1
EXHIBIT 10.14
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is entered into this 31 day of
October, 2000, by and between Enmax Corporation ("Sublessor"), and
XxxxxxxXxx.xxx, Inc. ("Sublessee"), with reference to the following:
A. Sublessor, as tenant, entered into that certain lease agreement
("Prime Lease") dated March 13, 1997, with Xxxxxx Properties ("Landlord"), as
landlord, leasing certain property located at 000 X. 000X., Xxxxx 000,
Xxxxxxxxxx, Xxxx ("Premises"), as more particularly described in the Prime
Lease. A copy of the Prime Lease including all amendments thereto is attached
hereto as Exhibit A and made a part hereof.
B. Sublessor and Sublessee have agreed, that Sublessor shall sublet to
Sublessee, and Sublessee shall sublease from Sublessor, a portion of the
Premises in accordance with the terms of this Sublease.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, Sublessor and Sublessee hereby covenant and agree
as follows:
1. Subleased Premises. Sublessor hereby leases to Sublessee, and
Sublessee leases from Sublessor, approximately 1800 square feet of space,
comprising a portion of the Premises, which is more particularly shown cross
hatched in red on the schematic drawing attached hereto as Exhibit B ("Subleased
Premises").
2. Term.
a. Original Term. The term ("Original Term") of this Sublease
shall commence on November 1, 2000 ("Commencement Date"), and shall end on
October 31, 2001, unless sooner terminated pursuant to this Sublease or the
Prime Lease.
3. Rent. Sublessee shall pay to Sublessor, as monthly rent ("Rent") for
the Subleased Premises, in advance on the first day of each and every month
during the term hereof beginning on November 1, 2000, without deduction or
offset, the amount of $1,319. It is the intent of the parties that Sublessee
shall pay any and all costs and expense related to the Subleased Premises
including common area charges and utilities. If the Commencement Date or the
expiration or termination date of this Sublease occurs on a day other than the
first day of a calendar month, the Rent for such fractional month shall be
prorated on a per diem basis. All Rent shall be paid by Sublessee to Sublessor
in lawful money of the United States of America, in immediately available funds,
without notice or demand, at the address for Sublessor set forth below.
Sublessee shall pay when due during the Term all charges for utilities of any
nature incurred at the Subleased Premises.
4. Use. Sublessee shall use the Subleased Premises for the carrying out
of its business and for no other purpose without the prior written consent of
Sublessor. Sublessee's
1
2
violation of this clause shall constitute a material breach by Sublessee under
this Sublease, which shall entitle Sublessor to pursue any of the remedies
available to Sublessor under this Sublease.
5. Late Fee and Interest. All installments of Rent which are not paid by
Sublessee to Sublessor within five (5) days after the same is due ("Delinquency
Date") shall bear interest from and after the due date until paid at a rate
equal to the lesser of eighteen percent (18%) per annum or the highest legal
rate of interest. In addition to the foregoing, Sublessee shall immediately pay
Sublessor as a late fee an amount equal to five percent (5%) of any amounts not
paid to Sublessor on or before such Delinquency Date.
6. Use; Alterations. The Subleased Premises shall be used solely for
uses permitted by the Prime Lease. Sublessee shall not make any alterations,
additions, or improvements to the Subleased Premises without Sublessor's prior
written consent. In connection with the operation of Sublessee's business in the
Subleased Premises, Sublessee shall be responsible for complying with all
applicable governmental laws, statutes, rules, regulations, orders and
ordinances ("Laws"). In the event any governmental authority requires any
repairs, improvements or alterations to be made to the Subleased Premises or any
portion thereof (collectively, "Governmental Repairs") as a result of the
specific nature of Sublessee's business operations in the Subleased Premises,
Sublessee shall make and pay for such Governmental Repairs. Any such
Governmental Repairs shall be completed in accordance with plans and
specifications approved by Sublessor and Sublessor shall have the option, in its
sole discretion, to complete any such Governmental Repairs and xxxx Sublessee
for all costs in connection therewith.
