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LEASE AGREEMENT
AFC-5, LLC
A NEW MEXICO LIMITED LIABILITY COMPANY
(LANDLORD)
AND
SBS TECHNOLOGIES, INC.
(TENANT)
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM DESCRIPTION PAGE
<S> <C> <C>
1. Demise of Premises....................................................1
2. Term of Lease and Possession..........................................1
3. Base Rent.............................................................1
4. Building Operating Costs..............................................1
5. Late Payments.........................................................5
6. Security Deposit......................................................5
7. Quiet Enjoyment.......................................................5
8. Taxes and Charges.....................................................5
9. Landlord's Right to Mortgage, Sell or Assign; Attornment..............5
10. Use of Premises.......................................................7
11. Premises to be Kept in Good and Safe Condition........................7
12. Alterations...........................................................7
13. Repairs...............................................................8
14. Services and Utilities................................................8
15. Assignment and Subletting.............................................8
16. Condemnation.........................................................11
17. Insurance............................................................11
18. Destruction of Improvements..........................................13
19. Default..............................................................13
20. Remedies upon Default................................................14
21. Right of Entry.......................................................16
22. Notices..............................................................16
23. Holding Over.........................................................17
24. Parking..............................................................17
25. Rules and Regulations................................................18
26. Benefits and Limitations.............................................18
27. Brokers..............................................................18
28. Tenant's Attornment..................................................18
29. Access...............................................................18
30. Guaranty.............................................................18
31. Exhibits.............................................................18
32. Construction of Lease................................................18
33. Entire Integrated Agreement; Modifications; Alterations; Waiver......19
34. Amendment............................................................19
35. Compliance with Law..................................................19
36. Use of Hazardous Materials...........................................19
37. Signatory Authority..................................................20
38. Counterparts.........................................................20
39. Further Assurances...................................................20
40. Confidentiality......................................................20
41. Judicial Interpretation..............................................20
42. Waivers..............................................................20
43. Merger of Prior Agreements...........................................20
44. Relationship of Landlord and Tenant..................................20
45. Right of First Offer.................................................20
46. Miscellaneous........................................................21
EXHIBIT "A" FUNDAMENTAL LEASE PROVISIONS......................................22
PREMISES.............................................................22
TERM.................................................................22
BASE RENT............................................................22
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SECURITY DEPOSIT.....................................................22
USE OF PREMISES......................................................22
LEASEHOLD IMPROVEMENTS...............................................23
LEASING COMMISSIONS..................................................23
RENEWAL..............................................................23
JANITORIAL SERVICES..................................................23
RULES AND REGULATIONS................................................23
SIGNAGE..............................................................23
PARKING..............................................................23
RENT SCHEDULE.......................................................24
ANTENNA..............................................................24
EXHIBIT "B" FLOOR PLAN........................................................25
EXHIBIT "C" TENANT IMPROVEMENT AGREEMENT......................................27
EXHIBIT "D" OPTION TO RENEW...................................................28
EXHIBIT "E" JANITORIAL SERVICES...............................................29
EXHIBIT "F" RULES AND REGULATIONS.............................................30
EXHIBIT "G" NOTICE OF LEASE OF PARKING SPACE..................................32
EXHIBIT "H" RENT SCHEDULE.....................................................33
EXHIBIT "I" ROOFTOP DEVICE....................................................34
</TABLE>
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LEASE AGREEMENT
This lease ("Lease") is made between AFC-5, LLC, A NEW MEXICO
LIMITED LIABILITY COMPANY ("Landlord"), and SBS TECHNOLOGIES, INC. ("Tenant")
on this 16th day of May, 2000.
1. DEMISE OF PREMISES. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord that certain office space ("Premises")
indicated in EXHIBIT A, attached hereto, located in the AMERICAN FINANCIAL
CENTER NO. 5 Building located at 2400 Louisiana Blvd., NE, Albuquerque, New
Mexico (the "Building"). The Premises shall include, without limitation, all
plumbing, electrical and lighting facilities and equipment within the
Premises, fixtures, interior walls and interior surfaces of exterior walls,
ceilings, windows, doors, entry doors and plate glass located on the Premises.
2. TERM OF LEASE AND POSSESSION.
2.1 The term ("Term") of this Lease shall be the
period set forth in EXHIBIT A. The Term shall include any period during which
this Lease has been renewed or extended in accordance with the terms of
EXHIBIT D attached to this Lease, if any, providing for a renewal or
extension of the Term of this Lease beyond the initial Term.
3. BASE RENT. Tenant agrees to pay Landlord as rent for the
Premises, without prior notice or demand, the sum described as "Base Rent" in
EXHIBIT A, hereto, payable in monthly installments each of which shall be due
on the first day of each month in advance throughout the Term of this Lease.
Base Rent for any period during the Term hereof, which is for less than one
(1) month, shall be a pro-rated portion of the monthly installment. All Rent
shall be paid to Landlord, without deduction or offset, at the office of the
Landlord or its managing agent at the address set forth in Section 22 hereof
or to such other person or at such other place as Landlord may from time to
time designate in writing. All sums payable by Tenant pursuant to this Lease,
other than Base Rent, shall be deemed to constitute additional rent
("Additional Rent"). The term "Rent" shall mean Base Rent and Additional Rent.
4. BUILDING OPERATING COSTS. In order that the Rent payable
during the Term reflect any increase in Building Operating Costs, Tenant
agrees to pay to Landlord as Additional Rent, Tenant's Proportionate Share of
all increases in costs, expenses, and obligations attributable to the
Building and its operation, all as provided below.
If during any calendar year during the Term, Building
Operating Costs exceed the Building Operating Costs for the Base Year, Tenant
shall pay to Landlord, in addition to the Base Rent and all other payments
due under this Lease, an amount equal to Tenant's Proportionate Share of such
excess Building Operating Costs in accordance with the provisions of this
Section 4. Increases in controllable expenses shall be capped at four percent
(4%) per annum.
4.1 DEFINITIONS.
(a) The "Base Year" is the calendar year 2000.
(b) A "Comparison Year" is each full calendar
year after the Base Year.
(c) "Tenant's Proportionate Share" means the
percentage resulting from dividing the number of square feet or rentable area
leased by Tenant as shown in EXHIBIT A by the number of square feet of
rentable area in the Building. If the amount of area in the Building is
changed, then "Tenant's Proportionate Share" shall be changed to the
percentage that results from the rentable area leased by Tenant divided by
the total number of square feet of rentable area in the Building.
4.2 The term "Building Operating Costs" shall include
all those items described in the following subparagraphs (a) and (b).
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(a) All taxes, assessments, water and sewer
charges and other similar governmental charges levied on or attributable to
the Building or its operation, including without limitation, (i) real
property taxes or assessments levied or assessed against the Building
including any increase in real property taxes due to a "change in ownership"
(as that phrase is defined from time-to-time in the New Mexico Revenue and
Taxation Code or any successor statute) of the Building, (ii) assessments or
charges levied or assessed against the Building by any redevelopment agency,
(iii) any tax measured by gross rentals received from the leasing of the
Premises and/or the Building, excluding any net income, franchise, capital
stock, estate or inheritance taxes imposed by the State or Federal government
or their agencies, branches or departments; provided that if at any time
during the Term any governmental entity levies, assesses or imposes on
Landlord any (1) general or special, ad valorem or specific, excise, capital
levy or other tax, assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other leases of space in
the Building, or (2) any license fee, excise or franchise tax, assessment,
levy or charge measured by or based, in whole or in part, upon such rent, or
(3) any transfer, transaction, or similar tax, assessment, levy or charge
based directly or indirectly upon the transaction represented by this Lease
or such other leases, or (4) any occupancy, use, per capita or other tax,
assessment, levy or charge based directly or indirectly upon the use or
occupancy of the Premises or other premises within the Building, then any
such taxes, assessments, levies and charges shall be deemed to be included in
the term Building Operating Costs.
(b) Operating costs incurred by Landlord in
maintaining and operating the Building, including without limitation the
following: costs of (1) utilities, heating, ventilating and air conditioning,
landscaping, parking and common area operating expenses, security, elevator
maintenance, (2) supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage insurance) for
the full replacement cost of the Building as required by Landlord or its
lenders for the Building; (4) services of independent contractors; (5)
compensation (including employment taxes, fringe benefits and workmen
compensation) of all persons who perform duties connected with the operation,
maintenance, repair, or overhaul of the Building, and equipment, improvements
and facilities located within the Building, including without limitation
engineers, janitors, painters, floor waxers, window washers, security and
parking personnel and gardeners; (6) operation and maintenance of the
Premises; (7) management of the Building, whether managed by Landlord or an
independent contractor (including, without limitation, an amount equal to the
fair market value of any on-site manager's office); (8) rental expenses for
(or a reasonable depreciation allowance on) personal property used in the
maintenance, operation, or repair of the Building; (9) costs, expenditures or
charges (whether capitalized or not) required by any government or
quasi-governmental authority; (10) amortization of capital expenses (i)
required by a governmental entity for energy conservation or life safety
purposes, or (ii) made by Landlord to reduce Building Operating Costs; and
(11) any other costs or expenses incurred by Landlord required under this
Lease for the benefit of the Building and not otherwise reimbursed by Tenants
of the Building. Notwithstanding the foregoing, Building Operating Costs
shall exclude the following:
(i) interest and principal payments in loans and ground lease payments and
other finance charges;
(ii) depreciation charges;
(iii) capital improvements and depreciation and interest charges associated
thereupon, except for such charges which reduce other items of
operating expense should be excluded but only to the extent of the
Landlord;
(iv) repair or other work occasioned by exercise of the right of eminent
domain or the negligence of Landlord;
(v) leasing commissions, attorney's fees, cost and disbursements and other
expenses incurred in connection with negotiation or disputes with
tenants or other occupants of the Building, or with prospective tenants
or costs incurred in marketing the Building;
(vi) renovation or otherwise improving or decorating, painting or
redecorating any space in the Building other than ordinary maintain
supplied to all tenants equally;
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(vii) any expense in connection with services or other benefits of a type or
quality which Tenant is not entitled to receive under this Lease but
which are provided without reimbursement by direct payment to another
tenant or occupant of the Building;
(viii) costs due to violation by Landlord or its agent of the terms and
conditions of any lease or of any law, statute, ordinance, or of any
insurance rating bureau or other quasi-public authority, or of any debt
agreement or ground lease.
(ix) subject to Paragraph 4.2(c) below, overhead and profit paid to
subsidiaries or affiliates of Landlord for services on or to the
Building to the extent that the services exceed competitive costs of
such services. Property management fees should be limited to a fixed
percent of gross receipts from the Building or a fixed amount per
square foot. All other management and owner salary compensation should
be excluded;
(x) costs of any leasing office located on the premises;
(xi) advertising and promotional expenses;
(xii) any expense for which Landlord is compensated by proceeds through
insurance or which Landlord would have been compensated had Landlord
maintained insurance in a type which a reasonably prudent owner of a
comparable building in Albuquerque, New Mexico, would normally
maintain. Except pursuant to similar provisions for the payment of a
proportionate share of operation expenses;
(xiii) any expenses for correction of construction or design defects;
(xiv) rental and other related expenses incurred in leasing air conditioning
systems, elevators or other equipment ordinarily considered to be of a
capital nature;
(xv) any cost for any facility other than the Building;
(xvii) any additional costs, including increased real estate taxes, resulting
form an addition to the Building after the date of the Lease;
(xviii) any cost incurred before the Commencement Date;
(xix) attorney's fees, cost and disbursements and other expenses incurred in
connection with negotiations or disputes with Tenants or other
occupants of the Building or with prospective tenants or cost incurred
in marketing the Building;
(xx) legal and other professional fess and expenses incurred in preparing,
negotiating and executing leases, amendments, terminations and
extensions or in resolving any disputes with tenants and other
occupants or enforcing lease obligations, including, without
limitation, court costs;
(xxi) expenses incurred by Landlord in connection with the transfer or
disposition of the Building or the real property, or any ground,
underlying or overriding lease, including, without limitation,
transfer, deed and gains taxes; and
(xxii) costs incurred to correct any misrepresentation by Landlord or in
connection with any fines or penalties imposed on Landlord;
(c) PARS Assets LLC ("PARS") is an affiliate
entity of Landlord. PARS is currently acting as the management company for
the Project. The management fee shall be 6% of the gross income for the
Project. The management fee of 6% may or may not be collected by PARS, or
paid to a third party management company; nevertheless, a 6% management fee
will be included in the Project Operating Costs listed in paragraph (b) above.
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4.3 Tenant's Proportionate Share of Building Operating
Costs shall be payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year
following the Base Year and for each calendar year thereafter ("Comparison
Year"), Tenant shall pay Landlord an amount equal to Tenant's Proportionate
Share of the Building Operating Costs incurred by Landlord in the Comparison
Year which exceeds the total amount of Building Operating Costs payable by
Landlord for the Base Year. This excess is referred to as the "Excess
Expenses".
