STANDARD COMMERCIAL-INDUSTRIAL SINGLE TENANT TRIPLE NET LEASE BASIC TERMS SHEET
Exhibit 10.12
STANDARD COMMERCIAL-INDUSTRIAL SINGLE TENANT TRIPLE NET LEASE
BASIC TERMS SHEET
This Basic Terms Sheet to that certain Standard Commercial-Industrial Single Tenant Triple Net Lease between the parties listed below is for the convenience of the parties in quickly referencing certain of the basic terms of the Lease. It is not intended to serve as a complete summary of the Lease. In the event of any inconsistency between this Basic Terms Sheet and the Lease, the applicable Lease provision shall prevail and control.
Date of Lease (See Paragraph 1): | July 12, 2011 | |
Name of Lessor (See Paragraph 1): | Cherrylake Partners, LLC, an Arizona limited liability company | |
Name of Lessee (See Paragraph 1): | SynCardia Systems, Inc., a Delaware corporation | |
Lessee’s Telephone Number: | (000) 000-0000 | |
Lessee’s Guarantor: | ||
Address of Premises (See Paragraph 2): | 0000 Xxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 | |
Approximate Gross Rentable Floor Area of Premises: | 4,104 square feet | |
Lease Commencement Date (See Section 3.1): | December 1, 2011 | |
Lease Expiration Date (See Section 3.1): | November 30, 2016 | |
Monthly Base Rent (See Paragraph 4): | From December 1, 2011 to November 30, 2012 the sum of $2,875.00. On the first anniversary of the Commencement Date and on each subsequent anniversary thereof during the Term, the monthly base rent shall be increased for the succeeding one year period (or part thereof) pursuant to Section 4.2 of the Lease. | |
Lessee’s Security Deposit (See Paragraph 5): | $N/A | |
Lessee’s Permitted Use (See Section 6.1): | Manufacturing and distribution of artificial hearts and related products and any manufacturing or distribution use compatible with zoning | |
Address for Lessor: | 0000 X. 00xx Xxxxx, Xxxxxx, XX 00000 |
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LESSOR | LESSEE | |||||||
Cherrylake Partners, LLC, an Arizona limited liability company |
SynCardia Systems, Inc., a Delaware corporation | |||||||
By: | /s/ Xxxxxx Xxxx |
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Its: | Xxxxxx Xxxx Managing Member |
Its: | Xxxxxxx Xxxxxxx CEO/President | |||||
Date: | 8/31/11 | Date: | 8/31/11 |
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STANDARD COMMERCIAL-INDUSTRIAL SINGLE TENANT TRIPLE NET LEASE
1. PARTIES. This Lease, dated July 12, 2011 for reference purposes only, is made by and between Cherrylake Partners, LLC, an Arizona limited liability company (“Lessor”), and SynCardia Systems, Inc., a Delaware corporation “(Lessee”).
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for the term, at the rental, and upon all the conditions set forth herein, the real property more particularly described on Exhibit “A” attached hereto (the “Land”), together with that certain building located thereon as depicted on Exhibit “A-1” attached hereto (the “Building”) having a street address of 0000 Xxxx Xxxxxxxxxx, Xxxxx 000, xx xxx Xxxx xx Xxxxxx, Xxxxxx of Pima, State of Arizona (collectively, the “Premises”). All dimensions and areas quoted herein or in any exhibit attached hereto are approximate and are based on gross rentable area. Notwithstanding anything to the contrary contained herein, Lessor reserves to itself the use of the roof, exterior walls, and the area above and below the Premises, together with the right to install, maintain, use, repair and replace pipes, ducts, conduits, wires and structural elements leading through the Premises.
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authority upon the rentals and all other amounts herein provided to be paid by the Lessee. Said payment shall be in addition to and accompanying each monthly rental payment made by Lessee to Lessor.
The base rental set forth in this Section 4.1 is a negotiated figure and shall govern whether or not the actual gross rentable square footage of the Building is the same as set forth on the Basic Terms Sheet to which this Lease is attached. Lessee shall have no right to withhold, deduct or offset any amount from the base monthly rental or any other sum due hereunder even if the actual gross rentable square footage of the Building is less than that set forth on the Basic Terms Sheet. Rent for any period during the Term which is for less than one month shall be a pro rata portion of the monthly installment.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof N/A as security for Xxxxxx’s faithful performance of Xxxxxx’s obligations hereunder. If Lessee fails to pay rent or other charges due hereunder, or otherwise defaults with respect to any provision of the Lease, Lessor may use, apply, or retain all or any portion of said deposit for the payment of any rent or other charge in default or for the payment of any other sum for which Lessor may become obligated by reason of Lessee’s default, or to compensate Lessor for any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all or any portion of said deposit, Lessee shall within ten (10) days after written demand therefor deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount hereinabove stated, and Xxxxxx’s failure to do so shall be a material breach of this Lease. Lessor shall not be required to keep said deposit separate from its general accounts. If Xxxxxx performs all of Xxxxxx’s obligations hereunder, said deposit, or so much thereof as has not theretofore been applied by Xxxxxx, shall be returned, without payment of interest or other increment for its use, to Lessee (or, at Lessor’s option, to the last assignee, if any, of Xxxxxx’s interest hereunder) at the expiration of the Term and after Xxxxxx has vacated the Premises.
