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SUBLEASE

 

1.PARTIES

 

This Sublease, dated as of March 13, 2000, is made between MyFamily.com, Inc., a Utah corporation (“MyFamily”) and ah-ha.com, Inc. (“Ah-ha”).

 

2.MASTER LEASE

 

 1.Franklin Covey Co. is the tenant under a written lease dated October 29, 1996, (“Building II Lease”) wherein Covey Corporate Campus Two, L.L.C. (“CCC2”) leased to Franklin Covey Co. the real property located at 466 West 4800 North, in the city of Provo, State of Utah (identified in the Building II Lease as 350 West 4800 North, Provo, Utah) generally described as Riverwoods Building II (“Building II”) and more particularly described in Exhibit B to the Building II Lease. Said Building II Lease has been amended by the Amendment to Lease Agreement (Building No. 2) dated March 21,1997 (“Building II Amendment”).

 

 2.MyFamily is the sublessee under a written sublease dated February 18, 2000, wherein Franklin Covey Co. subleased Building II to MyFamily.

 

 3.Building II Lease, together with Building II Amendment and the Sublease Agreement with MyFamily, are herein collectively referred to as the “Master Lease and Sublease” and are attached hereto as Exhibit “A.”

 

At the time of execution the part of the Premises subject of this Sublease is the west wing of the second floor of Building II (9,000 square feet) of the real property described in Exhibit A to the Master Lease and Sublease, as well as card access for Ah-ha employees to the restroom and break facilities located in the east wing of the second floor of Building II. Effective December 1, 2002, the lease will include the north section of the east wing, including the restrooms and the “break room” located centrally in the east wing, of the second floor of Building II according to the plan shown is Exhibit B, or 45 % of the floor space of the east wing for a total leased area of 13,050 square feet.

 

 4.Ah-ha agrees to assume and perform all obligations of Franklin Covey Co., the lessee under the Master Lease; provided, however, that if any provision of the Master Leases conflicts with any provision of this Sublease, the provision of this Sublease shall prevail.

 

3.PREMISES

 

MyFamily hereby subleases to Ah-ha the Premises on the terms and conditions set forth in this Sublease.

 

4.WARRANTY BY MyFamily

 

MyFamily warrants and represents to Ah-ha that, to the best of its knowledge, the Master Lease has not been amended and that the Sublease has not been amended or modified except as expressly set forth herein, that MyFamily is not now, and as of the

 


commencement of the Term hereof (as set forth below) will not be, in default or breach of any of the provisions of the Master Lease or Sublease, and that MyFamily has no knowledge of any claim by CCC2 or Franklin Covey Co. that Franklin Covey Co. or MyFamily is in default or breach of any of the provisions of the Master Lease or Sublease.

 

5.TERM

 

The initial term of this Sublease (“Initial Term”) shall be for a period of approximately thirty-six (36) months, commencing on the earlier to occur of (i) the date Ah-ha occupies any portion of the Premises for the purposes of conducting its business, or (ii) May 15, 2002 (“Commencement Date”).

 

The Sublease Term for Ah-ha shall expire on May 14, 2005 (“Termination Date”), unless otherwise sooner terminated in “accordance with the provisions of this Sublease or if for any reason the Master Lease or Sublease are terminated. MyFamily shall deliver possession of the Premises in broom clean condition, and, upon termination, Ah-ha shall return the premises in the same condition.

 

Notwithstanding the above term and termination date, either party may terminate this Sublease for any reason and without stating a reason on 180 days notice to the other party.

 

6.RENT

 

 1.Ah-ha shall pay to MyFamily as base rent (“Base Rent”), without deduction, setoff, notice or demand at 360 West 4800 North, Provo, Utah, or such other place as MyFamily shall designate from time to time by notice to Ah-ha, Base Rent in the amount of $15.00 per square foot. Subject to any adjustment in the actual square footage of the Premises mutually agreed upon, Ah-ha shall pay Base Rent in monthly installments as follows: $ 11,250.00, and after December 1, 2002, $16,312.50 per month. This Base Rent will increase by 3% on the 13 month and the 25 month of the Sublease term and again on the 37 month and the first month of any additional annual period if Ah-ha holds over into a month to month tenancy on termination of the primary term of this Sublease.

 

Each monthly payment shall be made in advance of the first day of each month of the Sublease Term. If the Commencement Date begins on a day other than the first day of a month, the rent for the partial months shall be prorated on a per diem basis.

 

It is the intent of both parties that the Base Rent herein specified is for the premises with power, light, heat and janitorial services and otherwise shall be absolutely net to MyFamily throughout the Initial Term or any Renewal Term, and that all costs, expenses and obligations relating to the Premises which may arise or become due during the Initial Term or any Renewal Term shall be paid by Ah-ha in the manner hereafter provided.

 

 2.Further, Ah-ha will pay to MyFamily the direct costs associated with copiers, phone equipment and T1 connections provided by MyFamily at anytime during the term of this Agreement or any holdover thereto

 


 3.Furnishings. Ah-ha shall pay MyFamily $1000 per month for the use of that furniture simultaneously with the payment of the base rent, with that amount increasing to $1500 on December 1, 2002.

