LEASE
Section I
Parties
This lease is made between Mobile Design Concepts, Inc.,
a Nevada corporation, as lessor, and Xxxx Xxxxxxx, as lessee.
Section II
Description of Leased Premises
Lessor hereby leases to lessee and lessee hereby leases
from lessor, one mobile kiosk building structure approximately
120 square feet in size with one door, a drive-through window,
stucco exterior, and a pitched roof, referred to below as the
building or premises.
Section III
Term
The building is leased for a term to commence on March 20, 2001,
and to end on March 20, 2004, or on such earlier date as this
lease may terminate as provided below, except that, if any such
date falls on a Sunday or a holiday, then this lease shall end on
the business day next preceding the above-mentioned date.
Section IV
Rent
The monthly rent shall be as follows:
March 20, 2001 to March 20, 2002 $1,000.00 per month
March 20, 2002 to March 20, 2003 $1,125.00 per month
March 20, 2003 to March 20, 2004 $1,250.00 per month
Said rent shall be payable in equal monthly installments, in
advance on the first day of each calendar month during the term as
stated above.
Section V
Security Deposit
Lessee shall deposit with Lessor upon execution of this Lease
the sum of One Thousand and no/100 ($1,000.00) Dollars as a
Security Deposit. The Security Deposit shall be held by Lessor,
with no obligation to pay interest, as security for the performance
of all covenants and agreements by lessee hereunder. Lessor may at
anytime or times apply all or any portion thereof in payment of any
amounts due lessor from lessee. Upon termination of the Lease and
full performance of all of lessee's obligations hereunder, so much
of the Security Deposit as remains unapplied shall be returned
to lessee.
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Section VI
Use and Occupancy
Lessee shall use and occupy the premises primarily for use as
a drive-through coffee and espresso unit, and for no other purpose.
Lessor represents that the premises may lawfully be used for such
purpose.
Section VII
Place for Payment of Rent
Lessee shall pay rent, and any additional rent as provided
below, to lessor at lessor's below stated address, or at such other
place as lessor may designate in writing, without demand and
without counterclaim, deduction or setoff.
Section VIII
Care and Repair of Premises
Lessee shall commit no act of waste and shall take good care
of the premises and the fixtures and appurtenances therein, and
shall, in the use and occupancy of the premises, conform to all
laws, orders, and regulations of the federal, state and municipal
governments or any of their departments. Lessor shall make all
necessary repairs to the premises, except where the repair has been
made necessary by misuse or neglect by lessee or lessee's agents,
servants, visitors or licensees. All improvements made by lessee
to the premises which are so attached to the premises that they
cannot be removed without material injury to the premises, shall
become the property of lessor upon installation.
Not later than the last day of the term lessee shall, at
lessee's expense, remove all of lessee's personal property and
those improvements made by lessee which have not become the
property of lessor, including trade fixtures, cabinet work, movable
paneling, partitions and the like; repair all injury done by or in
connection with the installation or removal of the property and
improvements; and surrender the premises in as good condition as
they were at the beginning of the term, reasonable wear, and damage
by fire, the elements, casualty, or other cause not due to the
misuse or neglect by lessee or lessee's agent, servants, visitors
or licensees, excepted. All property of lessee remaining on the
premises after the last day of the term of this lease shall be
conclusively deemed abandoned and may be removed by lessor, and
lessee shall reimburse lessor for the cost of such removal. Lessor
may have any such property stored at lessee's risk and expense.
Section IX
Alterations, Additions or Improvements
Lessee shall not, without first obtaining the written consent
of lessor, make any alterations, additions or improvements in, to
or about the premises.
Section X
Prohibition Against Activities Increasing Fire Insurance Rates
Lessee shall not do or suffer anything to be done on the
premises which will cause an increase in the rate of fire insurance
on the building.
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Section XI
Accumulation of Waste of Refuse Matter
Lessee shall not permit the accumulation of waste or refuse
matter on the leased premises or anywhere in or near the building.
