New Mexico Commercial Lease Agreement
This
Commercial Lease Agreement ("Lease") is made and effective March 1, 2008, by
and
between Spectrum Development Co., LLC ("Landlord") and PrimeSource Mortgage,
Inc. ("Tenant").
Landlord
is the owner of land and improvements commonly known and numbered as
0000
X.
Xxxx Xx., Xxxxxxx, XX.
Landlord
desires to lease a portion of the Leased Premises to Tenant, and Tenant desires
to lease the agreed upon Leased Premises from Landlord for the term, at the
rental and upon the covenants, conditions and provisions herein set
forth.
THEREFORE,
in consideration of the mutual promises herein, contained and other good and
valuable consideration, it is agreed:
1.
Term.
A.
Landlord hereby leases the Leased Premises to Tenant, and Tenant hereby leases
the same from Landlord, for an "Initial Term" beginning March
1, 2008
ending
February
28, 2013.
Landlord shall use its best efforts to give Tenant possession as nearly as
possible at the beginning of the Lease term. If Landlord is unable to timely
provide the Leased Premises, rent shall xxxxx for the period of delay. Tenant
shall make no other claim against Landlord for any such delay.
B.
Tenant
may renew the Lease for an extended term with written approval from Landlord.
Said renewal will be taken under consideration within 90 days of the end of
the
lease term.
2.
Rental.
A.
Tenant
shall pay to Landlord during the Initial Term rental of $36,000.00 per
year,
payable in installments of $3,000.00
per
month. Each installment payment shall be due in advance on the first day of
each
calendar month during the lease term to Landlord at 0000 X. Xxxx Xx., Xxxxxxx,
XX or at such other place designated by written notice from Landlord or Tenant.
The rental payment amount for any partial calendar months included in the lease
term shall be prorated on a daily basis. The agreed upon rental amount will
escalate annually beginning March 1st
of each
year by 4%.
B.
Tenant
shall also pay to Landlord a "Security Deposit" in the amount of $0.00.
3.
Use
Notwithstanding
the forgoing, Tenant shall not use the Leased Premises for illegal activity
or
for the purposes of storing, manufacturing or selling any explosives, flammables
or other inherently dangerous substance, chemical, thing or device.
4.
Sublease
and Assignment.
Tenant
shall have the right without Landlord's consent, to assign this Lease to a
corporation with which Tenant may merge or consolidate, to any subsidiary of
Tenant, to any corporation under common control with Tenant, or to a purchaser
of substantially all of Tenant's assets. Except as set forth above, Tenant
shall
not sublease all or any part of the Leased Premises, or assign this Lease in
whole or in part without Landlord's consent, such consent not to be unreasonably
withheld or delayed.
5.
Repairs.
During
the Lease term, Tenant shall make, at Tenant's expense, all necessary repairs
to
the Leased Premises. Repairs shall include such items as routine repairs of
floors, walls, ceilings, and other parts of the Leased Premises damaged or
worn
through normal occupancy, except for major mechanical systems or the roof,
subject to the obligations of the parties otherwise set forth in this
Lease.
6.
Alterations
and Improvements.
Tenant,
at Tenant's expense, shall have the right following Landlord's consent to
remodel, redecorate, and make additions, improvements and replacements of and
to
all or any part of the Leased Premises from time to time as Tenant may deem
desirable, provided the same are made in a workmanlike manner and utilizing
good
quality materials. Tenant shall have the right to place and install personal
property, trade fixtures, equipment and other temporary installations in and
upon the Leased Premises, and fasten the same to the premises. All personal
property, equipment, machinery, trade fixtures and temporary installations,
whether acquired by Tenant at the commencement of the Lease term or placed
or
installed on the Leased Premises by Tenant thereafter, shall remain Tenant's
property free and clear of any claim by Landlord. Tenant shall have the right
to
remove the same at any time during the term of this Lease provided that all
damage to the Leased Premises caused by such removal shall be repaired by Tenant
at Tenant's expense.
7.
Property
Taxes.
Landlord
shall pay, prior to delinquency, all general real estate taxes and installments
of special assessments coming due during the Lease term on the Leased Premises,
and all personal property taxes with respect to Landlord's personal property,
if
any, on the Leased Premises. Tenant shall be responsible for paying all personal
property taxes with respect to Tenant's personal property at the Leased
Premises.