(a) The Premises are to be used only for manufacturing and distribution of artificial hearts and related products and any manufacturing or distribution use compatible with zoning (“Permitted Use”) and for no other business or purpose whatsoever without the prior written consent of Lessor. Lessee, at its expense, shall comply with all laws relating to its use and occupancy of the Premises and shall observe such reasonable rules and regulations as may be adopted and made available to Lessee by Lessor from time to time for the safety, care and cleanliness of the Premises.
(b) Lessee warrants that the operation of its business shall be conducted in strict compliance with all applicable recorded covenants, conditions and restrictions and all applicable federal, state and local environmental, safety and other pertinent laws, rules, regulations and ordinances and that any alterations necessary to the Premises by reason of such covenants, conditions, restrictions, laws, rules, regulations and ordinances, including, without limitation, the Americans with Disabilities Act and the Arizonans with Disabilities Act (collectively, the “ADA”), shall be at Lessee’s sole cost and expense. Lessee represents and warrants to Lessor that there is no risk to Lessee, Xxxxxx’s visitors and others using the Premises arising from Lessee’s operations. Lessee shall indemnify, defend and hold harmless Lessor from and against any claim, liability, expense, lawsuit, loss or other damage, including reasonable attorneys’ fees, arising from or relating to
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Lessee’s use of the Premises or any violations of the Americans with Disabilities Act due to the use of the Premises by Lessee, its employees, subtenants, agents, guests or invitees.
(a) As used herein, the term “Hazardous Material” shall mean any substance or material which has been determined by any state, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property, including all of those materials and substances designated as hazardous or toxic by the city and county in which the Premises are located, the U.S. Environmental Protection Agency, the Consumer Product Safety Commission, the U.S. Food and Drug Administration, the Arizona Department of Environmental Quality, or any other governmental agency now or hereafter authorized to regulate materials and substances in the environment.
(b) Lessee agrees not to introduce any Hazardous Material in, on or adjacent to the Premises without (i) obtaining Lessor’s prior written approval, (ii) providing Lessor with thirty (30) days prior written notice of the exact amount, nature, and manner of intended use of such Hazardous Materials, and (iii) complying with all applicable federal, state and local laws, rules, regulations, policies and authorities relating to the storage, use, disposal and clean-up of Hazardous Materials, including, but not limited to, the obtaining of all proper permits.
(c) Xxxxxx shall immediately notify Lessor of any inquiry, test, investigation, or enforcement proceeding by, against or directed at Lessee or the Premises concerning a Hazardous Material. Xxxxxx acknowledges that Lessor, as the owner of the Premises, shall have the right, at its election, in its own name or as Xxxxxx’s agent, to negotiate, defend, approve, and appeal, at Xxxxxx’s expense, any action taken or order issued with regard to a Hazardous Material by any applicable governmental authority.
(d) If Lessee’s storage, use or disposal of any Hazardous Material in, on or adjacent to the Premises results in any contamination of the Premises, the soil, surface or groundwater thereunder or the air above and around the Premises (i) requiring remediation under federal, state or local statutes, ordinances, regulations or policies, or (ii) at levels which are unacceptable to Lessor, in Lessor’s sole and absolute discretion, Xxxxxx agrees to clean-up the contamination immediately, at Xxxxxx’s sole cost and expense. Lessee further agrees to indemnify, defend and hold Lessor harmless from and against any claims, suits, causes of action, costs, damages, loss and fees, including attorneys’ fees and costs, arising out of or in connection with (i) any clean-up work, inquiry or enforcement proceeding relating to Hazardous Materials currently or hereafter used, stored or disposed of by Lessee or its agents, employees, contractors or invitees on or about the Premises, and (ii) the use, storage, disposal or release by Lessee or its agents, employees, contractors or invitees of any Hazardous Materials on or about the Premises.
