Exhibit 10.08
OFFICE BUILDING LEASE
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
This Lease is made by and between Big M Investments & MDF 740 E LLC
(hereinafter "Landlord") and Schimatic Cash Transaction ▇▇▇▇▇▇▇.▇▇▇, Inc.
(hereinafter "Tenant") this 29th day of August, 2001. It is agreed:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord that certain office space (herein called "Premises") displayed on
Exhibit "A" attached hereto and by reference made a part hereof, for the term
and upon the rental conditions and covenants as hereafter set forth. The
Premises are also known as Suites 215 of the OFFICE BUILDING (the "Building")
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, and are deemed, for
purposes of this Lease, to have an effective rental space, including
proportionable common area, of 1895 square feet, which square footage is agreed.
The real property, both land and buildings, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇, is hereinafter referred to as the "Project."
2. TERM. The term of this Lease shall be for Six (6) Months commencing
on the 1st day of September, 2001, and ending on the 28th day of February, 2002.
Rent shall be adjusted annually on the anniversary date of each to reflect
increases as measured by the Consumer Price Index for Retail Sales of the
Department of Labor, however, this increase shall not exceed Six (6) percent.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to Tenant at the commencement of the term hereof,
this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom, nor shall the expiration date of the
above term be extended, but in that event all rent shall be abated during the
period between the commencement of said term and the time when Tenant takes
possession. Subject to the foregoing, upon payment by Tenant of the rents
provided herein, and upon the observance and performance of the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Lease term without
hindrance or interruption, subject to the terms and conditions of this Lease.
4. EARLY OCCUPANCY. In the event Landlord permits Tenant to occupy the
Premises prior to the commencement date of the term, such occupancy shall be
subject to all of the provisions of this Lease, including, but not limited to,
the obligation to pay all rentals and charges. Early possession shall not
advance the termination date provided above.
5. RENTAL. Tenant agrees to pay to Landlord, without prior notice or
demand, as minimum rental for the Premises the sum of Two Thousand One Hundred
Sixty Two and 81/100 DOLLARS ($2,162.81) on or before the first day of the first
full calendar month of the term hereof and a like sum on or before the first day
of each and every successive calendar month thereafter during the Lease term,
except that the first month's rent shall be paid upon the execution hereof. Rent
for any period of less than one (1) month shall be a prorated portion of the
monthly installment, based upon a thirty (30) day month. The rental shall be
paid to Landlord, without deduction or offset, in lawful money of the United
States of America, at such place as Landlord may from time to time designate in
writing.
6. SECURITY DEPOSIT. In addition to the first month's rent, Tenant has
deposited with Landlord the sum of Two Thousand One Hundred Sixty Two and 81/100
DOLLARS ($2,162.81), to be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants, and conditions of this Lease.
Landlord may (but shall not be required to) use, apply or retain all or any part
of the security deposit for the payment of any rent or any other sum in default,
or the payment of any amount which Landlord may spend or become obligated to
spend by reason of Tenant's default. If any portion of the deposit is so used or
applied, Tenant shall, within five (5) days after written request from Landlord,
deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount. Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep this security
deposit separate from its general funds, and Tenant shall not be entitled to
interest on the deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by Tenant, the security deposit shall be
returned to Tenant (or, at Landlord's option, to the last valid assignee of
Tenant's interest hereunder) at the expiration of the Lease term. Should
Landlord convey the Premises to any party, Landlord shall transfer the deposit
to Landlord's successor in interest, who shall thereafter be accountable to
Tenant for the deposit and for performance of the obligations of Landlord
hereunder.
7. USE. Tenant shall use the Premises for general office purposes and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord. Tenant shall not do or permit anything to
be done in or about the Premises and not bring or keep anything therein which
will in any way increase the existing rate of or adversely affect any liability
or extended coverage or other insurance upon the Project or any part thereof or
any of its contents, or cause cancellation of any insurance policy covering the
Project or any part thereof or any of its contents. Tenants 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
Project or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises.
8. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in force or
which may hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinance and governmental
rules, regulations or requirements now in force or which may hereafter be in
force, and with the requirements of any board of fire insurance underwriters or
other similar bodies now or hereafter constituted, related to or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
related to or affected by Tenant's improvements or acts. The judgement of any
court of competent jurisdiction or the admission of Tenant in any action against
Tenant, regardless of whether Landlord is a party thereto, that Tenant has
violated any law, statue, ordinance or governmental rule, regulation or
requirement shall be conclusive of the fact as between Landlord and Tenant.
9. ALTERATIONS AND ADDITIONS. Tenant may, with the consent of Landlord,
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make such alterations in the Premises as Tenant may require for the conduct of
its business. Such alterations shall be made in a good and workmanlike manner
and shall not materially alter or weaken the basic structure of the building.
Any alterations, additions or improvements to or of the Premises including, but
not limited to, wall covering, carpeting, paneling and built-in cabinet work,
but excepting movable furniture and trade fixtures, shall become a part of the
realty and belong to Landlord and shall be surrendered with the Premises on the
termination of this Lease. Any alterations, additions or improvements to the
Premises by Tenant shall be made at Tenant's sole cost and expense. Any
contractor or person selected by Tenant to alter, add to and/or improve the
Premises must first be approved in writing by Landlord. Upon the expiration or
sooner termination of the term hereof, Tenant shall, at Tenant's sole cost and
expense, upon written demand by Landlord given in Landlord's sole discretion at
least thirty (30) days prior to the end of the term, forthwith and with all due
diligence remove any alterations, additions, or improvements made by Tenant and
restore the Premises.
