LEASE AGREEMENT
LEASE AGREEMENT
This is a legal and binding contract. Before signing, read the entire document,
including the general printed provisions and attachments. If you have any
questions before signing, consult your attorney and/or accountant.
THIS LEASE AGREEMENT (hereinafter the "Lease") is made and entered into as
of the 22nd day of November, 1999, by and between Highland Ranch, Inc. whose
address is ▇▇▇ ▇. ▇▇▇ ▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("hereinafter "Landlord") and Qcomm
International, Inc., whose address is ▇▇▇▇ ▇. ▇▇▇▇ ▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter "Tenant").
W I T N E S S E T H:
In consideration of the rents, covenants and agreements hereinafter set
forth, Landlord and Tenant mutually agree as follows:
ARTICLE I: PREMISES
Landlord hereby leases and demises to Tenant and Tenant hereby leases from
Landlord that certain real property located in Utah County, State of Utah and
more particularly described as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ (6,546 sq
ft) (hereinafter the "Property"), together with all buildings and other
improvements now or hereafter located thereon and affixed thereto (hereinafter
collectively "Improvements"), and any and all privileges, easements, and
appurtenances belonging thereto or granted herein. The Property and the
Improvements are hereinafter collectively referred to as the "Premises".
ARTICLE II: TERM COMMENCEMENT
2.1 Term of Lease. This Lease shall be for a term of 2 year(s) commencing
on January 1, 2000, (hereinafter the "Commencement Date") and ending at 12:00
p.m. on December 31, 2001, unless sooner terminated pursuant to the terms,
covenants and conditions of this Lease or pursuant to law.
Option to renew
2.2 Delivery of Possession. Tenant acknowledges that Landlord is currently
completing construction of the Premises. In the event that Landlord is not able
to deliver possession of the Premises to Tenant on the Commencement Date because
construction of the Premises has not yet been completed, Landlord shall not be
liable to Tenant and Tenant may not terminate this Lease or any of Tenant's
rights or obligations hereunder; provided, however, that in the event Landlord
is unable to deliver possession of the Premises to Tenant on or before the date
which is sixty (60) days after the Commencement Date, Tenant's sole remedy shall
be to terminate this Lease and all of Landlord's and Tenant's respective rights
and obligations hereunder by written notice from Tenant to Landlord. Such notice
must be given, if at all, on or before the date which is seventy-five (75) days
after the Commencement Date. Notwithstanding anything to the contrary in this
Lease, Tenant shall not be obligated to pay rent to Landlord for any fractional
months or months during which Landlord is unable to deliver possession of the
Premises to Tenant pursuant to the provisions of this Section 2.2.
2.3 Lease Year. The term "Lease Year" as used in this Lease shall mean a
period of twelve (12) consecutive calendar months during the term of this Lease.
The first Lease Year shall begin on the Commencement Date if the Commencement
Date occurs on the first day of a calendar month; if not, the first Lease Year
shall begin on the first day of the calendar month next following the
Commencement Date. Each succeeding Lease Year shall begin at the expiration of
the immediately preceding Lease Year.
ARTICLE III: RENT
3.1 Payment of Monthly Base Rent. As Monthly Base Rent for the Premises,
Tenant shall pay to Landlord, in advance on or before the first day of each
calendar month during the term of this Lease, an amount equal to the "Monthly
Base Rent" as defined in Section 3.2.
3.2 Monthly Base Rent. The "Monthly Base Rent" payable during each Lease
Year shall be determined in accordance with the following:
(a.) Refer To Exhibit B
ARTICLE IV: LATE CHARGES AND INTEREST
If Tenant fails to pay any Monthly Base Rent when such Monthly Base Rent
is due and payable in accordance with Article III of this Lease or if Tenant
fails to pay any additional amounts or charges of any character which are
payable under this Lease, Landlord, at Landlord's election, may assess and
collect a late fee charge equal to five percent (5%) of each payment of rent not
received within five (5) days from the date such rent payment is due.
Furthermore, and in addition to any late charges payable pursuant to the
provisions of this Article, to the extent that any payment of Monthly Base Rent
or any other amount payable to Landlord by Tenant pursuant to any provision of
this Lease is more than thirty (30) days past due, Tenant shall pay Landlord
interest at the rate of eighteen percent (18%) per annum on all such past due
amounts.
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Tenant:
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ARTICLE V: SECURITY DEPOSIT
Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord the sum of Two Thousand Seven hundred Thirty-Eight Dollars
($2,738.00) (hereinafter the "Security Deposit"). The Security Deposit shall be
held by Landlord for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term of this Lease. If Tenant defaults with respect to any provision
of this Lease, including but not limited to the provisions relating to the
payment of Monthly Base Rent, and any costs, expenses, and charges payable under
the provisions of this Lease, Landlord may, but shall not be obligated to use,
apply or retain all or a part of the Security Deposit for the payment of any
amount which Landlord may spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the Security Deposit is so used or applied,
Tenant shall, within ten (10) days after written demand, deposit with Landlord
an amount sufficient to restore the Security Deposit to its original amount; and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the Security Deposit separate from Landlord's
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by Tenant, the Security Deposit or any balance thereof
shall be returned to Tenant or, at Landlord's option, to the last permitted
assignee of Tenant's interest under this Lease within thirty (30) days of the
expiration of the term of this Lease and after Tenant or Tenant's permitted
assignee has vacated the Premises or within fifteen (15) days of receipt of
Tenant's new mailing address, whichever is later. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer the Security Deposit
to Landlord's successor in interest whereupon Tenant agrees to release Landlord
from liability for the return of the Security Deposit or any accounting
therefore.