 

 4.Interest and Late Charges. If Ah-ha fails to pay within ten (10) days of the date due any rent or other amount or charges which Ah-ha is obligated to pay under the terms of this Sublease, the unpaid amount shall bear interest at the rate of ten percent (10%) per annum, hi addition to interest, if any such installment is not made by Ah-ha within ten (10) days from the date it is due, Ah-ha shall pay MyFamily to partially reimburse MyFamily, for the additional cost of handling such payment, a late charge equal to five percent (5%) of such installment. Acceptance of any interest or late charge shall not constitute a waiver of Ah-ha’s default with respect to such nonpayment by Ah-ha nor prevent MyFamily from exercising any other rights or remedies available to MyFamily under this Sublease.

 

7.SECURITY DEPOSIT

 

Ah-ha shall deposit with MyFamily upon execution of this Sublease, the sum of $11,250.00, which is prepayment of the first month’s rent, and $11,250.00 as security for Ah-ha’s faithful performance of Ah-ha’s obligations hereunder (“Security Deposit”). On December 1, 2002, Ah-ha shall deposit an additional $5062.50 as Security Deposit in relation to the additional space added to the Premises on that date. If Ah-ha fails to pay rent or other charges when due under this Sublease, or fails to perform any of its obligations hereunder, MyFamily may use or apply all or any portion of the Security Deposit for the payment of any rent or other amount when due hereunder and unpaid, for the payment of any other sum for which MyFamily may become obligated by reason of Ah-ha’s default or breach, or for any loss or damage sustained by MyFamily as a result of Ah-ha’s default or breach. If MyFamily so uses any portion of the Security Deposit, Ah-ha shall, within ten (10) days after written demand by MyFamily, restore the Security Deposit to the full amount originally deposited, and Ah-ha’s failure to do so shall constitute a default under this Sublease. MyFamily shall not be required to keep the Security Deposit separate from its general accounts, and shall have no obligation or liability for payment of interest on the Security Deposit. In the event MyFamily assigns its interest in this Sublease, MyFamily shall deliver to its assignee so much of the Security Deposit as is then held by MyFamily. Provided Ah-ha is not then in default of any of its obligations hereunder, MyFamily shall apply a portion of the Security Deposit in an amount equal to Ah-ha’s obligation for the last month’s Base Rent; and within ten (10) days after the Sublease Term has expired, or Ah-ha has vacated the Premises, or any final adjustment pursuant to Subsection 6b hereof has been made, whichever shall last occur, and provided Ah-ha is not then in default of any of its obligations hereunder, so much of the Security Deposit as had not theretofore been applied by MyFamily, shall be returned to Ah-ha or to the last assignee, if any, of Ah-ha’s interest hereunder.

 

8.AH-HA IMPROVEMENTS

 

Ah-ha agrees to sublease the Premises in “as is” condition. At the end of the term of this Sublease or any renewal thereof, Ah-ha shall remove from the Premises, at Ah-ha’s cost, all of Ah-ha’s equipment, fixtures and personal property, and repair any damage to the Premises caused by such removal.

 


9.SIGNAGE

 

Ah-ha may, at its sole expense, install signage in the lobby of Building II on the designated directory sign provided by MyFamily.

 

10.USE OF PREMISES

 

The Premises shall be used and occupied only for general office use, and for no other use or purpose. Ah-ha may use the Premises twenty-four (24) hours a day, seven (7) days a week.

 

11.ASSIGNMENT AND SUBLETTING

 

Ah-ha shall not assign this Sublease or further sublet all or any part of the Premises.

 

12.QUIET ENJOYMENT

 

Subject to the provisions of this Sublease and the Master Leases and Sublease and conditioned upon the performance of all of the provisions to be performed by Ah-ha hereunder and thereunder, MyFamily shall secure to Ah-ha during the Term the quiet and peaceful possession of the Premises and all rights and privileges appertaining thereto.

 

13.OTHER PROVISIONS OF SUBLEASE

 

All applicable terms and conditions of the Master Leases and Sublease are incorporated into and made a part of this Sublease as if (i) Ah-ha were the tenant thereunder, and (ii) MyFamily were the landlord thereunder. Ah-ha assumes and agrees to perform the Tenant’s obligations under the Master Lease during the Sublease Term to the extent that such obligations are applicable to the Premises, except that the obligation to pay rent to CCC2 under the Master Leases shall be considered performed by Ah-ha to the extent and in the amount rent is paid to MyFamily in accordance with Section 6 of this Sublease. Ah-ha shall not commit or suffer any act or omission that will violate any of the provisions of the Master Leases. MyFamily shall exercise due diligence in attempting to cause CCC2 and/or Franklin Covey Co. to perform its obligations under the Master Leases or Sublease for the benefit of Ah-ha. If the Master Leases or Sublease terminate as a result of a default or breach by MyFamily or Ah-ha under this Sublease and/or the Master Leases, then the defaulting party shall be liable to the nondefaulting party for the damage suffered as a result of such termination. Notwithstanding the foregoing, if the Master Leases give MyFamily any right to terminate the Master Leases in the event of the partial or total damage, destruction, or condemnation of the Premises, the exercise of such right by MyFamily shall not constitute a default or breach hereunder.

 

14.ATTORNEY’S FEES

 

If MyFamily or Ah-ha shall commence an action against the other arising out of or in connection with this Sublease, the prevailing party shall be entitled to recover its costs of suit and reasonable attorney’s fees.

