COMMERCIAL LEASE
This Lease is made and entered into this 1st day of November, 1999 by and
between FRE CORPORATION III, a California corporation, as Lessor and Dynatec
International, Inc. a Utah corporation, as Lessee.
WHEREAS, this Lease is made and entered into with regard to the acres of real
property located at approximately 0000 Xxxxx Xxxxx Xx., Xxxx Xxxxxx Xxxx, Xxxxx
of Utah, more particularly described on the attached legal entitled Exhibit "A"
which is incorporated herein by reference (hereinafter referred to as the "Real
Property" or as the "Premises").
WHEREAS, there is attached hereto and marked Exhibit "B" a site plan for the
Real Property. The site plan discloses the location of the approximately 50,123
square foot building (the "Building") and other improvements which are to be let
by Lessor pursuant to the terms of this Lease. Said site plan is incorporated
herein by reference.
WHEREAS, Lessor is desirous of leasing the Real Property to Lessee, and Lessee
is desirous of leasing the same from Lessor upon the terms and conditions
hereafter set forth.
THEREFORE, in consideration of the foregoing promises and each and all of the
mutual and reciprocal covenants, terms, provisions, conditions and agreements
hereinafter set forth, Lessor does hereby lease, let and demise unto Lessee and
Lessee does hereby accept, take and hire from Lessor, upon the terms and
conditions set forth herein the Real Property together with the improvements
thereon.
I. COMMENCEMENT DATE
1. Deleted.
1.2 Deleted.
1.3 Deleted.
1.4 Occupancy by Lessee shall be deemed to be that of a Lessee under all of
the terms, covenants and conditions of this Lease and Lessee's
liability for rent, taxes, insurance and maintenance obligations shall
commence and become payable on the date this lease is executed by
Lessor and Lessee (hereinafter the "Commencement Date"). Should that
date occur on any day other than the first day of a calendar month,
rent, taxes, insurance, and maintenance charges for the month shall be
prorated and the Commencement Date shall be deemed to be on the first
day of the month following the date of execution of this Lease .
1
1.5 Deleted.
1.6 Deleted.
1.7 Deleted.
II. TERM
2. The term of this Lease shall be for a period of twenty (20) years to
commence on the Commencement Date.
2.1 Providing that Lessee is not in default under the terms of this Lease,
Lessee shall have the option to extend the lease term for two(2)
additional periods of five (5) years each beyond the original twenty
(20) year lease term. Said options must be exercised by Lessee in
writing no sooner than twelve (12) months and no later than six (6)
months prior to the expiration of the then current lease term. If
Lessee is in default on the date of giving the option notice, the
option notice shall be totally ineffective. If Lessee is in default on
the date the applicable option period is to commence, the option period
shall not commence and this Lease shall expire at the end of the
initial term. During each of the five (5) year option periods, all
terms, conditions, and provisions of this Lease shall remain in full
force and effect with all time periods extended accordingly.
III. RENT
3. Lessee shall pay Lessor an annual minimum base rent of $330,000.00, in
equal monthly installments of $27,500.00 each due on the first day of
the month during the term hereof. The first monthly rent installment
shall be due the first day of the month following the day of lease
execution. If any installment of rent, additional rent, or any other
sum due from Lessee shall not be received by Lessor within fifteen
(15) days after said amount is due, then Lessee shall also pay to
Lessor a late charge equal to six percent (6%) of any such overdue
amount. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Lessor will incur by reason of
late payment by Lessee. Rent not paid when due shall bear interest
from the date due until paid at ten percent (10%) per annum. All rent
shall be paid monthly on the first day of each month.
3.1 The annual base rent previously provided for herein shall be subject to
adjustment every five years during the initial twenty (20) year term
and the two additional option periods hereof according to the following
schedule:
2
Period Annual Base Rent
Months 1-60 $330,000.00
Months 61-120 $364,346.67
Months 121-180 $402,268.16
Months 181-240 $444,136.55
The rent for each option period shall be the fair rental value of the
Premises at the commencement of said option period as determined by
Lessor, but not less than the rent for the last year of the prior term.
If Lessee disagrees as to the fair rental value determined by Lessor,
Lessee may obtain an appraisal of the fair rental value of the Premises
at its sole cost and expense. If Lessor disagrees with Lessee's
appraisal, Lessor and Lessee shall obtain and divide the cost of a
second appraiser, whose opinion of the fair rental value shall be
binding on both Lessor and Lessee. To select the second appraiser,
Lessor shall provide Lessee three choices, and Lessee shall select the
appraiser from among these three choices. During the period of time
prior to the final determination of the rent during the Extended Term,
Lessee shall pay rent at a rate of one hundred ten percent ( 110%) of
the rent then in effect. If the fair rental value is determined to be
greater or less than such amount, Lessee shall pay Lessor or Lessor
shall refund to Lessee, as the case may be, within thirty (30) days
after written request therefore, the difference between the amount
required by such determination of the fair rental rate and the amount
of rent theretofore paid by Lessee.
All rent shall be paid monthly on the first day of each month. The
first month's rent in the amount of $27,500.00 shall be paid to Lessor
upon the full execution hereof.
3.2 Deleted.
3.3 Deleted.
3.4 Lessee shall deposit with Lessor upon execution hereof the sum of
$27,500.00 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this
Lease, Lessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for
the payment of any other sum to which Lessor may become obligated by
reason of Lessee's default, or to compensate Lessor for any loss or
damage which Lessor may suffer thereby. If Lessor so uses or applies
all or any portion of said deposit, Lessee shall within ten (10) days
after written demand therefor, deposit cash with Lessor in an amount
sufficient to restore said deposit to the full amount hereinabove
stated and Lessee's failure to do so shall be a breach of this Lease,
and Lessor may at its option terminate this lease. Lessor shall not be
required to keep said deposit separate from its general accounts. If
Lessee performs all of Lessee's obligations hereunder, said deposit or
so much thereof as had not theretofore been applied by Lessor, shall be
returned without payment of interest or other increment for its use, to
Lessee (or, at Lessor's option, to the last assignee, if any, of
3
Lessee's interest hereunder) within fifteen (15) days after the
expiration of the term thereof, or after Lessee has vacated the
premises, whichever is later.
IV. USE
4. Lessee shall use and occupy the premises for light manufacturing and
distribution with associated sales, all uses incidental thereto, and
any other reasonable business purpose approved in writing by Lessor,
which approval shall not be unreasonably withheld.
