Exhibit 10.45
LEASE
1. BASIC PROVISIONS.
Date: August 8, 2001
SubLandlord: SpeedFam-IPEC, Inc., an Illinois corporation
(hereinafter referred to as "Landlord")
SubTenant: Vodavi Communications Systems, Inc., an
Arizona corporation (hereinafter referred to
as "Tenant")
Premises: That portion of the building located at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx as set
forth in Exhibit A attached hereto.
Building: The building located at 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Arizona.
Master Lease: The Lease Agreement executed by and between
Xxxxxx Properties a Nebraska general
partnership (the "Master Landlord"), and
SpeedFam-IPEC, Inc., an Illinois corporation,
in its capacity as successor in interest to
Integrated Process Equipment Corporation,
dated December 26, 1996, as Tenant.
Use of Premises: General office, engineering, test,
warehousing and other associated functions to
support the sales and service of
telecommunications products and services.
Area of Premises
(Approximate Square Footage): 54,014 rentable square feet
Commencement Date of Lease Term: The later of December 1, 2001 or upon
completion of tenant improvements and receipt
of a Certificate of Occupancy from the City
of Phoenix
Lease Term: Ten (10) years, One (1) month ending Xxxxxxxx
00, 0000
Xxxxxxx Xxxx (xx any): None
First Rent Payment Date: On or before December 1, 2001.
Rent shall be: $785,435 per year, paid monthly in advance in
the amount of Sixty-Five Thousand Four
Hundred Fifty-Two and 92/100 Dollars
($65,452.92), plus rental sales tax, which is
currently 2.4% and is subject to change
($1,570.87).
Security Deposit: $75,000 payable upon execution of this Lease
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Addresses:
Landlord: 000 X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
480.705.2618
Tenant: 0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX
Each reference in this Sublease (hereinafter referred to as "Lease") to any of
the provisions contained in this section shall be construed to incorporate all
of the terms set forth herein.
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord for the term, at the rent, upon the covenants and conditions set forth
herein and under the terms of the Master Lease, a copy of which is attached, the
Premises which shall include the use by Tenant in common with others entitled
thereto of such common facilities as may be designated from time to time by
Landlord, subject, however, to the terms and conditions of this Lease and to
reasonable rules and regulations for the use thereof as prescribed from time to
time by Landlord and as set forth in the Master Lease. The area of the Premises
described in Paragraph 1 is approximate and was calculated by measuring from the
outside rear wall of the Premises to the furthest window extension at the front
of the Premises and to the center of interior walls. The vestibule of the
Premises is included in the approximate square footage. By accepting possession
of the Premises, Tenant accepts the size of the Premises "as is", without any
warranty or representation by Landlord, Tenant having been given full and
complete opportunity to inspect the Premises before entering into this Lease.
The Premises does not include any computer systems, information storage
systems, disk drives, computer equipment racks, PBX equipment, telephone
equipment, switches, routers, hubs, multiplexers, video conferencing equipment,
printers, scanners, plotters, computer and network test and repair equipment,
spare parts, monitors, keyboards, pointing devices, software floppy disks,
software CDs, software documentation, software tapes and modulator-demodulators.
Tenant shall have the right to use the existing cabling associated with all of
the foregoing items that may be found in the Building.
Subject to the right of first refusal held by Avnet, Inc., which right of
first refusal is superior to the rights granted in this paragraph, if during the
Lease term Landlord offers for lease any portion of the Building located
adjacent to the Premises, upon Avnet, Inc.'s waiver of it's right to lease space
in the Building, Landlord shall offer the space to Tenant upon the same terms
and conditions as those offered to Avnet, Inc. (the "Offer"). Tenant shall have
five (5) days after receipt of the Offer to provide written notice to Landlord
of Tenant's intent to lease the space under the terms contained in the Offer.
Tenant's notice of election to accept the Offer is binding upon Tenant. If no
reply is received by Landlord within the five (5) day notice period, Tenant
shall be deemed to have waived its right to lease the additional space. Upon
Tenant's election to lease additional space, Tenant and Landlord shall execute
an addendum to this Lease within fourteen (14) days, leasing the additional
space under the terms and conditions set forth in the offer as well as those
further terms set forth in this Lease. Failure to execute the addendum is a
material breach of this Lease.
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3. COMPLETION OF PREMISES. The parties acknowledge that tenant improvements
will need to be installed in the Premises and that such tenant improvement work
will be constructed by Landlord, in accordance with the following terms and
conditions:
a. Tenant and Landlord have caused to be prepared and have agreed upon
the detailed final plans and specifications showing all improvements and
alterations which Tenant desires to make to the Premises which are attached
as EXHIBIT B and incorporated into this Lease, The aforesaid final plans
and specifications shall be deemed to be "TENANT PLANS".
b. Landlord agrees to fund the tenant improvements up to an amount
which shall not exceed Six Hundred Seventy Six Thousand Five Hundred Eighty
Eight Dollars and Ninety Five Cents ($676,588.95) ("TENANT IMPROVEMENT
BUDGET") to be applied to the costs and expenses incurred in connection
with the completion of the Tenant Plans. Landlord hereby confirms that the
Tenant Improvement Budget is sufficient to pay for the Tenant Plans as
depicted on EXHIBIT B.
c. Landlord shall submit said Tenant Plans to the City of Phoenix
within forty-five (45) days after execution of this Lease, and shall use
all reasonable efforts to obtain all necessary permits from the City of
Phoenix. Landlord shall cause the tenant improvement work in the Premises
to be completed promptly after the execution date of this Lease ("EXECUTION
DATE") at Landlord's expense in accordance with Tenant's Plans, and such
tenant improvement work shall be completed no later than one hundred fifty
(150) days after the Execution Date, subject only to delays caused by
events of Force Majeure. The term "FORCE MAJEURE" shall mean any act of
God, war, insurrection, applicable governmental or judicial law or
regulation, zoning ordinance, governmental order or decree.
d. No material changes shall be made to Tenant's Plans submitted by
Landlord and approved by Tenant without Tenant's prior written consent. All
such tenant improvement work shall be performed as promptly as possible
with all due diligence after the Execution Date and shall be performed in a
lien free manner by Xxxxxxxx Xxxxxx Construction which is duly licensed in
Arizona and has been selected by Landlord and Tenant. Tenant may propose
changes to the tenant improvement work (hereinafter sometimes referred to
as the "TENANT WORK") only by written instructions to Landlord. All such
changes will be subject to Landlord's prior written approval in accordance
with the provisions of this Paragraph. Prior to commencing any change,
Landlord will prepare and deliver to Tenant, a change order setting forth
the total cost of such change and the number of days, if any, which the
Commencement Date will be delayed as a result of any such change, which
will include associated architectural, engineering, construction
contractor's costs and fees and completion schedule changes and the number
of days, if any, which the Commencement Date will be delayed as a result of
any such change (any such number of days, a "TENANT DELAY"). If Tenant
fails to approve such change order within five (5) Business Days after
delivery by Landlord, Tenant will be deemed to have withdrawn the proposed
change and Landlord will not proceed to perform the change. Upon Landlord's
receipt of Tenant's approval, Landlord will proceed with the change. To the
extent such change does not cause the cost of the Tenant Work to exceed the
Tenant Improvement Budget, Tenant shall not be required to pay for such
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change. To the extent the cost of such change exceeds the Tenant
Improvement Budget, Tenant shall pay Landlord the cost of the change upon
receipt of invoices from Landlord's contractors for the same. Landlord may
withhold its approval of any proposed change order that:
(1) Exceeds or adversely affects the structural integrity of the
Building or the Building systems; or
(2) Does not conform to applicable building codes or is not
approved by any governmental, quasi-governmental or utility authority
with jurisdiction over the Premises.