7. Condition of Subleased Premises. Sublessee represents to Sublessor
that Sublessee has been given the opportunity to inspect the Subleased Premises
prior to the execution and delivery of this Sublease and has found the same to
be satisfactory for all purposes hereunder and, Sublessee accepts the Subleased
Premises in, their "As Is", "Where Is" condition, subject to all legal
requirements, and any state of facts which an accurate survey or physical
inspection of the Sublease Premises might show, without warranties, either
express or implied, and "with all faults", including but not limited to both
latent and patent defects. Sublessee hereby waives all warranties, express or
implied, regarding the title, condition and use of the Subleased Premises,
including, but not limited to any warranty of merchantability or fitness for a
particular purpose.
8. Prime Lease. This Sublease is subject and subordinate to the Prime
Lease. Except as may be inconsistent with the terms hereof, all the terms,
covenants and conditions in the Prime Lease shall be applicable to this Sublease
with the same force and effect as if Sublessor were the landlord under the Prime
Lease and Sublessee were the tenant under the Prime Lease. Sublessee shall have
no right to exercise, and Sublessor shall have no obligation to exercise, any
options available to Sublessor under the Prime Lease or any rights of control or
termination under the Prime Lease. Sublessee shall neither do nor permit
anything to be done which would cause the Prime Lease to be terminated or
forfeited by reason of any right of termination or forfeiture reserved or vested
in Sublessor under the Prime Lease, and Sublessee shall indemnify and hold
Sublessor and Landlord harmless from and against all claims of any kind
whatsoever by reason of any breach or default on the part of Sublessee by reason
of which the Prime Lease may be terminated or forfeited. Sublessee represents
that it has read and is familiar with the terms of the Prime Lease.
2
3
9. Maintenance. Sublessee covenants and agrees, at its own expense, to
keep and maintain the Subleased Premises in good order and repair and shall not
damage or deface the Subleased Premises. Sublessee shall be obligated to repair
and maintain the Subleased Premises including structural repairs, replacement or
repair of plumbing, electrical systems, site improvements such as sewer and
water, roof, exterior walls and foundation, entry ways, parking areas,
landscaping and walkways, windows, HVAC system, interior walls, lighting,
carpeting and flooring. Said repairs and maintenance shall also include, but is
not limited to, repairs, cleaning and snow and ice removal.
10. Insurance.
a. Sublessee waives all claims against Sublessor for damage to
property in, upon or adjoining the Subleased Premises, and for injuries to
persons in or about said Subleased Premises from any cause arising at any time
during Term, if not attributable to the gross negligence or willful misconduct
of Sublessor. Sublessee, at its sole costs and expense, shall maintain
throughout the Term commercial general public liability and property damage
insurance covering risks on the Subleased Premises in an amount of at least
$2,000,000 combined single limit liability, with deductibles of no greater than
$5,000.00. Sublessee shall be responsible for the payment of all deductibles in
connection with any and all claims under such insurance policy or policies.
b. During the Term, Sublessee shall maintain an all-risk special
form policy of property insurance for the benefit of Sublessor, Sublessor's
mortgagee, if any, and Sublessee, on all improvements upon the Subleased
Premises, in an amount not less than the full replacement value thereof
(excluding excavation, footing and foundation costs), with agreed amount
endorsement and deductibles of no greater than $5,000.00. Such replacement cost
shall be determined from time to time (but not more frequently than once every
three years) at Sublessor's request. Sublessee shall be responsible for the
payment of all deductibles in connection with any and all claims under such
insurance policy or policies.
