\n 27 MISCELLANEOUS PROVISIONS ……………………………………………..24<\/p>\n 27.1 No Partnership …………………………………………………24
\n 27.2 Force Majeure ………………………………………………….24
\n 27.3 Section Deleted ………………………………………………..24
\n 27.4 No Light, Air or View Easement …………………………………..24
\n 27.5 Holding Over …………………………………………………..24
\n 27.6 Notices………………………………………………………..25
\n 27.7 Captions; Attachments …………………………………………..25
\n 27.8 Recording………………………………………………………25
\n 27.9 Partial Invalidity ……………………………………………..25
\n 27.10 Brokers Commission ……………………………………………..25
\n 27.11 TENANT Defined; Use of Pronouns ………………………………….25
\n 27.12 Provisions Binding, etc………………………………………….26
\n 27.13 Entire Agreement, etc …………………………………………..26
\n 27.14 Recourse by TENANT ……………………………………………..26
\n 27.15 Choice of Law ………………………………………………….26
\n 27.16 Time of Essence ………………………………………………..26
\n 27.17 No Waiver ……………………………………………………..26
\n 27.18 Right and Remedies ……………………………………………..26
\n 27.19 Authorization ………………………………………………….27
\n 27.20 No Construction Against Drafting Party ……………………………27
\n 27.21 Section Deleted ………………………………………………..27
\n 27.22 No Merger ……………………………………………………..27
\n 27.23 Financial Report………………………………………………..27
\n 27.24 LANDLORD’S Fees ………………………………………………..27
\n 27.25 Attorney Fees ………………………………………………….27
\n 27.26 Successors …………………………………………………….27<\/p>\n
Signatures ………………………………………………………………28
\n<\/c><\/s><\/table>\n
EXHIBITS:<\/p>\n
“A” Legal Description
\n “B” Preliminary Plans
\n “C” Exterior Elevations
\n “D” Building Floor Plans
\n “E” TENANT Improvements
\n“EI” Preliminary TENANT Space Plan
\n“E2” Final Plans
\n “F” Rules and Regulations<\/p>\n
LEASE AGREEMENT<\/p>\n
This LEASE AGREEMENT (Lease) is entered into this 30 day of March, 2000, by and
\nbetween 106TH SOUTH BUSINESS PARK L.P., a Utah Limited Partnership, hereinafter
\nreferred to as LANDLORD, and CALDERA SYSTEMS, INC., hereinafter referred to as
\nTENANT.<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, this Lease relates to a six story office building located at
\n10421 South Jordan Gateway (400 West)~ South Jordan City. Salt Lake County, Utah
\n84095; and<\/p>\n
WHEREAS, LANDLORD and TENANT are desirous of entering into this
\nLease.<\/p>\n
5<\/p>\n
NOW, THEREFORE, for and in consideration of the mutual promises and
\nprovisions herein contained and for other good and valuable consideration the
\nreceipt and sufficiency whereof are hereby acknowledged, the parties mutually
\ncertify and agree to the following terms and conditions:<\/p>\n
1. OPERATIVE FACTS. This Agreement (hereafter referred to as the
\n“Lease”) is made with respect to the following salient facts and definitions:<\/p>\n
1.1 Premises & Preparation.<\/p>\n
1.1.1 LANDLORD does hereby lease to TENANT and TENANT hereby
\nleases from LANDLORD, that certain office space commonly known as Suite 160,
\n(herein called “Premises”), said Premises being agreed, for the purpose of this
\nLease, to have a net rentable area of 5,146 square feet and being situated on
\nthe 1st floor of that certain building known as Towers Phase I1 6 story office
\nbuilding at 10421 South Jordan Gateway, South Jordan, Utah (hereinafter referred
\nto as the “Building,” and further referenced in Exhibit “A”). Net rentable area
\nis defined as the net useable area, 4,374 square feet, plus a 15% building load
\nfactor for common areas and is calculated by dividing the net useable area by
\n .85. Said Lease is subject to the terms, covenants and conditions herein set
\nforth and the TENANT covenants, as a material part of the consideration for this
\nLease, to keep and perform each and all of said terms, covenants and conditions
\nby it to be kept and performed and that this Lease is made upon the condition of
\nsaid performance.<\/p>\n
1.1.2 The respective obligations, if any, of LANDLORD and TENANT
\nto perform the work and supply the necessary materials and labor to prepare the
\nPremises for occupancy by TENANT are described in detail on Exhibit “B” attached
\nhereto and by this reference made a part hereof. LANDLORD and TENANT shall
\nexpend all funds and do all acts required of them as described on Exhibit “B”
\nand shall perform or have such work promptly and diligently completed in a
\nfirst-class and workmanlike manner.<\/p>\n
1.1.3 LANDLORD and TENANT shall complete the work required of
\neach party, as specified in Exhibit “B” as soon as reasonably possible.
\nNotwithstanding anything to the contrary contained in this Lease, upon occupancy
\nof the Premises by Tenant, all of the obligations of LANDLORD set forth in
\nExhibit “B” shall be deemed to be satisfactory completed, “Punch List” items and
\nlatent defects excepted. “Punch List” items are defined as being minor
\nconstruction defects or incomplete work, the non-completion of which will not
\nmaterially interfere with the use of the Premises.<\/p>\n
1.2 Term. Five (5) Lease years.<\/p>\n
1.3 Projected Commencement Date. The later to occur of June 1, 2000, or
\nupon substantial completion of the Premises, time being of the essence.<\/p>\n
1.4 Basic Monthly Rent. Eight Thousand, Two Hundred Fifty-five Dollars
\nand four Cents ($8,255.04). Basic monthly rent is calculated at the Lease rate
\nof $19.25 per square foot (annual) times the net rentable square foot of the
\nPremises adjusted to the monthly payment. Net rentable size of the Premises
\nincludes a 15% common area load factor.<\/p>\n
1.5 LANDLORD’s Operation Expenses. LANDLORD’S share of Operating
\nExpenses is computed by multiplying the number of net rentable square feet
\napplicable to the Premises and incorporating the formula as provided for in
\nSection 5.1.4 for TENANTS share of these costs. All operating expenses not paid
\nby TENANT’s shall be paid by LANDLORD as LANDLORDS operating expenses.<\/p>\n
1.6 TENANT’S Operating Expenses. TENANT’S share of Operating Expenses
\nshall be computed pursuant to Subsection 5.1.4.<\/p>\n
1.7 Security Deposit Security Deposit means an amount equal to Eight
\nThousand, Two Hundred Fifty-five Dollars and four Cents ($8,255.04).<\/p>\n
2. PARKING. The Building shall have uncovered parking spaces. Approximately five
\npercent (5%) of these spaces will be reserved for visitor parking with thirty
\n(30) minute time limits, a minimum of four (4) spaces shall be reserved for
\nhandicap parking and up to sixty (60) spaces shall be available as reserve
\nparking at a reasonable monthly fee. The remaining parking spaces shall be
\navailable to all TENANTS on a “first-come-first serve” basis and shall be at no
\ncost to TENANT or other TENANTS. TENANT’S non-reserved parking shall be provided
\nat a minimum ratio of 5 cars per 1,000 square feet of net rentable area.<\/p>\n
2.1 LANDLORD, or its agents (if LANDLORD has delegated such privileges) shall
\nhave the right to cause to be removed any cars of TENANT, its employees or
\nagents that are parked in violation hereof or in violation of the rules and
\nregulations of the Building, without liability of any kind to TENANT, its agents
\nor employees, and TENANT agrees to hold LANDLORD harmless from and defend it
\nagainst any and all claims, losses, or damages and demands asserted or arising
\nin respect to or in connection with the removal of any such automobiles as
\naforesaid. TENANT shall from time to time, upon request of LANDLORD, supply
\nLANDLORD with a list of license plate numbers of all automobiles owned by its
\nemployees or agents who are to have parking privileges hereunder. LANDLORD may,
\nas part of the regulations promulgated by it for use of the parking areas
\nrequire than TENANT cause an identification sticker issued by LANDLORD to be
\naffixed to the bumpers or other designated location of all automobiles of TENANT
\nand its employees or agents who are authorized to park in the parking areas.<\/p>\n
2.2 Parking, Privileges. In addition to the parking on the building site TENANT
\nshall have parking privileges on the following adjacent properties: Country Inn
\n& 6<\/p>\n
Suites Hotel, Giovanni’s Restaurant, and Reel Theaters. Parking privileges for
\nthe Building and for the adjacent properties provide for parking on a first come
\nfirst serve basis and are further regulated as provided for in Section 22.4 of
\nthe Lease.<\/p>\n
3. TERM.<\/p>\n
3.1 Length of Term. The initial term of this Lease shall be for the period
\ndefined as the Term, plus the partial calendar month, if any, occurring after
\nthe Actual Commencement Date (as hereinafter defined) if the Actual Commencement
\nDate occurs other than on the first day of a calendar month. Lease Year shall
\ninclude twelve (12) calendar months, except that first Lease Year will also
\ninclude any partial calendar month beginning after the Actual Commencement Date.<\/p>\n
3.2 Actual Commencement Date. The actual commencement date (Actual Commencement
\nDate) of the Term shall be the earliest of the following dates:<\/p>\n
3.2.1 The date on which the Premises are ready for Occupancy as outlined
\nin Exhibit “B” hereto;<\/p>\n
3.2.2 The date on which the Premises would have been Ready for Occupancy
\nhad there been no delay due to changes in the Final Plans requested by TENANT,
\nif any; or<\/p>\n
3.2.3 The date TENANT, with prior written consent of LANDLORD, actually
\ncommences to do business on the Premises.<\/p>\n
3.3 Acknowledgment of Actual Commencement Date. Within five (5) days
\nafter LANDLORD’S or TENANT’S request to do so, LANDLORD and TENANT shall execute
\na written acknowledgment of the Actual Commencement Date, which acknowledgment
\nshall be deemed to be part of this Lease.<\/p>\n
4. MONTHLY RENT.<\/p>\n
4.1 Basic Monthly Rent. TENANT agrees to pay LANDLORD, at 10421 South
\nJordan Gateway, Suite 600, South Jordan, Utah 84095 or at such other address
\ndesignated by LANDLORD, the Basic Monthly Rent, without prior demand therefore,
\nwithout offset or deduction and in advance before the end of first day of each
\ncalendar month during the Term, commencing on the Actual Commencement Date.
\nTENANT shall thereafter, subject to any other adjustment contained in the Lease,
\npay the monthly lease payments until the expiration of the Lease term. In the
\nevent the Actual Commencement Date occurs on a day other than the first day of a
\ncalendar month, then the Basic Monthly Rent to be paid on the first day rent is
\ndue shall include both the Basic Monthly Rent for the first full calendar month
\noccurring after the first day rent is due, plus the Basic Monthly Rent for the
\ninitial fractional calendar month prorated on a per-diem basis (based upon a
\nthirty (30) day month).<\/p>\n
4.2 Additional Rent. All charges required to be paid by TENANT
\nhereunder, including, without limitation, payments for Operating Expenses, and
\nany other amounts payable hereunder, shall be considered additional rent for the
\npurposes of this lease (Additional Rent), and TENANT shall pay Additional Rent
\nupon written demand by LANDLORD with reasonable justification or otherwise as
\nprovided in this lease.<\/p>\n
4.3 Annual Lease Rate Escalation.<\/p>\n
4.3.1 TENANT’S Basic Monthly Rent shall be increased on the first year
\nanniversary of the first day of the first full calendar month of the lease Term
\nand on each anniversary thereafter, by the amount of $ .50 (fifty cents) per
\nrentable square foot. In no event shall TENANT’S Basic Monthly Rent ever be
\ndecreased as a result of this subsection 4.3.<\/p>\n
5. TENANT’S RESPONSIBILITY FOR OPERATING EXPENSES.<\/p>\n
5.1 Definitions. The following words and phrases shall have the meanings set
\nforth below:<\/p>\n
5.1.1 Operating Year means each calendar year ending during the Term and
\nthe calendar year ending immediately following the last day of the Term.<\/p>\n
5.1.2 Operating Expenses means all actual costs and expenses incurred by
\nLANDLORD in connection with the ownership, operation, management and maintenance
\nof the Building and the Property and the related improvements located thereon
\n(the Improvements), including, but not limited to, all expenses incurred by
\nLANDLORD as a result of LANDLORD’S compliance with any and all of its
\nobligations under this Lease (or under similar leases with other TENANTS) other
\nthan the performance by LANDLORD of its construction obligations under Section I
\nhereof or similar provisions of leases within other TENANT spaces. In
\nexplanation of the foregoing, and not in limitation thereof Operating Expenses
\nshall include (except as set forth in Subsection 8.6 hereof) all fees, costs and
\nexpenses incurred by LANDLORD relating to the<\/p>\n
7<\/p>\n
following: all real and personal property taxes and assessments whether general
\nor special and any tax or assessment levied or charged in lieu thereof, whether
\nassessed against LANDLORD and\/or TENANT and whether collected from LANDLORD
\nand\/or TENANT, snow and trash removal, utilities, supplies, public liability and
\nfire insurance with extended coverage, licenses, permits and inspection, legal
\nfees incurred with respect to enforcing rules and regulations of the building
\nand evictions, accounting fees relating to operations of the Building, services
\nof independent contractors, reasonable fees and expenses incurred in property
\nmanagement, including, without limitation, compensation, employment taxes and
\nfringe benefits of all persons who perform regular and recurring duties
\nconnected with day-to-day operation, maintenance and repair of the Building, its
\nequipment and the adjacent parking area, driveways, walks and landscaped areas,
\nincluding without limitation janitorial, scavenger, gardening, security, parking
\n(whether underground, on the surface or in an elevated ramp), elevator,
\npainting, plumbing, electrical, carpentry, heating, ventilation,
\nair-conditioning, window washing, signing, but excluding persons performing
\nservices not uniformly available to or performed for substantially all TENANTS
\nof the Building; rental or a reasonable allowance for depreciation of personal
\nproperty used in the maintenance, operation and repair of the Building. All
\nOperating Expenses shall be computed on an annual basis. Operating expenses to
\nbe prorated among the TENANTS as provided for herein shall not include those
\nexpenses in excess of normal operating expenses referenced in this section
\nand\/or those expenses separately accounted for and paid directly by a specific
\nTENANT. Operating Expenses shall not include depreciation on the Building and
\nthe Improvements, income taxes of LANDLORD, costs specifically charged to and
\nrecovered from other TENANTS, insurance and condemnation proceeds, costs for
\ncorrections of defects in the original construction of the Building, lease
\ncommissions pertaining to the initial rental of office space in the Building,
\ncapital additions to the Building or amounts paid toward principal or interest
\non loans to LANDLORD.<\/p>\n
5.1.3 Estimated Operating Expenses means the projected amount of
\nOperating Expenses for any given Operating Year as estimated by LANDLORD, in its
\nsole discretion.<\/p>\n
5.1.4 TENANT’S share of Operating Expenses for the first calendar year
\nshall be the amount in excess of year 2000 (prorated) expenses per net rentable
\nsquare foot applicable to the Premises or $5.25 per square foot, whichever is
\ngreater.<\/p>\n
5.1.4.1 For purposes of determining TENANT’S share of Operating
\nExpenses, the net rentable square feet of the building is 64,464 square feet.