e. Landlord may permit Tenant and Tenant's agents, suppliers and
workers (collectively, "TENANT'S AGENTS") whom Tenant engages to do work
other than the Tenant Work to enter the Premises prior to the Commencement
Date to enable Tenant to install telephone or other wiring, computer,
security or other equipment (including by way of illustration and not
limitation, fire suppression equipment in the warehouse with respect to the
racking in the warehouse portion of the Premises) or to do such other
things as may be required by Tenant to make the Premises ready for Tenant's
occupancy ("TENANT'S PRE-OCCUPANCY WORK"), provided that Tenant and
Tenant's Agents and their activities in the Premises and Building will not
interfere with or delay the completion of the Tenant Work and will not
interfere with other activities of Landlord or occupants of the Building.
Tenant or Tenant's Agents shall not enter the Building or the Premises
without specific written authorization by Landlord and Xxxxxxxx Xxxxxx
Construction and Tenant agrees that any such entry into the Premises shall
be at Tenant's own risk, and Landlord shall not be liable in any way for
any injury, loss or damage which may occur to any of Tenant's property or
Tenant's installations made in the Premises, and Tenant agrees to protect,
defend, indemnify and save harmless Landlord and its agents and employees
from all liabilities, costs, damages, fees and expenses arising out of or
connected with the activities of Tenant or Tenant's Agents in or about the
Premises or Building.
Tenant shall give to Landlord a written request to have such access to
the Premises not less than five (5) days prior to the date on which such
access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance
reasonably acceptable to Landlord: (i) a detailed description of and
schedule for Tenant's Pre-Occupancy Work; (ii) the names and addresses of
all contractors, subcontractors and material suppliers and all other
representatives of Tenant who or which will be entering the Premises on
behalf of Tenant to perform Tenant's Pre-Occupancy Work or will be
supplying materials for such work, and the approximate number of
individuals, itemized by trade, who will be present in the Premises; (iii)
copies of all plans and specifications pertaining to Tenant's Pre-Occupancy
Work; and (iv) copies of all licenses and permits required in connection
with the performance of Tenant's Pre-Occupancy Work.
f. Landlord and Tenant agree that absent Tenant Delay the Tenant Work
shall be substantially complete not later than the Commencement Date. Prior
to the Commencement Date, Tenant will conduct a walk-through inspection of
the Premises with Landlord and prepare a punch list of items need
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additional work by Landlord. Other than the items specified in the punch
list and "latent defects", as defined below, by taking possession of the
Premises Tenant will be deemed to have accepted the Premises in their
condition on the date of delivery of possession and to have acknowledged
that Landlord has installed the Tenant Work as required by this Lease and
that there are no items needing additional work or repair. A "latent
defect" is a defect in the condition of the Premises caused by Landlord's
failure to construct the Tenant Work in a good and workmanlike manner and
in accordance with the Tenant Plans, which defect would not ordinarily be
observed during a walk-through inspection. If Tenant notifies Landlord of a
latent defect within one (1) year following the Commencement Date, then
Landlord, at its expense, will repair such latent defect as soon as
practicable. Landlord shall also deliver to Tenant as of the Commencement
Date a true and correct copy of all warranties for the Tenant Work, shall
advise any such third parties that Tenant is a third party beneficiary of
such warranties and, with respect to any such maintenance and repairs which
Tenant is required to perform pursuant to Paragraph 12 hereinbelow,
Landlord hereby assigns to Tenant the right to enforce all warranties,
guaranties and indemnities, such assignment to be performed pursuant to and
in accordance with Section 3(d) of the Master Lease.
4. USE AND OCCUPATION OF PREMISES.
a. CONDITION: Landlord represents and warrants that as of the
Commencement Date the Building and Premises shall comply with all Legal
Requirements and Environmental Laws (as each of such capitalized terms are
defined in the Master Lease), including but not limited to all requirements
under the Americans with Disabilities Act. Landlord further represents that
to Landlord's knowledge no Hazardous Substances have been discharged onto
the Building or the surrounding area subject to the Master Lease ("Leased
Premises") in violation of any Environmental Law and that Landlord has
received no notices of violation of any Environmental Law concerning the
Leased Premises. Landlord shall and hereby does agree to defined, indemnify
and hold Tenant, its officers, directors, shareholders and employees
harmless for, from and against any and all loss, damage, expenses, fees,
claims, costs and liabilities, including, but not limited to, attorneys'
fees and costs of litigation, arising out of or in any manner connected
with "release" or "threatened release" of or failure to remove, as required
by Section 27 of the Master Lease, Hazardous Substances from the Premises
or any portion or portions thereof, now or hereafter existing and whether
or not arising out of or in any manner connected with Landlord's occupancy
of the Building, except as such Hazardous Substances were introduced by or
caused to be introduced by the Tenant or its respective officers,
directors, employees or others in privity of contract in connection with
the Premises or this Lease.
b. USE: Tenant shall not use the Premises for any purpose or conduct
business from the Premises under any trade name other than the permitted
use specified in Paragraph 1, without obtaining the prior written consent
of Landlord, PROVIDED, HOWEVER, that with respect to changes in use or
Tenant's name, Landlord shall not unreasonably withhold its consent to any
such changes in use if the same shall not reduce the market value of the
Premises or the Building at the end of the term. Tenant shall not use or
permit any person to use the Premises for conducting thereon a second-hand
store, auction, distress, fire sale, or bankruptcy or going-out-of-business
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sale, or any similar sale, without obtaining the prior written consent of
Landlord, or for any use or purpose in violation of the laws, ordinances or
regulations now or hereafter in force of any lawful authority. Tenant shall
not display or sell merchandise, nor allow carts, portable signs, devices
or other objects to be stored or to remain outside the exterior walls and
shall not solicit in any manner in any of the parking and common areas.
During the term of this Lease, the Premises shall be kept in a clean and
wholesome condition, free from any disorderly conduct, noise, odor or
nuisance.
5. TERM. The term of this Lease and Tenant's obligations hereunder shall
begin on the commencement date set forth herein and shall continue until 12:00
o'clock midnight of the last day of the final year of this Lease, unless sooner
terminated pursuant to this Lease. The term "lease year" as used herein shall
mean a period of twelve (12) consecutive full calendar months.
