SUB-SUBLEASE AGREEMENT
This
Sub-sublease Agreement ("Sublease"), dated March
..10, 2005 (the 'Execution Date"), I s entered into by and between CADENCE
DESIGN SYSTEMS, INC. a Delaware corporation ("Sublandlord"), and SECUREALERT,
INC., a Utah corporation ("Subtenant") .
|
1.
|
BASIC
SUBLEASE PROVISIONS
|
|
|
1 .1
|
Premises: The Premises
under this Sublease consist of approximately 7,458 rentable square feat
located on the fourth (4 0) floor of the building located ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇ "Building") in the City of ▇▇▇▇▇, State of Utah. The
Premises demised hereunder are a portion of those certain premises
("Master Premises') containing approximately 42,900 rentable square feet
which are demised pursuant to the Master Lease. The Premises ere depicted
on Exhibit A to this Sublease.
|
|
|
1 .2
|
Overlandlord: Workers
Compensation Fund of Utah, its successor and/or assigns, the owner of the
Building.
|
|
|
1 .3
|
Master Landlord: Credit
Suisse First Boston Group, successors-in-interest to ▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇ Securities Corporation, a Delaware
corporation.
|
|
|
1 .4
|
▇▇▇▇▇▇▇▇▇: Lease dated
April 4, 2000 entered Into by Masterlandlord and Overlandlord
.
|
|
|
1 .5
|
Master Lease: Sublease
dated May 29, 2002 entered into by Sublandlord, as tenant, and Master
Landlord, as landlord, a copy of which is attached hereto as Exhibit
B.
|
|
|
1 .6
|
Term: Forty Four (44)
months, beginning on the Commencement Date and ending on the Expiration
Date unless terminated earlier in accordance with the terms and conditions
of this Sublease .
|
|
|
1 .7
|
Commencement Date: Upon
the later of (i) delivery of possession of the Premises with all tenant
improvements completed to the reasonable satisfaction of Subtenant or (ii)
April 1, 2005.
|
|
|
1 .8
|
Expiration Date:
November 29, 2008.
|
|
|
1 .9
|
Base Rent: As set forth
in Section 4 .2.
|
|
1 .10
|
Base Year:
2006
|
|
1 .11
|
Subtenant's Share of Master
Premises: 17.38 %
|
|
1 .12
|
Subtenant's Use: General
business office use and no other
use.
|
|
|
1
.13
|
Subtenant's
Address:
|
|
Prior
to the Commencement Date:
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ 8412 0
|
|||
|
Attn:
▇▇▇▇ ▇▇▇▇▇
|
|||
|
After
the Commencement Date:
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|||
|
▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
|
|||
|
ATTN:
▇▇▇▇ ▇▇▇▇▇
|
|||
|
Sublandlord's
Address:
|
Cadence
Design Systems, Inc.
|
||
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
|
|||
|
▇▇▇▇▇
▇▇▇
|
|||
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
ATTN:
▇▇▇▇ ▇▇▇▇▇, Director,
|
|||
|
Business
Development
|
|||
|
With
copy of all notices to:
|
Cadence
Design Systems, Inc
|
||
|
c/o
Staubach Global Services
|
|||
|
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|||
|
▇▇▇▇▇▇▇,
▇▇ 7500 1
|
|||
|
ATTN:
Cadence Real Estate
|
|||
|
Administration
|
|||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|||
|
TAX
ID#: ▇▇-▇▇▇▇▇▇▇
|
|||
|
Tenant
Rep: ▇▇▇▇ ▇▇▇▇▇
|
|||
|
With
copy of all default notices to:
|
▇▇▇▇
▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|||
|
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|||
|
ATTN:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
|
|
1 .14
|
Security Deposit. Three
months rent, ($33,505
.05).
|
|
1 .15
|
Brokers: For
Sublandlord: Prime Commercial,
Inc.
|
|
|
For Subtenant: Commerce
CRG
|
|
1 .16
|
Definitions: Each of the
terms in the Basic Sublease Provisions are used in this Sublease as
defined terms and have the meanings given in such sections. Other
capitalized words and phrases for which no definition is given in this
Sublease shall have the meanings given them in the Master Lease. Unless
otherwise indicated, all section references are to the sections of this
Sublease.
|
| 2. |
|
DEMISE OF PREMISES
|
|
|
2.1
|
Sublandlord
hereby subleases the Premises to Subtenant, and Subtenant hereby subleases
the Premises from Sublandlord, on and subject to the terms and conditions
of this Sublease.
|
|
|
2.2
|
Sublandlord
reserves the right, on reasonable prior notice, to inspect the Premises,
or to exhibit the Premises to persons having a legitimate interest at any
time during the Term.
|
|
3.
|
TERM
|
|
|
3.1
|
The
Term shall commence on the Commencement Date and end upon the Expiration
Date.
|
|
|
3.2
|
If
for any reason Sublandlord cannot deliver possession of the Premises to
Subtenant by the estimated Commencement Date, (i) Sublandlord shall not be
liable therefore, unless Sublandlord has failed to exercise commercially
reasonable efforts to deliver possession with all tenant improvements
completed by that date, but (ii) Subtenant shall have the right and option
to terminate this Sublease without any liability
whatsoever.
|
|
|
3.3
|
Notwithstanding
any other provision of this Sublease or the Master Lease, this Sublease
may be terminated prior to the Expiration Date by either party if the
Master Lease is terminated for any cause whatsoever and Master Landlord
does not require Subtenant to
attorn.
|
|
|
3.4
|
Upon
consent of this Sublease by Master Landlord, Sublandlord agrees to allow
Subtenant, its employees, agents, consultants and contractors to have
access and early entry to the Premises, fifteen (15) business days prior
to the Commencement Date ("Early Entry Period") on reasonable prior
written notice, to allow Subtenant to carry out improvements and
installation of Subtenant's furniture, fixtures and equipment thereof as
in the reasonable opinion of Subtenant is required to ready the Premises
for occupancy; provided, however, such Early Entry Period shall
immediately cease on notice from Sublandlord where Subtenant's early entry
in the opinion of Sublandlord may delay the completion of the Subtenant
Improvements (defined in Section 18 .8) . Subtenant, its employees,
agents, consultants and contractors shall take all reasonable and
necessary safety and security precautions in connection with the carrying
out of the installation of furniture, fixtures and equipment and shall
obtain all required governmental permits and pay all governmental fees and
charges associated with such work. Subtenant shall indemnify, defend and
hold Sublandlord and Master Landlord and all Sublandlord's employees,
successors and/or assigns (collectively, the "Indemnities") harmless from
and against any and all costs, demands, claims, liabilities, violations,
losses or damages which any of the Indemnities, individually or
collectively, may at any time hereafter suffer or sustain arising or in
any way related to Subtenant's accessing and entering the Premises and
carrying out installation of furniture, fixtures and equipment in, on or
to the Premises prior to the Commencement Date of this
Sublease.
|
|
4.
|
RENT
|
|
|
4.1
|
The
consideration payable by Subtenant for the Premises shall consist of the
Base Rent under Section 4 .2, Additional Rent under Section 4 .3 and the
Other Charges under Section 4.5. Base Rent, Additional Rent and Other
Charges are collectively referred to as "Rent" Subtenant's covenant to pay
Rent shall be independent of every other covenant in this Sublease
.
|
|
|
4.2
|
Beginning
on the Commencement Date and continuing thereafter on the first day of
each month during the Term, Subtenant shall pay to Sublandlord in advance,
and without notice, demand, deduction or offset, the following monthly
Base Rent.
|
|
Months
|
1
|
through
|
12:
|
$11,168.36
|
per
month
|
($17
.97/RSF/annum)
|
|
Months
|
13
|
through
|
24:
|
$11,479.10
|
per
month
|
(518
.47/RSF/annum)
|
|
Months
|
25
|
through
|
36:
|
$11,789.85
|
per
month
|
($18.97/RSF/annum)
|
|
Months
|
37
|
through
|
44:
|
$12,100.60
|
per
month
|
($19.47/RSF/annum)
|
Base Rent
for any partial month will be prorated, based on a thirty (30) day month.
