LEASE
DATE:
Landlord: Xxxxxxx Xxxxxxxx de Cima
Address: Xxxxxxxxx 000.0
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxx, XX 00000
Tenant: NuPro Innovations Inc.
Address: 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
RECITALS:
X. Xxxxxxxx is the true and lawful owner of the Premises, as described
below, and has the right to lease the same in the manner set forth in this
Lease.
B. Tenant desires to lease the Premises from Landlord and Landlord is
willing to lease the Premises to Tenant on the terms and conditions set forth
herein.
FOR VALUABLE CONSIDERATION, it is agreed as follows:
1. DESCRIPTION OF LEASED PREMISES. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the real property described on Exhibit "A"
attached hereto, situated in the City of Guaymas, State of Sonora, Republic of
Mexico, together with all improvements presently located thereon and all
easements, appurtenances and rights related thereto (the "Premises" or the
"Leased Premises"); SUBJECT, HOWEVER, to current taxes and assessments,
reservations in patents and all rights-of-way, easements, covenants, conditions,
restrictions, obligations, liens, encumbrances, and liabilities of record as of
the date hereof, and to all zoning and building code requirements and other
governmental laws, rules, and regulations.
2. TERM. The initial term of this Lease (the "Initial Term") shall be for a
period of five (5) years, commencing on the 1st day of November, 1997, at 12:01
a.m., and continuing to 11:59 p.m. on the 31st day of October, 2002, subject to
the terms and conditions set forth in this Lease which may permit or provide for
an earlier termination. After the expiration of the Initial Term, this Lease may
be extended, at the option of the Tenant, for an additional five year period,
subject to the same terms and conditions as set forth herein.
3. RENTAL. Tenant shall pay to Landlord as rent during the term hereof, the
amount of $1,015.50 month, payable in advance on the first day of each month
during the term of this Lease without any deduction or offset.
4. BUILDINGS AND IMPROVEMENTS; REPAIRS.
(a) Xxxxxx agrees not to commit or permit any waste of the Leased Premises.
Xxxxxx agrees to comply with all laws, ordinances, regulations, building
permits, governmental stipulations and conditions, covenants, conditions and
restrictions, public or private, affecting the Leased Premises and not to suffer
or permit any act to be done in or about the Leased Premises in violation
thereof.
(b) Tenant hereby accepts the Premises in their "as is" condition including
any and all defects, latent or otherwise, existing as of the Lease commencement
date or the date that Tenant takes possession of the Premises, whichever is
earlier, subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises, and
any covenants or restrictions of record, and accepts this Lease subject thereto
and to all matters disclosed thereby. Tenant acknowledges that neither Landlord
nor Landlord's agent has made any representation or warranty as to the present
or future suitability of the Premises for the conduct of Xxxxxx's business.
(c) Tenant shall not remove, demolish or impair the structural character of
any existing improvement to the Leased Premises without Landlord's prior written
consent, which consent may be given or withheld in Xxxxxxxx's sole and absolute
discretion. Tenant may, at its sole cost and expense, improve, construct,
remodel, reconstruct or alter improvements, structures, and buildings on the
Leased Premises; provided, however, all such work shall be done in compliance
with and pursuant to plans, drawings and specifications first approved in
writing by Landlord, which approval may be given or withheld in Landlord's sole
and absolute discretion. Any material modifications to any such plans, drawings
and specifications shall also require the prior written approval of Landlord,
which approval may be given or withheld in Landlord's sole and absolute
discretion. Tenant covenants that any such improvements, structures or buildings
shall conform to all applicable building codes, zoning and other governmental
regulations and restrictions and shall be constructed diligently, in a good and
workmanlike manner, using only high quality materials, and in full compliance
with all governmental laws, rules and regulations then relating hereto. Tenant
agrees to indemnify and hold Landlord harmless for, from and against any and all
claims for damages on the part of the owners, tenants, or occupants of adjacent
lands or buildings arising from the uses of the Leased Premises by or activities
of Tenant pursuant to this Paragraph, and Xxxxxx agrees to take all necessary,
prudent and proper measures to protect the land and improvements of such
adjacent owners, tenants and occupants from injury of any nature arising from
any such use or activity.
