THIS LEASE HAS IMPORTANT LEGAL CONSEQUENCES. THE PARTIES SHOULD CONSULT LEGAL COUNSEL BEFORE SIGNING. WYOMING COMMERCIAL LEASE (Gross)
THIS
LEASE HAS IMPORTANT LEGAL CONSEQUENCES. THE PARTIES SHOULD
CONSULT
LEGAL
COUNSEL BEFORE SIGNING.
(Gross)
This
Commercial Lease (the "Lease") is made on February 1,
2008 and is entered
into by and between Landlord (as defined below) and Tenant (as defined below).
In consideration of the payment
of the Rent (as defined below);
all costs, charges, and expenses which Tenant assumes, agrees, or
is
obligated to pay to Landlord pursuant to
the
Lease (the "Additional Rent"); and the performance of the
promises by
Tenant
set forth below, Landlord hereby
leases to Tenant, and Tenant hereby accepts, the Premises (as
defined below), subject to the terms and provisions
set forth in the Lease.
PARTIES,
PREMISES, AND DEFINED TERMS
1. Landlord:
Xxxxx X. Xxxxxxx (the
"Landlord").
2. Tenant:
Xxxxx Xxxxxx and Xxxx Xxxxxx d/b/aZulu Energy
(collectively,
the "Tenant").
3.
Premises:
Landlord
is the owner of certain real estate legally described as The North
22feet
of the
South 27
feet
of
Lot 13, in Block 2
of the
Original Town of Xxxxxxxx, Xxxxxxxx County, Wyoming and c/k/a
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx00000,
(the
"Real Estate"). The Real Estate is improved with a
commercial building (the "Improvements")
(the
Real
Estate and the Improvements are collectively referred to as the
"Property"). Landlord hereby leases and demises to Tenant
the
entire Property (the "Premises").
4. Term:Landlord
Leases the Premises to Tenant from twelve o'clock noon on the 15th day
of
February,
2008 and
until
11:59 p m. on the 31" day of January, 2011 (the "Term"). Subject to Tenant's
performance
of all obligations under the Lease, including, without limitation, payment
of
Rent
and Additional Rent, Tenant
shall enjoy quiet possession of the Premises.
5.
Rent:
Rental for the first year of the Term is
Eighteen
Thousand and no/100 Dollars ($18,000.00) payable
in equal installments of One
Thousand Five Hundred and no/100 Dollars ($1,500.00) in advance
to Landlord on the
first
day of each calendar month for that month's rental before twelve o'clock noon,
without
notice (the "Rent"). Unless otherwise provided in the Lease,
all
payments due under the Lease, including Additional
Rent, shall be mailed, or delivered to Landlord at the following address:
0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx, 00000.Xx the Term does not begin
on
the
first
day of the month, the Rent shall be prorated
accordingly. Rent for subsequent years of the Term shall be increased
on the following
basis:
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Year
of Term
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Annual
rent
|
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Monthly
rent
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Year
2
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$
|
21,000.00
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$
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1,750
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Year
3
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$
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24,000.00
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$
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2,000
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6.
Option:
N/A
7.
Security
Deposit: Prior to occupying the Premises, Tenant shall keep on deposit
with
Landlord a security,
cleaning, and damage deposit in the amount of One
Thousand Five Hundred and no/100 Dollars ($1,500.00)
as
security for the return of the Premises at the expiration of the Term
in
as
good
condition as when Tenant
entered the Premises, normal wear and tear excepted, as
well
as the faithful, timely, and complete performance
of all other terms, conditions, and covenants of the Lease (the
"Security Deposit").
8.
Use:
The Premises shall be used for retail, office or other commercial use, provided
this use conforms
with applicable zoning regulations. Tenant shall not, without the prior
written
consent of Landlord, permit the Premises to be used for any other
purpose.
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9.
Utilities/Additional
Rent: Tenant shall be responsible for paying for all utilities on the
Premises, which
charges shall be deemed Additional Rent including: Electric, Gas, Water, Sewer,
Phone, Cable/ Satellite T.V.(if desired), Internet Access (if desired), and
Refuse Disposal (if not provided by municipality). All utility payments shall
be
paid directly to the provider unless otherwise agreed. In the event Tenant
fails
to timely pay any of
the
aforementioned charges, it shall be deemed a Default..
10. Payment
of Additional Rent: Additional Rent shall be paid by Tenant to Landlord
in monthly installments
concurrent with the Rent.
11.
Late
Payments: If any Rent, Additional Rent, or other payment is received
later than Five (5)days
after the date when due, the parties agree that Additional Rent in the amount
of
Five percent (5%) of the outstanding sums shall also be due and
payable. The addition of such amount and the collection thereof shall not
operate
to waive any other rights of Landlord for nonpayment of Rent, or for any other
reason.
12.
Repairs
and Maintenance of the Premises: The Landlord shall maintain the
foundation, exterior walls,
and roof of the Improvements in good repair. The Tenant agrees to keep all
the
other improvements (including
plate glass and other windows, window frames, and doors) upon the Premises
repaired and maintained in good
order as described in the Lease. The Tenant shall properly irrigate and care
for
all trees, shrubbery, and lawn and the Tenant shall keep all driveways,
sidewalks, and parking areas on the Premises free and clear of ice and
snow.
13.
Parking:
For
the
Term, Landlord grants to Tenant and its employees and invitees, at no additional
charge,
a
Parking License. The Parking License is a non-exclusive license for the use
of two (2) parking spaces upon the
Property (the "Parking License"). The Parking License shall be
effective for the term of the Lease as defined below.
