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OFFICE LEASE
by and between
INDELA CAMELSQUARE LIMITED LIABILITY COMPANY,
an Arizona limited liability company
"Landlord"
and
▇▇▇▇▇▇▇▇.▇▇▇ INC., a(n)
Arizona Corporation
"Tenant"
November 28, 1995
This lease proposal shall not be treated as an offer but merely as a proposal
for review purposes. This proposal shall not be valid or binding unless and
until accepted by Landlord in writing and fully executed copy delivered to both
parties hereto. This proposal is subject to withdrawal or modification by
Landlord at any time. Landlord reserves the right to offer premises
simultaneously to other third parties. Therefore, the premises may be subject to
prior leasing.
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TABLE OF CONTENTS
Page
I. BASIC PROVISIONS....................................................1
II. LEASED PREMISES.....................................................3
III. LEASE TERM; COMMENCEMENT DATE.......................................4
IV. SECURITY DEPOSIT....................................................5
V. RENT; RENT TAX; ADDITIONAL RENT.....................................5
VI. ADDITIONAL OPERATING EXPENSES, REAL ESTATE TAXES, IMPOSITIONS,
ESTIMATED PAYMENTS..................................................6
VII. INITIAL CONSTRUCTION................................................7
VIII. CONDITION, REPAIRS AND ALTERATIONS..................................7
IX. SERVICES............................................................9
X. LIABILITY AND CASUALTY INSURANCE...................................10
XI. CASUALTY DAMAGE....................................................12
XII. WAIVER OF SUBROGATION..............................................13
XIII. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS.....................13
XIV. DEFAULT AND REMEDIES...............................................13
XV. LATE PAYMENTS......................................................16
XVI. ABANDONMENT AND SURRENDER..........................................16
XVII. INDEMNIFICATION AND EXCULPATION....................................17
XVIII. ENTRY BY LANDLORD..................................................18
XIX. SUBSTITUTE PREMISES................................................18
XX. ASSIGNMENT AND SUBLETTING..........................................19
XXI. USE OF LEASED PREMISES.............................................21
XXII. SUBORDINATION AND ATTORNMENT.......................................22
XXIII. ESTOPPEL CERTIFICATE...............................................23
XXIV. SIGNS..............................................................23
XXV. LIENS..............................................................23
XXVI. HOLDING OVER.......................................................24
XXVII. ATTORNEYS' FEES....................................................24
XXVIII. RESERVED RIGHTS OF LANDLORD........................................26
XXIX. EMINENT DOMAIN.....................................................26
XXX. NOTICES............................................................27
XXXI. RULES AND REGULATIONS..............................................27
XXXII. ACCORD AND SATISFACTION............................................27
XXXIII. HAZARDOUS MATERIALS REGULATION.....................................28
XXXIV. MISCELLANEOUS............................
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OFFICE LEASE
I. BASIC PROVISIONS
1.1 Date: November 28, 1995
1.2 Landlord: INDELA CAMELSQUARE LIMITED LIABILITY COMPANY,
an Arizona limited liability company
1.3 Landlord's Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With Copy of Notice To:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.4 Tenant: ▇▇▇▇▇▇▇▇.▇▇▇ INC., a(n) Arizona Corporation
1.5 Tenant's Address:
(a) Prior to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇
Commencement Date: ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Subsequent to
Commencement Date: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
1.6 Superior Lessor: American National Insurance Company
1.7 Superior Lessor's One ▇▇▇▇▇ Plaza
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.8 Superior Mortgagee: Aid Association for Lutherans
1.9 Superior Mortgagee's Aid Association for Lutherans
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1.10 Project: The parcel of real estate commonly known as
"CamelSquare", located at the Northwest corner
of 44th Street and Camelback Road, Phoenix,
Arizona, together
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with the office buildings now or hereafter
situated thereon, the landscaping, parking
facilities and all other improvements and
appurtenances thereto.
1.11 Building: That certain office building commonly known
as Building "K", situated in the Project.
1.12 Leased Premises: Approximately 1440 rentable square feet of
office space located on the 1st floor of the
Building and known as Suite 192K , as outlined
on the Floor Plan attached as Exhibit "A".
Rentable Square Feet 295,013
of Project:
Permitted Use: General Office use.
1.13 Lease Term: One, (1) years.
1.14 Scheduled Commencement December 1, 1995
Date:
1.15 Annual Basic Rent:
Year 1: $21,600.00 ($1,800.00 per month) plus
applicable rental sales tax, [subject to
adjustment pursuant to Article V and VI of this
Lease.]
Year 2: $__________ ($_________ per month) plus
applicable rental sales tax, [subject to
adjustment pursuant to Article V and VI of this
Lease.]
Year 3 $__________ ($_________ per month) plus
applicable rental sales tax, [subject to
adjustment pursuant to Article V and VI of this
Lease.]
Year 4: $__________ ($_________ per month) plus
applicable rental sales tax, [subject to
adjustment pursuant to Article V and VI of this
Lease.]
Year 5: $__________ ($_________ per month) plus
applicable rental sales tax, [subject to
adjustment pursuant to Article V and VI of this
Lease.]
1.16 Security Deposit: $1,900.00, plus applicable rental sales tax.
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1.17 Rent Escalation's: None
1.18 Building Hours: 7:00 a.m. to 6:00 p.m., Monday through Friday,
and 7:00 a.m. to 1:00 p.m. on Saturday,
excluding recognized federal, state or local
holidays.
1.19 Guarantors: N/A
1.20 Broker: ▇▇▇▇ - CBS Real Estate Services Company
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
1.21 Managing Agent: ▇▇▇▇ - CBS Real Estate Services Company
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
1.22 Exhibits: A = Leased Premises
B = Memorandum of Commencement Date
[reserved]
D = Building Rules and Regulations
[reserved]
[reserved]
1.23 Riders: [reserved]
[reserved]
[reserved]
D = Parking
II. LEASED PREMISES
2.1 Leased Premises. Landlord leases to Tenant, and Tenant leases from
Landlord, the Leased Premises, upon the terms and conditions set forth in this
Lease and any modifications, supplements or addenda hereto (the "Lease"),
including the Basic Provisions of Article I which are incorporated herein by
this reference, together with the non-exclusive right to use, in common with
Landlord and others, the Building Common Areas (as hereinafter defined). The
term "Project Common Areas" means common hallways, corridors, walkways and
footpaths, foyers and lobbies, bathrooms and janitorial closets, electrical and
telephone closets, landscaped areas, and such other areas in the Project and
within or adjacent to the Project which are subject to or are designed or
intended solely for the common enjoyment, use and benefits of the tenants of the
Project.
III. LEASE TERM; COMMENCEMENT DATE
3.1 Lease Term. The Lease Term shall begin on the Commencement Date and
shall be for the period set forth in Article 1.13, plus any period of less than
one (1) month between the
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Commencement Date and the first day of the next succeeding calendar month,
unless sooner terminated in accordance with the further provisions of this
Lease.
3.2 Commencement Date. The Commencement Date shall mean the earliest of (a)
the date on which Landlord substantially completes the Tenant Improvements (as
defined in the Work Letter) and tenders possession of the Leased Premises to
Tenant; (b) the date on which Landlord would have substantially completed the
Tenant Improvements and tendered possession of the Leased Premises to Tenant but
for (i) any act or omission of Tenant, its agents, contractors or employees,
including any delays by Tenant to approve any item or perform any obligation in
accordance with the terms of the Work Letter, (ii) Tenant's request for
materials, finishes or installations other than those readily available, or
(iii) Tenant's request for changes to the Tenant Improvement Plans (as defined
in the Work Letter) after initial approval by Tenant; or (c) the date on which
Tenant takes possession of the Leased Premises.
3.3 Memorandum of Commencement Date. Landlord and Tenant shall, within ten
(10) days after the Commencement Date, execute a declaration in the form of
Exhibit "B" specifying the Commencement Date should the Commencement Date be a
date other than the Scheduled Commencement Date.
3.4 Delay in Commencement Date. In the event Landlord shall be unable, for
any reason, to deliver possession of the Leased Premises to Tenant on the
Scheduled Commencement Date, Landlord shall not be liable for any loss or damage
occasioned thereby, nor shall such inability affect the validity of this Lease
or the obligations of Tenant. In such event, Tenant shall not be obligated to
pay Annual Basic Rent or Additional Rent until the Commencement Date. In the
event Landlord shall not have delivered possession of the Leased Premises to
Tenant within six (6) calendar months after the Scheduled Commencement Date, and
if such failure to deliver possession was (a) caused solely by the fault or
neglect of Landlord, and (b) not caused by any fault or neglect of Tenant or due
to additional time required to plan for and install other work for Tenant beyond
the amount of time which would have been required if only building standard
improvements had been installed, then, as its sole and exclusive remedy for
Landlord's failure to deliver possession of the Leased Premises in a timely
manner, Tenant shall have the right to terminate this Lease by delivering
written notice of termination to Landlord at any time within thirty (30) days
after the expiration of such six (6) month period. Such termination shall be
effective thirty (30) days after receipt by Landlord of Tenant's notice of
termination unless Landlord shall, prior to the expiration of such thirty (30)
day period, deliver possession of the Leased Premises to Tenant. Upon a
termination of this Lease pursuant to the provisions of this Article 3.4, the
parties shall have no further obligations or liabilities to the other and
Landlord shall promptly return any monies previously deposited or paid by
Tenant.
3.5 Lease Year. Each "Lease Year" shall be a period of twelve (12)
consecutive calendar months, the first Lease Year beginning on the Commencement
Date or on the first day of the calendar month next succeeding the Commencement
Date if the Commencement Date is not on the first day of a calendar month. Each
Lease Year after the first Lease Year shall begin on the calendar day next
succeeding the expiration of the immediately preceding Lease Year.
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IV. SECURITY DEPOSIT
----------------
Tenant shall pay to Landlord, upon the execution of this Lease, the
Security Deposit set forth in Article 1.16, plus applicable rental sales tax, as
security for the performance by Tenant of its obligations under this Lease,
which amount shall be returned to Tenant after the expiration or earlier
termination of this Lease, provided that Tenant shall have fully performed all
of its obligations contained in this Lease. The Security Deposit, at the
election of Landlord, may be retained by Landlord as and for its full damages or
may be applied in reduction of any loss and/or damage sustained by Landlord by
reason of the occurrence of any breach, nonperformance or default by Tenant
under this Lease without the waiver of any other right or remedy available to
Landlord at law, in equity or under the terms of this Lease. If any portion of
the Security Deposit is so used or applied, Tenant shall, within five (5) days
after written notice from Landlord, deposit with Landlord immediately available
funds in an amount sufficient to restore the Security Deposit to its original
amount. Tenant acknowledges and agrees that in the event Tenant shall file a
voluntary petition pursuant to the Bankruptcy Code or any successor thereto, or
if an involuntary petition is filed against Tenant pursuant to the Bankruptcy
Code or any successor thereto, then Landlord may apply the Security Deposit
towards those obligations of Tenant to Landlord which accrued prior to the
filing of such petition. Tenant acknowledges further that the Security Deposit
may be commingles with Landlord's other funds and that Landlord shall be
entitled to retain any interest earnings thereon. Any mortgagee of Landlord, or
purchaser of the Premises, or beneficiary of a deed of trust, shall be relieved
and released from any obligation to return such security in the event such
mortgagee, beneficiary of a deed of trust, or purchaser comes into possession of
the Premises by reason of foreclosure or trustee's sale (including deed in lieu
thereof) or proceeding in lieu of foreclosure unless such security deposit shall
have been actually delivered to such mortgagee or purchaser. Such release does
not relieve Landlord of any obligation it may have to return the security
deposit.
