EXHIBIT 10.5(m)
STATE OF NEW MEXICO
XXXX XXX COUNTY
LEASE OF REAL PROPERTY; IMPROVEMENTS; OTHER ASSETS;
AND MISCELLANEOUS RESPECTIVE AGREEMENTS
PREAMBLE, PARTIES, PREMISES AND RECITAL OF
RESPECTIVE AGREEMENTS
The respective agreements entered into herein are by and between
BACCHUS INDUSTRIES, INC. (BII); and REFRIGERATION TECHNOLOGY, INC., a newly
formed Delaware corporation (RTI); in each entities' respective capacities, as
hereinafter set forth, for the lease of real property; improvements; other
assets and miscellaneous respective agreements.
PURPOSE
The purpose of the respective agreements contained herein are for a
lease of real property, improvements, equipment, molds, information and other
assets as related to sales; and the respective rights and obligations between
BII and RTI for the manufacturing and production, sales and all other related
rights, liabilities and obligations of the respective entities.
LEASE AGREEMENT
LEASE
This lease is made and entered into by and between BII, Lessor, and
RTI, Lessee.
In consideration of the mutual covenants and agreements set forth in
this lease, and other good and valuable consideration, Lessor demises and leases
to Lessee, and Lessee leases from Lessor, the premises situated on 000 Xxxxxx
Xxxxxx in the city of Sunland Xxxx, Xxxx Xxx County, New Mexico and more
particularly described in Exhibit A attained to this lease. The premises are
referred to in this lease as "the premises" or the "leased premises."
ARTICLE I. TERM
TERM OF LEASE
1.01. The Term of this lease shall be for three (3) years, commencing on March
1, 1997, and ending on March 1, 2000, unless sooner terminated as provided in
this lease. Provided however, that BII or RTI, will each have the sole
discretionary right, respectively to terminate this Lease with 120 days notice,
as provided herein, to the other party.
OPTION TO EXTEND TERMS
1.02. Lessee has the right to extend this agreement for five (5) years at its
option.
ARTICLE II
FIXED RENT
2.01. Lessee agrees to pay to Lessor the sum of $6,500.00 per month on or before
the 5th of each month until the full term of the lease has expired.
TAXES AND ASSESSMENTS AS ADDITIONAL RENT
2.02. In addition to the fixed rent specified in section 2.01, Lessee shall pay
the full amount of all real property taxes, special assessments and governmental
charges of every character imposed upon the leased premises during the term of
this lease, including any special assessments imposed on, or against, the
premises for the construction or improvements of public works. This additional
rent shall be payable directly to the entity prior to the entity imposing the
tax, assessment, or charge at least thirty days (30) prior to the date on which
the payment is due. Lessee shall provide Lessor with a receipt or other evidence
of payment for each such tax, assessment, or charge paid within a reasonable
time after receipt or other evidence is available to Lessee.
ARTICLE III. USE OF PREMISES
PERMITTED USE
3.01. Lessee may use the premises for offices and to operate and conduct heat
exchanger and an air conditioning manufacturing and warehousing. Lessee may not
use the premises for any other purpose without the written consent of the
Lessor. Such consent shall not be unreasonably withheld.
Waste, Nuisance, or Illegal Uses
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3.02. Lessee shall not use, or permit the use of, the premises in any manner
than results in waste of the premises or constitutes a nuisance or violates any
statute, ordinance, rule, or regulation applicable to the premises or for any
illegal purpose.
ARTICLE 4. REPAIRS AND MAINTENANCE
REPAIRS AND MAINTENANCE BY LESSEE
4.01. Lessee shall, throughout the term of this lease and any extensions of that
term, at its own expenses and right, maintain the order and condition, including
but not limited to making all repairs and replacements necessary to keep the
premises and improvements in such condition. All maintenance, repairs, and
replacements required by this section must be performed promptly when required.
