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EXHIBIT 99.6
COMMERCIAL LEASE
THIS LEASE (the "Lease") dated this 8th day of August, 1999, is
entered into by and between Draper Business Park, L.L.C., a Utah
limited liability company ("Landlord"), and Whitney Consulting
Services, Inc., a Wyoming corporation, ("Tenant").
1. PREMISES.
(a) Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, for the term and subject to the terms and conditions
hereinafter set forth, to each and all of which Landlord and Tenant
hereby mutually agree, those certain premises (the "Premises"), shown
on Exhibit A (space plan) attached hereto, which include approximately
3678 Rentable square feet of office space (subject to a final space
plan). The location of the Premises is commonly known as: Suite No.
200, Building 5, 00000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxx 00000
("Building").
(b) In addition, the Premises shall include the appurtenant right
to use, in common with others, the site, parking and landscaped areas
("Common Area"). Landlord shall provide Tenant 5 non-reserved parking
stalls per 1,000 Usable square feet of Premises in the adjacent parking
lots of the Premises.
(c) Acceptance of Premises. Tenant, by taking possession of the
Premises shall be deemed to accept the Premises as being in the
condition in which Landlord is obligated to deliver the Premises.
Tenant shall at the end of the term and any extension herein surrender
to Landlord the Premises and all alterations, additions and
improvements thereto in the same condition as when received, ordinary
wear and tear, damage by fire, earthquake, or act of God excepted.
Landlord has no liability and has made no representation to alter,
improve, repair, or paint the Premises or any part thereof, except as
specified in Article 2(c), 2(d) and 6 herein.
2. TERM, OPTION, TENANT IMPROVEMENTS, EXPANSIONS.
(a) Lease Term. The initial Lease Term shall be from August 8
1999, ("Commencement Date") to May 14, 2001. Tenant shall not be
responsible for Rents until Landlord delivers possession of the
Premises to Tenant. If Landlord is solely responsible for not
delivering possession of the Premises to Tenant within forty-five (45)
days of the Commencement Date, Tenant may upon ten (10) days written
notice terminate the Lease. In the event of Tenant's termination due to
late delivery, Landlord shall not be liable for such late delivery or
failure to deliver possession of the Premises.
(b) Base Building Improvements. At Landlord's sole cost and
expense, Landlord shall provide the Building's roof and structural
elements ("Shell"), shall provide basic utility access to and an
initial HVAC unit for the Premises, and shall design and construct the
common areas of the Premises and Building, as more specifically
outlined in Exhibit B - Base Building Improvements (collectively "Base
Building Improvements").
(c) Tenant Improvements. At execution of the Lease, Landlord shall
prepare the premises for Tenant's use, by touch-up painting the walls,
repairing the hole in the conference room ceiling, and cleaning the
Premises. Tenant Improvements shall include all improvements to the
Premises, but exclude the Base Building Improvements.
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(d) Substantial Completion of Tenant Improvements. The premises
shall be deemed complete when Landlord has substantially completed
Tenant Improvements.
(e) Option to Extend Lease Term Tenant may extend the term for a
period of two years from the expiration date by written notice of its
election to do so given to Landlord at least six months prior to the
expiration date. The extended term will be on all of the terms and
conditions of the Lease applicable at the expiration date; provided
however, that the rent during the balance of the renewal term shall be
increased annually on the anniversary of the Commencement Date of this
Lease by four percent (4%). Tenant will have no further right to extend
the term. Tenant will not have any rights under this paragraph if (a)
an event of default exists on the expiration date or on the date on
which Tenant gives its notice, (b) Tenant makes late payment of any
amounts due under this Lease more than three (3) times in any lease
year, or (c) tenant exercises its rights less than six months before
the expiration date.
(f) Right of First Refusal. Tenant is hereby granted a right of
first refusal to lease the 3475 rentable square feet of office space on
the main floor of Building 5 formerly occupied by WCX. Said right of
first refusal shall be exercisable within three (3) business days of
Landlord giving Tenant notice of the availability of such space and the
terms on which Landlord is willing to lease such space to another
tenant. In the event Tenant elects to lease said space, Tenant agrees
to lease said space on the terms outlined in Landlord's notice. If
Tenant does not exercise the right of first refusal, Landlord may rent
such space to any other person or entity on the terms offered Tenant or
on other terms substantially similar to those offered to Tenant.
3. NON-OCCUPANCY OF IMPROVED SPACE.
In the event Tenant does not occupy the Premises and fails to pay
Rents as required in Article 4 of the Lease, the cost of all Tenant
Improvements shall become due and payable upon invoicing by Landlord.
Further, such invoicing by Landlord does not waive any other rights or
remedies Landlord may have against Tenant for failure to occupy.
4. RENT.
(a) Base Rent. Base Rent shall be $10.55 per Rentable square foot
of the Premises per year, triple net, and shall be increased annually
on each anniversary of the Commencement Date by 4% during the Lease
Term and during any option period. One twelfth (1/12) of the Base Rent
shall be payable in advance each month on or before the 1st day of each
month during the duration of the Lease, with the first such monthly
rental payment plus the security deposit referenced in Article 33 being
due upon the execution of the Lease. Any partial months shall be
prorated accordingly. All Base Rent and Additional Rent (collectively
"Rents") shall be paid as follows, unless otherwise directed in
writing: Draper Business Park, L.C. c/o Prime Commercial Management
Services, Inc. 00000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, XX
00000.