Section XII
Abandonment
Lessee shall not, without first obtaining the written consent
of the lessor, abandon the premises, or allow the premises to
become vacant or deserted.
Section XIII
Assignment of Sublease
Lessee shall not, without first obtaining the written consent
of the lessor, assign, mortgage, pledge or encumber this lease,
in whole or in part, or sublet the premises or any part of such
premises. This covenant shall be binding upon the legal
representatives of lessee, and upon every person to whom lessee's
interest under this lease passes by operation of law, but shall not
apply to an assignment or subletting to the parent or subsidiary of
a corporate lessee or to a transfer of the leasehold interest
occasioned by a consolidation or merger involving such lessee.
Section XIV
Compliance with Rules and Regulations
Lessee shall observe and comply with the rules and regulations
set forth below, which are made part of this agreement, and with
such further reasonable rules and regulations as lessor may adopt, on
written notice to the lessee, for the safety, care, and cleanliness
of the building and the present comfort, quiet and convenience of
lessor.
Section XV
Utilities and Insurance
Lessee shall pay for any heat, air conditioning, water, sewer,
electricity, gas, real estate taxes, outside maintenance and
disposal which are furnished to the building. Lessee shall be
responsible for any telephone charges for lessees operations at
Premises. Lessee shall obtain comprehensive liability insurance
and personal property insurance protection from an insurance
company licensed to do business in Utah, naming lessor as an
additional insured, and in the limits of not less than
$1,000,000.00 for personal injury, bodily injury, sickness disease
or death or damage to or destruction of property (including loss of
use thereof) for any one occurrence. Lessee shall furnish on
demand by Lessor a certificate evidencing such insurance, which
will allow for 30 days' prior written notice to Lessor of any
termination or change in such coverage.
Section XVI
Damages to Building
If the building is damaged by fire or any other cause to such
extent that the cost of restoration as reasonably estimated by
lessor, will equal or exceed fifty percent (50%) of the replacement
value of the building (exclusive of foundations) just prior to the
occurrence of the damage, then lessor may, no later than the 30th
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day following the damage, give lessee a notice of election to
terminate this lease, or if the cost of restoration will equal or
exceed fifty percent (50%) of such replacement value and if the
premises shall not be reasonably usable for the purposes for which
they are leased under this agreement, then lessee may, no later
than the 30th day following the damage, give lessor a notice of
election to terminate this lease. In event of either such election
this lease shall be deemed to terminate on the 30th day after the
giving of such notice, and lessee shall surrender possession of the
premises within a reasonable time thereafter, and the rent, and any
additional rent, shall be apportioned as of the date of the
surrender and any rent paid for any period beyond such date shall
be repaid to lessee.
In any case in which use of the premises is affected by any
damage to the building, there shall be either an abatement or an
equitable reduction in rent depending on the period for which and
the extent to which the premises are not reasonably usable for the
purpose for which they are leased under this agreement. The words
"restoration" and "restore" as used in this Section XVII shall
include repairs. If the damage results from the fault of the
lessee, or lessee's agents, servants, visitors or licensees, lessee
shall not be entitled to any abatement or reduction of rent, except
to the extent, if any, that lessor receives the proceeds of rent
insurance in lieu of such rent.
Section XVII
Waivers of Subrogation
Lessor and lessee each hereby waive any and all rights of
recovery against the other or against the directors, officers,
shareholders, partners, employees, agents and representatives of
the other, on account of loss or damage of such waiving party or
its property, or the property of others under its control, to the
extent that such loss or damage is insured against under any fire
and extended coverage insurance policy which either may have in
force at the time of such loss or damage. Lessee shall, upon
obtaining the policies of insurance required under this Lease, give
notice to its insurance carrier(s) that the foregoing mutual waiver
of subrogation is contained in this Lease. The waivers set forth
herein shall be required to the extent that same are available from
each party's insurer without additional premium; if an extra charge
is incurred to obtain such waiver, it shall be paid by the party in
whose favor the waiver runs within fifteen (15) days after written
notice from the other party.
