Exhibit 10.30
LEASE
DATE: OCTOBER 1, 1996
LANDLORD: MATRIX CAPITAL CORPORATION
TENANT: CREATIVE NETWORKS, LLC
1. LEASED PREMISES
The leased premises (the "Leased Premises") are as shown on Exhibit "A"
attached hereto and are further defined as:
0000 Xxxxxxxx Xxxxxx Feet at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000. The Rentable Square Feet includes a common area factor of 12% for
computation of the area of the Leased Premises
II. LEASE
The Landlord hereby leases to the Tenant, and the Tenant hereby leases from
the Landlord, the Leased Premises, upon the terms and conditions set forth in
this Lease (the "Lease").
III. TERM
The Lease is for a term of twelve (12) months commencing October 1, 1996,
(the "Commencement Date") and terminating September 30, 1997, (the "Termination
Date").
IV. SECURITY DEPOSIT
Tenant has paid Landlord at the execution hereof, the amount of zero
dollars ($0.00) as security for the performance by Tenant of the terms hereof,
which amount shall be returned to Tenant at the Termination Date if Tenant has
discharged its obligations to Landlord in full pursuant to this Lease and all
amendments thereto.
V. RENTAL, DEFINITIONS
Tenant agrees to pay as base rental one hundred eight thousand four hundred
thirty three and thirty three one hundredths dollars ($8,433.33) per month (the
"Base Rent") for each and every month of the Lease (plus any excise, privilege
or sales taxes levied on the rentals or the receipt thereof, except Landlord's
income tax), payable in advance, without offset or deduction, on the first day
of each month commencing with the Commencement Date of the Lease.
Each year of this Lease, Landlord may elect to require that the rental
be adjusted for that year on the basis of Landlord's incurred Operating Costs,
which adjusted rental Tenant agrees to pay in accordance with the statements
rendered. Operating Costs shall be assessed at Tenant's Proportionate Share of
the Building.
"Operating Costs" shall be determined on the basis for each year of this
Lease by taking into account, on a consistent basis, all costs of management,
maintenance, and operation of the Building, including but not limited to the
costs of Real and Personal Property taxes, cleaning, utilities, air conditioning
and heating, plumbing, elevator, insurance, ground rent, landscaping costs and
the cost of improvements installed to reduce the above-listed operating costs
together
with interest at the Prime Rate (as hereinafter defined) on the unamortized
portion of such cost, amortized over such reasonable period as Landlord shall
determine, and all other costs which can properly be considered operating
expenses incurred in the management, maintenance and operation of the Building.
For the purposes of this Paragraph V. Rental, Definitions, the following
terms shall have the following meanings:
1. "Real and Personal Property taxes" shall mean and include a) all real
property taxes and personal property taxes, charges and general and special
assessments which are levied or assessed upon or with respect to the Building
and any improvements, fixtures, and equipment and all other personal property of
Landlord located on, in or about the Building and/or used in connection with the
operation thereof and b) all taxes which shall be levied or assessed in addition
to or in lieu of such real or personal property taxes, but shall not include any
net income, franchise, capital stock, estate or inheritance taxes.
2. Tenant's "Proportionate Share" shall mean the ratio, expressed as a
percentage, of the rentable area of the Leased Premises to the rentable area of
the Building, which the parties hereby stipulate to be twenty-five percent
(25%).
3. As used in this Lease, the term "Building" includes the building
and/or buildings and adjoining parking areas, if any, and the land and/or air
space which is the site and grounds for such buildings and parking areas,
regardless of the name under which such buildings may be known.
4. As used in this Lease, the term "Prime Rate" shall mean the sum of (a)
that rate of interest, charged by Bank One, Arizona, N.A. a national banking
association (or any successor to the business of such bank), and announced by
such bank, from time to time, as its "prime rate", and (b) two (2) percentage
points above the annual rate of interest specified in clause (a) immediately
hereinabove.
