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Exhibit 10.04
ARIZONA FULL-SERVICE OFFICE LEASE
ONE ARIZONA CENTER
THIS LEASE is made and entered into as of by and
between XXXXX-PHOENIX CORPORATE CENTER LIMITED PARTNERSHIP, a Maryland limited
partnership ("Landlord") by XXXXX OFFICE MANAGEMENT OF ARIZONA, INC., Managing
Agent, and XXXXXXX.XXX, INC., a Nevada corporation ("Tenant").
In consideration of the rents hereinafter reserved and the agreements
hereinafter set forth, Landlord and Tenant mutually agree as follows:
1. SUMMARY OF TERMS.
The following is a summary of the principal terms of the Lease. Any
capitalized term set forth below shall, for the purposes of this Lease, have the
meaning ascribed to it in this Section 1.
A. Description of Premises
(1) Building: The building known as One Arizona Center and located
at 000 Xxxx Xxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
(2) Business Community: Arizona Center
(3) Premises: Approximately 13,277 square feet of Rental Area on the
fourth floor of the Building as shown on Schedule A.
B. Rent
(1) Annual Basic Rent: (Year 3 below includes the six (6) month
period of June 1, 2002 through November 30, 2002)
PSF Annual Monthly
--- ------ -------
Period Basic Rent Basic Rent Installment
------ ---------- ---------- -----------
Year 1: $22.00 $292,094.00 $24,341.17
Year 2: $22.50 $298,732.50 $24,894.38
Year 3: $23.50 $312,009.50 $26,000.79
(2) Advance Rent: None.
(3) Security Deposit: Twenty-six Thousand Dollars and No Cents
($26,000.00) to be held by Landlord as provided in Section 6.4.
C. Adjustments.
(1) Base Operating Costs: The Base Operating Costs for the Premises
shall be the Operating Costs for the Operating Year which commenced January 1,
1999 and ends December 31, 1999, multiplied by Tenant's Fractional Share.
(2) Adjustment Period Consumer Price Index. Intentionally omitted.
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D. Term
(1) Term: Three (3) years and six (6) months, subject to
Section 4.
(2) Lease Commencement Date: June 1, 1999, subject to Section 4.
(3) Termination Date: November 30, 2002, subject to Section 4.
E. Notice and Payment
(1) Tenant Notice Address:
Xxxxxxx.xxx, Inc.
000 X. Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention Xxxxx Xxxxxxxx
(2) Landlord Notice Address:
Xxxxx Office Management of Arizona, Inc.
000 X. 0xx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
and
Xxxxxxxx & Liesche Co.
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
with a copy to:
XXXXX OFFICE MANAGEMENT OF ARIZONA, INC.
c/o The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(3) Landlord Payment Address:
Xxxxx Office Management of Arizona, Inc.
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
(Please designate the account name of Xxxxx-Phoenix Corporate
Center Limited Partnership on all checks so delivered.)
F. Broker
Xxxx Xxxxxxxxxxx
Colliers International
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xx. 00000
2. DEFINITIONS.
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For purposes of this Lease, the Schedules attached and made a part hereof
and all agreements supplemental to this Lease, the following terms shall have
the respective meanings as set forth in the following Section, subsection,
paragraph and Schedule references:
Reference
Alterations .................................................... 15.1
Annual Basic Rent .............................................. 1.B.(1)
Bankruptcy Code ................................................ 19.1
Building ....................................................... 1.A.(1)
Casualty ....................................................... 17.1
Common Area .................................................... 10.1
Default Rate ................................................... 6.5
Event of Default ............................................... 20.1
Event of Tenant's Bankruptcy ................................... 19.1
Fractional Share ............................................... 7.1
Insolvency Laws ................................................ 19.1
Landlord Notice Address ........................................ 1.E.
Landlord Payment Address ....................................... 1.E.
Lease Commencement Date ........................................ 1.D.(2)
Mortgage ....................................................... 27
Mortgagee ...................................................... 27
Operating Costs ................................................ 7.1
Operating Costs Statement ...................................... 7.2
Operating Year ................................................. 7.1
Premises ....................................................... 1.A.(3)
Property ....................................................... 7.1
Public Areas ................................................... Schedule C
REA ............................................................ 7.1
Rental Area .................................................... 3
Rental Year .................................................... 6.1
Rules and Regulations .......................................... 9
Security Deposit ............................................... 1.B.(3)
Tenant Allowance ............................................... 5.1
Tenant Improvements ............................................ 5.1
Tenant Notice Address .......................................... 1.E.
Tenant's Share of Increased Operating Costs .................... 7.2
Tenant's Personal Property ..................................... 15.3
Term ........................................................... 4.1
Termination Date ............................................... 1.D.(3)
Transfer ....................................................... 25
3. LEASED PREMISES; MEASUREMENT.
3.3. Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Premises as shown on the plan attached hereto as
Schedule A, together with the right to use, in common with others, the Common
Area. The rental area of the Premises ("Rental Area") has been computed in
accordance with the applicable formula set forth in Schedule X attached hereto
and made a part hereof.
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3.4. Measurement. Within sixty (60) days following completion of the
Tenant Improvements, either Landlord or Tenant shall have the right to remeasure
the Premises in accordance with the above formula and if such measurement shall
disclose that the Rental Area of the Premises is different from that set forth
in Section 1.A. hereof, the Annual Basic Rent and the Tenant's Fractional Share
shall be adjusted accordingly. If neither party elects to remeasure the Premises
during such sixty (60) day period, then the Rental Area set forth in Section
1.A. shall be conclusively deemed the Rental Area of the Premises.
3.5. Tenant's Right to Expand. Tenant anticipates that its business
operation may grow during the Term of this Lease and such growth could require
Tenant to expand into additional or larger space. To the extent that additional
or larger space is available for leasing at the time Tenant requests same,
Landlord agrees to use reasonable efforts to meet Tenant's reasonable expansion
requirements subject to the following terms and conditions: (a) that the
additional or larger space shall be located either on the third, fourth or fifth
floors of the Building; (b) that the Annual Basic Rent for the additional or
larger alternate space shall be at the current market rental rate for such space
(taking into consideration, the current market tenant improvement rate), as
determined by Landlord, but not more than the rate at which Landlord would offer
such space to any third party; (c) that there shall be no abatement of rent; (d)
that Landlord shall not be obligated to construct, pay for or grant an allowance
with respect to tenant improvements; (e) that Tenant shall not be in default of
the Lease and shall be in possession of the Premises at the time Tenant
exercises this right to expand; and (f) that Tenant shall execute documents in
the form and substance reasonably required by Landlord to reflect the expansion
of the Premises.
Landlord shall have six (6) months following Tenant's notice to satisfy
Tenant's expansion requirements. If Landlord is not able to satisfy Tenant's
expansion requirements within said six (6) month period, then Tenant shall have
the right to terminate this Lease any time after the end of the twenty-fourth
(24th) month of the Term by giving Landlord not less than three (3) months
notice of its election to terminate. Tenant shall have no rights to terminate
this Lease during the first twenty-four months of the Term if Landlord is unable
to satisfy its expansion requirements during said period.
4. TERM AND COMMENCEMENT OF TERM.
4.1. Term. The term of this Lease (the "Term") shall commence on the Lease
Commencement Date; provided, however, that if the Premises are not Ready for
Occupancy as of such Lease Commencement Date for any reason, except for delays
caused by Tenant, then the Lease Commencement Date shall be delayed until the
earlier of:
a. the date on which Tenant shall take possession of all or any
portion of the Premises, provided that such possession shall be only with the
written approval of Landlord; or
b. the date the Premises are Ready for Occupancy;
and, if necessary, the Termination Date shall be adjusted to effect the total
number of years in the Term, as set forth in subsection 1.D. plus the part of
the month, if any, from the adjusted Lease Commencement Date to the first full
month of the Term.
In the event the Premises are not Ready for Occupancy by the Lease
Commencement Date, as initially set forth above, because of a delay caused by
Tenant, then said Lease Commencement Date shall not be delayed and Tenant's
obligations shall commence as of said date, notwithstanding the status of
construction.
The Term shall be for the period of time specified in Section 1.D.(1) plus
the part of the month, if any, from the Lease Commencement Date to the first day
of the first full calendar month in the Term, unless earlier terminated pursuant
to any other provision of this Lease or pursuant to law. At Landlord's
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request, Tenant shall promptly enter into one or more supplementary written
agreements, in such form as Landlord shall reasonably prescribe, specifying the
Lease Commencement Date and the Termination Date.
4.2. Ready For Occupancy. For purposes hereof, the Premises shall be
deemed conclusively ready for occupancy ("Ready for Occupancy") upon the
completion of the following conditions:
a. Landlord has substantially completed its work on the Tenant's
Improvements except for punch list items; and
b. Landlord shall have received any governmental approvals which are
necessary in order for Tenant to occupy the Premises, unless Tenant's acts or
omissions have caused such approvals to be denied, in which case Tenant shall be
deemed to have waived this condition 4.2.b.
5. TENANT IMPROVEMENTS AND ACCEPTANCE OF PREMISES.
5.1. Tenant Improvements. Upon execution of this Lease by Tenant and the
delivery thereof to Landlord, Landlord shall make improvements to the Premises
("Tenant Improvements") in accordance with Plans and Specifications to be
prepared by Landlord and approved in writing by Tenant, which approval shall not
be unreasonably withheld. Once the Plans and Specifications are acceptable to
both parties, it is agreed that same shall be attached hereto and become a part
of this Lease, being identified as Schedule B. All materials shall be
building-standard materials unless otherwise specified in Schedule B. Except as
otherwise specifically provided in this Lease, Landlord shall not be responsible
for performing or paying for the moving or installation of telephone and
computer systems, wiring or cabling, or the acquisition, moving or installation
of Tenant's furnishings, fixtures and equipment in the Premises. Landlord agrees
to bear the cost of the Tenant Improvements in an amount not to exceed Four
Dollars and Fifty Cents ($4.50) per square foot of the Rental Area of the
Premises ("Tenant Allowance"). Tenant covenants and agrees to pay to Landlord
all costs and expenses incurred by Landlord in performing the Tenant
Improvements in excess of the Tenant Allowance and to make such payment within
thirty (30) days after receipt of an invoice for same from Landlord. Any excess
of the Tenant Allowance over the total cost of constructing the Tenant
Improvements shall belong solely to Landlord.
Any other initial improvements to the Premises not shown on the Plans and
Specifications or any special equipment installed in the Premises on behalf of
Tenant (i.e. UPS power supply, supplemental HVAC, etc.) shall be subject to
Landlord's prior written approval and such improvements and/or equipment shall
be constructed or installed by Landlord, and the cost thereof shall be paid by
Tenant to Landlord within thirty (30) days following receipt of an invoice for
same from Landlord. Any amounts payable by Tenant hereunder shall include
Landlord's standard construction management fee, not to exceed thirteen and
one-half percent (13-1/2%), computed on the total cost of construction,
including but not limited to the cost of developing, preparing and modifying
construction drawings.
Landlord covenants and agrees to competitively bid the Tenant Improvement
work and, upon request by Tenant, provide Tenant with copies of all bids and/or
contracts for construction services, provided, Tenant understands and agrees
that Landlord shall have the right to make the final selection from all bids
submitted to Landlord.
5.2. Acceptance of Premises. Prior to occupancy, Landlord and Tenant shall
conduct a joint inspection of the Premises during which they shall develop a
mutually agreeable punchlist of items to be completed by Landlord. Tenant's
occupancy of the Premises shall be deemed to constitute acceptance of the
Premises and acknowledgment by Tenant that Landlord has fully complied with its
obligations hereunder to construct and deliver the Premises to Tenant, except
for the punchlist items, which shall be completed by Landlord within a
reasonable time thereafter. Landlord shall have the right to enter the Premises
to complete or repair any such punchlist items and entry by Landlord, its
agents, employees or contractors for such purpose shall not constitute an actual
or constructive eviction, in whole or in part, or
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entitle Tenant to any abatement or diminution of rent or relieve Tenant of any
of its obligations under this Lease, or impose any liability upon Landlord or
its agents, employees or contractors.
6. RENT.
6.1. Annual Basic Rent. Tenant shall pay to Landlord during each Rental
Year of the Term fixed rent equal to the Annual Basic Rent as set forth in
Section 1.B.(1). Annual Basic Rent shall be payable in advance on the first day
of each month of the Term in equal monthly installments, without notice, demand,
abatement (except as otherwise specifically provided in this Lease), deduction
or set-off. If the Term of this Lease shall commence on a day other than the
first day of a month, the first payment shall include any prorated Annual Basic
Rent for the period from the Lease Commencement Date to the first day of the
first full calendar month of the Term.
