Exhibit 10.18
BASIC LEASE INFORMATION
CANYON PARK TECHNOLOGY CENTER
EXECUTIVE OFFICE BUILDING LEASE AGREEMENT
"Lease Date": December 23, 2003.
"Tenant": Q Comm International,
Inc.
"Address of Tenant/Premises": 000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxx, Xxxx 00000
"Contact": Xxxx Xxxxxx
"Telephone": 801-226-4222
"Landlord": TCU Properties I, LLC, a Utah limited
liability company
"Basic Rent": $6,855.75 per month. The security deposit
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shall be due upon execution of the Lease.
The Security Deposit shall be equal to the
last month's rent.
"Building": Building C on the site plan of the Park
attached hereto as Exhibit A.
"Commencement Date": February 1, 2004.
"Permitted Use": Tenant shall use and occupy the Premises for
general and executive offices, including
shipping and receiving of Tenant's supplies
and products, and for no other use or purpose.
"Premises": Offices located on the 2nd floor, suite C21 of
the Building. The Premises are shown
cross-hatched on the floor plan attached
hereto as Exhibit B.
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"Size": Approximately 6,094 rentable square feet in
accordance with BOMA standards.
"Lease Rate": $13.50 per rentable square foot
"Rent Abatement": Provided that Tenant is not in material
breach of the Lease and no amount of Basic
Rent is past due, the Rental shall be zero
for the first three (3) months: February
2004, March 2004 and April 2004 (collectively
the "Free Rent Months").
Notwithstanding any other term or condition
of this Lease, Tenant need not pay Landlord
any Adjusted Rental for the Free Rental
Months. Landlord shall allow Tenant to
occupy Premises upon completion of tenant
improvements. Landlord as additional free
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rent shall treat any early occupation of
Premises by Tenant prior to February 1, 2004.
Right of First Refusal: Tenant shall have the Right of First Refusal
on contiguous office space in pod C22 &
C23 on the second floor of the Building.
If Landlord receives an offer from another
tenant regarding any C22 & C23 office space,
Landlord shall provide Tenant with written
notice of such offer. If within five (5)
business days Tenant fails to provide
Landlord with an unequivocal and irrevocable
written notice that Tenant will immediately
lease such space, Landlord shall be free
to accept the offer of the other tenant
with regard to any space that is not claimed
in a timely written notice from Tenant.
"Lease Type": Full Service
"Term": 60 months
"Base Year": 2004
"Adjusted Rental": The sum of the annual Basic Rental and the
annual Excess Operating Expenses and Excess
Taxes.
"Excess Operating
Expenses": (i) The amount by which the Operating Expense
Per Square Foot of RA for any calendar year
or portion thereof during the Lease Term
exceeds the Operating Expenses Per Square Foot
of RA during the Base Year multiplied by (ii)
the RA of the Premises.
"Excess Taxes": The product of (i) the amount by which the
Taxes per Square Foot of RA for any calendar
year or portion thereof during the Lease Term
exceeds the Taxes Per Square Foot of RA during
the Base Year, multiplied by (ii) the RA
of the Premises.
"Annual Increases": 3% annual increase on each one-year
anniversary of Lease Commencement.
"Building Services": Landlord shall provide heating, ventilating
and air conditioning (HVAC), electrical,
janitorial and security services, and all
other services typically provided by
Landlords in a "Class A" environment.
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"Backup Generation": Tenant shall have use of the UPS and
generator redundancy that is currently
installed in the Building. Landlord shall
maintain the generator and UPS system in
good working order and in accordance
with generally acceptable maintenance
practices.
"Executive Boardroom/
Auditorium": Subject to availability and scheduling,
Landlord shall allow Tenant up to 8 hours
of free use of the auditorium in
Building J each year of the Lease. Tenant's
free use of such auditorium does not include
an A/V technician or additional A/V equipment
requested over and above that equipment
already available in the auditorium.
In addition, subject to availability and
scheduling, Landlord shall allow Tenant to
use the executive conference room in Building
L free of charge for two (2) business days
annually throughout the Term of this Lease.
"Furniture": Landlord will provide Tenant with existing
furniture configurations currently in
inventory, at no charge to Tenant. Upon
request, Landlord shal provide at no charge
additional furniture from existing inventory,
provided such furniture is not being used by
Landlord or other tenants and subject to
availability.
"Network Cabling": Tenant shall have use the CAT5 cabling in the
Premises.
"Expansion Rights": Tenant will have on-going expansion capability
on space at Canyon Park Technology Center.
"Parking": Abundant
"Signage": Tenant shall have the right to placement on
the building monument sign, in addition to
suite signage. This shall be consistent with
the guidelines and standards established for
Canyon Park.
"Tenant Improvements": Subject to the representations and warranties
of Landlord contained in the Lease, Tenant
accepts the premises "As is" except for new
paint, carpet and modifications to the
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Building as described in Exhibit D-Tenant
Improvements and Exhibit D-1 Building
Floor/Space Plan hereto attached to the Lease
Agreement. Landlord shall provide and pay
for all paint, carpet and furniture set up in
C21 as mutually agreed upon in Exhibit D-1.
"Agency": It is understood that neither Tenant nor s
Landlord is represented by a broker or lease
agent.
"Security Deposit": $7,716.21 payable upon execution of the Lease.
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"Amenities": Tenant shall enjoy the free use of the fitness
center and recreational areas at Canyon Park,
in addition to access to the building L Food
Court.
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the Lease attached hereto (the "Lease").
Each reference in the Lease to any of the information and definitions set forth
in the Basic Lease Information shall mean and refer to the information and
definitions hereinabove set forth and shall be used in conjunction with and
limited by all references thereto in the provisions of the Lease.
LANDLORD: TCU Properties I, LLC, a Utah limited liability
company
Date: December 23, 2003 By: ________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: President/CEO
TENANT: Q Comm International, Inc.
