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Exhibit 10.13
LEASE
Dated April 25, 1997
between
AMBERJACK, LTD.
"LANDLORD"
and INTEGRATED INFORMATION SYSTEMS
"TENANT"
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INDEX TO LEASE
Section Page
1. TERM .......................................................... 1
2. RENT .......................................................... 1
3. CONSUMER PRICE INDEX ESCALATION ............................... 2
4. OPERATING EXPENSES ............................................ 3
5. PARKING ....................................................... 6
6. SECURITY DEPOSIT .............................................. 7
7. REPAIRS ....................................................... 7
8. IMPROVEMENTS AND ALTERATIONS .................................. 7
9. LIENS ......................................................... 8
10. USE OF PREMISES ............................................... 9
11. LANDLORD SERVICES ............................................. 9
12. RULES AND REGULATIONS ......................................... 9
13. TAXES ......................................................... 10
14. SUBSTITUTED PREMISES .......................................... 10
15. UNTENANTABILITY ............................................... 10
16. EMINENT DOMAIN ................................................ 11
17. ASSIGNMENT AND SUBLEASE ....................................... 11
18. ACCESS ........................................................ 11
19. SUBORDINATION AND ATTORNMENT................................... 12
20. SALE .......................................................... 13
21. INDEMNIFICATION OF LANDLORD ................................... 13
22. TENANT'S INSURANCE, WAIVER OF SUBROGATION ..................... 14
23. ATTORNEY'S FEES ............................................... 14
24. WAIVER ........................................................ 15
25. NOTICES ....................................................... 15
26. INSOLVENCY OR BANKRUPTCY ...................................... 15
27. DEFAULT ....................................................... 16
28. INTEREST ON TENANT'S OBLIGATIONS AND LATE CHARGES ............. 16
29. HOLDING OVER................................................... 17
30. TIME .......................................................... 17
31. BROKERS ....................................................... 17
32. RECORDATION ................................................... 17
33. BUILDING NAME ................................................. 17
34. SIGNS ......................................................... 18
35. CHOICE OF LAW ................................................. 18
36. ESTOPPEL CERTIFICATE OF THREE-PARTY AGREEMENT ................. 18
37. ADDITIONAL CONSTRUCTION ....................................... 18
38. DEFINED TERMS AND MARGINAL HEADINGS ........................... 18
39. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES ........ 19
EXHIBIT "A" - DESCRIPTION OF LEASED PREMISES
EXHIBIT "B" - TELECOMMUNICATIONS REQUIREMENTS
EXHIBIT "C" - STANDARDS FOR UTILITIES AND SERVICES
EXHIBIT "D" - RULES AND REGULATIONS
EXHIBIT "E" - SPACE PLAN; INTERIOR IMPROVEMENT SPECIFICATIONS
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THIS LEASE made this 25th day of APRIL, 1997, between AmberJack, Ltd.
(hereinafter called "Landlord"), and Integrated Information Systems (hereinafter
called "Tenant").
For and in consideration of the rents, covenants and agreements hereinafter
set forth, Landlord hereby leases to Tenant and Tenant hereby agrees to lease
from Landlord those certain premises (the "Leased Premises"), commonly described
as Suite No. 200 and more particularly shown on Exhibit "A" to this Lease, in
that certain building located at 0000 X. Xxxxxxxxxxxx Xxxxxxx (the "Building")
located in the City of Tempe, County of Maricopa, and State of Arizona. Said
leasing is upon and subject to the terms, covenants and conditions set forth in
this Lease and Tenant and Landlord covenant, as a material part of the
consideration for this Lease, to keep and perform each and all of their
respective terms, covenants and conditions and each further agrees that this
Lease is made upon the condition of such performance.
1. TERM
(a) The term of this Lease shall be 72 months (unless sooner
terminated as herein provided), which is estimated by Landlord to commence on
the 1st day of July, 1997 (the "Commencement Date").
(b) If the Landlord is unable to deliver possession of the Leased
Premises within 90 days of the estimated Commencement Date, this Lease shall be
voidable, at Tenant's option in no event shall Tenant be liable for any rent
until such time as Landlord can and does offer to deliver possession of the
Leased Premises to Tenant. The date upon which Landlord can and does offer to
deliver possession of the Leased Premises to Tenant shall be the Commencement
Date of this Lease. If the offer to deliver possession occurs on other than the
first day of a calendar month, rental for the remainder of that month shall be
paid by Tenant on a pro rata basis.
2. RENT
Tenant agrees to pay as base rental the sum of See Addendum ($_____)
per month for each and every month of this Lease (the "Base Monthly Rent"),
subject to adjustment, as provided in paragraphs 3 and 4, hereof, payable in
advance on the first day of each month without offset
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commencing with the Commencement Date of this Lease. The Base Monthly Rent has
been calculated on the basis of 22,740 square feet of rentable area of the
Leased Premises, determined in accordance with "American National Standard ANSI
Z65.1-1980: Standard Method for Measuring Floor Area in Office Buildings"
published by Building Owners and Managers Association International (the
"Standard").