c. Sublessee shall procure, on any policy of all-risk property
insurance covering the Subleased Premises and business personal property
contained therein, an appropriate endorsement pursuant to which the insurers
waive subrogation or consent to a waiver of right of recovery, and having
obtained such endorsements of waiver or consent, each party agrees not to: (i)
make any claim against or seek to recover from the other for any loss or damage
to its property, or the property of others, resulting from fire or other hazards
covered by casualty insurance maintained by such party, except for Sublessor's
claim against Sublessee for the payment of deductibles in connection with any
claim under such insurance as provided in this paragraph 11; (ii) assign to any
insurer or to anyone claiming under or through any insurer, any right or cause
of action for damages to said property on or to the Subleased Premises or to the
building of which the Subleased Premises are a part, compensated for by property
insurance or any of the risks enumerated in any other hazard insurance,
specifically including such damage caused by negligence, which it now has or may
subsequently acquire against the other party during the term of this Sublease,
provided, however, that the release, discharge, exoneration, and covenant not to
xxx herein contained shall be limited by the terms and provisions of the waiver
of
3
4
subrogation endorsements consenting to a waiver of right of recovery, and shall
be co-extensive therewith.
d. Said policies of insurance shall: (i) name Sublessor as one
of the insureds thereunder, (ii) be maintained at Sublessee's sole cost and
expense; and (iii) contain a clause or endorsement to the effect that the policy
may not be terminated or materially amended except after 10 days written notice
thereof to Sublessor. Within 10 days of the date of this Sublease, Sublessee
shall deliver copies of said policies or certificates of insurance to Sublessor.
e. Sublessee agrees to indemnify, defend and hold harmless
Sublessor from and against any and all claims, demands, causes of action, costs,
losses or expenses, including attorneys' fees and other legal expenses, or other
liabilities for damage to property or injury to, harassment of, or death of any
person (including any servant, agent or employee of Sublessee, and any servant,
agent or employee of any third party hired or retained by Sublessee) arising out
of or in consequence of Sublessee's use of the Subleased Premises, the operation
of Sublessee's business on the Subleased Premises (including any contamination
of the Subleased Premises or any other property resulting from the presence or
use of hazardous material caused or permitted by Sublessee), or any other acts
or omissions of the Sublessee or any third party hired or retained by Sublessee
(or any servant, agent or employee of any of them). Sublessee's obligations
hereunder shall survive the expiration or earlier termination of this Sublease.
11. Default. Each of the following events shall constitute a default by
Sublessee under this Sublease:
a. Sublessee's failure to pay rent;
b. Sublessee's failure to pay any other sums to be paid by
Sublessee hereunder (and not constituting rent), within 10 days after the
respective due date thereof;
c. Sublessee shall commit or allow to continue any other breach
of this Sublease, which shall not have been cured within 20 days after written
notice from Sublessor specifying the breach; provided, however, that if the
breach cannot be cured within 20 days, Sublessee shall not be in default if
within such 20 day period, Sublessee shall have commenced to cure said breach
and shall continue its efforts with due diligence;
d. Sublessee shall file, or a third party shall file against
Sublessee, a petition in bankruptcy, liquidation, dissolution or reorganization
that remains undismissed for 60 days; or
e. Sublessee shall make a general assignment for the benefit of
all creditors of Sublessee.
12. Remedies. Upon the occurrence of a default, Sublessor has the right
to use any of the remedies below:
a. Terminate this Sublease and thereupon re-enter and take
possession of the Subleased Premises by any means provided by law;
4
5
b. From time to time, without terminating this Sublease,
re-enter (by any means provided by law) and relet the Subleased Premises for the
account of Sublessee, upon such reasonable terms and conditions as Sublessor may
deem advisable or satisfactory, in which event rents received for such reletting
shall be applied first to the expense of such reletting (including necessary
renovations to return the Subleased Premises to a condition equivalent to that
of their original condition) and thereafter toward payment of all sums due or to
become due Sublessor hereunder. If a sufficient sum shall not be realized or
secured from such reletting to pay such sums and other charges, Sublessee shall
pay Sublessor any deficiency on a monthly basis. Sublessor shall not, in any
event, be required to pay Sublessee any surplus of any sums received by
Sublessor on a reletting of the Subleased Premises in excess of the amounts due
from Sublessee as provided in this Sublease, but all such excess shall become
the property of Sublessor;
c. Continue this Sublease in full force and effect to the end of
the term, notwithstanding the occurrence of such default, and enforce, by all
proper and legal means, Sublessor's rights herein, including the monthly
collection of rent and other amounts due, including without limitation, late
payment fees and interest on the amounts due under this Sublease; or
d. Pursue any other remedy available at law or equity. All
remedies provided in this Sublease shall be cumulative and nonexclusive.