4.1 Lessee shall restrict its use to such purposes, and shall not use the
premises for any other purpose without the written consent of Lessor
which consent shall not be unreasonably withheld. Lessee shall, at its
own cost and expense, obtain any and all licenses and permits necessary
for such use. Notwithstanding the foregoing, the premises shall not be
used for any purpose which would violate federal, state or local law or
declarations or covenants affecting the premises. No use shall be made
or permitted to be made which will increase the existing rate of fire
insurance on the Premises or cause the cancellation of any insurance
policy covering the Premises or any part thereof.
4.2 Lessee's use of the premises shall at all times be in compliance with
all covenants, restrictions and maintenance agreements that have been
recorded in the office of the Salt Lake County Recorder affecting the
Real Property, if any.
V. TAXES
5. Lessee agrees to pay, as additional rent and before they become
delinquent, all real property and personal property taxes (both
general and special), water and sewage rents, assessments and/or
governmental charges (hereinafter collectively referred to as "taxes")
lawfully levied or assessed against the Premises or any part thereof
that accrue during the term of this Lease; provided, however, Lessee
may, at its sole cost and expense, dispute and contest the same, and
in such case, such disputed items need not be paid (unless required by
law to be paid) until finally adjudged to be valid so long as the
validity or the amount thereof is contested by Lessee in good faith
and in accordance with Utah state law. At the conclusion of such
contest, Lessee shall pay the items contested to the extent that they
are held valid, together with all liens, court costs, interest and
penalties relating thereto. Proration of said payments by Lessee shall
be made when necessary for the first and last years of the lease term
or any extensions thereof. This covenant shall survive the expiration
of this Lease.
5.1 Lessor shall provide Lessee copies of the "property valuation and tax
notice" covering the premises each year as they are issued by the Salt
Lake County Treasurer and/or Assessor and of any other tax notices
immediately upon their receipt by Lessor. Lessee shall notify Lessor of
any proposed contest by Lessee of the valuation, amount of the tax or
legality thereof prior to the deadline for filing the necessary
protest, appeal, or petition. Any such contest by Lessee must be timely
4
made and may be made in the name of Lessor or Lessee, or both, but if
the name of Lessor is used herein, Lessor shall be notified thereof at
least five (5) days prior to the commencement of the proceeding. If
requested by Lessee, Lessor shall actively participate in any such
contest, but Lessee shall be entitled to any refund of any tax, or
penalty, or interest thereon which may have been paid by Lessee or by
Lessor, and reimbursed by Lessee to Lessor.
5.2 Lessee shall be liable for all taxes levied against Lessee's personal
property and trade fixtures on or about the Premises including, but
without prejudice to the generality of the foregoing, shelves,
counters, vaults, vault doors, partitions, fixtures, machinery, and if
any such taxes on Lessee's property or trade fixtures are levied
against Lessor, and if Lessor pays the same, Lessee, upon demand, shall
repay to Lessor the taxes so levied against Lessor.
5.3 Nothing herein contained shall be construed as requiring Lessee to pay
any franchise, excise, corporate, estate, inheritance, successorship,
capital levy or transfer tax of Lessor growing out of, or connected
with, this Lease, or Lessor's rights in the building, or any income,
excess profits, or revenue tax upon the income of Lessor, provided,
however, that in any case where a tax (other than an income tax) may be
levied, assessed or imposed upon Lessor for the privilege of renting or
leasing the Premises or which is based upon the rental revenue derived
therefrom, Lessee, within ten (10) days of receiving written notice
from Lessor, shall pay to Lessor as additional rent hereunder the
amount of said tax, but in no event shall Lessee be obligated to pay an
amount greater than that which would be payable if the Premises were
the only asset of Lessor.
VI. MAINTENANCE AND REPAIR
6. Any and all improvements which may be existing as of the Commencement
Date, erected or placed on the Real Property at any time during the
term of this Lease shall be kept and maintained in good order and
repair and replaced where necessary or appropriate by Lessee at its
sole cost and expense. Lessee's maintenance obligation shall include,
but not be limited to, the structural parts of the Building,
sidewalks, driveways, landscaping, parking areas, HVAC systems,
plumbing and electrical systems, windows, glass, doors, interior and
exterior walls, roof, finish work, floors, floor coverings and
fixtures. Lessee shall also comply at its sole cost and expense with
all laws, ordinances, orders, regulations, rules and requirements of
every kind and nature whether they relate to ordinary or
extraordinary, structural or nonstructural additions, changes, repairs
or alterations to the premises made necessary by Lessee's use. Lessee
shall also comply at its sole cost and expense with the terms,
conditions, and provisions of all of the restrictive covenants,
restrictions and maintenance agreements that may have been recorded in
the office of the Salt Lake County Recorder affecting the Real
Property.
5
6.1 Lessor and its agents shall have the right to enter into and upon the
Real Property or any part thereof, on reasonable notice to Lessee, at
all reasonable hours for the purpose of examining the same or making
such repairs or alterations therein as may be necessary for the safety
and preservation thereof. In case of the neglect or default of Lessee
in making the same, Lessor may do so after reasonable notice to Lessee
(except that no notice shall be required in case of emergencies) during
said term or after its expiration and all the costs and expenses
incurred thereon, together with interest shall be repaid by Lessee to
Lessor according to the provisions of Section XVIII.
6.2 Deleted
6.3 Lessee shall enter into and keep in force a maintenance/service
contract with a manufacturer licensed maintenance contractor for
regularly scheduled preventative maintenance and for servicing all
heating and air-conditioning systems and equipment within the Premises.
The service contract must include all services suggested by the
equipment manufacturer in its operation and/or maintenance manual and
must become effective within thirty (30) days of the date Lessee takes
possession of the premises.
6.4 Lessor's Maintenance and Repair Obligations. Lessor shall have no
obligation to maintain, make capital improvements to or repair the Real
Property. The Real Property and Premises are leased to Lessee in an "As
Is" condition with no warranties expressed or implied.
