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Exhibit 10.7
GENERAL LEASE PROVISIONS
1. THE LEASED PREMISES
In consideration of the rent and the covenants and agreements
hereinafter made on the part of the Tenant to be paid, observed, and performed,
the Landlord has demised and leased and by these presents does demise and lease
to the Tenant, the Leased Premises described on the Facing Page attached hereto
and outlined in the Typical Plan Schedule attached hereto and forming a part
hereof. but excluding therefrom any part of the exterior face of the Building,
together with the right of the Tenant, in common with the Landlord, its other
tenants, subtenants, and invitees thereof. to the nonexclusive use of the
Building grounds and parking area.
2. DEFINITIONS
In this Lease the following terms or words shall have the
following meanings:
(a) The terms appearing on the Facing Page attached
hereto shall have the meanings stated thereupon.
(b) "Herein", "hereof", "hereunder", "hereto",
"hereinafter", and similar expressions refer to this Lease and not to
any particular paragraph, section, or other portion thereof unless the
context otherwise specifies.
(c) "Business Day" means any of the days from Monday
to Friday of each week inclusive unless such day is a holiday.
(d) "Commencement Date" means the date so designated
on the Facing Page attached hereto, or the date identified by the
Landlord when the Landlord notifies the Tenant that the Leased Premises
are ready for occupancy, whichever last occurs; however, if the
Commencement Date has not occurred within six (6) months from the date
of this Lease, then this Lease shall be null and void and Landlord and
Tenant shall be released from all further obligations under this Lease.
If the Commencement Date is different than the date designated on the
Facing Page then Landlord and Tenant shall execute a written
acknowledgment on the date of Commencement and shall attach it to this
Lease as RIDER (2).
(e) "Normal Business Hours" means the hours from
10:00 a.m. to 6:00 p.m. on Business Days.
(f) "Term" means the time in the Lease Period set
forth on the Facing Page attached hereto, to be computed from 12:00
o'clock noon on the
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Commencement Date and expiring at 12:00 o'clock noon on the last day of
such Lease Period.
(g) "Rent" as the term is used throughout this Lease
shall denote the "Base Rent", as is hereinafter defined, and all other
financial obligations of the Tenant hereunder which are herein
described as "Additional Rental" or "Additional Rent."
(h) "Real Property" as the term 'Ls used throughout
this Lease shall designate the total parcel of real property owned by
the Landlord upon which the Building and the Leased Premises are
located.
3. TERM OF LEASE
Tenant shall have the right to have and hold the Leased
Premises for and during the Term subject to the payment of the Base Rent and the
Additional Rent and the full and timely performance by Tenant of the covenants
and conditions hereinafter set forth.
TENANT COVENANTS
Tenant covenants and agrees with the Landlord as follows:
4. BASE RENT
Tenant covenants and agrees to timely pay without notice,
deduction. offset or abatement to the Landlord at the Building, or such other
address as Landlord may notify Tenant of in writing, yearly and every year
during the Term hereof, the Rent in lawful money of the United States. Base Rent
is payable in the monthly installments set forth on the Facing Page attached
hereto; Additional Rent is payable pursuant to the terms of Paragraph 7 hereof.
Rent is due and shall be paid in advance on or before the first (1st) day of
each month during the term hereof. Rent is considered late and Tenant shall be
in default if rent is received after 5:00 o'clock p.m on the fifth (5th) day of
the month. A penalty of fifty dollars ($50.00) per day will be assessed on any
suits due under the lease which are received after the fifth (5th) day of the
month. In the event that Landlord is required to post a 3-day notice for
non-payment of rent or for any other breach of the Lease, Tenant shall pay to
Landlord an administrative fee of $250.00 and attorneys fees of $250.00 (total
of $500.00) together with any other sums due as an essential part of the cure of
default. If the Term hereof commences on any day other than the first day or
expires on any day other than the last day of the month, Rent for the fraction
of a month at the commencement and at the end of the Term shall be adjusted pro
rata or a per diem basis, arid all succeeding installments of Base Rent shall be
paid on the first (1st) day of each month during the term hereof. Should Tenant
be in default, Landlord may collect $50.00 per day penalty under this provision
or 18% interest under Paragraph 36, whichever is greater. Any rent check
returned for insufficient funds shall
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constitute an event of default, and Xxxxxx must cover said check with certified
funds plus the penalty contained herein. Landlord may also seek additional
relief as provided by law.
5. COMMENCEMENT AND CONDUCT OF BUSINESS
Tenant shall commence it business in the Leased Premises on
the Commencement Date and hereafter shall operate its business in the entire
Leased Premises in accordance with Paragraph 14 in a reputable manner and in
compliance with the provisions of this Lease and the requirements of all
applicable governmental laws and during Business Days during the Term hereof,
provided that nothing in this Section shall require the Tenant to carry on
business during any period prohibited by any law or ordinance regulating or
limiting the hours during which such business may be carried on.
6. BUSINESS TAXES, ETC.
6.1 Tenant shall fully and timely pay all business and other
taxes, separately metered utility charges, other charges, rates, duties,
assessments and license fees levied, imposed, charged, or assessed against or in
respect of the Tenant's occupancy of the Leased Premises or in respect of the
personal property, trade fixtures, furniture and facilities of the Tenant or the
business or income of the Tenant on and from the Leased Premises, if any, as and
when the same become due, and shall indemnify and hold Landlord harmless from
and against all payment of such taxes, charges, rates, duties, assessments, and
license fees and against all loss, costs, charges, and expenses occasioned by or
arising from any and all such taxes, rates, duties, assessments, and license
fees.
6.2 Tenant shall promptly deliver to Landlord for inspection
at Landlord's option upon written request of Landlord, receipts for payment of
an taxes, charges, rates, duties, assessments, and licenses in respect to all
improvements, equipment, and facilities of the Tenant on or in the Leased
Premises which were due and payable up to one (1) year prior to such request and
in any event to furnish to the Landlord it requested by the Landlord, evidence
satisfactory to the Landlord of any such payments. Landlord shall have no
obligation hereunder or otherwise to make or monitor the making of such
payments.
7. ADDITIONAL RENT
7.1 Real Estate Taxes, and Operating Costs:
(a) Tenant shall pay to the Landlord as Additional
Rent both a pro rata portion of the "Real Estate Taxes", as said term
is hereinafter defined, and a portion of the Operating Costs as said
term is hereinafter defined. In determining the Tenant's share of any
such Additional Rent, such amount shall be a fraction, the numerator of
which shall be the area of the Leased Premises and the denominator of
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which shall be the total rentable space in the Building. For
purposes of this Lease, and unless and until there is physical
change in the size of the Leased Premises and/or the rentable
space in the Building, the Tenant's proportional share shall
be deemed to be JL1is_0/6 ("Tenants Proportional Share").
Tenant accepts the figures used by the Landlord for the area
of the Leased Premises, the total rentable space in the
Building, and Xxxxxx's proportional share, and waives any
right to dispute these figures in the future.
(b) Real Estate Taxes
(i) "Real Estate Taxes" shall mean and
include all general and special taxes, assessments, dues,
duties, and levies charged and levied upon or assessed against
the Building, the land upon which it is located, any
improvements situated on the Real Property, any leasehold
improvements, fixtures, installations, additions, and
equipment used in the maintenance or operation of the Building
whether owned by Landlord or Tenant, not paid directly by the
Tenant. Further, if at any time during the Term of this Lease
the method of taxation of real estate prevailing at the time
of execution hereof shall be or has been altered so as to
Cause the whole or any part of the taxes now or hereafter
levied, assessed, or imposed upon real estate to be levied,
assessed, or imposed upon Landlord wholly or partially as a
capital levy or otherwise, or on or measured by the rents
therefrom, then such new or altered taxes attributable to the
Leased Premises shall be deemed to be included within the term
"Real Estate Taxes" for purposes of this Section, save and
except that such shall not be deemed to include any increase
in said tax not attributable to the Building.
(ii) The amount of Real Estate Taxes
attributed to the Leased Premises for any year or portion of
year shall be the amount of such taxes multiplied by Xxxxxx's
Proportional Share.
(c) Operating Costs
(i) The term "Operating Costs" means the
total amounts paid or payable whether by the Landlord or
others on behalf of the Landlord in connection with the
ownership, maintenance, repair and operation of the Building,
including without limiting the generality of the foregoing,
the purchase of steam or other energy for heating or other
purposes, the amount paid or payable for all electricity
furnished by the Landlord to the Building, the amount paid or
payable for replacement of electric light bulbs, tubes and
ballasts; the amount paid or payable for all hot and cold
water (other than that paid by Tenants), the amount paid or
payable for all labor and/or wages and
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other payments including costs to Landlord or xxxxxxx'x
compensation and disability insurance, payroll taxes, welfare
and fringe benefits made to janitors, caretakers, and other
employees, contractors and subcontractors of the Landlord
(including but not limited to salary or wages of the building
manager) involved in the operation, maintenance, and repair of
the Building, managerial and administrative expenses related
to the Building, the total charges of any independent
contractors employed in the repair, care, operation,
maintenance, and cleaning of the Building, the amount paid or
payable for all supplies including all supplies and
necessities which are occasioned by everyday wear and tear,
the costs of climate control, window and exterior wall
cleaning, telephone and utility costs, the cost of accounting
services necessary to compute the rents and charges payable by
tenants of the Building, fees for management, legal,
accounting, inspection and consulting services, the cost of
guards and other protection services, the cost of locks, keys,
alarms and related security equipment, payments for general
maintenance and repairs to the plant and equipment supplying,
the amount paid for premiums for all insurance and all amounts
payable in accordance with ground leases, easements, or right
of way appurtenant to the Building. Operating Costs shall not,
however, include interest on debt, capital improvements.
capital retirement of debt, depreciation, costs properly
chargeable to capital account, and costs directly charged by
the Landlord to any tenant or tenants. The reference to
"Building" in this subparagraph (c)(i) shall include all
related facilities including interior Lease Premises,
sidewalks, grounds, elevators, and other public areas
contained in and around the Building as well as landscaping,
parking areas, and exterior walkways and areas. By setting
forth the above items which may or could be included within
Operating Costs, it is not meant to indicate or imply that all
of such activities or services will be provided by the
Landlord.
(ii) The amount of Operating Costs
attributed to the Leased Premises for any year or portion of
year shall be the amount of such Operating Costs multiplied by
Xxxxxx's Proportional Share.
(d) If only part of the first or final calendar year
is included within the Term, the amount of Real Estate and
operating Costs payable by the Tenant for such period shall be
estimated by the Landlord acting reasonably and adjusted
proportionately on a per diem basis and shall be payable upon
demand as soon as such amount has been ascertained by the
Landlord.
7.2 Payment of Additional Rent
Any Additional Rent payable by the Tenant under Section 7.1
hereof shall be paid as follows, unless otherwise provided:
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(a) During the Term, the Tenant shall pay to the
Landlord at the same time as the payment of the Base Rent, one twelfth
(1/12th) of the amount of such Additional Rentals as estimated by the
Landlord in advance acting reasonably to be due from the Tenant for a
twelve month period of time. Such estimate may be adjusted from time to
time by the Landlord as actual Real Estate Taxes and Operating Costs
become known, and the Tenant shall pay installments of Additional
Rentals according to such estimate as periodically adjusted.
(b) If the aggregate amount of such estimated
Additional Rental payments made by the Tenant in any year of the Term
should be less than the Additional Rentals due for such year of the
Term, then the Tenant shall pay to the Landlord as Additional Rental
upon demand, the amount of such deficiency. Similarly, if the aggregate
amount of such estimated Additional Rental payments made by the Tenant
in any year of the Term should be more than the Additional Rentals due
for such year of the Term, then such surplus shall be credited to
future Additional Rent due and owing in the next subsequent year.