Landlord shall designate specific spaces for the Parking License prior to
commencement of the Term.
PREMISES
14. Common
Areas: N/A
15.
Condition
of Premises and Representations: Tenant is familiar with the physical
condition of the
Premises and the Property. Except as may otherwise be provided in the Lease,
Landlord makes no representations,
or warranties as to the physical condition of the Premises, or the Property,
or
their suitability for Tenant's
intended use. In the event that Landlord agrees to provide any renovations,
build-out, or any other labor and
materials for the improvement of the Premises, or any allowance for improvements
to be effected by Tenant, such
work, or allowance shall be specified and agreed to between the parties in
a
separate document appended to this
Lease and which shall constitute a part of this Lease ("Work
Letter"). Other than the work, if any, to be performed
pursuant to Tenant's Work Letter, the Premises are rented "as is," in current
condition, and all warranties are
hereby expressly disclaimed. Landlord makes no representations, or warranties
as
to the suitability of the Premises
for Tenant's intended use. Landlord further makes no representations, or
warranties as to whether Tenant's intended
use will necessitate changes, or alterations to the Premises in order to comport
with local, state, or federal laws and regulations. Such laws and regulations
include, but are not limited to: health code regulations, access regulations
(including, but not limited to, the Americans with Disabilities Act), and zoning
regulations. Tenant understands
and agrees that in the event actions, alterations, or improvements are required
in order to bring the Premises
into compliance with any local, state, or federal laws and regulations because
of Tenant's intended use, Tenant
shall be solely responsible for any and all associated costs and expenses
relative thereto. Tenant further indemnifies
and agrees to hold Landlord harmless from any and all claims and liabilities
that may arise by virtue of Tenant's
use of the Premises in violation of any local, state, or federal laws and
regulations.
16.
Check-In
Inspection: Landlord and Tenant may conduct an inspection of the
Premises at the time of
possession. A check-in inspection sheet may be completed at that time and the
information contained therein shall be
sufficient and satisfactory proof of the condition of the Premises at the time
of possession, should a subsequent dispute
arise at a later date as to the condition of the Premises at the time of
move-in.
17. Use
of Premises: Tenant, in consideration of the leasing of the Premises,
agrees as follows:
a. Use
of Premises: To use and occupy the Premises solely as and for the use
specified in Paragraph
8 of the Lease. Landlord's consent to the aforementioned use is not an
assurance, or warranty that the Premises' attributes are sufficient for Tenant's
use. Tenant represents and warrants that it has conducted sufficient due
diligence to assure itself that the Premises are suitable for its use, and
that
such use is permitted by applicable law.
Landlord expressly reserves its right to lease space within the Property
as
it
sees
fit, unless explicitly prohibited by other provisions in the Lease. Landlord's
demise of the Premises to Tenant does not preclude Landlord from leasing
other parts of the Property to other tenants who may be viewed objectively,
or
subjectively as competing with
Tenant.
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b.
Signage:
Tenant shall be permitted to erect a sign or signs upon the Premises, provided
all
signage is in compliance with size and other requirements of Landlord and as
may
be set forth by applicable ordinances
and regulations including, but not limited to, sign and design ordinances.
All
signage shall conform to aesthetic
and design criteria, themes, and standards of the Property and the Improvements.
Additionally, Landlord may
provide signage space on a common, or community sign located on the
Property.
c.
Vacancy:
It will be deemed a Default of the Lease if the Premises are left vacant and
unoccupied
for over thirty (30) days. In addition to other remedies contained in the Lease,
the Landlord may, without
being obligated to do so, and without terminating the Lease, retake possession
of the Premises and relet, or attempt
to relet them for such rent and upon such conditions as the Landlord deems
best,
making such changes and repairs as may be required, giving credit for the amount
of rent so received, less all expenses of such changes and repairs.
Tenant shall be liable for the balance of the Rent and Additional Rent herein
reserved until the expiration of the
Term.
d.
Legal
Compliance: Tenant and its licensees and invitees shall comply with and
abide by all federal, state, county, and municipal laws and ordinances in
connection with the occupancy and use of the Premises.
Tenant and its licensees and invitees may not possess, or consume alcoholic
beverages on the Premises unless
they are of legal age. No alcoholic beverages shall be sold upon the Premises
unless proper licenses have been
obtained. No illegal drugs or controlled substances (unless specifically
prescribed by a physician for a specific person
occupying or present upon the Premises) shall be permitted upon the Premises.
Tenant hereby covenants and agrees
to
use its reasonable efforts to prevent and preclude its employees, guests,
invitees, etc. from the aforementioned
illegal conduct. Tenant and its licensees and invitees shall not use the
Premises in any way that may result
in
an increase of the rate or cost to the Landlord to insure the Property. No
hazardous or dangerous activities are
permitted upon the Premises.
e.
Additional
Prohibitions: Neither Tenant nor its subtenants, licensees, volunteers,
employees,
guests, or invitees shall act in any manner that would interfere with, or be
a
nuisance to, other subtenants,
occupants, or invitees of the Premises, or adjacent property owners, or adjacent
tenants, or that would interfere
with those other parties' quiet enjoyment of their premises. Said prohibition
includes, but is not limited to, loud
noises, loud music, noxious or unpleasant odors, and disruptive behavior or
actions. Tenant shall not permit any portion of the Premises to be used in
a
manner that may endanger the person or property of Landlord, co-tenants, or
any
person living on or near the Premises. Tenant shall keep all portions of the
Premises in a clean, safe, sanitary, and
habitable condition.
f.
Pets and
Animals: Pets or animals shall not be permitted upon the
Premises.
g.