(b) Additional Rent. All obligations payable by Tenant under the
Lease other than Base Rent are called "Additional Rent". Unless
otherwise provided, Additional Rent shall be paid with the monthly
installment of Base Rent.
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(c) Interest, Late Charges. Costs and Attorneys' Fees. If Tenant
fails to pay within five (5) days of the date due any Rents which
Tenant is obligated to pay under the Lease, the unpaid amount shall
bear interest at ten (10%) percent per annum. Tenant acknowledges that
any late payments of Rents shall cause Landlord to lose the use of that
money and incur costs and expenses not contemplated under the Lease,
including without limitation administrative, collection and accounting
costs, the exact amount of which is difficult to ascertain. Therefore,
in addition to interest, if any payment is not received by Landlord
within five (5) days from the date it is due, Tenant shall also pay
Landlord a late charge equal to five (5%) percent of the amount of each
such late Rents. Further, as Additional Rent, Tenant shall be liable to
Landlord for costs and attorneys' fees incurred as a result of late
payments or non-payments. Acceptance of any interest, late charge,
costs or attorneys' fees shall, not constitute a waiver of any default
by Tenant nor prevent Landlord from exercising any other rights or
remedies under the Lease or at law.
5. USE.
(a) The Premises shall be used for general office, production,
storage and any other lawful purpose incidental to Tenant's business,
and no other, unless consented to in writing by Landlord. Tenant shall
not do or permit to be done in or about the Premises, Building, or
Common Area, anything which is prohibited by or in any way in conflict
with (in the case of hazardous material, Tenant shall notify Landlord
of any such materials and shall ensure that any such hazardous material
is properly controlled, safeguarded, and disposed of) any and all laws,
statutes, ordinances, rules and regulations now in force or which may
hereafter be enacted or promulgated or which is prohibited by the
standard form of fire insurance policy, or which will increase the
existing rate of or affect any fire or other insurance upon the
Premises, Building or any of its contents, or Common Area or cause a
cancellation of any insurance policy covering the Premises or Building
or any part thereof or any of its contents, or the Common Area. Tenant
shall not do or permit anything to be done in or about the Premises,
Building, or the Common Area which will in any way violate Rules or
Regulations reasonably promulgated by Landlord, obstruct or interfere
with the rights of other tenants, or injure them, or use or allow the
Premises, Building or the Common Area to be used for any improper,
immoral, or unlawful purpose, nor shall Tenant cause, maintain or
permit any nuisance, in, on or about the Premises, Building, or the
Common Area or commit or suffer to be committed any waste in, on or
about the Premises, Building or the Common Area. Tenant shall have
access to the Building and Premises on a 24 hour/7 day a week basis.
(b) Tenant shall not use the name of the Building in which the
Premises are located, in connection with any business carried on in
said Premises (except as Tenant's address) without written consent of
Landlord.
(c) Tenant shall not manufacture, assemble or store materials in
the Common Area.
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6. LANDLORD'S SERVICES.
Landlord, at its sole cost and expense, is responsible to maintain
only the roof and structural elements ("Shell") of the Premises and
Building. All Operating Expenses, including but not limited to repairs,
maintenance, Premises and Building utilities, Common Area utilities,
Premises and Building janitorial, Common Area janitorial, tenant
janitorial, sewer and garbage, insurance, taxes, and property
management on the Premises, Building, and Common Area shall be
coordinated by Landlord, but are the financial responsibility of the
Tenant through prorated Operating Expenses as more fully outlined in
Article 7 herein.
7. OPERATING EXPENSES - REPAIRS, MAINTENANCE, INSURANCE, TAXES AND
PROPERTY MANAGEMENT
Since the Premises is part of a Building or group of buildings,
Tenant is responsible for a prorated share of Operating Expenses,
including but not limited to repairs, maintenance, Common Area
utilities, Common Area janitorial, tenant janitorial, sewer and
garbage, insurance, taxes, and property management incurred in the
operation and management of the Premises, Building, and Common Area as
shall be reasonably determined by the Landlord. Proration shall be on
a square footage basis with all other tenants and Tenant's proration
shall be calculated by multiplying the Operating Expenses by an
equation, the numerator being the Rentable square feet of the Premises
and the denominator being the total Rentable square feet of the
Building. Provided, however, that the Operating Expenses that are in
the direct control of the Landlord for any year after the first year
shall not increase more than five percent (5%) over the prior year. The
Operating Expenses shall be prorated to Tenant and be payable by Tenant
as Additional Rent on a monthly basis and subject to the following
terms and conditions:
(a) Tenant's prorated share of the Operating Expenses shall be
computed and paid in twelve (12) equal monthly estimated payments as
determined in the Landlord's reasonable discretion. Such Additional
Rent shall be paid by Tenant on or before the 1st day of each month
with Base Rent. As soon as is reasonably possible, but in any event
within ninety (90) days following the end of each calendar year,
Landlord shall furnish to Tenant a statement showing the Premises' and
Building's actual Operating Expenses for the preceding calendar year.
