Sublease Agreement between Enmax Corporation and EnvironMax.com, Inc. for Layton Facilities

Summary

Enmax Corporation (Sublessor) subleases approximately 5,124 square feet of office space at 360 King Street, Layton, Utah, to EnvironMax.com, Inc. (Sublessee) for one year starting November 1, 2000. The Sublessee pays $4,107 monthly rent, plus all utilities and common area charges, and must maintain the premises in good condition. The agreement is subject to the terms of the original lease with the landlord, PEKA Properties. The Sublessee must use the space only for its business, obtain consent for alterations, and carry required insurance.

EX-10.13 13 f61274a3ex10-13.txt SUBLEASE TO LAYTON FACILITIES 1 EXHIBIT 10.13 SUBLEASE AGREEMENT THIS SUBLEASE AGREEMENT ("Sublease") is entered into this 31st day of October, 2000, by and between Enmax Corporation ("Sublessor"), and EnvironMax.com, Inc. ("Sublessee"), with reference to the following: A. Sublessor, as tenant, entered into that certain lease agreement ("Prime Lease") dated October, 1998, with PEKA Properties ("Landlord"), as landlord, leasing certain property located at 360 King Street, Layton, Utah ("Premises"), as more particularly described in the Prime Lease. A copy of the Prime Lease including all amendments thereto is attached hereto as Exhibit A and made a part hereof. B. Sublessor and Sublessee have agreed, that Sublessor shall sublet to Sublessee, and Sublessee shall sublease from Sublessor, a portion of the Premises in accordance with the terms of this Sublease. FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, Sublessor and Sublessee hereby covenant and agree as follows: 1. Subleased Premises. Sublessor hereby leases to Sublessee, and Sublessee leases from Sublessor, approximately 5124 square feet of space, comprising a portion of the Premises, which is more particularly shown cross hatched in red on the schematic drawing attached hereto as Exhibit B ("Subleased Premises"). 2. Term. a. Original Term. The term ("Original Term") of this Sublease shall commence on November 1, 2000 ("Commencement Date"), and shall end on October 31, 2001, unless sooner terminated pursuant to this Sublease or the Prime Lease. 3. Rent. Sublessee shall pay to Sublessor, as monthly rent ("Rent") for the Subleased Premises, in advance on the first day of each and every month during the term hereof beginning on November 1, 2000, without deduction or offset, the amount of $4,107. It is the intent of the parties that Sublessee shall pay any and all costs and expense related to the Subleased Premises including common area charges and utilities. If the Commencement Date or the expiration or termination date of this Sublease occurs on a day other than the first day of a calendar month, the Rent for such fractional month shall be prorated on a per diem basis. All Rent shall be paid by Sublessee to Sublessor in lawful money of the United States of America, in immediately available funds, without notice or demand, at the address for Sublessor set forth below. Sublessee shall pay when due during the Term all charges for utilities of any nature incurred at the Subleased Premises. 4. Use. Sublessee shall use the Subleased Premises for the carrying out of its business and for no other purpose without the prior written consent of Sublessor. Sublessee's 1 2 violation of this clause shall constitute a material breach by Sublessee under this Sublease, which shall entitle Sublessor to pursue any of the remedies available to Sublessor under this Sublease. 5. Late Fee and Interest. All installments of Rent which are not paid by Sublessee to Sublessor within five (5) days after the same is due ("Delinquency Date") shall bear interest from and after the due date until paid at a rate equal to the lesser of eighteen percent (18%) per annum or the highest legal rate of interest. In addition to the foregoing, Sublessee shall immediately pay Sublessor as a late fee an amount equal to five percent (5%) of any amounts not paid to Sublessor on or before such Delinquency Date. 6. Use; Alterations. The Subleased Premises shall be used solely for uses permitted by the Prime Lease. Sublessee shall not make any alterations, additions, or improvements to the Subleased Premises without Sublessor's prior written consent. In connection with the operation of Sublessee's business in the Subleased Premises, Sublessee shall be responsible for complying with all applicable governmental laws, statutes, rules, regulations, orders and ordinances ("Laws"). In the event any governmental authority requires any repairs, improvements or alterations to be made to the Subleased Premises or any portion thereof (collectively, "Governmental Repairs") as a result of the specific nature of Sublessee's business operations in the Subleased Premises, Sublessee shall make and pay for such Governmental Repairs. Any such Governmental Repairs shall be completed in accordance with plans and specifications approved by Sublessor and Sublessor shall have the option, in its sole discretion, to complete any such Governmental Repairs and bill Sublessee for all costs in connection therewith. 