(c) Notwithstanding the foregoing, if the Landlord is
required to pay an amount which it is entitled to collect from the
tenants of the Building more frequently than monthly, or if the
Landlord is required to prepay any such amount, the Tenant shall pay to
the Landlord its proportionate share of such amount calculated in
accordance with this Lease within ten (10) days from receipt of written
demand.
(d) The Landlord shall, within ninety (90) days after
the end of each calendar year (or as soon thereafter as possible
reasonable), provide the Tenant a statement of the actual Real Estate
Taxes and Operating Costs incurred for the previous calendar year,
certified by the Landlord as to its accuracy. If the Tenant wishes to
dispute the Landlord's determination or calculation of such expenses
for any calendar year, the Tenant shall give the Landlord written
notice of such dispute within thirty (30) days after receipt of notice
from the Landlord of the matter giving rise to the dispute. If the
Tenant does not give the Landlord such notice within such time, the
Tenant shall have waived its right to dispute such determination or
calculation. In the event the Tenant disputes any such determination or
Calculation, the Tenant shall have the right to inspect the Landlord's
accounting records at the Landlord's accounting office and if, after
such inspection, the Tenant still disputes such determination or
calculation, a certification as to the proper amount made by an
independent certified public accountant selected by the Landlord shall
be final and conclusive. The Tenant agrees to pay the costs of such
certification. If such certification reveals that the amount previously
determined and calculated by the Landlord was incorrect and improper, a
correction shall be made and either the Landlord shall promptly return
to the Tenant any overpayment or the Tenant shall promptly pay to the
Landlord any underpayment that was based on such incorrect amount.
Notwithstanding the pendency of any dispute hereunder, the
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Tenant shall make payments based upon the Landlord's determination and
calculation until such determination and calculation has been established
hereunder to be incorrect.
8. BULBS, TUBES, BALLASTS
Tenant shall make any replacement of electric light bulbs,
tubes, and ballasts in the Leased Premises throughout the term and any renewal
thereof. The Landlord, in its sole discretion may adopt a system of revamping
and reballasting periodically on a group basis in accordance with good
practice.
9. METERS
Tenant shall pay as Additional Rental, on demand, the cost of
any metering which may be required by the Landlord to measure any excess usage
of electricity, water, or other utility or energy.
10. USE OF ELECTRICITY
10.1 Tenant's use of electricity in the Leased Premises shall
be separately metered and paid by Tenant to the supplying utility of the
Landlord's discretion.
10.2 If, for any reason, electricity is not separately metered
to Tenant, Landlord shall reasonably apportion Tenant's share of electrical
usage and Tenant shall pay the cost thereof as Additional Rent on the dates for
payment of Base Rent not occurring after billing of Tenant therefore by
Landlord.
11. TENANT REPAIR
11.1 If the Building, boilers, engines, pipes, or other
apparatus, or members or elements of the Building (or any of them) used for the
purpose of climate control of the Building, or if the water pipes, drainage
pipes electrical lighting, or other equipment of the Building or the roof or
outside walls of the Building or Real Property of Landlord become damaged or are
destroyed through any act or omission of the Tenant, its servants, agents,
employees, or its invitees, then the cost of the necessary repairs,
replacements, or alterations, shall be borne by the Tenant who shall pay such
cost to Landlord within ten (10) days from receipt of written demand thereof,
except to the extent such costs are reimbursed by insurance.
11.2 Tenant shall keep the Leased Premises in as good order,
condition, and repair as when they were entered upon. Tenant shall be
responsible for the cost of any repair, replacement or alteration of ceiling
tile, water pipes, sinks, toilets, plumbing, drainage pipes, electrical wiring,
electrical outlets, lighting, climate control, doors, locks (interior and
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exterior), door hardware, interior walls and flooring, roof if penetrated by
tenant as set forth in Section 30 or other portions of the Building or Real
Property of Landlord. If Tenant fails to keep the Leased Premises in such good
order, condition, and repair as required hereunder to the satisfaction of
Landlord, Landlord may restore the Leased Premises to such good order and
condition and make such repairs without liability to Tenant for any loss or
damage that may accrue to Tenant's property or business by reason thereof, and
upon completion thereof. Tenant shall pay to Landlord the costs of restoring the
Leased Premises to such good order and condition and of the making of such
repairs, within ten (10) days from receipt of written demand thereof.
11.3 Tenant shall deliver at the expiration of the Term hereof
or sooner upon termination of the Term, the Leased Premises in the same
condition as received except for reasonable wear and tear, and cause to be
removed at Tenant's expense furniture and equipment belonging to Tenant, signs,
notices, displays, and the like from the Leased Premises and repair any damage
caused by such removal.
11.4 In the event Landlord is responsible for cleaning service
under this Lease, Tenant shall leave the Leased Premises at the end of each
Business Day in a reasonably tidy condition for the purpose of allowing the
cleaning service to perform adequately.
11.5 Landlord reserves the right to enter into contracts for
preventive maintenance for all climate control and Tenant shall be responsible
for said costs.
12. ASSIGNMENT AND SUBLETTING
12.1 Tenant shall not permit any part of the Leased Premises
to be used or occupied by any persons other than the Tenant, any subtenants
permitted under Section 12.2, and the employees of the Tenant and any such
permitted subtenant. or permit any part of the Leased Premises to be used or
occupied by any licensee or concessionaire, or permit any persons to be upon the
Leased Premises other than the Tenant, such permitted subtenants, and their
respective employees, customers, and others having the lawful business with
them.
12.2 Tenant shall not assign or sublet or part with the
possession of all or part of the Leased Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld; provided,
however, that the use of the Premises by the sublessee or assignee shall be
substantially the same as the use permitted by the Tenant, and provided that the
Tenant shall: submit in writing to Landlord (a) the name and legal composition
of the proposed subtenant or assignee; (b) the nature of the business proposed
to be carried on in the Leased Premises; (c) the terms and provisions of the
proposed sublease; (d) such reasonable financial and other information as the
Landlord may request concerning the proposed subtenant or assignee; (e)
assurances, adequate to the Landlord, of the future
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performance by the proposed subtenant or assignee under the Lease; (f) a payment
of $500.00 to the Landlord to defray expense of Landlord in reviewing the
aforementioned material, (g) payment of all Landlord's legal fees and related
expenses incurred as a result of the assignment or subletting. Any such consent
to any assignment or subletting shall not relieve the Tenant from its
obligations for the payment of all rental due hereunder and for the full and
faithful observance and performance of the covenants, terms and conditions
herein contained. No term of assignment or subletting shall extend beyond the
primary term of the lease, and any option periods under this Lease shall
terminate with respect to any the Tenant and any assignee or sublessee. Consent
of the Landlord to an assignment or subletting shall not in any way be construed
to relieve the Tenant from obtaining the consent of the Landlord to any further
assignment or subletting, and shall not bind Landlord to provide any services or
benefits to subtenant that Xxxxxx had provided or committed to provide in
writing or otherwise. Any violation of this subsection shall be a non-curable
default, which allows the Landlord the right to possession of the Premises and
other rights of default against Tenant or anyone else occupying the Premises as
set forth in Section 35, despite efforts by Xxxxxx to cure. Any rent collected
by Xxxxxx from a sublessee in excess of the rate of rent under the Lease shall
be the property of the Landlord. Landlord shall have the option, in its sole
discretion, to demand that a sublessee pay rent directly to the Landlord. Any
sublease shall be on a sublease form provided by the Landlord.
12.3 If the Tenant is an entity other than an individual, the
transfer of an interest in more than fifty percent (50%) of such entity in
more than fifty percent (50%) of any type of equity security of such entity;
i.e., preferred stock, any class of common stock) shall constitute an assignment
for purposes of this Section which assignment shall require the same approval
and be subject to the same limitations pursuant to Section 12.2 as any other
assignment. The rights and obligations described in this Section 12.3 shall be
applicable regardless of whether the change in control occurs at one time or as
a cumulative result of several changes in ownership. The Tenant shall, upon
request of the Landlord, make available to the Landlord for inspection or
copying or both, all books and records of the Tenant which alone or with other
data show the applicability or inapplicability of this Section 12.3.
12.4 The proposed subtenant or assignee shall have at least
three (3) years of experience in the management and/or operation of the business
contemplated in the sublease or assignment of the Premises. Tenant shall provide
satisfactory evidence of this experience to the Landlord. Or, in lieu of such
actual experience, the proposed subtenant or assignee shall provide satisfactory
evidence to Landlord that the proposed subtenant or assignee will hire as
employees or independent contractor personnel competent to operate the business
contemplated in the sublease or assignment of the Premises.
12.5 If any interest holder of the Tenant shall fail or refuse
to furnish to the Landlord information or data requested by Landlord, verified
by the affidavit of such interest
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holder or other credible person, which data alone or with other data show the
applicability of Section 12.3, then such failure shall constitute an event of
default under this Lease.
13. MASTER DECLARATION OF PROTECTIVE COVENANTS
Tenant and employees and all persons visiting or doing
business with the Tenant in the Leased Premises shall be bound by and shall
observe the Master Declaration of Protective Covenants.
14. USE OF LEASED PREMISES
14.1 Except as expressly permitted by prior written consent of
the Landlord, the Leased Premises shall not be used other than as set forth on
Facing Page of this Lease, which use shall be non-exclusive. Landlord makes no
representation or warranty to the Tenant regarding the occupancy or use of any
lease space owned by the Landlord or leased to any other Tenant. All use of the
Leased Premises shall comply with the terms of this Lease and all applicable
laws, ordinances, regulations. or other governmental ordinances from time to
time in existence. Tenant shall not have more than one (1) person per two
hundred and fifty (250) square feet of useable space occupying the premises.
14.2 Tenant agrees that it will not keep, use, sell or offer
for sale in or upon the Leased Premises any articles, which may be prohibited by
any insurance policy in force time to time covering the Building. In the event
the Tenant's occupancy or conduct of business in or on the Leased Premises,
whether or not the Landlord has consented to the same, results in any increase
in premiums for the insurance carried from time to time by the Landlord with
respect to the Building, the Tenant shall pay any such increase in premiums as
Additional Rental within ten (10) days after bills for such additional premiums
shall be rendered by the Landlord in determining whether increased premiums are
a result of the Tenant's use or occupancy of the Leased Premises. A schedule
issued by the organization computing the insurance rate shall be conclusive
evidence of the several items and charges which make up such rate. The Tenant
shall comply with all reasonable requirements of the insurance authority or of
any insurer now or hereafter in effect relating to the Leased Premises.
15. TENANT'S INSURANCE
15.1 Landlord shall maintain fire and extended coverage
insurance on the Building and the Leased Premises in such amounts as Landlord
shall deem reasonable. Such insurance shall be maintained at the expense of
Landlord (but assessed to Tenant as a part of the Operational Costs), and
payments for losses thereunder shall be made solely to Landlord or the
mortgagees of Landlord as their interest shall appear. Tenant shall maintain at
its expense, in an amount equal to full replacement costs, fire and extended
coverage insurance
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on all of its personal property, including removable trade fixtures, located in
the Leased Premises. Tenant shall maintain insurance coverage for business
interruption, including relocation costs in the event of partial or total
destruction of the Premises. All Tenant's insurance must be in place and proof
of insurance provided to Landlord prior to Tenant's possession of the Premises.
Should Tenant's use cause the Landlord's insurance premiums to increase. Tenant
shall be solely responsible for the increase in the premium.
