LEASE AGREEMENT
Exhibit 10.5
This
Agreement is made this 21st day
of March, 2010 by and between South Winds Commercial Center, LC, hereafter
Lessor, and Bracknell Shore, LLC., hereafter Lessee.
RECITALS
1. Lessor
is the sole owner of the building space "premises" described in Exhibit A
attached hereto, and desires to lease the premises, to a suitable Lessee for
business purposes.
2. Lessee
desires to lease the premises for conducting a marketing business.
3. The
parties desire to enter into a lease agreement defining their rights, duties,
and liabilities relating to the premises.
IN
CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
SECTION
ONE
SUBJECT
AND PURPOSE
Lessor
hereby leases and rents unto Lessee, and Lessee hereby takes as tenants under
Lessors, that certain real property comprising 2400 square feet, more or less,
with a street address of: 908 North 1400 West, St. Xxxxxx Utah, more
particularly described in Exhibit A attached hereto and made a part of this
agreement.
SECTION
TWO
TERM AND
RENT
Lessor
demises the above premises for a term including one (1) one-year period
commencing the 1st day
of April, 2010. The rent under this lease shall be the total of rent due under
the entire term. The rent shall be payable at the rate of One
Thousand Two Hundred Dollars ($1200.00) per month for the term of the
lease.
Lessee
shall have the option of extending this lease for an additional one (1) one-year
period at the base rental of One Thousand Four Hundred Dollars ($1400.00) per
month for the one (1) one-year period, payable in advance on the first day of
each month.
Lessee
will deposit with Lessor a One Thousand Two Hundred Dollars ($1200.00) security
deposit; Receipt of which is acknowledged by Lessor, as security for
the faithful performance by Lessee of the terms hereof, and to be returned to
the Lessee, without interest, on the full and faithful performance by the Lessee
of the provisions hereof.
Rent is
due in advance the first day of each month. In the event Lessee shall
fail to make a rental payment (including additional rent) within five
calendar days of the due date then Lessee shall pay a sum equal to five percent
(5%) of the amount of rent due and this lease shall be in default until such
amount is paid or waived in writing by Lessor. In the event of default under the
terms of the Lease, monthly installments shall not accelerate, but will become
due month to month. Lessee must give notice of its intent to extend
this lease in writing six months before the expiration of the initial term of
the lease.
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SECTION
THREE
ADDITIONAL
RENT
All
charges, costs and expenses that Lessee assumes or agrees to pay hereunder,
together with all interest and penalties that may accrue thereon in the event of
the failure of Lessee to pay those items, and all other damages, costs,
expenses, attorney's fees and other sums that Lessor may suffer or incur, or
that may become due, by reason of any default of Lessee or failure by Lessee or
failure by Lessee to comply with the terms and conditions of this Lease shall be
deemed to be additional rent, and, in the event of nonpayment, Lessor shall have
all the rights and remedies against Lessee as herein provided for failure to pay
rent.
Rent,
additional rent, or any other sums payable hereunder shall bear interest at the
rate of twelve percent (12%) per annum from the date said charges arise or are
incurred until paid, before and after judgment.
SECTION
FOUR
UTILITIES
Lessee shall be solely liable for
utility charges as they become due, including those for gas, electricity, and
telephone services.
Lessor shall be liable for water and
sewer charges and landscape maintenance due on the premises.
Lessee shall provide quarterly pest
control from a licensed pest control service for the interior and exterior of
said premises.
SECTION
FIVE
INSURANCE
Lessor
shall carry fire and extended coverage insurance on the building which includes
the demised premises during the entire term of his Lease in an amount equal to
at least one hundred percent (100%) of the valuation of the buildings and all
other improvements made thereon or thereabouts by either party. The
policy shall be written by a reliable insurance company authorized to do
business in the State of Utah.
Lessee
shall furnish and carry owner’s lessor and tenant liability insurance with a
company authorized to do business in the State of Utah, in the sum of five
hundred thousand dollars ($500,000.00). A Certificate of Insurance
shall be forwarded to Lessor upon each policy renewal. Any insurance
obtained shall provide:
(a) Insurance
coverage obtained and maintained pursuant to this requirement may not be brought
into contribution with insurance purchased by the Lessor.
(b) The
insurer shall waive subrogation as to any and all claims against the Lessor,
Lessor's agents or employees or co-tenants, and shall waive any defenses based
on co-insurance or on invalidity arising from the acts of the
Insured.
(c) The
insurer may not elect to restore damage in lieu of a cash settlement without the
prior written approval of the Lessor or when in conflict with any requirement of
law.
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Lessee
will carry insurance on its property on the premises and will hold Lessor
harmless for any loss sustained.