V. RENT; RENT TAX; ADDITIONAL RENT
-------------------------------
5.1 Payment of Rent. Tenant shall pay to Landlord the Annual Basic Rent set
forth in Article 1.15, subject to adjustment as provided herein. The Annual
Basic Rent shall be paid in equal monthly installments, on or before the first
day of each and every calendar month during the Lease Term, in advance, without
notice or demand and without abatement, deduction or set-off. If the
Commencement Date is other than the first day of a calendar month, the payment
for the partial month following the Commencement Date shall be prorated and
shall be payable on the Commencement Date. The Annual Basic Rent for the first
full month of the Lease Term shall be paid upon the execution of this Lease. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month. All payments shall be paid in lawful money of the United States of
America to Landlord or its agent at the address set forth in Article 1.3, or to
such other person or at such other place as Landlord may from time to time
designate in writing.
5.2 Rent Tax. In addition to the Annual Basic Rent, Tenant shall pay to
Landlord, together with the monthly installments of Annual Basic Rent, an amount
equal to any state or local sales, rental, privilege, occupancy, excise, or use
taxes assessed or levied upon Landlord with respect to the amounts paid by
Tenant to Landlord hereunder, as well as all taxes assessed or imposed upon
Landlord's gross receipts or gross income from leasing the Leased Premises to
Tenant, including, without limitation, transaction privilege taxes, education
excise taxes, any tax
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now or hereafter imposed by the City of Phoenix, the State of Arizona, any other
governmental body, and any taxes assessed or imposed in lieu of or in
substitution of any of the foregoing taxes. Such taxes shall not, however,
include any franchise, gift, estate, inheritance, conveyance, transfer or net
income tax assessed against Landlord.
5.3 Additional Rent. In addition to Annual Basic Rent, all other amounts to
be paid by Tenant to Landlord pursuant to this Lease (including amounts to be
paid by Tenant pursuant to Article VI), if any, shall be deemed to be Additional
Rent, whether or not designated as such, and shall be due and payable within
five (5) days after receipt by Tenant of Landlord's statement or together with
the next succeeding installment of Annual Basic Rent, whichever shall first
occur. Landlord shall have the same remedies for the failure to pay Additional
Rent as for the nonpayment of Annual Basic Rent.
VI. ADDITIONAL OPERATING EXPENSES, REAL ESTATE TAXES,
-------------------------------------------------
IMPOSITIONS, ESTIMATED PAYMENTS
-------------------------------
6.1 Additional Rent. All charges required to be paid by Tenant hereunder,
including without limitation payments for Impositions, Operating Expenses, and
any other amounts payable hereunder, shall be considered additional rent for the
purposes of this Lease ("Additional Rent"), and Tenant shall pay Additional Rent
upon written demand by Landlord or otherwise as provided in this Lease. "Rent,"
as used herein, shall be Base Rent and Additional Rent.
[reserved]
6.3 Impositions. All real estate taxes, including all real estate rental,
use, and privilege taxes, and all other taxes relating to the Premises or the
Project, all other taxes which may be levied in lieu of real estate taxes,
including any real estate rental, use, and privilege taxes, all assessments,
assessment bonds, levies, fees and other governmental charges (including, but
not limited to, charges for traffic facilities improvements, water services
studies and improvements, and fire services studies and improvements) or amounts
necessary to be expended because of governmental order, whether general or
special, ordinary or extraordinary, unforeseen as well as foreseen, of any kind
and nature for public improvements, services, benefits, or any other purposes
are assessed, levied, confirmed, imposed or become a lien upon the Premises or
Project or become payable during the Term shall collectively be referred to as
"Impositions". Impositions shall not include any franchise, estate, inheritance
or succession transfer tax of Landlord, or any income, profits or revenue tax or
charge upon the net income of Landlord from all sources; provided, however, that
if at any time during the Term under the laws of the United States Government or
the Applicable State, or any political subdivision thereof, a tax or excise on
rent, or any other tax however described, is levied or assessed by any such
political body against Landlord on account of Rent, or a portion thereof, Tenant
shall pay one hundred percent (100%) of any said tax or excise as Additional
Rent. Tenant shall pay or cause to be paid, prior to delinquency, any and all
taxes and assessments levied upon all trade fixtures, inventories and other
personal property placed in and upon the Premises by Tenant.
6.4 Services and Utilities. So long as Tenant is not in default under this
Lease, Landlord shall provide to the Premises and the Building Common Areas
during business Hours, utilities and maintenance as required in Landlord's
reasonable judgment for the comfortable use
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and occupancy of the Premises. Landlord shall not be liable for, and Tenant
shall not be entitled to any reduction or abatement of Rent on account of, any
failure on the part of the Landlord to deliver the services and utilities
provided in the Lease unless the same results from the willful or intentional
misconduct of Landlord, nor shall Landlord be liable under any circumstances for
any direct or consequential damages incidental to any failure to furnish any
utilities or services. Tenant may install its own trash receptacle. "Business
Hours", as used herein, means the hours from 7:00 a.m. to 6:00 p.m. Monday
through Friday and 7:00 a.m. to 1:00 p.m. on Saturday, except for National
Holidays. Landlord will provide janitorial service five (5) days per week within
the Premises as per Article 9.2.
6.5 Extra Services and Utilities. Landlord agrees to provide utility and
maintenance service, including HVAC service, above the Building standard quality
provided herein, at a market hourly rate to be determined by Landlord. Any extra
services and utilities, including after-Business Hours HVAC service, shall be
provided upon at least one business day's notice to Landlord.
VII. INITIAL CONSTRUCTION
--------------------
Construction of Tenant Improvements within the Leased Premises shall be
performed [reserved] as follows: tenant accepts suite in "as-is" condition.
VIII. CONDITION, REPAIRS AND ALTERATIONS
----------------------------------
8.1 Tenant's Obligations. Tenant shall, at Tenant's sole cost and expense,
maintain the Leased Premises in a clean, neat and sanitary condition and shall
keep the Leased Premises and every part thereof in good condition and repair
except where the same is required to be done by Landlord. Tenant hereby waives
all rights to make repairs at the expense of Landlord as provided by any law,
statute or ordinance now or hereafter in effect. Tenant shall, upon the
expiration or earlier termination of the Lease Term, surrender the Leased
Premises to Landlord, broom clean and in the same condition as when received,
ordinary wear and tear excepted. Except as set forth in the Work Letter and in
Article 8.2 below, Landlord has no obligation to construct, remodel, improve,
repair, decorate or paint the Leased Premises or any part thereof. Tenant shall
pay for the cost of all repairs to the Leased Premises not required to be made
by Landlord and shall be responsible for any redecorating, remodeling,
alteration and painting during the Lease Term. Tenant shall pay for any repairs
to the Leased Premises, the Building, or the Project made necessary by any
negligence or carelessness of Tenant, its employees or invitees.
8.2 Landlord's Obligations. Landlord shall (a) make all necessary repairs
to the exterior walls, exterior doors, windows and corridors of the Building,
(b) keep the Building and the Building Common Areas in a clean, net and
attractive condition, and (c) keep all Building equipment such as elevators,
plumbing, heating, air conditioning and similar Building equipment in good
repair, but Landlord shall not be liable or responsible for breakdowns or
interruptions in service when reasonable efforts are made to restore such
service.
8.3 Alterations. Tenant may place partitions and fixtures and may make
improvements and other alterations to the interior of the Leased Premises at
Tenant's expense,
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provided, however, that prior to commencing any such work, Tenant shall first
obtain the written consent of Landlord to the proposed work, including the
plans, specifications and the proposed architect and/or contractor(s) for such
alterations and/or improvements. At least ten (10) days prior to the
commencement of any construction in the Leased Premises, Tenant shall deliver to
Landlord copies of the plans and specifications for the contemplated work and
shall identify the contractor(s) selected by Tenant to perform such work.
Landlord may require that the work be done by Landlord's own employees, its
construction contractors, or under Landlord's direction, but at the expense of
Tenant, and Landlord may, as a condition to consenting to such work, require
that Tenant provide security adequate in Landlord's judgment so that the
improvements or other alterations to the Leased Premises will be completed in a
good, workmanlike and lien free manner. Landlord may also require that any work
done to the interior of the Leased Premises be subject to the supervision of
Landlord or its designee, and Tenant shall pay to Landlord, upon completion of
such work, a supervision fee in an amount equal to ten percent (10%) of cost of
such work. All such improvements or alterations must conform to and be in
substantial accordance in quality and appearance with the quality and appearance
of the improvements in the remainder of the Building. All such improvements
shall be the property of Landlord. In the event Landlord consents to the use by
Tenant of its own architect and/or contractor for the installation of any such
alternations or improvements, prior to the commencement of such work, Tenant
shall provide Landlord with evidence that Tenant's contractor has procured
worker's compensation, liability and property damage insurance (naming Landlord
and the managing agent as an additional insured) in a form and in an amount
approved by Landlord, and evidence that Tenant's architect and/or contractor has
procured the necessary permits, certificates and approvals from the appropriate
governmental authorities. Tenant acknowledges and agrees that any review by
Landlord of Tenant's plans and specifications and/or right of approval exercised
by Landlord with respect to Tenant's architect and/or contractor is for
Landlord's benefit only and Landlord shall not, by virtue of such review or
right of approval, be deemed to make any representation, warranty or
acknowledgement to Tenant or to any other person or entity as to the adequacy of
Tenant's plans and specifications or as to the ability, capability or reputation
of Tenant's architect and/or contractor.
8.4 Removal of Alterations. Upon the expiration or earlier termination of
this Lease, Tenant shall remove from the Leased Premises all movable trade
fixtures and other movable personal property, and shall promptly repair any
damage to the Leased Premises, the Building or the Project caused by such
removal. All such removal and repair shall be entirely at Tenant's sole cost and
expense. At any time within fifteen (15) days prior to the scheduled expiration
of the Lease Term or immediately upon any termination of this Lease, Landlord
may require that Tenant remove from the Leased Premises any alterations,
additions, improvements, trade fixtures, equipment, shelving, cabinet units or
movable furniture (and other personal property) designed by Landlord to be
removed. In such event, Tenant shall, in accordance with the provisions of
Article 8.3 above, complete such removal (including the repair of any damage
caused thereby) entirely at its own expense and within fifteen (15) days after
notice from Landlord.
8.5 No Abatement. Except as provided herein, Landlord shall have no
liability to Tenant, nor shall Tenant's covenants and obligations under this
Lease, including without limitation, Tenant's obligation to pay Annual Basic
Rent and Additional Rent, be reduced or abated in any manner whatsoever by
reason of any inconvenience, annoyance, interruption or
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injury to business arising from Landlord's making any repairs or changes which
Landlord is required or permitted to make pursuant to the terms of this Lease or
by any other Tenant's lease or are required by law to be made in and to any
portion of the Leased Premises, the Building or the Project. Landlord shall,
nevertheless, use reasonable efforts to minimize any interference with Tenant's
business in the Leased Premises.
IX. SERVICES
--------
9.1 Climate Control. Landlord shall provide reasonable climate control to
the Leased Premises during the Building Hours as is suitable, in Landlord's
judgment, for the comfortable use and occupation of the Leased Premises,
excluding, however, air conditioning or heating for electronic data processing
or other equipment requiring extraordinary climate control.
9.2 Janitorial Services. Landlord shall make janitorial and cleaning
services available to the Leased Premises at least five (5) evenings per week,
except recognized federal, state or local holidays. Tenant shall pay to
Landlord, within five (5) days after receipt of Landlord's ▇▇▇▇, the reasonable
costs incurred by Landlord for extra cleaning in the Leased Premises required
because of (a) misuse or neglect on the part of Tenant, its employees or
invitees, (b) use of portions of the Leased Premises for special purposes
requiring greater or more difficult cleaning work than office areas, (c)
interior glass partitions or unusual quantities of glass surfaces, (d)
non-building standard materials or finishes installed by Tenant or at its
request, and (e) removal from the Leased Premises of refuse and rubbish of
Tenant in excess of that ordinarily accumulated in general office occupancy or
at times other than Landlord's standard cleaning times.