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4. OPERATING EXPENSES
(a) If the annual Operating Expenses of the Building exceed the Base
Operating Expenses, Tenant shall pay, in addition to the Base Monthly Rent,
Tenant's proportionate share of the Operating Expenses of the Building in
excess of the Base Operating Expenses based on Tenant's Percentage.
(b) As used in this Section, the following defined terms shall have
the following meanings unless the context otherwise requires:
(i) "Base Operating Expenses" shall mean total "Operating
Expenses" for calendar year 1998 per square foot for all rentable area of the
Building, the parking structure serving the Building and the land,
(ii) "Operating Expenses" means, in any fiscal period designated
by the Landlord, all costs and expenses incurred by or on behalf of the
Landlord for the operation, administration, protection, security, cleaning,
repair and maintenance of the Building and the parking lot structure serving
the Building (the "Parking Garage") and the Land, and which shall include
without limitation, the following:
(A) the salary and wages (including cost of uniforms and
worker's compensation and unemployment insurance, vacation pay,
pension and retirement benefits, health care, and other fringe
benefits, whether statutory or otherwise) of all employees of the
Landlord directly employed in the operation, maintenance, repair and
administration of the Building, the Parking Garage, and the Land,
including the security and reception employees and other
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nonadministrative personnel;
(B) the cost of goods, services, equipment and supplies used
or incurred directly in the operation, maintenance, replacement,
repair and administration of the Building and/or the Parking Garage,
including the heating, ventilating and air conditioning costs, costs
of providing hot and cold water, electrical or any other energy
supplies to the Building and/or the Parking Garage, elevator and
escalator maintenance and operation, and service contracts;
(C) all taxes, duties, and general or special assessments
that may be levied, charged, or assessed against the Building, the
Parking Garage or the Land and all property owner's association dues,
fees, assessments or other charges;
(D) all charges for public services and utilities, including
water, natural gas, sewer, electrical power, steam, hot water, or any
energy supplied or used in the Building, the Parking Garage, or on the
Land and for all work or services performed by any utility company or
commission in connection with such utilities;
(E) the expense for gardening, landscaping, repainting,
rental of signs and equipment, lighting, sanitary control and garbage
removal, curbing and fencing maintenance, the cost of decorating and
furnishing any common areas, and glass maintenance and window
cleaning;
(F) the cost of the Landlord's insurance in types and
amounts as may reasonably be carried by a prudent owner, or as
required by any lender of Landlord;
(G) cost of each "Major Expenditure" (as hereinafter
defined) as amortized over the period of the Landlord's reasonable
estimate of the economic life of the Major Expenditure, but not to
exceed fifteen (15) years, using equal monthly installments of
principal and interest at
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the rate announced by First Interstate Bank as its prime
rate at the time of expenditure, plus one-half percent
(1/2%), where "Major Expenditure" shall mean any single
expenditure incurred during or subsequent to the fiscal
period in which the Lease commences for modifications or
additions to the Building and/or the Parking Garage if one
of the principal purposes of such modification or addition
was to reduce energy consumption or operating expenses, or
was required by governmental law or regulations; and
(H) an administrative or property management fee for
the property management services desired from the Building.
If Landlord provides its own property management services,
the property management fee shall not exceed three percent
(3%) of the gross collected rents. The salaries and wages of
those persons referred to in subparagraph 4 (b)(ii)(A) are
not deemed to be part of the property management services
for purposes of the limitation contained in this
subparagraph.
PROVIDED, HOWEVER, that for the purposes of determining
Base Operating Expenses if the Building is less than ninety percent (90%)
occupied during the whole calendar year 1998, "Base Operating Expenses" shall
mean the amount obtained by adjusting the actual Operating Expenses for calendar
year 1998 as if the Building had been ninety percent (90%) occupied during the
whole of calendar year 1998, such adjustment to be made by the Landlord in good
faith by adding to the actual Operating Expenses during such fiscal period such
additional costs as would have been incurred if the Building had been ninety
percent (90%) occupied.
(iii) "Tenant's Percentage" means the percentage
determined by converting a fraction, the numerator of which is the rentable
area of the Leased Premises as finally determined by the Architect pursuant to
Section 2 and the denominator of which is the aggregate of the rentable area,
determined in accordance with the Standard, of all leased premises from time to
time existing in the Building, whether actually rented or not, inclusive of the
Leased Premises. For purposes of this Lease, the percentage is agreed to be
twenty five percent (25%).
(c) Landlord shall by each December 15 during the term of
this Lease deliver to Tenant a statement of the estimated Operating Expenses
for the calendar year immediately following the date of such statement.
Landlord's failure to deliver to Tenant
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such statement by such date, however, shall not preclude Landlord's recovery of
Operating Expenses. On the later of the execution of this Lease or thirty (30)
days prior to the Commencement Date, Landlord shall also give Tenant an estimate
of the annual Operating Expenses from the Commencement Date through December 31
of the calendar year in which the term of this Lease is estimated to commence.
If the estimated Operating Expenses are projected to exceed the Base Operating
Expenses, Tenant shall pay to Landlord with each payment of the Base Monthly
Rent, as additional rent hereunder, and amount equal to one-twelfth (1/12) of
the product of the estimated Operating Expenses for such calendar year (less the
Base Operating Expenses) multiplied by Tenant's Percentage.