SECTION
SIX
ALTERATIONS,
ADDITIONS AND IMPROVEMENTS
All
additions, changes, and other improvements, other than trade fixtures, erected
or placed on the premises by Lessee shall remain thereon and shall not be
removed there from, and shall become the property of Lessor as
made. No alterations, additions or improvements in and to the
premises shall be made without Lessor's written permission, which shall not be
unreasonably withheld. Lessor's consent to any improvements shall be
given only upon the express condition that all improvements shall be paid for as
made, and shall not grant Lessee authority to bind or obligate Lessor or
encumber fee title to the premises.
SECTION
SEVEN
REPAIRS
Lessor
shall be responsible for all structural, heating, plumbing, and mechanical
system repairs. Lessee shall be responsible for all other maintenance
of the premises.
SECTION
EIGHT
INDEMNITY
Lessee
shall indemnify Lessor against all expenses, liabilities and claims by or on
behalf of any person or entity, including reasonable attorney's fees, arising
out of either (1) a failure by Lessee to perform any of the terms or conditions
of this Lease, (2) a failure to comply with any law of any governmental
authority, or (3) any mechanic's lien or security interest filed against the
premises, to the extent said mechanic's lien or security interest did arise as a
result of action by Lessee.
SECTION
NINE
ACCESS TO
PREMISES: SIGNS POSTED BY LESSOR
Lessee
shall permit Lessor or its agents to enter the premises at all reasonable hours
to inspect the premises or make repairs that Lessee may neglect or refuse to
make in accordance with the provisions of this Lease, and also to show the
premises to prospective buyers. At any time within one year prior to
expiration of the term, Lessor may show the premises to persons wishing to rent
the premises or post signs indicating their availability.
SECTION
TEN
EASEMENTS,
AGREEMENTS OR ENCUMBRANCES
The
parties shall be bound by all existing easements, agreements and encumbrances of
record relating to the premises, and Lessor shall not be liable to Lessee for
any damages resulting from any action taken by a holder there
under.
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SECTION
ELEVEN
QUIET
ENJOYMENT
Except as
provided in this lease and by law, Lessor warrants that Lessee shall be granted
peaceable and quiet enjoyment of the premises free from any eviction or
interference by Lessor if Lessee pays the rent and other charges provided
herein, and otherwise performs the terms and conditions of this
Lease.
SECTION
TWELVE
LIABILITY
OF LESSOR
The
provisions here in permitting Lessor to enter and inspect the premises are made
to insure that Lessee is in compliance with the terms and conditions hereof and
make repairs that Lessee has failed to make. Lessor shall not be
liable to Lessee for any entry on the premises for inspection purposes, for
failure to inspect the premises.
SECTION
THIRTEEN
DESTRUCTION
OF PREMISES
In the
event of a partial destruction of the premises during the term from any cause,
Lessor shall forthwith repair the same, provided the repairs can be made within
thirty (30) days under the laws and regulations of applicable governmental
authorities. A partial destruction is defined as any destruction of a
substantial portion, but less than all, of the premises not caused by the
negligence or fault of Lessee. Any partial destruction shall neither
annul nor void this Lease, except that Lessee shall be entitled to a
proportionate reduction of rent while the repairs are being made, any
proportionate reduction being based on the extent to which the making of repairs
shall interfere with the business carried on by Lessee on the
premises. If the repairs cannot be made in the specified time, this
Lease may be terminated at the option of either party. Any
destruction less than substantial Lessee shall be treated as repairs and
maintenance under the provisions of Section Seven.
SECTION
FOURTEEN
CONDEMNATION
Rights
and duties in the event of condemnation are as follows:
(1) If
the whole of the premises shall be taken or condemned by any competent authority
for any public or quasi-public use or purpose, this Lease shall cease and
terminate as of the date on which title shall vest thereby in that authority,
and the rent reserved hereunder shall be apportioned and paid up to that
date.
(2) If
only a portion of the premises shall be taken or condemned, Lessor shall supply,
within 60 days, replacement space of comparable size, appearance, and function
which is acceptable in the
determination of Lessee. If Lessor shall fail so to do, the lease
term shall terminate. During the period in which Lessee's use shall
be diminished, rent shall be proportionately reduced.
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(3) In
the event of any taking or condemnation in whole or in part, the entire
resulting award of consequential damages shall belong to Lessor without any
deduction there from for the value of the un-expired term of this Lease or for
any other estate or interest in any and all such awards.
SECTION
FIFTEEN
REPRESENTATIONS
BY LESSOR
At the
commencement of the term, Lessee shall accept the premises in their existing
condition and state of repair, and Lessee agrees that no representations,
statements or warranties, express or implied, have been made by or on behalf of
Lessor in respect thereto except as contained in the provisions of this Lease
and Lessor shall in no event be liable for any latent defects.
