Net-Net-Net COMMERCIAL AND INDUSTRIAL LEASE
Exhibit
10.1
Net-Net-Net
COMMERCIAL
AND INDUSTRIAL LEASE
THIS
LEASE made and entered into this 1st day of October 1st, 2009, by and between
Xxxxxx Xxxxxxx & DeVon Xxxxxxx, hereinafter called “Landlord", and Sport
Endurance Inc., a Corporation, 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
acknowledged, it is agreed by the parties hereto as follows:
I.
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 all area containing approximately
3,500 square feet of a certain building located at 1890 South 3850
West in Xxxx Xxxx Xxxx, Xxxxx xx Xxxx, 00000.
Tenant
shall have the right to use the common areas and its prorate share of parking
areas jointly on a non-exclusive basis with any other tenant(s) of the
building.
II.
TERM:
TO HAVE
AND TO HOLD said premises unto Tenant for a term of 60 months, beginning on the
1st day of October, 2009, and ending on the 1st day of October ,
2014.
If
Landlord fails to deliver possession of premises ready for occupancy at the
commencement of the lease term for any reason beyond Landlord's control,
Landlord shall not be liable for any damage caused thereby, nor shall this Lease
become void or voidable, nor shall the Lease terns be extended, but in such
event no rental shall be payable by Tenant to Landlord for any portion of the
Lease term until landlord can deliver possession of premises to Tenant ready for
occupancy by Tenant.
III. TERM
AND CONDITION OF LEASE:
This
Lease is made on the following terms and conditions, which are expressly agreed
to by Landlord and Tenant:
1. 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 of: ($1,995.00) One Thousand Nine Hundred Ninety Five DOLLARS.
Said sum to be lawful money of the United States payable as
follows:
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10-01-2009
through 10-01-2014: $1,995.00 per month.
(a) Late
Charges: In the event Tenant fails to pay said rental (including any additional
rental due hereunder) on the due date or within five (5) days thereafter, a late
charge of ten percent (10%) per month of the delinquency rental shall be added
to said rental and paid to Landlord together therewith.
(b)
Security Deposit: Tenant contemporaneously with the execution of' this Lease,
has deposited with Landlord the sum of $1,995.00 receipt of which is hereby
acknowledged by Landlord, said deposit being given to secure it 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.
The 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 by Landlord as a result,
of Tenant's default to the extent. of the amount of the damages
suffered.
Nothing
contained in this paragraph shall in any way diminish or be construed as waiving
any of the Landlords other remedies as provided herein, or by law, and shall be
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 days after receipt of such demand, shall constitute a breach of
this Lease. Should Tenant comply with all of the terms, covenants and conditions
of this Lease and promptly pay all of the rental herein provided for as it fails
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 that the demised premises are sold as a result of
the exercise of any power of sale under any mortgage or deed of trust, 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.
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: Landlord makes neither warranties nor representations as
to the compatibility or suitability of the Premises for Tenant’s
use.
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.
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3.
PAYMENT OF TAXI.4,S 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,
municipal 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. Tenant shall make payment of such taxes 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 19,
hereinafter set forth.
4.
CONDITION OF THE PREMISES: 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, at the 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
ordnance, or regulation applicable thereto. Landlord warrants that the building,
on date of occupancy, meets all currently applicable Federal, State and
municipal laws or ordinances.
5. FIRE
AND CASUALTY INSURANCE: It shall be the responsibility of the Tenant
to insure its equipment, furniture, fixtures and other personal property. Tenant
shall insure and keep insured his leasehold improvements against the perils of
fire, lightning, the "Extended Coverages", vandalism and malicious mischief in
an amount sufficient to provide recovery of not, less than ninety percent (90%)
of the replacement value or the Tenant's leasehold improvements such insurance
shall be made payable to Landlord and Mortgagee (if any) as their interests may
appear. Tenant shall be responsible for any damage to personal property as a
result of forced entry into his space or burglary thereof. Such insurance
provided for hereunder shall be in a company or companies reasonably acceptable
to Landlord and shall be procured and paid for by Tenant. Such insurance may, at
Tenant's election, be carried under any General Blanket Insurance Policy of
Tenant; provided, however, that upon Landlord's request, a satisfactory
Certificate of Insurance, together with proof of payment of the premium, shall
be deposited with Landlord.
Upon
Landlord's written request, Tenant agrees to reinvest all insurance proceeds
received from the loss or damage or destruction of said leasehold improvements
to rebuild said improvements in a trimmer satisfactory to Landlord, regardless
of whether or not Tenant elects to terminate this Lease as herein provided. In
the event Tenant elects to terminate this Lease as provided in Section
III, Paragraph 13, and providing said leasehold improvements are not rebuilt,
Tenant does hereby assign all of his right, title and interest in the in
insurance proceeds covering leasehold improvements to Landlord.