(d) The parties agree, and notice is hereby given, that Tenant is not the
agent of Landlord for the construction, alteration or repair of any improvements
on the Leased Premises, the same being done at the sole direction and expense of
Tenant. All contractors, materialmen, mechanics, and laborers are hereby charged
with notice that they must look only to Tenant for the payment of any charge for
work done or material furnished on the Leased Premises during the term of this
Lease. Tenant shall have no right, authority or power to bind Landlord or any
interest of Landlord for the payment of any claim for labor or material, or for
any charge or expense, incurred by Tenant as to improvements, alterations or
repairs on or to the Leased Premises, and Tenant shall post notices on the
Leased Premises during all construction work of any nature whatsoever that
Landlord is not responsible for any material and labor used on the Leased
Premises.
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(e) Upon the termination of this Lease for any cause whatsoever, Tenant
shall immediately surrender peaceable possession of the Leased Premises, and all
buildings, improvements and fixtures then located thereon, all of which shall
thereupon be and become the property of Landlord (ordinary depreciation and
reasonable wear and tear excepted), subject, however, to the rights of removal
as provided in Paragraph 16. If the Leased Premises are not surrendered at the
end of the Lease term, Tenant shall indemnify Landlord for, from and against any
loss or liability resulting from delay by Xxxxxx in so surrendering the
Premises, including without limitation, any claims made by any succeeding tenant
based on such delay. If Tenant or any successor in interest of Xxxxxx should
remain in possession of the Leased Premises after the expiration of the Lease
term without executing a new lease, then such holding over shall be construed as
a tenancy from month to month, subject to all the covenants, terms, provisions
and obligations of this Lease. Nothing contained herein shall be construed as
Landlord's permission for Tenant to hold over or as limiting Landlord's remedies
against a holdover lessee. All keys shall be returned to the Landlord upon
surrender; failure of Tenant to return all keys shall obligate Tenant to pay all
necessary costs in changing the locks pertaining to the Leased Premises.
5. ENCUMBERING THE LEASED PREMISES. During the term of this Lease, Tenant
shall not cause or permit any lien, claim, charge or encumbrance of any nature
or description whatsoever to attach to or encumber the Leased Premises or any
part thereof.
6. INDEMNITY INSURANCE. Tenant covenants and agrees to indemnify and save
Landlord entirely harmless for, from and against each and every claim, demand,
liability, loss, cost, damage and expense, including, without limitation,
reasonable attorneys' fees and court costs, arising out of any accident or other
occurrence causing injury to or death of persons or damage to property by reason
of construction or maintenance of any improvements on the Leased Premises, of
any additions, alterations or renovations thereto, or due to the condition of
the Leased Premises, or the use or neglect thereof by Tenant or any agent,
employee, invitee, contractor, or customer of Tenant, or any other person, or
otherwise occurring upon the Leased Premises. Xxxxxx further agrees to indemnify
and save Landlord and its interests in the Leased Premises entirely harmless
for, from and against all claims, demands, liabilities, damages and penalties
arising out of any failure of Tenant to comply with any of Tenant's obligations
under this Lease, including without limitation reasonable attorneys' fees and
court costs. This indemnity shall survive the expiration of this Lease or the
earlier termination thereof.
Tenant, at the sole cost and expense of Tenant, shall at all times during
the term of this Lease maintain in force an insurance policy or policies which
will name Landlord and Tenant as insureds insuring against all liability
resulting from injury or death occurring to persons in or about the Premises.
The original of such policy or policies shall remain in possession of Tenant;
provided, however, that Landlord shall have the right to receive from Tenant,
upon written demand, a duplicate policy or policies of any such insurance.