(d) Landlord shall by April 30 of each year during the term of
this Lease deliver to Tenant a statement of the actual Operating Expenses for
the preceding calendar year, but Landlord's failure to deliver such statement
by such date shall not preclude Landlord's recovery of Operating Expenses. If
the actual Operating Expenses for such calendar year shall exceed the Base
Operating Expenses for such calendar year, Tenant shall, within thirty (30) days
following the delivery of such statement, pay to Landlord an amount equal to
the product of the actual Operating Expenses (less the Base Operating Expenses)
multiplied by Tenant's Percentage; provided, however, payments by Tenant, if
any, of estimated Operating Expenses pursuant to this Section 4 shall be
credited against the amount due. The actual Operating Expenses shall be
prorated, if applicable, in the case of the first and last years of the term of
the Lease. If the actual Operating Expenses for such calendar year are greater
than the Base Operating Expenses but are less than the estimated Operating
Expenses for such calendar year collected by Landlord pursuant to this Section
4, then Tenant shall receive a credit against future monthly payments of
estimated Operating Expenses payable by Tenant in an amount equal to the
product of the excess of estimated Operating Expenses over actual Operating
Expenses multiplied by Tenant's Percentage.
(e) Notwithstanding anything to the contrary contained herein,
the amount of rent payable under this Lease shall never be less than the Base
Monthly Rent.
5. PARKING
(a) Tenant shall at all times during the term of this Lease,
have 30 covered reserved spaces and up to 70 uncovered reserved spaces. The
parking rental for the covered reserved
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spaces shall be No charge. Landlord will provide reasonable means of
identifying and controlling vehicles authorized to be parked in the reserved
and unreserved areas of the Parking Garage. Landlord may make, modify and
enforce rules and regulations.
6. SECURITY DEPOSIT
Tenant has paid Landlord at the execution hereof, the sum of thirty
nine thousand seven hundred ninety five & no/100 ($39,795.00) as security
for the full and faithful performance and observance by Tenant of all the
covenants and conditions on Tenant's part to be performed and observed in this
Lease as well as in all extensions and renewals hereof. Such deposit shall be
returned to Tenant at the termination of this Lease if Tenant has discharged
its obligations to Landlord in full. Landlord shall not be required to keep
this security deposit separate from its general funds and Tenant shall not be
entitled to interest thereon. In the event of any default by Tenant, Landlord
may apply or retain all or any part of such security deposit to cure any
default or to reimburse Landlord for any sum Landlord may spend by reason of
default. In the event of such a default the Landlord's election to utilize all
or any part of said security deposit, Tenant shall, upon written notice from
Landlord, forthwith deposit with Landlord such sum as is necessary to replenish
said security deposit to the amount specified above.
7. REPAIRS
(a) Landlord shall maintain in good sanitary and neat condition the
structural parts of the Building, including the foundations, bearing and
exterior walls, subflooring and roof, and exterior doors, windows, corridors,
and other common areas and shall keep all Building equipment such as elevators,
plumbing, heating, air conditioning and similar equipment in good condition and
repair.
(b) By taking possession of the Leased Premises, Tenant accepts the
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Leased Premises as being in the condition in which Landlord is obligated to
deliver them, and as being in good and sanitary order, condition and repair.
Tenant agrees that it will (i) make all repairs to the Leased Premises not
required to be made by the Landlord, (ii) pay for any repairs to the Leased
Premises or the Building containing the Leased Premises made necessary by any
negligence or carelessness of Tenant or its employees or persons permitted in
the Building by Tenant, and (iii) maintain the Leased Premises in a safe,
clean, neat and sanitary condition.
8. IMPROVEMENTS AND ALTERATIONS
(a) See Addendum
(b)
(c) The Tenant shall not make any alterations, improvements or
additions to the Premises without the Landlord's advance written consent* in
each and every instance. In the event Tenant desires to make any alterations,
improvements or additions, Tenant shall first submit to Landlord plans and
specifications therefor. Landlord shall have the option of either hiring a
contractor to perform the work or approving in advance the contractor Tenant
proposes to hire. If Landlord elects to hire the contractor, Landlord shall: (i)
obtain a bid from a contractor selected by Landlord to perform the work
specified in the plans and specifications; (ii) present the contractor's bid or
contract price to Tenant for Tenant's approval, which is deemed accepted if not
rejected in writing within seven (7) days; and (iii) require Tenant to supply a
deposit covering all or part of the contractor's bid or contract price. If
Landlord elects to approve the contractor selected by Tenant, Tenant shall: (i)
obtain the contractor's written agreement to not deviate from the plans and
specifications without Landlord's written consent; and (ii) obtain mechanic's
lien waivers from the contractor and all subcontractors and material men in
advance of any work being performed or materials supplied. All alterations,
improvements or additions shall become Landlord's property * which consent shall
not be unreasonably withheld
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and shall remain upon the premises at the termination of this Lease without
compensation to Tenant; provided, however, that Tenant shall, upon demand by
Landlord, at Tenant's sole cost and expense, forthwith remove any alterations,
additions or improvements made by Tenant, designated by Landlord to be removed,
and repair and restore the Lease Premises to its original condition, reasonable
wear and tear excepted.