In the case of a deficiency, Tenant shall promptly remit its prorata
share of such deficiency to Landlord. In the case of a surplus,
Landlord shall apply said surplus to the next Additional Rent due from
Tenant.
(b) Tenant may review at its sole cost and expense any Operating
Expenses prorated to Tenant by Landlord, including assessed real estate
taxes as may be statutorily allowed. Landlord shall make available the
applicable Operating Expenses' invoices and statements. However, any
such review must be requested and completed within sixty (60) days of
receipt of the annual statement.
8. ALTERATIONS.
(a) Tenant will not make or suffer to be made any alterations,
additions or improvements in excess of $1,000, excluding the initial
Tenant Improvements, (collectively "Alterations") to or upon the
Premises, Building, or any part thereof, or attach any fixtures or
equipment thereto, without first obtaining Landlord's written approval,
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which shall not be unreasonably withheld or delayed. Any Alterations to
or upon the Premises shall be made by Tenant at Tenant's sole cost and
expense and any contractor selected by Tenant to make the same shall be
subject to Landlord's reasonable prior written approval. All such
Alterations permanent in character, made in or upon the Premises either
by Tenant or Landlord, may at the option of Landlord, become Landlord's
property and, at the end of the term or any extension hereof, shall
remain on the Premises without compensation to Tenant unless Landlord
requests that Tenant remove any such Alterations. Notwithstanding the
above, Tenant's work stations and other items of personal property
shall remain Tenant's property.
(b) Any Alterations shall, when completed, be of such a character
as not to lessen the value of the Premises or such improvements as may
be located thereon. Any Alterations shall be made promptly and in a
good workmanlike manner, and in compliance with all applicable permits,
building and zoning laws, and with all other laws, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments, departments, commissions, boards and offices. The costs of
any such Alterations shall be paid by Tenant, so that the Premises are
free of liens, for services performed, labor and material supplied or
claimed to have been supplied. Before any Alterations shall be
commenced, Tenant shall pay any increase in premiums on insurance
policies (provided for herein) or ensure adequate coverage is in place
for all risks related to the construction of such Alterations and the
increased value of the Premises.
9. SIGNAGE.
Any signage must be approved in writing by, Landlord, Tenant, and
other occupants of space on the same floor, which approval shall be at
Landlord's sole discretion, and conform with applicable statues,
ordinances, regulations or codes. Any signage must be removed, at
Tenant's sole cost, at the end of the Term of the Lease or upon
Tenant's failing to have possession of the Premises.
10. LIENS.
Tenant shall keep the Premises and the Building free from any
mechanics' and/or materialmen's liens or other liens arising out of any
work performed, materials - furnished or obligations incurred by
Tenant. Tenant shall notify Landlord in writing at least seventy-two
(72) hours before any work or activity is to commence on the Premises
which may give rise to such liens to allow Landlord to post and keep
posted on the Premises any notices which Landlord may deem to be proper
for the protection of Landlord and the Premises from such liens.
11. DESTRUCTION OR DAMAGE.
(a) If the Premises is partially damaged by fire, earthquake, or
other Act of God, Landlord shall repair the same at Landlord's expense,
subject to the provisions of this Article and provided such repairs
can, in Landlord's reasonable opinion, be made within sixty (60) days.
During such repairs, the Lease shall remain in full force and effect,
except that if there shall be damage to the Premises and such damage is
not the result of the negligence or willful misconduct of Tenant,
Tenant's employees, agents, or invitees, an abatement of Rents shall be
allowed Tenant for such portion of Premises and period of time as the
Premises was unusable by Tenant.
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(b) If in Landlord's reasonable opinion the partially damaged
Premises can be repaired, but not within sixty (60) days, the Landlord
may elect, upon written notice to Tenant within thirty (30) days of
such damages, to repair such damages over a longer time period and
continue the Lease in full force and effect, but with Rents partially
abated as provided in Article 11 (a). In the event such repairs cannot
be made within sixty (60) days, Tenant shall have the option to
terminate the Lease provided that written notice is given to Landlord
within thirty (30) days of receipt of Landlord's notice stated in this
paragraph.
(c) If the partially damaged Premises is to be repaired under this
Article, Landlord shall repair such damages to the Premises itself, and
to the Tenant Improvements supplied by Landlord herein. Except in the
event of Landlord's gross negligence or willful misconduct, Tenant
shall be responsible for Tenant's equipment, furniture and fixtures,
and other alterations, additions and improvements made by Tenant to the
Premises and Building.
(d) If in Landlord's reasonable opinion, the Premises is totally
or substantially destroyed by fire or other casualty, the Lease shall
terminate upon notice by Landlord.
12. SUBROGATION.
Landlord and Tenant shall each, prior to Tenant's taking
possession or immediately after the execution of the Lease, procure
from each of the insurers under all policies of fire, theft, public
liability, workmen's compensation and other insurance now or hereafter
existing during the term and any extension hereof and purchased by
either of them insuring or covering the Premises and/or Building or any
portion thereof or operations therein, a waiver of all rights of
subrogation which the insurer might otherwise, if at all, have against
the other.