(b) To provide for current payments of Excess
Expenses, Tenant shall, at Landlord's request, pay as Additional Rent during
each Comparison Year, an amount equal to Tenant's Proportionate Share of the
Excess Expenses payable during such Comparison Year, as estimated in good
faith by Landlord from time to time. Such payments shall be made in monthly
installments, commencing on the first day of the month following the month in
which Landlord notifies Tenant of the amount it is to pay hereunder and
continuing until the first day of the month following the month in which
Landlord gives Tenant a new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the amount of the Excess
Expenses for each Comparison Year and Tenant's Proportionate Share thereof,
and then to make an adjustment in the following year based on the actual
Excess Expenses incurred for that Comparison Year.
(c) By April 1 of each year, Landlord shall
use its commercially reasonable best efforts to deliver to Tenant a
reconciliation statement setting forth Tenant's Proportionate Share of the
Excess Expenses for the preceding Comparison Year. Failure of Landlord to
supply said statement by April 1st of each year shall not relieve Tenant of
any of its obligations under the Lease. If Tenant's Proportionate Share of
the actual Excess Expenses for the previous Comparison Year exceeds the total
of the estimated monthly payments made by Tenant for such year, Tenant shall
pay Landlord the amount of the deficiency within thirty (30) days of the
receipt of the statement. If such total exceeds Tenant's Proportionate Share
of the actual Excess Expenses for such Comparison Year, then Landlord shall
credit against Tenant's next ensuing monthly installment(s) of Additional
Rent an amount equal to the difference until the credit is exhausted. If a
credit is due from Landlord on the expiration of this Lease, Landlord shall
pay Tenant the amount of the credit. The Obligations of Tenant and Landlord
to make payments required under this Section 4 shall survive the expiration
of this Lease.
(d) Tenant's Proportionate Share of Excess
Expenses in any Comparison Year having less than 365 days shall be
appropriately prorated.
4.4 INTENTIONALLY OMITTED.
4.5 AUDIT. If any dispute arises as to the amount of
any Excess Expenses due hereunder, Tenant shall have right within three-month
period following delivery of the Tenant's statement of Proportionate Share
(See Section 4.3 (c)) to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of Excess Expenses owed and cannot come to an agreement with Landlord,
a certification as to the proper amount shall be made by a certified public
accountant of Tenant's choice of any one of the following three certified
public accounting firms: (a) KPMG Peat Marwick, LLP, (b) Deloitte & Touche,
LLP, or (c) Arthur Anderson , LLP. The certification by such firm shall be
final and conclusive. Tenant agrees to pay the cost of such certification
unless it is determined that Landlord's Building Operating Expenses prior to
getting the certification are overstated by more than five percent (5%), in
which case Landlord shall pay the cost of such certification.
5. LATE PAYMENTS. Base Rent shall be due on the first day of each
month in advance throughout the Term of this Lease. Tenant hereby acknowledges
that the late payment by Tenant to Landlord of Rent due hereunder will cause
Landlord to incur costs not contemplated in this Lease, the exact amount of
which will be extremely difficult and impracticable to ascertain. Such costs
include but are not limited to processing, administrative, and accounting costs.
Accordingly, if any installment of Rent shall not be received by Landlord by
5:00 p.m., PST on the tenth (10th) day of the month, Tenant shall pay to
Landlord a late charge equal to ten (10%) percent of the total amount due. In
addition, if any installment of Rent shall not be received by Landlord by 5:00
p.m., PST on the tenth (10th) day of the month, Tenant shall pay to Landlord a
late charge equal to one percent (1%) per month or portion thereof on such
rental or amount due for each calendar day beyond the tenth (10th) day of the
month that full payment is not received by Landlord. Such late
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charges shall be considered to be liquidated damages. In addition, Tenant
shall pay any attorneys fees incurred by Landlord by reason of Tenant's
failure to pay rent and/or other charges when due under the Lease, including
notices and service of notices. All such legal fees incurred by Landlord
shall be deemed Additional Rent. The parties agree that such late charges
represent a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of Tenant's default with respect to
such overdue amount, nor prevent Landlord from exercising any other rights
and remedies granted under this Lease.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord a
security deposit ("Security Deposit") in the amount set forth in EXHIBIT A
hereto. The Security Deposit shall be held by Landlord as security for the
faithful performance by Tenant of all the terms, covenants, and conditions of
this Lease to be kept and performed by Tenant during the Term hereof. If
Tenant defaults with respect to any provision of this Lease, including but
not limited to the provisions relating to the payment of Rent, Landlord may
(but shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any Rent or any other sum in default, or
for the payment of any amount which Landlord may spend or become obligated to
spend by reason of Tenant's default, or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's default. If
any portion of said deposit is so used or applied, Tenant shall, within three
(3) days after written demand therefore, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount and
Tenant's failure to do so shall be a default and breach of this Lease.
Landlord shall not be required to keep the Security Deposit separate from its
general funds and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant (or, at Landlord's option, to the last assignee
of Tenant's interest hereunder) within sixty (60) days after the expiration
of the Term or such date the Tenant has vacated the Premises, whichever comes
later. In the event of termination of Landlord's interest in this Lease,
Landlord shall transfer the Security Deposit to Landlord's successor in
interest. In no event shall Tenant be entitled to return of the Security
Deposit from the holder of a first mortgage on the Premises, or from its
assignees or successors in interest, unless the first mortgage or its
assignees or successors in interest actually received the Security Deposit at
the time it acquired title or came into possession of the Premises.
7. QUIET ENJOYMENT. Upon paying the Rent for and observing and
keeping all covenants, agreements and conditions of this Lease, Tenant shall
quietly have and enjoy the Premises and improvements during the Term of this
Lease without hindrance or molestation, including the use and enjoyment of
the common areas of the Building.
8. TAXES AND CHARGES. Landlord shall pay or otherwise
discharge all real property taxes or assessments of any kind and character
which may be assessed against the Buildings during the Term of this Lease or
any extension hereof, subject to reimbursement by Tenant of Tenant's share of
such taxes in accordance with the provisions of Paragraph 4.2 hereof. Tenant
shall have such responsibility as to personal property placed by Tenant upon
the Premises.
9. LANDLORD'S RIGHT TO MORTGAGE, SELL OR ASSIGN; ATTORNMENT.
9.1 SUBORDINATION. Landlord shall have the right to
require Tenant to subordinate this Lease to any ground lease, deed of trust,
mortgage or the Declarations encumbering the Premises, any advances made on
the security thereof and any renewals, modifications, consolidations,
replacements or extensions thereof, whenever made or recorded. Landlord may,
by written notice to tenant, subordinate this Lease to any new Declarations.
If any beneficiary under a deed of trust or mortgagee under a mortgage elects
to have this Lease prior to the lien of its deed of trust or mortgage and
gives written notice thereof to Tenant, this Lease shall be deemed prior to
such deed of trust or mortgage whether this Lease is dated prior or
subsequent to the date of said deed of trust or mortgage or the date of
recording thereof. Landlord shall use its best efforts to procure from the
lender and provide to Tenant a commercially reasonable non-disturbance
agreement (which may be part of a subordination and attornment agreement)
recognizing Tenant's right to possession of the Premises so long as Tenant is
not in default under this Lease beyond any applicable cure period.
9.2 ATTORNMENT. If Landlord's interest in the Premises is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, or by any other person or entity as a result of
any other transfer by Landlord, Tenant shall attorn to the transferee of or
successor to Landlord's interest in the Premises and shall recognize such
transferee or successor as Landlord under this Lease; provided, however, that in
the absence of any other
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contractual obligation or of an existing non-disturbance agreement as
described above, such attornment may be conditioned upon the agreement of
such transferee or successor to be bound by this Lease. Tenant waives the
protection of any statute or rule of law which gives or purports to give
Tenant any right to terminate this Lease or surrender possession of the
Premises upon the transfer of Landlord's interest.
9.3 SIGNING OF DOCUMENTS. Tenant shall sign and
deliver any instrument or documents necessary or appropriate to effectuate or
evidence any such attornment or subordination or agreement to do so. If
Tenant fails to do so within ten (10) days after written request, such
failure shall constitute a default under this Lease hereunder without further
notice to Tenant, or at Landlord's option, Landlord shall execute such
documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does
hereby make, constitute and irrevocably appoint Landlord as Tenant's
attorney-in-fact and in Tenant's name, place and stead, to execute such
documents in accordance with this Paragraph 9.3.
9.4 ESTOPPEL CERTIFICATES.
9.4.1. REQUEST. Upon either party's written
request ("Requesting Party"), the other party ("Responding Party") shall
execute, acknowledge and deliver to the Requesting Party a written statement
certifying: (i) that none of the terms or provisions of this Lease have been
changed (or if they have been changed stating how they have been changed);
(ii) that this Lease has not been canceled or terminated and is in full force
and effect; (iii) the last date of payment of the Base Monthly Rent, and
other charges and the time period covered by such payment; (iv) that the
Requesting Party is not in default under this Lease (or, if the Requesting
Party is claimed to be in default, stating why); and (v) such other
statements as reasonably required by the Requesting Party, or any lender or
prospective lender, investor or purchaser. The Responding Party shall deliver
such statement to the Requesting Party within ten (10) days after the
Requesting Party's request. Any such statement by the Responding Party may be
given by the Requesting Party to any prospective purchaser or encumbrancer,
or sublessee or assignee of the Premises. Such purchaser or encumbrancer may
rely conclusively upon such statement as true and correct.
9.4.2. FAILURE TO RESPOND. If the Responding
Party does not deliver such statement to the Requesting Party within such ten
(10) day period, such failure shall constitute a default under this Lease.
Further, the Requesting Party and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the
terms and provisions of this Lease have not been changed except as otherwise
represented by the Requesting Party; (ii) that this Lease has not been
canceled or terminated except as otherwise represented by the Requesting
Party; (iii) that not more than one month's Base Monthly Rent or other
charges have been paid in advance; and (iv) that Landlord is not in default
under this Lease. In such event, the Responding Party shall be estopped from
denying the truth of such facts.
9.5. TENANT'S FINANCIAL CONDITION. Within ten (10) days
after written request from Landlord, but not more frequently that quarterly,
unless Landlord is refinancing or has a prospective purchaser for the
Building, Tenant shall deliver to Landlord such financial statements as are
reasonably required by Landlord to verify the net worth of Tenant, or any
assignee, subtenant or guarantor of Tenant. In addition, Tenant shall deliver
to any lender or proposed purchaser of the Premises or any portion of the
Building designated by Landlord, any publicly available financial statements
required by such lender or purchaser to facilitate the sale, financing or
refinancing of the Premises or any portion of the Building. Tenant represents
and warrants to Landlord that each such financial statement is a true and
accurate statement as of the date of such statement. All financial statements
shall be confidential and shall be used only for the purposes set forth
herein. Each such financial statement shall be executed by Tenant and shall
be certified by Tenant to be true and correct.
10. USE OF PREMISES. Tenant agrees that it will not knowingly
permit any part of the Premises to be used for unlawful or immoral purposes
or for any purpose or use which may constitute a nuisance. Tenant shall not
do or bring or permit anything to be done in or about the Premises nor keep
anything therein which will, in any way, increase the existing rate of or
affect any fire or other insurance upon the Building or any of its contents,
or cause cancellation of any insurance policy covering said Building or any
part thereof or any of its contents. Tenant shall not do or permit anything
to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or
injure or annoy them. The Premises shall not be used for any purpose other
than that set forth in EXHIBIT A, except with the prior written consent of
Landlord.
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11. PREMISES TO BE KEPT IN GOOD AND SAFE CONDITION. Landlord
covenants it will, at all times, keep the Building in which the Premises are
located and the heating, ventilating, and air conditioning systems servicing
the Premises, and all appurtenances thereto, and all sidewalks in good,
clean, safe, secure, and sanitary condition and repair. Tenant shall be
liable for any damage to any of the Premises or any appurtenances resulting
from the acts or omissions of Tenant or its agents, employees, customers or
patrons. Landlord shall not be liable to Tenant for any damage to Tenant or
Tenant's property from any cause except that Landlord shall be liable to
Tenant for damage to Tenant resulting from the gross negligence or willful
acts or omissions of Landlord or its authorized representatives. Tenant
waives all claims against Landlord for damage to persons or property arising
for any reason except that Landlord shall be liable to Tenant for damage to
Tenant resulting from the negligence or willful acts or omissions of Landlord
or its authorized representatives. Tenant shall hold Landlord harmless from
all damages arising out of any damage to any person or property occurring in,
on or about the Premises and the complex in which the Premises are located
except that Landlord shall be liable to Tenant for damage resulting from the
gross negligence or willful acts or omissions of Landlord or its authorized
representatives, and Landlord shall hold Tenant harmless from all damages
arising out of any such damage. A party's obligation to indemnify hereunder
and hold the other party harmless shall be limited to the sum that exceeds
the amount of insurance proceeds, if any, received by the party being
indemnified.