 


15.NOTICES

 

All notices and demands that may or are to be required or permitted to be given by either party on the other hereunder shall be in writing. All notices and demands by MyFamily to Ah-ha shall be sent by United States mail, postage prepaid, addressed to Ah-ha at the Premises, and to the address herein below, or to such other place as Ah-ha may from time to time designate in a notice to MyFamily. All notices and demands by Ah-ha to MyFamily shall be sent by United States mail, postage prepaid, addressed to at the address set forth herein, and to such other person or place as MyFamily may from time to time designate in a notice to Ah-ha.

 

To MyFamily:

 MyFamily.com, Inc.    
  Chief Financial Officer    
  360 West 4800 North    
  Provo, Utah 84604    
       
  To Ah-ha:    
       
  Ah-ha, Inc.    
  Chief Financial Officer    
  360 West 4800 North    
  Provo, Utah 84604    

 

16.CONSENT BY LANDLORD

 

This Sublease shall be of no force or effect unless consented to by CCC2 as required under the terms of the Master Lease.

 

17.COMPLIANCE

 

The parties hereto agree to comply with all applicable federal, state and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, property or the subject matter of this Sublease, including, but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign Investment in Real Property Tax Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Americans with Disabilities Act.

 

MYFAMILY.COM, INC

   

AH-HA, INC.

By: /s/    Illegible           By: /s/    PAUL BROCKBANK        
 
    

Title:

 CFO   

Title:

 CEO

 


SUBLEASE

 

1.PARTIES

 

This Sublease, dated as of February 18, 2000, is made between FRANKLIN COVEY CO., a Utah corporation (“Sublessor”), and MYFAMILY.COM, INC., a Utah corporation (“Sublessee”).

 

2.MASTER LEASE

 

 a.Sublessor is the Tenant under a written lease dated January 1, 1996 (“Building I Lease”), wherein Covey Corporate Campus One, L.L.C. (“CCC1”) leased to Sublessor the real property located at 360 West 4800 North (identified in the Building I Lease as approximately 360 West 4800 North, and in the Amendments as 300 West 4800 North), in the city of Provo, State of Utah, generally described as Riverwoods Building I, and more particularly described in Exhibit B to the Master Lease (“Building I”). Building I Lease has been amended by the Amendment to Lease Agreement dated May 24, 1996 and the Second Amendment to Lease Agreement (Building No. 1) dated March 21, 1997 (collectively “Building I Amendments”).

 

 b.Sublessor is the Tenant under a written lease dated October 29, 1996 (“Building II Lease”), wherein Covey Corporate Campus Two, L.L.C. (“CCC2”) leased to Sublessor the real property located at 466 West 4800 North, in the city of Provo, State of Utah, (identified in the Building II Lease as 350 West 4800 North, Provo, Utah) generally described as Riverwoods Building II (“Building II”), and more particularly described in Exhibit B to the Building II Lease. Said Building II Lease has been amended by the Amendment to Lease Agreement (Building No. 2) dated March 21, 1997 (“Building II Amendment”).

 

 c.Building I Lease, together with Building I Amendments, and Building II Lease, together with Building II Amendment, are herein collectively referred to as the “Master Leases” and are attached hereto as Exhibit “A.”

 

 d.CCC1 and CCC2 are herein collectively referred to as “Landlord.”

 

 e.For purposes of this Sublease, the term “Premises” includes all of Building I and Building II and the real property more particularly described in Exhibit A to the Master Leases.

 

 f.Sublessee agrees to assume and perform all obligations of the Tenant under the Master Leases; provided, however, that if any provision of the Master Leases conflicts with any provision of this Sublease, the provision of this Sublease shall prevail.

 

3.PREMISES

 

Sublessor hereby subleases to Sublessee on the terms and conditions set forth in this Sublease the Premises, consisting of approximately 119,161 gross rentable square feet, subject to adjustment upon final calculation of Sublessor’s architect (the “Premises”).

 

4.WARRANTY BY SUBLESSOR

 

Sublessor warrants and represents to Sublessee that the Lease has not been amended or modified except as expressly set forth herein, that Sublessor is not now, and as of the commencement of the Term hereof (as set forth below) will not be, in default or breach of any of the provisions of the Lease, and that Sublessor has no knowledge of any claim by Lessor that Sublessor is in default or breach of any of the provisions of the Lease.

 

Page 1


5.TERM

 

The initial term of this Sublease (“Initial Term”) shall be for a period of approximately seven (7) years, commencing as follows:

 

 a.For Building II, on the earlier to occur of (i) substantial completion of the Sublessee Improvements to Building II; (ii) the date Sublessee occupies any portion of Building II for the purpose of conducting its business, or (iii) April 1, 2000 (“Building II Commencement Date”).

 

 b.For Building I, on the earlier to occur of (i) substantial completion of the Sublessee Improvements to Building I; (ii) the date Sublessee occupies any portion of Building I for the purpose of conducting its business, or (iii) June 1, 2000 (“Building I Commencement Date”).