7. Condition of Subleased Premises. Sublessee represents to Sublessor that Sublessee has been given the opportunity to inspect the Subleased Premises prior to the execution and delivery of this Sublease and has found the same to be satisfactory for all purposes hereunder and, Sublessee accepts the Subleased Premises in, their "As Is", "Where Is" condition, subject to all legal requirements, and any state of facts which an accurate survey or physical inspection of the Sublease Premises might show, without warranties, either express or implied, and "with all faults", including but not limited to both latent and patent defects. Sublessee hereby waives all warranties, express or implied, regarding the title, condition and use of the Subleased Premises, including, but not limited to any warranty of merchantability or fitness for a particular purpose. 8. Prime Lease. This Sublease is subject and subordinate to the Prime Lease. Except as may be inconsistent with the terms hereof, all the terms, covenants and conditions in the Prime Lease shall be applicable to this Sublease with the same force and effect as if Sublessor were the landlord under the Prime Lease and Sublessee were the tenant under the Prime Lease. Sublessee shall have no right to exercise, and Sublessor shall have no obligation to exercise, any options available to Sublessor under the Prime Lease or any rights of control or termination under the Prime Lease. Sublessee shall neither do nor permit anything to be done which would cause the Prime Lease to be terminated or forfeited by reason of any right of termination or forfeiture reserved or vested in Sublessor under the Prime Lease, and Sublessee shall indemnify and hold Sublessor and Landlord harmless from and against all claims of any kind whatsoever by reason of any breach or default on the part of Sublessee by reason of which the Prime Lease may be terminated or forfeited. Sublessee represents that it has read and is familiar with the terms of the Prime Lease. 2 3 9. Maintenance. Sublessee covenants and agrees, at its own expense, to keep and maintain the Subleased Premises in good order and repair and shall not damage or deface the Subleased Premises. Sublessee shall be obligated to repair and maintain the Subleased Premises including structural repairs, replacement or repair of plumbing, electrical systems, site improvements such as sewer and water, roof, exterior walls and foundation, entry ways, parking areas, landscaping and walkways, windows, HVAC system, interior walls, lighting, carpeting and flooring. Said repairs and maintenance shall also include, but is not limited to, repairs, cleaning and snow and ice removal. 10. Insurance. a. Sublessee waives all claims against Sublessor for damage to property in, upon or adjoining the Subleased Premises, and for injuries to persons in or about said Subleased Premises from any cause arising at any time during Term, if not attributable to the gross negligence or willful misconduct of Sublessor. Sublessee, at its sole costs and expense, shall maintain throughout the Term commercial general public liability and property damage insurance covering risks on the Subleased Premises in an amount of at least $2,000,000 combined single limit liability, with deductibles of no greater than $5,000.00. Sublessee shall be responsible for the payment of all deductibles in connection with any and all claims under such insurance policy or policies. b. During the Term, Sublessee shall maintain an all-risk special form policy of property insurance for the benefit of Sublessor, Sublessor's mortgagee, if any, and Sublessee, on all improvements upon the Subleased Premises, in an amount not less than the full replacement value thereof (excluding excavation, footing and foundation costs), with agreed amount endorsement and deductibles of no greater than $5,000.00. Such replacement cost shall be determined from time to time (but not more frequently than once every three years) at Sublessor's request. Sublessee shall be responsible for the payment of all deductibles in connection with any and all claims under such insurance policy or policies. c. Sublessee shall procure, on any policy of all-risk property insurance covering the Subleased Premises and business personal property contained therein, an appropriate endorsement pursuant to which the insurers waive subrogation or consent to a waiver of right of recovery, and having obtained such endorsements of waiver or consent, each party agrees not to: (i) make any claim