Section XVIII
Eminent Domain
If the cost of restoration as estimated by lessor shall amount
to less than fifty percent (50%) of the replacement value. of the
building, or if, despite the cost, lessor does not elect to
terminate this Lease, lessor shall restore the building and the
premises with reasonable promptness, subject to delays beyond
lessor's control and delays in the making of insurance adjustments
between lessor and its insurance carrier, and lessee shall have no
right to terminate this lease except as herein provided. Lessor
need not restore fixtures and improvements owned by lessee.
If the premises or any part of the premises or any estate
therein, or any other part of the building materially affecting
lessee's use of the premises, be taken by eminent domain, this
lease shall terminate on the date when title vests pursuant to such
taking. The rent, and any additional rent, shall be apportioned as
of the termination date and any rent paid for any period beyond
such date shall be repaid to lessee. Lessee shall not be entitled
to any part of the award for such taking or any payment in lieu of
such payment, but lessee may file a claim for any taking of fixtures
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and improvements owned by lessee, and for moving expenses.
Section XIX
Lessor's Remedies on Default
If lessee defaults in the payment of rent, or any additional
rent, or defaults in the performance of any of the other covenants
or conditions of this agreement, lessor may give lessee notice of
such default and if lessee does not cure any rent, or additional
rent, default within ten (10) days, or other default within thirty
(30) days, after the giving of such notice ( or if such other
default is of such nature that it cannot be completely cured within
such period, if lessee does not commence such curing within such
(30) days and thereafter proceed with reasonable diligence and in
good faith to cure such default), then lessor may terminate this
lease on not less than thirty (30) days' notice to lessee. On the
date specified in the notice the term of this lease shall terminate
and lessee shall remain liable as provided below. If this lease
shall have been so terminated by lessor, lessor may at any time
thereafter resume possession of the premises by any lawful means
and remove lessee or other occupants and their effects.
Section XX
Deficiency
In any case where lessor has recovered possession of the
premises by reason of lessee's default, lessor may, at lessor's
option, occupy the premises or cause the premises to be
redecorated, altered, divided, consolidated with other adjoining
premises, or otherwise changed or prepared for reletting, and may
relet the premises or any part of the premises as agent of lessee
or otherwise, for a term or terms to expire prior to, at the same
time as, or subsequent to, the original expiration date of this
lease, at lessor's optionor and receive the rent therefor. Rent so
received shall be applied first to the payment of such expenses as
lessor may have insured in connection with the recovery of
possession redecorating, altering, dividing, consolidating with
other adjoining premises, or other-wise changing or preparing for
reletting, and the reletting, including brokerage and reasonable
attorneys' fees, and then to the payment of damages in amounts
equal to the rent under this agreement and to the cost and expenses
of performance of the other covenants of lessee as herein provided.
Lessee agrees, in any such case, whether or not lessor has relet,
to pay to lessor damages equal to the rent and other sums herein
agreed to be paid by lessee, less the net proceeds of the
reletting, if any, and the damages shall be payable by lessee on
the several rent days above specified. In reletting the premises,
lessor may grant rent concessions, and lessee shall not be credited
with such concessions. No such reletting shall constitute a
surrender and acceptance or be deemed evidence of a surrender and
acceptance. If lessor elects, pursuant to this agreement, actually
to occupy and use the premises or any part of the premises during
any part of the balance of the term as originally fixed or since
extended, there shall be allowed against lessee's obligation for
rent or damages as herein defined, during the period of lessor's
occupancy, the reasonable value of such occupancy, not to exceed in
any event the rent herein reserved and such occupancy shall not be
construed as a relief of lessee's liability under this agreement.
Lessee hereby waives all right of redemption to which lessee
or any person claiming under lessee might be entitled by any law
now or hereafter in force. Lessor's remedies under this agreement
are in addition to any remedy allowed by law. Lessor shall be
entitled to recover reasonable attorney's fees and costs in the
enforcement of any provision of this Lease
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against lessee.