 

The Initial Term (for both Building I and Building II) shall expire on May 31, 2007 (“Termination Date”), unless otherwise sooner terminated in accordance with the provisions of this Sublease or if for any reason the Master Leases are terminated. In the event the Initial Term commences prior to April 1, 2000 for Building II, and prior to June 1, 2000 for Building I, Sublessor and Sublessee shall execute a memorandum setting forth the actual dates of commencement of the Initial Term. Sublessor shall deliver possession of the Premises (“Possession”) in broom clean condition; provided that Sublessor shall clean all carpets prior to delivery of Possession.

 

Notwithstanding the foregoing, on or after February 20, 2000, Sublessee may enter upon Building II, and on or after May 15, 2000, Sublessee may enter upon Building I, for the purpose of constructing Sublessee’s Improvements, subject to Sublessee’s observance and performance of all of the obligations contained in this Sublease (excluding the payment of Base Rent).

 

6.OPTION TO RENEW

 

Subject to earlier termination of the Master Leases as provided in Paragraph 5, above, Sublessee shall have the option to renew this Sublease as follows:

 

 a.Provided Sublessee is not then in default under this Sublease, Sublessee shall have the option to renew this Sublease for one (1) additional term (“lst Renewal Term”) for a period commencing April 1, 2007, and ending December 31, 2009 (1st Option to Renew). Sublessee shall exercise the 1st Option to Renew by giving written notice to Sublessor no later than ninety (90) days prior to the Termination Date.

 

 b.Provided Sublessor has exercised its options to renew the Master Leases, as provided therein, and provided further that Sublessee is not then in default under this Sublease, Sublessee shall have the option to renew this Sublease for one (1) additional term (“2nd Renewal Term”) for a period commencing January 1, 2009, and ending March 31, 2013 (“2nd Option to Renew”). Sublessee shall exercise the 2nd Option to Renew by giving written notice to Sublessor no later than September 1, 2009.

 

 c.Base Rent for any Renewal Term shall increase three percent (3%) annually over the preceding lease year’s Base Rent.

 

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7.RENT

 

 a.Base Rent. Sublessee shall pay to Sublessor as base rent (“Base Rent”), without deduction, setoff, notice or demand, at 2200 West Parkway Boulevard, Salt Lake City, Utah, 84119, Attn: Mike Fitch, or at such other place as Sublessor shall designate from time to time by notice to Sublessee, Base Rent in the amount of $14.85 per square foot with 3% annual increases. Subject to any adjustment in the actual square footage of the Premises as determined by Sublessor’s architects, as provided for in Section 3, above, Sublessee shall pay Base Rent in monthly installments as follows:

 

For the Period of:


  Minimum
Monthly Base
Rent:


Building II Commencement Date through Building I Commencement Date:

  $77,858.55

Building I Commencement Date through March 31, 2001

  $147,461.74

April 1, 2001 through March 31, 2002

  $151,885.59

April 1, 2002 through March 31, 2003

  $156,442.12

April 1, 2003 through March 31, 2004

  $161,135.38

April 1, 2004 through March 31, 2005

  $165,969.44

April 1, 2005 through March 31, 2006

  $170,948.52

April 1, 2006 through March 31, 2007

  $176,076.98

 

Each monthly payment shall be made in advance on the first day of each month of the Initial Term. If the Building II Commencement Date or the Building I Commencement Date begin on a day other that the first day of a month, the rent for the partial months shall be prorated on a per diem basis.

 

It is the intent of both parties that the Base Rent herein specified shall be absolutely net to Sublessor throughout the Initial Term or any Renewal Term, and that all costs, expenses and obligations relating to the Premises which may arise or become due during the Initial Term or any Renewal Term shall be paid by Sublessee in the manner hereafter provided.

 

 b.Direct Costs. Sublessee shall pay to Sublessor as additional rent 100% of the amounts payable by Sublessor for Direct Costs incurred during the Term. Such additional rent shall be payable as and when Direct Costs are payable by Sublessor to Landlord. The Master Leases provide for the payment by Sublessor of Direct Costs on the basis of an estimate thereof. Any adjustments between estimated and actual Direct Costs shall be made pursuant to the provisions of the Master Leases. If any such adjustments shall occur after the expiration or earlier termination of the Term, then the obligations of Sublessor and Sublessee under this Subsection 7b shall survive such expiration or termination. Sublessor shall, upon request by Sublessee, furnish Sublessee with copies of all statements submitted by Lessor of actual or estimated Direct Costs during the Term.

 

 c.Interest and Late Charges. If Sublessee fails to pay within ten (10) days of the date due any rent or other amount or charges which Sublessee is obligated to pay under the terms of this Sublease, the unpaid amount shall bear interest at the rate of ten (10%) per annum. In addition to interest, if any such installment is not made by Sublessee within ten (10) days from the date it is due, Sublessee shall pay Sublessor to partially reimburse Sublessor for the additional cost of handling such payment a late charge equal to five percent (5%) of such installment. Acceptance of any interest or late charge shall not constitute a waiver of Sublessee’s default with respect to such nonpayment by Sublessee nor prevent Sublessor from exercising any other rights or remedies available to Sublessor under this Sublease.