6. RENT. Tenant absolutely and unconditionally agrees to pay to Landlord at
the address set forth herein, or at such other place designated by Landlord,
without any prior written demand therefor and without any deductions or setoffs
whatsoever, and as fixed rent, the Rent specified herein, in advance, upon the
first day of each calendar month of each lease year. Monthly Rent for any period
during the term which is for less than one (1) month shall be a pro rata portion
of the monthly installment. If the Commencement Date is not December 1, 2001,
the first month's rent payment which Tenant makes on December 1, 2001 (as
required on P. 1 of this Lease) shall apply to the month in which the Tenant
takes occupancy.
7. SECURITY DEPOSIT. Landlord acknowledges receipt of the security deposit
specified herein which shall be held by Landlord, without interest, as security
for the faithful performance by Tenant of all the terms of this Lease by Tenant
to be observed and performed. Landlord shall have the right to commingle said
security deposit with its other funds.
If Tenant fails to pay any rent reserved or any other sum payable by Tenant
to Landlord pursuant to this Lease, or if Tenant should fail to perform any
other term of this Lease, then Landlord may, at its option and without prejudice
to any other remedy which Landlord may have on account thereof, apply all or any
portion of said security deposit toward the payment of rent or other charges due
or loss or damage sustained by Landlord due to such breach on the part of
Tenant. In the event any proceedings are commenced by or against Tenant under
any chapter of the Bankruptcy Act, said security deposit shall be deemed to be
applied first to the payment of rent and other charges due Landlord for all
periods prior to the filing of such proceedings. If Landlord uses or applies all
or any portion of the security deposit, Tenant shall deposit cash with Landlord,
within ten (10) days after written demand by Landlord, in an amount sufficient
to restore the security deposit to the full amount, and Tenant's failure to do
so shall be a material breach of this Lease.
Upon the expiration or early termination of this Lease, any part of said
security deposit not applied as set forth above shall be returned to Tenant,
provided that Tenant is not then in default hereunder.
8. CERTAIN TAXES. Tenant covenants and agrees to pay, at the time of
payment of the Monthly Rent, as additional rent, any privilege, rental sales, or
other tax imposed upon or measured by the rentals from the Premises and the
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appurtenances thereof (provided, however, that the foregoing taxes shall not
include income taxes, interest or penalties for late payment of any taxes,
capital levy taxes, estate, succession or inheritance taxes, excess profits
taxes, franchise taxes or any other taxes imposed upon or measured by Landlord's
income or profits, unless the same shall be imposed in lieu of rental sales
tax). Landlord is responsible for real estate property taxes on the Building.
9. UTILITIES. Landlord agrees to pay the following charges for utilities
used by Tenant: water, and electricity. In the event of an interruption in the
water and electricity provided by Landlord herein (or the heating, ventilating
and air-conditioning provided by Landlord pursuant to Paragraph 12 hereinbelow)
and (i) such interruption is not caused by fire or casualty (all of which is
addressed in Paragraph 13 hereinbelow) or any act or omission of Tenant,
Tenant's Agents, employees or invitees; (ii) such failure or delay rends all or
any position of the Premises untenantable; and (iii) Tenant cannot and does not
occupy the Premises or such portion thereof for the conduct of Tenant's business
therein for a period of three (3) consecutive Business Days, then Tenant shall
xxxxx for the portion of the Premises rendered untenantable and which Tenant
cannot and does not occupy for the conduct of Tenant's business therein for the
period of untenantability, and such abatement shall cease when such portion of
the Premises are again tenantable. Should the delivery of water and/or
electricity be interrupted for any cause, Landlord shall promptly commence and
diligently pursue the restoration of such service. Tenant is responsible for all
charges and costs not set forth in this paragraph including but not limited to
alarm system monitoring, electronic security systems, trash collection,
telephone, cable, Internet and other communication charges, private security,
and maintenance relative to the rentable area occupied by Tenant.
10. INSURANCE. Landlord shall maintain insurance against damage or
destruction by fire and extended coverage of the Building, in such amount and
upon such terms and conditions as it shall in its discretion determine to
provide, but in all events in the amounts and types of coverages required by
Section 14 of the Master Lease. In this connection, Tenant shall not sell, rent
or offer for sale or rent any goods or merchandise nor do, cause to be done or
permit any conduct or activities, in, on or about the Premises, which will tend
to increase the costs for policies of insurance on the Premises.
Tenant shall maintain during the term of this Lease, at its expense, a
public liability insurance policy, for injury, death or damage which might
result from Tenant's occupation of the Premises or operation of its business,
either to persons or property, in amounts not less than $500,000.00 as to injury
or loss of life of one person, $1,000,000.00 as to injury or loss of life to all
persons arising out of a single accident or disaster, and $1,000,000.00 for
accident or property damage liability. Tenant shall also maintain during the
term of this Lease, at its own expense, insurance covering all plate glass and
exterior doors in the Premises in an amount equal to their full replacement
value from time to time insuring the same against breakage and other damage.
Tenant shall have Landlord named, as an "additional insured" under all liability
insurance policies Tenant is required to obtain pursuant to this Lease.
Tenant shall also maintain during the term of this Lease, at its expense,
insurance covering all of Tenant's fixtures, merchandise and other property in
an amount equal to the full replacement value thereof.
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Insurance required hereunder shall be in companies rated A+ or better in
"Best's Insurance Guide". Tenant shall deliver to Landlord copies of policies of
liability insurance required under this Paragraph 11 or certificates evidencing
the existence and amounts of such insurance with loss payable clauses naming
Landlord and other parties as requested by Landlord as an additional insured
party and which are otherwise satisfactory to Landlord. No such policy shall be
cancelable or subject to reduction of coverage or other modifications except
after thirty (30) days prior written notice to Landlord. Tenant shall, within
thirty (30) days prior to the expiration of such policies, furnish Landlord with
renewals or "binders" thereof. If Tenant fails to do so Landlord may but shall
not be required to, procure such insurance and charge the cost thereof to Tenant
which amount shall be payable by Tenant upon demand. Tenant shall not do or
permit to be done anything which shall invalidate the insurance policies
referred to in this Paragraph 11.
11. ALTERATIONS. Tenant shall not make any improvements, alterations,
additions or changes to the Premises without obtaining the prior written consent
of Landlord, which consent shall not be unreasonably withheld, PROVIDED,
HOWEVER, that no consent shall be required to be obtained from Landlord if: (i)
the cost of any such improvements, alterations, addition or changes do not
exceed $25,000 per annum; and (ii) Tenant complies with the remaining provisions
of this Paragraph 11 (provided, further, that Tenant shall nevertheless provide
Landlord with notice of any such permitted alterations and all such alterations
shall nevertheless comply with the succeeding provisions of this Paragraph 11.
If Tenant desires to make any improvements, alterations, additions or changes to
the Premises, Tenant shall furnish Landlord with plans and specifications for
same, together with a written bid from a licensed contractor reasonably
acceptable to Landlord. All costs of construction shall be borne by Tenant.
