EXHIBIT 99.1
LEASE
000 XXXX XXXXXXXXX XXXX
XXXXXX, XXXX
LESSOR:
XXXXX HOLDINGS-UTAH, LLC
XXXXX 000
0000 X. 00XX XXXXXX
XXXXXXXXX, XX 00000
(000) 000-0000
TENANT:
C SQUARE EDUCATIONAL ENTERPRISES
000 XXXX XXXXXXXXX XXXX
XXXXXX, XXXX 00000
(000) 000-0000
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Table of Contents
Art. No. Title Page No.
-------- ----- --------
Definitions 2
1 Term 3
2 Option 4
3 Use 4
4 Rent 4
5 Percentage Rent 4
6 Insurance 4
7 Utilities 5
8 Public Area Charges 5
9 Taxes 5
10 Additional Rent 6
11 Security Deposit 6
12 Interest 6
13 No Offset 7
14 Security Interest 7
15 Guaranty 7
16 Condition of Premises 7
17 Signs 7
18 Lessor Right to Cure Defaults 7
19 Notice 8
20 Holding Over 8
21 Compliance With Law 8
22 Assignment 8
23 Alterations 9
24 Mechanics1 Liens 9
25 Condemnation 10
26 Destruction of Premises 11
27 Estoppel Certificate 11
28 Indemnity 12
29 Right of Entry 12
30 Default 12
31 Subordination 14
32 Quiet Enjoyment 15
33 Entire Agreement 15
34 Miscellaneous 15
35 Force Majeure 16
36 Attornment and Non-Disturbance 16
37 Waiver of Subrogation 16
38 Environmental Matters 17
39 Pest Control 17
40 Trash Storage 17
Addendum No. 1
1
LEASE
This lease, executed this 16th day of March, 2007 and effective the 1st day
of January, 2007, by and between Xxxxx Holdings-Utah, LLC, a Minnesota limited
liability company ("Lessor"),and C Square Educational Enterprises, a Utah
corporation
("Tenant").
WITNESSETH THAT:
Lessor does hereby lease to Tenant, and Tenant does hereby take from Lessor that
certain building and appurtenances located at 000 Xxxx Xxxxxxxxx Xxxx, Xxxxxx,
Xxxx, (Leased Premises) all according to the following terms and conditions:
DEFINITIONS
A. Term: The term of this lease shall be for one hundred twenty (120)
months commencing January 1, 2007, and terminating December 31, 2016.
B. Options: Tenant shall have two option(s), each of which shall be sixty
(60) months in duration which for the purposes of this Lease shall be
known as the Option Terms.
C. Rent Commencement Date: Same as the commencement date of the Term (see
A, above) unless otherwise specified in the Addendum, if any.
D. Monthly Base Rent: $32,500.00 for each month from the Rent
Commencement Date through the 60th month of the Term. If the lease
should commence on any day other than the first day of a month or end
on any day other than the last day of a month, then Base Rent for said
partial month shall be $1,084 per day. See Addendum for additional
rental terms.
E. Percentage Rent: None.
F. Security Deposit: $32,500.00.
G. Tenant's Pro Rata Percentage Rate: 100%.
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H. Floor Area of Premises: 31,200 square feet.
I. Lease Year: January 1, through December 31 of each calendar year
during the term.
J. NOTICE: See Section 17.
K. UTILITIES: Natural gas, electricity, sewer, water, garbage disposal,
and any other charge for goods or services provided to the Leased
Premises by a governmental agency or by a private company whose rates
are governed by the Public Utilities Commission or Utah or its
successor.
L. TAXES: All taxes and levies--including special assessments for road,
street, sewer, utility and other local improvements--which are or may
be lawfully assessed or imposed upon all or any part of the Leased
Premises and/or the Building in which the Leased Premises is located
and the unimproved ground appurtenant thereto and also which are or
may be imposed upon the rents received, provided, however, that Taxes
shall not include any inheritance, estate, succession, transfer, gift,
franchise or income tax imposed upon Lessor.
M. BUILDING: The building located at 000 Xxxx Xxxxxxxxx Xxxx, Xxxxxx,
Xxxx, and all grounds appurtenant thereto under the ownership or
control of Lessor.
1 TERM: Tenant shall lease the Premises for the Term at the end of which
this Lease shall terminate without further rights to Tenant, subject to any
option rights which Tenant may have, if exercised. At the time of termination,
any structures and improvements constructed on the Leased Premises by Tenant, or
any item, thing or material attached to the Leased Premises, shall become the
property of the Lessor. Tenant shall, upon expiration of this lease, remove any
equipment and personal property except that which shall become the property of
Lessor, and in the event said personal property is not removed by Tenant, Lessor
may remove and store said personal property at Tenant's expense and if Tenant
does not claim the property and pay all removal and storage expenses within
thirty (30) days following termination of the lease, then Lessor may sell said
property without notice to Tenant and apply the proceeds thereof first to the
costs of said sale, then to costs of removal and storage, then to any sums owed
by Tenant to Lessor and any excess shall be delivered to Tenant.