Section XXI
Effect of Failure to Insist on Strict Compliance with Conditions
The failure of either party to insist on strict performance of
any covenant or condition of this agreement, or to exercise any
option herein contained, shall not be construed as a waiver of such
covenant, condition, or option in any other instance. This Lease
cannot be changed or terminated orally.
Section XXII
Collection of Rent from Any Occupant
If the premises are sublet or occupied by anyone other than
lessee and lessee is in default under this agreement, or if this
lease is assigned by lessee, lessor may collect rent from the
assignee, subtenant, or occupant, and apply the net amount
collected to the rent herein reserved. No such collection shall be
deemed a waiver of the covenant herein against assignment and
subletting, or the acceptance of such assignee, subtenant, or
occupant as lessee, or a release of lessee from further performance
of the covenants herein contained.
Section XXIII
Subordination of Lease
This lease shall be subject and subordinate to all underlying
leases and to mortgages and trust deeds which may now or hereafter
affect such leases or the real property of which the premises form
a part, and also to all renewals, modifications, consolidations,
and replacements of the underlying leases and mortgages and trust
deeds. Although no instrument or act on the part of lessee shall
be necessary to effectuate such subordination, lessee will
nevertheless, execute and deliver such further instruments
confirming such subordination of this lease as may be desired by
the holders of the mortgages and trust deeds or by any of the
lessors under such underlying leases. Lessee hereby appoints
lessor attorney in fact, irrevocably, to execute and deliver any
such instrument for lessee. If any underlying lease to which this
lease is subject terminates, lessee shall, on timely request,
attorn to the owner of the reversion.
Section XXIV
Lessor's Right to Cure Lessee's Breach
If lessee breaches any covenant or condition of this lease,
lessor may, on reasonable notice to lessee (except that no notice
need be given in case of emergency), cure such breach at the
expense of lessee and the reasonable amount of all expenses,
including attorneys' fees, incurred by lessor in so doing (whether
paid by lessor or not) shall be deemed additional rent payable on
demand.
Section XXV
Mechanics' Lien
Lessee shall within 10 days after notice from lessor discharge
any mechanics' liens for materials or labor claimed to have been
furnished to the premises on lessee's behalf
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Section XXVI
Notices
Any notice by either party to the other shall be in writing
and shad be deemed to have been duly given only if delivered
personally or sent by registered or certified mail in an addressed
postpaid envelope; if to lessee, at the above described building;
if to lessor, at lessor's address as set forth above; or, to
either, at such other address as lessee or lessor, respectively,
may designate in writing. Notice shall be deemed to have been duly
given, if delivered personally, upon delivery, and if mailed,
upon the 3rd day after the mailing of such notice.
Section XXVII
Lessor's Right to Inspection, Repair, and Maintenance
Lessor may enter the premises at any reasonable time, upon
adequate notice to lessee (except that no notice need be given in
case of emergency) for the purpose of inspection or the making of
such repairs, replacements, or additions in, to, on or about the
premises or the building, as lessor deems necessary or desirable.
Lessee shall have no claim or cause of action against lessor by
reason of such entry except as provided in Section XXXIII of this
agreement.
Section XXVIII
Interruption of Services or Use
Interruption or curtailment of any service maintained in the
building, if caused by strikes, mechanical difficulties, or any
causes beyond lessor's control whether similar or dissimilar to
those enumerated, shall not entitle lessee to any claim against
lessor or to any abatement in rent, and shall not constitute
constructive or partial eviction, unless lessor fails to take such
measures as may be reasonable in the circumstances to restore the
service without undue delay. If the premises are rendered
untenantable in whole or in part, for a period of 30 business days,
by the making of repairs, replacements, or additions, other than
those made with lessee's consent or caused by misuse or neglect by
lessee or lessee's agents, servants, visitors, or licensees, there
shall be a proportionate abatement of rent during the period of
such untenantability.