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Landlord
shall insure the premises exclusive of Tenant's leasehold improvements against
the perils of fire, lightning, the "Extended Coverages", vandalism and malicious
mischief in an amount sufficient to provide recovery of not less than ninety
percent (90%) of replacement value.
6. REPAIR
AND CARE OF BUILDING AND PAYMENT' OF UTILITIES BY TENANT: Tenant agrees to keep
the interior of the building and the improvements on the premises outside the
building and wounds in good condition and repair and agrees to pay its
proportionate share for all labor, materials and other repairs to the electrical
wiring, plumbing, air conditioning and heating systems (including spring and
fall servicing, and replacement of filters as recommended by the manufacturers);
the mowing of grass, care of shrubs, general landscaping, if :my, and to clean
and paint the interior of the leased premises as the same may or might be
necessary in order to maintain said demised premises in a clean, attractive and
sanitary condition. Tenant shall keep the driveways, parking tots and sidewalks,
if any, reasonably free from ice and snow.
Tenant
shall pay all charges, including but not limited to charges for water, sewer,
heat, gas, electricity and other public utilities used on the Leased Premises,
including all replacements of light bulbs, tubes, ballasts and starters will tin
a reasonable time alter they burn out.
7. REPAIR
OF BUILDING BY LANDLORD: Landlord agrees, for the term of this Lease, to
maintain the roof in good condition and repair and to repair any latent defects
in the exterior wall, floor joists, and foundations. 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 tins 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 tile 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.
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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 carried 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 in 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. One Hundred Eighty (180) 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 percent (50%) of said increase
shall be paid to Landlord by Tenant as additional rental.
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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 untenantable 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 percent (50%) or
more of replacement cost of the building or buildings on the Demised Premises,
Landlord or Tenant may elect to terminate this as by written notice to the other
given within thirty (30) days after the occurrence of such damage or
destruction. Landlord and Tenant. hereby release each other from responsibility
for loss or damage occurring on or to the Leased Premises or the premises of
which they are a part or to the contents of either thereof, caused by the 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.
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 kind upon the premises from any cause whatsoever, except
such as might result from the gross negligence of Landlord or Landlord's
representatives or from 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 responsible companies liability insurance in the names of and for the
benefit of Tenant and Landlord with limits as follows:
Bodily
Injury, $2,000,000.00 each occurrence; Property Damage $5,000,000.00; or in lieu
thereof; a combined limit of bodily injury and property damage liability of not
less than $2,000,000.00.
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. Upon Landlord’s request, 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 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.
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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-month 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 set by the Landlord within 10 days after
Landlord receives notice from Tenant of its intention to continue to occupy
premises.
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 throughout the terms of this Lease.
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 denied waived, regardless of a party's
knowledge of a breach hereunder.
19.
DEFAULT: If Tenant 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 sum 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 orally 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,
N.A.
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If Tenant
shall make default in fulfillment of any or 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 here-under, 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 voluntarily 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 Premise 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 re-enter, 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 time 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 be immediately liable for and shall pay to
Landlord, in addition to any indebtedness due hereunder, the costs and expenses
of such re-letting 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 re-letting (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 re-letting. If Tenant has been credited with any rent to be received by
such re-letting 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 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 re-letting
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 or 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 slated 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.
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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.
MEDIATION AND ARBITRATION: 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 of the
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 may be 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.
23.
FAILURE TO PERFORM COVENANT: Any failure on the part or either party to this
Lease to perform any obligations hereunder, other than Tenant's obligation to
pay rent, and any delay in doing my 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.
24.
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, distributes, executors, administrators, legal
representatives, assigns, and upon their respective successors in interest
except as expressly otherwise hereinabove provided.
25..
TIME: Time is of the essence of this Lease and every term, covenant and
condition herein contained.
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26.
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 by 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 Premises 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 l9 herein.
27.
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.
28.
SUBORDINATION: Landlord shall have the tight to subordinate this Lease to any
gound 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, Tenants
right. to quiet possessions 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 Lease
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 tease, deed
of trust. or mortgage or the data of- recording thereof.
29.
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 at torn to the transferee or successor as
Landlord under his 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.
30. SIGNING
OF DOCUMENTS: Tenant shall sign and deliver any instrument or documents
necessary or appropriate to evidence any such attornment 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 any such instrument or document.
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31.
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 change); (ii) that this Lease has not been canceled
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 Landlords 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.
32.
TENANTS FINANCIAL CONDITION: Within (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 my 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.
33.