12. ALTERATIONS. Tenant shall not make any alterations,
additions, or improvements to the Premises which exceed Two Thousand Five
Hundred Dollars ($2,500) (unless such changes impact the structural integrity
of the building or affect load-bearing supports) without in each instance
first obtaining the written consent of Landlord. All requests for
alterations, additions and improvements must be approved by Landlord's
architect and constructed by the contractor who constructed the Building or
such other contractor as Landlord may approve in its sole discretion. Any
construction shall be in strict accordance with all applicable laws, building
regulations, and ordinances of the United States, the State of New Mexico,
the County of Bernalillo, and the City of Albuquerque. Any bills for labor
and material shall be paid when due and Tenant shall allow no lien to be
attached to or charged against the Premises. Upon written demand of Landlord,
Tenant shall furnish Landlord adequate security by bond of a surety company
licensed to do business within the State of New Mexico for the payment of all
bills for labor and materials used in connection with any alterations,
additions, or improvements to the Premises. Tenant shall have the right to
contest the correctness or the validity of any lien if, within ten (10)
business days after demand by Landlord, Tenant procures and records a release
of the lien. Furthermore, at all times when Tenant or its agents, contractors
or employees are performing alterations to the Premises, Tenant or Tenant's
contractor shall maintain public liability and property damage insurance on
such activities with a single combined limit of not less than One Million
Dollars ($1,000,000), naming Landlord and Landlord's managing agent as
additional insureds. Furthermore, Tenant or Tenant's contractor shall procure
workmen's compensation insurance to cover the activities of all persons
engaged in such alterations. Tenant's contractor shall follow and abide by
all the Rules and Regulations set forth in this Lease. All such alterations,
additions or improvements shall become the property of Landlord upon
termination of this Lease or any extension hereof except for Tenant's
moveable fixtures, free standing shelving, counters or furniture, provided
that Tenant shall repair and restore any portion of the Premises left damaged
or unsightly by removal of the same by Tenant. Tenant shall, upon written
demand by Landlord, given at least thirty (30) days prior to the end of the
Term, at Tenant's sole cost and expense, immediately and with due diligence,
remove any alterations, additions or improvements made by Tenant designated
by Landlord to be removed and Tenant shall, at its sole cost and expense,
repair any damage to the Premises caused by such removal.
13. REPAIRS. By taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises as being in good, sanitary order,
condition and repair subject to the mutual execution of a post occupancy
"punch list", rendered by Tenant to Landlord within ten (10) days of
occupancy, that will identify those items in need of completion. Tenant
shall, during the Term, at Tenant's sole cost and expense, keep the Premises
and every part thereof in good condition and repair, whether or not the
damaged portion of the Premises or the means of repairing the same are
reasonably or readily accessible to Tenant. Tenant shall upon the expiration
or sooner termination of this Lease, surrender the Premises to the Landlord
in good condition, ordinary wear and tear and damage from causes beyond the
reasonable control of Tenant excepted. Except as specifically provided in
EXHIBIT C to this Lease, Landlord shall have no obligation whatsoever to
alter, remodel, improve, repair, decorate or paint the Premises or any part
thereof and the parties hereto affirm that Landlord has made no
representations to Tenant in respect to the condition of the Premises or the
Building except as specifically herein set forth in EXHIBIT C to this Lease.
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14. SERVICES AND UTILITIES. Provided that Tenant is not in
default hereunder, Landlord agrees to furnish to the Premises during
reasonable hours of generally recognized business days, to be determined by
Landlord at its sole discretion, and subject to the rules and regulations of
the Building, of which the Premises are a part, electricity for normal
lighting and fractional horsepower office machines, heat and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises, and janitorial service. Additional cooling will be available to
Tenant upon adequate request at additional hourly charges. Standard hours of
operation shall be from 7:00 a.m. to 6:00 p.m. Monday through Friday, and
from 9:00 a.m. to 12:00 Noon on Saturdays, holidays recognized by the U.S.
Government excepted. Landlord shall also maintain and keep lighted the common
stairs, common entries and common toilet rooms in the Building of which the
Premises are a part. All such lightings shall be subject to energy management
of the Building. Landlord shall not be liable for, and Tenant shall not be
entitled to, any reduction of Rent by reason of Landlord's failure to furnish
any of the foregoing when such failure is caused by accident, breakage,
repairs, strikes, lockouts, or other labor disturbances or labor disputes of
any character, or by any other cause beyond the reasonable control of
Landlord. Landlord shall not be liable under any circumstances for a loss of
or injury to property, however, occurring through or in connection with or
incidental to failure to furnish any of the foregoing. Wherever heat
generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation and the
cost of operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord.
Tenant will not, without written consent of Landlord, use any
apparatus or device in the Premises, including but without limitation
thereto, electronic data processing machines, punch card machines, or any
other machines using in excess of 120 volts which will in any way increase
the amount of electricity usually furnished or supplied for the use of the
Premises as general office space; nor connect with electric current except
through existing electrical outlets in the Premises, any apparatus or device
for the purpose of using electric current. If Tenant shall require water or
electric current in excess of that usually furnished or supplied for the use
of the Premises as general office space, Tenant shall first procure the
written consent of Landlord, which Landlord may refuse to grant, but if
Landlord shall give written consent then Landlord may cause a water meter or
electrical current meter to be installed in the Premises so as to measure the
amount of water or electric current consumed for any such use. The cost of
any such meters and of installation, maintenance and repair thereof shall be
paid for by the Tenant and Tenant agrees to pay to Landlord promptly upon
demand therefore by Landlord for all such water and electric current consumed
as shown by said meters, at the rates charged for such services by the local
public utility furnishing the same, plus any additional expense incurred in
keeping account of the water and electric current so consumed. If a separate
meter is not installed, such excess cost for such water and electric current
will be established by an estimate made by a utility company or electrical
engineer.
15. ASSIGNMENT AND SUBLETTING.
15.1 LANDLORD'S CONSENT REQUIRED.
15.1.1. TRANSFER. Tenant shall not either
voluntarily or by operation of law, assign, mortgage, pledge, hypothecate or
encumber this Lease or the leasehold interest created hereby or any interest
herein, or sublet the Premises or any portion thereof, or license the use of
all or any portion of the Premises or permit any other person or entity to
occupy or use the Premises or any portion thereof (collectively referred to
herein as a "Transfer") , without the prior written consent of Landlord,
which consent shall not be unreasonably withheld but which is subject to the
following conditions: (i) the proposed transferee's use of the Premises must
be consistent with Exhibit A hereof; (ii) the transferee is of a character
and engaged in a business which is in keeping with the Landlord's standards,
in Landlord's reasonable discretion, for the Building and Project; (iii) the
proposed Transfer must not breach any financing agreement or any other
agreement relating to the Building or the Project; (iv) the net worth of the
proposed transferee must not be less than the Tenant's net worth as of the
effective date of this Lease; and (v) the proposed transferee must not be an
existing tenant in the Building.
15.1.2. REQUEST. Prior to a Transfer, Tenant shall
request Landlord's consent in writing, and shall include with such request a
copy of all proposed contracts, agreements, subleases, or other documents
describing the Transfer or between Tenant and the proposed transferee. Landlord
shall respond to Tenant's request for
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consent to a proposed Transfer within fifteen (15) business days after
receipt of all information described above and reasonably necessary to allow
Landlord to evaluate all the conditions set forth in Section 15.1.1 above.
15.1.3. EXCEPTION. Notwithstanding Tenant's
obligation to obtain Landlord's prior consent to a Transfer, a Transfer to an
entity that acquires Tenant in its entirety or substantially all of Tenant's
business in Albuquerque, New Mexico, or a Transfer in which Tenant merges in
total with another entity, or a Transfer to a wholly-owned subsidiary or
parent of Tenant, shall not require Landlord's prior consent so long as (i)
Tenant provides prior written notice to Landlord of such a Transfer and (ii)
the transferee's use of the Premises is consistent with all provisions of
this Lease.
15.2. TRANSFERS OF INTERESTS IN TENANT REQUIRING
LANDLORD'S CONSENT. If Tenant hereunder is a corporation or is an
unincorporated association or partnership, then the transfer, assignment, or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate in excess of twenty-five percent (25%) shall be
deemed a Transfer under the meaning of this Article 15. Notwithstanding the
foregoing, in no event shall a public trading of securities in Tenant be
deemed a Transfer.
15.3 RECAPTURE RIGHTS. In lieu of giving or withholding
consent pursuant to Section 15.1, Landlord may, at its option, terminate this
Lease (or in the case of a proposed subletting or assignment of a portion of
the Premises, elect to terminate this Lease as respects that portion) upon
thirty (30) days' prior notice. Thereafter Landlord may enter into a lease
agreement with such proposed transferee. In the event Landlord elects to
terminate the Lease as set forth above, Tenant may negate Landlord's election
by withdrawing its request for Landlord's consent to the Transfer by
delivering notice thereof to Landlord within ten (10) days of Tenant's
receipt of Landlord's notice. In consideration for Landlord's right and
election to terminate this Lease as set forth above, Landlord will release
Tenant from liability under this Lease with respect to the Premises (or the
portion of the Premises subject to the proposed Transfer) accruing after
termination of this Lease resulting from Landlord's exercise of such right.
Landlord and Tenant agree and acknowledge that Landlord's right to recapture
as set forth above is intended to permit Landlord to maintain control over
the leasing of space in the Project to protect its interest in the Project
and the interest of any lenders and to prevent such interest from being
impaired. Tenant understands the nature of this right and has approved the
recapture provisions in consideration for (i) Tenant's right to negate
Landlord's recapture election by withdrawing its request for a Transfer and
(ii) Landlord's agreement to release Tenant from liability arising or
relating to events or obligations after such termination pursuant to the
provisions of this Section.
15.4. TRANSFER WITHOUT CONSENT. Except as specifically
set forth herein, any Transfer without Landlord's prior written consent
shall, at the option of Landlord, constitute a non-curable breach of this
Lease.
15.5. NO RELEASE OF TENANT. No Transfer shall release
Tenant or any guarantor or change Tenant's primary liability to pay the Rent
and to perform all other obligations of Tenant under this Lease. Landlord's
acceptance of Rent from any other person is not a waiver of any provision of
this Article 15. Consent to one Transfer is not a consent to any subsequent
Transfer. If Tenant's transferee defaults under this Lease, Landlord may
proceed directly against Tenant without pursuing remedies against the
transferee and without releasing such transferee from its obligations under
this Lease. Landlord may consent to subsequent assignments or modifications
of this Lease by Tenant's transferee, without notifying Tenant or obtaining
its consent. Such action shall not relieve Tenant's liability under this
Lease.
15.6. RIGHT TO COLLECT RENT. If the Lease is assigned,
Landlord may collect Rent directly from any such assignee, after providing
written notice to such assignee. If all or part of the Premises is subleased
and Tenant defaults, Landlord, by providing written notice to such subtenant,
may collect Rent otherwise due to Tenant under such sublease directly from
such subtenant. Landlord will then apply the amount collected from such
subtenant to Tenant's monetary obligations under the Lease.
15.7. EFFECT OF A TRANSFER. Whether or not Landlord's
consent is required, the transferee shall agree to comply with and be bound by
all of the terms, covenants, conditions, provisions and agreements of this Lease
to the extent of the space transferred, assigned, or sublet; and Tenant shall
deliver to Landlord promptly after execution an executed copy of each such
Transfer document between Tenant and the transferee. In addition, any sublease
shall provide
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that it shall be subject and subordinate to this Lease and to all mortgages;
that Landlord may enforce the provisions of the sublease including collection
of rents; and that in the event of termination of this Lease for any reason,
including without limitation a voluntary surrender by Tenant, in the event of
any reentry or repossession of the Premises by Landlord, or in the event of
any default by Tenant, whether or not Landlord elects to terminate this Lease
on account of such default, Landlord may, at its option, either (i) terminate
the sublease license, concession or other consensual arrangement for
possession entered into by Tenant and affecting the Premises, or (ii) take
over all of the right, title and interest of Tenant, as sublessor, under such
sublease, in which case such sublessee shall attorn to Landlord but in such
event Landlord shall not (a) be liable for any previous act or omission of
Tenant under such sublease, (b) be subject to any defense or offset
previously accrued in favor of the sublessee against Tenant, or (c) be bound
by any previous modification of any sublease made without Landlord's written
consent, or by any previous prepayment by sublessee of more than one month's
rent. In the event Landlord elects to succeed to Tenant's interest, Tenant
shall, as of the date of notice by Landlord of that election, have no further
right to, or interest in, the Rent or other consideration receivable under
that arrangement, and Tenant further agrees to execute any and all
documentation required by Landlord to effect such an assignment, and hereby
grants Landlord a special power of attorney to execute any such required
documentation on Tenant's behalf.
15.8. EVENT OF BANKRUPTCY. If this Lease is assigned to
any person or entity pursuant to the provisions of the United States
Bankruptcy Code, 11 U.S.C. Section 101, et seq. (the "Bankruptcy Code"), any
and all monies or other consideration payable or otherwise to be delivered in
connection with such assignment shall be and remain the exclusive property of
Landlord, and shall not constitute the property of Tenant or of the estate of
Tenant within the meaning of the Bankruptcy Code. Any and all monies or other
consideration constituting Landlord's property under this Section not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and
shall be promptly paid or delivered to Landlord. Any person or entity to
which this Lease is assigned pursuant to the provisions of the Bankruptcy
Code shall be deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such assignment.
15.9. NO MERGER. No merger shall result from Tenant's
sublease of the Premises under this Article 15, Tenant's surrender of this
Lease or the termination of this Lease in any other manner.