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2 OPTION: Upon expiration of the Term, and provided Tenant has not been in
default as to any of the terms and conditions of this Lease during the Term,
Tenant shall have an Option or Options (as defined above) to extend the term of
this Lease. Each Option shall be exercised by Tenant giving Notice to Lessor not
less than six (6) months prior to the expiration of the Term or Option Term of
its intent to exercise the Option. If Tenant exercises any Option, the terms and
conditions of this Lease shall be applicable to each Option Term except as
modified in the Addendum hereto.
3. USE: Use of the Leased Premises shall be solely for the operation of a
school and ancillary uses related thereto. Tenant shall operate under the trade
name Utah Career College. Neither the use or trade name shall be changed nor the
use expanded without prior written approval of the Lessor.
4. RENT: Tenant shall pay to Lessor the Monthly Base Rent in advance on the
first day of each month during the Term or Option Term, if any. Payment of rent
for the first full month and any initial partial month shall be made by Tenant
at the time this Lease is executed. Acceptance of any partial payment of Monthly
Base Rent by Lessor shall not be deemed an accord and satisfaction or a waiver
of any rights hereunder as to the rents reserved but shall only be payment of a
partial month's rent based upon a daily rental equal to one-thirtieth (1/30) of
the Monthly Base Rent. Occupancy by Tenant of the Leased Premises on any day for
which rent has not been paid in advance shall be considered an event of default.
5. PERCENTAGE RENT: Intentionally Omitted.
6. INSURANCE: Tenant shall maintain upon the Leased Premises, at its sole
cost and expense, fire and extended coverage insurance, insuring against all
ordinary and common disasters, policies of insurance with coverage limits equal
to the full replacement value of the Leased Premises. From the commencement of
this Lease, and annually thereafter, Tenant shall provide to Lessor an insurance
binder showing the amount of coverage and showing that the annual premium
therefore has been paid in full. Lessor and American Bank of St. Xxxx, St. Xxxx,
Minnesota, shall be named as co-insureds and loss payees on said policy, and no
portion of any proceeds of said insurance shall be payable or paid to Tenant.
Tenant further agrees to purchase general public liability insurance
covering claims for personal injury, death, or property damage with limits of
not less than $1,000,000 in respect to bodily injury or death to one person, and
not less than $1,000,000 in respect to bodily injury to death arising out of one
occurrence, and $500,000 for property damage arising out of one occurrence.
Lessor and American Bank of St. Xxxx shall be named as co-insured on said
policies. Tenant shall further maintain policies of insurance covering Tenant's
personal property and fixtures situated on or about the Leased Premises for
their full replacement value. If required by law Tenant shall also maintain
workers compensation insurance and dram shop/liquor liability insurance.
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Tenant shall place such insurance with insurers legally authorized to do
business in the State of Utah and reasonably acceptable to Lessor. Tenant shall,
at the commencement of this Lease and annually thereafter, provide Lessor with
certificates of insurance on all of the above policies, showing Lessor and
Lessor's lender as an additional insured and clearly stating that said policies
may not be canceled by either Tenant or the insurance company unless Lessor is
first given 30 days advance notice of such cancellation. Should Tenant fail to
provide Lessor with adequate proof of insurance coverage within thirty (30) days
hereof and annually thereafter, Lessor may, but shall not be required to, obtain
said insurance at the sole expense of the Tenant. Any sum expended by Lessor for
said insurance shall be due and payable by Tenant to Lessor immediately upon
demand.
7. UTILITIES: Tenant shall pay on or before the due date any Utilities
provided to or serving the Leased Premises. Should Tenant fail to pay said
Utilities when due, Lessor shall have the option of paying said Utilities
directly to the utility vendor and any sum so expended by Lessor shall be
immediately due from Tenant to Lessor upon demand.
Lessor does not warrant that any of the utility services will be free of
interruption of service. Interruption of service shall never be deemed an
eviction or disturbance of Tenant's use and possession of the Leased Premises or
any part thereof or render Lessor liable under this Lease, unless such
interruption is caused by the neglect or willful misconduct of Lessor or
Lessor's agent.
8. PUBLIC AREA CHARGES: Tenant and its employees, customers, licensees and
invitees are entitled to use the public areas of the building and the Leased
Premises during the Term or Option Term, if any. Tenant shall keep the Public
Areas in a neat, clean and orderly condition and shall maintain and repair said
Public Areas at its sole cost and expense.
Should Tenant fail to maintain and/or repair said Public Areas Lessor may,
but shall not be required to, provide said maintenance and repair at Tenant's
sole cost and expense, and any sums expended by Lessor in so doing shall be
immediately due and payable by Tenant to Lessor upon demand.