Notwithstanding the foregoing, Tenant shall not make any improvements,
alterations, additions or changes of a structural nature to the Premises, nor
any improvements, alterations, additions or changes of any nature to the
exterior or roof of the Premises. All alterations, additions or improvements
installed in the Premises at any time, either by Tenant or by Landlord on behalf
of Tenant, shall become the property of Landlord and shall remain upon and be
surrendered with the Premises unless Landlord, by notice to Tenant not later
than twenty (20) days prior to the termination of this Lease, elects to have
them removed by Tenant, in which event, the same shall be removed from the
Premises by Tenant forthwith at Tenant's expense. Nothing contained herein shall
be construed to prevent Tenant's removal of trade fixtures, but upon removal of
any such trade fixtures from the Premises, or upon removal of other
installations as may be required by Landlord, Tenant shall immediately, and at
its expense, repair and restore the Premises to the condition existing prior to
installation and repair any damage to the Premises due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
remaining in the Premises after Tenant's removal shall be deemed abandoned and
may, at the election of Landlord, either be retained as Landlord's property or
may be removed from the Premises by Landlord at Tenant's expense.
12. MAINTENANCE OF PREMISES. Tenant shall keep and maintain the interior of
the Premises, including, but not limited to, all window blinds, light bulbs,
carpeting, tile, built-ins, air filters, the interior portion of the plumbing
connecting Tenant's toilets and other plumbing fixtures to the plumbing lines
servicing the Building, the wiring and alarm system serving the Premises, all
other fixtures and equipment therein and all window casements or frames, plate
glass, doors and door frames, locks, closing devices, and Tenant's signs, in
good condition and repair during the term of this Lease, reasonable wear and
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tear excepted. Tenant is responsible for all janitorial services, telephone,
computer and other communications equipment, plumbing and electrical outlet
maintenance and repair, air conditioning filters, insurance for building
contents, inventory and equipment, and all other internal general maintenance
and repair to the Premises. Tenant shall keep the Premises in the condition
required from time to time by all applicable Legal Requirements.
Landlord shall maintain and repair the exterior of the Premises (including
but not limited to the parking lot and all landscaping), the heating,
ventilating and air-conditioning system, the back-up generator, and all other
structural elements of the Building, roof replacement and repair, asphalt
maintenance and repair, maintenance and repair of the air conditioning, chiller,
water tower and backup generator, exterior building paint, all plumbing and
sewer lines connecting the Tenant's interior plumbing to the plumbing lines
servicing the Building, and all replacement of the foregoing items if required
pursuant to the Master Lease. Landlord shall also be solely responsible for all
fees and costs of managing the Building as well as all real estate property
taxes for the Building. Notwithstanding the foregoing, Landlord shall not be
required or obligated to make any such repairs necessitated by reason of the
negligent or willful action of Tenant or any of its servants, agents, employees,
customers, visitors or licensees, or by reason of the failure of Tenant to
perform or observe any terms or provisions hereof, or by reason of any
improvements, alterations, additions or changes to the Premises made by Tenant,
such repairs being the sole responsibility and obligation of Tenant. Landlord is
not responsible for humidity or temperature fluctuations that may be found
within the Building or Premises. Tenant agrees to give Landlord written notice
of any such needed repairs.
If Tenant refuses or neglects to timely make repairs or otherwise maintain
the Premises in accordance with the provisions hereof and in a manner
satisfactory to Landlord, Landlord shall have the right, but shall not be
obligated, to make any or all such repairs or perform any or all such
maintenance on behalf of and for the account of Tenant upon giving ten (10) days
written notice to Tenant of its intention to do so. In such event, all sums
expended and all expenses incurred by Landlord in connection with the foregoing
shall be additional rent hereunder, payable on demand, and bearing interest from
the date of such expenditure or incurrence at the rate of eighteen percent (18%)
per annum.
If Landlord refuses or neglects to timely make repairs or otherwise
maintain the Premises in accordance with the provisions hereof, Tenant shall
have the right, but shall not be obligated, to make any or all such repairs or
perform any or all such maintenance on behalf of and for the account of Landlord
upon giving ten (10) days written notice to Landlord of its intention to do so,
in which event Tenant shall have the right to deduct the reasonable cost of all
such repairs (not including any improvement made as part of the repairs) from
the rent thereafter due from Tenant to Landlord.
No exercise by Landlord of any rights reserved herein shall, except as
otherwise herein set forth, entitle Tenant to any damages for any injury to the
property or business of Tenant or inconvenience occasioned thereby nor to any
abatement of rent.
13. DAMAGE OR DESTRUCTION TO PREMISES. In the event that the Premises are
at any time during the term of this Lease partially damaged by fire, flood,
tornado, windstorm, or by the elements, or otherwise, Landlord shall, as
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speedily as circumstances permit, repair said damage and restore the Premises
and such condition, or, with respect to the Premises, with such modification as
Landlord and Tenant shall agree to in writing, and this Lease shall remain and
continue in full force and effect; provided that such loss is insured and that
all proceeds of such insurance coverage are made available to Landlord and are
not subject to any superior right thereto of any mortgagee or other party and,
further provided that Tenant shall, at its sole expense, diligently repair,
restore or replace all damaged or destroyed leasehold improvements (other than
the tenant improvement work performed by Landlord pursuant to Paragraph 3
hereinabove), fixtures, furniture, equipment and other property of Tenant in, on
or about the Premises. Tenant shall continue to conduct its business on the
Premises during such replacement, restoration or rebuilding to the extent
reasonably practicable. In the event that the Premises are rendered partially
untenantable as a result of the foregoing, then the Monthly Rent shall be abated
proportionately to the extent that the Premises are rendered untenantable during
such replacement restoration or rebuilding; PROVIDED, HOWEVER, Tenant shall not
be entitled to any compensation or damages from Landlord for injury to its
business, loss or impairment in the use of the Premises or any part thereof or
any property of Tenant or any other injury or inconvenience occasioned by such
damage, replacement, restoration or rebuilding.
If the Premises shall be completely damaged or destroyed, or in the event
that the damage is such that, in the opinion of Landlord, it is not practical or
desirable to repair or rebuild the same, then Landlord may within sixty (60)
days following the date of such casualty elect to terminate this Lease by so
notifying Tenant in writing PROVIDED, HOWEVER, that in all events if Landlord is
required to repair or rebuild the Premises pursuant to the terms and provisions
of Section 15 of the Master Lease, then and in such event Landlord shall repair
or rebuild the Premises (and Landlord shall notify Tenant in all events whether
it shall rebuild or repair the Premises within the aforesaid sixty (60) day
period. If the Lease is terminated pursuant to the preceding sentence, this
Lease shall terminate as of the date set forth in said notice, all insurance
proceeds available as a result of damage or destruction to the Premises and any
fixtures and other property a part thereof or appurtenant thereto shall be paid
to Landlord, and both parties shall be released from any further obligation or
liability hereunder, except as to the payment by Tenant to Landlord of all
rentals and all other sums accrued and unpaid as of the date set forth in said
notice. Landlord expressly acknowledges that the racks in the warehouse and the
modular furniture installed by Tenant shall remain Tenant's trade fixtures.
