EXHIBIT 99.3
LEASE ASSIGNMENT
AND CONSENT
For good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, ▇▇▇▇▇ ▇. ▇▇▇▇▇ (Assignor), does hereby sell, transfer and
assign to C Square Educational Enterprises d/b/a/ Utah Career College,
(Assignee) all right, claim and interest which he has in and to that certain
Lease dated January 7, 2000, as amended, made by Assignor, as Tenant, and ▇.▇.
▇▇▇▇▇▇, III, as Landlord, which ▇▇▇▇▇▇▇▇'s interest was assigned to West One,
LLC, a Utah limited liability company, and then reassigned to Alta Phoenix
Properties, LLC, on April 10, 2002, on that certain real property located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, together will all rights and interests
under said Lease from the 10th day of November, 2004, PROVIDED, HOWEVER, that
Assignor, not withstanding this Assignment, shall remain fully responsible for
the performance of the terms and conditions required of Tenant under the Lease.
ASSIGNOR
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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STATE OF WISCONSIN )
) SS.
COUNTY OF ST. CROIX)
The foregoing instrument was acknowledged before me by ▇▇▇▇▇ ▇. ▇▇▇▇▇, this 14th
day of July, 2005.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Notary Public
CONSENT
THE UNDERSIGNED, Landlord under the above referenced Lease, as amended,
hereby consents to the above assignment this 11th day of November, 2004.
ALTA PHOENIX PROPERTIES, LLC
By Alta Industries-Utah, Inc.
Its Managing Member
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement effective commencing October 1,
2000, is entered into by and between West One LLC, Utah limited liability
company, (Landlord), and ▇▇▇▇▇ ▇▇▇▇▇ dba Utah Career College ("Tenant").
WHEREAS, on January 7, 2000, a Lease Agreement (the Lease) was entered into
between West One LLC and ▇▇▇▇▇ ▇▇▇▇▇ dba Utah Career College, relating to
certain real property situated at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇, consisting of approximately 17,500 square feet.
WHEREAS, ▇▇▇▇▇▇ desired additional miscellaneous improvements to the
building during the construction. Landlord and Tenant are desirous to amend the
said Lease to cover the added costs of the additional improvements.
NOW, THEREFORE, for and in consideration of the payment of Ten Dollars and
No Cents ($10.00) and other good and valuable consideration to Landlord, the
receipt and sufficiency of which is hereby acknowledged, the parties mutually
agree as follows:
1. Lease Article 7 Rent, subparagraph 7.1 Minimum Rent shall be revised to
reflect the corrected minimum rent, and shall read in its entirety as follows:
ARTICLE 7. RENT
7.1 Minimum Rent, ▇▇▇▇▇▇ agrees to pay Landlord at such address as
shall from time to time be designated by Landlord, as minimum rental during the
terms of this Lease without right of offset or deduction, the sum of:
Years 1 - 5 $211,231.20/year i.e. $17,602.60/month Net/Net/Net
Years 6 - 10 $232,354.32/year i.e. $19,362.86/month Net/Net/Net
Years 11 - 15 $255,589.80/year i.e. $21,299.15/month Net/Net/Net
Years 16 - 20 $281,148.73/year i.e. $23,429.06/month Net/Net/Net
Minimum rental shall be payable monthly, in advance, without demand on the
first day of each calendar month throughout the Lease term. Should ▇▇▇▇▇▇'s
occupancy of the Demised Premises commence on any day other than on the first
(1st) day of the calendar month, the first rental shall be prorated accordingly.
2. All the terms, covenants and provisions of the Lease Agreement,
including all Lease Exhibits and Lease Riders shall remain unchanged and shall
continue in full force and effect, except as specifically amended herein.
EXECUTED the day and year first above written.
LANDLORD: WEST ONE, LLC
a Utah limited liability company
By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
▇.▇. ▇▇▇▇▇▇ III
Member/Manager
TENANT: ▇▇▇▇▇ ▇▇▇▇▇ dba Utah Career College
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this 7th day of January, 2000,
by and between ▇.▇. ▇▇▇▇▇▇ ▇▇▇, hereinafter referred to as the "Landlord", and
▇▇▇▇▇ ▇▇▇▇▇ dba Utah Career College, hereinafter referred to as the "Tenant":
WITNESSETH
ARTICLE 1. REMISES AND TERM. Landlord hereby leases and by these presents
does lease and demise to the Tenant, and the Tenant does lease and take from the
Landlord, the premises described on Exhibit "B" attached hereto, consisting of
approximately 17,500 square feet of private school/office type space, the
Demised Premises, situated in the building erected, or to be erected, on the
property described on Exhibit "A" attached hereto, together with all the
easements, rights, privileges and appurtenances thereunto belonging or in any
way appertaining to the Demised Premises.
TO HAVE AND TO HOLD the said Demised Premises, together with all and
singular the improvements, appurtenances, rights, privileges and easements
thereunto belonging to or in anywise appertaining, unto Tenant for a term
commencing as of the date set forth herein under Article 3, and continuing
thereafter to and including the date twenty (20) years from the first day of the
first month immediately following such commencement date, subject, however, to
extension and renewal if hereafter provided. When the date of commencement of
the term has determined, Landlord and Tenant may enter into an agreement in
recordable form setting forth such date at the request of either the Landlord or
the Tenant.
ARTICLE 2. CONSTRUCTION OF IMPROVEMENTS. Landlord agrees, at ▇▇▇▇▇▇▇▇'s
sole cost and expense, to construct a building and other improvements,
containing the Demised Premises, in accordance with the preliminary plans and
specifications prepared by The ELM Group, Inc., copies of which have been
attached hereto and incorporated herein as Exhibit "B", and initialed by the
parties, which plans and specifications the parties have carefully reviewed and
specifically approved.