Section XXIX
Conditions of Lessor's Liability
Lessee shall not be entitled to claim a constructive eviction
from the premises unless lessee shall have first notified lessor in
writing of the condition or conditions giving rise to such
eviction, and, if the complaints be justified, unless lessor shall
have failed within a reasonable time after receipt of such notice
to remedy such conditions.
Section XXX
Lessor's Right to Show Premises
Lessor may show the premises to prospective purchasers and
mortgagees and, during the 3 months prior to termination of this
lease, to prospective tenants, during business hours upon
reasonable notice to lessee.
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Section XXXI
Effect of Other Representations
No representations or promises shall be binding on the parties
to this agreement except those representations and promises
contained herein or in sum future writing signed by the party
making such representations or promises.
Section XXXII
Peaceful Enjoyment
Lessor covenants that if, and so long as, lessee pays the
rent, and any additional rent as herein provided, and performs the
covenants of this lease, lessee shall peaceably and quietly have,
hold, and enjoy the premises for the term herein mentioned, subject
to the provisions of this lease.
Section XXXIII
Lessee's Certification as to Force and Effect of Lease
Lessee shall from time to time, upon not less than 3 days'
prior written request by lessor, execute, acknowledge and deliver
to lessor a written statement certifying that the lease is
unmodified in full force and effect, or that the lease is in full
force and effect as modified and listing the instruments of
modification; the dates to which the rents and other charges have
been paid; and, whether or not to the best of lessee's knowledge
lessor is in default under this lease and, if so, specifying the
nature of the default. It is intended that any such statement
delivered pursuant to this Section may be relied upon by a
prospective purchaser of lessor's interest or mortgagee of lessor's
interest or assignee of any mortgage upon lessor's interest in the
building.
Section XXXIV
Waiver of Jury Trial
To the extent such waiver is permitted by law, the parties
waive trial by jury in any action or proceeding brought in
connection with this lease or the premises.
Section XXXV
Indemnification
Lessor shall not be liable and lessee hereby waives all claims
against lessor for any damage to any property or any injury to any
person in or about the Premises or other portions of the Building
by or from any cause whatsoever, including without Stations rain or
water leakage of any character from the roof, windows, walls,
basement, pipes, pluming works or appliances, of the Building not
being in good condition or repair, gas, fire, oil electricity,
theft, or by the acts or omissions of other tenants of the
Building; except that lessor will indemnify and hold lessee
harmless from such claims to the extent caused by the gross
negligence or willful act of lessor, or its agents, employees or
contractors. Lessee shall hold lessor harmless from and defend
lessor against any and all claims, liability or costs (including
court costs and attorneys' fees) for any damage to any property or
any injury to any person occurring in, on or about the Premises or
other portions of the Building when such injury or damage shall be
caused by or arise from, in part or in whole, (a) the act, neglect,
fault or omission to meet the standards imposed by any duty with
respect to the injury or damage, by Lessee, its agents, servants,
employees or invitees; (b) the conduct or management of any work or
thing whatsoever done by lessee in or about the Premises
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or from transactions of lessee concerning the Premises; or (c) any
breach or default on or part of lessee in the performance of any
covenant or agreement on the part of lessee to be performed pursuant
to this Lease. The provisions of this Section shall survive the
termination of this Lease with respect to any claims or liability
arising prior to such termination.
Section XXXVI
Section Headings
The Section headings in this lease are intended for
convenience only and shall not be taken into consideration in any
construction or interpretation of this lease or any of its
provisions.
Section XXXVII
Binding Effect on Successors and Assigns
The provisions of this lease shall apply to, bind, and inure
to the benefit of lessor and lessee, and their respective heirs,
successors, legal representatives, and assigns. It is understood
that the term "lessor" is used in this lease mans only the owner,
a mortgagee in possession, or a term lessee of the building, so
that in the event of any sale of the building or any lease of the
building, or if a mortgagee shall take possession of the premises,
the lessor named herein shall be entirely freed and relieved of all
covenants and obligations of lessor subsequently accruing under
this agreement it shall be deemed without further agreement that
the purchaser, the term lessee of the building, or the mortgagee in
possession has assumed and agreed to carry out any and all
covenants and obligations of the lessor under this agreement.