9. LIENS
Tenant shall keep the Leased Premises free from any liens arising out
of any work performed, materials furnished, or obligations incurred by Tenant.
In the event that Tenant shall not, within ten (10) days after receiving notice
of the imposition of any such lien, cause the same to be released of record by
payment or posting of a proper bond, Landlord shall have, in addition to all
other remedies provided herein and by law, the right to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith including without limitation costs of
suit and attorney's fees shall be considered additional rent and shall be
payable by Tenant on demand with interest at the rate of ten percent (10%) per
annum.
10. USE OF PREMISES
The Leased Premises are to be used for the purpose of Business and
sales offices of Integrated Information Systems. Tenant agrees that it will use
the Leased Premises in such manner as not to injure, annoy, interfere with or
infringe on the rights of other tenants in the Building or use or allow the
premises to be used for any unlawful purpose. Tenant agrees to comply with all
applicable laws, ordinances and regulations now or hereafter in force in
connection with its use of the Leased Premises. Tenant shall not commit nor
suffer the commission of any waste, overload any floor beneath the Leased
Premises beyond the load limit established by Landlord, or knowingly permit any
explosives to enter the Building. Tenant shall not do or permit anything to be
done on or about the Leased Premises or bring or keep anything therein which
will in any way increase the fire insurance premium or other insurance premium
upon The Building.
11. LANDLORD SERVICES
Landlord agrees to furnish to the Leased Premises, subject to the
rules and regulations of the standards for Utilities and Services attached
hereto as Exhibit "C" and by this reference made a part hereof, water,
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electricity, heating, and air conditioning suitable for the intended use and
occupation of the Leased Premises, janitorial service, and elevator service.
Tenant agrees to abide by all regulations and requirements that Landlord may
prescribe for the proper functioning and protection of the heating ventilating,
and air conditioning system. Provided that such failure does not exceed five (5)
days, Landlord shall have no liability, and tenant shall not be entitled to any
abatement or reduction of rental, by reason of Landlord's failure to furnish any
services when such failure is caused by accident, breakage, repairs, strikes,
lockouts, labor disturbances or labor disputes, or by any other cause, similar
or dissimilar beyond the reasonable control of Landlord.
12. RULES AND REGULATIONS
Tenant agrees to abide by all reasonable rules and regulations of
this Building imposed by Landlord, a copy of which are attached hereto as
Exhibit "D" and by this reference made a part hereof. These regulations are
imposed for the cleanliness, good appearance, proper maintenance, good order
and reasonable use of the Leased Premises and the Building, and as may be
necessary for the proper enjoyment of the Building by all tenants and their
clients, customers and employees. The rules and regulations may be changed by
the Landlord from time to time, and shall become effective after reasonable
notice to Tenant. Failure of Tenant to comply with the Building Rules and
Regulations shall constitute a default under this Lease.
13. TAXES
Tenant shall, in addition to and at the same time as the payment of
the Base Monthly Rent under this Lease, pay to Landlord the amount of any
rental, excise, sales, or transaction privilege tax (but exception Landlord's
income tax) now or hereafter imposed by any taxing authority upon Landlord or
upon Landlord's receipt of the Base Monthly Rent and any other amounts payable
by Tenant pursuant to the terms of this Lease.
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15. UNTENANTABILITY
If the Premises are made untenantable in whole or in part by fire or
other casualty, the Rent, until repairs shall be made or the Lease terminated
as hereinafter provided, shall be apportioned on a per diem basis according to
the part of the Premises which is usable by the Tenant, if, but only if, such
fire or other casualty was not caused by the fault or negligence of the Tenant,
its contractors, agents, or employees. If such damage shall be so extensive
that the Premises cannot be restored to tenantability by the Landlord within a
period of sixty (60) days, either party shall have the right to cancel this
Lease by notice to the other given at any time within sixty (60) days after the
date of such damage; except that if such fire or casualty resulted from the
Tenant's fault or negligence, the Tenant shall have no right to cancel. If a
portion of the Building other than the Premises shall be so damaged that in the
opinion of the Landlord the Building should be restored in such a way as to
alter the Premises materially, the Landlord may cancel this Lease by notice to
the Tenant given at any time within sixty (60) days after the date of such
damage. If more than twenty-five percent (25%) of the Building is made
untenantable by fire or other casualty (regardless of whether the Premises are
untenantable), Landlord may terminate this Lease by written notice to Tenant
within one hundred twenty (120) days after the date of such casualty. In the
event of giving effective notice pursuant to this Section, this Lease and the
term and the estate hereby granted shall expire on the date fifteen (15) days
after the giving of such notice as fully and completely as if such date were
the date hereinafter set for the expiration of the term of this Lease. In the
event neither Landlord nor Tenant cancels the Lease, within sixty (60) days and
Landlord wishes to effect such restoration, the Landlord shall, promptly after
adjustment of any relevant insurance claims, commence such restoration at
Landlord's expense.
