exv10w53



 





EXHIBIT 10.53



LEASE




between




Novint Technologies, Inc.

a DE corporation




as Tenant




and




The Shops at Westpark, LLC

A New Mexico limited liability company




as Landlord




dated May 29, 2007





 









 







LEASE




     This LEASE is made as of the 29th day of May, 2007, by and between The Shops at
Westpark, L C, a New Mexico limited liability company (“Landlord”), and Novint Technologies, Inc.,
a DE corporation (“Tenant”). The date this Lease is executed and delivered by both parties hereto
shall be referred to hereinafter as the “Execution Date.”



WITNESSETH:




     That for and in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



     1. Leased Property. Landlord demises and leases to Tenant and Tenant leases
and takes from Landlord all those certain “Premises” consisting of approximately 4323 square feet a
floor plan of which is depicted on Exhibit A attached hereto of the Building commonly known as
Suite B. The “Building” as that team is used herein shall mean the existing 11,312 square foot
building existing on the “Land” located at 4601 Paradise, Albuquerque, New Mexico as depicted on
Exhibit B attached hereto.



     2. Common Areas. Landlord grants Tenant a nonexclusive license for the Term to use the
parking areas, roadways, pedestrian sidewalks, driveways, landscape areas, public washrooms and all
other areas and facilities in the Building and on the Land provided and designated from time to
time by Landlord for the general nonexclusive use and convenience of Tenant and other tenants in
the Building (“Common Areas”).



     3. Lease Term. The Commencement Date shall be the later of September 1, 2007 or upon
substantial completion of the Work Improvements (as defined herein below in Section 8) and delivery
of the Premise by Landlord to Tenant. The Term of the Lease shall commence on the Commencement
Date, and, unless earlier terminated in accordance with applicable provisions, shall be for a
period of five (5) years; provided, however, that if the Commencement Date is other than the first
day of a calendar month, the Main Term shall expire on the last day of the calendar month which is
five (5) years after the Commencement Date. The term “Lease Year” shall mean each successive period
of twelve (12) consecutive calendar months, commencing on the Commencement Date. SEE PARAGRAPH 33



     4. Rent.



          (a) Tenant agrees to commence the payment of base rent (“Base
Rent”) for the Premises in the amounts and in the manner specified hereunder, commencing on the
Commencement Date. Tenant shall pay Base Rent in equal monthly installments, in advance on the
first day of each calendar month succeeding the Commencement Date throughout the Term, with
appropriate proration for any partial calendar month or Lease Year, to the address given for
Landlord in Paragraph 30 hereof, unless and until thirty (30) days after Landlord shall give Tenant
written notice of a




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change of address or of the party to whom such rents shall be payable. Base Rent shall be paid
pursuant to the following schedule:




	 	 	 	 	 
	Lease Years 1 through 5

	 	$19.95 per square foot
	 	$86,243.85 per year
	 

	 	 	 	$7,186.99 per month






     For the purposes of Rent computation the Premises consists of 4323 square feet.



          (b) Base Rent and all other sums and charges required to be paid by
Tenant under this Lease (such other sums and charges, “Additional Rent”) shall be deemed “rent” for
all purposes of this Lease and are herein sometimes referred to collectively as “Rent.”




          (c) Upon execution of this Lease, Tenant shall submit to Landlord the
sum of Fourteen Thousand Three Hundred Seventy-Three and 98/l00ths Dollars ($14,373.98), which
shall consist of the first months Base Rent ($7,186.99) and Security Deposit ($7,186.99).




          (d) If Tenant shall fail to pay any Rent within ten (10) days after the same
is due, Tenant shall be obligated to pay a late payment charge equal to the greater of $100 dollars
or ten percent (10%) of the Rent payment not paid when due to reimburse the Landlord its
administrative costs. In addition, any Rent which is not paid within ten days after the same is due
shall bear interest at the Default Rate from the date first due until paid.




     5. Operating Expenses.



          (a) In addition to Base Rent, beginning on the Commencement Date,
Tenant will pay Tenant’s share of the Building’s Operating Expenses. “Tenant’s Share” of the
Building’s Operating Expenses is equal to the Premises square footage divided by the Building’s
total square footage. Tenant’s Share shall initially be 38.22%.




          (b) The term “Operating Expenses” as used herein shall mean all
expenses, costs and disbursements (but not replacement of capital investment items nor specific
costs specially billed to and paid by specific tenants) of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the ownership and. operation
of the Building, including but not limited to, the following:





     (1) Wages and salaries of all employees engaged in operation
and maintenance, or security, of the Building and personnel who may provide traffic
control relating to ingress and egress to and from the Building to, the adjacent
public streets, to the extent such control is consistent with ordinary office and
retail operations. All taxes, insurance and benefits relating to employees
providing these services shall be included.



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     (2) All supplies and materials used in
operation and
maintenance of the Building.




     (3) Cost of all utilities for the Building including the cost of water and
power, heating, lighting, air conditioning and ventilating for the Building.




     (4) Cost of all maintenance and service agreements for the Building and the
equipment therein, including, but not limited to alarm service, window cleaning and
elevator maintenance if applicable.




     (5) Cost of all insurance relating to the Building, including, but not limited
to the cost of casualty and liability insurance applicable to the Building and
Landlord’s personal property used in connection therewith.




     (6) All taxes and assessments and governmental charges (excluding special
assessments for capital improvements such as streets, sidewalks and sewer), whether
federal, state, county or municipal, and whether they be by taxing districts or
authorities presently taxing the Leased Premises or by others, subsequently created
or otherwise, and any other taxes and assessments (excluding special assessments
for capital improvements such as streets, sidewalks and sewer) attributable to the
Building or its operation or to the Land, together with the allocation paid by
Landlord of such taxes, assessments, and charges (excluding special assessments for
capital improvements such as streets, sidewalks and sewer and federal, state, local
or other income taxes of Landlord , which shall be paid by Landlord), attributable
to the tracts of land designated from time to time by Landlord as common area or
common areas for the benefit of occupants of the Building. It is agreed that Tenant
will be responsible for ad valorem taxes on its personal property and on the value
of leasehold improvements to the extent that same exceed Building standard
allowances.




     (7) Cost of repairs and general maintenance (excluding repairs and general
maintenance paid by proceeds of insurance or by Tenant or other third parties, and
alterations attributable solely to tenants of the Building other than Tenant).




     (8) Amortization of the cost of installation of capital investment items which
are primarily for the purpose of reducing operating costs or which may be required
by governmental authority. All such costs shall be amortized over the reasonable
life of the capital investment items by an additional charge to be added to Rents
and paid by Tenant as additional rent, with the reasonable life and amortization
schedule being determined in accordance with generally accepted accounting
principles and in no event to extend beyond the reasonable life



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of the Building, provided that the expected salvage value shall be considered
in determining the amortization schedule for items whose useful life would
ordinarily extend beyond the useful life of the building.




     (9) All landscape maintenance costs for the Land, together with the allocation
paid by Landlord of landscape maintenance and all other maintenance costs for the
portion of the Land designated from time to time by Landlord as common area or
areas for the benefit of occupants of the Building.




     (10) Any lease or other payments made by Landlord for any equipment used in
the operation and maintenance of the Building.




     (11)




     (12) Management fees and expenses to Landlord, its affiliate or a designated
third party manager to pay for the cost of the proper maintenance and operation of
the Building, but only to the extent not exceeding usual, reasonable and customary
fees and expenses for such services in arms length transactions concerning similar
properties in the area.



          (c) Real and personal property taxes and assessments (and any tax
levied in whole or in part in lieu of or in addition to real property taxes) will be included as
Operating Expenses in the year in which they become due and payable (provided that they are paid by
Landlord in that year).