ARTICLE 5. UTILITIES AND GARBAGE REMOVAL
UTILITY CHARGES
5.01. Lessee shall pay all utility charges for water, electricity, heat, gas,
and telephone service used in and about the leased premised during the term of
the lease, all such charges to be paid by the Lessee directly to the utility
company or municipality furnishing the same, before the same shall become
delinquent.
GARBAGE REMOVAL
5.02. Lessee shall pay for the removal of all its garbage and rubbish from the
leased premises during the term of the lease.
ARTICLE 6. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS
CONSENT OF LABOR
6.01. Lessee shall not make any alterations, additions, or improvements to the
leased premises without prior written consent of Lessor. Consent for
nonstructural alterations, additions, or improvements shall not be unreasonably
withheld by Lessor.
PROPERTY OF LESSOR
6.02. All alterations, additions, or improvements made by Lessee shall become
property of Lessor at the termination of this lease. Lessor may, however,
require that Lessee remove any or all alterations, additions, or improvements
installed or made by the Lessee, and any other property placed on the property
by Lessee, upon termination of the Lease. In the event that Lessor requires
Lessee to remove such alterations, additions, or improvements, Lessee shall
repair any damage to the premises caused by such removal.
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ARTICLE 7. TRADE FIXTURES AND SIGNS
TRADE FIXTURES
7.01. Lessee has the right at all times to erect or install shelves, bins,
machinery, or other trade fixtures, in, on or about the leased premises,
provided that Lessee complies with all applicable governmental laws, ordinances,
and regulations regarding such fixtures. Lessee has the right to remove all
trade fixtures at the termination of this lease, provided Lessee is not in
default under the terms of the and that the fixtures can be removed without
structural damage to the building.
ARTICLE 8. MECHANIC'S LIEN
8.01. Lessee will not permit any mechanic's lien or liens to be placed upon the
leased premises or improvements on the premises.
ARTICLE 9. INSURANCE AND INDEMNITY
PROPERTY INSURANCE
9.01. Lessee shall, at its own expense, during the term of the lease, keep all
buildings and improvements on the leased premises insured against loss or damage
by fire with extended coverage, 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 of the buildings and improvements. Such policy or policies of
insurance shall name both Lessor and Lessee as named insured. The policy shall
provide that any proceeds for loss or damage to buildings or to improvements
shall be payable solely to Lessor, which such Lessor shall use for repair and
restoration purposes.
Lessee shall procure tenant insurance to cover all of the contents of
the building and premises, against loss by fire, theft and all other extended
coverage.
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LIABILITY INSURANCE
9.02. Lessee, at its own expense, shall provide and maintain in force during the
term of this lease, liability insurance in the amount of $1,000,000, covering
Lessor/Lessee, for any liability for property damage or personal injury arising
as a result of Lessee's occupation or Lessor's ownership of the leased premises.
This insurance is to be carried by one or more insurance companies authorized to
transact business in the state of New Mexico and approved by Lessor.
REMEDY FOR FAILURE TO PROVIDE INSURANCE
9.03. Lessor/Lessee shall furnish Lessor/Lessee with certificates of all
respective insurance requires by this article.
HOLD-HARMLESS CLAUSE
9.04. Lessee agrees to indemnify and hold Lessor harmless against any and all
claims, demands, costs, and expenses, including reasonable attorney's fees for
the defense of such claims and demands arising from the conduct or management of
Lessee's business on the lease premises, or its use of the leased premises or
from any breach on the part of Lessee of any conditions of this Lease, or from
any negligence of Lessee, its agents, contractors, employees, subtenants,
concessionaires, or licensees in or about the lease premises. In case of any
action or proceeding brought against Lessor by reason of any such claim, Lessee
upon notice from Lessor agrees to defend the action or proceeding by counsel
acceptable to Lessor.