 

8.SECURITY DEPOSIT

 

Sublessee shall deposit with Sublessor upon execution of this Sublease, the sum of $294,923.46, which consists of $147,461.73 prepayment of rent and $147,461.73 as security for Sublessee’s faithful performance of Sublessee’s obligations hereunder (“Security Deposit”). If Sublessee fails to pay rent or other charges when due under this Sublease, or fails to perform any of its obligations hereunder, Sublessor may use or apply all or any portion of the Security Deposit for the payment of any rent or other amount when due hereunder and unpaid, for the payment of any other sum for which Sublessor may become obligated by reason of Sublessee’s default or breach, or for any loss or damage sustained by Sublessor as a result of Sublessee’s default or breach. If Sublessor so uses any portion of the Security Deposit, Sublessee shall, within ten (10) days after written demand by Sublessor, restore the Security Deposit to the full amount originally deposited, and Sublessee’s failure to do so shall constitute a default under this Sublease. Sublessor shall not be required to keep the Security Deposit separate from its general accounts, and shall have no obligation or liability for payment of interest on the Security Deposit. In the event Sublessor assigns its interest in this Sublease, Sublessor shall deliver to its assignee so much of the Security Deposit as is then held by Sublessor. Provided Sublessee is not

 

Page 3


then in default of any of its obligations hereunder, Sublessor shall apply a portion of the Security Deposit in an amount equal to Sublessee’s obligation for the last month’s Base Rent and any additional rent occurring during the Initial Term or any Renewal Term; and within ten (10) days after the Initial Term has expired, or Sublessee has vacated the Premises, or any final adjustment pursuant to Subsection 7b hereof has been made, whichever shall last occur, and provided Sublessee is not then in default of any of its obligations hereunder, so much of the Security Deposit as had not theretofore been applied by Sublessor, shall be returned to Sublessee or to the last assignee, if any, of Sublessee’s interest hereunder.

 

9.SUBLESSEE IMPROVEMENTS

 

Sublessee agrees to sublease the Premises in “as is” condition. Sublessor shall reimburse Sublessee for Sublessee’s actual costs incurred in making improvements to the Premises, not to exceed $3.00 per rentable square foot, as determined by Landlord’s architect pursuant to Paragraph 3, above (“Sublessee Improvements”). Upon completion of Sublessee Improvements, Sublessee shall submit to Sublessor (i) a written statement, certified by an officer of Sublessee setting forth the actual expenses incurred in completing Sublessee Improvements, together with copies of all applicable invoices, and (ii) copies of releases of lien from all suppliers of materials or services used in making Sublessee Improvements. Within 30 days of Sublessor’s receipt of all necessary documentation, Sublessor shall pay to Sublessee an amount equal to the actual costs incurred in making Sublessee Improvements, not to exceed $3.00 per rentable square foot, or at Sublessor’s option, credit said amount to Sublessee as an equivalent amount of free rent. Upon execution of this Sublease, Sublessee shall provide to Sublessor written plans and specifications for all Sublessee Improvements. Sublessor shall immediately submit said plans and specifications to the Landlord for approval. Landlord shall approve or request modifications to the plans and specifications within three (3) days of its receipt of the same. Sublessee shall not cause any Sublessee Improvements to be made to the Premises until written approval of the plans and specifications is received from Landlord under the Lease. All Sublessee Improvements and other improvements by Sublessee to the Premises shall conform to all applicable governmental ordinances and regulations, including but not limited to required permits and approvals, and shall become part of the realty upon installation thereof. At the end of the Term or any renewal thereof, Sublessee shall remove from the Premises, at Sublessee’s cost, all of Sublessee’s equipment, fixtures and personal property, and repair any damage to the Premises caused by such removal.

 

10.SIGNAGE

 

Sublessee may, at its sole expense, install signage upon the Premises pursuant to the terms of the Master Leases and upon obtaining necessary approvals from Riverwoods Research and Business Park Owners Association and the proper governmental authorities in Utah County, State of Utah.

 

11.USE OF PREMISES

 

The Premises shall be used and occupied only for general office use, and for no other use or purpose. Sublessee may use the Premises twenty-four (24) hours a day, seven (7) days a week.

 

12.FURNITURE AND EQUIPMENT

 

Sublessee shall have the right, exercisable by giving written notice to Sublessor not later than February 20, 2000, to purchase all or a portion of the furniture and equipment described in the attached Exhibit B, at the prices set forth on Exhibit B. All furniture and equipment currently located on the Premises that is not listed on Exhibit B or that Sublessee elects not to purchase shall be removed by Sublessor and Sublessor shall repair any damage to the Premises caused by such removal.

 

13.CONDITION OF PREMISES

 

Notwithstanding the provisions of Paragraph 12, above, Sublessor shall not remove the UPS systems, existing cabling, wiring and security systems installed upon the Premises, and Sublessee shall have the right to use said UPS systems, the existing cabling, wiring and security systems as Sublessee reasonably determines is necessary for the conduct of its business from the Premises. Further, Sublessor shall cause to remain on the Premises for

 

Page 4


Sublessee’s use the existing common area reception furniture, executive conference table and common area murals.

 

14.ASSIGNMENT AND SUBLETTING

 

Sublessee shall not assign this Sublease or further sublet all or any part of the Premises without the prior written consent of the Sublessor (and the consent of Landlord, if such is required under the terms of the Lease). Sublessor will not unreasonably withhold permission to sublet space to a mutually agreed subtenant.