13. Sublessee's Financial Condition. Within ten (10) days after written
request from Sublessor, Sublessee shall deliver to Sublessor such financial
statements as Sublessor reasonably requires to verify the net worth of
Sublessee. Sublessee represents and warrants to Sublessor that each such
financial statement is a true and accurate statement as of the date of such
statement. All financial statements shall be confidential and shall be used only
for the purposes set forth in this Sublease.
14. Commissions. Sublessor and Sublessee each hereby represents and
warrants to the other that it has not entered into any contracts whatsoever with
any brokers or finders or in any manner obligated itself to pay any real estate
commission or finder's fee on account of this transaction. In connection with
the foregoing, each party hereby agrees to indemnify and hold the other harmless
from any claim arising out of or related to a breach by such party of its
representations and warranties herein contained.
15. Surrender. Upon the expiration or earlier termination of this
Sublease, Sublessee shall deliver the Subleased Premises to Sublessor in the
same condition as of the date hereof, reasonable wear and tear excepted.
Sublessee shall reimburse Sublessor for and indemnify Sublessor against all
damages which Sublessor incurs from Sublessee's delay in vacating the Subleased
Premises.
16. Holdover. In the event Sublessee holds over, following the
expiration or termination of this Sublease, Sublessee shall be deemed to be
occupying the Subleased Premises as a month-to-month tenant, and shall pay as
rent a sum equal to (i) one hundred fifty twenty five percent (150%) of the Rent
and (ii) such other charges as are payable hereunder, pro-rated on a
5
6
monthly basis. In no event shall such holding over be deemed to create a tenancy
from year-to-year nor shall either Sublessor or Sublessee have the right to
create such a tenancy.
17. Effective Date. Sublessor and Sublessee acknowledge that Sublessor's
right to Sublease the Subleased Premises to Sublessee is subject to Sublessor
first obtaining the consent of Landlord, accordingly, this Sublease shall not
become effective and it shall be of no force and effect until such consent is
obtained. In addition, this Sublease is subject to Sublessor's reference
checking on Sublessee.
18. Assignment; Subletting. Sublessee shall not assign this Sublease nor
sublet the Subleased Premises, in whole or in part, and shall not permit
Sublessee's interest in this Sublease to be vested in any third party by
operation of law or otherwise.
19. Right of Entry. Sublessor hereby reserves the right for itself, and
its duly authorized agents and representatives, at all reasonable times, to
enter upon the Subleased Premises for the purpose of inspecting the same and
showing the same to any prospective tenant, purchaser or encumbrancer, and for
all other reasonable purposes. Nothing contained herein shall imply or impose
any duty on Sublessor to inspect the Subleased Premises.
20. Merger. All prior understandings and agreements between Sublessor
and Sublessee are merged within this Sublease, which alone fully and completely
sets forth the understanding of the parties; and this Sublease may not be
changed or terminated orally or in any manner other than by a signed written
agreement.
21. Waiver. No waiver of any breach hereof by Lessor shall be considered
to be a waiver of any other or subsequent breach.
22. Successors and Assigns. The covenants and agreements herein
contained shall bind and inure to the benefit of Sublessor and Sublessee, and
their respective executors, administrators, successors and assigns.