SECTION
SIXTEEN
WAIVERS
The
failure of Lessor to insist on a strict performance of any of the terms and
conditions hereof shall be deemed a waiver of the rights or remedies that Lessor
may have regarding that specific instance only, and shall not be deemed a waiver
of any subsequent breach or default in any terms and conditions.
SECTION
SEVENTEEN
NOTICE
All
notices to be given with respect to this Lease shall be in
writing. Each notice shall be sent by registered or certified mail,
postage prepaid and Return Receipt requested, to the party to be notified at the
address shown below:
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Lessor:
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South
Winds Commercial Center, LC
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Xxxx
X. Xxxxxxx
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P.
X. Xxx 00
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Xx.
Xxxxxx, XX 00000-0000
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Lessee:
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Bracknell
Shore, LLC
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0000
X. Xxxxxxxx Xxx
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Xxx
Xxxxx, XX 00000
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(000)
000-0000
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Every
notice shall be deemed to have been given at the time it shall be deposited in
the United States mail in the manner prescribed herein.
Nothing
herein shall be constructed to preclude personal service of any notice in the
manner prescribed for personal service of a summons or other legal
process.
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SECTION
EIGHTEEN
HOLDOVERS
In the
event Lessee maintains occupancy of the premises past the term of this Lease,
Lessee shall be a tenant at will, and in no event shall Lessor and Lessee be
deemed to have renewed this Lease for an additional term.
SECTION
NINETEEN
ASSIGNMENT,
MORTGAGE OR SUBLEASE
Lessee may sublease areas of the
premises to other “Marketing Related Businesses”.
Lessee shall not assign, mortgage,
pledge, or encumber this Lease or the demised premises in whole, nor permit the
premises to be used or occupied by others, nor shall this Lease be assigned or
transferred by operation of law, without the prior consent in writing of Lessor
in such instance, which will not be unreasonably withheld. Collection of rent
from any assignee, transferee, subtenant, or occupant, and/or application of the
net amount collected to the rent reserved herein, shall not be deemed a waiver
of any agreement or condition hereof, and such action shall constitute the
acceptance of the assignee, transferee, subtenant or occupant.
SECTION
TWENTY
SURRENDER
OF POSSESSION
Lessee
shall, on the last day of the term, or on earlier termination and forfeiture of
the Lease, peaceably and quietly surrender and deliver the demised premises to
Lessor free of sub-tenancies, including all buildings, additions and
improvements, other than trade fixtures, constructed or placed thereon by
Lessee, all in good repair. Lessee shall repair and re-store all
damage to the premises caused by the removal of equipment, trade fixtures and
personal property. Any trade fixtures, equipment or personal property
belonging to Lessee, if not removed upon termination, shall, at Lessor's
election, be deemed abandoned and become the property of the Lessor without
payment or offset therefore.
SECTION
TWENTY-ONE
DEFAULT
OR BREACH
Each of
the following events shall constitute a default or breach of this Lease by
Lessee:
(1) If
Lessee shall fail to pay Lessor any rent or additional rent when the same shall
become due.
(2) If
Lessee shall fail to perform or comply with any of the conditions of this Lease
and if the nonperformance shall continue for a period of sixty (60) days after
notice thereof by Lessor to Lessee or, if the performance cannot be reasonably
had within the sixty (60) day period, Lessee shall not in good faith have
commenced performance within the sixty (60) day period and shall not diligently
proceed to completion of performance.
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(3) If
Lessee shall vacate, abandon or fail to occupy the premises, or if the premises
shall pass to or devolve on any other person or party, or if the premises shall
be used for any purpose other than herein set forth, or for use in violation of
any law or regulation.
(4) If
the going business of Lessee shall terminate, or if Lessee shall become subject
of bankruptcy, reorganization, assignment for benefit of creditors or any other
procedures with similar purpose, whether voluntary or involuntary.
(5) If
any claim for materials or labor shall arise or be claimed against the premises
or Lessor by reason of the acts of Lessee, its heirs, assigns or
agents.
SECTION
TWENTY-TWO
REMEDIES
ON DEFAULT
In the
event of any default hereunder (or threatened default in the case of
subparagraph (2) of this Section), the rights of Lessor shall be as
follows:
(1) Lessor
may elect, but shall not be obligated, to make any payment required of Lessee
herein or comply with any agreement, term or condition required hereby to be
performed by Lessee, and Lessor shall have the right to enter the premises for
the purpose of correcting or remedying any such default and to remain until the
default has been corrected or remedied. However, any expenditure
hereunder by Lessor shall not be deemed to waive or release the default of
Lessee or the right of Lessor to take any action as may be otherwise permissible
hereunder in the case of any default.
