EXHIBIT 10.2
Netherwood Commons
OFFICE BUILDING LEASE
This Lease between Pebbles, Ltd. ("Landlord"), and New Mexico Software
("Tenant"), is dated August 4, 1999
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.3) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 13. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use of the Common Areas (as defined
at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent (initial): See Paragraph 2j.
b. Base Year: The calendar year of 1999
c. Broker(s) Landlord's: CL Xxxxxxx Xxxxx. Inc.
Tenant's: N/A
d. Commencement Date: Later of August 6, 1999 or ten (10) days after Tenant
receives final notice from Landlord of completion of Tenant Improvements
and receipt of a Certificate of Occupancy for the Building. In the event
that the Commencement Date is delayed, Landlord will provide Tenant with
written notice of the actual commencement date in the form of Exhibit "E".
The first month's rent and security deposit is due upon Lease execution.
e. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators, sidewalks,
landscaped areas, and other generally understood public or common areas.
Landlord shall have the right to regulate or restrict the use of the Common
Areas.
f. Common Area Expenses: (fill in if applicable): $ Tenant will be on a 1999
base year for operating expenses excluding gas and electric expenses which
Tenant will pay direct each year of the Lease. For all other operating
expenses excluding gas and electric, Tenant will pay its prorata share of
excess over base expenses in subsequent years of the Lease.
g. Expiration Date: Sixty (60) months from commencement date which is
estimated to be July 31, 2004 unless otherwise sooner terminated in
accordance with the provisions of
this lease.
h. Index: United States Department of Labor, Bureau of Labor Statistics
Consumer Price Index for All Urban Consumers, n/a Average, Subgroup "All
Items" (1967-100).
i. Landlord's Mailing Address: X.X. Xxx 00000. Xxxxxxxxxxx, Xxx Xxxxxx 00000
Tenant's Mailing Address: 0000 Xxxxxx Xxxxxx Xx. #000, Xxxxxxxxxxx, X.X.
00000.
j. Monthly Installments of Base Rent (initial):
Office Space:
Year Per Sq. Ft. Monthly Rent
1 $15.00 $3,895.00
2 $15.50 $4,024.83
3 $16.00 $4,154.67
4 $16.50 $4,284.50
5 $17.00 $4,414.33
Tenant will be responsible for paying for the costs of gas and electric
charges for their unit during the Lease term. These charges will be billed
directly to Tenant by the local utility company and Tenant's space will be
separately submetered.
k. Parking: Tenant shall be permitted to park Twelve (12) cars for employees
on a non-exclusive basis in the area(s) designated by Landlord for parking.
Tenant shall abide by any and all parking regulations and rules established
from time to time by Landlord or Landlord's parking operator provided they
shall not deprive Tenant of the use and enjoyment of parking adjacent to
the premises. In addition, Landlord will allow Tenant to park an additional
ten (10) spaces on the adjacent Church of Xxxxxx parking lot.
l. Premises: that portion of the Building containing approximately 3,116
square feet of Rentable Area, for office space, as shown by diagonal lines
on Exhibit "A,"- and known as Suite 200
m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at Netherwood Commons - 0000 Xxxxxx Xxxxxx Xxxx XX, Xxxxxxxxxxx,
Xxx Xxxxxx 00000.
n. Rentable Area: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project. The
square footage is based on actual useable square footage as this is a
single-tenant building.
o. Security Deposit (Section 7): $3,895.00
p. State: the State of New Mexico
q. Tenant's Proportionate Share: 3.38 %. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project. The Project
consists of five (5) building(s) containing a total Rentable Area of 92,256
square feet.
r. Tenant's Use Clause (Article 8): General office and computer programming.
s. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
t. ADA Compliance: Netherwood Commons was built in 1997-1998 and as such is
fully ADA compliant.
3. EXHIBITS AND ADDENDA. The exhibits and addenda listed below (Unless lined
out) are incorporated by reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
c. Exhibit "C" - Building Standard Tenant Improvements/Tenant Requirements
d. Exhibit "D" - Rules and Regulations.
e. Exhibit "E" - Commencement Letter.
f. Exhibit "F" - Lease Guarantee/Addendum
4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any
liability for such failure, the Expiration Date shall not change and the
validity of this Lease shall not be impaired, but Rent shall be abated
until delivery of possession. "Delivery of possession" shall be deemed to
occur ten days after notice from Landlord as to the date Landlord completes
Landlord's Work as defined in Exhibit"C." and all inspections have been
completed with a Certificate of Occupancy issues. If Landlord permits
Tenant to enter into possession of the Premises before the Commencement
Date, such possession shall be subject to the provisions of this Lease,
except for the payment of Rent. Landlord will complete the Lease space to
the best of their ability but cannot warrant a possession date due to
delays on the Tenant's behalf.
5. RENT.
5.1 Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises. Monthly Installments of Base Rent shall be payable in advance on
the first day of each calendar month of the Term. If the Term begins (or
ends) on other than the first (or last) day of a calendar month, the Base
Rent for the partial month shall be prorated on a per diem basis. Tenant
shall pay Landlord the first Monthly Installment of Base Rent when Tenant
executes the Lease.
5.2 ADDITIONAL CHARGES - COMMON AREA MAINTENANCE CHARGES
(a) In addition to the Minimum Rent provided in Section 2 (j) herein
above, and commencing at the same time as any rental commences under
this Lease, Tenant shall pay to Landlord the following items, herein
called Common Area Maintenance Charges ("CAM") in excess of the 1999
base year operating charges less gas/electric which will be paid
directly by the Tenant.
(1) All real estate taxes and insurance premiums relating to the
Premises, including land, building, and improvements thereon. Said
real estate taxes shall include all real estate taxes and assessments
that are levied upon and/or assessed against the Premises, including
any taxes which may be levied on rents. Said insurance shall include
all insurance premiums for fire, extended coverage, liability, and any
other insurance that Landlord deems necessary on the Project excluding
life insurance. Such taxes and insurance premiums for purposes of this
Section 5.2 (a)(1) shall be reasonably apportioned in accordance with
the total rentable area of the Premises as it relates to the total
rentable area of the Project (provided, however, that if any tenants
pay taxes directly to any taxing authority or carry their own
insurance, as may be provided in their leases, their square footage
shall not be deemed a part of the rentable area).
(2) Tenant's Proportionate Share of:
(i) All real estate taxes, including assessments, all insurance
costs, water and sewer charges, governmental charges levied on
or attributable to the Project and all costs to maintain,
repair, service and replace the Common Areas; however, the
portion of the aforesaid mentioned items (real estate taxes,
including assessments, all insurance costs, and all costs to
maintain, repair, service, and replace the Common Areas)
related to any undeveloped portion of the Project shall not be
included in Tenant's proportionate share, but shall be borne by
Landlord
(ii) Reasonable reserves for the costs of repairing, painting and
resurfacing the Common Area;
(iii) Reasonable costs to supervise and administer the Project. Said
costs shall include a third party property management fee in
connection with same and shall also include a fee to Landlord
to supervise and administer same in a combined amount not to
exceed ten percent (10%) of the total costs of Section 5.2
(a)(2)(i) and (2)(ii) above;
(iv) Any parking charges, utilities surcharges, or any other costs
levied, assessed or imposed by, or at the direction of, or
resulting from statutes or regulations, or interpretations
thereof, promulgated by any governmental authority in
connection with the use or occupancy of the Premises or the
parking facilities serving the Premises; and
(v) Any costs to inspect, repair, maintain or replace the heating,
air conditioning and fire protection systems and equipment
(including fire sprinklers) serving the Premises, including the
cost of a preventive maintenance contract providing for the
regular inspection and maintenance of same. Landlord shall be
responsible for obtaining a service contract for repairs and
maintenance of the heating and air conditioning system serving
the Premises.