15.2 Tenant shall, at its sole Cost and expense, procure and
maintain through the term of this Lease, comprehensive general liability
insurance against claims for bodily injury or death and property damage
occurring in or upon or resulting from the Leased Premises, in standard form and
with such insurance company or companies as may be acceptable to Landlord, such
insurance to afford immediate protection, to the limit of not less than
$1,000,000.00 in respect of any one accident or occurrence, and to the limit of
not less than $100.000.00 for property damage, with not more than $5,000.00
deductible. Such comprehensive general liability Insurance shall name the
Landlord as an additional insured and shall contain blanket contractual
liability coverage which insures contractual liability under the indemnification
of Landlord by Tenant set forth in this Lease (but such coverage or the amount
thereof shall in no way limit such indemnification). Tenant shall maintain with
respect to each policy or agreement evidencing such comprehensive general
liability insurance and each policy or agreement evidencing the insurance
required pursuant to Section 15(l) above, such endorsements as may be required
by Landlord and shall at all times deliver to and maintain with Landlord a
certificate with respect to such insurance in form satisfactory to Landlord and
the mortgagees of Landlord. Tenant shall obtain a written obligation on the part
of each insurance company to notify Landlord at least ten days prior to
cancellation or modification of such insurance. Such policies or duly executed
certificates of insurance relating thereto shall be promptly delivered to
Landlord and renewals thereof as required shall be delivered to Landlord at
least thirty (30) days prior to the expiration of the respective policy terms.
If Tenant fails to comply with the foregoing requirements relating to insurance,
Landlord may obtain such insurance and Tenant shall pay to Landlord on demand
the premium cost thereof, together with interest thereon from the date of
payment by Landlord until repaid by Tenant at the rate of eighteen percent (18%)
per annum. Failure to comply with any provision of Paragraph 15 by the Tenant
shall constitute an event of substantial default justifying eviction of the
Tenant.
16. CANCELLATION OF INSURANCE
It any insurance policy upon the Building or any part thereof
shall be canceled or cancellation shall be threatened or the coverage thereunder
reduced or threatened to be reduced in any way by reason of the use or
occupation of the Leased Premises or any part thereof by the Tenant or by any
assignee or subtenant of the Tenant or by anyone permitted by the Tenant to be
upon the Leased Premises, and if the Tenant fails to remedy the condition giving
rise to Cancellation, threatened cancellation, or reduction of coverage within
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twenty-four (24) hours after notice, the Landlord may, at its option, enter upon
the Leased Premises and attempt to remedy such condition and the Tenant shall
pay the cost thereof to Landlord within ten (10) days from receipt of written
demand therefor, Landlord shall not be deemed to be liable for any damage or
injury caused to any property of the Tenant or of others located on the Leased
Premises as a result of such entry. After such ten (10) day period, interest on
such cost shall accrue at the rate of eighteen percent (18%) per annum. In the
event that the Landlord shall be unable to remedy such condition, then Landlord
shall have all of the remedies provided for in the Lease in the event of a
default by Xxxxxx. Notwithstanding the foregoing provisions of this Section 16,
if Xxxxxx fails to remedy as aforesaid, Tenant shall be in default of its
obligation hereunder and Landlord shall have no obligation to attempt to remedy.
17. OBSERVANCE OF LAW
Tenant shall comply with all provisions of law in effect
during the Term and any renewal terms, or while otherwise in possession of the
Premises, including without limitation, federal, state, county and city laws.
zoning requirements, licensing requirements, any other ordinances, and
regulations and any other governmental, quasi-governmental or municipal
regulations which relate to the partitioning, equipment operation, alteration,
occupancy and use of the Leased Premises, and to the making of any repairs,
replacements, alterations, additions, changes, substitutions, or improvements of
or to the Leased Premises including signage of any kind, whether located on or
off the Premises. Moreover, the Tenant shall comply with all police, fire, and
sanitary regulations imposed by any federal, State, county or municipal
authorities, or made by insurance underwriters, and to observe and obey all
governmental and municipal regulations and other requirements governing the
conduct of any business conducted in the Leased Premises during the Term and any
renewal terms.
18. WASTE AND NUISANCE
Tenant shall not commit, suffer, or permit any waste or damage
or disfiguration or injury to the Leased Premises or the Real Property of
Landlord or common areas in the Building or the fixtures and equipment located
therein or thereon, or permit or suffer any overloading of the electrical
systems or telephone systems Or 14VAC systems, or overloading of the floors
thereof and shall not place therein any safe, heavy business machinery,
computers, data processing machines, or other heaving things without first
obtaining the consent in writing of the Landlord and, if requested, by
Xxxxxxxx's superintending architect, and not use or permit to be used any part
of the Leased Premises for any dangerous, noxious or offensive trade or
business, and shall not cause or permit any nuisance, noise, or action in, at or
on the Leased Premises. Landlord, in its sole discretion, shall determine what
constitutes waste or nuisance under this Section. Landlord shall not be liable
to Tenant for waste or nuisance committed by any other tenant on the Real
Property. If
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this should occur, Xxxxxx's sole remedy is against the other tenant committing
waste or nuisance.
19. ENTRY BY LANDLORD
Tenant agrees to and shall permit the Landlord, its servants
or agents to enter upon the Leased Premises at any time and from time to time
for the purpose of inspecting and of making repairs, alterations, or
improvements to the Leased Premises or to the Building, or for the purpose of
having access to the under-floor ducts, or to the access panels to mechanical
shafts (which the Tenant agrees not to obstruct), and the Tenant shall not be
entitled to compensation for any inconvenience, nuisance or discomfort
occasioned thereby. The Landlord shall also have the right of entry to remedy
any condition which Landlord, in its reasonable discretion, believes may cause
cancellation or reduction of any insurance maintained by Landlord on the
Building. The Landlord shall have the right to enter the Leased Premises in
order to check, calibrate, adjust and balance controls and other parts of the
heating, ventilating, and climate control system at any time. The Landlord shall
attempt to proceed hereunder after reasonable notice has been given to Tenant,
if possible, and in such manner as to minimize interference with the Tenant's
use and enjoyment of the Leased Premises. For the purpose of this Section and
for all other purposes set forth in this Lease, Landlord shall have and retain a
key with which to unlock all doors in, upon and about the Leased Premises and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency, in order to obtain entry to the
Leased Premises. Tenant shall not change exterior or interior door locks without
prior written permission of Landlord. Tenant shall provide Landlord with keys to
any new locks.
20. EXISTING PREMISES
Tenant shall permit the Landlord or its agents to exhibit and
show the Leased Premises to prospective tenants during normal Business Hours of
the last six (6) months of the Term or any renewal thereof, or if Tenant is in
default of any term of the Lease. Tenant shall not hold the Landlord liable for
any damages resulting from such entry, absent gross negligence on the part of
the Landlord.
21. ALTERATIONS
21.1 In the event Tenant desires to make any alterations to
any portion of the Building, Real Property or the Leased Premises, including
alterations to accommodate Tenant's for needs for extra services in addition to
those provided by the Landlord under Section 29, unless the Tenant has supplied
the Landlord with a list of additional services necessary to meet Tenant's
requirements, and said list is attached and incorporated into this lease at the
date of execution by Landlord, Tenant is deemed to have accepted the existing
services to the Leased Premises as sufficient. Any additional services required
by the Tenant
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shall be deemed an Alteration to be paid by the Tenant under Section 21 of the
Lease. Tenant shall give written notice of the proposed alterations to Landlord
and shall not proceed with work on the alterations without Xxxxxxxx's prior
written consent (which consent in the sole and absolute discretion of Landlord
may be withheld). For purposes of this Paragraph 21 "material alterations" shall
mean any alterations that affect the exterior, structure, or mechanical
components of the Building, or modify the basic utility and function of the
Building. Any material alterations shall at once become the property of the
Landlord and shall be surrendered to the Landlord upon termination of the Lease.
Any breach of the terms of this section shall be a non-curable event of default.
21.2 No alterations shall be commenced until the Tenant shall
have procured and paid for, so far as the same may be required from time to
time, all permits and authorizations of all municipal departments and
governmental subdivisions having jurisdiction. Landlord shall in its sole and
absolute discretion have the right to require, prior to commencement of such
alterations, a letter of credit, bond or other satisfactory financial instrument
assuring faithful performance and lien free completion of such alterations.
21.3 Any alterations shall be made within a reasonable time
and in a good and workmanlike manner and in compliance with all applicable
permits and authorizations and building and zoning laws and with all other laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments, departments, commissions, boards and officers.
21.4 In no event shall Tenant, by reason of such alterations,
be entitled to any abatement, allowance, reduction or suspension of the Rent and
other charges herein reserved of required to be paid hereunder, nor shall
Tenant, by reason thereof, be released of or from any other obligations imposed
upon Tenant under this Lease.
21.5 Landlord shall have no responsibility to Tenant or to any
contractor, subcontractor, supplier, materialman, xxxxxxx, or other person,
firm, or corporation who shall engage or participate in any alterations, and
Landlord shall be entitled to post notices of nonliability on the Leased
Premises. If any lens for labor and materials supplied or claimed to have been
supplied to the Leased Premises shall be filed, Tenant shall within fifteen (15)
days of the filing of such lien discharge such lien or furnish a bond, a letter
of credit or title insurance protection to Landlord which in the sole and
absolute discretion of Landlord affords its sufficient protection during
Xxxxxx's timely and good faith contesting of such liens. Tenant shall indemnify
and hold Landlord harmless against any liability, loss, damage, cost or expense,
including attorneys fees, on account of such liens.
21.6 The Tenant may remove from the Leased Premises any
fixtures installed by the Tenant, as well as those of its office supplies and
movable office furniture and equipment which are not attached to the Building,
provided: (i) such removal is made prior to
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the termination of the Term of this Lease; (ii) the Tenant is not in default of
any obligation or covenant under this Lease at the time of such removal; and
(iii) the Tenant promptly repairs all damage caused by such removal so that the
Leased Premises (where such items shall have been located) shall be placed in
the condition of such Leased Premises at the Inception of this Lease, subject to
reasonable deterioration and wear and tear. Additionally, if the Landlord so
requests in writing, the Tenant will, prior to the termination of this Lease,
remove any and all alterations, additions, fixtures, equipment and property
placed or installed by it in the Leased Premises and will repair any damage
caused by such removal to the condition at the inception of this Lease.
reasonable deterioration and wear and tear excepted. If the Tenant does not
elect or is not required to remove such alterations, additions fixtures and
equipment, such property shall become the property of the Landlord and shall
remain upon and be surrendered with the Leased Premises as a part thereof at the
termination of this Lease, the Tenant hereby waiving all rights to any payment
or compensation therefore.
22. GLASS
Tenant shall pay on demand the cost of replacement with as
good quality and size of any glass broken on the Leased Premises including
outside windows and doors of the perimeter of the Leased Premises (including
perimeter windows in the exterior walls) during the continuance of this Lease,
unless the glass shall be broken by the Landlord, its servants, employees or
agents acting on its behalf.
23. SIGNS, DRAPES, SHUTTERS AND BANNERS
23.1 Tenant shall not place or permit to be placed in or upon
the Leased Premises where visible from the outside of the Building, or outside
the Leased Premises, any signs, notices, drapes, shutters, blinds or displays of
any type without the prior written consent of Landlord, which consent shall not
be unreasonably withheld.
23.2 Landlord reserves the right in Landlord's sole discretion
to place and locate on any roof or exterior of the Building such signs, notices,
displays, and, similar items as Landlord deems appropriate in the proper
operation of the Building.