Subtenant shall pay the first full month's Rent on the Execution Date, and if
the Commencement Date is not the first day of the month, then Subtenant shall
pay the prorated Rent for the first partial month on the Commencement
Date.
|
|
4.3
|
Subtenant
shall pay to Sublandlord, as additional rent ('Additional Rent") an amount
equal to Subtenant's Share of the Pass Through Cost Increases (defined
below) in accordance with this Section 4 .3 and Section 4 .4. 'Pass
Through Costs' means the amounts paid by Sublandlord to reimburse Master
Landlord for taxes, insurance, operating expenses, common area maintenance
charges, management fees, capital expenditures for required repairs or
Improvements, and/or other expenses incurred by Master Landlord in
connection with the Building or the Master Landlord's Project. Pass
Through Cost Increases" means the difference between the Pass Through
Costs paid by Sublandlord during the Base Year (defined in Section 1.10
above) and the Pass Through Costs payable by Sublandlord during a
particular year following the Base Year (each such year shall be a
'Comparison Year"). For purposes of calculating Additional Rent,
Sublandlord shall be entitled to rely conclusively on Master Landlord's
determination of estimated and actual Pass Through
Costs.
|
|
|
4.4
|
Beginning
on January 1st of the first Comparison Year, and on the first day of
January of each subsequent Comparison Year during the Term, or as soon
thereafter as is practicable, Sublandlord shall furnish Subtenant with a
statement ("Sublandlord's Estimate") setting forth Sublandlord's estimate
of the Pass Through Cost Increases for that Comparison Year. On the first
day of each calendar month during each Comparison Year, Subtenant shall
pay to Sublandlord one-twelfth (1/12th) of Subtenant's Share of the Pass
Through Cost Increases, as estimated In Sublandlord's Estimate. On or
about the first day of March of each Comparison Year after the first
Comparison Year during the Term, or as soon thereafter as is reasonably
practicable, Sublandlord shall furnish Subtenant with a statement of the
actual Pass Through Costs Increases for the preceding Comparison Year,
reconciling the actual amounts paid pursuant to Sublandlord's Estimate and
the actual amounts payable hereunder ("Actual Pass Through Cost Increases
Statement"). Within thirty (30) days after Sublandlord's giving of such
Actual Pass Through Cost Increases Statement, Subtenant shall make a lump
sum payment to Sublandlord in the amount, if any, by which the actual
Subtenant's Share of Pass Through Cost Increases for such preceding
Comparison Year as shown on the Actual Pass Through Cost Increases
Statement, exceeds the aggregate of the monthly Installments of the
estimated Subtenant's Share of Pass Through Cost Increases paid during
such preceding Comparison Year. If Subtenant's Share of Pass Through Cost
Increases, as shown on Sublandlord's Actual Pass Through Cost Increases
Statement, is less than the aggregate of the monthly installments of
Subtenant's Share of Pass Through Cost Increases actually paid by
Subtenant during such preceding Comparison Year, then Sublandlord shall
apply such amount to the next accruing monthly installment(s) of
Subtenant's Share of Pass Through Cost Increases due from Subtenant until
fully credited to Subtenant; provided, however, that if no Rent is due,
then Sublandlord shall refund such amounts to Subtenant. If the Term ends
on a date other than the last day of December, the actual Pass Through
Cost Increases for the year in which the Expiration Date occurs,
Subtenant's Share of Pass Through Cost Increases for such year shall be
represented by a fraction, the numerator of which shall be the number of
days during such fractional year falling within the Term, and the
denominator of which is 360. The provisions of this Section 4.3 shall
survive the Expiration Date or any sooner termination provided for in this
Sublease.
|
|
|
4.5
|
Notwithstanding
any other provision of this Sublease, it is acknowledged and agreed that
this is a 'full service' Sublease and that Subtenant shall have no
obligation to pay any other fees, charges or other sums, if any, due under
the Master Lease (collectively, 'Other Charges"). Utility consumption
costs, including without limitation, electric and other charges incurred
in connection with lighting, and providing electrical power and heating,
ventilating and air conditioning service to the Premises are included in
the Rent, and Sublandlord shall be responsible for paying all such costs
and other charges before delinquency. Without limiting the generality of
the foregoing, it is specifically understood and agreed that Subtenant
shall be responsible for: (a) Intentionally Omitted; (b) services or
benefits supplied to the Premises at Subtenant's request for which Master
Landlord Imposes a fee or charge separate from the Master Lease Pass
Through Costs; or (c) any rental tax applicable to the Premises and taxes
applicable to the Subtenant's Property (defined In Section 11.4).
Subtenant shall not be responsible for heating, ventilating or air
conditioning, electrical or, Building UPS backup system service supplied
to the premises.
|
|
|
4.6
|
All
Rent shall be paid to Sublandlord, or to such other person or such other
place as Sublandlord may from time to time designate in writing. If any
Rent is not paid when due, Subtenant shall pay a late charge to
Sublandlord equal to the greater o f (a) ten percent (10%) of the
delinquent amount or (b) all interest and late charges as Sublandlord
would sustain under the Master Lease in the case of delinquent payment of
any rent due under the Master Lease. Notwithstanding any other provision
of this Sublease, Subtenant shall have no other obligation to Sublandlord
for damages or liabilities suffered or incurred by Sublandlord as a result
of any late payment of Rent, including but not limited to damages or
liabilities arising out of Sublandlord's failure to pay rent when due
under the Master Lease. Neither demand for, nor receipt of, any late
charge called for under this Sublease shall (i) operate to waive any
default by Subtenant or provide a substitute for Subtenant's full and
timely performance of the obligation to pay Rent, or (ii) limit the
exercise of any other right or remedy Sublandlord may have under this
Sublease in case of Subtenant's
Default.
|
|
|
4.7
|
In
the event of any casualty or condemnation affecting the Premises, Rent
payable by Subtenant shall be proportionately abated, but only as to the
portion of the Premises damaged or taken; and only to the extent that any
amounts payable by Sublandlord under the Master Lease (the 'Master Lease
Rent") is abated or reduced with
respect to the Premises.
|
|
5.
|
POSSESSION
AND USE
|
|
|
5.1
|
Sublandlord
subleases the Premises to Subtenant strictly in their present "as-is" and
“with all faults" condition subject to Sublandlord performing the work
described in Exhibit C attached hereto and incorporated herein. Subtenant,
by acceptance of possession of the Premises, conclusively acknowledges the
Premises to be in good order and repair and in a tenantable
condition.
|
|
|
5.2
|
The
Premises shall be used and occupied solely for Subtenant's Use as
specified in the Basic Sublease Provisions Section 1.12. Subtenant shall
not use or suffer or permit the Premises to be used for any other purpose
except with Master Landlord's and Sublandlord's discretionary
consent.
|
|
6.
|
SUBTENANT'S
UTILITY, MAINTENANCE AND REPAIR
OBLIGATIONS
|
|
|
6.1
|
Subtenant
shall be responsible for and shall pay before delinquency for all
maintenance, repairs and replacements to the Premises and its equipment,
to the extent Sublandlord is obligated to perform the same with respect to
the Master Premises under the Master Lease. This Section shall not be
construed to require Subtenant to reimburse Sublandlord for any expenses
incurred by Sublandlord with respect to the Premises, and Sublandlord
agrees that it will not incur any such expenses without Subtenant's prior
written consent.
|
|
|
6.2
|
Subtenant
shall comply with all laws and ordinances, and all orders, rules and
regulations of all governmental authorities and of all insurance bodies
and their fire prevention engineers at any time in force, applicable to
the Premises or to Subtenant's particular use or manner of use thereof, to
the extent Sublandlord is obligated to perform the same with respect to
the Master Premises under the Master
Lease.
|
|
|
6.3
|
Subtenant
shall protect, defend, indemnify and hold Sublandlord harmless from all
liability, loss, cost, damage, liens, costs or expenses imposed on
Sublandlord or which Sublandlord may sustain or incur from Subtenant's
failure to perform its obligations under this Article
6.
|
|
7.
|
SUBTENANT'S
INSURANCE AND INDEMNITY
|
|
|
7.1
|
Throughout
the Term, Subtenant shall procure and maintain, at its own cost and
expense, such commercial general liability insurance as is required to be
carried by Sublandlord under the Master Lease, naming Sublandlord and
Master Landlord, as an additional insured in the manner required therein,
and such property insurance as is required to be carried by Sublandlord
under the Master Lease to the extent such property insurance pertains to
the Premises. If the Master Lease requires Sublandlord to insure leasehold
improvements or alterations, then Subtenant shall insure such leasehold
improvements which are located in the Premises, as well as alterations in
the Premises made by Subtenant. Subtenant shall furnish to Sublandlord a
certificate of Subtenant's insurance required under this Section 7.1 ten
(10) days before the Commencement Date, whichever is
earlier.
|
|
|
7.2
|
Subtenant
waives claims against Sublandlord for damage to property owned by
Subtenant where such damage is covered under any policy of property damage
insurance maintained (or required by this Sublease to be maintained) by
Subtenant. Subtenant hereby waives claims against Master Landlord and
Sublandlord for death, injury, loss or damage of every kind and nature, if
and to the extent that Sublandlord waives or releases such claims against
Master Landlord under the Master Lease. Subtenant agrees to obtain, for
the benefit of Master Landlord and Sublandlord, such waivers of
subrogation rights from its insurer as are required of Sublandlord under
the Master Lease.
|
|
|
7.3
|
Subtenant
agrees to protect, defend, indemnify and hold Sublandlord harmless from
all losses, damages, liabilities and expenses which Sublandlord may incur,
or for which Sublandlord may be liable to Master Landlord, arising from
the acts or omissions of Subtenant, or any events occurring in or about
the Premises during the Term, which are the subject matter of any
indemnity or hold harmless of Sublandlord to Master Landlord under the
Master Lease; provided, that Sublandlord gives prompt notice of any claim
asserted formally or informally by the Master Landlord for such indemnity
or hold harmless and affords Subtenant complete control over the
negotiation and/or compromise of the obligation; provided, further that
Subtenant shall have no obligation under this Section 7.3 for any
obligations of Sublandlord to Master Landlord arising out of or related to
Sublandlord's own acts or omissions or arising out of agreements between
Master Landlord and Sublandlord other than the Master Lease itself.