Section XXXVIII
Rules and Regulations
1 . No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the outside or inside of
Building, except on the glass of the doors and windows of the
Premises and on the directory board, and then only of such color,
size, style and material as shall be first specified by the lessor
in , endorsed on this lease. No showcase shall be placed in front
of Building by lessee, without the written consent of lessor
endorsed on this lease. The lessor reserves the right to remove
all other signs and showcases without notice to the Lessee, at the
expense of the lessee. At the expiration of the term Lessee is to
remove all his signs from such windows, doors and directory board.
2. Lessee shall not put up or operate any steam engine,
boiler, machinery or stove upon the Premises, or carry on any
mechanical business on Premises, or use or store inflammable fluids
in Premises without the written consent of the lessor first had and
endorsed on this Lease, and all stoves which may be allowed in the
Premises shall be placed and set up according to the city
ordinance.
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3. No additional locks shall be placed upon any doors of
Premises without the written consent of the lessor first had and
endorsed upon this Lease; and the lessee will not permit any
duplicate keys to be made (all necessary keys to be furnished by
lessor) and upon the termination of this lease, lessee will
surrender all keys of Premises and Building.
4. All safes shall be carried into Premises at such times and
in such a manner as shall be specified by the lessor; -the lessor
shall in all cases retain the power to prescribe the proper
position of such safes, and any damage done to the Building by
taking in or putting out a safe, or from overloading the floor with
any safe, shall be paid by the lessee.
5. No person or persons other than the janitor of this
Building shall be employed by lessee for the purpose of taking
charge of Premises without the written consent of lessor first had
and endorsed upon this Lease. Any person or persons so employed by
lessee (with the written consent of the lessor) must be subject to
and under the control and direction of the janitor of the Building
in all things in the Building and outside of the Premises. The
agent and janitor of the Building shall at all times keep a pass
key and be allowed admittance to the Premises, to cover any
emergency of fire, or required examination that may arise.
6. The Premises leased shall not be used for the purpose of
lodging or sleeping rooms or for any immoral or illegal purpose.
7. The rent of an office will include occupancy of office,
water to lessor's standard fixtures, heat and elevator service
during reasonable working hours; but lessor shall not be liable for
any damages from the stoppage of water, heat or elevator service.
8. If lessee desires facsimile or telephonic connections,
the lessor will direct the electrician as to where and how the wires
are to be introduced, and without such written directions endorsed
on this lease no boring or cutting for wires will be permitted.
9. If lessee desires Venetian or other awnings or shades
over and outside of the windows, to be erected at the lessee's
expense, they must be of such shape, color, material and make as
may be prescribed by the lessor in writing on this Lease.
10. Birds, dogs or other animals shall
not be allowed in the Building. All tenants and occupants must
observe strict care not to leave their windows open when it rains
or snows, and for any default or carelessness in these respects, or
any of them, shall make good all injuries sustained by other
tenants, and also all damage to the Building resulting from such
default or carelessness.
11. No packages, merchandise or other effects shall be
allowed to remain in the halls at any time.
12. The lessor reserves the right to make such other and
further reasonable rules and regulations as in his judgment may
from time to time be needful for the safety, care and cleanliness
of the Premises and for the preservation of good order therein.
13. It is understood and agreed between the lessee and the
lessor that no assent or consent to change in or waiver of any part
of this lease has been or can be made unless done in writing and
endorsed hereon by the lessor; and in such case it shall operate
only for the time and
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purpose in this lease expressly stated.
Dated Xxxxx 00, 0000
XXXXXX: LESSOR:
Xxxx Xxxxxxx Mobile Design Concepts, Inc.
By: /s/ By: /s/
Its President
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