16. EMINENT DOMAIN
In the event the Building, the Land on which it is located, or any
Portion of the Leased Premises is taken under eminent domain proceeding, Tenant
shall have no right, title or interest to any award for such taking, except for
fixtures and improvements installed by Tenant, if any.
17. ASSIGNMENT AND SUBLEASE
Tenant shall not, either voluntarily or by operation of law, sell,
assign, hypothecate or transfer this Lease, or sublet the premises or any part
thereof, without the prior written consent of Landlord in each instance.
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Landlord's consent shall not be withheld, provided the proposed assignee or
sublessee is reasonably satisfactory to Landlord as to credit and character and
will occupy the premises for office purposes consistent with Article 10 of this
Lease and Landlord's commitments to other tenants. Any sale, assignment,
mortgage, transfer or subletting of this Lease which is not in compliance with
the provisions of this Article 17 shall be voidable and shall, at the option of
Landlord, terminate this Lease. The consent by Landlord to any assignment or
subletting shall not be construed as relieving Tenant from obtaining the
express written consent of Landlord to any further assignment or subletting or
as releasing Tenant from any liability or obligation hereunder, whether or not
then accrued. The Landlord reserves the right, should the Tenant request such
assignment or subletting, to release the Tenant from the terms and provisions
of this Lease and the Landlord shall have thirty (30) days to make such
determination. Should the Landlord exercise this right, then the Lease shall
terminate as of the date notice is given to Tenant.
Requests for sublease or assignment shall be accompanied by a minimum
service fee of $150 and Tenant agrees to reimburse Landlord for all reasonably
incurred legal fees and other expenses incurred by Landlord in connection with
the request. *Tenant shall make no profit on a sublease or assignment of this
Lease and any increase in rent, bonus or other fee charged or received, which is
higher than, or in addition to, the rent, and fees due under this Lease shall be
paid to Landlord
* provided that such fees and expenses shall not exceed $2,500.00.
18. ACCESS
Landlord and its agents shall have the right to enter the premises at
all reasonable times and provided that such entry does not unreasonably
interfere with Tenant's business for the purpose of examining or inspecting the
same, showing the same to prospective purchasers or tenants of the Building, and
as necessary to perform their obligations under this Lease. Landlord may erect,
use, and maintain scaffolding, pipes, conduits, and other necessary structures
in and through the Leased Premises where reasonably required by the character of
the work performed, provided that the business of Tenant shall not be
unreasonably interfered with. If Tenant shall not personally be present to open
and permit an entry into the Leased Premises at any time when such entry by
Landlord is necessary or permitted hereunder, Landlord may enter by means of a
master key or, in emergencies, may enter forcibly, without liability to Tenant.
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19. SUBORDINATION AND ATTORNMENT
(a) This Lease is junior, subject and subordinate to all ground leases,
mortgages, deeds of trust and other security instruments of any kind now
covering the Land, the Building, the Parking Garage and/or the Leased Premises
or any portion thereof or interest therein. Landlord reserves the right to place
liens or encumbrances on the Land, the Building, the Parking Garage and/or the
Leased Premises or any part thereof or interests therein superior in lien and
effect to this Lease. This Lease, at the option of the Landlord, shall be
subject and subordinate to any and all such liens or encumbrances now or
hereafter imposed by Landlord without the necessity of the execution and
delivery of any further instruments on the part of Tenant to effectuate such
subordination. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination of this Lease as may be requested by Landlord.
(b) In the event of the enforcement by any mortgagee, trustee, or
beneficiary under any mortgage, deed of trust or other security instrument of
the remedies provided for by law or by such mortgage, deed of trust or other
security instrument, Tenant will, if requested by such mortgagee, trustee, or
beneficiary or by any person succeeding to the interest of Landlord as the
result of said enforcement, automatically become the tenant of any such
successor in interest, without any change in the terms or other provisions of
this Lease. Upon request by said successor in interest, the Tenant shall execute
and deliver an instrument or instruments confirming its attornment. Nothing
herein shall be construed as a subordination of, or agreement to subordinate,
the lien and charge of any mortgage, deed of trust or other security instrument
to the rights or leasehold estates of the Tenant under this Lease.
20. SALE
This lease shall not be affected by any sale or conveyance by Landlord of
the Building containing the Leased Premises,
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This Lease shall not be affected by any such sale, and Tenant agrees to attorn
to the purchaser of the Building and deliver to the purchaser an offset
statement and an estoppel certificate in such form as Landlord may request. If
any security deposit has been made by Tenant, Landlord may transfer such
security deposit to the purchaser, and thereupon Landlord shall be discharged
from any further liability in reference thereto.
21. INDEMNIFICATION OF LANDLORD
(a) Tenant shall hold Landlord harmless from, indemnify and defend
Landlord against any and all claims for liability for any injury (including
death) or damage to any person or property whatsoever (i) occurring in, or on
the leased Premises or any part thereof, or (ii) occurring in, the building when
such injury or damage has been caused solely by the act, neglect, fault or
omission of Tenant, its agents, servants, employees, and from all costs,
attorneys' fees, expenses and liabilities incurred as a result of any such claim
or any action or proceeding brought thereon; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons (including death), in, upon or about the
Premises from any cause which does not result from the negligence of Landlord
and Tenant hereby waives all claims in respect thereof against Landlord.