Storage/Trash:
Tenant shall store all personal property entirely within the Premises.
Tenant
shall store all trash and refuse in adequate containers within the Premises,
which Tenant shall maintain in a neat
and
clean condition, or within designated Common Areas so as not to be visible
to
members of the public in, or about
the
Property, and so as not to create any health or fire hazard.
h.
HazardousMaterial
Prohibited: Tenant shall not cause or permit any hazardous material
to be brought upon, kept or used in, or about the Premises by Tenant, its
agents, employees, contractors, or invitees. If Tenant breaches the obligations
stated in the preceding sentence, or if the presence of hazardous material
on the Premises caused, or permitted by Tenant results in contamination of
the
Premises, or if contamination of the Premises by hazardous material
otherwise occurs for which Tenant is responsible to Landlord for resulting
damage, then Tenant shall indemnify, defend, and hold Landlord harmless from
any
and all resulting claims, judgments, damages,
penalties, fines, costs, liabilities, or losses.
i. Quiet
Enjoyment: Landlord agrees that upon Tenant paying the Rent and
performing Tenant's obligations under the Lease, Tenant shall peacefully and
quietly have, hold, and enjoy the Premises throughout the Term or until the
Lease is terminated pursuant to its terms. Landlord
shall not be responsible for the acts
or
omissions of any other tenant or third party that may interfere with
Tenant's use and enjoyment of the Premises.
In the event of any transfer or transfers of Landlord's interest in the Premises
or
in the
Property, other than a
transfer for security purposes only, the Landlord shall be automatically
relieved
of any and all obligations and liabilities
accruing from and after the date of such transfer.
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j. Rules
and Regulations: Landlord shall provide Tenant with a copy of
all
rules and regulations
affecting the Premises, and Tenant shall abide by all such rules and
regulations.
18.
Subletting
or Assignment: Tenant shall not sublet the Premises or any part
thereof, nor
assign the Lease
or
any interest therein, without the prior written consent of
Landlord. Such consent shall be at the sole discretion
of Landlord. As a condition of assignment or sublease, Landlord
may require the continued liability of Tenant
or
a separate personal guaranty by Tenant or its principal. If
Tenant
is a corporation, limited liability company,
or other entity that is not a natural person, any change in ownership
of
more
than thirty percent (30.0%) (over
any
period) of the ownership interest shall be deemed an assignment of the Lease.
In
the
event an assignment or
sublease is permitted, all payments from assignee or sublessee shall be made
directly
by said party to Landlord, and
not
through Tenant.
19.
Surrender
of Premises:
Tenant will return the Premises to Landlord at the expiration of the Term
in
as
good order and repair as when Tenant took possession, loss by casualty
and
normal wear and tear excepted. Any
deterioration or damage caused by accident, abuse, carelessness, or negligence
shall
not
be considered normal wear
and
tear. In the event that Tenant fails to redeliver the Premises in appropriate
condition,
Landlord may restore the
Premises to appropriate condition, including
repair, replacement, and cleaning. The cost of any work necessitated shall
be
deducted from the Security Deposit; if the Security Deposit is insufficient
to
cover work performed,
Tenant shall be obliged to pay the additional balance.
20.
Removal
of Fixtures/Redelivery: Tenant shall remove, at the termination of the
Lease, provided Tenant
is
not in Default, Tenant's moveable trade fixtures and
other
items of personal property that are not permanently
affixed to the Premises. Tenant shall remove the alterations and additions
and
signs
made by Tenant as Landlord
may request and repair any damage caused by such removal. Tenant shall peaceably
yield
up
the Premises and
all
alterations and additions thereto (except such as Landlord has requested Tenant
to
remove); and all fixtures, furnishings,
floor coverings, and equipment that are permanently affixed
to the Premises which shall thereupon become
the property of the Landlord. Any personal property of Tenant not removed
within
five (5) days following such
termination shall, at Landlord's option, become the property of
Landlord.
PAYMENTS
21.
Payments/Dishonored
Checks: Payments shall be deemed received when actually delivered
to, and
received by, Landlord at the payment location. Dishonored checks and any checks
received
late in the mail will be
treated as
late
payments. Additional bank and handling charges may also be assessed in the
event
of
a
dishonored check.
The foregoing items shall be deemed Additional Rent.
Landlord may require Tenant to replace such dishonored
check with a money order, cashier's check, or other good funds. Landlord
may further require that all subsequent
payments after a dishonored check be paid with a money order, cashier's
check,
or
other good funds.
22.
Partial
Payment: If any partial payment is made by Tenant, it shall
be
allocated first to the payment
of Additional Rent, including, without limitation, utilities (if applicable)
and
other
expenses; and second to unpaid
Rent. Acceptance by Landlord of any partial payment shall not waive the right
of
Landlord to require immediate
payment of the unpaid balance of Rent or waive or affect Landlord's rights
to
institute legal proceedings including,
without limitation, an eviction action.
23.
No
Offset: No assent, express or implied, to any Default of any one or
more of the agreements hereof
shall be deemed or taken to be a waiver of any succeeding or other Default.
The
covenants set forth in the Lease
are
independent. Tenant shall have no right to withhold or set off any Rent due
Landlord.
24.
Joint
and Several Obligations of Tenant: In the event more than one person
comprises Tenant,
it is
expressly understood and agreed that each person comprising Tenant is jointly
and
severally liable for any and all obligations
of Tenant in the Lease. This means that all persons comprising Tenant are
each,
together and separately, responsible
for all of Tenant's obligations. Landlord may, at its option, determine
whom
to
hold responsible.
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SECURITY
DEPOSIT
25. Security
Deposit:
a.
