EXHIBIT 10.8
BUSINESS LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this 1st day of October, 2003 by and
between Spotswood Properties, LLC., hereinafter called "LANDLORD," and New
Frontier Energy, Inc, hereinafter called "TENANT."
WITNESSETH:
The LANDLORD does hereby lease to the TENANT and the TENANT does hereby take and
hire from the LANDLORD, certain commercial real property more particularly
located at 0000 X. Xxxxxxxxx Xx., Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as the "LEASED PREMISES") upon the following expressed terms and
conditions, to wit:.
1. Lease Term: The term of this lease shall commence on the 1st day of October,
2003, and shall continue for a period of twelve (12) months thereafter, expiring
on the 30th day of September, 2004.
2. Payments: (a) Lease Payments: The TENANT agrees to pay the LANDLORD as rent
for the LEASED PREMISES during the primary term of the lease subject to any
increases as hereinafter described the total sum of $18,000.00 per year, which
sum of money shall be payable in equal monthly installments of $1,500.00 in
advance on or before the first day of each month throughout the term of the
lease. If TENANT takes possession on a day other than the first day of the lease
term, TENANT shall pay, upon commencement date of the term, in addition to the
first monthly installment, the prorated rental on a per diem basis with respect
to the fractional month preceding the first full calendar month of this lease.
(b) Late Charges: LANDLORD may, at its election charge and collect a late charge
in the amount of Ten Percent (10%) of any monthly rental installment which is
delinquent ten (l0) days or more.
(c) No Excuse for Non Payment: No dispute between LANDLORD and TENANT as to
LANDLORD or TENANT obligations under this lease shall excuse the payment of any
sums herein described owing by TENANT to LANDLORD, or the faithful performance
of the other conditions of said lease by either party. TENANT waives and
disclaims any present or future right to withhold any payment of any form of
rent or other obligations due under this lease, or to set off against rent or
any other obligation of TENANT, any obligation of LANDLORD, however incurred.
TENANT agrees that it will not claim or assert any right to so withhold or set
off.
3. Use of Premises: The TENANT expressly covenants and agrees to use the LEASED
PREMISES as a General Business Office to conduct business with the General
Public and no other purpose whatsoever without the prior written consent of the
LANDLORD to such change in use of the LEASED PREMISES.
TENANT shall comply with all governmental laws, ordinances, including zoning
ordinances and regulations applicable to the use of the LEASED PREMISES. TENANT
shall promptly comply with all LANDLORD or governmental orders and directives
for the correction, prevention, and abatement of nuisances in or upon, or
connected with the LEASED PREMISES, all at TENANT'S sole expense. TENANT shall
not permit the LEASED PREMISES to be used in any way which would, in the opinion
of the LANDLORD, be hazardous or which would in any way increase the insurance
premium or render void the fire insurance on the LEASED PREMISES.
4. No Assignment or Subletting: This lease may not be assigned or the LEASED
PREMISES sublet during the term of this lease without the prior written consent
of the LANDLORD to such assignment or subletting. The TENANT shall not transfer
any ownership of TENANT without written consent of LANDLORD and will, at the
request of LANDLORD provide whatever documentation is necessary to establish
that TENANT is in compliance with this provision.
5. Taxes: The LANDLORD shall pay all real property taxes for the LEASED PREMISES
during the term of this lease, and the TENANT shall pay all personal property
taxes accruing during the term of this lease for personal property owned by the
TENANT and kept on the leased premises.
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6. Utilities: All utilities used on the LEASED PREMISES during the term of this
lease shall be paid for by the LANDLORD. Notwithstanding, to the extent that use
of the LEASED PREMISES by TENANT is of such a character as to subject the
LANDLORD to any extraordinary (more than standard) utility charges then TENANT
shall reimburse LANDLORD therefor. Standard utility charges to be determined
solely by the LANDLORD.