"Rental Year" shall mean each successive twelve (12) calendar month period
occurring during the Term of this Lease, or portion of such a period, with the
first Rental Year commencing as of the Lease Commencement Date and ending on the
last day of the twelfth full calendar month thereafter and the last Rental Year
ending on the Termination Date. For any Rental Year of less or more than twelve
full months, Annual Basic Rent shall be adjusted accordingly. All Annual Basic
Rent and Tenant's Share of Increased Operating Costs shall be paid to Landlord
at the Landlord Payment Address.
6.2. Intentionally omitted.
6.3. Intentionally Omitted.
6.4 Advance Rent; Security Deposit.
A. Advance Rent. Intentionally Deleted.
B. Security Deposit. Tenant shall, upon execution of this Lease,
deposit with Landlord the Security Deposit to assure Tenant's performance of all
terms, provisions and conditions of this Lease. Landlord shall have the right,
but not the obligation, at any time, to apply the Security Deposit to cure any
breach by Tenant under this Lease and, in that event, Tenant shall immediately
pay Landlord any amount necessary to restore the Security Deposit to its
original amount. To the extent permitted by law, Landlord shall be entitled to
the full use of the Security Deposit and shall not be required either to keep
the Security Deposit in a separate account or to pay interest on account
thereof. Any portion of the Security Deposit which is not utilized by Landlord
for any purpose permitted under this Lease shall be returned to Tenant within
sixty (60) days after the end of the Term provided Tenant has performed all of
the obligations imposed upon Tenant pursuant to this Lease.
6.5. Late Charge. Tenant hereby acknowledges that the late payment of rent
by Tenant to Landlord will cause Landlord to incur costs not contemplated in
this Lease, the exact amount of which will be difficult and impracticable to
ascertain. Such costs include, but are not limited to, processing,
administrative, and accounting costs. Accordingly, if Tenant fails to make any
payment of Annual Basic Rent, Tenant's Share of Increased Operating Costs, or
other sums required to be paid hereunder on or before the date when payment is
due, Tenant shall pay to Landlord a late charge to cover extra administrative
costs and loss of use of funds equal to (a) six percent (6%) of the amount due
for the first month or portion thereof that such amount is past due plus (b)
interest on the amount remaining unpaid thereafter at the rate of twenty-four
percent (24%) per annum; provided, however, that should such late charge at any
time violate any applicable law, the late charge shall be reduced to the highest
rate permitted by law (the foregoing rate being herein referred to as the
"Default Rate"). Such late charge represents a fair and reasonable estimate of
the costs that Landlord will incur by reason of late payment of rent by Tenant
and is not intended to constitute a penalty. Landlord's acceptance of any rent
after it has become
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due and payable shall not excuse any delays with respect to future rental
payments or constitute a waiver of any of Landlord's rights under this Lease.
6.6. Additional Taxes. In addition to the Rent and all other sums payable
by Tenant hereunder, Tenant shall promptly pay to Landlord any transaction
privilege, use or franchise taxes assessed or levied upon Landlord with respect
to the rentals or other payments made under leases for the Building, and whether
paid to or for the benefit or account of Landlord, as well as all taxes assessed
or imposed upon Landlord's gross receipts, gross income, other receipts or other
benefits received or deemed by the taxing authority to have been received from
leasing the Building, including, without limitation, the transaction privilege
tax of Arizona, any tax imposed by the City of Phoenix, as well as any similar
privilege, franchise or excise tax imposed by any other governmental body, and
any taxes assessed or imposed in lieu of or in substitution for any of the
foregoing taxes, whether now existing or hereafter enacted, excluding, however,
any income taxes imposed on Landlord in connection with leases for the Building
unless levied in substitution or in lieu of any of the foregoing taxes. Tenant
shall apply for a separate privilege tax license related solely to the Premises.
7. OPERATING COST ESCALATIONS.
7.1. Definitions. For purposes of this Lease, the following definitions
shall apply:
a. "Operating Year" means each respective calendar year or part
thereof during the Term of this Lease or any renewal thereof, or at the option
of Landlord, any other twelve month period or part thereof designated by
Landlord during the Term of this Lease or any renewal thereof.
b. "Property" means the Building, the land upon which the Building
is situated, the Common Area, and such additional facilities in subsequent years
as may be determined by Landlord to be reasonably necessary or desirable for the
management, maintenance or operation of the Building.
c. "Operating Costs" means all expenses and costs (but not specific
costs which are allocated or separately billed to and paid by specific tenants)
of every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with owning, operating, managing, painting,
repairing, insuring and cleaning the Property, including, but not limited to,
the following:
(i) cost of all supplies and materials used, and labor charges
incurred, in the operation, maintenance, decoration, repairing and cleaning of
the Property, including janitorial service for all floor area leased to tenants;
(ii) cost of all equipment purchased or rented which is utilized
in the performance of Landlord's obligations hereunder, and the cost of
maintenance and operation of any such equipment;
(iii) cost of all maintenance and service agreements for the
Property and the equipment therein, including, without limitation, alarm
service, security service, window cleaning, and elevator maintenance;
(iv) accounting costs, including the cost of audits by certified
public accountants, outside legal and engineering fees and expenses incurred in
connection with the operation and management of the Property;
(v) wages, salaries and related expenses including the costs of
all on-site and off-site agents or employees engaged in the operation,
maintenance, security and management of the Property; provided, however, the
wages, salaries and related expenses of any agents or employees not exclusively
engaged in the operation, maintenance, security and management of the Property
shall be apportioned as deemed appropriate by Landlord;
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(vi) cost of repairs, replacements and general maintenance to
the Property, including without limitation the mechanical, electrical and
heating, ventilating and air-conditioning equipment and/or systems (excluding
alterations attributable solely to tenants, capital improvements unless they are
included under c(xi), and repairs and general maintenance paid by proceeds of
insurance or by tenants or other third parties);
(vii) any and all Common Area maintenance, repair or redecoration
(including repainting) and exterior and interior landscaping;
(viii) cost of removal of trash, rubbish, garbage and other refuse
from the Property as well as removal of ice and snow from the sidewalks on or
adjacent to the Property;
(ix) all charges for electricity, gas, water, sewerage service,
heating, ventilation and air-conditioning and other utilities furnished to the
Property (including legal, architectural and engineering fees incurred in
connection therewith);
(x) amortization of capital improvements made to the Building
after the year of substantial completion of the Building, which improvements
were undertaken by Landlord with the reasonable expectation that the same would
result in more efficient operation of the Building or are made by Landlord
pursuant to any governmental law, regulation or action not applicable to the
Building at commencement of construction of the Building; provided that the cost
of each such capital improvement, together with any financing charges incurred
in connection therewith, shall be amortized over the useful life thereof and
only that portion attributable to each Operating Year shall be included herein
for such Operating Year;
(xi) a management fee for the operation and management of
the Property;
(xii) costs and expenses incurred in order to comply with
covenants and conditions contained in liens, encumbrances and other matters of
public record affecting the Property; and
(xiii) cost of all insurance coverage for the Property from time
to time maintained by Landlord, including but not limited to the costs of
premiums for insurance with respect to personal injury, bodily injury, including
death, property damage, business interruption, workmen's compensation insurance
covering personnel and such other insurance as Landlord shall deem necessary,
which insurance Landlord may maintain under policies covering other properties
owned by Landlord in which event the premium shall be reasonably allocated;
(xiv) all real estate taxes, personal property taxes levied
pursuant to Arizona Revised Statutes, Sections 42-681, et seq., relating to
possessory interests, assessments (special or otherwise), levies, ad valorem
charges, benefit charges, water and sewer rents, rates and charges, privilege
permits and any other governmental liens, impositions or charges of a similar or
dissimilar nature, including but not limited to any assessment imposed or
voluntarily paid pursuant to Arizona Revised Statutes, Sections 42-571, et seq.,
and any payments in lieu of such charges, regardless of whether any such items
shall be extraordinary or ordinary, general or special, foreseen or unforeseen,
levied, assessed, or imposed on or with respect to all or any part of the
Property or upon the rent due and payable hereunder by the City of Phoenix,
County of Maricopa, State of Arizona, or any other taxing authority, or pursuant
to an allocation thereof charged against the Property under an REA (all of the
foregoing being referred to as "Taxes"); provided, however, that if at any time
during the Term or any extension thereof the method of taxation prevailing at
the commencement of the Term shall be altered or eliminated so as to cause the
whole or any part of the above items which would otherwise be included in Taxes
to be replaced by a levy, assessment or imposition, which is (A) a tax
assessment, levy, imposition or charge based on the rents received from the
Property whether or not wholly or partially a capital levy or otherwise, or (B)
a tax,
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assessment, levy, imposition or charge measured by or based in whole or in part
upon all or any portion of the Property and imposed on Landlord, or (C) a
license fee measured by the rent payable by Tenant to Landlord, or (D) any other
tax, levy, imposition, charge or license fee, however described or imposed, then
such levy, assessment or imposition shall be included in Taxes; provided,
however, in no event shall Tenant be required to pay any inheritance, estate,
succession, income, profits or franchise taxes unless they are in lieu of or in
substitution for any of the above items which would otherwise be included in
Taxes.
Any of the foregoing costs which under generally accepted accounting
principles would be considered capital expenditures shall be amortized in
accordance with generally accepted accounting principles.
Notwithstanding the above, Operating Costs shall not include (a) payments
of principal and interest on any mortgages, deeds of trust or other financing
instruments relating to the financing of the Property, (b) leasing commissions
or brokerage fees, and (c) costs associated with preparing, improving or
altering for space for any leasing or releasing of any space within the
Building.
For any Operating Year during which less than ninety-five percent (95%) of
the Rental Area of the Building is occupied, the calculation of that portion of
Operating Costs which vary with occupancy shall be adjusted to equal the
Operating Costs which Landlord projects would have been incurred had the
Building been ninety-five percent occupied during such Operating Year.
d. "Fractional Share" shall mean a fraction, the numerator of which
is the Rental Area of the Premises and the denominator of which is the total
Rental Area of the Building. For the purposes of this subparagraph, the Rental
Area of the Building shall mean the sum of the Rental Area of all floors of the
Building as determined by Landlord.
7.2. Payment of Operating Cost Escalation. For each Operating Year,
commencing January 1, 2000, Tenant shall pay to Landlord, in the manner provided
herein, Tenant's share of increased Operating Costs which shall be computed by
multiplying the Operating Costs for the Operating Year by Tenant's Fractional
Share and subtracting the Base Operating Costs from the result obtained
("Tenant's Share of Increased Operating Costs") but in no event less than the
Base Operating Costs; provided, however, that for the Operating Years during
which the Term begins and ends, Tenant's Share of Increased Operating Costs
shall be prorated based upon the actual number of days Tenant occupied, or could
have occupied, the Premises during each such Operating Year.
Tenant's Share of Increased Operating Costs shall be paid, in advance,
without notice, demand, abatement (except as otherwise specifically provided in
this Lease), deduction or set-off, on the first day of each calendar month
during the Term, said monthly amounts to be determined on the basis of estimates
prepared by Landlord on an annual basis and delivered to Tenant prior to the
commencement of each Operating Year. If, however, Landlord fails to furnish any
such estimate prior to the commencement of an Operating Year, then (a) until the
first day of the month following the month in which such estimate is furnished
to Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this subsection 7.2
in respect of the last month of the preceding Operating Year; (b) promptly after
such estimate is furnished to Tenant, Landlord shall give notice to Tenant
whether the installments of Tenant's Share of Increased Operating Costs paid by
Tenant for the current Operating Year have resulted in a deficiency or
overpayment compared to payments which would have been paid under such estimate,
and Tenant, within ten (10) days after receipt of such estimate, shall pay any
deficiency to Landlord and any overpayment shall be credited against future
payments required by Tenant under such estimate; and (c) on the first day of the
month following the month in which such estimate is furnished to Tenant and
monthly thereafter throughout the remainder of the Operating Year, Tenant shall
pay to Landlord the monthly payment shown on such estimate. Landlord may at any
time or from time to time furnish to Tenant a revised estimate of Tenant's Share
of Increased Operating
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Costs for such Operating Year, and in such case, Tenant's monthly payments shall
be adjusted and paid or credited, as the case may be, substantially in the same
manner as provided in the preceding sentence.
After the end of each Operating Year, Landlord shall determine actual
Operating Costs for such Operating Year and shall provide to Tenant an
"Operating Costs Statement" setting forth the actual Tenant's Share of Increased
Operating Costs for such Operating Year. Within thirty (30) days after delivery
of the Operating Costs Statement, Tenant shall pay Landlord any deficiency
between the amount shown as Tenant's Share of Increased Operating Costs in the
Operating Costs Statement and the total of the estimated payments made by Tenant
during the Operating Year. In the event of overpayment, such amount shall be
credited against future payments required on account of Tenant's Share of
Increased Operating Costs, or if the Term has expired, Landlord shall refund to
Tenant the amount of any overpayment.