23. Governing Law. This Sublease shall be governed by and interpreted in
accordance with the laws of the State of Utah.
24. Counterparts. This Sublease may be executed in any number of
counterpart originals, each of which shall be deemed an original instrument for
all purposes, but all of which shall comprise one and the same instrument. This
Sublease may be delivered by facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease to be
effective as of the date first above written.
SUBLESSOR: SUBLESSEE:
Enmax Corporation XxxxxxxXxx.xxx, Inc
a Utah corporation a Utah corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxx
Print Name: Print Name:
Title: Executive Vice President Title: President
6
7
LEASE AGREEMENT
This Agreement ("Lease") is entered into this 13th day of March, 1997 in
Ogden, Utah, by and between, Xxxxxx Properties a Utah Limited Partnership
("Landlord") and ENMAX Corp. a Utah corporation ("Tenant").
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord the Premises
located at 000 X. 000 X., Xxxxx 000 in the city of Clearfield, Xxxxx County,
Utah.
2. TERM AND OBLIGATION TO PAY RENT.
The term of this lease shall be for a period of twenty four (24) months.
Tenant's obligation to pay the rental payments hereunder, and the term of this
Lease shall commence upon June 15, 1998. This Lease Agreement shall terminate at
midnight, June 14, 2000, unless extended as provided herein.
3. BASE RENT AND MONTHLY INSTALLMENTS.
The total base rent due under this Lease is Twenty Nine Thousand Thirty
Dollars and 40 cents ($29,030.40). Tenant agrees to pay to Landlord at such
place as Landlord may designate, without prior demand therefor and without any
deduction or setoff whatsoever, as fixed minimum guaranteed rent on a monthly
basis ("Minimum Monthly Rent"), lawful money of the United States of America, in
advance on the first day of each calendar month during the term of the lease, as
follows:
a. Beginning June 15, 1998 for that month and each of the next Twenty
Four (24) consecutive months (ending June 14, 2000) Tenant agrees to pay
Landlord the sum of One Thousand Two Hundred and Nine Dollars and Forty Cents.
($1,209.40). Due on the first of each month.
4. OPTION TO RENEW
Provided that the Tenant is not in default and notifies the Landlord
within ninety (90) days prior to the conclusion of the term of this Lease,
Tenant shall have the option to renew this Lease for three (two) year terms with
terms to be negotiated, also tenant shall have first right of refusal to lease
any adjoining space, if space has been vacated.
5. SECURITY DEPOSIT
Upon commencement of this lease, Tenant shall pay a security deposit in
the amount of One Thousand Two Hundred and Nine Dollars and Forty Cents
($1,209.40) (in addition to the first month's rent) which Landlord is hereby
authorized to use in partial or full satisfaction of any sums due Landlord from
Tenant for unpaid current or future rent, cleaning or painting, repair or damage
to the Premises, services rendered by Landlord to Tenant, and any other sums due
7
8
Landlord. Landlord agrees to refund to Tenant any unused portion of the security
deposit within thirty (30) days after Tenant's occupancy terminates.
6. ALTERATIONS.
Tenant shall not make, or suffer to be made, any construction work or
alterations of the demised premises on any part thereof, without the prior
written consent of Landlord, and any additions to or alterations of said
premises, except moveable furniture and trade fixtures, shall become at once a
part of the realty and belong to Landlord.
7. INSURANCE.
The Landlord, at its own cost and expense will keep the building insured
against fire (with such additional coverage commonly known as supplemental
contract or extended coverage's the Landlord may elect to procure. The Tenant
shall at all times during the terms of this Lease, at its own cost, carry fire
insurance on contents and also, third party liability, claims or damages, costs
and reasonable attorney's fees incurred by Landlord as a result of any injury or
damages suffered or claimed by anyone because of the condition, use, or
occupancy of the leased premises. Such liability insurance shall have limits of
not less than $1,000,000 for injury to one person in the one occurrence, and
$100,000 for property damage.