\nTENANT’S Premises are equal to 8% of the net rentable square feet in the
\nbuilding.<\/p>\n
5.1.5 TENANT’S Share of Operating Expenses for any fractional calendar
\nyear shall be calculated by determining TENANT’S share of Operating Expenses for
\nthe relevant calendar year and then prorating such amount over the fractional
\nperiod of such calendar year.<\/p>\n
5.1.6 TENANT’S Share of Estimated Operating Expenses for a calendar year
\nmeans Operating Expenses reasonably estimated by LANDLORD to be in excess of
\nyear 2000 (prorated) expenses per net rentable square foot applicable to the
\nPremises, subject to the limitation set forth in paragraph 5. 1.8.<\/p>\n
5.1.7 TENANT’S share of Estimated Operating Expenses for any fractional
\ncalendar year shall be calculated by determining TENANT’S Share of Estimated
\nOperating Expenses for the relevant calendar year and then prorating amount over
\nthe fractional period of such calendar year.<\/p>\n
5.1.8. TENANT’S share of operating expenses for the first full calendar
\nyear and any fraction thereof shall be determined as provided for herein.<\/p>\n
5.2 Statement of Operating Expenses and Estimated Operating Expenses.<\/p>\n
5.2.1 Within One Hundred Twenty (120) days after the expiration of the
\nsecond Operating Year, and each successive year thereafter, LANDLORD shall
\nfurnish TENANT with a written statement showing in reasonable detail the
\ncomputation of TENANT’S Share of Operating Expenses if any, for such year and
\nthe amount by which such amount exceeds or is less than the amounts paid by
\nTENANT during such year pursuant to Subsection 5.1.2.<\/p>\n
5.2.2 LANDLORD, upon written request, will furnish TENANT from time to
\ntime, written statements showing in reasonable detail the computation of
\nTENANT’S Share of Estimated Operating Expenses.<\/p>\n
5.3 Payment of Additional Rent. TENANT shall pay as additional rent
\n(Additional Rent) the following amounts at the times indicated:<\/p>\n
5.3.1 Within thirty (30) days after delivery of the written statement
\nreferred to in Subsection 5.2.1 hereof, TENANT shall pay to LANDLORD, without
\noffset or deduction, the amount by which TENANT’S Share of Operating Expenses,
\nas specified in such written statement, exceeds the amount of Estimated
\nOperating Expenses actually paid by TENANT for the year at issue. Payments by
\nTENANT shall be made<\/p>\n
8<\/p>\n
pursuant to this Subsection 5.3.1 notwithstanding that a statement pursuant to
\nsubsection 5.2.1 is furnished to TENANT after the expiration of the Term.<\/p>\n
5.3.2 With each payment of Basic Monthly Rent made pursuant to Section 4
\nhereof, TENANT shall pay to LANDLORD, without offset or deduction, one-twelfth
\n(1\/12th) of TENANT’S Share of Estimated Operating Expenses as specified in the
\nlast written statement delivered to TENANT pursuant to Subsection 5.2.2.<\/p>\n
5.3.3 If the written statement delivered pursuant to Subsection 5.2.1
\nindicates that the amount actually paid by TENANT pursuant to subsection 5.3.1
\nfor any year exceeds TENANT’S Share of Operating Expenses for the same year,
\nLANDLORD, at its election, and within 30 days of receipt of the written
\nstatement, (i) pay the amount of such excess to TENANT or (ii) apply such excess
\nagainst any amount payable by TENANT.<\/p>\n
5.3.4 No failure by LANDLORD to require the payment of Additional Rent
\nby TENANT for any period shall constitute a waiver of LANDLORD’S right to
\ncollect such Additional Rent for such period or for any subsequent period.<\/p>\n
5.4 Resolution of Disagreement. Every statement given by LANDLORD
\npursuant to Subsection 5.2 hereof shall be conclusive and binding upon TENANT
\nunless within forty-five (45) days after the receipt of such statement TENANT
\nnotifies LANDLORD in writing that it disputes the correctness thereof,
\nspecifying the particular respects in which the statement is claimed to be
\nincorrect. Pending the determination of such dispute by agreement between
\nLANDLORD and TENANT, TENANT shall, within thirty (30) days after receipt of such
\nstatement, pay Additional Rent in accordance with LANDLORD’S statement, and such
\npayment shall be without prejudice to TENANT’S position. If the dispute shall be
\ndetermined in TENANT’S favor, LANDLORD shall forthwith apply the amount of
\nTENANT’S overpayment of rents resulting from compliance with LANDLORD’S
\nstatement, without interest being due thereon, in accordance with Subsection
\n5.3.3 hereof. LANDLORD agrees to grant to an independent certified public
\naccountant retained by TENANT reasonable access to LANDLORD’S books and records
\nfor the purpose of verifying Operating Expenses incurred by LANDLORD, at
\nTENANT’S sole expense. If there is more than a 5% discrepancy, LANDLORD will pay
\nfor the costs of TENANT’S accountant to a maximum of $500<\/p>\n
5.5 Limitation. Nothing contained in this Section 5 shall be construed
\nso as to reduce the installments of Basic Monthly Rent payable hereunder below
\nthe amount set forth in Section 1.<\/p>\n
6. SECURITY DEPOSIT. Upon execution of this lease, TENANT will deposit
\nthe security deposit as provided for in Section 1.7 with LANDLORD as security
\nfor the full, faithful, and timely performance of every provision of this lease
\nto be performed by TENANT. If TENANT defaults with respect to any provision of
\nthis lease, including but not limited to the provisions relating to the payment
\nof rent, LANDLORD may use, apply, or retain all or any part of the security
\ndeposit for the payment of any rent, or any other sum in default, or for the
\npayment of any other amount LANDLORD may spend or become obligated to spend by
\nreason of TENANT’S default, or to compensate LANDLORD for any other loss or
\ndamage LANDLORD may suffer by reason of TENANT’S default. If any portion of the
\nsecurity deposit is so used, applied, or retained, TENANT will within 5 days
\nafter written demand deposit cash with LANDLORD in an amount sufficient to
\nrestore the security deposit to its original amount. LANDLORD will not be
\nrequired to keep the security deposit separate from its general funds, and
\nTENANT will not be entitled to interest on the security deposit. The security
\ndeposit will not be deemed a limitation on LANDLORD’S damages or a payment of
\nliquidated damages or a payment of the monthly rent due for the last month of
\nthe term. If TENANT fully, faithfully, and timely performs every provision of
\nthis lease to be performed by it, the security deposit or any balance of the
\nsecurity deposit will be returned to TENANT within 30 days after the expiration
\nor earlier termination as provided for in the Lease of the term.<\/p>\n
7. USE.<\/p>\n
7.1 Use of Premises. TENANT shall not use or permit the Premises or any
\npart thereof to be used for any purpose other than for general office purposes.<\/p>\n
7.2 Prohibition of Certain Activities or Uses.<\/p>\n
7.2.1 TENANT shall not do or permit anything to be done in the Building
\nor on the Land which shall:<\/p>\n
7.2.1. I Increase the existing rate or violate the provisions of any
\ninsurance carried with respect to the Building or any contents of such Building.<\/p>\n
7.2.1.2 Create any public or private nuisance, commit waste, or disturb
\nthe quiet enjoyment of any other occupant of the Building.<\/p>\n
7.2.1.3 Violate any present or future law, ordinance, regulation or
\nrequirement of any governmental authority or any restriction or covenant
\nexisting with respect to the Premises or Building or Land whereon it is located.<\/p>\n
9<\/p>\n
7.2.1.4 Overload the floors or otherwise damage the structure of the
\nBuilding.<\/p>\n
7.2.1.5 Constitute an immoral or illegal purpose.<\/p>\n
7.2.1.6 Increase the cost of electricity, natural gas or other utility
\nservice beyond that level permitted below by Section 8.<\/p>\n
7.2.1.7 Subject LANDLORD or any other TENANT to any liability to any
\nthird party.<\/p>\n
7.2.2 TENANT shall not bring into or permit the placing within the
\nPremises of any machine, personal property or fixture heavier than customarily
\nused in connection with general office purposes without prior written consent of
\nLANDLORD.<\/p>\n
7.2.3 Subject to the provisions of Paragraph 23, Exhibit B or Exhibit F,
\nTENANT shall not place any holes in any part of the Premises or place any
\nexterior signs or interior drapes, blinds or similar items visible from outside
\nthe Premises or the Building without prior written consent of LANDLORD.<\/p>\n
7.3 Affirmative Obligations with Respect to Use. TENANT shall, at its sole cost
\nand expense:<\/p>\n
7.3.1 Comply with all present and future governmental laws, ordinances,
\nregulations and requirements in its occupancy of the Premises.<\/p>\n
7.3.2 Comply with the requirements of any board of fire underwriters or
\nother similar body relating to the Premises, excluding structural changes not
\ncaused by the Improvements or the nature of TENANT’S occupancy of the Premises.<\/p>\n
7.3.3 Keep the Premises in a clean and orderly condition, free of
\nobjectional noises, odors or nuisances subject to LANDLORD’S janitorial service
\nrequirements.<\/p>\n
7.4 Suitability. TENANT acknowledges that, except as expressly set forth
\nin this Lease, neither LANDLORD nor any other person has made any representation
\nor warranty with respect to the Premises or any other portion of the Building or
\nImprovements, nor has LANDLORD agreed to undertake any modification, alteration
\nor improvement thereof. Specifically, but not in limitation of the foregoing, no
\nrepresentation has been made or relied upon concerning the suitability of the
\nPremises or any other portion of the Building or Improvements for the conduct of
\nTENANT’S business. As to matters that are identifiable by visual inspection, the
\nPremises, Building and Improvements (and each and every part thereof) shall be
\ndeemed to be in satisfactory condition unless, on or before the Actual
\nCommencement Date, TENANT shall give LANDLORD written notice specifying, in
\nreasonable detail, the respects in which the Premises, Building or Improvements
\nare not in satisfactory condition.<\/p>\n
7.5 Taxes. Notwithstanding Subsection 5.1.2 or any other Lease
\nprovision, TENANT shall have sole responsibility for and shall pay all taxes,
\nassessments, charges and fees which during the Term may be imposed, assessed or
\nlevied by any governmental or public authority against or upon TENANT, TENANT’S
\nuse of the Premises or any personal property or fixture kept or installed
\ntherein by TENANT.<\/p>\n
8. UTILITIES AND SERVICE.<\/p>\n
8.1 Obligations of LANDLORD. During the Term of this lease, subject to
\nthe limitation in Subsection 8.6, and so long as TENANT is not in material
\nmonetary default under this lease, LANDLORD agrees to cause to be furnished to
\nthe Premises during customary business hours and during generally recognized
\nbusiness days, in such manner as is customary in similar buildings in the same
\ngeographical areas, the following utilities and services (the cost of which
\nshall be included within Operating Expenses):<\/p>\n
8.1.1 Electricity, water, gas and sewer service shall be provided to
\nTENANT’S Premises 24 hours per day.<\/p>\n
8.1.2 Telephone connection to the core space on the ground floor of the
\nbuilding but not including wiring from the core or telephone stations and
\nequipment (it being expressly understood and agreed that TENANT shall be
\nresponsible for the ordering, installation, and cost of telephone lines and
\nequipment from the ground floor telephone room.<\/p>\n
8.1.3 Snow and trash removal service.<\/p>\n
8.1.4 Landscaping and grounds-keeping service.<\/p>\n
10<\/p>\n
8.1.5 Elevator service 24 hours per day.<\/p>\n
8.1.6 Reasonable daily janitorial service, weekends and national
\nholidays excluded; provided, that if TENANT’S floor covering or other
\nimprovements are other than standard for the Building, TENANT shall pay the
\nadditional cleaning costs, if any, attributable thereto as Additional Rent upon
\npresentation of a written statement relating thereto by LANDLORD.<\/p>\n
8.1.7 Heating, overheat lighting, ventilation and air conditioning
\nreasonably necessary for the comfortable use and occupancy of the Premises
\nduring customary business hours. For purposes of this Subsection, customary
\nbusiness hours shall be from 7:00 a.m. to 6:00 p.m., Monday through Friday, and
\nfrom 7:30 a.m. to 12:00 noon on Saturday, excluding legal holidays.<\/p>\n
8.1.8 Window washing of the exterior windows; not more than three times
\nor less than I time per annum.<\/p>\n
8.2 Additional Services. LANDLORD shall have no obligation to provide
\nutilities, overhead lighting, heating, air conditioning and\/or cleaning services
\nto TENANT beyond the standard services set forth in Subsection 8.1 above, or at
\ntimes other than during the Business Hours, as defined in the Rules and
\nRegulations, but if LANDLORD elects to provide such additional services at
\nTENANT’S request, TENANT shall pay LANDLORD’s reasonable charge for such special
\nservices as Additional rent.<\/p>\n
8.3 Utilities Consumption. TENANT shall not, without the prior written
\nconsent of LANDLORD, use any apparatus or device in the Premises which will in
\nany way increase the amount of gas, electricity or water usually furnished or
\nsupplied for use of the Premises as general office space; nor connect with
\nelectric current, except through existing electrical outlets in the Premises, or
\nwater pipes or gas outlets, any apparatus or device for the purposes of using
\ngas, electrical current or water. If TENANT shall require water or electric
\ncurrent or any other service in excess of that usually furnished or supplied for
\nuse on the Premises as general office space, TENANT shall first obtain the prior
