Contract
Exhibit
10.15
This
Memorandum of Sublease set forth in summary form the understanding of the
parties hereto and is dated this 21 day
of November 2005.
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1.
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Heritage
One, L.L.C., as Landlord and Rocky Mountain Seed and Grain, as
Tenant have
entered into a Commercial and Industrial Lease dated August 9,
2004,
attached hereto as Exhibit "A" for
reference.
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2.
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Under
the terms of such Lease, the Tenant may sublease the demised premises
in
accordance with Section 12 thereof. Such section requires the Landlord
to
provide in writing its consent for the
sublease.
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3.
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The
Tenant desires to sublease the space to High Performance Coatings,
.Inc.,
an Oklahoma corporation doing business in Oklahoma as well as in
Utah.
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4.
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High
Performance Coatings, Inc. desires to sublease the space on the
same basis as the terms of the original. Lease as set forth
herein.
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5.
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All
parties desire to provide a writing that acknowledges the positions
of the
parties relative to the demised
property.
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6.
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Landlord
hereby gives permission and consent for the sublease to High Performance
Coatings, Inc., as a subtenant for the space. Landlord is not otherwise
releasing, altering or amending the lease, nor is it substituting
High
Performance Coatings, Inc. as a new primary tenant, simply agreeing
to
the sublease.
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7.
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High
Performance Coatings, Inc., is subleasing the space on the same
terms and
conditions as Tenant, including any and 411 changes made by the
original lease, and has agreed to pay directly to the Landlord
for
the period of time that this sublease continues such monthly rentals
his
are then due and owing under the Lease. The parties hereto
acknowledge that High Performance Coatings, Inc. business employs
chemicals and solvent,
in its
coating materials mixing shop. These materials have been deemed
hazar ous
as defined in Exhibit A; however, the controlled use and storage
of these m tteiials shall not be deemed to violate the terms of
the Exhibit A.
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8.
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High
Performance Coatings, Inc., agrees):to sublease this space for
the
duration of the Lease term. Tenant agrees to provide High Performance
Coatings, Inc. the right to terminate this sublease on .tune 3p,
2006.
High Performance Coatings, Inc agrees to provide the Tenant with
written
notice dated onn or before April 30, 2006 of such termination intent.
High
Performance Coatings, Inc. also agrees to provide a $2,022 security
deposit to the
Landlordd with is fully refundable at the termination of the
Sublease,
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9.
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During
the term of the sublease, Tenant has agreed to allow High Performance
Coatings, Inc., the reasonable use of the flat bed truck that Tenant
is
not using in the business operated by Tenant. Such use shall be
reasonable
and shall not Coatings,
Inc. a
first right of refusal in the disposition at the same value and
terms as
Tenant may have with a third party. High Performance Coatings,
Inc. shall
have 30 days or
sooner to exercise such right, otherwise Tenant shall
be free to
otherwise dispose or transfer these two
assets.
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10.
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Such
reasonable use of the truck is not con4idered as rental, or as
having value in the application of the language contained
in
section 12 of the Lease as "increased rental." No additional sums
shall be
due to Landlord for this use; and right as hereinbefore set
forth.
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11.
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The
parties also agree that there are no commissions to be paid by
any of the
parties in the execution of this sublease other than
those that. might be continued from the original agreement
between
the Landlord and Xxxxxx,
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00.
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The
space shall be used for coating material mixing shop; parts
receiving, shipping and storage; and office
space.
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13.
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High
Performance Coatings,
Inc. agreesto
pay Landlord the cost of water usage above and beyond standard
monthly usage; Standard monthly water usage will be defined as
the
combined average monthly water usage for each month over the last
24
months.
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14.
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Tenant
agrees to provide
an 18 inch
vent
through
the roof at a location approved by the Tenant and High Performance
Coatings, Inc.,
and
Tenant agrees to provide a hose bib
with turn-off
valve at a locationapproved by the Tenant and High Performance
Coatings, Inc., and Tenant agrees to replace existing thermostats
for two of the existing space heaters with
new thermostats that have an off-on
switch.
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15.
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Tenant
agrees to cap the venting hole and remove the hose bib, associated
valve
and piping if requested by the landlord. High Performance Coatings,
Inc.
agrees to repair damage to the roof membrane caused by the coating
mixing material vented through the roof vent and landing on the
roof. Any roof damage caused by installation or capping venting work
due to contractor neglect or poor workmanship will be repaired
by the
Tenant
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16.
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The
sum of $750 shall be the sum as an allowance that the Tenant agrees
to pay
for the installation and capping of the 18 inch vent. If
the cost
of
installing and capping the vent exceeds $750, High Perfbrmance
Coatingswill pay
the
reasonable
remaining costs not due to sub-contractor error or
malfeasance.
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17.
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The
installation and capping of the vent stall be performed by a licensed
roofer, and the hose bib, valve and piping
installation and re moval'performed by a licensed
plumber.,
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18.
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Notwithstanding
the
term of the original
lease,
High Performance Coatings, Inc. may, at its sole
option,
approach
the
Landlord,to negotiate
anew lease
with
such
terms
and
conditions as may be appropriate and suitable to the Landlord
and
High Performance Coatings,
Inc. In the event that such negotiations result in a new lease for
space, Tenant agrees to release its claims under the Lease it now
has and
Landlord agrees to release the Tenant from any continuing liability.
Until
such
time
however, Landlord shall continpe to rely solely on the Tenant for
performance of any and all terms under the
Lease.
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19.
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The
final acceptance of this Sublease is subject to the acquisition
of a
business license for the space and the associated inspections required
by
the business license.
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Dated
the
day and date for above-written.
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Landlord:
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Tenant:
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Heritage
One, LLC
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Rocky
Mountain Seed & Grain
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By:
/s/
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By:
/s/
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Title:
Owner, Manager
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Title:
President
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Sub-lessee:
High
Performance Coatings, Inc.
By:
/s/ Xxxxx X. Xxxxxx
Title:
President, COO
This
Memorandum of Sublease set forth in summary form the understanding of the
parties hereto and is dated this ___ day of November 2005.