9.3 Electricity. Landlord shall, during Building Hours, furnish reasonable
amounts of electric current as required for normal and usual lighting purposes
and for office machines and equipment such as personal computers, typewriters,
adding machines, copying machines, calculators and similar machines and
equipment normally utilized in general office use. Tenant's use of electric
energy in the Leased Premises shall not at any time exceed the capacity of any
of the risers, piping, electrical conductors and other equipment in or serving
the Leased Premises. In order to insure that such capacity is not exceeded and
to avert any possible adverse effect on the Building's electric system, Tenant
shall not, without Landlord's prior written consent in each instance, connect
appliances, or heavy-duty equipment other than ordinary office equipment to the
Building's electric system or make any alterations or additions to the
Building's electric system. Should Landlord grant such consent, all additional
risers, piping and electrical conductors and other equipment therefor shall be
provided by Landlord and the cost thereof shall be paid by Tenant within ten
(10) days after receipt of Landlord's ▇▇▇▇. As a condition to granting such
consent, Landlord may require Tenant to pay the cost of additional electric
energy that is made available to Tenant based upon the estimated additional
capacity of such additional risers, piping and electrical conductors or other
equipment.
9.4 Light Bulbs. Landlord shall perform such replacement of lamps,
fluorescent tubes and lamp ballast's in the Leased Premises and in the Building
as may be required from time to time. If the lighting fixtures in the Leased
Premises are other than those furnished as Base Building Improvements (as
defined in Exhibit "D"), Tenant shall pay Landlord's charge for
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replacing the lamps, lamp ballast's and fluorescent tubes in such lighting
fixtures within ten (10) days after receipt of Landlord's ▇▇▇▇.
9.5 Heat Generating Equipment. Whenever heat generating machines or
equipment used in the Leased Premises affect the temperature otherwise
maintained by the climate control system, Landlord shall have the right to
install supplementary air-conditioning units in the Leased Premises and the cost
thereof, including the cost of installation, operation and maintenance shall be
paid by Tenant to Landlord within five (5) days after receipt by Tenant of
Landlord's statement.
9.6 Separate Meters. Landlord may install separate meters for the Leased
Premises to register the usage of all or any one of the utilities serving the
Leased Premises and in such event, Tenant shall pay for the cost of utility
usage as metered (a) during other than Building Hours, or (b) which is in excess
of that usage customary for general office use. Tenant shall reimburse Landlord
for the cost of installation of the meters. In addition, Landlord shall have the
right to require that Tenant reduce its consumption of utilities furnished to
the Leased Premises to a level not exceeding normal consumption for general
office use as determined by Landlord in its reasonable business judgment.
9.7 Additional Services. Tenant shall pay to Landlord, monthly as billed,
as Additional Rent, Landlord's charge for services furnished by Landlord to
Tenant in excess of that agreed to be furnished by Landlord pursuant to this
Article IX, including, but not limited to (a) any utility services utilized by
Tenant during other than Building Hours or for computers, data processing
equipment or other electrical equipment in excess of the amounts of electric
current agreed to be furnished by Landlord to the Leased Premises pursuant to
Article 9.3 above, and (b) climate control in excess of that agreed to be
furnished by Landlord pursuant to Article 9.1 above or provided at times other
than Building Hours.
9.8 Interruptions in Service. Landlord does not warrant that any of the
foregoing services or any other services which Landlord may supply will be free
from interruption. Tenant acknowledges that any one or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or by causes beyond the reasonable control of Landlord.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Annual Basic Rent or Additional Rent by reason of any
disruption of the services to be provided by Landlord pursuant to this Lease.
X. LIABILITY AND CASUALTY INSURANCE
--------------------------------
10.1 Liability Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of commercial general liability insurance
for personal injury (including wrongful death) and damage to property covering
(a) any occurrence in the Leased Premises, (b) any act or omission by Tenant, by
any subtenant of Tenant, or by any of their respective invitees, agents,
servants or employees anywhere in the Leased Premises or the Project, (c) the
business operated by Tenant and by any subtenant of Tenant in the Leased
Premises, and (d) the contractual liability of Tenant to Landlord pursuant to
the indemnification provisions of Article 17.1 below, which coverage shall not
be less than One Million and No/100
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Dollars ($1,000,000.00), combined single limit, per occurrence. If Landlord
shall so request, Tenant shall increase the amount of such liability insurance
to the amount then customary for premises and uses similar to the Leased
Premises and Tenant's use thereof. The liability policy or policies shall
contain an endorsement naming Landlord and its managing agent, its partners and
any persons, firms or corporations designated by Landlord as additional insured
and the Superior Lessor as a named insured.
10.2 Casualty Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of so called "All Risk" or "All Peril"
insurance, insuring the Tenant Improvements and Tenant's stock in trade,
furniture, personal property, fixtures and equipment in the Leased Premises,
with coverage in an amount equal to the replacement cost thereof. Tenant may,
with Landlord's prior written consent, elect to have a reasonable deductible in
connection with such insurance.
10.3 Worker's Compensation Insurance. Tenant shall, during the Lease Term,
keep in full force and effect, a policy or policies of worker's compensation
insurance with an insurance carrier and in amounts approved by the Industrial
Commission of the State of Arizona.
10.4 Insurance Requirements. Each insurance policy and certificate thereof
obtained by Tenant pursuant to this Lease shall contain a clause that the
insurer will provide Landlord, its partners and any persons, firms or
corporations designated by Landlord with at least thirty (30) days prior written
notice of any material change, nonrenewable or cancellation of the policy. Each
such insurance policy shall be with an insurance company authorized to do
business in the State of Arizona and reasonably acceptable to Landlord. A
certificate evidencing the coverage under each such policy, as well as a
certified copy of the required additional insured endorsement(s) shall be
delivered to Landlord prior to commencement of the Lease Term. Each such policy
shall provide that any loss payable thereunder shall be payable notwithstanding
(a) any act, omission or neglect by Tenant or by any subtenant of Tenant, or (b)
any occupation or use of the Leased Premises or any portion thereof by Tenant or
by any subtenant of Tenant for purposes more hazardous than permitted by the
terms of such policy or policies, or (c) any foreclosure or other action or
proceeding taken by any mortgagee or trustee pursuant to any provision of any
mortgage or deed of trust covering the Leased Premises, the Building or the
Project, or (d) any change in title or ownership of the Project. All insurance
policies required pursuant to this Article X shall be written as primary
policies, not contributing with or in excess of any coverage which Landlord may
carry. Tenant shall procure and maintain all policies entirely at its own
expense and shall, at least twenty (20) days prior to the expiration of such
policies, furnish Landlord with renewal certificates thereof. Tenant shall not
do or permit to be done anything which shall invalidate the insurance policies
maintained by Landlord or the insurance policies required pursuant to this
Article X or the coverage thereunder. If Tenant or any subtenant of Tenant does
or permits to be done anything which shall increase the cost of any insurance
policies maintained by Landlord, then Tenant shall reimburse Landlord for any
additional premiums attributable to any act or omission or operation of Tenant
or any subtenant of Tenant causing such increase in the cost of insurance. Any
such amount shall be payable as Additional Rent within five (5) days after
receipt by Tenant of a ▇▇▇▇ from Landlord.
10.5 Co-Insurance. If on account of the failure of Tenant to comply with
the provisions of this Article X, Landlord is deemed a co-insurer by its
insurance carrier, then any
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loss or damage which Landlord shall sustain by reason thereof shall be borne by
Tenant, and shall be paid by Tenant within five (5) days after receipt of a ▇▇▇▇
therefor.
10.6 Adequacy of Insurance. Landlord makes no representation or warranty to
Tenant that the amount of insurance to be carried by Tenant under the terms of
this Lease is adequate to fully protect Tenant's interests. If Tenant believes
that the amount of any such insurance is insufficient, Tenant is encouraged to
obtain, at its sole cost and expense, such additional insurance as Tenant may
deem desirable or adequate. Tenant acknowledges that Landlord shall not, by the
fact of approving, disapproving, waiving, accepting, or obtaining any insurance,
incur any liability for or with respect to the amount of insurance carried, the
form or legal sufficiency of such insurance, the solvency of any insurance
companies or the payment or defense of any lawsuit in connection with such
insurance coverage, and Tenant hereby expressly assumes full responsibility
therefor and all liability, if any, with respect thereto. Tenant shall carry
such additional insurance and coverage's and meeting such standards as may be
required from time to time by the Superior Lessor.
10.7 Earthquake and Flood Insurance. In addition to any other insurance
policies carried by Landlord in connection with the Project, Landlord may, in
its sole discretion, elect to procure and maintain in full force and effect
during the Term, with respect to the Project, a policy of earthquake/volcanic
action and flood and/or surface water insurance.
XI. CASUALTY DAMAGE
---------------
11.1 Obligation to Repair. In the event of any damage to the Leased
Premises, Tenant shall promptly notify Landlord in writing. If the Leased
Premises or any part of the Building are damaged by fire or other casualty not
due to the fault or negligence of Tenant, its employees, invitees, agents,
contractors or servants, the damage to the Building and/or the Base Building
Improvements within the Leased Premises shall be repaired by and at the expense
of Landlord and the Tenant Improvements and the remainder of the Leased Premises
shall be repaired by and at the expense of Tenant, unless this Lease is
terminated in accordance with the provisions of Article 11.2 below. There shall
be no abatement of Annual Basic Rent or Additional Rent on account of damage to
the Leased Premises, the Building or the Project. Tenant hereby waives any
statute now or hereafter in effect which grants to Tenant the right to terminate
this Lease or which provides for an abatement of rent on account of damage or
destruction, including, without limitation, A.R.S. 33-343.
11.2 Landlord's Option. If the damage is not fully covered by Landlord's
insurance, or if Landlord determines in good faith that the cost of repairing
the damage is more than one-third of the then replacement cost of the Building
or the Project, or if Landlord has determined in good faith that the required
repairs to the Building cannot be made within a one hundred twenty (120) day
period without the payment of overtime or other premiums, or in the event the
lessor under a ground lease or a holder of a mortgage or a deed of trust against
the Building or the Project requires that all or any portion of the insurance
proceeds be applied on the ground lease or in reduction of the mortgage debt,
then Landlord may, by written notice to Tenant within ninety (90) days after the
occurrence of such damage, terminate this Lease as of the date set forth in
Landlord's notice to Tenant. If Landlord does not elect to terminate this Lease,
Landlord shall, at its sole cost and expense, repair the Building and the Base
Building Improvements within the
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Leased Premises and while such repair work is being performed, the Annual Basic
Rent and Additional Rent shall be abated but only if and to the extent that the
proceeds of Tenant's business interruption insurance proceeds are paid to
Landlord. In any situation where Landlord is required to or has elected to
repair damage to the Leased Premises, Landlord shall not be obligated to repair
or replace any items other than Base Building Improvements. After completion by
Landlord of the repairs to the Base Building Improvements, Tenant shall
commence, and thereafter diligently pursue to completion, in accordance with the
provisions of Article 8.3, the repair and restoration of the Tenant Improvements
and the remainder of the Leased Premises. Nothing in this Article XI shall be
construed as a limitation of Tenant's liability for any such damage, should such
liability otherwise exist.
XII. WAIVER OF SUBROGATION
---------------------
Tenant hereby waives its rights and the subrogation rights of its insurer
against Landlord and any other Tenants of space in the Building, or the Project,
as well as their respective officers, employees, agents, authorized
representatives and invitees, with respect to any claims including, but not
limited to, claims for injury to any persons, and/or damage to the Leased
Premises and/or any fixtures, equipment, personal property, furniture,
improvements and/or alterations in or to the Leased Premises, which are caused
by or result from (a) risks or damages required to be insured against under this
Lease, or (b) risks and damages which are insured against by insurance policies
maintained by Tenant from time to time. Tenant shall obtain for Landlord from
its insurers under each policy required by this Lease a waiver of all rights of
subrogation which such insurers of Tenant might otherwise have against Landlord.