ARTICLE VI: QUIET ENJOYMENT
Landlord hereby covenants to Tenant that, subject to Tenant's compliance
with the terms and provisions of this Lease, Tenant shall peaceably and quietly
hold and enjoy the full possession and use of the Premises during the term of
this Lease.
ARTICLE VII: TAXES, ASSESSMENTS AND OTHER CHARGES
7.1 Taxes and Assessments. Tenant shall pay to Landlord all real estate
taxes, assessments (general and special), and other charges which may be levied,
assessed or charged against the Premises, accruing or becoming due and payable
during the term of this Lease and any extension thereof at least ten (10) days
before such taxes, assessments, or other charges become delinquent. The charges
shall be as follows (these are estimates only and are subject to annual
increases): $230.00 for Real Estate Taxes, $25.00 for Building Insurance, and
$40.00 for Common Area Charges (CAM) due at the first of every month.
7.2 Right to Contest Taxes. Tenant, at its sole cost, shall have the right
to contest, in accordance with the provisions of the laws relating to such
contests, any real estate taxes, assessments, or other charges against the
premises and the failure of Tenant to pay such taxes, assessments, or charges
shall not constitute a default by Tenant so long as Tenant complies with the
provisions of this Section 7.2. Prior to initiating any contest or proceeding,
Tenant shall give Landlord written notice of such contest, or proceeding and
shall either deposit with Landlord, or furnish good and sufficient undertaking
and sureties designating Landlord as the beneficiary thereof, in such amount as
Landlord deems to be sufficient, considering the amount of such taxes, charges,
assessments, any potential penalties and interest thereon, and any potential
expenses that might be incurred by Landlord with respect thereto. Landlord shall
not be required to join in any proceeding or contest brought by Tenant unless
the provisions of any law require that the proceeding or contest be brought by
or in the name of Landlord or any owner of the Premises. In that case, Landlord
shall join in the proceeding or contest or permit such proceeding or contest to
be brought in its name as long as Landlord is not required to bear any cost.
Tenant, on final determination of the proceeding or contest, shall immediately
pay or discharge any decision or judgment rendered, together with all costs,
charges, interest and penalties incidental to the decision or judgment.
ARTICLE VIII: UTILITIES
Tenant shall be solely responsible for, and pay when due, all charges for
water, gas, heat, light, power, telephone, and other utilities or services used
by or supplied to Tenant or to the Premises, together with any taxes thereon,
during the term of this Lease.
ARTICLE IX: INSURANCE
9.1 Tenant's Insurance Coverage. Tenant shall, at all times during the
term of this Lease, and at Tenant's own cost and expense, procure and continue
in force the following insurance coverage:
(a) Comprehensive liability insurance with limits of not less than
$500,000.00 per person and $500,000.00 per occurrence insuring against any
and all liability of the insured with respect to the Premises or arising
out of the maintenance, use or occupancy thereof, and property damage
liability insurance with a limit of not less than $500,000.00 per accident
or occurrence.
Landlord shall
(b) Insurance covering any buildings and all improvements on the
Premises, including Tenant's leasehold improvements and personal property
in or upon the Premises in an amount not less than one hundred percent
(100%) of full replacement cost, providing protection against any peril
generally included within the classification "Fire and Extended Coverage",
together with insurance against sprinkler damage, vandalism and malicious
mischief and a standard inflation guard endorsement. Tenant hereby assigns
Landlord any and all proceeds payable with respect to such policies except
to the extent such proceeds are payable with respect to any property that
would remain the property of Tenant upon the termination of this Lease;
provided, however, that to the extent required pursuant to the provisions
of Article XIV, such proceeds shall be applied to the repair and
restoration of the Premises.
9.2 Insurance Policies. The minimum limits of insurance policies as set
forth in Section 9.1 shall in no event limit the liability of Tenant hereunder.
The insurance policies shall name Landlord as an additional insured and shall be
with companies having a rate of not less than an "A" company rating and a
Financial Rating of Class VI in "Best's Insurance Reports." Tenant shall furnish
from the insurance companies or cause the insurance companies to furnish to
Landlord certificate of coverage. No such policy shall be cancelable or subject
to reduction of coverage or other
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modification or cancellation except after thirty (30) days prior written notice
to Landlord by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of any coverage which Landlord
may carry. Tenant shall at least twenty (20) days prior to the expiration of
such policies furnish Landlord with renewals or binders. If Tenant does not
procure and maintain such insurance, Landlord may, but is not obligated to,
procure such insurance on Tenant's behalf and all sums paid by Landlord shall
bear interest at the rate of eighteen percent (18%) and shall be immediately due
and payable. Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by Tenant provided such blanket policies
expressly afford coverage to the Premises and to Landlord as required by this
Lease.