     (1) Notwithstanding the foregoing, Tenant shall not be obligated to pay any
inheritance tax, gift tax, transfer tax, franchise tax, income tax (based on net
income), profit tax or capital levy imposed upon Landlord.




     (2) Tenant will promptly pay when due all personal property taxes on Tenant’s
personal property in the Premises and any other taxes payable by Tenant the
non-payment of which might give rise to a lien on the Premises or Tenant’s interest
in the Premises.



          (d) In addition to Base Rent, Tenant will pay to Landlord on the
first
day of each month an amount equal to 1/12 of the product of Tenant’s Share multiplied by the
Estimated Operating Expenses. The Estimated Operating Expenses shall mean Landlord’s reasonable
estimate of Operating Expenses in each calendar year. The monthly amount to be paid by Tenant as
Tenant’s Share shall initially be $1,080.75. At the end of each calendar year, or as soon after as
practicable, Landlord will deliver to Tenant a statement reflecting the actual Operating Expenses
for the year and the Estimated Operating Expenses for the upcoming year. In the event that the
Tenant’s

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Share of the Operating Expenses for the year exceeded the amount collected by Landlord, Tenant
shall pay to Landlord the difference as additional rent within thirty (30) days after receipt of
notice from Landlord. In the event that the actual Operating Expenses were less than the amount
collected from all tenants, such balance shall be refunded to Tenant within thirty (30) days after
delivery of the Landlord’s statement. In the event Tenant disagrees with Landlord’s computation,
Tenant may request to review Landlord’s records which were used to in. the computation of the
Operating Expenses. Such review shall take at Landlord’s offices at a time reasonably acceptable to
both parties. Any such review shall be at Tenant’s sole cost and expense unless review indicates
that Landlord’s computation of Operating Expenses resulted in assessed charge more than 5% greater
than actual, in which case Landlord shall also reimburse Tenant for its costs and expenses of
conducting such review.




     6. Maintenance, Repairs and Replacement.



          (a) Except (i) for repair or replacement the need for which arises from
the grossly negligent acts or omissions or willful misconduct of Landlord (or its agents, employees
or contractors), or (ii) as otherwise set forth in this Lease, Tenant shall be solely responsible
for maintenance of the non-structural elements of the Premises. Tenant’s obligations hereunder
shall include, but not be limited to, repairs and/or replacements to plumbing, heating, electrical
and air conditioning systems which exclusively serve the Premises. Replacement of said equipment
shall be Tenant’s responsibility only to the extent that the Tenant has failed to adequately
maintain said equipment, All maintenance, repairs and replacements shall be conducted in a good and
workmanlike manner at such times as shall be necessary or appropriate to maintain the condition and
appearance of the Premises in a good and sightly condition normal wear and tear excepted.




          (b) Except as otherwise specifically set forth in this Lease, this Lease
shall be a completely net lease and Tenant shall pay to Landlord, net throughout the Term, the Rent
and all other sums required to be paid by Tenant pursuant to this Lease, free of any offset,
abatement, or other deduction, except as expressly provided in this Lease, and without notice, and
Landlord shall not be required to make any payment of any kind whatsoever with respect to the
Premises after delivery of the Premises to Tenant, except as expressly provided in this Lease.




     7. Payment of Utility Bills. Tenant will have all utilities to the Premises assessed
in Tenant’s name to the extent possible, and will pay directly to the appropriate utility company
or governmental agency, when due, all bills for gas, water, sanitary sewer, electricity, telephone
and other public or private utilities used by Tenant.



     8. Work Improvements and Alterations. Prior to the Commencement Date, the work
improvements as listed on the Landlord’s work letter (the “Work Improvements”) attached hereto as
Exhibit C shall be completed by Landlord. Tenant shall have five (5) days in which to review and
reasonably approve any construction drawings submitted to Tenant by Landlord or on behalf of
Landlord, in addition, Tenant



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shall have reasonable input with regard to paint, carpets and other such items; provided,
however, Landlord shall have the final decision making authority for all aspects of the Work
Improvements. In the event Tenant does not object to such construction drawings within 5 days, the
construction drawings shall be deemed approved. The construction drawings will be substantially
completed in accordance with Exhibit C. Landlord shall provide Tenant with a tenant work
improvement allowance of $108,075 or $25.00 per square foot (“Tenant’s Work Improvement Allowance”)
to complete the Work Improvements, In the event that Tenant elects to change the Work Improvements,
Landlord may charge an additional reasonable fee for any additional services required of Landlord
as a result of such changes to the Work Improvements. Landlord will provide up to an additional
$21,615.00 tenant work improvement allowance (the “Additional Tenant’s Work Improvement
Allowance”), upon the written request of Tenant. Any Additional Tenant’s Work Improvement Allowance
will be amortized over the initial Term at an annual interest rate of seven percent (7.00%) and
repaid to Landlord monthly as Additional Rent over the initial Term of this Lease, excluding any
Option Periods. In the event that the actual cost of the Work Improvements exceeds the Tenant Work
Improvement Allowance and the Additional Tenant’s Work Improvement Allowance, Tenant shall be
responsible to pay, or reimburse Landlord, for such excess within thirty (3O) days of written
notice from Landlord setting forth in detail the costs, provided that Landlord informed Tenant of
the likelihood of the cost overage promptly upon Landlord’s becoming aware of such condition.



     The Work Improvements set forth on Exhibit C shall be completed by Landlord’s contractor(s).
The lowest bid on each work item will be awarded the contract unless Tenant, with Landlord’s
consent and recommendation, opts to accept an alternate bid. During the Term, Tenant shall not have
the right to make any further alterations or modifications to the Premises without Landlord’s prior
written authorization. Tenant shall make such request in writing (the “Work Request”) and
simultaneously furnish Landlord reasonable description of the proposed work to be done. If the cost
of the Work Request exceeds $5,000.00 or affects the structure of the Building, plans and
specifications for such work shall be provided to Landlord simultaneously with the Work Request.
Landlord may require that Tenant place in escrow funds sufficient to pay for all work or obtain a
payment bond with Landlord named as an additional payee. In the event Landlord approves such
request, without cost or expense to Landlord, Landlord shall cooperate with. Tenant in obtaining
any and all licenses, building permits, certificates of occupancy or other governmental approvals
(excluding changes in zoning districts or special use permits, the pursuit of which shall be
subject to Landlord’s consent, which consent shall not be withheld if the requested change or
permit would not prohibit or make subject to additional conditions or approvals any use allowed on
the Premises or on any other property of Landlord prior to such change, permit, or variance) which
may be required in connection with any such modifications or alterations, and Landlord shall
execute, acknowledge and deliver any documents reasonably required in furtherance of such purposes.
Landlord, at its option, may place notices of non-responsibility on the Premises prior to the
commencement of any further alterations or modifications to the Premises by Tenant.



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          (c) Notwithstanding anything to the contrary contained in this Lease,
Tenant, through is employees, agents, contractors, subcontractors or any other representative shall
not cause or permit any work to be done, at anytime, which would result in any warranty being
invalidated, including without limitation any roof warranty. Prior to any roof work or roof
penetration, detailed plans which include weight tolerances and exact locations of improvements to
be placed on the roof shall be delivered to Landlord for review and approval. In the event Tenant
through its employees, agents, contractors, subcontractors or any other representative causes or
permits any warranty to be invalidated, Tenant shall fully indemnify Landlord for the value of the
warranty.




