting;
Third, rent due and unpaid under this Lease.
After deducting the payments referred to in this Section, any sum remaining
from the rent Landlord receives from reletting shall be held by Landlord and
applied in payment of future rent as rent becomes due under this Lease. In no
event shall Tenant be entitled to any excess rent received by Landlord. If, on
the date rent is due under this Lease, the rent received from the reletting is
less than the rent due on that date, Tenant shall pay to Landlord, in addition
to the remaining rent due, all costs, including for maintenance, Landlord
incurred in reletting that remain after applying the rent received from the
reletting as provided in this Section.
(b) Termination of Tenant's Right to Possession. Landlord can
terminate Tenant's right to possession or the Premises at any time. No act by
Landlord other than giving notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the appointment of a receiver on
Landlord's initiative to protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession or a termination of
this Lease. On termination of this Lease, a Landlord has the right to recover
from Tenant:
a. The worth, at the time of the award, of the unpaid rent that
had been earned at the time of termination of this Lease;
b. The worth, at the time of the award, of the amount by which
the unpaid rent that would have been earned after the date of termination of
this Lease until the time of award exceeds the amount of the loss of rent that
Tenant proves could have been reasonably avoided;
c. The worth, at the time of the award, of the amount by which
the unpaid rent for the balance of term after the time or award exceeds the
amount of the loss of rent that Tenant proves could have been reasonably
avoided; and
d. Any other amount, and court costs, necessary to compensate
Landlord for all detriment proximately caused by Tenant's default.
"The worth, at the time or the award," as used in (a) and (b) or this
Section, is to be computed by allowing interest at the lesser of eighteen
percent (18%) per annum or the maximum rate an individual is permitted by law to
charge. "The worth, at the time of the award," as referred to in (C) of this
Section, is to be computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award, plus one percent
(1%).
(c) No Exercise of Option. Notwithstanding any provision of this
Lease to the contrary, any attempted exercise by Tenant of an option to extend
the term of this Lease, shall be null and void and
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ineffective if such attempted exercise is made at the time when Tenant is in
default under the terms and provision of this Lease.
(d) Landlord's Right to Cure Tenant's Default. Landlord, at any time
after Tenant commits a default and has failed to perform within fifteen (15)
days of notice of such default from Landlord, can cure the default at Tenant's
cost. If Landlord at any time, by reason of Tenant's default, pays any sum or
does any act that requires the payment of any sum, the sum paid by Landlord
shall be due immediately from Tenant to Landlord at the time the sum is paid,
and if paid at a later date shall bear interest at the lesser of eighteen
percent (18%) per annum or the maximum rate an individual is permitted by law to
charge from the date the sum is paid by Landlord until Landlord is reimbursed by
Tenant. The sum, together with interest on it, shall be additional rent.
10.3 Interest. Rent and other amounts payable hereunder by Tenant not paid
when due shall bear interest from the date due until paid at the maximum rate
permitted by law or at the rate of eighteen percent (18%) per annum, whichever
is less.
10.4 Late Charge. Tenant acknowledges that late payment by Tenant to
landlord or rent will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such costs being extremely difficult a a late charge.
The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of late payment by
Tenant. Acceptance of any late charge shall not constitute a waiver of Tenant's
default with respect to the overdue amount, or prevent Landlord from exercising
of any of the other rights and remedies available to Landlord.
10.5 Tenant's Right To Cure Landlord's Default. Landlord shall be
indefault of this Lease if it fails or refuses to perform any provision of this
Lease that it is obligated to perform is the failure to perform is not cured
within thirty (30) days after notice of the default has been given by Tenant to
Landlord. If the default cannot reasonably be cured within thirty (30) days,
Landlord shall not be in default of this Lease if Landlord commences to cure the
default within the 30-day period and diligently and in good faith continues to
cure the default.