VI. INITIAL CONSTRUCTION
Construction, if any, to be completed by Landlord will be in accordance
with the plans, specifications and agreements approved by both parties, which
are attached hereto, as Exhibit "A" (the "Plans and Specifications") and made
part of this Lease. Landlord will not be obligated to construct or install any
improvements or facilities of any kind other than those called for on the Plans
and Specifications. Landlord agrees to commence and complete such Construction
with reasonable diligence. All such improvements are to be the property of
Landlord, and upon termination of this Lease, Tenant shall deliver the Leased
premises to Landlord in good condition and repair, broom clean, normal wear and
tear excepted.
VII. REPAIRS AND ALTERATIONS
Landlord agrees to make all necessary repairs to the exterior walls,
exterior doors, windows and corridors of the Building. Landlord agrees to keep
the Building in a clean, neat and attractive condition. Landlord agrees to keep
all building standard equipment such as elevators, plumbing, heating, air
conditioning and similar equipment in good repair, but Landlord shall not be
liable or responsible for breakdowns or temporary interruptions in service when
reasonable efforts are used to restore service.
Tenant agrees that it will pay for the cost of all repairs to the Leased
Premises not required above to be made by Landlord and be responsible for all
redecorating, remodeling, alteration and painting required by it during the term
of this Lease. Tenant shall pay for any repairs to the Leased Premises, or the
Building, made necessary by any negligence or carelessness of Tenant, its
employees or invitees. Tenant agree to maintain the Leased Premises in a clean,
neat and sanitary condition.
Tenant may place partitions and fixtures and make improvements and other
alternations to the interior of the Leased Premises at Tenant's expense,
provided however, that prior to commencing any such work Tenant shall first
obtain the written consent of Landlord to the proposed work and Landlord shall
have right to review and approve all plans. Landlord may require that said work
be done by Landlord's own employees or under Landlord's direction but at the
expense of Tenant, and Landlord may, as a condition to consenting to such work,
require that Tenant give security that the Leased Premises will be completed
free and clear of liens and in a manner satisfactory to Landlord.
Notwithstanding the foregoing, any such improvements or alterations by Tenant
shall conform to and be in substantial accordance in quality and appearance with
the quality and appearance of the improvements in the remainder of the Building.
Any such improvements shall become the property of Landlord upon expiration of
this Lease. Tenant shall remove any movable furniture and equipment upon
termination of this Lease and shall deliver the Leased Premises to Landlord in
as good condition as received, broom clean, normal wear and tear excepted. In
the event Tenant receives consent of the Landlord and uses Tenant's own
contractor for any such improvements then Tenant must provide Landlord with
contractor's evidence of workmen's compensation and liability insurance in
amounts sufficient to Landlord and have acquired the necessary building permits
prior to commencing any such construction.
VII. FIRE OR CASUALTY INSURANCE
In the event that the Leased Premises are wholly or partially destroyed by
fire or other casualty covered by the usual form of fire and extended coverage
insurance rendering them untenantable, Landlord shall, to the extent of
insurance proceeds actually received by Landlord, rebuild, repair or restore the
Leased Premises to substantially the same condition as when the same were
furnished to Tenant and this Lease shall remain in effect during such period. In
the event of total destruction, rent shall xxxxx during the period of
reconstruction, and in the event of partial destruction, rent shall xxxxx
prorata during the period of reconstruction. In the event, however, that the
building containing the Leased Premises is damaged or destroyed to the extent of
more than one-third (1/3) of its replacement cost, Landlord may elect to
terminate this Lease.
Tenant shall be responsible for and shall provide Tenant's own insurance
coverage, and supply Landlord with evidence of such coverage with respect to any
furniture, fixtures, improvements, betterments, equipment and personal property
belonging to Tenant and placed by Tenant in or upon the Leased Premises. Tenant
agrees and warrants to Landlord that any fire insurance policy, extended
coverage policy, casualty and loss policy, or other policy or policies carried
by Tenant in connection with this Lease or the Leased Premises and/or insuring
Tenant's property or effects located in or upon the Leased Premises shall each
contain a provision whereby the insurance carrier waives any right of
subrogation against the Landlord.