     9. Mechanics’ Liens. Tenant covenants that it will not permit any lien to be filed
against the Premises as a result of nonpayment for, or disputes with respect to, labor or materials
furnished to the Premises for or on behalf of Tenant or any party claiming by, through, or under
Tenant, nor shall Tenant permit any judgment, lien or attachment to lien, as applicable, against
the Premises resulting from Tenant’s (including contractors, subcontractors, employees of any other
agent of Tenant’s or persons acting on Tenant’s behalf) actions. Should any lien of any nature
arise out of Tenant’s (including contractors, subcontractors, employees of any other agent of
Tenant’s or persons acting on Tenant’s behalf) actions, including but not limited to the foregoing,
be filed against the Premises, Tenant shall, within thirty (30) days after receipt of written
notice of such lien, cause said lien to be removed, or otherwise protected against execution during
good faith, contest, by posting a bond therefor in accordance with applicable law, or securing
removal of such lien in another method reasonably acceptable to Landlord. The obligations under
this Paragraph 10 shall survive termination of this Lease or expiration of the term hereof.



     10. Insurance.



          (a) Property Damage. Landlord shall keep in full force and effect a
policy of all risk or special form property insurance and extended coverage covering loss or damage
to the Building in the amount of fall replacement cost of the Building and with a deductible not
greater than $50,000.00. Such policy shall include additional coverage for loss of rent/loss of
income. The premium for such coverage shall be an Operating Expense.




          (b) Liability Insurance. During the Term, Tenant shall keep in full
force a policy of commercial general liability insurance with bodily injury and property damage
coverage with respect to the Premises and lousiness operated by Tenant, which shall name Landlord
and Landlord’s first Mortgagee, if any, as additional insureds as their respective interests may
appear. The limits of such commercial general liability policy shall be not less than $3,000,000.00
combined single limit for bodily injury and property damage, with a maximum deductible of
$25,000.00, and shall include contractual liability or assumption of risk coverage. Tenant will
also require any contractor performing work on the Premises in accordance with Paragraph 9 to name
Landlord as an additional insured with respect to the contractor’s general liability




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insurance policy and a certificate of said insurance shall be provided with this endorsement prior
to the commencement of construction.




          (c) Workers’ Compensation Insurance. To the extent required by law,
Tenant shall maintain workers’ compensation insurance covering its respective employees in
statutory limits.




          (d) Automobile Liability. Tenant shall maintain at all times during the
Term automobile liability insurance covering liability arising out of the use of (i) all Tenant
owned vehicles, (ii) all vehicles hired or leased by Tenant and (iii) all non-owned and borrowed
vehicles.




          (e) Form of Policies. All insurance required by this
Paragraph 10 shall
be with insurers licensed or otherwise permitted to conduct business in the State of New Mexico.
Any insurance hereunder may be provided under blanket policies of insurance, provided that each
policy shall provide that the minimum, coverage amounts specified hereunder shall be available
following an insured loss at the Premises, notwithstanding losses at other properties or facilities
owned or operated by Tenant. All property insurance pertaining to property on the Premises
maintained by Tenant shall name Tenant as insured and Landlord as additional insured, as their
interests may appear, and, so long as the Premises are mortgaged pursuant to a Mortgage, shall be
subject to a standard mortgagee clause in favor of Landlord’s Mortgagee. All other insurance
pertaining to the Premises shall be in the name of Tenant, and shall name Landlord and any first
Mortgagee as additional insureds.




          (f) Policy Provisions. All policies of insurance (other than self-
insurance) enumerated above shall be provided by insurance carriers with a Best rating of not less
than A- XIII; provided, however, that if the rating of any such insurer falls below such level,
such rating reduction shall not constitute a default hereunder provided all renewals of such
policies shall be with carriers with a Best rating of not less than A- XIII at the time of such
renewal. All such policies shall be written as primary policies not entitled to contribution from,
nor contributing with, any coverage that Landlord may carry. An increased coverage or “umbrella”
policy may be provided and utilized by either party to increase the coverage provided by individual
or blanket policies in lower amounts, and the aggregate coverage provided by all such policies with
respect to the Premises and Tenant’s liability hereunder shall be satisfactory provided that such
policies otherwise comply with the provisions of this Paragraph 10 and the coverage afforded to
Landlord and other insured persons is not diminished by reason of the use of such blanket or
umbrella policy.




          (g) Waiver of Right of Recovery and Subrogation. With respect to any
loss covered by insurance or required to be covered by insurance hereunder, Landlord and Tenant
hereby waive any and all rights of recovery against each other for any loss or damage to the
Premises or the contents contained therein, or for loss of income on account of fire or other
casualty, or for injury sustained on the Premises; and each party’s aforesaid policies of insurance
shall, to the extent available, contain appropriate




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provisions recognizing this mutual release and waiving all rights of subrogation by the respective
insurance carriers. If such waiver of subrogation shall be obtainable only at a premium over that
chargeable without such waiver, the party whose insurance carrier charges such additional premium
agrees to pay such additional premium. (or, if the policy in question covers property in addition
to the Premises, then the portion of the additional premium attributable to the Premises).




          (h) Evidence of Insurance. At the Commencement Date and no less
than annually thereafter, Tenant shall cause to be issued to Landlord certificates of insurance
evidencing compliance with the applicable covenants of this Paragraph 11. Each such certificate
shall provide that no expiration, cancellation or material change in the insurance evidenced
thereby shall be effective unless thirty (30) days’ notice of such expiration, cancellation or
material change shall have been given to the certificate holder (and any Mortgagee, if applicable).




          (i) Indemnities. Except if arising from the negligent or willful acts of
Landlord or its agents or employees (to the extent that Paragraph 11(g) is inapplicable thereto),
Tenant hereby agrees to indemnify, defend and hold Landlord harmless from all claims, costs,
liability, damage or expense, including reasonable attorneys’ fees and court costs at trial and all
appellate levels, for any death, damage or injury to persons or property occurring on the Premises,
or resulting from or relating to Tenant’s use thereof.




     11. Damages by Fire or Other Casualty.



          (a) In the event of a fire, earthquake or other casualty, causing
destruction or damage to the Premises, which casualty occurs during the first three (3) Lease
Years, or in the event of such a casualty occurring after the end of the fourth Lease Year that is
riot a Threshold Event, as hereinafter defined, this Lease shall not terminate except as expressly
set forth herein. If the Premises are unsuitable for use as offices and retail space, then Rent and
other charges shall not be due from Tenant until the Premises are made suitable for such use.
Within a reasonable time after such casualty, subject to Force Majeure, applicable building codes,
the procurement of building permits and the receipt of insurance proceeds to the extent of the
damage to the Premises, as applicable, Landlord shall complete reconstruction of the Premises to
that condition existing immediately prior to such casualty, except that Landlord shall have no
obligations to reconstruct any Tenant alterations to the Premises. All such reconstruction and
repair shall be done by Landlord lien-free and in a good and workmanlike manner consistent with the
quality of labor and materials used in originally constructing the Improvements and in accordance
with all applicable law (“Landlord Repair”). Notwithstanding anything herein to the contrary,
Landlords obligation to reconstruct the Premises shall be limited to the amount of insurance
proceeds actually received by Landlord plus the amount of the Landlord’s deductible under the
policy required in Section 11(a) of this Lease. If Landlord does not repair the Premises in
accordance with the Landlord Repair provision above, regardless of the cost and the amount of
insurance coverage, within 6 months after receipt of all required government permits, Tenant shall
have the right to terminate this Lease upon thirty (30) days written notice to Landlord. All
insurance proceeds received

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on account of such damage or destruction (excluding proceeds attributable to business income
coverage), shall he applied pursuant to the terms of this Lease to the payment of the cost of such
restoration, repair, replacement, rebuilding, or alteration (the “Work”), including expenditures
made for demolition, temporary repairs or for the protection of property pending the completion of
permanent restoration, repair, replacement, rebuilding, or alteration.