XIII. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS
----------------------------------------------
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Annual Basic Rent or Additional Rent. If
Tenant shall fail to pay any sum of money, other than Annual Basic Rent,
required to be paid by it hereunder, or shall fail to perform any other act on
its part to be performed hereunder, and such failure shall continue for five (5)
days after notice thereof by Landlord (or such shorter period of time as may be
reasonable following oral notice to Tenant's personnel in the Leased Premises),
Landlord may (but shall not be obligated to do so) without waiving or releasing
Tenant from any of Tenant's obligations, make any such payment or perform any
such other act on behalf of Tenant. All sums so paid by Landlord and all
necessary incidental costs, together with interest thereon at the greater of (a)
eighteen percent (18%) per annum or (b) the rate of interest per annum publicly
announced, quoted or published, from time to time, by Bank of America, at its
Phoenix, Arizona office as its "prime rate" plus four (4) percentage points,
from the date of such payment by Landlord until reimbursement in full by Tenant
(the "Default Rate"), shall be payable to Landlord as Additional Rent with the
next monthly installment of Annual Basic Rent; provided, however, in no event
shall the Default Rate exceed the maximum rate (if any) permitted by applicable
law.
XIV. DEFAULT AND REMEDIES
--------------------
14.1 Event of Default. If Tenant shall fail to pay any installment of
Annual Basic Rent, any Additional Rent or any other sum required to be paid by
Tenant under this Lease, and
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such failure shall continue for five (5) days after written notice, or if Tenant
shall fail to perform any of the other covenants or conditions which Tenant is
required to observe and perform and such failure shall continue for fifteen (15)
days (or such shorter period of time as may be specified by Landlord in the
event of an emergency) after written notice thereof by Landlord to Tenant, or if
Tenant makes or has made any warranty, representation or statement to Landlord
in connection with this Lease which is or was materially false or misleading
when made or furnished, or if Tenant shall commit an Event of Default under any
other agreement between Landlord and Tenant, or if Tenant shall fail to conduct
business operations within the Leased Premises for five (5) consecutive days, or
if the interest of Tenant in this Lease shall be levied upon under execution or
other legal process, or if any petition shall be filed by or against Tenant or
any Guarantor to declare Tenant or any Guarantor a bankrupt or to delay, reduce
or modify Tenant's or any Guarantor's debts or obligations, or if any petition
shall be filed or other action taken to reorganize or modify Tenant's or any
Guarantor's capital structure, or if Tenant or any Guarantor shall be declared
insolvent according to law, or if any assignment of Tenant's or any Guarantor's
property shall be made for the benefit of creditors, or if a receiver or trustee
is appointed for Tenant or any Guarantor or all or any of their respective
property, or if Tenant or any Guarantor shall file a voluntary petition pursuant
to the Bankruptcy Code or any successor thereto or if an involuntary petition be
filed against Tenant or any Guarantor pursuant to the Bankruptcy Code or any
successor thereto, then Tenant shall have committed a material breach and
default under this Lease (an "Event of Default").
14.2 Remedies. Upon the occurrence of an Event of Default under this Lease
by Tenant, Landlord may, without prejudice to any other rights and remedies
available to Landlord at law, in equity or by statute, exercise one or more of
the following remedies, all of which shall be construed and held to be
cumulative and non-exclusive:
(a) Terminate this Lease and re-enter and take possession of the
Leased Premises, in which event, Landlord is authorized to make
such repairs, redecorating, refurbishment's or improvements to the
Leased Premises as may be necessary in the reasonable opinion of
Landlord acting in good faith for the purposes of reletting the
Leased Premises and the costs and expenses incurred in respect of
such repairs, redecorating and refurbishment's and the expenses of
such reletting (including brokerage commissions) shall be paid by
Tenant to Landlord within five (5) days after receipt of
Landlord's statement;
(b) Without terminating this Lease, re-enter and take possession of
the Leased Premises;
(c) Without such re-entry, recover possession of the Leased Premises
in the manner prescribed by any statute relating to summary
process, and any demand for Annual Basic Rent, re-entry for
condition broken, and any and all notices to quit, or other
formalities of any nature to which Tenant may be entitled, are
hereby specifically waived to the extent permitted by law;
(d) Without terminating this Lease, Landlord may relet the Leased
Premises as Landlord may see fit without thereby avoiding or
terminating this
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Lease, and for the purposes of such reletting, Landlord is
authorized to make such repairs, redecorating, refurbishment's or
improvements to the Leased Premises as may be necessary in the
reasonable opinion of Landlord acting in good faith for the
purpose of such reletting, and if a sufficient sum is not realized
from such reletting (after payment of all costs and expenses of
such repairs, redecorating and refurbishment's and expenses of
such reletting (including brokerage commissions) and the
collection of rent accruing therefrom) each month to equal the
Annual Basic Rent and Additional Rent payable hereunder, then
Tenant shall pay such deficiency each month within five (5) days
after receipt of Landlord's statement;
(e) Landlord may declare immediately due and payable all the remaining
installments of Annual Basic Rent and Additional Rent, and such
amount, less the far rental value of the Leased Premises for the
remainder of the Lease Term shall be paid by Tenant within five
(5) days after receipt of Landlord's statement. Landlord shall not
by re-entry or any other act, be deemed to have terminated this
Lease, or the liability of Tenant for the total Annual Basic Rent
and Additional Rent reserved hereunder or for any installment
thereof then due or thereafter accruing, or for damages, unless
Landlord notifies Tenant in writing that Landlord has so elected
to terminate this Lease. After the occurrence of an Event of
Default, the acceptance of Annual Basic Rent or Additional Rent,
or the failure to re-enter by Landlord shall not be deemed to be a
waiver of Landlord's right to thereafter terminate this Lease and
exercise any other rights and remedies available to it, and
Landlord may re-enter and take possession of the Leased Premises
as if no Annual Basic Rent or Additional Rent had been accepted
after the occurrence of an Event of Default.
14.3 Additional Remedies. All of the remedies given to Landlord in this
Lease in the event Tenant commits an Event of Default are in addition to all
other rights or remedies available to a landlord at law, in equity or by
statute. All rights, options and remedies available to Landlord shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other.
14.4 Interest on Past Due Amounts. In addition to the late charge described
in Article XV, if any installment of Annual Basic Rent or Additional Rent is not
paid promptly when due, it shall bear interest at the Default Rate from the due
date; provided, however, this provision shall not relieve Tenant from any
default in the making of any payment at the time and in the manner required by
the Lease; and provided, further, in no event shall the Default Rate exceed the
maximum rate (if any) permitted by applicable law.
14.5 Landlord Default. In the event Landlord should neglect or fail to
perform or observe any of the covenants, provisions or conditions contained in
this Lease on its part to be performed or observed, and such failure continues
for thirty (30) days after written notice of default (or if more than thirty
(30) days shall be required because of the nature of the default, if Landlord
shall fail to commence the curing of such default within such thirty (30) day
period and
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proceed diligently thereafter), then Landlord shall be responsible to Tenant for
any actual damages sustained by Tenant as a result of Landlord's breach, but not
special or consequential damages. Should Tenant give written notice to Landlord
to correct any default, Tenant shall give the same notice to the Superior Lessor
and Superior Mortgagee (as defined in Article 22.1) at the addresses set forth
in Article 1.7 an 1.9 respectively (or at such other addresses as Tenant may be
notified of from time to time) and prior to any cancellation of this Lease or
the exercise of any other remedies, the Superior Lessor and Superior Mortgagee
shall be given thirty (30) days or such longer period of time as may be
reasonably necessary to correct or remedy such default, but shall have no
obligation to do so. If and when the Superior Lessor or Superior Mortgagee has
made performance on behalf of Landlord, the default of Landlord shall be deemed
cured. Tenant shall have no right to terminate this Lease, unless expressly
provided in this Lease.
XV. LATE PAYMENTS
-------------
Tenant acknowledges that the late payment by Tenant to Landlord of any
monthly installment of Annual Basic Rent, any Additional Rent or any other sums
due hereunder will cause Landlord to incur costs not contemplated by 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 monthly installment of Annual Basic
Rent, any Additional Rent or any other sum due from Tenant shall not be received
by Landlord within five (5) days after the date when due, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of such overdue amount. Tenant
acknowledges that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payments by Tenant. Neither
assessment nor acceptance of a late charge by Landlord shall constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies available to Landlord.
Nothing contained in this Article XV shall be deemed to condone, authorize,
sanction or grant to Tenant an option for the late payment of Annual Basic Rent,
Additional Rent or any other sum due hereunder.
XVI. ABANDONMENT AND SURRENDER
-------------------------
16.1 Abandonment. Tenant shall not vacate or abandon the Leased Premises
for a consecutive period of 5 days at any time during the Lease Term. No act or
thing done by Landlord or by any agent or employee of Landlord during the Lease
Term shall be deemed an acceptance of a surrender of the Leased Premises unless
such acceptance is expressed in writing and duly executed by Landlord. Unless
Landlord so agrees in writing, the delivery of the key to the Leased Premises to
any employee or agent of Landlord shall not operate as a termination of this
Lease or as a surrender of the Leased Premises.
16.2 Surrender. Tenant shall, upon the expiration or earlier termination of
this Lease, peaceably surrender the Leased Premises, including the Tenant
Improvements, in a broom clean condition and otherwise in as good condition as
when Tenant took possession, except for (i) reasonable wear and tear subsequent
to the last repair, replacement, restoration, alteration or renewal; (ii) loss
by fire or other casualty, and (iii) loss by condemnation. If Tenant shall
abandon, vacate or surrender the Leased Premises, or be dispossessed by process
of law or otherwise, any personal property and fixtures belonging to Tenant and
left in the Leased Premises shall be deemed abandoned and, at Landlord's option,
title shall pass to Landlord under this Lease as by a ▇▇▇▇ of sale. Landlord
may, however, if it so elects, remove all or any part of such personal property
from the Leased Premises and the costs incurred by Landlord in connection with
such removal, including storage costs and the cost of repairing any damage to
the Leased
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Premises, the Building and/or the Project caused by such removal shall be paid
by Tenant within five (5) days after receipt of Landlord's statement. Upon the
expiration or earlier termination of this Lease, Tenant shall surrender to
Landlord all keys to the Leased Premises. The obligations of Tenant under this
Article 16.2 shall survive the expiration or earlier termination of this Lease.
XVII. INDEMNIFICATION AND EXCULPATION
-------------------------------
17.1 Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord harmless for, from and against all claims, damages, losses, costs,
liabilities and expenses, including reasonable attorneys', accountants' and
investigators' fees and court costs (collectively, the "Claims"), however
caused, arising in whole or in part from Tenant's use of all or any part of the
Leased Premises, the Building and/or the Project or the conduct of Tenant's
business or from any activity, work or thing done, permitted or suffered by
Tenant or by any invitee, servant, agent, employee or subtenant of Tenant in the
Leased Premises, the Building and/or the Project, and shall further indemnify,
protect, defend and hold Landlord harmless for, from and against all Claims
arising in whole or in part 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 in whole or in part from any act, neglect, fault or omission by Tenant
or by any invitee, servant, agent, employee or subtenant of Tenant anywhere in
the Leased Premises, the Building and/or the Project. In case any action or
proceeding is brought against Landlord to which this indemnification shall be
applicable, Tenant shall pay all Claims resulting therefrom and shall defend
such action or proceeding, if Landlord shall so request, at Tenant's sole cost
and expense, by counsel reasonably satisfactory to Landlord. The obligations of
Tenant under this Article 17.1 shall survive the expiration or earlier
termination of this Lease.