10. REPAIRS.
10.a. By taking possession of the Premises, Tenant shall have
approved the condition of the Premises and accepted the Premises as being in
good, sanitary order, condition and repair. Tenant shall, at Tenant's sole cost
and expense, keep the Premises and every part thereof in good condition,
ordinary wear and tear and damage from causes beyond the reasonable control of
Tenant excepted. In this regard, Tenant agrees to keep the interior of the
Premises and the improvements located therein in good condition and repair and
to be responsible for maintenance of the interior walls, interior decorating,
replacement of light globes and tubes and any glass breakage caused by Tenant.
Tenant agrees to repair or pay for the repair of any damage to the Premises, the
Building or the Project resulting form the acts of Tenant or Tenant's employees
or agents, ordinary wear and tear excepted. Except as otherwise specifically
provided in an addendum to this Lease, if any, Landlord shall have no obligation
whatsoever to alter, remodel, improve, repair, or paint the Premises or any part
thereof. The parties affirm that Landlord has made no representations to Tenant
respecting the condition of the Premises, the Building or the Project except as
specifically herein set forth.
10.b. Notwithstanding the provisions of subparagraph a. above,
Landlord shall repair and maintain the common areas and the structural portions
of the building, including the roof, exterior walls, exterior windows and doors,
foundations, basic plumbing, air conditioning, heating, and electrical systems
installed or furnished by Landlord (other than those that solely serve the
Premises), unless such maintenance and repairs are caused by the act, neglect,
fault or omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord the reasonable cost of such
maintenance and repairs. Landlord shall not be liable for any failure to make
any such repairs or to perform maintenance unless such failure materially and
adversely affects Tenant's possession and enjoyment of the Premises and persists
for an unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided immediately above
and in Articles 22 and 27 hereof, there shall be no abatement of rent and
Landlord shall have no liability by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Project or the Premises or in or to
fixtures, appurtenances and equipment therein.
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11. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require, at
Landlord's sole option, that Tenant provide, at Tenant's cost and expense, a
lien and completion bond in an amount equal to one and one-half (1-1/2) times
the estimated cost of any improvements, additions, or alterations to the
Premises undertaken by Tenant to insure Landlord against any liability for
mechanics and materialman's liens and to insure completion of the work.
12. SELL, ASSIGN, MORTGAGE, SUBLET.
12.a. Landlord may sell, lease, pledge or otherwise encumber
all or any portion of the Project and/or may pledge or assign Landlord's
interest in the Lease at any time. From and after the conveyance of the Premises
and the assignment of Landlord's interest under this Lease (other than a
conveyance or assignment for security purposes) Landlord shall have no further
liability hereunder and the recipient of the conveyance and assignment shall
assume the rights and be subject to the liabilities of Landlord as stated in
this Lease.
12.b. Tenant shall not transfer, assign, sublet, enter into,
license or concession agreements, or hypothecate this Lease or the Tenant's
interest in and to the Premises or permit the occupancy or use of any part
thereof by another, without the prior written consent of Landlord, which shall
not unreasonably be withheld. Any assignment, mortgage, pledge, hypothecation,
encumbrance, subletting or license of this Lease, the leasehold hereby created,
of the Premises or any portion thereof, either voluntary or involuntary, by
operation of law or otherwise, without the prior consent of Landlord first had
and obtained, shall be null and void and shall at Landlord's option terminate
this Lease. Without in any way limiting Landlord's right to refuse to give such
consent, Landlord may condition its consent to any assignment or subletting (1)
upon Tenant's agreement to termination of this Lease and the simultaneous
creation of a new lease between Landlord and the proposed successor at then
prevailing rents or (2) upon Tenant's agreement, simultaneously with the
execution of any sublease approved by Landlord, to name Landlord its agent for
the purpose of collection of rent from the sublessee. In the event of any
assignment, sale or other transfer of this Lease or any interest in this Lease
by Tenant, Tenant agrees to remain liable and guarantee the performance of the
obligations herein of any successor-in-interest, except that Landlord agrees to
release Tenant from said guarantee and this Lease if Tenant has no retained
interest in this Lease or the leasehold and Landlord is timely presented with
complete, accurate financial information, including but not limited to financial
statements and income tax returns, relating to any such successor, transferee or
assignee, and is satisfied with the sound financial security of such successor,
assignee or transferee, provided that such successor, assignee or transferee
agrees, in writing, without reservation, to be bound as Tenant under this Lease.
The release of Tenant from the obligations of this Lease shall not unreasonably
be withheld. Tenant agrees to reimburse Landlord for Landlord's reasonable
attorney fees and other costs incurred in conjunction with processing and
documenting any such requested transfer, assignment, subletting, licensing, or
concession agreement, change of ownership or hypothecation of this Lease or
Tenant's interest in and to the Premises.
12.c. Each transfer, assignment, subletting, license,
concession agreement and/or hypothecation to which there has been consent shall
be by an instrument in writing in form reasonably
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satisfactory to Landlord, and shall be executed by the transferor, assignor,
sublessor, licensor, concessionaire, hypothecator or mortgagor and the
transferee, assignee, sublessee, licensee, concessionaire or mortgagee who shall
agree in writing to assume and be bound by, and to perform the terms, covenants
and conditions of this Lease to be performed by the Tenant. One executed copy of
such written instrument shall be delivered to Landlord. Failure to first obtain
Landlord's written consent or failure to comply with the provisions of this
Article 12 shall, at Landlord's option, prevent any such transfer, assignment,
subletting, license, concession agreement or hypothecation from becoming
effective.