24. NAME OF BUILDING
Tenant shall not refer to the Building by any name other than
that designated from time to time by the Landlord. nor use such name for any
purpose other than that of the business address of the Building assigned to it
by the Landlord.
25. SUBORDINATION AND ATTORNMENT
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25.1 At Landlord's option, this Lease shall be subject to and
subordinate to all mortgage (including any deed of trust and mortgage
securing bonds and all indentures supplemental thereto) and to all underlying,
superior, ground or land leases which may now or hereafter encumber the Real
Property of which the Leased Premises are a part, and all renewals,
modifications, consolidations, replacements and extensions thereof of such
mortgages and leases which may now or hereafter affect the Leased Premises or
any part thereof. The Tenant hereby constitutes and appoints the Landlord its
agent and attorney, which power of attorney is coupled with an interest, for the
purpose of executing any subordination, acknowledgment, or agreement required
by a mortgagee, lender or lessor of Landlord.
25.2 The Tenant agrees that in the event that any holder of
any mortgage, indenture, deed of trust, or other encumbrance encumbering any
part of the Real Property becomes mortgagee in possession of the Leased
Premises, the Tenant will pay to such mortgagee all Rent subsequently payable
hereunder. Further, the Tenant agrees that in the event of the enforcement by
the trustee or the beneficiary under or holder or owner of any such mortgage,
deed of trust, land or ground lease of the remedies provided for by law or by
such mortgage, deed of trust, land or ground lease, the Tenant will, upon
request of any person or party succeeding to the interest of the Landlord as a
result of such enforcement, automatically become the tenant of and attorns to
such successor-in-interest without changing the terms or provisions of this
Lease. Upon request by such successor-in-interest and without cost to the
Landlord or such successor-in-interest, the Tenant shall execute, acknowledge
and deliver an instrument or instruments confirming the attornment herein
provided for.
26. ACCEPTANCE OF PREMISES
26.1 Taking possession of the Leased Premises by Tenant shall
be conclusive evidence as against Tenant that the Leased Premises were in good
and satisfactory condition when possession was taken and acknowledgment of
completion in full accordance with the terms of this Lease.
26.2 Tenant agrees that there is no promise, representation,
or undertaking by or binding upon the Landlord with respect to any alteration,
remodeling, or redecorating of or installation of equipment or fixtures in the
Leased Premises, except such, if any, as were expressly set forth in this Lease
or the Typical Plan Schedule attached hereto.
26.3 Landlord reserves the right to relocate the Tenant from
the existing premises to a substitute premises within the property (Landlord's
building, shopping center or complex as the case may be) selected by the
Landlord. The aforesaid right to relocate shall be exercisable at any time
during the term or option period by delivering written notice of LANDLORD'S
intention not less than ninety (90) days In advance. Tenant shall notify
Landlord via certified mail within thirty (30) days of notice of its intent of
acceptance or
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rejection. Should Tenant notify Landlord of rejection of premises selected by
Landlord, Tenant may terminate this Lease Agreement and vacate prior to the end
of the ninety (90) day notice period provided by Landlord. Tenant's right of
termination in this section is not applicable in situations of fire or other
cause set forth in Section 31.
27. ESTOPPEL CERTIFICATES
Xxxxxx agrees that it shall at any time and from time to time
upon not less than five (5) days' prior notice execute and deliver to the
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the modifications and that the
same is in full force and effect as modified), the amount of the annual rental
then being paid hereunder, the dates to which the rent, by installment or
otherwise, and other charges hereunder have been paid. and whether or not there
is any existing default on the part of the Landlord of which the Tenant has
knowledge and such other Information reasonably required by Landlord or its
mortgagees or any other party with whom Xxxxxxxx is dealing. Any such statement
may be relied upon conclusively by any such party. Tenant's failure to deliver
such statements within such time shall be conclusive upon the Tenant that this
Lease is in full force and effect, except as and to the extent any modification
has been represented by Landlord, and that there are no uncured defaults in
Landlord's performance, and that not more than one (1) month's rent has been
paid in advance.
LANDLORD'S COVENANTS
Landlord covenants and agrees with the Tenant as follows:
28. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant
paying rent and other monetary sums due under the lease, performing its
covenants and conditions under the Lease, Tenant shall and may peaceably and
quietly have, hold and enjoy the Leased Premises for the term, subject, however,
to the terms and limitations of the Lease and of any of the ground leases,
mortgages, or deeds of trust referred to in Section 25, and the limitations of
Landlord's liability for acts of other tenants and third parties contained in
Sections 18 and 33.
29. SERVICES
29.1 Landlord agrees to provide, at its cost, utility services
such as electrical, gas, water and sewer), HVAC services (such as heating,
ventilation and cooling), and telephone connections into the Building in such
capacity as shall be sufficient to meet building design requirements. Tenant
shall be responsible for assessing its needs and arranging for procurement of
additional services to meet its needs prior to occupancy. In this
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regard, Tenant represents that it has no requirements in excess of those
provided in the building design for utility services and telephone capacity
relating to the operations that Tenant intends to conduct in the Leased Premises
as permitted in accordance with the terms of this Lease. Unless otherwise
treated as part of the Tenant Finish items to be installed as part of this
Lease, all connection charges and all outlets, risers, wiring, piping, duct work
or other means of distribution of such services within the Leased Premises
unless shown on the Exhibits hereto shall be supplied by Tenant at Tenant's sole
expense. Tenant covenants and agrees that at all times its use of any such
services shall never exceed the capacity of the mains, feeders, ducts, and
conduits bringing the utility services to the Building; provided, however, that
Tenant may increase the capacity of the mains, feeders, ducts and conduits
aforementioned if Tenant pays for and performs all necessary work therefore
subject to Landlord's prior written approval, which approval shall not be
unreasonably withheld. Tenant shall be solely responsible for procuring of
telephone equipment and services. Tenant shall pay all charges incurred by it
for any utility services used on the Leased Premises and any maintenance charges
for utilities and shall furnish all electric light bulbs and tubes. Landlord
shall not be liable for any interruption or failure of utility services on the
Leased Premises, unless due to the affirmative or negligent acts of Landlord.
29.2 Provided that the Tenant has no special or extraordinary
requirements, the Landlord shall contract to provide air conditioning and
heating for the occupied portion of the Leased Premises during the Term, at such
temperatures and in such amounts as may be reasonably required, in the
Landlord's sole judgment, for comfortable use and occupancy under normal office
conditions, from 7:00 a.m. to 6:00 p.m. on Monday through Friday, and 7:00 a.m.
to 12:00 noon on Saturday, but not on Sundays or Holidays observed by the
Building. Tenant shall pay for the costs of said climate control services under
Paragraph 7.1.c. or Paragraph 11 as may be applicable. In the event the Tenant
has special requirements for air conditioning and heating, Tenant shall pay for
the cost to provide air conditioning and heating at such temperatures and in
such amounts as may be reasonably required as an alteration under Section 21 of
the Lease. Alternatively, at Xxxxxxxx's sole discretion, the Landlord may treat
said costs as Operating Costs under Section 7.1(c) of the Lease.
29.3 No slowdown, interruption. stoppage, or malfunction of
any services identified in Section 29 shall constitute an eviction or
disturbance of the Tenant's use and possession of the Leased Premises or the
Building or a breach by the Landlord of any of its obligations under this Lease,
nor tender the Landlord liable for damages or entitle the Tenant to be relieved
from any of its obligations under this Lease (including the obligation to pay
Rent), nor grant the Tenant any right of setoff or recoupment. In no event shall
the Landlord be liable for damages to persons or property, or be in default
under this Lease, as a result of such slowdown, interruption, stoppage, or
malfunction. In the event of any such interruption, however, the Landlord shall
use reasonable diligence to restore such service. The Tenant agrees that if any
payment of Rent shall remain unpaid for more than ten (10) days after it shall
become due, the Landlord may, without notice to the Tenant, discontinue
furnishing any
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or all of such services until all arrearages of Rent have been paid in full, and
the Landlord shall not be liable for damages to persons or property for any such
discontinuance or consequential damages resulting therefrom, nor shall such
discontinuance in any way be construed as an eviction or constructive eviction
of the Tenant or cause an abatement of Rent or operate to release the Tenant
from any of the Tenant's obligations under this Lease.
30. REPAIR AND MAINTENANCE BY LANDLORD
Subject to the other provisions of this Lease imposing
obligations therefor upon the Tenant, Including but not limited to Tenant Repair
in Section 11, the Landlord shall as necessary or when required by governmental
authority, repair, replace and maintain the external and structural parts of the
Building, to include the roof provided that the roof has not been penetrated by
Tenant, and grounds which do not comprise a part of the Leased Premises and are
not leased to others and shall perform such repairs, replacements and
maintenance with reasonable dispatch, in a good and workmanlike manner. The
Landlord shall not be liable for any damages direct or indirect or consequential
or for damages for personal discomfort, illness, or inconvenience of the Tenant
or the Tenant's servants, clerks, employees, invitees, or other persons by
reason of failure to repair such equipment facilities or systems or reasonable
delays in the performance of such repairs, replacements, and maintenance, unless
caused by the deliberate act or omissions or the negligence of the Landlord, its
servants, agents or employees.
31. FIRES, ETC.
If the Building shall be partially damaged by fire or other
cause not resulting from the act or omission of Tenant, Tenant's employees,
agents, contractors, customers, licensees or invitees, the damages shall be
repaired by and at the expense of Landlord, and the Rent due hereunder shall be
apportioned according to the part of the Leased Premises which is usable by
Tenant until such repairs are made. If such partial damage is due to the action
or omission of Tenant or Tenant's employees, agents, contractors, licensees, or
Tenant's customers or invitees who Tenant negligently leaves in a position to
cause such partial damage, there shall be no apportionment or abatement of Rent
due hereunder by Xxxxxx, and the debris, if any, shall be removed by and at the
expense of Tenant. No penalty shall accrue for reasonable delay which may arise
by reason of adjustment of fire insurance on the part of Landlord or Tenant, for
reasonable delay on account of shortages of labor or materials, acts of God, or
any other cause beyond Landlord's control, Landlord shall not be obligated to
restore fixtures, improvements, or other property of Tenant.
Total Destruction. If the Building should be totally destroyed
by fire, tornado, or other casualty, or if it should be so damaged that
rebuilding or repairs to the Leased Premises cannot be completed or commenced
within one hundred eighty (180) days after the date upon which Tenant is
notified by Landlord of such damage (or within one hundred
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eighty (180) days after the date on which Landlord otherwise becomes aware of
such damage), this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage. Notwithstanding the above termination provisions, the one hundred
eighty day period for completion of repairs or rebuilding may be extended by the
Landlord in its sole discretion in the event that the processing of insurance
claim or claims prevents the completion of rebuilding or repairs within one
hundred eighty days.
32. CONDEMNATION
If all or any part of or interest in the Leased Premises shall
be taken as a result of the exercise of the power of, eminent domain or purchase
in lieu thereof, this Lease shall terminate as to the part so taken as of the
date of taking. If a part of or interest in the Leased Premises, or if a
substantial portion of the Building is so taken, either Landlord or Tenant shall
have the right to terminate this Lease as to the balance of the Leased Premises
by written notice to the other within thirty (30) days after the date of taking;
provided, however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Leased Premises or Building taken
shall be of such extent and nature as to substantially handicap, impede, or
impair Xxxxxx's use of the Leased Premises, or the balance of the Leased
Premises remaining, for the purposes for which they were leased, in the event of
any taking, Landlord shall be entitled to any and all compensation, damages,
income, rent and awards with respect thereto except for an award, if any,
specified by the condemning authority for the fixtures and other property that
Tenant has the right to remove upon termination of this Lease and the value of
the unexpired Lease term if any. Tenant shall have no claim against Landlord for
the value of any unexpired term. In the event of a partial taking of the Leased
Premises which does not result in a termination of this Lease, the Rent
thereafter to be paid shall be equitably reduced. Termination as provided herein
with respect to a total or partial taking shall be without prejudice to the
rights of either Landlord or Tenant to recover compensation and damages caused
by condemnation from the condemner as hereinafter provided. The rights and
obligations by Xxxxxxxx and Tenant with respect to a taking or partial taking
shall be provided herein (any statute, principle of law or rule of equity to the
contrary notwithstanding), and each of the parties agree to cooperate with the
other and to do everything necessary to effect the results herein described.