14. CONDEMNATION. Should the Premises or any portion thereof be taken for
public use by right of eminent domain with or without litigation, any award for
compensation and/or damages, whether attained by agreement prior to or during
the time of trial, or by judgment or verdict after trial, applying to the
leasehold estate created hereby other than that portion of said award, if any,
based upon a taking of Tenant's movable trade fixtures, shall belong and be paid
to Landlord, and Tenant hereby assigns, transfers and sets over to Landlord all
of the right, title and interest which it might otherwise have therein. In the
event that the portion of the Premises is so taken is such that Landlord shall
be required to tender a Purchase Offer (as such term is defined in Section 13 of
the Master Lease) to Master Landlord, then and in such event, if the portion of
the Building so taken shall be more than fifteen (15%) percent of the floor area
of the Premises, Landlord shall have the option, to be exercised by written
notice given to Tenant within thirty (30) days after the date of such taking, to
terminate this Lease. In the event that more than fifteen (15%) percent of the
floor area of the Premises shall be so taken and Landlord does not so elect to
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terminate this Lease, or if less than fifteen (15%) percent of the floor area of
the Premises is so taken, provided Tenant can continue to conduct its business
at the Premises in the manner in which it was conducted prior to the
condemnation, then the Monthly Rent payable under this Lease shall be reduced in
the same proportion as the amount of said floor area is reduced by such taking
and Landlord shall make such reconstruction of the Premises as may be required
to the extent of the aforesaid award. Notwithstanding anything to the contrary
in this Paragraph 14, if such taking renders the remaining Premises uneconomic
for the continued use or occupancy in the business of Tenant in the reasonable
business judgment of Tenant's board of directors, then Tenant shall have the
right to terminate this Lease upon thirty (30) days prior written notice to
Landlord.
15. ASSIGNMENT AND SUBLETTING. Tenant may sublet the Premises in whole or
in part with the prior written approval of Landlord as well as the Landlord
under the Master Lease, PROVIDED, HOWEVER, that any rent paid by the tenant
under any sublease over and above the Rent owed by Tenant to Landlord under this
Lease shall be paid over to Landlord at the time that rent is due Tenant under
any sublease. Landlord's permission shall not be unreasonably withheld. Tenant
shall remain responsible for performance of each and every provision in this
Lease and the Master Lease. Landlord shall have the right to assign, transfer
and convey all or any part of its interest in this Lease or in the Premises.
Landlord's obligations to Tenant shall cease wholly or partly, as the case may
be, as of the effective date of such assignment, transfer or conveyance,
PROVIDED, HOWEVER, that Landlord shall in all events transfer to any such
assignee or transferee Tenant's security deposit and provide Tenant with a
notice confirming such transfer of security deposit, countersigned by the
assignee or transferree, and, provided Landlord has so transferred Tenant's
security deposit, Tenant shall thereafter look solely to the assignee,
transferee or purchaser thereof. In the event of any such assignment, transfer
or conveyance of all or any part of Landlord's interest herein, either
voluntarily or involuntarily, as a result of a foreclosure of any mortgage or
deed of trust, or otherwise, Tenant hereby agrees to attorn to, and become the
Tenant of any assignee, successor in interest or purchaser of Landlord's
interest herein.
Notwithstanding anything to the contrary in this Paragraph 15, so long as
any assignee or successor Tenant by reason of merger or asset purchase or other
transaction contemplated by this grammatical paragraph which shall have the
primary responsibility for complying with the obligations of Tenant under this
Lease shall have a satisfactory credit history and/or a showing of satisfactory
financial responsibility ("FINANCIAL RESPONSIBILITY"), upon notice to Landlord,
but without the requirement of Landlord's consent, and without the right of any
recapture by Landlord, Tenant may assign this Lease or sublet or allow use of
the Premises, or any portion thereof by a Tenant Affiliate. Further, in the
event that such Tenant Affiliate shall have such Financial Responsibility, then
Landlord shall not unreasonably withhold its consent to releasing such named
Tenant from this Lease. A "TENANT AFFILIATE" shall mean: (a) any person,
corporation, partnership, trust or other entity which controls or is controlled
by or is under common control with Tenant; (b) any corporation resulting from a
merger or consolidation with Tenant; (c) any person, corporation, partnership,
trust or other entity succeeding to the business or assets of Tenant or (d) any
person, corporation, partnership, trust or other entity which acquires all or
substantially all of the assets or business of Tenant, provided, however, that
any assignee assumes in full the obligations of Tenant under this Lease. As used
in the definition of "Tenant Affiliate" the term "control" or "controlling"
shall mean (i) the possession, directly or indirectly, of the power to vote
fifty-one percent (51%) or more of the stock, voting trust certificates or other
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securities having voting power for the election of directors of a corporate
entity, (ii) the status of a general partner of a general or limited partnership
(provided that, in addition to the ownership of all of the general partnership
interests, a total of fifty-one percent (51%) of the partnership interests are
owned) or (iii) the possession of the power to otherwise direct or cause the
direction of the management and policies of an entity, whether through the
ownership of voting stock, voting trust certificates or other securities or of
partnership interests or by contract or otherwise. Notwithstanding anything to
the contrary contained in this Paragraph 15, the transfer of any interest in
Tenant which is effected through the sale of the shares of Tenant (or, following
an assignment or sublet to any Tenant Affiliate, the shares of such Tenant
Affiliate or any other Tenant Affiliate) through the "over the counter market"
or through any recognized stock exchange, shall not be deemed to be an
assignment or transfer of this Lease.
16. DEFAULT BY TENANT AND REMEDIES.
a. DEFAULT. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(1) The abandonment of the Premises by Tenant, or the vacating of
the Premises for a period of five (5) consecutive days.
(2) The failure by Tenant to make any payment of rent, additional
rent or any other payment required to be made by Tenant hereunder
within five (5) days after the same shall be due.
(3) Tenant makes any assignment or sublets the Premises without
written approval of the Landlord and Landlord under the Master Lease.
(4) Tenant makes an assignment for the benefit of creditors or a
receiver is appointed to take possession of substantially all of
Tenant's assets located in the Premises or of Tenant's interest in
this Lease, or a petition is filed by or against Tenant under any
section of the Bankruptcy Act which is not dismissed within sixty (60)
days thereafter, or substantially all of Tenant's assets located in
the Premises or Tenant's leasehold interest in the Premises are
attached or taken by other judicial seizure.