(b) Upon the Lease Term Commencement Date, Landlord shall submit to Tenant
a statement of the anticipated monthly CAM charges for the period
between the Lease Term Commencement Date and the following January and
Tenant shall pay the CAM on a monthly basis concurrently with the
payment of Minimum Rent. Tenant shall continue to make said monthly
payments until notified by Landlord of a change thereof. By April 1 of
each year Landlord shall endeavor to give Tenant a statement showing
the total CAM charges for the Project for the prior calendar year and
Tenant's allocable share thereof, prorated from the Lease Term
Commencement Date. In the event the total of the monthly payments
which Tenant has made for the prior calendar year is less than
Tenant's actual share of such CAM charges then Tenant shall pay the
difference in a lump sum within thirty (30) days after receipt of such
statement from Landlord. Tenant shall concurrently pay the difference
in monthly payments made in the then calendar year and the amount of
monthly payments which are then calculated as monthly CAM based on the
prior year's experience. Any over-payment by Tenant shall be credited
towards the monthly CAM next coming due. Tenant will be provided with
copies of invoices upon request.
(c) The actual CAM for the prior year shall be used for purposes of
calculating the anticipated monthly CAM for the then current year with
actual determination of such CAM after each calendar year as above
provided; excepting that in any year in which Parking Lot resurfacing
is contemplated Landlord shall be permitted to include the anticipated
cost of same as part of the estimated monthly CAM. Even though the
Lease Term has expired and Tenant has vacated the Premises, when the
final determination is made of Tenant's share of said CAM for the year
in which this Lease terminates, Tenant shall immediately pay an
increase due over the estimated CAM previously paid and, conversely,
any overpayment made shall be immediately rebated by Landlord to
Tenant, provided however in no event shall payments representing
reserves be required to be rebated. Failure of Landlord to submit
statement as called for herein shall not be deemed to be a waiver of
Tenant's requirement to pay sums as herein provided. Common area
expenses will be grossed up to 95% occupancy.
(d) All CAM reserves shall be deposited in a trust account and shall not
be commingled with funds of the Landlord.
5.3 Definition of Rent. All costs and expenses which Tenant assumes or
agrees to pay
to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent").
The Rent shall be paid to the Building manager (or other person) and
at such place, as Landlord may from time to time designate in
writing, without any prior demand therefor and without deduction or
offset, in lawful money of the United States of America.
5.4 Rent Control. If the amount of Rent or any other payment due under
this Lease violates the terms of any governmental restrictions on such
Rent or payment, then the Rent or payment due during the period of
such restrictions shall be the maximum amount allowable under those
restrictions. Upon termination of the restrictions, Landlord shall, to
the extent it is legally permitted, recover from Tenant the difference
between the amounts received during the period of the restrictions,
and the amounts Landlord would have received had there been no
restrictions.
5.5 Taxes Payable by Tenant. In addition to the Rent and any other charges
to be paid by Tenant hereunder, Tenant shall reimburse Landlord upon
demand for any and all taxes payable by Landlord (other than net
income taxes) which are not otherwise reimbursable under this Lease,
whether or not now customary or within the contemplation of the
parties, where such taxes are upon, measured by or reasonably
attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements made in
or to the Premises by or for Tenant, other than Building Standard Work
made by Landlord, regardless of whether title to such improvements is
held by Tenant or Landlord; (b) the gross or net Rent payable under
this Lease, including, without limitation, any rental or gross
receipts tax levied by any taxing authority with respect to the
receipt of the Rent hereunder; (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises or any portion thereof; or (d) this transaction
or any document to which Tenant is a party creating or transferring an
interest or an estate in the Premises. If it becomes unlawful for
Tenant to reimburse Landlord for any costs as required under this
Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as
would have been payable to Landlord but for the reimbursement being
unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid
amounts shall bear interest at the maximum rate then allowed by law. Tenant
acknowledges that the late payment of any Monthly Installment of Base Rent
will cause Landlord to lose the use of that money and incur costs and
expenses not contemplated under this Lease, including without limitation,
administrative and collection costs and processing and accounting expenses,
the exact amount of which is extremely difficult to ascertain. Therefore,
in addition to interest, if any such installment is not received by
Landlord within ten (10) days from the date it is due,
Tenant shall pay Landlord a late charge equal to ten percent (10%) of
such installment. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by
Tenant. Acceptance of any interest or late charge shall not constitute
a waiver of Tenant's default with respect to such non-payment by Tenant
nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT.
Tenant agrees to deposit with Landlord the Security Deposit set forth at
Section 2.0 upon execution of this Lease, as security for Tenant's faithful
performance of its obligations under this Lease. Landlord and Tenant agree
that the Security Deposit may be commingled with funds of Landlord and
Landlord shall have no obligation or liability for payment of interest on
such deposit. Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit without the prior written consent of Landlord and any
attempt by Tenant to do so shall be void, without force or effect and shall
not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under
this Lease, or fails to perform any of the terms hereof, Landlord may
appropriate and apply or use all or any portion of the Security Deposit for
Rent payments or any other amount then due and unpaid, for payment of any
amount for which Landlord has become obligated as a result of Tenant's
default or breach, and for any loss or damage sustained by Landlord as a
result of Tenant's default or breach, and Landlord may so apply or use this
deposit without prejudice to any other remedy Landlord may have by reason
of Tenant's default or breach. If Landlord so uses any of the Security
Deposit, Tenant shall, within ten (10) days after written demand therefor,
restore the Security Deposit to the full amount originally deposited;
Tenant's failure to do so shall constitute an act of default hereunder the
Landlord shall have the right to exercise any remedy provided for at
Article 27 hereof. Within fifteen (15) days after the Term (or any
extension thereof) has expired or Tenant has vacated the Premises,
whichever shall last occur, and provided Tenant is not then in default on
any of its obligations hereunder, Landlord shall return the Security
Deposit to Tenant, or, if Tenant has assigned its interest under this
Lease, to the last assignee of Tenant. If Landlord sells its interest in
the Premises, Landlord may deliver this deposit to the purchaser of
Landlord's interest under this Lease, to the last assignee of Tenant. If
Landlord sells its interest in the Premises, Landlord may deliver this
deposit to the purchaser of Landlord's interest and thereupon be relieved
of any further liability or obligation with respect to the Security
Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's
Use Clause. Tenant shall not use or occupy the Premises in violation of law
or any covenant, condition or restriction affecting the Building or Project
or the certificate of occupancy issued for the Building or Project, and
shall, upon notice from Landlord, immediately discontinue any use of the
Premises which is declared by any governmental authority having
jurisdiction to
be a violation of law or the certificate of occupancy. Tenant, at Tenant's
own cost and expense, shall comply with all laws, ordinances, regulations,
rules and/or any directions of any governmental agencies or authorities
having jurisdiction which shall, by reason of the nature of Tenant's use
or occupancy of the Premises, impose any duty upon Tenant or Landlord
with respect to the Premises or its use or occupation. A judgment of any
court of competent jurisdiction or the admission by Tenant in any action
or proceeding against Tenant that Tenant has violated any such laws,
ordinances, regulations, rules and/or directions in the use of the
Premises shall be deemed to be a conclusive determination of that a
fact as between Landlord and Tenant. Tenant shall not do or permit to be
done anything which will invalidate or increase the cost of any fire,
extended coverage or other insurance policy covering the building or
Project and/or property located therein, and shall comply with all rules,
order, regulations, requirements and recommendations of the Insurance
Services Office or any other organization performing a similar function.