(e) Notwithstanding any other right of entry granted to Lessor under this Lease, Lessor shall have the right to enter the Premises or to have consultants enter the Premises upon two business days written notice, accompanied by authorized Lessee personnel, throughout the Term at reasonable times for the purpose of determining: (1) whether the Premises are in conformity with federal, state and local statutes, regulations, ordinances and policies applicable to the leasing of the Premises, including those pertaining to the environmental condition of the Premises; (2) whether Lessee has complied with this Paragraph 6; and (3) the corrective measures, if any, required of Lessee to ensure the safe use, storage and disposal of Hazardous Materials. Xxxxxx agrees to provide access and reasonable assistance for such inspections. Such inspections may include, but are not limited to, entering the Premises with machinery for the purpose of obtaining laboratory samples. Lessor shall not be limited in the number of such inspections during the Term. If, during such inspections, it is found that Xxxxxx’s use of Hazardous Materials constitutes a violation of this Lease, Xxxxxx shall reimburse
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Lessor for the cost of such inspections within ten (10) days of receipt of a written statement therefor. If such consultants determine that the Premises are contaminated with Hazardous Materials or in violation of any applicable environmental law, Lessee shall, in a timely manner, at its expense, remove such Hazardous Materials or otherwise comply with the recommendations of such consultants to the reasonable satisfaction of Lessor and any applicable governmental agencies. If Xxxxxx fails to do so, Lessor, at its sole discretion, may, in addition to all other remedies available to Lessor under this Lease and at law and in equity, cause the violation and/or contamination to be remedied at Xxxxxx’s sole cost and expense. The right granted to Lessor herein to inspect the Premises shall not create a duty on Xxxxxx’s part to inspect the Premises, or liability of Lessor for Xxxxxx’s use, storage or disposal of Hazardous Materials, it being understood that Lessee shall be solely responsible for all liability in connection therewith.
(f) Xxxxxx shall surrender the Premises to Lessor upon the expiration or earlier termination of this Lease free of Hazardous Materials and in a condition which complies with all governmental statutes, ordinances, regulations and policies, recommendations of consultants hired by Xxxxxx, and such other reasonable requirements as may be imposed by Lessor.
(g) Xxxxxx’s obligations under this Paragraph 6 and all indemnification obligations of Lessee under this Lease shall survive the expiration or earlier termination of this Lease.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
(a) Except for those items for which Lessor is specifically made responsible under Section 7.1, Lessee shall, at its expense throughout the Term, maintain, service, replace, and keep in good repair the structures and mechanical equipment of the Premises, and all other aspects of the Premises including, without limitation, such items as floors, ceilings, walls, doors, glass, plumbing, paint, heating, ventilating and air conditioning equipment, partitions, electrical equipment, wires, electrical fixtures, parking lots, exterior walkways, landscaping, and signage identifying the Premises and the Lessee’s business and surrender same upon the expiration of the Term in the same condition as received, ordinary wear and tear excepted. Lessee shall give Lessor prompt written notice of any defects or breakage in the structure, equipment, fixtures, or of any unsafe condition upon or within the Premises.
(b) On the last day of the Term, or on any sooner termination, Xxxxxx shall surrender the Premises to Lessor in the same condition as received, broom clean, ordinary wear and tear excepted. Lessee shall repair any damage to the Premises occasioned by the removal of its trade fixtures, furnishings and equipment pursuant to Section 7.3, which repair shall include without limitation the patching and filling of holes and repair of structural damage.
7.3. ALTERATIONS AND ADDITIONS.
(a) Alterations or removal of any fixtures may not be made to the Premises without the prior written consent of Lessor, nor may any alterations to the “path of travel” (as the term is used in the ADA and in the rules and regulations implementing the ADA), whether within or outside the Premises, be made without Lessor’s consent, which shall not unreasonably withheld. Any alterations, improvements, additions or utility installations to the Premises, excepting movable furniture and machinery and trade fixtures, shall, at Lessor’s option, become part of the realty and belong to Lessor upon the
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expiration or earlier termination of this Lease. However, this shall not prevent Lessee from installing trade fixtures, machinery, or other trade equipment in conformance with all applicable ordinances, regulations and laws, which may be removed by Lessee at the expiration or earlier termination of this Lease, nor shall Lessor unreasonably withhold its consent to any alteration necessary to bring the Premises or the “path of travel” into compliance with the ADA. Lessee shall keep the Premises free from any liens arising out of any work performed for, material furnished to, or obligations incurred by the Lessee. It is further understood and agreed that under no circumstance is the Lessee to be deemed the agent of the Lessor for any alteration, repair, or construction within the Premises, the same being done at the sole expense of the Lessee. All contractors, materialmen, mechanics, and laborers are hereby charged with notice that they must look only to the Lessee for the payment of any charge for work done and materials furnished upon the Premises during the Term.
(b) Upon the expiration or sooner termination of the Term, Lessee shall, upon written demand by Lessor, at Xxxxxx’s sole expense, with due diligence, remove any alteration, addition or improvement made by Lessee, designated by Lessor to be removed, and repair any damage to the Premises caused by such removal. Lessee shall remove all of its movable property and trade fixtures which can be removed without damage to the Premises at the expiration or earlier termination of this Lease and shall pay Lessor for all damages from injury to the Premises resulting from such removal.