6.5 ADA Compliance. Lessee shall insure that all aspects of the original
construction of the Building (including, without limitation, demising
walls, exterior doors, entry points or other access to the Premises)
fully comport with the requirements of the Americans With Disabilities
Act, 42 U.S.C. xx.xx. 12101 et seq. (the "ADA"). Similarly, Lessee
shall insure that all aspects of any improvements or alterations to the
Premises subsequently undertaken by Lessee fully comport with the
requirements of the ADA. Lessee shall be responsible for all future
compliance with the ADA that results from changes in the ADA
regulations or from changes in Lessee's use of the Premises. Lessee
shall indemnify and hold Lessor harmless from and against any and all
losses, damages, actions and proceedings attributable to the failure of
Lessee to fully comply with its obligations under this section 6.5 If
either party is required to repair, alter, remove, reconstruct, or
improve any part of the Premises or of the Building for whatever reason
(including compliance with the ADA), the same shall be made by that
party with reasonable dispatch and with a minimum of interference with
Lessee's business on the Premises.
VII. NET LEASE; NO ABATEMENT
7. This Lease is intended, and is hereby declared, to be an "absolute net"
lease, it being the intention of the parties hereto that Lessor shall
have and enjoy the rent herein reserved to it without deduction
therefrom.
6
7.1 No abatement, diminution, or reduction of the fixed rental or other
charges payable by Lessee under this Lease shall be claimed by or
allowed to Lessee for any inconvenience, interruption, cessation, or
loss of business, or otherwise caused directly or indirectly by any
present or future laws, rules, requirements, orders, directions,
ordinances, or regulations of the United States of America or of the
State, County, or City government or any other municipal, government,
or lawful authority whatsoever or by priorities, rationing, or
curtailment of labor or materials or by war or any matter or things
resulting therefrom or by any other cause or causes; except if
otherwise specifically provided in this Lease. It is understood that
Lessor is not entitled to retain rent by Lessee and also to retain the
proceeds of any rent insurance that it might receive where both cover
the same periods of time.
VIII. UTILITIES
8. Lessee shall make all arrangements for and pay before delinquency for
all water, gas, heat, light, power, telephone and other utilities and
services supplied to the property together with taxes thereon and all
deposits related thereto. Throughout the term of this Lease, Lessee
shall, at its own cost and expense hire and provide for its own trash
removal. The arrangements made shall comply with local ordinances for
refuse pick-up as to frequency and time, and shall not result in any
violation of environmental standards.
IX. INDEMNIFICATION; HAZARDOUS WASTES
9. Lessee shall indemnify, defend and hold harmless Lessor against any and
all claims of liability for any injury or damage to any person or
property whatsoever occurring in, on or about the Premises or any part
thereof, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim, action or
proceeding brought thereon, except to the extent such injury or damage
is caused by the negligence or intentional acts of Lessor or Lessor's
agents or employees, and Lessor agrees to indemnify Lessee and hold it
harmless from any and all loss, expense or claims, including reasonable
attorney's fees arising out of such damage or injury caused by Lessor
or Lessor's agents or employees.
9.1 Hazardous Wastes or Substances. The following provisions shall govern
the parties' respective rights and obligations regarding any hazardous
wastes or substances now or hereafter located on the Premises:
a. Definitions. For purposes of this Lease, the terms "disposal",
"release", "threatened release", and "hazardous wastes" shall
mean and include any hazardous, toxic or dangerous waste,
substance or material, or any disposal, discharge or release,
or threatened release, or any defined as such in (or for the
7
purposes of) the Federal Comprehensive Environmental Response,
Compensation and Liability Act, or any other federal, state or
local statute, law, ordinance, code, rule, regulation, order
or decree, relating to any hazardous, toxic or dangerous
wastes, substances or materials, as now or at the time
hereafter in effect (the "Environmental Laws").
b. No Hazardous Materials During Lease Term. Lessee hereby
represents, warrants and certifies that, during the entire
period of Lessee's occupancy of the Premises, there will be no
disposal, release or threatened release of hazardous
substances or hazardous wastes on, from or under the Premises
attributable to the neglect or affirmative act of Lessee or
its employees, agents, contractors, licensees or invitees.
c. Environmental Inquiries. From and after the date of this
Lease, Lessee shall immediately notify Lessor of the
occurrence of any inquiries, on-site inspections, or the like
by any federal or state governmental agency or entity relating
to Lessee's or the Premises' compliance with the applicable
Environmental Laws. If any such inspection or inquiry results
in a notice of violation of one or more of the Environmental
Laws or the like, Lessee shall promptly notify Lessor of such
violations (including providing to Lessor a photocopy of any
written findings, notice, order, or the like), and Lessee
shall immediately undertake all actions necessary to remedy
and cure any such violations attributable to a breach of
Lessee's obligations under section 9.1(b) above.
d. Indemnification. Lessee shall indemnify, defend and hold
harmless Lessor (and any successors to Lessor's interest in
the chain of title to the Premises) from and against (a) any
and all claims, damages and liabilities arising from or in
any way in connection with the presence, use, storage,
disposal, or transfer of any hazardous materials on, under,
from or about the Premises, including, without limitation,
all foreseeable and unforeseeable consequential damages,
directly or indirectly arising out of the use, generation,
storage or disposal of hazardous materials by Lessee or any
person taking an interest in the Premises by, through, or
under Lessee, and (b) all costs of any required or necessary
repair, cleanup, or detoxification, whether such action is
required or necessary prior to or following the termination
or earlier expiration of this Lease, except to the full
extent that such action is attributable, directly or
indirectly, to the presence or use, generation, storage or
release, threatened release or disposal of hazardous
materials onto the Premises by Lessor or Lessor's agents or
employees. The parties' respective rights and obligations
pursuant to the foregoing indemnifications shall survive the
expiration or earlier termination of this Lease.
8
X. INSURANCE
10. At all times during the term of this Lease, Lessee, at its sole cost and
expense, and as additional rent shall:
a. Fire, Earthquake, and Flood Insurance: Keep all buildings and
improvements and equipment on, in or appurtenant to the
property including all alterations and additions, insured
against loss or damage by fire, earthquake, or flood and all
extended coverage casualties for the full, fair insurable
value thereof. The policies for such insurance shall be made
and taken in the name of Lessor as an additional insured party
with loss thereunder payable to Lessor and/or the Mortgagee.