12.d. Notwithstanding anything to the contrary in the
foregoing provisions, Tenant shall be entitled to assign and transfer this Lease
to any corporation or affiliated firm owned or controlled by Tenant or to the
surviving corporation in the event of a consolidation or merger to which Tenant
shall be a party, provided, however, that such subsidiary, affiliated firm or
surviving corporation shall in writing expressly assume all of the provisions,
covenants and conditions of this Lease on the part of Tenant to be kept and
performed; and provided further that no such assignment or transfer shall act as
a release of Tenant from any of the provisions, covenants and conditions of this
Lease on the part of Tenant to be kept and performed.
13. HOLD HARMLESS.
13.a. Tenant shall defend, indemnify and hold Landlord free
and harmless from and against any and all claims arising from Tenant's use of
the Premises for the conduct of its business or from any activity, work, or
other thing done, permitted or suffered by Tenant in or about the Premises or
the Project, and shall further defend, indemnify and hold Landlord free and
harmless from and against any and all claims arising from any breach or default
in the performance of any obligations of Tenant under this Lease, or arising
from any act or negligence of the Tenant, or any officer, agent, employee, guest
or invitee of Tenant, and from and against all costs, attorney fees, expenses
and liabilities incurred as a consequence of such claims. In any case, action or
proceeding brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's sole expense by counsel
reasonably satisfactory to Landlord or Landlord shall have the right to retain
its own counsel to defend any action at the cost of Tenant. 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 and Tenant hereby waives all claims in respect thereof against Landlord
other than damage and/or injury attributable to gross negligence or willful
misconduct by Landlord, its agents, employees and officers.
13.b. Neither Landlord nor its agents and employees shall be
liable to Tenant for any damage to Tenant's property upon the Premises, nor for
loss or damage to any property resulting from fire, explosion, falling plaster,
theft, steam, gas, electricity, water or any other cause whatsoever. Neither
Landlord not its agents shall be liable for loss of business by Tenant nor shall
Landlord be liable for any latent defect in the Premises or the Project. Tenant
shall give prompt notice to Landlord of fire or accidents in the Premises or the
Project or any defects therein, including the fixtures and equipment.
Notwithstanding the foregoing, however, Landlord shall be responsible for
Landlord's gross negligence and willful misconduct.
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13.c. Each of the parties hereto agree to defend, indemnify
and hold the other party free and harmless from and against any and all claims
of any kind or nature caused by or arising from the actions of such indemnifying
party, or their respective agents, representatives or employees, during the term
hereof. Any insurance proceeds received by either party as a result of any
damage or injury covered by this Article 13 shall be applied toward or credited
against, as appropriate, the obligations of any indemnifying party under this
Article 13.
14. SUBROGATION. As long as their respective insurers so permit,
Landlord and Tenant hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage and other
property insurance policies existing for the benefit of the respective parties.
15. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive public
liability insurance 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 in the amount of not less
than $500,000.00 for injury or death of one person in any accident or occurrence
and in the amount of not less than $500,000.00 for injury or death of more than
one person in any one accident or occurrence. Such insurance shall further
insure Landlord and Tenant against liability for property damage in the amount
of at least $250,000.00. The limit of any such insurance shall not, however,
limit the liability of the Tenant hereunder. Tenant may provide this insurance
under a blanket policy, provided that said insurance shall have a landlord's
protective liability endorsement attached thereto. If Tenant shall fail to
procure and maintain said insurance, Landlord may, but shall not be required to,
procure and maintain the same at the expense of Tenant. Insurance required
hereunder shall be with companies rated A+, AAA or better in "Best's Insurance
Guide" or in companies approved in writing by Landlord. Tenant shall deliver to
Landlord, prior to entry, copies of the policies of liability insurance required
herein or certificates evidencing the existence and amounts of such insurance
with loss payable clauses reasonably satisfactory to Landlord. No such policy
shall be cancelable or subject to reduction of coverage without prior notice to
Landlord. All such policies shall be written as primary policies not
contributing with and not in excess of coverage which Landlord may carry.
16. OTHER INSURANCE.
16.a. Tenant shall, at Tenant's expense, obtain and keep in
force during the term of this Lease such insurance as Tenant may desire,
including but not limited to theft protection insurance, protecting Tenant's
fixtures, equipment, and items of personal property located upon the Premises
and/or within the Project. Tenant shall further provide, at Tenant's sole
expense, such insurance as Tenant may desire to protect the interests of Tenant
from those risks outlined in Article 13.b. above for which Tenant is absolving
Landlord and its agents.
16.b. Landlord shall procure and keep in force at its sole
cost and expense fire and extended coverage insurance insuring against loss of,
or damage to, the Building and appurtenances.