15.10. ASSIGNMENT FEES AND PROCEDURES. In the event
Landlord shall be requested to consent to a Transfer, within fifteen (15)
days after written request, Tenant shall pay as Additional Rent, any
administrative costs and/or reasonable legal fees that Landlord incurs in
reviewing and processing any request by Tenant for Landlord's approval for
assignment or sublease.
15.11. EXCESS RENT. Landlord and Tenant shall each
receive Fifty Percent (50%) ("Share") of any and all sums or other economic
consideration received by Tenant as a result of assignment, sublease, or
transfer, however denominated, which exceed, in the aggregate, the remaining
total sums which Tenant is obligated to pay Landlord under this Lease after
offset for Tenant's and Landlord's costs for the transaction, including any
tenant improvements and leasing commissions. Tenant's Share shall be paid to
Landlord as Additional Rent under this Lease without affecting or reducing
any other obligations of Tenant hereunder.
16. CONDEMNATION. In the event of the taking as the result of or
in lieu of condemnation or eminent domain, of either all of the Premises or of a
perpetual easement upon all of the Premises which renders the Premises
unsuitable for Tenant's intended use, the Term of this Lease shall expire as of
the date of such taking. In the event of any such taking of less than all of the
Premises and improvements or any easement which does not render the Premises
unsuitable for Tenant's intended use, this Lease shall remain in full force and
effect with respect to the remainder of the Premises and improvements and the
rent provided above shall be reduced in proportion to the number of square feet
of net rentable area of the Premises before and after the taking; provided,
however, that in the event a partial taking results in the property being
entirely unusable for the purposes intended, the Term of this Lease shall expire
as of the date of such taking. Upon the receipt by Landlord or Tenant of any
notice of the commencement of any proceedings or any such taking, the party
receiving such notice shall promptly give written notice thereof to the other
party to this Lease. In the event of such taking of all or any part of the
Premises and improvements, the aggregate of the awards or other proceeds of such
taking, including interest, shall be paid to the Landlord and Tenant shall have
no interest therein except for that portion attributable to the value on the
date
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of taking of Tenant's improvements or alterations made to the Premises taking
into account the remaining useful life to Tenant of such improvements had
Tenant continued to have the enjoyment of the same for the remaining Term of
the Lease.
17. INSURANCE. Landlord shall, at all times during the Term of
this Lease, keep all buildings and other improvements that are a part of the
Building in which the Premises are located, insured against loss or damage by
fire, which policy or policies of insurance shall have a clause therein for
extended coverage, by an insurance company or insurance companies of
generally recognized responsibility authorized to do business in the State of
New Mexico acceptable to any mortgagee of the Premises. Any such insurance
covering Tenant's personal property shall be the sole responsibility of
Tenant.
17.1. WAIVER OF SUBROGATION. Landlord and Tenant hereby
waive any rights each may have against the other and Tenant hereby waives any
rights it may have against any of the parties to the Lease on account of any
loss or damage occasioned to Landlord or Tenant, as the case may be, their
respective property, the Premises, or its contents or to other portions of
the Premises, arising from any risk generally covered by fire and extended
coverage insurance; and the parties each, on behalf of their respective
insurance companies insuring the property of either Landlord or Tenant
against any such loss, waive any right of subrogation that it may have
against Landlord or Tenant, as the case may be. The foregoing waivers of
subrogation shall be operative only for so long as permitted by law and the
same do not invalidate or limit recovery by either Landlord or Tenant under
any insurance policy.
17.2. DEFENSE AND INDEMNIFICATION OF LANDLORD. Tenant
shall defend, indemnify and hold harmless Landlord and its agents and members
from and against any and all claims, demands, liabilities and/or obligations
arising from the use or occupancy of the Premises by or under Tenant or from
the conduct of Tenant's business or from any activity, work, or other things
done, permitted or suffered by the Tenant (a) occurring in, on or about the
Premises or any part thereof, and (b) occurring in, on or about the Building
or any facilities (including, without limitation, passageways, elevators,
common area hallways, sidewalks and parking areas), the use of which Tenant
may have in conjunction with other Tenants of the Building, except Landlord
shall be liable to Tenant for damage resulting from the gross negligence or
willful acts of Landlord or its authorized agents. Landlord need not have
first paid any such claim in order to be so indemnified. Tenant upon notice
from Landlord shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord and pay all concomitant costs associated with
Landlord's defense, including but not limited to the services provided by
experts. Tenant as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises, from any cause other than from Landlord's gross negligence or
willful acts, and Tenant hereby waives all claims in respect thereof against
Landlord.
To the extent applicable, all indemnifications set forth in this
Agreement are subject to the provisions of 56-7-1 NMSA (1978)
17.3 Tenant shall further indemnify and hold harmless
Landlord and its agents, members, and lenders against and from any and all
claims, demands, liabilities and/or obligations arising from any breach or
default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease, or arising from any act or negligence of
Tenant, or any officer, agent, employee, guest, or invitee of Tenant, and
from all costs, attorney's fees, and liabilities incurred in or about the
defense thereof or any action or proceeding brought thereon and in case any
action or proceeding be brought against Landlord by reason thereof. Landlord
need not have first paid any such claim in order to be so indemnified. Tenant
upon notice from Landlord shall defend the same at Tenant's expense by
counsel reasonably satisfactory to Landlord and pay all concomitant costs
associated with Landlord's defense, including but not limited to the services
provided by experts. Tenant as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons
in, upon or about the Premises, from any cause other than from Landlord's
gross negligence or willful acts, and Tenant hereby waives all claims in
respect thereof against Landlord.
17.4. Landlord or its agents shall not be liable for any
loss or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any part
of the Project or from the pipes, appliances or plumbing works therein or
from the roof, street or subsurface or from any other place resulting from
dampness or any other cause whatsoever, unless caused by or due to the gross
negligence or willful acts of the Landlord, its agents, servants or
employees. Landlord or its agents shall not be liable for interference with
the light, air, or for any latent
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defect in the Premises. Tenant shall give prompt notice to Landlord in case
of casualty or accidents in or about the Premises. Landlord shall not be
liable to Tenant for any loss or damage occasioned by or the result of other
tenants within the Project.
17.5 TENANT INSURANCE. From and after Landlord's
delivery of possession of the Premises to Tenant and throughout the Term of
this Lease, Tenant, at its sole cost and expense, shall carry and maintain,
in the amounts and form specified, all of the insurance specified below
insuring Landlord and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be issued by an insurance company
or insurance companies of generally recognized responsibility authorized to
do business in the State of New Mexico acceptable to Landlord and any
mortgagee of the Premises, the coverages set forth below. All policies of
insurance required to be maintained by Tenant under this Lease shall have a
policy holder's rating of not less than "A" and a financial rating of "X" as
rated in the most current available Best's Insurance Reports, and shall (with
the exception of Worker's Compensation Insurance) name Landlord, Landlord's
lender and such other parties as Landlord may reasonably require, as
additional insured. Such policies shall be for the mutual and joint benefit
and protection of Landlord, Tenant and such other parties designated by
Landlord. No later than ten (10) days prior to the commencement date of the
Term of this Lease, Tenant shall deliver to Landlord copies of such policies
of insurance or certificates thereof (which certificates shall be form
ACCORD-27) together with the original endorsements showing the coverage
required herein. All public liability and property damage shall contain a
provision that Landlord, although named as an additional insured, shall
nevertheless be entitled to recover under such policies for any loss suffered
by Landlord by reason of the negligence of Tenant. As often as such policy
shall expire or terminate, renewal or additional policies shall be procured
and maintained by Tenant in like manner and to like extent, with no lapse in
coverage. All policies of insurance or certificates thereof delivered to
Landlord must contain a provision that the company writing said policy will
give to Landlord thirty (30) days notice in writing (by certified mail,
return receipt requested) in advance of any cancellation or lapse or the
effective date of any reduction in the amounts of insurance. All public
liability, property damage and other casualty policies to be maintained by
Tenant shall be written as primary policies, not contributing with and in
excess of coverage which Landlord may carry. In addition, such policies shall
include a waiver by the insurer of any right of subrogation against Landlord
and/or Landlord's lenders, which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of Landlord
and/or Landlord lender. Tenant agrees to permit Landlord at all reasonable
times to inspect the policies of insurance of Tenant covering the risks upon
the Premises for which policies or copies thereof are not delivered to
Landlord.
(i) Commercial General Liability Insurance. The limits of
liability of such insurance shall be an amount not less than Two Million
Dollars ($2,000,000) per occurrence, Personal Injury including death and Two
Million Dollars ($2,000,000) per occurrence, Property Damage Liability or Two
Million Dollars ($2,000,000) combined single limit for Personal Injury and
Property Damage Liability. Compliance with this requirement shall not,
however, limit the liability of Tenant hereunder.
(ii) "All risk" property insurance on Tenant's personal
property in an amount not less than one hundred percent (100%) of the full
replacement value. This insurance shall include fire and extended coverage
perils. Such property insurance policy will contain appropriate endorsements
waiving the insurer's right of subrogation against Landlord; and
(iii) Worker's Compensation insurance in such amounts as
required by applicable New Mexico law and Employer's Liability Insurance with
limits of One Million Dollars ($1,000,000) per accident.
(iv) Loss of income, business interruption and extra
expense insurance in such amounts as will reimburse Tenant for direct and
indirect loss of earnings and incurred costs attributable to the perils
commonly covered by Tenant's property insurance described above for a period
of not less than one (1) year. Such insurance shall be carried with the same
insurer that issues the insurance for Tenant's personal property.
(v) At Tenant's option, Tenant may provide the coverages
required under this Subparagraph 17.5 (a) through blanket policies of insurance
covering Tenant's other properties. Tenant shall deliver a certificate of
insurance evidencing the coverages (or such other evidence as Landlord may
reasonably request) not earlier than thirty (30) days prior to the commencement
date, and within thirty (30) days of each renewal or at such other times
Landlord may request in
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writing. Each policy will provide that Landlord shall receive at least thirty
(30) days' prior written notice of cancellation, material alteration or
non-renewal of the policy.
18. DESTRUCTION OF IMPROVEMENTS. If the improvements on the
Premises shall be partially (in such a way as to materially and adversely
affect the operations of Tenant) or totally destroyed by fire, elements or
acts beyond the control of Landlord or Tenant, during the Term of this Lease,
then upon written notice to Tenant within sixty (60) days following such
destruction, Landlord shall either elect to terminate this Lease and any
further obligation of Tenant hereunder shall cease effective as of the date
of destruction, or Landlord shall elect to repair and rebuild the Premises to
its former condition diligently, in which case this Lease shall remain in
full force and effect. In the event Landlord elects not to repair or rebuild
the Premises, Landlord shall receive the entire proceeds of insurance for
damage to the Building paid as a result of the destruction and Tenant shall
have no right to any such proceeds. The expense of repairing and rebuilding
the improvements to their former condition shall not result in any increase
in the rentals provided above. The obligation of Tenant to pay Rent shall
abate, partially or totally, during any period in which the improvements or
any portion thereof are untenantable because of such destruction, repair or
rebuilding, but only to the extent that the Premises are not useable during
such period of repair and rebuilding. Despite any destruction or damage to
the Premises or the Building, Tenant shall not be released from any of its
obligations under this Lease, except to the extent and upon the conditions
expressly stated in this Section 18. Tenant hereby agrees that its rights
shall be exclusively governed by the provisions of this Section 18.
19. DEFAULT. The occurrence of any one or more of the following
events ("Event of Default") shall constitute a default and breach of this
Lease by Tenant:
19.1. Tenant's abandonment of the Premises. Tenant's
failure to occupy and operate and Premises for ten (10) consecutive days
shall be deemed an abandonment and vacation of the Premises, except on
condemnation or destruction.
19.2. The failure by Tenant to make any payment of the
Base Rent, Additional Rent or any other payment required to be made by Tenant
hereunder, as and when due, where such failure shall continue for a period of
five (5) days after written notice thereof from Landlord to Tenant.
19.3. The failure by Tenant to observe or perform any of
the express or implied covenants or provisions of this Lease to be observed
or performed by Tenant, where such failure shall continue for a period of
thirty (30) days after written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more
than thirty (30) days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant shall commence such cure within said
thirty (30) day period and thereafter diligently prosecute such cure to
completion. To the extent permitted by law, such thirty (30) day notice shall
constitute the sole and exclusive notice required to be given to Tenant under
applicable unlawful detainer statutes.
19.4. The making by Tenant of any general assignment or
general arrangement for the benefit of creditors; or the filing by or against
Tenant of a petition to have Tenant adjudged as bankrupt, or a petition of
reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a receiver to take
possession of substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not restored to
Tenant within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this lease, where such seizure is not
discharged in thirty (30) days.
20. REMEDIES UPON DEFAULT. Landlord shall have the remedies set
forth in this Section 20 upon the occurrence of any Event of Default. These
remedies are not exclusive, rather they are cumulative and in addition to any
remedies now or later allowed at law or in equity. Upon the occurrence of an
Event of Default, Landlord may at any time, with or without notice or demand
(except for any notice required by Section 19 above) and without limiting
Landlord in the exercise of any other right or remedy which Landlord may have
by reason of such Event of Default, exercise the remedies set forth in this
Section 20.
