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EXHIBIT 10.15
L E A S E A G R E E M E N T
THIS LEASE made this 26 day of August, 1988, BETWEEN THE XXXXXXX
CORPORATION, hereinafter sometimes called "Landlord", and XXXXXXXX MICRO
SCIENCE, INC., hereinafter sometimes called "Tenant";
SECTION I. DEMISE OF PREMISES
That Landlord, having full authority to make the agreements hereinafter
set forth, for and in consideration of the covenants and agreements hereinafter
mentioned, to be kept and performed by both parties hereto, has demised and
leased to Tenant, the premises (hereinafter sometimes called the "demised
premises") in the County of Xxxx Xxx, and State of New Mexico, and Tenant,
having full authority to rent, does hereby rent and lease said premises, known
and described as:
A portion of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0
Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County,
New Mexico, containing 5.4181 acres, more or less, all
as more particularly described by metes and bounds
description attached hereto as Exhibit "A", and made a
part hereof for all purposes;
together with all easements, alleys, parking and loading rights, platforms,
docks, rights of ingress and egress, machinery, equipment, fixtures and
appurtenances now or hereafter belonging or appertaining to said premises; to
be occupied for the use of a manufacturing and industrial plant, or for any
other lawful purpose.
The location and dimensions of the demised premises are shown on the plat
hereto attached, marked "Exhibit "B", signed by the parties to this Lease and
hereby made a part hereof.
The parties hereto mutually agree as follows:
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SECTION II. EFFECTIVE DATE, TERM, CONSTRUCTION
2.01. Effective Date. The term of this Lease shall be ten (10) years,
commencing on the day that the Tenant initiates operation of the facility, but
in no event later than April 1, 1989, and ending on the 31st day of March,
1999.
2.02. Rent. Tenant, in consideration of said demise, does covenant and
agree with Landlord to pay as rent for said demised premises the sum of
Eighteen Thousand Nine Hundred Twenty-Five and No/100ths DOLLARS ($18,925.00),
in advance upon the first day of each and every month of the term hereof,
subject to adjustments as hereinafter set out. The rentals in this Lease
provided for shall be paid or mailed to: The Xxxxxxx Corporation, 000 Xxx
Xxxxxx, Xx Xxxx, Xxxxx, 00000, or to such other payee or address as Landlord
shall designate, in writing, to Tenant.
2.03. Construction of Premises. Landlord agrees, at Landlord's expense,
to commence by October 1, 1988, and prosecute with diligence the erection upon
the demised premises of a building and other improvements, all in accordance
with plans and specifications therefor (hereinafter referred to as "Plans")
which will be prepared at Landlord's expenses, under the supervision of
Landlord's architect. Such "Plans" shall be subject to the approval of both
Landlord and Tenant and, when approved, shall be signed by Landlord and Tenant
and made a part hereof by express reference thereto. At such time as said
"Plans" are approved by both parties hereto, Landlord shall furnish Tenant five
(5) complete sets thereof. The Tenant's approval of any "Plans" shall not
relieve Landlord of Landlord's obligations under this Lease or be construed as
an assumption by Tenant of such obligations. At any time or times prior to the
completion of said improvements, Tenant shall have the right to make minor
changes in said "Plans" by giving Landlord written notice, signed by Tenant's
Real Estate Manager, or his
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nominee, of the changes desired by Tenant, provided such changes do not unduly
delay the making of said improvements or do not increase their cost. Similarly,
at any time or times prior to the completion of said improvements, Tenant shall
have the right to make such reasonable changes in said "Plans" and
"construction" by giving Landlord written notice, signed by Tenant's Real
Estate Manager, or his nominee, of the changes desired by Tenant, provided that
Tenant shall bear the cost and expense in making such changes and provided
further that Landlord shall have the right to reasonably extend the effective
date of the Lease. Within thirty (30) days after the commencement of the term
hereof, Landlord shall furnish Tenant two (2) complete sets of "Plans" showing
the building and all improvements "as built" on the demised premises, which
sets shall be signed by Landlord and Tenant and made a part hereof in lieu of
the "Plans" hereinabove provided to be signed and made a part hereof prior to
the commencement of construction of said improvements.
2.04. Commencement Date. Landlord agrees to commence construction within
ten (10) days of the date that (1) the Lease has been executed, (2) the plans
and specifications have been signed by the parties hereto, (3) all permits and
approvals necessary to approve the site for Tenant's intended use and for the
contemplated construction have been secured, and (4) the land which shall be
demised to Tenant has been acquired by Landlord. In the event the construction
of said building and improvements has not been commenced, through no fault of
Tenant, by the above mentioned date (October 1, 1988), then Tenant shall have
the right at any time within sixty (60) days after said date to cancel this
Lease, together with all of Tenant's obligations hereunder, by giving Landlord
written notice of such cancellation. In the event that commencement of
construction has been delayed because of actions or fault of Tenant, then the
above referenced date shall be extended by the number of days delay that are
caused by the action of Tenant.
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2.05. Failure to Complete. In the event the erection of said building and
improvements has not been completed and the premises delivered to Tenant, as
herein provided on or before April 1, 1989, (date of delivery), through no
fault of Tenant, then Tenant shall have the right, at any time after said date,
until said building and improvements shall have been completed and the premises
so delivered to Tenant, to cancel this Lease, together with all of Tenant's
obligations hereunder, by giving Landlord written notice of such cancellation.
Provided, however, Landlord's failure to deliver the premises by April 1, 1989
is caused by actions or fault of Tenant, the date of delivery shall be extended
by the number of days delay that was caused by the actions or fault of the
Tenant.
2.06. Construction; Force Majeure. However, in the event Landlord's
failure to complete the erection of said building and improvements on or before
April 1, 1989, all as hereinabove provided in Paragraph 2.05, shall be on
account of delay occasioned by acts of God, accidents, strikes, floods,
inclement weather, fire or other casualty, or unavailability of labor or
necessary materials, said date or dates shall be extended by the period of such
delay.
2.07. Tenant's Right to Complete Construction. In the event said building
and improvements have not been completed, all as herein provided, and
possession delivered to Tenant on or before the date stipulated in Paragraph
2.05 or its extension in Paragraph 2.06 hereof, as the case may be, then Tenant
shall have the right, upon fifteen (15) days' written notice to Landlord, to
elect to take possession of the demised premises (without affecting the date of
the commencement of the term as specified in Paragraph 2.01 hereof), complete
the building and improvements in accordance with the "Plans", and recover
Tenant's cost and expense incurred thereby in the manner hereinafter provided.
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2.08. Settlement of Disputes. In the event of any labor dispute in
connection with the erection of said building and/or improvements, Landlord
agrees to promptly adjust and settle the same in order to avoid unfavorable
publicity and unnecessary delay, in a manner mutually satisfactory to the
parties hereto. Landlord agrees that Landlord will, at its own expense, obtain
and maintain in companies and agencies approved by Tenant, public liability and
workmen's compensation insurance containing provisions and being in amounts
satisfactory to Tenant and adequate to fully protect Tenant as well as Landlord
from and against any and all liability for death or injury to person or damage
to property caused in or about or by reason of the erection of said building
and improvements. Landlord covenants that it shall cause Tenant to be named as
an additional insured in any of such policies of insurance. To the extent
possible, the additional insured shall read "Xxxxxxxx Laboratories, Inc., its
affiliates and subsidiaries".
2.09. Compliance With Law. In the erection of said building and the
making of said improvements, Landlord shall conform to and comply with all
federal, state and local laws, ordinances, permits, rules and regulations
applicable to the demised premises.