17. SERVICES AND UTILITIES.
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17.a. Provided that Tenant is not in default hereunder, except
as otherwise specifically provided herein, Landlord shall pay all charges for
water, heat, gas, sewer and electricity. In particular, Landlord agrees to
provide for the Premises during reasonable hours of generally recognized
business days, as determined by Landlord in its sole reasonable discretion and
subject to the Rules and Regulations of the Building, electricity for normal
lighting and fractional horsepower office machines, heat and air conditioning
required in Landlord's reasonable judgement for the comfortable use and
occupation of the Premises. Landlord shall be responsible for trash and snow
removal and janitorial service for the common areas. Landlord shall not be
liable for, and Tenant shall not be entitled to, any damages or any reduction of
rental by reason of Landlord's failure to furnish any of the foregoing when such
failure is caused by accident, breakage, repairs, strikes, lockouts, or any
other cause which is beyond the reasonable control of Landlord. Landlord shall
not be liable under any circumstances for a loss of profits or consequential
damages or injury to property, however occurring, which is 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,
shall be paid by Tenant to Landlord upon demand.
17.b. Tenant shall not, without the prior written consent of
Landlord, use any apparatus or device in the Premises, including, but without
limitation, electronic data processing machines, punch card machines, and
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 any apparatus or device with electric current
except through existing electrical outlets in the Premises. If Tenant requires
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, and Landlord may cause a
water meter or electrical current meter to be installed in the Premises so as to
measure the amount of water and electric current consumed for any such use. The
cost of any such meters and of the installation, maintenance and repair thereof
shall be paid by Tenant and Tenant agrees to pay Landlord, promptly upon demand
therefor, for all 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 water and electric current will be established by an estimate
made by a utility company or electrical engineer or by the mutual agreement of
the parties.
17.c. Tenant shall pay all charges for telephone service.
Tenant shall be responsible for the normal maintenance and upkeep of the
Premises and for all janitorial services to the Premises and agrees to keep the
Premises in a good, clean, safe, sanitary condition during the term of this
Lease.
18. PROPERTY TAXES. Tenant shall pay all taxes, license fees and
charges incidental to the conduct of Tenant's business on the Premises during
the term of this Lease, including taxes on Tenant's personal property situated
on the Premises, including Tenant's leasehold improvements, equipment, furniture
and fixtures. In the event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures, and personal property shall be assessed and
taxed with the Building,
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Tenant shall pay to Landlord its proportionate share of such taxes within ten
(10) days after delivery to Tenant of a statement in writing setting forth the
amount of such taxes as are applicable to Tenants property. Except as
specifically otherwise provided hereinabove, Landlord shall pay or cause to be
paid all real property taxes levied or assessed against the Project.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with reasonable Rules and Regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from time to time to make reasonable
modifications to said rules. The additions and modifications to the rules shall
be binding upon Tenant upon delivery of a copy of them to Tenant. Landlord shall
not be responsible for the nonperformance of any of said rules by any other
tenant or occupant. Violations by Tenant of said rules shall constitute an event
of default under this Lease.
20. HOLDING OVER. If Tenant remains in possession of the Premises or
any part thereof after the expiration of the term hereof, with or without the
express written consent of Landlord, such occupancy shall be a tenancy from
month to month at a rental in the amount of the last monthly rental, plus all
other charges as payable hereunder, and upon all the terms hereof applicable to
a month to month tenancy.
21. ENTRY BY LANDLORD. Sixty (60) days prior to the expiration of this
Lease, Landlord may post suitable notice on the Premises that the same are "for
rent or lease" and may show the Premises to prospective tenants at reasonable
times. Landlord reserves and shall at all times have the right to enter the
Premises, inspect the same, supply any service to be provided by Landlord to
Tenant hereunder, to show the Premises to prospective purchasers or tenants, to
post notices of non-responsibility, and to alter, improve or repair the Premises
and any portion of the Building 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, provided, however, that the entrance to the Premises shall not be
blocked thereby and provided further that Landlord shall not unreasonably
interfere with Tenant's use and possession of the Premises. Except in case of an
emergency, Landlord shall give Tenant at least three (3) hours prior notice
before entering the premises for any of the purposes enumerated above other than
for the purpose of making improvements or repairing the Premises in which event
Tenant shall receive at least twenty-four (24) hours prior notice. 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 aforesaid
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. Landlord shall have the right to use any and all means which
Landlord may reasonably deem proper to open said doors and obtain entry to the
Premises in an emergency 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 said means or otherwise 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. RECONSTRUCTION.
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22.a. In the event the Premises or the Building are damaged by
fire or other cause covered by extended coverage insurance, and the Landlord
receives sufficient proceeds to cover the cost of replacing the damage, then the
Landlord agrees forthwith to repair the same, and this Lease shall remain in
full force and effect, except that Tenant shall be entitled to a proportionate
reduction of the rent while such repairs are being made, such proportionate
reduction to be based upon the extent to which the making of such repairs shall
materially interfere with the business carried on by Tenant in the Premises.
Notwithstanding the foregoing, if the damage is due to the fault or neglect of
Tenant or its employees, there shall be no abatement of rent.
22.b. Notwithstanding anything to the contrary contained in
this Article 22, Landlord shall not have any obligation to repair, reconstruct
or restore the Premises when the damage resulting from any casualty covered
under this Article occurs during the last twelve (12) months of the term of this
Lease or any extension thereof.
22.c. Should Landlord not receive sufficient proceeds to
effect necessary repairs, as provided in subparagraph a. above, or should
Landlord elect not to effect such repairs, as provided in subparagraph b. above,
then this Lease shall terminate and Tenant shall no longer be obligated to pay
rent as provided herein.
22.d. Landlord shall not be required to repair any injury or
damage by fire or other cause, or to make any repairs or replacements of any
panels, decoration, office fixtures, ceilings, floor covering, partitions, or
any other property installed in the Premises by Tenant.