Provided Landlord can obtain such waiver of subrogation rights with regard
to policies of fire or casualty insurance obtained by Landlord with regard to
the Building, Landlord hereby releases and waives any and all rights of
subrogation against Tenant which, in the absence of this release and waiver,
would arise in favor of any insurance company insuring Landlord against loss of
fire, extended coverage casualty and loss of any other type, resulting from
damage to or destruction of the building of which the Leased Premises form a
part or any portion thereof in damage to or destruction of the property of
Landlord in the Building. Landlord shall not be required to obtain such
insurance policies except through insurance companies satisfactory to the
Landlord and the holder of any mortgage covering the Leased Premises.
IX. USE OF LEASED PREMISES
The Leased Premises are leased to Tenant for the sole purpose of
professional administration and for no other purpose whatsoever. Tenant agrees
that it will use the Leased Premises in such manner as to not interfere with or
infringe upon the rights of other tenants in the Building. Tenants agrees to
comply with all applicable laws, ordinances and regulations in connection with
its use of and/or transfer of any interest in the Leased Premises and in
performing all repairs, remodeling and alterations to the Leased Premises,
including all Environmental Laws and obtaining all necessary permits, licenses
or other authorizations required pursuant to such
laws. Tenant shall supply all documentation regarding compliance with the law,
including written documentation by the appropriate governmental authority that
all such laws have been complied with.
X. SIGNS
Landlord shall retain absolute control over the exterior appearance of the
Building and the exterior appearance of the Leased Premises as viewed from the
public halls. Tenant will not install, or permit to be installed, any drapes,
shutters, lettering, advertising or any items that will in any way alter the
exterior appearance of the Building or the exterior appearance of the Leased
Premises as viewed from the public halls or exterior.
XI. CONFIDENCE REPOSED IN TENANT AND TENANT'S REPRESENTATIONS AND
WARRANTIES
It is agreed that one of the conditions moving Landlord to make this Lease
is the personal confidence reposed by it in Tenant, combined with the belief
that Tenant will be a tenant and occupant satisfactory to Landlord and the other
occupants of the Building. Should Tenant vacate or abandon the Leased Premises
during the term hereof, Landlord, at Landlord's discretion, shall have the right
to cancel this Lease without obligation to Tenant.
Tenant represents and warrants as follows:
A. Tenant has never been in violation of or investigated for violation of
any Environmental Laws.
B. Tenant will not engage in any activity involving Hazardous Substances
or which could cause an Environmental Condition on the Leased Premises or permit
any third party to do so, without Landlord's written consent.
C. Tenant will immediately notify Landlord of (i) any investigation,
proceeding, notice or claim regarding a violation of any Environmental Law
relating to the Leased Premises or other premises which Tenant occupies, an
Environmental Condition on the Leased Premises, or a Release of Hazardous
Substances on the Leased Premises, (ii) any submissions or notifications made by
Tenant to governmental authorities or others concerning Environmental Conditions
or Hazardous Substances on the Leased Premises, and (iii) the existence of any
Hazardous Substances or Environmental Conditions on or about the Leased Premises
or on property adjoining or in the vicinity of the Leased Premises that may be
in violation of an Environmental Law (regardless of whether Tenant is
responsible for its existence). Tenant will take all appropriate response
actions in the event of an occurrence of an Environmental Condition on the
Leased Premises and shall resolve all environmental problems to the satisfaction
of Landlord. In the event of any investigation, notice of violation or other
action taken by a governmental agency or private person relating in any way to
Tenant's operation on the Leased Premises. Tenant shall be solely responsible
for complying with all legal requirements, including cleanup of the Leased
Premises, and requirements imposed by the governmental authority. Tenant shall
not, however take any remedial action in response to the presence of any
Hazardous Substance or Environment Condition, nor enter into any settlement
agreement, consent decree or other compromise without first notifying Landlord
and affording Landlord ample opportunity to appear, intervene, or otherwise
appropriately assert and protect Landlord's interest.