7. Insurance: (a) TENANT shall throughout the term of this Agreement and any
extensions thereto, at its sole cost and expense, provide and keep in force with
responsible insurance companies satisfactory to LANDLORD and to any mortgagee
under mortgage constituting a lien upon the leased premises, public liability
and property damage insurance. The liability limits of all said insurance shall
be $500,000 Single Liability and $1,000,000 Umbrella Liability, protecting
LANDLORD and any such mortgagee, as well as TENANT against liability to any
employees or servants of TENANT or to any other person whomsoever arising out of
or in connection with TENANT'S use of the leased premises or the condition of
the LEASED PREMISES. TENANT is to furnish LANDLORD with a Certificate of
Insurance or other acceptable binder at time of commencement of the lease, or
LANDLORD may provide same and charge TENANT on its normal monthly billing.
(b) TENANT shall indemnify and hold harmless LANDLORD from all loss, damage,
liability or expense, including attorneys' fees, resulting from any injury to
any person or any loss of or damage to any property caused by or resulting from
any act, omission or negligence of TENANT or any officer, employee, agent,
contractor, invitee or visitor of TENANT in or about the premises of the
building, or resulting directly or indirectly from any act or neglect of any
other TENANT in the leased premises. The foregoing provision shall not be
construed to make TENANT responsible for loss, damage, liability or expense
resulting from injuries to third parties caused by any act, omission or
negligence of LANDLORD or of any officer, employee, agent, contractor, invitee
or visitor of LANDLORD. LANDLORD shall not be liable for any loss or damage to
person or property sustained by TENANT, or other persons, which may be caused by
the building or premises, or any appurtenances thereto, being out of repair; or
by the bursting or leakage of any water, gas, sewer or steam pipe, or by theft,
or by any act of neglect of TENANT, or of any other person, or by any other
cause whatsoever, unless caused by the gross neglect of the LANDLORD. In case of
any action or proceeding brought against LANDLORD by reason of any such claim,
upon notice to LANDLORD, TENANT covenants to defend such action or proceeding
with counsel, reasonably satisfactory to LANDLORD.
(c) All personal property of any kind or description whatsoever in the LEASED
PREMISES shall be at the TENANT'S sole risk, and the LANDLORD shall not be held
liable for any damage done to or loss of such personal property or to the
business of the TENANT.
8. Maintenance and Repairs: The LANDLORD shall be responsible for the exterior
maintenance of the LEASED PREMISES during the term of this lease, and the
maintenance of any parking lot facility contiguous thereto which is used in
conjunction with the LEASED PREMISES. Further, all replacement or major repairs
to the plumbing, heating, or electrical systems on the LEASED PREMISES, which
are not necessitated by the negligence of the TENANT, shall be paid by the
LANDLORD. LANDLORD shall be responsible for janitorial work including the LEASED
PREMISES.
TENANT will at its own cost and expense keep in good repair and condition the
interior of the LEASED PREMISES. LANDLORD and LANDLORD'S agents and
representatives shall have the right to enter and inspect the LEASED PREMISES at
any time during reasonable business hours, for the purpose of assessing the
condition of the LEASED PREMISES or in order to make such repairs, additions or
alterations as may be required to be made by TENANT under the terms of this
lease. At the termination of this lease, TENANT shall deliver up the LEASED
PREMISES with all improvements located thereon, in good repair and condition,
ordinary wear and tear excepted. The taking of possession of the LEASED PREMISES
by the TENANT shall be conclusive evidence as against the TENANT that said
premises were in good and satisfactory condition when possession of same was
taken.
9. Communications: (a) The TENANT shall be responsible for the cost of
integrating into Qwest access through the suites telephone system.
(b) The TENANT shall be responsible for long distance charges incurred.
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(c) Any additional telephone sets and multiple lines are additional charges to
the TENANT.
(d) Telephone lines, equipment reprogramming and installation must be obtained
through the LANDLORD and paid by TENANT.
(e) LANDLORD'S communication equipment will be maintained by LANDLORD, except
for repairs necessitated by TENANT'S negligence.
10. Inspection: The LANDLORD may enter and inspect the LEASED PREMISES at all
reasonable times during the term hereof.
11. Tenant Improvements: TENANT shall not make any alterations, additions or
improvements to the LEASED PREMISES without prior written consent of LANDLORD.
Any such alterations, additions or improvements shall be at the TENANT'S cost
and expense. TENANT shall promptly pay the costs of all work performed and shall
indemnify and hold harmless the LANDLORD against liens, costs, damages and
expenses incurred in connection therewith including any attorney fees incurred
by LANDLORD, and if LANDLORD shall be joined in any action or proceeding
involving such work.