1.
Heritage One, L.L.C., as Landlord and Rocky Mountain Seed and Grain, as Tenant
have entered into a Commercial and Industrial Lease dated August 9, 2004,
attached hereto as Exhibit "A" for reference.
2.
Under
the terms of such Lease, the Tenant may sublease the demised premises in
accordance with Section 12 thereof. Such section requires the Landlord to
provide in writing its consent for the sublease.
3.
The
Tenant desires to sublease the space to High Performance Coatings, Inc.,
an
Oklahoma corporation doing business in Oklahoma as well as in Utah.
4.
High
Performance Coatings, Inc. desires to sublease the space on the same basis
as
the terms of the original Lease as set forth herein.
5.
All
parties desire to provide a writing that acknowledges the positions of the
parties relative to the demised property.
6.
Landlord hereby gives permission and consent for the sublease to High
Performance Coatings, Inc., as a subtenant for the space. Landlord is not
otherwise releasing, altering or amending the lease, nor is it substituting
High
Performance Coatings, Inc. as a new primary tenant, simply agreeing to the
sublease.
7.
High
Performance Coatings, Inc., is subleasing the space on the same terms and
conditions as Tenant, including any and all changes made by the original
lease,
and has agreed to pay directly to the Landlord for the period of time that
this
sublease continues such monthly rentals as are then due and owing under the
Lease. The parties hereto acknowledge that High Performance Coatings, Inc.
business employs chemicals and solvents in its coating materials mixing shop.
These materials have been deemed hazardous as defined in Exhibit A; however,
the
controlled use and storage of these materials shall not be deemed to violate
the
terms of the Exhibit A.
8.
High
Performance Coatings, Inc., agrees to sublease this space for the duration
of
the Lease term. Tenant agrees to provide High Performance Coatings, Inc.
the
right to terminate this sublease on June 30, 2006. High Performance Coatings,
Inc agrees to provide the Tenant with written notice dated on or before April
30, 2006 of such termination intent. High Performance Coatings, Inc. also
agrees
to provide a $2,022 security deposit to the Landlord which is fully refiindable
at the termination of the Sublease.
9.
During the term of the sublease,
Tenant has agreed to allow High Performance Coatings, Inc., the reasonable
use
of the flat bed thick that Tenant is not using in the business operated by
Tenant. Such use shall be reasonable and shall not otherwise interfere with
the
operations of the Tenant. In the event that Tenant desires to sell or
otherwise transfer its interest in the truck or its forklift it shall give
High
Performance Coatings,
Inc. a
first right of refusal in the disposition at the same value and terms as
Tenant
may have with a third party. High Performance Coatings, Inc. shall have 30
days
or sooner to exercise such right, otherwise Tenant shall be free to otherwise
dispose or transfer these two assets.
10.
Such
reasonable use of the truck is not considered as rental, or as having value
in
the application of the language contained in section 12 of the Lease as
"increased rental." No additional sums
shall be due to Landlord for this use and right as hereinbefore set
forth.
11.
The
parties also agree that there are no commissions to be paid by any of the
parties in the execution of this sublease other than those that might be
continued from the original agreement between the Landlord and
Tenant.
12.
The
space shall be used for coating material mixing shop; parts receiving, shipping
and storage; and office space.
13.
High
Performance Coatings, Inc. agrees to pay Landlord the cost of water usage
above
and beyond standard monthly usage. Standard monthly water usage will be
defined as the combined average monthly water usage
for each month over the last 24 months.
14.
Tenant agrees to provide an 18 inch vent through the roof at a location approved
by the Tenant and High Performance Coatings, Inc., and Tenant agrees to provide
a hose bib with turn-off valve at a location approved by the Tenant and High
Performance Coatings, Inc,, and Tenant agrees to replace existing thermostats
for two of the existing space heaters with new thermostats that have an off-on
switch.
15.
Tenant agrees to cap the venting hole and remove the hose bib, associated
valve
and piping if requested by the landlord, High Performance Coatings, Inc.
agrees
to repair damage to the roof membrane caused by the coating mixing material
vented through the roof vent and landing on the roof. Any roof damage caused
by
installation or capping venting work due to contractor neglect or poor
workmanship will be repaired by the Tenant
16.
The sum of $750 shall be the sum as an allowance that the Tenant
agrees to pay for the installation and capping of the 18 inch vent. If the
cost
of installing and capping the vent exceeds $750, High Performance Coatings
will
pay the reasonable remaining costs not due to sub-contractor error or
malfeasance.
17.
The
installation and capping of the vent shall be performed by a licensed roofer,
and the hose bib, valve and piping installation and removal performed by
a
licensed plumber..
18.
Notwithstanding the term of the
original lease, High Performance Coatings, Inc. may, at its sole option,
approach the Landlord to negotiate a new lease with such terms
and conditions as may be
appropriate and suitable to the Landlord and I-iigh Performance Coatings,
Inc.
In the event that such negotiations result in a new lease for space, Tenant
agrees to release its claims under the Lease it now has and Landlord agrees
to
release the Tenant from any continuing liability, Until such
time however,
Landlord shall continue to rely solely on the Tenant for performance of any
and
all terms under the Lease.
19.
The
final acceptance of this Sublease is subject to the acquisition of a business
license for the space and the associated inspections required by the business
license.
Dated
the
day and date for above-written.
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Landlord:
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Tenant:
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Heritage
One, LLC
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Rocky
Mountain Seed & Grain
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By:
/s/
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By:
/s/
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Title:
Owner, Manager
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Title:
President
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Sub-lessee:
High
Performance Coatings, Inc.
By:
/s/ Xxxxx X. Xxxxxx
Title:
President, COO
XXXXXXXXX
&
COMPANY
A Professional Corporation
FAX
TRANSMITTAL SHEET
Company:
HPC
Attn:
Xxxx
Fax
#:
From:
Xxxxxxx
Date:
11/17/04 Time:
Message: Lease
for UT
facility
If
you
are not receiving clearly, or if you have any problems with this transmission,
please call us immediately at (000) 000-0000.