ARTICLE 3. TENANT'S POSSESSION. The term of this Lease shall commence when
the Landlord delivers to Tenant, in a condition ready for occupancy, possession
of the Demised Premises described on Exhibit "B" located in the building being
constructed by the Landlord. Tenant shall accept possession of the said
improvements when they are ready for occupancy. The words "ready for occupancy"
are defined for this purpose to mean the date upon which the construction work
referred to in Article 2 is substantially completed in accordance with the plans
and specifications referred to therein. ▇▇▇▇▇▇▇▇ agrees to have the improvements
ready for occupancy no later than June 15, 2000.
ARTICLE 4. OBLIGATIONS OF TENANT AND LANDLORD.
4.1 Property Taxes. Subject to ▇▇▇▇▇▇'s reimbursement, Landlord shall pay
all taxes, and assessments lawfully levied or assessed against the building or
buildings or any part thereof. Tenant shall reimburse Landlord, within ten (10)
days from the date Landlord submits to Tenant a statement setting forth the
amount due Landlord under the provisions of this paragraph, for such real
property taxes and assessments
due on the Demised Premises as additional rent hereunder. Tenant shall pay 1/12
of the estimated annual taxes in advance each month in addition to the minimum
rental payment due hereunder.
Landlord may dispute and contest the real property taxes and assessments on
the Demised Premises. Tenant may, at its sole cost and expense, after it has
paid Landlord in full any taxes or assessments due hereunder, upon fifteen (15)
days prior written notice to Landlord, contest with the appropriate governmental
authority such tax or assessment. Tenant shall be entitled to any refund of any
tax or penalty paid by ▇▇▇▇▇▇, or paid by Landlord and reimbursed by Tenant to
Landlord. (See Lease Rider "A" Building Expenses attached hereto and
incorporated herein.)
4.2 Personal Property Taxes. Tenant shall additionally pay, when due, all
personal property taxes and license fees levied and assessed against the Demised
Premises during the term of this Lease. Nothing contained in this Lease shall
require or be construed to obligate the Tenant to pay any franchise, excise,
corporate, estate, inheritance, succession, capital levy or transfer tax of the
Landlord, or any income, profits or revenue tax upon the income of the Landlord.
4.3 Tenant's Insurance. The Tenant shall, during the entire term of this
Lease, at the Tenant's sole cost and expense, but for the mutual benefit of the
Landlord and Tenant, maintain general public liability insurance against claims
for personal injury, death or property damage occurring upon, in or about the
entire property described on Exhibit "B" attached hereto and on, in or about the
adjoining streets and passageways, such insurance to afford protection to the
limit of not less than $1,000,000 in respect to injury or death to a single
person, and to the limit of not less than $2,000,000 in respect to any one
accident, and to the limit of not less than $250,000 in respect to property
damage or a combined single limit policy not less than $2,000,000 per
occurrence. All policies shall name ▇▇▇▇▇▇▇▇ and the mortgagee of the property
as an additional named insured, as their interest may appear.
Tenant shall also provide insurance coverage to the extent of the full
replacement value covering all of Tenant's property, fixture, equipment, tools,
improvements, stock, goods, wares or merchandise, that it may have in or on or
about the Demised Premises.
Other forms of insurance may be reasonably required to cover future risks
against which a prudent Tenant would protect itself.
All policies of insurance provided for herein shall be issued by insurance
companies with a general policy holder's rating of not less than A and a
financial rating of AAA, as rated in the most current available "Best Guide"
Insurance Reports, and qualified to do business in the state of Utah.
The policies for the foregoing insurance shall provide that the proceeds
thereof shall be payable to the Tenant and to the Landlord, as their respective
interests may appear. Said required Tenant insurance coverage shall be verified
to the Landlord by an insurance carrier in the form of either a certified copy
of the policy or other written verification of insurance coverage acceptable to
Landlord and the lending institution for the Demised Premises. Such insurance
policies shall provide that Landlord be given thirty (30) days written notice
prior to any cancellation or alteration of any policy.
To the extent that Tenant fails to provide the foregoing insurance, either
hazard or liability, Tenant shall be responsible to Landlord, as his interest
appears, for such damage that would have been insured by said policies but for
▇▇▇▇▇▇'s failure to obtain such insurance.
4.4 Landlord's Insurance. Subject to ▇▇▇▇▇▇'s reimbursement, Landlord shall
provide fire, lighting, and extended coverage ("all risk") insurance and such
additional insurance coverage as may be required by Landlord's mortgagee
(including loss of rents insurance) on the Demised Premises for the full
replacement value thereof or such value as is required by Landlord's mortgagee,
whichever is greater, against such loss. Tenant shall reimburse Landlord as
additional rental hereunder, for such insurance premium costs within ten (10)
days from the date Landlord submits to Tenant a statement setting forth the
amount due Landlord under the provisions of this paragraph. Tenant shall pay
1/12 of the estimated annual building insurance premium in advance each month
along with the minimum rental payment. (See Lease Rider "A" Building Expenses
attached hereto and incorporated herein.)
4.5 Subrogation. Landlord shall not be liable to Tenant or anyone claiming
by, through or under Tenant, including an insurance carrier or carriers, for any
insurable loss or damage, and on such carrier shall have the right to subrogate
against Landlord, or any other Tenant. All of the insurance policies required
hereunder pertaining to the Demised Premises shall contain an endorsement by the
insurance carrier or carriers waiving any and all rights of subrogation against
Landlord, a copy of which endorsement or endorsements, or evidence thereof by
way of certificate shall be furnished to the Landlord.