2.10. Tenant's Right to Access. Landlord will permit Tenant, at Tenant's
option and without charge, to have access to said building during the progress
of construction, and before the commencement of the term hereof, for the
purpose of installing fixtures and equipment, storing, removing, and shipping
merchandise, supplies and equipment and otherwise making the premises ready for
Tenant's operations, but in so doing, Tenant shall not unreasonably interfere
with the completion of said building or improvements by Landlord. (It is
contemplated that Tenant shall have the right, after January 1, 1989, to
commence the installation of its fixtures and equipment.) During such times as
Tenant is so engaged, Landlord shall not be liable for any injury to person, or
damage to property, of Tenant's employees, licensees, or invitees from any
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cause whatsoever, occurring upon the demised premises, unless such injury or
damage be caused by negligence of Landlord, or of Landlord's employees, agents,
servants or contractors.
2.11. Delivery of Possession. Landlord covenants that Landlord will, on
or before the beginning of the term hereof, deliver possession of the demised
premises to Tenant in good condition and repair, ready for said occupancy, free
and clear of tenancies and occupancies, with all the improvements, additions,
alterations and repairs in this Lease provided to be made by Landlord fully
completed; and that in addition to making the improvements, additions,
alterations and repairs, if any, herein specifically provided for, Landlord
will, at its own expense, make such further additions, alterations and repairs
as may be necessary to make said demised premises and all fixtures, equipment
and appurtenances belonging to, in or about said demised premises (not
including, however, the fixtures, equipment and appurtenances of Tenant) comply
at the beginning and during the term hereof with the laws of said state,
ordinances of said city, and regulations applicable to said demised premises
and the uses thereof as aforesaid.
2.12. Delivery of Good Title. Landlord represents and warrants that
Landlord owns good title to the demised premises and all machinery, equipment
and fixtures, located therein (except the machinery, equipment and fixtures
belonging to Tenant) and that the same are now, and will be at the beginning
and during the term hereof, free and clear of all liens and encumbrances,
except the liens of current taxes not yet due or payable, and of any lien or
liens securing loan or loans now existing or hereafter placed thereon by
Landlord.
SECTION III. ADJUSTMENTS TO THE RENT
It is agreed that on the third, sixth and ninth anniversary of the
initial term, the monthly rent shall be adjusted upwards according to the
Consumer Price Index, all as more particularly
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set out in the formula in Section 22.12. It is agreed and understood that in
no event shall any increase be greater than six percent (6%) for the preceding
adjustment period.
SECTION IV. QUIET ENJOYMENT
Subject to the provisions of Section XVII, Landlord covenants and agrees
that upon Tenant paying rent and performing all of the covenants and conditions
herein set forth, Tenant shall and may peaceably and quietly have, hold and
enjoy the premises hereby demised, for the term herein provided.
In the event the demised premises have not been delivered to Tenant at the
beginning of the term of this Lease, all as herein provided, then the covenants
and obligations of Tenant herein contained, including the covenants to pay
rent, shall xxxxx until said premises are so delivered to Tenant.
SECTION V. OPTION
Provided Tenant is not in default hereunder, Tenant shall have four (4)
options to renew and/or extend the term of this Lease for five (5) years each
after the termination date of the initial term and the extended term, upon the
same terms and conditions as are provided herein, except that the monthly rent
payable by Tenant to Landlord during such renewal term shall be adjusted
upwards annually according to the Cost of Living Index, all as is more
particularly set out in the formula set out in Section 22.12. Said adjustment
shall be on the anniversary date of this Lease. Tenant shall, at least six (6)
months prior to the maturity date of this Lease or any extended term hereof,
give to Landlord written notice of its intention to exercise such option to
extend this Lease.
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SECTION VI. REPAIRS AND MAINTENANCE
6.01. Landlord's Obligation. Once the Tenant occupies the Premises,
subject only to the "punch list", with the exception of the roof as set out
below, Landlord shall have no obligation whatsoever for repairs, maintenance or
replacement, as this Lease is intended to be an absolutely net lease.
6.02. Landlord's Obligation. Landlord agrees that during the primary term
of this Lease (but not any extension thereafter), it shall repair and keep the
roof of the demised premises in good order, condition and repair, except that
Landlord shall not be required to make any such repairs which become necessary
or desirable by reason of the act or negligence of Tenant, its agents, officers
or employees. Tenant shall notify Landlord in writing immediately upon
discovery by it of any condition with respect to which Landlord is obligated to
repair. It is agreed that should Tenant exercise any option to extend this
Lease, it shall become responsible for the roof so that the Lease shall
thereafter become an absolute "net lease".
6.03. Tenant's Obligation. With the exception of Landlord's obligation to
maintain the roof during the primary term of this Lease, Tenant shall at all
times keep the Premises in good order, condition and repair, making
replacements thereof as may be necessary. All repairs, restorations and
replacements shall be of quality and class equal to the present installations
and shall be done in a good and workmanlike manner.
6.04. Landlord's Right to Make Repairs. Should Landlord be required to
make any repairs occasioned by Tenant's negligence or negligence on the part of
Tenant's officers, agents or employees or should Tenant neglect or refuse to
make repairs in accordance with Section 6.03 hereof, upon ten (10) days written
notice, Landlord may make such repairs without liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other
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property or to Tenant's business by reason thereof, and upon completion of such
repairs, Tenant shall pay to Landlord, Landlord's cost for the making of such
repairs plus fifteen percent (15%) thereof for overhead, upon presentation of
bills therefor, as additional rent. The receipted bills of mechanics or
contractors employed by Landlord showing the payment by Landlord for the making
of such repairs shall be prima facie evidence of the reasonableness of such
charges and that the same has been paid by Landlord.
6.05. Right of Access to Premises. Landlord or its agents shall have the
right to enter into the Premises at all reasonable hours and upon reasonable
notice to Tenant for the purpose of inspecting the same or for the purpose of
exhibiting the same to prospective tenants, purchasers or others. The exercise
of this right to enter the Premises shall not be deemed an eviction or
disturbance of Tenant's use of possession. Tenant will allow to have placed
"To Rent" and "For Sale" signs upon said premises within sixty (60) days prior
to the expiration of this Lease, and will not interfere with the same.
6.06. Surrender of the Premises. Upon the expiration of this Lease,
Tenant shall surrender the Premises in the same condition as it was in upon
delivery or possession thereof to Tenant, reasonable wear and tear and
unavoidable casualty excepted, and shall surrender all keys to the Premises to
Landlord at the place then fixed for the payment of rent.
SECTION VII. ALTERATIONS
Tenant shall have the right to make such alterations and improvements and
to install such electric, store and other fixtures and equipment, in or about
the demised premises, and to post or attach such signs on the interior and
exterior of said premises, or in the vicinity thereof, as Tenant may deem
desirable (provided, however, that Tenant shall not make any major alterations
affecting the structure of said building without the prior written consent of
Landlord). All signs
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and all electric, store and other fixtures and equipment, which may be
installed, placed or attached in or about the demised premises by Tenant or any
assignee or subtenant of Tenant shall always remain the property of Tenant or
of the assignee or subtenant of Tenant so installing, placing or attaching the
same, and upon the termination by expiration of time or otherwise of this
Lease, or of any renewal thereof, or at any prior time or times, Tenant or such
assignee or subtenant of Tenant will, if it desires to do so, be permitted to
remove all or any of said signs, fixtures and equipment so installed, placed or
attached; provided, however, that any damage caused to the demised premises by
reason of such removal will be repaired by Tenant or its assignee or subtenant
so removing the same.
SECTION VIII. UTILITIES
Tenant hereby agrees to pay, in addition to the rents above specified, for
all electricity, gas and water used by it upon the demised premises.
SECTION IX. TAXES
In addition to the foregoing sums, Tenant shall, as further consideration
for this Lease, pay and discharge all taxes (including, without limitation, all
real estate, gross receipts and sales taxes), general and special assessments,
and other charges of every description which during the term of this Lease may
be levied on or assessed against the demised premises and all interest thereon
and all improvements and other property thereon, whether belonging to Landlord
or to Tenant, or to which either of them may become liable in relation thereto.
Nothing herein shall be construed to obligate the Tenant to pay any income tax
as defined by the Internal Revenue Code.
