EXHIBIT 99.2
LEASE ASSIGNMENT
For and in consideration of the sum of one dollar ($1.00) and other good
and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, Minnesota School of Business, Inc., (Assignor), a corporation
under the laws of the State of Minnesota, does hereby sell, transfer and assign
to C Square Enterprises, a Utah corporation, (Assignee) all right, claim and
interest which it has in and to that certain Xxxxx dated October 1, 2002, as
amended, made by IS Properties LLC., as Landlord and Minnesota School of
Business dba Utah Career College as Tenant on that certain real property located
at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxxxx, Xxxx, together will all rights and
interests under said lease from the 30th day of June, 2005.
ASSIGNOR
Minnesota School of Business, Inc.
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me by Xxxxx X. Xxxxx, this 29th
day of June, 2005.
(seal) /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Notary Public
This Instrument was Drafted By
Xxxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Tel. 651/000-0000
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE is made and entered into this 16th day of March ,
2005 by and between IS PROPERTIES, LLC ("Landlord") and MINNESOTA SCHOOL OF
BUSINESSS, dba UTAH CAREER COLLEGE ("Tenant").
RECITALS
A. Landlord and Tenant are parties to a Lease Agreement dated October 1,
2002 (the "Lease") and a First Amendment dated June 1, 2004. The Lease provides
for the lease of certain premises consisting of approximately 5,070 square feet
of retail space (the "Original Premises") located in the Independence Square
Shopping Center (the "Shopping Center"), in West Jordan, Utah. The First
Amendment provides for the lease of additional space consisting of approximately
1,230 square feet of retail space (the "Additional Space") also located in the
Shopping Center.
B. Landlord and Tenant now desire to amend the Lease in certain respects,
including leasing additional space to Tenant, all in accordance with and subject
to the terms and conditions set forth herein.
TERMS AND CONDITIONS OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Effective Date. This Amendment shall become effective as of July 1, 2005
(the "Effective Date").
2. Lease of Additional Premises. Landlord will lease to Tenant, and Tenant
will accept and lease from Landlord, those additional premises located in the
Shopping Center and previously occupied by Mission Health Services, consisting
of approximately 10,500 square feet of office space and commonly known as 0000
Xxxx 0000 Xxxxx, Xxxx Xxxxxx, Xxxx 00000 (the "Additional Premises"). Xxxxxxxx
will deliver possession of the Additional Premises to Tenant immediately upon
vacation of said premises by Mission Health Services. Upon vacation by Mission
Health Services, the Additional Premises shall be deemed to be part of the
"Demised Premises" as defined in the Lease and Tenant's use and occupancy of the
Additional Premises will be subject to all of the terms and conditions of the
Lease applicable to the Demised Premises.
3. Term The lease term for the Additional Premises shall be for 14 years.
The lease term for the Original Premises and the Additional Space in the First
Amendment to the Lease shall be extended to be coterminous with term of the
Additional Premises in the Second Amendment to the Lease.
4. Amendment of Fixed Rent. Section 7.1 of the Lease is amended to read as
follows:
7.1 Base Rent. Tenant agrees to pay Landlord as Base Rent the following
three sums, for the Original Space of 5,070 square feet of Rentable Area, for
the Additional Space of 1,230 square feet in the First Amendment to the lease
and the Additional Premises of 10,500 square feet in this Second Amendment to
the Lease on the first day of each month according to the amounts and dates
below:
A. Original Space/5,070 SF - 1746 West 7800 South
01/01/03-03/31/03 $2,640.63/month Net/Net/Net
04/01/03-12/31/03 $5,281.25 Net/Net/Net
01/01/04-12/31/04 $5,281.25/month $63,375.00/year Net/Net/Net
01/01/05-12/31/05 $5,281.25/month $63,375.00/year Net/Net/Net
01/01/06-12/31/06 $5,800.93/month $69,611.10/year Net/Net/Net
01/01/07-12/31/07 $5,800.93/month $69,611.10/year Net/Net/Net
01/01/08-12/31/08 $5,800.93/month $69,611.10/year Net/Net/Net
01/01/09-12/31/09 $5,800.93/month $69,611.10/year Net/Net/Net
01/01/10-09/30/10 $5,800.93/month $52,208.37/year Net/Net/Net
10/01/10-12/31/10 $5,800.93/month Net/Net/Net
01/01/11-12/31/11 $5,945.95/month $71,351.40/year Net/Net/Net
01/01/12-12/31/12 $6,094.60/month $73,135.20/year Net/Net/Net
01/01/13-12/31/13 $6,246.97/month $74,963.64/year Net/Net/Net
01/01/14-12/31/14 $6,403.14/month $76,837.68/year Net/Net/Net
01/01/15-12/31/15 $6,563.22/month $78,758.64/year Net/Net/Net
01/01/16-12/31/16 $6,727.30/month $80,727.60/year Net/Net/Net
01/01/17-12/31/17 $6,895.48/month $82,745.76/year Net/Net/Net
01/01/18-12/31/18 $7,067.87/month $84,814.44/year Net/Net/Net
01/01/19-06/30/19 $7,244.57/month $43,467.42/year Net/Net/Net
B. Additional Space/1,230 SF - 1740 West 0000 Xxxxx
06/01/04-12/31/04 $1,281.25/month Net/Net/Net
01/01/05-12/31/05 $1,281.25/month $15,375.00/year Net/Net/Net
01/01/06-12/31/06 $1,407.33/month $16,887.96/year Net/Net/Net
01/01/07-12/31/07 $1,407.33/month $16,887.96/year Net/Net/Net
01/01/08-12/31/08 $1,407.33/month $16,887.96/year Net/Net/Net
01/01/09-12/31/09 $1,407.33/month $16,887.96/year Net/Net/Net
01/01/10-09/30/10 $1,407.33/month $12,665.97/year Net/Net/Net
10/01/10-12/31/10 $1,407.33/month Net/Net/Net
01/01/11-12/31/11 $1,442.51/month $17,310.12/year Net/Net/Net
01/01/12-12/31/12 $1,478.58/month $17,742.96/year Net/Net/Net
01/01/13-12/31/13 $1,515.54/month $18,186.48/year Net/Net/Net
01/01/14-12/31/14 $1,553.43/month $18,641.16/year Net/Net/Net
01/01/15-12/31/15 $1,592.26/month $19,107.12/year Net/Net/Net
01/01/16-12/31/16 $1,632.07/month $19,584.84/year Net/Net/Net
01/01/17-12/31/17 $1,672.87/month $20,074.44/year Net/Net/Net
01/01/18-12/31/18 $1,714.69/month $20,576.28/year Net/Net/Net
01/01/19-06/30/19 $1,757.56/month $10,545.36/year Net/Net/Net
C. Additional Premises/10,500 SF - 1800 West 7800 South 14 year
term-Commencing July 1, 2005
07/01/05-06/30/06 $10,937.50/month $65,625.00/year Net/Net/Net
07/01/06-06/30/07 $11,210.94/month $67,265.64/year Net/Net/Net
07/01/07-06/30/08 $11,491.21/month $68,947.26/year Net/Net/Net
07/01/08-06/30/09 $11,778.49/month $70,670.94/year Net/Net/Net
07/01/09-06/30/10 $12,072.95/month $72,437.70/year Net/Net/Net
07/01/10-06/30/11 $12,374.78/month $74,248.68/year Net/Net/Net
07/01/11-06/30/12 $12,684.15/month $76,104.90/year Net/Net/Net
07/01/12-06/30/13 $13,001.25/month $78,007.50/year Net/Net/Net
07/01/13-06/30/14 $13,326.28/month $79,957.68/year Net/Net/Net
07/01/14-06/30/15 $13,659.44/month $81,956.64/year Net/Net/Net
07/01/15-06/30/16 $14,000.92/month $84,005.52/year Net/Net/Net
07/01/16-06/30/17 $14,350.95/month $86,105.70/year Net/Net/Net
07/01/17-06/30/18 $14,709.72/month $88,258.32/year Net/Net/Net
07/01/18-06/30/19 $15,077.46/month $90,464.76/year Net/Net/Net
D. Base Rent Increases. The Base Rent stated above reflects increases of
2.5% annually for the Additional Premises beginning and after July 1, 2006 and
for the Original Premises and the Additional Space beginning and after January
1, 2011 during the initial term and any extension of the initial term.