4.6 Assumption of Risk. Anything herein to the contrary notwithstanding,
after the commencement of the term as provided in Article 1, the Tenant assumes
full risk of damage to its property, fixtures, equipment, tools, improvements,
stock, goods, ware of merchandise, that it may have in or on or about the
Demised Premises, resulting from fire, lightning, extended coverage perils,
flood and any catastrophe, regardless of cause or origin. The Landlord shall not
be liable to Tenant or anyone claiming by, through or under Tenant, including
Tenant's insurance carrier or carriers, for any loss or damage resulting from
fire, lightning or extended coverage perils or from an act of God. Landlord
shall not be liable to the insurance carrier for damages insured against, either
directly or by way of subrogation.
ARTILE 5. TENANT'S USE. The Tenant may use the Demised Premises for
conducting its trade school and related business. Tenant shall use the Demised
Premises only for lawful and proper purposes, which are permissible under
applicable law (including under applicable zoning laws). Tenant shall not make
any use of the Demised Premises which will cause cancellation of any insurance
policy covering the same and shall not keep or use on the Demised Premises any
article, item, or thing which is prohibited by the terms of the hazard insurance
policy covering the improvements. Tenant shall not commit any waste upon the
Demised Premises and shall not conduct or allow any business, activity or thing
on the Demised Premises which is or becomes unlawful, prohibited, or a nuisance
or which may cause damage to Landlord, to occupants in the vicinity, or to other
third parties. Tenant shall comply with and abide by all laws, ordinances, and
regulations of all municipal, county, state and
federal authorities which are now in force or which may hereafter become
effective with respect to use and occupancy of the Demised Premises.
Tenant represents to Landlord that neither Tenant nor any affiliates of
Tenant will generate, store or dispose of any Hazardous Substances (as defined
below) at or in the area of the Demised Premises and Property.
Tenant covenants with Landlord: a) to prohibit any generation, storage or
disposal of Hazardous Substances at the Demised Premises, b) to deliver promptly
to Landlord true and complete copies of all notices received by Tenant from any
governmental authority with respect to the generation, storage or disposal by
Tenant of Hazardous Substances (whether or not at the Demised Premises); and c)
to permit entry onto the Demised Premises by Landlord of Landlord's
representative(s) at any reasonable time to verify Tenant's compliance with the
foregoing.
Tenant agrees to indemnify and defend Landlord (with legal counsel
reasonably acceptable to Landlord) from and against any costs, fees or expenses
(including, without limitation, cleanup expenses, third party claims and
environmental impairment expenses and reasonable attorneys' fees and expenses)
incurred by Landlord in connection with Tenant's generation, storage, or
disposal of Hazardous Substances at or near the Demised Premises in accordance
with the foregoing and with Tenant's compliance with the foregoing
representations and covenants. This indemnification by Tenant shall survive
termination or expiration of this Lease.
"Hazardous Substances" shall mean (1) hazardous substances as defined in
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, (ii) "PCBs", as defined in 40 C.F.R. 761 et seq. and "TCDD" as defined
in 40 C.F.R. 755 et seq. (or in either case analogous regulations promulgated
under the Toxic Substances Control Act, as amended), (III) "asbestos" as defined
in 29 C.F.R. 1910.1001 et seq. (or analogous regulations promulgated under the
Occupational Safety and Health Act of 1970, as amended), and (iv) waste oils and
other petroleum hydrocarbon compounds.
In the event Tenant's business, or use of the Demised Premises, should
require the legal storing of barrels, drums and other storage containers, Tenant
covenants with Landlord to provide Landlord no less often than every three (3)
months with a complete and accurate list of all storage containers, chemical
inventories and quantities. Such inventory list shall be updated by Tenant to
Landlord every quarter and certified as a true and correct inventory.
Additionally, Tenant shall supply Landlord with a container and contents
disposal plan acceptable to Landlord or in the alternative, a bond payable to
Landlord to fund the disposal and discardment of all chemicals and/or storage
containers located on or about the Demised Premises. Said bond shall be used by
Landlord in the event Tenant fails to properly dispose of such containers and
chemicals.
Tenant covenants with Landlord to store all chemical containers in a safe
and secure manner either inside the Demised Premises or within a secured fenced
area, so as not to cause a nuisance to Landlord and other tenants in the
proximity of the Demised Premises, and to prevent the unlawful infiltration of
chemicals and container discardment by others.
ARTICLE 6. POSSESSION. Possession of the Demised Premised shall be
delivered to the Tenant as herein provided, free and
clear of all Tenants and occupants and the rights of either. The Demised
Premises shall also be free of liens, encumbrances and violations of laws,
ordinances and regulations adversely affecting the use and occupancy of the
Demised Premises, except those presently of record including mortgages and trust
deeds and those that may be specified herein. ▇▇▇▇▇▇ agrees to deliver to the
Landlord physical possession of the Demised Premises, including all keys to the
Demised Premises, upon the termination or expiration of this Lease or any
extension thereof, in as good order, condition, and state of repair as when
received by Tenant, reasonable wear and tear thereof and damage by fire, acts of
God or the elements excepted.
ARTICLE 7. RENT.
7.1 Minimum Rent. The Tenant agrees to pay the Landlord at such address as
shall from time to time be designated by Landlord, as minimum rental during the
initial term of this Lease without right of offset or deduction, the sum of:
Years 1-5 $202,995.00/year i.e. $16,916.25/month Net/Net/Net
Years 6-10 $223,291.20/year i.e. $18,607.60/month Net/Net/Net
Years 11-15 $245,620.32/year i.e. $20,468.36/month Net/Net/Net
Years 16-20 $270,182.40/year i.e. $22,515.20/month Net/Net/Net
Minimum rental shall be payable monthly, in advance, without demand on the first
day of each calendar month throughout the Lease term. Should ▇▇▇▇▇▇'s occupancy
of the Demised premises commence on any day other than on the first (1st) day of
the calendar month, the first rental shall be prorated accordingly.
