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Exhibit 10.12
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment made Sept. 8, 1999 by Universal Pensions, Inc., a Minnesota
corporation with offices at 000 Xxxx Xxxxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000, as
Assignor, to Integrated Information Systems, Inc., an Arizona corporation with
offices at 0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX 00000, as
Assignee.
For value received, Assignor assigns and transfers to Assignee that Lease
dated August 18, 1997 executed by Assignor, as Tenant, and by AmberJack, Ltd.,
an Arizona corporation with offices at 0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxx, XX 00000, as Landlord, of the following described Leased Premises:
commonly described as Suite No. 150 and more particularly shown on Exhibit "A"
to the Lease attached hereto as Appendix A in that certain building known as
0000 Xxxx Xxxxxxxxxxxx Xxxxxxx located in the City of Tempe, County of
Maricopa, and State of Arizona, together with all Assignor's right, title and
interest in and to the Lease and Leased Premises, subject to all the conditions
and terms contained in the Lease, to have and to hold from October 11, 1999,
until the present term of the Lease expires on October 31, 2002. A copy of the
Lease is attached hereto as Appendix A and made a part hereof by reference.
Assignee agrees to pay all rent due after the effective date of this
Assignment, and to assume and perform all duties and obligations required by
the terms of the Lease.
This Assignment shall be binding on and inure to the benefit of the
parties to it, their heirs, executors, administrators, successors in interest
and assigns.
ASSIGNOR:
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UNIVERSAL PENSIONS, INC.
Dated: Sept 8, 1999 By Xxxxxx X. Xxxxxxxx
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Its President
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ASSIGNEE:
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INTEGRATED INFORMATION SYSTEMS, INC.
Dated: 9/14/99 By Xxx Xxxxxx
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Its CEO & President
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CONSENT OF LANDLORD
The undersigned Landlord, named in the above Assignment of the Lease that
was executed by the undersigned on August 18, 1997, hereby consents to the
above Assignment.
The undersigned Landlord also consents to the agreement by Assignee to
assume after October 11, 1999, the payment of rent and performance of all
duties and obligations as set forth in the Lease and release Universal
Pensions, Inc., Tenant and Assignor, from all duties and obligations under the
Lease, including the payment of rent, after October 11, 1999, and accept
Assignee as Tenant in place of Universal Pensions, Inc., Tenant and Assignor.
LANDLORD:
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MARATHON MANAGEMENT AND DEVELOPMENT
LLC MANAGERS FOR AMBERJACK, LTD.
Dated: 9/16/99 By illegible
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Its President
----------------------
This Instrument Drafted by:
Universal Pensions, In. (BRVZ)
000 Xxxx Xxxxxx Xxxxx Xxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
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ASSIGNOR:
STATE OF MINNESOTA }
} ss.
COUNTY OF CROW WING }
This instrument was acknowledged before me on September 8, 1999 by Xxxxxx
X. Xxxxxxxx as President of Universal Pensions, Inc., a Minnesota corporation,
on behalf of the corporation.
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XXXXXX X. XXXXXX /s/ Xxxxxx X. Xxxxxx
[SEAL] NOTARY PUBLIC-MINNESOTA ----------------------------
CROW WING COUNTY Notary Public
MY COMMISSION EXPIRES DEC. 31, 2000 My Commission Expires: 12/31/00
-------------------------------------------
ASSIGNEE:
STATE OF ARIZONA }
} ss.
COUNTY OF MARICOPA }
This instrument was acknowledged before me on September 14, 1999 by Xxxxx
X. Xxxxxx, Xx. as CEO & President of Integrated Information Systems, Inc., an
Arizona corporation, on behalf of the corporation.
-------------------------------------------
OFFICIAL SEAL
XXXXXX X. XXXXXXXX /s/ Xxxxxx X. Xxxxxxxx
[SEAL] NOTARY PUBLIC-STATE OF ARIZONA ----------------------------
MARICOPA COUNTY Notary Public
MY COMM. EXPIRES DEC. 25, 1999 My Commission Expires: 12/25/99
-------------------------------------------
LANDLORD:
STATE OF }
---------------
} ss.
COUNTY OF }
---------------
This instrument was acknowledged before me on , 1999 by
as of
AmberJack, Ltd., an Arizona corporation, on behalf of the corporation.
----------------------------
Notary Public
My Commission Expires:
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APPENDIX A
(Lease dated August 18, 1997 between Universal Pensions, Inc.
as Tenant and AmberJack, Ltd. as Landlord)
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LEASE
Dated August 18, 1997
between
AMBERJACK, LTD.