Each Operating Costs Statement provided by Landlord shall be conclusive
and binding upon Tenant unless within thirty (30) days after receipt thereof,
Tenant notifies Landlord that it disputes the correctness thereof, specifying
those respects in which it claims the Operating Costs Statement to be incorrect.
Unless resolved by the parties, such dispute shall be determined by arbitration
in accordance with the then prevailing rules of the American Arbitration
Association. If the arbitration proceedings result in a determination that the
Operating Costs Statement contained an aggregate discrepancy of less than five
percent (5%), Tenant shall bear all costs in connection with such arbitration.
Pending determination of the dispute, Tenant shall pay any amounts due from
Tenant in accordance with the Operating Costs Statement, but such payment shall
be without prejudice to Tenant's claims. Tenant, for a period of thirty (30)
days after delivery of the Operating Costs Statement in each Operating Year and
upon at least ten (10) days written notice to Landlord, shall have reasonable
access during Landlord's normal business hours (8:30 a.m. until 5:00 p.m. on
business days) to the books and records of Landlord relating to Operating Costs
for the purpose of verifying the Operating Costs Statement, Tenant to bear all
costs relating to such inspection. Tenant shall reimburse Landlord for any cost
for photocopying that it desires.
8. USE, CARE AND REPAIR OF PREMISES BY TENANT.
8.1. Permitted Uses. Tenant shall use and occupy the Premises solely for
general office purposes in accordance with applicable zoning regulations and for
no other purpose. Tenant shall not do anything or permit anything to be done in
or on the Premises, or bring or keep anything therein which will, in any way,
obstruct, injure, annoy or interfere with the rights of Landlord or other
tenants, or subject Landlord to any liability for injury to persons or damage to
property, or interfere with the good order of the Building, or conflict with the
laws, rules or regulations of any Federal, state or city authority. Tenant shall
apply for a separate privilege tax license with regard to the business carried
on by Tenant in the Premises.
8.2. Care of Premises. Tenant shall, at its sole expense, keep the
Premises and the improvements and appurtenances therein in good order and
condition consistent with the operation of a first-class office building, and at
the expiration of the Term, or at the sooner termination of this Lease as herein
provided, deliver up the same broom clean and in as good order and condition as
at the beginning of the Term, ordinary wear and tear and damage by fire or other
casualty excepted. Tenant, at its sole expense, shall promptly replace damaged
or broken doors and glass in and about the interior of the Premises and shall be
responsible for the repair and maintenance of all special or custom Tenant
Improvements and Alterations, including, without limitation, the repair and
replacement of appliances and equipment installed specifically for Tenant such
as refrigerators, disposals, computer room air conditioning, sinks and special
plumbing, special light fixtures and bulbs for those fixtures, non-standard
outlets and plug-in strips, and special cabinetry. Consistent with the
provisions of Section 22, Tenant shall pay for all property damage sustained by
other tenants or occupants of the Building, due to any waste, misuse or neglect
by Tenant of the Premises and any fixtures and appurtenances related thereto or
due to any breach of this Lease by Tenant, its employees, agents,
representatives or invitees.
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8.3. Hazardous Substances. For purposes of this provision, "Hazardous
Substances" shall mean any hazardous or toxic substance, material or waste, now
or hereafter defined or regulated under the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.), the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the Clean
Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section
7401 et seq.), and the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), and all similar federal, state and local statutes, laws, rules and
regulations in connection with environmental conditions, health and safety,
including without limitation, asbestos and petroleum products (collectively,
"Environmental Laws"). Tenant covenants and agrees that it will not use or allow
the Premises to be used for the storage, use, treatment or disposal of any
Hazardous Substance, without Landlord's prior written consent. Notwithstanding
the foregoing, Landlord's prior written consent shall not be required with
respect to Tenant's use, storage or sale of certain supplies or products, which
might contain or might be considered a Hazardous Substance, in the normal course
of Tenant's business in accordance with the specific use permitted by this
Lease, provided, however, that Tenant shall (i) comply with all other provisions
of this Section; (ii) notify Landlord in writing from time to time of the
identity and approximate quantity of such Hazardous Substance; and (iii) keep
each such Hazardous Substance on the Premises in quantities as small as
reasonably practicable, but in no event large enough to activate reporting
requirements under any Environmental Law. Tenant, at Tenant's sole cost and
expense shall promptly contain and remediate any release of a Hazardous
Substance on the Property to the extent such release arises directly from the
actions of Tenant, its agents, servants and employees.
Tenant shall indemnify, reimburse and hold harmless Landlord, its
partners and affiliates agents from and against any damages, claims, judgments,
fines, penalties, costs, liabilities (including sums paid in settlement of
claims) or loss including reasonable attorneys' fees, reasonable consultants'
fees, and reasonable expert fees incurred by any of them to the extent resulting
from Tenant's use, handling, generation, treatment, storage, disposal, other
management or release of any Hazardous Substance at or from the Premises or the
Property, whether or not Tenant has acted negligently with respect to such
Hazardous Substance. This indemnity shall survive the expiration or earlier
termination of this Lease.
8.4. Compliance with Laws. Tenant, at its sole cost and expense, shall
conform to and comply with and shall cause the Premises to conform to and comply
with all federal, state, county, municipal and other governmental statutes,
laws, rules, orders, regulations, and ordinances applicable to Tenant or
resulting from Tenant's use or occupancy of the Premises or the Property or any
part thereof.
9. RULES AND REGULATIONS.
Tenant and its agents and invitees shall abide by and observe the rules
and regulations attached hereto as Schedule C for the operation and maintenance
of the Building or any new rules and regulations which may from time to time be
issued by Landlord ("Rules and Regulations"), provided that any new rules or
regulations are not inconsistent with the provisions of this Lease. Nothing in
this Lease shall be interpreted to impose upon Landlord any duty or obligation
to enforce any such rules and regulations against any other tenant in the
Building, and Landlord shall not be liable to Tenant for any violation of these
rules and regulations by any other tenant or its agents or invitees.
10. COMMON AREA.
10.1. Definition of Common Area. As used herein, "Common Area" means those
areas and facilities which may be furnished by Landlord on or near the Property,
as designated by Landlord from time to time, intended for the general common use
and benefit of all tenants of the Building and their agents, representatives,
licensees, employees and invitees, including, without limitation, any and all
stairs, landings, roofs, utility and mechanical rooms and equipment, service
closets, corridors, elevators, lobbies, lavatories and other public areas of the
Building and all access roads, pedestrian walkways, plazas and landscaped areas
(including the Gardens at Arizona Center), and loading docks located upon the
Property. Common Area shall not include any parking decks or parking garages.
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10.2. Use of Common Area. Tenant shall have the non-exclusive right to use
the Common Area in common with Landlord, other tenants in the Building, and
others entitled to the use thereof, subject to such reasonable rules and
regulations governing the use of the Common Area as Landlord may from time to
time prescribe and subject to such easements therein as Landlord may from time
to time grant to others. Tenant shall not obstruct in any way any portion of the
Common Area or in any way interfere with the rights of other persons entitled to
use the Common Area and shall not, without the prior written consent of
Landlord, use the Common Area in any manner, directly or indirectly, for the
location or display of any merchandise or property belonging to Tenant or for
the location of signs relating to Tenant's operations in the Premises. The
Common Area shall at all times be subject to the exclusive control and
management of Landlord.
10.3. Alterations to the Common Area. Landlord reserves the right at any
time and from time to time (i) to change or alter the location, layout, nature
or arrangement of the Common Area or any portion thereof, including but not
limited to the arrangement and/or location of entrances, passageways, doors,
corridors, stairs, lavatories, elevators, parking areas, and other public areas
of the building, and (ii) to construct additional improvements on the Property
and make alterations thereof or additions thereto and build additional stories
on or in any such buildings or build adjoining same; provided, however, that no
such change or alteration shall deprive Tenant of access to the Premises or
reduce the Rental Area of the Premises, unless such reduction is required by
Federal, State or local laws or regulations, in which event, a reduction in the
Premises shall be permitted with a commensurate reduction in rent. Landlord
shall have the right to close temporarily all or any portion of the Common Area
to such extent as may, in the reasonable opinion of Landlord, be necessary to
prevent a dedication thereof to the public, provided that Tenant is not thereby
denied access to the Premises, or for repairs, replacements or maintenance to
the Common Area, provided such repairs, replacements or maintenance are
performed expeditiously and in such a manner as not to deprive Tenant of access
to the Premises.
10.4. Maintenance. Landlord covenants to keep, maintain, manage and
operate the Common Area in a manner consistent with the operation of a first
class office building and to keep the sidewalks and driveways, if any,
constituting a portion of the Common Area clean and reasonably clear of snow and
ice. Landlord reserves the right of access to the Common Area through the
Premises for the purposes of operation, decoration, cleaning, maintenance,
safety, security, alterations and repairs.
11. SERVICES AND UTILITIES.
So long as Tenant is not in an Event of Default under this Lease, Landlord
shall provide the following facilities and services to Tenant, the cost of such
facilities and services to be included in Landlord's Operating Costs (except as
otherwise provided herein):
a. At least one elevator (if the building contains an elevator) subject to
call at all times, including Sundays and holidays.
b. During "Tenant's operating hours" as hereinafter defined, central
heating and air conditioning during the seasons of the year when these services
are normally and usually furnished, and within the temperature ranges and in
such amounts normally or usually furnished in comparable office buildings in the
immediate vicinity. For the purposes of this paragraph b, the term "Tenant's
operating hours" shall mean the periods from 8:00 a.m. until 12:00 a.m. daily.
The legal holidays observed by Landlord are New Year's Day, Memorial Day
observed, Independence Day, Labor Day, Thanksgiving, and Christmas. Landlord
shall provide the aforesaid services at other times, at Tenant's expense,
provided Tenant gives Landlord notice by 1:00 p.m. on weekdays for after-hour
service on the next weekday, by 1:00 p.m. the day before a holiday for service
on a holiday, and by 1:00 p.m. on Friday for after-hour service on Saturday or
service on Sunday. Such after-hour, holiday or special weekend service shall be
charged to Tenant at rates to be calculated by Landlord based on Landlord's
costs, which rates shall be given to
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Tenant on request. Landlord reserves the right to adjust, from time to time, the
rate at which such services shall be provided corresponding to adjustments in
Landlord's costs. Tenant shall pay for such service promptly upon receipt of an
invoice with respect thereto. As of the Lease Commencement Date, the cost of
such after-hour service is Forty Dollars ($40.00) per hour per floor.
For the purposes of this Section, the term "holidays" shall include: New
Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Notwithstanding anything contained in this
Section 11 to the contrary, Landlord reserves the right to submeter the Premises
to measure the actual amount of electricity used and xxxx Tenant for same.
c. Reasonable amounts of electric current for lighting and normal and
customary items of office equipment (subject to the provisions of Section 12
below).
d. Cleaning in Landlord's standard manner.
e. Replacement of light tubes or bulbs for building standard lighting
fixtures. All light tube or bulb replacements for special non-standard lighting
fixtures shall be furnished and installed by Landlord at Tenant's expense.
f. Rest room facilities and necessary lavatory supplies, including hot and
cold running water at the points of supply, as provided for general use of all
tenants in the Building and routine maintenance, painting, and electric lighting
service for all public areas of the Building in such manner as Landlord deems
reasonable.
Any failure by Landlord to furnish the foregoing services, resulting from
circumstances beyond Landlord's reasonable control or from interruption of such
services due to repairs or maintenance, shall not render Landlord liable in any
respect for damages to either person or property, nor be construed as an
eviction of Tenant, nor cause an abatement of rent hereunder, nor relieve Tenant
from any of its obligations hereunder. If any public utility or governmental
body shall require Landlord or Tenant to restrict the consumption of any utility
or reduce any service for the Premises or the Building, Landlord and Tenant
shall comply with such requirements, whether or not the utilities and services
referred to in this Section 11 are thereby reduced or otherwise affected,
without any liability on the part of Landlord to Tenant or any other person or
any reduction or adjustment in rent payable hereunder. Landlord and its agents
shall be permitted reasonable access to the Premises for the purpose of
installing and servicing systems within the Premises deemed necessary by
Landlord to provide the services and utilities referred to in this Section 11 to
Tenant and other tenants in the Building.
Landlord reserves the right to charge Tenant the reasonable cost, based on
usage, of the removal of all trash and the reasonable cost of water/sewerage or
electric service to the extent Tenant's trash disposal, water/sewerage and/or
electrical usage exceeds, in Landlord's reasonable opinion, normal usage for an
office tenant.