7. DAMAGE. If any buildings, structures or other improvements upon the
Leased Premises shall be destroyed or damaged in whole or in part by fire, or as
a result directly or indirectly of war, or by act of God, or occurring by reason
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of any other cause whatsoever, so as to render the Premises untenantable, this
Lease may be terminated at the election of either Tenant or Landlord, by sending
written notice thereof to the other party. In no event whatsoever shall Landlord
be required to repair, replace or restore any structure, building or other
improvement on the Premises as a result of any such damage or destruction, and
Landlord shall be entitled to retain any insurance proceeds received relating
thereto. Upon any termination of this lease pursuant to this Paragraph, Tenant's
rental obligations shall immediately cease, and except as otherwise expressly
provided herein, all of the obligations of Landlord and Tenant shall terminate.
8. TAXES AND ASSESSMENTS. Tenant shall pay to Landlord, at the same time as
any other rental payment is made to or for Landlord, an amount equal to the
amount of all personal property taxes, transaction privilege taxes, sales taxes,
or like taxes now or hereafter levied or assessed by the Republic of Mexico, the
State of Sonora or any municipal corporation or political subdivision upon such
rental, or the payment or receipt thereof, or which Landlord will be caused to
pay as a result of the receipt thereof, except that Tenant shall not be
obligated to pay to Landlord any amount on account of any income tax of
Landlord.
9. LANDLORD'S ACCESS TO PREMISES. Landlord and its agents, at all
reasonable times, shall have free and full access to the Premises for the
purpose of examining or inspecting the condition thereof, for the purpose of
determining if Tenant is performing the covenants and agreements of this Lease,
and for the purpose of posting such reasonable notices as Landlord may desire to
protect the rights of Landlord.
10. NO ABATEMENT. No abatement, diminution or reduction of the rent or
other charges payable by Tenant under this Lease shall be claimed by or allowed
to Tenant for any reason.
11. Sale by Landlord. Landlord may sell, transfer, assign or otherwise
dispose of the Premises, or this Lease, or any part thereof or interest therein,
without the consent of Tenant. Upon any such sale, transfer, assignment or
disposal of all of its interest in the Premises or this Lease, Landlord shall be
automatically relieved of all obligations hereunder. This Lease shall not be
affected by any such sale, transfer, assignment or disposal of Landlord's
interest, and Xxxxxx agrees to attorn to Landlord's purchaser or assignee.
Xxxxxx agrees to cooperate with Landlord in the marketing of the Premises to
prospective purchasers, including without limitation, by allowing access to the
Premises to any such prospective purchasers and Landlord's marketing agents or
consultants. Tenant further agrees that Landlord shall be entitled to place a
"For Sale" sign or signs on the Premises in such place or places as Landlord
shall reasonably determine.
12. SUBORDINATION.
(a) This Lease, at Landlord's option, shall be subordinate to any ground
lease, mortgage, bank trust, or any other hypothecation or security now or
hereafter placed upon the Premises and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. If any mortgagee, trustee or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed of trust
or ground lease, and shall give written notice thereof to Tenant, this Lease
shall be deemed prior to such mortgage, deed of trust, or ground lease, whether
this Lease is dated prior or subsequent to the date of said mortgage, deed of
trust or ground lease or the date of recording thereof.
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(b) Xxxxxx agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, bank trust or ground lease, as the case may be. Tenant's failure to
execute such documents within ten (10) days after written demand shall
constitute a material default by Tenant hereunder, or, at Landlord's option,
Landlord shall execute such documents on behalf of Tenant as Xxxxxx's
attorney-in-fact. Tenant does hereby make, constitute and irrevocably appoint
Landlord as Xxxxxx's attorney-in-fact and in Tenant's name, place and stead, to
execute such documents in accordance with this Paragraph 14(b).
13. TENANT'S RIGHT TO MORTGAGE. Provided Tenant is not in default under
this Lease, and subject to the terms and conditions set forth in this Lease,
Tenant shall have the right to encumber its leasehold interest by one or more
mortgages, deeds of trust, security agreements or otherwise (a "Leasehold
Mortgage"); subject, however, to the limitations set forth in this Section 13.
Any such Leasehold Mortgage shall be subject and subordinate to the rights of
Landlord under this Lease.