9.3 Waiver of Subrogation. To the extent permitted under the insurance
policies obtained by Landlord, if any, and Tenant, Landlord and Tenant each
hereby waive any and all right of recovery against the other or against the
officers, employees, agents and representatives of the other, on account of loss
or damage occasioned to such waiving party or its property or the property of
others under its control to the extent that such loss or damage is insured
against under any fire and extended coverage insurance policy which either may
have in force at the time of such loss or damage.
ARTICLE X: USE OF PREMISES
10.1 Use. The Premises shall be used and occupied by Tenant solely for
general office and warehouse purposes and for no other purpose without the prior
written consent of Landlord, which consent may be withheld by Landlord in
Landlord's sole discretion.
10.2 Suitability. Tenant acknowledges that neither Landlord nor any agent
of Landlord has made any representation or warranty with respect to the Premises
or the Improvements or with respect to the suitability of either for the conduct
of Tenant's business, nor has Landlord agreed to undertake any modification,
alteration or improvement to the Premises except as specifically provided in
this Lease. The continued possession of the Premises by Tenant shall
conclusively establish that the Premises and the Improvements are at the date of
possession in satisfactory condition. Landlord shall not be responsible for any
latent defects or deficiencies in the construction of the Premises or the
Improvements or any improvements or fixtures therein.
10.3 Prohibited Uses.
(a) Tenant shall not do or permit anything to be done in or about
the Premises, nor bring or keep anything therein which will cause a
cancellation of any insurance policy covering the Premises, nor shall
Tenant sell or permit to be kept, used or sold in or about the Premises
any articles which may be prohibited by a standard form policy of fire
insurance unless Tenant provides additional insurance coverage extending
protection to cover all risks associated with these articles.
(b) Tenant shall not use the Premises or permit anything to be done
in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation or requirement of
duly constituted public authorities now in force or which may hereafter be
enacted, promulgated or created. Tenant shall, at Tenant's sole cost and
expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating
to or affecting the use or occupancy of the Premises, including structural
changes that relate to or affect the use
(c) Tenant shall comply with all requirements of any recorded
restrictive covenants or bylaws of any association affecting the Premises.
Tenant acknowledges receipt of a copy of the Declaration of Covenants,
Conditions and Restrictions and a copy of the Bylaws of the Condominium
Owners' Association affecting the Premises.
(d) Tenant shall not permit smoking on the Premises at any time.
ARTICLE XI: MAINTENANCE AND REPAIRS
11.1 Tenant Maintenance and Repairs. During the Term of the Lease, Tenant,
at Tenant's expense, shall keep the Premises in good order and condition and
shall maintain and shall make any and all repairs and replacements to the
interior surfaces of the Premises (including, but not limited to, floor
coverings, window coverings, and wall coverings), all windows and glass which
are part of the Premises, all light fixtures, and all doors to the Premises.
Tenant is required to have plastic chair mats underneath the desks in order to
protect floor coverings. Tenant shall be liable for floor covering replacement
if the mats are not used. Tenant shall, at all times, and at Tenant's expense,
keep the Premises in a neat, clean, and sanitary condition and shall comply with
all valid federal, state, county and city laws and ordinances and all rules and
regulations of any duly constituted authority, present or future, affecting or
respecting the use or occupancy of the Premises by Tenant. Tenant, at Tenant's
expense, shall also repair any structural damage to the Premises caused by
Tenant, or Tenant's employees, agents, contractors, invitees, licensees,
customers, or clients.
11.2 Landlord Maintenance and Repairs. Subject to the provisions of
Article XIV below, Landlord shall, during the Term of this Lease, maintain and
make necessary structural repairs to the Premises not included as Tenant's
responsibility pursuant to the provisions of Section 11.1, 14.3, and repairs to
heating, ventilation or air conditioning equipment servicing the Premises;
provided, however, that damage to such equipment caused by Tenant shall be
repaired at Tenant's expense. Tenant shall promptly notify Landlord in writing
of any condition requiring maintenance or repair and Tenant shall also
immediately notify Landlord by telephone in the case of an emergency. Landlord
shall make the repairs required under this section within a reasonable time
after receiving written notice by Tenant. Nothing in this section shall be
construed to excuse Tenant from any obligations under this Lease, including
without limitation, the payment of any rent.
ARTICLE XII: HAZARDOUS SUBSTANCES
12.1 Environmental Compliance. Tenant (a) shall at all times comply with,
or cause to be complied with, any "Environmental Law" (hereinafter defined)
governing the Premises or the use thereof by Tenant or any of Tenant's
employees, agents, contractors, invitees, licensees, customers, or clients, (b)
shall not use, store, generate, treat, transport, or dispose of, or permit any
of Tenant's employees, agents, contractors, invitees, licensees, customers, or
clients to use, store, generate, treat, transport, or dispose of, any "Hazardous
Substance" (hereinafter defined) on the Premises
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without first obtaining Lessor's written approval, (c) shall promptly and
completely respond to, and clean up, in accordance with applicable laws and
regulations, any Release (as hereinafter defined) occurring on the Premises as a
direct result of actions of Tenant or Tenant's employees or authorized agents;
and (d) shall pay all costs incurred as a result of any failure by Tenant to
comply with any Environmental Law, which failure results in a Release or other
change in the environmental state, condition, and quality of the Premises
necessitating action under applicable Environmental Laws, including with
limitation the costs of any Environmental Cleanup Work (hereinafter defined) and
the preparation of any closure or other required plans (all of the foregoing
obligations of Tenant under this Section 12.1 are hereinafter collectively
"Tenant's Environmental Obligations"). Landlord hereby releases and indemnities
Tenant from and against any and all claims, damages, or liabilities (including,
without limitation, attorneys' fees and reasonable investigative and discovery
costs) resulting from the environmental condition or quality of the Premises
prior to the Commencement date or from actions of Landlord or its agents or
employees. The provisions of this Article XII shall survive the expiration or
other termination of this Lease.