"LANDLORD"
and UNIVERSAL PENSIONS
"TENANT"
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INDEX TO LEASE
Section Page
1. TERM.............................................................. 1
2. RENT.............................................................. 1
3. CONSUMER PRICE INDEX ESCALATION................................... 2
4. OPERATING EXPENSES................................................ 3
5. PARKING........................................................... 6
6. SECURITY DEPOSIT.................................................. 7
7. REPAIRS........................................................... 7
8. IMPROVEMENTS AND ALTERATIONS...................................... 7
8. LIENS............................................................. 8
10. USE OF PREMISES................................................... 9
11. LANDLORD SERVICES................................................. 9
12. RULES AND REGULATIONS............................................. 9
13. TAXES............................................................. 10
14. SUBSTITUTED PREMISES.............................................. 10
15. UNTENANTABILITY................................................... 10
16. EMINENT DOMAIN.................................................... 11
17. ASSIGNMENT AND SUBLEASE........................................... 11
18. ACCESS............................................................ 11
19. SUBORDINATION AND ATTORNMENT...................................... 12
20. SALE.............................................................. 13
21. INDEMNIFICATION OF LANDLORD....................................... 13
22. TENANT'S INSURANCE, WAIVER OF SUBROGATION......................... 14
23. ATTORNEY'S FEES................................................... 14
24. WAIVER............................................................ 15
25. NOTICES........................................................... 15
26. INSOLVENCY OR BANKRUPTCY.......................................... 15
27. DEFAULT........................................................... 16
28. INTEREST ON TENANT'S OBLIGATIONS AND LATE CHARGES................. 16
29. HOLDING OVER...................................................... 17
30. TIME.............................................................. 17
31. BROKERS........................................................... 17
32. RECORDATION....................................................... 17
33. BUILDING NAME..................................................... 17
34. SIGNS............................................................. 18
35. CHOICE OF LAW..................................................... 18
36. ESTOPPEL CERTIFICATE OF THREE-PARTY AGREEMENT..................... 18
37. ADDITIONAL CONSTRUCTION........................................... 18
38. DEFINED TERMS AND MARGINAL HEADINGS............................... 18
39. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES............ 18
EXHIBIT "A" -- DESCRIPTION OF LEASED PREMISES
EXHIBIT "C" -- STANDARDS FOR UTILITIES AND SERVICES
EXHIBIT "D" -- RULES AND REGULATIONS
EXHIBIT "E" -- SPACE PLAN; INTERIOR IMPROVEMENT SPECIFICATIONS
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THIS LEASE made this 18th day of August, 1997, between AmberJack, Ltd.
(hereinafter called "Landlord"), and Universal Pensions (hereinafter called
"Tenant").
For and in consideration of the rents, covenants and agreements
hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby
agrees to lease from Landlord those certain premises (the "Leased Premises"),
commonly described as Suite No. 150 and more particularly shown on Exhibit "A"
to this Lease, in that certain building known as 0000 X. Xxxxxxxxxxxx Xxxxxxx
(the "Building") located in the City of Tempe, County of Maricopa, and State of
Arizona. Said leasing is upon and subject to the terms, covenants and
conditions set forth in this Lease and Tenant covenants, as a material part of
the consideration for this Lease, to keep and perform each and all of said
terms, covenants and conditions by it to be kept and performed and Tenant
further agrees that this Lease is made upon the condition of such performance.
1. TERM
(a) The term of this Lease shall be 60 months (unless sooner terminated as
herein provided), which is estimated by Landlord to commence on the 1st day of
November, 1997 (the "Commencement Date").
(b) In the event of the inability of the Landlord to deliver possession of
the Leased Premises on the Commencement Date, Landlord shall not be liable for
any damages caused thereby, nor shall this Lease be void or voidable, but
Tenant shall not be liable for any rent until such time as Landlord can and
does offer to deliver possession of the Leased Premises to Tenant. In such
event, the date upon which Landlord can and does offer to deliver possession of
the Leased Premises to Tenant shall be the Commencement Date of this Lease. If
the offer to deliver possession occurs on other than the first day of a calendar
month, rental for the remainder of that month shall be paid by Tenant on a pro
rata basis.
2. RENT
Tenant agrees to pay as base rental the sum of twenty thousand four
hundred eighty nine & 33/100 ($20,489.33) per month for each and every month of
this Lease (the "Base Monthly Rent"), subject to adjustment, as provided in
paragraphs 3 and 4, hereof, payable in advance on the first day of each month
without offset
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commencing with the Commencement Date of this Lease. The Base Monthly Rent has
been calculated on the basis of 11,176 square feet of rentable area of the
Leased Premises, determined in accordance with "American National Standard ANSI
Z65.1-1980: Standard Method for Measuring Floor Area in Office Buildings"
published by Building Owners and Managers Association International (the
"Standard") and leased at the annual rate of twenty two and 00/100 Dollars
($22.00) per square foot of such rentable area. Should the Standard be revised,
Landlord has the option of recomputing the rentable area based upon the revised
Standard.
3. CONSUMER PRICE INDEX ESCALATION
(a) As used in this paragraph:
(i) "Index" shall mean the "Consumer Price Index for All Urban
Consumers" published by the Bureau of Labor Statistics of the United States
Department of Labor for Los Angeles--Anaheim--Riverside, California. All items
(1982-84=100)
(ii) "Base Index" shall mean the Index in effect in December of the
calendar year in which the date of this Lease falls.
(iii) "Anniversary Month" shall mean December of the calendar year
succeeding the calendar year in which Tenant's obligation to pay rent commences
under this Lease and each successive December thereafter during the Lease term.
(iv) "Percentage Increase" shall mean the percentage equal to a
fraction, the numerator of which shall be the Index in the Anniversary Month
less the Base Index, and the denominator of which shall be the Base Index.
(b) If the Index in the Anniversary Month shall exceed the Base Index,
then the Base Rental (excluding a component applicable to Basic Costs) payable
for the ensuing calendar year, and thereafter until a new index comparative
statement is sent to Tenant, shall be increased by the Percentage Increase. At
any time after January 1 of the said ensuing calendar year, Landlord shall send
Tenant an index comparative statement setting forth (a) the Index in the
Anniversary Month preceding the date of the statement; (b) the Base Index; (c)
the Percentage Increase; and (d) the increase in the annual Base Rental. On
the first day of the calendar month ("current month") following the month in
which the index comparative statement was sent: (i) Tenant shall pay to
Landlord a sum equal to one-twelfth (1/12) of said increase in Base Rental
multiplied by the number of calendar months of the Lease term then elapsed
since said January 1; and (ii) thereafter, commencing with the current month
and continuing
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4. OPERATING EXPENSES
(a) If the annual Operating Expenses of the Building exceed the Base
Operating Expenses, Tenant shall pay, in addition to the Base Monthly Rent,
Tenant's proportionate share of the Operating Expenses of the Building in
excess of the Base Operating Expenses based on Tenant's Percentage.