Tenant shall promptly upon demand reimburse Landlord for any additional
premium charged for such policy by reason of Tenant's failure to comply
with the provisions of this Article.
Tenant shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy them,
or use or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit or suffer to
be committed any waste in or upon the Premises. Tenant shall not store or
dispose of any hazardous materials at this site except in accordance with
applicable laws and regulations. Toxic/hazardous chemicals such as paint
thinner, etc. will cause damage to the site sewer system which is plastic
piping. Any hazardous materials will need to be disposed of in a method
approved by the Environmental Protection Agency.
9. SERVICES AND UTILITIES.
Tenant agrees and covenants with Landlord to pay promptly all charges for
gas, electrical and telephone services or charges for telephone connection
with Tenant's use of the Premises and to pay such charges promptly upon
demand by provider. Landlord shall maintain and keep lighted the common
stairs, common entries and common restrooms in the Project. Landlord shall
not be in default hereunder or be liable for any damages directly or
indirectly resulting from, nor shall the Rent be abated by reason of (i)
the installation, use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing services, (ii) failure to
furnish or delay in furnishing any such services where such failure or
delay is caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making of necessary repairs or improvements
to the Premises, Building or Project, or (iii) the limitation, curtailment
or rationing of, or restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to
property or business, however occurring, through or in connection with or
incidental to failure to furnish any such services, Tenant shall not,
without the written consent of Landlord, use any apparatus or device in the
Premises, including without limitation, electronic data processing
machines, punch card machines or
machines using in excess of 120 volts, which consumes more electricity
than is usually furnished or supplied for the use of premises as general
office space, as determined by Landlord. Tenant shall not connect any
apparatus with electric current except through existing electrical
outlets in the Premises. Tenant shall not consume water or electric
current in excess of that usually furnished or supplied for the use of
premises as general office space (as determined by Landlord), without
first procuring the written consent of Landlord, which Landlord shall
not unreasonably withhold, and in the event of consent, Landlord may
have installed a water meter or electrical current meter in the Premises
to measure the amount of water or electric current consumed. The cost of
any such meter and of its installation, maintenance and repair shall be
paid for by the Tenant and Tenant agrees to pay to Landlord promptly
upon demand for all such water and electric current consumed as shown by
said meters, at the rates charged for such services by the local public
utility plus any additional expense incurred in keeping account of the
water and electric current so consumed. If a separate meter is not
installed, the excess cost for such water and electric current shall be
established by an estimate made by a utility company or electrical
engineer hired by Landlord at Tenant's expense. Notwithstanding the
above, Landlord will arrange for separately metering the Premises to
accommodate Tenant's electrical requirements in accordance with the
mutually agreed upon electrical plan. The cost of the submetering will
be at the Landlord's expense.
Nothing contained in this Article shall restrict Landlord's right to
require at any time separate metering of utilities furnished to the
Premises. In the event utilities are separately metered, Tenant shall pay
promptly upon demand for all utilities consumed at utility rates charged by
the local public utility plu~ any additional expense incurred by Landlord
in keeping account of the utilities so consumed. Tenant shall be
responsible for the maintenance and repair of any such meters at its sole
cost.
Landlord shall furnish, lighting replacement for common area lights,
restroom supplies in common area restrooms, and window washing services in
a manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession the Premises are in good
order and satisfactory condition, except for such matters as to which
Tenant gave Landlord notice on or before the Commencement Date. No promise
of Landlord to alter, remodel, repair or improve the Premises, the Building
or the Project and no representation, express or implied, respecting any
matter or thing relating to the Premises, Building, Project or this Lease
(including, without limitation, the condition of the Premises, the Building
or the Project) have been made to Tenant by Landlord or its Broker or Sales
Agent, other than as may be contained herein or in a separate exhibit or
addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's Work to the
Premises as shown on Exhibit"A" and using materials as described in Exhibit
"C." Landlord shall
maintain in good order, condition and repair the Building and all
other portions of the Premises not the obligation of Tenant or of any
other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described in
Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for services furnished
by Landlord pursuant to Article 9 hereof, maintain the Premises in good
order, condition and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior windows, all plumbing,
pipes and fixtures, electrical wiring, switches and fixtures, Building
Standard furnishings and special items and equipment installed by or at the
expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and to
the Premises, Building and Project and the facilities and systems thereof,
the need for which arises out of (i) Tenant's use or occupancy of the
Premises, (ii) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (iii) the moving of
Tenant's Property into or out of the Building, or (iv) the act, omission,
misuse or negligence of Tenant, its agents, contractors, employees or
invites.
(4) If Tenant fails to maintain the Premises in good order, condition and
repair, Landlord shall give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If Tenant fails to promptly commence
such work and diligently prosecute it to completion, then Landlord shall
have the right to do such acts and expend such funds at the expense of
Tenant as are reasonably required to perform such work. Any amount so
expended by Landlord shall be paid by Tenant promptly after demand with
interest at the prime commercial rate then being charged by Bank of America
NT & SA plus two percent (2%) per annum, from the date of such work, but
not to exceed the maximum rate then allowed by law. Landlord shall have no
liability to Tenant for any damage, inconvenience, or interference with the
use of the Premises by Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any
public authority relating to their respective maintenance obligations as
set forth herein.
d. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand. Tenant shall
not install business machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to Landlord or other
Building tenants.
e. Except as otherwise expressly provided in this Lease, Landlord shall
have no
liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or by any other tenant's lease or required by law
to make in or to any portion of the Project, Building or the Premises.
Landlord shall nevertheless use reasonable efforts to minimize any
interference with Tenant's business in the Premises.
f. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
g. Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting from Tenant's use
or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alternations or improvements to
the Premises without obtaining the prior written consent of Landlord.
Landlord's consent may be conditioned on Tenant's removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion. Landlord may, at Landlord's option,
require that any such work be performed by Landlord's contractor, in which
case the cost of such work shall be paid for before commencement of the
work. Any improvements will be performed by Landlord's contractor unless
otherwise agreed in writing by Landlord and Tenant at a reasonable profit.
b. Tenant shall pay the costs of any work done on the Premises pursuant
to Section 12a, and shall keep the Premises, Building and Project fee and
clear of liens of any kind. Tenant shall indemnify, defend against and keep
Landlord free and harmless from all liability, loss, damage costs,
attorneys' fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be filed, Tenant
shall give Landlord notice of the intended commencement date a sufficient
time before that date to enable Landlord to post notices of non-
responsibility or
any other notices which Landlord deems necessary for the proper protection
of Landlord's interest in the Premises, Building or the Project, and
Landlord shall have the right to enter the Premises and post such notices
at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide
to Landlord, at Tenant's expense, a lien and completion bond in an amount
equal to at least one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
material men's liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section
12a, all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be removed, subject to
the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided hl Section
13b.