12.2 Definitions. As used in this Lease (a) "Hazardous Substance" shall
mean (1) any "hazardous waste", "hazardous substance", and any other hazardous,
radioactive, reactive, flammable, infectious, solid wastes, toxic or dangerous
substances or materials, or related materials, as defined in, regulated by, or
which form the basis of liability now or hereafter under any Environmental Law;
(2) asbestos, (3) polychlorinated biphenyls (PCBs); (4) petroleum products or
materials; (5) underground storage tanks, whether empty or filled or partially
filled with any substance; (6) flammable explosives, (7) any substance the
presence of which on the Premises is or becomes prohibited by Environmental Law;
(8) urea formaldehyde foam insulation; and (9) any substance which under
Environmental Law requires special handling or notification in its use,
collection, storage, treatment or disposal; (b) "Environmental Cleanup Work"
shall mean an obligation to perform work, cleanup, removal, repair, remediation,
construction, alteration, demolition, renovation or installation in or in
connection with the Premises in order to comply with any Environmental Law; (c)
"Environmental Law" shall mean any federal, state or local law, regulation,
ordinance or order, whether currently existing or hereafter enacted, concerning
the environmental state, condition or quality of the Premises or use,
generation, transport, treatment, removal, or recovery of Hazardous Substances,
including building materials, and including, but not limited to, the following:
(1) the Solid Waste Disposal Act as amended by the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), as amended, and all
regulations promulgated thereunder; (2) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601, et
seq.), as amended, and all regulations promulgated thereunder; (3) the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801, et seq.), as amended, and
all regulations promulgated thereunder; (4) the Toxic Substances Control Act (15
U.S.C. Section 2601, et seq.), as amended, and all regulations promulgated
thereunder; (5) the Clean Air Act (42 U.S.C. Section 7401, et seq.), as amended,
and all regulations promulgated thereunder; (6) the Federal Water Pollution
Control Act (33 U.S.C. Section 1251, et seq.), as amended, and all regulations
promulgated thereunder; and (7) the Occupational Safety and Health Act (29
U.S.C. Section 651, et seq.), as amended, and all regulations promulgated
thereunder; and (d) "Release" means any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, presence, dumping, migration on or from the Premises or adjacent
property, or disposing of Hazardous Substances into the environment.
ARTICLE XIII: FIXTURES AND ALTERATIONS
13.1 Alterations. Tenant shall not make any physical alteration in the
Premises or any of the fixtures located therein or install or cause to be
installed any trade fixtures, exterior signs, floor coverings, interior or
exterior lighting, plumbing fixtures, shades or awnings or make any changes to
the Improvements front without first obtaining the written consent of Landlord,
which consent shall not be unreasonably withheld. Tenant shall present to
Landlord plans and specifications for the installation of any improvements or
fixtures at the time approval is sought from Landlord. Any physical change and
all rearrangements which are made by Tenant with the approval of Landlord shall
be made at Tenant's expense. Such alterations, decorations, additions and
improvements shall not be removed from the Premises during the term of this
Lease without the prior written consent of Landlord. Upon expiration of this
Lease all such alterations, decorations, additions and improvements shall at
once become the Property of Landlord.
13.2 Conditions and Limitations. Landlord may impose as a condition to
granting any consent required by Section 13.1, such requirements, restrictions
and limitations as Landlord may deem necessary in Landlord's sole discretion,
including without limitation, the manner in which the work is done, the
contractors by whom it is performed, and the time during which the work is
accomplished.
13.3 Contractors and Materialmen. If any fixtures, alterations or
improvements are allowed by Landlord, Tenant shall promptly pay all contracts
and materialmen, so as to eliminate the possibility of a lien attaching to the
Improvements or the Land, and should any such lien be made or filed by reason of
any fault of Tenant, Tenant shall bond against or discharge the same within ten
(10) days after written request by Landlord. Landlord shall have the right, but
not the obligation, to pay and discharge any such lien that attaches to the
Premises and Tenant shall reimburse Landlord for any such sums paid together
with interest at the rate of eighteen percent (18%) within thirty (30) days
after written demand by Landlord.