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<PAGE>
20.1 Continue this Lease in effect so long as Landlord
does not terminate Tenant's right to possession and Landlord may enforce all
of its rights and remedies hereunder, including, at the option of Landlord:
(i) the right to declare the Term ended and with process of law to re-enter
the Premises and take possession thereof and remove all persons therefrom,
and Tenant shall have no further claim thereon or thereunder; or (ii) the
right, without declaring this Lease ended and with or without process of law,
to re-enter the Premises, take possession thereof, remove all persons
therefrom and occupy or lease the whole or any part thereof for and on
account of Tenant and upon such terms and conditions and for such Rent as
Landlord may deem proper and to collect said Rent or any other Rent that may
thereafter become payable and apply the same toward the amount due or
thereafter to become due from Tenant and on account of such expenses of such
subletting and any other damages sustained by Landlord; and should such Rent
be less than that herein agreed to be paid by Tenant, Tenant agrees to pay
such deficiency to Landlord in advance on the day of each month hereinabove
specified for payment of Rent and to pay to Landlord forthwith upon such
reletting the costs and expenses Landlord may incur by reason thereof; or
(iii) the right, even though it may have relet said Premises or brought an
action to collect Rent and other charges without terminating this Lease, to
thereafter elect to terminate this Lease and all of the rights of Tenant in
or to the Premises; or (iv) the right, without terminating this Lease, to
bring an action or actions to collect Rent and other charges hereunder which
are from time to time past due and unpaid; it being understood that the
bringing of such an action or actions shall not terminate this Lease unless
notice of termination is given.
20.2 Should Landlord relet the Premises under the
provisions of paragraph 20.1 (ii) above, it may execute any such Lease in its
own name or in the name of Tenant, but Tenant hereunder shall have no right
or authority whatever to collect any Rent from such tenant. The proceeds of
any such reletting shall be first applied to the payment of the costs and
expenses of reletting the Premises, including alterations and repairs which
Landlord, in its sole discretion, deems reasonably necessary and advisable
and reasonable attorneys' fees incurred by Landlord in connection with the
retaking of said Premises and such reletting and, second, to the payment of
any indebtedness, other than Rent, due hereunder, including, without
limitation, storage charges or brokerage commissions owing from Tenant to
Landlord. When such costs and expenses of reletting have been paid, Tenant
shall be entitled to a credit for the net amount of Rent received from such
reletting each month during such unexpired balance of the Term and Tenant
shall pay Landlord such sums as may be required to make up the Rent provided
for in this Lease. Landlord shall not be deemed to have terminated this
Lease, the Tenant's right to possession of the leasehold or the liability of
Tenant to pay Rent thereafter to accrue or its liability for damages under
any of the provisions hereof by any such reentry or by any action in unlawful
detainer or otherwise to obtain possession of the Premises, unless Landlord
shall have notified Tenant in writing that it has so elected to terminate
this Lease. Tenant covenants that the service by Landlord of any notice
pursuant to the unlawful detainer statutes of the State of New Mexico and the
surrender of possession pursuant to such notice shall not (unless Landlord
elects to the contrary at the time of or at any time subsequent to the
service of such notice and such election be evidenced by a written notice to
Tenant) be deemed to be a termination of this Lease or of Tenant's right to
possession thereof. Nothing herein contained shall be construed as obligating
Landlord to relet the whole or any part of the Premises.
20.3 Landlord can terminate Tenant's right to
possession of the Premises at any time. Acts of maintenance, efforts to relet
the Premises, or the appointment of a receiver on Landlord's initiative to
protect Landlord's interest under this Lease shall not constitute a
termination of Tenant's right to possession. On termination, Landlord has the
right to recover from Tenant: (i) the worth, at the time of the award, of the
unpaid Rent that had been earned at the time of termination of this Lease;
(ii) the worth, at the time of the award, of the amount by which the unpaid
Rent that would have been earned after the date of termination of this Lease
until the time of award exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided; (iii) the worth, at the time of
the award, of the amount by which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of the loss of Rent that Tenant
proves could have been reasonably avoided; and (iv) any other amount,
including court costs and attorney's fees, necessary to compensate Landlord
for all detriment proximately caused by Tenant's default or defaults, or
which in the ordinary course of things would be likely to result therefrom,
including, but not limited to, any costs or expenses incurred by Landlord in
(a) retaking possession of the Premises, including reasonable attorneys' fees
therefore, (b) maintaining or preserving the Premises after such default, (c)
preparing the Premises for reletting to a new tenant, including repairs or
alterations to the Premises for such reletting, (d) leasing commissions, or
(e) any other costs necessary or appropriate to relet the Premises. "The
worth, at the time of award," as used in (i) and (ii) of this Section, is to
be computed by allowing interest at the maximum legal rate. "The worth, at
the time of the award," as referred to in (iii) of this Section, is to be
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award, plus 1%.
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20.4 Whenever Landlord shall re-enter the Premises as
provided in this Section 20, Landlord may remove any property of Tenant from
the Premises and store same elsewhere at the expense and for the account of
Tenant, and if Tenant shall fail to pay the cost of storing of such property
after it has been stored for a period of ninety (90) days or more, Landlord
may sell any or all of such property, in any lawful manner. In addition, upon
the occurrence of an Event of Default, all of Tenant's fixtures, furniture,
equipment, improvements, additions, alterations and other personal property
shall remain on the Premises, and in that event, and continuing during the
length of said default, Landlord shall have the right to take the exclusive
possession of said and to use same, Rent or charge free, until all defaults
are cured or, at its option, at any time during the Term, to require Tenant
to forthwith remove same.
20.5 Upon the occurrence of an Event of Default,
Landlord shall have the right to have a receiver appointed to collect Rent
and conduct Tenant's business. Tenant also hereby agrees that Landlord shall
have a lien for payment for all Rent called for under the terms of this Lease
upon all the furniture, furnishings, fixtures, supplies and all other
personal property of Tenant which may be in or upon the Premises, Tenant
hereby specifically waiving any and all exemptions allowed by law. Such lien
may be enforced in any lawful manner, at the option of Landlord. Neither the
filing of a petition for the appointment of a receiver nor the appointment
itself shall constitute an election by Landlord to terminate this Lease.
20.6 Landlord, at any time after the occurrence of an
Event of Default, can cure the default at Tenant's cost. If Landlord at any
time, by reason of an Event of Default, pays any sum or does any act that
requires the payment of any sum, the sum paid by Landlord shall be due
immediately from Tenant to Landlord at the time the sum is paid, and if paid
at a later date shall bear interest at the Interest Rate from the date the
sum is paid by Landlord until Landlord is reimbursed by Tenant.
20.7 Should Tenant fail to pay and discharge, when due
and payable, any lien or claim for labor or materials employed or used in, or
any claim for labor or materials employed or used in, or any claim for
damages arising out of the repair, alteration, maintenance and use of the
Premises, or should Tenant fail to provide or evidence the provision of any
insurance policy as required by this Lease, or should Tenant fail to fully
pay or perform any sum to be paid or any covenant or agreement to be
performed by Tenant, as provided for in the Lease, after three (3) days'
written Notice from Landlord, then Landlord may, at its option and without
waiving or releasing Tenant from any of Tenant's obligations hereunder, pay
any such lien, claim, or charge, or settle or discharge any action therefor
or satisfy any judgment thereon, or obtain any such insurance, or pay any
such sum or perform any such covenant or agreement. All costs, expenses and
other sums incurred or paid by Landlord in connection therewith, together
with interest at the maximum rate allowed by law on such costs, expense and
sums from the date incurred or paid by Landlord, shall be deemed to be
additional rent hereunder and shall be paid by Tenant with and at the same
time as the next installment of Base Rent hereunder, and any default therein
shall constitute a breach of the covenants and conditions of the Lease. If
Landlord at any time, by reason of an Event of Default, pays any sum or does
any act that requires the payment of any sum, the sum paid by Landlord shall
be due immediately from Tenant to Landlord at the time the sum is paid, and
if paid at a later date, shall bear interest at the Interest Rate from the
date the sum is paid by Landlord until Landlord is reimbursed by Tenant.
20.8 If Landlord should serve a notice to cure as a
result of any Event of Default by Tenant, or bring suit for possession of the
Premises, for the recovery of any sum due under this Lease, or because of a
breach of any provision of this Lease, or for any other relief against Tenant
hereunder, or in the event of any other litigation between the parties with
respect to the Lease, then all costs and expenses, including without
limitation, its actual professional fees such as appraisers, accountants and
attorneys fees, incurred by Landlord shall be paid by Tenant, which
obligation on the part of Tenant shall be deemed to have accrued on the date
of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment. If Landlord employs a collection agency
to recover delinquent charges, Tenant agrees to pay all collection agency
fees charged to Landlord in addition to rent, late charges, interest and
other sums payable under the Lease. Tenant shall pay a charge of $75.00 to
Landlord for the preparation of a demand for delinquent rent or demand to
cure any other Event of Default by Tenant. All Landlord's costs and expenses
described in this paragraph 21.8 shall be deemed Additional Rent.
20.9 For the purpose of this provision, if any unlawful
detainer or other action or proceeding instituted by Landlord based upon any
default or alleged default by Tenant hereunder, Landlord shall be deemed the
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<PAGE>
prevailing party if (a) judgment for monetary or non-monetary relief is
entered in favor of Landlord or (b) prior to trial or judgment, Tenant pays
all or any portion of the rent and charges claimed by Landlord, or eliminates
the condition(s), ceases the act(s), condition(s) or omission(s) claimed by
Landlord to constitute a default by Tenant hereunder, provided, however, that
in the event a compromise is reached, or Tenant otherwise pays, eliminates or
ceases only an undisputed portion of the amount, condition, or act, condition
or omission (as the case may be), Landlord shall not thereby be deemed the
"prevailing party." The prevailing party in any litigation arising under this
Lease shall be entitled to an award of its reasonable attorneys' fees and
costs, including for any appeals.
21. RIGHT OF ENTRY. Tenant shall permit Landlord and its agents
to enter the Premises and improvements at all reasonable times after
reasonable prior written notice, (except in the case of an emergency or
Tenant's default, when no written notice is required), for the purpose of
submitting the Premises to prospective tenants or purchasers, or inspecting
the same in order to complete and maintain the improvements, make repairs,
perform janitorial services, and the like; but this right shall in no way
increase Landlord's obligations to make repairs, unless otherwise
specifically required in this Lease. Landlord shall have the right to alter,
improve or repair the Premises and any portion of the Building, in which the
Premises are a part, that Landlord may deem necessary or desirable without
abatement of Rent and may, for that purpose, erect scaffolding and other
necessary structures where reasonably required by the character of the work
to be performed, always providing that the entrance to the Premises shall not
be blocked thereby, and further providing that the business of the Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claim for
damages or for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the foregoing purposes, Landlord
shall, at all times, have and retain a key with which to unlock all of the
doors in, upon and about the Premises, excluding Tenant's vaults, safes, and
files and Landlord shall have the right to use any and all means which
Landlord may deem properly to open said doors in an emergency in order to
obtain entry to the Premises without liability to Tenant, except for any
failure to exercise due care for Tenant's property. Any entry to the Premises
obtained by Landlord by any means shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer of
the Premises, or an eviction of Tenant from the Premises or any portion
thereof.
22. NOTICES. All notices, demands or requests ("Notices")
required or permitted hereunder shall be in writing and shall be served on
the parties at the following address:
To Landlord at: AFC-5, LLC
c/o PARS Assets LLC
7310 Miramar Road, Suite 625
San Diego, California 92126-4222
Phone: (858) 547-1800
Facsimile: (858) 547-1900
To Tenant at: SBS TECHNOLOGIES, INC.
2400 Louisiana Blvd., NE, Suite 400
Albuquerque, NM 87110
Attn: Chief Financial Officer
Phone: (505) 875-0600
Facsimile: (505) 875-0400
Any such Notice shall be either (a) sent by certified United States mail,
return receipt requested, postage prepaid, in which case it shall be deemed
delivered three (3) days after deposit, or (b) sent by a nationally
recognized overnight courier, in which case it shall be deemed delivered one
(1) day after deposit with such courier, or (c) delivered by hand delivery,
in which case it shall be deemed delivered upon receipt. The above addresses
may be changed by written Notice to the other party; provided, however, that
no notice of a change of address shall be effective until actual receipt of
such Notice. Copies of Notices are for informational purposes only, and a
failure to give or receive copies of any Notice shall not be deemed a failure
to give Notice.
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23. HOLDING OVER. Any holding over by Tenant after the
expiration of the Term of this Lease shall be construed to be tenancy from
month to month and shall otherwise be upon the terms and conditions provided
by this Lease. Any renewal option under the terms of this Lease shall be
deemed terminated and be of no further effect during said month-to-month
tenancy.
23.1. BASE RENT ON TENANCY FROM MONTH-TO-MONTH. Base
Rent shall be at the rate equal to 200% of the sum of the Base Rent amount at
expiration of Lease and applicable Building Operating Costs.
23.2. TERMINATION OF TENANCY FROM MONTH-TO-MONTH.
Landlord or Tenant may terminate the tenancy from month-to-month by giving
the other party a 30 day notice prior to the next due date of Rent
immediately prior to the expiration of the Term or anytime during the
month-to-month tenancy provided that the notice is given at least 30 days
prior to the next due date of Rent. Tenant shall have a maximum of 30 days
from the delivery date of notice by Landlord to vacate the Premises.