          (b) In the event of a fire, earthquake or other casualty, causing
destruction or damage to the Premises that is a Threshold Event, either Landlord or Tenant shall
have the option of terminating this Lease. A party electing to terminate this Lease shall notify
the other party of its exercise of such option within sixty (60) days following the occurrence of
such casualty. In the event neither party elects to terminate this Lease as set forth above, then
Rent and other charges shall continue to be paid by Tenant and, subject to Force Majeure, within
two hundred forty (240) days after receipt by Landlord of the required governmental permits for
restoration, for which permits Landlord shall make prompt application following such destruction or
damage, and insurance proceeds with regard to such damage or destruction, Landlord shall complete
reconstruction of the Premises to that condition existing immediately prior to such casualty,
except that Landlord shall have no obligations to reconstruct any Tenant alterations to the
Premises, A “Threshold Event,” as that term is used herein, shall mean a the, earthquake, or other
casualty, causing destruction or damage to the Improvements having a repair and reconstruction cost
of (A) fifty percent (50%) or greater of the then fair market value the Premises, with respect to
casualties occurring after the end of three (3) Lease Years, or (B) twenty five percent (25%) of
the then fair market value of the Premises, with respect to casualties occurring after the end of
the fourth (4th) Lease Year.




     12. Condemnation.



          (a) Definition of Taking and Substantial Taking. For the
purpose of
this Lease, a “Taking” shall mean any condemnation or exercise of the power of eminent domain by
any authority vested with such power or any other taking for public use, including a private
purchase in lieu of condemnation by an authority vested with the power of eminent domain; the “Date
of Taking” shall mean the earlier of the date upon which title to the Premises or any portion
thereof or any right appurtenant thereto so taken is vested in the condemning authority or the date
upon which possession of the Premises or any portion thereof is taken by the condemning authority;
and “Substantially All of the Premises” shall mean so much of the Premises or the rights
appurtenant thereto as, when taken, leaves the untaken portion unsuitable in Tenant’s reasonable
opinion for the continued feasible and economic operation of the Premises by Tenant for the same
purposes as immediately prior to such Taking or as contemplated herein.




          (b) Tenant’s Rights Upon Substantial Taking. Each party agrees to
furnish the other a copy of any notice of a threatened or proposed Taking received by such party.
In the event of a Taking of Substantially All of the Premises, Tenant, at its option upon thirty
(30) days’ written notice to Landlord, which shall be given no later than sixty (60) days following
the Taking, shall have the right to terminate this Lease. All

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Rent and other sums payable by Tenant hereunder shall be apportioned and paid through and including
the Date of Taking, and neither Landlord nor Tenant shall have any rights in any compensation or
damages payable to the other in connection with such Taking.




          (c) Tenant’s Rights Upon Less Than Substantial Taking. In the event
of a Taking of less than Substantially All of the Premises, Rent and other charges shall be reduced
fairly and equitably in accordance with the portion condemned or taken, effective as of the Date of
Taking, and Tenant shall make all necessary restorations to the Improvements so that the portions
of the Improvements not taken constitute a complete architectural unit, provided that the cost
thereof to Tenant shall not exceed the proceeds of Tenant’s condemnation award (to the extent that
such relates to the Improvements and not to Tenant’s personal property, intangibles or
out-of-pocket expenses unrelated thereto) and the portion of Landlord’s award allocable to the
Premises (excluding any portion thereof paid in compensation for loss of income or reduction of
future rents), which Landlord shall make available to Tenant for such restoration. If such funds
exceed $50,000 and if required by a Mortgagee or by Landlord, such awards shall be escrowed and
disbursed in accordance with the procedure set forth herein. If any Taking occurs within the last
Lease Year of the Main Term or of any Option Period and has a material impact on Tenant’s ability
to conduct business, this Lease shall terminate at Tenant’s option, such option to be exercised by
Tenant giving not less than thirty (30) days’ prior written notice to Landlord, such notice to be
given not more than sixty (60) days after Tenant’s receipt of notice of the impending Taking.




          (d) Rights Upon Temporary Taking. Notwithstanding the foregoing, in
the event of a Taking of the Premises or any portion thereof, for temporary use (specifically one
not exceeding one hundred eighty (180) days in duration), without the taking of the fee simple
title thereto, this Lease shall remain in Buhl force and effect. All awards, damages, compensation
and proceeds payable by the condemnor by reason of such Taking relating to the Premises for periods
prior to the expiration of the Lease shall be payable to Tenant. All such awards, damages,
compensation and proceeds for periods after the expiration of the Lease shall be payable to
Landlord. Anything contained in this subparagraph (d) to the contrary notwithstanding, a temporary
Taking for any period in excess of one hundred eighty (180) days may, at Tenant’s option, be deemed
a permanent Taking and shall be governed by subparagraph (b) or (c) above, as applicable.




          (e) Tenant’s Right Upon Condemnation. In the event of a Taking
described in subparagraph (b) or (c) above, Tenant shall be entitled to claim compensation from the
condemning authority for the value of its unamortized leasehold improvements paid for by Tenant,
relocation expenses and any other items to which Tenant is entitled under applicable law, provided
Tenant obtains a separate award therefor and provided, further, that Tenant shall not be entitled
to any compensation for the value of its leasehold estate unless and to the extent Landlord
recovers the fair market value of the Land plus the amount of the Tenant Improvement Allowance.




     13. Assignment and Subletting. Tenant shall have the right to sublet, assign,
transfer, reassign and grant concessions or licenses (any one, a “Transfer”) in all or any



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part of the Premises and any of Tenant’s rights and obligations under this Lease during the
Term, with Landlord’s prior consent which shall not be unreasonably withheld. Notwithstanding the
foregoing, Tenant may Transfer the Premises or any right thereto to a closely related affiliate
without Landlord’s prior consent. Notwithstanding anything to the contrary contained herein, in the
event of such a Transfer, Tenant shall remain liable for all of Tenant’s obligations to Landlord
arising hereunder.



     Any instrument effecting an assignment or subletting of this Lease by Tenant shall be executed by
Tenant and the assignee or sublessee. Each assignee for the benefit of Landlord, shall agree to
assume, be bound by, and perform all terms, covenants, and conditions of this Lease to be kept and
performed by Tenant. After execution of the assignment or sublease, Tenant will forward a completed
copy thereof to Landlord.



     14. Use. Tenant shall have the right to use the Premises as offices and for retail
space.



     15. Warranties and Representations.



          (a) Landlord represents, warrants and covenants to Tenant that:





          (i) Quiet and Peaceful Environment.
Landlord and those
persons executing this Lease on its behalf have the right and lawful authority to enter
into this Lease and perform Landlord’s obligations hereunder, and Landlord warrants,
represents and covenants that, so long as Tenant is not in default hereunder beyond any
applicable cure period, Tenant shall have quiet and peaceful use, enjoyment and occupancy
of the Premises, subject to the terms of this Lease.




          (ii) Title. Landlord’s fee simple
interest in the Premises is free
and clear of any mortgages, deeds, encumbrances, declarations, easements, agreements,
leases, tenancies or restrictions, or any other encumbrances which would restrict Tenant’s
use of the Premises, other than restrictions and conditions arising from governmental laws,
regulations, and ordinances applicable to the Premises, and the terms and conditions of
this Lease.




          (iii) Certificate of Authority. Landlord
covenants that it is a
duly constituted limited liability company under the laws of the State of New Mexico and is
duly authorized to transact business in the State of New Mexico, and that the officer or
member of the Landlord who is acting as its signatory in this Lease is duly authorized and
empowered to act for and on behalf of Landlord.




          (iv) Intentionally deleted.




          (v) Hazardous or Toxic Materials. Landlord represents and
warrants that to the best of its knowledge, the Land is free of Hazardous Substances in
amounts which are in violation of applicable environmental laws



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(as defined below) except for any substances owned, or placed on the Premises, by Tenant in
the conduct of its business.