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of moveable personal
property owned by Tenant and located in the Premises (collectively
"Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed, Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Landlord reserves the right to establish Rules and Regulations. Tenant
agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
thereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other
tenants or occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to
Tenant for (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or (c)
disturbing Tenant's use or possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults, secured areas (sciff rooms) and safes in case of
a fire or flood;
d. At any time during the Term subject to Tenant's security
requirements., and on reasonable prior notice to Tenant, to inspect the
Premises, and to show the Premises to any prospective purchaser or
mortgagee of the Project, or to any assignee of any mortgage on the
Project, or to others having an interest in the Project or Landlord, and
during the last six months of the Term, to show the Premises to prospective
tenants thereof; and
e. To enter the Premises, subject to Tenant's security requirements, for
the purpose of making inspections, repairs, alterations, additions or
improvements to the Premises or the Building (Including, without
limitations, checking, calibrating, adjusting or balancing controls and
other parts of the HVAC system), and to take all steps as may be necessary
or desirable for the safety, protection, maintenance or preservation of the
Premises or the Building or Landlord's interest therein, or as may be
necessary or desirable for the operation or improvement of the Building or
in order to comply with laws, orders or requirements of governmental or
other authority. Landlord agrees to use its best efforts (except in an
emergency) to minimize interference with Tenant's business in the Premises
in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises
shall be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord which
shall not be unreasonably withheld, assign or hypothecate this Lease or any
interest herein or sublet the Premises or any part thereof, or permit the
use of the Premises by any party other than Tenant. Any of the foregoing
acts without such consent shall be void and shall, at the option of
Landlord, terminate this Lease. This Lease shall not, nor shall any
interest of Tenant herein, be assignable by operation of law without the
written consent of Landlord, whose consent shall not be unreasonably
withheld.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of
the proposed assignee or subtenant. Tenant shall promptly supply
Landlord with such information concerning the business background and
financial condition of such proposed assignee or subtenant as Landlord
may reasonably request. Landlord shall have the option, exercisable by
notice given to Tenant within ten (10) days after Tenant's notice is
given, either to sublet such space from Tenant at the rental and on the
other terms set forth in this Lease for the term set forth in Tenant's
notice, or, in the case of an assignment, to terminate this Lease. If
Landlord does not exercise such option, Tenant may assign the Lease or
sublet such space to such proposed assignee or subtenant on the
following further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in the
notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or sublessee
shall take possession of the Premises until an executed counterpart of such
assignment or sublease has been delivered to Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the Premises or any portion thereof, without
Landlord's consent and without extending any recapture or termination
option to Landlord, to any entity which controls, is controlled by or is
under common control with Tenant, or to any entity resulting from a merger
or consolidation with Tenant, or to any person or entity which acquires all
the assets of Tenant's business as a going concern, provided that (i) the
assignee or sublessee assumes, in full, the obligations of Tenant under
this Lease, (ii) Tenant remains fully liable under this Lease, and (iii)
the use of the Premises under Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to
pay the Rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of Rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an assignee
or subtenant of Tenant or any successor of Tenant in the performance of any
of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee, subtenant or
successor. Landlord may consent to subsequent assignments of the Lease or
subletting or amendments or modifications to the Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto only in the event that Tenant is
unavailable to
gain consent within ten (10) days of written request by Landlord. Any such
actions shall not relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant requests
the consent of Landlord for any act that Tenant proposes to do, then Tenant
shall, upon demand, pay Landlord an administrative fee of One Hundred Fifty
and No/100ths Dollars ($150.00) plus any attorney's fees not to exceed five
hundred dollars ($500.00) reasonably incurred by Landlord in connection
with such act or request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of this
Lease (except as to term and Base Rent), but the "Monthly Installments of
Base Rent" payable by Tenant shall be increased to one hundred twenty-five
percent (125%) of the Monthly Installments of Base Rent payable by Tenant
at the expiration of the Term.
Such monthly rent shall be payable in advance on or before the first day of
each month. If either party desires to terminate such month to month
tenancy, it shall give the other party not less than thirty (30) days
advance written notice of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (i) reasonable war and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
Landlord's request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a xxxx of sale. If Landlord elects
to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of other
casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can
be completed within ninety (90) days, this Lease shall remain in full force
and effect, except that if such damage is not the result of the negligence
or willful misconduct
of Tenant or Tenant's agents, employees, contractors, licensees or
invitees, the Base Rent shall be abated to the extent Tenant's use of
the Premises is impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under
Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days, Landlord and Tenant may elect, upon notice given within
thirty (30) days after the date of such fire or other casualty, to repair
such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section
19a. If Landlord and Tenant do not allow Landlord to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
c. If any other portion of the Building or Project that materially
affects Tenant's business is totally destroyed or damaged to the extent
that in Landlord's opinion repair thereof cannot be completed within ninety
(90) days, Landlord may elect upon notice to Tenant given within thirty
(30) days after the date of such fire or other casualty, to repair such
damage, in which event this Lease shall continue in full force and effect,
but the Base Rent shall be partially abated as provided in Section 19a. If
Landlord does not elect to make such repairs, this Lease shall terminate as
of the date of such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises, Building or Project
as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises
is so taker), this Lease shall be unaffected by such taking, provided that
(i) Tenant shall have the right to terminate this Lease by notice to
Landlord given within ninety (90) days after the date of such taking if
twenty percent (20%) or more of the Premises is taken and the remaining
area of the Premises is not reasonably sufficient for Tenant to continue
operation of its business, and (ii) Landlord shall have the right to
terminate this Lease by notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the
Lease shall terminate on the thirtieth (30th) day after either such
notice. The Rent shall be prorated to the date of termination. If this
Lease continues in force upon such partial taking, the Base Rent and
Tenant's Proportionate Share shall be equitably adjusted according to
the remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority shall
be the exclusive property of Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any award, judgment or
settlement from the condemning authority. Tenant, however, shall have the
right, to the extent that Landlord's award is not reduced or prejudiced, to
claim from the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work as set forth in Exhibits "A" and "C" attached hereto. Tenant shall be
responsible at its sole cost and expense for the repair, restoration and
replacement of Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of: (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on or
about the Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to Landlord,
defend Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorneys' fees, expert witness
fees and any other expenses incurred in such action or proceeding. As a
material part of the consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any person or
property, on or about the Premises from any cause, other than the
negligence or intentional acts or omissions of Landlord, its agents,
servants or representatives.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, unless due to the negligence
or intentional acts or omissions of Landlord, its employees, invitees or
customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak
or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wire,
appliances, plumbing, air conditioning or lighting fixtures, whether such
damage or injury results from conditions arising upon the Premises or upon
other portions of the Building or Project or from other
sources. Landlord shall not be liable for any damages arising from any
act or omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and at Landlord's request any mortgagee of Landlord,
as an additional insured, as their respective interests may appear. Each
policy shall contain (i) a cross-liability endorsement, (ii) a provision
that such policy and the coverage evidences thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance, and (iii) a
waiver by the insurer of any right of subrogation against Landlord, its
agents, employees and representatives, which arises or might arise by
reason of any payment under such policy or by reason of any act or omission
of Landlord, its agents, employees or representatives. A copy of each paid
up policy (authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy required
hereunder shall be delivered to Landlord before the date Tenant is first
given the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any time
and from time to time, inspect and/or copy any insurance policies required
to be maintained by Tenant hereunder. No such policy shall be cancelable
except after twenty (20) days written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or "binders" of any
such policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out an maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with up to a
twenty-five percent (25%) handling charge, payable upon demand. Tenant
shall have the right to provide such insurance coverage pursuant to blanket
policies obtained by the Tenant, provided such blanket policies expressly
afford coverage to the Premises, Landlord, Landlord's mortgagee and Tenant
as required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all Leasehold Improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($ 1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree upon
the amounts of said increases, then Tenant agrees that all insurance policy
limits as set forth in this Article shall be adjusted for increases in the
cost of living in accordance with the changes in the Index cited in Section
2.h hereof.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of
the other, on account of loss by or damage to the waiving party of its
property or the property of others under its control, to the extent that
such loss or damage is insured against under any fire and extended coverage
insurance policy which either may have in force at the time of the loss or
damage. Tenant shall, upon obtaining the policies of insurance required
under this Lease, give notice to its insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first deed of
trust beneficiary of Landlord, Tenant shall, in writing, subordinate its
rights under this Lease to the lien of any first mortgage or first deed of
trust, and to all advances made or hereafter to be made thereunder.