24. PARKING. Tenant, its employees and concessionaires shall
not park in the areas which the Landlord may designate or redesignate as
parking for patrons of the Building. Landlord shall provide either within the
Building parking area or within reasonable walking distance thereof, space
for employee parking, as reasonably determined by Landlord. The existing
parking area for the Building will not be materially decreased by Landlord.
Landlord shall have the right, but not the obligation, to designate parking
areas for use by Tenant's employees and concessionaires and such designation
may be changed from time to time. Tenant, its employees and concessionaires
shall park their cars only in such designated areas, if any are so
designated. Said parking spaces shall be used only for parking by vehicles no
larger than normal size passenger automobiles or pick-up trucks, or if so
designated, for smaller vehicles. There shall be no overnight parking in
parking areas provided by Landlord without Landlord's prior written consent.
If Tenant permits or allows any of the prohibited activities described in
Section 19.3 of this Lease, then Landlord shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable upon demand by Landlord. Landlord reserves
the right at any time to substitute an equivalent number of parking spaces in
a parking structure or subterranean parking facility or in a surface parking
area within a reasonable distance of the Premises.
If the parking facilities provide for automated card key access,
Landlord shall have the right to charge Tenant a security deposit in the
amount of $25.00 for each parking card key requested by Tenant. Landlord may
assign any unreserved and unassigned parking spaces and/or make all or a
portion of such spaces reserved, if it determines in its sole discretion that
it is necessary for orderly and efficient parking. Tenant shall not use more
parking spaces than the number set forth herein. Tenant shall not permit or
allow any vehicles that belong to or are controlled by Tenant or Tenant's
employees, suppliers, shippers, customers or invites to be loaded, unloaded
or parked in areas other than those designated by Landlord for such
activities. Tenant agrees that Landlord assumes no responsibility of any kind
whatsoever in reference to said automobile parking facilities or the use
thereof by Tenant, its employees, agents or invites, or by anyone else.
Landlord may, at its sole discretion, determine whether parking facilities
shall be surface, underground, multideck, and where they shall be located.
Landlord may, at any time, and from time to time, limit access to the parking
facilities by means of attendants and/or other devices, and make other
changes in the layout and operation of the parking facilities, including,
without limiting the generality of the foregoing, changes in locations of
entrances, exits and parking spaces. No delay or failure by Landlord to
enforce its parking rules and regulations or its other rights hereunder, and
no waiver by Landlord of any breach thereof, shall be deemed to be a waiver
of any succeeding breach, or prevent any subsequent or other enforcement
thereof by Landlord.
25. RULES AND REGULATIONS. Tenant, its agents, employees, and
invitees shall comply with all reasonable rules and regulations adopted by
Landlord as set forth in EXHIBIT F for the purpose of providing for the
orderly, clean, and efficient operation of the Building in which the Premises
are located. Landlord retains the right to modify or amend such rules and
regulations without consent and/or approval of Tenant, from time to time, and
they shall be binding on Tenant, provided written copies of such
modifications or amendments are delivered to Tenant. A copy of the current
Rules and Regulations is attached hereto as EXHIBIT F.
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26. BENEFITS AND LIMITATIONS. All terms, covenants, and
conditions of this Lease shall be applicable to, inure to the benefit of, and
be binding upon the successors, and assigns of the parties; the foregoing,
however, shall not be construed as authorizing any assignment of this Lease.
27. BROKERS. Tenant warrants that it has had no dealings with
any real estate broker or agents in connection with the negotiation of this
Lease except those listed in EXHIBIT A and it knows of no other real estate
broker or agent who is entitled to a commission in connection with this Lease.
28. TENANT'S ATTORNMENT. Tenant's agreement to subordinate its
leasehold interest to the interest of any mortgagee or other lender is
subject to the lender or mortgagee first granting Tenant the right of quiet
enjoyment of the Premises so long as Tenant is not in default under its
Lease. Likewise, Tenant's attornment to any purchaser is subject to such
purchaser first granting Tenant the right of quiet enjoyment of the Premises
so long as Tenant is not in default under its Lease.
29. ACCESS. Tenant shall have access to the Building and the
Premises 24 hours per day, 365 days per year. Open access to the Building
shall be from 7:00 a.m. to 6:00 p.m., Monday through Friday, and from 9:00
a.m. to 12:00 Noon on Saturdays, holidays recognized by the U.S. Government
excepted.
30. GUARANTY. [INTENTIONALLY OMITTED]
31. EXHIBITS. All exhibits are incorporated herein by reference
for all purposes as though same were entirely set forth herein.
32. CONSTRUCTION OF LEASE. The language in all parts of this
Lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for nor against either Landlord or Tenant. Paragraph
titles, captions and headings in this Lease are inserted only as a matter of
convenience and reference and are not to be construed as part of this Lease
or in any way defining, limiting, extending, describing or amplifying the
scope of this Lease or the intent of any provisions hereof. Time is of the
essence of this lease and of every term, covenant and condition hereof. The
words "Landlord" and "Tenant", as herein used, shall include the plural as
well as the singular. The neuter gender includes the masculine and feminine.
Wherever the singular number is used in this Lease and when required by the
context, the same shall include the plural; and the masculine gender shall
include the feminine and neuter genders and the word "person" shall include
corporations, firms, partnerships or other forms of associations or entities.
In the event there is more than one Tenant, the obligations to be performed
shall be joint and several. Landlord and Tenant agree that in the event any
term, provision, covenant or condition herein contained shall prove to be
invalid or void or illegal by any court or competent jurisdiction, the
invalidity of any such term, provision, covenant or condition shall in no way
affect, impair or invalidate any other term, provision, covenant or condition
herein contained and such other term, provision, covenant or condition shall
remain in full force and effect unless the purposes of this Lease will be
frustrated thereby.
33. ENTIRE INTEGRATED AGREEMENT; MODIFICATIONS; ALTERATIONS;
WAIVER. This Lease is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of the terms thereof.
This Lease supersedes all prior representations, understandings or agreement
of the parties; rely only upon the contents of this Lease in executing it.
This Lease can only be modified by writing, signed by the parties or their
duly authorized agent.
34. AMENDMENT. No revision of this Lease shall be valid unless
made in writing and signed by Landlord and Tenant or their authorized
agent(s).
35. COMPLIANCE WITH LAW. Tenant, at Tenant's expense, shall
comply with all laws, rules, orders, ordinances, directions, regulations, and
requirements of federal, state, county and municipal authorities pertaining
in any way to the condition, Tenant's use and occupancy of the Premises and
with the recorded covenants, conditions and restrictions, regardless of when
they become effective, including, without limitation, all applicable federal,
state and local laws, regulations or ordinances pertaining to air and water
quality, Hazardous Materials (as hereinafter defined), waste disposal, air
emissions, and other environmental matters, all zoning and other land use
matters, and utility availability, and with any direction of any public
officer or officers, pursuant to law, which shall impose any duty upon Tenant
with respect to the use or occupation of the Premises.
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36. USE OF HAZARDOUS MATERIAL.
36.1 Tenant shall not cause or permit Hazardous
Material to be brought upon, kept or used in or about the Premises by Tenant,
its agents, employees, contractors or invitees except in strict accordance
with all applicable laws and only as to light solvents or the like used by
Tenant in its operations. If Tenant breaches this obligation, the Tenant
shall indemnify, defend and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities or losses including,
without limitation, diminution in value of the Premises or the Building,
damages for the loss or restriction on use of rentable or usable space or of
any amenity of the Premises or the Building, damages arising from any adverse
impact on marketing of space, and sums paid in settlement of claims,
attorney's fees, consultant fees and expert fees which arise during or after
the Term as a result of such contamination. This indemnification of Landlord
by Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency
or political subdivision because of Hazardous Material present in the soil or
ground water on or under the Premises.
36.2 Without limiting the foregoing, if the presence of
any Hazardous Material on the Premises caused by Tenant results in any
contamination of the Premises or the Building, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Premises and/or
the Building to the condition existing prior to the introduction of any such
Hazardous Materials to the Premises; withheld so long as such actions would
not potentially have any material adverse long-term or short term effect on
the Premises or the Building. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
36.3 As used herein, the term "Hazardous Material"
means any hazardous or toxic substance, material or waste, including, but not
limited to those substances, materials, and wastes listed in the United
States Department of Transportation Hazardous Materials Table (49 CFR
172.101) and/or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto, or such substances,
materials and wastes that are or become regulated under any applicable local,
state or federal law. Landlord and its Agents shall have the right, but not
the duty, to inspect the Premises at any time to determine whether Tenant is
complying with the terms of this Lease. If Tenant is not in compliance with
this Lease, Landlord shall have the right to immediately enter upon the
Premises to remedy any contamination caused by Tenant's failure to comply
notwithstanding any other provision of this Lease. Landlord shall use its
best efforts to minimize interference with Tenant's business but shall not be
liable for any interferences caused thereby. Any default under this Paragraph
shall be a material default enabling Landlord to exercise any of the remedies
set forth in this Lease.
37. SIGNATORY AUTHORITY. When applicable, if the signatory
party hereto for Tenant is anyone or an entity other than the true Tenant of
the Premises, said undersigned signatory party, as an agent for the true
Tenant, hereby represents and warrants to Landlord that it has been granted
full authority by the true Tenant to enter into this Lease and to bind the
true Tenant to perform the conditions and obligations contained herein.
38. COUNTERPARTS. This Lease may be executed in two or more
counterparts, with the same effect as if all parties to this Lease had signed
the same document. Each of said counterparts shall be deemed an original, but
all of said counterparts together shall constitute one and the same
instrument.
39. FURTHER ASSURANCES. Tenant agrees that it will without
further consideration execute and deliver such other documents and take such
other action subsequent to date of this Lease, as may be reasonably requested
by Landlord to consummate more effectively or in connection with the
transactions contemplated hereby.
40. CONFIDENTIALITY. Tenant agrees not to disclose any of the
provisions and/or terms of this Lease to a third party. Doing so can have
adverse financial impact on Landlord. Such failure to maintain the
confidentiality of the provisions and/or terms of this Lease to a third party
shall entitle Landlord to damages of any and all types.
41. JUDICIAL INTERPRETATION. Should any provision of this Lease
require judicial interpretation, it is agreed that a court interpreting or
construing the same shall not apply a presumption that the terms thereof
shall be more strictly
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construed against any party by means of the rule of construction that a
document is to be construed strictly against the party who itself or through
its agent prepared the same.
42. WAIVERS. The waiver by Landlord of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition on any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding
default or breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of the Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding default or
breach at the time of the acceptance of such rent. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord
unless such waiver be in writing by Landlord.
43. MERGER OF PRIOR AGREEMENTS. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreements or understandings pertaining
to any such matters shall be effective for any purpose. No provision of this
Lease may be amended or added to except by an agreement in writing signed by
Landlord and Tenant or their respective successors in interest. This Lease
shall not be effective or binding on any party until fully executed by both
parties hereto.
44. RELATIONSHIP OF LANDLORD AND TENANT. The relationship
between Landlord and Tenant is solely and exclusively that of a landlord and
tenant. This Lease shall be construed strictly in accordance with its terms,
and shall not be construed as creating any partnership, joint venture or any
other cooperative or joint arrangement between Tenant and Landlord.
45. RIGHT OF FIRST OFFER. At any time prior to twelve (12)
months before the expiration date of this Lease, Tenant shall have the Right
of First Offer to lease space adjoining its floors as such space becomes
available from time to time subject to the following terms and conditions.
Tenant shall notify Landlord in writing of its need to expand into an
additional space. Once notification has been received, Landlord will be
obligated to notify Tenant if at any time during the next four (4) months
following this notice said space is available. Landlord shall only be
obligated to provide one such notice to Tenant and such notice shall be
subject to all other existing rights of tenants in the Building. Upon
Tenant's receipt of said notice, Tenant shall be obligated to notify Landlord
of Tenant's intent to lease said space within fourteen (14) calendar days.
The Base Rent for any space taken under this Right of First Offer provision
will be at the then Fair Market Rental Value (as defined in Exhibit D hereof)
for the Building, without any offset, but in no event less than the amount
Tenant is paying for its existing Premises at the time of such taking. Any
space taken under this lease provision will be delivered "as-is" and shall be
coterminous with this Lease.
46. MISCELLANEOUS.
46.1 This Lease and all amendments thereto shall be
governed by the laws of the State of New Mexico.
46.2 This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
disability or delay is caused by reason of strike, labor troubles, acts of
God, or any other cause beyond the reasonable control of the Landlord.
46.3 In the event of any sale of the Building, Landlord
shall be and is hereby entirely freed and relieved of all liability under any
and all of its covenants and obligations contained in or derived from this
Lease arising out of any act, occurrence or omission occurring after the
consummation of such sale, and the purchaser at such sale or any subsequent
sale of the Premises shall be deemed without any further agreement between
the parties or their successors in interest or between the parties and any
such purchaser to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease.