Such policy or policies shall be deemed to be and remain in
the possession of Lessor or Mortgagee.
b. Public Liability Insurance: Provide and keep in force in
such form as Lessor shall direct, public liability insurance
policies protecting Lessor and Lessee against all insurable
risks in the amounts of not less than Two Million Dollars
($2,000,000.00) in respect to any one accident or disaster
and in the amount of not less than One Million Dollars
($1,000,000.00) in respect to injuries to any one person,
and in an amount of not less than One Hundred Thousand
Dollars ($100,000.00), in respect to property damage,
provided that from and after the Sixty-first (61st) month of
the term of this Lease, the public liability insurance
policies required by this Section 10(b) shall be in amounts
of not less than Five Million Dollars ($5,000,000.00) in
respect to any one accident or disaster and in the amount of
not less than Two Million Dollars ($2,000,000.00), and in an
amount of not less than Two Hundred Thousand Dollars
($200,000.00), in respect to property damage
c. Rent Insurance: Provide and keep in force rent or use and
occupancy insurance at all times during the term hereof
against loss or damage resulting from hazards specified in
clause 10(a) in an amount equal to monthly payments of net
rent for six (6) months, plus taxes and insurance premiums for
six (6) months.
d. Premiums to be Paid by Lessee: All premiums and charges
for all of said policies shall be paid when due by Lessee.
If Lessee fails to make such payments and/or to carry any
such policy, Lessor may, but shall not be obligated to, make
such payment or carry such policy, and the amounts paid by
Lessor, with interest thereon, shall be repaid to Lessor by
Lessee on demand, and all such amounts so repayable together
with such interest, shall be considered as additional rent
payable hereunder, for the collection of which Lessor shall
have all of the remedies in Section XXV herein or by law
provided for the collection of rent. Payment by Lessor of
any such premium or carrying by Lessor of any such policy
shall not be deemed to waive or release the default of
Lessee with respect thereto.
9
e. Renewal of Insurance: Thirty (30) days prior to the expiration
of each such policy, Lessee shall deliver a binder renewing
each such policy which binder shall provide that at least
thirty (30) days' written notice of any change in or
cancellation thereof shall be given by the insurance company
to Lessor and Mortgagee. Lessee shall promptly pay the
premiums for renewal and deliver to Lessor each original
policy and a duplicate receipt evidencing each payment
thereof.
f. Compliance with Insurance Company Requirements: Lessee shall
not violate or permit to be violated any of the conditions or
provisions of any such policy, and Lessee shall so perform and
satisfy the requirements of the companies writing such
policies that at all times insurance companies of recognized
responsibility and licensed to do business in the State of
Utah shall be willing to write and/or continue such insurance.
g. Collection of Insurance Monies: Lessee and Lessor shall
cooperate with each other in the collection of any insurance
monies that may be due in the event of loss, and Lessee shall
execute and deliver to Lessor such proofs of loss and other
instruments which may be required for the purpose of obtaining
the recovery of any such insurance monies.
h. Liability Policies - Coverage: Liability policies specified in
subdivision b. of this Section shall cover the entire building
and premises as well as the sidewalks, driveways and parking
areas in front of or adjacent thereto. A liability policy or
policies insuring Lessor and Lessee as their interests may
appear, but otherwise in the form hereinbefore provided, shall
be deemed to satisfy this requirement.
i. Waiver of Subrogation: Lessee shall, at all times during
the term hereof and at its cost and expense, maintain
insurance on the merchandise and other personal property
from, in, on, or upon the premises in an amount equal to
their full replacement value, providing protection against
any peril included within the classification "Fire and
Extended Coverage". Lessor shall not be liable to Lessee for
any damage to any such property from any cause, unless (i)
such damage is due to Lessor's negligence, and (ii) such
damage is caused by an occurrence which is not an insurable
hazard under the standard fire and broad form coverage
insurance which is available for insuring such property of
Lessee at the time of the loss; it being understood that it
is not the intention of the parties that Lessor be relieved
from liability to Lessee for negligence contrary to any
statute of public policy of the State of Utah, but rather
that Lessee avail itself of available insurance coverage
without subjecting Lessor to liability for losses that could
have been insured, and without subjecting Lessor to
subrogation claims of any insurer.
j. All insurance described in this paragraph shall be policies
issued by insurers licensed to do business in the State of
Utah and having a current Bests' policy holders' rating of at
10
least B+ (or better if so required by the holder of any first
mortgage against the Premises). No insurance may be subject to
cancellation or material change without thirty (30) days'
prior written notice to Lessor.
XI. ALTERATIONS
11. Lessee shall have the right, within the premises, at its own cost and
expense and in a good and workmanlike manner, to make improvements to
the Premises, provided (i) such acts do not affect the structure of
the building, (ii) that upon termination of the Lease, Lessee restores
the premises to their prior condition (reasonable wear and tear
excepted), (iii) that Lessee shall submit reasonably detailed final
plans and specifications and working drawings of the proposed
alterations and the name of Lessee's contractor at least thirty (30)
days before the date Lessee intends to commence the alternations, (iv)
that the alterations shall not be commenced until five (5) days after
Lessor has received notice from Lessee stating the date the
installation of the alterations is to commence so that Lessor can post
and record an appropriate notice of non-responsibility, and (v) Lessee
complies with all applicable building codes, laws and governmental
rules and regulations.
11.1 Notwithstanding anything to the contrary in this Lease, (i) Lessee is
not required to remove any fixtures or other items installed by Lessor
on Lessee's behalf (at the termination or expiration of the Lease or
any other time), and (ii) Lessee shall have the right, unless in
default under the provisions of the Lease (at the termination or
expiration of the Lease or at any other time) to remove any fixtures or
other items installed by Lessee (including any flat wire cable and
carpet tile), provided Lessee restores the premises to their condition
prior to such installation, reasonable wear and tear excepted.
XII. INSPECTION
12. Lessor shall have the right to enter and inspect the premises at any
time, on reasonable notice to Lessee, during normal business hours.
During the period that is six (6) months prior to the end of the then
current term hereof, Lessor and Lessor's agents and representatives
shall have the right to enter the premises at any time during
reasonable business hours on reasonable notice to Lessee for the
purpose of showing the premises to prospective purchasers or lessees.
At all times during such six month period, Lessor shall be entitled to
place on the Premises any usual or ordinary "For Sale" signs or for any
other purpose incidental to the rights of Lessor.
XIII. ASSIGNMENT & SUBLETTING
13. Lessee shall not have the right to assign this Lease or to sublet the
whole or any part of the Premises without the prior written consent of
Lessor, which consent shall not be unreasonably withheld, provided,
11
however, that Lessee shall pay to Lessor Thirty-three percent (33%) of
the net economic benefit which Lessee receives from any such assignment
or subletting. In the event Lessee shall assign or sublet the Premises
or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes
to do, then Lessee shall pay Lessor's reasonable attorneys' fees
incurred in connection therewith provided that Lessee's obligation to
pay Lessor's costs under this Section 13 shall be limited to One
Thousand Dollars ($1,000) per event.