22.e. Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the whole or any part or the
Premises, Tenant's personal property or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
23. DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant.
23.a. The vacating or abandonment of the Premises by Tenant.
23.b. The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder within ten (10) days after
the same is due and payable.
23.c. The failure by Tenant to observe or perform any of the
covenants or conditions of this Lease to be observed or performed by Tenant,
other than described in subparagraph b. above, where such failure shall continue
for a period of ten (10) days after written notice thereof has been provided to
Tenant by Landlord; provided, however, that if the nature of Tenant's default is
such that more than ten (10) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said ten (10) day period and thereafter diligently prosecutes such cure to
completion.
23.d. The making by Tenant of any general assignment to, or
general arrangement for, the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged bankrupt,
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or a petition for 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 after filing); 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 within thirty (30) days.
23.e. The failure of Tenant to keep the property free of liens
as required under Article 11 of this Lease.
24. REMEDIES IN DEFAULT. In the event of any material default or breach
by Tenant, at any time thereafter, with or without notice or demand and without
limiting Landlord's rights or remedies:
24.a. Landlord may elect to re-enter, as herein provided, or
take possession of the Premises pursuant to legal proceedings or pursuant to any
notice provided for by law. In re-entering the Premises, Landlord may either
terminate this Lease or, from time to time, without terminating this Lease, make
such alterations and repairs as may be necessary in order to relet the Premises
and relet the Premises or any part thereof for such term (which may be for a
term extending beyond the term of this Lease) and at such rental and upon such
other terms and conditions as Landlord, in its sole discretion, may deem
advisable. Upon each such reletting all rents received shall be applied, first,
to the payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder. If rentals received from such
reletting during any month be less than the rent to be paid that month by Tenant
thereunder, Landlord shall calculate such deficiency, which shall be paid by
Tenant monthly or at such greater intervals as Landlord may see fit; or Landlord
may institute action for the whole of such deficiency immediately upon effecting
any letting or reletting and shall not thereafter be precluded from further like
action in the event such letting or reletting shall nor embrace the whole
unexpired portion of the term hereof. No such re-entry or taking possession of
the Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant, or unless the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for any such previous
breach. Should Landlord at any time terminate this Lease for any breach, in
addition to any other remedies it may have, it may recover from Tenant all
damages it may incur by reason of such breach, including the cost of recovering
the leased Premises, reasonable attorney fees, and the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rent value of the leased Premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Tenant.
24.b. Landlord or a receiver or trustee may take possession of
the leased Premises at the instance of Landlord in any action against Tenant or
otherwise. The Landlord, receiver or trustee may collect the rents and profits
from the Premises and all property of Tenant placed on the Premises
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may be taken, possessed and used by the Landlord or receiver or trustee, as the
case may be, without compensation to Tenant, and may be let with the Premises
upon any reletting provided for in this Lease, and may be taken, possessed and
used by the substitute tenant in the conduct of the substitute tenant's
business, without compensation to the Tenant and without constituting an
eviction of Tenant from the leased Premises or any part thereof. Said right of
taking, using and letting shall apply to any of said property which may be
subject to a lease or to a conditional sales contract, lease contract, reserved
or security title, chattel mortgage or other security document, instrument, or
agreement to secure the balance of the purchase price thereof or other
obligation of Tenant. The Landlord, receiver or trustee, as the case may be,
shall be subrogated to all rights of Tenant in the Premises and shall have the
right to make such payments as may be required to prevent repossession or
foreclosure or the exercise of any remedy by the obligees under any such lease
or security document, instrument or agreement; and the amount so paid, with
interest therein, shall be added to the sum due from Tenant to Landlord.
24.c. Each of the foregoing remedies may be exercised jointly
or severally with any of the remedies provided by this Lease or by law, at the
option of the Landlord or receiver or trustee, and any remedy elected may be
abandoned or terminated and may be resumed after such abandonment or
termination, at the option of the Landlord, receiver or trustee.
24.d. Tenant agrees to hold Landlord free and harmless from
any claim of any character by any person arising out of or in any way connected
with the entry and the taking possession of the Premises and/or said personal
property by the Landlord, receiver or trustee, as the case may be.
24.e. Tenant expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the leased Premises by reason of the violation by Tenant of any of
the covenants or conditions of this Lease or otherwise.
24.f. The rights and remedies herein set forth and granted to
Landlord shall be cumulative and in addition to any and all other rights and
remedies provided and given to Landlord under the laws of the state where the
Premises are located. The use of any one or more of the rights and remedies here
enumerated, as otherwise provided for hereunder, shall not constitute an
election of remedies; nor, in such event, shall Landlord be barred or estopped
from using or asserting any other or different or concurrent or cumulative right
or remedy at the same or any other of different time or place.
25. EMINENT DOMAIN.
25.a. If more than twenty-five percent (25%) of the Premises
shall be taken or appropriated by any public or quasi-public authority under the
power of eminent domain, either party hereto shall have the right, at its
option, to terminate this Lease and Landlord shall be entitled to any
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and all income, rent, award, or any interest therein whatsoever which may be
paid or made in connection with such public or quasi-public use or purpose, and
Tenant shall have no claim against Landlord for the value of any unexpired term
of this Lease. If either less than or more than twenty-five percent (25%) of the
Premises is taken, and neither party elects to terminate as herein provided, the
rental thereafter to be paid shall be equitably reduced. If any part of the
Project other than the Premises may be so taken or appropriated, Landlord shall
have the right, at its option to terminate this Lease without liability to
Tenant and Landlord shall be entitled to the entire award as above provided.