12. ELECTRIC CURRENT.
Landlord shall be under no obligation to furnish electrical energy to
Tenant in amounts greater than needed for lighting and normal and customary
items of equipment for general office purposes, and Tenant shall not install or
use on the Premises any electrical equipment, appliance or machine which shall
require amounts of electrical energy exceeding the standard wattage provided for
the Building, unless the installation and use of such additional electrical
equipment, appliance, or machine has been approved by Landlord pursuant to terms
and conditions set forth in a separate agreement, which approval shall not be
unreasonably withheld and may be conditioned upon the payment by Tenant of the
cost of the additional electrical energy and modifications to the Building's
electrical system required for the operation of such electrical equipment,
appliance, or machine.
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13. LOSS, DAMAGE AND INJURY.
To the maximum extent permitted by law, Tenant shall occupy and use the
Premises, the Building and the Common Area at Tenant's own risk. Consistent with
the provisions of subsection 16.4, Tenant's Personal Property and personal items
of those claiming by, through or under Tenant, located in or on the Premises or
the Building shall be and remain at the sole risk of Tenant or such other
person.
No representation, guaranty, assurance, or warranty is made or given by
Landlord that the communications or security systems, devices or procedures
used, if any, will be effective to prevent injury to Tenant or any other person
or damage to, or loss (by theft or otherwise) of any of Tenant's Personal
Property or of the property of any other person, and Landlord reserves the right
to discontinue or modify at any time such communications or security systems,
devices, or procedures without liability to Tenant.
14. REPAIRS BY LANDLORD.
Landlord shall keep the Premises and the Building and all machinery,
equipment, fixtures and systems of every kind attached to, or used in connection
with the operation of, the Building, including all electrical, heating,
mechanical, sanitary, sprinkler, utility, power, plumbing, cleaning,
refrigeration, ventilating, air conditioning and elevator systems and equipment
(excluding, however, lines, improvements, systems and machinery for water, gas,
steam and electricity owned and maintained by any public utility company or
governmental agency or body) in good order and repair consistent with the
operation of the Building as a first-class office building. Landlord, at its
expense (subject to reimbursement by Tenant pursuant to Section 7), shall make
all repairs and replacements necessary to comply with its obligations set forth
in the immediately preceding sentence, except for (a) repairs required to be
made by Tenant pursuant to Section 8 and (b) repairs caused by the willful
misconduct of Tenant, its agents, employees, invitees and guests, which repairs
shall be made by Landlord at the cost of Tenant, and for which Tenant shall pay
promptly upon receipt of an invoice setting forth the cost of such repairs.
There shall be no abatement in rents due and payable hereunder and no liability
on the part of Landlord by reason of any inconvenience or annoyance arising from
Landlord's making repairs, additions or improvements to the Building in
accordance with its obligations hereunder.
15. ALTERATIONS, TITLE AND PERSONAL PROPERTY.
15.1. Alterations. Tenant shall in no event make or permit to be made any
alteration, modification, substitution or other change of any nature to the
mechanical, electrical, plumbing, HVAC , and sprinkler systems within or serving
the Premises. After completion of Tenant's Improvements within the Premises,
Tenant shall not make or permit any other improvements, alterations, fixed
decorations, substitutions or modifications, structural or otherwise, to the
Premises or the Building ("Alterations") without the prior written approval of
Landlord. Landlord's approval shall include the conditions under which
acceptable Alterations may be made. Alterations shall include, but not be
limited to, the installation or modification of carpeting, walls, partitions,
counters, doors, shelves, lighting fixtures, hardware, locks, ceiling, window
and wall coverings; but shall not include the initial Tenant's Improvements
placed within the Premises pursuant to Section 5.1. All Alterations shall be
based on complete plans and specifications prepared and submitted by Tenant to
Landlord for approval, except in the instance of cosmetic changes, such as
painting and carpeting, in which case Tenant shall provide Landlord with samples
showing colors, styles, etc. All Alterations shall be made by Landlord at
Tenant's sole cost, payable by Tenant within thirty (30) days after receipt of
an invoice for same from Landlord, which cost shall include Landlord's standard
construction management fee. Tenant shall be responsible for the cost of any
additional improvements within the Premises or the Common Area required by The
Americans with Disabilities Act of 1990 as a result of Tenant's Alterations.
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If Tenant makes any Alterations without the prior consent of Landlord,
then, in addition to Landlord's other remedies, Landlord may correct or remove
such Alterations and Tenant shall pay the cost thereof on demand.
15.2. Title. The Tenant Improvements, all Alterations and all equipment,
machinery, furniture, furnishings, and other property or improvements installed
or located in the Premises by or on behalf of Landlord or Tenant, other than
Tenant's Personal Property, (a) shall immediately become the property of
Landlord and (b) shall remain upon and be surrendered to Landlord with the
Premises as a part thereof at the end of the Term. Notwithstanding the
foregoing, Landlord may, upon notice to Tenant at the time Alterations are made,
elect that any Alterations be removed at the end of the Term, and thereupon,
Landlord shall at Tenant's sole expense, cause such Alterations to be removed
and restore the Premises to its condition prior to the making of such
Alterations, reasonable wear and tear excepted. Tenant shall promptly reimburse
Landlord for the cost of such work, which reimbursement obligation shall survive
termination of the Lease.
15.3. Tenant's Personal Property. "Tenant's Personal Property" means all
equipment, machinery, furniture, furnishings and/or other property now or
hereafter installed or placed in or on the Premises by and at the sole expense
of Tenant with respect to which Tenant has not been granted any credit or
allowance by Landlord and which (a) is not used, or was not procured for use, in
connection with the operation, maintenance or protection of the Premises or the
Building; (b) is removable without damage to the Premises or the Building; and
(c) is not a replacement of any property of Landlord, whether such replacement
is made at Tenant's expense or otherwise. Notwithstanding any other provision of
this Lease, Tenant's Personal Property shall not include any Alterations or any
improvements or other property installed or placed in or on the Premises as part
of Tenant's Improvements, whether or not installed at Tenant's expense. Tenant
shall promptly pay all personal property taxes on Tenant's Personal Property, as
applicable. Provided that Tenant is not then in default of any of its
obligations under this Lease, Tenant may remove all Tenant's Personal Property
from the Premises at the termination of this Lease. Any property belonging to
Tenant or any other person which is left in the Premises after the date the
Lease is terminated for any reason shall be deemed to have been abandoned. In
such event, Landlord shall have the right to declare itself the owner of such
property and to dispose of it in whatever manner Landlord considers appropriate
without waiving its right to claim from Tenant all expenses and damages caused
by Tenant's failure to remove such property, and Tenant shall not have any right
to compensation or claim against Landlord as a result.
16. INSURANCE.
16.1. Tenant's Insurance. Tenant, at its expense, shall obtain and
maintain in effect as long as this Lease remains in effect and during such other
time as Tenant occupies the Premises or any part thereof insurance policies in
accordance with the following provisions.
A. Coverage.
(i) commercial general liability insurance policy, including
insurance against assumed or contractual liability under this Lease, with
respect to the Property, to afford protection with limits, per occurrence, of
not less than Two Million Dollars ($2,000,000), combined single limit, with
respect to personal injury, bodily injury, including death, and property damage
and Four Million Dollars ($4,000,000) aggregate (occurrence form), such
insurance to provide for no deductible;
(ii) all-risk property insurance policy, including theft, written at
replacement cost value and with replacement cost endorsement, covering all of
Tenant's Personal Property in the Premises, and covering loss of income
resulting from casualty, such insurance to provide for no deductible greater
than Five Thousand Dollars ($5,000).
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(iii) worker's compensation or similar insurance policy offering
statutory coverage and containing statutory limits, which policy shall also
provide Employer's Liability Coverage of not less than Five Hundred Thousand
Dollars ($500,000) per occurrence.
(iv) Tenant shall require any construction contractor retained by it
to perform work on the Premises to carry and maintain, at no expense to
Landlord, during such times as contractor is working in the Premises, a
non-deductible (a) commercial general liability insurance policy, including, but
not limited to, contractor's liability coverage, contractual liability coverage,
completed operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford protection with limits per
person and for each occurrence, of not less than Two Million Dollars
($2,000,000), combined single limit, and with respect to personal injury and
death and property damage, Four Million Dollars ($4,000,000) aggregate
(occurrence form) and Two Million Dollars ($2,000,000) aggregate completed
operations; (b) automobile liability insurance in the amount of One Million
Dollars ($1,000,000) combined single limit for bodily injury and property
damage; (c) worker's compensation insurance or similar insurance in form and
amounts as required by law; and (d) any other insurance reasonably required of
Tenant by Landlord or any Mortgagee.
(v) Notwithstanding anything set forth above in this subsection 16.1
to the contrary, all dollar limits specified herein shall be increased from time
to time as reasonably necessary to effect economically equivalent insurance
coverage, or coverage deemed adequate in light of then existing circumstances.
B. Policies.
Such policies shall be maintained with companies licensed to do business
in the State where the Premises are located and in form reasonably acceptable to
Landlord and will be written as primary policy coverage and not contributing
with, or in excess of, any coverage which Landlord shall carry. Such policies
shall be provided on an occurrence form basis unless otherwise approved by
Landlord and shall include Landlord and its managing agent as additional insured
as to coverage under paragraphs 16.1.A.(i) and 16.1.A.(iv). Such policies shall
also contain a waiver of subrogation provision and a provision stating that such
policy or policies shall not be canceled, non-renewed, reduced in coverage or
materially altered except after thirty (30) day's written notice, said notice to
be given in the manner required by this Lease to Landlord, Attention: Risk
Management Department. All such policies of insurance shall be effective as of
the date Tenant occupies the Premises and shall be maintained in force at all
times during the Term of this Lease and all other times during which Tenant
shall occupy the Premises. Tenant shall deposit the policy or policies of such
required insurance or certificates thereof with Landlord prior to the Lease
Commencement Date.
16.2. Tenant's Failure to Insure. If Tenant shall fail to obtain insurance
as required under this Section 16, Landlord may, but shall not be obligated to,
obtain such insurance, and in such event, Tenant shall pay the premium for such
insurance upon demand by Landlord.
16.3. Compliance with Policies. Tenant shall not do or allow to be done,
or keep, or allow to be kept, anything in, upon or about the Premises which will
contravene Landlord's policies insuring against loss or damage by fire, other
casualty, or any other cause, including without limitation, public liability, or
which will prevent Landlord from procuring such policies in companies acceptable
to Landlord. If any act or failure to act by Tenant in and about the Building
and the Premises shall cause the rates with respect to Landlord's insurance
policies to be increased beyond those rates that would normally be applicable
for such limits of coverage, Tenant shall pay the amount of any such increases
upon demand by Landlord.
16.4. Waiver of Right of Recovery. Except as provided in Section 8.3,
neither party, including Landlord's managing agent, shall be liable to the other
party, including Landlord's managing agent, or to any insurance company (by way
of subrogation or otherwise) insuring the other party, for any loss or
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damage to any building, structure or other tangible property, or loss of income
resulting therefrom, or losses under worker's compensation laws and benefits
even though such loss or damage might have been occasioned by the negligence of
such party, its agents or employees. The provisions of this Section 16.4 shall
not limit the indemnification for liability to third parties pursuant to Section
22.
16.5. Landlord's Insurance. Landlord shall carry commercial general
liability insurance with regard to the Property and all-risk property insurance
on the Property, including Tenant Improvements and Alterations but excluding
Tenant's Personal Property.
Landlord shall not be obligated to repair any damage to Tenant's Personal
Property or replace the same.
17. DAMAGE AND DESTRUCTION.
17.1. Landlord's Obligation to Repair and Reconstruct. If, as the result
of fire, the elements, accident or other casualty (any of such causes being
referred to herein as a "Casualty"), the Premises shall be rendered wholly or
partially untenantable (damaged to such an extent as to preclude Tenant's use of
the Premises for the purposes originally intended), then, subject to the
provisions of subsection 17.2, Landlord shall cause such damage to be repaired,
including Tenant Improvements and Alterations, and the Annual Basic Rent and
Tenant's Share of Increased Operating Costs (but not any amounts due Landlord
either by reason of Tenant's failure to perform any of its obligations hereunder
or by reason of Landlord's having provided Tenant with additional services
hereunder) shall be abated proportionately as to the portion of the Premises
rendered untenantable during the period of such untenantability. All such
repairs shall be made at the expense of Landlord, subject to the availability of
insurance proceeds and Tenant's responsibilities set forth herein. Landlord
shall not be liable for interruption to Tenant's business or for damage to or
replacement or repair of Tenant's Personal Property, all of which replacement or
repair shall be undertaken and completed by Tenant, at Tenant's expense.