All improvements placed upon the LEASED PREMISES of a permanent nature and
fixtures, by the TENANT shall be and become the property of the LANDLORD at the
expiration of this lease, and the LANDLORD shall be under no obligation to
reimburse the TENANT for any sums of money so expended in making permanent
improvements on the LEASED PREMISES; provided, however, that at the expiration
of the term of this lease the TENANT shall be entitled to remove the following
items installed, or to be installed on the premises by the TENANT, and the
provision of this paragraph shall not be construed to prevent the removal of
said items, to wit there are none.
TENANT shall permit and facilitate LANDLORD'S posting of notices of
non-responsibility in and about the LEASED PREMISES, pertaining to any work by,
through, or under TENANT. TENANT shall exercise its best efforts to see that
such notices remain posted in any and all locations, designated by LANDLORD
throughout the time in which the work is being done.
12. Destruction of LEASED PREMISES.: In the event improvements on the LEASED
PREMISES are partially damaged by any casualty which is covered under an
insurance policy required to be maintained pursuant to the provisions of this
lease, then LANDLORD shall repair such damage as soon as reasonably possible
from insurance proceeds, in which event this lease shall continue in full force
and effect. TENANT shall have no claim against LANDLORD for any damage suffered
by reason of such damage, destruction, repair or restoration and there shall be
an abatement of rent only for the time period and for the actual space rendered
unusable during such repairs. If the LEASED PREMISES are totally destroyed
during the term of this lease from any cause whether or not covered by
insurance, this lease may automatically terminate as of the date of such total
destruction, at the option of the LANDLORD or the TENANT.
13. Default: The TENANT promises and agrees that if default be made in the
payment of rents or in the performance of any other conditions of this lease, or
if TENANT in its use of the premises violates any city ordinances, State or
Federal Laws or if any TENANT, or any Guarantor hereof, files any petition under
the bankruptcy or insolvency laws of the United States, or of any other
jurisdiction, or makes an assignment for the benefit of creditors, or makes
application for appointment of a trustee or receiver regarding any of TENANT'S
property that this lease may be forthwith terminated at the election of the
LANDLORD, subject to the prior written notice requirements hereof, and that the
TENANT will, subject to the grace periods hereinafter set forth, surrender and
deliver up possession of the LEASED PREMISES to the LANDLORD upon receiving
written notice from the LANDLORD of the breach of conditions of this lease and
the election of the LANDLORD to so terminate this lease. In the event of such
default by the TENANT, then the LANDLORD, besides other rights or remedies he
may have, shall have the immediate right of re-entry. Should the LANDLORD elect
to re-enter, as herein provided, or should he take possession pursuant to legal
proceedings or pursuant to any notice provided by law, he may either terminate
this lease, or he may, from time to time, without terminating this lease, re-let
or re-lease the LEASED PREMISES or any part thereof for such amount of rental
and upon such terms and conditions as the LANDLORD, in his sole discretion and
judgment, may deem advisable, and he may make such alterations, improvements and
repairs to the LEASED PREMISES as he may deem advisable. No such re-letting or
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re-leasing of the LEASED PREMISES by the LANDLORD, under the circumstances set
forth in this paragraph, shall be construed as an election on the LANDLORD'S
part to terminate or cancel this lease, unless a written notice of such
termination or cancellation is mailed by the LANDLORD to the TENANT at the
address set out herein for notices, nor shall such re-letting or re-leasing
relieve the TENANT from liability to the LANDLORD for any and all damages, of
whatsoever type or nature, which the LANDLORD may have or will suffer or incur
as a result of the TENANT'S breach of any of the terms, covenants, provisions
and conditions herein contained. Notwithstanding any such re-letting or
re-leasing without termination of this lease by the LANDLORD, the LANDLORD may
at any time thereafter elect to terminate the lease for such previous breach of
the TENANT. In the event LANDLORD is required to retain an attorney to enforce
any provision of this lease, then LANDLORD shall be entitled to recover from
TENANT its actual attorney's fees reasonably incurred and its court costs.