\nwritten consent of LANDLORD, which LANDLORD will not unreasonably withhold or
\ndelay for the use thereof, and LANDLORD may cause a special meter to be
\ninstalled in the Premises so as to measure the amount of water. electric current
\nor other service consumed. The cost of any such meters and of installation,
\nmaintenance, and repair thereof shall be paid for by TENANT, and TENANT agrees
\nto pay LANDLORD promptly upon demand by LANDLORD for all such water, electric
\ncurrent or other service consumed, as shown by said meters, at rates charged by
\nthe local public utility furnishing the same, plus any additional expense
\nincurred in keeping account of the water, electric current or other service so
\nconsumed. In each such case, the costs for administering such methods shall be
\nborne by TENANT.<\/p>\n
8.4 TENANT’S Obligations. TENANT shall arrange and pay for, prior to
\ndelinquency, the entire cost and expense of all telephone wiring from the first
\nfloor telephone closet to Premises. Telephone stations, and phone equipment,
\nwiring inside the Premises, use charges, and all other communication materials
\nand services shall be provided and paid for by TENANT.<\/p>\n
8.5 Non Business Hour HVAC and Overhead Lighting. LANDLORD shall provide
\nTENANT, at TENANT’S request, with heat and air conditioning and overhead
\nlighting outside the customary Business hours, as defined in the Rules and
\nRegulations, at the rate of Twenty Dollars ($20.00) per hour. LANDLORD shall
\ndetermine the amount of such usage during Non Business Hours by the installation
\nof a separate time meter or other measuring device. LANDLORD shall deliver to
\nTENANT a statement (Statement), on a monthly basis, of TENANT’S Non Business
\nHours use of heat and air conditioning and overhead lighting for the previous
\nmonth. TENANT shall pay the amount owing to LANDLORD as set forth in the
\nStatement, as Additional Rent, within fifteen (15) days after TENANT’S receipt
\nof the Statement. If the HVAC or lighting System of the Building is modified or
\nLANDLORD’S operating costs change and as a result of such modification or change
\nLANDLORD offers a rate for after hours usage lower or higher than Twenty Dollars
\n($20.00) per hour to the Building in general, LANDLORD shall accept, and TENANT
\nshall pay, such lower or higher amount.<\/p>\n
8.6 Limitation on LANDLORD’S Liability. LANDLORD shall not be liable for
\nand TENANT shall not be entitled to terminate this Lease, to effectuate any
\nabatement or reduction of rent or to collect any damages by reason of LANDLORD’S
\nfailure to provide or furnish any of the utilities or services set forth in
\nSubsection 8 hereof if such failure was occasioned by any strike or labor
\ncontroversy, any act or default of TENANT, the inability of LANDLORD to obtain
\nservices from the company supplying the same or any cause beyond the reasonable
\ncontrol of LANDLORD; provided, however, that if such delay or service
\ninterruption continues for a period in excess of ten ( 10) consecutive days or
\nfor ten ( 10) days in a twenty (20) day period, and such delay or interruption
\nrenders the Premises or any portion thereof untenantable for TENANT’S normal
\nbusiness operations, the rent shall thereafter be abated in proportion to the
\nunusable portion of the Premises for the period of such non-usability. In no
\nevent shall LANDLORD be liable for loss or injury to persons or property,
\nhowever arising, occurring in connection with or attributable to any failure to
\nfurnish such utilities or services if outside the control of LANDLORD.<\/p>\n
8.6.1 TENANT shall promptly notify LANDLORD in writing of any
\ndeficiencies or loss of services as provided for in Section 8 of the Lease to
\nTENANT’s Premises. Upon notification and provided loss of service is not caused
\nby circumstances beyond LANDLORD’s control, then LANDLORD<\/p>\n
11<\/p>\n
shall promptly, at LANDLORD’s cost, provide for the corrections necessary for
\nTENANT to have use of TENANT’s Premises as provided for in the Lease.<\/p>\n
In the event LANDLORD does not provide for corrections, within their
\ncontrol, in a reasonable period of time and subject to a second written notice
\nto LANDLORD, TENANT may provide for the correction of any such deficiencies and
\ndeduct the reasonable cost thereof from TENANT’s lease payment.<\/p>\n
9. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS.<\/p>\n
9.1 Maintenance and Repairs by LANDLORD. LANDLORD as part of operating
\nexpense shall maintain in good order, condition and repair the Building, the
\nCommon Areas and the Improvements, excluding the Premises and those other
\nportions of the Building leased, rented or otherwise occupied by persons not
\naffiliated with LANDLORD. LANDLORD shall supply and pay for regular janitorial
\nand cleaning services reasonably required, exclusive of weekends and national
\nholidays, to keep the Building and Improvements in a clean, sanitary and orderly
\ncondition, the cost and expense of which shall be included in Operating
\nExpenses.<\/p>\n
9.2 Maintenance and Repairs by TENANT. Subject to LANDLORD’S obligation
\nto provide janitorial service, TENANT shall maintain the Premises in good order,
\ncondition and repair, reasonable wear and tear excepted, including without
\nlimitation, the following: electric light bulbs (but not including fluorescent
\nlights and ballasts used in overhead fixtures originally installed in the
\nPremises, which LANDLORD shall maintain and replace as necessary); the interior
\nsurfaces of the ceilings, walls, interior windows; and all equipment and
\nfixtures installed by TENANT. In the event that TENANT fails to maintain the
\nPremises in good order, condition and repair, LANDLORD shall give TENANT notice
\nto do such acts as are reasonably required to so maintain the Premises. In the
\nevent that TENANT fails to promptly commence such work and diligently prosecute
\nit to completion, LANDLORD shall have the right to do such acts and expend such
\nfunds at the expense of TENANT as are reasonably required to perform such work.
\nAny amount so expended by LANDLORD shall be paid by TENANT promptly upon demand
\ntherefore with interest thereon from the date of such expenditure at the greater
\nof the prime or base rate then charged by Zion’s First National Bank of Utah,
\nN.A. plus two percent (2%) or eighteen percent (18%) per annum (the Interest
\nRate). LANDLORD shall have no liability to TENANT for any damage, inconvenience
\nor interference with the use of the Premises by TENANT as a result of performing
\nany such work<\/p>\n
9.3 Alterations.<\/p>\n
9.3. 1 General.<\/p>\n
9.3.1.1 During the term, TENANT will not make or allow to be made any
\nstructural alterations, additions, or improvements to or of the premises or any
\npart of the premises, or attach any fixtures or equipment to the premises,
\nwithout first obtaining LANDLORD’S written consent which shall not be
\nunreasonably withheld or delayed. All such alterations, additions, and
\nimprovements consented to by LANDLORD, and capital improvements that are
\nrequired to be made to the project as a result of the nature of TENANT’S use of
\nthe premise shall:<\/p>\n
9.3. I .1.1 Be performed by contractors approved by LANDLORD and subject
\nto conditions specified by LANDLORD (which may include requiring the posting of
\na mechanic’s or materialmen’s lien bond,) certificates issued by applicable
\ninsurance companies evidencing that workmen’s compensation, personal injury
\nliability and property damage insurance are in force and effect and are
\nmaintained by all contractors and subcontractors); and,<\/p>\n
9.3.1.1.2 Conform to the applicable building codes, A.D.A. and any
\napplicable fire codes: and.<\/p>\n
9.3.1.1.3 At LANDLORD’S option, will be made by LANDLORD for TENANT’S
\naccount, provided LANDLORD bids are equal to or better than bids received by
\nTENANT for the same work and TENANT will reimburse LANDLORD for their cost
\n(including 15% for LANDLORD’S overhead) within 10 days after receipt of a
\nstatement of such cost.<\/p>\n
9.3.1.2 Permanent alterations, additions, fixtures, and improvements,
\nincluding but not limited to built in cabinetry and work stations, made in or
\nupon the premises either by TENANT or LANDLORD, will immediately become
\nLANDLORD’S property and at the end of the term will remain on the premises
\nwithout compensation to TENANT, unless when consenting to such alterations,
\nadditions, fixtures, or improvements, LANDLORD has advised TENANT in writing
\nthat such alterations, additions, fixtures, or improvements must be removed at
\nthe expiration or other termination of this Lease.<\/p>\n
9.3.1.3 Notwithstanding the provisions of paragraph 9.3.1.1 above,
\nLANDLORD consents to TENANT making alterations to the Premises so long as the
\ncost does not exceed Three Thousand Dollars ($3,000.00) per alteration and so
\nlong as such alterations do not unreasonably increase power<\/p>\n
12<\/p>\n
usage and does not include electrical or plumbing systems. LANDLORD will not
\nrequire approval of the contractor or the posting of a performance bond, nor
\nwill LANDLORD charge TENANT an overhead charge for said alterations performed by
\nTENANT.<\/p>\n
9.3.2 Free-Standing Partitions. TENANT will have the right to install
\nfree-standing work station partitions, without LANDLORD’S prior written consent,
\nso long as no building or other governmental permit is required for their
\ninstallation or relocation; however, if a permit is required, LANDLORD will not
\nunreasonably withhold its consent to such relocation or installation. The
\nfree-standing work station partitions for which TENANT pays will be part of
\nTENANT’S trade fixtures for all purposes under this Lease. All other partitions
\ninstalled in the Premises are and will be LANDLORD’S property for all purposes
\nunder this Lease.<\/p>\n
9.3.3 Removal. If LANDLORD has required TENANT to remove any or all
\nalterations, additions, fixtures, and improvements that are made in or upon the
\nPremises pursuant to this Section 9 prior to the expiration date, TENANT will
\nrepair any damages to the Premises caused by the removal of the items as
\nreferenced herein.<\/p>\n
9.4 LANDLORD’S Access to Leased Premises. LANDLORD shall have the right
\nto place, maintain and repair all utility equipment of any kind in, over, upon
\nand under the Premises as may be necessary for the servicing of the Premises and
\nany other portion of the Building. LANDLORD also shall have the right to enter
\nthe Premises at all reasonable times in order to inspect the same, to supply
\njanitorial service and any other service to be provided by LANDLORD to TENANT
\nhereunder, to exhibit the Premises to prospective purchasers, mortgagees,
\nTENANTS and lessees, and to make required repairs as necessary. LANDLORD shall
\nbe allowed to take all material upon the Premises that may be required therefor
\nwithout the same constituting an actual or constructive eviction of TENANT in
\nwhole or in part and the rents and other monetary obligations reserved herein
\nshall in no wise abate, except as expressly provided in Subsection 8.6, while
\nsuch work is in progress by reason of loss or interruption of TENANT’S business
\nor otherwise. LANDLORD shall at all times have and retain a key with which to
\nunlock all the doors in, upon and about the Premises, excluding TENANT’S vaults
\nand safes. LANDLORD shall have the right to use any and all means which LANDLORD
\nmay deem proper to open such doors in an emergency in order to obtain entry to
\nthe Premises. Any entry to the Premises obtained by LANDLORD shall not under any
\ncircumstances be construed or deemed to be a forcible or unlawful entry into or
\ndetainer of the Premises or an eviction of TENANT from any portion of the
\nPremises. LANDLORD shall be permitted to show the premises to prospective
\nlessees during the last 12 months of the Lease. Any such showings shall be
\nduring reasonable hours, with reasonable notice to TENANT and shall not
\nmaterially interfere with TENANT’S business.<\/p>\n
10. LIENS.<\/p>\n
TENANT shall keep the building and the property free from any liens
\narising out of work performed on or materials furnished to the Premises or
\nobligations incurred by TENANT and shall indemnify, hold harmless and defend
\nLANDLORD from any liens and encumbrances arising out of any work performed or
\nany materials furnished by or at the direction of TENANT. In the event that
\nwithin ten ( 10) days following the imposition of any such lien or encumbrance
\nTENANT shall not cause such lien or encumbrance to be released of record by
\npayment or posting of a proper bond, LANDLORD shall have, in addition to all
\nother remedies provided herein and by law the right, but not the obligation, to
\ncause the same to be released by such means as it shall deem proper, including
\npayment of the claim giving rise to such lien or encumbrance. All such sums paid
\nby LANDLORD and all expenses incurred by LANDLORD in connection therewith
\nincluding attorney’s fees and costs shall be payable to LANDLORD by TENANT upon
\ndemand with interest thereon at the Interest Rate. LANDLORD shall have the right
\nat all times to post and keep posted on the Premises any notices permitted or
\nrequired by law, or which LANDLORD shall deem proper, for the protection of
\nLANDLORD and the Premises and any other party having an interest therein from
\nmechanics’ and materialmen’s liens, and TENANT shall give to LANDLORD at least
\nten ( 10) business days prior written notice of the expected date of
\ncommencement of any work relating to alterations or additions to the Premises.<\/p>\n
11. ASSIGNMENT.<\/p>\n
11.1 General. TENANT, for itself, its heirs, distributees, executors,
\nadministrators, legal representatives, successors, and assigns, covenants that