13.1 Notwithstanding any permitted assignment or subletting, Lessee shall at
all times remain fully responsible and liable for the payment of the
rent and additional rent specified herein and for compliance with all
of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an "event of default" as hereinafter
defined, if the Premises or any part thereof are then assigned or
sublet, Lessor, in addition to any other remedies herein provided, or
provided by law, may, at its option, collect directly from such
assignee or subtenant all rents becoming due to Lessee under such
assignment or sublease and apply such rent against any sums due to it
by Lessee hereunder, and no such collection shall be construed to
constitute a novation or release of Lessee from the further performance
of its obligations hereunder.
XIV. FIRE AND CASUALTY DAMAGE
14. If the Premises should be destroyed or damaged by fire, tornado or
other casualty, Lessee shall give immediate written notice thereof to
Lessor.
14.1 If the premises should be totally destroyed by fire, tornado or other
casualty, or if they should be so damaged that rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the date
upon which Lessor is notified by Lessee of such damage, this Lease
shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective upon the date of the occurrence of
such damage. The determination as to whether or not the Premises can be
reconstructed within one hundred eighty (180) days of the date of the
notice of the casualty to Lessor shall be made by an architect selected
by Lessor who shall certify to the parties within thirty (30) days of
the casualty whether or not the premises can be repaired within one
hundred eighty (180) days of the date of notice of such casualty to
Lessor. If total destruction occurs within one (1) year of the
expiration of the then current term, reconstruction shall commence only
upon mutual consent of both Lessor and Lessee.
14.2 If the Premises should be damaged by fire, tornado or other casualty,
but only to such extent that rebuilding or repairs can be completed
within one hundred eighty (180) days after the date upon which Lessor
is notified by Lessee of such damage, this Lease shall not terminate,
but Lessor shall proceed with reasonable diligence to rebuild and
repair the building and improvements to substantially the condition in
which they existed prior to such damage, except that Lessor shall not
be required to rebuild, repair or replace any part of the partitions,
fixtures and other improvements which may have been placed in the
building by Lessee. During the reconstruction period, there shall be no
12
abatement of rent or additional rent due Lessor even if the Premises
are totally untenantable. Additional time for completion of said
repairs shall be added equal to any delays in the repairs caused by
acts of God, inclement weather, strikes, boycotts or any other causes
beyond the control of Lessor and not due to any act or omission on its
part. In the event that Lessor should fail to complete such repairs and
rebuilding within one hundred eighty (180) days after the date upon
which Lessor is notified by Lessee of such damage (plus any additional
time due to delays caused by acts of God, etc.) Lessee may, at its
option, terminate this Lease by giving Lessor no less than thirty (30)
days' written notice of such termination.
14.3 In all cases of destruction or damage of the improvements by fire, the
elements or other causes, the net monies collected on the policies of
casualty insurance required by Section 10 herein shall be payable to
Lessor and/or its Mortgagee as their interests may appear. Lessor's
obligation to re-construct the Premises shall at all times be
conditioned upon there being sufficient insurance proceeds available to
complete said re-construction. Lessee agrees to execute and deliver
such forms of application, claim, demand, proof of loss, assignment or
authorization as may be necessary for collection of the insurance
proceeds; provided, however, nothing herein shall be deemed to give
Lessor any interest in or require Lessee to assign to Lessor any
compensation paid to Lessee for damage to personal property or fixtures
belonging to Lessee and removable by Lessee upon termination of this
Lease, for interruption of or damage to Lessee's business, or Lessee's
related expenses.
XV. CONDEMNATION
15. Definition. As used in this Article, the term "Condemnation
Proceedings" includes any action or proceeding in which any interest in
the Premises is taken for any purpose by any lawful authority through
exercise of the power of eminent domain, right of condemnation, right
of purchase or other proceeding in lieu of the foregoing. A sale by
Lessor of the Premises to any authority having the power of eminent
domain, either under threat of condemnation or for which Condemnation
Proceedings are pending, shall be deemed a taking under the power of
eminent domain for all purposes.
15.1 Termination and Rent Abatement. If the whole of the Premises is taken
through Condemnation Proceedings, this Lease shall automatically
terminate as of the date of taking. If any part of the Building or if
more than fifteen percent (15%) of the parking spaces on the Premises
are taken through Condemnation Proceedings and if the taking thereof
would be reasonably considered a material and substantial hindrance to
Lessee's normal business operation, then either party shall have the
right to terminate this Lease by giving the other party written notice
of such election at any time within sixty (60) days after the date of
taking.
13
In all other cases, or if neither party exercises its right to so
terminate, this Lease shall remain in effect and the base rent that is
payable under this Lease (but no other sums) shall, if applicable, be
proportionately reduced from and after the date of the taking on (a)
the basis of the area of the Premises that is capable of occupancy
after the taking compared to the area of the Premises that was capable
of occupancy prior to the taking; or (b) such other basis as shall be
equitable under the then circumstances (such as, for example, if the
parking of the Premises is reduced but the Building is not affected by
such Condemnation Proceedings).
In the event of any termination of this Lease or any rental reduction
as provided for in this Section 15.1, there shall be a proration of the
rent payable under this Lease for any fractional month up to the date
of taking and Lessor shall refund to Lessee any excess rent theretofore
paid by Lessee.
15.2 Condemnation Proceeds. Whether or not this Lease is terminated as a
consequence of Condemnation Proceedings, all damages or compensation
awarded for a partial or total taking of the Premises, shall be the
sole and exclusive property of Lessor. Notwithstanding the foregoing,
if an amount is separately awarded with the intent to compensate Lessee
for (a) costs connected with a relocation by it to a new facility, (b)
losses or damages relating to Lessee's personal property or trade
fixtures on, or other improvements by Lessee to, the Premises, (c) loss
of business incurred by Lessee, and/or (d) diminution in the value of
or deprivation of its leasehold estate, such amount(s) shall be the
property of Lessee.
15.3 Construction. If this Lease is not so terminated, then Lessor shall, as
soon as practical after the taking, restore the Premises to a complete
unit as similar under the circumstances as possible to the design,
character and quality of the Premises as existed prior to the taking.
Lessor shall commence restoration of the Premises within ninety (90)
days after the date of the taking, and shall complete the same as
expeditiously as possible, with due regard being had to prevailing
conditions. During the period of any such reconstruction, the rent due
hereunder shall be abated in an equitable fashion. Lessor's obligation
to re-construct the Premises shall at all times be conditioned upon
there being sufficient condemnation proceeds available to complete said
re-construction.