13. INDEMNIFICATION.
Tenant agrees to indemnify, defend and hold harmless Landlord and
its officers, directors, partners and employees from and against all
liabilities, judgments, demands, actions, expenses or claims, including
reasonable attorney's fees and court costs, for injury to or death of
any person, the release of any hazardous materials, or for damages to
any property to the extent arising out of or connected with (i) the
use, occupancy or enjoyment of the Leased Premises, Building, or Common
Area by Tenant or Tenant's agents, employees, invitees, licensees, or
contractors (the "Tenant's Agents"), or any work or activity performed
by Tenant or by Tenant's Agents in, or about the Leased Premises,
Building, or Common Area, including any Tenant improvements, (ii) any
breach or default in the performance of any obligation of Tenant under
this lease, (iii) any negligent or intentional tortious act of Tenant
or Tenant's Agents (excluding Tenant's licensees) on or about the
Leased Premises, Building, or Common Area or any negligent or
intentional tortious, act of Tenant's licensees on or about the Leased
Premises, Building or Common Area. Notwithstanding the foregoing,
Tenant shall not be liable to the extent that damage or injury is
determined ultimately to be caused by the negligent or intentional
tortious act of Landlord, or of Landlord's employees, agents, invitees,
licensees, or contractors ("Landlord's Agents"). All property of Tenant
kept or stored on the Leased Premises or in the Building shall be so
kept or stored at the risk of Tenant only, and Tenant shall hold
Landlord free and harmless from any claims arising out of damage to the
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same, unless such damage shall be caused by the negligent or
intentional tortious act of Landlord or Landlord's Agents. The
indemnification contained herein shall survive the expiration or
earlier termination of this lease as to acts occurring prior to such
expiration or termination.
Landlord agrees to indemnify, defend and hold harmless Tenant and
its officers, directors, partners and employees from and against all
liabilities, judgments, demands, actions, expenses or claims, including
reasonable attorneys' fees and court costs, for injury to or death of
any person, the release of any hazardous materials or for damages to
any property to the extent arising out of or connected with (i) the
use, management or operation of the Building by Landlord or by
Landlord's Agents, or any work or activity performed by Landlord or by
Landlord's Agents in, on or about the Building, (ii) any breach or
default in the performance of any obligation of Landlord under this
lease, or (iii) any negligent or intentional tortious act of Landlord
or Landlord's Agents on or about the Leased Premises or the Building.
Notwithstanding the foregoing, Landlord shall not be liable to the
extent that damage or injury is determined ultimately to be caused by
the negligent or intentional tortious act of Tenant or Tenant's Agents.
The indemnification contained herein shall survive the expiration or
earlier termination of this lease as to acts occurring prior to such
expiration or termination.
14. COMPLIANCE WITH LEGAL REQUIREMENTS.
Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, the
requirements, of any board of fire underwriters or other similar body
now or hereafter constituted, any direction or occupancy certificate
issued pursuant to any law by any public officer or officers, as well
as the provisions of all recorded documents affecting the Premises,
(collectively the "Applicable Laws"), insofar as any thereof relate to
or affect the use or occupancy of the Premises, Building, or Common
Area, excluding requirements of structural changes now related to or
affected by improvements made by or for Tenant.
Landlord shall, at its sole cost and expense, promptly comply with
all Applicable Laws, including the American with Disabilities Act
("ADA"), insofar as any thereof relate to or affect Landlord's
obligations under the Lease, or its ownership of the Premises,
Building, or Common Area, except for Tenant's requirements in the
immediately preceding paragraph herein.
15. INSURANCE.
(a) Commercial General Liability. Tenant shall, maintain a
Commercial General Liability policy including all coverages normally
provided therein. Such policies shall specifically name Landlord as an
additional insured, with a cancellation period of thirty (30) days
prior written notice of an cancellation. A Certificate of Insurance
shall be provided to Landlord. All polices of insurance shall be issued
by responsible insurance companies licensed to do business in the State
of Utah.
The minimum limits of coverage acceptable are:
(i) $2,000,000 Each Occurrence Combined Single Limit for Bodily
Injury and Property Damage
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and
(ii) $5,000,000 Annual Aggregate
(b) Premises and Building Insurance. Landlord shall insure the
Premises and Building, including Landlord supplied Core and Shell and
Tenant Improvements as deemed necessary in Landlord's reasonable
discretion. Tenant shall pay for such insurance as outlined in Article
7 herein, involving Tenant's prorated share 'of Operating Expenses. All
policies of insurance shall be issued by responsible insurance
companies licensed to do business in the State of Utah.
(c) Tenant's Additional Insurance. Tenant may, at its sole cost
and expense, cause all equipment, machinery, furniture and fixtures,
personal property, and Tenant Improvements supplied by Tenant from time
to time used or intended to be used in connection with the operation
and maintenance of the Premises, to be insured by Tenant against loss
or damage. Except for losses caused by Landlord's gross negligence or
willful misconduct, Landlord is in no way liable for any uninsured
Tenant's property.