against or seek to recover from the other for any loss or damage to its property, or the property of others, resulting from fire or other hazards covered by casualty insurance maintained by such party, except for Sublessor's claim against Sublessee for the payment of deductibles in connection with any claim under such insurance as provided in this paragraph 11; (ii) assign to any insurer or to anyone claiming under or through any insurer, any right or cause of action for damages to said property on or to the Subleased Premises or to the building of which the Subleased Premises are a part, compensated for by property insurance or any of the risks enumerated in any other hazard insurance, specifically including such damage caused by negligence, which it now has or may subsequently acquire against the other party during the term of this Sublease, provided, however, that the release, discharge, exoneration, and covenant not to sue herein contained shall be limited by the terms and provisions of the waiver of 3 4 subrogation endorsements consenting to a waiver of right of recovery, and shall be co-extensive therewith. d. Said policies of insurance shall: (i) name Sublessor as one of the insureds thereunder, (ii) be maintained at Sublessee's sole cost and expense; and (iii) contain a clause or endorsement to the effect that the policy may not be terminated or materially amended except after 10 days written notice thereof to Sublessor. Within 10 days of the date of this Sublease, Sublessee shall deliver copies of said policies or certificates of insurance to Sublessor. e. Sublessee agrees to indemnify, defend and hold harmless Sublessor from and against any and all claims, demands, causes of action, costs, losses or expenses, including attorneys' fees and other legal expenses, or other liabilities for damage to property or injury to, harassment of, or death of any person (including any servant, agent or employee of Sublessee, and any servant, agent or employee of any third party hired or retained by Sublessee) arising out of or in consequence of Sublessee's use of the Subleased Premises, the operation of Sublessee's business on the Subleased Premises (including any contamination of the Subleased Premises or any other property resulting from the presence or use of hazardous material caused or permitted by Sublessee), or any other acts or omissions of the Sublessee or any third party hired or retained by Sublessee (or any servant, agent or employee of any of them). Sublessee's obligations hereunder shall survive the expiration or earlier termination of this Sublease. 11. Default. Each of the following events shall constitute a default by Sublessee under this Sublease: a. Sublessee's failure to pay rent; b. Sublessee's failure to pay any other sums to be paid by Sublessee hereunder (and not constituting rent), within 10 days after the respective due date thereof; c. Sublessee shall commit or allow to continue any other breach of this Sublease, which shall not have been cured within 20 days after written notice from Sublessor specifying the breach; provided, however, that if the breach cannot be cured within 20 days, Sublessee shall not be in default if within such 20 day period, Sublessee shall have commenced to cure said breach and shall continue its efforts with due diligence; d. Sublessee shall file, or a third party shall file against Sublessee, a petition in bankruptcy, liquidation, dissolution or reorganization that remains undismissed for 60 days; or e. Sublessee shall make a general assignment for the benefit of all creditors of Sublessee. 12. Remedies. Upon the occurrence of a default, Sublessor has the right to use any of the remedies below: a. Terminate this Sublease and thereupon re-enter and take possession of the Subleased Premises by any means provided by law; 4 5 b. From time to time, without terminating this Sublease, re-enter (by any means provided by law) and relet the Subleased Premises for the account of Sublessee, upon such reasonable terms and conditions as Sublessor may deem advisable or satisfactory, in which event rents received for such reletting shall be applied first to the expense of such reletting (including necessary renovations to return the Subleased Premises to a condition equivalent to that of their original condition) and thereafter toward payment of all sums due or to become due Sublessor hereunder. If a sufficient sum shall not be realized or secured from such reletting to pay such sums and other charges, Sublessee shall pay Sublessor any deficiency on a monthly basis. Sublessor shall not, in any event, be required to pay Sublessee any surplus of any sums received by Sublessor on a reletting of the Subleased Premises in excess of the amounts due from Sublessee as provided in this Sublease, but all such excess shall become the property of Sublessor; c. Continue this Sublease in full force and effect to the end of the term, notwithstanding the occurrence of such default, and enforce, by all proper and legal means, Sublessor's rights herein, including the monthly collection of rent and other amounts due, including without limitation, late payment fees and interest on the amounts due under this Sublease; or d. Pursue any other remedy available at law or equity. All remedies provided in this Sublease shall be cumulative and nonexclusive. 