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transmission is intended only for the use of the individual or entity to
whom it
is addressed, and may contain information that is privileged and confidential,
or that constitutes work product and is exempt from disclosure under applicable
law.
If
you
are not the intended recipient or the employee or agent of the intended
recipient, you are hereby notified that any use, dissemination, distribution
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copying of this communication is strictly prohibited. If you have received
this
communication in error, please notify us immediately by telephone and return
the
document to us at the address below. Thank you.
Total
number of pages (including this
cover sheet): 19
CERTIFIED
PUBLIC ACCOUNTANTS • AICPA • UACPA • NSTP
4541
So. 000 Xxxx •
Xxxxx 000 •
Xxxx Xxxx Xxxx, XX 00000 •
Phone (000) 000-0000 •
Fax (000) 000-0000
COMMERCE
CRG
Standard
Form
COMMERCIAL
AND INDUSTRIAL LEASE
THIS
LEASE made and entered into this 9th day of
August
2004, by and between HERITAGE ONE, L.L.C., a UTAH LIMITED LIABILITY
COMPANY, hereinafter called "Landlord," and ROCKY MOUNTAIN SEED
AND GRAIN, hereinafter called "Tenant."
WITNESSETH:
In
consideration of the covenants and promises contained herein and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledge, it is agreed by the parties hereto as follows:
I.
DEFINITIONS:
1.
DEMISED PREMISES
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord all those
certain
premises hereinafter more fully described, together with the buildings and
other
improvements thereon, for the term and upon the rental herein set forth.
Said
demised premises consist more particularly of an area containing approximately
5,490 square feet of a certain project containing approximately 16,470 square
feet, situated on a parcel of land in a complex commonly known as 00000 Xxxxx
Xxxxxxxx Xxx, Xxxxx X located in Bluffdale, State of Utah. See Exhibit "A"
for
Site Plan.
Tenant
shall have the right to use the common and parking areas jointly with any
other
tenants of the building. However, this right shall be subject to the exclusive
control and management of Landlord. Landlord shall have the right from time
to
time to establish and modify and enforce reasonable rules and regulations
with
respect to parking.
2. PROPORTIONATE
SHARE:
As
used
in Section III, paragraphs 1 (a), 3, 5 and 6 and elsewhere herein,
"proportionate share" or "tenant's share" means that fraction. the numerator
of
which is the number of square feet leased by the Tenant in the
project and the denominator which is the number of square feet in the project.
each of which is stated in the definition of 'Demised Premises"
above.
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II.
TERM:
TO
HAVE
AND TO HOLD said premises unto Tenant for a term of three (3) years and one
and
one-half months beginning August 9. 2004 and ending September 30,
2007.
III.
TERMS AND CONDITIONS OF LEASE:
This
Lease is made on the following terms and conditions, which are expressly
agreed
zo by Landlord and Tenant:
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1.
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RENT:
The Tenant agrees to pay as rental to Landlord, at the address
specified
in this Lease or at such other place Landlord may from time to
time
designate in writing, the sum ofSEVENTY-TWO THOUSAND SEVEN HUNDRED
NINETY-TWO DOLLARS AND NO CENTS ($72,792.00). Said sum to be lawful
money
of the United States payable as follows: $4,444.00 shall be paid
upon the
execution of this Lease of which $1,922.00 represents the first
month=s
base rent and of which $2,122.00 represents the security deposit,
and of
which $400.00 represents the 2eratmm expenses for the first mouth.
The
months of August and September 2004 shall §e rent free. Then beginning
November 1, 2004, the Tenant shall pay $1,922.00 to the Landlord
on the
first day of each and every month until September 30, 2005. Then
beginning
October 1, 2005, the Tenant shall pay $2,022.00 to the Landlord
on the
first day of each and every month until September 30, 2006. Then
beginning
October 1, 2006, the Tenant shall pay $2,122.00 to the Landlord
on the
first day of each and every month until this Lease has
expired.
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(a) In
addition to
Tenant's monthly base rent, Landlord will collect from Tenant its proportionate
share of the operating expenses associated with this Park on a monthly basis.
The following items are included as operating expenses:
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1.
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Real
estate taxes
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2.
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Fire
and liability insurance
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3.
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Sweeping
and snow removal
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4.
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Landscaping
and ground maintenance
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5.
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Common
utilities and water and sewer
charges
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6.
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HVAC
contracts
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The
estimated cost for 2004 is 8.0 cents per square foot or $400.00 per month.
At
year end the actual operating costs shall be determined by Landlord and any
adjustment in such estimate shall be made with appropriate additional payments
by or refunds to Tenant, as appropriate.
(b) SECURITY
DEPOSIT: Tenant contemporaneously with the execution of this lease, has
deposited with Landlord the sum of $2,122.00 receipt of which is hereby
aclmowledged by Landlord, said deposit being given to secure the faithful
performance by the Tenant of all of the terms, covenants and conditions of
this
lease by the Tenant to be kept and performed during the term hereof. Tenant
agrees that if the Tenant shall fail to pay the rent herein reserved promptly
when due, said deposit may, at the option of the Landlord (but Landlord shall
not be required to) be applied to any rent due and unpaid, and if the Tenant
violates any of the other terms, covenants and conditions of this Lease,
said
deposit shall be applied to any damages suffered.
2
Nothing
contained in this paragraph shall in any way diminish or be
construed as waiving any of the Landlord's other remedies as provided herein,
or
by law. If the security deposit is applied by Landlord for the payment of
overdue rent or other sums due and payable to Landlord by Tenant hereunder,
then
Tenant shall, on the written demand of Landlord, forthwith remit to Landlord
a
sufficient amount in cash to restore said security deposit to its original
amount, and Tenant's failure to do so within fifteen (15) days after receipt
of
such demand, shall constitute a breach of this lease. Should Tenant comply
with
all ofthe terms. covenants and conditions of this lease and promptly pay
all of
the rental herein provided for as it falls due, and all other sums payable
by
Tenant to Landlord hereunder, said security deposit shall be returned in
full to
Tenant at the end of the term of this lease, or upon the earlier termination
of
this lease pursuant to the provisions hereof, except in the event the demised
premises are sold as a result of the exercise of any power of sale under
any
mortgage or deed oftrust, in which event this lease shall be automatically
amended to delete any reference to this paragraph and Tenant shall be entitled
to immediate reimbursement of its security deposit from the party then holding
said deposit.