17.2 Exculpation. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property, injury and death to
persons and all claims of any other nature resulting from Tenant's use of all or
any part of the Leased Premises, the Building and/or the Project, and Tenant
hereby waives all claims in respect thereof against Landlord, unless due to
Landlord's willful negligence. Neither Landlord nor its agents or employees
shall be liable for any damaged property of Tenant entrusted to any employee or
agent of Landlord or for loss of or damage to any property of Tenant by theft or
otherwise. Landlord shall not be liable for any injury or damage to persons or
property resulting from any cause, including, but not limited to, fire,
explosion, falling plaster, steam, gas, electricity, water or rain which may
leak from any part of the Building and/or the Project or from the pipes,
appliances or plumbing works therein, or from the roof of any structure in the
Project, or from any streets or subsurfaces on or adjacent to the Building or
the Project, or from any other place or resulting from dampness or any other
causes whatsoever, unless caused solely by the gross negligence or willful
misconduct of Landlord. Neither Landlord nor its employees or agents shall be
liable for any defects in the Leased Premises, the Building and/or the Project,
nor shall Landlord be liable for the negligence or misconduct, including, but
not limited to, criminal acts, by maintenance or other personnel or contractors
serving the Leased Premises, the Building and/or the Project, unless Landlord is
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grossly negligent or guilty of willful misconduct. All property of Tenant kept
or stored on the Project shall be so kept or stored at the risk of Tenant only,
and Tenant shall indemnify, defend and hold Landlord harmless for, from and
against any Claims arising out of damage to the same, including subrogation
claims by Tenant's insurance carriers, unless such damage shall be caused by the
willful act or gross neglect of Landlord and through no fault of Tenant. None of
the events or conditions set forth in this Article XVII shall be deemed a
constructive or actual eviction or result in a termination of this Lease, nor
shall Tenant be entitled to any abatement or reduction of Annual Basic Rent or
Additional Rent by reason thereof. Tenant shall give prompt notice to Landlord
with respect to any defects, fires or accidents which Tenant observes in the
Leased Premises, the Building and/or the Project.
XVIII. ENTRY BY LANDLORD
-----------------
Landlord reserves and shall at any and all times have the right to enter
the Leased Premises, to inspect the same, to supply janitorial service and other
services to be provided by Landlord to Tenant hereunder, to submit the Leased
Premises to prospective purchasers or tenants, to post notices of
non-responsibility, and to alter, improve or repair the Leased Premises and any
portion of the Building of which the Leased Premises are a part, without
abatement of Annual Basic Rent or Additional 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 access into the
Leased Premises shall not be blocked thereby, and further providing that the
business of Tenant shall not be interfered with unreasonably. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the Leased
Premises or any loss occasioned thereby. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all the
doors in, upon or about the Leased Premises, excluding Tenant's vaults and safes
and where Landlord reasonably believes an emergency exists, Landlord shall have
the right to use any and all means which Landlord may deem proper to open such
doors in order to obtain entry to the Leased Premises, and any entry to the
Leased Premises obtained by Landlord by any such means or otherwise shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a retainer of, the Leased Premises or an eviction of Tenant from
all or any portion of the Leased Premises. Nothing in this Article XVIII shall
be construed as obligating Landlord to perform any repairs, alterations or
maintenance except as otherwise expressly required elsewhere in this Lease.
XIX. SUBSTITUTE PREMISES
-------------------
19.1 Relocation of Leased Premises. Landlord may, before or after the
Commencement Date, elect by notice to Tenant, to substitute for the Leased
Premises other office space in the Project (the "Substitute Premises")
designated by Landlord, provided that the Substitute Premises shall contain at
least the same usable area as the Leased Premises and have a configuration
substantially similar to the Leased Premises. Landlord's notice shall be
accompanied by a plan of the Substitute Premises. Tenant shall vacate and
surrender the Leased Premises and shall occupy the Substitute Premises promptly
(and, in any event, not later than fifteen (15) days) after Landlord has
substantially completed the work to be performed by Landlord in the Substitute
Premises pursuant to Article 19.2. Tenant shall pay the same Annual Basic Rent
and Additional Rent with respect to the Substitute Premises as was payable with
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respect to Leased Premises. This Lease shall remain in full force and effect and
the Substitute Premises shall thereafter be deemed to be the Leased Premises.
19.2 Compensation to Tenant. In the event Landlord shall elect to relocate
Tenant to Substitute Premises, Tenant shall not be entitled to any compensation
for any inconvenience or interference with Tenant's business, nor any abatement
or reduction of Annual Basic Rent or Additional Rent, but Landlord shall, at
Landlord's expense perform the following:
(a) Furnish and install in the Substitute Premises fixtures,
equipment, improvements, appurtenances and leasehold improvements
at least equal in kind and quality to those contained or to be
contained in the Leased Premises at the time such notices of
substitution is given by Landlord;
(b) Provide personnel to perform, under Tenant's direction, the moving
of Tenant's personal property and trade fixtures from the Leased
Premises to the Substitute Premises;
(c) Promptly reimburse Tenant for Tenant's actual and reasonable
out-of-pocket costs incurred in connection with the relocation of
any telephone or other communications equipment from the Leased
Premises to the Substitute Premises; and
(d) Promptly reimburse Tenant for any other actual and reasonable
out-of-pocket costs incurred by Tenant in connection with Tenant's
move from Leased Premises to the Substitute Premises, provided
such costs are approved by Landlord in advance which approval
shall not be unreasonably withheld.
Tenant shall cooperate with Landlord so as to facilitate the performance by
Landlord of its obligations under this Article 19.2 and the prompt surrender
by Tenant of the Leased Premises. Without limiting the generality of the
preceding sentence, Tenant shall provide Landlord promptly any approvals or
instructions and any plans or specifications or any other information
reasonably requested by Landlord, and Tenant shall perform promptly in the
Substitute Premises any work to be performed therein by Tenant to prepare the
same for Tenant's occupancy.
XX. ASSIGNMENT AND SUBLETTING
-------------------------
20.1 Assignment and Subletting Prohibited. Tenant shall not transfer or
assign this Lease or any right or interest hereunder, or sublet the Leased
Premises or any part thereof, without first obtaining Landlord's prior written
consent, which consent Landlord may withhold in its sole and absolute
discretion. No transfer or assignment (whether voluntary or involuntary, by
operation of law or otherwise) or subletting shall be valid or effective without
such prior written consent. Should Tenant attempt to make or allow to be made
any such transfer, assignment or subletting, except as aforesaid, or should any
of Tenant's rights under this Lease be sold or otherwise transferred by or under
court order or legal process or otherwise, then, and in any of the foregoing
events Landlord may, at its option, treat such act as an Event of Default by
Tenant. Should Landlord consent to a transfer, assignment or subletting, such
consent shall not constitute a waiver of any of the restrictions or prohibitions
of this Article XX, and such
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restrictions or prohibitions shall apply to each successive transfer, assignment
or subletting hereunder, if any.
20.2 Deemed Transfers. For the purposes of this Article XX, an assignment
shall be deemed to include the following: (a) if Tenant is a partnership, a
withdrawal or change (voluntary, involuntary, by operation of law or otherwise)
of any of the partners thereof, a purported assignment, transfer, mortgage or
encumbrance (voluntary, involuntary, by operation of law or otherwise) by any
partner thereof of such partner's interest in Tenant, or the dissolution of the
partnership; (b) if Tenant consists of more than one person, a purported
assignment, transfer, mortgage or encumbrance (voluntary, involuntary, by
operation of law or otherwise) from one person unto the other or others; (c) if
Tenant (or a constituent partner of Tenant) is a corporation or a limited
liability company, any dissolution, merger, consolidation or reorganization of
Tenant (or such constituent partner), or any change in the ownership (voluntary,
involuntary, by operation of law, creation of new stock or ownership interest or
otherwise) of twenty percent (20%) or more of its capital stock (or in the case
of a limited liability company, its membership interests) from the ownership
existing on the date set forth in Article 1.1 above; (d) if Tenant is an
unincorporated association, a purported assignment, transfer, mortgage or
encumbrance (voluntary, involuntary, by operation of law or otherwise) of any
interest in such unincorporated association; or (e) the sale of twenty percent
(20%) or more in value of the assets of Tenant.
20.3 Landlord's Consent Required. If Tenant desires at any time to assign
this Lease or sublet the Leased Premises or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing to Landlord:
(a) the name of the proposed subtenant or assignee; (b) the nature of the
proposed subtenant's or assignee's business to be carried on in the Leased
Premises; (c) the terms and the provisions of the proposed sublease or
assignment; and (d) such financial information as Landlord may reasonably
request concerning the proposed subtenant or assignee; (e) resume of subtenant.
Tenant's failure to comply with the provisions of this Article 20.3 shall
entitle Landlord to withhold its consent to the proposed assignment or
subletting.
20.4 Recapture. If Tenant proposes to assign its interest in this Lease or
sublet all or any part of the Leased Premises, Landlord may, at its option, upon
written notice to Tenant within thirty (30) days after Landlord's receipt of the
information specified in Article 20.3 above, elect to recapture all or any
portion of the Leased Premises, and within sixty (60) days after notice of such
election has been given to Tenant, this Lease shall terminate as to the portion
of the Leased Premises recaptured. If all or a portion of the Leased Premises is
recaptured by Landlord pursuant to this Article 20.4, Tenant shall promptly
execute and deliver to Landlord a termination agreement setting forth the
termination date with respect to the Leased Premises or the recaptured portion
thereof, and prorating the Annual Basic Rent, Additional Rent and other charges
payable hereunder to such date. If Landlord does not elect to recapture as set
forth above, Tenant may thereafter enter into a valid assignment or sublease
with respect to the Leased Premises, provided that Landlord consents thereto
pursuant to this Article XX, and provided further, that (a) such assignment or
sublease is executed within ninety (90) days after Landlord has given its
consent, (b) Tenant pays all amounts then owed to Landlord under this Lease, (c)
there is not in existence an Event of Default as of the effective date of the
assignment or sublease, (d) there have been no material changes with respect to
the financial condition of the
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proposed subtenant or assignee or the business such party intends to conduct in
the Leased Premises, and (e) a fully executed original of such assignment or
sublease providing for an express assumption by the assignee or subtenant of all
of the terms, covenants and conditions of this Lease is promptly delivered to
Landlord.
20.5 Adjustment to Rental. In the event Tenant assigns its interest in this
Lease or sublets the Leased Premises, the Annual Basic Rent set forth in Article
1.13 above, as adjusted, shall be increased (but not decreased) effective as of
the date of such assignment or subletting to the rent and other consideration
payable by any such assignee or sublessee pursuant to such assignment or
sublease. Notwithstanding the foregoing, in no event shall the Annual Basic Rent
after any such assignment or subletting be less than the Annual Basic Rent
specified in Article 1.13 above, as adjusted.
20.6 No Release from Liability. Landlord may collect Annual Basic Rent and
Additional Rent from the assignee, subtenant, occupant or other transferee, and
apply the amount so collected, first to the monthly installments of Annual Basic
Rent, then to any Additional Rent and other sums due and payable to Landlord,
and the balance, if any, to Landlord, but no such assignment, subletting,
occupancy, transfer or collection shall be deemed a waiver of Landlord's rights
under this Article XX, or the acceptance of the proposed assignee, subtenant,
occupant or transferee. Notwithstanding any assignment, sublease or other
transfer (with or without the consent of Landlord), Tenant shall remain
primarily liable under this Lease and shall not be released from performance of
any of the terms, covenants and conditions of this Lease.
20.7 Landlord's Expenses. If Landlord consents to an assignment, sublease
or other transfer by Tenant of all or any portion of Tenant's interest under
this Lease, Tenant shall pay or cause to be paid to Landlord, a transfer fee of
not less than Two Hundred and Fifty and No/100 Dollars ($250.00) to reimburse
Landlord for administrative expenses and for legal, accounting and other
out-of-pocket expenses incurred by Landlord.