Date: December 23, 2003 By: ________________________________
Name: Xxxx Xxxxxx
Title: CEO
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CANYON PARK TECHNOLOGY CENTER
OFFICE BUILDING LEASE
THIS LEASE is entered into as of this 23rd day of December 2003 (the
"Lease Date") between Q Comm International, Inc. ("Tenant") and TCU Properties
I, LLC, a Utah limited liability company ("Landlord").
1. Lease Grant and Term. Landlord, in consideration of the rent to be paid and
the other covenants and agreements to be performed by Tenant, does hereby lease,
demise and let unto Tenant certain premises (the "Premises") located in Building
C (the "Building") of Canyon Park Technology Center (the "Park") as shown in
Exhibits A and B hereto commencing on the 1st day of February 2004 (the
"Commencement Date") and ending on midnight on the last day of the month of
January 2009 (the "Term"). In addition to the Premises, Tenant shall have
reasonable access to and use of all access ways, lobbies, lavatories, hallways,
and parking areas common to the Premises and other areas of the Building (the
"Common Areas"), provided that any use of the Common Areas shall be subject to
the rules and regulations set forth in Exhibit C hereto and any other reasonable
rules and regulations as Landlord may establish from time to time and provide to
Tenant in writing. Notwithstanding the foregoing, Tenant shall have a one time
option, at its sole discretion, to terminate the Lease at the end of three (3)
years from the Commencement Date, by giving written notice to Landlord, one
hundred twenty (120) days prior to the end of the third year, of Tenant's intent
to terminate the Lease at the end of three (3) years. Tenant shall have one (1)
option to renew the Lease for one additional five year term, by giving Landlord
a six (6) month written notice. The Lease rate for the option term shall
continue to increase at the rate of three3% per year.
2. Rent. Tenant shall pay Basic Rent to Landlord the sum of $6,855.75 (the
"Rent") each month in advance (except as outlined above in Basic Lease Terms
under Rent Abatement) on the first day of each month in lawful money of the
United States to Landlord at 0000 X Xxxxxxxxxx Xxx Xxxxxxxx X, Xxxxx 0000 Xxxx,
Xxxx 00000 (or such other address as Landlord shall designate in writing to
Tenant) without notice or demand and without any abatement, deduction or
set-off, for each month of the entire Term. The Rent for the first month shall
be payable by Tenant to Landlord upon the execution of this Lease. The next
monthly installment of Rent shall be due and payable without demand beginning on
the first day of the calendar month immediately following the month in which the
Commencement Date occurs and continuing thereafter on or before the first day of
each succeeding calendar month during the Lease Term. Rent for any fractional
month at the beginning of the Lease Term shall be prorated based on one-three
hundred sixty-fifth (1/365) of the current annual Rent for each day of the
partial month this Lease is in effect. If all of any sum due under this Lease is
not received within five (5) days of its due date, then Tenant shall pay, in
addition to the sum owed, a late payment charge equal to ten percent (10%) of
the sum (or portion thereof) which is overdue. If a check remitted to pay any
sum due to Landlord hereunder shall not be honored upon presentment for payment,
then Tenant in addition to the amount owed, shall pay to Landlord on demand a
fee of five percent (5%) of the amount owed.
3. Security Deposit. The Security Deposit equal to the last month of Rent of the
Term is due upon execution of the Lease. Landlord shall hold the Security
Deposit without liability for interest and as security for the performance by
Tenant of Tenant's obligations under this Lease. Tenant agrees that such deposit
will not be considered an advance payment of rental or a measure of Landlord's
damages in case of default by Tenant. Landlord may, from time to time, without
prejudice to any other remedy, use such deposit to make good any arrearage in
any amount due hereunder and to reimburse Landlord for any other damage, injury,
expense or liability caused to Landlord by any breach of this Lease. Following
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any such application of the Security Deposit, Tenant shall pay to Landlord on
demand the amount so applied in order to restore the Security Deposit to its
original amount.
4. Utilities, Services, and Furniture. Subject to the following limitations,
Landlord shall furnish Tenant while Tenant is occupying the Premises and
performing all of its obligations under this Lease (i) heating, ventilation, and
air conditioning ("HVAC") in season, from 6:00 a.m. to 6:00 pm Monday through
Saturday, except Holidays. "Holidays" means New Year's Day, Xxxxxx Xxxxxx Xxxx
Day, Presidents Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving
Day, the Friday following Thanksgiving and Christmas Day. After hours heating,
ventilating, air conditioning (HVAC) shall be charged at the rate of $5.00 per
hour. As specified in the Basic Lease Information, if Tenant requests after
hours services requiring service personnel, Tenant will be charged for the cost
of such service plus an additional charge of 15% of such cost to cover overhead.
(ii) janitorial service to the Common Areas and Premises as is reasonably
considered by Landlord to be standard on weekdays other than Holidays (as
hereinafter defined) and such window-washing as may from time to time in
Landlord's judgment reasonably be required; (iii) elevator service in common
with other tenants; (iv) replacement of Building standard light bulbs and
fluorescent tubes; and (v) electric power in the Premises sufficient to furnish
power for lighting, personal computers, typewriters, voice writers, calculating
machines and other machines of similar low electrical consumption standard to
executive offices. Also, Landlord shall maintain the Common Areas of the
Building in reasonably good order and condition; provided, however, that Tenant
shall reimburse Landlord for the cost of repairing any damage to such areas
occasioned by Tenant, or its employees, contractors, agents or invitees.
Landlord's obligation to make available the utilities described in this
Paragraph 4 is subject to the rules and regulations of the suppliers of
utilities and of any municipal or other governmental authority regulating the
business of providing utility services. Landlord shall not be responsible or
liable to Tenant for any loss, damage or expense that Tenant may sustain or
incur if either the quantity or character of any utility service is changed.