(b) As used in this Section, the following defined terms shall have
the following meanings unless the context otherwise requires:
(i) "Base Operating Expenses" shall mean all "Operating
Expenses" for calendar year 1998 per square foot for all rentable area of the
Building.
(ii) "Operating Expenses" means, in any fiscal period designated
by the Landlord, all costs and expenses incurred by or on behalf of the
Landlord for the complete operation, management, protection, security,
cleaning, repair and maintenance of the Building and the parking lot structure
serving the Building (the "Parking Garage") and the Land, and which shall
include without limitation, the following:
(A) the salary and wages (including cost of uniforms and
worker's compensation and unemployment insurance, vacation pay,
pension and retirement benefits, health care, and other fringe
benefits, whether statutory or otherwise) of all employees of the
Landlord directly employed in the operation, maintenance, repair
and administration of the Building, the Parking Garage, and the
Land, including the security and reception employees and other
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nonadministrative personnel;
(B) the cost of goods, services, equipment and supplies used
or incurred directly or indirectly in the operation, maintenance,
replacement, repair and administration of the Building and/or the
Parking Garage, including the heating, ventilating and air
conditioning costs, the depreciation cost of all mechanical and
electrical systems, costs of providing hot and cold water,
electrical or any other energy supplies to the Building and/or
the Parking Garage, elevator and escalator maintenance and
operation, and service contracts;
(C) all taxes, duties, and general or special assessments
that may be levied, charged, or assessed against the Building,
the Parking Garage or the Land and all property owner's
association dues, fees, assessments or other charges;
(D) all charges for public services and utilities, including
water, natural gas, sewer, electrical power, steam, hot water, or
any energy supplied or used in the Building, the Parking Garage,
or on the Land and for all work or services performed by any
utility company or commission in connection with such utilities;
(E) the expense for gardening, landscaping, repainting,
rental of signs and equipment, lighting, sanitary control and
garbage removal, curbing and fencing maintenance, the cost of
decorating and furnishing any common areas, and glass maintenance
and window cleaning;
(F) the cost of the Landlord's insurance in types and
amounts as may reasonably be carried by a prudent owner, or as
required by any lender of Landlord, and the cost of any
deductible amount paid by the Landlord in connection with a claim
made by the Landlord under such insurance;
(G) cost of each "Major Expenditure" (as hereinafter
defined) as amortized over the period of the Landlord's
reasonable estimate of the economic life of the Major
Expenditure, but not to exceed fifteen (15) years, using equal
monthly installments of principal and interest at
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the rate announced by First Interstate Bank as its
prime rate at the time of expenditure, plus
one-half percent (1/2%), where "Major Expenditure"
shall mean any single expenditure incurred during
or subsequent to the fiscal period in which the
Lease commences for modifications or additions to
the Building and/or the Parking Garage if one of
the principal purposes of such modification or
addition was to reduce energy consumption or
operating expenses, or was required by
governmental law or regulations; and
(H) an administrative or property management
fee for the property management services desired
from the Building. If Landlord provides its own
property management services, the property
management fee shall not exceed three percent (3%)
of the gross collected rents. The salaries and
wages of those persons referred to in subparagraph
4(b)(ii)(A) are not deemed to be part of the
property management services for purposes of the
limitation contained in this subparagraph.
PROVIDED, HOWEVER, that if, in any such fiscal period the Building is
less that ninety percent (90%) occupied during the whole of the fiscal period,
"Operating Expenses" shall mean the amount obtained by adjusting the actual
Operating Expenses for such fiscal period as if the Building had been ninety
percent (90%) occupied during the whole of such fiscal period, such adjustment
to be made by the Landlord in good faith by adding to the actual Operating
Expenses during such fiscal period such additional costs as would have been
incurred if the Building had been ninety percent (90%) occupied.
(iii) "Tenant's Percentage" means the percentage determined by
converting a fraction, the numerator of which is the rentable area of the
Leased Premises as finally determined by the Architect pursuant to Section 2
and the denominator of which is the aggregate of the rentable area, determined
in accordance with the Standard, of all leased premises from time to time
existing in the Building, whether actually rented or not, inclusive of the
Leased Premises. For purposes of this Lease, the percentage is agreed to be
twelve point seven five percent (12.75%).
(c) Landlord shall by each December 15 during the term of this Lease
deliver to Tenant a statement of the estimated Operating Expenses for the
calendar year immediately following the date of such statement. Landlord's
failure to deliver to Tenant
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such statement by such date, however, shall not preclude Landlord's recovery of
Operating Expenses. On the later of the execution of this Lease or thirty (30)
days prior to the Commencement Date, Landlord shall also give Tenant an
estimate of the annual Operating Expenses from the Commencement Date through
December 31 of the calendar year in which the term of this Lease is estimated
to commence. If the estimated Operating Expenses are projected to exceed the
Base Operating Expenses, Tenant shall pay to Landlord with each payment of the
Base Monthly Rent, as additional rent hereunder, and amount equal to
one-twelfth (1/12) of the product of the estimated Operating Expenses for such
calendar year (less the Base Operating Expenses) multiplied by Tenant's
Percentage.
(d) Landlord shall by April 30 of each year during the term of this
Lease deliver to Tenant a statement of the actual Operating Expenses for the
preceding calendar year, but Landlord's failure to deliver such statement by
such date shall not preclude Landlord's recovery of Operating Expenses. If the
actual Operating Expenses for such calendar year shall exceed the Base
Operating Expenses for such calendar year, Tenant shall, within thirty (30)
days following the delivery of such statement, pay to Landlord an amount equal
to the product of the actual Operating Expenses (less the Base Operating
Expenses) multiplied by Tenant's Percentage; provided, however, payments by
Tenant, if any, of estimated Operating Expenses pursuant to this Section 4
shall be credited against the amount due. The actual Operating Expenses shall
be prorated, if applicable, in the case of the first and last years of the term
of the Lease. If the actual Operating Expenses for such calendar year are
greater than the Base Operating Expenses but are less than the estimated
Operating Expenses for such calendar year collected by Landlord pursuant to
this Section 4, then Tenant shall receive a credit against future monthly
payments of estimated Operating Expenses payable by Tenant in an amount equal
to the product of the excess of estimated Operating Expenses over actual
Operating Expenses multiplied by Tenant's Percentage.