7.2 Lease Renewal Option. Landlord hereby grants Tenant the right and
option to renew this Agreement for two (2) successive five (5) year Lease
renewal terms under the same Lease covenants and conditions as stated herein,
including the rental adjustment, as stated below. Should Tenant desire to renew
this Lease, ▇▇▇▇▇▇ must notify Landlord in writing stating ▇▇▇▇▇▇'s intent to
renew this Lease at least one hundred eighty (180) days prior to the expiration
of the base Lease term. Tenant must also be current under all Lease covenants
and conditions for any Lease renewal right to be effective and valid.
Years 21 - 25 $310,710.00/year i.e. $25,892.50/month Net/Net/Net
Years 26 - 30 $360,000.00/year i.e. $30,000.00/month Net/Net/Net
7.3 Late Penalty. Tenant shall be charged a five percent (5%) late fee on
all rental payments (minimum and/or additional) which are received by Landlord
more than fifteen (15) days after their due date. Such late fee shall compensate
Landlord for (i) the costs attributable to providing notice of delinquency; and
(ii) the expense of servicing the mortgage loan on Landlord's Building from
alternative funds. In addition, any rental payments which are not paid within
twenty (20) days of their due date shall bear interest thereafter at the rate of
one and one-half percent (1-1/2%) per month, or the highest rate permitted by
law, whichever is lower, until paid.
ARTICLE 8. SIGNS. With the prior written approval of Landlord, which
approval shall not be unreasonably withheld, Tenant shall have the right and
privilege to place on the building or Demised Premises signage necessary for the
operation of Tenant's business. Such sign
installation shall not adversely affect or damage the physical structure of the
building, nor detract from the overall harmony of the building and the adjacent
shopping center development. All such signs must conform with the codes and
regulations of West Jordan City and adhere to the signage criteria for the
development.
Upon the expiration or termination of the lease, the Tenant shall remove
all signage installed by Tenant and repair any damaged areas on the building or
Demised Premises caused thereby, to a condition acceptable to the Landlord.
ARTICLE 9. ALTERATIONS AND IMPROVEMENTS. Tenant shall have the right,
subject to Landlord's prior written approval, to make non-structural
alterations, additions, or improvements (hereinafter collectively referred to as
"improvements") to the interior of the Demised Premises. Said improvements and
additions shall be accomplished at Tenant's sole cost and expense and shall be
made in compliance with all building codes and ordinances, laws, and regulations
applicable to the Demised Premises. Tenant shall cause all improvements to be
accomplished in a good workmanlike manner using the same quality and finish to
match existing. Landlord shall have the right, but not the obligation, to
require Tenant's removal of said improvements at the expiration or termination
of the Lease, including restoration of the Demised Premises, to its original
state of improvement, configuration, etc.
Tenant shall keep the Demised Premises free from any liens arising out of
any work performed, material furnished or obligation incurred by or for Tenant
or any person or entity claiming through or under Tenant. In the event that
Tenant shall not, within thirty (30) days following the imposition of any such
lien, cause the same to be released by payment or posting of a bond, Landlord
shall have the right, but not the obligation, to cause such lien to be released
by such means as Landlord deems proper, including payment of the claim giving
rise to such lien. All such sums paid and all expenses incurred by Landlord in
connection therewith shall be due and payable to Landlord by ▇▇▇▇▇▇ as
additional rent within fifteen (15) days of Tenant's receipt of Landlord's
invoice.
ARTICLE 10. FIXTURES AND PERSONAL PROPERTY. All fixtures (not including
trade fixtures) installed or attached to the Demised Premises by and/or at the
expense of Tenant shall become the property of Landlord. Any trade fixtures
installed in the Demised Premises by and at the expense of the Tenant shall
remain the property of the Tenant or Tenant's trade fixture Lessors, and the
Landlord agrees that so long as Tenant is not in default hereunder, Tenant or
its Lessors shall have the right ay any time to remove any and all of its trade
fixtures and personal property of Tenant in favor of a Lessor who intends to
Lease any of the same to Tenant. Tenant shall be required, at the expiration or
termination of this Lease Agreement or any extension or renewal thereof, to
remove any and all of its trade fixtures which it may have stored or installed
in the Demised Premises. Tenant will repair all damage to the Demised Premises
occasioned by such trade fixture removal. If Tenant shall holdover beyond lease
expiration or lease termination, with ▇▇▇▇▇▇▇▇'s approval of such holdover, for
removal of fixtures and equipment (not to exceed ten (10) days), Tenant shall
pay to the Landlord as rental therefore, a sum equal to the prorate portion of
the previous monthly rental thereof. In the event Tenant has not completed the
removal of its fixtures and
equipment and restoration of the Premises caused thereby, within the ten (10)
day period following the expiration or termination of the lease, Landlord shall,
in Tenant's behalf and at Tenant's sole and exclusive expense, cause such
fixtures and equipment to be removed and the Premises to be restored. Upon
completion, the cost of said removal and restoration, plus twenty percent (20%)
for overhead and profit, including prorated rental for the period of time
required to accomplish such, shall be passed on to Tenant for Tenant's payment
to Landlord.
ARTICLE 11. UTILITIES. The Tenant shall pay for all water, heat, gas,
electricity, and other costs of utilities connected with, consumed, or used by
it in connection with its occupancy of the Demised Premises. In the event that
one or more of such utilities or related services shall be supplied to the
Demised Premises and to one or more other Tenants within the Landlord's two
building development without being individually metered or measured to the
Demised Premises, ▇▇▇▇▇▇'s appropriate proportionate share thereof shall be paid
as additional rent based upon ▇▇▇▇▇▇▇▇'s estimate of Tenant's anticipated usage.
