EXHIBIT 10.4
LEASE AGREEMENT
THIS LEASE AGREEMENT made this 15th day of September, 1985, by and between
W B & H INVESTMENTS, A Utah Limited Partnership, hereinafter referred to as
"Lessor" and DECIMA RESEARCH, A California Corporation, hereinafter referred to
as "Lessee".
WITNESSETH:
Lessor, for and in consideration of the rents, covenants and conditions
herein contained, hereby rents, lets and demises to Lessee; and Lessee in
consideration of such rent, let, and demise, hereby leases from Lessor, the
facility together with the parking area located at 0000 Xxxxxxxx Xxxx, Xxxx,
Xxxx according to the following terms and conditions.
1. Rent: Lessee hereby agrees to pay to Lessor as rent, exclusive of any
other charge to be paid by Lessee under this Lease, the sum of $104,400.00 per
year, payable in equal consecutive monthly installments of $8,700.00 each, in
advance on the first day of each month through the term hereof. Lessor and
Lessee may agree to one annual payment in January of each year. Each rental
payment and other sum required to be paid by Lessee under this Lease shall be
delivered to Lessor at such place as Lessor may from time to time designate in
writing.
2. Rent Adjustment: The rental amount stated in paragraph 1 shall be
adjusted on January 1, 1986, and at the end of each full year thereafter, in a
ratio equal to 60% as the increase in the Consumer Price Index (Denver Consumer
Price Index for all Urban Consumers for all items as reported by the Bureau of
Labor Statistics, from the next to the last month of the prior lease year (or
for the first year, the second month prior to the commencement of the lease
term) to form a new rental amount. (example: Lease year January 1 - December 31;
CPI from November to November goes from 232.6 to 259.6 or a 27-point increase,
which is an 11.6% increase.
3. Term: The term of this lease agreement shall be for the period of four
(4) years commencing on August 10, 1985, and ending on August 31, 1989.
4. Option to Extend Lease Period: It shall be the option of Lessor to
extend this lease agreement for a term, terms or other period which is agreeable
with the parties. Unless specific notice is received by the Lessor from the
Lessee of the Lessee's intent to terminate this lease upon the completion of the
term or any renewal, hereunder, within thirty (30) days, the term shall be
extended for an additional four-year term or terms.
5. Operating Expenses: As used herein the term "Operating Expenses" shall
mean and include all costs, expenses,
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and amounts, determined through the accrual method of accounting, which are
incurred by Lessor during the period in question or which are allocable to said
period in connection with Lessor's ownership, operation, management, or
maintenance of the Property, the Improvements, or any portion or portions
thereof. Said costs, expenses, and amounts shall be determined in accordance
with the accounting procedures and business practices customarily employed by
Lessor, and shall include, but not be limited to, the cost of all of the
following: real estate taxes and installments on special assessment; any tax or
other charge levied or assessed upon Lessor or upon the rent payable under this
Lease in lieu, in whole or in part, of real estate taxes or special assessments;
all insurance which Lessor deems necessary or advisable to obtain and maintain;
permit and inspection fees; electricity; gas; heating; air-conditioning; water;
sewer; other utilities; supplies and materials; labor; maintenance and repairs;
refurbishing; reasonable reserves for replacement or repair of components of the
Improvements; landscaping; janitorial and security services; snow removal;
professional fees; and reasonable management fees. Notwithstanding the breadth
of the foregoing, Operating Expenses shall not include principal or interest
paid by Lessor on any mortgage or deed of trust affecting the Property or
Improvements. In the event the exact amount of any
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ingredient of Operating Expenses is not known at the time it is necessary to
determine such Expenses, Lessor's reasonable estimate of the amount of such
ingredient shall be used.
As used herein the term "Proportionate share" shall mean a fraction whose
numerator is the Usable Area of the Premises and whose denominator is the total
Usable Area (as reasonable determined by the Lessor) contained in the Building.