16. ASSIGNMENT AND SUBLETTING.
In the event Tenant should desire to assign the Lease or sublet
the Premises, Tenant shall give Landlord written notice of such desire
at least ninety (90) days in advance of the date on which Tenant
desires to make such assignment or sublease. Landlord shall then have
a period of thirty (30) days following receipt of such notice within
which to notify Tenant in writing that Landlord elects either (i) to
terminate the Lease as of the date so specified by Tenant, in which
event Tenant will be relieved of all further obligations hereunder, or
(ii) to permit Tenant to assign or sublet such space, subject to prior
written approval of the proposed assignee by Landlord, such consent not
to be unreasonably withheld or delayed, so long as the use of the
Premises by the proposed assignee would be a permitted use and the
proposed assignee is of sound financial condition as determined by
Landlord. If Landlord should fail to notify Tenant in writing of such
election within said thirty (30) day period, Landlord shall have deemed
to have waived option (i) above, but written approval by Landlord of
the proposed assignee shall still be required. Failure by Landlord to
approve a proposed assignee shall not cause a termination of the Lease.
Any rents or other consideration realized by Tenant under any such
sublease and assignment in excess of the Rents hereunder, after
amortization of the reasonable costs of extra tenant improvements for
which Tenant has paid and reasonable subletting and assignment costs,
shall be divided and paid ninety (90%) percent to Landlord and ten
(10%) percent to Tenant.
Notwithstanding the above, Tenant shall have the right to sublease
or assign all or any portion of the Premises during the Term or any
Option period to any related entity, subsidiary, or affiliate of
Tenant, having at least fifty-one (51%) percent direct common
ownership, without having to receive Landlord's consent, but still
requiring written notice to Landlord on or before such sublease or
assignment.
No assignment or subletting by Tenant shall relieve Tenant of any
obligation under the Lease. Any assignment or subletting which
conflicts with the provisions hereof shall be void.
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17. RULES.
Tenant shall faithfully observe and comply with all Rules and
Regulations reasonably promulgated by Landlord, in writing and after
reasonable notice, during the Term or any Option period herein.
Landlord must apply rules equitably against all Tenants, but shall not
be responsible to Tenant for the non-performance by other Building
tenants, or adjacent buildings' tenants, of any of said Rules and
Regulations.
18. ENTRY BY LANDLORD.
The Landlord may enter the Premises or Building at reasonable
hours and upon 24 hours reasonable written notice to Tenant to (a)
inspect the same, (b) show the same to prospective purchasers, lenders
or tenants, (c) determine whether Tenant is complying with all of
Tenant's obligations hereunder, (d) post notices of non-responsibility
or (e) make repairs required of Landlord under the Lease, repairs to
adjoining space or utility service, or make repairs, alterations or
improvements to the Building, provided that all such work shall be done
as promptly as possible and with as little interference to Tenant as
reasonably possible. Tenant hereby waives any claim for damages for any
inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises occasioned by such entry.
Landlord shall at all times have and retain a key to unlock all doors
in, on or about the Premises (excluding Tenant's vaults, safes and
similar areas designated in writing by Tenant). In the event of an
emergency, Landlord shall have the right to use any and all means which
Landlord may deem proper to enter the Premises, without notice, for the
limited purpose of abating as quickly as possible said emergency. Such
emergency entrance shall not be construed or deemed to be a forcible or
unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from the Premises, or any portion
thereof.
19. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events ("Events
of Default") shall constitute a breach of the Lease by Tenant: (a) if
Tenant fails to pay Rents when and as the same becomes due and payable
and such failure continues for more than ten (10) days after written
notice thereof, or (b) if Tenant fails to pay any other sum when and as
the same becomes due and payable and such failure continues for more
than ten (10) days after written notice thereof, or (c) if Tenant fails
to perform or observe any material term or condition of the Lease, such
failure continues for more than thirty (30) days after written notice
from Landlord, and Tenant does not within such period begin with due
diligence and dispatch the curing of such default, or, having so began,
thereafter fails or neglects to complete with due diligence and
dispatch the curing of such default; or (d) if Tenant shall make a
general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due or shall file
a petition in bankruptcy, or shall be adjudicated as bankrupt or
insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
or shall file any answer admitting or shall fail timely to contest the
material allegations of a petition filed against it in any such
proceeding, or shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of Tenant or any material part
of its properties; or (e) if within thirty (30) days after the
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commencement of any proceeding against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law
or regulation, such proceeding shall not have been dismissed, or if,
within thirty (30) days after the appointment without the consent or
acquiescence of Tenant, of any trustee, receiver or liquidator of
Tenant or of any material part of its properties, such appointment
shall not have been vacated; or (f) vacation or abandonment of the
Premises for a continuous period in excess of fifteen (15) days, or (g)
if the Lease or any estate of Tenant hereunder shall be levied upon
under any attachment or execution and such attachment or execution is
not vacated within thirty (10) days of receipt thereof by Tenant.