Security
Deposit: To secure the faithful performance by Tenant of all of
Tenant's covenants,
conditions, and agreements in the Lease to be observed and performed, Tenant
shall deposit with Landlord the Security Deposit prior to commencement of the
Lease. The Security Deposit may
also
be used in the event
of
termination of the Lease by re-entry, eviction, or otherwise.
b.
Application
of Security Deposit: The parties agree: (1) that the Security
Deposit
or any portion
thereof, may be applied to the curing of any Default that may exist, and/or
payment of subsequent damages and costs incurred by Landlord, without prejudice
to any other remedy or remedies that the Landlord may have on account
thereof, and upon such application Tenant shall pay Landlord on demand the
amount
so
applied, which shall be
added
to the Security Deposit so it will be restored to its original amount;
(2) that should the Premises be conveyed
by Landlord, the Security Deposit or any portion thereof may be turned
over
to
Landlord's grantee, and if the
Security Deposit is turned over, Tenant agrees to look to such grantee
for
such
application or return; (3) that Landlord
shall not be obligated to hold Security Deposit as a separate fund; (4) that
should
the Rent be increased, the Security
Deposit shall be increased in the same proportion within thirty (30)
days
of
such Rent increase; and (5) that should
a
Default occur, Landlord may, as an additional remedy, increase the Security
Deposit
at its sole discretion.
c.
Return of Security Deposit: If Tenant shall perform
all of its respective covenants and agreements in the Lease, the Security
Deposit, or the portion thereof not previously applied pursuant to the
provisions of the Lease, together with a statement, shall be returned to Tenant
without interest, no later than thirty (30) days after the expiration of the
Term, or any renewal or extension thereof (or such earlier time if required
by
applicable law), provided Tenant has vacated the Premises and surrendered
possession thereof to Landlord.
REPAIRS
AND MAINTENANCE
26.
Improvements,
Repairs, and Maintenance: Subject to the limitations set forth in
Paragraphs
27 and
28
below, Landlord or Tenant, as specified in Paragraph 12
above,
shall be responsible for the cost and condition
of the respective improvements, repairs, and maintenance relating to all
structural components, interior and exterior walls, floors, ceiling, roofs,
sewer connections,
plumbing, wiring, appliances, and glass used
in
connection
with the Premises.
27.
Landlord's
Limited Responsibility: In the event Paragraph 12
of the
Lease provides for Landlord's responsibility for certain repair and maintenance,
Landlord
shall be responsible for: (i) any repairs, replacements,
restorations, or maintenance that have been necessitated by reason of
ordinary wear and tear, and (ii) any
repairs, replacements, restorations, or maintenance that have been necessitated
by
sudden
natural forces, or acts of
God,
or by fire not caused by Tenant. The cost of any maintenance, repairs, or
replacements necessitated by the act,
neglect, misuse, or abuse of Tenant, its agents, employees, customers,
licensees,
invitees, or contractors shall be paid
by
Tenant to Landlord promptly upon billing. Landlord shall use reasonable
efforts to cause any necessary repairs
to be made promptly; provided, however, that Landlord shall have no liability
whatsoever for any delays in causing
such repairs to be made, including, without limitation, any liability for injury
to
or
loss of Tenant's business, nor
shall
any delays entitle Tenant to any abatement of Base and Additional Rent
or
damages, or be deemed an eviction
of Tenant in whole or in part.
28.
Tenant's
Allowed Responsibilities: In
the
event Paragraph 12 of the Lease provides for
Landlord's
responsibility for certain repair and maintenance, Tenant shall not
perform or contract with third parties to
perform any repairs of any kind upon the Premises or structure upon which the
Premises
are located. In the event any
repair that is the responsibility of Landlord becomes necessary, Tenant shall
notify
Landlord as soon as possible, and
allow
reasonable time for the work to be completed. Any unauthorized work
performed or contracted for by Tenant
will be at the sole expense of Tenant.
29.
Tenant's
Duty to Repair: In the event Paragraph 12
of the
Lease provides for Tenant's responsibility
for certain repair and maintenance, Tenant shall, at
Tenant's sole cost and expense, maintain the Premises,
including, but not limited to, the plumbing, exterior plate glass,
other windows, and window frames, electric
wiring, HVAC equipment, fixtures, appliances, and interior walls, doorways,
and appurtenances belonging thereto installed for the use or used in connection
with the Premises. Tenant shall, at Tenant's own expense, make as and
when
needed all repairs to the Premises and to all such equipment, fixtures,
appliances, and appurtenances necessary
to keep the same in good order and condition. Tenant repairs shall include
all
replacements, renewals, alterations,
and betterments (the "Tenant Repairs"). All Tenant Repairs
shall be equal or better in quality and class to
the
original work. In the event Tenant fails to complete Tenant Repairs, Landlord
may obtain them and xxxx Tenant
for such work as Additional Rent.
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30.
Tenant
Improvements: Unless otherwise provided in the Work Letter, Tenant
shall be solely responsible
for any and all improvements and alterations within the Premises necessary
for
Tenant's intended use of the
Premises, including, but not limited to, electrical wiring, HVAC, plumbing,
framing, drywall, flooring, finish work,
telephone systems, wiring, and fixtures necessary to finish the Premises to
a
condition suitable for Tenant's use
(the
"Tenant Work").
31.
Improvements/Prior
Landlord Consent: Tenant agrees to submit to Landlord complete plans
and
specifications, including engineering, mechanical, and electrical work covering
any and all contemplated Tenant Work,
if
applicable, and any subsequent improvements or alterations of the Premises.