If the Premises shall be damaged by Casualty, but the Premises shall not
be thereby rendered wholly or partially untenantable, Landlord shall promptly
cause such damage to be repaired and there shall be no abatement of rent
reserved hereunder.
17.2. Termination of Lease. (A) If the Premises are (1) rendered wholly
untenantable, or (2) damaged as a result of any cause which is not covered by
Landlord's insurance, or (B) if the Building is damaged to the extent of fifty
percent (50%) or more of the gross leasable area thereof, or (C) if, for reasons
beyond Landlord's control or by virtue of the terms of any financing of the
Building, sufficient insurance proceeds are not available for the reconstruction
or restoration of the Building or Premises, then, in any of such events,
Landlord may elect to terminate this Lease by giving to Tenant notice of such
election within ninety (90) days after the occurrence of such event, or after
the insufficiency of such proceeds becomes known to Landlord, whichever is
applicable. If such notice is given, the rights and obligations of the parties
shall cease as of the date set forth in such notice, and the Annual Basic Rent
and Tenant's Share of Increased Operating Costs (but not any amounts due
Landlord either by reason of Tenant's failure to perform any of its obligations
hereunder or by reason of Landlord's having provided Tenant with additional
services hereunder) shall be adjusted as of the date set forth in such notice,
or, if the Premises were rendered untenantable, as of the date of the Casualty.
17.3. Demolition of the Building. If the Building shall be so
substantially damaged that it is reasonably necessary, in Landlord's judgment,
to demolish the Building for the purpose of reconstruction, Landlord may
demolish the same, in which event the Annual Basic Rent and Tenant's Share of
Increased Operating Costs (but not any amounts due Landlord either by reason of
Tenant's failure to perform any of its obligations hereunder or by reason of
Landlord's having provided Tenant with additional services hereunder) shall be
abated to the same extent as if the Premises were rendered wholly untenantable
by a Casualty.
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17.4. Insurance Proceeds. If the Lease is not terminated pursuant to
subsection 17.2, Landlord shall, subject to the terms of any Mortgage, disburse
and apply any insurance proceeds received by Landlord to the restoration and
rebuilding of the Building in accordance with subsection 17.1 hereof. All
insurance proceeds payable with respect to the Premises and the Building shall
belong to and shall be payable to Landlord. Notwithstanding anything to the
contrary, Tenant shall be entitled to receive all proceeds payable with respect
to Tenant's Personal Property.
18. CONDEMNATION.
18.1. Termination. If either the entire Premises or the Building shall be
acquired or condemned by any governmental authority under its power of eminent
domain for any public or quasi-public use or purpose, this Lease shall terminate
as of the date of vesting or acquisition of title in the condemning authority
and the rents hereunder shall be abated on that date. If less than the whole but
more than fifty percent (50%) of the Rental Area of the Premises or more than
fifty percent (50%) of the total area of the Building (even if the Premises are
unaffected) or such portion of the Common Area as shall render the Premises or
the Building untenantable should be so acquired or condemned, Landlord and
Tenant shall each have the option to terminate this Lease by notice given to the
other within ninety (90) days of such taking. In the event that such a notice of
termination is given, this Lease shall terminate as of the date of vesting or
acquisition of title in the condemning authority and the Annual Basic Rent and
Tenant's Share of Increased Operating Costs (but not any amounts due Landlord
either by reason of Tenant's failure to perform any of its obligations
hereunder, or by reason of Landlord's having provided Tenant with additional
services hereunder) shall be adjusted as of such date.
If (a) neither Landlord nor Tenant shall exercise their respective options
to terminate this Lease, as hereinabove set forth, or (b) some lesser portion of
the Premises or the Building or Common Area, which does not give rise to a right
to terminate pursuant to this subsection 18.1, is taken by the condemning
authority, this Lease shall continue in force and effect, but from and after the
date of the vesting of title in the condemning authority, the Annual Basic Rent
payable hereunder during the unexpired portion of the Term shall be reduced in
proportion to the reduction in the total Rental Area of the Premises, and any
Tenant's Share of Increased Operating Costs (but not any amounts due Landlord
either by reason of Tenant's failure to perform any of its obligations
hereunder, or by reason of Landlord's having provided Tenant with additional
services hereunder) payable pursuant to the terms hereof shall be adjusted to
reflect the diminution of the Premises and/or the Building, as the case may be.
18.2. Rights to Award. Tenant shall have no claim against Landlord arising
out of the taking or condemnation, or arising out of the cancellation of this
Lease as a result of any such taking or condemnation, or for any portion of the
amount that may be awarded as damages as a result of any taking or condemnation,
or for the value of any unexpired portion of the Term, or for any property lost
through condemnation, and Tenant hereby assigns to Landlord all its right, title
and interest in and to any such award with regard to the Premises; provided,
however, that, in the event of a total taking, Tenant may assert any claim it
may have against the condemning authority for compensation for Tenant's Personal
Property lost thereby, loss of income, and for any relocation expenses
compensable by statute and receive such awards therefor as may be allowed in the
condemnation proceedings provided that such awards shall be made in addition to,
and stated separately from, the award made for the Building, the underlying land
and the Premises. Landlord shall have no obligation to contest any taking or
condemnation.
19. BANKRUPTCY.
19.1. Event of Bankruptcy. For purposes of this Lease, each of the
following shall be deemed an "Event of Tenant's Bankruptcy":
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(a) if Tenant becomes insolvent, as defined in the Bankruptcy
Code, or under the Insolvency Laws;
(b) the commencement of any action or proceeding for the
dissolution or liquidation of Tenant or for the appointment of
a receiver or trustee of the property of Tenant, whether
instituted by or against Tenant, if not bonded or discharged
within thirty (30) days of the date of the commencement of
such proceeding or action;
(c) if Tenant files a voluntary petition under the Bankruptcy Code
or Insolvency Laws;
(d) if there is filed an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency
laws, which is not dismissed within sixty (60) days of filing,
or results in issuance of an order for relief against the
debtor; and
(e) if Tenant makes or consents to an assignment of its assets, in
whole or in part, for the benefit of creditors, or to a common
law composition of creditors.
As used herein, (i) "Bankruptcy Code" means title 11 of the United States
Code, 11 U.S.C. Section 101 et. seq. as amended or any successor statute and
(ii) Insolvency Laws means the insolvency laws of any state or territory of the
United States.
19.2. Assumption by Trustee. If Tenant becomes the subject debtor in a
case pending under the Bankruptcy Code, Landlord's right to terminate this Lease
under Section 20 hereof shall be subject to the applicable rights (if any) of
the Trustee in Bankruptcy to assume or assign this Lease as then provided for in
the Bankruptcy Code. However, the Trustee in Bankruptcy must give to Landlord
and Landlord must receive proper written notice of the Trustee's assumption or
rejection of this Lease, within sixty (60) days (or such other applicable period
as is provided for in the Bankruptcy Code) after the date of the Trustee's
appointment. The failure of the Trustee to give notice of the assumption within
the period shall conclusively and irrevocably constitute the Trustee's rejection
of this Lease and waiver of any rights of the Trustee to assume or assign this
Lease. The Trustee shall not have the right to assume or assign this Lease
unless the Trustee (i) promptly and fully cures all defaults under this Lease,
(ii) promptly and fully compensates Landlord for all monetary damages incurred
as a result of such default, and (iii) provides to Landlord adequate assurance
of future performance. In the event Tenant is unable to: (i) cure its defaults,
(ii) reimburse Landlord for its monetary damages, or (iii) pay the Rent due
under this Lease on time, then Tenant hereby agrees in advance that it has not
met its burden to provide adequate assurance of future performance, and this
Lease may be terminated by Landlord in accordance with Section 20.
19.3. Tenant's Guarantor's Bankruptcy. Notwithstanding any of the other
provisions of this Lease, in the event Tenant's obligations under this Lease are
guaranteed by a guarantor, and said guarantor shall voluntarily or involuntarily
come under the jurisdiction of the Bankruptcy Code, and thereafter said
guarantor or its trustee in bankruptcy, under the authority of and pursuant to
applicable provisions thereof, shall determine to assign the guarantee
obligations of said guarantor hereunder, Tenant and its said guarantor agree
that (a) said guarantor or its trustee will provide Landlord sufficient
information enabling it to independently determine whether Landlord will incur
actual and substantial detriment by reason of such assignment, and (b) "adequate
assurance of future performance" in regard to such guarantee obligations of said
guarantor, as that term is generally defined under the Bankruptcy Code, will be
provided to Landlord by said guarantor or its trustee and its assignee as a
condition of said assignment.
20. DEFAULT PROVISIONS AND REMEDIES.
20.1. Events of Default. Each of the following shall be deemed an Event of
Default by Tenant under this Lease:
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a. failure of Tenant to pay Annual Basic Rent, Tenant's Share of
Increased Operating Costs, or any other sum required to be paid under the terms
of this Lease, including late charges, within five (5) days of the date due
hereunder;
b. failure by Tenant to perform or observe any other term, covenant,
agreement or condition of this Lease, on the part of Tenant to be performed
(other than those obligations of Tenant set forth in subsection 16.2 for which
Tenant shall be entitled to receive no prior notice, and other than the
conditions set forth in paragraphs 20.1.a, c, d, e, f and g, which shall be
governed solely by the provisions set forth herein), within ten (10) days after
notice thereof from the Landlord, unless such performance shall reasonably
require a longer period, in which case Tenant shall not be deemed in default if
Tenant commences the required performance promptly and thereafter pursues and
completes such action diligently and expeditiously and in any event within not
more than thirty (30) days;
c. the filing of a tax or mechanic's lien against any property of
Tenant which is not bonded or discharged within thirty (30) days of the date
such lien is filed;
d. abandonment of the Premises by Tenant;
e. an Event of Tenant's Bankruptcy;
f. the sale of Tenant's interest in the Premises under attachment,
execution or similar legal process; and
g. the failure of Tenant to vacate the Premises upon the expiration
of the Term, or the earlier termination thereof pursuant to the other provisions
hereof.
20.2. Remedies. Upon the occurrence of an Event of Default, Landlord,
without notice to Tenant in any instance (except where expressly provided for
below or by applicable law) may do any one or more of the following:
(a) Sell at public or private sale all or any part of the goods,
chattels, fixtures and other Tenant's Personal Property which are
or may be put into the Premises during the Term, whether exempt
or not from sale under execution or attachment (it being agreed
that said property shall at all times be bound within a lien in
favor of Landlord and shall be chargeable for all Rent and for
the fulfillment of the other covenants and agreements herein
contained) and apply the proceeds of such sale, first, to the
payment of all costs and expenses of conducting the sale or
caring for or storing said property (including all attorneys'
fees), second, toward the payment of any indebtedness, including
(without limitation) indebtedness for Annual Basic Rent, which
may be or may become due from Tenant to Landlord, and third, to
pay Tenant, on demand in writing, any surplus remaining after all
indebtedness of Tenant to Landlord has been fully paid;
(b) perform, on behalf and at the expense of Tenant, any obligation
of Tenant under this Lease which Tenant has failed to perform and
of which Landlord shall have given Tenant notice, the cost of
which performance by Landlord, together with interest thereon at
the Default Rate from the date of such expenditure, shall be
payable by Tenant to Landlord upon demand. Notwithstanding the
provisions of this clause (b) and regardless of whether an Event
of Default shall have occurred, Landlord may exercise the remedy
described in clause (b) without any notice to Tenant if Landlord,
in its good faith judgment, believes it would be materially
injured by failure to take rapid action or if the unperformed
obligation of Tenant constitutes an emergency;
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(c) elect to terminate this Lease and the tenancy created hereby by
giving notice of such election to Tenant, and reenter the
Premises, by summary proceedings or otherwise, and remove Tenant
and all other persons and property from the Premises, and store
such property in a public warehouse or elsewhere at the cost of
and for the account of Tenant without resort to legal process and
without Landlord being deemed guilty of trespass or becoming
liable for any loss or damage occasioned thereby;
(d) declare any option which Tenant may have to renew the Term or expand
the Premises to be null and void and of no further force and effect;
or
(e) exercise any other legal or equitable right or remedy which it may
have.
Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorneys' fees) in enforcing any of its rights or
remedies under this Lease shall be paid to Landlord by Tenant upon demand.