5. Tenant's Proportionate Share. Tenant's proportionate share of taxes,
insurance, and common area maintenance expense with respect to the Additional
Premises, the Additional Space and, commencing on the effective date, the
Additional Premises shall be calculated as provided in Article 29 of the Lease.
Tenant shall continue to pay its proportionate share of taxes, insurance and
common area maintenance with respect to the Original Premises and the Additional
Space, and commencing on the effective date, shall also pay its proportionate
share of such expenses with respect to the Additional Premises.
6. Tenant Improvement Allowance. Landlord will provide Tenant a "Tenant
Improvement Allowance" up to the amount of $15 per square foot of the Additional
Premises to be applied to the cost of finishing the shell of the Additional
Premises with improvements to be mutually agreed upon by Landlord and Tenant.
7. Additional Parking and Xxxxxx's Pro-Rata Share for Parking. In addition
to the parking previously provided in connection with the Original Premises and
the Additional Space, Tenant shall be entitled to the non-exclusive use of 100
parking spaces in front of and to the north of the Additional Premises. With
regard to determining Tenant's pro rata share of Common Area expenses applicable
to drives and parking areas, the last sentence of the first paragraph of Section
29(b)(2) of the Lease is hereby modified and an additional sentence is added to
provide as follows:
The preliminary site plan attached as Exhibit A shows the parking that
is or will become available for the Demised Premises, subject to such
changes as may reasonably need to be made to the final site
plan. The final site plan will be substituted for the preliminary site
plan as soon as it becomes available. Except with respect to those
Common Area expenses relating to drive and parking areas provided for
below, Tenant's pro-rata share of the total Common Area expenses for
the previous calendar year shall be that portion of all such expenses
which is equal to the proportion which the number of square feet of
gross leasable area in the Demised Premises bears to the total number
of square feet of gross leasable area of buildings in the entire
Development which are from time to time completed and occupied as of
the commencement of each calendar year. Tenant's pro-rata share of the
total Common Area expenses for the previous calendar year which relate
to the operation and maintenance of the drive and parking areas
located in the Common Area shall be that portion of all such expenses
which is equal to the proportion which the number of parking spaces
available for Tenant use bears to the total number of parking spaces
in the entire Development.
Except as expressly modified above, Section 29(b)(2) of the Lease remains in
full force and effect as originally written.
8. Additional Security Deposit. Upon execution of this amendment, Tenant
shall pay to Landlord an additional security deposit equal to the last month's
rent based on the last year of lease term for the Additional Premises in the
amount of $15,077.46.
9. Acceptance of Additional Premises. Xxxxxx agrees to accept the
Additional Premises "As Is", and Tenant shall bear the entire cost of any
alterations or improvements required to the Additional Premises to suit Tenant's
needs. Xxxxxx's taking possession of the Additional Premises shall be deemed
conclusive evidence that the Additional Premises are in good order and
satisfactory condition. Landlord is under no obligation to alter, remodel,
repair or improve any of the Additional Premises, the building in which they are
located, or the surrounding grounds, and Landlord has made no representations,
express or implied, respecting any matter or thing relating to said premises,
building, or grounds except as may be expressly stated in the Lease or this
Amendment.
10. Brokers and Commissions. Each of Landlord and Xxxxxx (as "warranting
party") represents and warrants to the other that the warranting party knows of
no real estate broker or agent who is or might be entitled to compensation in
connection with this Amendment. Each warranting party agrees to indemnify,
defend and hold the other party harmless from and against any and all
liabilities or expenses, including reasonable attorneys' fees and costs, arising
out of any claim for brokerage commissions, finder fee, or similar compensation
which claim is based on any alleged act or agreement of the warranting party.
This indemnification shall survive the termination of the Lease, as amended
hereby.
11. Miscellaneous. The Lease, as amended hereby, contains all of the
representations, understandings, and agreements of the parties with respect to
matters contained herein. All capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed to them in the Lease. Each of the
individuals who have executed this
Amendment represents and warrants that he or she is duly authorized to execute
this Amendment on behalf of the Landlord or Tenant as the case may be; that all
corporate, partnership, trust or other action necessary for such party to
execute and perform the terms of this Amendment have been duly taken by such
party, and that no other signature and/or authorization is necessary for such
party to enter into and perform the terms of this Amendment. Except as amended
herein, the terms and conditions of the Lease shall remain the same and in full
force and effect.
DATED this 16th day of March, 2005.
LANDLORD: TENANT:
IS PROPERTIES, LLC MINNESOTA SCHOOL OF BUSINESS,
Dba UTAH CAREER COLLEGE
By: /s/ By: /s/
-------------------------------- ------------------------------------
Its: Manager Its: Director Advertising
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE ("Amendment") is made and entered into by and
between IS PROPERTIES, LLC ("Landlord") and C SQUARE EDUCATIONAL ENTERPRISES,
dba UTAH CAREER COLLEGE ("Tenant").
RECITALS
X. Xxxxxxxx and Tenant are parties to a Lease Agreement dated October 1,
2002 (the "Lease"). The Lease provides for the lease of certain premises
consisting of approximately 5,070 square feet of retail space (the "Original
Premises") located in the Independence Square Shopping Center (the "Shopping
Center"), in West Jordan, Utah.
B. Landlord and Xxxxxx now desire to amend the Lease in certain respects,
including leasing additional space in the Shopping Center to Tenant, all in
accordance with and subject to the terms and conditions set forth herein.
TERMS AND CONDITIONS OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Effective Date. This Amendment shall become effective as of June 1, 2004
(the "Effective Date").
2. Lease of Additional Premises. Landlord will lease to Tenant, and Tenant
will accept and lease from Landlord, those certain premises located in the
Shopping Center and previously occupied by Curves for Women, consisting of
approximately 1,200 square feet of retail space and commonly known as 0000 Xxxx
0000 Xxxxx, Xxxx Xxxxxx, Xxxx (the "Additional Premises"). Xxxxxxxx will deliver
possession of the Additional Premises to Tenant immediately upon vacation of
said premises by Curves for Women. Upon vacation by Curves for Women, the
Additional Premises shall be deemed to be part of the "Demised Premises" as
defined in the Lease and Tenant's use and occupancy of the Additional Premises
will be subject to all of the terms and conditions of the Lease applicable to
the Demised Premises.
3. Term The lease term for the Additional Premises shall be term stated in
the Lease for the Demised Premises.