(c) Any and all of Lessee’s contractors and/or sub-contractors constructing any alterations, improvements, additions, utility installations or removing any fixtures shall sign a “Contractors Hold Harmless Agreement” in the form to be provided by Lessor prior to commencement of such work. Contractor(s)/sub-Contractor(s) who do not currently have a certificate of insurance on file with Lessor shall provide Lessor with a certificate of insurance in which the commercial general liability coverage shall not be less than $1,000,000, combined single limit, naming Lessor and its member(s), manager(s), and partner(s) as additional insureds.
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copies of the policy of liability insurance required under Section 8.1, or certificates evidencing the existence and amounts of such insurance. All such policies and certificates of insurance under Section 8.1 shall state explicitly that such insurance shall not be cancelable or subject to reduction of coverage or other modification except upon at least thirty (30) day’s advance written notice by the insurer to Lessor. Lessor shall furnish Lessee with renewals or “binders” thereof. Lessee shall not do or permit to be done anything which shall invalidate the insurance policies referred to in this Paragraph.
8.7. EXEMPTION OF LESSOR FROM LIABILITY.
(a) Lessee hereby agrees that Lessor and its agents shall not be liable for injury to Xxxxxx’s business or any loss of income therefrom or for damage to the goods, wares, merchandise, or other property of Lessee, Lessee’s employees, invitees, customers, or any other person in or about the Premises, nor shall Lessor be liable for injury to the person of Lessee, Lessee’s employees, agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction, or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or light fixtures, or from any other cause whether said damage or injury results from conditions arising upon the Premises or from other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Lessee.
(b) No individual partners, members, managers, managers of a member(s), shareholders, directors, officers, employees or agents of Lessor or individual, member of a joint venture, tenancy in common, firm or partnership, general or limited, which may be the Lessor or any successor in interest, shall be subject to personal liability with respect to any of the covenants or conditions of this Lease. The Lessee shall look solely to the equity of the Lessor in the Premises, and the rents, issues and profits derived therefrom, and to no other assets of Lessor, for the satisfaction of the remedies of the Lessee in the event of a breach by the Lessor. Lessee will not seek recourse against the individual partners, members, managers, managers of a member(s), shareholders, directors, officers, employees or agents of Lessor or an individual, member of a joint venture, tenancy in common, firm or partnership, general or limited, which may be the Lessor or any successor in interest or any of their personal assets for such satisfaction. It is mutually agreed that this clause is and shall be considered an integral part of this Lease.
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Should the Premises be partially damaged or destroyed, rent shall be abated in the same proportion as the destruction affects Xxxxxx’s ability to occupy and use the Premises for its intended purposes. Notwithstanding the foregoing, Lessor shall have thirty (30) days following the partial or total destruction of the Premises to elect in writing not to commence reconstruction, repair or replacement of the Premises. In the event of such an election by Xxxxxx, this Lease shall be deemed terminated and of no further force or effect.
11. UTILITIES; UTILITIES DEREGULATION.
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11.3. LESSEE SHALL GIVE LESSOR ACCESS. Lessee shall cooperate with Lessor, the utility company currently providing electricity service to the Premises (the “Electric Service Provider”), and any Alternate Service Provider at all times and, as reasonably necessary, shall allow Lessor, Electric Service Provider and any Alternate Service Provider reasonable access to the Premises’ electric lines, feeders, risers, wiring, and any other machinery within the Premises.
11.4. LESSOR NOT RESPONSIBLE FOR INTERRUPTION OF SERVICE. Lessor shall in no way be liable or responsible for any loss, damage, or expense that Lessee may sustain or incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the electric energy furnished to the Premises, or if the quantity or character of the electric energy supplied by the Electric Service Provider or any Alternate Service Provider is no longer available or suitable for Lessee’s requirements, and no such change, failure, defect, unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle Lessee to any abatement or diminution of rent or additional rent, or relieve Lessee from any obligations under the Lease.
12. ASSIGNMENT AND SUBLETTING.
(a) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder that is not received within five (5) days after Lessor provides Lessee written notice that the payment is due, which notice would be sent if rent is not received within ten (10) days of the date when due; provided that, in the event Lessor shall send more than two (2) such notices to Lessee within any consecutive twelve (12) month period, Lessor shall not be obligated to send any further payment default notices to Lessee during the remainder of the Term.
(b) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Xxxxxx, other than described in Subsection (b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee.
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(c) (i) The making by Lessee of any general assignment or general arrangement for the benefit of creditors; (ii) the filing by or against Lessee of a petition to have Xxxxxx adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Xxxxxx, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Xxxxxx’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days.