25.b. Although all damages in the event of any condemnation
are to belong to Landlord, whether such damages are awarded as compensation for
diminution in value of the leasehold or the fee estate in the Premises, Tenant
shall have the right to claim and recover from the condemning authority, but not
from Landlord, such compensation as may be separately awarded to or recoverable
by Tenant in Tenant's own right on account of any and all damage to Tenant's
business by reason of the condemnation and for, or on account of, any cost or
loss to which Tenant might be put in removing Tenant's merchandise, furniture,
fixtures, leasehold improvements and equipment.
26. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to
time upon not less than ten (10) days prior to written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing, (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modifications and certifying that this
Lease as so modified is in full force and effect), and the date to which the
rental and other charges are paid in advance, if any, and (b) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by a prospective purchaser or encumbrancer or
assignee of the same of all or any portion of the real property of which the
Premises are a part.
27. COMMON AREAS.
27.a. As used in this Lease, "common areas" means all areas,
facilities and improvements provided, from time to time, within the Project for
the mutual convenience and use of Tenants or other occupants of the Building and
their respective agents, employees, customers and invitees, which shall include,
without limitation, roadways, entrances, sidewalks, stairways, elevators,
corridors and halls, delivery areas, landscaped areas, public restrooms and
comfort stations and parking areas.
27.b. Tenant shall have the right, during the Lease term, to
use the common areas, along with the other tenants of the Building, on a
non-exclusive basis. Landlord shall at all time have the right to determine the
nature and extent of the common areas, whether the same be surface, underground,
or deck, and to make such changes, rearrangements, additions or reductions
which, in Landlord's reasonable opinion, are deemed desirable and in the best
interest of all persons using the common areas, or which are required by any
federal, state or municipal law, rule, ordinance, regulation, guideline or
order, including, but not limited to, changes, rearrangements, additions or
reductions involving location, relocation or enlargement, reduction or addition
of accommodations for access to the Building.
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27.c. Landlord shall have the sole and exclusive control and
management of the common areas and may, at any time, exclude and restrain any
person from use or occupancy thereof, excepting tenants of the Building and bona
fide invitees of Landlord or tenants of the Building who make use of said common
areas in accordance with the rules and regulations established by Landlord. The
rights of Tenant in and to the common areas shall at all times be subject to the
rights of others to use the same in common with Tenant, and it shall be the duty
of Tenant to keep all of said common areas free and clear of any obstructions
created or permitted by Tenant or resulting form Tenant's operation. Landlord
may, at any time, close any or all portions of the common areas to make repairs,
to construct additions or improvements, to discourage non-customer parking, to
prevent a dedication of said common areas or parts thereof or the accrual of any
rights to any person or to the public therein, and to do and perform such other
acts in and to the common areas as Landlord shall determine to be advisable to
improve and maintain the common areas for the convenience and use by tenants of
the Building and their employees, agents, customers and invitees and other
persons authorized to use the same by Landlord. Landlord reserves exclusive
control of advertising in the common areas. All common areas and facilities not
within the Premises are to be used and occupied by Tenant under a revocable
license. If the amount of such areas are diminished or otherwise changed, in
Landlord's reasonable discretion, Landlord shall not be subject to any liability
nor shall Tenant be entitled to any compensation or diminution or abatement of
rent, nor shall such diminution or change be deemed constructive or actual
eviction so long as such diminution or change of the common areas does not
materially and adversely affect accessibility to and/or Tenant's use and
enjoyment of the Premises.
27.d. The parking areas, or designated portions thereof, shall
be available for the use of tenants of the Project and, to the extent designated
by Landlord, the employees, agents, customers, and invitees of said tenants and
of Landlord and other parties designated by Landlord, subject to reasonable
rules, regulations, charges, and rates as set forth by Landlord from time to
time; provided, however, that Landlord may restrict parking for the tenants of
the Project (including Tenant) and their employees and agents to certain
portions of the parking areas, and may designate other areas to be used at large
only by customers and invitees of tenants of the Project.
27.e. Pursuant to such an at-large parking system, specific
stalls will not be allocated to specific persons or cars, but an areas or areas
sufficient for the purpose will be designated by Landlord within which
authorized cars (selected by Tenant in accordance with reasonable rules
promulgated by Landlord) will be allowed to park. Such area or areas may, at
Landlord's option, be moved from time to time, upon written notice to Tenant,
within the parking facilities of the Project as now or hereafter constituted.
Within such at-large areas Landlord may allot more cars than there are physical
stalls so long as, in the sole judgement of Landlord, considering actual
experience, the designated number of cars can be satisfactorily served. Landlord
may, at its option, change from an at-large system to a specific stall or other
system, either as to all or a part of the cars for which Tenant (or any other
tenant) enjoys parking rights.
27.f. Notwithstanding anything to the contrary elsewhere
herein, Landlord reserves the right from time to time to make reasonable changes
in, additions to and deletions from the parking areas and to change the purposes
to which the same may be devoted, and the use of parking areas shall at all time
be subject to such reasonable rules and regulations as may be promulgated by
Landlord,
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provided that Landlord shall not reduce Tenant's parking rights as described
above, although it may change the location thereof.