(c) LATE
CHARGES:
In the event Tenant fails to pay said rental (including any additional
rental due hereunder) within ten (10) days of the due date, a late charge
of ten
percent (10%) shall be due and payable to Landlord.
2.
AUTHORIZED USE: Tenant
shall use the leased premises for the following purpose, and for no other
purpose whatsoever, without the written consent of Landlord first had and
obtained: general office and warehousing.
Tenant
shall not commit or knowingly permit any waste of the leased premises or
use the
same for any unlawful purpose. The Tenant will comply with all applicable
federal, state and local laws, ordinances and regulations relating to the
leased
premises and its use and operation by the Tenant.
Tenant
agees not to keep, use or permit to be kept or used. on the Leased Premises
arty
flammable fluids, explosives or any "hazardous substance," "solid waste,"
or
"hazardous waste" as said terms are defined in 42 U.S.C. 9601(14), and 40
C.F.R.
261.1 et seq. without the prior written permission of Landlord.
3. PAYMENT
OF TAXES AND OTHER ASSESSMENTS: Tenant shall pay its proportionate
share when they are due of all property taxes, license fees and assessments
levied or imposed against the premises or measured by the rent payable hereunder
during the term of this Lease or any extension thereof, by Federal, state,
nmicipal or other governmental authority; provided, however, that no law
or
practice postponing the payment of such taxes, assessments or charges until
after the termination of this Lease shall relieve Tenant of the obligation
to
make such payments. Payment of such taxes shall be made by Tenant to Landlord
not later than thirty (30) days following the date on which Landlord provides
Tenant with written evidence of such taxes in the form of a copy of the tax
return or notice. If Tenant fails to pay any of such taxes, charges or other
impositions when due. Landlord may pay the same under the provisions of
paragraph 1.9, hereinafter set forth. Anything herein to the contrary
notwithstanding, if Tenant deems excessive or illegal any such tax or
assessment, Tenant may defer payment thereof so long as the validity or the
amount thereof is contested by Tenant in good faith, in which case Tenant
shall
furnish to Landlord a bond, in form reasonably satisfactory to Landlord,
in an
amount equal to the amount of taxes or assessments so contested, which bond
shall guarantee the payment thereof with interest and penalties
thereon.
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4. CONDITION
OF THE PRENIISES: Tenant accepts the leased premises in the condition
they are in at the time of its taking possession to said premises. Tenant
agrees, if, during the term of this Lease, Tenant shall change the usual
method
of conducting Tenant's business on the leased premises, or should Tenant
install
thereon or therein any new facilities, Tenant will, atthe sole cost and expense
of Tenant, make alterations or improvements in or to the demised premises
which
may be required by reason of any Federal or state law, or by any municipal
ordinance, or regulation applicable thereto. Landlord warrants that the
building, on date of occupancy, meets all currently applicable Federal, state
and municipal laws and ordinances.
5. TENANT'S
PAYMENT FOR PROPERTY INSURANCE: Tenant shall pay its proportionate
share of insurance maintained by the Landlord on the leased premises against
the
perils of fire, the "extended coverages", vandalism and mischief, and all
risks
to the building as well as coverage for six months rent loss due to business
interruption from the covered risks. The amount of insurance coverage shall
be
in an amount equal to ninety percent (90%) of the replacement value of the
premises. Tenant shall be responsible for any damage to premises as a result
of
forced entry into the leased premises or burglary thereof. Also, Tenant shall
maintain insurance coverage for Tenant's personal property, improvements,
and
alterations to the premises. This insurance shall cover the same risks and
shall
be for the same percentage of replacement value as the insurance maintained
by
the Landlord. The proceeds from such insurance shall be used
to
replace Tenant's personal property and to restore its improvements and
alterations. Both Landlord and Tenant shall be named as coinsureds for this
coverage maintained by the Tenant. Landlord shall be given thirty (30) days
notice prior to cancellation or termination of this insurance
policy.
6. REPAIR
AND CARE OF BUILDING AND PAYMENT OF UTILITIES BY TENANT: Tenant shall
pay all charges, including but not limited to charges for water, heat, gas,
electricity and other public utilities used on the leased premises, including
all replacements of light bulbs, tubes, ballasts and starters within a
reasonable time after they burn out.
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Tenant
agrees to keep the interior of the premises and the grounds outside the premises
in good condition, and to keep the sidewalks by the premises free from snow
and
ice, and agrees to pay for all labor, materials and other repairs to the
electrical wiring, plumbing, air-conditioning and heating systems. Tenant
shall
also be responsible to clean and paint the interior of the premises such
that it
is returned to Landlord in the same condition as received by Tenant, normal
wear
and tear accepted.
Tenant
also agrees to pay its proportionate share for:
1. Mowing
of grass, care of shrubs, and general landscaping, if any;
2. The
cleaning of the exterior of the premises as deemed desirable by the Landlord
for
maintaining the premises in a clean, attractive and sanitary condition;
and
3. The
removal of snow and ice, as may be reasonably possible, from driveways and
parking lots.
7. REPAIR
OF BUILDING BY LANDLORD: Landlord agrees for the teen of this Lease, to
maintain in good condition and repair any latent defects in the exterior
walls,
floor joists, and foundations, and to repair any defects in the plumbing,
electrical, heating and air-conditioning systems for one year after date
of
occupancy as well as any damage that might result from acts of Landlord or
Landlord's representatives. Landlord shall not, however, be obligated to
repair
any such damage until written notice of the need of repair shall have been
given
to Landlord by Tenant and, after such notice is so given, Landlord shall
have a
reasonable time in which to make such repairs.