In the event default by TENANT in the payment of rent occurs under the terms of
this lease, LANDLORD shall provide TENANT with three (3) days written notice of
such default. In the event TENANT fails to cure such default within three (3)
days following receipt of such notice, then LANDLORD may proceed with the
remedies as above specified. If default by the TENANT be for reasons other than
non-payment of rent, then LANDLORD shall provide TENANT with ten (l0) days prior
written notice to cure such default, and failing such cure by TENANT, LANDLORD
shall be entitled to those remedies set forth under Paragraph 13 hereof.
Acceleration of rent. Following default by TENANT, LANDLORD may demand, and in
such case, TENANT shall immediately pay in a single accelerated payment, the
entire amount of lease payments that would become due and owing to LANDLORD over
the remaining portion of the lease term. No discount for early payment shall
occur by reason of the acceleration. If TENANT shall make payment of such
accelerated rent at any time prior to LANDLORD'S termination of TENANT'S right
to possession of the premises, then TENANT shall be entitled to remain in
possession of the premises for the remainder of the term of this lease, so long
as no further default shall occur, but upon the occurrence of a further default,
LANDLORD shall be entitled to recover possession of the premises without any
rebate of accelerated rent.
TENANT'S Property. Any property of TENANT remaining in the LEASED PREMISES at
any time after LANDLORD recovers possession of the LEASED PREMISES, shall be
deemed abandoned, and LANDLORD shall have no responsibility or liability
whatsoever for any of the same. Notwithstanding the foregoing, LANDLORD may
store any of the property in any public or private warehouse, and TENANT shall
pay to LANDLORD, promptly upon demand, all costs incurred in connection with
such property, including the costs of moving and storage, court costs and
attorney's fees. LANDLORD may, at its option, without notice, sell any such
personal property at any public or private sale, with or without legal process,
for such prices as LANDLORD may obtain, and LANDLORD shall apply the proceeds of
such sale, first, to the costs incurred in connection with such property, and
then to any amounts due under the lease from TENANT to LANDLORD, and the
surplus, if any to TENANT.
Remedies Not Exclusive. Except to the extent prohibited by law, no exercise of
any remedy provided in this lease, or in any statute or law, shall preclude the
simultaneous or subsequent exercise of any other remedy provided in this lease,
or in any statute or law. Notwithstanding the possible availability of legal
remedies, LANDLORD may obtain specific performance, mandatory or prohibitory
injunctive relief, or other equitable relief requiring TENANT to cure or refrain
from continuing or repeating any event of default or other breach of this lease.
14. Forfeiture of Advance Rental Deposit: In the event this lease is terminated
by reason of the default of TENANT, it is understood and agreed that the
LANDLORD shall be entitled to retain advance rental deposit herein made, if any,
to partially compensate LANDLORD for damage suffered by reason of such default.
Nothing herein contained shall be construed, however, as precluding the LANDLORD
from recovering from TENANT any further or additional damages which he may have
suffered by reason of such default of the TENANT as provided in paragraph 13
hereof.
15. Surrender of Premises: Upon expiration of the term of this lease the TENANT
agrees to surrender and deliver up possession of the LEASED PREMISES with all
improvements located thereon to the LANDLORD in as good condition and repair as
at the time of possession, ordinary wear and tear excepted.
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16. Holding Over: Should the TENANT continue in possession of the LEASED
PREMISES after the expiration of this lease, without a written extension or
renewal hereof, such possession shall be on a month-to-month basis only and then
at a monthly rate two times the rate herein specified.
17. No Waiver: The failure of LANDLORD to insist, in any one or more instances,
upon a strict performance of any of the obligations, covenants or agreements
herein contained, or the failure of LANDLORD in any one or more instances to
exercise any option, privilege or right herein contained, shall in no way be
construed to constitute a waiver, relinquishment or release of such obligations,
covenants or agreements, and no forbearance by the LANDLORD of any default
hereunder shall in any manner be construed as constituting a waiver of such
default.