Tenant agrees to and shall protect and hold harmless Landlord and the
demised premises from liability for any and all such taxes, assessments and
charges, together with any interest,
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penalties or other sums thereby imposed, and from any sale or other proceedings
to enforce payment thereof.
During the term hereof, Tenant shall cause all taxes, assessments and
other charges levied on or imposed on any of its personal property situated in,
on or about the demised premises to be levied on or assessed separately from
the demised premises and not as a lien thereon.
All such taxes and assessments for the first and last years of this Lease
shall be prorated between Landlord and Tenant.
Tenant agrees to and shall pay all such foregoing taxes, assessments and
charges not less than twenty (20) days prior to the date of delinquency thereof
and give written notice of each such payment to Landlord within three (3) days
after such payment is made.
If Tenant fails to pay such taxes, assessments or charges, or fails to
give written notice of any payment thereof as herein provided at least twenty
(20) days prior to the time the same becomes delinquent, Landlord may, at its
option, at any time within or after such twenty (20) day period, pay such
taxes, assessments or charges, together with all penalties and interest which
may have been added thereto because of Tenant's delinquency or default, and may
likewise redeem the demised premises, or any part thereof, or the buildings or
improvements situated thereon, from any tax sale or sales. Any such amounts so
paid by Landlord shall become immediately due and payable as rent by Tenant to
Landlord, together with interest thereon at the rate of eighteen percent (18%)
per annum from the date of payment by Landlord until paid by Tenant. Any such
payment by Landlord shall not be deemed to be a waiver of any other rights
which Landlord may have under the provisions of this Lease or as provided by
law.
Tenant shall pay, prior to delinquency, all property taxes and assessments
on the furniture, fixtures, equipment and other property of Tenant at any time
situated on or installed in
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the demised premises. Nothing herein shall, however, prejudice the right of
Tenant to contest or challenge as to the size or propriety of amounts assessed.
SECTION X. INSURANCE
10.01. Tenant's Obligation. Tenant agrees that, at its own cost and
expense, it shall procure and continue in force throughout the term of this
Lease for the benefit of Landlord, Tenant and any mortgagee, general liability
insurance against any and all claims for injuries to persons or damage to
property occurring in, upon or about the demised premises, such insurance at
all times to be in an amount not less than One Million Dollars ($1,000,000.00)
for bodily injury or death arising out of any one occurrence and One Million
Dollars ($1,000,000.00) for property damage arising out of any one occurrence.
In this regard, Tenant shall name Landlord in its comprehensive general
liability insurance coverage which it procures for all of its operations.
Provided, however, that in the event the limits of such insurance are
increased, Landlord shall be included in any such increased coverage.
10.02. Indemnification of Landlord. Tenant hereby indemnifies and agrees
to hold Landlord harmless from any and all claims, actions, demands, liability
and expense in connection with loss of life, personal injury and/or damaged
property, and from any penalty or damage or charges imposed for any violation
of any laws or ordinances, arising from or out of any occurrence in, upon or at
the demised premises, or from or out of the use or occupancy by Tenant, or any
agent or concessionaire of Tenant, of the demised premises or any part thereof,
or from or out of any breach of this Lease by, or any act or omission of
Tenant, its agents, contractors, employees, servants, sublessees or
concessionaires. Provided further that the indemnity given herein shall not
apply to any claims actions, demands, liability and expenses which were caused
by the affirmative negligence of Landlord. In the event Landlord shall,
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without fault on its part, be made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord harmless and pay
all costs and expenses incurred or paid by Landlord in connection with such
litigation. Tenant shall also pay all costs and expenses that may be incurred
or paid by Landlord in enforcing the covenants and agreements in this Lease.
Costs and expenses shall, in all cases, include reasonable attorney's fees and
other reasonable expenses incurred by Landlord in enforcing any of the
provisions of this Lease or in defending itself against any claim arising
hereunder.
10.03. Landlord's Nonliability. Neither Landlord nor Landlord's agents or
servants shall be liable, and Tenant waives all claims, for damage to persons
or property sustained by Tenant or any occupant of the demised premises or any
part thereof or any equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the demised premises or resulting
directly or indirectly from any act or neglect of any tenant or occupant or of
any other person, including Landlord's agents and servants.
10.04. Property Insurance. Tenant shall, at its own expense, during the
term of this Lease, keep all buildings and structures on said premises insured
for the replacement cost, against loss or damage by fire, with extended
coverage, if obtainable, to include direct loss by windstorm, hail, explosion,
riot, or riot attending a strike, civil commotion, aircraft, vehicles, and
smoke in the aggregate amounts of not less than the full fair insurable value
thereof. Tenant shall be deemed to have complied with this condition by
providing a policy of eighty percent (80%) co-insurance in the amount set out
above, if and when available. Such policy or policies of insurance shall name
Landlord as an additional insured as its interest may appear and shall provide
that any loss shall be payable jointly to Landlord and Tenant pending election
on repair under Sections XIII and XIV and subject to the rights of any
mortgagee holding liens on the
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demised premises, which sum Landlord shall use for repair and restoration
purposes. In addition to same, Tenant shall carry business interruption
insurance equal to the amount of time needed to repair or restore the demised
premises.
10.05. Policy Requirements. All such policies of insurance shall be
written by insurance companies authorized to do business in the State of New
Mexico and shall be written in companies approved by Landlord, such approval
not to be unreasonably withheld. Certificates of insurance shall be delivered
to Landlord at least fifteen (15) days prior to the date Tenant takes
possession of the premises. Each such certificate shall contain (i) a
statement of the coverage provided by the policy; (ii) a statement of the
period during which the policy is in effect; and (iii) an agreement by the
insurance company issuing such policy that the policy will not be canceled or
reduced by the insurance company in any amount for any reason whatsoever
without at least ten (10) days prior written notice to Landlord.
10.06. Landlord's Right to Acquire Insurance. If Tenant does not maintain
such insurance in full force and effect, Landlord may notify Tenant of such
failure, and if Tenant does not deliver to Landlord within ten (10) days after
such notice certification showing all such insurance to be in full force and
effect, Landlord may, at its option, take out the necessary insurance to comply
with the provisions hereof and pay the premiums on the items specified in such
notice, and Tenant covenants thereupon on demand to reimburse and pay Landlord
any amount so paid or expended in the payment of the insurance premiums
required hereby and specified in the notice, with interest thereon at the rate
of eighteen percent (18%) per annum from the date of such payment by Landlord
until repaid by Tenant.
10.07. Waiver of Subrogation. Except as herein provided to the contrary,
Landlord and Tenant hereby release the other from any and all liability or
responsibility to the other or anyone
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claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by fire or any of the extended coverage
casualties, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, this release shall be applicable and in force
and effect only with respect to loss or damage occurring during such time as
the releaser's policy shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said policy or prejudice
the right of the releaser to cover thereunder.
SECTION XI. COMPLIANCE WITH LAWS AND REGULATIONS
Tenant shall not use or occupy or permit the demised premises to be used
or occupied, nor do or permit anything to be done in or on the demised
premises, in whole or in part, in a manner which would in any way violate any
certificate of occupancy affecting the demised premises, or make void or
voidable any insurance then in force with respect thereto, or which may make it
impossible to obtain fire or other insurance thereon required to be furnished
by Tenant hereunder, or as will cause or be apt to cause, structural injury to
the buildings or any part thereof, or as will constitute a public or private
nuisance.