(d) The chronic delinquency by Lessee in the payment of monthly rental, under this Lease. “Chronic delinquency” shall mean failure by Lessee to pay monthly rental, or any other periodic payment required to be paid by Lessee under this Lease, within ten (10) days as described in Section 13.1(b) above, for any three (3) months (consecutive or nonconsecutive) during any twelve (12) month period. In the event of the chronic delinquency, at Lessor’s option, Lessor shall have the additional right to require that monthly rental be paid by Lessee quarter-annually, in advance, for the remainder of the Term.
(e) Any guarantor of the Lease revokes or otherwise terminates, or purports to revoke or otherwise terminate (by operation of law or otherwise) any guaranty of all or any portion of Lessee’s obligations under this Lease.
(a) Terminate Xxxxxx’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Xxxxxx shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Xxxxxx’s default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, and any real estate commission actually paid; the “worth at the time of award” established by the court having jurisdiction thereof of the amount by which the unpaid rent and other charges due for the balance of the Term after the time of Xxxxxx’s default exceeds the amount of such rental loss for the same period that Lessee proves by clear and convincing evidence could have been reasonably avoided; and that portion of the leasing commission paid by Lessor applicable to the unexpired term of this Lease. Unpaid installments of rent or other sums shall bear interest from the date due at the rate of 15% per annum. For purposes of this Section 13.2(a), “worth at the time of award” of the amount referred to above shall be computed by discounting each amount by a rate equal to the prime rate (or its equivalent) of Bank One Arizona (or its successor) at the time of the award, but in no event more than an annual rate of ten percent (10%).
(b) Re-enter the Premises, without terminating this Lease, and remove any property from the Premises in which case Lessor shall be entitled to enforce all of Lessor’s rights and remedies under this Lease, including the right to recover the rent and all other amounts due hereunder as they become due. No re-entry or taking possession of the Premises by Lessor pursuant to this Section 13.2 or other action on Lessor’s part shall be construed as an election to terminate the Lease unless a written notice of such intention is given to Lessee or unless the termination thereof is decreed by a court of competent jurisdiction. Lessor’s election not to terminate this Lease pursuant to this Section 13.2(b) or pursuant to any other provision of this Lease shall not preclude Lessor from subsequently electing to terminate this Lease or pursuing any of its other remedies.
(c) Maintain Xxxxxx’s right to possession, in which case this Lease shall continue in effect, whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Xxxxxx’s rights and remedies under this Lease, including the right to recover the rent and all other amounts due hereunder as they become due hereunder.
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(d) Pursue any other or additional remedy now or hereafter available to Lessor under the laws or judicial decisions of the State of Arizona, including, without limitation, the imposition of a landlord’s lien against any property located within the Premises. The expiration or termination of this Lease and/or the termination of Xxxxxx’s right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the Term hereof or by reason of Xxxxxx’s occupancy of the Premises.
The remedies set forth herein shall be deemed cumulative and not exclusive.
14. CONDEMNATION. If less than twenty percent (20%) of the gross rentable floor area of the Premises is taken under the power of eminent domain, or sold under the threat of the exercise of said power (all of which are herein called “condemnation”), this Lease shall terminate as to the part so taken as of the date one (1) day prior to the earlier of the date when the condemning authority takes title or possession, and in addition, Lessor shall have the option in such event to terminate this Lease in full by providing Lessee with written notice thereof within ten (10) days following the date when the condemning authority takes title or possession, whichever first occurs. If twenty percent (20%) or more of the floor area of the Premises is taken by condemnation, either Lessor or Xxxxxx may terminate this Lease by providing the other with written notice thereof within ten (10) days following the date when the condemning authority takes title or possession, whichever first occurs. If neither Lessor or Lessee elects to terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the proportion that the gross rentable floor area taken bears to the total gross rentable floor area of the original Premises. Any award for the taking of all or any part of the Premises under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, or as severance damages; provided, however, that Lessee shall be entitled to any award for loss or damage to Lessee’s trade fixtures and removable property. In the event that this Lease is not terminated by reason of such condemnation, Lessor shall, to the extent of severance damages actually received by Lessor in connection with such condemnation, repair any damage to the Premises caused by such condemnation except to the extent that Xxxxxx has been reimbursed therefor by the condemning authority. Lessee shall pay any amount in excess of such severance damages required to complete such repair.
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(a) Lessee shall at any time upon not less than ten (10) days prior written notice from Lessor execute, acknowledge and deliver to Lessor a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any; (ii) acknowledging that there are not, to Xxxxxx’s knowledge, any uncured defaults on the part of Lessor hereunder, or specifying such defaults if any are claimed; and (iii) setting forth such other statements with respect to this Lease as may be reasonably requested by Xxxxxx. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises.