XXI. USE OF LEASED PREMISES
----------------------
The Leased Premises are leased to Tenant solely for the Permitted Use set
forth in Article 1.12 above and for no other purpose whatsoever. Tenant shall
not do or permit anything to be done in or about the Leased Premises nor bring
or keep anything therein which will in any way increase the existing rate of or
affect any casualty or other insurance on the Building, the Project or any of
their respective contents, or cause a cancellation of any insurance policy
covering the Building, the Project or any part thereof or any of their
respective contents. Tenant shall not do or permit anything to be done in or
about the Leased Premises, the Building or the Project which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building, or the Project or injure or annoy them. Tenant shall not use or allow
the Leased 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 Leased Premises, the Building or the Project. Tenant shall
not commit or suffer to be committed any waste in or upon the Leased Premises,
the Building or the Project. Tenant shall not use the Leased Premises, the
Building or the Project or permit anything to be done in or about the Leased
Premises, the Building or the Project which will in any way conflict with any
matters of record, or any law, statute, ordinance, zoning or governmental rule
or regulation now in force or which may hereafter be enacted or promulgated,
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and shall, at its sole cost and expense, promptly comply with all matters of
record and all laws, statutes, ordinances and governmental rules, regulations
and requirements now in force or which may hereafter be in force and with the
requirements of any Board of Fire Underwriters or other similar body now or
hereafter constituted, foreseen or unforeseen, ordinary as well as
extraordinary, relating to or affecting the condition, use or occupancy of the
Building or the Project, excluding structural changes not relating to or
affected by Tenant's improvement or acts. The judgment of any court of competent
jurisdiction or the admission by Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any matters of
record, or any law, statute, ordinance or governmental rule, regulation or
requirement, shall be conclusive of that fact between Landlord and Tenant. In
addition, Tenant shall not place a load upon any floor of the Leased Premises
which exceeds the load per square foot which the floor was designed to carry,
nor shall Tenant install business machines or other mechanical equipment in the
Leased Premises which cause noise or vibration that may be transmitted to the
structure of the Building. Tenant shall indemnify, protect, defend and hold
Landlord and against all claims, damages, losses, costs, liabilities and
expenses, whatsoever arising in whole or in part from Tenant's breach of this
paragraph.
XXII. SUBORDINATION AND ATTORNMENT
----------------------------
22.1 Subordination. This Lease and all rights of Tenant hereunder shall be,
at the option of Landlord, subordinate to (a) all matters of record, (b) all
ground leases, overriding leases and underlying leases (collectively referred to
as the "leases") of the Building or the Project now or hereafter existing, (c)
all first mortgages and first deeds of trust (individually referred to as a
"mortgage" and collectively referred to as the "mortgages") which may now or
hereafter encumber or affect the Building or the Project, and (d) all renewals,
modifications, amendments, replacements and extensions of leases and mortgages
and to spreaders and consolidations of the mortgages, whether or not leases or
mortgages shall also cover other lands, buildings or leases. The provisions of
this Article 22.1 shall be self-operative and no further instruments of
subordination shall be required; however in conformation of such subordination,
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, the lessor under any lease or the holder of any mortgage or any of
their respective assigns or successors in interest may reasonably request to
evidence such subordination. Any lease to which this Lease is subject and
subordinate is called a "Superior Lease" and the lessor under a Superior Lease
or its assigns or successors in interest is called a "Superior Lessor." Any
mortgage to which this Lease is subject and subordinate is called a "Superior
Mortgage" and the holder of a Superior Mortgage is called a "Superior
Mortgagee." If Landlord, a Superior Lessor or a Superior Mortgagee requires that
such instruments be executed by Tenant, Tenant's failure to do so within ten
(10) days after request therefor shall be deemed an Event of Default under this
Lease. Tenant waives any right to terminate this Lease because of any
foreclosure proceedings.
22.2 Attornment. If any Superior Lessor or Superior Mortgagee (or any
purchaser at a foreclosure sale) succeeds to the rights of Landlord under this
Lease, whether through possession or foreclosure action, or the delivery of a
new lease or deed (a "Successor Landlord"), Tenant shall attorn to and recognize
such Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence such attornment.
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22.3 Termination of Superior Lease. In the event of the termination of the
Superior Lease, the Superior Lessor may notify, within six (6) months after the
termination of the Superior Lease, Tenant of the Superior Lessor's election to
either ratify and adopt this Lease or terminate this Lease within two (2) months
following such notice. The foregoing shall not apply if this Lease is for a term
of five (5) years or less and the Leased Premises are 10,000 square feet or
less.
XXIII. ESTOPPEL CERTIFICATE
--------------------
23.1 Estoppel Certificate. Tenant shall, from time to time, within ten (10)
days after written request by Landlord, execute, acknowledge and deliver to
Landlord or Landlord's designee a statement in writing certifying: (a) that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect); (b) the dates to which Annual Basic Rent, Additional
Rent and other charges are paid in advance, if any; (c) 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; and (d) that Tenant has paid
Landlord the Security Deposit. In addition, such statement shall provide such
other information and facts Landlord may reasonably require, including, but not
limited to, the Commencement Date and termination date of the Lease Term. Any
such statement may be relied upon by any prospective or existing purchaser,
ground lessee or mortgagee of all or any portion of the Project, as well as by
any other assignee of Landlord's interest in this Lease. Tenant's failure to
deliver such statement within such time shall be conclusive upon Tenant (i) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord; (ii) that there are no uncured defaults in Landlord's
performance hereunder; (iii) that Tenant has paid to Landlord the Security
Deposit; (iv) that no more than one month's installment of Annual Basic Rent or
Additional Rent has been paid in advance; and (v) that the other information and
facts set forth therein are true and correct.
XXIV. SIGNS
-----
Landlord shall retain absolute control over the exterior appearance of the
Project and the exterior appearance of the Leased Premises as viewed from
outside the Leased Premises. Tenant shall not install, or permit to be
installed, any drapes, shutters, signs, lettering, advertising, or any items
that will in any way alter the exterior appearance of the Building or the
exterior appearance of the Leased Premises as viewed from outside the Leased
Premises. Notwithstanding the foregoing, Landlord shall install, at Tenant's
sole cost and expense, letters or numerals at or near the entryway to the Leased
Premises. All such letters or numerals shall be in accordance with the criteria
established by Landlord for the Building. In addition, Tenant's name and suite
number shall be identified on the Building directory. All costs shall be borne
by the Tenant for any subsequent Building directory changes requested by Tenant.
XXV. LIENS
-----
Tenant shall keep the Leased Premises free and clear of all mechanic's and
material workmen's liens. If, because of any act or omission (or alleged act or
omission) of Tenant, any mechanics', material workmen's or other lien, charge or
order for the payment of money shall be filed or recorded against the Leased
Premises, the Project or the Building, or against any other
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property of Landlord (whether or not such lien, charge or order is valid or
enforceable as such), Tenant shall, at its own expense, cause the same to be
cancelled or discharged of record within thirty (30) days after Tenant shall
have received written notice of the filing thereof, or Tenant may, within such
thirty (30) day period, furnish to Landlord, a bond pursuant to A.R.S. Section
33-104 (or any successor statute) and satisfactory to Landlord and all Superior
Lessors and Superior Mortgagees against the lien, charge or order, in which case
Tenant shall have the right to contest, in good faith, the validity or amount
thereof.
XXVI. HOLDING OVER
------------
The date of termination of this Lease and the right of Landlord to recover
immediate possession of the Leased Premises thereupon is an important and
material matter affecting the parties and the rights of third parties, all of
which have been specifically considered by Landlord and Tenant. Tenant shall not
hold over. In the event of any continued occupancy or holding over of the Leased
Premises without the express written consent of Landlord beyond the expiration
of earlier termination of this Lease or beyond the expiration or earlier
termination of Tenant's right to occupy the Leased Premises, whether in whole or
in part, or by leaving property on the Leased Premises or otherwise, this Lease
shall be deemed a monthly tenancy and Tenant shall pay two (2) times the Annual
Basic Rent then in effect, in advance at the beginning of the hold-over
month(s), plus any Additional Rent or other charges or payments contemplated in
this Lease, and any other costs, expenses, damages, liabilities and attorneys'
fees incurred by Landlord on account of Tenant's holding over.
XXVII. ATTORNEYS' FEES
---------------
Tenant shall pay to Landlord all amounts for costs (including reasonable
attorneys' fees) incurred by Landlord in connection with any breach or default
by Tenant under this Lease or incurred in order to enforce or interpret the
terms or provisions of this Lease. Such amounts shall be payable within five (5)
days after receipt by Tenant of Landlord's statement. In addition, if any action
shall be instituted by either of the parties hereto for the enforcement or
interpretation of any of their respective rights or remedies in or under this
Lease, the prevailing party shall be entitled to recover from the losing party
all costs incurred by the prevailing party in such action and any appeal
therefrom, including reasonable attorneys' fees to be fixed by the court.
Further, should Landlord be made a party to any litigation between Tenant and
any third party, then Tenant shall pay all costs and attorneys' fees incurred by
or imposed upon Landlord in connection with such litigation.
XXVIII. RESERVED RIGHTS OF LANDLORD
---------------------------
Landlord reserves the following rights, exercisable without liability to
Tenant for damage or injury to property, persons or business and without
effecting an eviction, constructive or actual, or disturbance of Tenant's use or
possession or giving rise to any claim:
(a) To name the Building and the Project and to change the name or
street address of the Building or the Project;
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(b) To install and maintain all signs on the exterior and interior of
the Building and the Project;
(c) To designate or approve all sources furnishing sign painting and
lettering;
(d) During the last ninety (90) days of the Lease Term, if Tenant has
vacated the Leased Premises, to decorate, remodel, repair, alter
or otherwise prepare the Leased Premises for reoccupancy, without
affecting Tenant's obligation to pay Annual Basic Rent and
Additional Rent;
(e) To have pass keys to the Leased Premises and all doors therein,
excluding Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Leased
Premises to any prospective purchaser, mortgagee, or assignee of
any mortgage on the Building or the Project and to others having
interest therein at any time during the Lease Term, and to
prospective Tenants during the last six (6) months of the Lease
Term;
(g) To take any and all measures, including entering the Leased
Premises for the purposes of making inspections, repairs,
alterations, additions and improvements to the Leased Premises or
to the Building (including, for the purposes of checking,
calibrating, adjusting and balancing controls and other parts of
the Building systems) as may be necessary or desirable for the
operation, improvement, safety, protection or preservation of the
Leased Premises or the Building, or in order to comply with all
laws, orders and requirements of governmental or other
authorities, or as may otherwise be permitted or required by this
Lease; provided, however, that Landlord shall endeavor (except in
an emergency) to minimize interference with Tenant's business in
the Leased Premises;
(h) To relocate various facilities within the Building or the Project
if Landlord shall determine such relocation to be in the best
interest of the development of the Building or the Project,
provided, that such relocation shall not materially restrict
access to the Leased Premises;
(i) To change the nature, extent, arrangement, use and location of the
Building Common Areas and any common areas of the Project;
(j) To commence or discontinue operation of any health club, fitness
center or restaurant located in the Project;
(k) To make alterations or additions to and to build additional
stories on the Building and to build additional buildings or
improvements in the Project; and
(l) To install vending machines of all kinds in the Leased Premises
and the Building, and to receive all of the revenue derived
therefrom, provided,
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however, that no vending machines shall be installed by Landlord
in the Leased Premises unless Tenant so requests.
Landlord further reserves the exclusive right to the roof of the Building. No
easement for light, air, or view is included in the leasing of the Leased
Premises to Tenant. Accordingly, any diminution or shutting off of light, air or
view by any structure which may be erected in the Project or on other properties
in the vicinity of the Building shall in no way affect this Lease or impose any
liability upon Landlord.
XXIX. EMINENT DOMAIN
--------------
29.1 Taking. If the whole of the Building is lawfully and permanently taken
by the condemnation or a deed in lieu thereof or any other manner for any public
or quasi-public purpose, this Lease shall terminate as of the date of vesting of
title in such condemning authority and the Annual Basic Rent and Additional Rent
shall be prorated to such date. If any part of the Building or Project is so
taken, or if the whole of the Building is taken, but not permanently, then this
Lease shall be unaffected thereby, except that (a) Landlord may terminate this
Lease by notice to Tenant within ninety (90) days after the date of vesting of
title in the condemning authority, and (b) if twenty percent (20%) or more of
the Leased Premises shall be permanently taken and the remaining portion of the
Leased Premises shall not be reasonably sufficient for Tenant to continue
operation of its business, Tenant may terminate this Lease by notice to Landlord
within ninety (90) days after the date of vesting of title in such condemning
authority. This Lease shall terminate on the thirtieth (30th) day after receipt
by Landlord of such notice, by which date Tenant shall vacate and surrender the
Leased Premises to the Landlord. The Annual Basic Rent and Additional Rent shall
be prorated to the earlier of the termination of this Lease or such date as
Tenant is required to vacate the Leased Premises by reason of the taking. If
this Lease is not terminated as a result of a partial taking of the Leased
Premises, the Annual Basic Rent and Additional Rent shall be equitably adjusted
according to the rentable area of the Leased Premises and Building remaining.