 

15.QUIET ENJOYMENT

 

Subject to the provisions of this Sublease and the Master Leases and conditioned upon performance of all of the provisions to be performed by Sublessee hereunder and thereunder, Sublessor and Landlord shall secure to Sublessee during the Term the quiet and peaceful possession of the Premises and all rights and privileges appertaining thereto.

 

16.OTHER PROVISIONS OF SUBLEASE

 

All applicable terms and conditions of the Master Leases are incorporated into and made a part of this Sublease as if (i) Sublessee were the tenant thereunder and (ii) Sublessor were the landlord thereunder. Sublessee assumes and agrees to perform the Tenant’s obligations under the Master Leases during the Initial Term or any Renewal Term to the extent that such obligations are applicable to the Premises, except that the obligation to pay rent to Landlord under the Master Leases shall be considered performed by Sublessee to the extent and in the amount rent is paid to Sublessor in accordance with Section 7 of this Sublease. Sublessee shall not commit or suffer any act or omission that will violate any of the provisions of the Master Leases. Sublessor shall exercise due diligence in attempting to cause Landlord to perform its obligations under the Master Leases for the benefit of Sublessee. If the Master Leases terminate as a result of a default or breach by Sublessor or Sublessee under this Sublease and/or the Master Leases, then the defaulting party shall be liable to the nondefaulting party for the damage suffered as a result of such termination. Notwithstanding the foregoing, if the Master Leases give Sublessor any right to terminate the Master Leases in the event of the partial or total damage, destruction, or condemnation of the Premises, the exercise of such right by Sublessor shall not constitute a default or breach hereunder.

 

17.ATTORNEY’S FEES

 

If Sublessor or Sublessee shall commence an action against the other arising out of or in connection with this Sublease, the prevailing party shall be entitled to recover its costs of suit and reasonable attorney’s fees.

 

18.NOTICES

 

All notices and demands that may or are to be required or permitted to be given by either party on the other hereunder shall be in writing. All notices and demands by the Sublessor to Sublessee shall be sent by United States Mail, postage prepaid, addressed to the Sublessee at the Premises, and to the address herein below, or to such other place as Sublessee may from time to time designate in a notice to the Sublessor. All notices and demands by the Sublessee to Sublessor at the address set forth herein, and to such other person or place as the Sublessor may from time to time designate in a notice to the Sublessee.

 

To Sublessor:

  

Franklin Covey Co.

2200 West Parkway Boulevard

Salt Lake City, Utah 84119

Attn: Val John Christensen

           Executive Vice President/General Counsel

To Sublessee:

  

MyFamily.com, Inc.

360 West 4800 North

Provo, Utah 84604

Attn: Peter W. Clark, Chief Financial Officer

 

Page 5


19.CONSENT BY LANDLORD

 

This Sublease shall be of no force or effect unless consented to by Landlord as required under the terms of the Master Leases.

 

20.COMPLIANCE

 

The parties hereto agree to comply with all applicable federal, state, and local laws, regulations, codes, ordinances and administrative orders having jurisdiction over the parties, property or the subject matter of this Agreement, including, but not limited to, the 1964 Civil Rights Act and all amendments thereto, the Foreign Investment in Real Property Tax Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Americans with Disabilities Act.

 

Sublessor:

 

FRANKLIN COVEY CO.

   

Sublessee:

 

MYFAMILY.COM, INC.

By /s/    VAL JOHN CHRISTENSEN           By /s/    Illegible        
 
    

Title

 Exec. Vice Pres.   

Title

 VP AND TREASURER

Date:

 3/2/00   

Date

 2/18/00

 

LANDLORD’S CONSENT TO SUBLEASE

 

The undersigned landlord (“Landlord”) under the Building I Lease, hereby consents to the foregoing Sublease without waiver of any restriction in the Building I Lease concerning further assignment or subletting. Landlord certifies that, as of the date of Landlord’s execution hereof, Sublessor is not in default or breach of any of the provisions of the Building I Lease, and that the Building I Lease has not been amended or modified except as expressly set forth in the foregoing Sublease. Landlord shall enter into a separate non-disturbance agreement in favor of Sublessee in the event the Building I Lease is terminated for any reason prior to the end of the Initial Term or any Renewal Term thereof.

 

COVEY CORPORATE CAMPUS ONE, L.L.C.
By /s/    Illegible        
 

Title

 Manager

Date

 3/02/00

 

The undersigned landlord (“Landlord”) under the Building II Lease, hereby consents to the foregoing Sublease without waiver of any restriction in the Building II Lease concerning further assignment or subletting. Landlord certifies that, as of the date of Landlord’s execution hereof, Sublessor is not in default or breach of any of the provisions of the Building II Lease, and that the Building II Lease has not been amended or modified except as expressly set forth in the foregoing Sublease. Landlord shall enter into a separate non-disturbance agreement in favor of Sublessee in the event the Building II Lease is terminated for any reason prior to the end of the Initial Term or any Renewal Term thereof.

 

Page 6


COVEY CORPORATE CAMPUS TWO, L.L.C.
By /s/    Illegible        
 

Title

 Manager

Date

 3/02/00

 

Page 7


 

LEASE AGREEMENT

 

LANDLORD:

  COVEY CORPORATE CAMPUS TWO, L.L.C.

TENANT:

  COVEY LEADERSHIP CENTER, INC.