20.3. Damages. If this Lease is terminated by Landlord pursuant to Section
20.2.(c), Tenant nevertheless shall remain liable for (a) any Annual Basic Rent,
Tenant's Share of Increased Operating Costs, and damages which may be due or
sustained prior to such termination, and (b) all reasonable costs, fees and
expenses including, but not limited to, attorneys' fees, costs and expenses
incurred by Landlord in pursuit of its remedies hereunder or in renting the
Premises to others from time to time. In addition, Landlord may recover from
Tenant additional damages to compensate Landlord for loss of rent resulting from
termination of the Lease, which, at the election of Landlord, shall be either:
(i) An amount equal to the rent which, but for termination of this
Lease, would have become due during the remainder of the Term,
less the amount of rent, if any, which Landlord shall receive
during such period from others to whom the Premises may be rented
(other than any amounts received by Landlord as a result of any
failure of such other person to perform any of its obligations to
Landlord), in which case such damages shall be computed and
payable in monthly installments, in advance, on the first day of
each calendar month following termination of the Lease and
continuing until the date on which the Term would have expired
but for such termination; any suit or action brought to collect
any such damages for any month shall not in any manner prejudice
the right of Landlord to collect any damages for any subsequent
month by a similar proceeding; or
(ii) an amount equal to the present worth (as of the date of such
termination) of rent which, but for termination of this Lease,
would have become due during the remainder of the Term, in which
case such damages shall be payable to Landlord in one lump sum on
demand and shall bear interest at the Default Rate until paid.
For purposes of this clause (ii), "present worth" shall be
computed by discounting such amount to present worth at a
discount rate equal to one percentage point above the discount
rate then in effect at the Federal Reserve Bank nearest to the
location of the Property.
Damages shall be due and payable immediately upon demand by Landlord
following any termination of this Lease pursuant to Section 20.2.
If this Lease is terminated pursuant to Section 20.2., Landlord may
re-lease the Premises or any part thereof, alone or together with other
premises, for such term(s) (which may be greater or less than the period which
otherwise would have constituted the balance of the Term) and on such terms and
conditions (which may include concessions or free rent and alterations of the
Premises) as Landlord, in its sole discretion, may determine. The failure or
refusal of Landlord to re-lease the Premises or any part or parts thereof shall
not release or affect Tenant's liability for damages.
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Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove and obtain in proceedings for the termination of this Lease by
reason of bankruptcy or insolvency, 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, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damages referred to
above.
Notwithstanding anything in this Lease to the contrary, in the event state
or municipal law imposes an obligation on Landlord to mitigate damages suffered
upon Tenant's default hereunder and the consequent termination hereof and
retaking of possession of the Premises by Landlord, then and in such event,
Landlord shall use reasonable efforts to re-lease the Premises; provided,
however, Landlord shall not be required to (i) use methods or procedures other
than its usual methods and procedures for finding tenants for comparable space
in the Building; (ii) lease the Premises in preference to any other space in the
Building available for lease, regardless of when such other space became
available for lease; (iii) lease the Premises at rents lower than the rate at
which Landlord would otherwise offer such space to a third party; (iv) to make
improvements to the Premises at Landlord's expense; and (v) lease the Premises
for any purpose or use other than that specifically permitted by this Lease.
Landlord shall not be liable to Tenant for Landlord's failure to re-lease the
Premises despite the exercise of reasonable efforts pursuant to this paragraph,
and no such re-leasing shall relieve Tenant of its obligations under the terms
of this Lease, including, without limitation, the payment of rent as set forth
herein. 20.4. No Waiver. No act or omission by Landlord shall be deemed to be an
acceptance of a surrender of the Premises or a termination of Tenant's
liabilities hereunder, unless Landlord shall execute a written release of
Tenant. Tenant's liability hereunder shall not be terminated by the execution by
Landlord of any new lease for all or any portion of the Premises or the
acceptance of rent from any assignee or subtenant.
20.5. Remedies Not Exclusive. All rights and remedies of Landlord set
forth in this Lease shall be cumulative, and none shall exclude any other right
or remedy, now or hereafter allowed by or available under any statute,
ordinance, rule of court, or the common law, either at law or in equity, or
both. For the purposes of any suit brought or based hereon, this Lease shall be
construed to be a divisible contract, to the end that successive actions may be
maintained on this Lease as successive periodic sums shall mature hereunder. The
failure of Landlord to insist, in any one or more instances, upon a strict
performance of any of the covenants, terms and conditions of this Lease or to
exercise any right or option herein contained shall not be construed as a waiver
or a relinquishment for the future, of such covenant, term, condition, right or
option, but the same shall continue and remain in full force and effect unless
the contrary is expressed by Landlord in writing. The receipt by Landlord of
rents hereunder, with knowledge of the breach of any covenant hereof or the
receipt by Landlord of less than the full rent due hereunder, shall not be
deemed a waiver of such breach or of Landlord's right to receive the full rents
hereunder, and no waiver by Landlord of any provision hereof shall be deemed to
have been made unless expressed in writing and signed by Landlord.
20.6. Persistent Failure to Pay Rent. In addition to any other remedies
available to Landlord pursuant to this Lease or by law, Landlord may, at any
time throughout the Term of this Lease, terminate this Lease upon Tenant's
default on three (3) separate occasions during any twelve (12) month period
under subsection 20.1.a, regardless of whether or not such prior defaults have
been cured. Termination, pursuant to this subsection 20.6, shall be effective
upon Landlord's delivery to Tenant of a notice of termination.
21. LANDLORD'S LIEN.
21.1. Tenant hereby grants to Landlord a lien and security interest on all
property of Tenant now or hereafter placed in or upon the Premises, and such
property shall be and remain subject to such lien and security interest of
Landlord for payment of all Rent and other sums agreed to be paid by Tenant
herein. It is provided, however, the Landlord shall not have a lien which would
be superior to a lien from a
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lending institution, supplier or leasing company, if such lending institution,
supplier or leasing company has a security interest in the equipment, furniture
or other tangible personal property and which security interest has its origin
in a transaction whereby Tenant originally acquired such equipment, furniture or
other tangible personal property.
21.2. The provisions of this paragraph relating to such lien and security
interest shall constitute a security agreement under and subject to the Uniform
Commercial Code of the state where the Premises are located so that Landlord
shall have and may enforce a security interest on all property of Tenant now or
hereafter placed in or on the Premises, in addition to and cumulative of the
Landlord's liens and rights provided by law or by the other terms and provisions
of this Lease.
22. INDEMNITY.
To the maximum extent permitted by law, Tenant shall indemnify, hold
harmless and (at Landlord's option) defend Landlord, its agents, servants and
employees, and the lessor under the Development Lease, from and against all
claims, actions, losses, costs and expenses (including attorneys' and other
professional fees), judgments, settlement payments, and, whether or not reduced
to final judgment, all liabilities, damages, or fines paid, incurred or suffered
by any third parties to the extent arising directly or indirectly from (a) any
default by Tenant under the terms of this Lease, (b) the use or occupancy of the
Property by Tenant or any person claiming through or under Tenant, and/or (c)
any acts or omissions of Tenant or any contractor, agent, employee, invitee or
licensee of Tenant in or about the Property. The foregoing indemnity is in
addition to, and not in substitution for, any indemnity given by Tenant to
Landlord under Section 8.3.
23. LIMITATION ON LANDLORD LIABILITY.
The term "Landlord" as used in this Lease shall mean only the owner or the
Mortgagee or its trustees, as the case may be, then in possession of the
Property so that in the event of any transfer by Landlord of its interest in the
Property, the Landlord in possession immediately prior to such transfer shall
be, and hereby is, entirely released and discharged from all covenants,
obligations and liabilities of Landlord under this Lease accruing after such
transfer. In consideration of the benefits accruing hereunder, Tenant, for
itself, its successors and assigns, covenants and agrees that, in the event of
any actual or alleged failure, breach or default hereunder by the Landlord, and
notwithstanding anything to the contrary contained elsewhere in this Lease, the
remedies of Tenant under this Lease shall be solely and exclusively limited to
Landlord's interest in the Property.
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24. LANDLORD OBLIGATIONS.
Landlord agrees to perform all of its obligations under this Lease in a
first class manner consistent with the standards applicable to similar buildings
in the vicinity of the Building. Landlord shall be excused for the period of any
delay in the performance of any of its obligations when the delay is due to any
cause or causes beyond Landlord's control which include, without limitation,
acts of God, all labor disputes, governmental regulations or controls, civil
unrest, war, adverse weather condition, fire or other casualty, inability to
obtain any material, services, or financing unless otherwise provided for in
this Lease. Except where specifically set forth in this Lease, there shall be no
abatement, set-off or deduction of Annual Basic Rent or Tenant's Share of
Increased Operating Costs due under this Lease.
25. ASSIGNMENT AND SUBLETTING.
25.1. Prohibited Without Landlord's Consent. Tenant agrees for itself and
its permitted successors and assigns in interest hereunder that it will not (a)
assign or otherwise transfer, mortgage or otherwise encumber this Lease or any
of its rights hereunder; (b) sublet the Premises or any part thereof or permit
the occupancy or use of the Premises or any part thereof by any person other
than Tenant; and/or (c) permit the assignment or other transfer of this Lease or
any of Tenant's rights hereunder by operation of law (each of the events
referred to in the foregoing clauses (a), (b) and (c) being hereinafter referred
to as a "Transfer"), without the prior written consent of Landlord in each
instance first obtained, which consent may be given or withheld in Landlord's
sole and absolute subjective discretion, and any consent given shall not
constitute a consent to any subsequent Transfer. Any attempted Transfer without
Landlord's consent shall be null and void and shall not confer any rights upon
any purported transferee, assignee, mortgagee, sublessee, or occupant. No
Transfer, regardless of whether Landlord's consent has been granted or withheld,
shall be deemed to release Tenant from any of its obligations hereunder or to
alter, impair or release the obligations of any person guaranteeing the
obligations of Tenant hereunder. Tenant hereby indemnifies Landlord against
liability resulting from any claim made against Landlord by any assignee or
subtenant or by any broker claiming a commission in connection with the proposed
Transfer. In the event Landlord shall consent to a Transfer of this Lease, any
option which Tenant may have to renew the Term shall be null and void.
25.2. Stock Transfer. If Tenant or any Guarantor is a privately-held
corporation, then each of the following events shall be deemed a prohibited
Transfer under this Section 25 if such event results in a change in control of
Tenant or Guarantor: any transfer of Tenant's or Guarantor's issued and
outstanding capital stock; any issuance of additional capital stock; or the
redemption of any issued and outstanding stock. If Tenant or any Guarantor is a
partnership, any Transfer of any interest in the partnership or any other change
in the composition of the partnership, which results in a change in management
of Tenant or Guarantor from the person or persons managing the partnership as of
the date hereof, shall be deemed a prohibited Transfer under this Section 25.
25.3. Rents from Transfer. In the event Landlord shall consent to a
Transfer of this Lease and the amount of the rents (or other compensation) to be
paid to Tenant by any such transferee is greater than the rents required to be
paid by Tenant to Landlord pursuant to this Lease or a premium is to be paid to
Tenant for an assignment of this Lease, Tenant shall pay to Landlord any such
excess or any such premium, as the case may be, upon receipt thereof by Tenant
from such transferee.
25.4. Procedure for Obtaining Landlord's Consent.
A. In the event that, at any time or from time to time prior to or during
the Term, Tenant desires to Transfer this Lease in whole or in part, whether by
operation of law or otherwise, Tenant shall submit to Landlord for its
consideration (a) in writing, the name and address of the proposed subtenant or
assignee, a reasonably detailed statement of the proposed subtenant's or
assignee's business and reasonably detailed financial references and information
concerning the financial condition of the proposed subtenant
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or assignee, (b) a disclosure of the rents to be paid by any subtenant in excess
of the rents reserved hereunder or the premium to be paid for the assignment,
and (c) if a subletting, a description of the area of the Premises to be sublet.
Tenant agrees to pay Landlord all costs incurred by Landlord in connection with
any actual or proposed Transfer, including, without limitation, the costs of
making investigations as to the acceptability of a proposed subtenant or
assignee and legal costs incurred in connection with any requested consent.
B. Landlord's consent to an assignment of this Lease shall be effective
upon the execution by Tenant, the assignee, and Landlord of an assignment
document prepared by Landlord in which the assignee shall agree to assume,
observe, perform, and be bound by, all of Tenant's obligations under this Lease
and Tenant shall agree to remain primarily liable for such obligations.
Any consent by Landlord to a subletting of all or a portion of the
Premises shall be deemed to have been given only upon the delivery by Landlord
to Tenant of a consent document prepared and executed by Landlord expressly
consenting to such subletting.