Subtenant's obligations to protect, defend, indemnify and hold harmless
Sublandlord under this Section 7.3 are in no way conditioned upon either
(a) Subtenant's acts or omissions being a cause of any underlying claim,
demand, action, loss or damage, or (b) Sublandlord being free of
negligence or wrongful conduct in connection therewith; provided, however,
that Subtenant shall not be required to indemnify or hold Sublandlord
harmless for any indemnity or hold harmless to the extent it is caused by
Sublandlord's negligence or willful misconduct
..
|
|
8.
|
ASSIGNMENT
OR SUBLETTING
|
|
|
8.1
|
Except
with the prior written consent of Master Landlord and Sublandlord,
Subtenant shall not (a) assign, convey or mortgage this Sublease or any
interest under it; (b) allow any transfer thereof or any lien upon
Subtenant's interest by operation of law; (c) further sublet the Premises
or any part thereof or (d) permit the occupancy of the Premises or any
part thereof by anyone other than Subtenant. Sublandlord may withhold
consent to an assignment or a further sublease of all or any part of the
Premises in Sublandlord's sole discretion. If Sublandlord consents to any
assignment of this Sublease or further subletting of the Premises,
Sublandlord shall use reasonable efforts to obtain the consent of Master
Landlord. All costs of obtaining Master Landlord's consent to any
assignment or sublease shall be borne by Subtenant, including but not
limited to Sublandlord's reasonable attorneys fees, and Master Landlord's
fees charged to Sublandlord.
|
|
|
8.2
|
No
permitted assignment shall be effective and no permitted sublease shall
commence unless and until any default by Subtenant hereunder has been
cured. No permitted assignment or subletting shall relieve Subtenant from
Subtenant's obligations and agreements under this Sublease and Subtenant
shall continue to be liable as a principal and not as a guarantor or
surety, to the same extent as though no assignment or subletting had been
made.
|
|
9.
|
ALTERATIONS
|
|
|
9.1
|
Subtenant
shall not make any alterations in or additions to the Premises (
"Alterations") if to do so would constitute a default under the Master
Lease (without regard to any requirement of notice or cure period) . If
Subtenant's proposed Alterations would not constitute a default under the
Master Lease, Sublandlord's consent thereto shall nonetheless be required,
but this Sublease shall be deemed approval of all Alterations contemplated
for the initial build out of the Premises prior to the Commencement Date.
Sublandlord's consent to such Alterations shall be within Sublandlord's
sole discretion. If Alterations by Subtenant are permitted or consented
to, Subtenant shall comply with all of the covenants of Sublandlord
contained in the Master Lease pertaining to the performance of such
Alterations. In addition, Subtenant shall indemnify, defend and hold
harmless Sublandlord against liability, loss, cost, damage, liens and
expense imposed on Sublandlord arising out of the performance of
Alterations by Subtenant.
|
|
|
9.2
|
Any
permitted Alterations shall be made at Subtenant's sole cost and expense,
including any cost to comply with applicable laws and regulations and any
management or supervision fee charged by Master Landlord, and removal at
the end of the term of this
Sublease.
|
|
10.
|
CASUALTY
OR EMINENT DOMAIN
|
|
|
10.1
|
In
the event of a fire or other casualty affecting the Building or the
Premises, or of a taking of all or a part of the Building or the Premises
under the power of eminent domain, Sublandlord shall be entitled to
exercise any right it may have to terminate the Master Lease without first
obtaining the consent or approval of
Subtenant.
|
|
|
10.2
|
If
the Master Lease imposes on Sublandlord the obligation to repair or
restore leasehold improvements or alterations within the Master Premises,
Subtenant
shall be responsible for repair or restoration of leasehold improvements
or alterations within the
Premises.
|
|
11.
|
SURRENDER
|
|
11
.1
|
On
the Expiration Date, or upon the earlier termination of the Sublease or of
Subtenant's right to possession of the Premises, Subtenant will at once
surrender and deliver up the Premises, together with all improvements
thereon, to Sublandlord in good condition and repair, reasonable wear and
tear excepted; conditions existing because of Subtenant's failure to
perform maintenance, repairs or replacements as required of Subtenant
under this Sublease shall not be deemed "reasonable wear and tear;"
conditions existing because of Master Landlord's or Sublandord's failure
to perform maintenance, repairs, or replacements as required under this
Sublease or the Master Lease shall not be the responsibility of Subtenant
under this Section 11.1. Said improvements shall include all plumbing,
lighting, electrical, heating, cooling and ventilating fixtures and
equipment, but Subtenant shall not be responsible for the condition of
such improvements upon termination except to the extent Subtenant is
responsible for maintenance in the Master Lease. Subtenant shall surrender
to Sublandlord all keys to the Premises and make known to Sublandlord the
combination of all combination locks which Subtenant is permitted to leave
on the Premises.
|
|
|
11.2
|
If
Subtenant performs any Alterations after the initial build out, Subtenant
shall be obligated to remove such Alterations arid restore the Premises to
the condition existing on the Commencement Date (or on such earlier date
as Subtenant first entered the Premises). All Alterations permitted to
remain by Sublandlord's written consent at the end of the term in or upon
the Premises made by Subtenant shall become a pan of and shall remain upon
the Premises upon such termination without compensation, allowance or
credit to Subtenant. Said right shall be exercisable by Sublandlord's
giving written notice thereof to Subtenant not less than twenty (20) days
prior to such Expiration Date or more than twenty (20) days after any
earlier termination. Subtenant shall repair any damage occasioned by such
removal or restoration. If Sublandlord or Master Landlord requires removal
of any Alteration made by Subtenant, or a portion thereof, and Subtenant
does not make such removal in accordance with this Section, Sublandlord
may remove the same (and repair any damage occasioned thereby), and
dispose thereof, or at its election, warehouse the same. Subtenant shall
pay the costs of such removal, repair and warehousing on
demand.
|
|
|
11.3
|
As
between Sublandlord and Subtenant, Subtenant shall not be required to
remove any alterations performed by Sublandlord prior to the Commencement
Date or to restore the Premises to their condition prior to Sublandlord's
making of such alterations.
|
|
11
.4
|
On
the Expiration Date, or upon the earlier termination of the Sublease or of
Subtenant's right to possession of the Premises, Subtenant shall remove
Subtenant's articles of personal property and fixtures incident to
Subtenant's business ("Subtenant's Property"); provided, however that
Subtenant shall repair any injury or damage to the Premises which may
result from such removal, and shall restore the Premises to the same
condition as prior to the installation thereof. If Subtenant does not
remove Subtenant's Property from the Premises on or before the Expiration
Date or the earlier termination of this Sublease, Sublandlord may, at its
option, remove the same (and repair any damage occasioned thereby and
restore the Premises as aforesaid) and dispose thereof or warehouse the
same, and Subtenant shall pay the cost of such removal, repair,
restoration or warehousing to Sublandlord on demand, or Sublandlord may
treat said Subtenant's Property as having been conveyed to Sublandlord
with this Sublease acting as a ▇▇▇▇ of sale therefore, without further
payment or credit by Sublandlord to
Subtenant.
|
|
12.
|
HOLDING
OVER
|
|
12.1
|
Subtenant
has no right to occupy the Premises or any portion thereof after the
Expiration Date or after the termination of this Sublease or of
Subtenant's right to possession hereunder. In the event Subtenant or any
party claiming by, through or under Subtenant holds over, Sublandlord may
exercise any and all remedies available to it at law or in equity to
recover possession of the Premises, and to recover damages, including
without limitation, damages payable by Sublandlord to Master Landlord by
reason of such holdover.