The Landlord and Tenant hereby waive any rights each may have against
the other on account of any loss or damage occasioned to the Landlord or the
Tenant, as the case may be, their respective risk generally covered by fire and
extended coverage insurance including all risk; and the parties each, on behalf
of their respective insurance companies insuring the property of either the
Landlord or the Tenant against any such loss, waive any right of subrogation
that it may have against the Landlord or the Tenant, as the case may be.
8. TAXES AND ASSESSMENTS.
The Tenant shall pay his prorated real estate taxes and assessment's, in
addition, Tenant shall pay monthly, prior to delinquency, all taxes assessed
against and levied upon fixtures, furnishings, equipment and all other personal
property of Tenant contained in the demised premises. Monthly taxes to be
$110.00, due and payable monthly with base rent. Property taxes shall be
adjusted annually.
9. UTILITIES.
Tenant agrees to pay all applicable costs for power, gas and telephone.
10. MAINTENANCE.
Tenant accepts this lease and the demised premises described herein in
its present condition, including tenant improvements as indicated in paragraph
25, and agrees to occupy the same in a lawful manner and will keep and maintain
at its expense such premises at all times in a good, clean and orderly condition
and state of repair, reasonable wear and tear and damage by time or the elements
excepted. Landlord also agrees to provide at its expense proper and
8
9
adequate snow removal services (including the parking lot, sidewalks and rights
of way) for all tenants in the building. Should Tenant fail to keep the premises
in a good, clean and orderly condition.
Landlord may elect to bring premises up to such standard and xxxx Tenant
for expenses so incurred. Landlord shall be responsible for maintaining the same
according to the standards consistent with local practices, including the roof,
exterior walls, structural repair, exterior painting, landscaping, yard
surfacing, furnaces, air conditioners and replacement of exterior lights. Tenant
shall be responsible for other maintenance and repairs pertaining to the leased
premises not mentioned above, including the interior part of the Premises,
interior doors, interior plumbing and electrical, janitorial services, interior
lighting fixtures, globes and tubes, in good order condition and repair,
including the replacement thereof when necessary, and including reasonable
periodic painting where necessary.
11. FORCE MAJEURE
Should the leased premised or any part thereof during the term of the
lease b destroyed or damaged by fire or other causes so as to render the same
unfit for use by Tenant, then the rent heretofore reserved shall be
proportionately adjusted according to the nature and extent of the injury
sustained, until such premises can be put in proper condition for use by the
Tenant and Tenant may at his option terminate this agreement in the event such
casualties are of the type which substantially destroy the use of the premises.
12. INSPECTION AND "FOR RENT" SIGN.
Landlord or its agents or employees reserves the right to enter leased
premises upon twenty four (24) hours prior notice to Tenant and during regular
business hours (9:00 am to 5:00 pm) to examine the condition thereof, to repair,
to clean, protect, or improve the building or the leased premises and any and
all things pertaining thereto. Commencing at any time within ninety (90) days
before the expiration of this lease, the Landlord shall have the right to
exhibit the Premises and to put or keep on the doors or windows thereof a "For
Rent" sign.
13. ATTORNMENT.
Tenant shall, in the event any proceedings are brought for the
foreclosure of or in the event of exercise of the power of sale under any
mortgage made by landlord covering the leased premises, attorn to the purchaser
upon any such foreclosure for sale and recognize such purchaser as the Landlord
under this lease.
14. PROHIBITION AGAINST ASSIGNMENT AND SUBLETTING.
Tenant shall not assign or sublet this Lease or the Premises without the
prior written consent of landlord, which consent shall not be unreasonably
withheld.