26. HOLDING OVER.
Tenant agrees to vacate the Premises at the end of the Term, and Landlord
shall be entitled to the benefit of all summary proceedings to recover
possession of the Premises at the end of the Term. If Tenant remains in
possession of the Premises after the expiration of the Term, such action shall
not renew this Lease by operation of law and nothing herein shall be deemed as a
consent by Landlord to Tenant's remaining in the Premises. If Tenant fails to
vacate the Premises as required, Landlord may consider Tenant as either (a) a
"Tenant-at-Will" (i.e. month-to-month tenant) liable for the payment of rent at
the then market rate as determined by Landlord or (b) as a "Tenant-Holding Over"
liable for an amount equal to the actual damages incurred by Landlord as a
result of Tenant's holding over, including, without limitation, all incidental,
prospective and consequential damages and attorney's fees, but in no event shall
such amount be less than an amount equal to twice the Annual Basic Rent, and
Tenant's Share of Increased Operating Costs, reserved hereunder applicable to
the period of the holdover. In either event, all other covenants of this Lease
shall remain in full force and effect.
27. SUBORDINATION AND ATTORNMENT.
This Lease is subject and subordinate to the liens of all mortgages, deeds
of trust and other security instruments now or hereafter placed upon the
Building or the Property or any portion thereof and all ground and other
underlying leases from which Landlord's interest is derived (said mortgages,
deeds of trust, other security instruments, and ground leases being hereinafter
referred to as "Mortgages" and the mortgagees, beneficiaries, secured parties,
and ground lessors thereunder from time to time being hereinafter called
"Mortgagees"), and to any and all renewals, extensions, modifications, or
refinancings thereof, without any further act of the Tenant. If requested by
Landlord, however, Tenant shall promptly execute any certificate or other
document confirming such subordination. Tenant agrees that, if any proceedings
are brought for the foreclosure of any of the Mortgages, Tenant, if requested to
do so by the purchaser at the foreclosure sale, shall attorn to the purchaser,
recognize the purchaser as the landlord under this Lease, and make all payments
required hereunder to such new landlord without any deduction or set-off of any
kind whatsoever. Tenant waives the provisions of any law or regulation, now or
hereafter in effect, which may give, or purport to give, Tenant any right to
terminate this Lease or to alter the obligations of Tenant hereunder in the
event that any such foreclosure or termination or other proceeding is prosecuted
or completed.
Notwithstanding anything contained herein to the contrary, any Mortgagee
may at any time subordinate the lien of its Mortgages to the operation and
effect of this Lease without obtaining the Tenant's consent thereto, by giving
the Tenant written notice thereof, in which event this Lease shall be deemed to
be senior to such Mortgages without regard to the respective dates of execution
and/or recordation of such
26
Mortgages and this Lease and thereafter such Mortgagee shall have the same
rights as to this Lease as it would have had were this Lease executed and
delivered before the execution of such Mortgages.
If, in connection with obtaining financing for the Building, a Mortgagee
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not materially adversely increase
the obligations of Tenant hereunder, or materially adversely affect the
leasehold interest hereby created or Tenant's use and enjoyment of the Premises,
or increase the amount of Annual Basic Rent and Tenant's Share of Increased
Operating Costs payable hereunder.
28. ESTOPPEL CERTIFICATES.
Tenant shall, without charge, at any time and from time-to-time, within
fifteen (15) days after receipt of request therefor by Landlord, execute,
acknowledge and deliver to Landlord a written estoppel certificate, in such form
as may be determined by Landlord, certifying to Landlord, Landlord's Mortgagee,
any purchaser of Landlord's interest in the Building, or any other person
designated by Landlord, as of the date of such estoppel certificate, the
following, without limitation: (a) whether Tenant is in possession of the
Premises; (b) whether this Lease is in full force and effect; (c) whether there
have been any amendments to this Lease, and if so, specifying such amendments;
(d) whether there are then existing any set-offs or defenses against the
enforcement of any rights hereunder, and if so, specifying such matters in
detail; (e) the dates, if any, to which any rent or other charges have been paid
in advance and the amount of any Security Deposit held by Landlord; (f) that
Tenant has no knowledge of any then existing defaults of Landlord under this
Lease, or if there are such defaults, specifying them in detail; (g) that Tenant
has no knowledge of any event having occurred that authorizes the termination of
this Lease by Tenant, or if such event has occurred, specifying it in detail;
and (h) the address to which notices to Tenant under this Lease should be sent.
Any such certificate may be relied upon by the person or entity to whom it is
directed or by any other person or entity who could reasonably be expected to
rely on it in the normal course of business. The failure of Tenant to execute,
acknowledge and deliver such a certificate in accordance with this Section 28
within fifteen (15) days after a request therefor by Landlord shall constitute
an acknowledgment by Tenant, which may be relied on by any person who would be
entitled to rely upon any such certificate, that such certificate as submitted
by Landlord to Tenant is true and correct.
29. PEACEFUL AND QUIET POSSESSION.
Tenant, if and so long as it pays all rents due hereunder and performs and
observes the other terms and covenants to be performed and kept by it as
provided in this Lease, shall have the peaceable and quiet possession of the
Premises during the Term free of any claims of Landlord or anyone lawfully
claiming by, through or under Landlord, subject, however, to the terms of this
Lease, and to the terms of the Development Lease, the Mortgage and the REA, and
to matters of public record existing as of the date of this Lease.
30. LANDLORD'S AND TENANT'S ACCESS TO PREMISES.
Landlord and its agents may at any reasonable time and without incurring
any liability to Tenant, other than liability arising under Section 22, enter
the Premises to inspect them or to make alterations or repairs or for any
purpose which Landlord considers necessary for the repair, operation, or
maintenance of the Building; provided, however, that in the case of an
emergency, Landlord may enter the Premises at any time. Tenant shall allow the
Premises to be exhibited by Landlord (a) at any time to any representative of a
lender or to any prospective purchaser of the Building or Landlord's interest
therein or (b) within six (6) months of the end of the Term to any persons who
may be interested in leasing the Premises.
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Subject to the provisions of Section 11 and 13, Tenant shall have access
to the Premises twenty-four (24) hours per day, seven (7) days per week.
31. RELOCATION.
Landlord shall have the right, either before or during the Term, upon not
less than thirty (30) days written notice to Tenant, to change the location of
the Premises to another mutually agreeable location within the Building or the
Business Community, if any, provided that the new location is reasonably similar
in size, utility and appearance. If Tenant is occupying the Premises when
Landlord exercises its rights hereunder, Landlord, at its expense, shall remove,
relocate and reinstall Tenant's equipment (including telephones), furniture and
fixtures in the new premises and redecorate the new premises so that they will
substantially resemble the former Premises. Landlord shall also pay Tenant's
cost of reprinting stationery and business cards. On completion of the change in
location of the Premises, the parties shall execute an amendment to this Lease
which sets forth the new description of the Premises and amendments to any other
terms of this Lease, if any, required by the relocation of the Premises.
In the event Landlord is unable to relocate the Premises to a location
which is reasonably similar in size, utility and appearance, then Tenant shall
have the right to terminate this Lease upon not less than sixty (60) days'
written notice to Landlord; provided, however, Landlord shall, within thirty
(30) days after receipt of Tenant's notice to terminate the Lease, have the
right to withdraw its demand requiring Tenant to relocate, in which event Tenant
shall remain in the Premises and this Lease shall continue in full force and
effect.
If any notice of termination is given pursuant to this Section, this Lease
and the rights and obligations of the parties hereunder shall cease as of the
date of such notice and all Rent (other than any Additional Rent due Landlord by
reason of Tenant's failure to perform any of its obligations hereunder) shall be
adjusted as of the date of such termination.
Notwithstanding the foregoing, Tenant's obligation to indemnify and hold
harmless Landlord as provided in Section 22 hereof shall survive any such
termination as to any act, omission or occurrence which took place prior to such
termination. No further documentation shall be required to effect the
termination of this Lease unless otherwise requested in writing by either party.
32. BROKERS, COMMISSIONS, ETC.
Landlord and Tenant acknowledge, represent and warrant each to the other
that, except as listed in Section 1.F., no broker or real estate agent brought
about or was involved in the making of this Lease and that no brokerage fee or
commission is due to any other party as a result of the execution of this Lease.
Each of the parties hereto agrees to indemnify and hold harmless the other
against any claim by any broker, agent or finder based upon the execution of
this Lease and predicated upon a breach of the above representation and
warranty.
33. RECORDATION.
Neither Landlord nor Tenant shall record this Lease, any amendment to this
Lease or any other memorandum of this Lease without the prior written consent of
the other party, which consent may be withheld in the sole discretion of either
party and, in the event such consent is given, the party requesting such consent
and recording shall pay all transfer taxes, recording fees and other charges in
connection with such recording. Notwithstanding the above, Tenant covenants that
if at any time any mortgagee or ground lessor relating to the financing of the
Property shall require the recordation of this Lease, or if the recordation of
this Lease shall be required by any valid governmental order, or if any
governmental authority having jurisdiction in the matter shall assess and be
entitled to collect transfer taxes, documentary stamp taxes, or both, on this
Lease, Tenant, upon the request of Landlord, shall execute such instruments,
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including a Memorandum of this Lease, as may be necessary to record this Lease,
and shall pay all recording fees, transfer taxes and documentary stamp taxes,
payable on, or in connection with, this Lease or such recordation.
34. MISCELLANEOUS.
34.1. Separability. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.2. Applicable Law. This Lease shall be given effect and construed by
application of the laws of the state where the Property is located, and any
action or proceeding arising hereunder shall be brought in the courts of the
State where the Premises are located.
34.3. Authority. If Tenant is a corporation or partnership, the person
executing this Lease on behalf of Tenant represents and warrants that Tenant is
duly organized and validly existing; that this Lease has been authorized by all
necessary parties, is validly executed by an authorized officer or agent of
Tenant and is binding upon and enforceable against Tenant in accordance with its
terms.
The undersigned agent of Landlord represents and warrants that it is
authorized and empowered to enter into this Lease Agreement on behalf of the
Landlord.
34.4. No Discrimination. It is Landlord's policy to comply with all
applicable state and federal laws prohibiting discrimination in employment based
on race, age, color, sex, national origin, disability, religion, or other
protected classification. It is further intended that the Building shall be
operated so that all perspective tenants thereof, and all customers, employees,
licensees and invitees of all tenants shall have equal opportunity to obtain all
the goods, services, accommodations, advantages, facilities and privileges of
the Building without discrimination because of race, age, color, sex, national
origin, disability, or religion. To that end, Tenant shall not discriminate in
the conduct and operation of its business in the Premises against any person or
group of persons because of the race, age, color, sex, religion, national origin
or other protected classification of such person or group of persons.
34.5. Integration of Agreements. This writing is intended by the parties
as a final expression of their agreement and is a complete and exclusive
statement of its terms, and all negotiations, considerations and representations
between the parties hereto are incorporated herein. No course of prior dealings
between the parties or their agents shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease. Acceptance of, or
acquiescence to, a course of performance rendered under this Lease or any prior
agreement between the parties or their agents shall not be relevant or
admissible to determine the meaning of any of the terms or covenants of this
Lease. Other than as specifically set forth in this Lease, no representations,
understandings or agreements have been made or relied upon in the making of this
Lease. This Lease can only be modified by a writing signed by each of the
parties hereto.
34.6. Third Party Beneficiary. Except as expressly provided elsewhere in
this Lease, nothing contained in this Lease shall be construed so as to confer
upon any other party the rights of a third party beneficiary.
34.7. Captions; Gender. The captions used in this Lease are for
convenience only and do not in any way limit or amplify the terms and provisions
hereof. As used in this Lease and where the context so requires, the singular
shall be deemed to include the plural and the masculine shall be deemed to
include the feminine and neuter, and vice versa.
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34.8. Successors and Assigns. Subject to the express provisions of this
Lease to the contrary (e.g., Section 25), the terms, provisions and covenants
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and their respective heirs, personal representatives,
successors and assigns.
34.9. Waiver of Jury Trial. Landlord and Tenant hereby expressly waive
trial by jury in any action or proceeding or counterclaim brought by either
party hereto against the other party on any and every matter, directly or
indirectly arising out of or with respect to this Lease, including, without
limitation, the relationship of Landlord and Tenant, the use and occupancy by
Tenant of the Premises, any statutory remedy and/or claim of injury or damage
regarding this Lease.
34.10. Joint and Several Liability. In the event that two (2) or more
persons (i.e., natural persons, corporations, partnerships, associations and
other legal entities) shall sign this Lease as Tenant, the liability of each
such party to pay all rents due hereunder and perform all the other covenants of
this Lease shall be joint and several. In the event Tenant is a general
partnership or a limited partnership with two or more general partners, the
liability of each partner, or general partner, under this Lease shall be joint
and several.
34.11. Notices. All notices, demands and requests required under this
Lease shall be in writing. All such notices, demands and requests shall be
deemed to have been properly given if sent by United States certified mail,
return receipt requested, postage prepaid, or hand delivered, or overnight
delivery, addressed to Landlord or Tenant, at the Landlord Notice Address and
Tenant Notice Address, respectively. Either party may designate a change of
address by written notice to the other party, in the manner set forth above.