Landlord and Xxxxxx shall each have the right to claim separate awards
consistent with the terms of this Lease or to litigate the matter of the taking
and damages or awards. In the event of a taking or partial taking during the
term of the Lease, all sums awarded as compensation for the loss or damage to
the property or the Building, fixtures and permanently attached equipment.
except as set forth above, shall be awarded to Landlord; and all sums awarded as
compensation for loss or damage to Tenant's equipment and other personal
property and as compensation for loss of or detriment to the business of Tenant
upon the Leased Premises and for loss of anticipated profits of such business
shall be awarded to Tenant. If, under the laws, rules or procedures regulating
any such taking or partial taking, it shall not be possible for the parties to
obtain in
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such proceedings segregation of awards as herein above prescribed, then the
entire award or the aggregate of the awards as may be adjudged shall be paid to
Landlord. The foregoing provisions of this paragraph are subject to the terms of
any deed of trust conveying the Leased Premises, the Building, or Real Property
now or hereafter in existence, and to which Landlord is a party.
33. LOSS AND DAMAGE
Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to person or damage to property in or about the Leased Premises caused by the
negligence or affirmative acts of Tenant, or any other tenant or third party on
the Real Property, its agents, servants, or employees, or of any other person
entering upon the Leased Premises under express or implied invitation of Tenant,
or caused by the Building or any obligation of Tenant to maintain the Building,
or caused by leakage of gas, oil, water or steam, or by electricity emanating
from the Building, and Xxxxxx agrees to indemnify Landlord and hold it harmless
from any and all loss, expense, or claims, including attorneys' fees, arising
out of such damage or injury.
34. DELAYS
Whenever and to the extent that the Landlord shall be unable
to fulfill or shall be delayed or restricted in the fulfillment of any
obligation hereunder in respect to the supply or provision Of any service or
utility or the doing of any work, or the making of any repairs by reason of
being unable to obtain the material goods, equipment, service, utility,
insurance proceeds or labor required to enable it to fulfill such obligation or
by reason of any statute, law, or any regulation or order passed or made
pursuant thereto or by reason of the order passed or made pursuant thereto or by
reason of the order of direction of any administrator, controller, or board or
any governmental department or officer or other authority, or by reason of not
being able to obtain any permission or authority required thereby or by reason
of any other cause beyond its control whether of the foregoing character or not,
including any delay caused by the processing of insurance claims, the Landlord
shall be entitled to extend the time for fulfillment of such obligation by a
time equal to the duration of such delay or restriction, and the Tenant shall
not be entitled to compensation for any inconvenience, nuisance or discomfort
thereby occasioned.
35. DEFAULT
35.1 The following events shall be deemed to be events of
default by Tenant under this Lease:
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(a) The failure of Tenant to timely and fully pay any
installment of Rent or other charge or money obligation herein required
to be paid by Xxxxxx. Rent is due and shall be paid in advance on the
first (1st) day of each month during the Term hereof, and Tenant shall
be in default as set forth in Section 4.
(b) The failure of Tenant to perform, or if not
immediately curable, to commence performance of (and diligently pursue
performance thereafter), any one or more of its other covenants under
this Lease within three (3) days after written notice to Tenant
specifying the covenant or covenants Tenant has not performed.
(c) Xxxxxx becomes insolvent, or makes a transfer in
fraud of creditors, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts as they
become due.
(d) The attachment, seizure, levy upon or taking of
possession by any creditor, receiver, or custodian of any portion of
the property of Tenant.
(e) The instituting of proceedings in a court of
competent jurisdiction for the involuntary bankruptcy arrangement,
reorganization, liquidation, or dissolution of Tenant under the U.S.
Bankruptcy Code (as now or hereafter in effect) or any state bankruptcy
or insolvency act or for its adjudication as a bankrupt or insolvent or
for the appointment of a receiver of the property of Tenant, and said
proceedings are not dismissed or any receiver, trustee, or liquidator
appointed herein is not discharged within sixty (60) days after the
institution of said proceedings of Xxxxxx and said proceedings are not
dismissed.
(f) Any change occurs in the financial condition of
Tenant or any guarantor, which Landlord considers materially or
significantly adverse.
(g) The instituting of proceedings for the voluntary
bankruptcy arrangement, reorganization, liquidation, or dissolution of
Tenant under the U.S. Bankruptcy Code (as now or hereafter in effect)
or any state bankruptcy or insolvency act, or if Tenant shall otherwise
take advantage of any state or federal bankruptcy or insolvency act as
a bankrupt or insolvent.
(h) Tenant shall cease to conduct its normal business
operations in the Leased Premises or shall vacate or abandon same for a
period of at least ten (10) days.
(i) Tenant shall repeatedly default in the timely
payment of Rent or any other charges required to be paid, or shall
repeatedly default in keeping, observing or performing any other
covenant, agreement, condition or provisions of this Lease,
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whether or not Tenant shall timely cure any such payment or other
default. For the purposes of this subsection, the occurrence of any
such defaults three (3) times during any twelve (12) month period shall
constitute a repeated default, regardless of cure by the Tenant. The
Parties agree that repeated default shall constitute a basis for
eviction, regardless of partial or total cure of the individual events
of default by Tenant.
35.2 No condoning, excusing, or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or times in
respect of any covenants, provisions, or conditions herein contained shall
operate as a waiver of the Landlord's right hereunder in respect of any
continuing or subsequent default, breach, or non-observance, or so as to defeat
or affect such continuing or subsequent default or breach, and no waiver shall
be inferred or implied by anything done or omitted by the Landlord save only
express waiver in writing. All rights and remedies of the Landlord in this Lease
contained shall be cumulative and not alternative.
36. REMEDIES OF LANDLORD
36.1 If an event of default set forth in Section 35.1 occurs,
including repeated default under Section 35. 1 (i), the Landlord shall have the
following rights and remedies, in addition to all other remedies at law or
equity, and none of the following whether or not exercised by the Landlord shall
preclude the exercise of any other right or remedy whether herein set forth or
existing at law or equity, and all such remedies shall be cumulative:
(a) Landlord shall have the right to terminate this
Lease by giving the Tenant notice in writing at any time. No act by or
on behalf of the Landlord, such as entry of the Leased Premises by the
Landlord to perform maintenance and repairs and efforts to relet the
Leased Premises, other than giving the Tenant written notice of
termination, shall terminate this Lease. If the Landlord gives such
notice, this Lease and the Term hereof as well as the right, title and
interest of the Tenant under this Lease shall wholly cease and expire
in the same manner and with the same force and effect (except as to the
Tenant's liability) on the date specified in such notice as if such
date were the expiration date of the Term of this Lease without the
necessity of re-entry or any other act on the Landlord's part. Upon any
termination of this Lease, the Tenant shall quit and surrender to the
Landlord the Leased Premises as set forth in Section 37.1. If this
Lease is terminated, the Tenant shall be and remain liable to the
Landlord for damages as hereinafter provided and the Landlord shall be
entitled to recover forthwith from the Tenant as damages an amount
equal to the total of:
(i) the cost, including reasonable
attorneys' fees, of enforcing any provision of this Lease,
defending counterclaims, crossclaims or third party actions,
and of recovering the Leased Premises:
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(ii) all Rent accrued and unpaid at the time
of termination of the Lease, plus interest thereon at the rate
provided in Section 36.1 (g); and
(iii) any other money and damages owed by
the Tenant to the Landlord.
In addition, the Landlord shall also be entitled to
recover from the Tenant as damages the amounts determined, at the
Landlord's election, under (iv) or (v) below:
(iv) the amount of Rent that would have been
payable hereunder if the Lease had not been terminated, less
the net proceeds, if any, received by the Landlord from any
reletting of the Leased Premises, after deducting all costs
incurred by the Landlord in finding a new tenant and reletting
the space, including costs of remodeling and refinishing space
for a new tenant, reasonable tenant inducements, reasonable
brokerage commissions or agents' commissions in connection
therewith, redecorating costs, attorneys' fees and other costs
and expenses incident to the reletting of the Leased Premises
(collectively referred to herein as "Reletting Costs");
provided, however, that the Landlord shall have no obligation
to relet or attempt to relet the Leased Premises. The Tenant
shall pay such damages to the Landlord on the days on which
the Rent would have been payable if the Lease had not
terminated; or
(v) the present value (discounted at the
rate of eight percent (8%) per annum) an the balance of the
Rent for the remainder of the stated Term of this Lease after
the termination date plus anticipated Reletting Costs, less
the present value (discounted at the same rate) of the fair
market rental value of the Leased Premises for such period. No
provision of this Lease shall limit or prejudice the right of
the Landlord to prove and obtain as damages by reason of any
termination of this Lease, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are
to be proved, whether or not such amount be greater, equal to
or less than the amounts referred to above.
(b) The Landlord may, without demand or notice of any
kind to the Tenant, terminate the Tenant's right of possession (but not
the Lease) and re-enter and take possession of the Leased Premises or
any part thereof, and repossess the same as of the Landlord's former
estate and expel the Tenant and those claiming through or under the
Tenant, and remove the effects of any and all such persons (forcibly,
if necessary) and change the locks on the Leased Premises without
being deemed guilty
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of any manner of trespass, without prejudice to any remedies for
arrears of Rent of preceding breach of covenants and without
terminating this Lease or otherwise relieving the Tenant of any
obligation hereunder. Should the Landlord elect to re-enter as provided
in this Section 36.1(b), or should the Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by
law, the Landlord may, from time to time, without terminating this
Lease, relet the Leased Premises or any part thereof for such term or
terms and at such rental or rentals, and upon such other conditions as
the Landlord may in its absolute discretion deem advisable, with the
right to make alterations and repairs to the Leased Premises. No such
re-entry, repossession or reletting of the Leased Premises by the
Landlord shall be construed as an election on the Landlord's part to
terminate this Lease unless a written notice of termination is given to
the Tenant by the Landlord. No such re-entry, repossession or reletting
of the Leased Premises shall relieve the Tenant of its liability and
obligation under this Lease, all of which shall survive such re-entry,
repossession or reletting. Upon the occurrence of such re-entry or
repossession, the Landlord shall be entitled to the amount of the
monthly Rent which would be payable hereunder if such re-entry or
repossession had not occurred, less the net proceeds, if any, of any
reletting of the Leased Premises after deducting all Reletting Costs
and all attorneys' fees, other costs and expenses incurred in the
re-entry, repossession and reletting procedures. The Tenant shall pay
such amount to the Landlord on the days on which the Rent or any other
sums due hereunder would have been payable hereunder if possession had
not been retaken. In no event shall the Tenant be entitled to receive
the excess, if any, of net Rent collected by the Landlord as a result
of such reletting over the sums payable by the Tenant to the Landlord
hereunder. If this Lease is terminated by operation of law as a result
of the Landlord's actions under this Section, then the Landlord shall
be entitled to recover damages from the Tenant as provided in Section
36.1 (a). The Landlord shall have the right to collect from the Tenant
amounts equal to such deficiencies and damages provided for above by
suits or proceedings brought from time to time on one or more occasions
without the Landlord being obligated to wait until the expiration of
the term of this Lease.