ARTICLE XIV: DAMAGE OR DESTRUCTION
14.1 Landlord to Repair Improvements. Subject to the provisions of
Sections 11.1; 14.2 and 14.3, if during the term of this Lease any of the
Improvements are damaged or destroyed by fire or other casualty, Landlord shall
repair or restore the Improvements. The work of repair or restoration, which
shall be completed with due diligence, shall be commenced within a reasonable
time after the damage or loss occurs. To the extent that such damage or
destruction interferes with Tenant's ability to use the Premises, as determined
by Landlord, rent shall be abated after the damage or destruction of the
Improvements until the repair or restoration of the Improvements has been
completed.
14.2 Landlord's Option to Terminate Lease. Notwithstanding anything to the
contrary in this Article XIV, in the event that any of the Improvements are
damaged or destroyed by fire or other casualty, Landlord shall have the right to
terminate this Lease, which termination shall be deemed to be effective as of
the date of such casualty, upon the occurrence of any of the following events:
(a) Insurance proceeds payable with respect to such damage or
destruction are not sufficient to pay for the repair and/or restoration of
the Improvements;
(b) Repair and restoration of the Improvements cannot be completed
within sixty (60) days after the occurrence of the casualty causing such
damage or destruction;
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(c) More than thirty percent (30%) of the Improvements have been
damaged or destroyed by such casualty.
Landlord's option to terminate the Lease pursuant to the provisions of this
Section 14.2 must be exercised within thirty (30) days of the date of the
casualty causing such damage or destruction by written notice from Landlord to
Tenant. In the event that Landlord elects to terminate the Lease pursuant to
this Section 14.2, Tenant shall immediately surrender possession of the Premises
to Landlord and shall assign to landlord (or if the same has already been
received by Tenant, pay to Landlord) all of Tenant's right, title, and interest
in and to the insurance proceeds payable with respect to the Premises.
14.3 Tenant's Option to Terminate Lease. If no default by Tenant under
this Lease has occurred and is then continuing and if no event has occurred and
is then continuing which, with the giving of notice or lapse of time, or both,
would become such a default, Tenant shall, if the Improvements are damaged or
destroyed by fire or other casualty and repair or restoration of the
Improvements cannot be completed within sixty (60) days following the occurrence
of the casualty causing such damage or destruction, have the option of
terminating this Lease by written notice to Landlord, which termination shall be
deemed to be effective as of the date of the casualty. Tenant's option to
terminate the Lease pursuant to the provisions of this Section 14.3 must be
exercised within thirty (30) days of the date of the casualty causing such
damage or destruction. In the event that Tenant elects to terminate this Lease
pursuant to this Section 14.3, Tenant shall immediately surrender possession of
the Premises to Landlord and shall assign to landlord (or if the same has
already been received by Tenant, pay to Landlord) all of Tenant's right, title,
and interest in and to the insurance proceeds payable with respect to the
Premises.
ARTICLE XV: CONDEMNATION
If all or any part of the Premises is taken or appropriated for public or
quasi-public use by right of eminent domain with or without litigation or
transferred by agreement in connection with such public or quasi-public use,
Landlord and Tenant shall each have the right within thirty (30) days of receipt
of notice of taking, to terminate this Lease as of the date possession is taken
by the condemning authority; provided, however, that before Tenant may terminate
this Lease by reason of taking or appropriation, such taking or appropriation
shall be of such an extent and nature as to substantially handicap, impede or
impair Tenant's use of the Premises. No award for any partial or entire taking
shall be apportioned, and Tenant hereby assigns to Landlord any award which may
be made in such taking or condemnation, together with any and all rights of
Tenant now or hereafter arising in or to the award or any portion thereof;
provided, however, that nothing contained herein shall be deemed to give
Landlord any interest in or to require Tenant to assign to Landlord any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant, for the interruption of or damage to Tenant's business and for Tenant's
unamortized cost of leasehold improvements. In the event of a partial taking
which does not result in a termination of this Lease, rent shall be abated in
the proportion which the part of the Premises so made unusable bears to the
rented area of the Premises immediately prior to the taking. No temporary taking
of the Premises or Tenant's right therein or under this Lease shall terminate
this Lease or give Tenant any right to any abatement of rent thereunder; and any
award made to Tenant by reason of any such temporary taking shall belong
entirely to Tenant, and Landlord shall not be entitled to any portion thereof.
ARTICLE XVI: ASSIGNMENT AND SUBLETTING
16.1 Landlord's Consent Required. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest therein,
either voluntarily or involuntarily by operation of law or otherwise, and Tenant
shall not sublet the Premises or any part thereof, without the prior written
consent of Landlord and any attempt to do so without such consent being first
had and obtained shall be void and shall constitute a breach of this Lease, such
consent shall not be unreasonably withheld.
16.2 No Release of Tenant. No consent by Landlord to any assignment or
subletting by Tenant shall relieve Tenant of any obligation to be performed by
Tenant under this Lease, whether occurring before or after such consent,
assignment or subletting. The consent by Landlord to any assignment or
subletting shall not relieve Tenant from the obligation to obtain Landlord's
express written consent to any other assignment or subletting. The acceptance of
rent by Landlord from any other person or legal entity shall not be deemed to be
a waiver by Landlord of any provision of this Lease or to be a consent to any
assignment, subletting or other transfer. Consent to one assignment, subletting
or other transfer shall not be deemed to constitute consent to any subsequent
assignment, subletting or other transfer.