9. TAXES/SPECIAL ASSESSMENTS: Tenant shall pay, during the Term or Option
Term, if any, of this Lease all of those Taxes imposed upon, connected with or
arising from the Leased Premises. Tenant shall also pay to Lessor the Special
Assessments levied against the Leased Premises. For any partial calendar year in
which Tenant occupies the Leased Premises the Taxes and Special Assessments
shall be prorated based upon the number of the days during the calendar year in
which Tenant occupies the Leased Premises. Tenant shall make the payment
required hereby by paying to Lessor, on the first day of each month during the
Term or Option Term, if any, together with Monthly Base Rent, one-twelfth (1/12)
of the annual Taxes and Special Assessments. The monthly payments shall be in an
amount reasonably estimated by Lessor with an adjustment made upon receipt by
Lessor of the annual Tax statement with the intent and purpose of
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assuring Lessor that it will have received, prior to the due date, an amount
sufficient to pay said Taxes and any installment of Special Assessments due
therewith.
Should any governmental authority impose a tax of any kind or nature upon
the Leased Premises or the Building, either by way of substitution for all or
any part of the present ad valorem real estate taxes, or in addition thereto,
then such tax shall be deemed to constitute a Tax for the purposes of this
Lease.
Tenant shall also pay all taxes which may be lawfully charged, assessed or
imposed upon all fixtures and equipment of every type and also upon all personal
property in the Leased Premises, and the Tenant shall pay all license fees and
other charges which may lawfully be imposed upon the business of the Tenant
conducted upon the Leased Premises.
10. ADDITIONAL RENT: All sums to be paid by Tenant to Lessor pursuant to
the terms of this Lease, including any sums which Lessor elects to expend on
behalf of Tenant in the event Tenant fails to fulfill its obligations under this
Lease in a timely fashion, shall be and hereby are deemed additional rent and
all remedies available to Lessor because of Tenant's failure to timely pay
Monthly Base Rent, including the right to dispossess Tenant of the Leased
Premises, shall be available to Lessor should Tenant fail to timely pay to
Lessor any additional rent.
11. SECURITY DEPOSIT: Upon execution of this Lease Tenant shall deposit
with Lessor the Security Deposit, as set forth in Definitions, Sec. F, which
deposit shall be held by Lessor without interest and shall be refunded to Tenant
within thirty (30) days of the expiration of this Lease providing that Tenant
has fulfilled all terms and conditions of the Lease. In the event that during
the term of this Lease Tenant shall fail to pay any amount owed to Lessor as and
when due, then Lessor may, but shall not be obligated to, apply all or any
portion of the Security Deposit toward such unpaid amount and thereafter Lessor
may demand that Tenant restore the Security Deposit to its original amount,
which amount will become additional rent due on the first day of the month
following the demand.
12. INTEREST: All sums owed by Tenant to Lessor, if not paid when due, will
accrue interest at the rate of 1%% per month, or the highest rate allowed by
law, whichever is less, from the due date until paid in full. In the event
Lessor gives written notice to Tenant of any sums which are past due, which
written notice will not be given earlier than ten (10) days after the due date,
then Tenant shall also pay to Lessor a service fee of $50.00 for each such
notice in addition to the amount due and accrued interest.
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13. NO OFFSET: Monthly Base Rent, Percentage Rent and all additional rent
shall be paid without offset or deduction of any nature whatsoever. Tenant
agrees that any claims against Lessor may be pursued only by an independent
action against Lessor and that Tenant shall have no right to withhold rent under
any circumstances.
14. SECURITY INTEREST: Tenant hereby grants to Lessor a security interest
in all personal property and fixtures located on the Demised Premises to secure
the payment of all sums due from Tenant to Lessor pursuant to this Lease. This
Lease shall serve as a security agreement in accordance with the terms of the
Uniform Commercial Code, Utah statutes, and Tenant agrees to execute a Financing
Statement to implement the terms of this section upon demand by Lessor. In the
event Tenant fails to execute said Financing Statement within two (2) business
days of said demand, then Lessor is appointed Tenant's attorney in fact to sign
such Financing Statement for and on behalf of Tenant.
15. GUARANTY: This Lease is personally guaranteed by Broadview Institute,
Inc., parent corporation of Tenant, in accordance with and upon the terms and
conditions set forth in that certain Guaranty attached hereto as Exhibit B.
16. CONDITION OF LEASED PREMISES: Tenant hereby accepts the Leased Premises
in an "as is" condition. Tenant shall maintain the structural and mechanical
condition of the Building, and shall maintain the Public Areas, at its sole cost
and expense. All work shall be performed by contractors approved by Lessor.
Tenant shall, at its own expense, keep the Leased Premises in neat and clean
condition free from rubbish and debris. Tenant shall commit no waste or misuse
thereof including wasteful use of Utilities. Tenant shall not overload
electrical circuitry, damage, or deface the Leased Premises or knowingly do any
act which may void or make voidable any insurance on the Leased Premises. Tenant
shall permit no condition to exist upon the Leased Premises which would
constitute a nuisance or a violation of any applicable law, ordinance, or
regulation, nor permit any illegal or unlawful acts to occur therein. Tenant
shall keep exits free of impediments.
17. SIGNS AND WINDOWS: Tenant shall obtain Lessor's written approval prior
to erecting any signs on the exterior of the Leased Premises and/or inside the
Leased Premises if said interior sign can be seen from the exterior of the
Leased Premises or from the exterior of the building in which the Leased
Premises is located. Tenant shall not cover any window or obstruct the view from
any window without first obtaining Lessor's written approval.