4. Rent. Until the Effective Date, Tenant shall pay rent as provided in
Section 7.1 of the Lease. Commencing as of the Effective Date, the rent for the
Demised Premises (including both the Original Premises and the Additional
Premises) shall be as follows:
Year 2004 (June 1 thru Dec. 31) $6,562.50/month-$45,937.50/year
Net/Net/Net
Year 2005 $6,562.50/month-$78,750.00/year Net/Net/Net
Year 2006 $7,208.26/month-$86,499.12/year Net/Net/Net
Year 2007 $7,208.26/month-$86,499.12/year Net/Net/Net
Year 2008 $7,208.26/month-$86,499.12/year Net/Net/Net
Year 2009 $7,208.26/month-$86,499.12/year Net/Net/Net
Year 2010 (Jan. 1 thru Sep. 30) $7,208.26/month-$64,874.34/year
Net/Net/Net
5. Tenant's Proportionate Share. Tenant's proportionate share of taxes,
insurance, and common area maintenance expense with respect to the Additional
Premises shall be calculated as provided in Article 4.1 of the Lease. Tenant
shall continue to pay its proportionate share of taxes, insurance and common
area maintenance with respect to the Original Premises, and commencing on the
effective date, shall also pay its proportionate share of such expenses with
respect to the Additional Premises.
6. Additional Security Deposit. Upon execution of this amendment, Tenant
shall pay to Landlord an additional security deposit in the amount of $ not
applicable.
7. Acceptance of Additional Premises. Xxxxxx agrees to accept the
Additional Premises "As Is", and Tenant shall bear the entire cost of any
alterations or improvements required to the Additional Premises to suit Tenant's
needs. Xxxxxx's taking possession of the Additional Premises shall be deemed
conclusive evidence that the Additional Premises are in good order and
satisfactory condition. Landlord is under no obligation to alter, remodel,
repair or improve any of the Additional Premises, the building in which they are
located, or the surrounding grounds, and Landlord has made no representations,
express or implied, respecting any matter or thing relating to said premises,
building, or grounds except as may be expressly stated in the Lease or this
Amendment.
8. Brokers and Commissions. Each of Landlord and Xxxxxx (as "warranting
party") represents and warrants to the other that the warranting party knows of
no real estate broker or agent who is or might be entitled to compensation in
connection with this Amendment. Each warranting party agrees to indemnify,
defend and hold the other party harmless from and against any and all
liabilities or expenses, including reasonable attorneys' fees and costs, arising
out of any claim for brokerage commissions, finder fee, or similar compensation
which claim is based on any alleged act or agreement of the warranting party.
This indemnification shall survive the termination of the Lease, as amended
hereby.
9. Miscellaneous. The Lease, as amended hereby, contains all of the
representations, understandings, and agreements of the parties with respect to
matters contained herein. All capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed to them in the Lease. Each of the
individuals who have executed this Amendment represents and warrants that he or
she is duly authorized to execute this Amendment on behalf of the Landlord or
Tenant as the case may be; that all corporate, partnership, trust or other
action necessary for such party to execute and perform the terms of this
Amendment have been duly taken by such party, and that no other signature and/or
authorization is necessary for such party to enter into and perform the terms of
this Amendment. Except as amended herein, the terms and conditions of the Lease
shall remain the same and in full force and effect.
DATED this 29th day of APRIL, 2004.
LANDLORD: TENANT:
IS PROPERTIES, LLC C Square Educational Enterprises, dba
UTAH CAREER COLLEGE
By: /s/ By: /s/ Xxxxx Xxxxx
--------------------------------- ------------------------------------
Manager Its: CEO
CONSENT OF GUARANTOR
The undersigned is a personal Guarantor of the Lease pursuant to a written
Guarantee of Lease (the "Guarantee") executed contemporaneously therewith. The
undersigned hereby consents to the foregoing First Amendment to Lease Agreement.
The undersigned's guarantee obligations under the Guarantee shall apply to the
obligations of the Tenant under the Lease, as amended herein.
DATED this 29th day of APRIL, 2004.
GUARANTOR:
/s/Xxxxx Xxxxx
----------------------------------------
(Signature)
Xxxxx Xxxxx
(Please print name)
LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this 1st day of October, 2002,
by and between IS PROPERTIES LLC., hereinafter referred to as the "Landlord",
and MINNESOTA SCHOOL OF BUSINESS, dba Utah Career College hereinafter referred
to as the "Tenant":
WITNESSETH
ARTICLE 1. REMISES AND TERM. Landlord hereby leases and by these presents
does lease and demise to the Tenant, and the Tenant does lease and take from the
Landlord, the premises described on Exhibit "B" attached hereto, consisting of
approximately 5,070 square feet of retail space, the "Demised Premises",
situated in the building erected, or to be erected, on the property described on
Exhibit "A" attached hereto, together with all the easements, rights, privileges
and appurtenances thereunto belonging or in any way appertaining to the Demised
Premises.
TO HAVE AND TO HOLD the said Demised Premises, together with all
improvements, appurtenances, rights, privileges and easements thereunto
belonging to or in appertaining, unto Tenant for a term commencing as of the
date set forth herein under Article 3, and continuing thereafter to and
including the date eight (8) years from the first day of the first month
immediately following such commencement date, subject, however, to extension and
renewal if hereafter provided. When the date of commencement of the term has
determined, Landlord and Tenant may enter into an agreement in recordable form
setting forth such date at the request of either the Landlord or the Tenant.
ARTICLE 2. CONSTRUCTION OF IMPROVEMENTS. Tenant shall, at Tenant's sole
cost and expense, construct other improvements, within the Demised Premises, in
accordance with the preliminary plans and specifications prepared by Tenant's
Architect copies which will be attached and incorporated as Exhibit "B", and
initialed by the parties, which plans and specifications the parties will
carefully review and specifically approve prior to construction.
ARTICLE 3. TENANT'S POSSESSION. The term of this Lease shall commence upon
mutual execution of the lease. The Tenant may take possession of the Demised
Premises upon later of the lease execution date or October 1, 2002. The Tenant
shall accept possession of the Demised Premises "as is". Rental payment shall
commence on January 1, 2003 for the space
labeled Phase 1 on Exhibit A and the rental payment on the remainder of the
space labeled Phase 2 in Exhibit A shall commence on April 1, 2003.
ARTICLE 4. OBLIGATIONS OF TENANT AND LANDLORD.
4.1 Real Property Taxes. Tenant shall pay, within ten (10) days from the
date Landlord submits to Tenant a statement setting forth the amount due
Landlord under the provisions of this paragraph, Xxxxxx's proportionate share of
the real property taxes and assessments on the Demised Premises as additional
rent hereunder. Tenant's proportionate share of such taxes and assessments shall
be determined by multiplying the total amount of such taxes and assessments by a
fraction, the numerator of which is the floor area of the Demised Premises and
the denominator of which is the total floor area of the building or buildings
being assessed. Tenant shall pay one-twelfth (1/12) of Tenant's proportionate
share of the estimated annual taxes in advance each month in addition to the
minimum rental payment due hereunder. Landlord shall pay all taxes, and
assessments lawfully levied or assessed against the building or buildings or any
part thereof; provided, however, that Landlord may, dispute and contest the
same. Tenant may, at its sole cost and expense, after it has paid in full its
proportionate share of any taxes or assessments due hereunder, upon fifteen (15)
days prior written notice to Landlord, contest with the appropriate governmental
authority such tax or assessment. Tenant shall be entitled to any refund of any
tax or penalty paid by Xxxxxx, or paid by Landlord and reimbursed by Tenant to
Landlord. (See Lease Rider "A" Building Expenses attached hereto and
incorporated herein.)