(e) Notwithstanding anything to the contrary contained herein, the
amount of rent payable under this Lease shall never be less than the Base
Monthly Rent.
5. PARKING
(a) Tenant shall at all times during the term of this Lease, have
available in the parking garage up to twenty covered reserved spaces, and 52
uncovered reserved spaces. The parking rental for the covered reserved
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spaces shall be no charge ($0.00) per month, per space. Landlord will provide
reasonable means of identifying and controlling vehicles authorized to be
parked in the reserved and unreserved areas of the Parking Garage. Landlord may
make, modify and enforce rules and regulations.
6. SECURITY DEPOSIT
Tenant has paid Landlord at the execution hereof, the sum of
Waived ($ ) as security for the full and faithful performance and observance by
Tenant of all the covenants and conditions on Tenant's part to be performed and
observed in this Lease as well as in all extensions and renewals hereof. Such
deposit shall be returned to Tenant at the termination of this Lease if Tenant
has discharged its obligations to Landlord in full. Landlord shall not be
required to keep this security deposit separate from its general funds and
Tenant shall not be entitled to interest thereon. In the event of any default
by Tenant, Landlord may apply or retain all or any part of such security
deposit to cure any default or to reimburse Landlord for any sum Landlord may
spend by reason of default. In the event of such a default the Landlord's
election to utilize all or any part of said security deposit, Tenant shall,
upon written notice from Landlord, forthwith deposit with Landlord such sum as
is necessary to replenish said security deposit to the amount specified above.
7. REPAIRS
(a) Landlord shall maintain in good condition the structural
parts of the Building, including the foundations, bearing and exterior walls,
subflooring and roof, and exterior doors, windows, corridors, and other common
areas and shall use reasonable efforts to keep all Building equipment such as
elevators, plumbing, heating, air conditioning, and similar equipment in good
condition and repair.
(b) By taking possession of the Leased Premises, Tenant accepts
the
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Leased Premises as being in the condition in which Landlord is obligated to
deliver them, and as being in good and sanitary order, condition and repair.
Tenant agrees that it will (i) make all repairs to the Leased Premises not
required to be made by the Landlord, (ii) pay for any repairs to the Leased
Premises or the Building containing the Leased Premises made necessary by any
negligence or carelessness of Tenant or its employees or persons permitted in
the Building by Tenant, and (iii) maintain the Leased Premises in a safe,
clean, neat and sanitary condition.
8. IMPROVEMENTS AND ALTERATIONS
(a) See Addendum
(b)
(c) The Tenant shall not make any alterations, improvements or
additions to the Premises without the Landlord's advance written consent in
each and every instance. In the event Tenant desires to make any alterations,
improvements or additions, Tenant shall first submit to Landlord plans and
specifications therefor. Landlord shall have the option of either hiring a
contractor to perform the work or approving in advance the contractor Tenant
proposes to hire. If Landlord elects to hire the contractor, Landlord shall:
(i) obtain a bid from a contractor selected by Landlord to perform the work
specified in the plans and specifications; (ii) present the contractor's bid or
contract price to Tenant for Tenant's approval, which is deemed accepted if not
rejected in writing within seven (7) days; and (iii) require Tenant to supply a
deposit covering all or part of the contractor's bid or contract price. If
Landlord elects to approve the contractor selected by Tenant, Tenant shall: (i)
obtain the contractor's written agreement to not deviate from the plans and
specifications without Landlord's written consent; and (ii) obtain mechanic's
lien waivers from the contractor and all subcontractors and material men in
advance of any work being performed or materials supplied. All alterations,
improvements or additions shall become Landlord's property
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and shall remain upon the premises at the termination of this Lease without
compensation to Tenant; provided, however, that Tenant shall, upon demand by
Landlord, at Tenant's sold cost and expense, forthwith remove any alterations,
additions or improvements made by Tenant, designated by Landlord to be removed,
and repair and restore the Lease Premises to its original condition, reasonable
wear and tear excepted.
9. LIENS
Tenant shall keep the Leased Premises free from any liens arising
out of any work performed, materials furnished, or obligations incurred by
Tenant. In the event that Tenant shall not, within ten (10) days following the
imposition of any such lien, cause the same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right to cause the same to be released
by such means as it shall deem proper, including payment of the claim giving
rise to such lien. All such sums paid by Landlord and all expenses incurred by
it in connection therewith including without limitation costs of suit and
attorneys's fees shall be considered additional rent and shall be payable by
Tenant on demand with interest at the rate of eighteen percent (18%) per annum.
10. USE OF PREMISES
The Leased Premises are to be used for the sole purpose of
Business and sales offices. Tenant agrees that it will use the Leased Premises
in such manner as not to injure, annoy, interfere with or infringe on the
rights of other tenants in the Building or use or allow the premises to be used
for any improper, immoral or unlawful purpose. Tenant agrees to comply with all
applicable laws, ordinances and regulations now or hereafter in force in
connection with its use of the Leased Premises. Tenant shall not commit nor
suffer the commission of any waste, overload any floor beneath the Leased
Premises beyond the load limit established by Landlord, or knowingly permit any
explosives to enter the Building. Tenant shall nor do or permit anything to be
done on or about the Leased Premises or bring or keep anything therein which
will in any way increase the fire insurance premium or other insurance premium
upon The Building.