13. Sublessee's Financial Condition. Within ten (10) days after written request from Sublessor, Sublessee shall deliver to Sublessor such financial statements as Sublessor reasonably requires to verify the net worth of Sublessee. Sublessee represents and warrants to Sublessor 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 in this Sublease. 14. Commissions. Sublessor and Sublessee each hereby represents and warrants to the other that it has not entered into any contracts whatsoever with any brokers or finders or in any manner obligated itself to pay any real estate commission or finder's fee on account of this transaction. In connection with the foregoing, each party hereby agrees to indemnify and hold the other harmless from any claim arising out of or related to a breach by such party of its representations and warranties herein contained. 15. Surrender. Upon the expiration or earlier termination of this Sublease, Sublessee shall deliver the Subleased Premises to Sublessor in the same condition as of the date hereof, reasonable wear and tear excepted. Sublessee shall reimburse Sublessor for and indemnify Sublessor against all damages which Sublessor incurs from Sublessee's delay in vacating the Subleased Premises. 16. Holdover. In the event Sublessee holds over, following the expiration or termination of this Sublease, Sublessee shall be deemed to be occupying the Subleased Premises as a month-to-month tenant, and shall pay as rent a sum equal to (i) one hundred fifty twenty five percent (150%) of the Rent and (ii) such other charges as are payable hereunder, pro-rated on a 5 6 monthly basis. In no event shall such holding over be deemed to create a tenancy from year-to-year nor shall either Sublessor or Sublessee have the right to create such a tenancy. 17. Effective Date. Sublessor and Sublessee acknowledge that Sublessor's right to Sublease the Subleased Premises to Sublessee is subject to Sublessor first obtaining the consent of Landlord, accordingly, this Sublease shall not become effective and it shall be of no force and effect until such consent is obtained. In addition, this Sublease is subject to Sublessor's reference checking on Sublessee. 18. Assignment; Subletting. Sublessee shall not assign this Sublease nor sublet the Subleased Premises, in whole or in part, and shall not permit Sublessee's interest in this Sublease to be vested in any third party by operation of law or otherwise. 19. Right of Entry. Sublessor hereby reserves the right for itself, and its duly authorized agents and representatives, at all reasonable times, to enter upon the Subleased Premises for the purpose of inspecting the same and showing the same to any prospective tenant, purchaser or encumbrancer, and for all other reasonable purposes. Nothing contained herein shall imply or impose any duty on Sublessor to inspect the Subleased Premises. 20. Merger. All prior understandings and agreements between Sublessor and Sublessee are merged within this Sublease, which alone fully and completely sets forth the understanding of the parties; and this Sublease may not be changed or terminated orally or in any manner other than by a signed written agreement. 21. Waiver. No waiver of any breach hereof by Lessor shall be considered to be a waiver of any other or subsequent breach. 22. Successors and Assigns. The covenants and agreements herein contained shall bind and inure to the benefit of Sublessor and Sublessee, and their respective executors, administrators, successors and assigns. 23. Governing Law. This Sublease shall be governed by and interpreted in accordance with the laws of the State of Utah. 24. Counterparts. This Sublease may be executed in any number of counterpart originals, each of which shall be deemed an original instrument for all purposes, but all of which shall comprise one and the same instrument. This Sublease may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this Sublease to be effective as of the date first above written. SUBLESSOR: SUBLESSEE: Enmax Corporation EnvironMax.com, Inc a Utah corporation a Utah corporation By: /s/ Charles M. Meredith By: /s/ Fred Nichols ------------------------------ ------------------------------------- Print Name: Charles M. Meredith Print Name: Fred Nichols Title: Executive Vice President Title: President/GNC 6