4.2 Personal Property Taxes. Tenant shall additionally pay, when due, all
personal property taxes and license fees levied and assessed against the Demised
Premises during the term of this Lease. Nothing contained in this Lease shall
require or be construed to obligate the Tenant to pay any franchise, excise,
corporate, estate, inheritance, succession, capital levy or transfer tax of the
Landlord, or any income, profits or revenue tax upon the income of the Landlord;
provided, however, that in any case where a tax may be levied, assessed or
imposed upon Landlord for the privilege of renting or leasing the Demised
Premises, Tenant shall pay to Landlord as additional rent hereunder the amount
of said tax, but in no event shall the Tenant be obligated to pay an amount
greater than that which would be payable if the Demised Premises were the only
asset of the Landlord.
4.3 Tenant's Insurance. The Tenant shall, during the entire term of this
Lease, at the Tenant's sole cost and expense, but for the mutual benefit of the
Landlord and Xxxxxx, maintain general public liability insurance against claims
for personal injury, death or property damage
occurring upon, in or about the entire property described on Exhibit "B"
attached hereto and on, in or about the adjoining streets and passageways, such
insurance to afford protection to the limit of not less than $1,000,000 in
respect to injury or death to a single person, and to the limit of not less than
$2,000,000 in respect to any one accident, and to the limit of not less than
$250,000 in respect to property damage or a combined single limit policy not
less than $2,000,000 per occurrence. All policies shall name Xxxxxxxx and the
mortgagee of the property as an additional named insured, as their interest may
appear. The initial mortgagee shall be GE Capital Commercial Mortgage
Corporation, GECMC 2001-3 Loan Number 70-2000443.
Tenant shall also provide insurance coverage to the extent of the full
replacement value covering all of Tenant's property, fixture, equipment, tools,
improvements, stock, goods, wares or merchandise, that it may have in or on or
about the Demised Premises.
Other forms of insurance may be reasonably required to cover future risks
against which a prudent Tenant would protect itself.
All policies of insurance provided for herein shall be issued by insurance
companies with a general policy holder's rating of not less than A and a
financial rating of AAA, as rated in the most current available "Best Guide"
Insurance Reports, and qualified to do business in the state of Utah.
The policies for the foregoing insurance shall provide that the proceeds
thereof shall be payable to the Tenant and to the Landlord, as their respective
interests may appear. Said required Tenant insurance coverage shall be verified
to the Landlord by an insurance carrier in the form of either a certified copy
of the policy or other written verification of insurance coverage acceptable to
Landlord and the lending institution for the Demised Premises. Such insurance
policies shall provide that Landlord be given thirty (30) days written notice
prior to any cancellation or alteration of any policy.
To the extent that Tenant fails to provide the foregoing insurance, either
hazard or liability, Tenant shall be responsible to Landlord, as his interest
appears, for such damage that would have been insured by said policies but for
Xxxxxx's failure to obtain such insurance.
4.4 Landlord's Insurance. Subject to Tenant's reimbursement, Landlord shall
provide fire, lighting, and extended coverage ("all risk") insurance and such
additional insurance coverage as may be required by Landlord's mortgagee
(including "loss of rents" insurance) on the building, of which the Demised
Premises is a Part, for the full replacement value thereof or such value as is
required by Landlord's mortgagee, whichever is greater, against such loss.
Tenant shall reimburse Landlord as additional rental hereunder, for Xxxxxx's
proportionate share (determined in the same manner as Tenant's proportionate
share of taxes and assessments herein above) of the insurance premium therefore
within ten (10) days from the date Landlord submits to Tenant a statement
setting forth the amount due Landlord under the provisions of this paragraph.
Xxxxxx agrees that it will not at any time, during the term of this Lease, carry
any stock of goods or do anything or about the Demised Premises which will in
any way tend to increase the insurance rates upon the building of which the
Demised Premises area a part. In addition to Tenant's proportionate share of the
costs of insurance premiums as described herein, Tenant agrees to pay to
Landlord forthwith upon demand the amount of any increase in premiums for
insurance against loss by fire that may be charged during the term of this Lease
on the amount of insurance to be carried by Landlord on the building of which
the Demised Premises are a part resulting from the foregoing or from Tenant
doing any act in or about said Xxxxxxx Premises which does so increase the
insurance rates, whether or not the Landlord shall have consented to such act on
the part of Tenant. If Tenant installs upon the Demised Premises any electrical
equipment which constitutes an overload on the electrical lines of the Demised
Premises, Tenant shall at its own expense make whatever changes are necessary to
comply with the requirements of the insurance underwriters, nothing herein
contained shall be deemed to constitute Landlord's consent to such overloading.
Tenant shall pay 1/12 of Tenant's proportionate share of the estimated annual
building insurance premium in advance each month along with the minimum rental
payment. (See Lease Rider "A" Building Expenses attached hereto and incorporated
herein.)
4.5 Subrogation. Landlord and any other tenants of the building shall not
be liable to Tenant or anyone claiming by, through or under Tenant, including an
insurance carrier or carriers, for any insurable loss or damage, and no such
carrier shall have the right to subrogate against Landlord, or any other Tenant.
All of the insurance policies required hereunder pertaining to the Demised
Premises shall contain an endorsement by the respective insurance carrier or
carriers waiving any and all rights of subrogation against Landlord, and any
other tenant of the building, a copy of which endorsement or endorsements, or
evidence thereof by way of certificate shall be furnished to the Landlord.
4.6 Assumption of Risk. Anything herein to the contrary notwithstanding,
after the commencement of the term as provided in Article 3, the Tenant assumes
full risk of damage to its property, fixtures, equipment, tools, improvements,
stock, goods, ware of merchandise, that it
may have in or on or about the Demised Premises, resulting from fire, lightning,
extended coverage perils, flood and any catastrophe, regardless of cause or
origin. The Landlord shall not be liable to Tenant or anyone claiming by,
through or under Tenant, including Tenant's insurance carrier or carriers, for
any loss or damage resulting from fire, lightning or extended coverage perils or
from an act of God. Landlord shall not be liable to the insurance carrier for
damages insured against, either directly or by way of subrogation.
ARTILE 5. TENANT'S USE. The Tenant may use the Demised Premises for
conducting its Veterinary School Business and ancillary services connected
therewith. Tenant shall be permitted to add additional curriculum/s if
additional curriculum/s are in compliance with existing use restrictions and
exclusives for said shopping center. Tenant shall use the Demised Premises only
for lawful and proper purposes, which are permissible under applicable law
(including under applicable zoning laws). Tenant shall not make any use of the
Demised Premises which will cause cancellation of any insurance policy covering
the same and shall not keep or use on the Demised Premises any article, item, or
thing which is prohibited by the terms of the hazard insurance policy covering
the improvements. Tenant shall not commit any waste upon the Demised Premises
and shall not conduct or allow any business, activity or thing on the Demised
Premises which is or becomes unlawful, prohibited, or a nuisance or which may
cause damage to Landlord, to occupants or other tenants in the vicinity, or to
other third parties. Tenant shall comply with and abide by all laws, ordinances,
and regulations of all municipal, county, state and federal authorities which
are now in force or which may hereafter become effective with respect to use and
occupancy of the Demised Premises. Tenant shall make no alteration or addition
to the premises without the prior written consent of Landlord.
Tenant represents to Landlord that neither Tenant nor any affiliates of
Tenant will generate, store or dispose of any Hazardous Substances (as defined
below) at or in the area of the Demised Premises and Property.
Tenant covenants with Landlord: a) to prohibit any generation, storage or
disposal of Hazardous Substances at the Demised Premises, b) to deliver promptly
to Landlord true and complete copies of all notices received by Tenant from any
governmental authority with respect to the generation, storage or disposal by
Tenant of Hazardous Substances (whether or not at the Demised Premises); and c)
to permit entry onto the Premises by Landlord of Landlord's representative(s) at
any reasonable time to verify Tenant's compliance with the foregoing.