The
plans and specifications shall
be
in such detail as Landlord may require, and in compliance with all applicable
statutes, ordinances, regulations,
and codes. As soon as reasonably feasible thereafter, Landlord shall notify
Tenant of any failures of Tenant's
plans to meet with Landlord's approval. Tenant shall cause Tenant's plans to
be
revised to the extent necessary
to obtain Landlord's approval. Tenant shall not commence any Tenant Work, or
any
other improvements, or
alterations of Premises until Landlord has approved Tenant's plans.
32.
Tenant
Work
and
Repairs/Compliance with Codes/Mechanic Liens:
Tenant
shall procure all necessary
permits before undertaking Tenant Work or Tenant Repairs. Tenant shall perform
all Tenant Work or Tenant
Repairs in a good and workmanlike manner. Tenant shall use materials of good
quality and perform Tenant Work or Tenant Repairs only with contractors
previously approved of in writing by Landlord. Tenant shall comply with all
laws, ordinances, and regulations, including, but not limited to, building,
health, fire, and safety codes. Tenant
hereby agrees to hold Landlord and Landlord's agents harmless and indemnified
from all injury, loss, claims, or
damage
to any person or property (including the cost for defending against the
foregoing) occasioned by, or growing
out of Tenant Work or Tenant Repairs. Tenant shall promptly pay when due the
entire cost of any Tenant Work
or
Tenant Repairs on the Premises undertaken by Tenant, so that the Premises shall
at all times be free of liens for
labor
and materials. Tenant hereby agrees to indemnify, defend, and hold Landlord
harmless of and from all liability,
loss, damages, costs, or expenses, including reasonable attorneys' fees,
incurred in connection with any claims of
any
nature whatsoever for work performed for, or materials, or supplies furnished
to
Tenant, including lien claims
of
laborers, materialmen, or others. Should any such liens be filed or recorded
against the Premises or the Improvements
with respect to work done for, or materials supplied to, or on behalf of Tenant,
or should any action affecting
the title thereto be commenced, Tenant shall cause such liens to be released
of
record within five (5) days after notice thereof. If Tenant desires to contest
any such claim of lien, Tenant shall nonetheless cause such lien to be
released of record by the posting of adequate security with a court of competent
jurisdiction as
may be
provided by Wyoming's mechanic's lien statutes. If Tenant shall be in default
in
paying any charge for which such mechanic's
lien or suit to foreclose such lien has been recorded or filed and shall not
have caused the lien to be released
as aforesaid, Landlord may (but without being required to do so) pay such lien
or claim and any associated costs,
and the amount so paid, together with reasonable attorneys' fees incurred in
connection therewith, shall be immediately
due from Tenant to Landlord as
Additional
Rent.
33.
Common
Area Maintenance: Landlord shall use reasonable efforts to maintain and
repair Common
Areas of Property, including walks and parking lots. The cost of any
maintenance, repairs, or replacements necessitated
by the act, neglect, misuse, or abuse by Tenant, its employees, licensees,
invitees, or contractors shall be
paid
by Tenant to Landlord. Landlord shall use reasonable efforts to cause any
necessary repairs to be made promptly; provided, however, that Landlord shall
have no liability whatsoever for any delays in causing such repairs to be made,
including, without limitation, any liability for injury to or loss of Tenant's
business, nor shall any delays entitle
Tenant to any abatement of Rent or damages, or be deemed an eviction of Tenant
in whole or in part.
34.
Keys/Locks:
Tenant shall not place any additional locks upon the Premises, including, but
not limited to, exterior and interior doors. Tenant shall not cause any of
the
locks or cylinders therein to be changed or re-keyed.
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35.
Waste/Rubbish
Removal: Tenant shall not lay waste to the Premises. Tenant
shall not perform any
action or practice that may injure the Premises or Property. Tenant shall
keep
the
Premises and the Property surrounding
the Premises free and clear of all debris, garbage, and
rubbish. Unless otherwise provided for in the Lease,
Tenant shall be responsible for contracting for and paying for trash and
debris
removal required by Tenant's use
of
the Premises.
DEFAULT,
NOTICE AND REMEDIES
36.
Default
If the Tenant shall be in arrears in the payment of any installment of Rent,
any
Additional Payments,
or any portion thereof, for Three (3) or more days after same
is due, or in violation of any other covenants
or agreements set forth in this Lease (the "Default") and
after
the
Landlord has provided written Notice to
Quit,
Leave and Vacate pursuant to applicable law, and a period of at least
Three (3)additional
days has expired, then
the
Landlord may, at the Landlord's option, undertake any of the following remedies
without limitation: (a) declare
the Term of the Lease ended; (b) terminate the Tenant's right to possession
of
the
Premises and reenter and repossess
the Premises pursuant to applicable provisions of the Wyoming Forcible Entry
and
Detainer Statute; (c) recover
all present and future damages, costs and other relief
to
which the Landlord is entitled; (d) pursue Landlord's
lien remedies; (e) pursue breach of contract remedies; and/or (f) pursue
any and all available remedies in law
or
equity. In the event possession is terminated by reason of a Default
prior
to
expiration of the Term, the Tenant
shall still be responsible for the Rent and Additional Payments occurring
for the remainder of the Term, subject
to the Landlord's duty to mitigate such damages.
37.
Abandonment:
In the event of an abandonment of the Premises, Landlord may, without being
obligated to do so and without terminating the Lease, retake possession
of
the
Premises and exercise any of the remedies
contained in Paragraph 38 below.