27.g. Landlord, or its agents (if Landlord has delegated such
privileges) shall have the right to cause any cars of Tenant, its employees or
agents that are parked in violation hereof or in violation of the Landlord's
rules and regulations to be removed without liability of any kind to Landlord,
its agents or employees. Tenant agrees to defend, indemnify and hold Landlord
and its agents free and harmless from and against any and all claims, or damages
and demands asserted or arising in connection with the removal of any such
automobiles owned by its employees and agents who are to have parking privileges
hereunder. Landlord may, as part of the regulations promulgated by it for use of
the Parking Areas, require that Tenant cause an identification sticker issued by
Landlord to be affixed to the bumpers or other designated location of all
automobiles of Tenant and its employees or agents who are authorized to park in
the Project.
28. AUTHORITY OF PARTIES. If Tenant or Landlord is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation in accordance with a duly adopted resolution of the board of
directors or in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms.
29. CHANGE OF LOCATION. Without in any way affecting the validity of
this Lease, Landlord shall have the following rights and powers, on not less
than thirty (30) days prior written notice:
29.a. To terminate this Lease by tendering to Tenant a sum
equal to one-sixth (1/6th) of the total rentals then remaining unpaid under this
Lease (exclusive of the term in any unexercised options for renewal), upon which
tender and notice Landlord shall be completely relieved and exonerated from any
liabilities to Tenant of any kind, and Tenant shall be obligated to remove
itself from the Premises and satisfy any obligations of repair and restoration
herein provided (as if the termination pursuant to such notice occurred by an
accelerated expiration of the term,) or
29.b. To relocate the Premises and substitute as the Premises
other space within the Building for all purposes hereunder as though originally
leased to Tenant; provided, however, (1) that the substituted Premises shall
contain an area not less than the square footage contained in the original
Premises without any increase in the rent hereunder, (2) that the power under
this subparagraph (b) shall be exercisable by Landlord only once during the
Lease term, and (3) that Landlord shall pay the expenses reasonably incurred by
Tenant as a direct result of such substitution of Premises, including moving
expenses, door lettering and expenses in connection with change of telephone. In
the event of such relocation Landlord agrees to provide in the substitute
Premises decorations and improvements reasonably equivalent to those which were
in the original Premises but which cannot be moved or used in the substitute
Premises.
29.c. If Landlord gives notice to Tenant to relocate under
subparagraph b. above, Tenant shall have the right and power to terminate this
Lease, without receiving compensation therefor, by written notice to landlord
given not more than fifteen (15) days after receipt of Landlord's
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notice to relocate, effective at the end of the calendar month next following
the month in which Tenant gives notice of such termination.
30. ERECTION AND REMOVAL OF SIGNS. Tenant may place suitable signs at
his location in the premises consistent with that allowed other tenants, eg.
doors plates and lettering. Other signs similar for all tenants may be placed in
lobbies and other locations similar for all tenants with these exceptions:
The above exceptions are by agreement with those tenants.
31. WAIVER. The waiving of any of the conditions or covenants of this
Lease by either party shall be limited to the particular instance and shall not
be deemed a waiver of any other breaches of such covenant, condition, or any
provision herein contained.
32. NOTICES. Any notice required or permitted to be given hereunder
shall be deemed sufficient if given by communication in writing, by United
States mail, postage prepaid, and addressed as follows:
If to Landlord, at the following address:
Big M Investments & MDF 740 E. LLC
C/O ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to Tenant, at the following address:
Schematic Cash Transaction ▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or to such other address as either party may subsequently designate in writing.
Any notice provided as aforesaid shall be deemed to have been received on the
third day following having been placed in the United States mails. A notice
shall also be deemed to be received when personally delivered to the recipient
or the following business day after having been sent to the recipient by Federal
Express or United States Express Mail.
33. SURRENDER OF PREMISES. Tenant shall, upon expiration of the term
hereof, or any earlier termination of this Lease for any cause:
33.a. Surrender to Landlord the Premises, including, without
limitation, all building apparatus and equipment then upon the Premises and all
alterations, improvements, and other additions thereto that may have been made
or installed by either party. If Tenant shall not then be in default, Tenant may
remove its trade fixtures, signs and other personal property, not including
15
ceilings, light fixtures, air conditioning equipment and duct work, floor and
wall coverings, doors, windows, window coverings, including blinds, and
partitions, which items shall remain in the Premises and become the property of
Landlord without any payment therefor. Landlord acknowledges that, except as
otherwise set forth in the Lease Agreement, Landlord has no interest in any
personal property, equipment, furniture and fixtures which may be installed by
Tenant upon Premises, and Landlord's waiver or mortgagee's waiver or similar
document consistent with the provisions of this Lease as may be reasonably
required by an institutional lender or equipment lessor in connection with
Tenant's acquisition or financing respecting such personal property, equipment,
furniture and fixtures.
33.b. If Tenant shall then be in default, Tenant shall not
have the right to remove any of said trade fixtures, signs and other personal
property and the same shall remain and become the property of Landlord. Landlord
shall have a Landlord's lien against Tenant's property until said default is
remedied.
33.c. The leased Premises and all said property (other than
the trade fixtures, signs and other personal property which Tenant has the right
to remove) shall be surrendered to Landlord by Tenant without any damage,
injury, or disturbance thereto, or payment therefor, reasonable wear and tear
excepted. Tenant, at its expense, shall immediately repair any damage to the
Premises caused by his vacating the same or by Tenant's removal of trade
fixtures, signs and other personal property, and shall leave the premises in a
neat and clean condition, free of debris.