During the term of this Lease, Tenant, at Tenant's sole cost and expense,
shall promptly comply with all present and future laws, ordinances, orders,
rules, regulations, and requirements of all federal, state, and municipal
governments, courts, departments, commissions, boards, and officers, any
national or local board of fire underwriters, or any other body exercising
functions similar to those of any of the foregoing, foreseen or unforeseen,
ordinary as well as extraordinary, which may be applicable to the demised
premises or any part thereof and the sidewalks, curbs, streets, and roads
adjoining the demised premises or to the use or manner of use of the demised
premises or the owners, tenants, or occupants thereof, even though such law,
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ordinance, rule, order, regulation, or requirement shall necessitate structural
changes, repairs or improvements, or the use or application of portions of the
demised premises for compliance therewith, or the removal of any encroachments
or projections, ornamental, structural or otherwise, unto or over the streets
adjacent to the demised premises, on, onto, or over other property contiguous
or adjacent thereto, and even though compliance with the provisions of this
section may interfere with the use and enjoyment of the demised premises.
Except as otherwise set forth herein, Tenant shall indemnify Landlord of
and from all fines, penalties, claims for damages of every kind and nature
arising out of Tenant's failure to comply with any such law, ordinance, order,
rule, regulation, or requirement, the intention of the parties being with
respect thereto that Tenant, during the term of this Lease, shall discharge and
perform all the obligation of Landlord with respect to the demised premises, as
well as all the obligations of Tenant, arising as aforesaid, and indemnify
Landlord therefrom, so that at all times the rental of the demised premises
shall be net to Landlord without deduction or expenses on account of any such
law, ordinance, rule, order, regulation, or requirement, whatever it may be.
SECTION XII. PARTIAL CASUALTY
In the event the demised premises are hereafter partially damaged or
destroyed or rendered partially unfit for their accustomed uses by fire or
explosion (except where caused by Tenant's negligence), or tornado, earthquake
or any casualty, then Landlord shall, at its own expense, promptly repair said
premises and restore the same to substantially the condition in which they were
immediately prior to the happening of such casualty, and from the date of such
casualty until said premises are so repaired and restored, rent shall xxxxx in
such proportion as the part of said premises thus destroyed or rendered unfit
for such uses bears to the total premises herein demised.
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SECTION XIII. TOTAL CASUALTY
In the event the demised premises are hereafter destroyed or rendered
unfit for their accustomed uses by fire or explosion (except where caused by
Tenant's negligence), or tornado, earthquake, or any casualty, to the extent of
more than eighty percent (80%) (based on the cost to replace the premises
damaged or destroyed as compared with the market value of the improvements on
the demised premises immediately prior to such fire or other casualty, as shown
by the certificate of a reputable building contractor, satisfactory to both
Landlord and Tenant, or if no satisfactory building contractor be agreed upon
then a certificate of an architect who is a member of the local society of the
American Institute of Architects), and the insurance proceeds are insufficient
to replace the building or unavailable for a period of sixty (60) days or
longer, then Landlord shall have the right to terminate this Lease effective as
of the date of such casualty, by giving to the Tenant, within ninety (90) days
after the happening of such casualty, written notice of such termination; if
said notice be given within said ninety (90) day period, this Lease shall
terminate, as aforesaid, rent shall xxxxx from the happening of such casualty,
and Landlord shall promptly repay to Tenant any rent theretofore paid in
advance which has not been earned at the date of such casualty. In the event
said notice be not given within said ninety (90) day period, this Lease shall
not terminate, but Landlord shall, at its own expense, promptly repair and
rebuild said premises and restore the same to substantially the condition in
which they were immediately prior to the happening of such casualty, and rent
shall xxxxx from the date of such casualty until said premises are so repaired,
rebuilt and restored. Nothing herein shall, however, affect any rent received
by virtue of carrying business interruption insurance. Notwithstanding the
foregoing, should such damage occur within the last twenty-four (24) months of
the term of this Lease or should more than fifty percent (50%) of the total
ground floor area of the demised
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premises be damaged or destroyed by fire or other casualty, Landlord may
terminate this Lease by giving Tenant thirty (30) days written notice of its
election to do so, but such notice must be given within sixty (60) days
following the date of the casualty. Provided, however, Tenant shall have the
right to exercise any option to renew the Lease. In such event Landlord's right
to terminate shall become null and void. In the event of such termination,
rent and other charges under this Lease shall be prorated as to the date of
such casualty loss.
SECTION XIV. LANDLORD'S FAILURE TO REBUILD - TENANT'S RIGHTS
If Landlord fails to promptly repair, rebuild or restore the demised
premises, as herein provided in either Section XII or Section XIII, then Tenant
shall have the right to terminate this Lease by giving Landlord thirty (30)
days' written notice of such termination; or Tenant, at its sole option, after
written notice to Landlord, may repair, rebuild or restore said premises, and
if it does so, it shall have the right to collect directly from the insurance
companies and use for that purpose all or so much as may be necessary of the
insurance on the demised premises payable by reason of such damage or
destruction.
Notwithstanding any other provision in this Lease to the contrary,
Landlord shall not be liable to Tenant for any damage to the property of Tenant
or of others located on or in the demised premises, nor for the loss or damage
to any property of Tenant or others by theft or otherwise. Excepting only
those obligations expressly assumed by Landlord in this Lease, Landlord shall
not be liable for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, gas, electricity, plumbing, heating or air
conditioning, water, rain, snow, leaks from any part of the demised premises or
from the pipes, appliances or plumbing works or from the roof, street or
subsurface of any other place or by dampness, or by any other cause of
whatsoever nature. Landlord shall not be liable for any latent defect in the
demised
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premises or in the building of which they form a part. All property of
Tenant kept or stored on the demised premises shall be so kept or stored at the
risk of Tenant only, and Tenant shall hold Landlord harmless from any claims
arising out of damage to the same, including subrogation claims by Tenant's
insurance carrier, unless such damage shall be caused by a willful act or gross
negligence of Landlord.
SECTION XV. SUBORDINATION AND ATTORNMENT
15.01. Subordination. All of the rights of Tenant hereunder are and shall
be subject and subordinate to the lien of any mortgage or mortgages now or
hereafter placed on the premises or any part thereof and to any and all
renewals, modifications, consolidations, replacements and extensions or
substitutions of any such mortgage or mortgages; provided, however, in
negotiating any new mortgage, Landlord shall obtain a provision to the effect
that so long as Tenant is not in default under this Lease, no foreclosure of
the lien of said mortgage or any other proceeding in respect thereof shall
divest, impair, modify, abrogate, or otherwise adversely affect any interest or
rights whatsoever of Tenant under this Lease. This section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant agrees to promptly execute and
deliver any instrument that the holder of any such mortgage may request to
evidence such subordination, and Tenant irrevocably appoints Landlord the
attorney-in-fact of Tenant to execute and deliver such instrument on behalf of
Tenant, should Tenant refuse or fail to do so promptly after request. Tenant
further agrees to provide at least annually to Landlord and mortgagee an annual
financial statement and statement of profit and loss. Provided, however, that
such parties agree to execute the usual agreement of non-disclosure reasonably
required by Tenant.
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15.02. Attornment. If the interest of Landlord under this Lease shall be
transferred by reason of foreclosure or other proceeding for enforcement of the
mortgage(s), Tenant shall be bound to the purchaser under all the terms,
covenants and conditions of this Lease for the balance of the term thereof,
with the same force and effect as if the purchaser were Landlord under this
Lease, and Tenant does hereby attorn to the purchaser, including any mortgagee
if it be the purchaser, as its Landlord, said attornment to be effective and
self-operative without the execution of any further instrument upon purchaser's
succeeding to the interest of Landlord under this Lease. The respective rights
and obligations of Tenant and purchaser upon such attornment, to the extent of
the then remaining balance of the term of this Lease and any such extensions
and renewals, shall be and are the same as now set forth herein.
SECTION XVI. EMINENT DOMAIN
16.01. Condemnation Award. In the event the demised premises, or any part
thereof, or if any part of the land described in Exhibit "A", shall be taken or
damaged by eminent domain or similar proceedings, the entire condemnation award
or awards shall belong to Landlord, except that Tenant shall be entitled to the
portion of any award, if any, allocated to the taking of or damage to Tenant's
alterations, improvements, fixtures and equipment. Tenant shall not have any
claim for the value of its unexpired lease. Tenant hereby expressly waives any
claim to any part of the condemnation award except as provided herein.