8. ALTERATIONS
OF BUILDING AND INSTALLATION OF FIXTURES AND OTHER APPURTENANCES:
Tenant may, with written consent of Landlord, which consent shall
not
be unreasonably withheld or delayed, but at Tenant's sole cost and expense
in a
good and workmanlike manner, make such alterations and repairs to the leased
premises as Tenant may require for the conduct of its business without, however,
materially altering the basic character of the building or improvements,
or
weakening any structure on the demised premises. Tenant shall have the right,
with the written permission of Landlord, to erect, at Tenant's sole cost
and
expense, such temporary partitions, including office partitions, as may be necessary to facilitate
the
handling of Tenant's business and to install telephone and telephone equipment
and wiring, and electrical fixtures, additional lights and wiring and other
trade appliances. Any alterations or improvements to the leased premises,
including partitions, all electrical fixtures, lights and wiring shall, at
the
option of Landlord, become the property of Landlord, at the expiration or
sooner
termination of this Lease. Should Landlord request Tenant to remove all or
any
part of the above mentioned items. Tenant shall do so prior to the expiration
of
this Lease and repair the premises as described below. Temporary shelves,
bins,
and machinery installed by Tenant shall remain the property of Tenant and
may be
removed by Tenant at any time; provided, however, that all covenants, including
rent due hereunder to Landlord shall have been complied with and paid. At
the
expiration or sooner termination of this Lease, or any extension thereof,
Tenant
shall remove said shelves. bins and machinery and repair, in a good workmanlike
manner, all damage done to the leased premises by such removal.
5
9. ERECTION
AND REMOVAL OF SIGNS: Tenant may; if building policy permits, place
suitable signs on the leased premises for the purpose of indicating the nature
of the business cam ed on by Tenant in said premises; provided, however that
such signs shall be in keeping with other signs in the district where the
leased
premises are located; and provided, further, that the location and size of
such
signs shall be approved by Landlord prior to their erection. Signs shall
be
removed prior to the expiration of this lease and any damage to the leased
premises caused by installation or removal of signs shall be repaired at
expenses of the Tenant. All work shall be completed in a good workmanlike
manner,
10. GLASS:
Tenant agrees to immediately replace all glass into the demised premises
if
broken or damaged during the term of this Lease with glass of the same quality as
that
broken or damaged.
11. RIGHT
OF ENTRY BY LANDLORD: Tenant, shall permit inspection of the demised
premises during reasonable business hours by Landlord or Landlord's agents
or
representatives for the purpose of ascertaining the condition of the demised
premises and in order that Landlord may make such repairs as may be required
to
be made by Landlord under the terms of this Lease. Sixty (60) days prior
to the
expiration of this Lease, Landlord may post suitable notice on the demised
premises that the same are "For Rent" and may show the premises to prospective
tenants at reasonable times. Landlord may not, however, thereby unnecessarily
interfere with the use of demised premises by Tenant.
12. ASSIGNMENT
AND SUBLETTING: Neither this Lease nor any interest herein may be
assigned by Tenant voluntarily or involuntarily, by operation of law, and
neither all nor any part of the leased premises shall be sublet by Tenant
without the written consent of Landlord first had or otherwise obtained;
however, Landlord agrees not to withhold its consent unreasonably for Tenant
to
sublet the demised premises. In the event the premises should be sublet.
as herein provided, at an increased rental, fifty (50%) percent of said
increase shall be paid to Landlord by Tenant as additional rental.
13. DAMAGE
OR DESTRUCTION: If the demised premises or any part thereof shall be
damaged or destroyed by fire or other casualty, Landlord shall promptly repair
all such damage and restore the demised premises without expense to Tenant,
subject to delays due to adjustment of insurance claims, strikes and other
causes beyond Landlord's control. If such damage or destruction shall render
the
premises untenable in whole or in part, the rent shall be abated wholly or
proportionately as the case may be until the damage shall be repaired and
the
premises restored. If the damage or destruction shall be so extensive as
to
require the substantial rebuilding, i.e., expenditure of fifty (50%) percent
or
more of replacement cost of the building or buildings on the demised premises,
Landlord or Tenant may elect to terminate this Lease by written notice to
the
other given within thirty (30) days afterthe occurrence of such damage or
destruction. Landlord and Tenant hereby release each other from responsibility
for loss or damage occurring on orto the leased premises or the premises
of
which they are a part or to the contents of either thereof, caused by fire
or
other hazards ordinarily covered by fire and extended coverage insurance
policies and each waives all rights of recovery against the other for such
loss
or damage, Willful misconduct lawfully attributable to either party, whether
in
whole or in part a contributing cause of the casualty giving rise to the
loss or
damage, shall not be excused under the foregoing release and
waiver.
6
14. INJURIES
AND PROPERTY DAMAGE: Tenant agrees to indemnify and hold harmless
Landlord of and from any and all claims of any kind or nature arising from
Tenant's use of the demised premises during the term hereof, and Tenant hereby
waives all claims against Landlord for damage to goods, xxxx, merchandise
or for
injury to persons in and upon the premises from any cause whatsoever, except
such as might result from the negligence of Landlord or Landlord's
representatives or fi-om failure
of
Landlord to perform its obligation hereunder within a reasonable time after
notice in writing by Tenant requiring such performance by Landlord. Tenant
shall
at all times during the term hereof keep in effect in
responsible companies liability insurance in the names
of and for the
benefit of Tenant and Landlord with limits as follows:
Bodily
Injury. $1,000,000.00 each occurrence; Property Damage, 5500,000.00;
or in lieu thereof, a combined limit of bodily injury and property
damage liability of not less than $1,000.000.00.
Such
insurance may, at Tenant's election, be carried under any general blanket
coverage of Tenant. A renewal policy shall be procured not less than ten
(10)
days prior to the expiration of any policy. Each original policy or a certified
copy thereof, or a satisfactory certificate of the insurer evidencing insurance
carried with proof of payment of the premium shall be deposited with Landlord.