SECTION 11 --- SIGNS; ADVERTISING
11.1 Tenant's Restricted Right to Signs. Tenant at its cost shall have the
right to place, construct, and maintain one (1) exterior sign on the building
that is a part of the Premises in the same dimensions, style, and lettering
presently used on the building for the name "Xxxxxx, Xxxxxxx & Xxxxxxx,"
advertising its business on the Premises. The location of such sign on the
building shall be subject to Landlord's approval, Tenant shall not have the
right to place, construct, or maintain any other sign, advertisement, awning,
banner, or other exterior decoration without Landlord's prior written consent.
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11.2 Compliance With Laws. Any sign that Tenant has the right to
place, construct, and maintain shall comply with all laws, and Tenant shall
obtain any approval required by such laws. Landlord makes no representation
with respect to Tenant's ability to obtain such approval.
11.3 Removal of Signs. At the termination of this Lease Tenant shall, at
Tenant's sole cost and expense, remove all signs installed or constructed by
Tenant and shall repair and restore the Premises or the building or property of
which the Premises is a part to their condition prior to installation or
construction of such signs.
SECTION 12 ---- LANDLORD'S ENTRY ON PREMISES
12.1 Landlord and its authorized representatives shall have the right to
enter the Premises at all reasonable times for any or the following purposes:
(1) To determine whether the Premises are in good condition and
whether Tenant is complying with its obligations under this Lease;
(2) To do any necessary maintenance and to make any restoration to the
Premises that Landlord has the right or obligation (if any) to perform;
(3) To serve, post, or keep posted any notices required or allowed
under the provisions of this Lease;
(4) To post "for sale" signs at any time during the term, to post "for
rent" or "for lease" signs during the last six (6) months of the term, or during
any period white Tenant is in default'
(5) To show the Premises to prospective brokers, agents, buyers,
tenants, or persons interested in a purchase or an exchange, at any time during
the term;
(6) At Landlord's expense, to shore the foundations, footings, and
walls or the building and other improvements that are a part of the Premises and
to erect scaffolding and protective barricades around and about the Premises,
but not so as to prevent entry to the Premises, and to do any other act or thing
necessary for the safety or preservation of the Premises if any excavation or
other construction is undertaken or is about to be undertaken on any adjacent
property or nearby street. Landlord's right under this provision shall not be
construed to create any obligation for Landlord to maintain or repair the
Premises. Except as set forth in other provisions of this lease.
Landlord shall not be liable in any manner for any inconvenience,
disturbance, loss or business, nuisance, or other damage arising out of
Landlord's entry on the Premises as provided in this Section, except damage
resulting from the wrongful acts or wrongful negligence of Landlord or its
authorized representatives.
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Tenant shall not be entitled to an abatement or reduction of rent if
Landlord exercises any rights reserved in the Section.
Landlord shall conduct its activities on the Premises as allowed in this
Section in a manner that will minimize inconvenience, annoyance, or disturbance
to Tenant.
SECTION 13 ---- PRIOR TENANT EQUIPMENT
13.1 Prior Tenant Equipment. At the time of execution of this Lease,
certain equipment and personal property left by a prior tenant of the Premises
(collectively "Prior Tenant Equipment") is on the Premises. The Prior Tenant
Equipment, although in the custody of Landlord, is not owned by Landlord, and is
the subject of a legal proceeding pending in the Third District Court for the
State of Utah. Landlord cannot give Tenant permission or the right to use that
Equipment. Tenant agrees to indemnify and hold Landlord harmless for any
damages, waste or diminution in value that may occur to the Prior Tenant
Equipment caused by Tenant, its agents, licensees, assigns or successors.
SECTION 14 ---- SECURITY DEPOSIT
14.1 Amount of Deposit. The Tenant, contemporaneously with the execution
of this Lease, shall deposit with the Landlord a security deposit in the sum of
Five Thousand Three Hundred Twelve and 50/100 Dollars ($5,312,50). Such deposit
shall be held by the Landlord, without liability for interest, as security for
the faithful performance by the Tenant of all of the terms, covenants, and
conditions of this Lease on the part of the Tenant to be observed or performed
during the term hereof. If at any time during the term of this Lease any of the
rent herein reserved shall be overdue and unpaid, then the Landlord shall at its
option have the right, but not the obligation, to appropriate and apply any
portion of said deposit to the payment of any such overdue rent or other sum.