In the event any utility service to the Demised Premises is interrupted or
temporarily discontinued for any reason whatsoever, Landlord shall not be liable
therefore to Tenant and the rent required to be paid hereunder shall not be
abated as a result thereof, and Tenant waives any claims it might otherwise have
against Landlord as a result of any such interruption or discontinuation.
ARTICLE 12. MAINTENANCE AND REPAIRS. It is understood and agreed that the
Landlord shall, at its sole cost and expense, keep and maintain, during the term
of the Lease Agreement or any extension or renewal thereof, the foundations, and
structural support portion of the improvements in proper condition and in a good
state of repair. Landlord shall not be responsible for any maintenance or repair
caused by the fault or neglect of the Tenant, or due to hazards and risks
covered or required to b e covered by insurance hereunder except as insurance
proceeds are available therefor. All other maintenance and repair of said
structure, including but not limited to, painting of walls, and maintenance,
repair and replacement of equipment, shall be the responsibility of the Tenant.
Landlord shall assign warranties and extended warranties obtained from
Landlord's contractors of those portions of the Demised Premises which Tenant is
obligated to maintain.
It is understood and agreed that should either party to this Agreement fail
or refuse to start and to proceed thereafter with due diligence to make any
repairs or maintenance as may be reasonably necessary for the purpose of
fulfilling the terms and conditions of the agreements herein set forth within a
reasonable length of time (not to exceed seven (7) days) after being notified in
writing of the need thereof, that the other party hereto may make such repairs
at the cost and expense of the party so failing or refusing. In the event of any
emergency situation, Tenant may, in its discretion, make emergency repairs
without giving written notification to Landlord, and Landlord shall reimburse
Tenant in the event that such repairs were the responsibility of the Landlord
hereunder and were not due to the fault of Tenant or ▇▇▇▇▇▇'s agents. The rights
of Tenant hereunder specifically do not include the right to offset or deduct
any amounts claimed hereunder from rentals due.
Landlord reserves the right to enter upon the Demised Premises (in a manner
that will not unnecessarily interfere with the business of Tenant)
during business hours at any time to inspect the same and to make necessary
repairs to fulfill Landlord's obligation hereunder.
ARTICLE 13. RESTORATION OF DAMAGE. If the Demised Premises are partially
damaged by fire, the elements or other casualty, covered by the "all risk"
insurance policy referred to hereinabove, Landlord shall promptly repair all
damage and restore the Demised Premises to their condition immediately prior to
the occurrence of such damage. During the period of reconstruction referred to
above, rent payable by Tenant shall ratably ▇▇▇▇▇, based on the percentage of
the Demised Premises usable during reconstruction. The term of the Lease shall
extend one additional day for each day the entire Demised Premises are not
usable due to the reconstruction process.
If the Demised Premises shall be totally destroyed and/or shall it be
determined that more than one hundred eighty (180) days will be required to
repair or rebuild the Demised Premises, both Landlord and Tenant shall have the
right to terminate this Lease Agreement upon written notice to the other within
thirty (3)) days of the occurrence at which time this Lease Agreement shall
become null and void.
ARTICLE 14. EMINENT DOMAIN. If, during the term hereof, or any renewal
term, the entire Demised Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, this Lease and all right, title and interest of Tenant hereunder shall
cease and come to an end on the date of vesting of title pursuant to such
proceeding, or upon the date Tenant is dispossessed under an order of immediate
occupancy, whichever first occurs. If less than all of the Demised Premises
shall be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, by right of eminent domain, this Lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances. In any taking of the Demised Premises or any part thereof,
whether or not this Lease is terminated as provided in this Paragraph, the
parties hereto may claim and shall be entitled to receive an award or
compensation therefor in accordance with their respective legal rights and
interests.
ARTICLE 15. DEFAULT IN PAYMENT OF RENT OR ABANDONMENT. In the event of
default by Tenant in the performance of its obligation to pay rent hereunder,
subject to the grace period set forth in Article 7.3, or in the event Tenant
shall vacate or abandon the Demised Premises, or in the event Tenant, or any
guarantor hereunder, shall be adjudicated as bankrupt for the benefit of
creditors, or enter into an arrangement or participate voluntarily or
involuntarily in any bankruptcy or related proceeding under Federal or State
Law, Landlord shall have the right to terminate this Lease and to re-enter the
Demised Premises or any part thereof with or without process of law; or
Landlord, at his option, without terminating this Lease, shall have the right to
re-enter the Demised Premised and sublet the whole or any part thereof, for the
account of the Tenant, upon as favorable terms and conditions as the market will
allow. In the latter event, the Landlord shall have the right to collect any
rent which may thereafter become payable under such sublease and to apply the
same first to the payment of any expenses incurred by the Landlord in the
dispossessing the Tenant and in subletting the Demised Premises, and
Landlord may charge interest at the rate equal to one percentage point higher
than the prime bank rate of Key Bank of Utah in Salt Lake City, which rate shall
vary from time to time as the prime bank rate varies, per annum on such
expenses; and, second, to the payment of the rental herein reserved and the
fulfillment of Tenant's covenants hereunder, and the Tenant shall be liable for
amounts equal to the installments of rent as they become due, less any amounts
actually received by the Landlord and applied on account of rental as aforesaid.
The Landlord shall not be deemed to have terminated this Lease by reason of
taking possession of the Demised Premises unless written notice of such
termination has been served on the Tenant.