18. LESSOR'S RIGHT TO CURE DEFAULTS: If Tenant defaults in the observance
or performance of any of Tenant's covenants, agreements, or obligations
hereunder wherein the default can be cured by expenditure of money, Lessor may,
but without obligation and without limiting any other remedies which it may have
by reason of such default, after giving Tenant at least ten (10) days advance
notice of its intention to do so, cure the default, and charge the cost thereof,
including reasonable attorneys or other professional fees
7
to Tenant together with interest thereon at the rate of one and one-half percent
(15%) per month or the maximum rate allowed by law, whichever is less. Lessor
may deduct any sums so expended from the Security Deposit or demand immediate
payment from Tenant, or a combination of both. Nonpayment of Monthly Base Rent
shall not be subject to this clause.
19. NOTICE: A xxxx, statement, notice, or communication which Lessor
desires or is required to give to Tenant, including a notice of termination,
shall be deemed sufficiently given or rendered if in writing and sent by
registered or certified mail, return receipt requested, addressed to Tenant at
the Leased Premises. Any notice by Tenant to Lessor must also be served by
registered or certified mail, return receipt requested, addressed to Lessor at
0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000. Either party may
designate to the other in writing another place of notice. Any notice or
communication shall be deemed to have been given on the date that it is
deposited in the U.S. mails.
20. HOLDING OVER: Should Tenant continue to occupy the Leased Premises or
any part thereof after the expiration or termination of the Lease Term or Option
Term, if any, whether with or without the consent of Lessor, such tenancy shall
be deemed to be a tenancy from month to month only at a Monthly Base Rent of
twice the amount reserved herein and all other terms of this Lease shall
continue to apply to said tenancy.
21. COMPLIANCE WITH THE LAW, RULES AND REGULATIONS: Tenant, at its sole
expense, shall promptly comply with all laws, ordinances and requirements of the
federal, state, county and municipal authorities, and with any lawful order or
direction of any public officer relating to the Leased Premises or the use and
occupation of the Leased Premises during the Lease Term and Option Term, if any.
Tenant shall also comply with the Rules and Regulations promulgated by Lessor
from time to time. A copy of said Rules and Regulations as they exist as of the
date of this Lease are attached hereto as Exhibit X. Xxxxxx reserves the right
to change or issue new rules and regulations as necessary for the safe and
efficient operation of the Building.
22. ASSIGNMENT: Tenant may not assign or sublease any of its rights under
this Lease or any part of the Leased Premises or any interest in either thereof,
without prior written consent of Lessor, which Lessor may withhold at its sole
discretion. No such assignment or subleasing, even if consented to by Lessor,
shall relieve the Tenant from any of the Tenant's obligations in this Lease
contained nor shall any assignment or transfer of this Lease be effective unless
the assignee or sub lessee shall, at the time of such assignment or transfer,
assume in writing all the terms, covenants and conditions of this Lease
thereafter to be performed by the Tenant and shall agree in writing to be bound
thereby.
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23. ALTERATIONS: Tenant shall not make any alterations, additions or
changes in or on the Leased Premises unless it first receives the written
consent of the Lessor, which consent shall not be unreasonably withheld. All
such alterations, additions or changes shall be at the sole cost and expense of
Tenant. Consent shall not be deemed to be unreasonably withheld if the proposed
alteration, addition or change would endanger the Leased Premises or Building in
which the Leased Premises is located structurally or otherwise; would diminish
the value thereof; would not be in compliance with applicable laws and
ordinances or would violate the provisions of this Lease. Additionally, Lessor
may withhold such consent until Tenant has furnished Lessor with a payment and
performance bond with a surety satisfactory to Lessor guaranteeing the
completion of such alteration, addition or change and payment of all costs
thereof or with such other security for the payment of the costs thereof as may
be satisfactory to Lessor in its sole discretion. In the event Tenant desires to
make any alterations, additions or changes to the Leased Premises, plans and
specifications for such alterations, additions or changes shall be prepared and
submitted to Lessor for approval prior to any construction. All such
alterations, additions or changes shall be at the sole cost and expense of
Tenant, but shall immediately become the property of Lessor upon completion. Any
change orders, modifications in the original plans and specifications, work to
be performed, material to be used or any change in the amount to be expended for
any portion of the renovation and/or improvements shall first be approved by
Lessor.
Tenant shall give Lessor notice, at least fifteen (15) days prior to the
commencement of any work (or additional time as may be necessary under
applicable law) to afford Lessor the opportunity of posting and recording
appropriate notices of non-responsibility.