18. Insolvency Proceeding: If the TENANT shall be declared insolvent or
bankrupt, or if any assignment of his property shall be made for the benefit of
his creditors or others, or the TENANT'S leasehold interest herein shall be
levied upon under execution, or taken by virtue of any writ of any Court of Law,
or if a Trustee in Bankruptcy or a receiver is appointed for the property of the
TENANT, then and upon the happening of any one of these events, the LANDLORD
may, at his option, take possession of the LEASED PREMISES without thereby
occasioning any forfeiture of the obligations of the TENANT previously accrued
under this lease.
19. Eminent Domain: In the event all or any part of the LEASED PREMISES shall be
taken by right of eminent domain, or in the event the LANDLORD makes a
conveyance of all or any part of the LEASED PREMISES in lieu of taking by right
of eminent domain, then this lease shall, at the option of the LANDLORD, cease
and terminate. In such event, the TENANT shall not be required to make any
further rental payments to the LANDLORD and the TENANT shall have the right to
remove from the LEASED PREMISES any and all furniture, machinery and fixtures
set forth in Paragraph 11 hereof. In such event of a taking of all or part of
the LEASED PREMISES by right of eminent domain or a conveyance in lieu of such
taking, the LANDLORD shall receive the entire award or price which the
condemning or taking governmental authority will pay for the LEASED PREMISES.
20. Subordination: This lease and all of the rights of TENANT hereunder are and
shall be subject and subordinate to any lien of any mortgage or Deed of Trust
and accompanying collateral assignments of lease or rents now or hereafter
placed on the LEASED PREMISES or any part thereof and to any and all renewals,
modifications, consolidations, replacements, extensions or substitutions of said
sale and/or mortgage.
TENANT agrees to execute any documents required to effectuate such subordination
or to make this lease subordinate to any lien or any mortgage, Deed of Trust or
ground lease and accompanying assignment of lease or rents, as the case may be,
within ten (10) days after such request has been made by LANDLORD.
21. Attornment: If a purchaser under a sale or the holder of the mortgage shall
succeed to the rights of the LANDLORD under this lease, whether through
possession or foreclosure action, or delivery of a new lease or deed, TENANT
upon the request of such successor landlord as TENANT'S LANDLORD under this
lease shall promptly execute and deliver any instrument that any such successor
landlord may request to further evidence such attornment. Upon such attornment,
this lease shall continue in full force and effect as, or as if it were, a
direct lease between the successor landlord and TENANT upon all of the terms,
conditions and covenants as are set forth in the lease.
22. Estoppel Certificates: Upon the request of either party, at any time, and
from time to time, LANDLORD and TENANT agree to execute and to deliver to the
other within ten (l0) days after such request a written instrument duly executed
certifying that this lease has not been modified and is in full force and
effect.
23. LANDLORD'S Lien: TENANT hereby grants to LANDLORD, a lien upon and a
security interest in all property now owned or hereafter acquired by TENANT,
which shall come in or be placed upon the LEASED PREMISES, to secure the payment
of rent and the performance of each and every obligation hereunder to be
performed by TENANT. Following any event of default, LANDLORD, without demand,
may take possession of and sell such property without legal process of any kind
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at public and private sale, upon giving such notices, if any, as may be required
by law. The proceeds of any such sale shall be applied, first, to the payment of
expenses thereof, second to the discharge of the unpaid rent or other liability
hereunder, and the balance, if any, shall be paid to TENANT. TENANT agrees to
execute and record any financing statements and other documents necessary to
perfect or record the lien herein granted.
24. Financial Statement: Upon request, TENANT shall furnish LANDLORD a current
financial statement of TENANT and guarantors.
25. Non-Compete: It is understood the Lessee shall in no way compete with the
services provided by Pointe West, Inc. as set forth in Exhibit "A" and "B"
attached. In the event TENANT breaches any provision of this paragraph, TENANT
shall be in default hereunder and TENANT shall be entitled to exercise any
rights or remedies as prescribed below, and in addition to such rights and
remedies, TENANT shall pay LANDLORD the sum of $300.00 per week as liquidated
damages for each such breach so long as such breach shall continue.