16.3 Increased Expenses. Tenant shall pay Landlord the amounts of any
increase in costs or expenses incident to the occupancy of the Premises by such
assignee or subtenant, including but not limited to, reasonable attorney's fees
incurred in connection with giving such consent.
ARTICLE XVII: SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES
17.1 Subordination. This Lease at Landlord's option shall be subject and
subordinate to the lien of any mortgages or deeds of trust in any amount or
amounts whatsoever now or hereafter placed on or against the Premises, the
Improvements, or on or against Landlord's interest or estate therein, without
the necessity of the execution and delivery of any further instruments on the
part of Tenant to effectuate such subordination. Notwithstanding anything to the
contrary in this Article XVII, this Lease shall remain in full force and effect
for the full term hereof, including any extensions, so long as Tenant is not in
default hereunder.
17.2 Subordination Agreements. Tenant shall execute and deliver upon
demand without charge therefore, such further instruments evidencing such
subordination of this Lease to the lien of any such mortgages or deeds of trust
as may be required by Landlord.
17.3 Attornment. In the event of any foreclosure or the exercise of the
power of sale under any mortgage or deed of trust made by Landlord covering the
Premises or the Building, Tenant shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease, provided said purchaser expressly agrees in writing to be bound by the
terms of this Lease.
17.4 Estoppel Certificates. Tenant shall, from time to time and within ten
(10) days from receipt of prior written notice from Landlord, execute,
acknowledge and deliver to Landlord a statement in writing (a) certifying that
this Lease is unmodified and in full force and effect or, if modified, stating
the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect and the date to which the rent and other charges are
paid in advance, if any, (b) certifying that the Lease and any modifications of
this Lease constitute the entire agreement between
LEASE AGREEMENT
LandLord:
Tenant:
____ Landlord _____Tenant Page 5 of 8
<PAGE>
Landlord and Tenant with respect to the Premises and, except as set forth in
this Lease and any modification of this Lease, Tenant does not claim any right,
title, or interest in or to the Premises or any part thereof, (c) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults, if any are claimed, and (d)
certifying such other matters with respect to the Lease and/or the Premises as
Landlord may reasonably request.
17.5 Failure to Deliver Certificate. If Tenant fails to deliver such
statement within the time period referred to in Section 17.4 above, it shall be
deemed conclusive upon Tenant that the (a) this Lease is unmodified and in full
force and effect, (b) this Lease constitutes the entire agreement between
Landlord and Tenant with respect to the Premises and, except as set forth in
this Lease, Tenant does not claim any right, title, or interest in or to the
Premises, or any part thereof, (c) there are no uncured defaults in Landlord's
performance of Landlord's obligations under this Lease, and (d) not more than
one month's Monthly Base Rent has been paid in advance.
17.6 Transfer of Landlord's Interest. In the event of a sale or conveyance
by Landlord of Landlord's interest in the Premises other than a transfer for
security purposes only, Landlord shall be relieved from and after the date
specified in any such notice of transfer of all obligations and liabilities to
Tenant which accrue after such sale or conveyance on the part of Landlord,
provided that any funds in the possession of Landlord at the time of transfer in
which Tenant has an interest shall be delivered to the successor Landlord. This
Lease shall not be affected by any such sale or transfer and Tenant shall attorn
to the purchaser or other transferee provided that all of Landlord's obligations
accruing hereunder from and after such sale or transfer are assumed in writing
by such purchaser or transferee.
ARTICLE XVIII: DEFAULT AND REMEDIES
18.1 Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(a) Any failure by Tenant to pay the Monthly Base Rent, or any other
monetary sums required to be paid under this Lease, where such failure
continues for five (5) days after written notice thereof by Landlord to
Tenant;
(b) Any material false statement made by Tenant to Landlord or its
agents in any document delivered to Landlord in connection with the
negotiation of this Lease.
(c) The abandonment or vacation of the Premises by Tenant;
(d) A failure by Tenant to observe and perform any other term,
covenant or condition of this Lease to be observed or performed, by
Tenant, where such failure continues for thirty (30) days after written
notice thereof by Landlord to Tenant; provided, however, that if the
nature of the default is such that the default cannot reasonably be cured
within the thirty (30) day period, Tenant shall not be deemed to be in
default if Tenant shall within the thirty (30) day period commence action
to cure the default and thereafter diligently prosecute the same to
completion;
(e) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant
of a petition to have Tenant adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or the
attachment, execution, or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where such seizure is not discharged within thirty (30) days.