Tenant agrees to indemnify and defend Landlord (with legal counsel
reasonably acceptable to Landlord) from and against any costs, fees or expenses
(including, without limitation, cleanup expenses, third party claims and
environmental impairment expenses and reasonable attorneys' fees and expenses)
incurred by Landlord in connection with Tenant's generation, storage, or
disposal of Hazardous Substances at or near the Demised Premises in accordance
with the foregoing and with Tenant's compliance with the foregoing
representations and covenants. This indemnification by Tenant shall survive
termination or expiration of this Lease.
"Hazardous Substances" shall mean i) hazardous substances as defined in the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, ii "PCBs", as defined in 40 C.F.R. 761 et seq. and "TCDD" as defined in
40 C.F.R. 755 et seq. (or in either case analogous regulations promulgated under
the Toxic Substances Control Act, as amended), iii) "asbestos" as defined in 29
C.F.R. 1910.1001 et seq. (or analogous regulations promulgated under the
Occupational Safety and Health Act of 1970, as amended), and (iv) waste oils and
other petroleum hydrocarbon compounds.
In the event Tenant's business, or use of the Demised Premises, should
require the legal storing of barrels, drums and other storage containers, Tenant
covenants with Landlord to provide Landlord no less often than every three (3)
months with a complete and accurate list of all storage containers, chemical
inventories and quantities. Such inventory list shall be updated by Tenant to
Landlord every quarter and certified as a true and correct inventory.
Additionally, Tenant shall supply Landlord with a container and contents
disposal plan acceptable to Landlord or in the alternative, a bond payable to
Landlord to fund the disposal and discardment of all chemicals and/or storage
containers located on or about the Demised Premises. Said bond shall be used by
Landlord in the event Tenant fails to properly dispose of such containers and
chemicals.
Tenant covenants with Landlord to store all chemical containers in a safe
and secure manner either inside the Demised Premises or within a secured fenced
area, so as not to cause a nuisance to Landlord and other tenants in the
proximity of the Demised Premises, and to prevent the unlawful infiltration of
chemicals and container discardment by others.
ARTICLE 6. POSSESSION. Possession of the Demised Premised shall be
delivered to the Tenant an "as is" basis as herein provided, free and clear of
all Tenants and occupants and the rights of either. The Demised Premises shall
also be free of liens, encumbrances and
violations of laws, ordinances and regulations adversely affecting the use and
occupancy of the Demised Premises, except those presently of record including
mortgages and trust deeds and those that may be specified herein. Xxxxxx agrees
to deliver to the Landlord physical possession of the Demised Premises,
including all keys to the Demised Premises, upon the termination or expiration
of this Lease or any extension thereof, in as good order, condition, and state
of repair as when received by Tenant, reasonable wear and tear thereof and
damage by fire, acts of God or the elements excepted.
ARTICLE 7. RENT.
7.1 Minimum Rent. The Tenant agrees to pay the Landlord at such address as shall
from time to time be designated by Landlord, as minimum rental during the
initial term of this Lease without right of offset or deduction, the sum of:
Years 2003 January to April $2,640.63/month; April to December
$5,281.25/month-$50,171.888/year Net/Net/Net
Year 2004 $5,281.25/month $63,375.00/year Net/Net/Net
Year 2005 $5,281.25/month $63,375.00/year Net/Net/Net
Year 2006 $5,800.93/month $69,611.10/year Net/Net/Net
Year 2007 $5,800.93/month $69,611.10/year Net/Net/Net
Year 2008 $5,800.93/month $69,611.10/year Net/Net/Net
Year 2009 $5,800.93/month $69,611.10/year Net/Net/Net
Year 2010 January to September $5,800.93/month-$52,208.37/year Net/Net/Net
Minimum rental shall be payable monthly, in advance, without demand on the first
day of each calendar month throughout the Lease term. Should Xxxxxx's occupancy
of the Demised premises commence on any day other than on the first (1st) day of
the calendar month, the first rental shall be prorated accordingly.
7.2 Late Penalty. Tenant shall be charged a five percent (5%) late fee on
all rental payments (minimum and/or additional) which are received by Landlord
more than fifteen (15) days after their due date. Such late fee shall compensate
Landlord for (i) the costs attributable to providing notice of delinquency; and
(ii) the expense of servicing the mortgage loan on Landlord's Building from
alternative funds. In addition, any rental payments which are not paid within
twenty (20) days of their due date shall bear interest thereafter at the rate of
one and one-
half percent (1-1/2%) per month, or the highest rate permitted by law, whichever
is lower, until paid.
ARTICLE 8. SIGNS. With the prior written approval of Landlord, which
approval shall not be unreasonably withheld, Tenant shall have the right and
privilege to place on the building or Demised Premises signage necessary for the
operation of Tenant's business. Such sign installation shall not adversely
affect or damage the physical structure of the building, nor detract from the
overall harmony of the building and the adjacent shopping center development.
All such signs must conform with the codes and regulations of West Jordan City
and adhere to the signage criteria for the development.
Upon the expiration or termination of the lease, the Tenant shall remove
all signage installed by Tenant and repair any damaged areas on the building or
Demised Premises caused thereby, to a condition acceptable to the Landlord.
ARTICLE 9. ALTERATIONS AND IMPROVEMENTS. Tenant shall have the right,
subject to Landlord's prior written approval, to make non-structural
alterations, additions, or improvements (hereinafter collectively referred to as
"improvements") to the interior of the Demised Premises. Said improvements and
additions shall be accomplished at Tenant's sole cost and expense and shall be
made in compliance with all building codes and ordinances, laws, and regulations
applicable to the Demised Premises. Tenant shall cause all improvements to be
accomplished in a good workmanlike manner using the same quality and finish to
match existing. Landlord shall have the right, but not the obligation, to
require Tenant's removal of said improvements at the expiration or termination
of the Lease, including restoration of the Demised Premises, to its original
state of improvement, configuration, etc.
Tenant shall keep the Demised Premises free from any liens arising out of
any work performed, material furnished or obligation incurred by or for Tenant
or any person or entity claiming through or under Tenant. In the event that
Tenant shall not, within thirty (30) days following the imposition of any such
lien, cause the same to be released by payment or posting of a bond, Landlord
shall have the right, but not the obligation, to cause such lien to be released
by such means as Landlord deems proper, including payment of the claim giving
rise to such lien. All such sums paid and all expenses incurred by Landlord in
connection therewith shall be due and payable to Landlord by Xxxxxx as
additional rent within fifteen (15) days of Tenant's receipt of Landlord's
invoice.
ARTICLE 10. FIXTURES AND PERSONAL PROPERTY. All fixtures (not including
trade fixtures) installed or attached to the Demised Premises by and/or at the
expense of Tenant shall become the property of Landlord. Any trade fixtures
installed in the Demised Premises by and at the expense of the Tenant shall
remain the property of the Tenant or Tenant's trade fixture Lessors, and the
Landlord agrees that so long as Tenant is not in default hereunder, Tenant or
its Lessors shall have the right ay any time to remove any and all of its trade
fixtures and personal property of Tenant in favor of a Lessor who intends to
Lease any of the same to Tenant. Tenant shall be required, at the expiration or
termination of this Lease Agreement or any extension or renewal thereof, to
remove any and all of its trade fixtures which it may have stored or installed
in the Demised Premises. Tenant will repair all damage to the Demised Premises
occasioned by such trade fixture removal. If Tenant shall holdover beyond lease
expiration or lease termination, with Xxxxxxxx's approval of such holdover, for
removal of fixtures and equipment (not to exceed ten (10) days), Tenant shall
pay to the Landlord as rental therefore, a sum equal to the prorate portion of
the previous monthly rental thereof. In the event Tenant has not completed the
removal of its fixtures and equipment and restoration of the Premises caused
thereby, within the ten (10) day period following the expiration or termination
of the lease, Landlord shall, in Tenant's behalf and at Xxxxxx's sole and
exclusive expense, cause such fixtures and equipment to be removed and the
Premises to be restored. Upon completion, the cost of said removal and
restoration, plus twenty percent (20%) for overhead and profit, including
prorated rental for the period of time required to accomplish such, shall be
passed on to Tenant for Tenant's payment to Landlord.