(b) Landlord or anyone authorized to act for Landlord shall not be liable
for any damage to property entrusted to employees of the building, nor for loss
of or damage to any property by theft or otherwise, except for the injury or
damage caused by the negligence or willful misconduct of Landlord's agents,
employees, invitees, or customers. Tenant shall give prompt notice to Landlord
of any fire, accident or defect discovered within the Premises or the building.
(c) The provisions of this Section 21 shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination.
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22. TENANTS INSURANCE, WAIVER OF SUBROGATION
(a) Tenant agrees to carry at its own expense throughout the term
of the lease, comprehensive public liability insurance insuring both Landlord
and Tenant against all claims, demands, or actions arising out of or in
connection with Tenant's use or occupancy, of the Premises, or by the condition
of Premises with a combined single limit of liability of $1,000,000.00 for
bodily injury or death and property damage. Tenant shall deliver a Certificate
of Insurance to Landlord prior to the date of occupancy of the Premises and said
insurance policy shall list and protect Landlord and Tenant as their interests
may appear and shall contain an endorsement stating that the insurer agrees to
give no less than thirty (30) days prior written notice to Landlord in the event
of modification or cancellation thereof.
(b) Tenant shall be responsible for its own personal property
insurance.
(c) Landlord and Tenant each hereby release the other from any
and all liability or responsibility for any direct or consequential loss, injury
or damage to the Premises, or its contents, caused by fire or any other
casualty, during the term of this lease, even if such fire or other casualty may
have been caused by the negligence (but not the willful act) of the other party
or one for whom such party may be responsible. Inasmuch as the above mutual
waivers will preclude the assignment of any aforesaid claim by way of
subrogation (or otherwise) to an insurance company (or any other person), each
party hereto agrees if required by said policies to give each insurance company
which has issued to it fire and other property insurance, written notice of the
terms of said mutual waivers, and to have said insurance policies properly
endorsed, if necessary, to prevent the invalidation of said insurance coverage
by reason of said waivers.
23. ATTORNEY'S FEES
In the event of any legal action or proceeding brought by either
party against the other arising out of this Lease, the prevailing party shall
be entitled to recover reasonable attorneys' fees incurred in such action and
such amount shall be included in any judgement rendered in such proceeding.
24. WAIVER
No waiver by Landlord of any provision of this Lease or of any
breach by Tenant hereunder shall be deemed to be a waiver of any other
provision hereof, or of
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any subsequent breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act of Tenant. No act or thing done by
Landlord or Landlord's agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Leased Premises, unless done in writing signed
by Landlord. The delivery of the keys to any employee or agent of Landlord
shall not operate as a termination of this Lease or a surrender of the Leased
Premises.
25. NOTICES
All notices, demands or other communications in this Lease
provided to be given, made or sent by either party hereto to the other shall be
deemed to have been duly given, made or sent when made in writing and deposited
in the United States mail, certified or registered, postage prepaid, and
addressed as follows:
To Landlord: AmberJack, Ltd.
------------------------------
0000 X. Xxxxxxxxxxxx Xxxxxxx
------------------------------
Suite 410
------------------------------
Xxxxx, XX 00000
------------------------------
To Tenant: Integrated Information Systems
------------------------------
0000 X. Xxxxxxxxxxxx Xxxxxxx
------------------------------
Suite 200
------------------------------
Xxxxx, XX 00000
------------------------------
The address to which any notice, demand or other writing may be given, made or
sent to either party may be changed by written notice given by such party as
above-provided.
26. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency, bankruptcy, or reorganization act, shall at Landlord's option,
constitute a breach of this Lease by Tenant. Upon the happening of any such
event, or at any time thereafter, this Lease shall terminate five (5) days
after written notice of termination from Landlord to Tenant. In no event shall
this Lease be assigned or assignable by operation of law and in no event shall
this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency,
or reorganization proceedings.
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27. DEFAULT
(a) In the event Tenant fails to pay any rental due hereunder or fails
to keep and perform any of the material other terms or conditions hereof, or
otherwise breaches this Lease or defaults hereunder, time being of the essence,
or in the event of the taking by execution or judgment or other process of law
of all or any part of the Tenant's interest in this Lease, then ten (10) days
after receipt of written notice of default from Landlord, Landlord may, if such
default has not been corrected, resort to any and all legal remedies or
combination of remedies which Landlord may desire to assert including, but not
limited to one or more of the following: (1) lock the doors of the Leased
Premises and exclude Tenant therefrom; (2) retain or take possession of any
property on the Leased Premises pursuant to Landlord's statutory lien; (3) enter
the Leased Premises and remove all persons and property therefrom; (4) declare
this Lease at an end and terminated; (5) xxx for the rent due and to become due
under this Lease; (6) xxx for any damages sustained by Landlord; and (7)
continue this Lease in effect and relet the Leased Premises on such terms and
conditions as Landlord may deem advisable with Tenant remaining liable for the
Base Monthly Rent and other sums due hereunder plus the reasonable cost of
obtaining possession of the Leased Premises and of any repairs and alterations
necessary to prepare the Leased Premises for reletting, and the cost of
reletting. No action of Landlord shall be construed as an election to terminate
this Lease unless written notice of such intention be given to Tenant.