24. MECHANICS' LIENS: Tenant shall not suffer or permit any mechanics1
liens to be filed against the Leased Premises or any part thereof or against the
Building in which the Leased Premises is located by reason of work, labor,
services or materials supplied or claimed to have been supplied to the Tenant or
anyone holding the Premises or any part thereof through or under the Tenant. If
any such lien shall at any time be filed against the Premises, the Tenant shall
cause the same to be discharged of record within thirty (30) days after the date
of filing the same. If the Tenant shall fail to discharge such lien within such
period, then in addition to any other right or remedy it may have Lessor may,
but shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit in court
or by giving security or in such other manner as is, or may be, prescribed by
law. Any amount paid by the Lessor for any of the aforesaid purposes, shall be
repaid by the Tenant to the Lessor on demand, together with interest at the rate
of one and one-half percent (13%) per month or the maximum allowed by law,
whichever is less, until repaid. Any sum due to Lessor from Tenant hereunder
shall be treated as additional rent. Nothing herein contained shall imply any
consent or agreement on the part of the Lessor to subject the Lessor's estate to
liability under any mechanic's lien law.
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In lieu of discharging any such lien as provided above, Tenant may deposit
with Lessor a certificate of deposit issued by a bank or other security
acceptable to Lessor in its sole discretion, in an amount equal to one hundred
fifty percent (150%) of the sum of the amount claimed due on such lien, plus
attorney's fees, interest and other sums claimed due therewith. Tenant shall be
entitled to all dividends and interest accruing on said deposit. Tenant shall
diligently defend against any such lien claim. In the event that any such lien
shall be established by agreement between Tenant and the Lienor, or by legal
adjudication, Lessor shall be entitled to use so much of the deposit as is
necessary to pay off and discharge such lien, returning any excess to Tenant.
25. CONDEMNATION: If during the Lease Term or Option Term, if any, the
entire Leased Premises shall be taken as a result of the power of eminent
domain, condemnation proceedings or other like proceedings (hereinafter referred
to as the "Proceedings") this Lease and all right, title and interest of the
Tenant hereunder shall cease and come to an end on the date of taking of
possession pursuant to such Proceedings.
If, during the Lease Term or any Option Term a portion of but less than the
entire Leased Premises shall be taken by such Proceedings, this Lease shall,
upon taking of possession pursuant to the Proceedings, terminate as to the
portion of the Leased Premises so taken and the Lessor may terminate this Lease
as to the remainder of the Premises. Such termination as to the remainder of the
Premises shall be effected by a notice to Tenant in writing given not more than
sixty (60) days after the date of taking of possession pursuant to such
Proceedings, and shall specify a date not more than sixty (60) days after the
giving of such notice as the date of such termination. Upon the date specified
in such notice, the Lease Term or Option Term, as the case may be, and all
right, title and interest of Tenant hereunder shall cease and cone to an end and
Tenant shall have no further obligations under this Lease. If Lessor elects not
to terminate the Lease, said Lease shall continue in full force and effect but
the Monthly Base Rent, Breakpoint and Tenant's Pro Rata Percentage Rate shall be
equitably reduced.
Tenant shall not be entitled to any part of any award made in any
Proceedings on account of any taking of the Leased Premises or any part thereof
or of the building nor to any part of any payment made in connection with any
sale made under threat of condemnation. All such awards and payments shall
belong solely to Lessor and Tenant shall execute and deliver any assignments or
other instrument requested by Lessor for the purpose of confirming the same.
Tenant shall however, at all times be entitled maintain any action for and
recover any award for taking of its personal property, its moving expenses or
damage to its business. In the event Lessor elects not to terminate this Lease,
then Lessor shall repair, reconstruct or restore the remainder of the Leased
Premises to its condition immediately prior to such taking, provided, however,
that Lessor shall not be obligated to expend more for such repair,
reconstruction or restoration than the net amount of any funds received from
such condemnation.
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26. DESTRUCTION OF PREMISES: In the event that the Leased Premises, or any
portion thereof, or the Building in which the Leased Premises is located, is
damaged or destroyed by fire or other casualty covered by insurance maintained
as provided in this Lease, however, or by whomever caused, Lessor agrees to
repair, rebuild and restore the Leased Premises to the same good order and
condition as existed prior to damage or destruction. The foregoing or anything
else herein contained notwithstanding, in performing any such repair, rebuilding
or restoration, Lessor shall never be required to expend more than the insurance
proceeds available for such purposes. In the event the costs of any such repair,
restoration or rebuilding exceed the amount of insurance proceeds available from
policies of insurance maintained, and the damage or destruction was caused by
the willful or negligent act of Tenant or any person or entity for whose acts or
negligence Tenant was responsible, then Tenant shall pay the excess cost of such
repair, restoration or rebuilding. If such damage renders the entire Leased
Premises unfit for Tenant's normal business purposes, and the Tenant by reason
thereof discontinues business in the Leased Premises, then, provided that such
damage was not caused by the willful or negligent act of Tenant or any person or
entity for whose acts or negligence Tenant is responsible, Monthly Base Rent
payable by Tenant hereunder shall be abated for period during which Tenant is
unable to operate its business. If such damages renders only part of the Leased
Premises unfit for Tenant's normal business purposes, Monthly Base Rent shall be
apportioned on the ratio that the area rendered unfit bears to the entire area
of the Leased Premises and the proportion thereof applicable to each part of the
Leased Premises upon which Tenant discontinues its business operations shall be
abated for the period during which such part is not fit for Tenant's normal
business purposes and during which Tenant discontinues such business operations.