In addition to other payments by Lessee to Lessor required by this Lease,
Lessee shall pay to Lessor as addition rents, for each year or portion thereof
during the term of this Lease, Lessee's Proportionate Share of the amount of
annual Operating Expenses in excess of $2.56 per year per square foot of total
Usable Area (as reasonable determined by Lessor) contained in the Building.
At a time convenient for Lessor after the end of each calendar year (or,
at Lessor's option, at or about the end of the term of this Lease), Lessor shall
provide to Lessee a statement of Lessee's Proportionate Share of excess
Operating Expenses. Within 30 days after its receipt of such statement, Lessee
shall pay the entire amount shown to be due. However, Lessor reserves and shall
have the right at any time to reasonably estimate Lessee's Proportionate share
of excess Operating Expenses for any current calendar year or portion thereof
and to require that Lessee pay to Lessor, on a monthly basis at the same time
that rent is payable under this Lease,
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the total amount of the estimate divided by the total number of months included
in the period covered by the estimate. If Lessor exercises such right, Lessee
shall thus pay the necessary amount monthly, and within three months after the
end of each calendar year during which Lessee has paid to Lessor such estimated
payments, Lessor shall render a statement to Lessee showing the difference
between Lessee's actual Proportionate Share of excess Operating Expenses for
such year or portion thereof and the total amount of Lessor's estimate for the
year or portion thereof collected from Lessee. Lessee shall pay any shortage to
Lessor within 10 days after Lessee's receipt of such statement. Correspondingly,
Lessee shall receive a credit in the amount of any overpayment, which credit may
be applied by Lessee to subsequent payments due under this Section 5, so long as
Lessee is not in default under this Lease.
Lessee shall be required to make the annual payment called for in this
Section 5 even though the term of this Lease has expired or terminated prior to
the time Lessor renders a statement for such payment. However, if the term of
this Lease has not been in effect for the entirety of the annual or other period
covered by a statement contemplated hereby, the amount required to be paid by
Lessee shall be determined through a proration which takes into account the
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length of time that the term has been or was in effect.
Each of the final statements and determinations provided for above shall
become absolutely binding on the Lessee, and not subject to challenge by Lessee,
one year after the time the statement in question is furnished to Lessee, unless
prior to the expiration of such one-year period Lessee furnishes Lessor with a
writing wherein Lessee disputes such statement and determination.
6. Use of Premises: The leased premises may be used for any legal purpose.
7. Insurance and Indemnification: Lessor agrees to maintain fire
insurance on the premises. Lessee is responsible for insurance on Lessee's
inventory, personal property and other assets and agrees to waive all claims
against Lessor for loss or damage of same or for injury to persons in and upon
the premises from any causes whatsoever. Lessee also agrees to indemnify and
hold harmless Lessor of and from any and all claims of any kind or nature
arising from Lessee's use of the premises.
8. Changes and Improvements: Lessee agrees that changes or improvements of
any kind can be made by Lessee without the Lessor's written consent. Lessee
agrees that the changes and improvements shall become a part of the premises.
9. Signs: Lessee may, with the verbal approval of Lessor, place signs on
the exterior of the premises. Lessee
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shall maintain the signs in good condition.
10. Common Areas: Lessor may make and enforce reasonable rules and
regulations for the management, use and maintenance of the common areas of the
building and premises and may alter or amend the same when necessary. Said rules
shall be binding on all occupants of the building. Lessor, however, shall not be
liable to Lessee for any damage to Lessee caused by any non-observance by others
of said rules.
11. Condition of Property: Lessee hereby acknowledges that it has
inspected the premises and common area, that it knows the condition thereof and
that it accepts the premises as being in good condition.
12. Right of Access: Lessor shall have the right to enter into and upon
the premises at reasonable times or reasonably limit Lessee's beneficial use of
the premises for the purpose of inspecting the same, making such repairs and
alterations as may be necessary or other reasonable business purposes. Lessee
shall permit, during the month preceding the expiration of this lease, signs and
notices to be posted on the premises indicating that the premises are to be let
or sold.