As used in this Lease, the following terms shall have the meanings
specified below:
A. "Environmental Law(s) shall mean any federal, state or local law,
including statutes, ordinances, rules, common law and guidelines, now in effect
or hereinafter enacted, pertaining to health, industrial hygiene, or the
environment, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Superfund Amendments
and Reauthorization Act, the Clean Air Act, the Federal Water Pollution Control
Act, the Safe Drinking Water Act, and the Solid Waste Disposal Act.
B. "Hazardous Substances" shall mean any material or sublease which may
or could pose risk of injury or threat to health or the environment and any
substance that is or becomes regulated by any federal, state or local law.
C. "Environmental Condition" shall mean any condition with respect to
soil, air, surface or groundwater which could require remedial action and/or may
result in claims, demands, and/or liabilities by or to third parties, including
without limitation, governmental entities.
D. "Release" shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping.
Tenant's failure to perform or observe any of the above representations and
warranties shall constitute a substantial breach of the Lease and shall entitle
Landlord to pursue any and all remedies allowed by law or at equity, including
without limitation cancelling and terminating the Lease and imposing a rent
surcharge.
XII. ASSIGNMENT AND SUBLETTING
(a) Tenant for itself, its heirs, distributees, successors and assigns,
expressly covenants that it shall not, by operation of law or otherwise, assign,
sublet, mortgage or encumber all or any part of this Lease or the Leased
Premises, including environment liens in favor of a governmental entity, or
permit the Leased Premises to be used by others without the prior written
consent of Landlord in each instance. Any attempt to do so by the Tenant shall
be void. The consent by Landlord to any assignment, sublet, mortgage or
encumbrance or use of all or any part of the Leased Premises by others, shall
not constitute a waiver of Landlord's right to withhold its consent to any other
assignment, sublet, mortgage, or encumbrance or use of all or any part of the
Leased Premises by others. Without the prior written consent of Landlord, this
Lease and the interest of Tenant therein or any assignee of Tenant therein,
shall not pass by operation of law, and shall not be subject to garnishment or
sale under execution in any lawsuit or proceeding which may be brought against
or by Tenant or any sublessee or assignee of Tenant.
(b) If Tenant requests Landlord's consent to an assignment of this Lease
or subletting of all or any part of the Leased Premises, Tenant shall submit to
Landlord: (1) the name of the proposed assignee or subtenant, (2) the terms of
the proposed assignment or subletting, (3) the nature of the proposed
subtenant's or assignee's business: and (4) such information as to such
subtenant's or assignee's financial responsibility and general reputation as
Landlord may require.
(c) Upon the receipt of the request pursuant to paragraph XII (b)
hereinabove and information from Tenant, Landlord shall have the option, at
Landlord's discretion, to be exercised in writing within thirty (30) days after
such receipt, to either (1) cancel and terminate the Lease, if the request is to
assign or sublet all of the Lease and/or the Leased Premises or, if the request
is to sublet or assign a portion of the Lease and/or the Leased Premises, to
cancel and terminate this Lease with respect to such portion, in each case as of
the date set forth in Landlord's notice of exercise of such option: (2) to grant
said request, or (3) deny said request if Landlord finds such subtenant or
assignee unacceptable.
(d) In the event Landlord shall cancel this Lease, Tenant shall surrender
possession of the Leased Premises, or the portion of the Leased Premises which
is the subject of the request, as the case may be, on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender of
the Leased Premises. If the lease shall be cancelled as to a portion of the
Leased Premises only, the rent and other charges payable by Tenant hereunder
shall be reduced proportionately according to the ratio that the number of
square feet in the portion of space surrendered bears to the square feet of
space at the initial Leased Premises.