          (b) Tenant represents, warrants and covenants to Landlord that:




               (i) Tenant’s Authority. Tenant is a
duly constituted
corporation organized under the laws of the State of ___; it has the power to enter into this
Lease and perform Tenant’s obligations hereunder; and the person executing this Lease on Tenant’s
behalf has the right and lawful authority to do so. Tenant has furnished Landlord prior hereto with
evidence of (a) the existence of Tenant, (b) Tenant’s qualification to do business in New Mexico,
and (c) the authority of the undersigned to bind Tenant as contemplated herein.



               (ii) Tenant’s Warrant as to Hazardous or Toxic Materials.




          (A) Tenant hereby covenants that Tenant shall not cause
or permit any “Hazardous Substances” (as hereinafter defined) to be placed, held,
located or disposed of in, on or at the Premises or any part thereof except in
accordance with all applicable laws, statutes, ordinances, and regulations.




          (B) Tenant hereby agrees to indemnify Landlord and
hold Landlord harmless from and against any and all losses, liabilities, damages,
injuries, expenses, including reasonable attorneys’ fees, costs of any settlement
or judgment and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against, Landlord by any person or entity or governmental agency as
a result of the escape, seepage, leakage, spillage, discharge, emission,
discharging or release from, the Premises of any Hazardous Substance, provided,
however, that the foregoing indemnity is limited to matters arising solely from
Tenants violation of the covenant contained in Paragraph (A) above in this
Paragraph 16(b)(ii).




          (C) For purposes of this Lease,
“Hazardous Substances”
shall mean and include those elements or compounds which are contained in the list
of hazardous substances now or hereafter adopted by the United States Environmental
Protection Agency (the “EPA”) or the list of toxic pollutants designated by
Congress or the EPA or which are now or hereafter defined as hazardous, toxic,
pollutants, infectious or radioactive by any other Federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in effect.
“Hazardous Substances,” for the purposes of this Paragraph 16, shall include
petroleum products, asbestos, and polychlorinated biphenyls, and



13









 






underground storage tanks unless installed, maintained, and closed in compliance
with all applicable laws.




          (D) In the event Hazardous Substances are present on
the Premises in violation of Tenant’s covenant in Paragraph 16(b)(ii) hereof, and
Tenant fails to clean up; remove, resolve, minimize the impact of, or otherwise
remediate such contamination in compliance with all applicable laws and regulations
and to obtain a “no further action” or similar closure letter from the governmental
authorities with jurisdiction over such Hazardous Substances permitting the
development and use of the Premises as contemplated herein without further
remediation (collectively, “Remediate”), then Landlord shall have the right, but
not the obligation, thirty (30) days after notice to Tenant and Tenant’s failure to
Remediate, or, if Tenant cannot Remediate within thirty (30) days, then upon
Tenant’s failure to commence preparation of a plan to Remediate within such thirty
(30) day period and diligently pursue the approval of such plan and the completion
of the remediation work authorized by the approved plan to completion, to enter
upon the Premises to Remediate such contamination. Notwithstanding the foregoing,
in no event shall Tenant be afforded more than two (2) years after the approval of
Tenant’s remediation plan by the appropriate governmental agency or agencies, or
any shorter time required for the completion of such remediation by the agencies in
granting such approval, to complete such remediation. Tenant agrees to commence
preparation of such plan promptly upon receipt of notice that such Hazardous
Substances are present, to apply for approval of such plan promptly, and to pursue
such approval diligently. All reasonable costs and expenses incurred by Landlord in
the exercise of any such rights, including but not limited to attorneys’ fees,
consultants’ fees, and court costs, which costs and expenses result from Tenant’s
violation of the covenants contained herein, shall be deemed Additional Rent under
this Lease and shall be payable by Tenant upon demand. In the event that any
remediation continues after the Term of this Lease, Tenant shall be obligated to
continue to pay Rent in an amount equal to 150% of the Rent paid on the last day of
the Lease Term.




          (E) Tenant shall furnish Landlord not less than six (6)
months prior to the expiration of the Term with a written notice that Tenant is not
aware of the existence of Hazardous Substances on the Premises, or if Tenant is
aware of any such Hazardous Substances, with a description of the extent and
location of such contamination. If such contamination is required to be Remediated
by Tenant under the terms of this Lease, Tenant shall complete the Remediation
prior to the expiration of the Term of the Lease.




               (iii) Tenant Financial Condition. Tenant is not presently in the



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process of, or contemplating, filing any petition under any section or chapter of the
Federal Bankruptcy Code. Tenant is not currently insolvent and is not aware of any pending
or potential claim, obligation, transaction, or other occurrence that would render Tenant
insolvent. A receiver has not been appointed for any of Tenant’s assets and Tenant is
unaware of potential claim, obligation, transaction, or other occurrence that would result
in a receiver being appointed for any of Tenant’s assets. Tenant is not contemplating or
aware of any anticipated, pending or potential transaction, claim, assignment, or
obligation that would result in a decrease in the current net worth of Tenant in excess of
twenty percent (20%).



          (c) In the event there is a condition at variance with the foregoing
representations and warranties of either party, or if either party shall default in the observance
or performance of any of the foregoing representations and warranties, then, in addition to such
other remedies as may be accorded to the non-breaching party at law, in equity, or under the terms
of this Lease, the non-breaching party may, in addition to its other remedies under this Lease,
after thirty (30) days’ notice to the breaching party, obtain an injunction or writ of specific
performance to enforce such term or covenant, the parties hereby acknowledging the inadequacy of
the non-breaching party’s legal remedy and the irreparable harm which would be caused to such party
by any such variance or default. In addition, in the event that any of the representations,
warranties and covenants set forth in this Paragraph 16 are untrue or incorrect, or in the event
that either party suffers any loss, cost, liability or damage as a result of the breach of any of
such covenants, representations and warranties, the breaching party shall defend, indemnify and
hold the other party harmless from any of such loss, costs, attorneys’ fees, liability or damage
incurred as a result of the breaching party’s breach hereunder.




     16. Estoppel Certificates. Without charge, at any time and from time to time
hereafter, within ten (10) days after receipt of written request by either party, the other party
shall certify, by written and duly executed instrument, to any other person or entity (“Person”)
specified in such request: (a) as to whether this Lease has been supplemented or amended, and, if
so, the substance and manner of such supplement or amendment; (b) as to the validity, force and
effect of this Lease, to the certifying party’s best knowledge; (c) as to the existence of any
default hereunder, to the certifying party’s best knowledge; (d) as to the existence of any
offsets, counterclaims, or defenses hereto claimed by such certifying party, to the certifying
party’s best knowledge; (e) as to the commencement and expiration dates of the Term; and (f) as to
any other factual matters which may reasonably be so requested. Any such certificate may be relied
upon by the party requesting it and any Person to whom the same may be exhibited or delivered, and
the contents of such certificate shall be binding on the party executing same. Tenant agrees to
execute and deliver to Landlord and its Mortgagee a tenant estoppel certificate in a reasonable
form as shall be requested by such Mortgagee.



     17. Subordination Non-Disturbance and Attornment. Within thirty (30) days of receipt
of a request from. Tenant, Landlord shall deliver to Tenant with regard to any and all Mortgages
(as defined below) encumbering the Premises that are superior in interest to this Lease, a
non-disturbance and attainment agreement in a reasonable



15









 






executed by the holder of such Mortgage (“Mortgagee”). In addition, throughout the term, upon
request from Landlord or its Mortgagee, Tenant agrees to execute and deliver to Landlord and its
Mortgagee a non-disturbance and adornment agreement in a reasonable form executed by the Mortgagee
(as applicable) with regard to all future Mortgages that are subordinate in interest to this Lease
and with regard to all renewals, modifications, replacements and extensions of such Mortgages. Upon
Tenant’s receipt of the non-disturbance and attornment agreement, this Lease shall be subordinate
to the corresponding Mortgage in accordance with the terms of said agreement. As used in this
Paragraph 18, the term “Mortgage” shall mean any mortgage, deed to secure debt, deed of trust,
trust deed or other collateral conveyance of, or lien or encumbrance against, the Premises.