(c) In the event Landlord gives Tenant notice of
default or delivers to Tenant a Notice of Demand for Payment or
Possession pursuant to the applicable statute, any such notice will not
constitute an election to terminate the Lease unless Landlord expressly
states in any such notice that it is exercising its rights to terminate
the Lease.
(d) If the Tenant shall default in making any payment
required to be made by the Tenant (other than payments of Rent) or
shall default in performing any other obligations of the Tenant under
this Lease, the Landlord may, but shall not be obligated to, make such
payment or, on behalf of the Tenant, expend such sum as may be
necessary to perform such obligation. All sums so expended by the
Landlord with
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interest thereon at the rate provided in Section 36.1(g) shall be
repaid by the Tenant to the Landlord on demand. No such payment or
expenditure by the Landlord shall be deemed a waiver of the Tenant's
default nor shall it affect any other remedy of the Landlord by reason
of such default.
(e) If the Tenant shall default in making payment of
any Rent due under this Lease, the Landlord may charge and the Tenant
shall pay, upon demand, interest thereon at the rate provided in
Section 36.1(g), but the payment of such interest shall not excuse or
cure any default by the Tenant under this Lease. In addition to such
interest, the Tenant shall be responsible for the late charges set
forth in Section 36.3. Such interest and late payment penalties are
separate and cumulative and are in addition to and shall not diminish
or represent a substitute for any or all of the Landlord's rights or
remedies under any other provisions of this Lease.
(f) In any action of unlawful detainer commenced by
the Landlord against the Tenant by reason of any default hereunder, the
reasonable rental value of the Leased Premises for the period of the
unlawful detainer shall be deemed to be the amount of Rent reserved in
this Lease for such period.
(g) Whenever the Tenant shall be required to make
payment to the Landlord of any sum with interest, interest on such sum
shall be computed from the date such sum is due until paid, at an
interest rate equal to eighteen percent (18%) per annum or, if such
amount violates any then applicable law with respect to interest rates,
at the highest interest rate otherwise allowable under then applicable
law. Should Tenant be in default, Landlord may collect 18% interest
under this provision or $50.00 per day penalty under Paragraph 4,
whichever is greater.
(h) In addition to any damages described as being
collectable herein, damages will also include, in all cases, the
unamortized portion of any costs, expenses, or inducements provided by
the Landlord to the Tenant in connection with this Lease. Such expenses
include, without limitation, any tenant inducements paid directly to
the Tenant, expenses incurred in providing tenant improvements or other
similar improvements to the Leased Premises, and free rent periods or
reduced rent periods granted to the Tenant. All such expenses will be
amortized over the Term (or initial term, if applicable) of the Lease
and will be prorated in proportion to the total amount of time of the
Term of the Lease as compared to the time during which the Tenant
performed under the Lease without default.
(i) As used in this Lease, the terms "re-entry",
"take possession", "repossess" and "repossession" are not restricted to
their technical legal meaning.
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(j) Tenant hereby expressly waives, to the full extent
waivable, any and all right of redemption granted by or under any
present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining
possession of the Leased Premises, by reason of the violation by Tenant
of any of the covenants or conditions of this Lease, or otherwise.
36.2 As additional security for the Tenant's performance of its
obligations under this Lease, the Tenant hereby grants to the Landlord a
security interest in and to all of the personal property of Tenant situated on
the Leased Premises, subject to a perfected purchase money security interest and
prior existing security interests, as security for the payment of all Rent and
other sums due, or to become due, under this Lease. Tenant shall execute such
documents as the Landlord may reasonably require to evidence the Landlord's
security interest in such personal property. If the Tenant is in default under
this Lease, such personal property shall not be removed from the Leased Premises
(except to the extent such property is replaced with an item of equal or greater
value) without the prior written consent of the Landlord. It is intended by the
parties hereto that the instrument shall have the effect of a security agreement
covering such personal property, and the Landlord may upon the occurrence of an
event of default set forth in Section 35.1 exercise any rights of a secured
party under the Uniform Commercial Code of the State of Arizona including the
right to take possession of such personal property and (after ten (10) days
notice to those parties required by statute to be notified) to sell the same for
the best price that can be obtained at public or private sale and out of the
money derived therefrom, pay the amount due the Landlord, and all costs arising
out of the execution of the provisions of this Section, paying the surplus, if
any, to the Tenant. It such personal property or any portion thereof shall be
offered at a public sale, the Landlord may become the purchaser thereof.
36.3 As part of the consideration for the Landlord's executing this
Lease, Tenant hereby waives a trial by jury and the right to interpose any
counterclaim or offset of any nature or description in any litigation between
the Tenant and Landlord with respect to this Lease, the Leased Premises and the
repossession hereof.
36.4 Tenant hereby acknowledges that late payment by Xxxxxx to Landlord
of Rent and other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Real Property. Accordingly, if
any installment of Rent or any other sum due from Tenant shall not be received
by Landlord or Landlord's designee within five (5) days after such amount shall
be due, Tenant shall pay to the Landlord a late charge equal to ten percent
(10%) of such overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Xxxxxx. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of Tenant's
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default with respect to such overdue amount, nor prevent Landlord from
exercising any of the rights and remedies granted hereunder.
37. END OF TERM
37.1 Upon the expiration or other termination of this Lease, the Tenant
shall vacate and surrender to the Landlord the Leased Premises, broom clean
condition, carpets professionally cleaned, dry wall repaired and in good order.
The Tenant shall remove all property of the Tenant, as directed by the Landlord.
Any property left on the Leased Premises at the expiration or other termination
of this Lease, or after the occurrence of any default as set forth in Section 35
may at the option of the Landlord either be deemed abandoned or be placed in
storage at a public warehouse in the name of and for the account of and at the
expense and risk of the Tenant. If such property is not claimed by the Tenant
within ten (10) days after such expiration, termination or the happening of an
event of default, it may be sold or otherwise disposed of by the Landlord. The
Tenant expressly releases the Landlord from any and all claims and liability for
damage to or loss of property left by the Tenant upon the Leased Premises at the
expiration or other termination of this Lease, and the Tenant hereby indemnifies
the Landlord against any and all claims and liability with respect thereto.
37.2 If the Tenant shall continue to occupy and continue to pay rent
for the Leased Premises after the expiration of this Lease with or without the
consent of the Landlord, and without any further written agreement, the Tenant
shall be a tenant from month to month at a monthly Base Rent equal to the last
full monthly Base Rent payment due hereunder times 1.5, and subject to all of
the additional rentals, terms, and conditions herein set out except as to
expiration of the Lease Term.
38. TRANSFER BY LANDLORD
In the event of a sale or other transfer by the Landlord of the
Building or a portion thereof containing the Leased Premises (including a
foreclosure or deed in lieu of foreclosure), the Landlord shall without further
written agreement be freed, released and relieved of all liability or
obligations under this Lease. The rights of Landlord under this Lease shall not
be affected by any such sale, lease or other transfer.
39. NOTICE
39.1 Any notice, request, statement, or other writing pursuant to this
Lease shall be deemed to have been given if sent by registered or certified
mail, postage prepaid, return receipt requested, to the party at the address
stated on the Facing Page of this Lease.
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39.2 Notice shall also be sufficiently given if and when the same shall
be delivered, in the case of notice to Landlord, to an executive officer of the
Landlord, or the managing agent, and in the case of notice to the Tenant or the
Guarantor of the Tenant, to the Leased Premises. Such notice, if delivered,
shall be conclusively deemed to have been given and received at the time of such
delivery. If in this Lease two or more persons are named as Tenant, such notice
shall also be sufficiently given if and when the same shall be delivered
personally to any one of such persons.
39.3 Any party may, by notice to the other, from time to time designate
another address in the United States or Canada to which notice mailed more then
ten (10) days thereafter shall be addressed.
40. GOVERNING LAW, VENUE AND COMMENCEMENT OF ACTION
40.1 This Lease shall be deemed to have been made in and shall be
construed in accordance with the laws of Maricopa County in the State of
Arizona. Venue shall be in Maricopa County in the State of Arizona.
40.2 Any claim, demand, right, or defense by Tenant that arises out of
this Lease or the negotiations that preceded this Lease shall be barred unless
Xxxxxx commences an action thereon, or interposes a defense by reason thereof,
within six (6) months after the date of the inaction, omission, event, or action
that gave rise to such claim, demand, right, or defense.
40.3 Tenant acknowledges and understands, after having consulted with
its legal counsel, that the purpose of Paragraph 40.2 above is to shorten the
period within which Tenant would otherwise have to raise such claims, demands,
rights, or defenses under applicable laws.
41. PAYMENT IN UNITED STATES CURRENCY/CERTIFIED FUNDS
The rentals reserved herein and all other amounts required to be paid
or payable under the provisions of this Lease shall be paid in lawful money of
the United States. Landlord shall have the right in its sole and absolute
discretion to require that Rental and all other sums due by Tenant be paid in
certified funds.
42. LEASE ENTIRE AGREEMENT
The Tenant acknowledges that there are no covenants, representations,
warranties, agreements, or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating to this Lease save
expressly set out in this Lease,
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the Facing Page, Exhibits, Riders, and Schedules attached hereto and that this
Lease, the Facing Page, Exhibits, Riders, and Schedules attached hereto and the
Rules and Regulations promulgated by Landlord in accordance with Section 13
hereof constitute the entire agreement between the Landlord and the Tenant and
may not be amended or modified except as explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by the party
to be charged therewith. The Tenant acknowledges that Xxxxxx has provided review
of and input to this Lease, and therefore agrees that this Lease has been
jointly drafted by Landlord and Xxxxxx.
43. BINDING EFFECT
Except as expressly provided herein, this indenture shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, and all covenants and agreements herein
contained to be observed and performed by the Tenant shall be joint and several.
44. SECURITY DEPOSIT
The Tenant shall keep on deposit with the Landlord at all times during
the term of this Lease the Lease Deposit specified on the Lease Facing Page
hereof as security for the payment by the Tenant of the Rent and any other sums
due under this Lease and for the faithful performance of all the terms,
conditions, and covenants of this Lease, it being expressly understood that the
Lease Deposit shall not be considered advance payment of Rent or a measure of
Landlord's damages in the case of default by Tenant. Security deposit is due in
full prior to Xxxxxx's possession of the Premises. If an event of a default set
forth in Section 35.1 occurs, the Landlord may (but shall not be required to)
use any such deposit, or so much thereof as necessary in payment of any Rent or
any other sums due under this Lease in default, in reimbursement of any expense
incurred by the Landlord, and to repair any damage or to clean, paint, carpet
and fruitage the Leased Premises after termination of possession by Tenant. In
such event the Tenant shall on written demand of the Landlord forthwith remit
to the Landlord a sufficient amount in cash to restore such deposit to its
original amount. If such deposit has not been utilized as aforesaid, such
deposit, or as much thereof as has not been utilized for such purposes, shall be
refunded to the Tenant upon full performance of this Lease by the Tenant.
Landlord shall have the right to commingle such deposit with other funds of the
Landlord, and such deposit need not be kept in an escrow or other segregated
account. Landlord shall deliver the funds deposited herein by the Tenant to any
purchaser of the Landlord's interest in the Leased Premises in the event such
interest be sold, and thereupon, the Landlord shall be discharged from further
liability with respect to such deposit.