However, before signing any subordination agreement, Tenant shall have the
right to obtain from any lender or Landlord requesting such subordination,
an agreement in writing providing that, as long as Tenant is not in default
hereunder, this
Lease shall remain in effect for the full Term. The holder of any security
interest may, upon written notice to Tenant, elect to have this Lease prior
to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure
Tenant shall attorn to the purchaser or transferee as the case may be, and
recognize that party as Landlord under this Lease, provided such party
acquires and accepts the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written statement
certifying (a) that this Lease is
unmodified and in full force and effect, or is in full force and effect
as modified and stating the modifications; (b) the amount of Base Rent
and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d)
that Landlord is not in default hereunder or, if Landlord is claimed to
be in default, stating the nature of any claimed default. Any such
statement may be relied upon by a purchaser, assignee or lender.
Tenant's failure to execute and deliver such statement within the time
required shall at Landlord's election be a default under this Lease and
shall also be conclusive upon Tenant that: (I) this Lease is in full
force and effect and has not been modified except as represented by
Landlord; (2) there are no uncured defaults in Landlord's performance
and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in
advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building
or Project, and assignment of this Lease by Landlord, Landlord shall be and
is hereby entirely freed and relieved of any and all liability and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Premises, Building, Project or Lease
occurring after the consummation of such sale or transfer, providing the
purchaser shall expressly assume all of the covenants and obligations of
Landlord under this Lease. If any security deposit or prepaid Rent has
been paid by Tenant, Landlord may transfer the security deposit or prepaid
Rent to Landlord's successor and upon such transfer, Landlord shall be
relieved of any and all further liability with respect thereto.
27. DEFAULT.
27.1 Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five (5)
days after written notice thereof from Landlord to Tenant that such payment
is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant
without Tenant commencing action to cure such default within ten (10) days
after receipt of Landlord's notice; or
d. If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with its
creditors; or
f. If Tenant files a voluntary petition for relief or if a petition
against Tenant in a
proceeding under the federal bankruptcy laws or other insolvency laws is
filed and not withdrawn or dismissed within forty-five (45) days
thereafter, of if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or
control remains in force unrelinquished, unstayed or unterminated for a
period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises or
Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one () person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through
g above.
27.2. Remedies. In the event of Tenant's default hereunder, then in
addition to any other rights or remedies Landlord may have under any law,
Landlord shall have the right, at Landlord's option, without further
notice or demand of any kind to do the following:
a. Terminate this Lease and Tenant's right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall have
no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges which
have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and Tenant's right to possession
of the Premises.
If Landlord reenters the Premises under the provisions of subparagraphs b
or c above, Landlord shall not be deemed to have terminated this Lease or
the obligation of Tenant to pay any Rent or other charges thereafter
accruing, unless Landlord notifies Tenant in writing of Landlord's election
to terminate this Lease. In the event of any reentry or retaking of
possession by Landlord, Landlord shall have the right, but not the
obligation, to remove all or any part of Tenant's Property in the Premises
and to place such property in storage at a public warehouse at the expense
and risk of Tenant. If Landlord elects to relet the Premises for the
account of Tenant, the rent received by Landlord from such reletting shall
be applied as follows: first, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord; second, to the payment of any
costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due
and unpaid hereunder; and the balance, if any, shall be held by Landlord
and applied in payment of future Rent as it becomes due. If that portion of
rent received from the reletting which is applied against the Rent due
hereunder is less
than the amount of the Rent due, Tenant shall pay the deficiency to
Landlord promptly upon demand by Landlord. Such deficiency shall be
calculated and paid monthly. Tenant shall also pay to Landlord, as soon
as determined, any costs and expenses incurred by Landlord in connection
with such reletting or in making alterations and repairs to the
Premises, which are not covered by the rent received from the reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the amount
by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of
award exceeds the rental value of the premises for the balance of the
Lease; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses (including attorneys' fees),
incurred by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c) preparing the
Premises for reletting to a new tenant, including any repairs or
alterations, and (d) reletting the Premises, including broker's
commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2
above, is to be computed by allowing interest at the rate of ten
percent (10%) per annum. "The worth at the time of the award" as used
in subparagraph 3 above, is to be computed by discounting the amount
at the discount rate of the Federal Reserve Bank situated nearest to
the Premises at the time of the award plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or
condition of this Lease shall not be deemed a waiver of such term,
covenant or condition or of any subsequent breach of the same or any
other term, covenant or condition. Acceptance of Rent by Landlord
subsequent to any breach hereof shall not be deemed a waiver of any
preceding breach other than the failure to pay the particular Rent so
accepted, regardless of Landlord's knowledge of any breach at the
time of such acceptance of Rent. Landlord shall not be deemed to have
waived any term, covenant or condition unless Landlord gives Tenant
written notice of
such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days
after receipt of written notice from Tenant specifying such default, or if
such default cannot reasonably be cured within thirty (30) days, if
Landlord fails to commence to cure within the first ten days of that thirty
(30) day period, then Landlord shall be liable to Tenant for any damages
sustained by Tenant as a result of Landlord's breach; provided, however, it
is expressly understood and agreed that if Tenant obtains a money judgment
against Landlord resulting from any default or other claim arising under
this Lease, that judgment shall be satisfied only out of the rents, uses,
profits, and other income actually received on account of Landlord's right,
title and interest in the Premises, Building or Project, and no other real,
personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord
(or any first mortgagee or first deed of trust beneficiary of Landlord)
fails to cure the default as provided herein, then Tenant shall have the
right to cure that default at Landlord's expense.