Tenant shall have the right to settle and adjust all liability claims and
all
other claims against the insuring companies, but without subjecting Landlord
to
any liability or obligation.
15. SURRENDER
OF PREMISES: Tenant agrees to surrender the leased premises at the
expiration, or sooner termination, of the term of this Lease, or any extension
thereof, in the same condition as when said premises were delivered to Tenant,
or as altered, pursuant to the provisions of this Lease, ordinary wear, tear
and
damage by the elements excepted, and Tenant shall remove all of its personal
property. Tenant agrees to pay a reasonable cleaning charge should it be
necessary for Landlord to restore or cause to be restored the premises to
the
same condition as when said premises were delivered to Tenant.
16. HOLDOVER:
Should the Landlord permit "Tenant to holdover the leased premises
or
any part thereof, after the expiration of the term, of this Lease; then and
unless otherwise agreed in writing, such holding over shall constitute a
tenancy
from month-to-mouth only, and shall in no event be construed as a renewal
of
this Lease and all provisions of this Lease not inconsistent with a tenancy
from
month-to-month shall remain in full force and effect. During the month-to-month
tenancy, Tenant agrees to give Landlord thirty (30) days prior written notice
of
its intent to vacate premises. Tenant agrees to vacate the premises upon
thirty
(30) days prior written notice from Landlord. The rental for the month-to-month
tenancy shall be equal to 150% of the rental payable for the last month of
the
previous term of this Lease.
17. QUIET
ENJOYMENT: If and so long as Tenant pays the rents reserved by this
Lease and performs and observes all the covenants and provisions hereof.
Tenant
shall quietly enjoy the demised premises, subject, however, to the terms
of this
Lease, and Landlord will
warrant and defend
Tenant in the enjoyment and peaceful possession of the
demised premises throughout the terms of this Lease.
7
18. WAIVER
OF COVENANTS: The failure of any party to enforce the provisions of
this Lease shall not constitute a waiver unless specifically stated in writing,
signed by the
party whose rights are deemed waived, regardless of a party's knowledge of
a
breach hereunder.
19. DEFAULT:
If Tenant shall make default in the fulfillment of any of the covenants
and conditions hereof except default in payment of rent, Landlord may, at
its
option, after fifteen (15) days prior notice to Tenant, make performance
for
Tenant and for the purpose advance such amounts as may be necessary. Any
amounts
so advanced, or any expense incurred, or stun of money paid by Landlord by
reason of the failure of Tenant to comply with any covenant agreement,
obligation or provision of this Lease, or in defending any action to which
Landlord may be subjected by reason of any such failure for any reason of
this
Lease, shall be deemed to be additional rent for the leased premises and
shall
be due and payable to Landlord on demand. The acceptance by Landlord of any
installment of fixed rent, or of any additional rent due under this or any
other
paragraph of this lease, shall not be a waiver of any other rent then due
nor of
the right to demand the performance of any other obligation of the Tenant
under
this Lease. Interest shall be paid to Landlord on all sums advanced by Landlord
at an annual interest rate of 2% over the prime rate charged by XXXXX FARGO
BANK.
If
Tenant
shall make default in fulfillment of any of the covenants or conditions of
this
Lease (other than the covenants for the payment of rent or other amounts)
and
any such default shall continue for a period of fifteen (15) days after notice,
then Landlord may, at its option, terminate this Lease by giving Tenant written
notice of such termination and, thereupon, this Lease shall expire as fully
and
completely as if that day were the date definitely fixed for the expiration
of
the term of this Lease and Tenant shall quit and surrender the leased
premises.
20. DEFAULT
IN RENT, INSOLVENCY OF TENANT: If Tenant shall make default in the
payment of the rent reserved hereunder, or any part thereof, or in making
any
other payment herein provided for, and any such default shall continue for
a
period of ten (10) days, after written notice to Tenant, or if the leased
premises or any part thereof shall be abandoned or vacated or
if Tenant shall be legally dismissed there from by or under
any
authority other than Landlord, or if Tenant shall file a voluntary petition
in
bankruptcy or if Tenant shall file any petition or institute any proceedings
under any insolvency or Bankruptcy Act or any amendment thereto hereafter
made,
seeking to effect its reorganization or a composition with its creditors,
or if
any proceedings based on the insolvency of Tenant or relating to bankruptcy
proceedings, a receiver or trustee shall be appointed for Tenant or the leased
premises or if any proceedings shall be commenced for the reorganization
of
Tenant or if the leasehold estate created hereby shall be taken on execution
or
by any process of law or if Tenant shall admit in writing its inability to
pay
its obligations generally as they become due, then Landlord, in addition
to any
other rights or remedies it may have, shall have the immediate right of re-entry
and may remove all persons and property from the premises. Such property
may be
removed and stored in a public warehouse or elsewhere at the cost of and
for the
account of Tenant. Landlord may elect to reenter, as herein provided, or
Landlord may take possession pursuant to this Lease and relet said premises
or
any part thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and upon such
other
terms and conditions as Landlord in the exercise of Landlord's sole discretion
may deem advisable with the right to make alterations and repairs to said
premises. Upon each subletting, Tenant shall he immediately liable for and
shall
pay to Landlord, in addition to any indebtedness due hereunder, the costs
and
expenses of such reletting including advertising costs, brokerages fees,
any
reasonable attorney's fees incurred and the cost of such alterations and
repairs
incurred by Landlord, and the amount, if any, by which the rent reserved
in this
Lease for the period of such reletting (up to but not beyond the term of
this
Lease) exceeds the amount agreed to be paid as rent for the premises for
said
period by such reletting. If Tenant has been credited with any rent to be
received by such reletting and such rents shall not be promptly paid to Landlord
by the new Tenant, such deficiency shall be calculated and paid monthly by
Tenant. No such re-entry or taking possession of the premises by Landlord
shall
be construed as an election by Landlord to terminate this Lease unless the
termination thereof be decreed by a court of competent jurisdiction or stated
specifically by the Landlord in writing addressed to Tenant. Notwithstanding
any
such reletting without termination, Landlord may at any time thereafter elect
to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may incur
by
reason of such breach, including the cost of recovering the premises including
attorney's fees, court costs, and storage charges and including the worth
at the
time of such termination of the excess, if any, of the amount of rent and
charges equivalent to rent reserved in this Lease for the remainder of the
stated term over the then chargeable rent on the premises for the remainder
of
the stated term, all of which amounts shall be immediately due and payable
from
Tenant to Landlord. In no event. shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings.