 

The Boyer Company

 


TABLE OF CONTENTS

 

DESCRIPTION


 PAGE

I.

 

PREMISES

 1
  1.1 

Description of Premises

 1
  1.2 

Work of Improvement

 1
  1.3 

Construction of Shell Building

 2

II.

 

TERM

 2
  2.1 

Length of Term

 2
  2.2 

Commencement Date; Obligation to Pay Rent

 2
  2.3 

Construction of Leased Premises

 2
  2.4 

Renewal Option

 3
  2.5 

Acknowledgment of Commencement Date

 3

III.

 

BASIC RENTAL PAYMENTS

 3
  3.1 

Basic Annual Rent

 3
  3.2 

Additional Monetary Obligations

 4

IV.

 

ADDITIONAL RENT

 4
  4.1 

Basic Annual Rent

 4
  4.2 

Report of Direct Costs and Statement of Estimated Costs

 5
  4.3 

Payment of Costs

 5
  4.4 

Resolution of Disagreement

 6
  4.5 

Limitations

 6

V.

 

SECURITY DEPOSIT

 6

VI.

 

USE

 6
  6.1 

Use of Leased Premises

 6
  6.2 

Prohibition of Certain Activities or Uses

 7
  6.3 

Affirmative Obligations with Respect to Use

 7
  6.4 

Suitability

 7
  6.5 

Personal Property Taxes

 8

VII.

 

UTILITIES AND SERVICE

 8
  7.1 

Obligations of Property Manager

 8
  7.2 

Tenant’s Election

 8
  7.3 

Tenant’s Obligations

 9
  7.4 

Additional Limitations

 9
  7.5 

Limitation on Landlord’s Liability

 9

 

i


DESCRIPTION


 PAGE

VIII.

 

MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS

 9
  8.1 

Maintenance and Repairs by Property Manager

 9
  8.2 

Maintenance and Repairs by Tenant

 9
  8.3 

Alterations

 10
  8.4 

Landlord’s Access to Leased Premises

 10

IX.

 

ASSIGNMENT

 10
  9.1 

Assignment Prohibited

 10
  9.2 

Consent Required

 11
  9.3 

Landlord’s Right in Event of Assignment

 11

X.

 

INDEMNITY

 11
  10.1 

Indemnification

 11
  10.2 

Release of Landlord

 12
  10.3 

Notice

 12
  10.4 

Litigation

 12

XI.

 

INSURANCE

 13
  11.1 

Fire and “All Risk” Insurance on Tenant’s Personal Property and Fixtures

 13
  11.2 

Liability Insurance

 13
  11.3 

Subrogation

 13
  11.4 

Lender

 13

XII.

 

DESTRUCTION

 13

XIII.

 

CONDEMNATION

 14
  13.1 

Total Condemnation

 14
  13.2 

Partial Condemnation

 14
  13.3 

Landlord’s Option to Terminate

 14
  13.4 

Award

 14
  13.5 

Definition

 14

XIV.

 

LANDLORD’S RIGHTS TO CURE

 15
  14.1 

General Right

 15
  14.2 

Mechanic’s Lien

 15

XV.

 

FINANCING; SUBORDINATION

 15
  15.1 

Subordination

 15
  15.2 

Attornment

 16
  15.3 

Financial Information

 16

 

ii


DESCRIPTION


 PAGE

XVI.

 

EVENTS OF DEFAULT; REMEDIES OF LANDLORD

 16
  16.1 

Default by Tenant

 16
  16.2 

Remedies

 16
  16.3 

Past Due Sums; Penalty

 17

XVII.

 

PROVISIONS APPLICABLE AT TERMINATION OF LEASE

 17
  17.1 

Surrender of Premises

 17
  17.2 

Holding Over

 17

XVIII.

 

ATTORNEYS’ FEES

 17

XIX.

 

ESTOPPEL CERTIFICATE

 18
  19.1 

Landlord’s Right to Estoppel Certificate

 18
  19.2 

Effect of Failure to Provide Estoppel Certificate

 18

XX.

 

PARKING

 18

XXI.

 

SIGNS, AWNINGS, AND CANOPIES

 18

XXII.

 

MISCELLANEOUS PROVISIONS

 19
  21.1 

No Partnership

 19
  21.2 

Force Majeure

 19
  21.3 

No Waiver

 19
  22.4 

Notice

 19
  22.5 

Captions; Attachments; Defined Terms

 20
  22.6 

Recording

 20
  22.7 

Partial Invalidity

 20
  22.8 

Broker’s Commissions

 20
  22.9 

Tenant Defined: Use of Pronouns

 20
  22.10 

Provisions Binding, Etc.

 20
  22.11 

Entire Agreement, Etc.