20. TERMINATION UPON TENANT'S DEFAULT.
If an Event of Default shall occur, Landlord at any time
thereafter may give a written termination notice to Tenant, and on the
date specified in such notice (which shall not be less than three (3)
days after service) Tenant's right to possession shall terminate and
the Lease shall terminate, unless on or before such date all Rents,
arrearages and other sums due by Tenant under the Lease, including
reasonable costs and attorneys' fees incurred by or on behalf of
Landlord, shall have been paid by Tenant and all other Events of
Default by Tenant shall have been fully cured to the satisfaction of
Landlord. Upon such termination, Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid Rents which had
been earned at the time of termination; plus
(b) the worth at the time of award of the amount by which the
unpaid Rents which would have been earned after termination until the
time of award exceeds the amount of such Rents loss that Tenant proves
could have been reasonably avoided; plus
(c) the worth at the time of award of the amount by which the
unpaid Rents for the balance of the term of the Lease after the time of
award exceeds the amount of such Rents loss that Tenant proves could be
reasonably avoided; and plus
(d) any other amount reasonably necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform
its obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom; and/or
(e) At Landlord's elections, such other amounts in addition or in
lieu of the foregoing as may be permitted from time to time herein or
by applicable law.
The "worth at the time of award" of the amounts referred to in
clauses (a) and (b) above is computed by allowing interest at the rate
of 10% per annum. The "worth at the time of award" of the amount
referred to in clause (c) above means the monthly sum of the Rents
under the Lease. Failure of Landlord to declare any default immediately
upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default, but Landlord shall have the
right to declare any such default at any time thereafter.
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21. CONTINUATION AFTER DEFAULT.
Even though Tenant has defaulted the Lease and abandoned the
Premises, the Lease shall continue in effect as long as Landlord does
not terminate Tenant's right to possession, and Landlord may enforce
all of its rights and remedies under the Lease, including the right to
recover the Rents as they become due under the Lease. Acts of
maintenance or preservation or efforts to relet the Premises or the
appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under the Lease shall not constitute a termination
of Tenant's right to possession. If any fixture, equipment,
improvement, installation or appurtenance shall be required to be
removed from the Premises and/or Building by Tenant, then Landlord (in
addition to all other rights and remedies) may, at its election by
written notice to Tenant, deem that the same has been abandoned by
Tenant to Landlord, or Landlord may remove and store the same and
restore the Premises to its original condition at the reasonable
expense of Tenant, as Additional Rent to be paid within ten (10) days
after written notice to Tenant of such expense.
22. LANDLORD'S DEFAULT.
If Landlord fails to perform or observe any of its material Lease
obligations herein and such failure continues for thirty (30) days
after written notice from Tenant, or such additional time, if any, that
is reasonably necessary to promptly and diligently cure such failure
after receiving written notice, Landlord shall be in breach of the
Lease (a "Default"). If Landlord commits a Default, Tenant may pursue
any remedies given in the Lease or under law.
23. LANDLORD'S RIGHT TO CURE DEFAULTS.
All terms and provisions to be performed by Tenant under the Lease
shall be at Tenant's sole cost and expense and without any abatement of
Rents. If Tenant fails to pay any sum of money, other than Rents,
required hereunder or fails to perform any other act required hereunder
and such failure continues for thirty (30) days after notice by
Landlord, Landlord may, but shall not be obligated, and without waiving
or releasing Tenant from any obligations of Tenant, make any such
payment or perform any such act on Tenant's part to be made or
performed as provided in the Lease. All sums paid by Landlord and all
incidental costs shall be deemed Additional Rent hereunder and shall be
payable within ten (10) days of written notice of such sums paid.
24. OTHER RELIEF.
The remedies provided for in the Lease are in addition to any
other remedies available to Landlord at law or in equity by statute or
otherwise.
25. ATTORNEYS' FEES.
In the event either party places at issue the enforcement of the
Lease, or any part thereof, or the collection of any Rents, or recovery
of the possession of the Premises, or files suit upon the same, then
the prevailing party shall recover its reasonable attorneys' fees and
costs from the other party.
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26. EMINENT DOMAIN.
If all or any part of the Premises shall be taken or conveyed as
a result of the exercise of the power of eminent domain, the Lease
shall terminate as to the part so taken as of the date of taking, and,
in the case of a partial taking, either Landlord or Tenant shall have
the right to terminate the Lease as to the balance of the Premises by
written notice to the other within thirty (30) days after such date;
provided, however, that a condition to the exercise by Tenant of such
right to terminate shall be that the portion of the Premises taken or
conveyed shall be of such extent and nature as substantially to
handicap, impede or impair Tenant's use of the balance of the Premises.
In the event of any taking, Landlord shall be entitled to any and all
compensation, damages, income, rent awards or any interest therein
whatsoever which may be paid or made in connection therewith, and
Tenant shall have no claim against Landlord for the value of any
unexpired term of the Lease or otherwise, provided that Tenant shall be
entitled to any and all compensation, damages, income, rent or awards
paid for or on account of Tenant's moving expenses, trade fixtures,
equipment and any leasehold improvements in the Premises, the cost of
which was borne by Tenant, to the extent of the then unamortized value
of such improvements for the remaining term of the Lease. In the event
of a taking of the Premises which does not result in a termination of
the Lease, the monthly rental herein shall be apportioned as of the
date of such taking so that thereafter the rent to be paid by Tenant
shall be in the ratio that the area of the Premises not so taken bears
to the total area of the Premises prior to such taking.