38. Re-Entry:
In
the
event of re-entry by Landlord as a result of abandonment or a Default by
Tenant:
a. Tenant
shall be liable for damages to Landlord for all loss sustained, including,
without limitation,
the balance of the Rent and Additional Rent, court costs, and reasonable
attorneys'
fees;
b.
Tenant's
personal property and the personal property of any guest, invitee, licensee,
or
occupant
may be removed from the Premises and left on the street or alley, or,
at
Landlord's option, it may be removed and stored, or disposed of at Landlord's
sole discretion. Landlord
shall not be deemed a bailee of the property
removed and Landlord shall not be held liable for the property. Tenant
shall indemnify Landlord for any expense
in defending against any claim by Tenant or third party and for any legal
expense, cost, fine, or judgment awarded
to a third-party as a result of Landlord's action under the term of the
Lease;
c. Landlord
may attempt to relet the Premises for such rent and under
such terms as Landlord
believes appropriate;
d. Landlord
may enter the Premises, clean
and
make repairs, and charge Tenant
accordingly;
e. Any
money
received by Landlord from Tenant shall be applied first to Rent, Additional
Rent,
and
other payments due; and
f. Tenant
shall surrender all keys and peacefully surrender and deliver up possession
of
the
Premises.
INSURANCE
AND INDEMNIFICATION
39.
Negligent
Damages: Tenant shall be responsible for and reimburse Landlord
for any and all damages
to the Premises or Property and persons and property therein caused by the
negligent,
grossly negligent, reckless,
or intentional acts of itself, its employees, agents, invitees, licensees,
or
contractors.
40. Liability
Indemnification/Insurance: Tenant shall hold Landlord, Landlord's
agents, and their respective
successors and assigns, harmless and indemnified from all injury, loss,
claims, or damage to any person or property while on the Premises, or any other
part of the Property, or arising in any way out of Tenant's business, which
is
occasioned by a negligent, intentional,
or reckless act, or omission of Tenant, its employees, agents, invitees,
licensees, or contractors. Tenant shall maintain public liability insurance
insuring Landlord and Landlord's agents,
as
their
interest may appear, against all claims, demands, or actions for injury to
or
death in an amount of not less
than
one million dollars ($1,000,000) arising out of any one occurrence, made by,
or
on behalf of any person, firm,
or
corporation, arising from, related to, or connected with the conduct and
operation of Tenant's business, including, but not limited to, events on the
Premises and anywhere upon the Property. Tenant shall also obtain coverage
in the amount of one million dollars ($1,000,000) per occurrence covering
Tenant's contractual liability under
the
aforesaid indemnification clauses.
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41.
Fire/Casualty Insurance: Tenant shall maintain plate glass insurance
covering all exterior plate glass
in
the Premises, fire, extended coverage, vandalism, and malicious mischief
insurance and such other insurance
as Tenant may deem prudent, covering all of Tenant's stock in trade, fixtures,
furniture, furnishings, floor coverings, and equipment in the
Premises.
42.
Insurance
Requirements: All of Tenant's insurance related to the Premises and the
Property shall be
in the
form and from responsible and well-rated companies satisfactory to Landlord,
shall name Landlord as an additional
insured thereunder, and shall provide that the insurance will not be subject
to
cancellation, termination, or change
except after at least thirty (30) days prior written notice to Landlord. The
policies or duly executed certificates
for such insurance shall be provided to Landlord prior to commencement of Term
and upon request of Landlord.
43.
Waiver of Liability: Landlord and Landlord's agents
and employees shall not be liable for, and Tenant waives all claims for, damage
to property sustained by Tenant, employees, agents or contractors, orany other
person claiming through Tenant, resulting from any accident in or upon the
Premises or the Property of which they shall be a part, including, but not
limited to, claims for damage resulting from: (1) any equipment or appurtenances
becoming out of repair, (2) Landlord's failure to keep the Property or the
Premises in repair; (3) injury done or occasioned by wind, water, or other
act
of God; (4) any defect in, or failure of, plumbing, heating, or air-conditioning
equipment, electric wiring, or installation thereof, gas, water and steam pipes,
stairs, porches, railings, or walks; (5) broken glass; (6) the backing-up of
any
sewer pipe, or downspout; (7) the bursting, leaking, or running of any
tank, tub, sink, sprinkler system, water closet, waste pipe, drain, or any
other
pipe or tank in, upon, or about the Property or Premises; (8) the escape of
steam, or hot water; (9) water, snow, or ice being upon, or coming through
the
roof, skylight, doors, stairs, walks, or any other place upon, or near such
Property, or the Premises, or otherwise; (10) the falling of any fixtures,
plaster, or stucco; (11) fire or other casualty; and (12) any act, omission,
or
negligence of co-Tenants, or of other persons or occupants of the Property,
or
of adjoining or contiguous buildings, or of adjacent or contiguous
property.
44.
Third-Party
Liability: Landlord shall not be liable to Tenant for any damage by or
from any act or
negligence of any co-tenant or other occupant of the Improvements, or by any
owner or occupant of adjoining or contiguous
property. Landlord shall not be liable for any injury or damage to persons
or
property resulting in whole or
in
part from the criminal activities of others. To the extent not covered by normal
fire and extended coverage insurance,
Tenant agrees to pay for all damage to the Improvements.
45.
Landlord
Insurance: Insurance shall be procured by Landlord in accordance with
its sole discretion.
All awards and payments thereunder shall be the property of the Landlord, and
Tenant shall have no interest
in the same. Notwithstanding the foregoing, Landlord agrees to obtain building
liability and hazard insurance required to be carried for the Property and
Premises and adequate hazard insurance, which covers replacement
cost of the Property and Premises.
46.