ARTICLE 11. UTILITIES. The Tenant shall pay for all water, heat, gas,
electricity, and other costs of utilities connected with, consumed, or used by
it in connection with its occupancy of the Demised Premises. In the event that
one or more of such utilities or related services shall be supplied to the
Demised Premises and to one or more other Tenants within the Landlord's two
building development without being individually metered or measured to the
Demised Premises, Xxxxxx's appropriate proportionate share thereof shall be paid
as additional rent based upon Xxxxxxxx's estimate of Tenant's anticipated usage.
In the event any utility service to the Demised Premises is interrupted or
temporarily discontinued for any reason whatsoever, Landlord shall not be liable
therefore to Tenant and the rent required to be paid hereunder shall not be
abated as a result thereof, and Tenant waives any claims it might otherwise have
against Landlord as a result of any such interruption or discontinuation.
ARTICLE 12. MAINTENANCE AND REPAIRS. It is understood and agreed that the
Landlord shall, at its sole cost and expense, keep and maintain, during the term
of the Lease Agreement or any extension or renewal thereof, the foundations, and
structural support portion of the improvements in proper condition and in a good
state of repair. Landlord shall not be responsible for any maintenance or repair
caused by the fault or neglect of the Tenant, or due to hazards and risks
covered or required to b e covered by insurance hereunder except as insurance
proceeds are available therefor. All other maintenance and repair of said
structure, including but not limited to, painting of walls, and maintenance,
repair and replacement of equipment, shall be the responsibility of the Tenant.
Landlord shall assign warranties and extended warranties obtained from
Landlord's contractors of those portions of the Demised Premises which Tenant is
obligated to maintain.
It is understood and agreed that should either party to this Agreement fail
or refuse to start and to proceed thereafter with due diligence to make any
repairs or maintenance as may be reasonably necessary for the purpose of
fulfilling the terms and conditions of the agreements herein set forth within a
reasonable length of time (not to exceed seven (7) days) after being notified in
writing of the need thereof, that the other party hereto may make such repairs
at the cost and expense of the party so failing or refusing. In the event of any
emergency situation, Tenant may, in its discretion, make emergency repairs
without giving written notification to Landlord, and Landlord shall reimburse
Tenant in the event that such repairs were the responsibility of the Landlord
hereunder and were not due to the fault of Tenant or Xxxxxx's agents. The rights
of Tenant hereunder specifically do not include the right to offset or deduct
any amounts claimed hereunder from rentals due.
Landlord reserves the right to enter upon the Demised Premises (in a manner
that will not unnecessarily interfere with the business of Tenant) during
business hours at any time to inspect the same and to make necessary repairs to
fulfill Landlord's obligation hereunder.
ARTICLE 13. RESTORATION OF DAMAGE. If the Demised Premises are partially
damaged by fire, the elements or other casualty, covered by the "all risk"
insurance policy referred to hereinabove, Landlord shall promptly repair all
damage and restore the Demised Premises to their condition immediately prior to
the occurrence of such damage. During the period of reconstruction referred to
above, rent payable by Tenant shall ratably xxxxx, based on the percentage of
the Demised Premises usable during reconstruction. The term of the Lease
shall extend one additional day for each day the entire Demised Premises are not
usable due to the reconstruction process.
If the Demised Premises shall be totally destroyed and/or shall it be
determined that more than one hundred eighty (180) days will be required to
repair or rebuild the Demised Premises, both Landlord and Tenant shall have the
right to terminate this Lease Agreement upon written notice to the other within
thirty (3)) days of the occurrence at which time this Lease Agreement shall
become null and void.
ARTICLE 14. EMINENT DOMAIN. If, during the term hereof, or any renewal
term, the entire Demised Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, this Lease and all right, title and interest of Tenant hereunder shall
cease and come to an end on the date of vesting of title pursuant to such
proceeding, or upon the date Tenant is dispossessed under an order of immediate
occupancy, whichever first occurs. If less than all of the Demised Premises
shall be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, by right of eminent domain, this Lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances. In any taking of the Demised Premises or any part thereof,
whether or not this Lease is terminated as provided in this Paragraph, the
parties hereto may claim and shall be entitled to receive an award or
compensation therefor in accordance with their respective legal rights and
interests.
ARTICLE 15. DEFAULT IN PAYMENT OF RENT OR ABANDONMENT. In the event of
default by Tenant in the performance of its obligation to pay rent hereunder, or
in the event Tenant shall vacate or abandon the Demised Premises, or in the
event Tenant, or any guarantor hereunder, shall be adjudicated as bankrupt for
the benefit of creditors, or enter into an arrangement or participate
voluntarily or involuntarily in any bankruptcy or related proceeding under
Federal or State Law, Landlord shall have the right to terminate this Lease and
to re-enter the Demised Premises or any part thereof with or without process of
law; or Landlord, at his option, without terminating this Lease, shall have the
right to re-enter the Demised Premised and sublet the whole or any part thereof,
for the account of the Tenant, upon as favorable terms and conditions as the
market will allow. In the latter event, the Landlord shall have the right to
collect any rent which may thereafter become payable under such sublease and to
apply the same first to the payment of any expenses incurred by the Landlord in
the dispossessing the Tenant
and in subletting the Demised Premises, and Landlord may charge interest at the
rate equal to one percentage point higher than the prime bank rate of Key Bank
of Utah in Salt Lake City, which rate shall vary from time to time as the prime
bank rate varies, per annum on such expenses; and, second, to the payment of the
rental herein reserved and the fulfillment of Tenant's covenants hereunder, and
the Tenant shall be liable for amounts equal to the installments of rent as they
become due, less any amounts actually received by the Landlord and applied on
account of rental as aforesaid. The Landlord shall not be deemed to have
terminated this Lease by reason of taking possession of the Demised Premises
unless written notice of such termination has been served on the Tenant.
ARTICLE 16. OTHER DEFAULTS BY TENANT. It is mutually agreed that if the
Tenant shall default in performing any of the terms or provisions of this Lease
Agreement other than as provided in the preceding Article, and if the Landlord
shall give to the Tenant notice in writing of such default, and if the Tenant
shall fail to cure such default within fifteen (15) days after the date of
receipt of such notice, or if the default is of such a character as to require
more than (15) days to cure, and if Tenant shall fail to use reasonable
diligence in curing such default, then in such applicable event the Landlord may
cure such default for the account of and at the cost and expense of Tenant, plus
interest at the rate equal to one percentage point higher than the prime bank
rate of Key Bank of Utah, in Salt Lake City, which rate shall vary from time to
time as the prime bank rate varies, per annum, and the sum so expended by the
Landlord and interest shall be deemed to be additional rent and on demand shall
be paid by the Tenant on the day when rent shall next become due and payable.
Failure to pay any additional rent as provided in this Article shall be deemed a
failure to pay rent within the meaning of Article 15.