(b) Xxxxxx’s failure to deliver such statement within such time shall be conclusive upon Lessee (i) that this Lease is in full force and effect, without modification except as may be represented by Lessor, (ii) that there are no uncured defaults in Lessor’s performance, and (iii) that not more than one month’s rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any part thereof, Xxxxxx hereby agrees to deliver to any lender designated by Lessor such financial statements of Lessee as may be reasonably required by such lender. Such statements shall include the past three years’ financial statements of Xxxxxx. All such financial statements shall be received by Lessor in confidence and shall be used only for the purposes herein set forth.
15.5. TIME OF ESSENCE. Time is of the essence.
15.6. CAPTIONS. Section and paragraph captions are not a part hereof.
If to Lessor: | Cherrylake Partners, LLC |
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c/o Xxxxxx Xxxx | ||||||
Rio West Development and Construction, Inc. | ||||||
0000 X. 00xx Xxxxx | ||||||
Tucson, Arizona 85713 | ||||||
If to Lessee: | At the street address of the Premises |
(a) If, in connection with obtaining financing for the Premises or any portion thereof, Lessor’s lender shall request reasonable modifications to this Lease as a condition to such financing, Lessee shall not unreasonably withhold, delay or defer its consent to such modifications, provided such modifications do not materially adversely affect Lessee’s rights or increase Lessee’s obligations under this Lease.
(b) Xxxxxx agrees to give to any trust deed or mortgage holder (“Holder”), by prepaid certified mail, return receipt requested, at the same time as it is given to Lessor, a copy of any notice of default given to Lessor, provided that prior to such notice Lessee has been notified, in writing, (by way of notice of assignment of rents and leases, or otherwise) of the address of such Holder. Lessee further agrees that if Lessor shall have failed to cure such default within the time provided for in this Lease, then the Holder shall have an additional twenty (20) days after expiration of such period, or after receipt of such notice from Lessee (if such notice to the Holder is required by this Section 15.9(b)), whichever shall last occur, within which to cure such default or if such default cannot be cured within that time, then such additional time as may be necessary if within such twenty (20) days, any Holder has commenced and is diligently pursuing the remedies necessary to cure such default (including but not limited to commencement of foreclosure proceedings, if necessary, to effect such cure), in which event this Lessee shall not be terminated.
15.15. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting assignment or subletting and subject to the provisions of Section 15.2, this Lease shall bind the parties, their personal representatives, successors and assigns. This Lease shall be governed by the laws of the State of Arizona.
15.16. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE.
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(a) This Lease and Xxxxxx’s rights hereunder shall be subordinate to any ground lease, mortgage, deed of trust or any other hypothecation for security now or hereafter placed upon or against the Premises, and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof.
(b) Within five (5) days after Xxxxxx’s request, Xxxxxx shall execute such documents to reflect such subordination of its rights hereunder to the lien of any mortgage, deed of trust or other hypothecation, and/or to any ground lease with respect to the Premises, and to all advances made or to be made upon the security thereof. Notwithstanding the foregoing, this Section 15.16(b) shall be self-operative and no further instrument of subordination shall be required; provided that Lessee shall execute and deliver such instrument of subordination within five (5) days after Xxxxxx’s request as provided above. As a condition of Lessor refinancing the Premises after the Commencement Date, Lessor shall obtain from the prospective lender a Subordination, Attornment and Non-Disturbance Agreement in form and substance reasonably acceptable to Lessee for execution by Lessor, Lessee and the prospective lender, which among other things, shall provide that Xxxxxx’s rights under this Lease shall not be disturbed or interfered with as long as Lessee shall pay and perform its obligations as set forth in this Lease.
(c) In the event any proceedings are brought for the foreclosure of, or in the event of the exercise of the power of sale under any mortgage, deed of trust or other hypothecation encumbering the Premises, or in the event of a termination of any ground lease affecting the Premises, Lessee shall attorn to the purchaser or ground lessor and recognize such purchaser or ground lessor as the lessor under this Lease; provided that any such purchaser or ground lessor shall recognize this Lease as remaining in full force and effect so long as Lessee is not in default thereunder.
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deliver this Lease on behalf of said entity, and that this Lease is binding upon said entity in accordance with its terms. If Lessee is a corporation, a limited liability company, partnership or other entity, Lessee shall deliver to Lessor, upon Xxxxxx’s execution of this Lease, evidence reasonably satisfactory to Lessor of the authority of the person(s) signing this Lease on behalf of Lessee to do so and that Xxxxxx has approved entering into this Lease. Such evidence may include a certified copy of a resolution of the Board of Directors or members of said entity authorizing or ratifying the execution of this Lease. In the absence of such evidence, the individual executing this Lease guarantees payment and full performance of this Lease.