15. USE OF PREMISES.
9
10
Tenant agrees to use the Premises for its stated use only, and not any
other use which violates regulations promulgated from time to time by Landlord,
restrictions imposed by Landlord's insurance carrier or applicable laws and
regulations. Tenant's stated use of premises shall be for the purpose of General
Office. Tenant shall deliver up the Premises upon termination of this Lease in
the same condition as the commencement of this Lease, reasonable wear and tear
excepted.
16. SMOKING.
Pursuant to the Utah Clean Air Act, smoking anywhere in the Premises is
prohibited. Smoking is allowed, however, outside the building, subject to proper
disposal of smoking material.
17. SURRENDER.
17.1 Upon expiration of the Lease term or earlier termination on account
of default or otherwise, Tenant shall deliver all keys to Landlord, remove its
property therefrom, and surrender the Premises to landlord.
17.2 If Tenant does not vacate the Premises at the time required,
Landlord shall have the option to treat Tenant as a tenant from month to month,
subject to all the provisions of this Lease. If a month to month tenancy results
from a holdover by Tenant, the tenancy shall be terminable at the end of any
monthly rental period on written notice from the Landlord given not less than
thirty (30) days prior to the termination date which shall be specified in the
notice.
18. DEFAULT BY TENANT.
The following shall be defaults under this Lease:
a. Failure of Tenant to pay any rent or charge within ten (10) days
after written demand there of from Landlord.
b. Failure of Tenant to comply with any other term or condition of this
Lease within thirty (30) days after written demand thereof from Landlord.
c. Insolvency of Tenant; assignment by Tenant for the benefit of
creditors; filing by Tenant of a voluntary petition in bankruptcy; adjudication
that Tenant is bankrupt or the appointment of a receiver of Tenant's properties;
filing of any involuntary petition in bankruptcy and failure of Tenant to secure
dismissal of the petition within thirty (30) days after filing; attachment or
the levying of execution on the leasehold interest and failure of Tenant to
secure discharge of the attachment or release of the levy of execution within
thirty (30) days.
19. REMEDIES FOR DEFAULT BY TENANT.
Upon default, Landlord may exercise one or more of the following
remedies in addition to any other remedies available upon applicable law:
10
11
a. Landlord may terminate the lease by Notice to Tenant. Termination
shall be without prejudice to landlord's right to recover damages for the
default.
b. Landlord may terminate Tenant's right to possession of the Premises
and retake possession if necessary and relet the premises upon any reasonable
terms.
c. Whether or not the Lease is terminated or possession is retaken,
Landlord may recover all damages caused by the default. Landlord may, in one
action recover accrued damages plus damages attributable to the remaining term
of the Lease equal to the present value of the difference between the rent under
this lease and a reasonable rental value in the Premises.
20. PAST DUE SUMS.
If Tenant fails to pay, when the same is due and payable, or within ten
(10) days thereof, any rent, or other sums required to be paid by it hereunder,
Tenant agrees to pay a five percent (10%) service charge to landlord on all such
unpaid amounts and agrees to pay interest on all unpaid amounts from the due
date thereof until paid at the rate of eighteen percent (18%) per annum, both
before and after judgment.
21. INDEMNIFICATION.
Landlord and Tenant will each defend, indemnify and hold harmless each
other from and against all losses, claims, damages and expenses resulting from
any accident or other occurrence on or about the Premises caused by the
negligence of either party, their agents or employees and resulting in injury or
death to any person or damage to any property, except when such injury, damage
or death is due to the negligence of (or results from a breach of this Lease's
terms and conditions by) either party, their successors or assigns.
22. TERMINATION.
If Tenant shall fail to pay rent or other obligations hereunder, fail to
abide by any rule or regulation, or be absent from the premises without notice
to Landlord for more than fourteen consecutive days, and such default shall
continue for a period of five days after written notice thereof from Landlord to
Tenant, Landlord shall have the right to terminate this Lease at the end of said
five-day cure period. Upon termination, Tenant agrees to immediately vacate the
Premises.