11. LANDLORD SERVICES
Landlord agrees to furnish to the Leased Premises during
ordinary business hours or generally recognized business days (as determined by
Landlord), and subject to the rules and regulations of the standards for
Utilities and Services attached hereto as Exhibit "C" and by this reference made
a part hereof, water,
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electricity, heating, and air conditioning suitable for the intended use and
occupation of the Leased Premises, janitorial service, and elevator service.
Tenant agrees to abide by all regulations and requirements that Landlord may
prescribe for the proper functioning and protection of the heating ventilating,
and air conditioning system. Landlord shall have no liability, and tenant shall
not be entitled to any abatement or reduction of rental, by reason of Landlord's
failure to furnish any services when such failure is caused by accident,
breakage, repairs, strikes, lockouts, labor disturbances or labor disputes, or
by any other cause, similar or dissimilar beyond the reasonable control of
Landlord.
12. RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of this
Building imposed by Landlord, a copy of which are attached hereto as Exhibit
"D" and by this reference made a part hereof. These regulations are imposed for
the cleanliness, good appearance, proper maintenance, good order and reasonable
use of the Leased Premises and the Building, and as may be necessary for the
proper enjoyment of the Building by all tenants and their clients, customers
and employees. The rules and regulations may be changed by the Landlord from
time to time, and shall become effective after reasonable notice to Tenant.
Failure of Tenant to comply with the Building Rules and Regulations shall
constitute a default under this Lease.
13. TAXES
Tenant shall, in addition to and at the same time as the payment
of the Base Monthly Rent under this Lease, pay to Landlord the amount of any
rental, excise, sales, or transaction privilege tax (but exception Landlord's
income tax) now or hereafter imposed by any taxing authority upon Landlord or
upon Landlord's receipt of the Base Monthly Rent and any other amounts payable
by Tenant pursuant to the terms of this Lease.
14. SUBSTITUTED PREMISES
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15. UNTENANTABILITY
If the Premises are made untenantable in whole of in part by fire or
other casualty, the Rent, until repairs shall be made or the Lease terminated as
hereinafter provided, shall be apportioned on a per diem basis according to the
part of the Premises which is usable by the Tenant, if, but only if, such fire
or other casualty was not caused by the fault or negligence of the Tenant, its
contractors, agents, or employees. If such damage shall be so extensive that the
Premises cannot be restored to tenantability by the Landlord within a period of
one hundred eighty (180) days, either party shall have the right to cancel this
Lease by notice to the other given at any time within sixty (60) days after the
date of such damage; except that if such fire or casualty resulted from the
Tenant's fault or negligence, the Tenant shall have no right to cancel. If a
portion of the Building other than the Premises shall be so damaged that in the
opinion of the Landlord the Building should be restored in such a way as to
alter the Premises materially, the Landlord may cancel this Lease by notice to
the Tenant given at any time within sixty (60) days after the date of such
damage. If more than twenty-five percent (25%) of the Building is made
untenantable by fire or other casualty (regardless of whether the Premises are
untenantable), Landlord may terminate this Lease by written notice to Tenant
within one hundred twenty (120) days after the date of such casualty. In the
event of giving effective notice pursuant to this Section, this Lease and the
term and the estate hereby granted shall expire on the date fifteen (15) days
after the giving of such notice as fully and completely as if such date were the
date hereinafter set for the expiration of the term of this Lease. In the even
neither Landlord not Tenant cancels the Lease, or if in the Landlord's opinion
the Premises can be restored to tenantability within one hundred eighty (180)
days and Landlord wishes to effect such restoration, the Landlord shall,
promptly after adjustment of any relevant insurance claims, commence such
restoration at Landlord's expense.
16. EMINENT DOMAIN
In the event the Building, the Land on which it is located, or any
Portion of the Leased Premises is taken under eminent domain proceeding, Tenant
shall have no right, title or interest to any award for such taking, except for
fixtures and improvements installed by Tenant, if any.
17. ASSIGNMENT AND SUBLEASE
Tenant shall not, either voluntarily or by operation of law, sell,
assign, hypothecate or transfer this Lease, or sublet the premises or any part
thereof, or permit the premises or any part thereof to be occupied by anyone
other than Tenant or Tenant's employees, without the prior written consent of
Landlord in each instance.
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Landlord's consent shall not be unreasonably withheld, provided the proposed
assignee or sublessee is reasonably satisfactory to Landlord as to credit and
character and will occupy the premises for office purposes consistent with
Article 10 of this Lease and Landlord's commitments to other tenants. Any sale,
assignment, mortgage, transfer of subletting of this Lease which is not in
compliance with the provisions of this Article 17 shall be voidable and shall,
at the option of Landlord, terminate this Lease. The consent by Landlord to any
assignment or subletting shall not be construed as relieving Tenant from
obtaining the express written consent of Landlord to any further assignment or
subletting or as releasing Tenant from any liability or obligation hereunder,
whether or not then accrued. The Landlord reserves the right, should the Tenant
request such assignment or subletting, to release the Tenant from the terms and
provisions of this Lease and the Landlord shall have thirty (30) days to make
such determination. Should the Landlord exercise this right, then the Lease
shall terminate as of the date notice is given to Tenant.
Requests for sublease or assignment shall be accompanied by a minimum
service fee of $150 and Tenant agrees to reimburse Landlord for all legal fees
and other expenses incurred by Landlord in connection with the request. Tenant
shall make no profit on a sublease or assignment of this Lease and any increase
in rent, bonus or other fee charged or received, which is higher than, or in
addition to, the rent, and fees due under this Lease shall be paid to Landlord.