45. INTERPRETATION
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Unless the context otherwise requires, the word "Landlord" wherever it
is used herein shall be construed to include and shall mean the Landlord, its
successors, and/or assigns, and the word "Tenant" shall be construed to include
and shall mean the Tenant, and the executors, administrators, successors and/or
assigns of the Tenant and when there are two or more tenants, or two or more
persons bound by the Tenant's covenants herein contained their obligation
hereunder shall be joint and several. The word "Tenant" and the personal
pronouns "his" or "it" relating thereto and used therewith shall be read and
construed as Tenants and "his," "its," or "their" respectively as the number and
gender of the party or parties referred to each require and the tense of the
verb agreeing therewith, shall be construed and agree with the said word or
pronoun so substituted. Time shall be of the essence in all respects hereunder.
46. SEVERABILITY
Should any provision or provisions of this Lease be illegal or not
enforceable, it or they shall be considered separate and severable from this
Lease and its remaining provisions shall remain in force and be binding upon the
parties hereto as though the said provision or provisions had never been
included.
47. CAPTIONS
The captions appearing within the body of this Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit,
or enlarge the scope or meaning of this Lease or of any provision hereof.
48. RECORDING - SHORT FORM MEMO
This Lease shall not be recorded in its entirety. If recorded by
Xxxxxx, this Lease may be terminated at Landlord's option as of the date of
recording and Landlord shall then have all rights and remedies provided in the
case of default by Tenant hereunder. If requested by Landlord, Xxxxxx shall
execute in recordable form, a short form memorandum of Lease which may, at
Xxxxxxxx's option, be placed of record.
49. NON-WAIVER OF DEFAULTS/LANDLORD'S DEFAULT
49.1 No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy on account of the Violation of such
provision, even if such Violation be continued or repeated subsequently, and no
express waiver shall affect any provision other than the one specified in such
waiver and in that event only for the time and in the manner specifically
stated. No receipt of monies by Landlord from Tenant after the termination of
this Lease will in any way alter the length of the Term or Xxxxxx's right of
possession hereunder or, after the giving of any notice, shall reinstate,
continue or
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extend the Term or affect any notice given Tenant prior to the receipt of such
monies, it being agreed that after the service of notice or the commencement of
a suit or after final judgment for possession of the Leased Premises, Landlord
may receive and collect any Rent due, and the payment of Rent shall not waive or
affect said notice, suit or judgment, nor shall any such payment be deemed to be
other than on account of the amount due, nor shall the acceptance of Rent be
deemed a waiver of any breach by Tenant of any term, covenant or condition of
this Lease. No endorsement or statement on any check or any letter accompanying
any check or payment of Rent shall be deemed an accord and satisfaction.
Landlord may accept any such check or payment without prejudice to Landlord's
right to recover the balance due of any installment or payment of Rent or pursue
any other remedies available to Landlord with respect to any existing Defaults.
None of the terms, covenants or conditions of this Lease can be waived by either
Landlord or Tenant except by appropriate written instrument.
49.2 If any act or omission by the Landlord shall occur which would
give the Tenant the right to damages from the Landlord or the right to terminate
this Lease by reason of a constructive or actual eviction from all or part of
the Lease Premises or otherwise, the Tenant shall not sue for such damages or
exercise any such right to terminate until (i) it shall have given written
notice of such act or omission to the Landlord and to the holder(s) of the
indebtedness or other obligations secured by any mortgage or deed of trust
affecting the Leased Premises or the Real Property, if the name and address of
such holder(s) shall previously have, been furnished to the Tenant, and (i) a
reasonable period of time for remedying such act or omission shall have elapsed
following the giving of such notice, during which time the Landlord and such
holder(s), or either of them, their agents or employees, shall be entitled to
enter upon the Leased Premises and do therein whatever may be necessary to
remedy such act or omission. Claims against insurance policies which cause delay
shall not be deemed an act or omission of the Landlord which shall give the
Tenant right to damages from the Landlord.
50. CERTAIN IMPOSITIONS
The Tenant shall pay, as Additional Rent, and shall indemnify the
Landlord against, and reimburse the Landlord on demand for, all future duties,
taxes, levies, imposts, charges and impositions, whatsoever, imposed, assessed,
levied or collected by or for the benefit of any federal, State or local
government or any political subdivision or taxing authority thereof, together
with any interest thereon and penalties with respect thereto on or in respect of
the Leased Premises, the Lease or by reason of the tenancy.
51. ENVIRONMENTAL MATTERS
51.1 The Tenant shall not cause or permit any Hazardous Substances (as
hereafter defined) to be generated, produced, brought upon, used, stored,
treated or disposed
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of in, on, under or about the Leased Premises, except that the Tenant shall be
entitled to store Hazardous Substances in the Leased Premises, in the ordinary
course of its business, but only with the prior written consent of the Landlord.
The Tenant agrees to indemnify, defend and hold the Landlord and its officers,
shareholders, directors, partners, employees, and agents harmless from any
claims, judgments, damages, penalties, fines, costs, liabilities (including sums
paid in settlement of claims), losses or expenses, including without limitation,
reasonable attorney's fees, reasonable consultant fees, and reasonable expert
fees, which are incurred or arise during or after the term of this Lease from or
in any way connected with the presence or suspected presence of Hazardous
Substances in, on, under or about the soil, groundwater, surface water, air or
soil vapor in, on under or about the Leased Premises arising out of the use of
the Leased Premises by the Tenant, its officers, employees, agents, invitees, or
contractors. Without limiting the generality of the foregoing, the
indemnification provided by this Section specifically shall cover costs incurred
in connection with any investigation of site conditions existing prior to, at or
after the date of execution of this Lease or any remediation, including, without
limitation, studies or reports as needed or required, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of the presence or suspected presence of Hazardous
Substances in, on under or about the soil, groundwater, surface water, air or
soil vapor on, under or about the Leased Premises, arising out of the use of the
Leased Premises by the Tenant, its officers, employees, agents, invitees, or
contractors.
51.2 For purposes of this section, "Hazardous Substances" shall mean
any hazardous, toxic, radioactive, infectious, or carcinogenic substance
material, gas, or waste which is or becomes listed or regulated by any federal,
state, or local law or governmental authority or agency, including, without
limitation, petroleum and petroleum products in underground tanks, PCSs,
asbestos, lead, cyanide, DDT, and all substances defined as hazardous materials,
hazardous wastes, hazardous substances, or extremely hazardous waste under any
present or future federal, state, or local law or regulation, as amended from
time to time.
51.3 Those claims, judgments, damages, penalties, fines, costs,
liabilities, losses, and expenses for which each party and its officers,
shareholders, directors, partners, employees, and agents are indemnified
hereunder shall be reimbursable as incurred without any requirement of waiting
for the ultimate outcome of any litigation, claim or other proceeding, and the
indemnifying party shall pay such claims, judgments, damages, penalties, fines.
costs, liabilities, losses, and expenses as incurred by the indemnified party
within fifteen (15) days after notice itemizing the amounts incurred to the date
of such notice. Any defense of any claim against an indemnified party shall be
made by counsel satisfactory to the indemnified party.
51.4 The foregoing provisions of this Section shall survive the
termination of this Lease.
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52. DISABILITIES LAWS
52.1 Disabilities Laws as used herein shall include the Americans with
Disabilities Act and any state, county or local laws, statutes, or ordinances
applicable to the Leased Premises, the Tenant's business or the activities of
the Tenant in or about the Leased Premises. Disabilities Laws shall also include
any amendments thereto, regulations or court decisions interpreting such laws.
52.2 Tenant shall comply with all Disability Laws relating to the use
and occupancy of and access to the Leased Premises. Tenant shall be responsible
to perform its own assessment of the compliance of the Leased Premises with such
laws by surveying the facility, determining what barrier removal is readily
achievable and shall comply with alternative and new construction requirements
of Disability Laws. Tenant shall bear the sole cost and expense of determining
compliance. To the extent Tenant determines that compliance may require
alteration or future construction on the Leased Premises, Tenant shall notify
Landlord and shall obtain Landlord's consent to such alteration in advance.
Landlord shall not unreasonably withhold consent to reasonable alterations to be
made by Tenant in order to comply with the provisions of such Disabilities Laws.
In addition to any other reasonable requirements of Landlord for granting such
consent, Xxxxxxxx's consent may be conditioned upon Tenant providing adequate
assurances of the proper completion of such alterations and payment therefor,
and that the alterations be in conformity to the aesthetic style and future
expansion plans for the Building.
Should Landlord incur any additional costs as a result of Xxxxxx's
occupancy of the Leased Premises and obligations under Disability Laws, Tenant
shall reimburse Landlord for such costs.
52.3 Any costs incurred by Landlord in complying with Disabilities Laws
shall be considered a Common Area Maintenance charge, and Tenant shall pay his
pro-rata share of such charge pursuant to the provisions of Paragraph 51 of this
Lease.
53. SECURITY
Tenant shall be responsible for locking and keeping the Leased Premises
secure, as well as locking any outside door to the building in which the Leased
Premises are located upon entering or leaving the building.
52.4 Tenant hereby indemnifies Landlord and agrees to defend and hold
Landlord harmless from and against any and all losses, liabilities, damages,
injuries, costs (including, without limitation, court costs and reasonable
attorneys' fees), expenses and claims of any and every kind whatsoever caused by
Tenant or any of its subtenants,
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permittees, agents or representatives, which at any time or from time to time
may be paid, incurred or suffered by, or asserted against, Landlord for, with
respect to or as a direct or indirect result of, Xxxxxx's failure to comply with
the requirements of paragraph 35(b) above including, without limitation, any
losses resulting from a diminution in the value of the Building and any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or arising
under any Disabilities Laws.
52.5 Tenant covenants and agrees that: (i) Tenant will comply with any
reasonable requirements of Landlord and any mortgagee from time to time to
implement or facilitate the administration or enforcement of any or all of the
provisions of this Section; (ii) Tenant will certify annually, it so requested
by Landlord that it is in compliance with all Disabilities Laws; and (iii)
Tenant will cause every sublease and concession agreement to contain provisions
substantially the same as those in the preceding clauses (i) and (ii) and
expressly state that they are for the benefit of and may be enforced by Landlord
and any mortgagee (in addition to any other person Tenant may desire to name
therein).
52.6 Tenant's liability for the undertakings and indemnification's set
out in this Section shall survive the Termination or expiration of this Lease.
The provisions of this Section shall govern and control over any inconsistent
provisions of this Lease or any other agreement between Landlord (or any of its
affiliates) and Tenant.
52.7 THE UNDERSIGNED hereby grants the Landlord the right, from time to
time for the duration of the Lease term, to obtain a credit report from a credit
reporting agency on the undersigned and any spouse of the undersigned at the
owner's sole expense.
IN WITNESS WHEREOF, the parties hereto have executed these Lease
provisions as of the Lease Date on the Facing Page attached hereto.
LANDLORD:
LONE CACTUS CAPITAL GROUP, L.L.C.
By:
-----------------------------------------
Its:
--------------------------------------
TENANT:
IBIZ TECHNOLOGY CORP.
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By:
-----------------------------------------
Its:
--------------------------------------
ATTEST:
By:
-----------------------------------------
Its:
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LEASE GUARANTY
RIDER (1)
LANDLORD:
NAME: Lone Cactus Capital Group, L.L.C.
ADDRESS: P.O. Box 5061
Carefree, AZ 85377
TENANT:
NAME: iBIZ Technology Corp. for 1919 Lone Cactus
ADDRESS: 0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
LEASE:
LEASE DATE: June 1, 1999
GUARANTY DATE: Full Term
LEASE TERM:
LEASE PERIOD: 25 YEARS PLUS 6 MONTHS
COMMENCEMENT DATE: July 1, 1999
BASE RENT: $153,600 Per annum, payable in
installments of $12,800
per month, 5% Annual escalators.