26. Employment of LANDLORD'S Employees: TENANT recognizes that LANDLORD has
expended considerable time, effort and expense in training LANDLORD'S employees
so as to provide high quality service to TENANT, and that the hiring by TENANT
of LANDLORD'S present employees or any employee employed by LANDLORD within a
six (6) six month period prior to the offer by TENANT to such employee would
save TENANT, and cause LANDLORD to expend considerable time, effort and expense
in training new employees, the amount of which cannot be determined with
certainty. Should TENANT, during the original or extended term of the Agreement
or for twelve (12) months thereafter, offer employment to and subsequently
employee an employee of LANDLORD who is or was an employee of LANDLORD at any
time during the six (6) month period immediately preceding such offer of
employment by TENANT, TENANT shall pay to LANDLORD, as a procurement fee, and
not as a penalty, a sum equal to forty percent (40%) of the annual salary last
payable by LANDLORD to such employee or $5,000.00 (whichever is greater).
27. Interest, Costs and Attorney Fees: Any amounts due but unpaid under this
lease shall draw interest at the rate of eighteen percent (18%) per annum from
the date due until paid. If by reason of any default on the part of TENANT it
becomes necessary for LANDLORD to employ an attorney, then and in any such event
if LANDLORD prevails TENANT shall pay LANDLORD reasonable attorney fees and all
costs and expenses incurred by the LANDLORD in enforcing the terms of this
lease.
28. Brokerage Commissions: Each party warrants that it has had no dealings with
broker or agent in connection with the negotiation or execution of this lease
and each party agrees to indemnify and hold the other party harmless from any
and all costs, expenses or liability for commissions or other compensation or
charges claimed by or awarded to any broker or agent with respect to this lease
occasioned by the indemnifying party's contact with such broker or agent.
29. Relocation of TENANT: At LANDLORD'S written request; TENANT shall move from
the LEASED PREMISES to other similar premises in the Office Complex. In the
event of such move, the new location and LEASED PREMISES shall be substituted
for the Premises described above, but all other terms of the Lease shall remain
the same, with the exception that the Minimum Rent provided for herein shall be
abated during the period that TENANT is closed for business as a result of the
move to the new location; provided, however, that TENANT shall not be moved to
Premises of substantially less square footage than those herein located, and
that LANDLORD shall bear all actual cash expenses reasonably incurred by TENANT
in so moving. It is understood and agreed that LANDLORD will relocate TENANT
only for sound business practices and considerations.
30. Additional Provisions: (a) TENANT shall be provided with one set of two
access keys for the building and TENANT'S LEASED PREMISIS. Only LANDLORD may
make additional copies of keys for TENANT. If TENANT requires additional keys
such will be provided at a cost of $4.00 each.
(b) Suite replacement keys will be provided at a cost of $10.00 each. TENANT
will be responsible for expenses incurred due to keys lost for Main Entrance
Doors which facilitates complete re-keying of office complex and replacement
keys to all Tenants.
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31. Rules: It is agreed that the LANDLORD may adopt rules and regulations, a
copy of which shall be attached hereto as EXHIBIT "B" and made a part of this
lease by this reference. TENANT agrees that its employees and agents, or any
others permitted by the TENANT to occupy or enter such LEASED PREMISES will at
all time abide by said rules and regulations and that a default in the
performance and observance thereof shall operate the same as any other default
herein.
32. General Matters: (a) Singular/Plural: Wherever used herein, the singular
shall include the plural, and the use of any gender shall be applicable to all
genders.
(b) Binding Effect: This lease shall bind and benefit alike the heirs,
successors and assigns of the parties hereto.
(c) Colorado Law: This lease shall be governed by the laws of the State of
Colorado.
(d) Notices: All notices required hereunder or pertaining hereto shall be in
writing and shall be deemed delivered upon the earliest of personal service,
actual delivery at the address specified below, or three days following deposit
in the United States mail, certified mail, return receipt requested, with all
charges prepaid, addressed as follows:
TENANT: New Frontier Energy, Inc. XXXX TO: 0000 Xxxxxxxx Xx., Xxxxx 000
Tel: 000-000-0000 Xxxxxxxx Xxxxxxx, XX 00000
Fax: 000-000-0000
LANDLORD: Spotswood Properties LLC
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their seals on the day and year first above written.
"LANDLORD" "TENANT"
by: /s/ Xxxx Xxxxxx /s/ Xxx Xxxxx
---------------- -------------------
Xxxx Xxxxxx by: Xxx Xxxxx
TITLE: Chief Financial Officer
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