Notwithstanding any of the above to the contrary, Lessor may elect not to
rebuild the Leased Premises, in which event it shall notify Tenant within sixth
(60) days of said damage or destruction of its said intent and shall forthwith
terminate the Lease effective thirty (30) days following said notice, and
thereafter neither party shall have any obligation to the other as a result of
this Lease.
27. ESTOPPEL CERTIFICATE: Tenant agrees, at any time and from time to time
upon not less than twenty (20) days prior notice by Lessor, to execute,
acknowledge and deliver to Lessor or to any other person or entity requested by
Lessor, a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there shall have been modifications, that this
Lease is in full force and effect as modified and stating the modifications),
the date to which the rent has been paid in advance, if any, whether or not (to
the best knowledge of Tenant) Lessor is in default on the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such
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default of which Tenant may have knowledge, and such other or further
information as may be requested by any prospective purchaser or lender with
respect to the Leased Premises, it being intended that any such statement
delivered pursuant to this Section may be relied upon by any prospective
purchaser of the Leased Premises, assignee of Lessor's interest in this Lease or
any mortgagee of the Leased Premises or any assignee of any mortgage.
28. INDEMNITY: Tenant agrees to indemnify and save harmless Lessor from and
against any and all claims, liabilities, losses, damages, causes of action or
expenses (including without limitation reasonable attorney's fees) of whatsoever
kind of nature imposed on or incurred by or asserted against Lessor and in any
way relating to or arising out of: (a) the possession, use or condition of the
Leased Premises or any part thereof or any occurrence thereon; (b) the conduct
or management of or from any work or thing whatsoever done in or about the
Leased Premises; or (c) from any intentional or negligent act or omission of
Tenant or any person for whose acts or omissions Tenant is responsible.
29. RIGHT OF ENTRY: Lessor shall have the right, at all reasonable times,
to enter and inspect the Leased Premises and to perform any repairs which are
deemed by Lessor to be reasonably necessary for the protection and maintenance
of the Leased Premises if Tenant fails to make such repairs. Any sums expended
by Lessor in making any such repair will be due and payable to Lessor by Tenant
immediately upon demand by Lessor. During the last year of the Term or any
Option Term, Lessor may show the Leased Premises for rent and display any signs
it deems necessary therefore. Lessor shall have the right, at any time, to enter
the Leased Premises to show it to a prospective buyer or mortgagee.
30. DEFAULT: If, during the Lease Term or any Option Term, if exercised,
(a) the Tenant shall make an assignment for the benefit of creditors, or (b) a
voluntary or involuntary petition be filed by or against Tenant under the
Bankruptcy Act of the United States or any state or federal statute similar
thereto, and the same is not dismissed within sixty (60) days, or the Tenant be
adjudged insolvent or a bankrupt pursuant to an involuntary petition, or (c) a
receiver or trustee be appointed for the property of the Tenant or (d) any
department of the state or federal government, or any officer thereof duly
authorized, shall take possession of the business or property of the Tenant, or
(e) if, under the Bankruptcy Act, Tenant continues in possession without the
appointment of a receiver or trustee, then the occurrence of any such event
shall be deemed a breach of the Lease. This Lease shall ipso facto upon the
happening of any of said contingencies, be at the option of the Lessor,
terminated and the same shall expire as fully and completely as if the day of
the happening of such contingency were the date herein specifically fixed for
the expiration of the initial term or any renewal term, and the Lessee will then
quit and surrender the Leased Premises.
If the Tenant shall fail to pay when due any Monthly Base Rent, Percentage
Rent, additional rent or any other sum reserved to Lessor hereunder, or any part
of the same; or if Tenant shall fail to
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perform any non-monetary duty, obligation or requirement and such default shall
continue for fifteen (15) days after notice thereof by the Lessor, or, if such
non-monetary default is of a nature as to reasonably require more than fifteen
(15) days to cure and Tenant does not diligently pursue such cure; or if Lessor
shall commence more than two (2) Unlawful Detainer actions against Tenant during
the Term and/or Option Term because of defaults under this Lease, then any and
all of the same shall be an event of default. Upon the occurrence of an event of
default, the Lessor or the Lessor's agents and servants, in addition to any
other remedy or remedies available to Lessor at law, in equity or hereunder, may
immediately or at any time thereafter re-enter the Leased Premises and remove
all persons and all or any property there from either by summary dispossession
proceedings or by any suitable action or proceeding at law, and repossess and
enjoy said Leased Premises together with all additions, alterations and
improvements, and terminate this Lease and Tenant shall remain fully liable
hereunder for all rent and other payments and performances hereunder during the
balance of the Lease Term or any Option Term. In the event that the Lease Term
or any Option Term shall terminate as provided herein before the expiration date
originally fixed, or in the event Tenant is dispossessed or removed from the
Leased Premises by summary proceedings or otherwise (other than taking under
power of eminent domain), Lessor, at its option, may elect from time to time to
rent the Leased Premises or any part thereof in its own name, or for the account
of Tenant for the residue of the Lease Term or Option Term or for a longer
period of which said residue is a part, or for a shorter period or periods, at
such rentals and upon such terms as Lessor deems best, and may receive rents
therefore applying any monies collected for the residue of such term, first to
the payment of such reasonable expenses to which Lessor may have been put to
obtain possession and re-rent the Leased Premises and, second, the balance of
the net amount of the rents to. the performance of Tenant's obligations under
this Lease. In the event of a reletting of the Premises, Tenant agrees to pay
Lessor as damages for such breach (notwithstanding any entry or re-entry by
Lessor, whether by summary proceedings, termination or otherwise) any excess of
amounts payable as rent which under the terms of this Lease would become due if
this Lease had not been terminated, over the net amount of the rents which shall
be collected and received by Lessor as provided above for the Leased Premises
during the residue of such term. Such damages shall be paid in equal monthly
payments on the rent payment dates provided by the Lease as the amount of such
excess shall from time to time be ascertained.