(5) The failure by Tenant to observe or perform any other
covenant, condition or provision of this Lease to be observed or
performed by Tenant where such failure shall continue for a period of
thirty (30) days after written notice thereof is given by Landlord to
Tenant.
b. REMEDIES. In the event of any such material default or breach by
Tenant, Landlord shall have the right, at its election, without further
notice or demand, to reenter upon the Premises with or without process of
law and take possession of the same and of all equipment and fixtures
therein, including the right to change door locks and suspend utilities and
services and expel or remove Tenant and all other parties occupying the
Premises using such force as may reasonably be necessary to do so without
being liable to Tenant for any loss or damage occasioned thereby; such
property may be removed and stored in any other place in the building or in
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any other place, for the account of and at the expense and risk of Tenant,
and Tenant will pay to Landlord on request any and all expenses incurred in
such removal and any storage charges therefor; or Landlord may, at its
option, without notice to Tenant, sell said property for such price and
upon such terms as Landlord may determine, applying the proceeds of such
sale upon any amounts due under this Lease, including the expenses of
removal and sale.
Should Landlord elect to reenter as herein provided or should it take
possession pursuant to legal proceedings, it may terminate this Lease or it
may, from time to time, without terminating this Lease, relet the Premises
or any part thereof for such term or terms and at such rental or rentals
and upon such other terms and conditions as Landlord in its sole discretion
may deem advisable with the right to make alterations and repairs to said
Premises at the expense of Tenant, or it may avail itself of any other
right or remedy granted by law or equity, to be exercised cumulatively or
successively as the law permits.
In the event that Landlord relets the Premises from time to time,
Tenant shall have no right or authority whatever to collect any rentals
received thereunder and the rentals so received by Landlord shall be
applied first to the payment of any indebtedness, other than rent, due
hereunder from Tenant to Landlord, then to the payment of any cost of such
reletting, including attorneys' fees and leasing commissions which Landlord
may have paid or incurred in connection with such repossession and
reletting, then to the payment of the cost of any alteration or repair to
the Premises to make them tenantable or acceptable to a new tenant, then to
the payment of rent due and unpaid hereunder, and the residue, if any,
shall be held by Landlord and applied in payment of future rent as the same
may become due and payable hereunder.
Whether or not the Premises are relet, Tenant shall pay Landlord all
amounts required to be paid by Tenant up to the date of Landlord's reentry,
and thereafter, Tenant shall pay Landlord until the end of the term of this
Lease the amount of all rentals and other charges required to be paid by
Tenant hereunder, less the proceeds of such reletting during the term
hereof, if any, after payment of the foregoing. Such payments by Tenant
shall be due at such times as are provided in this Lease, and Landlord need
not delay any action to recover such payments until the termination of this
Lease. Landlord shall not by such reentry or other act be deemed to have
terminated this Lease unless Landlord shall give to Tenant written notice
of Landlord's election to terminate this Lease as provided herein, and
Landlord shall thereupon be entitled to recover from Tenant the worth, at
the time of such termination, of the rent and other charges required to be
paid by Tenant hereunder for the balance of the term of this Lease (if this
Lease has not been so terminated), less any portion which Tenant can prove
could have reasonably been avoided through reletting.
c. LATE PAYMENT CHARGES. Tenant's failure to pay amounts due hereunder
promptly when due or the payment of amounts due hereunder by check or draft
which is dishonored may cause Landlord to incur unanticipated costs. The
exact amount of such costs are impractical or extremely difficult to
ascertain. Such costs may include, but are not limited to, processing,
accounting and collection costs. Therefore, if Landlord does not receive
any payment when due as defined in this Lease or payment is dishonored for
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any reason, Tenant shall pay Landlord a late payment charge equal to ten
percent (10%) of the such amount. Both Tenant and Landlord hereby expressly
agree that such late payment charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of such late payment.
Acceptance of a rental payment without a late payment charge does not
constitute a waiver by Landlord of these late payment charge provisions,
and shall not work to prevent Landlord from later enforcing this provision
and assessing late payment charges, or enforcing Landlord's other rights
and remedies. Further, these late payment charge provisions do not
constitute a waiver of any default provisions previously stated in this
paragraph.
17. MISCELLANEOUS.
a. FORM OF PAYMENT: Tenant agrees to timely make all payments to
Landlord provided for herein by U.S. currency, or check, cashier's check,
money order or certified check payable in immediately available U.S. funds.
In the event that any instrument tendered by Landlord in payment of amounts
due hereunder is returned by any financial institution unpaid, Tenant shall
pay to Landlord a fee of $100.00 per item returned, in addition to any late
payment charge reflected above. In Landlord's sole discretion, upon two
days advance written notice from Landlord, Tenant agrees that all amounts
due hereunder shall be timely paid by Tenant in U.S. currency, or cashier's
check, money order or certified check payable in immediately available U.S.
funds.
b. APPLICATION OF PAYMENTS: Tenant hereby agrees that any amounts paid
by Tenant hereunder may be applied by Landlord as Landlord sees fit in
Landlord's sole discretion, such as first to late fees, next to other
payments due and finally to rent due.
18. RULES AND REGULATIONS. Tenant agrees and covenants that it shall comply
with all rules and regulations regarding the use and occupancy of the Premises
and all common areas and facilities thereof, as Landlord shall in its sole
discretion establish from time to time. Upon ten (10) days written notice to
Tenant, Landlord shall have the right to repeal, amend, alter or supplement such
rules and regulations. Tenant shall engage the alarm system at all times where
the Premises is not occupied.
19. PARKING. Tenant shall have use of forty (40) covered and an additional
one hundred six (106) uncovered parking spaces. The allotted parking spaces
shall be identified as reserved for Tenant. Parking spaces shall be used solely
for the purpose of parking motorized passenger vehicles belonging to employees
or visitors of Tenant during normal business hours. Tenant shall not cause
anything, including vehicles, to remain overnight in said parking spaces.
20. SIGNS.
a. Tenant shall not erect or install any advertising matter of any
nature whatsoever, including any sign, lettering, placard, on any exterior
door, wall or window of the Premises or in any window display area, without
first obtaining the written consent of Landlord. Tenant agrees not to use
any advertising media that may be deemed objectionable to Landlord or which
may be heard or experienced outside the Premises, including, but not
limited to, flashing lights, search lights, loud speakers, phonographs,
records or television.
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b. Tenant may, at its sole cost and expense, install Building signage
on the west end of the Building corresponding to the planned entry to the
Premises as well as on the monument sign at the northeast corner of the
land surrounding the Building. Tenant must obtain all required permits from
the City of Phoenix for such signage and must conform to all City of
Phoenix sign guidelines and regulations.
21. ACCESS TO PREMISES. Landlord shall have the right to enter upon the
Premises at all reasonable times for the purpose of examining or inspecting the
Premises, or showing the same to prospective tenants or lenders, provided that
except in the case of an emergency when Tenant is not at the Premises, Tenant
shall at all times be permitted to have one of Tenant's Agents accompany
Landlord on any such examination or inspection. Landlord shall have the right to
place a sign upon the Premises indicating that the Premises are for rent, lease
or sale one hundred eighty (180) days prior to the expiration of the term of
this Lease.
22. SURRENDER OF THE PREMISES. Upon the expiration or sooner of this Lease,
Tenant shall quit and surrender the Premises and all improvements thereon, in
good order and condition, ordinary wear excepted.