\nit will not assign, mortgage, or encumber this Lease, nor sublease, nor permit
\nthe premises or any part of the premises to be used or occupied by others,
\nwithout the prior written consent of LANDLORD in each instance, which consent
\nwill not be unreasonably withheld or delayed. Any assignment or sublease in
\nviolation of this Lease will be void. If this Lease is assigned, or if the
\npremises or any part of the premises are subleased or occupied by anyone other
\nthan TENANT, LANDLORD may, after default by TENANT, collect rent from the
\nassignee, subtenant, or occupant, and apply the net amount collected to rent. No
\nassignment, sublease, occupancy, or collection will be deemed (a) a waiver of
\nthe provisions of this Lease; (b) the acceptance of the assignee, subtenant, or
\noccupant as TENANT; or (c) a release of TENANT from the further performance by
\nTENANT of covenants on the part of TENANT contained in this Lease. The consent
\nby LANDLORD to an assignment or sublease will not be construed to relieve TENANT
\nfrom obtaining LANDLORD’S prior written consent in writing to any further
\nassignment or sublease. No permitted subtenant may assign or encumber its
\nsublease or further sublease all or any portion of its subleased space, or
\notherwise permit the subleased space or any part of its subleased space to be
\nused or occupied by others, without LANDLORD’S prior written consent in each
\ninstance.<\/p>\n
13<\/p>\n
11.2 Submission of Information. If TENANT requests LANDLORD’S consent to
\na specific assignment or subletting, TENANT will submit in writing to LANDLORD
\n(a) the name and address of the proposed assignee or subtenant; (b) the business
\nterms of the proposed assignment or sublease; (c) reasonably satisfactory
\ninformation as to the nature and character of the business of the proposed
\nassignee or subtenant, and as to the nature of its proposed use of the space;
\n(d) banking, financial, or other credit information reasonably sufficient to
\nenable LANDLORD to determine the financial responsibility and character of the
\nproposed assignee or subtenant; and (e) the proposed form of assignment or
\nsublease for LANDLORD’S approval.<\/p>\n
11.3 Payments to LANDLORD. If LANDLORD consents to a proposed assignment
\nor sublease, then LANDLORD will have the right to require TENANT to pay to
\nLANDLORD a sum equal to (a) ‘\/z of any rent or other consideration paid to
\nTENANT by any proposed transferee that (after first deducting the costs of
\nTENANT, if any, in effecting the assignment or sublease, including reasonable
\nalterations costs, commissions, legal fees, TENANT’S relocation costs and the
\nunamortized portion of TENANT Improvements installed by TENANT) is in excess of
\nthe rent allocable to the transferred space then being paid by TENANT to
\nLANDLORD pursuant to this Lease; (b) ‘\/: of any other profit or gain (after
\nfirst deducting any necessary expenses incurred) realized by TENANT from any
\nsuch sublease or assignment and (c) LANDLORD’S reasonable attorneys’ fees and
\ncosts incurred in connection with negotiation, review, and processing of the
\ntransfer. All such sums payable will be payable to LANDLORD at the time the next
\npayment of monthly rent is due.<\/p>\n
11.4 Confirmation of Lease. Sale of ownership of TENANT or of a majority
\nof ownership of TENANT shall be considered an assignment as defined in Section
\n11 of the Lease. Terms and conditions of the Lease shall not be affected and
\nwill not require LANDLORD’S consent provided successor in ownership reaffirms
\nthe terms and conditions of the Lease in writing to LANDLORD within thirty (30)
\ndays of sale of ownership.<\/p>\n
12. INDEMNITY.<\/p>\n
12.1 Indemnification. Each party hereto shall indemnify, defend and hold
\nthe other harmless from and against (i) any and all liability, penalties,
\nlosses, damages, costs and expenses, demands, causes of action, claims or
\njudgements arising from or growing out of any injury to any person or persons or
\nany damage to any property as a result of any accident or other occurrence
\nduring the Term occasioned in any way as a result of the indemnifying parties
\nofficers’, employees’, agents’, servants’, subtenants’, concessionaires’,
\nlicensees’, contractors’, or invites’ use, maintenance, alteration, occupation,
\nor operation of the Premises, Building or Improvements during the Term, and (ii)
\nfrom and against all costs and charges, including attorneys’ fees and
\ninvestigation costs, incurred in and about any of such matters and the defense
\nof any action arising out of the same or in discharging the parcel or any part
\nthereof from any and all liens, charges or judgements which may accrue or be
\nplaced thereon by reason of any act or omission of the indemnifying party. The
\nindemnifying party’s obligations pursuant to the foregoing indemnity shall
\nsurvive the termination of this Lease. In case any proceeding is brought against
\nthe indemnified party by reason of any such claim, the indemnifying party, upon
\nnotice from the indemnified party, shall defend the same at the indemnifying
\nparty’s expense by counsel reasonably satisfactory to the indemnified party.<\/p>\n
12.2 Release. LANDLORD and TENANT each hereby release and relieve the
\nother, and each waives its entire right of recovery against the other, or
\nagainst any other TENANT or occupant of the Building, or against the officers,
\ndirectors, shareholders, partners, joint venturers, employees, agents,
\ncustomers, invitees, or business visitors of such other party or of such other
\nTENANT or occupant of the Building, for loss or damage arising out of or
\nincident to the perils which the releasing party is required to insure against
\nunder provisions of Paragraph 13, which perils occur in, on, or about the
\npremises or the building of which the premises are a part, whether due to the
\nnegligence of LANDLORD or TENANT or their respective agents, employees,
\ncontractors, or invites, if and to the extent that such loss or damage (i) is
\nactually compensated by insurance or (ii) would have been compensated by
\ninsurance except for the fact that the insuring company availed itself of a
\ndefense arising from the action or failure to act of the releasing party, its
\nemployees or agents. Each party shall, upon obtaining the policies of insurance
\nwhich it is required to maintain under this Lease, give notice to its insurance
\ncompany or companies that the foregoing mutual waiver of subrogation is
\ncontained in this lease. Each party shall cause each such insurance policy
\nobtained by it to provide that the insurance company waive all rights of
\nrecovery by way of subrogation against either party in connection with any
\ndamage or liability covered by such policy. If any insurance policy cannot be
\nobtained with a waiver of subrogation, or is obtainable only by the payment of
\nan additional premium charge above that charged by insurance companies issuing
\npolicies with out waiver of subrogation, the party undertaking to obtain the
\ninsurance shall notify the other party of such fact. The other party shall have
\na period of ten ( 10) days after receiving the notice either to place the
\ninsurance with a company that is reasonably satisfactory to the other party and
\nthat will carry the insurance with a waiver of subrogation, or to agree to pay
\nthe additional premium if such a policy is obtainable at additional cost. If the
\ninsurance cannot be obtained with a waiver of subrogation or the party in whose
\nfavor a waiver of subrogation is desired refuses to pay the additional premium
\ncharge, the other party shall be relieved of the obligation to obtain a waiver
\nof subrogation rights with respect to that particular insurance policy.<\/p>\n
12.3 Notice. TENANT shall give notice to LANDLORD in case of fire or
\nmaterial accidents in the Premises or of material defects therein or in any
\nfixtures or equipment thereon located.<\/p>\n
12.4 Litigation. In case LANDLORD, without fault on its part, shall be
\nmade a party to any litigation commenced by or against TENANT, TENANT shall
\nprotect and hold LANDLORD harmless and shall pay all costs, expenses, and
\nreasonable attorneys’ fees incurred therein. In case TENANT, without fault on
\nits part, shall be made a party to any litigation commenced by or against
\nLANDLORD, LANDLORD shall protect and hold<\/p>\n
14<\/p>\n
TENANT harmless and shall pay all costs, expenses, and reasonable attorneys’
\nfees incurred therein.<\/p>\n
13. INSURANCE.<\/p>\n
13.1 LANDLORD’S Insurance. At all times during the term, LANDLORD will carry and
\nmaintain:<\/p>\n
13.1.1 Fire and extended coverage insurance covering the Building, its
\nequipment, common area furnishings, and leasehold improvements in the Premises
\nto the extent of the TENANT finish allowance;<\/p>\n
13.1.2 Bodily injury and property damage insurance with a combined
\nsingle occurrence limit of not less than $2.000.000: and<\/p>\n
13.1.3 Such other insurance as LANDLORD reasonably determines from time
\nto time.<\/p>\n
The insurance coverages and amounts in this Section 13.1 will be reasonably
\ndetermined by LANDLORD, based on coverages carried by prudent owners of
\ncomparable buildings in the vicinity of the project, and such insurance as may
\nreasonably be required by mortgage lenders.<\/p>\n
13.2 TENANT’S Insurance. At all times during the term, TENANT will carry
\nand maintain, at TENANT’S expense, the following insurance, in the amounts
\nspecified below or such other amounts as LANDLORD may from time to time
\nreasonably request, with insurance companies and on forms satisfactory to
\nLANDLORD:<\/p>\n
13.2.1 Bodily injury and property damage liability insurance, with a
\ncombined single occurrence limit of not less than $3,000,000. All such insurance
\nwill be equivalent to coverage offered by a commercial general liability form,
\nincluding without limitation personal injury and contractual liability coverage
\nfor the performance by TENANT of the indemnity agreements set forth in this
\nLease:<\/p>\n
13.2.2 Insurance covering all of TENANT’S furniture and fixtures,
\nmachinery, equipment, stock, and any other personal property owned and used in
\nTENANT’S business and found in, on, or about the project, and any leasehold
\nimprovements to the premises in excess of the allowance, if any, in an amount
\nnot less than the full replacement cost. Property forms will provide coverage on
\na broad form basis insuring against “all risks of direct physical loss.” All
\npolicy proceeds will be used for the repair or replacement of the property
\ndamaged or destroyed; however, if this Lease ceases under the provisions of
\nsection 14, TENANT will be entitled to any proceeds resulting from damage to
\nTENANT’S furniture and fixtures, machinery, equipment, stock, and any other
\npersonal property;<\/p>\n
13.2.3 Worker’s compensation insurance insuring against and satisfying
\nTENANT’S obligations and liabilities under the worker’s compensation laws of the
\nstate in which the premises are located, including employer’s liability
\ninsurance in the limits required by the laws of the state in which the project
\nis located; and<\/p>\n
13.2.4 If TENANT operates owned, hired, or nonowner vehicles on the
\nProperty, comprehensive automobile liability at a limit of liability not less
\nthan $500,000 combined bodily injury and property damage.<\/p>\n
13.3 Forms of Policies. Certificates of insurance, together with copies
\nof the endorsements, when applicable, naming LANDLORD and any others specified
\nby LANDLORD as additional insures, at the sole discretion of LANDLORD, will be
\ndelivered to LANDLORD prior to TENANT’S occupancy of the premises and from time
\nto time at least 10 days prior to the expiration of the term of each such
\npolicy. All general liability and property policies maintained by TENANT will be
\nwritten as primary policies, not contributing with and not supplemental to the
\ncoverage that LANDLORD may carry.<\/p>\n
14. DAMAGE OR DESTRUCTION.<\/p>\n
14.1 LANDLORD’S Obligations. If the Premises shall be partially damaged
\nby any casualty insured against under any insurance policy maintained by
\nLANDLORD, LANDLORD shall, upon receipt of the insurance proceeds, repair the
\nPremises within 180 days of the date of damage. Until such repair is complete,
\nthe Basic Monthly Rent and Additional Rent shall be abated from the date of
\ndamage proportionately as to that portion of the Premises rendered untenantable,
\nif any. Notwithstanding the foregoing, if (a) by reason of such occurrence the
\nPremises are rendered wholly untenantable; or (b) the Premises are damaged as a
\nresult of a risk which is not covered by insurance; or (c) the Premises are
\ndamaged in whole or in part during the last six (6) months of the term hereof or
\nof any renewal hereof; or (d) the Premises or the Building (whether the Premises
\nare damaged or not) is damaged to the extent of fifty percent (50%) or more of
\nthen-monetary value thereof, LANDLORD may either elect to repair the damage or
\nLANDLORD or TENANT may cancel this Lease by notice of cancellation within ninety
\n(90) days after such event provided the damage materially impairs access to or
\noperation of TENANT’S Premises, and there upon this Lease shall expire, and
\nTENANT shall vacate and surrender the Premises to<\/p>\n
15<\/p>\n
LANDLORD. TENANT’s liability for rent upon the termination of this Lease shall
\ncease as of the effective date of such termination. In the event LANDLORD elects
\nto repair any such damage, any abatement of rent shall end five (5) days after
\nnotice by LANDLORD to TENANT that the Premises have been repaired and TENANT has
\naccepted said repairs, which acceptance TENANT shall not unreasonably withhold.