8
21. ENFORCEMENT:
In the event either party shall
enforce the terms of this Lease by suit or otherwise, the party at
fault
shall pay the costs and expenses incident thereto, including a reasonable
attorney's fee.
22. FAILURE
TO PERFORM COVENANT: Any failure on the part of either party to this
Lease to perform any obligations hereunder, other than Tenant's obligation
to
pay rent, and any delay in doing any act required hereby shall be excused
if
such failure or delay is caused by any strike, lockout, governmental restriction
or any similar cause beyond the control of the party so failing to perform,
to
the extent and for the period that such continues.
23. RIGHTS
OF SUCCESSORS AND ASSIGNS: The covenants and agreements contained in
this Lease will apply to, inure to the benefit of, and be binding upon
the parties hereto, their heirs, distnbutees, executors, administrators,
legal
representatives, assigns, and upon their respective successors in interest
except as expressly otherwise hereinabove provided.
24. TIME:
Time is of the essence of this Lease and every term, covenant and
condition herein contained.
9
25. LIENS:
Tenant agrees not to permit any lien for monies owing by Tenant to remain
against the leased premises for a period of more than thirty (30) days following
discovery of the same by Tenant; provided, however, that nothing herein
contained shall prevent Tenant, in good faith and for good cause from contesting
the claim or claims of any person, firm or corporation growing out of Tenant's
operation of the demised premises or costs of improvements by Tenant on the
said
premises, and the postponement of payment of such claim or claims, until
such
contest shall finally be decided shall not be a violation of this Lease or
any
covenant thereof, Should any such lien be filed and not released or discharged
or action not commenced to declare the same invalid within thirty (30) days
after discovery of the same by Tenant, Landlord may at Landlord's option
(but
without any obligation so to do) pay and discharge such lien and may likewise
pay and discharge any taxes, assessments or other charges against the leased
premise which Tenant is obligated hereunder to pay and which may or might
become
a lien on said premises. Tenant agrees to repay any sum so paid by Landlord
upon
demand therefore, as provided for in paragraph 19 herein.
26. CONSTRUCTION
OF LEASE: Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held
to
include the plural when the sense requires.
27. SUBORDINATION:
Landlord shall have the right to subordinate this Lease to any ground
lease, deed of trust or mortgage encumbering the Property, any advances made
on
the security thereof and any renewals, modifications, consolidations,
replacements or extensions thereof whenever made or recorded. However, Tenant's
right to quiet possession of the Property during the Lease Term shall not
be
disturbed if Tenant pays the rent and performs all of Tenant's obligations
under
this Lease and is not otherwise in default. If any ground Landlord, beneficiary
or mortgagee elects to have this Lease prior to the lien of its ground lease,
deed of trust or mortgage and gives written notice thereof to Tenant, this
Least shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording
thereof.
28. ATTORNMENT:
If Landlord's interest in the Property is acquired by any ground
Landlord, beneficiary under a deed of trust, mortgagee, or purchaser at a
foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as Landlord under this Lease. Tenant waives the protection of any statute
or
rule of law which gives or purports to give Tenant any right to terminate
this
Lease or surrender possession of the Property upon the transfer of Landlord's
interest.
29. SIGNING
OF DOCUMENTS: Tenant shall sign and deliver any instrument or documents
necessary or appropriate to evidence any such attorrunent or subordination
or
agreement to do so. Such subordination and attornment documents may contain
such
provisions as are customarily required by any ground Landlord, beneficiary
under
a deed of trust or mortgagee. If Tenant fails to do so within ten (10) days
after written request, Tenant hereby makes, constitutes and irrevocably appoints
Landlord. or any transferee or successor of Landlord. the attorney-in-fact
of
Tenant to execute and deliver anv such instrument or document.
10
30. ESTOPPEL
CERTIFICATES:
(a)
Upon
Landlord's written request, Tenant shall execute, acknowledge and deliver
to
Landlord a written statement certifying: (i) that none of the terms or
provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been cancelled
or terminated; (iii) that the last date of payment of the Base Rent and other
charges and the time period covered by such payment; (iv) that Landlord is
not
in default under this Lease (or, if Landlord is claimed to be in default,
stating why); and (v) such other matters as may be reasonably required by
Landlord or the holder of a mortgage, deed of trust or lien to which the
Property is or becomes subject. Tenant shall deliver such statement to Landlord
within ten (10) days after Landlord's request. Any such statement by Tenant
may
be given by Landlord to any prospective purchaser or encumbrancer of the
Property. Such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct.
31. TENANT'S
FINANCIAL CONDITION: Within ten (10) days after written request from
Landlord, Tenant shall deliver to Landlord such financial statements as are
reasonably required by Landlord to verify the net worth of Tenant, or any
assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall deliver
to any lender designated by Landlord any financial statements required by
such
lender to facilitate the financing or refinancing of the Property. Tenant
represents and warrants to Landlord that each such financial statement is
a true
and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes
set
forth herein.
32. PARAGRAPH
HEADINGS: The paragraph headings as to the contents of particular
paragraphs herein, are inserted only for convenience and are in no way to
be
construed as part of such paragraph or as a limitation on the scope of the
particular paragraph to which they refer.