18. ACCESS
Landlord and its agents shall have the right to enter the premises at
all reasonable times for the purpose of examining or inspecting the same,
showing the same to prospective purchasers or tenants of the Building, and as
necessary to perform their obligations under this Lease. Landlord may erect,
use, and maintain scaffolding, pipes, conduits, and other necessary structures
in and through the Leased Premises where reasonably required by the character
of the work performed, provided that the business of Tenant shall not be
unreasonably interfered with. If Tenant shall not personally be present to open
and permit an entry into the Leased Premises at any time when such entry by
Landlord is necessary or permitted hereunder, Landlord may enter by means of a
master key or, in emergencies, may enter forcibly, without liability to Tenant.
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19. SUBORDINATION AND ATTORNMENT
(a) This Lease is junior, subject and subordinate to all ground
leases, mortgages, deeds of trust and other security instruments of any kind now
covering the Land, the Building, the Parking Garage and/or the Leased Premises
or any portion thereof or interest therein. Landlord reserves the right to place
liens or encumbrances on the Land, the Building, the Parking Garage and/or the
Leased Premises or any part thereof or interests therein superior in lien and
effect to this Lease. This Lease, at the option of the Landlord, shall be
subject and subordinate to any and all such liens or encumbrances now or
hereafter imposed by Landlord without the necessity of the execution and
delivery of any further instruments on the part of Tenant to effectuate such
subordination. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination of this Lease as may be requested by Landlord.
(b) In the event of the enforcement by any mortgagee, trustee, or
beneficiary under any mortgage, deed of trust or other security instrument of
the remedies provided for by law or by such mortgage, deed of trust or other
security instrument, Tenant will, if requested by such mortgagee, trustee, or
beneficiary or by any person succeeding to the interest of Landlord as the
result of said enforcement, automatically become the tenant of any such
successor in interest, without any change in the terms or other provisions of
this Lease; provided, however, that said successor in interest shall not be
bound by (i) any payment of rent or additional rent for more than one (1) month
in advance, except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease which are not in excess of an amount
equal to one (1) month's rental or (ii) any amendment or modification to this
Lease made without the consent of such mortgagee or beneficiary, or any
successor in interest, except for such amendments or modifications of this Lease
as are made in the ordinary course of Landlord's business, provided that any
such amendments or modification shall not reduce the rent or any other amount
payable by Tenant hereunder. Upon request by said successor in interest, the
Tenant shall execute and deliver an instrument or instruments confirming its
attornment. Nothing herein shall be construed as a subordination of, or
agreement to subordinate, the lien and charge of any mortgage, deed of trust or
other security instrument to the rights or leasehold estates of the Tenant under
this Lease.
20. SALE
In the event of a sale or conveyance by Landlord of the Building
containing the Leased Premises, the same shall operate to release Landlord from
any
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and all liability or obligation under this Lease. This Lease shall not be
affected by any such sale, and Tenant agrees to attorn to the purchaser of the
Building and deliver to the purchaser an offset statement and an estoppel
certificate in such form as Landlord may request. If any security deposit has
been made by Tenant, Landlord may transfer such security deposit to the
purchaser, and thereupon Landlord shall be discharged from any further liability
in reference thereto.
21. INDEMNIFICATION OF LANDLORD
(a) Tenant shall hold Landlord harmless from, indemnify and defend
Landlord against any and all claims for liability for any injury (including
death) or damage to any person or property whatsoever (i) occurring in, on, or
about the leased Premises or any part thereof, or (ii) occurring in, or about
the building when such injury or damage has been caused in part of or in whole
by the act, neglect, fault or omission of Tenant, its agents, servants,
employees, and from all costs, attorneys' fees, expenses and liabilities
incurred as a result of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon notice from Landlord, shall defend the
same at Tenant's expense by counsel satisfactory to Landlord. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons (including death), in, upon or about the
Premises from any cause which does not result from the negligence of Landlord
and Tenant hereby waives all claims in respect thereof against Landlord.
(b) Landlord or anyone authorized to act for Landlord shall not be
liable for any damage to property entrusted to employees of the building, nor
for the loss of or damage to any property by theft or otherwise, nor for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any part of
the building or from the pipes, appliances or plumbing works therein, or from
the roof, street or subsurface, or from any other place resulting from the
negligence of Landlord. Landlord or its agents shall not be liable for
interference with the natural light, nor shall Landlord be liable for any latent
defect in the Premises or in the building. Tenant shall give prompt notice to
Landlord of any fire, accident or defect discovered within the Premises or the
building.
(c) The provisions of this Section 21 shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration of termination.
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22. TENANTS INSURANCE, WAIVER OF SUBROGATION
(a) Tenant agrees to carry at its own expense throughout the term of
the lease, comprehensive public liability insurance insuring both Landlord and
Tenant against all claims, demands, or actions arising out of or in connection
with Tenant's use or occupancy, of the Premises, or by the condition of Premises
with a combined single limit of liability of $1,000,000.00 for bodily injury or
death and property damage. Tenant shall deliver a Certificate of Insurance to
Landlord prior to the date of occupancy of the Premises and said insurance
policy shall list and protect Landlord and Tenant as their interests may appear
and shall contain an endorsement stating that the insurer agrees to give no less
than thirty (30) days prior written notice to Landlord in the event of
modification or cancellation thereof.
(b) Tenant shall be responsible for its own personal property
insurance.
(c) Landlord and Tenant each hereby release the other from any and all
liability or responsibility for any direct or consequential loss, injury or
damage to the Premises, or its contents, caused by fire or any other casualty,
during the term of this lease, even if such fire or other casualty may have been
caused by the negligence (but not the willful act) of the other party or one for
whom such party may be responsible. Inasmuch as the above mutual waivers will
preclude the assignment of any aforesaid claim by way of subrogation (or
otherwise) to an insurance company (or any other person), each party hereto
agrees if required by said policies to give each insurance company which has
issued to it fire and other property insurance, written notice of the terms of
said mutual waivers, and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waivers.
