Exhibit 10.7
XXXXXX XXXXXX REAL ESTATE & INSURANCE, INC.
000 XXXXX XXXXXX, X.X. -- P. X. XXXXXX X
XXXXXXXXXXX, XXX XXXXXX 00000
(000) 000-0000
Lease
This Indenture, made this 14th day of May, 2008 by and between Xxxxxx
Properties, LLC , hereinafter, whether singular or plural, masculine, feminine,
or neuter, designated as "Landlord," which expression shall include Landlord's
heirs, executors, administrators, assigns, and successors in interest, and
Profile Technologies, Inc., a Delaware Corporation, hereinafter, whether
singular or plural, masculine, feminine, or neuter, designated as "Tenant,"
which expression shall include all Tenants, jointly and severally, and shall
include Tenant's heirs, executors, administrators, assign, and successors in
interest, WITNESSETH:
1. DEMISE OF PREMISES. Landlord, for and in consideration of the covenants and
agreements herein contained to be kept and performed by Tenant, Tenant's
heirs, executors, administrators, assigns, and successors in interest, and
upon the terms and conditions herein contained, does hereby let, lease, and
demise to Tenant the following-described premises situate in Albuquerque,
in the County of Bernalillo, State of New Mexico, to-wit: Approximately 918
square feet of office space, 2,576 square feet of warehouse space, and
7,500 square feet of yard space, located at 000 Xx Xxxxxxx XX, Xxxxx X,
Xxxxxxxxxxx, XX, 00000. Landlord reserves the right to change the location
on the property of the yard space.
2. TERM OF LEASE. The term of this Lease shall be for a period of twelve and
one-half months (12 1/2 months) commencing on the 16th day of May, 2008,
and ending on the 30th day of May, 2009.
3. RENT. Tenant, for and in consideration of this Lease and the demise of the
said premises by Landlord to Tenant, hereby agrees and covenants with
Landlord to pay as rent and deposit for the said premises, without notice
or demand, the sum of Thirty-one thousand two hundred fifty and 00/100
($31,250.00) Dollars in the following manner, to-wit: Upon execution of
this Lease Tenant will pay $5,750.00 ; $2,000.00 representing lease deposit
to be held by Landlord during the term of this Lease to guarantee
performance of all covenants and conditions; said deposit will be refunded
in whole or in part depending on the condition of the premises and at the
end of the term or any extensions hereto and upon Tenants full performance
of all covenants and conditions contained herein; and the balance of
$3,750.00 representing advance payment of May, 2008 rent and last month's
rent.
Commencing June 1, 2008 and on the first day of each succeeding month up to
and including April, 2008 Tenant will pay $2,500.00 as advance monthly
rent.
NNN Charges: This is a triple net lease. Tenant's share of NNN costs is
43.7%. For the first twelve and one-half months of this Lease, Tenant shall
pay $350.00 per month as its pro-rata share on NNN expenses. Landlord will
provide Tenant with an annual report of actual expenses, at which time a
reconciled invoice will be presented to Tenant.
Late fee: A late fee of 10% per month will be charged for any unpaid rent
past 10 days from due date.
All of the rent shall be paid by Tenant to Landlord or Landlord's order in
lawful money of the United States at Xxxxxx Properties, LLC, 000 Xx Xxxxxxx
XX, Xxxxx X, Xxxxxxxxxxx, 00000, or at such other place as Landlord may
designate from time to time for this purpose.
4. USE OF PREMISES. Tenant, for and in consideration of this lease and the
demise of the said premises by Landlord to Tenant, hereby agrees and
covenants with Landlord to use and occupy the said premises for the purpose
of office, warehouse and pipe testing and related activities and for no
other purpose without first obtaining the written consent of Landlord
therefore; to conform and comply with all applicable municipal, state, and
federal ordinances, laws, rules, and regulations in using the said
premises; and not to use or suffer to be used the said premises in any
manner in contravention of any applicable municipal, state, or federal
ordinances, laws, rule, or regulation, or so as to create any nuisance, or
so as to tend to increase the existing rate of fire insurance for the said
demised premises.