16.02. Right to Terminate. In the event more than ten percent (10%) of
the ground floor area in the demised premises shall be so taken or condemned,
then either Tenant or Landlord shall have the option of terminating this Lease
upon giving the other party written notice of such election within thirty (30)
days after possession of the part condemned has been taken by authorities
exercising jurisdiction, whereupon the term of this Lease shall be terminated
as of the
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date on which possession is so taken. Likewise, if after such taking
the parking area in the demised premises is less than what is sufficient for
parking for the demised premises, then either tenant or Landlord shall have the
option of terminating this Lease as above provided. If no election to
terminate is made, Landlord, at its own expense, shall repair and restore the
demised premises or the leasable ground floor area of the demised premises not
affected by the taking and the rent shall be proportionately reduced in the
same proportion that the square footage in the demised premises after such
taking bears to the square footage in the demised premises prior to the taking.
Any taking or condemnation of the demised premises which does not diminish the
area of leased (constructed improvements) premises shall not result in any
reduction or diminution of the rental payable hereunder unless the Lease is
terminated as provided above.
SECTION XVII. DEFAULT
17.01. Events of Default. It shall be an event of default by Tenant
hereunder if (a) Tenant shall fail to pay rent or other sums agreed to be paid
by Tenant to Landlord as herein required; or (b) Tenant shall fail to observe
or perform any of its obligations hereunder; or (c) at any time during the term
of this Lease or any extensions of the term of this Lease (i) the occupant of
the demised premises, whether it be Tenant, Tenant's assignee or subtenant of
the whole premises or any guarantor of this Lease, shall file in any court a
petition in bankruptcy or insolvency or for reorganization or for arrangement
within the meaning of Chapter XI of said Bankruptcy Act (or for reorganization
or arrangement under any future bankruptcy act for the same or similar relief),
or for the appointment of a receiver or trustee of all or a portion of such
occupant's or guarantor's property, or (ii) an involuntary petition of the kind
referred to in the preceding subdivision (i) of this subsection shall be filed
against such occupant or guarantor, and such petition shall not be vacated or
withdrawn within sixty (60) days after the date of filing
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thereof, or (iii) if the occupant or guarantor shall make an assignment for the
benefit of creditors, or (iv) if such occupant or guarantor shall be
adjudicated a bankrupt, or (v) a receiver shall be appointed for the property
of such occupant or guarantor by order of a court of competent jurisdiction
(except where such receiver shall be appointed in an involuntary proceeding, if
he shall be withdrawn within sixty (60) days from the date of his appointment).
17.02. Landlord's Remedies. Upon the occurrence of an event of default
enumerated in subsection (a) or (b) of Section 17.01 above, should such default
remain uncured after thirty (30) days written notice of default, or ten (10)
days in the case of nonpayment of rent or any other sums due hereunder,
Landlord may at once thereafter or at any time subsequent during the existence
of such breach or default, enter into and upon the demised premises or any part
thereof and repossess the same, expelling and removing therefrom all persons
and property (which property may be removed and stored at the cost and for the
account of Landlord), using such force as may be reasonably necessary, and
either (i) terminate this Lease, holding Tenant liable for damages for its
breach, or (ii) without terminating this Lease, relet the demised premises or
any part thereof upon such terms and conditions as appear advisable to
Landlord. If Landlord shall proceed in accordance with the last mentioned
alternative (ii), should the net amount received from reletting the premises
during any month or part thereof be less than the rent due and owing from
Tenant during such month or part thereof under the terms of this Lease, Tenant
shall pay such deficiency immediately upon calculation thereof and demand
therefor by Landlord. Upon the occurrence of an event of default enumerated in
subsection (c) of Section 17.01 above, Landlord may, if Landlord so elects, at
anytime thereafter terminate this Lease and the term hereof by notice in
writing to Tenant and occupant of Landlord's intention so to do, and
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this Lease and the term hereof shall expire and come to an end on the date
fixed in such notice as if said date were the date originally fixed in this
Lease for the expiration hereof.
Notwithstanding the foregoing, any event of default enumerated in Section
17.01(b), the curing of which shall actually require more than thirty (30) days
because of any cause beyond Tenant's control, shall be deemed cured by Tenant
if Tenant shall have commenced to cure said default within the thirty (30) day
period and shall thereafter have successfully prosecuted the curation of said
default with due diligence.
17.03. Landlord's Right to Cure. If Tenant shall be in default in the
performance of the covenants herein contained, Landlord shall have the right to
make any payment or perform any act required of Tenant under any provision of
this Lease, and, in exercising such rights, to incur necessary and incidental
costs and expenses, including attorney's fees. All payments made and all costs
and expenses incurred by Landlord in connection with any exercise of such
right, together with interest thereon at the highest rate permissible by law
from the respective dates of the making of such payments or the incurring of
such costs and expenses, shall be reimbursed by Tenant immediately upon demand.
Notwithstanding the foregoing, nothing herein shall imply any obligation on
the part of Landlord to make any payment or perform any act required of Tenant.
17.04. Contractual Lien. It is expressly agreed that in the event of
default by Tenant hereunder, Landlord shall have a lien upon all goods,
chattels or personal property of any description belonging to Tenant which are
placed in, or become a part of, the demised premises, as security for rent and
other sums due and to become due for the remainder of the lease term, which
lien shall not be in lieu of or in any way affect the statutory landlord's lien
given by law, but shall be cumulative thereto; and Tenant hereby grants to
Landlord a security interest in all
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such personal property placed in said demised premises for such purposes. This
shall not prevent the sale by Tenant of any merchandise in the ordinary course
of business free of such lien to Landlord. In the event Landlord exercises the
option to terminate the leasehold, reenter and relet the premises as provided
in Section 17.01, then Landlord may sell the same at public or private sale
without notice to Tenant, for cash or on credit, or for such prices and terms
as Landlord deems best, with or without having the property present at such
sale. The proceeds of such sale shall be applied first to the necessary and
proper expenses of removing, storing and selling such property then to the
payment of any rent due or to become due under this Lease with the balance, if
any, to be paid to Tenant.
17.05 Remedies Cumulative. All rights and remedies of Landlord herein
enumerated shall be cumulative and none shall exclude any other right or remedy
allowed by law. Likewise, the exercise by Landlord of any remedy provided for
herein or allowed by law shall not be to the exclusion of any other remedy.
SECTION XVIII. ASSIGNMENT; SUBLETTING
18.01. Tenant shall not, during the term of this Lease, directly or
indirectly assign, transfer, pledge, sell, or otherwise encumber all or any
part of the premises leased or Tenant's leasehold estate hereunder, or sublet
the demised premises or any portion thereof or permit anyone other than Tenant
to occupy such presses without the Landlord's prior written consent. Tenant
may, with the written consent of Landlord, which consent shall not be
unreasonably withheld, assign this Lease in whole or in part to any affiliated
entity of Tenant.
18.02. In the event Tenant desires to assign, transfer, encumber,
sublease, or permit anyone other than Tenant to occupy the demised premises, it
must first given written notice to Landlord of its desire to do so. The
written notice must contain the following: name of proposed assignee,
transferee, subtenant, or occupant; nature of proposed
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assignee's, transferee's, subtenant's, or occupant's business or undertaking to
be carried on in the demised premises; financial information and credit history
of the proposed assignee, transferee, subtenant, or occupant; and the terms and
conditions of the proposed assignment, transfer, sublease, or occupancy. A copy
of the proposed agreement concerning the assignment, transfer, sublease, or
occupancy must be attached.