(b) If Landlord shall default in performing its obligations under this
Lease, Tenant shall give Landlord written notice of the deficiency, and
Landlord shall have ten (10) days after receipt of such notice to correct the
same, and if not corrected within ten (10) days; Tenant may terminate this Lease
or take such other legal steps to which it may be entitled.
28. INTEREST ON TENANT'S OBLIGATIONS AND LATE CHARGES
(a) Any amount due from Tenant to Landlord which is not paid when due
shall bear interest of ten percent (10%) per annum until paid, but the payment
of such interest shall not excuse nor cure the default.
(b) Tenant acknowledges that late payment of the Base Monthly Rent or
any other sum required by this Lease to be paid by Tenant to Landlord will cause
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Landlord to incur costs not contemplated by this Lease, the exact amount of such
costs being extremely difficult and impracticable to fix. Therefore, if any
payment due from Tenant is not received by Landlord within (5) calendar days
after its due date, Tenant shall pay to Landlord an additional sum of fifty
dollars ($50) as a late charge. The parties agree that this late charge
represents a fair and reasonable estimate of the costs that Landlord will incur
by reason of late payment by overdue amount, or prevent Landlord from
exercising any of the other rights and remedies available to Landlord. In
addition to the above-described late charge, Tenant shall pay to Landlord fifty
dollars ($50) for processing and accounting cost together with interest on such
amount at the rate specified above for each occasion that a rental check
presented to Landlord by Tenant is returned by Tenant's bank for insufficient
funds or for any other reason.
29. HOLDING OVER
No holding over by Tenant after the term of this Lease shall operate
to extend the Lease. In the event of any unauthorized holding over, Tenant
shall indemnify Landlord against all claims for damages by any other tenant to
whom Landlord may have leased all or any part of the Leased Premises covered
hereby effective upon the termination of this Lease. Any holding over without
the consent of Landlord in writing shall thereafter constitute a lease from
month to month with a Base Monthly Rent equal to 200% of the most recent Base
Monthly Rent then in effect.
30. TIME
Time is of the essence of this Lease in each and all of its
provisions.
31. BROKERS
Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease, excepting
only Xxxx Xxxxx; Xxx & Associates, and except for any broker or agent that
Landlord may have employed, it knows of no other real estate broker or agent
which is or may be entitled to a commission in connection with this Lease.
Tenant agrees to indemnify and save harmless Landlord from any claims for
commission by brokers or agents not mentioned in this paragraph.
32. RECORDATION
Tenant shall not record this Lease or a short form memorandum thereof
without the prior written consent of Landlord.
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33. BUILDING NAME
Tenant shall not use the name of the Building or the development in
which the Building is situated for any purpose other than the address of the
business to be conducted by Tenant in the Leased Premises.
34. SIGNS
Landlord shall have the sole and absolute discretion over all matters
relating to on-premise signs relating to the Building and other Tenant
identification signs and facilities which are intended to be seen by the public
from roads, sidewalks, pedestrian areas and adjoining structures in the
vicinity of the Building.
35. CHOICE OF LAW
This Lease shall be governed by the Laws of the State of Arizona.
36. ESTOPPEL CERTIFICATE OR THREE-PARTY AGREEMENT
At Landlord's request, Tenant will in addition to any other statements
or certificates required to be executed by Tenant, execute and deliver an
estoppel certificate and/or three-party agreement among Landlord, Tenant and
any third party dealing with Landlord certifying as to such facts (if true) and
agreeing to such notice provisions and other matters as such third party may
reasonably require in connection with the business dealings of Landlord and
such third party.
37. ADDITIONAL CONSTRUCTION
Tenant acknowledges that buildings other than the Building may be
constructed within the project of which the Building is a part, and, in
connection with such construction, Tenant shall permit Landlord and/or any
owner of the land upon which such additional buildings are being constructed,
to enter the Leased Premises to erect scaffolding and/or protective barriers
around the leased Premises (but not so as to preclude entry thereto) and to do
any act or thing necessary for the safety or preservation of the Building.
Landlord shall not be liable in any such case for any inconvenience,
disturbance, loss of business or any other annoyance arising from any such
construction, but Landlord shall use its best efforts to see that Landlord or
any adjoining owner will conduct such construction as consistently as possible
with accepted construction practices, so as to minimize inconvenience,
annoyance and disturbance to Tenant.
38. DEFINED TERMS AND MARGINAL HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the
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plural as well as the singular. If more than one person is named as Tenant, the
obligations of such persons are joint and several. The marginal headings and
titles the articles of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
39. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
(a) Hazardous Substances. The term "Hazardous Substances", as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous waste, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
(b) Tenant's Restrictions. Tenant shall not cause or permit to occur:
(i) Any violation of any federal, state or local law, ordinance,
or regulation now or hereafter enacted, related to environmental conditions on,
under, or about the Premises, or arising from Tenant's use or occupancy of the
Premises, including, but not limited to, soil and ground water conditions; or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substance on,
under or about the Premises, or the transportation to or from the Premises of
any Hazardous Substance, except as specifically disclosed this Lease.