23. ATTORNEY'S FEES.
In the event either party shall enforce the terms of this Lease or any
right of either party, by suit or otherwise, the unsuccessful party shall pay
the costs and expenses incident thereto, including reasonable attorneys' fees.
24. NOTICES.
11
12
All notices to either party shall be in writing and shall be deemed
delivered when personally served upon such other party or mailed in the United
States mail, registered or certified with return receipt requested, to the
following addresses:
25. TENANT IMPROVEMENT.
Landlord shall paint and recarpet said space prior to occupancy. Colors
to be neutral and to be agreed upon by Landlord and Tenant. Painting shall
include all cabinets and wood walls. Landlord shall provide best efforts to
complete space by June 15, 1998. In the event of a delay, occupancy shall be
adjusted accordingly.
If to Landlord: If to Tenant:
XXXXXX PROPERTIES ENMAX CORP.
0000 XXXXXX XXXXX XXXXX 370 S. 000 X. XXXXX 000
XXX XXXXX, XX. 00000 CLEARFIELD, UTAH
26. ENTIRE AGREEMENT AND AMENDMENT.
This Lease states the entire agreement of the parties, and supersedes
all prior agreements between or representations made by the parties, if any.
This Lease may be amended only by a writing signed by bother parties.
27. AUTHORITY OF SIGNATORIES.
Each person executing this lease individually and personally represents
and warrants that he is duly authorized to execute and deliver the same on
behalf of the entity for which he is signing (whether it be a corporation,
general or limited partnership, limited liability company, or otherwise), and
that this lease is binding upon said entity in accordance with its terms.
Dated this 5/31 day of ____________, 1998.
LANDLORD: TENANT:
a Utah _________________ a Utah Corporation
BY: BY: /s/ Xxxxxxxx Xxxxx
ITS: ITS: /s/ Treasurer
12
13
FROM: XXXXXX PROPERTIES SEPTEMBER 1, 1998
TO: ALL LAKESIDE OFFICE PLAZA TENANTS
RE: LEASE ASSIGNMENT
DEAR TENANT:
PLEASE BE ADVISED THAT AS OF AUGUST 31ST, 1998, YOUR OFFICE BUILDING LOCATED AT
370 SOUTH 500 EAST, CLEARFIELD, UTAH, HAS BEEN PURCHASED BY THE XXXXX GROUP,
L.L.C., AND ALL LEASE AGREEMENTS FOR SAID BUILDING HAVE BEEN ASSIGNED TO THE
XXXXX GROUP, L.L.C.
PLEASE MAKE ALL FUTURE LEASE PAYMENTS AND ALL FUTURE INQUIRIES TO:
THE XXXXX GROUP, LAKESIDE
000 XXXX 000 XXXXX, XXX. 000
XXXXXXXXX, XXXX 00000-0000
(000) 000-0000
RESPECTFULLY
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
XXXXXX PROPERTIES
13
14
EXHIBIT "D"
TENANT'S CERTIFICATE
The undersigned as Tenant under that certain Lease dated March 13, 1998
made and entered into between Landlord, hereby certifies that the undersigned
has entered into occupancy of the Premises described in said Lease and that the
Commencement Date of said Lease agreed upon is June 15, 1998 and the termination
date is June, 2000.
The undersigned also certifies that all conditions of said Lease to be
performed by Landlord and necessary to the enforceability of said Lease have
been satisfied and that there are no defaults by either Tenant or Landlord
thereunder and that no rents have been prepaid, other than as provided in said
Lease, and that on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said Lease by Landlord. Furthermore,
the undersigned hereby claims all rights, title or interest in said premises
except the rights granted by said Lease and certifies that said Lease is in full
force and effect and has not been assigned, modified, supplemented, or amended
in any way except:
Executed this 27 day of August, 1998.
ENMAX,
a Utah corporation
By /s/ Xxxxxxxx Xxxxx
(Print Name)
Its /s/ Treasurer
14