27. SUBORDINATION, ATTORNMENT & NONDISTURBANCE; AND ESTOPPEL
CERTIFICATE.
At Landlord's request, Tenant agrees to execute, acknowledge, and
deliver within ten (10) days to Landlord a Subordination, Attornment &
Nondisturbance Agreement ("Subordination Agreement"), subject to
Landlord's reasonably proposed form(s). Such Subordination Agreement
shall subordinate the Lease to any ground lease, mortgage, deed of
trust, or any other hypothecation for security now or hereafter placed
upon the Premises, Building and/or Common Area, or any part thereof, to
any and all advances made on the security, and to all renewals,
modification, consolidations, replacements and extensions thereof,
whether the Lease is dated prior or subsequent to the date of said
ground lease, mortgage, deed of trust or other hypothecation or the
date of recording thereof. Further, at Landlord's request, Tenant
agrees to execute, acknowledge, and deliver within ten (10) days to
Landlord an Estoppel Certificate, subject to Landlord's proposed
form(s). Such Subordination Agreement and Estoppel Certificate may be
relied upon by any prospective purchaser, mortgagee, or beneficiary
Under any ground lease, mortgage, deed of trust, or any other
hypothecation of the Premises, Building, or common areas, or any part
thereof Notwithstanding such Subordination Agreement, Tenant's right to
quiet possession of the Premises shall not be disturbed so long as
Tenant is not in default under the Lease, unless the Lease is otherwise
terminated pursuant to its terms.
In the event that Tenant fails to execute, acknowledge, and
deliver to Landlord such Subordination Agreement and Estoppel
Certificate within ten (10) days of Landlord's request, the parties
herein expressly agree that Tenant shall be deemed in default of the
Lease without further notice. In event of such Tenant default, the
parties herein further expressly agree that the Subordination Agreement
and Estoppel Certificate are deemed to have been executed by Tenant.
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28. NO MERGER.
The voluntary or other surrender of the Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall, at the
option of Landlord terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an
assignment to it of any or all such subleases or subtenancies.
29. SALE.
In the event the original Landlord hereunder, or any successor
owner of the Premises, Building, and Common Area shall sell or convey
the Premises, Building, and Common Areas, and the purchaser assumes the
obligations of Landlord under the Lease, all liabilities and obligation
on the part of the original Landlord, or such successor owner, under
the Lease accruing after such Sale shall terminate, and thereupon all
such liabilities and obligations shall be binding upon the new owner.
Tenant agrees to attorn to such new owner.
30. NO LIGHT OR VIEW EASEMENT.
Any diminution or shutting off of light or view by any structure
erected on lands adjacent to the Building shall in no way affect the
Lease or impose any liability on Landlord.
31. HOLDING OVER.
If, without objection by Landlord, Tenant holds possession of the
Premises after expiration of the Term or any Option period of the
Lease, Tenant shall become a tenant from month to month upon the terms
herein specified, but at a monthly Base Rent equivalent to 125% of the
Base Rent at the end of the term or extension period pursuant to
Article 4, payable in advance on or before the first day of each month.
All Additional Rent shall also apply. Each party shall give the other
notice at least one month prior to the date of termination of such
monthly tenancy of its intention to terminate such tenancy.
32. ABANDONMENT.
If Tenant shall abandon or surrender the Premises, or, be
dispossessed by process of law or otherwise, any personal property
belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
33. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon execution of the Lease a
security deposit equal to a month's full Base Rent ("Security
Deposit"). The Security Deposit shall be held by Landlord as security
for the faithful performance by Tenant of all of the provisions of the
Lease to be performed or observed by Tenant. In the event Tenant fails
to perform or observe any of the provisions of the Lease to be
performed or observed by it, then, at the option of the Landlord,
Landlord may (but shall not be obligated to do so) apply the Security
Deposit, or so much thereof as may be necessary to remedy such default
or to repair damages to the Premises caused by Tenant. In the event
Landlord applies any portion of the Security Deposit to remedy any such
default or to repair damages to the Premises caused by Tenant, Tenant
shall pay to Landlord, within thirty (30) days after written demand for
such payment by Landlord, all monies necessary to restore the Security
Deposit up to the original amount. Landlord will not be required to
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keep the security deposit separate from its general funds and Tenant
will not be entitled to interest on the security deposit. The security
deposit will not be a limitation on Landlord's damages or other rights
under this lease, or a payment of liquidated damages, or an advance
payment of the rent. If Tenant pays the rent and performs all of its
other obligations under this lease, Landlord will return the unused
portion of the security deposit to Tenant within thirty (30) days after
the end of the term.
34. WAIVER.
All waivers by either party herein must be in writing and signed
by such party. The waiver of any term or conditions herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other
agreement, condition or provision herein contained, nor shall any
custom, practice or course of conduct between the parties be construed
to waive or to lessen the right of either party to insist upon the
performance by the other party in strict accordance with said terms.
The subsequent acceptance of Rents hereunder by Landlord shall not be
deemed to be a waiver of any breach by Tenant of any term or condition
of the Lease, regardless of Landlord's knowledge of such breach at the
time of acceptance of such Rents.