5. CONDITION OF PREMISES AND REPAIRS. Tenant, for and in consideration of the
Lease and the demise of the said premises, hereby agrees and covenants with
Landlord that Tenant has examined the said premises prior to the execution
hereof, knows the condition thereof, and acknowledges that Tenant has
received the said demised premises in good order and condition, and that no
representation or warranty as to the condition or repair of the said
premises has been made by Landlord, and, at the expiration of the term of
this Lease, or any renewal or extension thereof, Tenant will yield up
peaceably the said premises to Landlord in as good order and condition as
when the same were entered upon by Tenant, loss by fire or inevitable
accident, damage by the elements, and reasonable use and wear excepted;
that Tenant will keep the said premises in good order and repair during the
term of this Lease, or any extension or renewal thereof, at Tenant's own
expense and will repair and replace promptly any and all damage, including
damage to glass, that may occur from time to time; that Tenant hereby
waives any and all right to have such repairs or replacements made by
Landlord or at Landlord's expense; and that, if Tenant fails to make such
repairs and replacements promptly, or, if such repairs and replacements
have not been made within fifteen (15) days after the occurrence of damage,
Landlord may, at Landlord's option, make such repairs and replacements, and
Tenant hereby agrees and covenants to repay the cost thereof to Landlord on
demand.
6. LIABILITY OF LANDLORD. Tenant, for and in consideration of this Lease and
the demise of the said premises, hereby agrees and covenants with Landlord
that Landlord shall not be liable for any damage to persons or property
arising from any cause whatsoever, which shall occur in any manner in or
about the said premises, and Tenant hereby agrees to indemnify and save
harm-less Landlord from any and all claims and liability for damage to
persons or property arising from any cause due to tenant or tenant's
employees and business invitees intentional or negligent acts, which shall
occur in any manner in or about the said premises. Further, Tenant hereby
agrees and covenants with Landlord that Landlord shall not be liable for
any damage to the said demised premises, or to any part thereof, or to any
property or effects therein or thereon, caused by leakage from the roof of
said premises or by bursting, leakage, or overflowing of any waste pipes,
water pipes, tanks, drains, or stationary washstands or by reason of any
damage whatsoever caused by water from any source whatsoever, and Tenant
hereby agrees and covenants to indemnify and save harmless Landlord from
any and all claims and liability for any damage to the said demised
premises, or to any part thereof, or to any personal property or effects of
theTenant therein or thereon. Furthermore it is agreed that the Landlord
shall be liable for their own intentional acts and acts of negligence.
7. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. Tenant, for and in consideration
of the Lease and the demise of the said premises, hereby agrees and
covenants with Landlord, that Tenant shall not make, or suffer or permit to
be made, any alterations, additions, or improvements whatsoever in or about
the said demised premises without first obtaining the written consent of
Landlord therefor; provided, however, that such consent, if given, shall be
subject to the express condition that any and all alterations, additions,
and improvements shall be done at Tenant's own expense and in accordance
and compliance with all applicable municipal, state and federal ordinances,
laws, rules, and regulations, and that Tenant hereby covenants and agrees
with Landlord that in doing and performing such work Tenant shall do and
perform the same at Tenant's own expense, in conformity and compliance with
all applicable municipal, state, and federal ordinances, laws, rules, and
regulations and that no liens of mechanics, materialmen, labors,
architects, artisans contractors, sub-contractors, or any other lien of any
kind whatsoever shall be created against or imposed upon the said demised
premises, or any part thereof, and that Tenant shall indemnify and save
harmless Landlord from any and all liability and claims for damages of
every kind and nature which might be made or judgments rendered against
Landlord or against said demised premises on account of or arising out of
such alterations, additions, or improvements.
8. OWNERSHIP OF ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. Tenant, for and in
consideration of this Lease and the demise of the said premises, hereby
agrees and covenants with Landlord that any and all alterations, additions,
and improvements, except shelving and moveable furniture, made at Tenant's
own expense after having first obtained the written consent of Landlord
therefore, in accordance with the provisions contained in Paragraph VII,
hereof, whether attached to the walls, floors, premises, or not, shall
immediately vest in Landlord and all such alterations, additions, and
improvements shall remain on the said premises and shall not be removed by
Tenant at the termination of this Lease. The shelving and/or moveable
furniture, which Tenant is privileged to remove, must be removed by Tenant
at Tenant's expense on or before the termination of the Lease. It is agreed
that Tenant's pipe test equipment and materials shall not be considered as
alterations, additions, or improvements, so long as same are not
permanently affixed to the premises, but they shall be removed at Tenant's
expense upon expiration after any extension(s) or termination of the Lease.