(e) In the event that Landlord shall consent to a sublease or assignment
pursuant to the request from Tenant, Tenant shall cause to be executed by its
assignee or subtenant an
agreement satisfactory to Landlord, whereby such assignee or subtenant agrees to
perform faithfully and to assume and be bound by all of the terms, covenants,
provisions and agreements of this Lease for the period covered by the assignment
or sublease and to the extent of the space sublet or assigned. In addition,
Tenant agrees that with regard to each such sublease or assignment so consented
to by Landlord, Tenant: (1) will not collect more than one month's rent in
advance, (2) will not terminate or cancel such sublease or assignment without
Landlord's prior written consent, (3) will be responsible for all the acts and
omissions of said sublessees or assignees, (4) will only sublease at the rental
which Tenant is then paying to Landlord, (5) shall pay to Landlord promptly,
following receipt of the amount of the value of any consideration received by
Tenant from any assignment of this lease, (6) shall not assign or sublet the
premises to another existing tenant in the building housing the Leased Premises,
and (7) an executed copy of each sublease or assignment and assumption of
performance by the sublessee or assignee, on Landlord's standard form, shall be
delivered to Landlord within five (5) days prior to the commencement of
occupancy set forth in such assignment of sublease. No such assignment or
sublease shall be binding on Landlord until Landlord shall have actually
received such copies as required herein.
(f) In no event shall any assignment or subletting to which Landlord may
consent, release or relieve Tenant from its obligations to fully perform all of
the terms, covenants and conditions of this Lease on its part to be performed.
(g) In the event this Lease is cancelled at Landlord's option as provided
hereinabove, neither of the parties shall have any further obligations
hereunder, except as may be expressly provided herein and except Tenant shall
pay all rents, charges and all other amounts due, as set out in the Lease, to
the date Tenant is notified of such cancellation.
XIII. EMINENT - DOMAIN
In the event any portion of the Leased Premises is taken from Tenant under
eminent domain proceedings, Tenant shall have no right, title or interest in any
award made for such taking.
XIV. WAIVER AND SEVERABILITY
The consent of the Landlord in any instance to any variation of the terms
of the Lease, or the receipt of rent with knowledge of any breach, shall not be
deemed to be a waiver as to any breach of any covenant or condition herein
contained, nor shall any waiver be claimed as to any provisions of this Lease
unless the same be in writing, signed by Landlord. This Lease and any written
amendment, exhibits or addenda hereto contain the entire agreement between the
parties. If any term or provision of this Lease or any application thereof shall
be invalid or unenforceable, then the remaining terms and provisions of this
Lease and any other application of such term or provision shall not be affected
thereby.
XV. USE OF COMMON FACILITIES
All elevators stairways, halls and areas for the common use of all tenants
at the Building shall be open to reasonable use by Tenant, its customers,
clients and employees. Tenant and its officers, agents and employees agree to
park their motor vehicles only in areas designated from time to time for that
purpose or otherwise as permitted in writing by Landlord.
XVI. SERVICES
(a) Landlord agrees to provide air conditioning, heat, water and
electricity for lighting and normal office usage during the customary business
hours of the Building as established by Landlord, and to provide janitor
services of the type customarily furnished by comparable buildings, which shall
consist essentially of a nightly clean-up five (5) days per week, the cost of
which shall be included in Operating Costs hereunder.
(b) Tenant agrees to pay for all utilities and other services and expenses
used or incurred by Landlord on Tenant's behalf not specifically provided for
above.
XVII. ENTRY OF LANDLORD
Landlord reserves the right, without abatement of rent and other charges
due hereunder from Tenant to enter upon or have its agent enter the Leased
Premises at reasonable times for the inspection of the same, including
environmental assessments and audits, to make necessary repairs, including any
actions necessary to remediate, xxxxx or cleanup any Hazardous Substances or
Environmental Conditions on the Leased Premises, the cost of which Tenant will
be responsible pursuant to paragraph XXV below, to post notices of non-
responsibility and Landlord reserves the right, during the last six (6) months
of the term of this Lease to show the Leased Premises, at reasonable times, to
prospective purchasers or tenants.