23. HOLDING OVER. If Tenant shall remain in possession of the Premises
after the expiration or sooner termination of this Lease, such occupancy shall,
at the sole option of Landlord, be a tenancy from month to month upon all of the
terms and provisions hereof, except that Monthly Rent shall be one hundred fifty
percent (150%) of the amount required immediately prior to the commencement of
the holdover tenancy. Said monthly tenancy may be terminated by either party
upon giving the other not less than thirty (30) days prior written notice and
such tenancy shall only be terminable at the end of a particular calendar month.
24. INDEMNITY.
a. Tenant does hereby indemnify Landlord against any claim, expense,
action, loss or liability paid, suffered or incurred as a result of any
breach by Tenant, its servants, agents, employees, customers, visitors or
licensees, of any covenant or condition contained in this Lease, as a
result of Tenant's use or occupation of the Premises or the carelessness,
neglect or improper conduct of Landlord, its servants, agents, employees,
customers, visitors or licensees or arising directly or indirectly from the
existence of Hazardous Materials if placed on the Premises by acts of
Landlord or third parties other than Tenant and its servants, agents,
employees, customers, visitors or licensees. This indemnification shall
survive the termination of this lease.
b. Landlord does hereby indemnify Tenant against any claim, expense,
action, loss or liability paid, suffered or incurred as a result of any
breach by Landlord, its servants, agents, employees, customers, visitors or
licensees, of any covenant or condition contained in this Lease, as a
result of Landlord's use, occupation or leasing of the remaining portions
of the Building or the carelessness, neglect or improper conduct of
Landlord, its servants, agents, employees, customers, visitors or licensees
or arising directly or indirectly from the existence of Hazardous
Materials, environmental conditions or ADA non-compliance conditions of the
Premises. This indemnification shall survive the termination of this lease.
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25. LANDLORD'S LIEN. As security for the payment of rent and any other
indebtedness of Tenant to Landlord arising out of this Lease, and in addition to
any statutory landlord's lien, to the extent that Tenant is not required by any
third party institutional lender ("TENANT'S LENDER") to grant to Tenant's Lender
a lien (the "PERSONAL PROPERTY LIEN") upon all personal property, furniture,
fixtures, equipment and improvements installed or placed in or upon the Premises
by or through Tenant, Tenant hereby grants to Landlord such Personal Property
Lien, PROVIDED, HOWEVER, that Landlord hereby acknowledges that Tenant may from
time to time be required by Tenant's Lenders to obtain a lien waiver from
Landlord pursuant to which Landlord waives the Personal Property Lien for the
benefit of any such Tenant's Lender and, with respect to any such waiver,
Landlord shall execute such waiver of Personal Property Lien for the benefit of
any such Tenant Lender as Tenant may from time to time request.
26. WAIVER OF RIGHT OF SUBROGATION. Landlord and Tenant hereby release and
waive, on behalf of any company, firm or individual insuring the Premises and
any appurtenances thereof, its contents and any property of Tenant, any right of
subrogation against the other which would otherwise arise in favor of any such
insurers. Landlord and Tenant agree that, to the extent that such endorsement is
available, they will each obtain for the benefit of the other a waiver of any
right of subrogation from their respective insurers.
Landlord and Tenant further agree and covenant that, with respect to any
loss or destruction of the Premises or any appurtenances thereof, or its
contents or any property of Tenant, occasioned by any act or omission of the
other, Landlord and Tenant shall first seek satisfaction therefor from available
insurance and shall proceed against the other only to the extent that said
losses or damages are not thereby fully compensated.
27. ATTORNEYS' FEES AND COSTS. In the event that any suit is instituted by
Landlord against Tenant in any way connected with this Lease, or for the
recovery of rent or possession of the Premises, Landlord shall recover from
Tenant reasonable attorneys' fees and all costs in connection with said suit,
whether or not same shall proceed to judgment.
28. NOTICES. All written communications, notices or demands required or
permitted to be given hereunder shall be deemed to have been given when a copy
of the notice is hand delivered or mailed, postage prepaid, certified or
registered mail, to the address specified herein, or to such other address as
shall be designated in writing, as provided herein.
29. MECHANICS' AND MATERIALMEN'S LIEN. Tenant shall pay or cause to be paid
all costs for work done by it or caused to be done by it on the Premises and
Tenant shall keep the Premises free and clear of all mechanics' liens and other
liens on account of work done by Tenant or persons claiming under it. Tenant
agrees to and shall indemnify and hold the Landlord harmless against liability,
loss, damages, costs, attorney's fees, and all other expenses on account of
claims of lien for work performed or materials or supplies furnished for Tenant
or persons claiming under it. If any claim of lien is perfected against the
Premises or the Building, as a result of work done by Tenant or materials
furnished to Tenant or persons claiming under Tenant, Tenant shall within
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fifteen (15) days thereafter, cause the property which is subject to the lien to
be discharged therefrom by paying such lien or by recording a surety bond. If
Tenant shall be in default in paying any charge for which a lien claim and/or
suit to foreclose the lien has been filed, Landlord may (but shall not be
required to) pay the claim and any costs, and the amount so paid, plus
reasonable attorney's fees, shall be immediately due and owing from Tenant to
Landlord.
30. TIME IS OF THE ESSENCE. Time shall be of the essence of this Lease and
each of the provisions herein.
31. CUMULATIVE REMEDIES. No remedy or election given by any provision in
this Lease shall be deemed exclusive unless so indicated but it shall, whenever
possible, be cumulative with all other remedies in law or equity, except as
otherwise herein specifically provided.
32. WAIVER. No waiver by Landlord of any provision of this Lease shall be
effective except by an instrument in writing signed by Landlord and shall not be
deemed to be a waiver of any other provision hereof or of any subsequent breach
by Tenant of the same or any other provision. If consent or approval given by
Landlord under this Lease, it shall not be deemed to be a waiver of any
requirement of Landlord's consent to or approval of any subsequent act of
Tenant, whether or not similar to the act so consented to or approved. 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 Premises and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
No employee of Landlord, or of Landlord's agents, shall have any power to accept
the keys to the Premises prior to the termination of this Lease and the delivery
of the keys to any such employee shall not operate as a termination of this
Lease or a surrender of the Premises.
33. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns, covenant and agree that, in
the event of any actual or alleged failure, breach or default hereunder by
Landlord: (1) the sole and exclusive remedy shall be against Landlord's interest
in the property wherein the Premises is located; (2) no officer or director of
Landlord shall be sued or named as a party in any suit or action (except as may
be necessary to secure jurisdiction over Landlord); (3) no service of process
shall be made against any officer or director of Landlord (except as may be
necessary to secure jurisdiction over Landlord); (4) no officer or director of
Landlord shall be required to answer or otherwise plead to any service of
process; (5) no judgment will be taken against any officer or director of
Landlord; (6) any judgment taken against any officer or director of Landlord may
be vacated and set aside at any time nunc pro tunc; (7) no writ of execution
will ever be levied against the assets of any officer or director of Landlord;
(8) the obligations of Landlord under this Lease do not constitute personal
obligations of the individual directors, officers, shareholders or agents of
Landlord, and Tenant shall not seek recourse against the individual members,
directors, officers, shareholders or agents of Landlord or any of their personal
assets for satisfaction of any liability in respect to this Lease; and (9) in
any event, Landlord's liability shall be limited to the cost to remedy, or of
repair or replacement such that Landlord shall in no case be liable for
consequential, incidental or punitive damages irrespective of upon what action
or inaction Landlord's alleged liability is based, or whether such liability is
founded upon this Lease or duties allegedly imposed by law, or whether the
liability arises from Landlord's or some third-party's negligence or misconduct.
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34. CONSTRUCTION. This Lease shall be governed, construed and enforced in
accordance with the laws of the State of Arizona. The parties hereto agree that
all provisions hereof are to be construed as covenants and agreements as though
words importing such covenants and agreements were used in each separate
sentence and clause hereof. It is agreed that if any provision of this Lease
shall be determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provision of this Lease, and all such
other provisions shall remain in full force and effect. Notwithstanding any
otherwise applicable rule of construction, the parties agree that this Lease is
the result of an arms length negotiation, such that the provisions hereof shall
not be construed for or against either party.
35. ENTIRE AGREEMENT. This Lease and the covenants and agreements herein
are and shall constitute the entire agreement between the parties. No prior
agreement or understandings, verbal or otherwise, of the parties, their agents,
servants, employees or attorneys shall be valid or enforceable unless embodied
in this Lease. Each party to this Lease hereby acknowledges and agrees that the
other party has made no warranties, representations, covenants and agreements,
express or implied, to such party other than those expressly set forth herein,
and that each party in entering into and executing this Lease has relied upon no
warranties, representations, covenants or agreements other than those expressly
set forth herein. This Lease may not be altered or amended in any respect except
by an agreement in writing executed by Landlord and Tenant.
36. BENEFITS. This Lease shall be binding upon and inure to the benefit of
the parties hereto and their representatives, successors and permitted assigns.
37. LIST OF EXHIBITS. The following exhibits are attached hereto and
incorporated herein:
Exhibit A - Depiction of Premises
Exhibit B - Copy of Tenant Plans
Exhibit C - Copy of Master Lease
Exhibit D - Copy of Avnet Waiver of Right of First Refusal for Premises.
38. MASTER LEASE.
a. This Lease shall become effective only upon execution and delivery
thereof by both parties and upon Master Landlord's written consent to the
terms of this Lease. Landlord shall use best efforts to obtain Master
Landlord's written consent at Landlord's sole cost and expense, including
payment of any reasonable fee charged by Master Landlord, in connection
with this Lease. Tenant acknowledges that this Lease is subject and
subordinate to the Master Lease, a set forth in the second paragraph of
Section 17 of the Master Lease.
b. Landlord represents and warrants to Tenant that, attached hereto as
EXHIBITS C AND D are, respectively, a true and correct copy of the Master
Lease and the waiver of Avent, Inc. to lease the Premises and that as of
the date hereof there are no Building rules and regulations under the
Master Lease.
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c. Landlord will not cause or knowingly allow to be caused any default
under the Master Lease which shall remain uncured at the expiration of the
applicable cure period set forth therein, unless such default arises out of
a failure by Tenant to perform its obligations under this Lease. Landlord
will deliver to Tenant a copy of any notice of default by Landlord under
the Master Lease within ten (10) days after receipt thereof by Landlord. In
addition, in the event Landlord is in default under the Master Lease and
such default continues beyond the expiration of the applicable grace period
set forth therein (a "CONTINUING DEFAULT"), Tenant shall thereafter have
the right (but not the obligation) to cure such Continuing Default, if
Tenant's cure of such Continuing Default is acceptable to Master Landlord
and provided that Tenant gives Landlord prior written notice of such
undertaking (PROVIDED, FURTHER, that if any such cure is of a non-monetary
default, Tenant acknowledges that Tenant's right to effect any such cure
shall be subject to the consent of the Master Landlord and that, in all
events, any such cures shall be subject to the terms of Section 19 of the
Master Lease and coterminous with the cure rights of Landlord under the
Master Lease). Finally, Tenant acknowledges that, as set forth in the
Master Landlord's consent to this Lease, the Master Landlord is willing to
attempt to provide a copy to Tenant of any written notices of Events of
Default by Master Landlord under the Master Lease that the Master Landlord
is obligated to provide to Landlord under the Master Lease, PROVIDED,
HOWEVER, that Master Landlord's failure to provide such a copy to Tenant
shall not be deemed to impair or impact the validity of any notice of
default under the Master Lease or the right of the Master Landlord to
pursue any of Master Landlord's right or remedies under the Master Lease.
d. If any event occurs as a result of any actions other than a default
by Landlord under the Master Lease which would permit Landlord to terminate
the Master Lease as it relates to the Premises, Landlord shall notify
Tenant of such occurrence and of its recommendations immediately with
regard to such termination rights (the "FIRST NOTICE"). Landlord shall
decide in its reasonable discretion whether or not to terminate the Master
Lease and shall give Tenant written notice of such decision, provided,
however, that if Tenant desires to remain in the Premises Tenant shall have
the right upon receipt of the First Notice to elect for a period of ten
(10) days following receipt of the First Notice to negotiate with the
Master Landlord for a direct lease between Master Landlord and Tenant.
After the expiration of the aforesaid ten (10) day period, if Landlord
still desires to terminate the Master Lease as it relates to the Premises,
this Lease shall terminate on the earlier of the date of termination of the
Master Lease or the date which is (30) days after Tenant's receipt of a
copy of Landlord's written notice of termination to the Master Landlord.
e. In the event of any such default or failure of performance by
Master Landlord, Landlord agrees, upon notice from Tenant, to make demand
upon Master Landlord to perform its obligations under the Master Lease and
to otherwise cooperate reasonably with Tenant as Tenant may reasonably
request, in enforcing the remedies provided in the Master Lease.
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39. BROKERS' COMMISSIONS. Each party represents to the other that it has
directly with and only with Xxx & Associates Arizona and Colliers
International(collectively, the "Brokers") (whose commissions shall be paid by
Landlord pursuant to separate agreement) as broker in connection with the
effectuation, negotiation and execution of this Lease, and each party agrees to
indemnity and hold the other harmless from all damages, liability and expense
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker or brokers or finders for any commissions or fees alleged to be due
such broker or brokers or finders in connection with its participating with the
indemnifying party in the effectuation, negotiation and execution of this Lease
in violation of such party's representation aforesaid.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
LANDLORD
SPEEDFAM-IPEC, INC.,
an Illinois corporation
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Its: Chief Financial Officer
TENANT
VODAVI COMMUNICATIONS SYSTEMS, INC.,
an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Its: President and Chief Executive
Officer
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