\nIf the damage is caused by the gross negligence of TENANT or its employees,
\nagents, invites or concessionaires, there shall be no abatement of rent . Except
\nfor abatement of rent, if any, TENANT shall have no claim against LANDLORD for
\nany damage suffered by reason of such damage, destruction, repair or
\nrestoration, nor shall TENANT have the right to terminate this Lease as a result
\nof any statutory provision now or hereafter in effect pertaining to the damage
\nand destruction of the Premises or the Building, except as expressly herein
\nprovided. The proceeds of all insurance carried by TENANT on its property and
\nfixtures shall be held in trust by TENANT for the purpose of said repair and
\nreplacement. TENANT shall have the right to terminate this Lease if (a) the
\nrepairs to the Premises are not completed within 180 days of the date of damage;
\nor (b) by reason of such occurrence the Premises are rendered wholly
\nuntenantable; or (c) the Premises are damaged in whole or in part during the
\nlast six (6) months of the term hereof and the Premises or the Building (whether
\nthe Premises are damaged or not) is damaged to the extent of fifty percent (50%)
\nor more of then-monetary value thereof.<\/p>\n
14.2 TENANT’S Obligation. LANDLORD shall not be required to repair any
\ninjury or damage caused by fire or any other cause, or to make any restoration
\nor replacement of any paneling, decoration, partition, railing, floor covering,
\noffice fixture or any other improvement or property installed in the Premises by
\nTENANT or at the direct or indirect expense of TENANT. Unless this Lease is
\nterminated pursuant to Subsection 15.1 hereof, TENANT shall be required to
\nrestore or replace such improvements and property in the event of injury or
\ndamage in at least a condition equal to that existing prior to the destruction
\nor casualty.<\/p>\n
15. CONDEMNATION.<\/p>\n
15.1 Total Condemnation. If the whole of the Premises shall be acquired
\nor taken by condemnation proceeding, this Lease shall cease and terminate as of
\nthe date of title vesting in such condemnor.<\/p>\n
15.2 Partial Condemnation. If any part of the Premises shall be acquired
\nor taken by condemnation proceeding, and such partial taking shall render that
\nportion not so taken unsuitable for the business of TENANT, then this Lease
\nshall cease and terminate as of the date of title vesting in such condemnor. If
\nsuch partial taking does not render the Premises unsuitable for the business of
\nTENANT, this Lease shall continue in effect except that the Basic Monthly Rent
\nand Additional Rent shall be reduced from the time of taking in the same
\nproportion that the portion of the Premises taken bears to the total rented area
\nof the Premises immediately prior to the taking. LANDLORD shall, upon receipt of
\nthe award in condemnation, make all necessary repairs or alterations to the
\nBuilding in which the Premises are located; provided, however, that LANDLORD
\nshall not be required to expend for such work an amount in excess of the amount
\nreceived by LANDLORD as damages for the part of the Premises so taken. Amount
\nreceived by LANDLORD shall mean that part of the award in condemnation which is
\nfree and clear to LANDLORD of any collection by mortgage lenders for the value
\nof the diminished fee.<\/p>\n
15.3 LANDLORD’S Option to Terminate. If more than twenty percent (20%)
\nof the Building shall be acquired or taken by condemnation proceeding, LANDLORD
\nmay, by written notice to TENANT, terminate this Lease. If this Lease is
\nterminated as provided in this Subsection 15.3, rent shall be paid up to the day
\nthat possession is so taken by public authority and LANDLORD shall make an
\nequitable refund of any rent paid by TENANT in advance.<\/p>\n
15.4 Award. TENANT shall not be entitled to any condemnation award for
\nany taking, whether whole or partial and whether for diminution in value of the
\nleasehold or the fee, and assigns to LANDLORD all rights of TENANT, if any, to
\nreceive such award, although TENANT shall have the right, to the extent that the
\nsame shall not reduce LANDLORD’S award, to claim from the condemnor, but not
\nfrom LANDLORD, such compensation as may be recoverable by TENANT in its own
\nright for TENANT’S relocation costs and for damages to TENANT’S business and
\nfixtures.<\/p>\n
15.5 Definitions. As used in this Section 15 the term condemnation
\nproceeding means any action or proceeding in which any interest in the Premises
\nis taken for any public or quasi-public purpose by any lawful authority through
\nexercise of the power of eminent domain or right of condemnation or by purchase
\nor otherwise in lieu of and under threat of condemnation. The definition of
\nPremises shall be expanded to include elevators, parking and common areas.<\/p>\n
16. LANDLORD’S RIGHT TO CURE. In the event of any noncompliance
\nhereunder by LANDLORD, TENANT shall, before exercising any right or remedy
\navailable to it, give LANDLORD written notice of such noncompliance. If prior to
\nits giving such notice TENANT has been notified in writing of the address of a
\nLender which has furnished any of the financing referred to in Section 17
\nhereof, concurrently with giving the aforesaid notice to LANDLORD, TENANT shall,
\nby registered or certified mail postage prepaid, transmit a copy thereof to such
\nLender. For the thirty (30) days following the giving of the notice(s) required
\nby the foregoing portion of this Section 16 (or such longer period of time as
\nmay be reasonably required to cure a matter which, due to its nature, cannot
\nreasonably be rectified within thirty (30) days), LANDLORD shall have the right
\nto cure the noncompliance involved. If LANDLORD has failed to effect such cure
\nwithin such period, any such Lender shall have an additional thirty (30) days
\nwithin which to cure the same or, if such default cannot be cured within that
\nperiod, such additional time as may be necessary, if within such thirty (30) day
\nperiod said Lender has commenced and is diligently pursuing the actions or
\nremedies necessary to cure the noncompliance involved (including, but not
\nlimited to, commencement and<\/p>\n
16<\/p>\n
prosecution of proceedings to foreclose or otherwise exercise its rights under
\nits mortgage or other security instrument, if necessary to effect such cure), in
\nwhich event this Lease shall not be terminated by TENANT so long as such actions
\nor remedies are being diligently pursued by said Lender. LANDLORD shall not be
\nliable to TENANT for any default under this Lease which occurs after the sale of
\nthe Building by LANDLORD, and TENANT agrees that its rights with respect to any
\nsuch default, if asserted, shall be asserted against LANDLORD’S successor in
\ninterest, and not against LANDLORD.<\/p>\n
17. SUBORDINATION: AMENDMENT: ATTORNMENT.<\/p>\n
17.1 Subordination. This Lease, at LANDLORD’S option, shall be
\nsubordinate to any existing or future mortgage, deed of trust, ground lease or
\ndeclaration of covenants (regarding maintenance and use of any areas contained
\nin any portion of the Building), declaration of planned unit development,
\nincluding, without limitation, the Declaration of Covenants, Conditions and
\nRestrictions of South Towne, any and all advances made under any mortgage or
\ndeed of trust and all renewals, modifications, amendments, consolidations,
\nreplacements and extensions thereof. TENANT agrees that with respect to any of
\nthe foregoing documents, no documentation, other than this Lease, shall be
\nrequired to evidence such subordination. If any holder of a mortgage or deed of
\ntrust shall elect to have this Lease superior to the lien of its mortgage or
\ndeed of trust and shall give written notice thereof to TENANT, this Lease shall
\nbe deemed prior to such mortgage or deed of trust or to the date of recording
\nthereof. TENANT agrees to execute such documents which may be required by
\nLANDLORD to confirm such subordination or priority within ten (10) days of
\nrequest therefor from LANDLORD. Notwithstanding anything to the contrary
\ncontained in this Subsection 17.1, so long as TENANT fulfills all its
\nobligations under this Lease, TENANT’S rights under this Lease shall not be
\ndisturbed or impaired by any holder of a mortgage or a deed of trust, or by any
\nperson claiming through or under LANDLORD. TENANT shall not subordinate its
\ninterests hereunder or in the Premises to any lien or encumbrance other than
\nthose encumbrances described in this Subsection 17.1 without the prior consent
\nof LANDLORD. Any attempted unauthorized subordination by TENANT shall be void
\nand of no force or effect.<\/p>\n
17.2 Not Used.<\/p>\n
17.3 Attornment. Any sale, assignment or transfer of LANDLORD’S interest
\nunder this Lease or in the Premises, including any such disposition resulting
\nfrom LANDLORD’S default under a debt obligation, shall be subject to this Lease
\nand TENANT shall attorn to LANDLORD’S successors and assigns and shall recognize
\nsuch successors or assigns as LANDLORD under this Lease, regardless of any rule
\nof law to the contrary or absence of privity of contract.<\/p>\n
18. DEFAULT: REMEDIES: ABANDONMENT: PAST SUMS DUE: PENALTY.<\/p>\n
18.1 Default by TENANT. Upon the occurrence of any of the following
\nevents, LANDLORD shall have the remedies set forth in Subsection 18.2:<\/p>\n
18.1.1 TENANT fails to pay any installment of Basic Monthly Rent or
\nAdditional Rent or any other sum due hereunder within fifteen ( 15) calendar
\ndays of when the same shall be due. In event of default as provided for in this
\nSection 18.1.1 TENANT shall have 10 days after receipt of written notice from
\nLANDLORD to cure the default prior to LANDLORD exercising any other action or
\nremedies as provided for in the Lease or under Utah law. Not withstanding any
\ndefault referenced by this Section 18.1.1 any monthly rent payment received
\nafter five (5) days shall be subject to the provisions of Section 18.7.<\/p>\n
18.1.2 TENANT fails to perform any other term, condition, or covenant to
\nbe performed by it pursuant to this Lease within thirty (30) days after written
\nnotice of such default shall have been given to TENANT by LANDLORD or if cure
\nwould reasonably require more than thirty (30) days to complete if TENANT fails
\nto commence performance within the thirty (30) day period or fails to diligently
\npursue such cure to completion.<\/p>\n
18.1.3 TENANT or any guarantor of this Lease shall become bankrupt or
\ninsolvent or file any debtor proceedings or have taken against such party in any
\ncourt pursuant to state or federal statute, a petition in bankruptcy or
\ninsolvency, reorganization, or appointment of a receiver of trustee; or TENANT
\npetitions for or enters into an arrangement; or suffers this Lease to be taken
\nunder a writ of execution.<\/p>\n
18.1.4 If an abandonment of the Premises by TENANT has occurred, as
\ndefined in Section 78-36-12.3 of the Utah Code Ann. (or similar replacement
\nprovision).<\/p>\n
18.2 LANDLORD’S Remedies. If any one or more of the events of default
\nset forth in Section 18.1 occurs and is not cured, then LANDLORD shall have,
\nbesides other rights and remedies it may have at law or equity, the following
\nremedies:<\/p>\n
18.2.1 To give TENANT written notice of LANDLORD’S intention to
\nterminate this Lease on the earliest date permitted by law or on any later date
\nspecified in such notice, in which case TENANT’S right to possession of the
\npremises will cease and this Lease will be terminated, except as to TENANT’S
\nliability, as if the expiration of the term fixed in such notice were the end of
\nthe term;<\/p>\n
18.2.2 Without further demand or notice, after thirty (30) days from
\nwritten notice of default from LANDLORD and failure to cure default by TENANT,
\nto reenter and take possession of the premises or any part of the premises,
\nrepossess the same, expel TENANT and those claiming through<\/p>\n
17<\/p>\n
or under TENANT, and remove the effects of both or either, using such force for
\nsuch purposes as may be necessary, without being liable for prosecution, without
\nbeing deemed guilty of any manner of trespass, and without prejudice to any
\nremedies for arrears of monthly rent or other amounts payable under this Lease
\nor as a result of any preceding breach of covenants or conditions; or<\/p>\n
18.2.3 Without further demand or notice to cure any event of default and
\nto charge TENANT for the cost of effecting such cure, including without
\nlimitation reasonable attorneys’ fees and interest on the amount so advanced at
\nthe Interest Rate set forth in Section 9.2, provided that LANDLORD will have no
\nobligation to cure any such event of default of TENANT.<\/p>\n
18.2.4 Should LANDLORD elect to reenter as provided in subsection
\n18.2.2, or should LANDLORD take possession pursuant to legal proceedings or
\npursuant to any notice provided by law, LANDLORD may, from time to time, without
\nterminating this Lease, relet the premises or any part of the premises in
\nLANDLORD’S or TENANT’S name, but for the account of TENANT, for such term or
\nterms (which may be greater or less than the period which would otherwise have
\nconstituted the balance of the term) and on such conditions and upon such other
\nterms (which may include concessions of free rent and alteration and repair of
\nthe premises) as LANDLORD, in its reasonable discretion, may determine, and
\nLANDLORD may collect and receive the rent. No such reentry or taking possession
\nof the premises by LANDLORD will be construed as an election on LANDLORD’S part
\nto terminate this Lease unless a written notice of such intention is given to
\nTENANT. No written notice from LANDLORD under this Section or under a forcible
\nor unlawful entry and detainer statute or similar law will constitute an
\nelection by LANDLORD to terminate this Lease unless such notice specifically so