8.
Insurance.
A.
If the
Leased Premises or any other part of the Building is damaged by fire or other
casualty resulting from any act or negligence of Tenant or any of Tenant's
agents, employees or invitees, rent shall not be diminished or abated while
such
damages are under repair, and Tenant shall be responsible for the costs of
repair not covered by insurance.
B.
Landlord shall maintain fire and extended coverage insurance on the Building
and
the Leased Premises in such amounts as Landlord shall deem appropriate. Tenant
shall be responsible, at its expense, for fire and extended coverage insurance
on all of its personal property, including removable trade fixtures, located
in
the Leased Premises.
C.
Tenant
and Landlord shall, each at its own expense, maintain a policy or policies
of
comprehensive general liability insurance with respect to the respective
activities of each in the Building with the premiums thereon fully paid on
or
before due date, issued by and binding upon some insurance company approved
by
Landlord, such insurance to afford minimum protection of not less than
$1,000,000 combined single limit coverage of bodily injury, property damage
or
combination thereof. Landlord shall be listed as an additional insured on
Tenant's policy or policies of comprehensive general liability insurance, and
Tenant shall provide Landlord with current Certificates of Insurance evidencing
Tenant's compliance with this Paragraph. Tenant shall obtain the agreement
of
Tenant's insurers to notify Landlord that a policy is due to expire at least
(10) days prior to such expiration. Landlord shall not be required to maintain
insurance against thefts within the Leased Premises or the
Building.
9.
Utilities.
Tenant
shall pay all charges for water, sewer, gas, electricity, telephone and other
services and utilities used by Tenant on the Leased Premises during the term
of
this Lease unless otherwise expressly agreed in writing by Landlord. In the
event that any utility or service provided to the Leased Premises is not
separately metered, Landlord shall pay the amount due and separately invoice
Tenant for Tenant's pro rata share of the charges. Tenant shall pay such amounts
within fifteen (15) days of invoice. Tenant acknowledges that the Leased
Premises are designed to provide standard office use electrical facilities
and
standard office lighting. Tenant shall not use any equipment or devices that
utilizes excessive electrical energy or which may, in Landlord's reasonable
opinion, overload the wiring or interfere with electrical services to other
tenants.
10.
Signs.
Following
Landlord's consent, Tenant shall have the right to place on the Leased Premises,
at locations selected by Tenant, any signs which are permitted by applicable
zoning ordinances and private restrictions. Landlord may refuse consent to
any
proposed signage that is in Landlord's opinion too large, deceptive,
unattractive or otherwise inconsistent with or inappropriate to the Leased
Premises or use of any other tenant. Landlord shall assist and cooperate with
Tenant in obtaining any necessary permission from governmental authorities
or
adjoining owners and occupants for Tenant to place or construct the foregoing
signs. Tenant shall repair all damage to the Leased Premises resulting from
the
removal of signs installed by Tenant.
11.
Entry.
Landlord
shall have the right to enter upon the Leased Premises at reasonable hours
to
inspect the same, provided Landlord shall not thereby unreasonably interfere
with Tenant's business on the Leased Premises.
12.
Parking.
During
the term of this Lease, Tenant shall have the non-exclusive use in common with
Landlord, other tenants of the Building, their guests and invitees, of the
non-reserved common automobile parking areas, driveways, and footways, subject
to rules and regulations for the use thereof as prescribed from time to time
by
Landlord. Landlord reserves the right to designate parking areas within the
Building or in reasonable proximity thereto, for Tenant and Tenant's agents
and
employees. Tenant shall provide Landlord with a list of all license numbers
for
the cars owned by Tenant, its agents and employees. Separated structured
parking, if any, located about the Building is reserved for tenants of the
Building who rent such parking s paces. Tenant hereby leases from Landlord
10
spaces in such structural parking area, such spaces to be on a first come-first
served basis. In consideration of the leasing to Tenant of such spaces, Tenant
shall pay a monthly rental of $0.00 per space throughout the term of the Lease.
Such rental shall be due and payable each month without demand at the time
herein set for the payment of other monthly rentals, in addition to such other
rentals.
13.
Building
Rules.