XVI. HOLDING OVER
16. Should Lessee, or any of its successors in interest, hold over the
premises or any part thereof, after the expiration of the term of the
Lease, unless otherwise agreed in writing, such holding over shall
constitute and be construed as tenancy from month to month only, at a
rental equal to the rental payable for the last month of the term of
this Lease. The inclusion of the preceding sentence shall not be
construed as Lessor's permission for Lessee to hold over.
14
XVII. QUIET ENJOYMENT
17. Lessor covenants that it shall have good title to the land. Lessor
represents and warrants that it has full right and authority to enter
into this Lease and that Lessee, upon paying the rental herein set
forth and performing its other covenants and agreements herein set
forth, shall reasonably and quietly have, hold and enjoy the premises
for the term hereof without hindrance or molestation.
XVIII. LESSOR'S OPTION TO PERFORM OBLIGATIONS OF LESSEE
18. In any case where Lessor shall pay or be compelled to pay any sum
of money or do any act which shall require the expenditure or payment
of any sum by reason of the failure of Lessee to perform any one or
more of the terms, covenants, conditions or agreements herein
contained, Lessee shall immediately repay the same to Lessor upon
demand, and in default thereof then the sums so paid by Lessor,
together with all interest, costs and damages, shall or may be added
as additional rent to the next installment of rent becoming due on the
next rent day, or on any subsequent rent day fixed by the Lease, and
shall for all purposes whatsoever be deemed to be rent due and payable
on such rent day, or on any subsequent rent day, as said Lessor may at
Lessor's option elect, and shall be payable as such, but it is
expressly covenanted and agreed hereby that payment by Lessor of any
such sums of money or the doing of any such acts shall not be deemed
to waive or release the default in the payment or doing thereof by
Lessee or the rights of Lessor by reason of Lessee's default with
respect to any such payment or act.
XIX. LESSOR'S LIEN
19. In the event of a default under this Lease, Lessor shall have, in
addition to any other remedies herein or by law, all rights and
remedies available under applicable Utah law. Any statutory lien for
rent is not hereby waived. Provided that Lessee is not in default under
any of the provisions of this Lease, Lessor shall, at the request of a
secured creditor of Lessee, issue a written subordination that
subordinates any statutory lien for rent or any lien for rent created
by the terms hereof covering Lessee's trade fixtures, personal property
or equipment to the lien of said secured creditor.
19.1 Provided that Lessee is not then in default under any provision of this
Lease, Lessor agrees, upon written notice by Lessee from time to time,
to subordinate its Lessor's Liens to any third party lender providing
financing to Lessee in connection with the acquisition or refinancing
of Lessee's furniture, fixtures, equipment and inventory.
15
XX. MORTGAGES
20. If the Real Property is subject to any mortgage prior to the
commencement date, then Lessor shall procure a nondisturbance
agreement from the mortgagee in standard form which provides that so
long as Lessee is not in default hereunder, its possession shall not
be disturbed by mortgagee and the mortgagee shall not name Lessee as a
defendant in a foreclosure suit. Lessee shall at any time after the
commencement date execute an instrument required by any mortgagee for
the purpose of subordinating this Lease to the lien of a mortgage in
consideration for a non-disturbance agreement from the mortgagee in
standard form which provides that so long as Lessee is not in default
hereunder, its possession will not be disturbed by the mortgagee and
the mortgagee will not name Lessee as a defendant in a foreclosure
suit. For the purposes of this paragraph the word mortgage and/or
mortgagee shall include any other equivalent designation including,
but not limited to, Deed of Trust, Trustee, etc. Upon written request,
Lessee will execute an estoppel certificate and subordination
agreement within ten (10) days of Lessee's receipt of written notice.
XXI. MECHANIC'S LIENS
21. Lessee shall have no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind, the interest of Lessor in the premises or to
charge the rentals payable hereunder for any claim in favor of any
person dealing with Lessee, including those who may furnish materials
or performs labor for any construction or repairs, and each such claim
shall affect and each such lien shall attach, if at all, only to the
leasehold interest granted to Lessee by this instrument. Lessee
covenants and agrees that it will pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the
Premises, on which any lien is or can be validly and legally asserted
against its leasehold interest in the Premises or the improvements
thereon and that it will save and hold Lessor harmless from any and
all loss, cost or expense based on or arising out of asserted claims
or liens against the leasehold estate or against the rights, title and
interest of Lessor in the Premises or under the terms of this Lease
based upon Lessee's failure to pay such sums. If Lessee disputes an
amount charged by such a lien, but admits that it authorized the work
to be done, Lessee may dispute the claim provided that it posts the
requisite bond necessary to remove the lien.
XXII. NOTICES
22. Each provision of this instrument or of any applicable governmental
law, ordinance regulation and other requirements with reference to the
sending, mailing or delivery of any notice of the making of any payment
16
by Lessor to Lessee or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Lessee to Lessor
shall be deemed to be complied with, when and if the following steps
are taken:
a. All rent and other payments required to be made by Lessee to
Lessor hereunder shall be payable to Lessor at the address
hereinbelow set forth or at such other address as Lessor may
specify from time to time by written notice delivered in
accordance herewith.
b. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered upon facsimile
transmission or, whether actually received or not, two days
following its deposit in the United States Mail, postage
prepaid, Certified or Registered Mail, Return Receipt
Requested, addressed to the parties hereto at the respective
addresses set out opposite their names below or at such other
address as they have theretofore specified by written notice
delivered in accordance herewith:
Lessor: FRE CORPORATION III
Attn. Xxxxxx X. Xxxxxx
C/o First Guaranty Exchange Company
Xxxxx 000
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
(000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Lessee: Dynatec International Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
With copy to: N. Xxxx Xxxxxxxx
Durham Xxxxx & Xxxxxxx
00 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
17
22.1 If and when included within the term "Lessor", as used in this
instrument, there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of
such a notice specifying some individual at some specific address for
the receipt of notices and payments to Lessor. All parties included
within the term "Lessor" shall be bound by notices given in accordance
with the provisions of this paragraph to the same effect as if each had
received such notice.