ARTICLE 16. OTHER DEFAULTS BY TENANT. It is mutually agreed that if the
Tenant shall default in performing any of the terms or provisions of this Lease
Agreement other than as provided in the preceding Article, and if the Landlord
shall give to the Tenant notice in writing of such default, and if the Tenant
shall fail to cure such default within fifteen (15) days after the date of
receipt of such notice, or if the default is of such a character as to require
more than (15) days to cure, and if Tenant shall fail to use reasonable
diligence in curing such default, then in such applicable event the Landlord may
cure such default for the account of and at the cost and expense of Tenant, plus
interest at the rate equal to one percentage point higher than the prime bank
rate of Key Bank of Utah, in Salt Lake City, which rate shall vary from time to
time as the prime bank rate varies, per annum, and the sum so expended by the
Landlord and interest shall be deemed to be additional rent and on demand shall
be paid by the Tenant on the day when rent shall next become due and payable.
Failure to pay any additional rent as provided in this Article shall be deemed a
failure to pay rent within the meaning of Article 15.
ARTICLE 17. QUIET ENJOYMENT. Landlord represents and warrants that it has
full right and authority to enter into this Lease. Tenant, upon paying all
rentals and performing all the Tenant's covenants, terms and conditions in this
Lease Agreement, shall and may peaceably and quietly hold and enjoy the Demised
Premises for the term of this Lease Agreement. Tenant understands that other
persons and entities conduct businesses or reside near the Demised Premises.
Tenant covenants and agrees to conduct its business in such a manner as to no
unreasonably interfere with the occupants of surrounding properties.
ARTICLE 18. WAIVER. No delay or omission by either party hereto to exercise
any right or power accruing upon any non-compliance or default by the other
party with respect to any of the terms hereof shall impair any such right or
power to be construed to be a waiver thereof. Subject to the provisions of this
Article, every such right and power may be exercised at anytime during the
continuance of such default. It is further agreed that a waiver by either of the
parties hereto of any of the covenants and agreements hereof to be performed by
the other shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenants or agreements herein contained.
ARTICLE 19. ATTORNEY'S FEE. In the event of any action at law or inequity
between Landlord and Tenant to enforce any of the provisions and/or rights
hereunder or to recover damages for breach hereof, the unsuccessful party to
such litigation covenants and agrees to pay to the successful party all costs
and expenses, including reasonable
attorney's fee, incurred therein by such successful party, and if such
successful party shall recover judgment in any such action or proceeding, such
costs and expenses and attorney's fees shall be included in and as a part of
such judgment.
ARTICLE 20. NOTICES. Any notices or demand required or permitted to be
given under this Lease Agreement shall be deemed to have been properly given
when, and only when, the same is in writing and has been deposited in the United
States Mail, with postage prepaid, to be forwarded by certified mail and
addressed as follows:
TO THE LANDLORD AT: ▇.▇. ▇▇▇▇▇▇ III
c/o S-PM, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
TO THE TENANT AT: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
WITH ADDITIONAL NOTICE TO TENANT AT: Utah Career College
Attention: ▇▇▇▇▇ ▇▇▇▇▇
1902 ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Such addresses may be changed from time to time by either party by serving
notices as above provided.
ARTICLE 21. SUBORDINATION. This Lease shall be subject and subordinate to
all mortgages or trust deeds which may now or hereafter affect the real property
comprising the Demised Premises, and also to all renewals, modifications,
consolidations and replacements of said mortgages and Trust Deeds. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant will, nevertheless, execute and deliver in a prompt and
diligent manner such further instruments confirming such subordination of this
Lease as may be desired by the holders of said mortgages or Trust Deeds.
ARTICLE 22. ASSIGNMENT AND SUBLEASING. With the specific prior written
consent of Landlord first obtained, Tenant can, at any time, assign this Lease
or sublet all or any portion of the Demised premises. ▇▇▇▇▇▇▇▇'s consent shall
not be unreasonably withheld. Any purported assignment or sublease without
▇▇▇▇▇▇▇▇'s prior written approval shall be null and void and of no force and
effect whatsoever.
ARTICLE 23. SCOPE OF THE AGREEMENT. This Lease Agreement shall be
considered to be the only agreement between the parties hereto. All negotiations
and oral agreements acceptable to both parties are included therein.
ARTICLE 24. OBLIGATIONS OF SUCCESSORS. Landlord and Tenant agree that all
of the provisions hereof are to be construed as covenants and agreements as
though the words importing such covenants and agreements were used in each
separate paragraph hereof, and that all of the provisions hereof shall bind and
inure to the benefit of the parties
▇▇▇▇▇▇, and their respective heirs, legal representatives, successors and
assigns.
ARTICLE 25. HOLD OVER. If, at the expiration or termination of this Lease
or any extension thereof, Tenant shall hold over for any reason, the tenancy of
Tenant thereafter shall be from month to month only and shall, in the absence of
a written agreement to the contrary, be subject to all the other terms and
conditions of this Lease with the monthly rental adjusted to One Hundred Twenty
Percent (120%) of the monthly rental for the last month of the primary Lease
term or subsequent Lease renewal term.
ARTICLE 26. PARKING. The plans and specifications for the construction of
the Demised Premises, as approved by the parties, depict adjacent parking for
the non-exclusive use of Tenant. Such parking and maintenance thereof shall
remain under the control of Landlord (subject to reimbursement of common area
maintenance as hereinafter set forth) and Landlord shall have the right from
time to time to publish reasonable non-discriminatory regulations for ▇▇▇▇▇▇'s
use of the parking, with which regulations Tenant covenants to comply.