35. NOTICES.
All notices and demands which may or are required to be given by
either party to the other under the Lease shall be in writing and shall
be deemed to have been fully given when deposited in the United States
mail, certified or registered, postage prepaid, and addressed as
follows: to Tenant at 00000 Xxxxx Xxxxxxxx Xxxx Xxxxx Xxxxx Xx. 000,
Xxxxxx, Xxxx 00000, or to such other place as Tenant may from time to
time designate in a notice to Landlord or delivered to Tenant at the
Premises; to Landlord at Draper Business Park, L.C. c/o Prime
Commercial Management Services, 00000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000, or to such other place as Landlord may from time
to time designate in a notice to Tenant. Tenant hereby appoints as its
agent to receive the service of all dispossessory or distraint
proceedings and notices hereunder the person in charge of or occupying
the Premises at the time, and if no person shall be in charge of or
occupying the same, then service may be made by attaching same on the
main entrance of the Premises.
36. COMPLETE AGREEMENT.
There are no oral agreements between Landlord and Tenant affecting
the Lease, and the Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings,
if any, between Landlord and Tenant with respect to the subject matter
of the Lease. The Lease may not be altered, changed or amended, except
by an instrument in writing signed by both parties hereto.
37. AUTHORITY.
The person(s) executing the Lease on behalf of the parties herein
hereby covenants and warrants that (a) such party is a duly authorized
and validly existing entity under the laws of the State in which it was
formed, (b) such party has and is qualified to do business in Utah, (c)
such entity has full right and authority to enter into the Lease, and
(d) each person executing the Lease on behalf of such entity is
authorized to do so.
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38. GUARANTEE OF LEASE.
Tenant guarantees, upon execution of the Lease, to occupy the
Premises. Any failure to occupy the Premises does not release the
Tenant from the obligation of paying Rents or any other terms set forth
herein.
39. MISCELLANEOUS.
(a) The words "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and
several.
(b) Time is of the essence on the Lease and each and all of its
terms and conditions.
(c) The terms and conditions herein shall apply to and bind the
heirs, executors, administrators, successors and assigns of the parties
hereto.
(d) The captions of the Lease are solely to assist the parties and
are not a part of the terms or conditions of the Lease.
(e) The Lease shall be governed by and construed in accordance
with the laws of the State of Utah, and is deemed to be executed within
the State of Utah.
40. SEVERABILITY.
If any term or provision of the Lease, or the application thereof
to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of the Lease, or the application of such
provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each
provision of the Lease shall be valid and shall be enforceable to the
extent permitted by law.
41. BROKERS.
Landlord is represented by Xxxxxx X. Xxxxxxxxxx and Xxxx
Xxxxxxxxxx of Prime Commercial, Inc.
IN WITNESS WHEREOF, the parties have executed the Lease dated the
day and year first above written.
TENANT: LANDLORD:
WHITNEY CONSULTING SERVICES, INC. DRAPER BUSINESS PARK, L.C.
By: /s/ Xxxxxx Xxxxx By: Xxxxx X. Xxxxxxx
Its: Treasurer Its: Manager
EXHIBIT A SPACE PLAN
EXHIBIT B BASE BUILDING IMPROVEMENTS
The Base Building Improvements and systems as described below
shall be furnished by Landlord at Landlord's sole cost and expense.
These include:
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1. The Building structure will be designed for a minimum floor load
of 50 lb. Live load plus a 20 lb. partition dead load.
2. The Building shell will include a core consisting, elevator with
equipment room, stairwell enclosures, 1 man and 1 woman rest-room
on each floor, finished lobbies and exterior perimeter walls and
windows and all building columns.
3. A Concrete floor will be installed with a smoothed trowel finish
for installation of glued down carpet. The Floor will be poured
level and finished in accordance with current ACI Standard
Specifications 117.
4. A Life Safety system will be installed in accordance with the more
stringent of applicable national, state and local codes or the
Americans with Disabilities Act, throughout the Building,
including all corridors, stairwells and rest-rooms (strobes). The
sprinkler system will be installed to code and connected to
alarms.
5. Electrical distribution will be provided to the main panel boxes
in the electrical closet on each floor. The electrical system
shall be sized for seven (7) xxxxx per usable square foot for
Tenant's consumption, over and above base building electrical
requirements.
6. The Building will be equipped with a packaged-unit heating,
ventilation and air conditioning system sufficient for Tenant's
anticipated occupancy requirements. The system will be designed to
maintain a space temperature between 70'-75' degrees F on a
year-round basis, based on a maximum average occupancy of one (1)
person for each 150 square feet of usable area. The requirements
for ventilation shall comply with present ASHRAE (American Society
of Heating, Refrigeration and Air-Conditioning Engineers) standard
62-1989 as a minimum requirement. Tenant shall be furnished with
a price per ton for package unit if additional air conditioning is
required.
7. Telephone service, as provided by the local utility, will be
brought to Tenant's or Building's main telephone room.
8. Common corridor walls and walls between tenant suites will be
provided with the side finished only to the common areas.
9. Roadways necessary for Tenant's access to and egress from the
Building will be completed, along with parking, landscaping and
sprinklers.