33. NOTICES:
It is agreed that all notices required or permitted to be given
hereunder, or for purposes of billing, process, correspondence, and any other
legal purposes whatsoever, shall be deemed sufficient if given by a
communication in writing by United States mail, postage prepaid and certified
and addressed as follows.
|
If
to Landlord, at the following address:
|
Heritage
One, L.L.C.
|
|
0000
Xxxx Xxxx Xxxxxx
|
|
|
Xxxxx,
Xxxx 00000
|
|
|
Attn:
Ooma Xxxxxxx
|
|
|
(000)
000-0000
|
11
|
If
to Tenant, at the following address:
|
|
|
Rocky
Mountain Seed and Grain
|
|
|
00000
Xxxxx Xxxxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx,
Xxxx 00000
|
|
|
(000)
000-0000 (cell)
|
34. COMMISSIONS:
Landlord acknowledges the services of COMMERCE CRG as Real Estate Broker
in this
transaction and in consideration of the effort of said Broker in obtaining
Tenant herein, does hereby agree to pay to said broker for services rendered,
commissions on the rental of the demised premises at the rate specified and
in
accordance with Exhibit "D" annexed to Landlord's copy of this Lease and
made a
part hereof. Said Broker shall be entitled to its commission regardless of
whether or not the premises are taken as a result of the exercise of the
power
of eminent domain or by an agreement in lieu thereof.
35. GOVERNING
LAW: The terms of this Agreement shall be governed by and construed in
accordance with Utah law.
36. DOCUMENTATION:
The parties hereto agree to execute such additional documentation
as
may be necessary or desirable to carry out the intent of this
Agreement.
37. CONTINGENCY
REGARDING USE. This Lease is contingent upon there being no
restrictions, covenants, agreements, laws, ordinances, rules or regulations,
which would prohibit Tenant from using the above described premises for the
purposes described herein.
38. INDEMNIFICATION
OF LANDLORD: Tenant, as a material part of the consideration to be
rendered to Landlord under this Lease, shall hold Landlord exempt and harmless
from any damage or injury to any person, or the goods, wares and merchandise
of
any person, arising from the use of the premises by Tenant, or from the failure
of the Tenant to keep the premises in good condition and repair, as herein
provided.
39. EMINENT
DOMAIN: If at any time during the term of this Lease the entire
premises or any part thereof shall be taken as a result of the exercise of
the
power of eminent domain or by an agreement in lieu thereof, this Lease shall
terminate as to the part so taken as of the date possession is taken by the
condemning authority. If all or any substantial portion of the premises shall
be
taken, Landlord may terminate this Lease at its option, by giving Tenant
written
notice of such termination within thirty (30) days of such taking. If all
or a
portion of the premises taken are so substantial that Tenants use of the
premises is substantially impaired, Tenant may terminate this Lease pursuant
to
this Article. Unless terminated as herein provided for, this Lease shall
remain
in full force and effect, except that the rent payable by Tenant hereunder
shall
be reduced in the proportion that the area of the premises so taken bears
to the
total premises. Landlord shall be entitled to and Tenant hereby assigns to
Landlord the entire amount of any award in connection with such taking. Nothing
in this Article shall give Landlord any interest in or preclude Tenant from
seeking, on its own account, any award attributable to the taking of personal
property or trade fixtures belonging to Tenant, or for the interruption of
Tenant's business.
12
40. REPRESENTATION
REGARDING AUTHORITY: The persons who have executed this Lease represent
and warrant that they are duly authorized to execute this Lease in their
individual or representative capacity as indicated.
41. ENTIRE
AGREEMENT: This Lease constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior discussions,
understandings and agreements. This Lease may not be altered or amended except
by a subsequent written agreement executed by all of the parties
hereto.
42. REVIEW
OF DOCUMENTS: The parties hereto represent that they have read and
understand the terms of this Lease, and that they have sought legal
counsel to the extent deemed necessary in order to protect their
respective interests.
43. KEYS
& LOCKS: Tenant, upon the termination of the Tenancy, shall deliver
to the Landlord all the keys to the offices, rooms and restrooms which have
been
furnished to the Tenant.
44. AUCTION,
FIRE OR BANKRUPTCY SALE: Tenant shall not conduct any auction nor
permit any fire or bankruptcy sale to be held on the premises.
45. CARPETING
DAMAGE AND CHAIRMATS: Tenant agrees to be responsible for the
replacement of carpeting in the demised premises if same shall be damaged
by
burning, or stains resulting from spilling anything on said carpet, reasonable
wear and tear accepted. Tenant further agrees to use "chairmat" under
all chairs used
with desks.
46. MEDIATION
AND ARBI'1 RATION, If any dispute or claim in law or equity arises out
of this Lease. Tenant and Landlord agree in good faith to attempt to settle
such
dispute or claim by mediation under the Commercial Mediation rules ofthe
American Arbitration Association. If such mediation is not successful in
resolving such dispute or claim, then such dispute or claim shall be decided
by
neutral binding arbitration before a single arbitrator in accordance with
the
Commercial Arbitration rules of the American Arbitration Association. Judgment
upon the award rendered by the arbitrator maybe entered in any court having
jurisdiction thereof However, this paragraph does not apply to disputes or
claims arising under Section 78, Chapter 36, of the Utah Code.
47. AGENCY
DISCLOSURE: At the signing of this Agreement the listing agent, Xxxxxx
Xxxxxx/Commerce CRG represents (X) Landlord ( ) Tenant, and the selling agent,
Xxxxxx Xxxxxx/Commerce represents ( ) Landlord (X) Tenant. Landlord and Tenant
confirm that prior to signing this Agreement written disclosure of the agency
relationship(s) was provided to him/her.
( )
Landlord's initials
( )Tenant's
initials
48. ACCEPTANCE:
This lease must be accepted by all parties on or before August 10,
2004.
13
IN
WITNESS WHEREOF, the parties hereto have caused these presents to be
executed as of the day and year first above written.
|
TENANT:
|
LANDLORD:
|
|
ROCKY
MOUNTAIN SEED & GRAIN
|
HERITAGE
ONE, L.L.C., a UTAH LIMITED LIABILITY COMPANY
|
|
BY:
/s/
|
BY:
/s/
|
|
TITLE:
|
TITLE:
|
I,
personally and severally, guarantee the terms and conditions of the foregoing
Lease.
/s/
Xxx Xxxxx
Xxx
Xxxxx, personally
14