18.03. The Landlord shall have a period of thirty (30) days from receipt
of Tenant's notice within which to decide on such assignment, transfer,
sublease or occupancy. Landlord's consent shall not be unreasonably withheld,
provided that the assignee, transferee, subtenant, or occupant appears to be
financially responsible and the purpose for which the premises are to be used
shall not be materially different from that provided for in the original
contract of lease. The consent by the Landlord to an assignment, transfer,
sublease, or occupancy by the persons specified in the Tenant's notice shall
not relieve Tenant from obtaining the Landlord's written consent to an
assignment, transfer, sublease or occupancy by any other person not named in
such notice. Consent by the Landlord to any assignment, transfer, sublease, or
occupancy by another person shall not relieve the Tenant of any of its
obligations under this Lease.
18.04. Any assignment, transfer, sublease or occupancy by a person other
than the Tenant in violation of the term of this Lease shall be void from the
beginning, and, at Landlord's option, may be treated as a material default by
the Tenant, entitling the Landlord to terminate the Lease and/or to pursue any
other legal remedies. Acceptance by the Landlord of rent from the assignee,
transferee, subtenant, or occupant shall not be deemed to constitute consent by
the Landlord to the assignment, transfer, sublease, or occupancy by another nor
as a waiver of Landlord's rights to terminate the Lease and/or pursue its other
legal remedies.
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18.05 The assignee, transferee, subtenant or other person permitted by the
Tenant to occupy the demised premises shall assume all the obligations of the
Tenant under this Lease, and shall be liable jointly and severally with the
Tenant for the payment of rent and the performance of the terms and conditions
of this Lease.
18.06 The Tenant shall deliver to the Landlord a copy of the assignment,
transfer, agreement, sublease, or other instrument permitting another person to
occupy the demised premises. The instrument must be in a form recordable in
the appropriate registry of property, and contain an agreement whereby the
assignee, transferee, subtenant, or occupant assumes the rights and obligations
of the Tenant to the demised premises, in such form as shall be acceptable by
Landlord. No such assignment, transfer, sublease, or occupancy shall be valid
as against Landlord until the relevant document is registered in the registry
of property. The failure or refusal of the assignee, transferee, subtenant, or
person permitted to occupy the demised premises to execute such instrument of
assumption shall not release or discharge it from liability as set forth in
this agreement.
18.07. If the Tenant is a corporation, the transfer of a majority of the
voting stock, whether by sale, consolidation, merger, reorganization, or any
other cause, or if the Tenant is a partnership, the sale or transfer of a
majority of the partnership interest, shall be deemed an assignment for
purposes of this Lease.
18.08. Landlord's Right to Assign. Landlord may (a) assign, in whole or
in part, Landlord's interest in this Lease; and (b) sell all or part of the
demised premises.
SECTION XIX. NOTICES
19.01. Notice of Landlord's Default. Notwithstanding anything to the
contrary in this Lease, Landlord shall not be in default under any provision of
this Lease unless written notice
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specifying such default is mailed to Landlord and to all mortgagees and/or
trust deed holders of which Tenant has, prior to such notice, been notified in
writing. Tenant agrees that any such mortgagee or trust deed holder shall have
the right to cure such default on behalf of Landlord within thirty (30) days
after receipt of such notice. Tenant further agrees not to invoke any remedy
for such default until said thirty (30) day period has elapsed or during any
period in which such mortgagee or trust deed holder is proceeding to cure such
default with due diligence, or is taking steps with due diligence to obtain
legal title to the demised premises and to cure the default.
19.02. Notices. All notices provided to be given under this Agreement
shall be given by certified mail or registered mail, postage prepaid, addressed
to the proper party, at the following addresses:
Landlord: The Xxxxxxx Corporation
c/o Xxxxxx X. Xxxxxxx
000 Xxx Xxxxxx
Xx Xxxx, Xxxxx 00000
Tenant: Xxxxxxxx Micro Science, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
The address of either party hereinabove set forth may be changed from time
to time by giving written notice to that effect.
19.03 Payments. All payments required to be made hereunder shall be made
at the appropriate address hereinabove or to such other address as either of
the parties may from time to time specify.
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SECTION XX. SURRENDER UPON TERMINATION; HOLDING OVER
20.01. Surrender. Upon the expiration or sooner termination of this
Lease, Tenant, at its sole expense, shall remove from the premises all
merchandise, furniture, furnishings, equipment and other personal property
belonging to it not affixed or attached to any part of the premises and shall
quietly and peaceably surrender possession of the premises in good order and
repair and in a clean and sanitary condition, reasonable wear and tear and
damage by fire, other casualty or the elements excepted. Tenant shall, at its
expense, repair any damage to the premises caused by such removal.
20.02. Holding Over. There shall not be any holding over by Tenant or any
assignee or subtenant beyond the expiration or sooner termination of the term
of this Lease; if, nevertheless, there be a holding over by Tenant or any
assignee or sub-tenant, such shall give rise to a month-to-month tenancy upon
the same terms and conditions as herein provided with rent for the period of
such holding over to be twice the minimum monthly installment of rent last paid
by Tenant during the term of this Lease.
SECTION XXI. OPTION TO PURCHASE
Tenant shall have the option to purchase the demised premises from
Landlord at any time after the fifth (5th) anniversary of this Lease. Tenant
shall provide Landlord six (6) months written notice of the exercise of the
option to purchase by Tenant and the notice shall be accompanied by Ten
Thousand Dollars ($10,000.00) as a partial payment of the purchase price. The
balance of the purchase price shall be paid by Tenant to Landlord at the time
of the transfer of title to the premises. Landlord shall transfer title to the
demised premises to Tenant by General Warranty Deed, free and clear of all
liens and encumbrances, except for easements, restrictions, and reservations of
record and running with the land and to taxes for the then current
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year. The purchase price shall be the fair market value of the property as
determined by appraisal plus any tax liability incurred by Landlord because of
such exercise of the option to purchase. Provided, however, if the option to
purchase shall be exercised after the tenth (10th) anniversary of this Lease,
the purchase price shall be only the fair market value of the property as
determined by appraisal. In this regard, each of the parties shall select an
appraiser who is a member of the American Institute of Appraisers and
experienced in valuing property similar to the demised premises within thirty
(30) days after receipt by Landlord of said written notice by Tenant. If
either party fails to name an appraiser within the specified time, the other
party may select the second appraiser. The two appraisers selected shall
proceed promptly to determine the fair market value of the demised premises.
The determination of such fair market value by the two appraisers, selected as
hereinabove provided, shall be final and binding upon the parties hereto; and
if the two appraisers so selected are unable to agree upon such fair market
value, said two appraisers shall select a third appraiser (who shall also be a
member of the American Institute of Appraisers and experienced in valuing
property similar to the demised premises), whose determination as to such fair
market value shall be averaged with the appraisals of the other two appraisers,
and the average of the three appraisals shall be conclusive evidence as to such
fair market value and shall be final and binding upon both parties. The
appraisers shall deliver a written report of their appraisal to both parties.
Each party shall pay the fees and expenses of the appraiser selected by or on
behalf of such party, and, if a third appraiser is selected, the fees and
expenses of the third appraiser shall be borne equally by the parties.
SECTION XXII. MISCELLANEOUS
22.01. Paragraph Headings. The paragraph titles herein are for
convenience only and do not define, limit or construe the contents of such
paragraphs.
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22.02. Binding Effect. The covenants, agreements and obligations herein
contained shall extend to, bind and inure to the benefit not only of the
parties hereto but their successors and assigns.
22.03. Gender and Interpretation of Terms and Provisions. As used in this
Lease and whenever required by the context thereof, each number, both singular
or plural, shall include all numbers, and each gender shall include all
genders. Tenant and Landlord as used in this Lease or in any other instrument
referred to in, or made a part of this, shall likewise include both the
singular and the plural, a corporation, partnership, individual or person
acting in any fiduciary capacity as executor, administrator, trustee or in any
other representative capacity. All covenants herein contained on the part of
Tenant shall be joint and several.