Tenant
will comply with the rules of the Building adopted and altered by Landlord
from
time to time and will cause all of its agents, employees, invitees and visitors
to do so; all changes to such rules will be sent by Landlord to Tenant in
writing. The initial rules for the Building are attached hereto as Exhibit
"A"
and incorporated herein for all purposes.
14.
Damage
and Destruction.
Subject
to Section 8 A. above, if the Leased Premises or any part thereof or any
appurtenance thereto is so damaged by fire, casualty or structural defects
that
the same cannot be used for Tenant's purposes, then Tenant shall have the right
within ninety (90) days following damage to elect by notice to Landlord to
terminate this Lease as of the date of such damage. In the event of minor damage
to any part of the Leased Premises, and if such damage does not render the
Leased Premises unusable for Tenant's purposes, Landlord shall promptly repair
such damage at the cost of the Landlord. In making the repairs called for in
this paragraph, Landlord shall not be liable for any delays resulting from
strikes, governmental restrictions , inability to obtain necessary materials
or
labor or other matters which are beyond the reasonable control of Landlord.
Tenant shall be relieved from paying rent and other charges during any portion
of the Lease term that the Leased Premises are inoperable or unfit for
occupancy, or use, in whole or in part, for Tenant's purposes. Rentals and
other
charges paid in advance for any such periods shall be credited on the next
ensuing payments, if any, but if no further payments are to be made, any such
advance payments shall be refunded to Tenant. The provisions of this paragraph
extend not only to the matters aforesaid, but also to any occurrence which
is
beyond Tenant's reasonable control and which renders the Leased Premises, or
any
appurtenance thereto, inoperable or unfit for occupancy or use, in whole or
in
part, for Tenant's purposes.
15.
Default.
If
default shall at any time be made by Tenant in the payment of rent when due
to
Landlord as herein provided, and if said default shall continue for fifteen
(15)
days after written notice thereof shall have been given to Tenant by Landlord,
or if default shall be made in any of the other covenants or conditions to
be
kept, observed and performed by Tenant, and such default shall continue for
thirty (30) days after notice thereof in writing to Tenant by Landlord without
correction thereof then having been commenced and thereafter diligently
prosecuted, Landlord may declare the term of this Lease ended and terminated
by
giving Tenant written notice of such intention, and if possession of the Leased
Premises is not surrendered, Landlord may reenter said premises. Landlord shall
have, in addition to the remedy above provided, any other right or remedy
available to Landlord on account of any Tenant default, either in law or equity.
Landlord shall use reasonable efforts to mitigate its damages.
16.
Quiet
Possession.
Landlord
covenants and warrants that upon performance by Tenant of its obligations
hereunder, Landlord will keep and maintain Tenant in exclusive, quiet, peaceable
and undisturbed and uninterrupted possession of the Leased Premises during
the
term of this Lease.
17.
Condemnation.
If
any
legally, constituted authority condemns the Building or such part thereof which
shall make the Leased Premises unsuitable for leasing, this Lease shall cease
when the public authority takes possession, and Landlord and Tenant shall
account for rental as of that date. Such termination shall be without prejudice
to the rights of either party to recover compensation from the condemning
authority for any loss or damage caused by the condemnation. Neither party
shall
have any rights in or to any award made to the other by the condemning
authority.
18.
Subordination.
Tenant
accepts this Lease subject and subordinate to any mortgage, deed of trust or
other lien presently existing or hereafter arising upon the Leased Premises,
or
upon the Building and to any renewals, refinancing and extensions thereof,
but
Tenant agrees that any such mortgagee shall have the right at any time to
subordinate such mortgage, deed of trust or other lien to this Lease on such
terms and subject to such conditions as such mortgagee may deem appropriate
in
its discretion. Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage, deed of trust or other
lien
now existing or hereafter placed upon the Leased Premises of the Building,
and
Tenant agrees upon demand to execute such further instruments subordinating
this
Lease or attorning to the holder of any such liens as Landlord may request.