ARTICLE 27. TWO BUILDING DEVELOPMENT. The parties acknowledge that Exhibit
"C" hereto contains a proposed site plan for Landlord's entire construction
project to be known as Landlord's two building development (hereinafter referred
to as the "Development"). Tenant acknowledges that the site plan for the
Development is subject to change and that Landlord may construct the Development
in a totally different configuration or may not develop certain portions. During
of after construction of the Development, Landlord reserves the right to sell
the Development or portions thereof as developed with buildings or as
undeveloped property. The parties understand that in the event of Landlord's
sale of portions of the property developed as an integral part of the
Development, prior to such sale, Landlord shall place cross easement, access and
parking easements, suitable to Landlord upon released and unreleased portions of
the Development to facilitate its continued integral use. Common Area
Maintenance provisions contained in the next immediate paragraphs of this Lease
shall be unaffected by any such partial sale and the Landlord shall exercise his
best efforts to ensure the parking and common areas of the entire Development,
as built, will be under common management.
ARTICLE 28. COMMON AREAS. Areas within the outer property lines of the
Development as delineated on the plat attached hereto marked Exhibit "C",
exclusive of areas therein specified or as built for leasing to Tenants shall be
known a Common Areas, as shall all other areas from time to time designated by
Landlord for use as part of the Development. Landlord covenants and agrees at
its sole cost and expense to improve said Common Areas by installing and
construction thereon parking lots, access roads, pedestrian walkways, sidewalks,
exterior canopies, delivery and landscaped areas and lighting facilities to the
extent to which Landlord shall determine to be necessary. Said Common Areas
shall be available for the common use of all Landlords' Tenants in the
Development, their employees, customers and invitees. Notwithstanding anything
elsewhere herein contained, Landlord reserves the right from time to time to
make reasonable changes in, additions to and deletions from the Common Areas and
the purposes to which the same may be
devoted, and the use of Common Areas shall at all times be subject to such
reasonable rules and regulations as may be promulgated by Landlord.
Notwithstanding any of the above to the contrary in making such changes,
Landlord will not unreasonably restrict access to the Demised Premises nor
reduce the parking available to Tenant as shown on Exhibit "A".
ARTICLE 29. COMMON AREA MAINTENANCE. Landlord will maintain or cause to be
maintained the Common Areas and Tenant will reimburse Landlord for ▇▇▇▇▇▇'s
prorate share of the cost of such maintenance as hereinafter provided.
(a) Common area maintenance costs and expenses shall be determined in
accordance with generally accepted accounting principles consistently applied
and allocated to any particular calendar year on the accrual method of
accounting. Such cost and expenses shall include, but shall not be limited to
upkeep, exterior painting, repairs, replacements and improvements in the Common
Areas, snow removal, sweeping and cleanup, depreciation allowance on any
machinery and equipment owned by Landlord and used in connection therewith,
payroll and payroll costs, utility services including fire line water service
charges, police protection, night watchmen, premiums for public liability,
property damage and fire insurance including the Common Areas, any real estate
tax and/or tax consultant expense incurred for the purpose of maintaining
equitable tax assessments on the Development, all property taxes or assessments
levied or assessed against all Common Areas, which, if not separately assessed,
shall be determined, for land, by the ratio of land area designated for Common
Area use to the total land area in the Development and,, for improvements on a
fair and equitable allocation among the various improvements in the Development,
giving weight to the factors which determine the amount of the real property tax
or assessment in question. In addition, such costs shall include administrative
costs equal to ten percent (10%) of the total cost paid or incurred by landlord
under this paragraph.
(b) Tenant shall pay as additional rent to Landlord, ▇▇▇▇▇▇'s prorate share
of such common Area expenses in the following manner:
(1) From and after the date the minimum rental provided for herein has
commenced, but subject to adjustment as hereinafter in this subparagraph (1)
provided, Tenant shall pay Landlord in advance on the first day of each calendar
month during the term of this Lease an estimated and adjustable amount covering
Tenant's proportionate share of common area services and expenses, which amount
may be adjusted by Landlord by notice to Tenant at the end of any calendar month
on the basis of Landlord's experience and reasonably anticipated costs. (See
Lease Rider "A" Building Expenses attached hereto and incorporated herein.)
(2) Within thirty (30) days following the end of each calendar year,
Landlord shall furnish Tenant a statement covering the calendar year just
expired, showing the total operating costs, the amount of Tenant's prorate share
of such common area expenses for such calendar year and the payments made by
Tenant with respect to such calendar year as set forth in subparagraph (b) 1. If
▇▇▇▇▇▇'s prorate share of such common area expenses exceeds Tenant's payments so
made, Tenant shall pay Landlord the deficiency with ten (10) days after receipt
of such statement. If said payments exceed ▇▇▇▇▇▇'s prorate share of such
common area expenses, Tenant shall be entitled to offset the excess against
payments next thereafter to become due Landlord as set forth in said
subparagraph (b) 1. Tenant's prorate share of the total common area expenses for
the previous calendar year shall be that portion of all such expenses which is
equal to the proportion which the number of square feet of gross leasable area
in the Demised Premises bears to the total number of square feet of gross
leasable area of buildings in the entire Development which are from time to time
completed as of the commencement of each calendar year.
There shall be appropriate adjustment of Tenant's share of the common area
expenses as of the commencement and expiration of the term of this Lease. The
term "Gross Leasable Area", as used herein, shall be deemed to mean and include
all fully enclosed areas for the exclusive use and occupancy by occupant,
measured from the exterior surface of exterior walls (and from the extensions
thereof, in the case of openings), including warehousing or storage areas,
clerical or office areas, mezzanines or the second levels of any spaces and
employee areas. "Gross Leasable Area" shall not include docks, areas for truck
loading and unloading nor any utility and/or mechanical equipment vaults or
rooms (to the extent such facilities lie outside exterior building lines).