9. ASSIGNMENT AND SUBLETTING. Tenant, for and in consideration of this Lease
and the demise of the said premises, hereby agrees and covenants with
Landlord that neither Tenant nor Tenant's heirs, executors, administrators,
assigns, or successors in interest shall assign this Lease or sublet the
said demised premises, in whole or in part, without first obtaining the
written consent of Landlord therefor; that no assignment of this Lease or
any subletting of the said demised premises, in whole or in part, shall be
valid, except by and with the written consent of Landlord first obtained;
that the consent of Landlord to any such assignment or subletting shall not
operate to discharge Tenant, or any one of them, or Tenant's heirs,
executors, administrators, assigns, or successors in interest from their
liability upon the agreements and covenants of this Lease, and Tenant,
Tenant's heirs, executors, administrators, assigns, and successors in
interest shall remain liable for the full and complete performance of all
of the terms, conditions, covenants, and agreements herein contained; that
any consent of Landlord to any such assignment or subletting shall not
operate as a consent to further assignment or subletting or as a waiver of
this covenant and agreement against assignment and subletting; and that
following any such assignment or subletting, the assignee and/or sublet
shall be bound by all of the terms, conditions, covenants, and agreements
herein contained including the covenant against assignment and subletting.
10. UTILITY AND OTHER CHARGES. Tenant, for and in consideration of this Lease
and the demise of the said premises, hereby agrees and covenants with
Landlord to pay promptly all utility and other charges of whatsoever kind
and nature including charges for telephone, and other services, which may
be incurred in connection with Tenant's use of the said premises, and to
save harmless Landlord therefrom.
11. LANDLORD'S RIGHT OF ENTRY AND TO MAKE ALTERATIONS, ADDITIONS, AND
IMPROVEMENTS. Tenant, for and in consideration of the Lease and the demise
of the said premises, hereby agrees and covenants with Landlord that
Landlord, Landlord's heirs, executors, administrators, assigns, agents,
attorneys, and successors in interest shall have the right at any time to
enter upon the said premises to inspect the same and to make any and all
improvements, alterations, and additions of any kind whatsoever upon the
said premises, providing such improvements, alterations, and additions are
reasonably necessary or convenient to the use to which the said premises
are being put at the time, but at no time shall Landlord be compelled or
required to make any improvements alterations, or additions.
12. TAXES, OTHER ASSESSMENTS, AND INSURANCE. Tenant and Landlord hereby
covenant and agree that all taxes and other assessments of whatsoever kind
that nature which have been or may be levied upon the said demised premises
and upon any alterations, additions, and improvements thereon shall be paid
by Landlord at the time when the same shall become due and payable, and
reimbursed by Tenant subject to Tenant's duty to reimburse its
proportionate share thereof as provided in paragraph 3 above, and that all
taxes and other assessments of whatsoever kind and nature which have been
or may be levied upon the personal property of the Tenant located upon the
said demised premises shall be paid by Tenant at the time when the same
shall become due and payable. Tenant, for and in consideration of this
Lease and the demise of the said premises, hereby agrees and covenants with
Landlord to carry and maintain in full force and effect during the term of
this Lease and any extension or renewal thereof at Tenant's expense public
liability insurance covering bodily injury and property damage liability,
in a form and with an insurance company acceptable to Landlord, with single
limit coverage of not less than $1,000,000.00, for the benefit of both
Landlord and Tenant as protection against all liability claims arising from
the premises, causing Landlord to be named as an additional-named insured
on such policy of insurance, and delivering a copy thereof to Landlord.
Fire and extended coverage insurance upon all buildings, residences,
alterations, additions, and improvements upon the said premises shall be
provided for by Landlord, and reimbursed by Tenant, and fire and extended
coverage insurance upon all of the contents and other personal property
situated upon the said premises shall be provided for by Tenant. Landlord
currently estimates Tenant's portion of property taxes and building
insurance at $1.11 per square foot.