Landlord's failure to any extent to make available, or any slowdown, stoppage or
interruption of, the services set forth in this Paragraph 4 resulting from any
cause beyond Landlord's control shall not render Landlord liable in any respect
for damages to person, property or business, nor be construed an eviction of
Tenant or work an abatement of Rent, nor relieve Tenant from fulfilling any
covenant or agreement hereof; however, Landlord shall use reasonable efforts
(and shall not be required to employ any workers at overtime rates) to resume
said services in a timely manner. Subject to availability, Landlord shall
provide furniture for the Premises at no additional cost from existing inventory
in the Park, provided such furniture is not being used by Landlord or other
tenants or is not reasonably reserved for other tenants. Tenant is responsible
for any damage to such furniture used by Tenant, normal wear and tear excepted
5. Condition of Premises. TENANT EXPRESSLY ACKNOWLEDGES THAT (A) TENANT HAS
THOROUGHLY EXAMINED THE PREMISES AND TAKES AND ACCEPTS THE PREMISES IN ITS "AS
IS" CONDITION ON THE COMMENCEMENT DATE, (B) LANDLORD AND LANDLORD'S AGENTS AND
EMPLOYEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF THE
PREMISES, THE BUILDING, THE PROPERTY OR THE PARK, NOR HAS LANDLORD MADE ANY
COMMITMENTS TO REMODEL, REPAIR OR REDECORATE, EXCEPT AS EXPRESSLY SET FORTH
HEREIN AND (C) LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE. TENANT EXPRESSLY
WAIVES AND RELEASES LANDLORD FROM ANY IMPLIED WARRANTY NOT SET FORTH HEREIN.
6. Permitted Use. Tenant shall use the Premises only for general and executive
offices, including shipping and receiving of Tenant's inventory, supplies and
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products (the "Permitted Use"). Tenant shall not occupy or use the Premises, or
permit any portion of the Premises to be occupied or used, for any business or
purpose other than the Permitted Use or for any use or purpose which is unlawful
in part or in whole or deemed by Landlord to be disreputable in any manner, nor
permit anything to be done that will in any way invalidate or increase the rate
of insurance on the Building or its contents. Tenant shall promptly upon demand
reimburse Landlord for any additional premium charged for any such insurance by
reason of Tenant's failure to comply with the provisions of this Paragraph.
Tenant will conduct its business and control its agents, employees and invitees
in such a manner as not to create any nuisance, interfere with, annoy or disturb
other tenants or interfere with Landlord in the management of the Building, the
Property or the Park. Tenant will maintain the Premises in a clean, healthful
and safe condition and will comply with all laws, ordinances, orders, rules,
regulations, or restrictions of or recorded by all state, federal, municipal and
other agencies or bodies having jurisdiction over the Premises and governing the
use, condition or occupancy of the Premises, whether existing as of the
Commencement Date or enacted subsequent thereto.
7. Repairs and Alterations. Tenant shall keep and maintain the Premises in a
good, clean condition of repair and maintenance. Tenant shall not damage or
injure the Premises. Tenant further agrees not to commit or allow any waste or
damage to be committed on any portion of the Building or Premises, and at the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
up the Premises to Landlord in as good condition as at the Commencement Date,
ordinary wear and tear excepted. Tenant shall not, without the prior written
consent of Landlord, paint, install permanent lighting or permanent decorations
(except wall hangings), or install any signs, window or door lettering or
advertising media of any type on or about the Building or Premises, or any part
thereof, or make any other alterations, improvements or physical additions in or
to the Building or Premises, or any park thereof. At the termination of the
Lease, at Landlord's option and subject to the Landlord's right to retain
improvements desired by Landlord, Tenant shall remove its alterations,
additions, and improvements, and restore any portions of the Premises altered,
added to, or improved by Tenant to the original condition.
8. Assignment and Subletting. Tenant shall not, either voluntarily or by
operation of law, assign all or any portion of this Lease, including without
limitation any mortgage, pledge, hypothecation, grant of security interest in,
or other encumbrance of this Lease, nor sublet the Premises or any part thereof,
nor permit the Premises or any part thereof to be occupied by any person other
than Tenant or Tenant's employees, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, Tenant may assign this Lease, without the consent of Landlord, in
whole or in part (a) to a wholly-owned, direct or indirect subsidiary or
affiliate of Tenant that will assume the obligations of Tenant hereunder, (b) in
the event of a merger of Tenant (in which Tenant is not the surviving entity),
or (c) in the event of a transfer, purchase or sale of all or part of the stock,
assets or business of Tenant (of which the operations or activities of Tenant at
the Leased Premises constitute a part); provided that Tenant shall remain fully
liable for the fulfillment of all such obligations under the Lease which
assignment will not be unreasonably withheld by the Landlord and, (i) Subject to
the foregoing, if Tenant desires to assign this Lease or sublet the Premises or
any part thereof, Tenant shall so notify Landlord at least thirty (30) days
prior to the date on which Tenant desires to make such assignment or sublease,
which notice shall contain all material terms of the proposed assignment or
sublease and financial information regarding the proposed assignee or subtenant
as a condition of such sublease or assignment, Landlord may require plans to
verify compliance with Building and fire codes. Landlord may assess its
reasonable out of pocket costs for review of such plans. If Tenant desires to
sublet more than 50% of the RA of the Premises, Landlord shall have the option
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within thirty (30) days after receipt of such notice to notify Tenant in writing
that Landlord elects to terminate this Lease as of the date specified by Tenant
for such subletting. If Landlord fails to timely exercise the foregoing
recapture right or if the requested sublease does not trigger a recapture right
on behalf of Landlord, then Landlord shall have twenty (20) business days after
receipt of such notice to notify Tenant whether Landlord consents to a
assignment or subletting. Without limiting Landlord's discretion to consent to a
proposed subletting, and in addition to such other factors that Landlord may
deem pertinent, Tenant acknowledges that in to event will a proposed subletting
be approved by Landlord (a) the sublessee under any such subletting shall be
such person or entity as in Landlord's judgment is of a character and engaged in
a business such as is in keeping with the standards of the Park and its
occupancy, (b) the sublessee shall have sufficient net worth to perform its
obligations under its sublease, (c) the sublessee shall not be a (i) government
or a governmental authority or a subdivision or an agency of any government or
any governmental authority, (ii) a tenant of Landlord elsewhere in the Park,
(iii) an entity or person with whom Landlord has negotiated (for purposes
hereof, "negotiated" shall mean exchanging of written proposals, leases being
prepared or drafts distributed and modified) for a proposed lease of space in
the Park at any time during the six (6) month period prior to the receipt of
said notice by Landlord or (iv) competitor of Landlord and (d) the space so to
be sublet shall be regular in shape.