     In the event of a foreclosure of any Mortgage, Tenant shall atom to a Mortgagee or any
purchaser at a foreclosure sale (any such foreclosure, or deed in lieu thereof, shall be referred
to as a “Foreclosure”) of a Mortgage only if such Mortgagee or purchaser executes a nondisturbance
and attornment agreement in a reasonable form.



     18. Change of Landlord. In the event Landlord’s interest in the Premises passes to a
successor (the “Successor”) by sale, lease, Foreclosure or in any other manner, and such Successor
is bound unto Tenant as was the Landlord under this Lease, then Tenant shall be bound to the
Successor under all of the terms of this Lease for the balance of the Term with the same force and
effect as if the Successor were Landlord under the Lease, and Tenant hereby agrees to attorn to the
Successor as its Landlord, such attornment to be effective upon written notice thereof given by
Landlord to Tenant. In the event that Landlord’s interest in the Premises passes to a Successor and
such Successor is bound unto Tenant as set forth above, Landlord shall be released from all
obligations to Tenant hereunder arising after the date Landlord’s interest so passes.



     19. Expansion Option. Tenant shall have first right of refusal (the “Expansion
Option”) on the second floor of the Building and any other space in the Building or on the Land
that is or becomes available for rent (the “Expansion Area”). If Landlord receives a bona fide
offer, that Landlord is willing to accept for the lease of the Expansion Area or any portion
thereof, before entering into a lease on the Expansion Area, Landlord will first offer to lease the
Expansion Area to Tenant on the same terms and conditions as set forth in the bona fide offer.
Tenant shall have fifteen (15) days from receipt of notice of the bona fide offer from Landlord
(the “Offer Notice”) to exercise the Expansion Option and fifteen (15) days after the Tenant’s
exercise of the Expansion Option to enter into a lease for the Expansion Area. In the event Tenant
does not timely respond or a lease is not timely executed by Landlord and Tenant for the Expansion
Area, the Expansion Option shall be deemed waived as to that bona fide offer, on the terms of the
bona fide offer. Landlord may lease the Expansion Area only on the terms of the bona fide offer
provided such lease is executed within ninety (90) days of the Offer Notice. If such lease is not
executed within ninety (90) days, or if any change in the material terms oldie bona fide offer is
contemplated, then Landlord must against submit the proposed terms to Tenant as set forth above. In
the event Tenant elects to exercise the Expansion Options, Tenant shall accept the Expansion Area
“AS IS” and Landlord shall have no



16









 






obligation to make any alterations or complete any work on the Expansion Area, unless the
terms of the bona fide offer included alterations or work on the Expansion Area, in which ease
Landlord shall make alterations or complete work on the Expansion Area up to the cost in the bona
fide offer.



     20. Tenant’s Property and Subordination of Landlord’s Lien. All of the Personalty
shall be and remain the personal property of Tenant. Landlord expressly subordinates its statutory
or common law landlord’s liens (as same may be enacted or may exist from time to time) and any and
all rights granted under any present or future laws to levy or distrain for rent (whether in
arrears or in advance) to the interest of any Tenant lender in the aforesaid Personalty of Tenant
on the Premises and further agrees to execute any reasonable instruments evidencing such
subordination, at any time or times hereafter upon Tenant’s request.



     21. Force Majeure Delays; Tenant Delays. The Commencement Date shall be extended by
one day for each day of Force Majeure and each day of Tenant Delay, both as defined below. The
terms “Force Majeure” and “Force Majeure Delays” mean any delay resulting from strikes, lockouts or
other labor or industrial disturbance, civil disturbance, future order of any government, court or
regulatory body claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade,
embargo, failure or inability to secure materials, supplies or labor through ordinary sources by
reason of shortages or priority or similar regulation or order of any government or regulatory
body, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion, unusually
inclement weather, delays in obtaining permits or other governmental approvals due to no fault of
Landlord or any cause whatsoever beyond the reasonable control of the party from whom performance
is required, or any of such party’s contractors, subcontractors, or other representatives, whether
or not similar to any of the causes hereinabove stated; provided, however, that a party’s lack of
funds shall not be deemed to be a cause beyond the control of that party. As used herein, “Tenant
Delays” means any delay in the completion of the Improvements resulting from any or all of the
following: (1) Tenant’s failure to timely perform any of its obligations pursuant to this Section
21, including Tenant’s failure to timely grant approvals and/or make payments within the time
frames described herein due to no fault of Landlord; (2) Tenant’s requested material modifications
to the Plans or any Tenant-initiated Change Orders; (3) Tenant’s or its contractor’s unreasonable
interference with the work of Contractor prior to the Delivery Date or (4) Change Order Delays. Any
days of delay that are proximately caused by any act or omission of Landlord, its agents or
contractors shall be excluded from the number of days of Tenant Delays.



     22. Expiration of Term and Holding Over. All of the Personalty shall be removable by
Tenant any time prior to, or within thirty (30) days after, the expiration or earlier termination
of this Lease and shall be so removed by Tenant at the request of Landlord within thirty (30) days
after the expiration or termination of this Lease. In the event Tenant fails to remove any or all
of its Personalty within the said thirty (30) day period, Landlord may remove such Personalty, or
the balance thereof, cause such Personalty to be placed into storage and thereafter charge Tenant
the cost of such removal



17









 






and storage, together with interest thereon at the lesser of 18% or the maximum amount allowed
by law (the “Default Rate”), which amount shall be paid before Tenant shall have access to any
stored Personalty. In the event that Tenant fails to remove its Personalty from storage within one
hundred eighty (180) days, Landlord may sell or otherwise dispose of such. Personalty on
commercially reasonable terms without any obligation or liability to Tenant and shall any offset
any amounts realized against Rent, storage fees and interest due from Tenant hereunder. Those
improvements that are integrated into the physical structure of the Building, except any of
Tenant’s trade fixtures, shall not be removed and shall become the property of Landlord. Tenant
agrees
promptly to repair any damage to the Premises occasioned by the removal of Tenant’s trade fixtures,
furnishings and equipment (except for small holes caused by nails, fasteners and the like) and to
surrender the Premises broom clean, in as good condition as on the date of Tenant’s opening for
business therein, ordinary wear and tear, casualty and condemnation excepted. Tenant agrees that at
the expiration of this Lease, it will deliver to Landlord peaceable possession of the Premises. No
holding over by Tenant nor acceptance of Rent or other charges by Landlord shall operate as a
renewal or extension of the Lease without the written consent of Landlord anal Tenant. If Tenant
remains in possession of the Premises after the termination of this Lease and without the execution
of a new lease, Tenant shall be deemed to be occupying the Premises as a tenant at sufferance at an
amount equal to one hundred and ten percent (150%) of the Rent and other charges payable for the
period just prior to termination of this Lease and otherwise subject to all the covenants and
provisions of this Lease insofar as the same are applicable to a month-to-month tenancy.



     23. Signage. Tenant shall be permitted to have signage on the building and the
monument sign as depicted on Exhibit D. All signage additional to or different from that in Exhibit
D must be approved in writing by Landlord and comply with all applicable laws and ordinances.
Tenant at its sole cost and expense shall be responsible for ensuring that any signage complies
with all applicable laws and ordinances, Landlord’s approval shall not be unreasonably withheld.