13. HOLDING OVER. Tenant, for and in consideration of this Lease and the demise
of the said premises, agrees and covenants with Landlord that no holding
over by Tenant after the expiration of this Lease, or any renewal or
extension thereof, whether with or without the consent of Landlord, shall
operate to extend or renew this Lease, and that any such holding over shall
be construed as a tenancy from month to month at 125% of the monthly rental
which shall have been payable at the time immediately prior to when such
holding over shall have commenced and such tenancy shall be subject to all
the terms, conditions, covenants, and agreements of this Lease.
14. BANKRUPTCY AND CONDEMNATION. Tenant, for and in consideration of the Lease
and the demise of the said premises, hereby agrees and covenants with
Landlord that should Tenant, or any one of them, make an assignment for the
benefit of creditors or should be adjudged a bankrupt, either by voluntary
or involuntary proceedings, or if otherwise a receiver should be appointed
by any court of competent jurisdiction for Tenant because of any
insolvency, the occurrence of any such event shall be deemed a breach of
this Lease, and, in such event, Landlord shall have the option to forthwith
terminate this Lease and the re-enter the said demised premises and take
possession thereof, whereupon Tenant shall quit and surrender peaceably the
said demised premises to Landlord. In no event shall this Lease be deemed
an asset of Tenant, or any one of them, after adjudication in bankruptcy,
the appointment of a receiver, or the assignment for the benefit of
creditors. Further, Tenant hereby covenants and agrees with Landlord that
in the event the said demised premises, or any part thereof, are taken,
damaged consequentially or otherwise, or condemned by public authority,
this Lease shall terminate, as to the part so taken, as of the date title
shall vest in the said public authority, and the rental reserved shall be
adjusted so that Tenant shall be required to pay for the remainder of the
term that portion of the rent reserved in the proportion that the said
demised premises remaining after the taking, damaging, or condemnation
bears to the whole of the said demised premises before the taking,
damaging, or condemnation. All damages and payments resulting from the said
taking, damaging, or condemnation of the said demised premises shall accrue
to and belong to Landlord, and Tenant shall have no right to any part
thereof.
15. DESTRUCTION. Tenant, for and in consideration of the Lease and the demise
of the said premises, agrees and covenants with Landlord that if at any
time during the term of this Lease, or any extension or renewal thereof,
the said demised premises shall be totally or partially destroyed by fire,
earthquake, or other calamity, then Landlord shall have the option to
rebuild or repair the same, provided such rebuilding or repairing shall be
commended within the period of thirty days after notice in writing to
Landlord of such destruction or damage, and to rebuild or repair the same
in as good condition as they were immediately prior to such calamity. In
such case, a just and proportionate part of the rental herein specified
shall be abated until such demised premises shall have been rebuilt and
repaired. In case, however, Landlord shall within thirty days following
notice in writing to him of such damage elect not to rebuild or repair said
premises, Landlord shall so notify Tenant and, thereupon, this Lease shall
terminate and become null and void.
16. SIGNS. Landlord and Tenant covenant and agree that Tenant may at Tenant's
own expense erect and maintain a sign or signs to carry out the purpose for
which Tenant is leasing the said demised premises provided, however, the
location, type and design of all exterior signs shall be first approved in
writing by Landlord. Upon the expiration of this Lease, or any renewal or
extension thereof, Tenant shall remove such sign or signs, and shall repair
any damage to the premises caused thereby at Tenant's sole expense.
Further, at any time within thirty days prior to the termination of this
Lease, or any renewal or extension thereof, Landlord shall have the right
to place upon any part of said demised premises any "For Rent" or "For
Lease" signs that Landlord may select.
17. TERMINATION AND REMEDIES. It is understood and agreed between Landlord and
Tenant that if the rent specified above, or any part thereof, shall be in
arrears or unpaid on the day of payment, then Landlord will give Tenant
five (5) days written notice to cure such default.
It is understood and agreed between Landlord and Tenant that if
default shall be made in any of the covenants or agreements contained in
this Lease then Landlord will give Tenant fifteen (15) days written notice
to cure such default.
If Tenant shall remain in possession of the premises after the above
required notice period it shall be lawful for the Landlord to declare the
said term ended and re-enter the premises to expel, remove, or put out the
Tenant; to repossess and enjoy the same premises again as in its first and
former state; and to seize for any rent that may be due any property
belonging to Tenant. It is the intent of the parties hereto to recognize in
Landlord a valid first lien as provided by the laws of the State of New
Mexico, upon any goods, chattels, and other property belonging to Tenant
and located on the premises as security for the payment of rent and
fulfillment of the faithful performance of the agreements and covenants in
this Lease.