If the entire deposit, or any portion thereof, should be appropriated and
applied by the Landlord for the payment of overdue rent or other sums to be paid
hereunder by the Tenant to the Landlord, then the Tenant shall immediately upon
demand remit to the Landlord a sufficient amount in cash to restore said
security deposit to the sum specified above in this Section, and the Tenant's
failure to do so within ten (10) days after receipt of such demand shall
constitute a default under this Lease. If the Tenant complies with all of said
terms, covenants, and conditions and promptly pays all of the rent herein
provided for and all other sums to be paid by the Tenant to the Landlord
hereunder, then the said security deposit shall be returned in full to the
Tenant upon the termination of this Lease. The Landlord's obligations with
respect to the security deposit are those of a debtor, and not of a trustee.
SECTION 15 --- PARKING
15.1 Parking. Landlord agrees to make fifteen (15) parking stalls
available to Tenant o the Property on which the Premises is located, for the
purpose of servicing the needs of occupants of the Premises. Such parking
stalls shall be the fifteen(15) most southerly parking
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stalls along the west property line of the Property on which the Premises is
located; provided, however, that Landlord reserves the right from time to time
to rearrange the configuration of parking stalls located on the Property so long
as Landlord makes available to Tenant fifteen(15) or such parking stalls of
similar location: Tenant agrees that it will not at any time cause or permit
more than fifteen (115) of the parking stalls located on the Premises to be
occupied by Tenant, its employees, agents, licensees, and invitees.
SECTION 16 - GRANT OF SECURITY INTEREST
16.1 Grant of Security Interest. Tenant hereby grants Landlord a Security
interest in all the personal property of Tenant, of whatever nature, which is
brought upon or located at the premises for the purpose of securing of the
performance of Tenant's obligations hereunder. As to the switching equipment
and other items listed on Exhibit C attached hereto, Tenant hereby grants a
security interest in the items listed and represents and warrants that
Landlord's security interest has first priority over any and all other security
interests or liens in such equipment. Tenant agrees that it will not further
encumber the personal property listed in Exhibit C in any way that would
displace or conflict with Landlord's first priority security interest. Upon
request of Landlord, Tenant shall execute and cause to be filed at its own
expense, a UCC-1 Financial Statement for the purpose of perfecting the security
interests granted in this Section 16.
SECTION 17 - REPRESENTATIONS AND WARRANTIES
17.1 Tenant's Representations and Warranties. As a material inducement to
Landlord to execute this lease and in partial consideration therefor, Tenant
hereby makes the following representations and warranties, each of which is
being relied upon by Landlord as a material inducement to enter into this Lease,
and each of which is true and correct as of the date hereof;
(a) All financial statements and other financial information provided
to Landlord by Tenant are true and correct in all material respects, and fully
and accurately present the financial condition of Tenant as or the date and
time of such reports, and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis.
(b) The execution and delivery of this Lease and the performance by
Tenant of its obligations hereunder require no further action or approval in
order to constitute this Lease as a binding and enforceable obligation of
Tenant. Compliance with this Lease does not contravene any provision of law,
nor of any agreement, government order or regulation, undertaking, or other
restriction to which Tenant is a party or by which Tenant is bound.
(c) This Lease been duly executed by Tenant and constitutes a legal,
valid, and binding obligation of Tenant enforceable in accordance with its
terms.