(b) If Landlord consents to any subletting or assignment by
Tenant as hereinabove provided and the rent, additional rent and other
consideration received by Tenant under or relating to such sublease exceeds the
Adjusted Rental payable to Landlord under this Lease, or if Tenant receives any
consideration from the assignee under any such assignment, then 100% of such
excess rents and consideration under or relating to such sublease or 100% of
such consideration for any assignment shall automatically be due and payable by
Tenant to Landlord as additional rent hereunder.
(c) Landlord may transfer and assign, in whole or in part, its rights and
obligations hereunder concurrently with the transfer and assignment of all or
any portion of the Park and in such event and upon assumption by the transferee
of Landlord's obligations hereunder (any such transferee to have the benefit of,
and be subject to, the provisions of this Lease), no further liability or
obligation shall thereafter accrue against Landlord hereunder.
(d) If Tenant is a corporation, then any merger, consolidation, dissolution
or liquidation, or any change (whether in one or a series of transactions) in
ownership or power to vote of fifty percent (50%) or more of its outstanding
voting stock shall constitute an assignment of this Lease requiring, except as
otherwise specified herein, the consent of Landlord. If Tenant is a partnership,
joint venture or other entity, then any liquidation or dissolution, or any
transfer of ownership of interests totaling fifty percent (50%) or more of the
total interests in such entity (whether in one or a series of transactions)
shall constitute an assignment of this Lease requiring, except as otherwise
specified herein, the consent of Landlord. The provisions of this clause (d)
shall not be applicable so long as the stock of Tenant is traded at a recognized
regional stock exchange.
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(e) Tenant agrees that it shall not place (or permit the placement of) any
signs on or about the Premises or the Park, nor conduct (or permit anyone to
conduct) any public advertising which includes any pictures, renderings,
sketches or other representations of any Building (or a portion thereof) with
respect to any proposed assignment or subletting of the Premises, without
Landlord's prior written consent. In all events, Tenant shall comply with all
applicable governmental regulations.
(f) Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
(or grant a security interest in) this Lease or any of Tenant's rights
hereunder, without Landlord's prior written consent, not to be unreasonably
withheld or delayed. The time frames governing Tenant's request for consent and
Landlord's response shall be the same as set forth in paragraph 8 (a), above,
for assignment or subletting.
(g) Except as otherwise specified herein, Landlord may terminate this Lease
if Tenant sells, transfers, exchanges, distributes, or otherwise disposes of
more than forty percent (40%) of its assets (except in the ordinary course of
business, in a public offering of Tenant's stock, or in a merger or acquisition)
unless after such disposition, the net worth of Tenant as demonstrated to the
reasonable satisfaction of Landlord is an amount acceptable to Landlord.
(h) Except as otherwise specified herein, if Tenant assigns this Lease or
sublets all or substantially all of the Premises, any option then held by Tenant
(such as an option to renew this Lease or to expand the size of the Premises)
shall terminate automatically upon the assignment or sublease unless approved
otherwise by Landlord.
(i) Tenant shall pay Landlord's reasonable expenses incurred in reviewing
any request by Tenant under this Paragraph upon demand.
(j) If the Premises or any part thereof are sublet or used or occupied by anyone
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such default,
collect rent from the subtenant or occupant. Landlord may apply the net amount
collected to the Adjusted Rental, but no such subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Paragraph
or the acceptance of the subtenant or occupant as tenant, or a release of Tenant
from the performance of Tenant's obligations under this Lease. Landlord's
consent to any subletting or use or occupancy by others shall not relieve Tenant
of its obligation to obtain Landlord's written consent to any other subletting,
use or occupancy by others.
8. Indemnity. Landlord shall not be liable or responsible to Tenant for any loss
or damage to any property or person occasioned by theft, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or for any damage or inconvenience that
may arise through repair or alteration of any part of the Building or any part
of the Park, or failure to make any such repairs unless caused by the gross
negligence or willful misconduct of Landlord. In addition, Landlord shall not be
liable to Tenant, or to Tenant's agents, servants, employees, customers or
invitees for, and Tenant shall indemnify, defend and hold harmless Landlord of
and from, all fines, suits, claims, demands, losses, liabilities, actions and
costs (including court costs and attorneys' fees, at trial and on appeal)
arising in whole or in part from (i) any injury to person or damage to property
caused by any negligent act or omission of Tenant, Tenant's agents, servants,
employees, customers or invitees, (ii) Tenant's negligent use of the Premises or
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the negligent conduct of Tenant's business or profession, (iii) any negligent
activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises or (iv) any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease.
(a) Tenant shall defend, indemnify and hold harmless Landlord, its
affiliates and its or their officers, directors, employees and agents,
("Landlord's Indemnities") from and against any and all claims arising from or
in connection with (i) any negligent act or any condition negligently created in
the Premises by Tenant or Tenant's agents, employees, invitees or contractors,
or (ii) any accident, bodily injury (including death) or damage to property,
including damage to property or injury of Tenant or its employees, agents,
contractors, or invitees occurring in the Premises and resulting from Tenant's
negligence, unless (i) caused by the negligence of Landlord, its agents,
employees, or contractors, or (ii) caused by or relating to any breach or
default by Landlord in the full and prompt performance of Landlord's obligations
under this Lease which remains uncured beyond a reasonable period of time after
Landlord is given notice thereof by Tenant.