\nstates. LANDLORD reserves the right following any such reentry or reletting to
\nexercise its right to terminate this Lease by giving TENANT such written notice,
\nin which event this Lease will terminate as specified in such notice. LANDLORD
\nshall make a reasonable effort to relet the Premises in the event of TENANT
\ndefault and vacating of the Premises.<\/p>\n
18.3 Certain Damages. In the event that LANDLORD does not elect to
\nterminate this Lease as permitted in Section 18.2.1, but on the contrary elects
\nto take possession as provided in Section 18.2.2, TENANT will pay to LANDLORD
\nmonthly rent and other sums as provided in this Lease that would be payable
\nunder this Lease if such repossession had not occurred, less the net proceeds,
\nif any, of any reletting of the premises after deducting all of LANDLORD’S
\nreasonable expenses in connection with such reletting, including without
\nlimitation all repossession costs, brokerage commissions, attorneys’ fees,
\nexpenses of employees, alteration and repair costs, and expenses of preparation
\nfor such reletting. If, in connection with any reletting, the new Lease term
\nextends beyond the existing term, or the premises covered by such new Lease
\ninclude other premises not part of the premises, a fair apportionment of the
\nrent received from such reletting and the expenses incurred in connection with
\nsuch reletting as provided in this Section will be made in determining the net
\nproceeds from such reletting, and any rent concessions will be equally
\napportioned over the term of the new Lease. TENANT will pay such rent and other
\nsums to LANDLORD monthly on the day on which the monthly rent would have been
\npayable under this Lease if possession had not been retaken, and LANDLORD will
\nbe entitled to receive such rent and other sums from TENANT on each such day.<\/p>\n
18.4 Continuing Liability After Termination. If this Lease is terminated
\non account of the occurrence of an event of default, TENANT will remain liable
\nto LANDLORD for damages in an amount equal to monthly rent and other amounts
\nthat would have been owing by TENANT for the balance of the term, had this Lease
\nnot been terminated, less the net proceeds, if any, of any reletting of the
\npremises by LANDLORD subsequent to such termination, after deducting all of
\nLANDLORD’S expenses in connection with such reletting, including without
\nlimitation the expenses enumerated in Section 18.3. LANDLORD will be entitled to
\ncollect such damages from TENANT monthly on the day on which monthly rent and
\nother amounts would have been payable under this Lease if this Lease had not
\nbeen terminated, and LANDLORD will be entitled to receive such monthly rent and
\nother amounts from TENANT on each such day.<\/p>\n
18.5 Cumulative Remedies. Any suit or suits for the recovery of the
\namounts and damages set forth in Sections 18.3 and 18.4 may be brought by
\nLANDLORD, from time to time, at LANDLORD’S election, and nothing in this Lease
\nwill be deemed to require LANDLORD to await the date upon which this Lease or
\nthe term would have expired had there occurred no event of default. Each right
\nand remedy provided for in this Lease is cumulative and is in addition to every
\nother right or remedy provided for in this Lease or now or after the Lease date
\nexisting at law or in equity or by statute or otherwise, and the exercise or
\nbeginning of the exercise by LANDLORD of any one or more of the rights or
\nremedies provided for in this Lease or now or after the Lease date existing at
\nlaw or in equity or by statute or otherwise will not preclude the simultaneous
\nor later exercise by LANDLORD of any or all other rights or remedies provided
\nfor in this Lease or now or after the Lease date existing at law or in equity or
\nby statute or otherwise. All costs incurred by LANDLORD in collecting any
\namounts and damages owing by TENANT pursuant to the provisions of this Lease or
\nto enforce any provision of this Lease, including reasonable attorneys’ fees
\nfrom the date any such matter is turned over to an attorney, whether or not one
\nor more actions are commenced by LANDLORD, will also be recoverable by LANDLORD
\nfrom TENANT.<\/p>\n
18.6 Waiver of Redemption. TENANT waives any right of redemption arising
\nas a result of LANDLORD’S exercise of its remedies under this Section 18.<\/p>\n
18.7 Past Due Sums: Penalty. Except as otherwise expressly provided for
\nin this Lease, if TENANT fails to pay, when the same is due and payable, or
\nwithin five (5) calendar days thereafter, any sum required to be paid by it
\nhereunder, such unpaid amount shall bear interest from the due date thereof to
\nthe date<\/p>\n
18<\/p>\n
of payment at a fluctuating rate equal to five percent (5%) per annum above the
\nprime rate of interest charged by Zions First National Bank, Salt Lake City,
\nUtah. In addition thereto, LANDLORD may charge a sum of five percent (5%) of
\nsuch unpaid amounts as a service fee. Notwithstanding the foregoing, LANDLORD’S
\nright concerning such interest and service fee shall be limited by the maximum
\namount which legally may be charged by LANDLORD for such purposes under
\napplicable law.<\/p>\n
19. TENANT’S RIGHT TO EARLY TERMINATION. TENANT shall have a one-time
\noption during the Lease term to terminate this Lease after the end of the first
\nThirty-six (36) months of the Lease term from the commencement date of the Lease
\nupon the following terms and conditions:<\/p>\n
19.1 NO DEFAULT. TENANT’s option to terminate the Lease shall at all
\ntimes be subject to this Lease being in full force and effect, TENANT’s not
\nbeing in default hereunder and TENANT’s not having assigned the Lease or sublet
\nthe premises;<\/p>\n
19.2 WRITTEN NOTICE. TENANT must deliver to LANDLORD at least six (6)
\nmonths prior written notice of its intent to terminate this Lease:<\/p>\n
19.3 TERMINATION PENALTY. Accompanying TENANT’s notice shall be a
\ntermination payment which payment will be in addition to regular rent payments,
\nequal to the following:<\/p>\n
19.4 UNAMORTIZED COST OF TENANT IMPROVEMENTS AND LEASE COMMISSION FOR
\nORIGINAL PREMISES. TENANT improvements amount for Original Premises has been
\nestablished at $87~480, and upon early termination will be calculated and
\nprorated as of the termination date using a straight-line amortization method
\nfor a 60-month period, commencing with the date of the Original Lease. Leasing
\ncommission for the original Premises will be calculated in the same manner.<\/p>\n
20. END OF TERM. At the end of this Lease, TENANT will promptly quit and
\nsurrender the premises broom-clean, in good order and repair, ordinary wear and
\ntear excepted. If TENANT is not then in material default, TENANT may remove from
\nthe premises any trade fixtures, equipment, and movable furniture placed in the
\npremises by TENANT, whether or not such trade fixtures or equipment are fastened
\nto the building; TENANT will not remove any trade fixtures or equipment without
\nLANDLORD’S prior written consent if such fixtures or equipment are used in the
\noperation of the building, or if the removal of such fixtures or equipment will
\nresult in impairing the structural strength of the building. Whether or not
\nTENANT is in default, TENANT will remove such alterations, additions,
\nimprovements, trade fixtures, equipment, and furniture as LANDLORD has requested
\nin accordance with Section 9.3: TENANT will fully repair any damage occasioned
\nby the removal of any trade fixtures, equipment, furniture, alterations,
\nadditions, and improvements. All trade fixtures, equipment, furniture,
\ninventory, effects, alterations, additions, and improvements on the Premises 10
\ndays after the end of the term will be deemed conclusively to have been
\nabandoned and may be appropriated, sold, stored, destroyed, or otherwise
\ndisposed of by LANDLORD without written notice to TENANT or any other person and
\nwithout obligation to account for them. TENANT will pay LANDLORD for all
\nexpenses incurred in connection with the removal of such property, including but
\nnot limited to the cost of repairing any damage to the building or premises
\ncaused by the removal of such property. TENANT’S obligation to observe and
\nperform this covenant will survive the expiration or other termination of this
\nLease.<\/p>\n
21. ESTOPPEL CERTIFICATE.<\/p>\n
21.1 LANDLORD’S Right to Estoppel Certificate. TENANT shall, within
\nfifteen ( 15) days after LANDLORD’S request therefore, execute and deliver to
\nLANDLORD an Estoppel Certificate in recordable form setting forth the following:
\n(a) a ratification of this Lease; (b) the Actual Commencement Date and
\ntermination date hereof; (c) a certification that this Lease is in full force
\nand effect and has not been assigned, modified, supplemented or amended (except
\nby such writing as shall be stated); (d) that all conditions under this Lease to
\nbe performed by LANDLORD have been satisfied or a statement of any conditions
\nnot satisfied; (e) that there are no defenses or offsets against the enforcement
\nof this Lease by LANDLORD, or, in the alternative, those claimed by TENANT; (f)
\nthe amount of advance rent, if any, (or none if such is the case) paid by
\nTENANT; (g) the date to which rent has been paid; (h) the amount of security
\ndeposited with LANDLORD; and (i) such other information as LANDLORD (or its
\nmortgagees or potential purchasers of the Premises) may reasonably request. In
\nthe event TENANT fails within fifteen (15) days after LANDLORD has delivered to
\nTENANT an Estoppel Certificate pursuant to this Subsection 21.1 to properly
\nexecute and deliver the same to LANDLORD, TENANT shall be deemed to have
\nconsented to such Estoppel Certificate as written. LANDLORD’S mortgage lenders
\nand\/or purchasers shall be entitled to rely upon such declaration. LANDLORD
\nagrees to pay reasonable out of pocket expenses for TENANT’S review and
\nprocessing for written estoppel requests by LANDLORD in excess of two requests
\nin any one year.<\/p>\n
21.2 Effect of Failure to Provide Estoppel Certificate. TENANT’S failure
\nto furnish any Estoppel Certificate pursuant to Subsection 21. I hereof within
\nfifteen ( 15) days after written request is made by LANDLORD therefor shall be
\ndeemed a default hereunder and, moreover, it shall be conclusively presumed that
\n(a) this Lease is in full force and effect without modification in accordance
\nwith the terms set forth in the request; (b) there are no breaches or defaults
\non the part of LANDLORD; and (c) no more than one month’s rent has been paid in
\nadvance.<\/p>\n
22. COMMON AREAS.<\/p>\n
19<\/p>\n
22.1 Definition of Common Areas. Common Areas means all areas, space,
\nequipment and special services provided for the joint or common use and benefit
\nof the TENANTS or occupants of the Building and related Land or portions
\nthereof, and their employees, agents, licensees and other invites (collectively
\nreferred to herein as Occupants), including without limitation, the following:
\nparking areas, access roads, driveways, plaza retaining walls, landscaped areas,
\nservice ways, loading docks, pedestrian walks, courts, stairs, ramps and
\nsidewalks, common corridors, monuments, water features, lobby elevators, rooms
\nand rest rooms, air conditioning, fan, janitorial, electrical and telephone
\nrooms or closets, and all other areas within the Building which are not
\nspecified for exclusive use or occupancy by LANDLORD or any TENANT (whether or
\nnot they are Leased or occupied).<\/p>\n
22.2 License to Use Common Areas. The Common Areas shall be available
\nfor the common use of all occupants and to the extent such access to the Common
\nAreas has been or shall be granted, also shall be used by the general public. If
\nthe amount of such areas shall be changed or diminished, LANDLORD shall not be
\nsubject to any liability to TENANT in any respect, provided LANDLORD will take
\nno action permitted under this section 22 in such a manner as to materially
\nimpair or adversely affect TENANT’S substantial benefit and enjoyment of the
\npremises. All Common Areas shall be subject to the exclusive control and
\nmanagement of LANDLORD.<\/p>\n
22.3 Deliveries. All deliveries to and from the Premises shall be made
\nusing those areas of the Building designated for deliveries by LANDLORD, during
\nthe time periods reasonably specified by LANDLORD, and so as to cause the
\nminimum amount of interference with the business of other TENANTS of the
\nBuilding or impedance of traffic corridors or blockage of stairwells or fire
\nexits from the Building.<\/p>\n
22.4 Parking. Subject to TENANT’S rights under Section 2 hereof,
\nautomobiles of TENANT and all Occupants associated with TENANT shall be parked
\nonly within parking areas not otherwise reserved by LANDLORD or specifically
\ndesignated to use by any other tenant and\/or occupants associated with any other
\ntenant, and shall observe visitor parking time limitations. LANDLORD or its
\nagents, shall, without any liability to TENANT or its occupants have the right
\n(but not the obligation) to cause to be removed any automobile that may be
\nwrongfully parked in a prohibited or reserved parking area, and TENANT agrees to
\nindemnify, defend and hold harmless LANDLORD from and against any and all claims
\nasserted or arising with respect to or in connection with any such removal of an
\nautomobile of TENANT. TENANT shall from time to time, upon request of LANDLORD,
\nsupply LANDLORD with a list of license plate numbers of all automobiles owned by
\nTENANT or its day-to-day Occupants. TENANT shall not allow its employees or
\nagents to park in uncovered parking spaces overnight without prior written
\nconsent of LANDLORD. Upon 24 hours notice, TENANT shall temporarily relocate all
\nTENANT owned vehicles to a location designated by LANDLORD for the duration of