XXIII. SURRENDER OF PREMISES
23. Lessee shall, on or before the last day of the Lease term hereof or
upon the sooner termination of such term, peaceable and quietly leave,
surrender and yield up unto Lessor the land and improvements in good
order, condition and state of repair, reasonable wear and tear
excepted, together with all alternations, additions and improvements,
including air-conditioning equipment, machinery and ducts which may
have been made upon the Premises, except movable furniture, movable
personally property or movable trade fixtures, at the expense of
Lessee. All property removable pursuant to the provisions of this
Section shall be removed by Lessee on or before the date hereinabove
in this Section indicated and all property not so removed shall be
deemed abandoned by Lessee to Lessor. Where any personal property is
removed, any damage to the Premises will be repaired by Lessee.
23.1 All buildings, additions, improvements, equipment and appurtenances on
or in the Premises at the date hereof and which may be erected on or in
the Premises during the term hereof including all alterations, changes,
additions, and improvements at any time placed upon the Premises by
Lessee, as well as all fixtures and articles of personal property
attached to or used in connection with the Premises, are and shall be
deemed to be and become part of the realty and the sole and absolute
property of Lessor at the end or other termination of this Lease and
shall be surrendered to Lessor; provided, however, that movable
furniture, movable equipment, movable personal property and movable
trade fixtures on or in the Premises as of the date of this Lease or
installed at the expense of Lessee or any sub-tenant during the term of
this Lease, which pursuant to the provisions of this Section may be
removed by Lessee, shall not be deemed to be attached to the leasehold
nor the property of, nor surrendered to, Lessor. Upon removal of such
items, Lessee shall repair any damage to the premises at Lessee's sole
cost and expense.
XXIV. EVENTS OF DEFAULT
24. The following events shall be deemed to be events of default by Lessee
under this Lease:
a. Lessee shall fail to pay any installment of rent or
additional rent within fifteen (15) days after said
installment is due.
18
b. Lessee shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the
benefit of creditors.
c. Lessee shall file a petition under any section or chapter of
the Federal Bankruptcy Code, as amended, or under any similar
law or statute of the United States or any State thereof, or
Lessee shall be adjudged bankrupt or insolvent in proceedings
filed against Lessee thereunder.
d. A receiver or trustee shall be appointed for all or
substantially all of the assets of Lessee.
e. Lessee shall desert or vacate the premises; provided, however,
desertion or vacation of the premises shall not be deemed to
be an event of default if Lessee is not in arrears in the
payment of rent nor in default of any other provision of this
Lease.
f. Except for nonpayment of rent and additional rent, Lessee
shall fail to comply with any term, provision or covenant of
this Lease, and shall not cure such failure within twenty (20)
days after written notice thereof to Lessee.
24.1 With respect to curing any non-monetary default listed in this Section
or elsewhere herein, it is understood that if a cure cannot be
completed within the time period for cure referred to herein, despite
best efforts of Lessee, using all possible speed, then it will be
deemed sufficient if Lessee has begun to cure within said time period;
provided, however, that Lessee shall continue to use its best efforts
and all possible speed to cure such default and does, in fact, effect a
cure with a reasonable period of time.
24.2 Lessor shall be in default hereunder if it fails to fulfill any of the
covenants and conditions as herein provided by or performed by Lessor
within thirty (30) days of Lessee's written notice of the default to
Lessor, or such longer period of time as may be reasonable necessary to
cure the default if it is impossible or impracticable to cure the same
within thirty (30) days; provided, however, that if the nature of the
problem presents a serious hazard or emergency, Lessor shall perform
its obligations as immediately as possible under the then
circumstances.
XXV. REMEDIES
25. Upon the occurrence of any such events of default described in Section
24 hereof and following the twenty (20) days' written notice to Lessee
to cure said events of default, Lessor shall have the option but not
the obligation to pursue any one or more of the following remedies
without any notice or demand whatsoever:
a. Terminate this Lease, in which event Lessee shall immediately
surrender the Premises to Lessor, and if Lessee fails so to
19
do, Lessor may, without prejudice to any other remedy which it
may have for possession or arrearage in rent, enter upon and
take possession of the Premises and expel or remove Lessee and
any other person who may be occupying such Premises or any
part thereof; and Lessee agrees to pay to Lessor on demand the
amount of all loss and damage which Lessor may suffer by
reason of such termination, whether through inability to relet
the Premises on satisfactory terms or otherwise.
b. Enter upon and take possession of the Premises and expel or
remove Lessee and any other who may be occupying such Premises
or any part thereof, and relet the premises and receive the
rents therefor; and Lessee agrees to pay to Lessor on demand
any deficiency and reasonable expenses that may arise by
reason of such reletting.
c. Enter upon the Premises and do whatever Lessee is obligated to
do under the terms of this Lease, and Lessee agrees to
reimburse Lessor on demand for any expenses which Lessor may
incur in this effecting compliance with Lessee's obligations
under the Lease.
d. In case suit shall be brought for recovery of possession of
the Premises, for the recovery of rent or any other amount due
under the provisions of this Lease, or because of the breach
of any other covenant herein contained on the part of Lessee
or Lessor to be performed, and a breach shall be established,
the party in default shall pay to the other party all other
expenses incurred therefor, including a reasonable attorney's
fee and costs of court.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Lessor or of any
damages accruing to Lessor by reason of the violation of any of the
terms, provisions and covenants herein contained. No waiver by Lessor
of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions
and covenants herein contained. Lessor's acceptance of the payment of
rental or other payments hereunder after the occurrence of an event of
default shall not be construed as a waiver of such default. Forbearance
by Lessor to enforce one or more of the remedies herein provided upon
an event of default shall not be deemed or construed to constitute a
waiver of such default.
25.1. If Lessor defaults hereunder and such default is not cured as provided
above, then, in addition to any other rights and remedies available to
Lessee under applicable law, Lessee shall be entitled to (a) perform
the obligations and be immediately reimbursed by Lessor for the sum it
actually expends in the performance of Lessor's obligations, or (b)
terminate this Lease upon sixty (60) days' prior written notice to
Lessor.
20
XXVI. GOVERNING LAW
26. This Lease shall be governed by and construed in accordance with the
laws of the State of Utah.
XXVII. BROKERAGE
27. XXX Development, L.C. represents Lessor and Lessee. Each party hereto
represents that XXX Development, L.C. negotiated or arranged for this
Lease, and that apart from commissions due to them, no fees or
commissions are due any other person, firm or corporation for the
procurement hereof, and each party agrees to indemnify and hold the
other harmless from and against any other expenses which the party so
indemnified may incur by reason of claims of any other person, firm or
corporation claiming any brokerage commission, finder's fee or similar
compensation based upon any alleged negotiations or dealings with such
indemnifying party, contrary to the foregoing representations. Lessor
shall be responsible to pay all commissions.