ARTICLE 17. QUIET ENJOYMENT. Landlord represents and warrants that it has
full right and authority to enter into this Lease. Tenant, upon paying all
rentals and performing all the Tenant's covenants, terms and conditions in this
Lease Agreement, shall and may peaceably and quietly hold and enjoy the Demised
Premises for the term of this Lease Agreement. Tenant understands that other
persons and entities conduct businesses or reside near the Demised Premises.
Tenant covenants and agrees to conduct its business in such a manner as to no
unreasonably interfere with the occupants of surrounding properties.
ARTICLE 18. WAIVER. No delay or omission by either party hereto to exercise
any right or power accruing upon any non-compliance or default by the other
party with respect to any of the terms hereof shall impair any such right or
power to be construed to be a waiver
thereof. Subject to the provisions of this Article, every such right and power
may be exercised at anytime during the continuance of such default. It is
further agreed that a waiver by either of the parties hereto of any of the
covenants and agreements hereof to be performed by the other shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenants or agreements herein contained.
ARTICLE 19. ATTORNEY'S FEE. In the event of any action at law or inequity
between Landlord and Tenant to enforce any of the provisions and/or rights
hereunder or to recover damages for breach hereof, the unsuccessful party to
such litigation covenants and agrees to pay to the successful party all costs
and expenses, including reasonable attorney's fee, incurred therein by such
successful party, and if such successful party shall recover judgment in any
such action or proceeding, such costs and expenses and attorney's fees shall be
included in and as a part of such judgment.
ARTICLE 20. NOTICES. Any notices or demand required or permitted to be
given under this Lease Agreement shall be deemed to have been properly given
when, and only when, the same is in writing and has been deposited in the United
States Mail, with postage prepaid, to be forwarded by certified mail and
addressed as follows:
TO THE LANDLORD AT: ____________________________
IS Properties, LLC
0000 X. Xxxxxxxxx Xx.
Taylorsville, UT 841223
801 / 287-9410
TO THE TENANT AT: _____________________________
Director
Utah Career College
1902 West 0000 Xxxxx
Xxxx Xxxxxx, Xxxx 00000
Such addresses may be changed from time to time by either party by serving
notices as above provided.
ARTICLE 21. SUBORDINATION. This Lease shall be subject and subordinate to
all mortgages or trust deeds which may now or hereafter affect the real property
comprising the Demised Premises, and also to all renewals, modifications,
consolidations and replacements of said mortgages and Trust Deeds. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant will, nevertheless, execute and deliver in a prompt and
diligent manner such further instruments confirming such subordination of this
Lease as may be desired by the holders of said mortgages or Trust Deeds.
ARTICLE 22. ASSIGNMENT AND SUBLEASING. With the specific prior written
consent of Landlord first obtained, Tenant can, at any time, assign this Lease
or sublet all or any portion of the Demised premises. Xxxxxxxx's consent shall
not be unreasonably withheld. Any purported assignment or sublease without
Xxxxxxxx's prior written approval shall be null and void and of no force and
effect whatsoever.
ARTICLE 23. SCOPE OF THE AGREEMENT. This Lease Agreement shall be
considered to be the only agreement between the parties hereto. All negotiations
and oral agreements acceptable to both parties are included therein.
ARTICLE 24. OBLIGATIONS OF SUCCESSORS. Landlord and Tenant agree that all
of the provisions hereof are to be construed as covenants and agreements as
though the words importing such covenants and agreements were used in each
separate paragraph hereof, and that all of the provisions hereof shall bind and
inure to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns.
ARTICLE 25. HOLD OVER. If, at the expiration or termination of this Lease
or any extension thereof, Tenant shall hold over for any reason, the tenancy of
Tenant thereafter shall be from month to month only and shall, in the absence of
a written agreement to the contrary, be subject to all the other terms and
conditions of this Lease with the monthly rental adjusted to One Hundred Twenty
Percent (120%) of the monthly rental for the last month of the primary Lease
term or subsequent Lease renewal term.
ARTICLE 26. PARKING. The plans and specifications for the construction of
the Demised Premises, as approved by the parties, depict adjacent parking for
the non-exclusive use of Tenant. Such parking and maintenance thereof shall
remain under the control of Landlord (subject to reimbursement of common area
maintenance as hereinafter set forth) and Landlord shall have the right from
time to time to publish reasonable non-discriminatory regulations for Xxxxxx's
use of the parking, with which regulations Tenant covenants to comply.
ARTICLE 27. INDEPENDENCE SQUARE DEVELOPMENT.
ARTICLE 28. COMMON AREAS. Areas within the outer property lines of the
Development as delineated on the plat attached hereto marked Exhibit "A",
exclusive of areas therein specified or as built for leasing to Tenants shall be
known a Common Areas, as shall all other areas from time to time designated by
Landlord for use as part of the Development. Landlord covenants and agrees at
its sole cost and expense to improve said Common Areas by installing and
construction thereon parking lots, access roads, pedestrian walkways, sidewalks,
exterior canopies, delivery and landscaped areas and lighting facilities to the
extent to which Landlord shall determine to be necessary. Said Common Areas
shall be available for the common use of all Landlords' Tenants in the
Development, their employees, customers and invitees. Notwithstanding anything
elsewhere herein contained, Landlord reserves the right from time to time to
make reasonable changes in, additions to and deletions from the Common Areas and
the purposes to which the same may be devoted, and the use of Common Areas shall
at all times be subject to such reasonable rules and regulations as may be
promulgated by Landlord.
ARTICLE 29. COMMON AREA MAINTENANCE. Landlord will maintain or cause to be
maintained the Common Areas and Tenant will reimburse Landlord for Xxxxxx's
prorate share of the cost of such maintenance as hereinafter provided.
(a) Common area maintenance costs and expenses shall be determined in accordance
with generally accepted accounting principles consistently applied and allocated
to any particular calendar year on the accrual method of accounting. Such cost
and expenses shall include, but shall not be limited to upkeep, exterior
painting, repairs, replacements and improvements in the Common Areas, snow
removal, sweeping and cleanup, depreciation allowance on any machinery and
equipment owned by Landlord and used in connection therewith, payroll and
payroll costs, utility services including fire line water service charges,
police protection, night watchmen, premiums for public liability, property
damage and fire insurance including the Common Areas, any real estate tax and/or
tax consultant expense incurred for the purpose of maintaining equitable tax
assessments on the Development, all property taxes or assessments levied or
assessed against all Common Areas, which, if not separately assessed, shall be
determined, for land, by the ratio of land area designated for Common Area use
to the total land area in the Development and,, for improvements on a fair and
equitable allocation among the various improvements in the Development, giving
weight to the factors which determine the amount of the real property tax or
assessment in question. In addition, such costs shall include
administrative costs equal to ten percent (10%) of the total cost paid or
incurred by landlord under this paragraph.
(b) Tenant shall pay as additional rent to Landlord, Xxxxxx's prorate share of
such common Area expenses in the following manner:
(1) From and after the date the minimum rental provided for herein has
commenced, but subject to adjustment as hereinafter in this subparagraph (1)
provided, Tenant shall pay Landlord in advance on the first day of each calendar
month during the term of this Lease an estimated and adjustable amount covering
Tenant's proportionate share of common area services and expenses, which amount
may be adjusted by Landlord by notice to Tenant at the end of any calendar month
on the basis of Landlord's experience and reasonably anticipated costs. (See
Lease Rider "A" Building Expenses attached hereto and incorporated herein.)