Notice, demand and requests which shall be served by certified mail in the
manner aforesaid, shall be deemed to have been given three (3) days after
mailing. Notices sent by overnight delivery shall be deemed to have been given
the day after sending. Without intending to limit the generality of the
foregoing requirement that all notices, demands and requests be in writing,
there are certain provisions in this Lease where, for emphasis alone, such
requirement is reiterated.
34.12. Effective Date of this Lease. Unless otherwise expressly provided,
all terms, conditions and covenants by Tenant contained in this Lease shall be
effective as of the date first above written.
34.13. Mechanics' Liens. In the event that any mechanics' or materialmen's
liens shall at any time be filed against the Premises purporting to be for work,
labor, services or materials performed or furnished to Tenant or anyone holding
the Premises through or under Tenant, Tenant shall cause the same to be
discharged of record or bonded within thirty (30) days after the filing thereof.
If Tenant shall fail to cause such lien to be discharged or bonded within thirty
(30) days after the filing thereof, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same by paying the amount claimed to be due; and the amount so paid by Landlord,
and all costs and expenses, including reasonable attorneys' fees incurred by
Landlord in procuring the discharge of such lien, shall be due and payable by
Tenant to Landlord on the first day of the next succeeding month. Notice is
hereby given that Landlord shall not be liable for any labor or materials
furnished to Tenant upon credit and that no mechanics', materialmen's or other
liens for any such labor or materials shall attach to or affect the estate or
interest of Landlord in and to the land and improvements of which the Premises
are a part.
34.14. Waiver of Right of Redemption. Tenant hereby expressly waives (to
the extent legally permissible) for itself and all persons claiming by, through
or under it, any right of redemption or right to restore the operation of this
Lease under any present or future law in the event Tenant is dispossessed for
any proper cause, or in the event Landlord shall obtain possession of the
Premises pursuant to the terms of this Lease. Tenant understands that the
Premises are leased exclusively for business, commercial and mercantile purposes
and therefore shall not be redeemable under any provision of law.
30
34.15. Mortgagee's Performance. If requested by any Mortgagee, Tenant
shall give such Mortgagee written notice of any default by Landlord under this
Lease and a reasonable opportunity to cure such default. Tenant shall accept
performance of any of Landlord's obligations hereunder by any ground lessor or
mortgagee relating to the financing of the Property.
34.16. Mortgagee's Liability. No mortgagee or ground lessor relating to
the financing of the Property, not in possession of the Premises or the
Building, shall have any liability whatsoever hereunder.
34.17. Schedules. Each writing or plat referred to herein as being
attached hereto as a schedule or exhibit is hereby made a part hereof, with the
same full force and effect as if such writing or plat were set forth in the body
of this Lease.
34.18. Time of Essence. Time shall be of the essence of this Lease with
respect to the performance by Tenant of its obligations hereunder.
34.19. Amendment. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto. No amendments of this Lease entered
into by Landlord and Tenant, as aforesaid, shall impair or otherwise affect the
obligations of any guarantor of Tenant's obligations hereunder, all of which
obligations shall remain in full force and effect and pertain equally to any
such amendments, with the same full force and effect as if the substance of such
amendments was set forth in the body of this Lease.
34.20. No Conflict. As used herein, the term "interested person" means
Tenant and (if Tenant is a partnership) any partner in Tenant, and (if Tenant is
a corporation whose shares are not publicly traded) any officer, director or
shareholder of Tenant, and the term "public servant" means any elected or
appointed official or employee of the federal government, City of Phoenix, State
of Arizona, or of any board, agency or commission thereof. In order to enable
Landlord to determine whether any interested person is or has been a public
servant who may be prohibited by state, federal or local law from being an
interested person with respect to this Lease, Tenant covenants and agrees that
attached hereto as Schedule Z is a list identifying any interested person who
is, or, within the period commencing two years prior to the execution of this
Lease was, a public servant, which list sets forth the position or positions
held by any such interested person in his or her capacity as a public servant.
Tenant further warrants and covenants that (i) no interested person who is, or
within two years prior to the execution of this Lease was, a public servant has
exercised or enjoyed, or in the course of his or her duties as a public servant
may be reasonably expected to exercise or enjoy, any decision-making authority
with respect to the Overall Site, the Underlying Documents or this Lease, (ii)
no interested person is a child, brother, sister, spouse, parent, mother-in-law
or father-in-law of such a public servant, (iii) no interested person is an
employee, agent, consultant, officer, elected official or appointed official of
the City of Phoenix, who exercises or has exercised any functions or
responsibilities with respect to the Overall Site, the Underlying Documents or
this Lease,, or who is in a position to participate in a decision-making process
or gain inside information with regard to any of the same, has any personal or
financial interest or benefit from the same or has any interest in any contract,
subcontract or agreement with respect thereof, or proceeds thereunder, either
for himself or herself of those with whom he or she has family or business ties,
during his or her tenure or at any time thereafter.
34.21. Confidentiality. Tenant acknowledges and agrees that, except with
respect to certain required securities' filings and disclosures to stockholders,
the business terms of this Lease are confidential in nature and Tenant agrees
that it shall not reveal the provisions of same to any person, including,
without limitation, to clients of Tenant, except as may be required by court
order or subpoena. Any breach of this agreement shall constitute a Tenant
default under the Lease.
34.22. Parking. During the Term, Landlord shall cause the operator of the
Building's parking deck to lease to Tenant up to seventy-three (73) parking
spaces. Three (3) of said spaces will be valet
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assisted reserved spaces located in the parking garage located below the
Building and shall be leased to Tenant at the rate of Ninety-Five Dollars
($95.00) per space per month. Seventy (70) of the spaces will be located in the
Building's parking deck (located north of Two Arizona Center); Ten (10) of which
will be reserved at a rate of Seventy-Five Dollars ($75.00) per space per month
and sixty (60) of which will be non-exclusive, unreserved spaces at a rate of
Fifty-Five Dollars ($55.00) per space per month.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
their respective seals as of the day and year first above written.
ATTEST: LANDLORD:
XXXXX-PHOENIX CORPORATE CENTER
LIMITED PARTNERSHIP
By: XXXXX OFFICE MANAGEMENT OF
ARIZONA, INC., Managing Agent
__________________________________ By:_____________________________(SEAL)
Assistant Secretary Vice President
ATTEST: TENANT:
XXXXXXX.XXX, INC.
__________________________________ By:_____________________________(SEAL)
Secretary of Corporation President
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(4/27/99)
ARIZONA FULL-SERVICE OFFICE LEASE
ONE ARIZONA CENTER
by and between
XXXXX-PHOENIX CORPORATE CENTER LIMITED PARTNERSHIP, Landlord
by XXXXX OFFICE MANAGEMENT OF ARIZONA, INC., Managing Agent,
and
XXXXXXX.XXX, INC., Tenant
33
(4/27/99)
SCHEDULE C
RULES AND REGULATIONS
1. Tenant shall not obstruct the Common Area, and the sidewalks,
driveways, and other public portions of the Property (herein "Public Areas") and
such Public Areas shall not be used for any purpose other than ingress and
egress to and from its Premises. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purpose.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to, hung in, or used in connection with any window or door of the Premises.
3. Except as otherwise provided in the Lease, no sign, insignia,
advertisement, lettering, notice or other object shall be exhibited, inscribed,
painted or affixed by Tenant on any part of the exterior or interior of the
Premises or the Building.
4. No bicycles, vehicles, animals (except seeing eye dogs), fish or birds
of any kind shall be brought into or kept in or about the Premises.
5. Nothing shall be done which would impair or interfere with any of the
HVAC, plumbing, electrical, structural components of the Building. No flammable,
combustible or explosive fluid, chemical or substance may be kept on the
Premises.
6. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in locks or the
mechanism thereof. Tenant shall, upon the termination of the Lease, turn over to
Landlord all keys to stores, offices and restrooms. In the event of the loss of
any keys furnished by Landlord, Tenant shall pay to Landlord the cost of
replacement locks and Tenant hereby agrees to pay said cost to Landlord, as
Additional Rent, promptly upon demand.
7. No delivery or moving of any safes, freight, furniture, packages,
boxes, crates or any other such object shall take place between 8:30 a.m. and
5:30 p.m., Monday through Friday.
No hand trucks shall be used for such moving activities except for those
equipped with rubber tires and side guards.
8. Tenant shall not use or occupy its Premises, or permit any portion
thereof to be used or occupied for any use which constitutes a nuisance, or is
hazardous, or, in Landlord's opinion, likely to injure the reputation of a
first-class building.
9. Tenant shall turn off all lights, copying machines and other electrical
equipment when the Premises are vacant. All entrance doors in Tenant's Premises
shall be kept locked when not in use. Entrance doors shall not be left open at
any time.
10. If Tenant shall request Landlord to perform any work on the Premises
or Property, Tenant shall make such request at the management office for the
Building. Tenant shall not request employees of Landlord to perform any work or
do anything outside of their regular duties, unless under special instructions
from Landlord.
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11. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
12. Tenant shall not cause or permit any odors of cooking or other
processes, or any unusual or objectionable odors, to emanate from its Premises
which would annoy other tenants or create a public or private nuisance. No
cooking shall be done in Tenant's Premises, except for a household microwave
oven or as is expressly permitted in the Lease.
13. No contract of any kind involving the care and maintenance of the
Premises shall be entered into by Tenant without the prior written consent of
Landlord. Further, no vending machine of any kind shall be installed in the
Building or on or about the Property without the prior written consent of
Landlord.
Landlord shall not be responsible to Tenant for any loss of property from
its Premises however occurring, or for any damage done to the effects of Tenant
by Landlord's janitors or any of its employees, or by any other person or any
other cause.
14. All electrical work must be in accordance with code and is subject to
Landlord's review and approval.
15. Landlord hereby reserves to itself any and all rights not granted to
Tenant hereunder, including, but not limited to, the following rights which are
reserved to Landlord for its purposes in operating the Building:
(a) the exclusive right to use of the name of the Building for all
purposes, except that Tenant may use the name as its business address and
for no other purpose;
(b) the right to change the name or address of the Building, without
incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the
exterior of the Building;
(d) the exclusive right to use the roof of the Building;
(e) the right to limit the space on the directory of the Building to
be allotted to Tenant; and
(f) the right to grant anyone the right to conduct any particular
business or undertaking in the Building.
16. Tenant and its employees shall park their cars only in those portions
of the parking area designated by Landlord.
17. Tenant shall not permit undue accumulations of garbage, trash, rubbish
or any other refuse, and will keep such refuse in proper containers in the
interior of the Tenant's Premises or other places designated by the Landlord.
18. Tenant shall not conduct or permit any bankruptcy sales, unless
directed by order of a court of competent jurisdiction, or any fictitious fire
or going out of business sale.
19. Landlord shall have the right to close and securely lock the Building
during generally accepted holidays and during such other times as Landlord may,
in its sole discretion, deem advisable for the security of the Building and its
tenants. Landlord shall give Tenant twenty-four (24) hours notice before so
closing and securely locking the Building except in an emergency.
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35
20. Landlord reserves the right to rescind, alter, waive or add any rule
or regulation at any time prescribed for the Building when Landlord deems it
necessary or desirable for the reputation, safety, character, security, care,
appearance or interests of the Building, the preservation of good order therein,
the operation or maintenance of the Building or the equipment thereof, or the
comfort of tenants or others in the Building. No rescission, alteration, waiver
or addition of any rule or regulation with respect to one tenant shall operate
as a rescission, alteration or waiver in respect of any other tenant.
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36
SCHEDULE X
METHOD OF BUILDING MEASUREMENT FOR OFFICE SPACE
I. SINGLE-TENANCY FLOORS
The Rental Area of a single-tenancy floor shall be the area within the
outside walls computed by measuring from the inside surface of the window glass
to the inside surface of the opposite window glass including columns and
projections necessary to the building as well as accessory areas within and
exclusively serving only that floor, with their enclosing walls, toilets,
janitors closets, electrical closets, air-conditioning rooms and fan rooms and
telephone closets, together with eight percent (8%) of the sum so determined as
a "Common Area Factor". Rental Area will not include penetrations made by public
stairs, fire towers, public elevator shafts, flues, vents, stacks, pipe shafts
and vertical ducts.
II. DIVIDED FLOORS
The Rental Area of an individual office or a portion of a divided floor
shall be the area computed by measuring from the inside surface of the window
glass to the finished surface of the corridor side of corridor partitions and
from center to center of the partitions that separate the Premises from
adjoining Rental Areas including columns and projections necessary to the
Building together with twelve percent (12%) of the sum so determined as a
"Common Area Factor".
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