|
|
12.2
|
Without
limiting Sublandlord's rights under Section 12 .1, for each and every
month or partial month that Subtenant or any party claiming by, through or
under Subtenant remains in occupancy of all or any portion of the Premises
after the Expiration Date or after the earlier termination of this
Sublease or of Subtenant's right to possession, Subtenant shall pay, as
minimum damages and not as a penalty, monthly rental at a rate equal to
double'the rate of Rent payable by Sublandlord under the terms of the
Master Lease. The acceptance by Sublandlord of any lesser sum shall be
construed as payment on account and not in satisfaction of damages for
such holding over.
|
|
13.
|
ENCUMBERING
TITLE
|
|
13.1
|
Subtenant
shall not do any act which in any way encumbers the title of Master
Landlord in and to the Building nor shall the interest or estate of Master
Landlord or Sublandlord be in any way subject to any claim by way of lien
or encumbrance, whether by operation of law or by virtue of any express or
implied contract by Subtenant, or by reason of any other act or omission
of Subtenant. Any claim to, or lien upon, the Premises or, the Building
arising from any act or omission of Subtenant shall accrue only against
the subleasehold estate of Subtenant and shall be subject and subordinate
to the paramount title and rights of Master Landlord in and to the
Building and the interest of Sublandlord in the Master Lease
Premises.
|
|
13.2
|
Without
limiting the generality of Section 13.1, Subtenant shall not permit the
Premises or the Building to become subject to any mechanics', laborers' or
materialmen's lien on account of labor or material furnished to Subtenant
or claimed to have been furnished to Subtenant in connection with work of
any character performed or claimed to have been performed on the Premises
by, or at the direction or sufferance of, Subtenant
.
|
|
14.
|
SUBTENANT'S
DEFAULT
|
|
|
14.1
|
Any
one or more of following events shall be considered a "Default" by
Subtenant, as such term is used in this
Sublease:
|
|
|
(a)
|
Subtenant
shall be adjudged an involuntary bankrupt, or a decree or order approving,
as properly filed, a petition or answer filed against Subtenant asking
reorganization of Subtenant under the Federal bankruptcy laws as now or
hereafter amended, or under the laws of any State;
or
|
|
|
(b)
|
Subtenant
shall file, or admit the jurisdiction of the court and the material
allegations contained in, any petition in bankruptcy, or any petition
pursuant or purporting to be pursuant to the Federal Bankruptcy laws now
or hereafter amended, or Subtenant shall institute any proceedings for
relief of Subtenant under any bankruptcy or insolvency laws or any laws
relating to the relief of debtors, readjustment of indebtedness,
re-organization, arrangements, composition or extension;
or
|
|
|
(c)
|
Subtenant
shall make any assignment for the benefit of creditors or shall apply for
or consent to the appointment of a receiver for Subtenant or any of the
property of Subtenant; or
|
|
|
(d)
|
Subtenant
shall admit in writing its inability to pay its debts as they become due;
or
|
|
|
(e)
|
The
Premises are levied on by any revenue officer or similar officer as a
result of Subtenant's act or omission;
or
|
|
|
(f)
|
A
decree or order appointing a receiver of the property of Subtenant shall
be made; or
|
|
|
(g)
|
Subtenant
shall vacate or abandon the Premises during the Term or assign this
Sublease or further sublet the Premises other than in strict accordance
with Section 8; or
|
|
|
(h)
|
Subtenant
fails to make any payment of Rent required to be made by Subtenant as and
when the same is due and does not cure the failure within 5 days after
receiving written notice from Sublandlord;
or
|
|
|
(i)
|
Subtenant
fails to secure insurance or to provide proper evidence of insurance as
set forth in Section 7 of this Sublease or fails to keep the Premises or
the Building free of lien claims as set forth in Section 13 of this
Sublease and either such failure continues for more than three (3)
business days after written notice thereof to Subtenant;
or
|
|
|
(j)
|
Subtenant,
by its act or omission, causes an event or condition under the Master
Lease which either is a default thereunder or, subject only to the
delivery of any required notice or passage of any cure or grace period,
would constitute a default thereunder and does not cure the condition
within 5 days after receiving written notice thereof from Sublandlord;
or
|
|
|
(k)
|
Subtenant
fails to fulfill, keep, observe or perform any of the other covenants and
obligations herein contained to be fulfilled, kept, observed and performed
by Subtenant and the failure continues for more than 15 business days
after written notice thereof to
Subtenant.
|
|
14.2
|
Upon
the occurrence of any one or more Default(s), Sublandlord may exercise any
remedy against Subtenant which Master Landlord may exercise for default by
Sublandlord under the Master Lease. Without limiting the generality of the
foregoing, Sublandlord may exercise the damage remedies available under
statute which provides that a lessor may continue a lease in effect and
recover damages as they become due.
|
|
15.
|
PROVISIONS
REGARDING MASTER LEASE
|
|
|
15.1
|
This
Sublease and all rights of the parties hereunder, are subject and
subordinate to all of the terms, covenants and conditions of the Master
Lease. Each party agrees that it will not, by its act or omission to act,
cause a default under the Master Lease. In furtherance of the foregoing,
the parties hereby acknowledge, each to the other, that it is not
practical in this Sublease to enumerate all of the rights and obligations
of the various parties under the Master Lease and specifically to allocate
those rights and obligations in this Sublease . Accordingly, in order to
afford to Subtenant the benefits of this Sublease and of those provisions
of the Master Lease which by their nature are intended to benefit the
party in possession of the Premises, and in order to protect Sublandlord
against a Default by Subtenant which might cause a default by Sublandlord
under the Master Lease, Sublandlord and Subtenant covenant and agree as
set forth in Sections 15 .2 through 15.9
below.
|
|
15.2
|
Sublandlord
shall pay, as and when due, all Master Lease Rent, and Sublandlord shall
defend, indemnify, and hold harmless Subtenant from and against any
failure of Sublandlord to pay Master Lease Rent, provided that Sublandlord
shall have no obligation to defend, indemnify, or hold harmless Subtenant
to the extent any such failure to pay Master Lease Rent is due to
Subtenant's failure to make timely payment of Rent under this
Sublease.
|
|
15.3
|
Except
as otherwise expressly provided in this Sublease, Sublandlord shall
perform its covenants and obligations under the Master Lease which do not
require for their performance possession of the Premises and which are not
otherwise to be performed hereunder by Subtenant on behalf of Sublandlord,
and Sublandlord shall defend, indemnify, and hold harmless Subtenant from
and against any failure of Sublandlord to perform such covenants and
obligations. For example, Sublandlord shall perform its covenants and
obligations as tenant under the Master Lease which pertain to the
remainder of the Master Premises.
|
|
15.4
|
Except
as otherwise expressly provided in this Sublease, Subtenant shall perform
all affirmative covenants and shall refrain from performing any act which
is prohibited - by the negative covenants of the Master Lease, where the
obligation to perform or refrain from performing is by its nature imposed
upon the party in possession of the Premises. If practicable, Subtenant
shall perform affirmative covenants which are also covenants of
Sublandlord under the Master Lease at least five (5) days prior to the
date when Sublandlord's performance is required under the Master Lease.
Sublandlord shall have the right to enter the Premises to cure any Default
by Subtenant for its failure to act in accordance with this
Section.
|
|
15.5
|
Except
as otherwise expressly provided in this Sublease, Sublandlord shall not
agree to an amendment to the Master Lease which materially adversely
effects Subtenant's occupancy or use of the Premises, unless Sublandlord
shall first obtain Subtenant's prior written approval to such amendment.
However, it is expressly agreed that: (a) the foregoing shall not prevent
Sublandlord from entering into any agreement or amendment with Master
Landlord which terminates the Master Lease with respect to the Premises in
lieu of Master Landlord granting its consent to this Sublease; (b) if
without the fault of Sublandlord the Master Lease should terminate prior
to the Expiration Date, Sublandlord shall have no liability to Subtenant
arising out of such termination; and (c) to the extent the Master Lease
grants Sublandlord any discretionary right to terminate the Master Lease,
whether due to casualty, condemnation, or otherwise, Sublandlord shall be
entitled to exercise or not exercise such right in its sole and absolute
discretion. Subject to the limitations expressed above or elsewhere in
this Sublease, so long as Subtenant is not in Default, Subtenant's quiet
and peaceable enjoyment of the Premises shall not be disturbed or
interfered with by Sublandlord, or by any person claiming by, through, or
under Sublandlord.
|
|
15.6
|
Sublandlord
grants to Subtenant the right, so long as Subtenant is not in Default, to
receive all of the services and benefits with respect to the Premises
which are to be provided by Master Landlord under the Master Lease.