(2) Within thirty (30) days following the end of each calendar year, Landlord
shall furnish Tenant a statement covering the calendar year just expired,
showing the total operating costs, the amount of Tenant's prorate share of such
common area expenses for such calendar year and the payments made by Tenant with
respect to such calendar year as set forth in subparagraph (b) 1. If Xxxxxx's
prorate share of such common area expenses exceeds Tenant's payments so made,
Tenant shall pay Landlord the deficiency with ten (10) days after receipt of
such statement. If said payments exceed Xxxxxx's prorate share of such common
area expenses, Tenant shall be entitled to offset the excess against payments
next thereafter to become due Landlord as set forth in said subparagraph (b) 1.
Tenant's prorate share of the total common area expenses for the previous
calendar year shall be that portion of all such expenses which is equal to the
proportion which the number of square feet of gross leasable area in the Demised
Premises bears to the total number of square feet of gross leasable area of
buildings in the entire Development which are from time to time completed as of
the commencement of each calendar year.
There shall be appropriate adjustment of Tenant's share of the common area
expenses as of the commencement and expiration of the term of this Lease. The
term "Gross Leasable Area", as used herein, shall be deemed to mean and include
all fully enclosed areas for the exclusive use and occupancy by occupant,
measured from the exterior surface of exterior walls (and from the extensions
thereof, in the case of openings), including warehousing or storage areas,
clerical or office areas, mezzanines or the second levels of any spaces and
employee areas. "Gross Leasable Area" shall not include docks, areas for truck
loading and unloading nor any utility
and/or mechanical equipment vaults or rooms (to the extent such facilities lie
outside exterior building lines).
Anything to the contrary notwithstanding, in the event Landlord or his
designated agent do not maintain the entire common area in the Development, then
and in that event, for the length of time such condition may exist, Landlord's
responsibility shall only be towards the maintenance and repair of those
portions of the common area not maintained by others, and the "expense in
connection with said common areas" shall only refer to such areas maintained by
Landlord. In this event, Xxxxxx's proportionate share of the expenses shall be
determined on the basis of the proportion of such expenses which the number of
square feet of gross leasable area in the Demised Premises bears to the total
number of square feet of gross leasable area of buildings in the entire
Development which are from time to time completed and occupied as of the
commencement of each calendar year, exclusive of the area occupied and
maintained by others.
ARTICLE 30. SECURITY DEPOSIT. Tenant shall pay an amount equal to first and
last months rent at the time of signing of this Lease. The amount equal to first
months rent shall be applied to the first full month of the Lease term. The
amount equal to last months rent shall be held by Landlord as security for the
faithful performance of Tenant throughout the Lease term. The security deposit
shall be refundable to Tenant at the end of the Lease term upon Xxxxxx's
satisfactory performance throughout the Lease term.
ARTICLE 31. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this Section
shall not operate to excuse Tenant from prompt payment of rent or any other
payments required by the terms of this Lease.
ARTICLE 32. ESTOPPEL CERTIFICATE. Within ten (10) days after request
therefor by Landlord, or in the event that upon any sale, assignment or
hypothecation of the demised premises and/or the land thereunder by Landlord, an
estoppel statement shall be required from Tenant, Xxxxxx agrees to deliver to
any proposed mortgagee or purchaser, or to Landlord, in
recordable form a certificate certifying (if such be the case) that this Lease
is in full force and effect and that there are not defenses or offsets thereto,
or stating those claimed by Xxxxxx.
ARTICLE 33. The submission of this Lease for examination foes not
constitute a reservation of or option for the Demised Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord to Tenant.
IN WITNESS WHEREOF, the Landlord and Xxxxxx have duly executed and affixed
their respective seals to this Lease Agreement on the day and year first above
written.
LANDLORD: IS Properties LLC
By /s/
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TENANT: Minnesota School of Business, Inc.
By /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
President
Attached hereto and incorporated herein;
Lease Rider "A" - Building Expenses
Exhibit "A" - Site Plan
Exhibit "B" - Floor Plan
LEASE RIDER "A"
"BUILDING EXPENSES"
With reference to Tenant's appropriate proportionate share of property tax,
insurance expenses and common area service expenses as defined in the Lease
Agreement Article 29 Tenant hereby agrees to pay, as additional monthly rental,
SEVEN HUNDRED SIXTY DOLLARS AND NO CENTS ($760.00) to be paid monthly, in
advance, along with the monthly rental previously stated in Lease ARTICLE 7.
MINIMUM RENT. The above stated fee is an estimated and adjustable fee for such
expenses and services. At the end of each calendar year, Landlord shall furnish
a statement to Tenant defining what the actual tax, insurance and common area
expenses are for the calendar year just expired, stating what Tenant's
appropriate proportionate share of such expenses are and compare such to that
amount which has been prepaid by Tenant. If Xxxxxx's proportionate share of such
expenses exceeds Tenant's payments so made, Tenant shall pay Landlord the
deficiency within ten (10) days after receipt of said statement. If Xxxxxx's
prepaid payments exceed Xxxxxx's proportionate share of such expenses, the
excess shall be applied against future payments for such expenses.
Landlords Initials Tenant's Initials
GUARANTEE OF LEASE
Whereas, a certain Lease of even date herewith has been , or will be , executed
by and between IS Properties LLC, therein referred to as "Landlord:, and
Minnesota School of Business, Inc., therein referred to as "Tenant", covering
certain premises in the City of West Jordan, County of Salt Lake, State of Utah,
and
WHEREAS the Landlord under said lease requires as a condition to its execution
of said Xxxxx that the undersigned guarantee the full performance of the
obligations of the Tenant under said Lease; and
WHEREAS, the undersigned is desirous that Landlord enter into said Lease with
Xxxxxx,
NOW, THEREFORE, in consideration of the execution of said Lease by Xxxxxxxx, the
undersigned hereby unconditionally guarantees the full performance of each and
all terms, covenants and conditions of said Lease to be kept and performed by
said Xxxxxx, including the payment of all rentals and other charges to accrue
thereunder. The undersigned further agrees as follows:
1. That this covenant and agreement on its part shall continue in favor of the
Landlord not withstanding any extension, modification, or alteration of said
lease entered into by and between parties thereto, or their successors or
assigns, or not withstanding any assignment of said Lease, with or without the
consent of the Landlord, and extension, modification, alteration or assignment
of the above referred to Lease shall in any manner release or discharge the
undersigned and it does hereby consent thereto.
2. The Guarantee will continue unchanged by any bankruptcy, reorganization or
insolvency of the Tenant or any successor or assignee thereof or by any
disaffirmance or abandonment by a trustee or Tenant.
3. Landlord may, without notice, assign the Guarantee of Lease in whole or in
part and no assignment of transfer of the Lease shall operate to extinguish or
diminish the liability of the undersigned hereunder.
4. The liability of the undersigned under this Guarantee of Lease shall be
primary and in any right of action which shall accrue to Landlord under the
Lease, the Landlord may, at its option, proceed against the undersigned without
having commenced any action, or having obtained any
Judgment against the Tenant.
5. To pay Landlord's reasonable attorney's fees and all costs and other expenses
incurred in any collection or attempted collection or in any negotiations
relative to the obligations hereby guaranteed or enforcing of this Guarantee of
Lease against the undersigned, individually and jointly.
6. The undersigned hereby waives notice of any demand by the Landlord, as well
as any notice of default in the payment of rent or hereby any other amounts
contained or reserved in the Lease. The use of singular herein shall include the
plural. The obligation of two or more parties shall be joint and several. The
terms and provisions of this Guarantee shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the undersigned have caused this Guarantee to be
executed as of the date set forth on page one of the Lease referred to above.
/s/ Xxxxx Xxxxx
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