     24. Security Deposit. Upon execution of this Lease, Tenant shall pay to Landlord a
security deposit in the amount of Seven Thousand One Hundred Eighty-Six and 98/200ths Dollars
($7,186.99). The Landlord may use, apply, or retain the whole or any part of the security to the
extent required for the payment of any rent, or other sum or debt as to which the Tenant is in
default or for any sum which the Landlord may expend or incur by reason of the Tenant’s default in
any of the terms of this Lease, including, but not limited to, any damages or deficiency in the
reletting of the Premises, whether such damages or deficiencies accrued before or after summary
proceedings or other reentry by the Landlord, In the event that the Tenant shall comply with all
the terms of this Lease, the security deposit shall be returned to the Tenant within ten (10)
business days after the date fixed as the end of the Lease and after delivery of possession of the
Premises to the Landlord. While the security deposit is in the possession of the Landlord, or its
assign, the Landlord shall be entitled to intermingle such deposit with its own funds and to use
such sum for such purposes as the Landlord may determine, subject to applicable law. In the event
of a sale or lease of the Building of which the Premises forms a part, the



18









 






Landlord shall have the right to transfer the security to the purchaser or lessee and the
Landlord shall thereupon be released from all liability for the return of such security provided
such purchaser or lessee is bound to return the security deposit on the same terms as the Landlord,
in which case the Tenant shall look solely to the new landlord for the return of such security. The
Tenant shall not assign or encumber the money deposited as security, and neither the Landlord nor
its successors or assigns shall be bound by any assignment or encumbrance.



     25. Events of Tenant’s Default. Any of the following occurrences, conditions or acts
by Tenant shall constitute an “Event of Default” under this Lease:



          (a) Failure to Pay Rent; Breach. (i) Tenant’s failure to make any
payment of money required by this Lease (including without limitation Rent or Operating Expenses)
within ten (10) days after the same is overdue, in which event such delinquent amount shall accrue
interest at the Default Rate; or (ii) Tenant’s failure to observe or perform, any other material
provision of this Lease within thirty (30) days after receipt of written notice from Landlord to
Tenant specifying such default and demanding that the same be cured; provided that, if such default
cannot with due diligence be wholly cured within such thirty (30) day period, Tenant shall have
such longer period as is reasonably necessary to cure the default, so long as Tenant proceeds
promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes
the cure to completion.




          (b) Bankruptcy. Any petition is filed by or against Tenant under any
section or chapter of the Federal Bankruptcy Code, and, in the case of a petition filed against
Tenant, such petition is not dismissed within sixty (60) days after the date of such filing.




          (c) Insolvency. Tenant becomes insolvent or transfers property in
fraud of creditors.




          (d) Assignment for Benefit of Creditors. Tenant makes an assignment
for the benefit of creditors.




          (e) Receivership. A receiver is appointed for any of Tenant’s assets.




     26. Landlord’s Remedies. After the occurrence of an Event of Default by Tenant,
Landlord shall have the right to exercise the following remedies:



          (a) Continue Lease. Landlord may, at its. option,
continue this Lease
in full force and effect, without terminating Tenant’s right to possession of the Premises, in
which event Landlord shall have the right to collect Rent and other charges when due. In the
alternative, Landlord shall have the right to peaceably re-enter the Premises, without such
re-entry being deemed a termination of the Lease or an acceptance by Landlord of a surrender
thereof. Landlord shall also have the right, at its option, froth time to time, without terminating
this Lease, to relet the Premises, or any part thereof,




19









 






with or without legal process, as the agent, and for the account, of Tenant upon such terms and
conditions as Landlord may deem advisable, in which event the rents received on such reletting
shall be applied (i) first to the reasonable and actual expenses of such reletting and collection,
including without limitation necessary renovation and alterations of the Premises, reasonable and
actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (ii)
thereafter toward payment of all sums due or to become due to Landlord hereunder. If a sufficient
amount to pay such expenses and sums shall not be realized, in Landlord’s exercise of commercially
reasonable efforts to mitigate its damages (which Landlord hereby agrees to make), then Tenant
shall pay Landlord any such deficiency monthly, and Landlord may bring an action or actions
therefor as such monthly deficiency shall arise and acme. Landlord shall not, in any event, be
required to pay Tenant any sums received by Landlord on a reletting of the Premises in excess of
the rent provided in this Lease, but such excess shall reduce any accrued present or future
obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Premises without
termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as
set forth below.




          (b) Terminate Lease. Landlord, at its option, may terminate the Lease
by written notice to Tenant. If Landlord terminates this Lease, Landlord may take possession of the
Premises by judicial proceeding and may recover all damages allowed by state law and subject to any
obligation of Landlord to mitigate as required by law.




          (c) Reimbursement of Landlord’s Costs in Exercising Remedies.
Landlord may recover from Tenant, and Tenant shall pay to Landlord upon demand, as Additional Rent,
such reasonable and actual expenses as Landlord may incur in enforcing the terms of this Lease
and/or recovering possession of the Premises, placing the same in good order and condition and
repairing or renovating the same for reletting, and all other reasonable and actual expenses,
commissions and charges incurred by Landlord in exercising any remedy provided herein or as a
result of any Event of Default by Tenant hereunder (including without limitation attorneys’ fees),
provided that in no event shall Tenant be obligated to compensate Landlord for any speculative or
consequential damages caused by Tenant’s failure to perform its obligations under this Lease.




          (d) Remedies Are Cumulative. The various rights and remedies
reserved to Landlord herein are cumulative, and Landlord may pursue any and all such rights and
remedies, in addition to any other rights or remedies available at law or in equity, whether at the
same time or otherwise (to the extent not inconsistent with specific provisions of this Lease).
Notwithstanding anything herein to the contrary, Landlord expressly waives its right to forcibly
dispossess Tenant from the Premises, whether peaceably or otherwise, without judicial process, such
that Landlord shall not be entitled to any “commercial lockout” or any other provisions of
applicable law which permit landlords to dispossess tenants from commercial properties without the
benefit of judicial review.




     27. Events of Landlord’s Default, Tenant’s Remedies. Landlord’s failure to make any
payments of money due Tenant hereunder within ten (10) days after the receipt



20









 






of written notice from Tenant that same is overdue (in which event the delinquent amount shall
accrue interest at the Default Rate); or (b) Landlord’s failure to perform any nonmonetary
obligation of Landlord hereunder within thirty (30) days after receipt of written notice from
Tenant to Landlord specifying such default and demanding that the same be owed; provided that, if
such default cannot with due diligence be wholly cured within such thirty (30) day period, Landlord
shall have such longer period as may be reasonably necessary to cure the default, so long as
Landlord proceeds promptly to commence the cure of same within such thirty (30) day period and
diligently prosecutes the cure to completion shall constitute an “Event of Default.”



     Upon the occurrence of an Event of Default by Landlord, at Tenant’s option, in addition to any
and all other remedies which it may have at law and/or in equity (to the extent not inconsistent
with. the specific provisions of this Lease), and without its actions being deemed an election of
remedies or a cure of Landlord’s default, Tenant may do all or any of the following: (i) pay or
perform such obligations and offset Tenant’s reasonable and actual cost of performance, including
any and all transaction costs and attorneys’ fees, plus interest at the Default Rate, against the
Rent due Landlord hereunder or (ii) sue for direct (but under no circumstances special,
consequential or punitive) damages, including interest, transaction costs and attorneys’ fees as
specified in subsection (i) above. In no event shall Tenant have any sight to terminate this Lease
as a result of an Event of Default by Landlord.



     28. Waiver. If either Landlord or Tenant fails to insist on the strict observance by
the other of any provisions of this Lease, neither shall thereby be precluded from enforcing or be
held to have waived any of the obligations, past, present or future, of this Lease, Either parry
may accept late payment or performance by the other without waiving any Event of Default which may
then have accrued.