Sublandlord shall have no duty to perform any obligations of Master
Landlord which are, by their nature, the obligation of an owner or manager
of real property. By way of illustration and not limitation, Sublandlord
shall not be required to provide any services (including janitorial,
utilities, HVAC service, security, or use of common areas or parking
facilities) or to perform any maintenance or repairs which Master Landlord
is or may be required to provide or perform under the Master Lease.
Sublandlord shall have no responsibility for or be liable to Subtenant for
any default, failure or delay on the part of Master Landlord in the
performance or observance by Master Landlord of any of its obligations
under the Master Lease, but any such default by Master Landlord shall
suspend Subtenant's obligations to pay Rent hereunder, and Subtenant shall
have the option to terminate this Sublease at any time during the
continuance of such default, failure, or delay. Subtenant hereby expressly
waives the provisions of any statute, ordinance or judicial decision, now
or hereafter in effect, which would give Subtenant the right to make
repairs at the expense of Sublandlord, or to claim any actual or
constructive eviction by virtue of any interruption in access, services or
utilities to, or any failure to make repairs in or to, the Premises or the
Building. Notwithstanding the foregoing, the parties do contemplate that
Master Landlord will, in fact, perform its obligations under the Master
Lease and in the event of any default or failure of such performance by
Master Landlord, Sublandlord agrees that it will, upon notice from
Subtenant, make demand upon Master Landlord to perform its obligations
under the Master Lease and, provided that Subtenant specifically agrees to
pay all costs and expenses of Sublandlord (including without limitation
reasonable attorneys' fees) and provides Sublandlord with security
reasonably satisfactory to Sublandlord to pay such costs and expenses,
Sublandlord will take appropriate legal action to enforce the Master
Lease.
|
|
15.7
|
Any
non-liability, release, indemnity or hold harmless provision in the Master
Lease for the benefit of Master Landlord shall be deemed to apply under
this Sublease and insure to the benefit of both Sublandlord and Master
Landlord.
|
|
|
15.8
|
If
Subtenant desires to take any action which requires the consent of Master
Landlord under the terms of the Master Lease, then, notwithstanding
anything to the contrary herein: (a) Sublandlord, independently, shall
have the same rights of approval or disapproval as Master Landlord has
under the Master Lease; (b) Subtenant shall not take any such action until
it obtains the consent of both Sublandlord and Master Landlord; and (c)
Subtenant shall request that Sublandlord obtain Master Landlord's consent
on Subtenant's behalf and Sublandlord shall use commercially reasonable
efforts to obtain such consent. Subtenant shall pay all costs reasonably
incurred by Sublandlord (including without limitation reasonable
attorneys' fees) in seeking or procuring Master Landlord's consent. Any
approval or consent required of Sublandlord conclusively shall be deemed
reasonably withheld if approval or consent also is required of the Master
Landlord, and Master Landlord fails to give Master Landlord's approval or
consent.
|
|
|
15.9
|
The
following sections of the Master Lease shall be excluded from this
Sublease:
|
|
▇▇▇▇▇▇▇▇▇
▇
|
▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇
2
|
Rent
|
|
|
Paragraph
3(a)
|
Tenant’s
Share
|
|
|
Paragraph
6
|
Assignment
and Sublease
|
|
|
Paragraph
9
|
Holding
Over
|
|
|
Paragraph
14
|
Listed
Addresses
|
|
|
Paragraph
17
|
Brokers
|
|
|
Paragraph
21
|
Parking
|
|
|
Paragraph
23
|
Right
to Terminate
|
|
|
Paragraph
24
|
Tenant
Improvement Allowance
|
|
|
Paragraph
25
|
Right
of First Offer
|
|
|
Paragraph
26
|
Telecommunications
Equipment
|
|
|
Paragraph
27
|
Exclusivity
|
|
|
Paragraph
28
|
Nondisturbance
and Recognition
|
|
|
Paragraph
29
|
Contingent
Extension Option
|
|
|
Exhibit
D
|
Crown
Signage Location
|
All other
terms and conditions of the Master Lease shall be incorporated into this
Sublease by this reference as if the word "Landlord" were substituted with the
word "Sublandlord" and the word "Tenant" were substituted with the word
"Subtenant” unless otherwise indicated in this Sublease. In the event of any
conflict between the Master Lease and this Sublease, this Sublease shall
prevail.
|
16.
|
MASTER
LANDLORD'S CONSENT
|
|
16 .1
|
This
Sublease and the obligations of the parties hereunder are expressly
conditioned upon Sublandlord's obtaining prior written consent hereto by
Master Landlord. Subtenant shall promptly deliver to Sublandlord any
information reasonably requested by Master Landlord (in connection with
Master Landlord's approval of this Sublease) with respect to the nature
and operation of Subtenant's business and/or the financial condition of
Subtenant .
|
|
16.2
|
Sublandlord
and Subtenant hereby agree, for the benefit of Master Landlord, that this
Sublease and Master Landlord's consent hereto shall not (a) create privity
of contract between Master Landlord and Subtenant; (b) be deemed to have
amended the Master Lease in any regard (unless Master Landlord shall have
expressly agreed writing to such amendment); or (c) be construed as a
waiver of Master Landlord' s right to consent to any assignment of the
Master Lease by Sublandlord or any further subletting of the Master
Premises, or as a waiver of Master Landlord's right to consent to any
assignment by Subtenant of this Sublease or any sub-subletting of the
Premises or any part thereof. Master Landlord's consent shall, however, be
deemed to evidence Master Landlord's agreement that Subtenant shall be
entitled to waiver of claims and of the right of subrogation for damage to
Master Landlord' s property if and to the extent that the Master Lease
provides such waivers for the benefit of
Sublandlord.
|
|
16.3
|
If
Master Landlord fails to consent to this Sublease within forty-five (45)
days after the Execution Date, either party shall have the right to
terminate this Sublease by giving written notice thereof to the other at
any time thereafter, but before, Master Landlord grants such consent
.
|
|
17.
|
NOTICES
|
|
17.1
|
All
notices which may or are required to be given by either party to the other
shall be in writing and shall be deemed given when received or refused if
personally delivered, or if sent by United States registered or certified
mail, postage prepaid, return receipt requested, or if sent by a
nationally recognized overnight commercial courier service providing
receipted delivery, in any such case (a) if to Subtenant, addressed to
Subtenant at the address specified in the Basic Sublease Provisions or at
such other place as Subtenant may from time to time designate by notice in
writing to Sublandlord (provided, however, if Subtenant has abandoned the
Premises, any such notice may be properly sent to Subtenant's agent for
service of process), or (b) if for Sublandlord, addressed to Sublandlord
at the address specified in the Basic Sublease Provisions or at such other
place as Sublandlord may from time to time designate by notice in waiting
to Subtenant. Each party agrees promptly to deliver a copy of any notice,
demand, request, consent or approval received from Master
Landlord.
|
|
|
17.2
|
Any
notice delivered by Sublandlord in connection with, or as a precondition
to, a Default by Subtenant shall be in lieu of and not in addition to any
notice to pay rent or notice to perform covenant required under
law.
|
|
18.
|
MISCELLANEOUS
|
|
18.1
|
Sublandlord,
as the tenant under the Master Lease identified in Section 1.5 above,
represents and warrants to Subtenant that: (a) Exhibit B to this Sublease
is a full and complete copy of the Master Lease; (b) the Master Lease, as
of the Execution: Date, is in full force and effect and constitutes the
entire agreement of Master Landlord and Sublandlord relating to the lease
of the Premises, and (c) to the current actual knowledge of Sublandlord
(without duty of inquiry), there exists no event of default under the
Master Lease and there exists no event which would constitute an event of
default under the Master Lease but for the giving of any required notice
and passage of any applicable grace or cure period; (d) the person or
persons executing this Sublease for Sublandlord are fully authorized to so
act and no other action is required to bind Sublandlord to this Sublease;
and (e) Sublandlord has the right and power to execute and deliver this
Sublease and to perform its obligations hereunder, subject only to Master
Landlord's consent.
|
|
18.2
|
Subtenant
represents and warrants to Sublandlord that: (a) Subtenant is familiar
with the provisions of the Master Lease insofar as they pertain to the
Premises and Subtenant's use and occupation thereof under this Sublease;
(b) Subtenant has the right and power to execute and deliver this Sublease
and to perform its obligations hereunder; (c) the person or persons
executing this Sublease for Subtenant are fully authorized to so act and
no other action is required to bind Subtenant to this Sublease; and (d)
Subtenant is duly organized and in good standing in its state of formation
and is authorized to conduct business in the state where the Premises are
located.