No right or remedy herein conferred upon or reserved to Lessor is intended
to be exclusive of any rights or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given hereunder
whether now or hereafter existing at law or in equity or by statute.
The failure of the Lessor to insist in any one or more cases upon the
strict performance of any of the covenants of this Lease or to exercise any
option herein contained shall not be construed as a waiver or a relinquishment
for the future of such covenant or option. In addition to the other remedies in
this Lease provided, the Lessor shall be entitled to the restraint by injunction
of the
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violation, or attempted or threatened violation of the covenants, conditions or
provisions of this Lease.
Lessor shall be under no obligation to mitigate any damage suffered by it
as a result of Tenant's default. However, in the event Tenant cures any default
within the time specified above, this Lease shall be reinstated with the same
force and effect as if no default had occurred.
If Lessor or any of its officers, directors, trustees, beneficiaries,
agents, affiliates or employees shall be made a party to any litigation
commenced by or against Tenant and are not found to be at fault, Tenant shall
pay all costs, expenses and reasonable attorneys1 fees incurred by Lessor or any
such party in connection with such litigation. Tenant shall also pay all costs,
expenses and reasonable attorneys' fees that may be incurred by Lessor in
successfully enforcing this Lease.
If Lessor commences any detainer suit, summary proceedings or other action
seeking possession of the Leased Premises, Tenant agrees not to interpose by
consolidating actions, counterclaim, claim for set-off, recoupment or deduction
of rent, or other claim seeking affirmative relief of any kind (except a
mandatory or compulsory counterclaim which Tenant would forfeit if not so
interposed).
31. SUBORDINATION: This Lease shall at the option of Lessor either be
subject and subordinate or prior and superior to any mortgage that now or may
hereafter encumber the Leased Premises and to any renewal, modification,
consolidation, replacement, and extension of any such mortgage. Tenant shall
sign any instrument subordinating or acknowledging the priority of the interest
of Tenant under this Lease to the lien of such mortgage as Lessor or the
mortgagee may at any time desire, and Tenant shall duly comply with all of the
provisions of any mortgage affecting the Leased Premises, except the payment of
interest and principal thereunder, provided and on condition that the mortgagee
shall recognize the validity of this Lease and shall not interfere with Tenant's
occupancy and possession so long as Tenant is not in default of any of its
obligations hereunder. Tenant also agrees to execute a short form of this Lease
if so requested by Lessor. Any costs of recording said short form lease shall be
the responsibility of Lessor.
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32. QUIET ENJOYMENT: If Tenant pays the rents and other amounts herein
provided and observes and performs all covenants, terms and conditions, Tenant
shall peaceably and quietly hold and enjoy the Leased Premises for the Lease
Term and Option Term, if any, without interruption by Lessor or any person or
persons claiming by, through or under Lessor, subject, nevertheless, to the
terms and conditions of this Lease.
At the termination of this Lease, by lapse of time or otherwise, Tenant
shall return the Leased Premises in as good condition as when Tenant took
possession except only ordinary wear and tear and damage or destruction.
33. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
parties, and there are no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise, of any kind whatsoever. Any
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of this Lease in whole or in part unless such agreement is
in writing and signed by the party against whom. enforcement of the change,
modification, discharge or abandonment is sought.
34. MISCELLANEOUS: The headings incorporated in this Lease are for
convenience in reference only and are not a part of this Lease and do not in any
way limit or add to the terms and provisions hereof.
Nothing contained in this Lease shall be deemed or construed as creating a
partnership or joint venture between Lessor and Tenant or between Lessor and any
other party, or cause Lessor to be in any way responsible for the debts or
obligations of Tenant or anyone occupying all or part of the Premises.
It is understood that there are no oral agreements between the parties
hereto, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties hereto.
Any fee due or allegedly due any broker or agent shall be paid by the party
who initially retained said broker or agent unless agreed to otherwise in
writing signed by all parties hereto.
Tenant hereby expressly waives any and all rights of redemption granted by
or under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause.
All of the covenants, conditions and agreements herein contained shall
extend to, be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
Lessor and Tenant both agree and acknowledge that they have read this Lease
and reviewed it with their respective legal counsel and, as such, there shall be
no presumption of construction for or against either party.