22.04. Condition of Premises. Tenant agrees that its acceptance of the
demised premises evidenced by Tenant's entry and the possession thereof shall
constitute unqualified proof that the demised premises are, as of the date of
commencement of Tenant's occupancy thereof, in a tenantable and good condition.
22.05. Law Governing. The laws of the State of New Mexico shall govern
the validity, performance and enforcement of this Lease. Jurisdiction for any
legal action shall be in Xxxx Xxx County, New Mexico.
22.06. Estoppel Letters. During the term of this Lease, Tenant agrees
upon request in writing from Landlord to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications) and the dates
to which minimum rent, percentage rent and other charges have been paid. It is
understood and agreed that any such statement may be relied upon by any
prospective purchaser
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of the fee or any leasehold or the mortgagee, beneficiary or grantee of any
security interest, or any assignee of any thereof, under any mortgage or deed
of trust now or hereafter made covering the fee or any leasehold interest in
the demised premises or the real property covered by this Lease.
22.07. Attorney's Fees. If it shall become necessary for either of the
parties hereto to employ an attorney to enforce or defend any rights or
remedies hereunder, and should such party prevail, such party shall be entitled
to reasonable attorney's fees, court costs and other expenses incurred in such
connection.
22.08. Waiver. One or more waivers of any covenant, term or condition of
this Lease by either party shall not be construed by the other party as a
waiver of any subsequent breach of the same covenant, term or condition. The
consent or approval of either party to or of any act by the other party of a
nature requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent similar act.
22.09. Severability. Every provision of this Lease is intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of this Lease.
22.10. Force Majeure. Excepting only those provisions of this Lease
dealing with the right to terminate the Lease upon inability to deliver the
premises to Tenant and those specifically contemplating acts of God,
governmental, etc. (e.g., casualty, condemnation, etc.), neither Landlord nor
Tenant shall be required to perform any term, condition or covenant in this
Lease so long as such performance is delayed or prevented by force majeure.
22.11. Entire Agreement; Amendment. This Lease shall constitute the
entire understanding of the parties hereto with respect to the subject matter
hereof and no amendment,
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modification or alteration of the terms hereof shall be binding unless the same
be in writing, dated subsequent to the date hereof and duly executed by the
parties hereto.
22.12. Adjustments in Rent. If the rent is subject to an adjustment as
set out in Section III of this Lease, or if Tenant exercises any option(s) to
extend this Lease, the minimum rent during such additional term(s) shall be
one-twelfth (1/12th) of an amount determined by multiplying the annual minimum
rent set forth in Section 2.02 of this Lease by the Cost of Living Index Number
in effect at the beginning of the applicable term and then dividing said figure
by the Index Number in effect on the Commencement Date of the Lease. For
example, assume that the Lease commences on the first day of June, 1975; that
the annual rent payable under Section 2.02 of this Lease is $24,000.00; that
the Cost of Living Index on the first day of June, 1975 is 135.0; and that the
Cost of Living Index on the first day of the first month of said renewal or
adjustment term is 155.0, then the annual adjusted rent during such renewal or
adjustment term of this Lease commencing on the first day of the first month of
such renewal or adjustment term would be $24,000.00 x 155.0 divided by 135.0
which equals $27,555.56. Therefore, the minimum rent due monthly would be
1/12th of that figure, which would be $2,296.30.
The Cost of Living Index Numbers to be used shall be the ones in effect at
the applicable date defined at the "U. S. Department of Labor, Bureau of Labor
Statistics, Consumer Price Index For All Items for Urban Wage Earners and
Clerical Workers" unadjusted for seasonal variations. The index base shall be
"1967 = 100" or such later base as may be adopted by the Bureau of Labor
Statistics so long as the base used for the respective dates is the same or
made so by proper adjustment. These index numbers are presently published in
Federal Reserve Bulletin Table A68, Column 1, "All Items".
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It is the intention of the parties that the minimum rent shall be adjusted
upward at the stated interval in the event of an increase in such Consumer
Price Index or an equivalent increase figure in the event of a reevaluation or
revision of said Index. If the Department of Labor ceases publication of said
Consumer Price Index, then another index generally accepted as authoritative
shall be established by agreement. Should the parties fail to agree, then upon
request of either party the then presiding Judge of the Judicial District Court
of Xxxx Xxx County, New Mexico, shall select another comparable index to be
used and the substituted index so selected shall be binding on all the parties.
In no event, however, shall the monthly rent set forth in Section 2.02 of
the Lease be decreased below the sum therein specified, regardless of whether
the index number at the commencement of the renewal or adjustment term be less
than the index number on the effective date of the Lease.
22.13. Memorandum of Lease. The parties hereto agree to execute a
Memorandum of Lease to be duly executed and filed of record in the form and
content mutually satisfactory to the parties.
Section XXIII. FIRST RIGHT OF REFUSAL AND OPTION ON
CONTIGUOUS PROPERTY
23.01. Description. Landlord has acquired on behalf of itself and the
Tenant a first right of refusal and an option to purchase approximately 2.2
acres of land contiguous to the demised premises (the "Parcel") as shown on
Exhibit C according to the terms and conditions set forth hereinafter. From
the northeasterly corner of the demised premises, the dimensions of the Parcel
run easterly 75 feet, southerly 688 feet, westerly 517.98 feet, northerly 100
feet, easterly 442.98 feet and northerly 588 feet to the point of beginning, a
total of approximately 95,898 square feet.
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23.02. First Right of Refusal. From the date hereof and through the
initial term of this Lease, Tenant, through the Landlord, shall have the right
to purchase the Parcel upon the same terms and conditions of any bona fide
offer received by the owner of the Parcel, such right to be exercised by Tenant
within thirty days' receipt from the owner of notice of the offer. This right
shall run with this Lease.
23.03. Option to Purchase. For a period of six years from the date
hereof, the Tenant, through the Landlord, shall have the option to purchase the
Parcel at a purchase price of one dollar per square foot. Tenant shall pay to
Landlord $0.07 per square foot (approximately $6,710.00) annually in arrears
for this option until the option is exercised, released or expires, whichever
occurs earlier. This option shall run with this Lease.
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IN WITNESS WHEREOF, the undersigned Tenant and Landlord have executed this
Agreement as of the day and year first above written.
THE XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, President
"LANDLORD"
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
Xxxxxxx X. Xxx, President
"TENANT"
35
36
EXHIBIT "A"
The parcel of land herein described is a portion of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County, New Mexico
and is more particularly described by metes and bounds as follows:
Commencing at found brass cap lying at the quarter corner common to Sections 13
and 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian; Thence,
South 44 degrees 18' 45" East, a distance of 1768.76 feet to a point lying on
the southerly right-of-way line of Airport Road, said point being the TRUE POINT
OF BEGINNING of this description;
THENCE, 388.00 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2886.76 feet, a central angle of 07 degrees 42' 03"
and a chord which bears South 63 degrees 13' 17" East, a distance of 387.71
feet;
THENCE, South 32 degrees 06' 18" West, a distance of 588.00 feet;
THENCE, North 57 degrees 53' 42" West, a distance of 442.98 feet to a point
lying on the easterly right-of-way line of Foamex Drive;
THENCE, 402.90 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2485.17 feet, a central angle of 09 degrees 17' 20"
and a chord which bears North 36 degrees 44' 58" East, a distance of 402.46
feet;
THENCE, North 32 degrees 06' 18" East, continuing along said right-of-way line,
a distance of 125.88 feet;
THENCE, 38.63 feet along the arc of a curve to the right, having a radius of
25.00 feet, a central angle of 88 degrees 31' 27" and a chord which bears North
76 degrees 22' 01" East, a distance of 34.90 feet to the TRUE POINT OF BEGINNING
of this description.