13. Holdover: Any holding over after the expiration of this lease shall be
construed to be a tenancy from month to month at the rental rate applicable to
the last full month prior to such holdover.
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14. Surrender of Premises: Lessee agrees to surrender the premises
including all changes and improvements unto Lessor on the last day of the term
of this lease in the same condition as when received, reasonable use and wear
thereof excepted.
15. Destruction of Premises or Loss by Eminent Domain: If the premises or
any part thereof shall be damaged or destroyed or if all or substantially all of
the premises shall be taken under any condemnation or eminent domain proceeding,
then the lease shall terminate unless Lessor shall elect to reconstruct or
repair the premises, within a reasonable time, but no rent shall be due during
the period that Lessee is deprived of the beneficial use of the premises.
16. Default: If Lessee shall default in the fulfillment of any of the
terms and conditions in this lease including failure to pay rent when due, and
such default shall continue for a period of 5 days after written notice of
Lessee, or if the lease premises shall be abandoned or vacated, or if Lessee
shall be legally dismissed therefrom by or under authority other than Lessor, or
if Lessee shall file a voluntary petition in bankruptcy or other insolvency
proceeding, then Lessor, in addition to any other rights or remedies it may
have, shall have the immediate right of re-entry and may remove all persons and
property from the premises. Lessor may relet said
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premises or any part thereof for such term or terms and at such rentals and
upon such other terms and conditions as Lessor, in its sole discretion, may deem
advisable. No such re-entry or taking possession by Lessor shall be construed as
an election by Lessor to terminate this lease, unless so declared by the Lessor.
Furthermore all rent is immediately due and payable.
17. Subleasing: Lessee may sublet the premises or any portion thereof
without the consent of Lessor, provided however that any such subleasing shall
be subordinate and subject to this lease.
18. Negligence, Nuisance and Waste: Lessee shall be responsible for losses
resulting from the negligence or misconduct of Lessee's employees or invitees.
Lessee also agrees not to commit, or suffer to be committed, any waste of the
premises or nuisance on or near the premises.
19. Successors: This lease and the terms and conditions hereof apply to
and are binding on the heirs, legal representatives, successors and assigns of
both parties.
20. Totality and Separability: This lease contains the entire agreement
between the parties and cannot be changed or terminated except in writing. Each
provision hereof shall be separate and independent and the breach of any such
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provision by Lessor shall not discharge or relieve Lessee from its obligations
to perform each and every covenant to be performed by Lessee hereunder.
21. Waiver: No delay or omission by Lessor to exercise any right
hereunder shall constitute a waiver of any default by the Lessee. The acceptance
of any monies less than the total monies then due by Lessor from Lessee, shall
not be a waiver of any other monies then due nor the right to demand performance
of any other obligation of the Lessee under this Lease.
22. Notice: Notice shall be sent to lessor at 000 Xxxxx 000 Xxxx, Xxxxx
000, Xxxx Xxxx Xxxx, Xxxx 00000, notice shall be sent to Lessee at 0000 Xxxxxxx
Xx. XxXxxx, Xxxxxxxx 00000, or such other place as the parties may from time to
time advise each other in writing.
23. Attorneys Fees and Costs: In case of failure to faithfully perform the
terms and covenants herein set forth, the defaulting party shall pay all costs,
expenses and reasonable attorneys fees resulting from the enforcement of this
lease or any rights arising out of such breach including storage costs or
expenses incidental to reletting the premises. Net proceeds received from
reletting the premises will be applied to the amount due and Lessee agrees to
pay any deficiency.
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24. Applicable Law: This Lease shall be governed by, and construed in
accordance with, the laws of the State of Utah.
IN WITNESS WHEREOF, Lessor and Lessee have signed their names or caused
the signature of their proper and authorized representatives to be affixed
hereto, the day and year first above written.
W B & H INVESTMENTS, a Utah
Limited Partnership, Lessor
By /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, General
Partner
DECIMA RESEARCH, a California
Corporation, Lessee
By /s/ Xxxx X. Xxxxx
-----------------------------------------
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