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SECTION 18 - ESTOPPEL
18.1 Estoppel Certificate. Tenant shall, within ten (10) days after
Landlord's request therefor, execute and deliver to Landlord's request therefor,
execute and deliver to Landlord an estoppel certificate in favor of Landlord and
such other persons as Landlord shall request setting forth the following: (a)
ratification of this Lease; (b) the commencement date and termination date
hereof; (c) that this lease is in full force and effect and has not been
assigned, modified, supplemented or amended (except as such writing as shall be
stated); (d) that all conditions under this lease to be performed by landlord
have been satisfied; (e) there are no defenses or offsets against the
enforcement of this Lease by Landlord, or in the alternative, those claimed by
Tenant; (f) the amount of advance rent, if any (or none if such is the), paid
by Tenant; (g) the date to which rent has been paid; (h) the amount of the
security deposit, if any; and (i) such other information as Landlord may
reasonably request. In the event that Tenant fails within ten (10) days after
Landlord has delivered to Tenant an estoppel certificate pursuant to this
Section to properly execute and deliver the same to landlord, Tenant shall be
deemed to have consented to such estoppel certificate as written, provided,
however, that such non-consent shall not relieve Tenant from its
responsibilities for default under this Lease by reason of its failure to return
an estoppel certificate as written, provided, however, that such non-consent
shall not relieve Tenant from its responsibilities for default under this Lease
by reason of its failure to return an estoppel certificate in accordance with
this Section. Mortgage lenders and/or purchasers shall be entitled to rely upon
any estoppel certificate executed by Tenant or which Tenant is deemed to have
consented.
SECTION 19 - MISCELLANEOUS
19.1 Notice. All notices, requests, consents and other communications
required under this Lease shall be in writing and shall be sufficient for all
purposes if personally delivered, or if mailed by certified or registered U.S.
mail, return receipt requested, postage prepaid, or if sent by Federal Express
or other nationally recognized air courier, expenses prepaid, and addressed as
follows:
If to Landlord, to:
Broadway Associates
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn.: Xx. Xxxx X. Xxxxxxx
With a copy to:
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Xxxxx x. Xxxxxx, Esq.
Van Cott, Xxxxxx, Cornwall & XxXxxxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
If to Tenant, to:
FTI Communications
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn.: Mr. Xxxxxx Xxxxxxx
Either party may change its address by notifying the other party of the
change of address. Notice shall be deemed communicated upon receipt or within 48
hours from the time of mailing if mailed as provided in this Section, whichever
shall first occur.
19.2 Waiver. No delay or omission in the exercise of any right or
remedy of Landlord on any default by Tenant shall impair such a right or remedy
or be construed as a waiver.
The receipt and acceptance by Landlord of delinquent rent shall not
constitute a waiver of any other default; it shall constitute only a waiver of
timely payment for the particular rent payment involved.
No act or conduct of Landlord, including, without limitation, the
acceptance of the keys to the Premises, shall constitute an acceptance of the
surrender of the premises by Tenant before the expiration of the term. Only a
written notice from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of the Lease..
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord for any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of
the lease.
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19.3 Sale or Transfer or Premises. If Landlord sells or transfers all
or any portion or the Premises, Landlord, on consummation of the sale or
transfer, shall be released from any liability thereafter accruing under this
lease if Landlord's successor has assumed in writing, for the benefit of Tenant,
landlord can transfer the security deposit or prepaid rent to Landlord's
successor and on such transfer Landlord shall be discharged from any further
liability in reference to the security deposit or prepaid rent.
19.4 Enforcement. In the event of default under any provision in this
lease, the defaulting party agrees to pay the other party all costs, including
reasonable attorney's fees, incurred by the other party in enforcing its rights
under this Lease whether or not court action is instituted, in addition to all
other amounts due hereunder and damages caused by the default.
19.5 Surrender of Premises. On expiration or termination of the term,
Tenant shall surrender to Landlord the Premises and all tenant's improvements
and alterations in good condition, except for ordinary wear and tear occurring
after the last necessary maintenance made by Tenant and destruction to the
Premises covered by section 7.1 except for alterations that Tenant is obligated
to remove under the provisions of Section 5.5. Tenant shall remove all its
personal property within the above stated time. Tenant shall perform all
restoration made necessary by the removal of any alterations or Tenant's
personal property within the time periods stated in this Section.