(b) Notwithstanding any provision to the contrary, Tenant shall look solely
to Landlord's interests in the Park in the event of any claim against Landlord
arising out of this Lease. No other properties or assets of Landlord or any
agent or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any remedy of Tenant arising out
of this Lease. Landlord in no event shall be liable for consequential damages
arising out of any loss of use of the Demised Premises or any equipment or
facilities therein by Tenant or any person claiming through Tenant.
(c) Tenant shall maintain a policy of comprehensive general liability
insurance pertaining to its use and occupancy of the Premises hereunder, with
the premiums thereof fully paid in advance, issued by and binding upon a solvent
insurance company qualified to do business in the State of Utah, such insurance
to name Landlord as an additional insured. Such policy shall afford minimum
protection of not less One Million and No/100 Dollars ($1,000,000.00) combined
single limit for bodily injury, death to any one person, or property damage in
any one occurrence. Additionally, Tenant shall obtain and maintain "all risk"
insurance in respect to Tenant's stock in trade, fixtures, furnishings, floor
covering, equipment and all other property of Tenant in the Premises, insuring
100% insurable value of such property. Landlord and the Tenant hereby waive any
and all rights of recovery against the other or against the officers, agents,
employees, and representatives of loss or damage occasioned to the Tenant or its
property or the property of others under its control, to the extent that such
loss or damage is covered under any insurance policies carried by the Landlord
or the Tenant, as the case may be, and in force at the time of such loss or
damage.
9. Subordination. This Lease and all rights of Tenant hereunder are and
shall be subject and subordinate to any deeds of trust, mortgages or other
instruments of security ("Security Instruments"), as well as to any ground
leases or primary leases ("Master Leases"), that now or hereafter cover any of
the Property or any interest of Landlord therein, and to any and all advances
made on the security thereof, and to any and all increases, renewals,
modifications, consolidations, replacements and extensions thereof. Landlord
hereby expressly reserves the right, at its option and declaration, to place
Security Instruments and Master Leases on and against any of the Building or
Premises or any interest of Landlord therein, superior in effect to this Lease
and the estate created hereby. This clause shall be self-operative and no
further instrument of subordination need be required, however, upon Landlord's
request, or upon the request of any holder (a "Holder") under any Security
Instrument, or of any lessor (a "Lessor") under any Master Lease, Tenant shall
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execute promptly any instrument (including without limitation an amendment to
this Lease that does not materially and adversely affect Tenant's rights or
duties under this Lease) or instruments intended to subordinate this Lease or to
evidence the subordination of this Lease to any such Security Instrument or
Master Lease. Tenant hereby appoints Landlord Tenant's attorney in fact to
execute any such instrument for and on behalf of Tenant. In the event of the
enforcement by a Holder under any Security Instrument of the remedies provided
for by law or by such Security Instrument, or in the event of the termination of
any Master Lease, the Holder or the Lessor may continue this Lease in full force
and effect as a direct lease between such Holder or Lessor and Tenant. If the
Holder or Lessor continues this lease, Tenant will attorn to and automatically
become the tenant of such successor in interest without change in the terms or
other provisions of this Lease (Tenant hereby waiving any right Tenant may have
to terminate this Lease or surrender possession of the Premises) and this Lease
shall continue in full force and effect; provided, however, that such successor
in interest shall not be bound by or liable for any payment of Rent for more
than one month in advance., Upon request by any Holder, Lessor or successor in
interest to either, Tenant shall execute and deliver an instrument confirming
this attornment herein provided for. Tenant agrees that any Holder or Lessor may
at any time subordinate any rights which Holder or Lessor may hold to the rights
of Tenant under this Lease.
10. Rules and Regulations. Tenant shall comply fully with the rules and
regulations of the Building and the Park attached hereto as Exhibit C, and any
applicable restrictive covenants, which may be attached hereto as Exhibit C-1,
which exhibits are made a part hereof as though fully set out herein. Tenant
shall further be responsible for the compliance with such rules and regulations
by the employees, servants, agents, contractors, visitors and invitees of
Tenant. Landlord reserves the right to amend or rescind any of the rules and
regulations and to make such other and further rules and regulations as in its
reasonable judgment shall from time to time be prudent in the operation and
management of the Premises, the Building, and/or the Park, which rules and
regulations shall be binding upon Tenant upon notice to Tenant of same.
11. Inspection and Access. Landlord and its officers, agents and representatives
shall have the right to enter into and upon any and all parts of the Premises,
upon 24 hour notice to Tenant, at all reasonable hours (or, if any emergency, at
any hour) for all reasonable purposes, including without limitation making
repairs or alterations, inspecting the Premises, and showing the Premises to
prospective tenants, purchasers or lenders.
12. Condemnation and Casualty. If all or a substantial portion of the Premises
shall be taken by any public or quasi-public authority under the power of
condemnation, eminent domain or expropriation, or in the event of conveyance of
all of the Premises in lieu thereof, this Lease shall terminate as of the day
possession shall be taken by such authority. All awards and compensation for any
taking or conveyance, whether for the whole or a part of the Premises or
Building, shall be property of Landlord, and Tenant hereby assigns to Landlord
all of Tenant's right, title and interest in and to any and all such awards and
compensation. If the Premises or the Building shall be destroyed or materially
damaged and Landlord is unable to restore the Premises or the Building to an
acceptable condition within a reasonable amount of time, then either party may
terminate this Lease by notice to the other within thirty (30) days after the
occurrence of the casualty, and this Lease shall terminate as of the date of the
casualty.