\nany parking lot maintenance activities. TENANTS of the Building may exercise and
\nwill be subject to, the parking rights as contained herein on any portion of the
\nadjacent Towers Phase III subdivision properties which are asphalted and
\nimproved for parking.<\/p>\n
23. SIGNS~ AWNINGS AND CANOPIES. LANDLORD, at LANDLORD’s expense shall
\ninstall identification signs for TENANT, in accordance with LANDLORD’s signage
\nstandards. TENANT shall not place or suffer to be placed or maintained on any
\nexterior door, exterior wall or window of the Premises, or in the Premises
\nvisible to the Common Areas of the Building, or elsewhere in the Building, any
\nsign, awning, marquee, decoration, lettering, attachment, canopy, advertising
\nmatter or other thing of any kind, without first obtaining LANDLORD’S written
\napproval. Signs inside the Premises not visible from the Common Areas of the
\nBuilding are not prohibited by this paragraph. LANDLORD may, at TENANT’S cost,
\nand without liability to TENANT, enter the Premises and remove any item erected
\nin violation of this Section 23. All signage shall further be subject to
\napproval by the City of South Jordan.<\/p>\n
24. REQUIREMENTS OF LAW: FIRE INSURANCE.<\/p>\n
24.1 General. At its sole cost and expense, TENANT will promptly comply
\nwith all laws, statutes, ordinances, and governmental rules, regulations, or
\nrequirements now in force or in force after the Lease date, with the
\nrequirements of any board of fire underwriters or other similar body constituted
\nnow or after the date, with any direction or occupancy certificate issued
\npursuant to any law by any public officer or officers, as well as with the
\nprovisions of all recorded documents affecting the premises, insofar as they
\nrelate to the condition, use, or occupancy of the premises, excluding
\nrequirements of structural changes to the premises or the building, unless
\nrequired by the unique nature of TENANT’S use or occupancy of the premises.<\/p>\n
24.2 Hazardous Materials.<\/p>\n
24.2.1 For purposes of this Lease, “hazardous materials” means any
\nexplosives, radioactive materials, hazardous wastes, or hazardous substances,
\nincluding without limitation substances defined as “hazardous substances” in the
\nComprehensive Environmental Response, Compensation and Liability Act of 1980, as
\namended, 42 U.S.C. ## 9601-9657; the Hazardous Materials Transportation Act of
\n1975, 49 U.S.C. ## 1801-1812; the Resource Conservation and Recovery Act of
\n1976, 42 U.S.C. ## 6901-6987; or any other federal, state, or local statute,
\nlaw, ordinance, code, rule, regulation, order, or decree regulating, relating
\nto, or imposing liability or standards of conduct concerning hazardous
\nmaterials, waste, or substances now or at any time hereafter in effect
\n(collectively, “hazardous materials laws”).<\/p>\n
24.2.2 Except in compliance with hazardous waste laws, TENANT will not
\ncause or permit the storage, use, generation, or disposition of any hazardous
\nmaterials in, on, or about the premises or the project by TENANT, its agents,
\nemployees, or contractors. TENANT will not permit the premises to be used or
\noperated in a manner that may cause the premises or the project to be
\ncontaminated by any hazardous materials in violation of any hazardous materials<\/p>\n
20<\/p>\n
laws. TENANT will immediately advise LANDLORD in writing of ( i ) any and all
\nenforcement, cleanup, remedial, removal, or other governmental or regulatory
\nactions instituted, completed, or threatened pursuant to any hazardous materials
\nlaws relating to any hazardous materials affecting the premises; and (2) all
\nclaims made or threatened by any third party against TENANT, LANDLORD, or the
\npremises relating to damage, contribution, cost recovery, compensation, loss, or
\ninjury resulting from any hazardous materials on or about the premises. Without
\nLANDLORD’S prior written consent, TENANT will not take any remedial action or
\nenter into any agreements or settlements in response to the presence of any
\nhazardous materials in, on, or about the premises.<\/p>\n
24.2.3 TENANT will be solely responsible for and will defend, indemnify
\nand hold LANDLORD, its agents, and employees harmless from and against all
\nclaims, costs, and liabilities, including attorneys’ fees and costs, arising out
\nof or in connection with TENANT’S breach of its obligations in this Section 24.
\nTENANT will be solely responsible for and will defend, indemnify, and hold
\nLANDLORD, its agents, and employees harmless from and against any and all
\nclaims, costs, and liabilities, including attorneys’ fees and costs, arising out
\nof or in connection with the removal, cleanup, and restoration work and
\nmaterials necessary to return the premises and any other property of whatever
\nnature located on the project to their condition existing prior to the
\nappearance of TENANT’S hazardous materials on the premises. TENANT’S obligations
\nunder this Section 24 will survive the expiration or other termination of this
\nLease.<\/p>\n
24.2.4 LANDLORD shall indemnify and hold harmless TENANT from liability
\nfor any hazardous materials on the Property or Premises provided hazardous
\nmaterials were not caused by actions of TENANT, TENANT’S employees, or TENANT’S
\ncontractor.<\/p>\n
24.3 Certain Insurance Risks. TENANT will not do or permit to be done
\nany act or thing upon the premises or the project which would (a) jeopardize or
\nbe in conflict with fire insurance policies covering the project and fixtures
\nand property in the project; (b) increase the rate of fire insurance applicable
\nto the project to an amount higher than it otherwise would be for general office
\nuse of the project; or (c) subject LANDLORD to any liability or responsibility
\nfor injury to any person or persons or to property by reason of any business or
\noperation being carried on upon the premises.<\/p>\n
25. LANDLORD’S RESERVED RIGHTS. Without liability to TENANT (except for
\ndamages caused by the reckless or willful misconduct of LANDLORD or its agents),
\nLANDLORD shall have the right at any time or from time to time (a) upon at least
\ntwenty (20) days prior notice to TENANT, change the name or street address of
\nthe Building; (b) without notice, install and maintain signs on the exterior of
\nthe Building; (c) upon notice to TENANT, enter the Premises and perform any
\nobligation of TENANT hereunder which TENANT has failed to perform
\nsatisfactorily; (d) without notice, make changes, alterations and additions to
\nthe Building or the Property; (e) exhibit the Premises to prospective tenants,
\nmortgagees and purchasers upon reasonable notice and so long as no unreasonable
\ninterference with TENANT’S business; and (f) without notice, enter into the
\nPremises to take such measures as LANDLORD may deem advisable for the safety,
\nsecurity and welfare of the Building and its occupants and for such purposes, to
\nbring into and through the Premises or any part of the Building, all required
\ntools, equipment and materials and to temporarily suspend the use of doors,
\ncorridors or other facilities of the Building.<\/p>\n
25.1 General. At its sole cost and expense, LANDLORD will promptly
\ncomply with all applicable laws, statutes, ordinances, and governmental rules,
\nregulations, or requirements now in force or in force as a result of the
\nbuilding occupancy certificate issued pursuant to any law by any public officer
\nor officers, as well as with the provisions of all recorded documents affecting
\nthe building insofar as they relate to the condition, use, or occupancy of the
\nbuilding and including all applicable environmental laws relative to the use
\nand\/or storage of hazardous materials.<\/p>\n
26. RULES AND REGULATIONS. The Rules and Regulations set forth in
\nExhibit “F” are hereby made a part of this Lease. LANDLORD may from time to time
\namend, modify, delete or add rules and regulations for the use and care of the
\nBuilding and the Land, provided that changes in the Rules and Regulations are
\nprovided to TENANT in writing and shall not unreasonably affect TENANT and
\nprovided that such changes are uniformly applicable to and enforced against all
\ntenants. Such amendment, modification, deletion or addition shall be effective
\nupon notice thereof to TENANT from LANDLORD. TENANT will cause its employees,
\nagents or any other persons permitted by TENANT to occupy or enter the Premises
\nto at all times abide by all of such Rules and Regulations. In the event of any
\nbreach of any of such Rules or Regulations, LANDLORD may exercise any or all of
\nthe remedies in this Lease which are provided for in the event of default by
\nTENANT and may, in addition, exercise any remedies available at law or in equity
\nincluding the right to enjoin any breach of such Rules and Regulations. No act
\nperformed by LANDLORD or its agents during the term of the Lease to enforce such
\nRules and Regulations shall constitute an eviction of TENANT by LANDLORD, nor
\nshall it be deemed an acceptance or surrender of the Premises. LANDLORD shall
\nnot be responsible to TENANT for the failure by any other tenant or person to
\nobserve any such Rules and Regulations.<\/p>\n
27. MISCELLANEOUS PROVIS IONS.<\/p>\n
27.1 No Partnership. LANDLORD does not by this Lease, in any way or for
\nany purpose, become a partner or joint venturer of TENANT in the conduct of its
\nbusiness or otherwise.<\/p>\n
27.2 Force Majeure. LANDLORD shall be excused for the period of any
\ndelay in the performance of any obligations hereunder when prevented from so
\ndoing by cause or causes beyond LANDLORD’S control, including labor disputes,
\ncivil commotion, war, governmental regulations or controls, fire or other
\ncasualty, inability to obtain any material or service or acts of God.<\/p>\n
21<\/p>\n
27.3 Section Deleted.<\/p>\n
27.4 No Light Air or View Easement. Any diminution or shutting off of
\nlight, air or view by any structure which may be erected on lands adjacent to or
\nin the vicinity of the Building shall in no way affect this Lease or impose any
\nliability on LANDLORD.<\/p>\n
27.5 Holding Over. Because unauthorized holding over after the
\nexpiration of the term hereof or of any renewal term will cause substantial
\ndamage to LANDLORD which cannot be estimated at the time of execution of the
\nLease, any such holding over shall be construed to be a tenancy from
\nmonth-to-month at one and one-half (1\/2) times the Basic Monthly Rent plus all
\nother sums, rents and charges herein specified (pro-rated on a monthly basis)
\nand shall, so far as possible, otherwise be on the terms herein specified. The
\npreceding sentence shall not be construed as LANDLORD’s permission for TENANT to
\nLANDLORD.<\/p>\n
27.6 Notices. Any notice, request, demand, consent, approval, or other
\ncommunication required or permitted under this lease must be in writing and will
\nbe deemed to have been given when personally delivered, sent by facsimile with
\nreceipt acknowledged, deposited with any nationally recognized overnight carrier
\nthat routinely issues receipts, or deposited in any depository regularly
\nmaintained by the United States Postal Service, postage prepaid, certified mail,
\nreturn receipt requested, addressed to the party for whom it is intended. Notice
\nfor LANDLORD shall be addressed and sent to 106TH SOUTH BUSINESS PARK, L.P.,
\nAttention: Dan Christensen, 10421 South Jordan Gateway, Suite 600, South Jordan,
\nUtah 84095; The address for TENANT set forth in Section I, Subsection 1.1 of
\nthis Lease shall be the effective location for notices to TENANT.<\/p>\n
27.7 Captions: Attachments.<\/p>\n
27.7.1 The captions to the Sections and Subsections of this Lease are
\nfor convenience of reference only and shall not be deemed relevant in resolving
\nquestions of construction or interpretation under this Lease.<\/p>\n
27.7.2 Exhibits referred to in this Lease and any addendum, riders and
\nschedules attached to this Lease shall be deemed to be incorporated in this
\nLease as though a part of Lease.<\/p>\n
27.8 Recording. TENANT shall not record this Lease or a memorandum
\nhereof without the written consent of LANDLORD. LANDLORD, at its option and at
\nany time, may file this Lease or a memorandum hereof for record with the
\nRecorder of the County in which the Property is located, and LANDLORD shall
\nnotify TENANT of the same.<\/p>\n
27.9 Partial Invalidity. If any provision of this Lease or the
\napplication thereof to any person or circumstance shall to any extent be
\ninvalid, the remainder of this Lease or the application of such provision to
\npersons or circumstances other than those as to which it is held invalid shall
\nnot be affected thereby and each provision of this Lease shall be valid and
\nenforced to the fullest extent permitted by law. In lieu of each provision of
\nthis lease that is illegal, invalid, or unenforceable a provision will be added
\nas a part of this lease as similar in terms to such illegal, invalid, or
\nunenforceable provision as may be possible and be legal, valid, and enforceable.<\/p>\n
27.10 Brokers Commission. Brandon Fugal of Coldwell Banker Commercial as
\nagent for LANDLORD and TENANT shall be entitled to a Lease commission equal to
\n5% of the Lease amount. Lease commission shall be calculated as follows: initial
\nannual Lease payment times 5 (lease years) times 5% = commission. This amount
\nwill be paid by LANDLORD, t\/~ upon execution by LANDLORD and TENANT to Lease
\nagreement and 1\/2 within ten (10) days of TENANT occupying the Premises. It is
\nunderstood that TENANT has no responsibility for payment of Leasing commission.<\/p>\n
27.11 TENANT Defined; Use of Pronouns. The word TENANT shall be deemed
\nto mean each and every person or party executing this document as a TENANT
\nhereunder. If there is more than one person or organization set forth on the
\nsignature line as TENANT, their liability hereunder shall be joint and several.