29.2 Award. In the event of a taking of all or any part of the Building or
the Project, all of the proceeds or the award, judgment, settlement or damages
payable by the condemning authority shall be and remain the sole and exclusive
property of Landlord, and Tenant hereby assigns all of its right, title and
interest in and to any such award, judgment, settlement or damages to Landlord.
Tenant shall, however, have the right, to the extent that the same shall not
reduce or prejudice amounts available to Landlord, to claim from the condemning
authority, but not from Landlord, such compensation as may be recoverable by
Tenant in its own right for relocation benefits, moving expenses, and damages to
Tenant's personal property and trade fixtures.
XXX. NOTICES
-------
Any notice or communication given under the terms of this Lease shall be
in writing and shall be delivered in person, sent by any public or private
express delivery service or deposited with the United States Postal Service or a
successor agency, certified or registered mail, return receipt requested,
postage pre-paid, addressed as set forth in the Basic Provisions, or at such
other address as any party, the Superior Lessor, or the Superior Mortgagee may
from time to
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time designate by notice hereunder. Notice shall be effective and deemed given
when personally delivered or three days after deposited in the U.S. Mail,
postage prepaid. The inability to deliver a notice because of a changed address
of which no notice was given or a rejection or other refusal to accept any
notice shall be deemed to be the receipt of the notice as of the date of such
inability to deliver or rejection or refusal to accept. Any notice to be given
by Landlord may be given the legal counsel or the authorized agent of the
Landlord.
XXXI. RULES AND REGULATIONS
---------------------
Tenant shall abide by all rules and regulations of the Project imposed by
Landlord, as attached hereto as Exhibit "D" or as may hereafter be issued by
Landlord. Such rules and regulations are imposed to enhance the cleanliness,
appearances, maintenance, order and use of the Leased Premises, the Building and
the Project, and the proper enjoyment of the Building and the Project by all
tenants and their clients, customers and employees. The rules and regulations of
the Project may be changed from time to time upon ten (10) days notice to
Tenant. Breach of the rules and regulations by Tenant shall constitute an Event
of Default if such breach is not fully cured within ten (10) days after written
notice to Tenant by Landlord. Landlord shall not be responsible to Tenant for
nonperformance by any other tenant, occupant or invitee of the Building or the
Project of any rules or regulations.
XXXII. ACCORD AND SATISFACTION
-----------------------
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of Annual Base Rent and Additional Rent (jointly called
"Rent" in this Article XXXII), shall be deemed to be other than on account of
the earliest stipulated Rent due and not yet paid, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as Rent
be deemed an accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy in these Lease. No receipt of money by Landlord from
Tenant after the termination of this Lease, after the service of any notice
relating to the termination of this Lease, after the commencement of any suit,
or after final judgment for possession of the Leased Premises, shall reinstate,
continue or extend the Lease Term or affect any such notice, demand, suit or
judgment.
XXXIII. HAZARDOUS MATERIALS REGULATION
------------------------------
33.1 Hazardous Materials Regulations. Tenant shall strictly comply with all
statutes, laws, codes, ordinances, rules, regulations and precautions now or
hereafter mandated or advised by any federal, state, local or other governmental
agency with respect to the use, generation, storage, or disposal of hazardous,
toxic, or radioactive materials (collectively referred to as "Hazardous
Materials"). Landlord shall have the right, but not the obligation, at all
reasonable times to inspect the Premises and to conduct tests and investigations
to determine whether Tenant is in compliance with the foregoing provisions. The
full cost of all such inspections, tests and investigations shall be borne by
Tenant. As used herein, Hazardous Materials shall include, but not be limited
to, those substances defined as "hazardous substances or pollutant or
contaminants," "hazardous wastes," "toxic substances," regulated substances," or
other similar designations in the Comprehensive Environmental Response,
Compensation and Liability Act of
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1980, as amended, 42 U.S.C. Section 9601, et seq.; the Resources Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq.; the Toxic Substances Control
Act, 15 U.S.C. Section 2601, et seq.; Paragraph 9001 of the solid Waste Disposal
Act, as amended by Paragraph 601 of the Hazardous and solid Waste Amendments of
1984; and any other federal, state or local governmental statues, laws,
ordinances, and codes, including any and all rules, and regulations and
precautions promulgated thereunder. Tenant shall not cause, or allow anyone else
under the control of Tenant to cause, any Hazardous Material to be used,
generated, stored, discharged, released or disposed of on or about the Premises,
Building or Project, including all common areas, without the prior written
consent of Landlord, which consent may be withheld or revoked at any time, in
the sole discretion of Landlord, Tenant's indemnification of Landlord pursuant
to Article 5.08, above, shall extend to all liability, including all foreseeable
and unforeseeable consequential damages and all fines, penalties, assessments or
charges that may be assessed for the disposal, discharge or release of Hazardous
Materials at, on or in the Premises, directly or indirectly arising out of the
use, generation, storage, transportation, or disposal of Hazardous Materials by
Tenant or anyone under Tenant's control. Neither the written consent by Landlord
to the use, generation, storage, or disposal of Hazardous Materials nor the
strict compliance by Tenant with all statutes, laws, ordinances, rules, codes,
regulations, and precautions pertaining to Hazardous Materials shall excuse
Tenant from Tenant's obligation to indemnification pursuant to this subsection.
Tenant's obligation pursuant to the foregoing indemnity shall survive the
termination of this Lease.
XXXIV. MISCELLANEOUS
34.1 Entire Agreement Amendments. This Lease and any Exhibits and Riders
attached hereto set forth all of the covenants, promises, agreements, conditions
and understandings between Landlord and Tenant concerning the Leased Premises
and there are no covenants, promises, agreements, representations, warranties,
conditions or understandings either oral or written between them other than as
contained in this Lease. Except as otherwise provided in this Lease, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding unless it is in writing and signed by both Landlord and Tenant.
34.2 Time of the Essence. Time is of the essence of each and every term,
covenant and condition of this Lease.
34.3 Binding Effect. The covenants and conditions of this Lease shall,
subject to the restrictions on assignment and subletting, apply to and bind the
heirs, executors, administrators, personal representatives, successors and
assigns of the parties hereto.
34.4 Recordation. Neither this Lease nor any memorandum hereof shall be
recorded by Tenant. At the sole option of Landlord, Tenant and Landlord shall
execute, and Landlord may record, a short form memorandum of this Lease in form
and substance satisfactory to Landlord.
34.5 Governing Law. This Lease and all the terms and conditions thereof
shall be governed by and construed in accordance with the laws of the State of
Arizona. Landlord and
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Tenant agree that any action or proceeding arising out of this lease shall be
heard by a court of competent jurisdiction sitting without a jury, and each
hereby waives all rights to trial by jury.
34.6 Defined Terms and Paragraphs Headings. The words "Landlord" and
"Tenant" as used in this Lease shall include the plural as well as the singular.
Words used in masculine gender include the feminine and neuter. If there is more
than one Tenant, the obligations in this Lease imposed upon Tenant shall be
joint and several. The paragraph headings and titles to the paragraphs of this
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
34.7 Authority. If Tenant executes this Lease as a partnership, each
individual executing this Lease on behalf of the partnership represents and
warrants that he or she is a general partner of the partnership and that this
Lease is binding upon the partnership in accordance with its terms. If Tenant
executes this Lease as a corporation or a limited liability company, each of the
persons executing this Lease on behalf of Tenant covenants and warrants that
Tenant is a duly authorized and existing corporation or limited liability
company, that Tenant has and is qualified to transact business in Arizona, that
the corporation or limited liability company has full right, authority and power
to enter into this Lease and to perform its obligations hereunder, that each
person signing this Lease on behalf of the corporation or limited liability
company is authorized to do so and that this Lease is binding upon the
corporation or limited liability company in accordance with its terms.
34.8 No Waiver. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission.
34.9 Severability. If any clause or provision of this Lease is or becomes
illegal or unenforceable because of any present or future law or regulation of
any governmental body or entity effective during the Lease Term, the intention
of the parties is that the remaining provisions of this Lease shall not be
affected thereby.
34.10 Exhibits. If any provision contained in an Exhibit, Rider or Addenda
to this Lease is inconsistent with any other provision of this Lease, the
provision contained in this Lease shall supersede the provisions contained in
such Exhibit, Rider or Addenda, unless otherwise provided.
34.11 Fair Meaning. The language of this Lease shall be construed to its
normal and usual meaning and not strictly for or against either Landlord or
Tenant. Each party has reviewed and revised this Lease and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply to the interpretation of this Lease, or any
Exhibits, Riders or amendments hereto.
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34.12 No Merger. The voluntary or other surrender of this Lease by Tenant
or a mutual cancellation of this Lease shall not work as a merger and shall, at
Landlord's option, either terminate any or all existing subleases or
subtenancies, or operate as an assignment to Landlord of any or all of such
subleases or subtenancies.
34.13 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, act of God, inability to obtain labor or materials for
reasonable substitutes therefor, governmental restrictions, regulations or
controls, judicial orders, enemy or hostile governmental actions, civil
commotions, fire or other casualty and other causes beyond the reasonable
control of Landlord shall excuse the Landlord's performance hereunder for the
period of any such prevention, delay, or stoppage.
34.14 Government Energy or Utility Controls. In the event of the
imposition of federal, state or local governmental controls, rules, regulations
or restrictions on the use or consumption of energy or other utilities during
the Lease Term, both Landlord and Tenant shall be bound thereby. In the event of
a difference in interpretation of any governmental control, rule, regulation or
restriction between Landlord and Tenant, the interpretation of Landlord shall
prevail, and Landlord shall have the right to enforce compliance, including the
right of entry into the Leased Premises to effect compliance.
34.15 Shoring. If any excavation or construction is made adjacent to, upon
or within the Building, or any part thereof, Tenant shall afford to any and all
persons causing or authorized to cause such excavation or construction license
to enter onto the Leased Premises for the purposes of doing such work as such
persons shall deem necessary to preserve the Building or any portion thereof
from injury or damage and to support the same by proper foundations, braces and
supports without any claim for damages, indemnity or abatement of Annual Basic
Rent or Additional Rent or for a constructive or actual eviction of Tenant.
34.16 Transfer of Landlord's Interest. The term "Landlord" as used in this
Lease, insofar as the covenants or agreements on the part of the Landlord are
concerned, shall be limited to mean and include only the owner or owners of
Landlord's interest in this Lease at the time in question. Upon any transfer or
transfers of such interest, the Landlord herein named (and in the case of any
subsequent transfer, the then transferor) shall thereafter be relieved of all
liability for the performance of any covenants or agreements on the part of the
Landlord contained in this Lease.
34.17 Limitation on Landlord's Liability. If Landlord becomes obligated to
pay Tenant any judgment arising out of any failure by the Landlord to perform or
observe any of the terms, covenants, conditions or provisions to be performed or
observed by Landlord under this Lease, Tenant shall be limited in the
satisfaction of such judgment solely to Landlord's interest in the Building and
the Project or any proceeds arising from the sale thereof and no other property
or assets of Landlord or the individual partners, directors, officers or
shareholders of Landlord or its constituent partners shall be subject to levy,
execution or other enforcement procedure whatsoever for the satisfaction of any
such money judgment.
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34.18 Financial Statements. Tenant acknowledges that, prior to its
execution of this Lease, it has delivered to Landlord current financial
statements of Tenant, and hereby represents and warrants that such financial
statements are true and correct in all material respects. In addition, within
ten (10) days after Landlord's written request, at any time and from time to
time, Tenant shall deliver to Landlord updated, audited financial statements of
Tenant.