If at any time the term shall be declared ended at such election of
Landlord, Tenant agrees to surrender and deliver the premises peaceably to
the Landlord. If Tenant shall remain in possession of the premises after
the required notice period specified above, Tenant shall be deemed guilty
of a forcible entry and detainer of the premises under the laws of the
State of New Mexico and shall be subject to eviction and removal under due
process of law.
It is understood and agreed between Landlord and Tenant that at any
time after such termination the Landlord may re-lease the premises or any
part thereof, for such term and on such conditions as the Landlord, in his
sole discretion, may determine, and may collect and receive the rent
thereafter. In the event Landlord re-leases the premises, it is understood
and agreed that the term may be greater or lesser than the period which
constituted the term of this Lease, and the conditions may include free
rent or other concessions which may be reasonably required to induce
another party to lease the premises.
In the event of any such termination, whether or not the premises have
been re-leased, the total remaining balance of the rent which would be due
and payable for the remainder of the term of this Lease, less the net
proceeds of any re-leasing effected by the Landlord shall become due and
payable as liquidated damages of Tenant's default. The net proceeds shall
be calculated as the gross dollar amount of the new lease less any expenses
Landlord incurred in re-leasing the premises including but not limited to
all repossession costs, brokerage commissions, legal and attorney fees,
alteration costs and expense of preparation for such re-leasing.
It is understood and agreed that Tenant will pay all costs, reasonable
attorney's fees and expenses incurred by Landlord in enforcing the
covenants of this Lease. If a suit is brought by any party to this Lease to
enforce the covenants and terms of this Lease, the prevailing party shall
be entitled to reasonable attorney fees and costs to be assessed by the
court.
18. FAILURE TO TERMINATE. Tenant, for and in consideration of this Lease and
the demise of the said premises, agrees and covenants, with Landlord that
failure, neglect, or omission of Landlord to terminate this Lease for any
one or more breaches of any of the covenants hereof, shall not be deemed a
consent by Landlord of such breach and shall not stop, bar, or prevent
Landlord from thereafter terminating this Lease, either for such violation,
or for prior or subsequent violation of any covenant hereof.
19. BINDING ON HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGNS, AND SUCCESSORS IN
INTEREST. It is covenanted and agreed by and between the parties hereto
that the covenants and agreements herein contained shall extend to and be
binding upon the heirs, executors, administrators, assigns, and successors
in interest of the parties to this Lease.
20. THIS LEASE EMBODIES ALL AGREEMENTS BETWEEN THE PARTIES. It is covenanted
and agreed by and between the parties hereto that this lease incorporates
all of the agreements, covenants, and understandings between the parties
hereto concerning the subject matter hereof, and that all such covenants
agreements, and understandings have been merged into this written Lease. No
prior agreement or understanding, verbal or otherwise, of the parties or
their agents shall be valid or enforceable unless embodied in this Lease.
21. OPTION TO RENEW. Landlord hereby grants Tenant the option to renew this
Lease for twelve months under the same terms and conditions contained
herein excepting rental which shall increase at three percent per year.
Tenant agrees to notify Landlord in writing of its intent to exercise its
option to renew no later than ninety (90) days prior to the expiration of
this lease.
22. COMMISSION. Landlord for and in consideration of this Lease hereby agrees
that Xxxxxx Xxxxxx Real Estate & Insurance, Inc. are Brokers of Record and
as such are entitled to a six percent (6%) commission, plus applicable New
Mexico State Gross Receipts Tax, to be paid to said Xxxxxx Xxxxxx Real
Estate & Insurance, Inc. upon execution of this Lease and upon the date of
any renewals or extensions executed between the Landlord and Tenant. All
such payments shall be the sole responsibility of Landlord, and Tenant
shall not be liable for any portion thereof.
23. AMENDMENTS. It is covenanted and agreed by and between the parties hereto
that this Lease shall not be altered, changed, or amended except by
instrument in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
LANDLORD: TENANT:
------------------------------ --------------------------------