     29. Compliance with Applicable Laws. During the Term, Tenant shall comply with all
lawful requirements of the local, county and state health boards, police and fire departments,
municipal and state authorities and any other governmental authorities with jurisdiction over the
Premises, and of the board of fire underwriters, respecting, Tenant’s use and occupancy of the
premises, provided, however that if any violation of such requirements arises from the failure of
Landlord to perform maintenance or repairs required to be performed by Landlord hereunder, or from
failure of the Premises to meet lawful requirements as of the Commencement Date, Landlord shall be,
responsible for such compliance to the extent of such maintenance and repairs required to be
performed by Landlord. In the event that Tenant, within thirty (30) prior days’ written notice
(except in the case of an emergency, in which event only such notice as is reasonable under he
circumstances shall be required) from Landlord or any such authority ordering performance of any
such work which Tenant is required to perform in order to remain in, or come into, compliance with
any such requirement, fails to perform or diligently commence performance of same with reasonable
promptness, Landlord may perform said work and collect the reasonable cost thereof plus interest at
the Default Rate as additional rent from Tenant with, the next installment or installments of Rent.



21









 





     30. Notices. Any notice permitted or required to be given pursuant to this Lease shall
be deemed to have been given three (3) business days after mailing a written notice by certified
mail, postage prepaid, return receipt requested, or one (1) business day after sending by Federal
Express or other comparable overnight express courier service (with proof of receipt available),
addressed to the parties as follows:



	 	 	 	 	 
	If to Landlord:	 	Shops at Westpark, LLC
	 	 	Attn: Dwayne Pino
	 	 	1501 Polo NW
	 	 	Albuquerque, New Mexico 87114
	 

	 	Phone:	 	 
	 

	 	 	 	 
	 

	 	Fax:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	with a copy to:	 	Lastrapes, Spangler & Pacheco, P.A.
	 	 	333 Rio Rancho Drive NE, Suite 401
	 	 	Rio Rancho, New Mexico 87124
	 	 	Attention: Christopher M. Pacheco, Esq.
	 

	 	Phone:
	 	(505) 892-3607
	 

	 	Fax:
	 	(505) 892-1864
	 
	 	 	 	 
	If to Tenant:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	Phone:
	 	(     )
	 

	 	 	 	 
	 

	 	Fax:
	 	(     )
	 

	 	 	 	 
	 
	 	 	 	 
	with a copy to:
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 





or to such other addressees as any party hereto shall from time to time give notice to the other
party in accordance with this paragraph.




     31. Brokers. Tenant and Landlord are represented in this matter by Grub & Ellis and
Landlord will pay any commissions or other amounts due to Grubb & Ellis as a result of this
transaction pursuant to terms of a separate agreement. Except for the aforementioned
representations of Tenant and Landlord, Landlord and Tenant each warrant to the other party that no
other finders or brokers have been involved with the introduction of Landlord and Tenant and/or the
lease of the Premises and no other party is entitled to any commission as a result of the
transaction contemplated herein. In the event of a breach of the foregoing warranties, the
breaching party agrees to save, defend, indemnify and hold harmless the non-breaching party from
and against any claims, losses, damages, liabilities and expenses, including but not limited to
attorneys’ fees, The obligations of this Section shall survive the termination of this Lease.



     32. Miscellaneous.



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          (a) Headings and Gender. All paragraph headings, titles or captions
contained in this Lease are for convenience only and shall not be deemed a part of this Lease and
shall not in any way limit or amplify the terms and provisions of this Lease. The masculine,
feminine or neuter gender and the singular or plural number shall be deemed to include the others
whenever the context so requires or indicates.




          (b) Construction. The parties hereto agree that all the
provisions hereof
are to be construed as covenants and agreements as though the words importing such covenants and
agreements were used in each separate paragraph hereof.




          (c) Relationship of Landlord-Tenant. Nothing contained in this Lease shall be deemed
by the parties hereto or by any third person to create the relationship of principal and agent,
partnership, joint venture, or any other association between Landlord and Tenant other than
landlord-tenant relationship described herein.




          (d) Entire Agreement; Merger. This Lease, including all exhibits hereto (which are
hereby incorporated herein by reference for all purposes), contains the full and final agreement of
every kind and nature whatsoever between the parties hereto concerning the subject matter of this
Lease, and all preliminary negotiations and agreements of whatsoever kind or nature between
Landlord and Tenant are merged herein. This Lease cannot be changed or modified in any manner
other than by a written amendment or modification executed by Landlord and Tenant.




          (e) Attorneys’ Fees. In the event either party shall be required to commence or
defend any action or proceeding against any other party by reason of any breach or claimed breach
of any provision of this Lease, to commence or defend any action or proceeding in any way
connected with this Lease or to seek a judicial declaration of rights under this Lease, the party
prevailing in such action or proceeding shall be entitled to recover from or to be reimbursed by
the other party for the prevailing party’s reasonable and actual attorneys’ fees and costs through
all levels of proceedings.




          (f) Partial Invalidity. If any provision of this Lease or the application thereof to
any person or circumstance shall be deemed invalid or unenforceable, the remainder of this Lease
and its application to other persons or circumstances shall not be affected by such partial
invalidity but shall be enforced to the fullest extent permitted by law as though such invalid or
unenforceable provision was never a part hereof.




          (g) Consents. Any consent or approval granted by either party hereunder shall be
deemed a consent only as to the matter on which such consent was requested and shall not waive the
consenting party’s right to give or withhold consent to any subsequent matter.




          (h) Holidays. If the day on which rent or any other payment due hereunder is payable,
or the final day for curing a default, falls on a Saturday or Sunday or on a legal holiday, it
shall be payable or curable on the following business day.





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          (i) Applicable Law. This Lease shall be construed in accordance with the laws of the
State of New Mexico, and the parties agree that jurisdiction for all actions hereunder shall lie
therein.




          (j) Successors and Assigns. All rights, obligations and liabilities herein given to
or imposed upon any party hereto shall extent to the permitted successors and assigns of such
party, except as otherwise expressly provided in this Lease.




          (k) Counterparts. This Lease may be executed in one or more identical counterparts,
and as so executed by all parties hereto shall constitute a single instrument for purposes of the
effectiveness of this Lease.




          (l) Trademarks and Trade Names. All trademarks, trade names, service marks, signs and
all other marks of identification used by Tenant in its business shall at all times remain the
exclusive property of Tenant, and Landlord shall have no right, interest in, or title to any of
Tenant’s trademarks, trade names, service marks, signs or other marks of identification. All
trademarks, trade names, service marks, signs and all other marks of identification used by
Landlord in its business shall at all times remain the exclusive property of Landlord, and Tenant
shall have no right, interest in, or title to any of Landlord’s trademarks, trade names, service
marks, signs or other marks of identification.




     33. Early Termination. Provided that Tenant is not in default hereunder, following
the end of the thirtieth (30th) full month of the Term and upon payment of the
Termination Fee (defined below), Tenant shall have the option, upon one hundred eighty (180) days
prior written notice to Landlord, to terminate this Lease. The “Termination Fee” shall be an
amount equal to (i) two months Base Rent; (ii) the unamortized Tenant’s Work Improvement Allowance
and Additional Tenant’s Work Improvement Allowance and (iii) the unamortized broker’s commission.
Any termination under this Paragraph 34 shall not be effective and this Lease shall remain in full
force and effect until Landlord receives the applicable Termination Fee.



     34. Survival. All indemnification obligations set forth in this Lease shall survive
any expiration or termination of this Lease.



     WITNESS the following signatures:



	 	 	 	 	 
	 	LANDLORD



The Shops at Westpark, LLC

 	 
	 	By:  	                               /s/Dwayne Pino
 	 
	 	 	Dwayne Pino, manager 	 
	 	 	 	 
	 



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	 	TENANT


Novint Technologies, Inc.

 	 
	 	By:  	                               /s/Tom Anderson
 	 
	 	 	Tom Anderson, President 	 
	 	 	 	 
	 




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