|
|
18.3
|
On
the Execution Date, Subtenant shell deposit with Sublandlord the Security
Deposit in the amount specified in the Basic Sublease Provisions Section
1.14, as security for the full and faithful performance of every provision
of this Sublease to be performed by Subtenant. If Subtenant Defaults with
respect to any provision of this Sublease, Including but not limited to
the provisions relating to the payment of Rent, Sublandlord may use, apply
or retain all or any part of the Security Deposit for the payment of any
Rent or any other amount which Sublandlord may spend or become obligated
to spend by reason of Subtenant's Default, to repair damages to any part
of the Premises or the Building, to clean the Premises or to compensate
Sublandlord for any other loss or damage which Sublandlord may suffer by
reason of Subtenant's Default. Sublandlord shall not be required to keep
the Security Deposit separate from its general funds, and Subtenant shall
not be entitled to interest on the Security Deposit. If Subtenant shall
fully and faithfully perform every provision of this Sublease to be
performed by it, the Security Deposit or any balance thereof shall be
returned to Subtenant within three weeks of the Expiration Date or such
earlier termination of this
Sublease.
|
|
18.4
|
Subtenant
agrees to comply with all rules and regulations that Master Landlord has
made or may hereafter from time to time make for the Building. Sublandlord
shall not be liable in any way for damage caused by the non-observance by
any of the other tenants of such similar covenants in their leases or of
such rules and regulations.
|
|
18.5
|
Each
party warrants to the other that it has had no dealings with any broker or
agent in connection with this Sublease, except that Brokers specified in
the Basic Sublease Provisions . Each party covenants to protect, defend,
indemnify and hold harmless the other party from and against any and all
costs (including reasonable attorneys' fees), expense or liability for any
compensation, commission and charges claimed by any broker or other agent,
other than the Brokers, with respect to this Sublease or the negotiation
thereof on behalf of such party.
|
|
18 .6
|
Sublandlord
shall not have any liability to Subtenant for damages arising out of any
failure of Sublandlord to perform any of the terms, covenants and
conditions of this Sublease, if Sublandlord's failure to timely perform
same is due to any strike, lockout, labor trouble (whether legal or
illegal), civil disorder, failure of power, restrictive governmental laws
and regulations, riots, insurrections, war, shortages accidents,
casualties, acts of God, acts caused directly by Subtenant or Subtenant's
agents, employees and invitees or any other cause beyond that reasonable
control of Sublandlord ; provided, however, that Subtenant shall have the
right to demand an equitable adjustment to Rent obligations in the event
of such failures, and shall have the right to terminate this Sublease if
such failures materially adversely affect Subtenant's occupancy or use of
the Premises.
|
|
18.7
|
On
the Commencement Date, Subtenant shall reimburse Sublandlord for any fees
or consideration which Sublandlord is required to pay to Master Landlord
under the Master Lease on account of its consideration of Sublandlord's
request to enter into this
Sublease.
|
|
|
18.8
|
Sublandlord
agrees to provide Subtenant an improvement allowance for construction of
those items described more fully on Exhibit C attached hereto and
incorporated herein by this reference (the "Subtenant Improvements"). The
total improvement allowance amount ("Subtenant Improvement Allowance")
shall not exceed One Hundred Seventy-Five Thousand and Three Hundred
Fifty-Nine dollars ($175,359.00). Subtenant Improvement Allowance may be
used for the construction of the Premises and may be used for design,
engineering, permits, construction and furniture. All existing premises
improvements existing as of the date of mutual execution of this sublease
will be considered a part of the base building and shall not be part of
the Subtenant Improvement Allowance. Subtenant will have the right to
review all itemized construction costs and Sublandlord shall competitively
bid to general contractors and subcontractors the initial Subtenant
Improvements. Where the construction work for Subtenant Improvements
exceeds the Tenant Improvement Allowance, the Subtenant shall deliver to
Sublandlord prior to commencement of any such work the balance of the cost
of the Subtenant Improvement work above the Tenant Improvement Allowance.
Sublandlord shall be under no obligation to deliver any unapplied
Subtenant Improvement Allowance funds to Subtenant. The Subtenant
Improvement Allowance shall be applied, if at all, prior to the
Commencement Date of this Sublease. Sublandlord shall provide all plans
and specifications for construction of the Subtenant Improvements, which
plans and specifications costs shall be paid from Tenant Improvement
Allowance.
|
|
|
18.9
|
Sublandlord
shall use commercially reasonable efforts to enforce the terms of the
Master Lease and require the Master Landlord to provide building security,
including from time to time the following: (i) Security guards on site
Monday-Friday from 6:00 AM to 6:00 PM; (ii) Building security access to
all building entrances; and (iii) cameras located throughout the building
to monitor security and safety.
|
|
18.10
|
Sublandlord
shall use commercially reasonable efforts to enforce the terms of the
Master Lease and require the Master Landlord to provide Subtenant with
Subtenant's pro rata share of parking totaling approximately 6.22 parking
spaces per 1,000 square feet.
|
|
18.11
|
This
Sublease is conditional upon the execution of the Guaranty of Sub-Sublease
in the form attached hereto as Exhibit D and incorporated herein by this
reference.
|
IN WITNESS WHEREOF, Sublandlord and
Subtenant have executed this Sublease on the dates set forth below, intending to
be bound hereby.
|
SUBLANDLORD:
|
SUBTENANT:
|
|
|
Cadence
Design Systems, Inc.,
|
SecureAlert,
Inc.,
|
|
|
a
Delaware corporation
|
a
Utah corporation
|
|
|
By:______________________
|
By:___________________________
|
|
|
Name:___________________
|
Name:_________________________
|
|
|
Its:______________________
|
Its:___________________________
|
|
|
[must
be CEO, chairman of the board, president or vice
president]
|
||
|
By:______________________________
|
||
|
Name:___________________________
|
||
|
Its:______________________________
|
||
|
[must
be CFO, secretary, vice-secretary, treasurer or
vice-treasurer]
|
||
|
Date:_____________________________
|
EXHIBIT
B
MASTER
LEASE
[***ATTACH
MASTER LEASE HERE***]
Exhibit
B
EXHIBIT
C
PARAGON
BUILDERS INC
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
|
DIVTCION 16000 – ELECTRICAL
|
$ | 25,425.00 | ||||||
|
ELECTRICAL
& FIRE ALARM
|
$ | 25,425.00 | ||||||
|
DIVISION 17000 - MISC
|
$ | 12,826.00 | ||||||
|
BUILDING
PERMIT
|
$ | 2,900.00 | ||||||
|
ARCHITECT/ENGINEER
ALLOWANCC
|
$ | 9,926.00 | ||||||
|
PROFIT
AND OVERHEAD
|
$ | 13.842.00 | ||||||
|
TOTAL
ESTIMATE
|
$ | 175,359.00 | ||||||
CLARIFICATION:
1. FULL
GLASS AT CONFERENCE ROOM IS INCLUDED
2.
SIDELIGHTS AT DOORS AS SHOWN IS INCLUDED
3. PHONE,
DATA WIRING, & EQUIPMENT NOT INCLUDED
4. NO
WALL COVERING INCLUDED
5.
LOCXSETS ARE INCLUDED ON ALL DOORS (ELECTRIC LOCKS WHERE CONTROLLED BY CARD
READER)
6.
EXISTING CARPET TO
REMAIN (CARPET REMOVED FOR VCT TO BE SAVED)
7. WOOD
BASE IS INCLUDED IN RECEPTION & CONFERENCE ROOM
8. ACTUAL
COST OF ALLOWANCES LISTED MAY VARY
9. HVAC
PRICE DOES NOT INCLUDE ANY NEW VAV BOXES OR
CONTROLS
10. HVAC
PRICE INCLUDES DUCTWORK WITH MOTORIZED DAMPER & THERMOSTAT OFF
OF BUILDINGS HIGH PRESSURE TRUNK LINE (TO COOL IT
ROOM)
EXCLUSIONS:
1.
BUILDERS RISK INSURANCE
2.
SECURITY
3. NEW
GRID & ACOUSTICAL TILE
4. IMPACT
FEE S
5.
HAZAROWS MATERIAL ABATEMENT & ASBESTOS SURVEY
6. FIRE
LITE GLASS
NOTE: THE
PRICES LISTED IN THIS ESTIMATE MAY VARY AFTER REVIEW OF FINAL CONSTRUCTION
DOCUMENTS
RESPECTFULLY
SUBMITTED
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
PROJECT
MANAGER
EXHIBIT
D
GUARANTY
OF SUB-SUBLEASE
This
Guaranty of Sub-sublease ( "Guaranty") is made by RemoteMDx, Inc, as
guarantor
(“Guarantor"),
in favor of Cadence Design Systems, Inc., a Delaware corporation ("Cadence"), as
acondition precedent
and inducement to Cadence to enter into that certain
Sub-sublease
(“Sublease"),
between Cadence, as "Sublandlord" and SecureAlert, Inc., a Utah corporation,
as
"Subtenant"
(“Subtenant").