Tenant shall not have the right to terminate this Lease or to withhold,
reduce or offset any amount against any payments of Rent or any other
charges due and payable under this Lease except as otherwise specifically
provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except
those noted in ~section 2.c. Tenant shall indemnify and hold Landlord
harmless from any cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission or tees
claimed by any other real estate broker or agent in connection with this
Lease or its negotiation by reason of any act of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under
this Lease shall be in writing and deemed duly served or given if
personally delivered or sent by certified or registered U.S. mail, postage
prepaid, and addressed as follows: (a) if to Landlord, to Landlord's
Mailing Address and to the Building manager, and (b) if to Tenant, to
Tenant's Mailing Address; provided, however, notices to Tenant shall be
deemed duly served or given if delivered or mailed to Tenant at the
Premises so long as Tenant is in possession. Landlord and Tenant may from
time to time by notice to the other designate another place for receipt of
future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or
other utilities during the Term, both Landlord and Tenant shall be bound
thereby. In the event of a difference in interpretation by Landlord and
Tenant of any such controls, the interpretation of Landlord shall prevail,
and Landlord shall have the right to enforce compliance therewith,
including the right of entry into the Premises to effect compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of
the Building in accordance with the following:
a. The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as the Premises described in this Lease,
and if the relocation occurs after the Commencement Date, shall be placed
in that condition by Landlord at its cost.
b. Landlord shall give Tenant at least thirty (30) days written notice
of Landlord's intention to relocate the Premises. Landlord may not relocate
tenant during the period from January 15th through April 30th of each year
due to the tax season and the interruption of Tenant's business during that
critical time of year.
c. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the following
Monday. If the physical relocation has not been completed in that time,
Base Rent shall xxxxx in full from the time the physical relocation
commences to the time it is completed. Upon completion of such relocation,
the new premises shall become the "Premises" under this Lease.
d. All reasonable costs incurred by Tenant as a result of the relocation
shall be paid by Landlord. These costs would include moving of furniture,
equipment, phones, and other communications equipment, replacing inventory
of letterhead and other office supplies and other miscellaneous costs
associated with the relocation.
e. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
f. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the reduction of
Base Rent, if any.
g. In the event that the proposed relocated premises are not
substantially the same as the Premises, the tenant may terminate the Lease
contract.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under
this Lease, shall peaceably and quietly enjoy the Premises, subject to the
terms of this Lease and to any mortgage, lease, or other agreement to which
this Lease may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which may hereafter be enacted or promulgated. Tenant shall,
at its sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and with
the requirements of any board of fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to, or affecting
the condition, use or occupancy of the Premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission of
Tenant in any action against Tenant, whether Landlord is a party thereto
or not, that Tenant has violated any law, ordinance or governmental
rule, regulation or requirement, shall be conclusive of that fact as
between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls, judicial orders,
enemy or hostile government actions, civil commotion, fire or other
casualty, or other causes beyond the reasonable control of the party
obligated to perform hereunder, shall excuse performance of the work by
that party for a period equal to the duration of that prevention, delay or
stoppage. Nothing in this Article 34 shall excuse or delay Tenant's
obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant
shall pay Landlord all costs of such performance promptly upon receipt of a
xxxx therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside or outside of
windows or doors, without the written consent of Landlord. Landlord shall
have the right to remove any signs or other matter, installed without
Landlord's permission, without being liable to Tenant by reason of such
removal, and to charge the cost of removal to Tenant as additional rent
hereunder, payable within ten (10) days of written demand by Landlord.
Interior building signage and directory signage will be installed by
Landlord in accordance with Landlord's sign regulations at Landlord's
expense. Interior building signage and exterior directory signs will be
installed at Landlord's expenses and in accordance with Landlord's sign
regulations.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest due
Rent, nor shall any endorsement or statement on any check or letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of the Rent or pursue
any other remedy provided for in this Lease. In connection with the
foregoing, Landlord shall have the absolute right
in its sole discretion to apply any payment received from Tenant to any
account or other payment of Tenant then not current and due or
delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in
the addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either
party against the other pertaining to or arising out of this Lease, the
finally prevailing party shall be entitled to recover all costs and
expenses, including reasonable attorneys' fees, incurred on account of such
action or proceeding.
d. Captions, Articles and Section Number. The captions appearing within
the body of this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or
meaning of this Lease. All references to article and Section numbers refer
to Articles and Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall
unreasonably withhold its consent to changes or amendments to this Lease
required by the lender on Landlord's interest, so long as these changes do
not alter the basic business terms of this Lease or otherwise materially
diminish any rights or materially increase any obligations of the party
from whom consent to such charge or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of the State of New Mexico.
g. Consent. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any
claim against Landlord for money damages by reason of any refusal,
withholding or delaying by Landlord of any consent, approval or statement
of satisfaction, and in such event, Tenant's only remedies therefor shall
be an action for specific performance, injunction or declaratory judgment
to enforce any right to such consent, etc.
h. Corporate Authority. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of the
corporation, and that this Lease is binding on Tenant in accordance with
its terms. Tenant shall, at Landlord's request, deliver a certified copy of
a resolution of its board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts,
all of which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant
shall be for examination purposes only, and does not and shall not
constitute a reservation of or option for Tenant to lease, or otherwise
create any interest of Tenant in the Premises or
any other premises within the Building or Project. Execution of this
Lease by Tenant and its return to Landlord shall not be binding on
Landlord notwithstanding any time interval, until Landlord has in fact
signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In
order to induce Landlord to enter into this Lease Tenant agrees that it
shall furnish Landlord prior to Landlord's execution of the Lease, with
financial statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease
are true, correct and complete in all respects. Tenant shall furnish
financial statements to Landlord upon Landlord's request in connection with
an expansion or other material changes in the status of the Lease.
Notwithstanding the provisions above, Tenant's furnishing of financial
statements does not obligate Tenant to enter into a lease with Landlord.
1. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or
registered mail to any first mortgagee or first deed of trust beneficiary
of Landlord whose address has been furnished to Tenant, a copy of any
notice of default served by Tenant on Landlord. If Landlord fails to cure
such default within the time provided for in this Lease, such mortgagee or
beneficiary shall have an additional thirty (30) days to cure such default;
provided that if such default cannot reasonably be cured within that thirty
(30) day period, then such mortgagee or beneficiary shall have such
additional time to cure the default as is reasonably necessary under the
circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the
agreements of the parties with respect to any matter covered or mentioned
in this Lease, and no prior agreement or understanding pertaining to any
such matter shall be effective for any purpose. No provisions of this Lease
may be amended or added to except by an agreement in writing signed by the
parties or their respective successors in interest.
o. Recording. Tenant shall not record this Lease without the prior
written consent of Landlord. Tenant upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for
recording purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not affect
the validity of any other provision, and any provision so determined to be
invalid shall, to the extent possible, be construed to accomplish its
intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the
parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy
of Landlord upon any default by Tenant shall impair such right or remedy or
be construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall not
constitute a waiver of any other default; it shall constitute only a waiver
of timely payment for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the Term. Only
a written notice from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of
the Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: 8-9-99 Date: 8-5-99
Landlord: Pebbles. Ltd. Tenant: New Mexico Software
By: /s/ Xxxx Xxxxx By: Xxxxxxx X. Xxxxxxxx
Title: co-manager Title: CEO
Exhibit A
(layout of offices)
Exhibit B
(Site Plan - Netherwood Commons)
Exhibit C
BUILDING STANDARD TENANT IMPROVEMENTS
The Premises, as defined in Section 2.1 of the Lease, will be built out in
accordance with the space plan listed as Exhibit "A" with the following
clarifications: Landlord will provide Tenant with standard building signage.