13. Holding Over. Should Tenant hold over in the Premises, without the written
consent of Landlord, after the expiration of the Lease Term, such tenancy shall
constitute and be construed as a tenancy at will at a rental equal to the Rent
plus fifty percent (50%) of such amount, subject to the other terms and
conditions of this Lease. The inclusion of the preceding sentence shall not be
construed as Landlord's consent for Tenant to hold over.
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14. Default. If Tenant or Guarantor (i) fails to pay when due any Rent or other
sum payable by Tenant hereunder and such failure continues for a period of five
(5) days after written notice to Tenant by Landlord, (ii) fails to comply with
or observe any other provision of this Lease within fifteen (15) days after
delivery to Tenant of notice thereof (unless compliance cannot reasonably be
accomplished within such fifteen-day period), (iii) makes a transfer in fraud of
creditors or an assignment for the benefit of creditors, (iv) files or is named
as a debtor in a bankruptcy petition, or (v) fails to utilize all or
substantially all of the Premises for the Permitted Use for ten (10) or more
consecutive days, Landlord may pursue any and all remedies which it may then
have hereunder or at law or in equity, including, without limitation the
following:
(a) Without releasing Tenant from liability for the remainder of the Term,
Landlord may Terminate this Lease, in which event Tenant immediately shall
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord 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. Tenant agrees
to pay to Landlord on demand the amount of all loss, cost, expense and damage
which Landlord may suffer or incur by reason of such termination, including
without limitation any loss caused by Landlord's inability (after a commercially
reasonable effort) to relet the Premises on terms or conditions reasonably
satisfactory to Landlord.
(b) Without releasing Tenant from liability for the remainder of the Term,
Landlord may enter upon and take possession of the Premises by virtue of the
laws of the State of Utah for summary proceedings for possession of real estate
or such other proceeding as may be applicable, and if Landlord so elects, relet
all or any part of the Premises on such terms as Landlord shall deem advisable
(including, without limitation, such concessions and free rent as Landlord deems
necessary or desirable) and receive and retain all of the rent therefor; and
Tenant agrees (i) to pay to Landlord on demand any deficiency that may arise by
reason of such reletting for the remainder of the Lease Term, and (ii) that
Tenant shall not be entitled to any rents or other payments received by Landlord
in connection with such reletting even if such rents and other payments are in
excess of the amounts that would otherwise be payable to Landlord under this
Lease. Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in reletting the Premises, including, without limitation, brokers'
commissions, reasonable attorneys' fees incurred in connection with the
reletting and in connection with Tenant's default hereunder, expenses of
repairing, altering and remodeling the Premises required by the reletting, and
like costs. Tenant expressly acknowledges that Landlord has no duty to relet the
Premises, that Landlord may offer all or any part of the Premises for any
period, to any tenant and for any use which Landlord may elect, and that
Landlord may offer for lease any vacant space in the Project Buildings prior to
offering the Premises for lease.
(c) Landlord may make such payments or enter upon the Premises, and perform
whatever Tenant is obligated to pay or perform under the terms of this Lease;
and Tenant agrees to reimburse Landlord on demand for any expenditures and
expenses (together with interest thereon at the rate of eighteen percent (18%)
from the date paid by Landlord) which Landlord may make or incur in thus
effecting compliance with Tenant's obligations under this Lease.
(d) If Landlord takes possession of the Premises as permitted herein,
Landlord may keep in place and use all furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by a lessor
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or third party having a lien thereon. Tenant shall pay to Landlord all costs
incurred by Landlord in connection with any removal, disposal, or storage of
Tenant's personal property and shall indemnify and hold Landlord harmless from
all loss, damage, cost, expense and liability in connection with such removal,
disposal, or storage. Landlord's rights herein are in addition to any other
rights Landlord may have at law or equity.
15. Landlord's Liability. Landlord shall not be in default under this Lease
unless and until it fails to perform an obligation hereunder within fifteen (15)
days after written notice by Tenant to Landlord specifying the obligation which
Landlord has not performed. However, if Landlord's obligation reasonably
requires more than 15 days for its performance, Landlord shall not be in default
if it commences performance within such 15 day period and uses reasonable
efforts to complete the same. Tenant has no right to claim any nature of lien
against the Building or to withhold, deduct from or offset against any Rent or
other sums to be paid to Landlord. All obligations of Landlord hereunder are
binding upon Landlord only during the period of its ownership of the Building or
Premises. The term "Landlord" means only the owner, for the time being, of the
Building or Premises. In the event of the transfer by such owner of its interest
in the Building or Premises, such owner shall thereupon be released and
discharged from all covenants and obligations of Landlord thereafter accruing,
but such covenants and obligations shall be binding during the Lease Term upon
each new owner for the duration of such owner's ownership. Any liability of
Landlord to Tenant relating to this Lease shall be limited to the interest of
Landlord in the Premises, and Landlord shall not be personally liable for any
deficiency.
16. Attorneys' Fees. In the event that any action or proceeding is brought to
enforce any term, covenant or condition of this Lease on the part of Landlord or
Tenant, the prevailing party in such action or proceeding shall be entitled to
reasonable attorneys' fees to be fixed by the court therein.
17. Estoppel Certificates. Tenant agrees to furnish from time to time when
requested by (a) Landlord, (b) a Holder or a Lessor, or (c) any prospective
Holder, Lessor or purchaser of the Building, a certificate signed by Tenant
confirming such factual certifications and representations as to the terms and
conditions of this Lease and amendments, if any, as may be deemed appropriate by
Landlord or any such Holder, Lessor, or purchaser, and Tenant shall, within
fifteen (15) days following Tenant's receipt of said proposed certificate from
Landlord, return a fully executed copy of said certificate to Landlord. In the
event Tenant fails to return a fully executed copy of such certificate to
Landlord within said fifteen-day period, then Tenant conclusively shall be
deemed to have approved and confirmed all of the terms, certifications and
representations contained in such certificate.