(2) Lessor
shall have the right of injunction to restrain Lessee and the right to invoke
any remedy allowed by law or in equity, as if the specific remedies of indemnity
or reimbursement were not provided herein.
(3) Lessor
shall have the right to cancel and terminate this Lease, as well as all of the
right, title and interest of Lessee hereunder, by giving to Lessee not less than
sixty (60) days' notice of the cancellation and termination. On
expiration of the time fixed in the notice, this Lease and the right, title and
interest of Lessee hereunder shall terminate in the same manner and with the
same force and effect, except as to Lessee's liability for sums accrued prior to
the date of termination, as if the date fixed in the notice of cancellation and
termination were the end of the term herein originally determined.
(4) Lessor
may if permitted by law, re-enter the premises immediately without notice and
remove Lessee's property and Lessee hereby grants to Lessor a security interest
in Lessee's fixtures, equipment and inventory as now or hereafter on the
premises and products proceeds and replacements thereof. Lessor may
store the Lessee's property in a public warehouse or at a place selected by
Lessor, at the expense of Lessee. After re-entry Lessor may terminate
the Lease as provided above. Without notice, re-entry will not
terminate the Lease.
(5) Lessor
may recover from Lessee all damages proximately resulting from the default at
breach, including, but not limited to, the cost of recovering the premises or
altering or remodeling the same for re-letting or the cost of exercising any of
the remedies provided herein or by law, and may further recover the unpaid rent
reserved under this Lease, the total amount of which shall be due and
payable.
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SECTION TWENTY-THREE
APPLICATION
OF REMEDIES
(1) The
rights and remedies given to Lessor in this Lease are distinct, separate and
cumulative, and no one of them, whether or not exercised by Lessor, shall be
deemed to be in exclusion of any of the others herein, by law or by equity
provided.
(2) In
all cases hereunder, and in any suit, action, or proceeding of any kind between
the parties, it shall be presumptive evidence of the fact of the existence of a
charge being due if Lessor shall produce a xxxx, notice or certificate of any
public official entitled to give that notice to the effect that such charge
appears of record on the books in his office and has not been paid.
(3) No
receipt of money by Lessor from Lessee after default or cancellation of this
Lease shall reinstate, continue or extend the term or affect any notice given to
Lessee or operate as a waiver of the right of Lessor.
SECTION
TWENTY-FOUR
ATTORNEY'S
FEES
Should
any party default in any of the covenants or agreements herein contained, that
defaulting party shall pay all costs and expenses, including a reasonable
attorney's fee, which may arise or accrue from enforcing this Lease or in
pursuing any remedy provided hereunder or by applicable law, whether such remedy
is pursued by filing suit or otherwise.
SECTION
TWENTY-FIVE
TOTAL
AGREEMENT APPLICABLE TO SUCCESSORS
This
Lease contains the entire agreement between the parties and cannot be changed or
terminated except by a written instrument subsequently executed by the parties
hereto. This Lease and the terms and conditions hereof apply to and
are binding on the heirs, legal representatives, successors and assigns of both
parties.
SECTION
TWENTY-SIX
APPLICABLE
LAW
This
agreement shall be governed by and constructed in accordance with the laws of
the State of Utah.
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SECTION
TWENTY-SEVEN
TIME OF
THE ESSENCE
Time is
of the essence in all provisions of this Lease.
IN WITNESS WHEREOF, this Lease has been
entered into this day and year first above written.
LESSOR:
SOUTHWINDS COMMERCIAL CENTER, LC
By: /s/
Its: President
Address: XX
Xxx 00
Xx. Xxxxxx, XX 00000
LESSEE:
BRACKNELL SHORE, LLC
By: /s/
Its:
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Address:
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0000
X. Xxxxxxxx Xxx
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Xxx
Xxxxx, XX 00000
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9
GUARANTY
In
consideration of the execution of the above Lease, the undersigned, jointly and
severally, hereby irrevocably and unconditionally guarantee the full and
complete performance of all obligations and liabilities due and to become due to
Lessor from Lessee under the above Lease, together with all attorney's fees,
costs and expenses of collection incurred by Lessor in enforcing any such
obligations and liabilities.
Dated
this 21st day
of March, 2010.
By: /s/
Xxxxxxx
Xxxxxxx
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EXHIBIT
A
The
premises, which are subject to this Lease, are described as
follows:
An 2400
square ft. office located at 000 Xxxxx 0000 Xxxx, Xx. Xxxxxx, XX
00000
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