For security purposes, Building D will have a proximity card reader system to
control after-hours building access. Tenant will be charged a $15.00 deposit
for each access card issued. Landlord will provide Tenant with up to a $15.00
Tenant Improvement allowance. Any unused allowance will be retained by
Landlord. Landlord will provide Tenant with Building signage High Desert
Medical's signage and signage o the north face of Building C facing
Interstate 40 at the Landlord's expense.
The following represent Building Standard Leasehold Improvements:
Partitions All required partitions will be 5/8" gypsum board, painted with
Building Standard colors to be provided by Landlord.
Ceilings Fissured type mineral fiber acoustical ceiling time, 24" x 48" x
5/8" thick mechanically suspended on a concealed grid throughout
the Leased Premises.
Lighting
Fixtures One (1) 2' x 4' recessed three-tube fluorescent lighting
fixture with
plastic pebble surface covering per one hundred (100) square feet
of Usable Area.
Duplex
Electric
Outlets One (1) duplex wall-mounted convenience outlet for each sixty
(60) square feet of Usable Area.
Telephone
Outlets One (1) telephone wall outlet for each two hundred (200) square
feet of Usable Area
Floor
Covering Building Standard commercial grade carpeting, minimum 28
ounces, throughout the Leased Premises. Vinyl floor covering can
be substituted in heavy work areas as designated by Tenant.
Doors Full height, solid core hardwood doors with a metal frame and
lever handle latch set hardware to be used for interior doors.
Heating &
Cooling Gas-fired combination roof-mounted units provide heat and
refrigerated cooling controlled from the Leased Premises.
Window
Coverings One inch (1") horizontal aluminum slat mini-blinds for exterior
windows throughout the Leased Premises.
Fire
Sprinklers Ceiling mounted fire sprinkler heads throughout the Premises to
conform with city code for fire protection to be installed.
Tenant will provide written approval to Exhibit "A" prior to commencement of
lease improvements. Any changes made to the approved space plan will be at
the Tenant's expense.
Exhibit D
to
Office Building Lease
RULES AND REGULATIONS
1. (a) No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building without the written consent of Landlord being
obtained first. Landlord shall have the right to remove any such sign,
placard, picture, advertisement, name or notice without notice to and the
expense of Tenant.
(b) All signs or lettering on doors must be approved by Landlord and
shall be printed, painted, affixed or inscribed at the expense of Tenant by a
per son approved by Landlord. Tenant shall not place anything or allow
anything to be placed near the glass of any window, door, partition or wall
which may appear unsightly from outside the Premises
2. The directory of the Building will be provided for the display of the
names and location of Tenant only. Landlord reserves the right to exclude any
other names therefrom.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other
than for ingress to and egress from the Premises. The halls, passages, exits,
entrances, elevators, stairways, terraces and roof are not for the use of the
general public and Landlord shall in all cases retain the right to control
and prevent access thereto by all persons whose presence in the judgement of
Landlord may be prejudicial to the safety, character, reputation or best
interests of the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to persons
with whom Tenant normally deals in the ordinary course of Tenant's business
unless such persons are engaged in illegal activities. No Tenant and no
employees or invitees of any Tenant shall go upon the roof of the Building.
4. Nothing should be placed on the terraces that exceeds the railing height
of the terraces.
5. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any door of the Premises.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed; no
foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose employees or invitees,
caused it.
7. Tenant shall not overload the floor of the Premises. Tenant may hang
pictures and art work on the interior walls of the lease space.
8. No furniture, freight or equipment of any kind shall be brought into the
Building without the consent of Landlord and all moving of the same into or
out of the Building shall be done at such time and in such manner as Landlord
shall designate. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy equipment brought into the Building
and also the times and manner of moving the same in and out of the Building.
Safes or other heavy objects shall, if considered necessary by Landlord,
stand on wood strips of such thickness as is necessary to properly distribute
the weight. Landlord will not be responsible for loss of or damage to any
such safe or property from any cause and all damage done to the Building by
moving of maintaining any such safe or other property shall be repaired at
the expense of Tenant.
9. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations,
or interfere in any way with other Tenants or those having business therein,
nor shall any animals or birds be brought in or about the Premises or the
Building.
10. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by Tenant on the Premises,
except that use by the Tenant of Underwriters' Laboratory approved equipment
for brewing coffee, tea, hot chocolate and similar beverages shall be
permitted, provided that such equipment and use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations and/or the use of a microwave oven.
11. Tenant shall not use or keep in the Premises or the Building, any
kerosene, gasoline or
inflammable or combustible fluid or material, or use any method of heating or
air conditioning other than that supplied by Landlord.
12. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires is
permitted without the consent of Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject to
the approval of Landlord.
13. Each Tenant, upon termination of its tenancy, shall deliver to Landlord
all keys to the Building and all parts thereof which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of
loss of any keys so furnished, shall pay Landlord therefor.
14. No Tenant shall lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord. The expense of repairing any
damage resulting from violation of this rule or from removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
15. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except
between such hours and in such elevators as shall be designated by Landlord.
16. Tenant shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and caution
that all water faucets or water apparatus are entirely shut off before Tenant
or Tenant's employees leave the Building, and that all electricity shall
likewise be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injuries sustained by
other tenants or occupants of the Building of Landlord.
17. Landlord reserves the right to exclude or expel from the Building, any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
18. The requirements of Tenant will be attended to only upon application at
the office of the Building. Employees of Landlord will not perform any work
or do anything outside of their regular duties unless under special
instructions from Landlord, and no employee will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
19. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
landlord.
20. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and the street address of the
Building. Without the written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
21. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent the same.
22. Tenant not conduct any auction on the premises without Landlord's prior
written consent.
LANDLORD: TENANT:
Pebbles, LTD. NEW MEXICO SOFTWARE
By /s/ Xxxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxxx
Its: co-manager Its CEO
EXHIBIT E
to
OFFICE BUILDING LEASE
COMMENCEMENT DATE ADJUSTMENT NOTICE
THIS AGREEMENT, made as of the 5th day of August, 1999 between Pebbles, Ltd.
as Landlord and New Mexico Software as Tenant.
WHEREAS, by that certain Lease, made the 5th day of August , 1999, (the
"Lease") Landlord demised and leased to Tenant those certain Premises as
described in 2(1) of the Lease for a term of 60 months commencing on/or
about August 6. 1999, and ending on July 31, 2004, unless sooner terminated
or extended as provided therein.
WHEREAS the Tenant did not enter into occupancy of the expansion Premises
until 19 , and
WHEREAS Landlord and Tenant desire to set forth the correct commencement date
of the term and to adjust the expiration date of the term to provide for a
full term of the Lease of _________ (__) years.
NOW, THEREFORE, Landlord and Tenant do hereby agree as follows:
1. The term of the Lease commenced on 1999 And shall continue
until , 19 , unless sooner terminated or extended as provided therein.