ARTICLE 10. ASSIGNMENT AND SUBLEASE
ASSIGNMENT AND SUBLETTING BY LESSEE
10.01. Lessee may not sublet, assign, encumber, or otherwise transfer this
lease, or any right or interest in this lease or in the leased premises or the
improvements on the leased premises, without written consent of Lessor. If
Lessee sublets, assigns, encumbers or otherwise transfers its rights or interest
in this lease or in the leased premises or the improvements on the leased
premises without the written consent of Lessor, Lessor may, at its option,
declare this lease terminated. In the event Lessor consents in writing to an
assignment, sublease, or transfer of all or any of the Lessee's rights under
this lease, the assignee or sublessee must assume all of the Lessee's
obligations under the lease, and Lessee shall remain liable for every obligation
under the lease. Lessor's consent under this section will not be arbitrarily or
unreasonably withheld.
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ASSIGNMENT OF LESSOR
10.02. Lessor may assign or transfer any or all of its interests under the terms
of this lease.
ARTICLE 11. MISCELLANEOUS
NOTICES AND ADDRESSES
11.01. All notices required under this lease must be given by certified or
registered mail, addressed to the proper party, at the following addresses:
BII, Lessor
X.X. Xxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
RTI, lessee
X.X. Xxx 0000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Each party may change the address to which notices are to be sent it by giving
the other party notice of the new address in the manner provided in this
section.
PARTIES BOUND
11.02. This agreement shall be binding upon, and inure to the benefit of, the
parties to the lease and their respective heirs, executors, administrators,
legal representatives, successors, and assigns when permitted by this agreement.
NEW MEXICO LAW TO APPLY
11.03. This agreement shall be construed under, and in accordance with, the laws
of the State of New Mexico, and all obligations of the parties created by this
lease are performable in Xxxx Xxx County, New Mexico.
LEGAL CONSTRUCTION
11.04. In case any one or more of the provisions contained in this lease
agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal, or enforceability in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
agreement, and this agreement shall be construed as if the invalid, illegal, or
unenforceable provision had never been included in this agreement.
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PRIOR AGREEMENTS SUPERSEDED
11.05. This agreement constitutes the sole and only agreement of the parties to
this agreement and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter of this agreement.
AMENDMENT
11.06. No amendment, modification, or alteration of the terms of this agreement
shall be binding unless it is in writing, dated subsequent to the date of this
agreement, and duly executed by the parties to this agreement.
RIGHTS AND REMEDIES CUMULATIVE
11.07. The rights and remedies provided by this lease agreement are cumulative,
and the use of any one right or remedy by either party shall not preclude or
waive that party's right to use any or all other remedies. The rights and
remedies provided in this lease are in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
ATTORNEY'S FEES AND COSTS
11.08. If, as a result of a breach of this agreement by either party, the other
party employs an attorney or attorneys to enforce its rights under this lease,
then the breaching or defaulting party agrees to pay the other party the
reasonable attorney's fees and costs incurred to enforce the lease.
FORCE MAJEURE
11.09. Neither Lessor nor Lessee 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, which shall mean acts of God, strikes, lockouts,
material or labor restrictions by any governmental authority, civil riot,
floods, and any other cause not reasonable within the control of Lessor or
Lessee and which by the exercise of due diligence Lessor or Lessee is unable,
wholly or in part, to prevent or overcome.
TIME OF ESSENCE
11.10. Time is of the essence of this agreement.
12.01. In the event of foreclosure directly or indirectly by the U.S. Small
Business Administration (SBA) on BII, RTI has the right to break the lease at
its option without penalty. RTI must give SBA 60 days written notice and vacate
premises accordingly.
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The undersigned Lessor and Lessee execute this agreement on XXXXX 00,
0000, xx Xxxxxxx Xxxx, Xxxx Xxxxxx, Xxx Xxxxxx.
BII, Lessor
By: /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
RTI, lessee
By: /s/ Xxx Xxxxxxxx
-----------------------------
Xxx Xxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
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