(c) Environmental Clean-Up
(i) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or disposal of
Hazardous Substances ("Laws").
(ii) Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all requirements of
all governmental authorities (the "Authorities") under the Laws.
(iii) Should any Authority or any third party demand that a
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clean-up plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances that occurs
during the term of this Lease, at or from the Premises, or which arises at any
time from Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's own expense, prepare and submit the required plans and all related
bonds and other financial assurances; and Tenant shall carry out all such
clean-up plans.
(iv) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that
is requested by Owner. If Tenant fails to fulfill any duty imposed under this
Paragraph (c) within reasonable time, Owner may do so; and in such case, Tenant
shall cooperate with Owner in order to prepare all documents Owner deems
necessary or appropriate to determine the applicability of the Laws to the
Premises and Tenant's use thereof, and for compliance therewith, The Tenant
shall execute all documents promptly upon Owner's request. No such action by
Owner and no attempt made by Owner to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this Paragraph (c).
(v) Tenant's obligations and liabilities under this Paragraph (c)
shall survive the expiration of this Lease.
(d) Tenant's Indemnity.
(i) Tenant shall indemnify, defend, and hold harmless Owner, the
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all fines,
suits, procedures, claims, and actions of every kind, and all costs associated
therewith (including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of Hazardous
Substances which arises at any time from Tenant's use or occupancy of the
Premises, or from Tenant's failure to provide all information, make all
submissions, and take all steps required by all Authorities under the Laws and
all other environmental laws.
(ii) Tenant's obligations and liabilities under this Paragraph (d)
shall survive the expiration of this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
Tenant: Landlord:
Integrated Information Systems Interwestern Management Corp.
---------------------------------- Managers for AmberJack, Ltd.
By Xxx Xxxxxx By Illegible
-------------------------------- ---------------------------------
Its President Its President
------------------------------- -------------------------------
By By Illegible
-------------------------------- ---------------------------------
Its Its VP
------------------------------- -------------------------------
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LEASE ADDENDUM
This Addendum is attached to and forms part of the Lease between AmberJack,
Ltd., Landlord, and Integrated Information Systems, Tenant, for the
Premises located at 0000 X. Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xx
00000.
In the event of a conflict between the terms of the Lease and the terms of
the Addendum, the terms of the Addendum shall prevail.
2. Rent
Insert:
Effective July 1, 1997 or upon commencement date of the Lease; thirty six
thousand five and no/100 dollars ($36,005.00)
Effective July 1, 1999, or at the beginning of the 25th month after the
commencement date of the Lease; thirty seven thousand nine hundred and
no/100 dollars ($37,900.00)
Effective July 1, 2001, or at the beginning of the 49th month after the
commencement date of the Lease; thirty nine thousand seven hundred ninety
five & no/100 dollars ($39,795.00)
4. Operating Expenses
(b)(ii)(I) Operating Expense Items A, and E are subject to a maximum year
to year increase of six percent (6%).
8. Improvements and Alterations
(a) Landlord shall provide and perform interior improvements per Tenant
approved space plan, and in accordance with Building Standard Interior
Improvement Specifications (attached as Exhibit "E").
Landlord's maximum contribution to the construction of interior
improvements shall be twenty-five & no/100 dollars ($25.00) per rentable
square foot.
All costs of construction, including architectural and engineering fees,
(excluding space planning costs) City of Tempe plan check and building
permit fees, telephone and data cabling, and construction sales tax shall
be paid out of this Landlord construction fund.
26
All construction costs in excess of the Landlord's maximum contribution
shall be paid by the Tenant prior to the commencement of the Lease.
None of the Landlord's construction funds shall be used for furnishings,
artwork, trade fixtures, free-standing appliances, or any type of personal
property.
Unused construction funds, if any, shall be applied to Tenant's base
monthly rent obligation.
40. Lease Term Extension
Provided Tenant is not in default under the terms and conditions of the
Lease, Tenant may negotiate an extension of the Lease for five (5)
additional years. The rental rate and other material terms and conditions
are subject to renegotiation under the then prevailing market.
Tenant shall notify Landlord in writing, not more than six (6) months nor
less than four (4) months prior to the lease expiration of its desire to
extend the Lease.
If Landlord and Tenant are unable to agree on the final lease extension
rental rate, or other material terms and conditions of the lease extension,
then the Lease shall terminate as scheduled, and Tenant shall have no
further rights to the Leased Premises.
TENANT LANDLORD
Integrated Information Systems Interwestern Management Corporation
Managers for AmberJack, Ltd.
By: /s/ Xxx Xxxxxx By: /s/ illegible
------------------------------ ---------------------------------
Its: President Its: President
----------------------------- --------------------------------
Date: 4/7/97 By: /s/ illegible
---------------------------- ---------------------------------
Date: 4/25/97
-------------------------------