34.19 Modification for Lender. If, in connection with obtaining
construction, interim or permanent financing for the Project or any portion
thereof, the lender shall request modifications in the Lease as a condition to
such financing, Tenant will not unreasonably withhold, delay or defer or defer
its consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created of Tenant's rights hereunder.
34.20 Brokerage Fees. Tenant warrants and represents that is has not dealt
with any realtor, broker or agent in connection with this Lease except the
Broker identified in Article 1.20. Tenant shall indemnify, defend and hold
Landlord harmless for, from and against any cost, expense or liability
(including the cost of suit and reasonable attorneys' fees) for any
compensation, commission or charges claimed by any other realtor, broker or
agent in connection with this Lease or by reason of any act of Tenant.
34.21 Americans with Disability Act. Tenant hereby acknowledges that the
Leased Premises, is subject to the Americans with Disabilities Act of 1990 and
related rules and regulations (the "ADA") and that the ADA may require
substantial modifications to the use and/or physical structure of the Leased
Premises. Tenant further acknowledges that it will be solely responsible for
determining the specific application of the ADA to the Leased Premises. If
Landlord provides space plans for all or any part of the Leased Premises,
Landlord makes no representations or warranties, express or implied, that such
plans are in compliance with the ADA. Tenant shall be responsible for retaining
qualified experts and legal counsel of their choice to detect and correct any
aspect of the structure or use of the Leased Premises, including without
limitation any modifications of the structure or use reflected in any space plan
and to determine the liability for ADA compliance under any transaction
documents relating to the Leased Premises.
[reserved]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date and year first above written.
LANDLORD:
INDELA CAMELSQUARE LIMITED LIABILITY
COMPANY, an Arizona limited liability
company
by ▇▇▇ ▇▇▇▇▇▇▇ - Member
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇ INC. , a(n)
------------------------------------------
Arizona Corporation
------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. Northern
---------------------------------------
Its: President
---------------------------------------
By:
---------------------------------------
Its:
--------------------------------------
32
35
Exhibit "A"
Leased Premises
EXHIBIT "A"
LEASED PREMISES
Page 1 of 1
36
EXHIBIT "B"
MEMORANDUM OF COMMENCEMENT DATE
THIS MEMORANDUM OF COMMENCEMENT DATE is entered into this 28th day of
November, 1995 by INDELA CAMELSQUARE LIMITED LIABILITY COMPANY, an Arizona
limited liability company ("Landlord"), and ▇▇▇▇▇▇▇▇.▇▇▇ INC., a(n) Arizona
Corporation ("Tenant").
RECITALS
A. Landlord and Tenant have previously executed that certain Office Leased
dated November 28, 1995 ("Lease"), pursuant to which Tenant has leased from
Landlord certain premises more particularly described therein.
B. Pursuant to the provisions of Article 3.3 of the Lease, Landlord and
Tenant have agreed to execute this Memorandum of Commencement Date to specify
the Commencement Date of the Lease Term.
NOW, THEREFORE, in consideration of the foregoing recitals, the execution
and delivery of the Lease and other good and valuable consideration, the
receipt, sufficiency and validity of which of which is hereby acknowledged,
Landlord and Tenant agree as follows:
1. Commencement Date. The Commencement Date is December 1, 1995. All
reference in the Lease to Commencement Date shall be deemed to be references to
December 1, 1995.
2. Definitions. Capitalized terms used in this Memorandum of Commencement
Date without definition shall have the meaning assigned to such terms in the
Lease, unless the context requires otherwise.
3. Full Force and Effect. Except as specifically modified by this
Memorandum of Commencement Date, the Lease remains in full force and effect.
Exhibit "B"
Memorandum of Commencement Date
Page 1 of 1
37
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of
Commencement Date as of the date and year first above written.
LANDLORD:
INDELA CAMELSQUARE LIMITED LIABILITY
COMPANY, an Arizona limited liability
company
by ▇▇▇ ▇▇▇▇▇▇▇ - Member
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇ INC. , a(n)
------------------------------------------
Arizona Corporation
------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. Northern
---------------------------------------
Its: President
---------------------------------------
By:
---------------------------------------
Its:
--------------------------------------
Exhibit "B"
Memorandum of Commencement Date
Page 2 of 2
38
EXHIBIT "D"
BUILDING RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant.
2. No awnings or other projection shall be attached to the outside walls
or windows of the Building. No curtains, blinds, shades, or screens shall be
attached to or hung in, or used in connection with, any window or door of the
premises demised to any tenant or occupant, without the prior written consent of
Landlord. All electrical fixtures hung in the Leased Premises must be of a type,
quality, design, color, size and general appearance approved by Landlord.
3. The windows and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed, nor shall any bottles, parcels, or other articles be placed on
any window ▇▇▇▇▇.
4. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. No tenant
shall bring or keep, or permit to be brought or kept, any inflammable,
combustible, explosive or hazardous fluid, material, chemical or substance in or
about the premises demised to such tenant.
6. No tenant or occupant shall ▇▇▇▇, paint, drill into or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or strings of wires shall be permitted, except with
the prior consent of Landlord, and as Landlord may direct. No tenant or occupant
shall install any resilient tile or similar floor covering in the premises
demised to such tenant or occupant except in a manner approved by Landlord.
7. No bicycles, vehicles or animals of any kind (except seeing eye dogs)
shall be brought into or kept in or about the premises demised to any tenant. No
cooking shall be done or permitted in the Building by any tenant without the
written approval of Landlord. No tenant shall cause or permit any unusual or
objectionable odors to emanate from the premises demised to such tenant.
8. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction.
9. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio
EXHIBIT "D"
Building Rules and Regulations
Page 1 of 1
39
device, unmusical noise, whistling, singing, or in any other way. Nothing shall
be thrown out of any doors.
10. No additional locks or bolts of any kind shall be placed upon any of
the doors, nor shall any changes be made in locks or the mechanism thereof. Each
tenant must, upon termination of its tenancy, restore to Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise procured by,
such Tenant.
11. All removals from the Building, or the carrying in or out of the
Building or from the premises demised to any tenant, of any safes, freight,
furniture or bulky matter of any description must take place at such time and in
such manner as Landlord or its agents may determine, from time to time. Landlord
reserves the right to respect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of the rules and
regulations or the provisions of such tenant's lease.
12. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or as an employment bureau. No tenant or occupant shall
engage or pay any employees in the Building, except those actually working for
such tenant or occupant in the Building, nor advertise for day laborers giving
and address at the Building.
13. No tenant or occupant shall purchase bottled water, lighting
maintenance, cleaning towels or other like service, from any company or person
not approved in writing by Landlord.
14. Landlord shall have the right to prohibit any advertising by any
tenant or occupant which, in Landlord's opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon notice
from Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
15. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all
electrical equipment and lighting fixtures are turned off.
16. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
17. No premises shall be used, or permitted to be used for lodging or
sleeping, or for any immoral or illegal purposes.
18. The requirements of tenants will be attended to only upon application
at the office of Landlord. Building employees shall not be required to perform,
and shall not be requested by any tenant or occupant to perform, and work
outside of their regular duties, unless under specific instructions from the
office of Landlord.
EXHIBIT "D"
Building Rules and Regulations
Page 2 of 2
40
19. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
20. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and such
other safeguards as Landlord may require.
21. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved in writing by Landlord.
22. No premises shall be used, or permitted to be used, at any time,
without the prior written approval of Landlord, as a store for the sale or
display of goods, wares or merchandise of any kind, or as a restaurant, shop,
booth, bootblack or other stand, or for the conduct of any business or
occupation which predominantly involves direct patronage of the general public
in the premises demised to such tenant, or for manufacturing or for other
similar purposes.
23. No tenant shall clean any window of the Building from the outside.
24. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Landlord. If any such matter requires special
handling, only a qualified person shall be employed to perform such special
handling. No tenant shall place or permit to be placed, on any part of the floor
or floors of the premises demised to such tenant, a load exceeding the floor
load per square foot which such floor was designed to carry and which is allowed
by law. Landlord reserves the right to prescribe the weight and position of
safes and other heavy objects, which must be placed so as to distribute the
weight.
25. With respect to work being performed by a tenant in its premises with
the approval of Landlord, the tenant shall refer all contractors, contractors'
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and any other physical portion of the
Building.
26. Landlord shall not be responsible for lost or stolen personal
property, equipment, money, or jewelry from the premises of tenants or public
rooms whether or not such loss occurs when the Building or the premises are
locked against entry.
27. Landlord may permit entrance to the premises of tenants by use of pass
keys controlled by Landlord, employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
EXHIBIT "D"
Building Rules and Regulations
Page 3 of 3
41
28. Each tenant and all of tenant's representatives, shall observe and
comply with the directional and parking signs on the Project, and Landlord shall
not be responsible for any damage to any vehicle towed because of non-compliance
with parking regulations.
29. No tenant shall install any radio, telephone, television, microwave or
satellite antenna, loudspeaker, music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
30. Each tenant shall store all trash and garbage within its premises. No
material shall be placed in the trash boxes or receptacles in the Building
unless such material may be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage and will not result in a violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord shall designate.
31. No tenant shall employ any persons other than the janitor of Landlord
for the purpose of cleaning its premises without the prior written consent of
Landlord.
32. Each tenant shall give prompt notice to landlord of any accidents to
or defects in plumbing, electrical or heating apparatus so that same may be
attended to properly.
33. No tenant shall bring onto the Project or into the Building any
pollutants, contaminants or hazardous substances (as now or later defined under
State or Federal law).
34. Landlord reserves the right to restricted access to and from the
Building between the hours of 6:00 P.M. and 8:00 A.M. on business days and at
all hours on Saturdays, Sundays and holidays.
35. No tenant shall install or permit to be installed any additional lock
on any door into or inside of the premises demised to that tenant. Landlord
shall be entitled at all times to possession of a duplicate of all keys to all
doors into or inside of the premises demised to tenants of the Building. All
keys shall remain the property of Landlord. Upon the expiration of the Lease
Term, each tenant shall surrender all such keys to Landlord and shall deliver to
Landlord the combination to all locks on all safes, cabinets and vaults which
will remain in the premises demised to that tenant. Landlord shall be entitled
to install, operate and maintain security systems in or about the Property which
monitor, by computer, closed circuit television or otherwise, persons entering
or leaving the Property, the Building and/or the premises demised to any tenant.
For the purposes of this rule the term "keys" shall mean traditional metallic
keys, plastic or other key cards and other lock opening devices.
EXHIBIT "D"
Building Rules and Regulations
Page 4 of 4
42
TENANT:
▇▇▇▇▇▇▇▇.▇▇▇ INC. , a(n)
------------------------------------------
Arizona Corporation
------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. Northern
---------------------------------------
Its: President
--------------------------------------
EXHIBIT "D"
Building Rules and Regulations
Page 5 of 5
43
RIDER "D"
Rider to Lease dated November 28, 1995 between INDELA CAMELSQUARE LIMITED
LIABILITY COMPANY, an Arizona limited liability company ("Landlord") and
▇▇▇▇▇▇▇▇.▇▇▇ INC., a(n) ARIZONA CORPORATION , ("Tenant")
1. Parking.
In consideration for the making of this Lease, Landlord and Tenant
do hereby mutually agree that Landlord shall provide Tenant with one (1)
covered, reserved parking space throughout the term of this lease, at no charge.
Landlord reserves the right to designate the location of said
parking space.
2. Definitions. Capitalized terms used in this Rider without definition
shall have the definition assigned to such terms in the Lease to which this
Rider is attached, unless the context requires otherwise.
3. Full Force and Effect. Except as specifically modified by this Rider,
the Lease to which this rider is attached remains in full force and effect.
/s/ /s/
----------------------------------- -------------------------------------
Landlord's Initials Tenant's Initials
Exhibit "D"
Parking
Page 1 of 1