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, Guarantor hereby
agrees to guarantee and become surety for the obligations of Subtenant under the
Sublease and covenants and agrees as follows:
|
1.
|
Guarantor
irrevocably, unconditionally and absolutely becomes surety for
and guarantees
to Sublandlord, and its successors and assigns, the due, punctual and
complete payment and performance by Subtenant, of all of the obligations,
undertakings, covenants and agreements of Subtenant under the Sublease and
under any modification, amendment, variation or termination of the
Sublease.
|
|
2.
|
Guarantor
represents and warrants to Sublandlord, and its successors and assigns,
that:
|
|
(a)
|
Guarantor
holds an ownership interest in
Subtenant.
|
|
(b)
|
This
Guaranty has been duly and validly executed and delivered by Guarantor and
constitutes the legal, valid and binding agreement of Guarantor,
enforceable against Guarantor in accordance with its
terms.
|
|
(c)
|
The
compliance by Guarantor with all the provisions hereof will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement, understanding or instrument to which
Guarantor is a party or by which Guarantor is bound or to which any of the
property or assets of Guarantor is subject, nor will such action result in
any violation of the provisions of any order of any court or governmental
agency or body having jurisdiction over Guarantor or any of Guarantor's
properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body
is required for the performance by Guarantor of Guarantor's obligations
under this Guaranty.
|
|
3.
|
Guarantor
waives to the fullest extent permitted by law: (a) any defense based upon
any (i) legal disability or lack of authority of Subtenant, (ii) legal or
equitable discharge or limitation of the liability of Subtenant, whether
consensual or arising by operation of law, (iii) bankruptcy, insolvency,
reorganization or other similar proceeding affecting Guarantor or
Subtenant, or (iv) invalidity, irregularity or unenforceability of any or
all of the provisions of this Guaranty or the Sublease; (b) presentments,
demands for performance, notices of nonperformance, protests, notices of
protests, notices of dishonor, rights of subrogation and waives all
notices of the existence, creation, or incurring of new or additional
obligations; (c) notice of acceptance of this Guaranty; (d) any statute of
limitation affecting Guarantor's obligations under this Guaranty, (e)
other defenses available to a guarantor under applicable law; or (f) any
requirement of diligence on the party of Sublandlord or any right
Guarantor may have to require Sublandlord to proceed first against
Subtenant.
|
|
4.
|
Guarantor
hereby waives all rights of subrogation and all defenses which Guarantor
may have by reason of Sublandlord's election of any remedy against
Guarantor and/or Subtenant.
|
|
5.
|
The
liability of Guarantor shall be unaffected by any of the following,
whether made with or without notice to
Guarantor:
|
|
(a)
|
any
modification, amendment, termination or variation in or addition to the
Sublease;
|
|
(b)
|
any
extensions of time for performance or any waiver of performance or any
delay of Sublandlord in enforcing any right, remedy, power or privilege
which Sublandlord may have against Subtenant or any other
person;
|
|
(c)
|
the
release of Subtenant or any other party, in whole or in part, from
performance or observance of any of the agreements, covenants, terms or
conditions contained in the sublease or any other agreement or
instrument;
|
|
(d)
|
any
other guaranty now or hereafter executed by Guarantor or anyone else in
connection with the transactions contemplated by the Sublease or any
modification, amendment or termination (including the reSublease of any
other guarantor) of same;
|
|
(e)
|
any
rights, powers or privileges Sublandlord may now or hereafter have against
any person or entity;
|
|
(f)
|
the
absence of any action on the pan of Sublandlord to obtain payment from
Sublandlord of any amounts due under the
Sublease;
|
|
(g)
|
any
event of bankruptcy, insolvency, reorganization or similar proceedings
affecting Subtenant or the dissolution or liquidation of Subtenant;
or
|
|
(h)
|
the
sale, assignment, transfer or other disposition of all or a portion of
Guarantor's interest in Subtenant.
|
|
6.
|
Guarantor
authorizes without notice or demand and without affecting liability
hereunder (i) the taking and holding of security for payment, and the
exchange, enforcement, 'waiver, or release of any such security for the
obligations of Subtenant, and, (ii) the application of such security and
the order and manner of sale thereof. Guarantor waives any defense arising
by means of any election by Sublandlord is given to proceed against any
security held from Subtenant.
|
|
7.
|
This
Guaranty is an instrument of suretyship and not merely a guaranty, and the
liability of Guarantor hereunder shall be primary and direct; and
Guarantor agrees that Sublandlord shall have the right to require the
performance by Guarantor of each and every one of its obligations
hereunder, and to ▇▇▇ for damages and other relief at law and in equity
(including specific performance) for breach of any such obligations
without first seeking or taking any action against Subtenant, and that the
institution of any such suit or proceeding shall not be deemed to be
taking part in the control of Subtenant's business by Sublandlord or
subject Sublandlord to liability to Guarantor, its successors or assigns
hereunder or to any other person or entity for any of Sublandlord's
obligations.
|
|
8.
|
Guarantor's
obligations are independent of Subtenant's obligations. A separate action
may be brought against Guarantor whether the action is brought or
prosecuted against any other guarantor or against Subtenant, or at all, or
whether any other guarantor or Subtenant are joined in the
action.
|
|
9.
|
If
Subtenant defaults under the Sublease, Sublandlord shall have the right to
proceed immediately against Guarantor, other guarantors, or Subtenant, or
any of them, and Sublandlord shall have the right to enforce against
Guarantor, other guarantors, or Subtenant, or any of them, any rights that
it has under the Sublease, under other guaranties, or pursuant to
applicable laws. If the Sublease terminates and Sublandlord has any rights
it can enforce against Subtenant after termination, Sublandlord shall have
the right to enforce those rights against Guarantor without giving
previous notice to Subtenant or Guarantor, and without making any demand
on either of them. References herein to other guarantors shall include any
person liable for the performance of Subtenant's obligations under the
Sublease, whether as a principal obligor or a
surety.
|
|
10.
|
No
delay on the part of Sublandlord in exercising any rights hereunder or
failure to exercise the same shall operate as a waiver of such rights; no
notice to or demand on Guarantors shall be deemed to be a waiver of the
obligations of Guarantors or of the rights of Sublandlord to take further
action without notice or demand as provided
herein.
|
|
11.
|
This
Guaranty is a continuous and continuing guaranty and shall be construed
and enforced in accordance with the laws of the State in which the
property is located. In the event of any action to enforce the terms or
provisions of this Guaranty, Guarantor hereby consents to the
same.
|
|
12.
|
Any
provisions hereof which may prove invalid under any law shall be
unenforceable only to the extent of such invalidity and not affect the
validity of any other provisions hereof, all of which provisions shall be
liberally construed in favor of
Sublandlord.
|
|
13.
|
Guarantor
has reviewed the terms and conditions of the Sublease and has considered
and understands all of the respective obligations, undertakings, covenants
and agreements of Subtenant
thereunder.
|
|
14.
|
No
modification, waiver, amendment, discharge or change in this Guaranty
shall be valid unless in writing and approved by
Sublandlord.
|
|
15.
|
Nothing
herein shall be deemed a waiver by the Guarantor of any right it may have
to subrogation or contribution against third
parties.
|
|
16.
|
This
Guaranty shall inure to the benefit of Sublandlord, its successors and
assigns exclusively and shall not inure to the benefit of, or be
enforceable by, any other third party, except that in the event
Sublandlord's interest in the Sublease or .the premises demised thereunder
is assigned from Sublandlord to any other entity, this Guaranty also may
be assigned and shall remain in full force and effect and shall be
enforceable in accordance with its terms by such
assignee.
|
|
17.
|
Guarantor
covenants that in the event this Guaranty is placed in the hands of an
attorney for enforcement, Guarantor will reimburse Sublandlord for all
reasonable expense incurred directly in the enforcement of the rights of
Sublandlord hereunder, including reasonable attorneys’ fees and
expenses.
|
|
18.
|
In
the event of any action at law or suit in equity in relation to this
Guaranty, the losing party, in addition to any other sums which such party
may be called upon to pay, will pay to the prevailing party all costs and
expenses of such action or suit, including actual attorneys' fees and
costs incurred, including, without limitation, expert witness fees,
photocopying, messenger and postage costs, and such attorneys' fees and
costs shall be deemed to have accrued on the commencement of such action
and shall be paid whether or not such action is prosecuted to
judgment.
|
|
GUARANTOR:
|
||
|
REMOTEMDX,
INC.
|
||
|
|
-
DO NOT EXECUTE –
|
|
|
By:_________________________
|
||
|
Name:_______________________
|
||
|
Date:________________________
|
|
ACKNOWLEDGMENT
|
|
|
State
of ______________)
|
|
|
County
of _____________)
|
On
this____ day of_______ , ________, before the undersigned duly
commissioned and sworn Notary Public, personally appeared
__________________________________________ _____________________ personally
known to me (or proved to me on satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS, my hand and official
seal on the day and year first written above.