Any utilities, insurance, common area charges, real estate taxes, special
assessments or other additional rent (as defined in paragraph 10 hereof), if
paid by Tenant to Lessor on an estimated basis, shall be adjusted to determine
Tenant's actual share thereof for the preceding calendar year within sixty (60)
days of the end of such calendar year. If Tenant has paid more than its share,
said excess shall be credited against the next payments due Lessor hereunder
except in the last year of the Lease in which case said
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excess shall be refunded to Tenant within said sixty (60) day period. In the
event Tenant has paid less than its share, it shall be the balance due to Lessor
within ten (10)days of receipt of notice of said deficiency.
35. FORCE MAJEURE: Whenever a day is appointed herein on which, or a period
of time is appointed within which, either party hereto is required to do or
complete any act, matter or thing, the time shall be extended by a period of
time equal to the number of days on or during which such party is prevented
from, or is unreasonably interfered with, the doing or completion of such act,
matter or thing because of strikes, lock-outs, embargoes, unavailability of
labor or materials, wars, insurrections, rebellions, declaration of national
emergencies, acts of God, or other causes beyond such party's reasonable control
(financial inability excepted); provided, however, nothing contained in this
Article shall excuse Tenant from the prompt payment of any rent or other charge
required hereunder except as may be expressly provided elsewhere in this Lease.
36. ATTORNMENT AND NON-DISTURBANCE: If the Leased Premises is encumbered by
a mortgage and the mortgage is foreclosed, or if the Leased Premises is sold
pursuant to foreclosure or by reason of a default under a mortgage, the
following shall apply notwithstanding the foreclosure, the sale or the default:
(a) Tenant shall not disaffirm this Lease or any of its obligations under this
Lease; and (b) at the request of the applicable mortgagee or purchaser at the
foreclosure sale, Tenant shall attorn to the mortgagee or purchaser, provided
that such mortgagee or purchaser agree not to terminate this Lease so long as
Tenant shall continue to perform all of its obligations hereunder and pay all
amounts due.
37. WAIVER OF SUBROGATION: Lessor and Tenant hereby release each other from
all claims, liability or responsibility for loss or damage to property covered
by valid and collectible insurance. This release applies not only to liability
and responsibility of the parties to each other, but shall also extend to
liability and responsibility for anyone claiming through or under the parties by
way of subrogation or otherwise. This release shall not apply to loss or damage
unless the loss or damage occurs during the times the fire or extended coverage
insurance policy contains a clause or endorsement to the effect that any release
shall not adversely affect or impair the policies or prejudice the right of the
party to recover hereunder. The parties hereto agree that any policies covering
the Leased Premises or its contents shall include this clause or endorsement.
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38. ENVIRONMENTAL MATTERS: Tenant agrees that it will not transport, store,
use, generate, treat and/or dispose of any toxic or hazardous substances in or
on the Leased Premises or the Building. Tenant will immediately comply with all
environmental laws, rules, regulations or ordinances, and will promptly notify
Lessor in connection therewith of any enforcement, cleanup or other regulatory
action taken or threatened by any governmental or regulatory authority; and
demands or claims made or threatened by any party relating to any loss or
injury; any release, discharge or nonroutine, improper or unlawful disposal or
transportation of any toxic of hazardous substances on or from the Leased
Premises or Building.
Tenant will absolutely indemnify, defend and hold Lessor harmless from any
loss, damage, cost, expense (including attorney fees) arising out of or in any
manner related to any toxic or hazardous substance, or any environmental law,
rule, regulation or ordinance.
For the purposes of this lease the term "toxic or hazardous substances"
shall mean any chemical, substance, material or waste or component thereof which
is now or hereafter listed, defined or regulated as a hazardous or toxic
chemical, substance, material or waste or component thereof by any federal,
state or local governing or regulatory body have jurisdiction, or which would
trigger any employee or community "right-to-know" requirements adopted by any
such body, or for which any such body has adopted any requirements for the
preparation of any material safety data sheet or the like.
Tenant shall immediately comply with all recycling, sanitation and/or
health laws, ordinances, rules and regulations imposed by any federal, state or
local governing or regulatory body or by Lessor in fulfillment of any such law,
ordinance, rule or regulation.
39. PEST CONTROL: Tenant shall use, at Tenant's sole cost and expense, such
pest and rodent extermination contractor as Lessor may direct and at such
intervals as Lessor may require.
40. TRASH STORAGE: All garbage, refuse, trash and other waste shall be kept
in the kind of contained, placed in the areas, and prepared for collection in
the manner reasonably required by Lessor, subject to applicable laws, statutes,
ordinances, rules and regulations. If Lessor designates a service to pick up
such items, Tenant shall use the same. All expenses related to garbage, refuse,
trash or waste storage and/or removal shall be paid by Tenant.
IN WITNESS WHEREOF, the parties have executed this Lease the day and year
first above written.
TENANT: C Square Educational LESSOR: Xxxxx Holdings-Utah, LLC
Enterprises
BY: /s/ H. Xxxxxxx Xxxxx BY: /s/ Xxxxxxx X. XxXxxxxx
--------------------------------- ------------------------------------
Its: Chief Financial Officer Its: Manager
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