18. Notices. Any notice, request or documents (excluding Rent and other
payments) permitted or required to be delivered hereunder must be in writing and
shall be deemed delivered upon receipt if actually received and whether or not
received when deposited in the United States mail, postage prepaid, certified
mail (with return receipt requested), addressed to Tenant and Landlord at the
respective addresses set forth in this paragraph or at such other address as
either of said parties have theretofore specified by written notice delivered in
accordance herewith.
Address of Landlord: Attn: Xxxxx Xxxxxxxxx
Canyon Park Management
0000 X Xxxxxxxxxx Xxx
Xxxxx 0000
Xxxx, Xxxx 00000
Telephone: (000) 000-0000 ex. 399
13
Landlord's Counsel: Attn: Monte Deere
Xxxxxxx Xxxxxxx Xxxxxxx & Deere
0000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Address of Tenant: Attn: Xxxx Xxxxxx
Q Comm International, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxx, Xxxx 00000
19. Severability. If any clause or provision of this Lease is illegal, invalid
or unenforceable under present or future laws effective during the Lease Term,
it is the intention of the parties hereto that (i) the remainder of this Lease
shall not be affected thereby and (ii) in lieu of each clause or provision of
this Lease that is illegal, invalid or unenforceable, there be added as a part
of this Lease a clause or provision as similar as possible in terms to such
invalidated clause or provision as may be legal, valid and enforceable.
20. Amendments: No Waiver: Binding Effect. This Lease may not be altered,
changed or amended, except by instrument in writing signed by both parties
hereto. No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant unless such waiver be in writing signed by the party making
the waiver and addressed to the other party, nor shall any custom or practice
which may evolve between the parties in the administration of the terms hereof
be construed to waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms and
conditions contained in this Lease shall apply to, inure to the benefit of, and
be binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly
provided.
21. Quiet Enjoyment. Tenant shall peaceably and quietly hold and enjoy the
Premises for the Lease Term, without hindrance from Landlord or Landlord's
successors or assigns, subject to (i) the terms and conditions of this Lease,
including the performance by Tenant of all of the terms and conditions of this
Lease to be performed by Tenant, including the payment of rent and other amounts
due hereunder, and (ii) actions and claims of any person or entity holding
superior title to that of Landlord, including, but not by way of limitation, any
person or entity who holds an interest in the Premises to which the leasehold
interests created by this Lease is subordinate.
22. Joint and Several Liability. Guarantor hereby unconditionally guarantees
each and every obligation of Tenant hereunder. The obligations imposed upon
Tenant under this Lease shall be the joint and several obligations of Tenant and
Guarantor, and Landlord need not first proceed against Tenant before proceeding
against Guarantor, nor shall Guarantor be released from its guaranty for any
reason whatsoever, including, without limitation, in case of any amendments
hereto, waivers hereof or failure to give Guarantor any notices hereunder.
23. Miscellaneous.
-------------
(a) Each and every covenant and agreement contained in this Lease is, and
shall be construed to be, a separate and independent covenant and agreement.
(b) Neither Landlord nor Landlord's agents or brokers have made any
representations or promises with respect to the Building or
14
Premises, or any portion thereof, except as herein expressly set forth and no
rights, easements or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth in the provisions of this Lease.
(c) This Lease shall be subject to any and all easements, rights-of-way,
covenants, liens, conditions, restrictions, outstanding mineral interest and
royalty interests, if any, relating to the Park, to the extent, and only to the
extent, same still may be in force and effect and either shown of record in the
Office of the County Clerk of Utah County, Utah or apparent on the Building or
Premises.
(d) Tenant shall not record this Lease.
(e) If Tenant is a corporation or association, Tenant shall deliver to
Landlord upon execution of this Lease a certified copy of a resolution of its
board of directors or executive committee authorizing the execution of this
Lease and naming the officers who are authorized to execute this Lease on behalf
of Tenant. Notwithstanding the preceding sentence, Tenant shall be bound by the
signature of any officer of Tenant purporting to have the necessary authority to
sign this Lease, but Landlord may elect to terminate this Lease if Landlord has
not received and approved the form of such a resolution within sixty (60) days
of the execution of this Lease.
(f) Tenant acknowledges that certain of Landlord's employees and security
vendors will, in response to a signal by Tenant or Landlord, assemble to address
an emergency anywhere in the Park. None of these personnel will be held liable
by Tenant for any actions taken in responding to an emergency in the Park;
further, Tenant shall indemnify and hold Landlord, its agents and employees
harmless from and against any and all claims brought by Tenant's employees,
contractors, agents or invitees and any of their dependents, heirs, successors
or assigns arising out of any act or omission, including negligence, of the
members of the Emergency Control Force which may occur while carrying out their
duties in responding to an emergency in the Park.
(g) All payments required to be made hereunder shall constitute additional
Rent hereunder. Landlord shall have the same rights and remedies with respect to
the non-payment of additional Rent as it is with respect to the non-payment of
Rent.
24. Force Majeure. If either party is delayed in performing an obligation
hereunder as a result of strikes, lockouts, shortages of labor, fuel or
materials, acts of God, legal requirements, fire or other casualty, or any other
cause beyond that party's control, then performance of such obligation shall be
excused for the period of such delay, and the period to perform such obligation
shall be extended by the number of days equivalent to the number of days of such
delay. Lack of funds shall not excuse either party from paying any amount due or
performing its obligations hereunder.
25. Access Control Services. Landlord currently provides basic access
control services, which include card access, security patrols and limited camera
surveillance. Landlord shall provide access cards, without charge for Tenant and
Tenant's employees but subject to change without notice, to Tenant at the
beginning of the Lease Term. There will be a $15.00 charge, subject to
adjustment without notice, to the Tenant for each additional card or for any
card that needs to be replaced or changed for any reason or that is not returned
at the end of the Lease. Landlord will provide two keys to the locks on the
corridor doors entering the Premises, with additional keys to be furnished by
the Landlord at Tenant's expense. Landlord reserves the right to change these
services upon notice. Landlord shall not be held liable for any failure to
provide security services or take other security measures for the Building or
Park.