18.2 Nonexclusive Remedies. In the event of any such material default or
breach by Tenant, Landlord shall have, in addition to any other remedies
provided in this Lease, the following nonexclusive remedies:
(a) At Landlord's option and without waiving any default by Tenant,
Landlord shall have the right to continue this Lease in full force and
effect and to collect all Monthly Base Rent, and any other amounts to be
paid by Tenant under this Lease as and when due. During any period that
Tenant is in default, Landlord shall have the right, pursuant to legal
proceedings or pursuant to any notice provided for by law, to enter and
take possession of the Premises, without terminating this Lease, for the
purpose of reletting the Premises or any part thereof and making any
alterations and repairs that may be necessary or desirable in connection
with such reletting. Any such reletting or relettings may be for such term
or terms (including periods that exceed the balance of the term of this
Lease), and upon such other terms, covenants and conditions as Landlord
may in Landlord's sole discretion deem advisable. Upon each and any such
reletting, the rent or rents received by Landlord from such reletting
shall be applied as follows: (1) to the payment of any indebtedness (other
than rent) due hereunder from Tenant to Landlord; (2) to the payment of
costs and expenses of such reletting, including brokerage fees, reasonable
attorney's fees, court costs, and costs of any alterations or repairs; (3)
to the payment of any Monthly Base Rent and any other amounts due and
unpaid hereunder; and (4) the residue, if any, shall be held by Landlord
and applied in payment of future Monthly Base Rent and any other amounts
as they become due and payable hereunder. If the rent or rents received
during any month and applied as provided above shall be insufficient to
cover all such amounts including the Monthly Base Rent and any other
amounts to be paid by Tenant pursuant to this Lease for such month, Tenant
shall pay to Landlord any deficiency; such deficiencies shall be
calculated and paid monthly. No entry or taking possession of the Premises
by Landlord shall be construed as an election by Landlord to terminate
this Lease, unless Landlord gives written notice of such election to
Tenant or unless such termination shall be decreed by a court of competent
jurisdiction, Notwithstanding any reletting by Landlord without
termination, Landlord may at any time thereafter terminate this Lease for
such previous default by giving written notice thereof to Tenant.
(b) Terminate Tenant's right to possession by notice to Tenant, in
which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord
by reason of Tenant's default, including without limitation the following:
(1) all unpaid rent which has been earned at the time of such termination
plus (2) the amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of such
rental loss that is proved could have been reasonably avoided; plus (3)
any other amount necessary to
LEASE AGREEMENT
LandLord:
Tenant:
____ Landlord _____Tenant Page 6 of 8
<PAGE>
compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease, or in addition
to or in lieu of the foregoing such damages as may be permitted from time
to time under applicable State law. Upon any such re-entry Landlord shall
have the right to make any reasonable repairs, alterations or
modifications to the Premises, which Landlord in Landlord's sole
discretion deems reasonable and necessary.
ARTICLE XIX: ENTRY BY LANDLORD
Landlord shall, during the term of this Lease, have the right to enter the
Premises at reasonable times and upon reasonable notice to Tenant, to inspect or
to show to prospective tenants or purchasers, or to make necessary repairs. For
purposes of this section, twenty-four (24) hours is deemed to be reasonable
notice. In the event of an emergency, however, Landlord shall not be required to
give Tenant such notice, provided that Landlord furnishes Tenant with the reason
for the emergency entry within three days of such entry.
ARTICLE XX: INDEMNITY
Tenant shall indemnify and hold Landlord harmless from 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 during the term of
this Lease. Tenant shall further indemnify and hold Landlord harmless from and
against any and all claims arising from any breach or default in the performance
of any obligation on Tenant's part to be performed under the terms of this
Lease, or arising from any act or negligence of Tenant, or any of Tenant's
agents, contractors, employees, licensees or invitees and from and against all
costs, reasonable attorney's fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon. Tenant
shall not, however, be liable for damage or injury occasioned by the negligence
or intentional acts of Landlord and Landlord's designated agents or employees.
Tenant's obligations under this Article XX shall survive the expiration or other
termination of this Lease.
ARTICLE XXI: SURRENDER
21.1 Surrender. Upon the expiration or other termination of this Lease,
Tenant shall quit and surrender to Landlord the Premises, together with the
Improvements and all other property affixed to the Premises, excluding Tenant's
fixtures, in good order and condition, ordinary wear and tear excepted. Tenant
shall, prior to the expiration or other termination of this Lease remove all
personal property belonging to Tenant and failing to do so, Landlord may cause
all of said personal property to be removed at the cost and expense of Tenant.
Tenant's obligation to observe and perform this covenant shall survive the
expiration or other termination of this Lease. In the alternative, Landlord may,
at Landlord's option, treat any and all items not removed by Tenant on or before
the date of expiration or of the termination of this Lease as having been
relinquished by Tenant and such items shall become the property of Landlord with
the same force and effect as if Tenant had never owned or otherwise had any
interest in such items.
21.2 Hazardous Substances. No spill, deposit, emission, leakage or other
release of Hazardous Substance in the soils, ground waters or waters shall be
deemed to result in either (a) wear and tear that would be normal for the term
of the Lease; or (b) a casualty to the Premises. Tenant shall be responsible to
promptly and completely cleanup any Release occurring on the Premises during the
term of the Lease which directly results form the actions of Tenant or its
employees or authorized agents. Tenant shall surrender the Premises free of any
contamination or other damage caused by such a Release during the term of the
Lease. Tenant's obligation to cleanup the Premises pursuant to the provisions of
this Article XXI shall survive the expiration or other termination of this
Lease.
ARTICLE XXII: OPTION TO PURCHASE
22.1 Grant of Option. This section does not apply to this Lease.
ARTICLE XXIII: MISCELLANEOUS
23.1 Signs. Tenant, at its own cost, may place and maintain a sign
advertising Tenant's business in the window of the Premises so long as the sign
complies with the rules and regulations of the Condominium Owners' Association
for the Premises.