In
the event that Tenant should fail to execute any instrument of subordination
herein require d to be executed by Tenant promptly as requested, Tenant hereby
irrevocably constitutes Landlord as its attorney-in-fact to execute such
instrument in Tenant's name, place and stead, it being agreed that such power
is
one coupled with an interest. Tenant agrees that it will from time to time
upon
request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form 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 so modified), stating the dates to which rent
and
other charges payable under this Lease have been paid, stating that Landlord
is
not in default hereunder (or if Tenant alleges a default stating the nature
of
such alleged default) and further stating such other matters as Landlord shall
reasonably require.
19.
Security
Deposit.
The
Security Deposit shall be held by Landlord without liability for interest and
as
security for the performance by Tenant of Tenant's covenants and obligations
under this Lease, it being expressly understood that the Security Deposit shall
not be considered an advance payment of rental or a measure of Landlord's
damages in case of default by Tenant. Unless otherwise provided by mandatory
non-waivable law or regulation, Landlord may commingle the Security Deposit
with
Landlord' s other funds. Landlord may, from time to time, without prejudice
to
any other remedy, use the Security Deposit to the extent necessary to make
good
any arrearages of rent or to satisfy any other covenant or obligation of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant. If Landlord transfers
its
interest in the Premises during the term of this Lease, Landlord may assign
the
Security Deposit to the transferee and thereafter shall have no further
liability for the return of such Security Deposit.
20.
Notice.
Any
notice required or permitted under this Lease shall be deemed sufficiently
given
or served if sent by United States certified mail, return receipt requested,
addressed as follows:
If
to
Landlord to:
Spectrum
Development Co., LLC
0000
X. Xxxx Xx.
Xxxxxxx,
XX 00000
If
to
Tenant to:
PrimeSource
Mortgage, Inc.
0000
X. Xxxx Xx.
Xxxxxxx,
XX 00000
Landlord
and Tenant shall each have the right from time to time to change the place
notice is to be given under this paragraph by written notice thereof to the
other party.
21.
Waiver.
No
waiver
of any default of Landlord or Tenant hereunder shall be implied from any
omission to take any action on account of such default if such default persists
or is repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and that only for the time and to the
extent therein stated. One or more waivers by Landlord or Tenant shall not
be
construed as a waiver of a subsequent breach of the same covenant, term or
condition.
23.
Memorandum
of Lease.
The
parties hereto contemplate that this Lease should not and shall not be filed
for
record, but in lieu thereof, at the request of either party, Landlord and Tenant
shall execute a Memorandum of Lease to be recorded for the purpose of giving
record notice of the appropriate provisions of this Lease.
24.
Headings.
The
headings used in this Lease are for convenience of the parties only and shall
not be considered in interpreting the meaning of any provision of this
Lease.
25.
Successors.
The
provisions of this Lease shall extend to and be binding upon Landlord and Tenant
and their respective legal representatives, successors and assigns.
26.
Consent.
Landlord
shall not unreasonably withhold or delay its consent with respect to any matter
for which Landlord's consent is required or desirable under this
Lease.
27.
Performance.
If
there
is a default with respect to any of Landlord's covenants, warranties or
representations under this Lease, and if the default continues more than fifteen
(15) days after notice in writing from Tenant to Landlord specifying the
default, Tenant may, at its option and without affecting any other remedy
hereunder, cure such default and deduct the cost thereof from the next accruing
installment or installments of rent payable hereunder until Tenant shall have
been fully reimbursed for such expenditures, together with interest thereon
at a
rate equal to the lessor of twelve percent (12%) per annum or the then highest
lawful rate. If this Lease terminates prior to Tenant's receiving full
reimbursement, Landlord shall pay the unreimbursed balance plus accrued interest
to Tenant on demand.
28.
Compliance
with Law.
Tenant
shall comply with all laws, orders, ordinances and other public requirements
now
or hereafter pertaining to Tenant's use of the Leased Premises. Landlord shall
comply with all laws, orders, ordinances and other public requirements now
or
hereafter affecting the Leased Premises.
29.
Final
Agreement.
This
Agreement terminates and supersedes all prior understandings or agreements
on
the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
30.
Governing
Law.
This
Agreement shall be governed, construed and interpreted by, through and under
the
Laws of the State of New Mexico.
IN
WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
/s/
Xxxxxxx X.
Xxxxx
Spectrum
Development Co., LLC, Managing Member
/s/
Xxxxx X.
Xxxxx
PrimeSource
Mortgage, Inc.