Indemnification
Fees and Costs: In case any claim, demand, action, or proceeding is
made or brought against Landlord, its agents, or employees, by reason of any
obligation on Tenant's part to be performed under
the
terms of the Lease or arising from any act of negligence of Tenant or its agents
or employees, or which gives
rise to Tenant's obligation to indemnify Landlord, Tenant shall be responsible
for all costs and expenses, including,
but not limited to, reasonable attorneys' fees incurred in defending or
prosecution of the same, as applicable.
OTHER
PROVISIONS
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47. Destruction,
or Condemnation of Premises: Landlord's and Tenant's duties and
responsibilities are
as
follows when destruction or condemnation of the Premises occurs:
a.
Partial
Destruction of the Premises: In case of partial destruction of the
Premises by fire,
or
other casualty, Landlord at its discretion may repair the Premises with
reasonable dispatch after notice of said
partial destruction. Tenant shall remain responsible for payment of Rent.
Subparagraph
(d) of this Paragraph 47 shall
apply if Landlord determines that the partial destruction will not be
repaired.
b.
Premises
Untenable: If the Premises are made totally untenable by fire, the
elements,
or other
casualty, or if the building in which the Premises are located is partially
destroyed to
the
point where Landlord, within a reasonable time, decides not to rebuild, or
repair, then Subparagraph (d) of
this
Paragraph 47 shall apply.
c.
Condemnation:
If the whole or part of the Premises are taken by any authority for any
public
or
quasi-public use, or purpose, then Subparagraph (d) of this Paragraph
47
shall
apply. All damages and compensation
awarded for any taking shall be the sole property of Landlord.
d.
Termination
of Term: Tenant agrees that if Landlord decides not to repair,
or
rebuild the
Premises where the destruction has occurred as described in Subparagraphs
(a)
and
(b) of this Paragraph 47, the Term
hereby granted by the Lease shall cease and the Rent and Additional Rent shall
be prorated
and payable up to the
time
of the cessation of the Term. A refund will be given for the balance of any
Rent
paid
in
advance for which Tenant
did not have use of the Premises due to the cessation of the Term under the
conditions of
this
Paragraph 47. Where
the
Premises have been taken due to condemnation as described in Subparagraph (c)
of
this
Paragraph 47, the Term
of
the Lease shall cease and terminate upon the date that possession of the
Premises
is taken by the authority. Rent
and
Additional Rent shall be prorated and payable up to the time of the cessation
of
the
Term. Tenant shall not hold
Landlord liable for any damages as a result of any of the acts or events
described in this subparagraph.
48.
Holdover:
Tenant
shall vacate the Premises and remove all of Tenant's personal property from
the
Premises
prior to 11:59 p.m. on the date the Term expires. Landlord may immediately
commence eviction proceedings
at its sole discretion. If, after the expiration of the Lease,
Tenant shall remain in possession of the Premises
and continue to pay Rent without a written agreement as to such possession,
then
such
tenancy shall be regarded
as a month-to-month tenancy, at a monthly rental, payable in advance,
equivalent
to the last month's Rent paid
under the Lease, and subject to all the terms and conditions of the
Lease.
49.
Entry
by Landlord: Landlord may enter the Premises at reasonable hours for
reasonable purposes
(such
as
repairs, inspections, or re-letting to prospective new tenants), upon
reasonable notice to Tenant. Landlord may
also
enter the Premises in the event of emergency, without notice, or in the event
of
vacancy of the Premises, as described in Paragraph 38.
50.
Guarantor:
In the event the Lease is guaranteed, the
person(s) guaranteeing the Lease ("Guarantor")
hereby absolutely guarantees Tenant's obligations and
performance under the Lease. Guarantor further
agrees to be bound by the same covenants and conditions of the Lease and hereby
makes
the
same warranties and representations as Tenant hereunder. If Tenant defaults
in
the performance of
its
obligations under the Lease, Guarantor
will perform said obligations.
51.
Subordination/Estoppet/Attornment:
The Lease shall be subordinate to all
existing and future mortgages,
deeds of trust, and other security interests on the Premises and
to
any and all extensions, renewals, refinancing,
and modifications thereof. Tenant shall execute and deliver whatever
instruments may be required for such purposes, or for the purpose of informing
a
potential or existing lender or purchaser of the Property as to the status
of
its tenancy. Any such instruments or estoppel letters shall contain all
information reasonably required by Landlord
or other entity in conjunction with such transaction. Tenant
agrees to attorn to a lender or other party coming
into title to the Property upon written request of Landlord.
52.
Notices:
All notices required to be sent under the Lease shall be in writing and
either:
(i) delivered as
provided by applicable law; (ii) personally delivered, with proper proof of
service; or
(iii)
sent via U.S. first class mail,
postage prepaid. All notices required to be sent to Landlord shall be sent
or
delivered to the address where the Rent
is
to be paid, and all notices required to be sent to Tenant shall be sent
or
delivered to the Premises, unless
otherwise
specified in the Lease.
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53.
Attorneys'
Fees: In the event Tenant or Landlord fails to perform any of its
obligations under
the
Lease,
or
in the event a dispute arises concerning the meaning or interpretation
of
any
provision of the Lease, the defaulting
party, or the party not prevailing in such dispute, as the case may be, shall
pay any and all costs and expenses
incurred by the other party in enforcing or establishing its rights hereunder,
including, without limitation, court
costs and reasonable attorneys' fees.
54. Governing
Law:
The
Lease shall be governed by and construed in accordance with the laws of
the
State
of Wyoming. Venue shall be proper in the county where the Premises are
located.