Landlord can elect to retain or dispose of in any manner any
alterations or Tenant's personal property that Tenant does not remove from the
Premises on expiration or termination of the term as allowed or required by this
Lease by filing at least ten (10) days' notice to Tenant. Title to any such
alterations or Tenant's personal property that Landlord elects to retain or
dispose of an expiration of the 10-day period shall vest in Landlord. Tenant
waives all claims against Landlord for any damage to Tenant resulting from
Landlord's retention or disposition of any such alterations of Tenant's personal
property Tenant shall be liable to Landlord for Landlord's costs for storing,
removing, and disposing of any alterations or tenant's personal property.
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If Tenant fails to surrender the Premises to Landlord on expiration or
ten (10) days after termination of the term as required by this Section, Tenant
shall hold Landlord harmless from all damages resulting from Tenant's failure to
surrender the Premises, including, without limitation, claims made by a
succeeding tenant resulting from Tenant's failure to surrender the Premises.
19.6 Holding Over. If Tenant, with Landlord's consent, remains in
possession of the Premises after expiration or termination of the term, or after
the date in any notice given by Landlord to Tenant terminating this Lease, such
possession by Tenant shall be deemed to be a month-to-month tenancy terminable
on thirty (30) days' notice given at any time by either party. All provisions of
this Lease, except those pertaining to term shall apply to the month-to-month
tenancy.
19.7 Time of Essence. Time is of the essence of each provision of
this Lease.
19.8 Consent of Parties. Whenever consent or approval of either party
is required, that party shall not unreasonably withhold such consent of
approval.
19.9 Corporate Authority. If either party is a corporation, that
party shall deliver to the other party on execution of this Lease a certified
copy of a resolution of its board of directors (or its executive committee with
appropriate resolutions from its board of directors empowering such executive
committee) authorizing the execution of this Lease and naming the officers that
are authorized to execute this Lease on behalf of the corporation.
19.10 Entire Agreement. This Lease, including the exhibits attached
hereto, constitutes the entire agreement between the parties hereto relative to
the subject matter hereof. Any prior negotiations, correspondence, or
understandings relative to the subject matter hereof shall be deemed to be
merged in this Lease and shall be of no further force or effect. This Lease may
not be amended or modified except in writing executed by both of the parties
hereto.
19.11 Successors. This Lease shall be binding on and inure to the
benefit of the parties and their successors and assigns, except as provided in
Section 9.1.
19.12 Rent Payable in U.S. Money. Rent and all other sums payable
under this Lease must be paid in lawful money of the United States of America.
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Each party shall hold harmless the other party from all damages
resulting from any claims that may be asserted against the other party by any
broker, finder, or other person, with whom the other party has or purportedly
has dealt.
19.13 Exhibits - Incorporation in Lease. All exhibits referred to are
attached to this Lease and incorporated by reference.
19.14 Controlling Law. This Lease shall be construed and interpreted
in accordance with the laws or the State of Utah.
19.15 Use of Definitions. The definitions contained in this Lease
shall be used to interpret this Lease.
19.16 Definitions. As used in this Lease, the following words and
phrases shall have the following meanings.
Alteration - any addition or change to, or modification of, the
Premises made by Tenant including, without limitation, fixtures, but excluding
trade fixtures as defined here, and Tenant's improvements as defined here.
Authorized representative - any officer, agent, employee, or
independent contractor retained or employed by either party, acting within
authority given him by that party.
Damage - injury, deterioration, or loss to a person or property caused
by another person's acts or omissions. Damage includes death.
Damages - a monetary compensation or indemnity that can be recovered in
the courts by any person who has suffered damage to his person, property, or
rights through another's act or omission.
Destruction - any damage, as defined here, to or disfigurement of the
Premises.