46.4 Tenant acknowledges that Landlord may attempt to
obtain the recordation of a parcel or final map dividing the Building into
lots or parcels and agrees to join in executing any certificates or other
documents required
_______________________________________________________________________________
Page 20 of 34
<PAGE>
in connection therewith; provided that this Section shall not be construed as
obligating Tenant to incur any expense or to agree to incur any expense in
connection therewith.
46.5 Each Party to this Lease acknowledges that such
Party has been provided a reasonable time to review this Lease, has received
independent legal advice with respect to the advisability of entering into
this Lease, and each Party has executed this Lease including all Exhibits
hereto with the consent, and upon the advice of, their respective legal
counsel.
IN WITNESS WHEREOF, Landlord and Tenant, the parties hereto, have
duly executed this Lease to be effective as of the day and year set forth
herein.
LANDLORD: TENANT:
AFC-5, LLC SBS TECHNOLOGIES, INC.
A NEW MEXICO LIMITED LIABILITY COMPANY
By: /s/ Firouz D. Memarzadeh By: /s/ J.E. Dixon
Name: Firouz D. Memarzadeh Name: J.E. Dixon
Title: Manager Title: Vice President Finance
and Administration
_______________________________________________________________________________
Page 21 of 34
<PAGE>
EXHIBIT "A"
FUNDAMENTAL LEASE PROVISIONS
This EXHIBIT A is an addendum to and, for all purposes, a part of
that certain Lease between AFC-5, LLC, A NEW MEXICO LIMITED LIABILITY
COMPANY, ("Landlord") and SBS TECHNOLOGIES, INC. ("Tenant"), dated May 16,
2000.
PREMISES
The Premises consists of the area shown in EXHIBIT B. Such area is
designated as Suite 400 and Suite 600 and consists of approximately Thirty
Two Thousand Four Hundred Twenty Eight (32,428) Rentable Square Feet ("RSF").
The Building consists of approximately One Hundred Five Thousand Three
Hundred Forty Five (105,345) RSF. As of the commencement date of the Lease,
Tenant's proportionate share is 30.78%. The square footage of the Premises
has been established using the current Building Owners and Managers
Association International ANSI/BOMA Z.65.1 method of measurement, Copyright
1996 (the "BOMA Method"). The indicated square footage is approximate and is
not the governing factor in monetary consideration of the Lease. Any future
remeasurement of the Premises and/or the Project shall not effect a change in
the Base Rent, whether or not such remeasurement is more or less than the
current measurement.
TERM
The Term of the Lease is sixty (60) months commencing July 1, 2000
("Lease Commencement Date"), and expiring June 30, 2005. Tenant shall be
obligated for the payment of rent as of the date which is the beginning of
Term or the substantial completion of the tenant's improvement, which ever
date comes first. Notwithstanding any provision of this Lease to the
contrary, the effective date of this Lease, and the commencement of both
parties' rights and obligations hereunder, shall be the date upon which this
Lease is executed by Landlord.
BASE RENT
The total Base Rent for the Term of the Lease shall be Three Million
Four Thousand Ninety and 00/100 Dollars ($3,004,090.00) (See EXHIBIT H). The
amount of the Monthly Base Rent shall not be adjusted upward or downward by
the results of any subsequent remeasurement of the Premises.
SECURITY DEPOSIT
Tenant has deposited the amount of Twenty One Thousand Four Hundred
Forty Seven and 11/100 Dollars ($21,447.11) with Landlord as a Security
Deposit. No additional Security Deposit is required.
USE OF PREMISES
Tenant shall utilize the Premises solely for the following purposes
and for no other purpose without the prior written consent of Landlord:
general engineering and administrative offices.
LEASEHOLD IMPROVEMENTS
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Page 22 of 34
<PAGE>
Leasehold Improvements are to be constructed by Tenant in
accordance with the provisions of EXHIBIT C attached hereto.
LEASING COMMISSIONS
No agent or broker is entitled to a commission in connection with
this Lease except Brad Allen of Roger Cox & Associates, representing Tenant.
The Leasing Commission payable by Landlord shall be in the total amount of
$23,611.50. The Leasing Commission shall be paid by Landlord 50% upon Lease
execution by all parties and 50% upon the Lease Commencement Date. Landlord
shall not be obligated to pay any additional commissions to any broker or
consultant in connection with this Lease. No leasing commissions will be
given on renewals, expansions or extensions of this Lease.
RENEWAL
Tenant shall be entitled to renew the Term of this Lease as set
forth in EXHIBIT D attached hereto and executed by the parties.
JANITORIAL SERVICES
Landlord intends to maintain the Premises in good condition and will
provide janitorial services substantially in accordance with those set forth
in EXHIBIT E to this Lease attached hereto.
RULES AND REGULATIONS
Tenant shall abide by the Rules and Regulations which have been
established to maintain certain standards of safety, appearance, care, and
cleanliness of the Building as set forth in EXHIBIT F attached hereto.
SIGNAGE
No signs, advertisements or notices shall be painted or affixed on
or to any windows, doors, walls, or other parts of the Building except of
such color, size and style and in such places as shall be first approved in
writing by Landlord, and by the appropriate governing authorities. Such
approval may be withheld at the sole discretion of Landlord.
PARKING
Tenant shall be entitled to lease the covered parking spaces as set
forth in EXHIBIT G to this Lease which is attached hereto and executed by the
parties.
RENT SCHEDULE
The Rent Schedule is described in EXHIBIT H attached hereto.
_______________________________________________________________________________
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<PAGE>
ANTENNA
Tenant may, at its sole cost, install and operate an 18-inch
satellite dish microwave antenna for transmission and receiving signals
("Antenna") from the roof of the Building upon the terms and conditions set
forth in EXHIBIT I attached hereto.
_______________________________________________________________________________
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<PAGE>
EXHIBIT "C"
TENANT IMPROVEMENT AGREEMENT
Tenant is taking the Premises in an "as-is" condition.
Tenant shall be responsible for all costs of improvement of the
Premises. All Tenant improvements shall be subject to Landlord's prior
written approval of the contractor and the space plans, which approval shall
not be unreasonably withheld.
Upon the Lease Commencement Date, Landlord will provide Tenant with
an allowance of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00)
("Allowance"). Any and all Tenant improvement expense in excess of the
Allowance shall be at the sole cost and expense of Tenant and subject to
Landlord's prior written approval.
All Tenant improvements and millwork are and shall remain the
property of Landlord.
_______________________________________________________________________________
Page 25 of 34
<PAGE>
EXHIBIT "D"
OPTION TO RENEW
Provided that on the date of delivery of the required notice Tenant
is not in default under this Lease, and provided further that Tenant
furnishes current financial statements satisfactory to Landlord which reflect
no material adverse change in the financial condition of Tenant since the
Commencement Date, Tenant shall have the option to renew ("Renewal Option")
the initial Term of this Lease on all the provisions contained in this Lease,
except for the Base Rent, for one additional period of sixty (60) months
("Renewal Term") following expiration of the initial Term, by giving written
notice of exercise of the Renewal Option ("Option Notice") to Landlord in the
manner provided in the Lease not more than nine (9) and not less than six (6)
full calendar months prior to the expiration of the Term of the Lease. The
rights contained in this Lease shall be personal to the originally named
Tenant and may be exercised only by the originally named Tenant (and not any
assignee, sublessee or other transferee of Tenant's interest in this Lease)
and only if the originally named Tenant occupies the entire Premises as of
the date it exercises its Renewal Option in accordance with the terms of this
Exhibit D. Any termination of this Lease, assignment of this Lease by Tenant
or subletting or other transfer of Tenant's interest in all or any portion of
the Premises by tenant shall terminate the Renewal Option.
Base Rent payable by Tenant during the Renewal Term shall be at the
rental rate at which Landlord is then leasing space in the Building which is
comparable to the Premises in location, quality and term, which rate shall
NOT be adjusted downward to compensate for any Tenant Improvement Allowance
for a new incoming tenant and/or commission/brokerage fees or downtime and/or
any other offset ("Fair Market Rental Value"). No Tenant Improvement
Allowance or refurbishment allowance will be due Tenant at renewal.
_______________________________________________________________________________
Page 26 of 34
<PAGE>
EXHIBIT "E"
JANITORIAL SERVICES
Landlord intends to maintain the Premises in a good manner and will
provide Janitorial Services in accordance with a reasonable schedule similar
to the following; provided that Landlord has the option to revise this
Janitorial Schedule in any fashion that is reasonable and in the best
interest of Building operations.
1. CERAMIC TILE and other unwaxed flooring to be swept and
washed daily.
2. COMPOSITION TILE to be swept daily in addition to damp
spotting for removal of coffee stains or emergency breakage.
3. FURNITURE, FIXTURES, WINDOW SILLS AND OTHER FURNITURE to be
hand dusted daily.
4. WASTE RECEPTACLES to be emptied and refuse removed for
disposal to designated area daily.
5. WATER COOLERS to be washed and brightwork polished daily.
6. STAIRWAYS to be swept daily and dusted and washed as
necessary.
7. ELEVATORS to be swept daily and dusted and washed as
necessary.
8. LAVATORY ROOMS to be swept and washed using approved
disinfectants daily.
9. MIRRORS, SHELVES, BRIGHT WORK AND ENAMELED SURFACES in
lavatories to be washed and polished daily.
10. BASINS, BOWLS AND URINALS to be scour washed and
disinfected daily.
11. PICTURES, FRAMES, CHARTS, GRAPHS AND SIMILAR WALL HANGINGS
to be cleaned daily and if not reached in daily cleaning to be dusted once
every six (6) months.
12. VERTICAL SURFACES such as walls, partitions, doors, bucks
and other surfaces to be cleaned daily and if not reached in daily cleaning
to be dusted once every six (6) months.
13. PIPES, VENTILATING LOUVERS AND AIR CONDITIONING LOUVERS,
DUCTS, HIGH MOLDINGS AND OTHER HIGH AREAS to be cleaned daily and if not
reached in daily cleaning to be dusted at least once every six (6) months.
14. CARPETED AREAS to be vacuumed daily and spot cleaned as
necessary.
15. ALL COMMON AND PUBLIC AREAS shall be maintained by Landlord.
NOTE: "Daily" as used above is understood to mean five (5) times per week,
excluding holidays.
_______________________________________________________________________________
Page 27 of 34
<PAGE>
Lease Agreement -SBS Technologies July 1, 2000 -- June 30, 2005
EXHIBIT "F"
RULES AND REGULATIONS
1. Tenant agrees to make deposit in amount fixed by Landlord
from time to time for each key issued by Landlord to Tenant for its offices
and upon termination of this Lease to return all keys to Landlord. Landlord
will refund the amount deposited on each key returned.
2. Directories will be placed by Landlord at its own expense
in conspicuous places in the Building. No other directories shall be
permitted unless consented to by Landlord in writing.
3. Tenant will refer all contractors, contractor's
representatives and installation technicians, rendering any service to Tenant
to Landlord for Landlord's approval and control before performance of any
contractual service. This provision shall apply to all work performed in the
Building, including installations of telephones, telegraph equipment,
electrical devices and attachments, alarm system, and installations of any
nature affecting doors, walls, woodwork, trim, windows, ceilings, equipment
or any other physical portion of Building.
4. Movement in or out of Building of furniture or office
equipment or dispatch or receipt by Tenant of any merchandise or materials
which requires use of elevators or stairways or movement through Building
entrances or lobby shall be restricted to hours designated by Landlord. All
such movement shall be under supervision of Landlord and the manner agreed
between Tenant and Landlord by prearrangement before performance. Such
prearrangement initiated by Tenant will include determination by Landlord and
subject to its decision and control as to the time, method, and routing of
movement and as to limitations imposed for safety or other concerns which may
prohibit any article, equipment or any other item from being brought into the
Building. Tenant is to assume all risk as to damage to articles moved and
injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured
as a result of acts in connection with carrying out this service for Tenant
from time of entering property to completion of work, and Landlord shall not
be liable for acts of any person engaged in, or any damage or loss to any of
said property or persons resulting from any act in connection with such
service performed for Tenant.
5. No signs, advertisements, notices or window treatments
shall be painted or affixed on or to any windows, doors, walls, or other
parts of the Building except of such color, size and style and in such places
as shall be first approved in writing by Landlord. No nails, hooks or screws
shall be driven or inserted in any part of the Building except by the
Building maintenance personnel, nor shall any part be defaced by Tenant. All
signs will be contracted for by Landlord for Tenant at the rate fixed by
Landlord from time to time, and Tenant will be billed and pay for such
service accordingly.
6. The Building is a smoke-free environment. No smoking is
permitted in the Building. Landlord shall have the right to restrict any
smoking by any tenants, visitors and/or invitees to the grounds surrounding
the outside of this Building. Landlord shall have the additional right to
hold Tenant responsible for any violation of this restriction within the
Premises by its Lease.
7. No portion of Tenant's area or any other part of the
Building shall at any time be used or occupied as sleeping or lodging.
8. Tenant shall not place, install or operate on the Premises
or in any part of the Building, any engine or machinery or maintain use or
keep any inflammable explosive or hazardous material without written consent
of Landlord.
9. Landlord will not be responsible for lost or stolen
personal property, equipment, money or jewelry from Tenant's area or public
rooms regardless of whether such loss occurs when the area is locked against
entry or not.