(a) No holder of a Leasehold Mortgage on this Lease shall have the rights
or benefits set forth in this Section 13, nor shall the provisions of this
Section 13 be binding upon Landlord, unless and until Xxxxxxxx has received
written notice of such Leasehold Mortgage.
(b) If Tenant shall enter into a Leasehold Mortgage pursuant to this
Section 13, then so long as any such Leasehold Mortgage shall remain unsatisfied
of record, the following provisions shall apply:
(i) NOTICE OF DEFAULT. Landlord, upon serving upon Tenant any notice
of default under this Lease, shall also serve a copy of such notice upon the
holder of such Leasehold Mortgage, at the address provided for in Section
13(b)(v).
(ii) RIGHT TO CURE. Any holder of such Leasehold Mortgage shall, in
case Tenant shall be in default under this Lease, shall, within the time period
and otherwise as herein provided, have the right to remedy such default, or
cause the same to be remedied, and Landlord shall accept such performance by or
at the instance of such holder as if the same had been made by Tenant.
(iii) NO DEFAULT. For purposes of this Section 13, no event of default
shall be deemed to exist if the default is with respect to the performance of
work, or of acts to be performed, or of conditions to be remedied, if steps
shall, in good faith, have been commenced within the time permitted therefor to
rectify the same and shall be prosecuted to completion with diligence and
continuity.
(iv) LANDLORD FORBEARANCE. Notwithstanding anything to the contrary
contained herein, upon the occurrence of an event of default, Landlord shall
take no action to terminate the Lease without first giving the holder of such
Leasehold Mortgage written notice thereof and a reasonable time thereafter
within which to either obtain possession of the Premises (including possession
by a receiver) or institute, prosecute and complete foreclosure proceedings or
otherwise acquire Tenant's interest under this Lease; so long as such holder
cures all defaults then reasonably susceptible of being cured by such holder.
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(v) DELIVERY OF NOTICE. Any notice or other communication which
Landlord shall desire or is required to give to or serve upon the holder of such
Leasehold Mortgage on this Lease shall be in writing and shall be served by
registered mail, addressed to such holder at its address as set forth in such
Leasehold Mortgage, or in the notice delivered to Landlord pursuant to Section
13(a) hereof, or at such other place as such holder may designate in writing to
Landlord.
14. REMOVAL OF PERSONAL PROPERTY AND TENANT'S FIXTURES AND TRADE FIXTURES.
Upon any termination of this Lease, ownership and possession of all buildings
and other permanent structures, if any, located upon the Premises as of such
date shall pass to Landlord; provided, however, Tenant may, if not in default
under any of the terms of this Lease and within a reasonable time after such
termination, remove any and all personal property, including, but not limited
to, furniture, equipment, and fixtures belonging to Tenant; provided, however,
Tenant shall repair any damage to any improvements on the Premises caused by
such removal. Upon any termination of this Lease, Tenant shall deliver to
Landlord, for Landlord's use at no cost to Landlord, copies of all engineering,
architectural and landscaping plans, all site plans, inspection reports,
marketing reports, tests, feasibility reports, and other documents relating to
the Premises.
15. DEFAULT. Upon the non-payment of the whole or any portion of the
rentals hereby reserved, or any other sum or sums of money due to Landlord under
the provisions hereof; or upon the non-performance by Tenant of any other
covenant or condition herein set forth on the part of said Tenant to be kept and
performed, Tenant shall be in default hereunder; provided, however, Landlord
shall not be entitled to exercise its remedies for default unless Landlord shall
have given Tenant written notice of the default and Tenant shall have failed to
cure such default on or before five (5) days after Tenant receives such notice,
if such default relates to the non-payment of money, or on or before thirty (30)
days after Xxxxxx receives such notice, for any default other than non-payment
of money. Upon such default and the expiration of the respective
above-referenced grace period, it shall be lawful for Landlord, at its option,
to re-enter upon the Leased Premises and to again repossess and enjoy the same
and all the improvements thereon free of any claims or interest of Tenant
whatsoever, with or without terminating this Lease, at Landlord's sole election.