PARAGRAPH HEADINGS: The paragraph headings as to the contents of particular
paragraphs herein, are inserted only for convenience and are in to way to be
construed as part of such paragraph or as a limitation on the scope of the
particular paragraph to which they refer.
34.
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:
Xxxxxx
Xxxxxxx &DeVon Xxxxxxx
0000 Xxxx
Xxx
Xxxx
Xxxxxx Xxxx, Xxxx 00000
If to
Tenant, at. the following address:
Sport
Endurance Inc.
0000
Xxxxx 0000 Xxxx
Xxxx Xxxx
Xxxx, Xxxx 00000
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36.
GOVERNING LAW: The terms of this Agreement shall be governed by and construed in
accordance with Utah law.
37.
DOCUMENTATION: The parties hereto agree to execute such additional documentation
as may be necessary or desirable to carry out die intent of this
Agreement.
38.
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.
39.
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.
40.
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 Tenant's 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
lull 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 to preclude Tenant from
seeking, on its own account, any award attributable to tile taking of personal
property or trade fixtures belonging to Tenant, or for the interruption of
Tenant's business.
41.
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.
42.
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.
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43.
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.
44. KEYS
& LOCKS: Tenant shall not change locks or install additional locks on doors
without the written consent of Landlord, which consent shall not. be
unreasonably withheld. Tenant, upon the termination of the Tenancy, shall
deliver to the Land lord all the keys to the offices, rooms and restrooms, which
have been furnished to the Tenant.
45.
AUCTION, FIRE OR BANKRUPTCY SALE: Tenant shall not conduct any auction nor
permit any fire or bankruptcy sale to be held on the premises.
46.
EXECUTION, PRIOR AGGREEMENTS AND NO REPRESENTATIONS. This Lease shall not be
binding and enforceable until executed by authorized representatives of Landlord
and Tenant. This Lease contains all of the agreements of the parties with
respect to the subject matter hereof and supersedes all prior dealings, whether
written or oral, between them with respect to such subject matter. Each party
acknowledges that the other has made no representations or warranties of any
kind except as may be specifically set forth in this Lease.
IN
WITNESS WHEREOF, the parties hereto have caused these presents to be executed as
of the day and year first above written.
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LANDLORD:
|
TENANT:
|
|
By:
/s/ Xxxxxx Xxxxxxx
|
|
|
By:
DeVon Xxxxxxx
|
By:
/s/ signature
|
|
Its:
Xxxxxx Xxxxxxx & DeVon Xxxxxxx
|
Its:
Sport Endurance Inc.
|
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ADDENDUM
To that
Lease dated October, 1st 2009, by and between Xxxxxx Xxxxxxx & DeVon Xxxxxxx
(hereinafter) called "Landlord") and Sport Endurance Inc.
(hereinafter called "Tenant") at the premises known as 0000 Xxxxx 0000 Xxxx,
Xxxx Xxxx Xxxx, Xxxx 00000.
Should
there be any conflict between the provisions of the lease and those of this
addendum, the addendum shall prevail.
1. NNN
Lease: Tenant shall pay the taxes and insurance on the building, each month,
directly to the Landlord. The monthly payment for taxes and insurance shall be
$139.65. Tenant shall include this amount in with the base rent every
month.
2. Tenant
shall take the space in an "As Is" condition. All improvements to the building
and signage must be done by code and approved by the Landlord.
3. Tenant
will be allowed to make tenant improvements on the property commencing October
11th, 2009.
6.
Notices. All Notices and demands, which may or are to be required or permitted
to be given by either party on the other hereunder shall be in writing. All
notices and demands by the Landlord to the Tenant shall be sent by United States
Mail, postage prepaid, addressed to the Tenant at the Premises, and to the
address herein below, or to such other place as Tenant may, from time to time,
designate in a notice to the Landlord. All notices and demands by the Tenant to
the Landlord shall be sent by United States Mail, postage prepaid, addressed to
the Landlord at the address set forth herein, and to such other person or place
as the Landlord may from time to time designate in a notice to the
Tenant.
To
Landlord at:
Xxxxxx
Xxxxxxx & DeVon Xxxxxxx
0000 Xxxx
Xxx
Xxxx
Xxxxxx Xxxx, Xxxx 00000
To Tenant
at:
Sport
Endurance Inc.
0000
Xxxxx 0000 Xxxx
Xxxx Xxxx
Xxxx, Xxxx 00000
All other
terms and conditions shall remain in full force and effect.
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LANDLORD:
|
TENANT:
|
|
By:
/s/ Xxxxxx Xxxxxxx
|
|
|
By:
DeVon Xxxxxxx
|
By:
/s/ signature
|
|
Its:
Xxxxxx Xxxxxxx & DeVon Xxxxxxx
|
Its:
Sport Endurance Inc.
|
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