Anything to the contrary notwithstanding, in the event Landlord or his
designated agent do not maintain the entire common area in the Development, then
and in that event, for the length of time such condition may exist, Landlord's
responsibility shall only be towards the maintenance and repair of those
portions of the common area not maintained by others, and the "expense in
connection with said common areas" shall only refer to such areas maintained by
Landlord. In this event, ▇▇▇▇▇▇'s proportionate share of the expenses shall be
determined on the basis of the proportion of such expenses which the number of
square feet of gross leasable area in the Demised Premises bears to the total
number of square feet of gross leasable area of buildings in the entire
Development which are from time to time completed and occupied as of the
commencement of each calendar year, exclusive of the area occupied and
maintained by others.
ARTICLE 30. SECURITY DEPOSIT. Tenant shall pay an amount equal to first and
last months rent at the time of signing of this Lease. The amount equal to first
months rent shall be applied to the first full month of the Lease term. The
amount equal to last months rent shall be held by Landlord as security for the
faithful performance of Tenant throughout the Lease term. The security deposit
shall be refundable to Tenant at the end of the Lease term upon ▇▇▇▇▇▇'s
satisfactory performance throughout the Lease term.
ARTICLE 31. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this Section
shall not operate to excuse
Tenant from prompt payment of rent or any other payments required by the terms
of this Lease.
ARTICLE 32. ESTOPPEL CERTIFICATE. Within ten (10) days after request
therefor by Landlord, or in the event that upon any sale, assignment or
hypothecation of the demised premises and/or the land thereunder by Landlord, an
estoppel statement shall be required from Tenant, ▇▇▇▇▇▇ agrees to deliver to
any proposed mortgagee or purchaser, or to Landlord, in recordable form a
certificate certifying (if such be the case) that this Lease is in full force
and effect and that there are not defenses or offsets thereto, or stating those
claimed by Tenant.
ARTICLE 33. The submission of this Lease for examination foes not
constitute a reservation of or option for the Demised Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord to Tenant.
IN WITNESS WHEREOF, the Landlord and ▇▇▇▇▇▇ have duly executed and affixed
their respective seals to this Lease Agreement on the day and year first above
written.
LANDLORD: ▇.▇. ▇▇▇▇▇▇ III
By /s/ ▇.▇ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------
▇.▇. ▇▇▇▇▇▇ III
TENANT: ▇▇▇▇▇ ▇▇▇▇▇ dba
Utah Career College
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Personally and Individually
Attached hereto and incorporated herein;
Lease Rider "A" - Building Expenses
Exhibit "A" - Site Plan
Exhibit "B" - Floor Plan
LEASE RIDER "A"
"BUILDING EXPENSES"
With reference to ▇▇▇▇▇▇'s appropriate proportionate share of property tax,
insurance expenses and common area service expenses as defined in the Lease
Agreement, Tenant hereby agrees to pay, as additional monthly rental, One
Thousand Five hundred Dollars and No Cents ($1,500.00) to be paid monthly, in
advance, along with the monthly rental previously stated in Lease ARTICLE 7.
MINIMUM RENT. The above stated fee is an estimated and adjustable fee for such
expenses and services. At the end of each calendar year, Landlord shall furnish
a statement to Tenant defining what the actual tax, insurance and common area
expenses are for the calendar year just expired, stating what Tenant's
appropriate proportionate share of such expenses are and compare such to that
amount which has been prepaid by Tenant. If ▇▇▇▇▇▇'s proportionate share of such
expenses exceeds Tenant's payments so made, Tenant shall pay Landlord the
deficiency within ten (10) days after receipt of said statement. If ▇▇▇▇▇▇'s
prepaid payments exceed ▇▇▇▇▇▇'s proportionate share of such expenses, the
excess shall be applied against future payments for such expenses.
Estimated (1/2 Year 2000):
Real Property Taxes $4,000.00
All Risk Insurance $2,000.00
Common Area Maintenance Expenses $3,000.00
---------
$9,000.00
---------
6 = $1,500.00
Landlords Initials Tenant's Initials
ASSIGNMENT OF LEASE
This Assignment is made and entered into this 1st day of October, 2000, by
and between ▇.▇. ▇▇▇▇▇▇ ▇▇▇, an individual, with his principal place of business
at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, referred to as Previous
Landlord, and ▇▇▇▇▇ ▇▇▇▇▇ dba Utah Career College, with his principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, referred to herein as
Tenant.
WITNESSETH:
WHEREAS, the Previous Landlord and ▇▇▇▇▇▇ entered into a certain Lease
Agreement dated January 7, 2000 (hereinafter referred to as the "Lease"), in
which Landlord leased to Tenant approximately 17,500 square feet of the premises
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ (hereinafter referred to as
the "Premises"); and
WHEREAS, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ has assigned his interest in the Lease to West
One, LLC, a Utah limited liability company as of October 1, 2000.
NOW, THEREFORE, in consideration of the foregoing and subject to the terms
and conditions set forth hereto mutually agree to the aforesaid Assignment of
Lease.
IN WITNESS WHEREOF, the parties agree to the foregoing on the date first
above written;
Previous Landlord: ▇.▇. ▇▇▇▇▇▇ III
By: /s/ ▇.▇. ▇▇▇▇▇▇ ▇▇▇
------------------------------------
▇.▇. ▇▇▇▇▇▇ III
Landlord: WEST ONE, LLC
A Utah limited liability company
By: /s/ ▇.▇. ▇▇▇▇▇▇ ▇▇▇
------------------------------------
▇.▇. ▇▇▇▇▇▇ III
Manager/Member
Tenant: ▇▇▇▇▇ ▇▇▇▇▇ dba
UTAH CAREER COLLEGE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