23.2 Parking Spaces. Tenant shall be entitled to the use of 20 unreserved
parking spaces appurtenant to the Premises for the benefit of Tenant, its
employees, agents, and invitees for the Term of the Lease.
23.3 Entire Agreement. This instrument along with any exhibits and
attachments hereto constitutes the entire agreement between Landlord and Tenant
relative to the Premises and this Lease and the exhibits and attachments may be
altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. All prior or contemporaneous oral agreements between and
among Landlord and Tenant and their agents or representatives relative to the
leasing of the Premises are merged in or revoked by this Lease.
23.4 Severability. If any term or provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the
fullest extent permitted by law.
23.5 Costs of Suit. If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Landlord for the recovery of rent or possession of the
Premises, the losing party shall pay the successful party a reasonable sum for
attorney's fees whether or not such action is prosecuted to judgment.
23.6 Time and Remedies. Time is of the essence of this Lease and every
provision hereof. All rights and remedies of the parties shall be cumulative and
nonexclusive of any other remedy at law or in equity.
23.7 Binding Effect, Successors and Choice of Law. All time provisions of
this Lease are to be construed as both covenants and conditions as though the
words importing such covenants and conditions were used in each separate Section
of this Lease. Subject to any provisions
LEASE AGREEMENT
LandLord:
Tenant:
____ Landlord _____Tenant Page 7 of 8
<PAGE>
restricting assignment or subletting by Tenant as set forth in Article XVI, all
of the terms hereof shall bind and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns. This
Lease shall be governed by the laws of the State of Utah.
23.8 Waiver. No term, covenant or condition of this Lease shall be deemed
waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any term, covenant or condition shall
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other term, covenant or condition. Acceptance by Landlord of any
performance by Tenant after the time the same shall have become due shall not
constitute a waiver by Landlord of the breach or default of any term, covenant
or condition unless otherwise expressly agreed to by Landlord in writing.
23.9 Holding Over. If Tenant remains in possession of all or any part of
the Premises after the expiration of the term of this Lease, with or without the
express or implied consent of Landlord, such tenancy shall be from month to
month only, and not a renewal hereof or an extension for any further term, and
in such case, rent and other sums due hereunder shall be payable at one hundred
fifty percent (150%) of the Monthly Base Rent in effect immediately prior to
such holdover period.
23.10 Recording. No copy of this Lease will be recorded on behalf of
either party, but in lieu thereof, Landlord and Tenant agree that each will,
upon the request of the other, execute, in recordable form, a "short form" of
the Lease, which "short form" shall contain a description of the Premises, the
term of the Lease, the parties to the Lease. The "short form" of the Lease shall
not modify the terms of the Lease or be used in interpreting the Lease and in
the event of any inconsistency between this Lease and the "short form" of the
Lease, the terms and conditions of this Lease shall control.
23.11 Reasonable Consent. Except as limited elsewhere in this Lease,
wherever in this Lease Landlord or Tenant is required to give consent or
approval to any action on the part of the other, such consent or approval shall
not be unreasonably withheld. In the event of failure to give any such consent,
the other party shall be entitled to specific performance at law and shall have
such other remedies as are reserved to such party under this Lease.
23.12 Notice. Any notice required to be given under this Lease shall be
given in writing and shall be delivered in person or by registered or certified
mail, postage prepaid, and addressed to the addresses for Landlord and Tenant
set forth above. Such notice shall be deemed delivered when personally delivered
or upon deposit of the notice in the United States mail in the manner provided
above.
23.13 No Partnership. Landlord does not, as a result of entering into this
Lease, in any way or for any purpose become a partner of Tenant in the conduct
of Tenant's business, or otherwise, or joint venturer or a member of a joint
enterprise with Tenant.
23.14 Exhibits. This lease agreement has two exhibits attached and made a
part thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD:
By:_________________________________
Its:________________________________
TENANT:
By:_________________________________
Its:________________________________
LEASE AGREEMENT
LandLord:
Tenant:
____ Landlord _____Tenant Page 8 of 8
<PAGE>
File ab2+2
Exhibit B
Q-COMM INTERNATIONAL
▇▇▇▇ ▇. ▇▇▇▇ ▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
1st Floor Office: 1,546 sq ft
2nd Floor Office: 1,546 sq ft
Warehouse: 3,454 sq ft
===========
Total: 6,546 sq ft
Base Rental Schedule
Base Term
Square Price/ Annual No. Monthly
Year Footage Sq Foot Rental Months Rental
0 N/A N/A N/A N/A N/A
1 6,546 $5.02 $32,860.92 12.0 $2,738.41
2 6,546 $5.17 $33,846.75 12.0 $2,820.56
Sub Totals/Averages: $5.10 $66,707.67 24.0 $2,779.49
Option Term
Square Price/ Annual No. Monthly
Year Footage Sq Foot Rental Months Rental
3 6,546 $5.33 $34,862.15 12.0 $2,905.18
4 6,546 $5.49 $35,908.01 12.0 $2,992.33
Sub Totals/Averages: $5.41 $70,770.16 24.0 $2,948.76