16. SAFETY. Lessee shall maintain on the Premises at all times during the Term hereof an adequate number, size and type of fire extinguishers as are appropriate to Xxxxxx’s business. Lessee will at all times adhere to good safety practices or as may be required by safety inspectors. No goods, merchandise or materials shall be kept, stored or sold by Lessee on or about the Premises which are in any way hazardous. Lessee, at its sole expense, shall comply with any and all requirements of any insurance organization or company necessary for the maintenance of fire and public liability insurance covering the Premises.
16. ATTORNMENT. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust covering the Premises, the Lessee shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Lessor under this Lease.
17. SUCCESSORS AND ASSIGNS. Subject to any provisions hereof restricting assignment or subletting and subject to the provisions of Section 15.2, the covenants and conditions herein contained, inure to and bind the heirs, successors, executors, administrators and assigns of the parties hereto.
18. FINANCIAL STATEMENTS. Within fifteen (15) days after Xxxxxx’s request, Xxxxxx shall deliver to Lessor the current financial statements of Xxxxxx, and financial statements of the two (2) years prior to the current financial statements year, including a balance sheet and profit and loss statement for the most recent prior year, all prepared in accordance with generally accepted accounting principles consistently applied. Such financial statement, balance sheet and profit and loss statement shall be certified as accurate by Lessee or a properly authorized representative of Lessee if Lessee is a corporation, partnership or other business entity.
19. NO ACCORD OR SATISFACTION. No payment by Lessee or receipt by Lessor of a lesser amount than the monthly rent and other sums due hereunder shall be deemed to be other than on account of the earliest rent or other sums due, nor shall any endorsement or statement on any check or accompanying any check or payment be deemed an accord and satisfaction; and Lessor may accept such check or payment without prejudice to Lessor’s right to recover the balance of such rent or other sum or pursue any other remedy provided in this Lease.
20. ACCEPTANCE. This Lease shall only become effective and binding upon full execution hereof by Xxxxxx and delivery of a fully executed copy to Xxxxxx.
21. INABILITY TO PERFORM. This Lease and the obligations of the Lessee hereunder shall not be affected or impaired because the Lessor is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of the Lessor.
22. JOINT OBLIGATION. If there be more than one Xxxxxx, the obligations hereunder imposed shall be joint and several.
23. CONSENTS AND APPROVALS. Except as specifically otherwise stated herein, all consents or approvals requested of Lessor hereunder may be granted or denied by Xxxxxx in its sole and absolute discretion.
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24. BASIC TERMS SHEET. The Basic Terms Sheet to which this Lease is attached is for the convenience of the parties in quickly referencing certain of the basic terms of the Lease. It is not intended to serve as a complete summary of the Lease. In the event of any inconsistency between the Basic Terms Sheet and the Lease, the applicable Lease provision shall prevail and control.
25. TRIPLE NET LEASE. Lessee acknowledges that this is a Triple Net Lease and that Lessee shall do all acts and make all payments connected with or arising out of its use and occupation of the Premises to the end that Lessor shall receive all rent provided for herein free and undiminished by any expenses, charges, fees, taxes and assessments, and Lessor shall not be obligated to perform any acts or be subject to any liabilities or to make any payments, except as otherwise specifically and expressly provided in this Lease.
26. NO ACCESS TO ROOF. Lessee shall have reasonable access to inspect the roof of the Premises or the building in which the Premises are located and shall not install, repair or replace any aerial, fan, air conditioner, satellite dish or other device on the roof of the Premises or the building in which the Premises are located without the prior written consent of Lessor. Any aerial, fan, air conditioner, satellite dish or other device installed without such written consent shall be subject to removal, at Lessee’s expense, without notice, at any time. As a condition of giving such written consent, Lessor may require that Lessee execute an amendment to this Lease, setting forth the terms applicable to any roof-mounted equipment, and obligating Lessee to pay additional rental for the right to install and maintain such roof-mounted equipment.
27. BROKERS. Upon execution of this Lease by both Xxxxxx and Xxxxxx, Lessor shall pay a real estate commission to
Lessor’s broker, (“Lessor’s Broker”), as provided in the written agreement between Lessor and Lessor’s
Broker dated for services rendered to Lessor by Lessor’s Broker in this transaction (the “Broker Agreement”).
Lessor shall pay Xxxxxx’s Broker any commission earned pursuant to the terms of such Broker Agreement. (“Lessee’s
Broker”) represents the Lessee, and Xxxxxx’s Broker may pay a portion of its commission to Xxxxxx’s Broker pursuant to a separate agreement. Nothing contained in this Lease shall impose any obligation on Lessor to pay a commission or
fee to any party other than Xxxxxx’s Broker.