37
EXHIBIT "B"
[Site Plan]
38
ADDENDUM TO LEASE
This Addendum to Lease Agreement dated August 26, 1988, entered into by
and between THE XXXXXXX CORPORATION, as "Landlord", and XXXXXXXX MICRO SCIENCE,
INC., as "Tenant", for the lease of that certain property located in the County
of Xxxx Xxx, State of New Mexico, and described as follows:
A portion of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxx
Xxxxxx Principal Meridian, Xxxx Xxx County, New Mexico, containing
5.4181 acres, more or less, all as more particularly described by
metes and bounds description attached hereto as Exhibit "A", and
made a part hereof for all purposes.
For value, the parties hereby desire to amend said Lease Agreement as
follows:
1. That Section 23.01 of said Lease Agreement is hereby amended as
follows:
That the land on which Landlord has acquired on behalf of itself
and the Tenant a first right of refusal and an option to purchase
is that certain parcel of land described in Exhibit "B" attached
hereto and made a part hereof for all purposes.
2. That Section 23.03 of said Lease Agreement is hereby amended to delete
the words "(approximately $6,710.00)" from said paragraph, and the following
substituted therefor: "($6,808.50)".
3. All other terms and conditions of said Lease Agreement, unless amended
hereby, shall remain in full force and effect.
39
DATED the 22nd day of September,
1988.
THE XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, President
"LANDLORD"
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ Will Dow
-----------------------------------
, President
------------------
"TENANT"
40
EXHIBIT "A"
The parcel of land herein described is a portion of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County, New Mexico
and is more particularly described by metes and bounds as follows:
Commencing at found brass cap lying at the quarter corner common to Sections 13
and 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian; Thence,
South 44 degrees 18' 45" East, a distance of 1768.76 feet to a point lying on
the southerly right-of-way line of Airport Road, said point being the TRUE POINT
OF BEGINNING of this description;
THENCE, 388.00 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2886.76 feet, a central angle of 07 degrees 42' 03"
and a chord which bears South 63 degrees 13' 17" East, a distance of 387.71
feet;
THENCE, South 32 degrees 06' 18" West, a distance of 588.00 feet;
THENCE, North 57 degrees 53' 42" West, a distance of 442.98 feet to a point
lying on the easterly right-of-way line of Foamex Drive;
THENCE, 402.90 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2485.17 feet, a central angle of 09 degrees 17' 20"
and a chord which bears North 36 degrees 44' 58" East, a distance of 402.46
feet;
THENCE, North 32 degrees 06' 18" East, continuing along said right-of-way line,
a distance of 125.88 feet;
THENCE, 38.63 feet along the arc of a curve to the right, having a radius of
25.00 feet, a central angle of 88 degrees 31' 27" and a chord which bears North
76 degrees 22' 01" East, a distance of 34.90 feet to the TRUE POINT OF BEGINNING
of this description.
41
EXHIBIT "B"
2.23288-Acre Parcel
Within
Section 00
Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx
Xxx Xxxxxx Principal Meridian
Xxxx Xxx County, New Mexico
A certain parcel of land comprising a portion of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County, New
Mexico, which is more particularly described by metes and bounds as follows:
Beginning at the most northerly corner of the parcel herein described at a
point on curve on the south right-of-way line of Airport Road whence a found
brass cap at the quarter corner common to Section 13 and 00, Xxxxxxxx 00 Xxxxx,
Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian bears N 47 degrees 40' 46" W, a
distance of 2, 139.23 feet; thence,
Continuing along the south right-of-way line of Airport Road, easterly, a
distance of 76.14 feet along the arc of a curve bearing to the left, having a
radius of 2,886.76 feet, a central angle of 01 degrees 30' 41" and a long chord
which bears S 67 degrees 49' 39" E, a distance of 76.14 feet to a point; thence,
Leaving the south right-of-way line of Airport Road S 32 degrees 06' 18" W,
a distance of 701.13 feet to a point; thence,
N 57 degrees 53' 42" W, a distance of 536.31 feet to a point on the east
right-of-way line of Foamex Drive; thence,
Along the east right-of-way line of Foamex Drive, N 43 degrees 09' 02" E, a
distance of 25.48 feet to a point of curvature; thence,
Northerly, a distance of 76.19 feet along the arc of a curve bearing to the
left, having a radius of 2,485.17 feet, a central angle of 01 degrees 45' 24"
and a long chord which bears N 42 degrees 16' 20" E, a distance of 76.19 feet to
a point on curve; thence,
Leaving the east right-of-way of Foamex Drive, S 57 degrees 53' 42" E, a
distance of 442.98 feet to a point; thence,
N 32 degrees 06' 18" E, a distance of 588.00 feet to the point of beginning
of the parcel herein described
Said parcel contains 2.23288 acres (97,264 square feet), more or less.
42
MEMORANDUM OF LEASE
THE STATE OF NEW MEXICO )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXX XXX )
W I T N E S S E T H:
On the 26th day of August, 1988, the undersigned, THE XXXXXXX CORPORATION,
as Landlord, and XXXXXXXX MICRO SCIENCE, INC., as Tenant, did enter into a
Lease Agreement for a term of ten (10) years to be effective on the day that
the Tenant initiates operation of the facility, but in no event later than
April 1, 1989, and expiring on the 31st day of March, 1999, with options to
renew, for the following described real property.
A portion of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0
Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County,
New Mexico, containing 5.4181 acres, more or less, all
as more particularly described by metes and bounds
description attached hereto as Exhibit "A", and made a
part hereof for all purposes.
WITNESS OUR HANDS this 22nd day of September, 1988.
THE XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, President
"Landlord"
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
"Tenant"
00
XXX XXXXX XX XXXXX )
)
COUNTY OF EL PASO )
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX X. XXXXXXX, President of THE XXXXXXX CORPORATION, a corporation, known
to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this 22nd day of September,
1988.
/s/ Xxxxx X. Xxxxx
--------------------------------------
My commission expires: NOTARY PUBLIC, State of Texas
8-31-92 Notary's name printed:
----------------------
--------------------------------------
[NOTARY SEAL]
00
XXX XXXXX XX XXXXXXXX )
)
COUNTY OF XXXX )
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXXX X. XXX, PRESIDENT, of XXXXXXXX MICRO SCIENCE, INC., a corporation,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated and as the
act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, on this 28 day of Sept., 1988.
/s/ Xxxx X. Xxxxxxx
--------------------------------------
My commission expires: NOTARY PUBLIC in and for said County
8-11-90 and State
---------------------- Notary's name printed:
/w/ XXXX X. XXXXXXX
--------------------------------------
[NOTARY SEAL]
45
EXHIBIT "A"
The parcel of land herein described is a portion of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian, Xxxx Xxx County, New Mexico
and is more particularly described by metes and bounds as follows:
Commencing at found brass cap lying at the quarter corner common to Sections 13
and 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, Xxx Xxxxxx Principal Meridian; Thence,
South 44 degrees 18' 45" East, a distance of 1768.76 feet to a point lying on
the southerly right-of-way line of Airport Road, said point being the TRUE POINT
OF BEGINNING of this description;
THENCE, 388.00 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2886.76 feet, a central angle of 07 degrees 42' 03"
and a chord which bears South 63 degrees 13' 17" East, a distance of 387.71
feet;
THENCE, South 32 degrees 06' 18" West, a distance of 588.00 feet;
THENCE, North 57 degrees 53' 42" West, a distance of 442.98 feet to a point
lying on the easterly right-of-way line of Foamex Drive;
THENCE, 402.90 feet along said right-of-way line and along the arc of a curve to
the left, having a radius of 2485.17 feet, a central angle of 09 degrees 17' 20"
and a chord which bears North 36 degrees 44' 58" East, a distance of 402.46
feet;
THENCE, North 32 degrees 06' 18" East, continuing along said right-of-way line,
a distance of 125.88 feet;
THENCE, 38.63 feet along the arc of a curve to the right, having a radius of
25.00 feet, a central angle of 88 degrees 31' 27" and a chord which bears North
76 degrees 22' 01" East, a distance of 34.90 feet to the TRUE POINT OF BEGINNING
of this description.