 21
  22.12 

Governing Law

 21

 

iii


DESCRIPTION


  PAGE

SIGNATURES

  22

NOTARIES

  23 &24

 

RIDER

 Yes x No ¨

GUARANTY

 Yes ¨ No ¨

 

EXHIBIT “A”

 DESCRIPTION OF REAL PROPERTY

EXHIBIT “B”

 FLOORPLAN OF LEASED PREMISES

EXHIBIT “C

 WORK LETTER-CONSTRUCTION AND/OR FINISH OF IMPROVEMENTS TO LEASED PREMISES

EXHIBIT “D”

 ACKNOWLEDGMENT OF COMMENCEMENT DATE & ESTOPPEL CERTIFICATE

EXHIBIT “E”

 COST TO CONSTRUCT LEASED PREMISES

 

 

iv


LEASE AGREEMENT

 

COVEY LEADERSHIP OFFICE BUILDING II

 

THIS LEASE AGREEMENT (the “Lease”) is made and entered into as of this 29th day of October, 1996 by and between COVEY CORPORATE CAMPUS TWO, L.L.C. (the “Landlord”), and COVEY LEADERSHIP CENTER Franklin Covey, INC. (the “Tenant”). THE BOYER COMPANY, L. C. (the “Property Manager”) is also a party to this Lease for the limited purpose of providing the property management services described herein.

 

For and in consideration of the rental to be paid by tenant and of the covenants and agreements herein set forth to be kept and performed by Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the Leased Premises (as hereafter defined), at the rental and subject to and upon all of the terms, covenants and agreements hereinafter set forth.

 

I.PREMISES

 

1.1 Description of Premises. Landlord does hereby demise, lease and let unto Tenant, and Tenant does hereby take and receive from Landlord the following:

 

(a) That certain floor area containing approximately 62,916 gross rentable square feet (the “Leased Premises”), on Floors One, Two and Three (includes 4,719 square feet in the basement) of the three-story office building (the “Building”) being constructed at approximately 350 West 4800 North, Provo, Utah, on the real property (the “Property”) described on Exhibit “A” attached hereto and by this reference incorporated herein. The space occupied by Tenant consists of the entire Building, as set forth on Exhibit “B” which is attached hereto and by this reference incorporated herein.

 

(b) Such non-exclusive rights-of-way, easements and similar rights with respect to the Building and Property as may be reasonably necessary for access to and egress from, the Leased Premises.

 

(c) The exclusive right to use those areas designated and suitable for vehicular parking, including the exclusive right to the use of Two Hundred Fifty- one (251) parking stalls.

 

1.2 Work of Improvement. The obligation of Landlord and Tenant to perform the work and supply the necessary materials and labor to prepare the Leased Premises for occupancy are described in detail on Exhibit “C”. Landlord and Tenant shall expend all funds and do all acts required of them as described on Exhibit “C” and shall perform or have the work performed promptly and diligently in a first class and workmanlike manner.

 


1.3 Construction of Shell Building. Landlord shall, at its own cost and expense, construct and complete a three story 62,916 gross rentable square foot building and cause all of the construction which is to be performed by it in completing the Building and performing its work as set forth on Exhibit “C”, to be substantially completed as evidenced by a Certificate of Occupancy, and the Leased Premises ready for Tenant to install its fixtures and equipment and to perform its other work as described on Exhibit “C” as soon as reasonably possible, but in no event later than July 1,1997 (Target Date”). In the event that Landlord’s construction of obligation has not been fulfilled upon the expiration of the “Target Date”, Tenant shall have the right to exercise any right or remedy available to it under this Lease, including the right to terminate this Lease and the right to charge Landlord and cause Landlord to pay any increased costs associated with Tenant’s current leases due to holding over in such space or moving to temporary space; provided that under no circumstances shall Landlord be liable to Tenant resulting from delay in construction covered by circumstances beyond Landlord’s direct control.

 

II.TERM

 

2.1 Length of Term. The term of this Lease shall be for a period of twenty (20) plus the partial calendar month, if any, occurring after the Commencement Date (as hereinafter defined) if the Commencement Date occurs other than on the first day of a calendar month.

 

2.2 Commencement Date; Obligation to Pay Rent. The term of this Lease and Tenant’s obligation to pay rent hereunder shall commence on the first to occur of the following dates (“Commencement Date”): (Projected to be July 1,1997)

 

(a) The date Tenant occupies the Premises and conducts business.

 

(b) The date fifteen (15) days after the Landlord, or Landlord’s supervising contractor, notified Tenant in writing that Landlord’s construction obligations respecting the Leased Premises have been fulfilled and/or that the Leased Premises are ready for occupancy and/or performance of Tenant’s work. Such notice shall be accompanied by an occupancy permit and a certificate from the Building Architect stating that remaining punchlist items can be completed within fifteen (15) days and will not materially interfere with Tenant’s business. Prior to Commencement Date, it is contemplated that Tenant shall be able to perform its construction obligation as per Exhibit C II(H).

 

2.3 Construction of Leased Premises. Landlord shall provide a budget prior to the commencement of construction of the Leased Premises (see Exhibit “E”). Landlord shall itemize each part of the construction and its associated estimated cost. Landlord shall pay an amount equal to $1,099,010 or $22.00 per usable square foot (on 49,955 usable square feet excluding the basement space of 4,719 square feet) of the cost listed (excluding cost to construct Shell Building) and Tenant shall be obligated for the

 

2


remaining costs shown on Exhibit “E”. Landlord shall not be obligated to pay for any increase in the actual cost of construction over and above the construction costs shown on Exhibit “E”. Any special decorator items, equipment, furniture or furnishings not designated on Exhibit “E”, as well as changes initiated by the Tenant to the Leased Premises, shall be the sole cost of Tenant and shall include the defined extras on Exhibit “E.”