XXVIII. RECORDING
28. The parties undertake, within ten days of the receipt of a written
request from the other, to execute a memorandum of this Lease in
recordable form. If either party shall record this Lease or a
memorandum of this Lease, the party so recording shall be liable for
the entire cost thereof.
XXIX. MISCELLANEOUS
29. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
29.1 The terms, provisions and covenants and conditions contained in this
Lease shall apply to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided.
29.2 The captions are inserted in this Lease for convenience only and in no
way to define, limit, or describe the scope or intent of this Lease, or
any provision hereof, nor in any way affect the interpretation of this
Lease.
21
29.3 Whenever this Lease refers to the prior consent or approval (written or
oral) by Lessor or Lessee, Lessor and Lessee, respectively, agree that
such consent or approval shall not be unreasonably withheld or delayed.
29.4 This Lease may not be altered, changed or amended except by an
instrument in writing signed by Lessor and Lessee.
29.5 If this Lease is terminated for any reason other than default of
Lessee, all liabilities of the parties shall be adjusted as of the
effective date of the termination. Any termination hereof by reason of
a default of Lessee shall not affect any obligation or liability of
Lessee under this Lease which accrued prior or subsequent to the
effective date of termination, and all such obligations and liabilities
of Lessee shall survive such termination.
29.6 The terms and conditions contained herein are not independent
covenants, but are mutually dependent upon each other.
29.7 If any of the terms of this Lease, or the application thereof to any
person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby and each term
of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
29.8 In the event of litigation between Lessor and Lessee relative to
rights, obligations and duties of either party under this Lease,
attorneys' fees and costs shall be paid by the non-prevailing party.
29.9 The failure of a party to insist in one or more instances upon a strict
performance of any of the other's obligations under this Lease or to
exercise any option or right given to a party hereunder shall not be
construed as a waiver or relinquishment of any rights, remedy or option
under this Lease. If a party does waive any breach of any term,
covenant or condition contained in this Lease, such waiver shall not be
deemed to be a waiver of any subsequent breach of the same term,
covenant or condition or of any other term, covenant or condition
contained in this Lease. The acceptance of rent under this Lease by
Lessor shall not be deemed to be waiver of any preceding breach by
Lessee of any term, covenant or condition of this Lease, other than the
failure of Lessee to pay the particular rent so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of acceptance
of such rent. No covenant, term of condition of this Lease shall be
deemed to have been waived by a party unless such waiver is in writing
signed by that party.
29.10 This Lease and the exhibits and/or addenda hereto and forming a part
hereof set forth all the covenants, agreements, conditions and
understanding between Lessor and Lessee concerning the Premises and
there are no covenants, agreements, conditions of understanding, either
oral or written, between Lessor and lessee other than those that are
herein set forth. Except as otherwise provided herein, no subsequent
22
alteration, amendment, change or addition to this Lease shall be
binding upon the parties unless reduced to writing and signed by them.
29.11 Time is the essence of this Lease.
29.12 Either party to this Lease shall be excused for the period of any delay
in the performance of any obligations that are required hereunder,
other than an obligation to pay rent or other monies, when prevented
from doing so by cause or causes beyond its control, including labor
disputes, civil commotion, war, governmental regulations or controls,
fire or other casualty, weather, inability to obtain any material
services or act of God.
29.13 All exhibits and/or addenda attached hereto shall be considered to be
fully integrated into and made a part of this Lease as if such exhibits
and/or addenda were fully and completely set forth herein.
29.14 Each individual executing this Lease does thereby represent and warrant
to each other person(s) so signing (and to each other entity for which
another person may be signing) that he has been duly authorized to
execute and deliver this Lease in the capacity and for the entity
indicated.
29.15 The parties do not by this Lease, in any way or for any purpose, become
partners or joint venturers with each other.
29.16 There are no third party beneficiaries, actual or intended, of this
Lease.
29.17 This Lease may be executed in any number of counterpart originals, each
of which shall be deemed an original instrument for all purposes, but
all of which shall comprise but one and the same instrument.
29.18 All covenants and warranties set forth herein shall survive the
expiration of this Lease.
29.19 At any time and from time to time, within thirty (30) days after notice
of request by either party, the other party shall execute, acknowledge
and deliver to the requesting party, or to such other recipient as the
notice shall direct, a statement certifying that this Lease is
unmodified and in full force and effect or, if there have been
modifications, that it is in full force and effect as modified in the
manner specified in the statement. The statement shall also state the
dates to which the rent and any other charges have been paid in
advance. The statement shall be such that it can be relied on by any
auditor, creditor, commercial banker and investment banker of either
party and by any prospective purchaser or encumbrancer of the Premises
or improvements or both or of all or any part or parts of the Premises
or improvements or both or of all or any part or parts of Lessee's or
Lessor's interests under this Lease.
23
Lessee's failure to execute, acknowledge and deliver, on request, the
certified statement described above within the specified time shall
constitute acknowledgment by Lessee to all persons entitled to rely on
the statement that this Lease is unmodified and in full force and
effect and that the rent and other charges have been duly and fully
paid to and including the respective due dates immediately preceding
the date of the notice of request and shall constitute a waiver, with
respect to all persons entitled to rely on the statement, of any
defaults that may exist before the date of the notice.
29.20 If Lessor sells or transfers all or a portion of the Premises, Lessor,
on consummation of the sale or transfer, shall be released from any
liability thereafter accruing under this Lease. If any security deposit
or prepaid rent has been paid by Lessee, Lessor can transfer the
security deposit or prepaid rent to Lessor's successor, and on such
transfer and receipt by Lessee of a written statement from Lessor's
successor acknowledging and accepting such transfer, Lessor shall be
discharged from any further liability with reference to the security
deposit or prepaid rent. This Lease shall not be affected by any such
sale, and Lessee agrees to attorn to the purchaser or assignee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
24
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed and sealed this
Lease on the dates set forth below.
LESSOR: FRE CORPORATION III, a California corporation
By: /s/
----------------------------------------------------
Xxxxxx X. Xxxxxx, President
Date:
--------------------------------------------------
LESSEE: Dynatec International, Inc.
a Utah corporation
By: /s/
----------------------------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Xx.,
Chief Executive Officer
Date:
--------------------------------------------------