In addition, upon such default, Landlord shall be entitled to avail itself of
whatever remedies it may have at law or in equity for the collection of any
unpaid rentals hereunder, past and future, or for any damages that it may have
sustained by reason of the breach by Tenant of the terms and conditions hereof.
No termination of this Lease by forfeiture nor taking or recovering possession
of the Leased Premises shall deprive Landlord of any other action, right, or
remedy against Tenant. Any sum of money not paid within five (5) days after such
sum shall become due shall bear interest from the due date until paid at the
rate of twelve percent (12%) per annum.
16. WAIVER OF BREACH. No waiver by Landlord or Tenant of the breach of any
provision of this Lease shall be construed as a waiver of any preceding or
succeeding breach of the same or any other provision of this Lease, nor shall
the acceptance of rent by Landlord during any period of time in which Tenant is
in default in any respect other than payment of rent be deemed to be a waiver of
such default.
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17. ATTORNEYS' FEES. If any action is brought by any party to this Lease in
respect of its rights under this Lease, the prevailing party shall be entitled
to reasonable attorneys' fees and court costs as determined by the court. In the
event that any person who shall not be a party to this Lease shall institute an
action against Tenant in which Landlord shall be involuntarily and without cause
joined as a party, Tenant shall reimburse Landlord for all attorneys' fees
incurred by Landlord in connection therewith.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. RECORDING. Neither this Lease nor any memorandum of this Lease shall be
recorded or filed without Xxxxxxxx's prior written consent, which may be given
or withheld by Landlord in its sole and absolute discretion.
20. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
hereunder or at law or in equity.
21. QUIET ENJOYMENT. Conditioned upon Tenant paying the rent herein
provided and performing and fulfilling all the covenants, agreements,
conditions, and provisions herein to be kept, observed or performed by Tenant,
Tenant may at all times during the term hereby granted, peaceably, quietly, and
exclusively have, hold, and enjoy the Leased Premises.
22. ENTIRE AGREEMENT. This Lease sets forth all the promises, inducements,
agreements, conditions, and understandings between Landlord and Tenant relative
to the Leased Premises, and there are no promises, agreements, conditions, or
understandings, either oral or written, express or implied, between them other
than are set forth herein. No subsequent alteration, amendment, change, or
addition to this Lease shall be binding upon Landlord or Tenant unless in
writing and signed by each of them. Parole evidence shall never be admissible in
any court, tribunal, arbitration or governmental agency to modify, amend or vary
the terms of this Lease.
23. CONSTRUCTION. The titles which are used following the number of each
paragraph are so used only for convenience in locating various provisions of
this Lease and shall not be deemed to affect the interpretation or construction
of such provisions. The parties acknowledge that each party and its counsel have
reviewed and revised this Lease. This Lease shall not be construed for or
against Landlord or Tenant.
24. SUCCESSORS. Subject to the restrictions contained herein, this Lease
and all of provisions hereof shall be binding upon and inure to the benefit of
the successors and assigns of Landlord and Tenant.
25. GOVERNING LAW. The terms, conditions, covenants, and agreements herein
contained shall be governed, construed, and controlled according to the laws of
the State of Sonora, Republic of Mexico and the parties hereby submit to the
jurisdiction of the Courts of Guaymas, Sonora, Mexico.
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26. TIME IS OF THE ESSENCE. Time is of the essence of this Lease and in the
performance of all of the covenants and conditions hereof.
Landlord:
/s/ Xxxxxxx Xxxxxxxx de Cima
----------------------------------------
XXXXXXX XXXXXXXX DE CIMA
Tenant:
NUPRO INNOVATIONS INC.
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------------
Its: Xxxx Xxxxxxxxxxx
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EXHIBIT A
Leased Premises
Two hundred twenty seven (227) square feet of office space, one thousand one
hundred fifty five (1,155) square feet of space for prototype tool fabrication,
and one thousand one hundred (1,100) square feet of space for model fabrication,
for a total of two thousand four hundred eighty two (2,482) square feet located
at Kilometro 129.5 Salida Norte, Guaymas, Sonora Mexico and more particularly
described as ____________________________.