Encumbrance - any deed of trust, mortgage, or other written security
device or agreement affecting the Premises, and the note or other obligation
secured by it, that constitutes security for the payment of a debt or
performance of an obligation.
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Expiration - the coming to an end of the time specified in the Lease as
its duration, including any extension of the term resulting from the exercise of
an option to extend.
Good Condition - the good physical condition of the Premises and each
portion of the Premises, including, without limitation, signs, windows, show
windows, appurtenances, and Tenant's personal property as defined here. "In good
condition" means first-class, neat, clean, and broom-clean, and is equivalent to
similar phrases referring to physical adequacy in appearance and for use.
Hazardous substances - any substance or material defined or designated
as hazardous or toxic waste, hazardous or toxic chemical, hazardous or toxic
material, hazardous or toxic substance, or other similar term, by any federal,
state, or local environmental statute, regulation, or ordinance presently in
effect, or in effect at any time during the term, and, as to substances and
materials which are not specifically identified in any such statute, regulation,
or ordinance by name, which are known to be toxic or hazardous under presently
existing and generally accented scientific knowledge.
Hold harmless - to defend and indemnify from all liability, losses,
penalties, damages as defined here, costs, expenses (including, without
limitation, attorneys' fees) causes of action, claims, or judgment arising out
of or related to any damage, as defined here, to any person or property.
Law - any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement of any
municipal, county, state, federal, or other government agency or authority
having jurisdiction over the parties or the Premises, or both, in effect either
at the time of executing of the Lease or at any time during the term, including,
without limitation, any regulation or order of a quasi-official entity or body
(e.g., board of fire examiners or public utilities).
Lien - a charge imposed on the Premises by someone other than Landlord,
by which the Premises are made security for the
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performance of an act. Most of the liens referred to in this Lease are
mechanics' liens.
Maintenance - repairs, replacement, repainting, snow and ice removal.
Landscaping care and maintenance, janitorial services provided by Landlord,
servicing of HVAC systems, and cleaning.
Person - one or more human beings, or legal entities or other
artificial persons, including, without limitation, partnerships, corporations,
trusts, estates, associations, and any combination of human beings and legal
entities.
Provision - any term, agreement, covenant, condition, clause,
qualification, restriction, reservation, or other stipulation in the Lease that
defines or otherwise controls, establishes, or limits the performance required
or permitted by either party.
Rent - monthly rent, prepaid rent, security deposit, real property
taxes and assessments, insurance, and other similar charges payable by Tenant to
Landlord.
Restoration - the reconstruction, rebuilding, rehabilitation, and
repairs that are necessary to return destroyed portions of the Premises and
other property to substantially the same physical condition as they were in
immediately before the destruction.
Successor - assignee, transferee, personal representative, heir, or
other person or entity succeeding lawfully, and pursuant to the provisions of
this Lease, to the rights or obligations of either party.
Tenant's improvement - any addition to or modification of the Premises
made by Tenant before, at, or near the commencement of the term, including,
without limitation, fixtures (not including Tenant's trade fixtures, as defined
here).
Tenant's personal property - Tenant's equipment, furniture,
merchandise, and moveable property placed in the Premises by Tenant, including
Tenant's trade fixtures, as defined here.
Tenant's trade fixture - any property installed in or on the Premises
by Tenant for purposes of trade, manufacture, ornament, or related use.
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Term - the period of time during which Tenant has a right to occupy the
Premises.
Termination - the ending of the term for any reason before expiration,
as defined here.
19.17 Captions: Table of Contents. The captions and the table of
contents of this Lease shall have no effect on its interpretation.
19.18 Singular and Plural. When required by the context of this Lease,
the singular shall include the plural.
19.19 Severability. The unenforceability, invalidity, or illegality of
any provision shall not render the other Provisions unenforceable, invalid, or
illegal.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD: TENANT:
BROADWAY ASSOCIATES, STI COMMUNICATIONS,
a Utah a general partnership,
_____________corporation
By By
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