¨ | Lessor exclusively; or
| |
¨ | both Lessor and Lessee. |
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The parties hereto have executed this Lease on the dates specified immediately adjacent to their respective signatures.
This Lease has been prepared for submission to your attorney for approval. No representation or recommendation is made by the Lessor or its agents or employees as to the legal effect or tax consequences of this Lease or the transaction relating thereto.
LESSOR | LESSEE | |||||||
Cherrylake Partners, LLC, an Arizona limited liability company |
SynCardia Systems, Inc., a Delaware corporation | |||||||
By: | /s/ Xxxxxx Xxxx |
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Xxxxxx Xxxx | Xxxxxxx Xxxxxxx | |||||||
Its: | Managing Member | Its: | CEO/President | |||||
Date: | 8/31/11 | Date: | 8/31/11 |
Attachments: | Exhibits “A”, “A-1”, “B” | |
First Addendum to Lease |
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EXHIBIT “A”
The approximate 4,104 square foot space located at 0000 Xxxx Xxxxxxxxxx, Xxxxx 000.
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EXHIBIT “B”
Lessor agrees to provide a funding allowance to the Lessee for the completion of the interior of the building at 1956 X. Xxxxxxxxxx, Xxxxx 000 in the amount of One Hundred Thousand Dollars ($100,000.00). Lessor shall pay this amount to Lessee upon mutual execution of the lease agreement. Any amount in excess of the proposed funding by the Lessor will be the responsibility of the Lessee. In the event the cost of construction is less than the allowance provided, the Lessee will reassess the lease economics commensurate with the amount funded in the allowance. Lessee shall provide Lessor upon final payment to Rio West a full and final lien wavier for all the work that has been performed within the interior of 1956 E. Silverlake, Suite 110.
Said plans for the interior work are to be designed by Xxxx Xxxxxx of Xxxxxx and Associates Architects in conjunction with his consultant team at Advantech Facility Design, Inc. See attached floor plan that has been prepared by Xxxx Xxxxxx and dated August 1, 2011.
Rio West Development & Construction, Inc will perform the construction (operate as the general contractor in conjunction with a team of subcontractors) of the interior on an actual cost basis plus Eight (8%) percent profit and overhead. Rio West shall provide the Lessee with at least two (2) qualified bids for each of the following trades that are licensed and bonded subcontractors for the metal studs & drywall, electrical, mechanical (HVAC), plumbing, insulation, and painting. Lessee will have the option at their discretion to pay all fees directly to consultants (architect & engineers), City of Tucson permit fees and impact fees and Pima County wastewater fees that will eliminate the added cost or taxation associated with having Rio West invoice for those services.
[ATTACH SITE PLAN SHOWING BUILDING AND LAND—ALL DIMENSIONS AND AREAS TO BE BASED ON GROSS RENTABLE SQUARE FEET.]
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ADDENDUM TO STANDARD COMMERCIAL/INDUSTRIAL SINGLE TENANT
TRIPLE NET LEASE
THIS ADDENDUM is made and entered into this 28 day of October, 2011, by and between Cherrylake Partners, LLC, hereinafter referred to as “Lessor”, and SynCardia Systems, Inc., hereinafter referred to as “Lessee”.
WHEREAS, the parties hereto now desire to amend, modify or change certain portions of said Lease;
2. PREMISES (con’t). The Premises will be 1978 E. Silverlake, Tucson, Arizona, consisting of 4,000 square feet.
4. RENT (con’t). The rent will be Two Thousand Eight Hundred Two Dollars ($2,802) per month during the first year of the term, adjusted each lease year in accordance of the provisions of Section 4.2 hereof.
EXCEPT AS MODIFIED HEREIN, all terms, covenants and conditions contained in said Lease shall remain in full force and effect. This Addendum and the Lease constitute the entire agreement between the parties relating to the subject lease of the Premises, and integrate and supersede all understandings or agreements, written or verbal, with respect to the same except as expressly written in this Addendum or in the Lease. In the event of any inconsistency between the terms and provisions of this Addendum and those of the Lease, the terms of the Addendum shall govern and control.
“LESSOR” | “LESSEE” |
Cherrylake Partners, LLC, an Arizona limited liability company |
SynCardia Systems, Inc., a Delaware corporation | |||||
By: | /s/ Xxxxxx Xxxx |
By: | /s/ Xxxxxxx Xxxxxxx | |||
Xxxxxx Xxxx | Xxxxxxx Xxxxxxx | |||||
Its: | Managing Member | Its: | CEO/President | |||
Date: | 11/2/11 | Date: | 10/28/11 |
Attachments: Exhibits “A”, “A-1”
EXHIBIT “A”
The approximate 4,000 square foot space located at 1978 East Silverlake.
EXHIBIT “A-1”