23. ATTORNEY'S FEES
In the event of any legal action or proceeding brought by either party
against the other arising out of this Lease, the prevailing party shall be
entitled to recover reasonable attorneys' fees incurred in such action and such
amount shall be included in any judgement rendered in such proceeding.
24. WAIVER
No waiver by Landlord of any provision of this Lease or of any breach
by Tenant hereunder shall be deemed to be a waiver of any other provision
hereof, or of
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any subsequent breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act of Tenant. No act or thing done by
Landlord or Landlord's agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Leased Premises, unless done in writing signed
by Landlord. The delivery of the keys to any employee or agent of Landlord shall
not operate as a termination of this Lease or a surrender of the Leased
Premises.
25. NOTICES
All notices, demands or other communications in this Lease provided to
be given, made or sent by either party hereto to the other shall be deemed to
have been duly given, made or sent when made in writing and deposited in the
United States mail, certified or registered, postage prepaid, and addressed as
follows:
To Landlord: AmberJack, Ltd.
0000 X. Xxxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, XX 00000
To Tenant: Universal Pensions
0000 X. Xxxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, XX 00000
The address to which any notice, demand or other writing may be given, made or
sent to either party may be changed by written notice given by such party as
above-provided.
26. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency, bankruptcy, or reorganization act, shall at Landlord's option,
constitute a breach of this Lease by Tenant. Upon the happening of any such
event, or at any time thereafter, this Lease shall terminate five (5) days after
written notice of termination from Landlord to Tenant. In no event shall this
Lease be an asset of Tenant in any receivership, bankruptcy, insolvency, or
reorganization proceedings.
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27. DEFAULT
(a) In the event Tenant fails to pay any rental due hereunder or
fails to keep and perform any of the other terms or conditions hereof, or
otherwise breaches this Lease or defaults hereunder, time being of the essence,
or in the event of the taking by execution or judgment or other process of law
of all or any part of the Tenant's interest in this Lease, then ten (10) days
after written notice of default from Landlord, Landlord may, if such default
has not been corrected, resort to any and all legal remedies or combination of
remedies which Landlord may desire to assert including, but not limited to one
or more of the following: (1) lock the doors of the Leased Premises and exclude
Tenant therefrom; (2) retain or take possession of any property on the Leased
Premises pursuant to Landlord's statutory lien; (3) enter the Leased Premises
and remove all persons and property therefrom; (4) declare this Lease at an end
and terminated; (5) xxx for the rent due and to become due under this Lease;
(6) xxx for any damages sustained by Landlord; and (7) continue this Lease in
effect and relet the Leased Premises on such terms and conditions as Landlord
may deem advisable with Tenant remaining liable for the Base Monthly Rent and
other sums due hereunder plus the reasonable cost of obtaining possession of
the Leased Premises and of any repairs and alterations necessary to prepare the
Leased Premises for reletting, and the cost of reletting. No action of Landlord
shall be construed as an election to terminate this Lease unless written notice
of such intention be given to Tenant.
(b) If Landlord shall default in performing its obligations under
this Lease, Tenant shall give Landlord written notice of the deficiency, and
Landlord shall have a reasonable time to correct the same, and if not corrected
within a reasonable time and such breach is a material breach, Tenant may
terminate this Lease or take such other legal steps to which it may be entitled.
28. INTEREST ON TENANT'S OBLIGATIONS AND LATE CHARGES
(a) Any amount due from Tenant to Landlord which is not paid when
due shall bear interest of eighteen percent (18%) per annum until paid, but the
payment of such interest shall not excuse nor cure the default.
(b) Tenant acknowledges that late payment of the Base Monthly Rent
or any other sum required by this Lease to be paid by Tenant to Landlord will
cause
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Landlord to incur costs not contemplated by this Lease, the exact amount of
such costs being extremely difficult and impracticable to fix. Therefore, if
any payment due from Tenant is not received by Landlord within five (5)
calendar days after its due date, Tenant shall pay to Landlord an additional
sum of fifty dollars ($50) as a late charge. The parties agree that this late
charge represents a fair and reasonable estimate of the costs that Landlord
will incur by reason of late payment by overdue amount, or prevent Landlord
from exercising any of the other rights and remedies available to Landlord. In
addition to the above-described late charge, Tenant shall pay to Landlord fifty
dollars ($50) for processing and accounting cost together with interest on such
amount at the rate specified above for each occasion that a rental check
presented to Landlord by Tenant is returned by Tenant's bank for insufficient
funds or for any other reason.
29. HOLDING OVER
No holding over by Tenant after the term of this Lease shall operate
to extend the Lease. In the event of any unauthorized holding over, Tenant
shall indemnify Landlord against all claims for damages by any other tenant to
whom Landlord may have leased all or any part of the Leased Premises covered
hereby effective upon the termination of this Lease. Any holding over without
the consent of Landlord in writing shall thereafter constitute a lease from
month to month with a Base Monthly Rent equal to 200% of the most recent Base
Monthly Rent then in effect.
30. TIME
Time is of the essence of this Lease in each and all of its
provisions.
31. BROKERS
Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease, excepting
only Xxxxx Xxxxxxx; Xxxxxxx & Xxxxxxxxx and except for any broker or agent that
Landlord may have employed, it knows of no other real estate broker or agent
which is or may be entitled to a commission in connection with this Lease.
Tenant agrees to indemnify and save harmless Landlord from any claims for
commission by brokers or agents not mentioned in this paragraph.
32. RECORDATION
Tenant shall not record this Lease or a short form memorandum thereof
without the prior written consent of Landlord.
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33. BUILDING NAME
Tenant shall not use the name of the Building or the development in
which the Building is situated for any purpose other than the address of the
business to be conducted by Tenant in the Leased Premises.
34. SIGNS
Landlord shall have the sole and absolute discretion over all matters
relating to on-premise signs relating to the Building and other Tenant
identification signs and facilities which are intended to be seen by the public
from roads, sidewalks, pedestrian areas and adjoining structures in the
vicinity of the Building.