33.d. When Tenant vacates the Premises, whether at the
expiration of the term or earlier termination of the Lease or upon abandonment
of the Premises by Tenant, any items of personal property belonging to Tenant
remaining on the Premises shall be deemed to be and hereby are conveyed to
Landlord, without any payment of additional consideration, and Landlord shall,
without notice to Tenant, be entitled to use or dispose of the said items of
personal property as Landlord, in its sole discretion, sees fit. Notwithstanding
the foregoing, however, and subject to the other provisions of this Lease,
Tenant may reclaim any such items of personal property provided that Tenant does
so within five (5) days after having otherwise vacated the Premises and provided
further that Tenant first compensates Landlord for any expenses reasonably
incurred by Landlord in the protection and/or storage of the said items of
personal property. On or prior to the expiration of this Lease, Tenant shall
surrender to Landlord all keys to the Building, the Premises and to interior
locks within the Premises.
33.e. Tenant's obligations to observe and perform any of the
provisions of this Article 33 and Landlord's rights hereunder shall survive the
expiration of the term hereof or earlier termination of this Lease.
34. ATTORNEYS' FEES. Should either Landlord or Tenant institute any
action or proceeding against the other relating to the provision of this Lease
or any default hereunder or should either party intervene in any action or
proceeding wherein the other party is a party in order to enforce or protect the
first party's interests or rights under this Lease, the successful party in such
action or proceeding shall be entitled to an award of its reasonable costs and
expenses of such action, including
16
reasonable attorneys' fees, against the unsuccessful party.
35. PAST DUE SUMS. If Tenant fails to pay, within ten (10) days after
the due date, any rent or other sum required to be paid by Tenant hereunder,
such payment at the rate of one and one-half percent (1-1/2%) per month or
$15.00 (whichever is greater), both before and after judgment. Tenant further
agrees to pay Twenty-Five Dollars ($25.00) for a dishonored bank check. If a
bank check is dishonored, upon demand by Landlord, Tenant agrees to make all
future payments with cash or cashier's checks.
36. GOVERNING LAW; VENUE. This Lease shall be deemed to have been
executed in Salt Lake City, Utah, and the laws of the State of Utah shall govern
the validity, performance and enforcement of any obligation contained herein.
Should either party institute a legal suit or action for enforcement of any
obligation contained in this Lease, the venue of such suit or action shall be in
Salt Lake County, Utah.
37. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of an amount less than is due hereunder shall be deemed to be other
than payment toward or on account of the earliest portion of the amount then
due, nor shall any endorsement or statement on any check or payment (or any
letter accompanying any check or payment) be deemed an "accord and satisfaction"
or "payment in full," and Landlord may accept such check or payment without
prejudice to landlord's right to recover the balance of such amount or pursue
any other remedy provided herein.
38. ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of, or in the event of exercise of the power of sale under
any mortgage or deed of trust made by Landlord covering the Premises, or in the
event of any deed or transfer in lieu of foreclosure, attorn to the new owner of
Landlord's interest in the Premises and recognize such new owner as Landlord
under this Lease.
39. SUBORDINATION. This Lease is, and shall be and remain, subject and
subordinate to any present or future lien of any or all first-position
mortgages, deeds of trust or security instruments, and to any and all utility
easement agreements covering all or any part of Landlord's interest in the
Project and to the rights and powers of the holder of any such mortgage, deed of
trust, security instrument or utility easement, regardless of whether such
mortgage, deed of trust, security instrument or utility easement now exists or
hereafter may be created, and to any and all advances to be made pursuant to any
such mortgage, deed of trust or security instrument and to any interest
thereunder, and to all modifications, consolidations, renewals, replacements and
extensions of any of the aforementioned instruments; provided, however, that so
long as Tenant continues to perform all of its obligations under this Lease,
this Lease shall remain in full force and effect notwithstanding such
subordination or Landlord's default in connection with the mortgage, deed of
trust, or security instrument concerned or any resulting foreclosure or sale, or
transfer in lieu of such proceedings. Notwithstanding the foregoing, Tenant
agrees that any mortgagee, trustee or holder of a security interest may elect to
have this Lease be superior to any lien of its mortgage, deed of trust or
security instrument, and in the event of such election and upon notification by
such mortgagee, trustee or holder of a security interest to Tenant to that
effect, this Lease shall be deemed prior in lien to the said mortgage, deed of
trust or security instrument, as the new case may be, whether this Lease is
dated
17
prior to or subsequent to the date of said mortgage, deed of trust or security
instrument.
40. PARTIAL INVALIDITY. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
41. CAPTIONS; ARTICLE AND PARAGRAPH NUMBERS. The captions and article
and paragraph numbers appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such articles and paragraphs of this Lease or in any way affect this
Lease.
42. TENSE. The singular tense herein shall include the plural, and vice
versa, and any gender shall include all other genders.
43. TIME. Time is of the essence in all provisions of this Lease.
44. TOTAL AGREEMENT. This Lease contains the entire agreement between
the parties and cannot be changed or altered except by a subsequent written
instrument executed by the parties.
Executed as of the day and year first set forth above.
LANDLORD: Big M Investments & MDF 740 E LLC
By: (/s/ illegible signature)
-------------------------
Its: (illegible title)
TENANT: Schimatic Cash Transaction ▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Corporate Secretary
Personal Guarantee
The undersigned individuals, principal officers of Tenant, does by
their signature hereto acknowledge personal consideration for this agreement and
guarantee it's performance by Tenant.
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