10. No birds or animals shall be brought into or kept in or
about Building.
_______________________________________________________________________________
Page 28 of 34
<PAGE>
11. Employees of Landlord shall not receive or carry messages
for or to Tenant or other person, nor contract with or render free or paid
services to Tenant or Tenant's agents, employees or invitees.
12. Landlord will not permit entrance to Tenant's offices by
use of pass keys controlled by Landlord to any person at any time without
written permission by Tenant, except employees, contractors or service
personnel under Landlord's supervision.
13. The entries, passages, doors, elevators, elevator doors,
hallways or stairways shall not be blocked or obstructed: no rubbish, litter,
trash, merchandise, stock, inventory or material of any nature, shall be
placed, emptied or thrown into these areas; and such areas shall not be used
at any time except for ingress or egress by Tenant, Tenant's agents,
employees or invitees to or from the Premises.
14. Plumbing fixtures and appliances shall be used only for
purposes for which constructed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or placed therein. Damage resulting to
any such fixtures or appliances from misuse by Tenant shall be paid by
Tenant, and Landlord shall not in any case be responsible therefore.
15. Tenant shall not do or permit anything to be done in or
about the Building or bring or keep anything therein that will in any way
increase the rate of fire or other insurance on the Building or on property
kept therein or obstruct or interfere with the rights of or otherwise injure
or annoy other tenants or do anything in conflict with the valid pertinent
laws, rules or regulations of any governmental authority relating to the
control of environmental temperatures within Tenant's leased space.
16. The Landlord desires to maintain the highest standards of
environmental comfort and convenience for the tenantry. It will be
appreciated if any undesirable conditions or lacks of courtesy or attention
are reported directly to the management.
17. Landlord shall have the right to make such other and
further reasonable rules and regulations as in the judgment of Landlord may
from time to time be necessary for the safety, appearance, care, and
cleanliness of the Building and for the preservation of good order therein.
Landlord shall not be responsible to Tenant for any violations of rules and
regulations by other Tenants.
18. Landlord shall have the right to restrict the ingress and
egress of any personal transportation equipment, including but not limited to
pedal and motorized bicycles, into the Building or any of its common areas.
Landlord has provided a parking area for such equipment.
_______________________________________________________________________________
Page 29 of 34
<PAGE>
EXHIBIT "G"
NOTICE OF LEASE OF PARKING SPACE
AFC-5, LLC, A NEW MEXICO LIMITED LIABILITY COMPANY, ("Landlord") and
the Tenant whose name appears on the signature page hereof ("Tenant") agree:
1. DEMISE OF PREMISES. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the parking space(s) indicated below at
the parking area located in the covered parking lot at American Financial
Center No. 5, 2400 Louisiana Blvd., NE, Albuquerque, New Mexico; provided
that Landlord shall have the right to assign Tenant any other space in the
same parking area by prior notice in writing to Tenant.
2. TERMS. The term of this Parking Lease shall be a tenancy
from month to month commencing on the date of entering into a parking space
lease.
3. RENTAL. For any covered parking spaces upon availability,
Tenant agrees to pay Landlord those rates as published by Landlord. Landlord
retains the right to modify such rates from time to time at Landlord's sole
discretion by giving thirty (30) days written notice to Tenant.
Said rents shall be payable in advance on the first day of each
month. Monthly rent for the first month or portion of it shall be paid on the
day the term commences. Monthly rent for any partial month shall be pro-rated
at the rate of 1/30th of the monthly rent per day. All rents shall be paid to
Landlord, without deduction or offset, by mailing the same to Landlord at
PARS ASSETS LLC, 7310 Miramar Road, Suite 625, San Diego, CA 92126-4222, or
at such other place as Landlord may from time to time designate in writing.
4. LIABILITY. Other than events resulting from Landlord's
negligence, Landlord accepts no responsibility for the safety of Tenant's
automobile or any article left therein nor does it accept any liability
whatsoever should Tenant's automobile or any article left therein be stolen
or damaged by any cause whatever while parked in the parking area. Landlord
accepts no responsibility for the safety of Tenant's automobile or any
article left therein nor does it accept any liability whatsoever should
Tenant's automobile or any article left therein be stolen or damaged by any
cause whatsoever while parked in the parking area. This lease agreement does
not hold any additional liability on the part of the Landlord nor does it
provide any additional protection to Tenant, above and beyond what exists for
no-fee open parking as provided on site at the American Financial Center No.
5.
5. RULES AND REGULATIONS. Tenant covenants that it will comply
with all rules and regulations which may be hereafter promulgated by Landlord
with respect to parking of automobiles at the parking area.
6. TERMINATION. Landlord or Tenant may terminate the lease by
giving thirty (30) days written notice prior to the next due date of rent.
_______________________________________________________________________________
Page 30 of 34
<PAGE>
EXHIBIT "H"
RENT SCHEDULE
This EXHIBIT G is an Addendum to and, for all purposes, a part of that
certain Lease between AFC-5, LLC, A NEW MEXICO LIMITED LIABILITY COMPANY
("Landlord"), and SBS TECHNOLOGIES, INC. ("Tenant"), dated May ___________,
2000.
Notwithstanding any other term contained herein to the contrary,
the total Base Rent for the initial Term of this Lease as set forth in
Paragraph 3 shall be as shown below.
<TABLE>
<CAPTION>
========================================================================
Period Annual Monthly
------------------------------------------------------------------------
<S> <C> <C>
July 1, 2000 - June 30, 2001 $568,390.00 $47,365.83
------------------------------------------------------------------------
July 1, 2001 - June 30, 2002 $584,604.00 $48,717.00
------------------------------------------------------------------------
July 1, 2002 - June 30, 2003 $600,818.00 $50,068.17
------------------------------------------------------------------------
July 1, 2003 - June 30, 2004 $617,032.00 $51,419.33
------------------------------------------------------------------------
July 1, 2004 - June 30, 2005 $633,246.00 $52,770.50
------------------------------------------------------------------------
Total for Term: $3,004,090.00
========================================================================
</TABLE>
NOTE: Rents for the Premises as shown on EXHIBIT A and as shown above are not
subject to any offset and/or downward adjustment for any reason whatsoever.
The Rents shown are minimum, beginning July 1, 2000, and each and every first
day of the subsequent month thereafter, including the option years, if any
(See Exhibit "D").
_______________________________________________________________________________
Page 31 of 34
<PAGE>
EXHIBIT "I"
ROOFTOP DEVICE
Provided Tenant is not in default under the terms and conditions of
the Lease, Tenant may, at its sole cost, install and operate an 18-inch
satellite dish microwave antenna for transmission and receiving signals
("Antenna") from the roof of the Building upon the following terms and
conditions:
A. INSTALLATION. Tenant will, with Landlord's approval, install the
Antenna. The Antenna will be installed with a non-penetrating load
frame and will need no power source. A buffer pad will be placed under
the mount to prevent any surface damage or erosion to the roof of the
Building.
The Antenna may be used only for transmission and receiving microwave
signals and for no other purposes. The Antenna shall not be used for
sound amplifying equipment, identification signs or lighting displays.
The Antenna will be installed at Tenant's sole cost. The cost of
installation will include, but not be limited to, support for the
Antenna and structural changes in the Building. Tenant shall pay for
the Antenna and all equipment necessary to the operation of the
Antenna.
In the event it is necessary to temporarily remove the Antenna for the
purpose of making repairs, renovation and/or replacement of the roof of
the Building, Tenant shall be responsible for the removing the Antenna
and reinstalling the Antenna at its sole cost and expense. In such
event the Monthly Rental for the Antenna shall be abated for the actual
number of days the Antenna is not in operation.
Tenant shall not move the location of or modify the installation of the
Antenna without prior written approval from Landlord.
B. PAYMENTS. No additional Rent shall be due from Tenant in connection
with the use of the Antenna.
If Landlord's insurance premiums or real estate taxes increase as a
result of the Antenna, Tenant shall pay such increase to Landlord
within 30 days after receiving an invoice from Landlord; however, such
increase is limited to the amount of such increase directly
attributable to the ad valorem value of the Antenna.
The square footage of space used by the Antenna on the rooftop shall
not be used in computing Tenant's Percentage of occupancy in the
building for pass thru charges computation.
C. GOVERNMENTAL APPROVALS. Tenant, at its sole cost, shall (1) comply with
all governmental rules and regulations affecting the installation or
operation of the Antenna, (2) obtain and maintain all governmental
permits, licenses and authorizations for the installation and operation
of the Antenna (3) correct any defects and pay any penalties imposed
due to a violation of any governmental rule or regulation and make any
necessary alternations to the building and Antenna displays to comply
with any aesthetic continuity reasonably required by the Landlord.
D. REPAIRS AND MAINTENANCE. At its sole cost Tenant shall maintain and
repair the Antenna and shall submit to Landlord within 30 days after
receiving an invoice therefor the cost borne by Landlord for any
repairs or maintenance to the rooftop of the Building caused by
Tenant's installation, operation, maintenance or removal of the
Antenna.
E. INSURANCE. Tenant, at its sole cost, shall obtain and maintain Standard
Commercial General Liability Insurance on the Antenna in the amounts
and in the form set forth in the Lease, naming Landlord as an
additional insured, and shall provide Landlord with a Certificate of
Insurance evidencing such coverage for the Antenna. Landlord shall
_______________________________________________________________________________
Page 32 of 34
<PAGE>
have the right, in its sole discretion, to approve the insurance
carrier; however, such approval of insurance carrier cannot be
unreasonably withheld.
F. UTILITIES. In addition to all other utility charges which may be
payable by Tenant under this Lease, Tenant shall also pay Landlord an
additional sum, as determined by Landlord in its reasonable discretion,
to cover the cost of any additional utilities supplied for the
operation of the Antenna. If Landlord determines that utilities to the
Antenna should be separately metered, Landlord shall present in writing
to Tenant its quote for anticipated costs to establish the
above-described separate meter. Tenant shall then, within ten (10) days
of such written quote being presented, be required to advise whether it
wishes to remove the Antenna and terminate the agreement. If Tenant
elects to pay the quote of the installation of a separate meter, then
Tenant shall be liable for the quoted cost of installing such meter.
All costs payable pursuant to this subsection shall be paid within 30
days after Tenant receives from Landlord an invoice therefor.
G. TENANT'S INDEMNIFICATION. Tenant agrees to indemnify and defend
Landlord against all claims, damages, liability, demands, expenses,
fees, fines, penalties, suits, proceedings, actions and causes of
action of any and every kind and nature arising out of or in any way
connected with the Antenna or which may be related directly or
indirectly to the Antenna or which may arise out of the installation,
operation, maintenance or removal of the Antenna. Tenant agrees to
indemnify Landlord for all costs and expenses (including reasonable
attorneys' fees of all trials and appeals) incurred as a result
thereof.
H. LANDLORD'S LIABILITY Landlord agrees that Landlord, its agents or
employees will not disturb the Antenna, except in an emergency, without
first notifying Tenant. If Landlord, its agents or employees, disturbs
the Antenna, Landlord will remedy the disturbance as soon as is
reasonably possible. Landlord, its agents and employees, shall not be
liable to Tenant for any disturbance beyond Landlord's control
including, but not limited to, labor strikes, accidents, bad weather or
any item of FORCE majeure. Landlord is not responsible for any acts of
other tenants of the building to whom Landlord, its agents or employees
have given access to the roof.
I. ACCESS TO ROOF. Access to the rooftop shall be controlled by Landlord.
Tenant, its employees and agents may have access to the rooftop only
after requesting access from Landlord. A request shall be made each
time access is required. Such request should be made at least
twenty-four (24) hours prior to desired access except in case of
emergency. Landlord may impose reasonable rules concerning rooftop
access and no reasonable request for access can be denied.
Landlord, its employees and agents and other Tenants may have access to
the rooftop.
J. LANDLORD'S RIGHTS. Landlord, at its sole option, may require Tenant at
any time to terminate the operation of the Antenna if it is causing
physical damage to the structural integrity of the Building,
unreasonably interfering with other services provided to the Building
or unreasonably interfering with any other Tenant's business. If,
however, Tenant can and does correct the damage to Landlord's
reasonable satisfaction within 30 days after receiving a written
request from Landlord to eliminate the damage, Tenant may restore the
operation of the Antenna.
Landlord may, at its sole option, move the Antenna to another part of
the rooftop provided such location does not prevent Tenant from
obtaining the full benefits of the operation of the Antenna and
provided Landlord bears all costs of moving the Antenna and upon
obtaining FCC approvals.
K. REMOVAL OF ANTENNA. Within 15 days of the expiration or sooner
termination of this Lease, or upon termination of the operation of the
Antenna (pursuant to the immediately preceding subsection), Tenant
shall remove the Antenna at its sole cost. Tenant shall be liable for
all damages caused by said removal and shall leave the portion
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of the roof where the Antenna was located in the same condition as when
the Antenna was first installed, ordinary wear and tear excepted, and
in a condition subject to Landlord's reasonable satisfaction.
If Tenant does not remove the Antenna as required, Tenant hereby
authorizes Landlord to remove and dispose of the Antenna and charge
Tenant for all costs and expenses incurred including damages to the
Building. Tenant agrees that Landlord shall not be liable for any
property removed or disposed of by Landlord.
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