15
27. Exhibits. All exhibits and attachments referred to in this Lease and
the exhibits listed below and attached hereto are incorporated into this Lease
and made a part hereof for all intents and purposes as if fully set out herein.
All capitalized terms used in such documents shall, unless otherwise defined
therein, have the same meanings as are set forth herein.
Exhibit A - Site Plan of Park Showing Building
Exhibit B - Plans of Premises located in the Building
Exhibit C - Rules and Regulations
Exhibit C-1 - Restrictive Covenants deemed Rules and Regulations
16
This Lease is hereby executed by Landlord and Tenant as of the date
first written above.
LANDLORD: TCU Properties I, LLC, a Utah limited liability
company
By: Canyon Park Management Company, Inc., a Utah
corporation, Manager of TCU Properties I, LLC
By: __________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Date: December 23, 2003
TENANT: Q Comm International, a Utah Corporation
By: __________________________________
Name: Xxxx Xxxxx
Title: CEO
Date: December 23, 2003
17
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Building or Premises and the Park and to each portion thereof:
1. Smoking will not be permitted within the Building or any other Park
Building. No tenant or tenant's agent, employee, invitee or contractor may smoke
anywhere on the Land other than areas outside the Building which are expressly
designated as smoking areas.
2. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from that tenant's premises and for going
from one to another part of the Park.
3. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or such tenant's agents, employees or
invitees shall be paid by such tenant and Landlord shall not in any case be
responsible therefore.
4. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors or other exterior part of the Building (or be visible from
any public or common area) unless they are of such color, size and style and in
such places as shall be first approved in writing by Landlord. Landlord, at each
tenant's sole cost and expense, shall install all letters or numbers by or on
doors in such tenant's premises, which letters or numbers shall be in Building
standard graphics. No nails, hooks or screws shall be driven or inserted in any
part of the Building outside the premises except by any Building maintenance
personnel nor shall any part of any Building be defaced by tenants. No curtains
or other window treatments shall be placed between the glass and the Building
standard window treatments.
5. Two keys to the locks on the corridor doors entering each tenant's
premises shall be furnished by Landlord free of charge, with any additional keys
to be furnished by Landlord to each tenant, at such tenant's cost. Landlord
shall provide all locks for other doors in each tenant's premises, at the cost
of such tenant, and no tenant shall place any additional lock or locks on any
door in or to its premises without Landlord's prior written consent. All such
keys shall remain the property of Landlord. Each tenant shall give to Landlord
the explanation of the combination of all locks for safes, safe cabinets and
vault doors, if any, in such tenant's premises.
6. With respect to any substantial work being performed by tenants in any
premises with the approval of Landlord, all tenants will refer all contractors,
contractors' representatives and installation technicians rendering any service
to them to Landlord for Landlord's supervision, approval and control before the
performance of any contractual services. This provision shall apply to all work
performed in the Building including, but not limited to, installations of
telephones, telegraph equipment, electrical devices and attachments, doors,
entrances, and any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the Building.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material or merchandise which
requires use of elevators or stairways, or movement through the Building
entrances or lobby shall be restricted to such hours as Landlord shall
designate. All such movements shall be under the supervision of Landlord and in
the manner agreed between the tenants and Landlord by prearrangement before
performance. Such prearrangement initiated by a tenant will include Landlord's
determination, and be subject to Landlord's decision and control, as to the
time, method, and routing of movement and as to limitations for safety or other
concern which may prohibit any article, equipment or any other item from being
brought into the Building. Tenants shall assume all risk as to the damage to
articles moved and injury to persons or public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord if damaged or
injured as a result of acts in connection with carrying out this service for a
tenant from time of entering the Building or Premises to completion of work; and
Landlord shall not be liable for acts of any person engaged in, or any damage or
loss to any of said property or persons resulting from, any act in connection
with such service performed for a tenant. This section does not apply to normal
business shipping activities of shipping with FedEx, DHL, Airborne, UPS and like
carriers.
8. Landlord may prescribe the weight and position of safes and other heavy
equipment or items, which shall in all cases, to distribute weight, stand on
supporting devices approved by Landlord. All damages done to the Building by the
installation or removal of any property of a tenant, or done by a tenant's
property while in the Building, shall be repaired at the expense of such tenant.
Each tenant shall bear all costs incurred by Landlord or such tenant in
determining the feasibility or actual installation of any such heavy equipment.
A tenant shall notify the Building manager when safes or other heavy equipment
are to be taken in or out of the Building, and the moving shall be done under
the supervision of the Building manager, after written permission from Landlord.
Persons employed to move such property must be acceptable to Landlord.
9. Corridor doors, when not in use, shall be kept closed.
10. Each tenant shall cooperate with Landlord's employees in keeping its
premises neat and clean.
11. Landlord shall be in no way responsible to the tenants, their agents,
employees or invitees for any loss of property from the premises or public areas
or for any damages to any property thereon from any cause whatsoever, except
Landlord's gross negligence.
12. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any premises except by
persons appointed or approved by Landlord in writing.
13. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Except as provided in each tenant's lease, electric
current shall not be used for heating or nonstandard power requirements without
Landlord's prior written permission.
14. Tenant shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
15. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on or
about any tenant's premises, except as may be allowed by law.
16. No machinery of any kind shall be operated by any tenant in its
premises without the prior written consent of Landlord, nor shall any tenant use
or keep in the Building any inflammable or explosive fluid or substance.
17. No portion of any tenant's premises shall at any time be used or
occupied as sleeping or lodging quarters.
18. Each tenant and its agents, employees and invitees shall park only in
those areas designated by Landlord for parking and shall not park on any public
or private streets contiguous to, surrounding or in the vicinity of the Building
without Landlord's prior written consent.
19. Landlord will not be responsible for lost or stolen property, money or
jewelry from any tenant's premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