2. Except as hereby amended, this Lease shall continue in full force and effect.
3. This agreement shall be binding on the parties hereto and their respective
heirs, devices, personal representatives, executors, successors and assigns.
Note: Do not sign or complete the remaining blanks on this form until the actual
occupancy date is determined.
LANDLORD: TENANT:
Pebbles, Ltd. New Mexico Software
By: /s/ Xxxx Xxxxx By
----------------------------
Its: co-manager Its:
---------------------------
EXHIBIT "F"
GUARANTY OF LEASE
1. Guaranty. To induce PEBBLES, LTD., a New Mexico limited liability
company ("Landlord'), to enter into the Office Building Lease (the "Lease")
dated ______________, 199_ with New Mexico Software, a New Mexico corporation
("Tenant"), the undersigned (the "Guarantor") executes and delivers this
Guaranty of Lease (the "Guaranty") pursuant to which Guarantor guarantees to
Landlord (a) payment to Landlord when due of (i) all Base Rent, CAM and other
charges; (ii) all amounts payable by reason of any indemnity, breach of
warranty, default or breach by Tenant under the Lease; and (iii) all costs
incurred by Landlord in enforcing its rights and remedies under the Lease
and/or this Guaranty, including reasonable attorneys' fees, court costs and
investigation expenses; and (b) performance of all of Tenant's other
obligations under the Lease (collectively, "Guaranteed Obligations"). This is
a guaranty of payment and not of collection and Guarantor's liability is
primary and not secondary. Landlord may, at its option, proceed against
Guarantor without first commencing an action or obtaining a judgment against
Tenant or any other party. Unless otherwise expressly provided in this
Guaranty, all capitalized terms shall have the same meanings as in the Lease.
2. Waivers and Releases.
a. Guarantor waives marshaling of assets and liabilities, sale in
inverse order of alienation, presentment, demand for payment, protest, notice
of acceptance of this Guaranty, notice of nonpayment, notice of dishonor,
notice of acceleration, notice of intent to accelerate and all other notices,
demands, suits or other actions otherwise required as a condition to
Landlord's exercise of its rights under the Lease or this Guaranty.
Guarantor's liability hereunder shall not be released by Landlord's receipt,
application or release of security given for performance of any such
obligations, nor shall Guarantor be released by reason of any lien held or
executed upon Tenant and/or its assets by Landlord.
b. This Guaranty shall in no way be affected by (i) any extension of
time for payment or performance of any Guaranteed Obligations; (Ii)
supplementation or amendment (material or otherwise) of the Lease, or renewal
or extension thereof, or increase in the size of the Premises (whether within
the Building, or the Project); (iii) any failure, omission, delay or lack of
diligence by Landlord or any other person or entity, to enforce, assert or
exercise any right or remedy of Landlord under the Lease or this Guaranty;
(iv) settlement or compromise of any Guaranteed
Obligation; (v) release or discharge of Tenant in any creditor's
receivership, bankruptcy or other proceedings; (vi) impairment, limitation or
modification of the liability of Tenant (or its estate in bankruptcy), or of
any remedy for the enforcement of Tenant's liability under the Lease,
resulting from the operation of any present or future provision of the United
States Bankruptcy Code or other statute or from the decision of any court;
(vii) rejection or disaffirmance of the Lease in any such proceedings; (viii)
assignment, sublease or other transfer of the Lease or the Premises, or any
interest therein, by Landlord or Tenant; (ix) any disability or other defense
of Tenant; or (x) cessation of Tenant's liability for any cause whatsoever.
c. Until all Guaranteed Obligations are fully performed, Guarantor
(i) has no right of subrogation against Tenant due to any payment or
performance by Guarantor; (ii) waives any right to enforce any remedy
Guarantor may now or hereafter have against Tenant due to any such payment or
performance; and (iii) subordinates any liability or indebtedness of Tenant
now or hereafter held by Guarantor to the Guaranteed Obligations in favor of
Landlord.
3. Representations and Warranties. Guarantor represents and warrants, as a
material inducement to Landlord to enter into the Lease, that (a) this
Guaranty and each instrument securing this Guaranty have been duly executed
and delivered and constitute legally enforceable obligations of Guarantor;
(b) there is no action, suit or proceeding pending or, to Guarantor's
knowledge, threatened against or affecting Guarantor, at law or in equity, or
before or by any governmental authority, which might result in any materially
adverse change in Guarantor's business or financial condition; (c) as of the
date hereof, Guarantor's financial condition is adequate to secure
Guarantor's obligations under this Guaranty; (d) execution of this Guaranty
shall not render Guarantor insolvent; (e) from and after the date hereof,
Guarantor shall not take any action, such as assuming additional liabilities,
divesting assets or otherwise, which would impair Guarantor's ability to
perform its obligations under this Guaranty; and (fl Guarantor has a bona
fide interest in Tenant's financial success.
4. Notice. Any notice or communication hereunder shall be given in writing
by, and deemed received upon, personal delivery, or posting in a U.S. Postal
Service receptacle, postage prepaid, registered or certified mail, return
receipt requested, or delivery by expedited courier, where proof of delivery
can be shown, to Guarantor at:
Xxxxxxx X. Xxxxxxxx
Attention:_______________
Telephone: (000) 000-0000
Facsimile:______________
5. Interpretation. This Guaranty shall be governed by and construed in
accordance with New Mexico law, The proper place of venue to enforce payment
or performance under this Guaranty shall be the county or other jurisdiction
in which the Premises are located. The representations, covenants and
agreements set forth herein shall continue and survive the termination of the
Lease and/or this Guaranty. The masculine and neuter genders each include the
masculine, feminine and neuter genders. This instrument may not be changed,
modified, discharged or terminated orally or in any manner other than by an
agreement in writing signed by Guarantor and Landlord. If
Guarantor consists of more than one person or entity, the word "Guarantor"
shall apply to each such party, each of whom shall be jointly and severally
liable hereunder. The words "Guaranty" and "guarantees" shall not be
interpreted to limit Guarantor's primary obligations and liability hereunder.
6. Consent to Jurisdiction. In any legal proceeding regarding this
Guaranty, including enforcement of any judgments, Guarantor irrevocably and
unconditionally (a) submits to the jurisdiction of the courts of law in the
county or district in which the Project is located; (b) accepts the venue of
such courts and waives and agrees not to plead any objections thereto; and
(c) agrees that (i) service of process may be effected at the address
specified in Paragraph 4 above, or at s such other address of which Landlord
has been properly notified, and (ii) nothing herein shall affect Landlord's
right to effect service or process in any other manner permitted by
applicable law.
7. Successors and Assigns. This Guaranty shall inure to the benefit of
Landlord and its successors and assigns, and shall be binding upon Guarantor
and its executors, administrators, heirs, successors and assigns. Guarantor
shall not assign any obligation hereunder without Landlord's prior written
consent. If any Guarantor who is a living person dies while this Guaranty is
in force, then such deceased Guarantor's heirs, executors administrators and
representatives shall not make any distribution or disposition of assets from
the estate without first making provisions acceptable to Landlord for the
satisfaction of such deceased Guarantor's obligations (and contingent
obligations) hereunder.
IN WITNESS WHEREOF, Guarantor executes this Guaranty as of _______________.
GUARANTOR:
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Its: CEO