55. Amendments
and Termination: Unless otherwise provided in
the
Lease, the Lease may be amended,
modified, or terminated only by a written instrument executed by Landlord
and
Tenant.
56. Captions:
The paragraph titles or captions in the Lease are for convenience only
and
shall not be deemed
to
be part of the Lease.
57.
Pronouns;
Joint and Several Use
of Certain Terms: Whenever
the terms referred to in the Lease
are
singular, the same shall be deemed to mean the plural, as
the
context indicates, and vice versa. All references
to the "Landlord" shall mean Landlord and/or its authorized agents, contractors,
or employees as may be required
by the specific context. All references to the "Tenant"
shall mean each and every person comprising Tenant,
or an individual person, or combination of persons comprising Tenant
as
may be required by the specific context.
58.
Waivers:
No right under the Lease may be waived except by written instrument executed
by the party
who
is waiving such right. No waiver of any breach of any provision contained
in
the
Lease shall be deemed a waiver
of
any preceding or succeeding breach of that provision, or of any other provision
contained
in the Lease. No extension
of time for performance of any obligations or acts shall be deemed an extension
of the time for
performance
of any other obligations or acts.
59. Heirs,
Assigns, Successors:
The Lease is binding and inures to the benefit of the heirs, assigns,
and
successors in interest to the parties, subject to the restrictions on assignment
in
Paragraph 18.
60. Time
of the Essence: Time is of the essence of the Lease, and each and all
of its provisions.
61.
No
Reservation of Option: Submission of this instrument for examination or
signature by
Tenant
does
not
constitute a reservation of or option for lease, and is not effective
as
a
lease
or otherwise until execution and
delivery by both Lessor and Tenant.
62. Credit
Reports: Tenant hereby grants Landlord permission
to obtain from time to time investigative
consumer reports to ascertain the creditworthiness of Tenant and Tenant's
guarantors, if applicable.
63.
Corporate
Authorization: If Tenant is a corporation, each individual
executing the Lease on behalf of the corporation represents and warrants that
he
is duly authorized
to execute and deliver the Lease on behalf of said corporation in accordance
with a duly adopted resolution of
the
Board of Directors of the corporation and
that
the Lease is binding upon the corporation in accordance with its terms.
Lessee agrees to provide Landlord with
such
a resolution within five (5) days of the execution of the Lease.
64.
Severability:
If any term, covenant, condition, or provision of the Lease, or
the
application thereof to
any
person or circumstance shall, at any time or to any extent, be invalid or
unenforceable, the
remainder of the Lease,
or
the application of such term, or provision to persons, or circumstances
other
than those to which it is held invalid,
or unenforceable, shall not be affected thereby, and each provision of
the
Lease shall be valid and shall be enforced
to the fullest extent permitted by law.
65.
Lead-Based
Paint Disclosure
Rule: Housing built before 1978 may contain lead-based
paint. Lead
from
paint, paint chips, and dust can pose health hazards if not managed properly.
Lead
exposure is especially harmful
to young children and pregnant women. Before renting pre-1978
housing, landlords must disclose the presence
of known lead-based paint and/or lead-based paint hazards in
the
dwelling. Tenant must also receive a federally
approved pamphlet on lead poisoning prevention. In the event the Premises were
constructed before 1978, Landlord
shall comply with the Lead-Based Paint Disclosure, 42 U.S.C. §
4852d.
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66.
Other
Applicable
Laws: Federal, state, county, or municipal laws and ordinances may
affect the Premises, the Lease, and Landlord/Tenant relationship that are not
specifically addressed in the Lease. Landlord and Tenant
should consult legal counsel prior to execution of the Lease to ascertain such
information.
67.
ADA
Compliance: Tenant shall not cause or permit any violation of the
Americans with Disabilities
Act (the "ADA") to occur on, or about the Premises by Tenant,
its agents, employees, contractors or invitees.
Tenant shall indemnity, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities, or losses
(including, without limitation, diminution in value of the Premises,
damages
for the loss or restriction of use of rentable or usable space, damages arising
from any adverse impact on marketing of space, and sums paid in settlement
of
claims, attorneys' fees, consultation fees and expert fees) that arise during
or
after the Term as a result of such violation. This indemnification of Landlord
by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any remedial work required by any federal, state, or local
governmental agency or political subdivision because of any ADA violation
present
on or about the Premises. Tenant shall be permitted to make such alterations
to
the Premises as may be necessary to comply with the ADA, at Tenant's sole
expense and upon the prior written consent of Landlord. Without
limiting the foregoing, if the presence of any ADA violation on the Premises
caused or permitted by Tenant results
in remedial work on the Premises, Tenant shall promptly take all actions at
its
sole expense as are required by any
authority to comply with the ADA; provided that Landlord's consent to such
actions shall first be obtained, which
shall not be reasonably withheld.
68.
Additional
Provisions: In the event that there are any additional agreements
between the parties or
provisions with respect to the Premises, an Addendum may be attached to the
Lease, which shall be incorporated by
this
reference as a part of the Lease. An Addendum containing additional provisions
[is] [is not] attached. The Lease
and
the attached Addendum constitute the entire agreement between the
parties.
THE
PARTIES SHOULD INITIAL EACH PAGE OF THE LEASE AND SIGN BELOW. EACH
PARTY
SHOULD RECEIVE
A SIGNED COPY OF THE LEASE AND ANY
ADDENDA.
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Xxxxx
Xxxxxx and Xxxx Xxxxxx
d/b/a Zulu Energy
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Xxxxx
Xxxxxx
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Xxxxx
X. Xxxxxxx
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Xxxx
Xxxxxx
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