\nIf there is more than one TENANT, any notice required or permitted by the terms
\nof this Lease may be given by or to any one TENANT, and shall have the same
\nforce and effect as if given by or to all TENANTS. The use of the neuter
\nsingular pronoun to refer to LANDLORD or TENANT shall be deemed a proper
\nreference even though LANDLORD or TENANT may be an individual, partnership,
\ncorporation or a group of two or more individuals, partnerships or corporations.
\nThe necessary grammatical changes required to make the provisions of this Lease
\napply in the plural sense where there is more than one LANDLORD or TENANT and to
\ncorporations, associations, partnerships, individuals, males or females, shall
\nin all instances be assumed as though in each case fully expressed.<\/p>\n
27.12 Provisions Binding, etc. Except as otherwise provided, all
\nprovisions herein shall be binding upon and shall inure to the benefit of the
\nparties, their legal representatives, heirs, successors and assigns. Each
\nprovision to be performed by TENANT shall be constructed to be both a covenant
\nand a condition, and if there shall be more than one TENANT, they shall all be
\nbound, jointly and severally, by such provisions. In the event of any sale or
\nassignment (except for purposes of security or collateral) by LANDLORD of the
\nBuilding, the Premises or this Lease, LANDLORD shall, from and after the Actual
\nCommencement Date (irrespective of when such sale<\/p>\n
22<\/p>\n
or assignment occurs), be entirely relieved of all of its obligations hereunder
\nand such obligations shall, as of the time of such sale or assignment or on the
\nActual Commencement Date, whichever is later, automatically pass to LANDLORD’S
\nsuccessor in<\/p>\n
27.13 Entire Agreement, etc. This Lease and the Exhibits, Riders and\/or
\naddenda, if any, attached hereto, constitute the entire agreement between the
\nparties. Any guaranty attached hereto is an integral part of this Lease and
\nconstitutes consideration given to LANDLORD to enter into this Lease. Any prior
\nconversations or writings are merged herein and extinguished. No subsequent
\namendment of this Lease shall be binding upon LANDLORD or TENANT unless reduced
\nto writing and signed. Submission of this Lease for examination does not
\nconstitute an option for the Premises and this Lease becomes effective as a
\nLease only upon execution and delivery thereof by LANDLORD to TENANT. It is
\nhereby agreed that this Lease contains no restrictive covenants or exclusions in
\nfavor of TENANT.<\/p>\n
27.14 Recourse by TENANT. Anything in this Lease to the contrary
\nnotwithstanding, TENANT agrees that it shall look solely to the equity of
\nLANDLORD in the Building in which the Premises are located and the Land upon
\nwhich the Building is situated, subject to prior rights of any mortgagee
\n(including mortgagees, advancing monies after the date of this Lease), for the
\ncollection of any judgment (or other judicial process) requiring the payment of
\nmoney by LANDLORD in the event of any default or breach by LANDLORD with respect
\nto any of the terms, covenants and conditions of this Lease to be observed
\nand\/or performed by LANDLORD, and no other assets of LANDLORD shall be subject
\nto levy, execution or other procedures for the satisfaction of TENANT’S
\nremedies. Nothing herein shall preclude TENANT from seeking injunctive relief or
\nspecific performance or insurance proceeds to which they are entitled. The
\namount of any judgement obtained by TENANT against LANDLORD can be used by
\nTENANT as an offset against unpaid rent.<\/p>\n
27.15 Choice of Law. This Lease shall be governed by and construed in
\naccordance with the laws of the State of Utah.<\/p>\n
27.16 Time of Essence. Time is of the essence of this Lease.<\/p>\n
27.17 No Waiver. The waiver by LANDLORD of any agreement, condition, or
\nprovision contained in this Lease will not be deemed to be a waiver of any
\nsubsequent breach of the same or any other agreement, condition, or provision
\ncontained in this Lease, nor will any custom or practice that may grow up
\nbetween the parties in the administration of the terms of this Lease be
\nconstrued to waive or to lessen the right of LANDLORD to insist upon the
\nperformance by TENANT in strict accordance with the terms of this Lease. The
\nsubsequent acceptance of rent by LANDLORD will not be deemed to be a waiver of
\nany preceding breach by TENANT of any agreement, condition, or provision of this
\nLease, other than the failure of TENANT to pay the particular rent so accepted,
\nregardless of LANDLORD’S knowledge of such preceding breach at the time of
\nacceptance of such rent.<\/p>\n
27.18 Rights and Remedies. The rights and remedies of LANDLORD shall not
\nbe mutually exclusive and the exercise of one or more of the provisions of this
\nLease shall not preclude the exercise of any other provisions. TENANT confirms
\nthat damages at law may be an inadequate remedy for a breach or threatened
\nbreach by TENANT of any of the provisions hereof. LANDLORD’S rights and TENANT’S
\nobligations hereunder shall be enforceable by specific performance, injunction
\nor any other equitable remedy, but nothing herein contained is intended or shall
\nlimit or affect any rights at law or by statute or otherwise of LANDLORD against
\nTENANT for a breach or a threatened breach of any provision hereof, it being the
\nintention by this Section to make clear the agreement of the parties hereto and
\nthe right of LANDLORD and obligations of TENANT hereunder shall be enforceable
\nin equity as well as at law otherwise.<\/p>\n
27.19 Authorization. Each individual executing this Lease does thereby
\nrepresent and warrant to each other so signing (and each other entity for which
\nanother person may be signing) that he has been duly authorized to deliver this
\nLease in the capacity and for the entity set forth where he signs.<\/p>\n
27.20 No Construction Against Drafting Party. LANDLORD and TENANT
\nacknowledge that each of them and their counsel have had an opportunity to
\nreview this Lease and that this Lease will not be construed against LANDLORD
\nmerely because LANDLORD has prepared it.<\/p>\n
27.21 Section Deleted.<\/p>\n
27.22 No Merger. The voluntary or other surrender of this Lease by
\nTENANT or the cancellation of this Lease by mutual agreement of TENANT and
\nLANDLORD or the termination of this Lease on account of TENANT’S default will
\nnot work a merger, and will, at LANDLORD’S option, (a) terminate all or any
\nsubleases and sub tenancies or (b) operate as an assignment to LANDLORD of all
\nor any subleases or sub tenancies. LANDLORD’S option under this Section 27.22
\nwill be exercised by written notice to TENANT and all known sub lessees or
\nsubtenants in the premises or any part of the premises.<\/p>\n
27.23 Financial Reports. Within thirty (30) days after LANDLORD’S
\nrequest, TENANT will furnish TENANT’S most recent audited financial statements
\n(including any notes to them) to LANDLORD, or, if no such audited statements
\nhave been prepared, such other financial statements (and notes to them) as may
\nhave been prepared by an independent certified public accountant or, failing
\nthose, TENANT’S internally prepared financial statements. TENANT will discuss
\nits financial statements with LANDLORD. LANDLORD will not disclose any aspect of
\nTENANT’S financial statements that TENANT designates to LANDLORD as confidential
\nexcept (a) to LANDLORD’S lenders or prospective purchasers of the property, (b)
\nin litigation between LANDLORD and TENANT, and (c) if required by court order.<\/p>\n
23<\/p>\n
27.24 LANDLORD’S Fees. Whenever TENANT requests LANDLORD to take any
\naction or give any consent required or permitted under this Lease, which is not
\nthe result of a default by LANDLORD or LANDLORD deficiency in providing services
\nto TENANT as provided for under the terms of this Lease Agreement, TENANT will
\nreimburse LANDLORD for all of LANDLORD’S out of pocket costs incurred in
\nreviewing the proposed action or consent, including without limitation
\nreasonable attorneys’, engineers’ or architects’ fees, within 10 days after
\nLANDLORD’S delivery to TENANT of a statement of such costs. TENANT will be
\nobligated to make such reimbursement without regard to whether LANDLORD consents
\nto any such proposed action.<\/p>\n
27.25 Attorney’s Fees. In the event that at any time during the term of
\nthis Lease either LANDLORD or TENANT institutes any action or proceeding against
\nthe other relating to the provisions of this Lease or any default hereunder, the
\nunsuccessful party in such action or proceeding shall reimburse the successful
\nparty for the reasonable expenses of such action including reasonable attorneys’
\nfees incurred therein by the successful party.<\/p>\n
27.26 Successors. LANDLORD shall not be liable to TENANT for any default
\nor breach under this Lease which occurs after the sale of the Building or
\nPremises by LANDLORD.<\/p>\n
IN WITNESS WHEREOF, LANDLORD and TENANT have executed this Lease on the
\nday first set forth above.<\/p>\n
LANDLORD:<\/p>\n
106TH SOUTH BUSINESS PARK. A Utah Limited Partnership<\/p>\n
By: \/s\/ James Morse
\n ——————————
\nIts General Partner<\/p>\n
The undersigned person endorsing this Lease for TENANT warrants their authority
\nto sign on behalf of TENANT and to bind TENANT to the terms hereof:<\/p>\n
TENANT:<\/p>\n
CALDERA SYSTEMS, Inc.<\/p>\n
By \/s\/ Walter Hammond
\n —————————–
\nIts Vice President Operations<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993,8783],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9579,9610],"class_list":["post-41841","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_companies-sco-group-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-land","corporate_contracts_types-land__ut"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41841","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41841"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41841"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41841"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}