35. CHOICE OF LAW
This Lease shall be governed by the Laws of the State of Arizona.
36. ESTOPPEL CERTIFICATE OR THREE-PARTY AGREEMENT
At Landlord's request, Tenant will in addition to any other
statements or certificates required to be executed by Tenant, execute and
deliver an estoppel certificate and/or three-party agreement among Landlord,
Tenant and any third party dealing with Landlord certifying as to such facts
(if true) and agreeing to such notice provisions and other matters as such
third party may reasonably require in connection with the business dealings of
Landlord and such third party.
37. ADDITIONAL CONSTRUCTION
Tenant acknowledges that buildings other than the Building may be
constructed within the project of which the Building is a part, and, in
connection with such construction, Tenant shall permit Landlord and/or any
owner of the land upon which such additional buildings are being constructed,
to enter the Leased Premises to erect scaffolding and/or protective barriers
around the leased Premises (but not so as to preclude entry thereto) and to do
any act or thing necessary for the safety or preservation of the Building.
Landlord shall not be liable in any such case for any inconvenience,
disturbance, loss of business or any other annoyance arising from any such
construction, but Landlord shall use its best efforts to see that Landlord or
any adjoining owner will conduct such construction as consistently as possible
with accepted construction practices, so as to minimize inconvenience,
annoyance and disturbance to Tenant.
38. DEFINED TERMS AND MARGINAL HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the
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plural as well as the singular. If more than one person is named as Tenant, the
obligations of such persons are joint and several. The marginal headings and
titles the articles of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part hereof.
39. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
(a) Hazardous Substances. The term "Hazardous Substances", as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and
petroleum products, and substances declared to be hazardous or toxic under any
law or regulation now or hereafter enacted or promulgated by any governmental
authority.
(b) Tenant's Restrictions. Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state or local law, ordinance,
or regulation now or hereafter enacted, related to environmental conditions on,
under, or about the Premises, or arising from Tenant's use or occupancy of the
Premises, including, but not limited to, soil and ground water conditions; or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substance on,
under or about the Premises, or the transportation to or from the Premises of
any Hazardous Substance, except as specifically disclosed this Lease.
(c) Environmental Clean-Up
(i) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
(ii) Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all requirements of all
governmental authorities (the "Authorities") under the Laws.
(iii) Should any Authority or any third party demand that a
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clean-up plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances that occurs
during the term of this Lease, at or from the Premises, or which arises at any
time from Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's own expense, prepare and submit the required plans and all related
bonds and other financial assurances; and Tenant shall carry out all such
clean-up plans.
(iv) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
requested by Owner. If Tenant fails to fulfill any duty imposed under this
Paragraph (c) within reasonable time, Owner may do so; and in such case, Tenant
shall cooperate with Owner in order to prepare all documents Owner deems
necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's use thereof, and for compliance therewith, The Tenant
shall execute all documents promptly upon Owner's request. No such action by
Owner and no attempt made by Owner to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Paragraph (c).
(v) Tenant's obligations and liabilities under this Paragraph (c) shall
survive the expiration of this Lease.
(d) Tenant's Indemnity.
(i) Tenant shall indemnify, defend, and hold harmless Owner, the manager
of the property, and their respective officers, directors, beneficiaries,
shareholders, partners, agents, and employees from all fines, suits, procedures,
claims, and actions of every kind, and all costs associated therewith (including
attorneys' and consultants' fees) arising out of or in any way connected with
any deposit, spill, discharge, or other release of Hazardous Substances that
occurs during the term of this Lease, at or from the Premises, or which arises
at any time from Tenant's use or occupancy of the Premises, or from Tenant's
failure to provide all information, make all submissions, and take all steps
required by all Authorities under the Laws and all other environmental laws.
(ii) Tenant's obligations and liabilities under this Paragraph (d)
shall survive the expiration of this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
Tenant: Landlord:
Universal Pensions Interwestern Management Corp.
Managers for AmberJack, Ltd.
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Illegible
--------------------------- ----------------------------
Its President Its President
--------------------------- ----------------------------
By By /s/ Illegible
--------------------------- ----------------------------
Its Its V.P.
--------------------------- ----------------------------
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LEASE ADDENDUM
This Addendum is attached to and forms part of the Lease Agreement between
AmberJack, Ltd., Landlord, and Universal Pensions, Tenant, dated August 18
1997, for the Leased Premises located at 0000 X. Xxxxxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxx, Xx 00000.
In the event of a conflict between the terms of the Lease and the terms of
the Addendum, the terms of the Addendum shall prevail.
8. Improvements and Alterations
(a) Landlord shall provide and perform interior improvements per Tenant
approved space plan, and in accordance with Building Standard Interior
Improvement Specifications (attached as Exhibit "E").
Landlord's maximum contribution to the construction of interior
improvements shall be twenty-five & no/100 dollars ($25.00) per rentable
square foot.
All costs and construction, including architectural and engineering fees,
(excluding space planning costs) City of Tempe plan check and building
permit fees, telephone and data cabling, and construction sales tax shall
be paid out of this Landlord construction fund.
All construction costs in excess of the Landlord's maximum contribution
shall be paid by the Tenant prior to the commencement of the Lease.
None of the Landlord's construction funds shall be used for furnishings,
artwork, trade fixtures, free-standing appliances, or any type of personal
property.
TENANT LANDLORD
Universal Pensions Interwestern Management Corporation
managers for AmberJack, Ltd.
By: Xxxxxx X. Xxxxxxxx By: Illegible
------------------------------ --------------------------------
Its: President Its: President
----------------------------- -------------------------------
Date: 7/9/97 By: Illegible
----------------------------- -------------------------------
Date: 8/18/97
-------------------------------