GUARANTOR:
NAME: Xxxxxxx X. Xxxxxxxxx and
Xxxxx Xxxxxxxxx
ADDRESS: 0000 X. Xxx Xxxxxxx
Xxxxxx, XX 00000
THIS LEASE GUARANTY is attached to and made a part of the Lease
referenced above, and is in effect as of the date it is signed. To induce the
Landlord to enter into, to waive a default under, or to extend or renew the term
of the Lease, the Guarantor agrees as follows:
1. The Guarantor hereby covenants and agrees with the Landlord,
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a. to make due and punctual payment of all rent, monies, and
charges payable under the Lease during the Term thereof and all
renewals thereof:
b. to effect prompt and complete performance of all and each
of the terms, covenants, conditions and provisions in the Lease
required on the part of the Tenant to be kept, observed and performed
during the period of the Term and any renewals thereof; and
c. to indemnify and save harmless the Landlord from any loss,
attorney's fees, costs or damages arising out of any failure to pay the
aforesaid rent, monies, and charges or the failure to perform any of
the terms, covenants, conditions and provisions of the Lease.
2. In the event of a default under the Lease, the Guarantor waives any
right to require the Landlord to:
a. proceed against the Tenant or pursue any rights or remedies
with respect to the Lease;
b. proceed against or exhaust any security of the Tenant held
by the Landlord; or
c. pursue any other remedy whatsoever in the Landlord's power.
The Landlord shall have the right to enforce this Guaranty regardless
of the acceptance of additional security from the Tenant and regardless of the
release or discharge of the Tenant or any other Guarantor of the Lease by the
Landlord or by others, or by operation of any law or the amendment or
modification of any terms of the Lease, to which the Guarantor gives the Tenant
the express authority to consent on behalf of the Guarantor.
3. The Guarantor hereby expressly waives notice of the acceptance of
this Guaranty and all notice of nonperformance, non-payment or non-observance on
the part of the Tenant of the terms, covenants of conditions and provisions of
the Lease.
4. Without limiting the generality of the foregoing, the liability of
the Guarantor under this Guaranty shall not be deemed to have been waived,
released, discharged, impaired or affected by reason of the release or discharge
of the Tenant in any receivership, bankruptcy, winding-up or other creditor
proceedings or the rejection, disaffirmance or disclaimer of the Lease by any
party, and shall continue with respect to the periods prior thereto and
thereafter, for and with respect to the Term originally contemplated and
expressed in the Lease. The liability of the Guarantor shall not be affected by
any repossession of the Leased Premises by the Landlord, the extension by
Landlord of time for
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the payment by Tenant of any sums owing or payable under the Lease, the
assignment or subletting of the Leased Premises or the waiver, failure, omission
or delay of Landlord to enforce, assert or exercise any right, power or remedy.
5. Guarantor shall pay all costs, charges and expenses, including
reasonable attorney fees and court costs, incurred by Landlord in enforcing
Guarantor's obligations under this Guaranty.
6. This Guaranty shall be one of payment and performance and not of
collection. Notwithstanding the use of the word "indemnity" or "guaranty", each
guarantor or indemnitor shall be jointly and severally liable under this and any
other guaranty of the Lease.
7. The Guarantor shall, without limiting the generality of the
foregoing, be bound by this Guaranty in the same manner as though the Guarantor
were the Tenant named in the Lease.
8. All of the terms, agreements and conditions of this Guaranty shall
extend to and be binding upon the Guarantor, his heirs, executors,
administrators, successors and assigns, and shall inure to the benefit of and
may be enforced by the Landlord, its successors and assigns, and the holder of
any mortgage to which the Lease may be subject.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed as of the Guaranty Date first above written.
----------------------------- ---------------------------------
Xxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxxxx, Guarantor
###-##-####
Social Security Number
Home Address:
0000 X. Xxx Xxxxxxx
Xxxxxx, XX 00000
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ADDITIONAL PROVISIONS
RIDER (2)
A. The Lease shall commence on July 1, 1999 or the date that
the tenant takes possession of the premises, whichever occurs first, and
terminates on December 31, 2024.
B. Base Rent shall be paid in the following manner plus any
rental taxes, and additional rent as outlined herein.
YEAR ANNUAL RENT MONTHLY RENT
---- ----------- ------------
Year l $153,600 $12,800
Year 2 $161,280 $13,440
Year 3 $169,344 $14,112
Year 4 $177,816 $14,818
Year 5 $186,708 $15,559
Year 6-26 5% above previous year
PLUS ADDITIONAL RENT AS OUTLINED HEREIN
X. Xxxxxx agrees to accept the premises in an "as is"
condition.
D. This lease is a triple net lease. Tenant is responsible for
payment of all expenses of the building. Tenant agrees to sign up and pay for
its own utilities, taxes, insurance and maintenance of interior and exterior of
building and its grounds.
E. All other terms and conditions of this Lease shall remain
in effect.
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RULES & REGULATIONS
RIDER (4)
1. Tenant shall not block or obstruct any of the entries,
passages, doors, hallways, or stairways of Building or garage, or place, empty,
or throw any rubbish, litter, trash, or material of any nature into such areas,
or permit such areas to be used at any time, except for ingress or egress of
Tenant, its officers, agents, servants, employees, patrons, licenses, customers,
visitors, or invitees.
2. Landlord will not be responsible for lost or stolen
personal property, equipment, money, or any article taken from Leased Premises,
regardless of how or when loss occurs.
3. Tenant shall not install or operate any refrigerating,
heating, or air conditioning apparatus or carry on any mechanical operation on
the Leased Premises without written permission of Landlord.
4. Tenant shall not use Leased Premises for housing, lodging,
or sleeping purposes or for the cooking or preparation of food without written
permission of Landlord.
5. Tenant shall not bring into the Leased Premises or keep on
Leased Premises any fish, fowl, reptile, insect or animal or any bicycle or
other vehicle without the prior written consent of Landlord; wheelchairs,
however, will be permitted.
6. No additional locks shall be placed on any door in the
Building without the prior written consent of Landlord. Landlord may at all
times keep a pass key to the Leased Premises. All of Tenant's keys shall be
returned to Landlord promptly upon termination of this Lease.
7. Tenant shall do no painting or decorating in Leased
Premises; or mark, paint or cut into, drive nails or screw into, nor in any way
deface any part of Leased Premises or Building without the prior written consent
of Landlord. If Tenant desires signal, communication, alarm, or other utility or
service connection installed or changed, such work shall be done at expense of
Tenant with the approval and under the direction of Landlord.
8. Tenant shall not permit the operation of any musical or
sound-producing instruments or device which may be heard outside Leased
Premises, or which may emanate electrical waves or x-rays or other emissions
which will impair radio or television broadcasting or reception from or in the
Building, or be hazardous to health, well-being, or condition of persons or
property.
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9. Tenant shall, before leaving Leased Premises unattended,
close and lock all doors and shut off all utilities. Damage resulting from
failure to do so shall be paid by Xxxxxx. Each Tenant, before closing for the
day and leaving the Leased Premises, shall see that all doors are locked.
10. Tenant shall give Landlord prompt notice of all accidents
to or defects in air conditioning equipment, plumbing, electrical facilities, or
any part or appurtenance of the Leased Premises.
11. The plumbing facilities shall not be used for any other
purpose than that for which they are constructed, and no foreign substance of
any kind shall be thrown therein, and the expense of any breakage, stoppage, or
damage resulting from a violation of this provision shall be borne directly by
the Tenant, who shall, or whose officers, employees, agents, servants, patrons,
customers, licensees, visitors, or invitees shall have caused it. Landlord shall
not be responsible for any damage due to stoppage, backup, or overflow of the
drains or other plumbing fixtures.
12. All contractors and/or technicians performing work for
Tenant within the Leased Premises, the Building, or garage facilities shall be
referred to Landlord for approval before performing such work. This shall apply
to all work including, but not limited to, installation of telephones, telegraph
equipment, electrical devices and attachments, and all installations affecting
floors, walls, windows, doors, ceilings, equipment, or any other physical
feature of the Building, Leased Premises, or garage facilities. None of this
work shall be done by Tenant without Landlord's prior written approval.
13. Neither Tenant nor any officer, agent, employee, servant,
patron, customer, visitor, licensee, or invitee of any Tenant shall go upon the
roof of the Building without the written consent of the Landlord.
14. In the event Tenant must dispose of crates, boxes, etc.
which will not fit into wastepaper baskets, it will be the responsibility of
Tenant to dispose of same properly.
15. If the Leased Premises shall become infested with vermin,
roaches, or other undesirable creatures, Tenant, at its sole cost and expense,
shall cause the Leased Premises to be professionally treated from time to time
to the satisfaction of Landlord and shall employ such exterminators for this
purpose as shall be approved by Landlord.
16. Tenant shall not install any antenna or aerial wires,
radio or television equipment, or any other type of equipment inside or outside
of the Building without Landlord's prior approval in writing and upon such
terms and conditions as may be specified by Landlord in each and every instance.
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17. Tenant shall not make or permit any use of Leased
Premises, the Building, or garage facilities which, directly or indirectly, is
forbidden by law, ordinance, or governmental or municipal regulation, code, or
order or which may be disreputable or dangerous to life, limb, or property.
18. Tenant shall not advertise the business, profession, or
activities of Tenant in any manner which violates the letter or spirit of any
code of ethics adopted by any recognized association or organization pertaining
thereto, use the name of the Building for any purpose other than that of the
business address of Tenant or use any picture or likeness of the Building or the
Building name in any picture or likeness of the Building or the Building name in
any letterheads, envelopes, circulars, notices, advertisements, containers, or
wrapping material without Landlord's express consent in writing.
19. Tenant shall neither conduct its business nor control its
officers, agents, employees, servants, patrons, customers, licensees, and
visitors in such a manner as to create any nuisance or interfere with, annoy, or
disturb any other tenant or Landlord in its operation of the Building, or commit
waste, or suffer or permit waste to be committed in Leased Premises.
20. The Tenant shall not install in the Leased Premise any
equipment which uses a substantial amount of electricity without the advance
written consent of Landlord. The Tenant shall ascertain from the Landlord the
maximum amount of electrical current which can safely be used in the Leased
Premises, taking into account the capacity of the electric wiring in the
Building and the Leased Premises and the need of other tenants in the Building
and shall not use more than such safe capacity. The Landlord's consent to the
installation of electric equipment shall not relieve the Tenant from the
obligation not to use more electricity that such safe capacity.
21. The Tenant, without the written consent of Landlord, shall
not lay linoleum or other similar floor covering.
22. No outside storage of any material, including disabled
vehicles will be permitted.
23. Tenant shall place chair pads beneath each desk chair to
protect the carpet in the Leased Premises.
24. Landlord may waive any one or more of these Rules &
Regulations for the benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of these Rules & Regulations in favor of
Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules & Regulations against any or all of the tenants of the Building.
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25. Landlord reserves the right to make any such other
reasonable Rules & Regulations as, in its judgment, may from time to time be
needed for safety and security, for care and cleanliness of the Building and for
the preservation of good order therein or in response to governmental regulation
of any kind. Xxxxxx agrees to abide by all such Rules & Regulations herein above
stated and any additional Rules and Regulations which are adopted within five
(5) days after receiving a copy of such additional Rules and Regulations.
26. Tenant shall be responsible for the observance of all of
the foregoing Rules and Regulations by Tenant's officers, employees, agents,
servants, clients, customers, patrons, invitees, licensees, visitors and guests.
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