Signature:__________________________________
SECOND
AMENDMENT TO SUB-SUBLEASE AGREEMENT
This
second Amendment to Sub-sublease Agreement (this “Second Amendment”), dated
December ___, 2006 (the “Execution Date”), is entered into by and between
CADENCE DESIGN SYSTEMS, INC., a Delaware corporation (“Sublandlord”), and
SECUREALERT, INC., a Utah corporation (“Subtenant”).
RECITALS
|
|
A.
|
Sublandlord
and Subtenant entered into that certain Sub-sublease Agreement (the
“Sublease”), whereby Sublandlord subleased to Subtenant and Subtenant
subleased from Sublandlord approximately 7,458 rentable square feet of
space (the “Premises”) located on the fourth (“4th”)
floor of the building located at 150 West Civic Center Drive, in the City
of ▇▇▇▇▇, State of Utah.
|
|
|
B.
|
Pursuant
to that certain First Amendment to Sub-Sublease Agreement (“First
Amendment”), Sublandlord and Subtenant amended the Sublease to: (i)
increase the rentable square footage of the Premises to 11,109 rentable
square feet; (ii) modify the Base Rent accordingly, and (iii) modify the
Subtenant’s Share of Pass Through Cost Increases (as defined in the
Sublease).
|
|
|
C.
|
By
this Second Amendment, Sublandlord and Subtenant desire to further modify
the Sublease (as the same is amended by the First Amendment) to (i)
increase the rentable square footage of the Premises; (ii) modify the Base
Rent accordingly; and (iii) modify the Subtenant’s Share of Pass Through
Cost Increases.
|
|
|
D.
|
Other
capitalized terms not defined herein shall have the meanings specified in
the Sublease.
|
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
|
|
1.
|
Effective
Date. This Second Amendment shall be effective upon the
later of (i) December 15, 2006 or (ii) the date of consent by Master
Landlord (defined in Section 6 below) and Overlandlord (defined in Section
6 below) following mutual execution by the parties hereto (the “Effective
Date”).
|
|
|
2.
|
Premises. As
of the Effective Date, the rentable square footage of the Premises shall
be increased by an additional 4,317 retable square feet, to 15,426
rentable square feet. Accordingly, in Section 1.1 of the
Sublease (as amended by the First Amendment), the figure “11,109” shall be
replaced with the figure “15,426” and Sublease Exhibit A shall
be substituted with the Plan attached hereto as Exhibit
A.
|
|
|
3.
|
Subtenant’s Share of
Master Premises. As of the Effective Date, in Section 1.11 of the
Sublease, Subtenant’s Share of Master Premises percentage “25.89%” shall
be substituted with “35.95%.”
|
|
|
4.
|
Base
Rent.
|
|
|
(a)
|
As
of the Effective Date, Section 4.2 of the Sublease shall be deleted in its
entirety and replaced by the
following:
|
Subtenant
shall pay to Sublandlord in advance, and without notice, demand, deduction or
offset, the following monthly Base Rent:
Prior to
the First Amendment Effective Date, June 1, 2006 (or such later date of Master
Landlord and Overlandlord Consent):
|
Months
|
01
|
through
|
12:
|
$11,168.36
|
per
|
month
|
($17.97/RSF/annum)
|
|
Months
|
13
|
through
|
14:
|
$11,479.10
|
per
|
month
|
($18.47/RSF/annum)
|
|
After
Effective Date of First Amendment but prior to Effective Date of Second
Amendment:
|
|||||||
|
Months
|
15
|
through
|
24:
|
$17,098.60
|
per
|
month
|
($18.47/RSF/annum)
|
|
After
Effective Date of Second Amendment:
|
|||||||
|
Months
|
15
|
through
|
24:
|
$23,743.19
|
per
|
month
|
($18.47/RSF/annum)
|
|
Months
|
25
|
through
|
36:
|
$24,385.94
|
per
|
month
|
($18.97/RSF/annum)
|
|
Months
|
37
|
through
|
44:
|
$25,028.69
|
per
|
month
|
($19.47/RSF/annum)
|
Base Rent
for any partial month will be prorated, based on a thirty (30) day
month. Subtenant shall pay the first full month’s Rent on the
Execution Date, and if the Commencement Date is not the first day of the month,
then Subtenant shall pay the prorated Rent for the first partial month on the
Commencement Date.
|
|
(b)
|
In
addition, Subtenant shall also pay the following amounts as Base Rent,
payable concurrent with all Base Rent payments set forth
above:
|
|
|
From
Effective Date to Expiration Date: $809.44 per month ($2.25 x
4,317 RSF/annum)
|
|
|
(c)
|
Subtenant
shall pay Base Rent based on the substituted Base Rent table described
above from and after the Effective Date of this Amendment to the
Expiration Date of the Sublease. Subtenant’s Base Rent
obligations prior to the Effective Date of this Amendment shall be as set
forth in the Base Rent table described in the Sublease Section 4.2 prior
to such substitution.
|
|
|
5.
|
Free
Rent. Provided that Subtenant is not in default under
the Sublease (as amended by the First Amendment) as further amended by
this Second Amendment, Subtenant shall have no obligation to pay the Base
Rent for the first three (3) months following the Effective Date of this
Second Amendment. Subtenant shall not be entitled to any
increase in the Subtenant Improvement Allowance as defined in Sublease
Section 18.8 by reason of entering into this Second Amendment and no
improvement allowance shall be provided by Sublandlord due to an increase
in the Premises size as of the Effective Date of this Second
Amendment.
|
|
|
6.
|
Amendment Conditional
Upon Consent. This Second Amendment and the obligations
of the parties hereunder are expressly conditioned upon prior written
consent hereto by Workers Compensation Fund of Utah (“Overlandlord”) and
Credit Suisse First Boston (USA), Inc. (“Master
Landlord”). Subtenant shall promptly deliver to Sublandlord any
information reasonably requested by Master Landlord and/or Overlandlord
(in connection with their approval of this Second
Amendment).
|
|
|
7.
|
Real Estate Brokers.
Sublandlord and Subtenant hereby represent and warrant to each
other that neither party has negotiated, consulted or dealt with any
broker of finder in connection with the consummation of this Second
Amendment other than Coldwell Banker, The Staubach Company, and Colliers
Commerce CRG (collectively, the “Brokers”) for whose commissions are set
forth pursuant to separate agreement. Each party agrees to
indemnify, defend, and hold the other party harmless for any and all
claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including, without limitation, reasonable attorneys’ fees) with
respect to any leasing commission or equivalent compensation alleged to be
owing on account of the indemnifying party’s dealings with any real estate
broker or agent other than the Brokers. The terms of this
Section 7 shall survive the expiration or earlier termination of this
Second Amendment.
|
|
|
8.
|
Authority.
Subtenant and each person executing this Second Amendment on behalf of
Subtenant, hereby covenants and warrants that (a) Subtenant is duly
incorporated or otherwise established or formed and validly existing under
laws of its state of incorporation, establishment or formation, (b)
Subtenant has and is duly qualified to do business in the state in which
the Premises is located, (c) Subtenant has full corporate or other
appropriate power and authority to enter into this Second Amendment and to
perform all Subtenant’s obligations under the Sublease, as amended by this
Second Amendment, and (d) each person (and all of the persons if more than
one signs) signing this Second Amendment on behalf of Subtenant is duly
and validly authorized to do so.
|
|
|
9.
|
Furniture. As
of the Effective Date, Sublandlord hereby transfers to Subtenant all of
Sublandlord’s right, title and interest in the existing furniture in the
Premises, in the form set forth in the ▇▇▇▇ of Sale, attached hereto as
Exhibit B
and incorporated herein by this reference except that such furniture in
the Premises shall not include lab benches, security equipment and badge
readers which shall remain the property of Sublandlord and which
Sublandlord may remove from the Premises at its
discretion.
|
|
|
10.
|
Sublease in Full Force
and Effect. Except as provided herein, the Sublease is
unmodified, remains in full force and effect, and is hereby ratified and
confirmed by the parties hereto.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of
the date and year first above written.
|
SUBLANDLORD:
|
SUBTENANT:
|
|
CADENCE
DESIGN SYSTEMS INC.,
|
SECUREALERT,
INC.,
|
|
a
Delaware corporation
|
a
Utah corporation
|
|
By:______________________
|
By:______________________
|
|
Name:________________
|
Name:
________________
|
|
Its:
__________________
|
Its:
__________________
|