Tenant hereby waives any claim for damages for any injury or inconvenience
to or interference with Tenant's business, any loss of occupancy or quiet
enforcement of the Leased Premises, and any other loss occasioned by Landlord's
entry. Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Leased Premises, excluding Tenant's
vaults and safes (as the same are permitted by Landlord to be upon the Leased
Premises), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency in order to obtain
entry to the Leased Premises and any entry into the Leased Premises obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Leased Premises or an eviction of Tenant from the Leased Premises or any
portion thereof.
XIII. SUBSTITUTED PREMISES
Landlord reserves the right upon thirty (30) days' written notice to Tenant
to substitute other premises within the Building for the Leased Premises for all
uses and purposes as though originally leased to Tenant pursuant to this Lease.
The substituted premises shall contain approximately the same number of square
feet as the Leased Premises without increase of Base Rent. Landlord shall pay
all reasonable moving expenses of Tenant incidental to such substitution of
premises.
XIX. SUBORDINATION AND ATTORNMENT
Landlord reserves the right to place liens and encumbrances on the Leased
Premises superior in lien and effect to this Lease. This Lease and any and all
renewals, modifications, replacements or extensions thereof, at the option of
the Landlord, shall be subject and subordinate to any liens and encumbrances now
or hereinafter imposed by Landlord upon the Leased Premises or the Building and
Tenant agrees to execute and deliver upon demand (and to cause all sublessees
and assignees under Tenant to execute and deliver upon demand) such instruments
subordinating this Lease (and all subleases and assignments pursuant to this
Lease) to any such lien or encumbrance as shall be required by Landlord.
In the event Landlord's interest in the Leased Premises is derived from a
lease from another party and said Lease should be terminated by the other party.
Tenant agrees to attorn (and to cause all sublessees and assignees under Tenant
to so attorn) to the other party, its successors and assigns as Landlord on this
Lease.
In the event any proceedings are brought for the foreclosure of any
mortgage on the Leased Premises, Tenant will attorn (and Tenant will cause all
sublessees and assignees under Tenant to so attorn) to the purchaser at
foreclosure sale and recognize the purchaser as the Landlord under this Lease.
The purchaser by virtue of such foreclosure shall be deemed to have assumed, as
substitute Landlord, the terms and conditions of this Lease until the resale or
other disposition of its interest by such purchaser. Such assumption, however,
shall not be deemed of
itself an acknowledgment by the purchaser of the validity of any then existing
claims of Tenant (or the claims of any sublessees or assignees under Tenant)
against the prior Landlord.
Tenant agrees to execute and deliver (and to cause all sublessees and
assignees under Tenant to execute and deliver) such further assurance and other
documents (including but not limited to a new lease upon the same terms and
conditions as this lease) confirming the foregoing as such purchaser may
reasonably request. Tenant on behalf of itself and on behalf of all sublessees
and assignees under Tenant waives any right of election to terminate this Lease
because of any such foreclosure proceedings. Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute (and
to deliver to any third party) any documents hereinabove required to be executed
by Tenant, for and on behalf of Tenant, if Tenant shall have failed to do so
within ten (10) days after the request therefor by Landlord.
XX. NOTICES
Any notices or demands to be given hereunder shall be in writing and shall
be given to Landlord and to Landlord's managing agent with regard to the
Building, at their respective offices and to Tenant at the Leased Premises, or
at such other address as either party shall designate, and shall be by
registered or certified United States mail, postage prepaid or, at the election
of Landlord, hand delivered.
XXI. DEFAULT
In the event Tenant fails to pay any rental due hereunder or fails to keep
and perform any of the other terms or conditions hereof, time being of the
essence, then five (5) days after written notice of default from Landlord, the
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 to
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, and for any damages sustained by Landlord, (6)
collect, directly from any sublease or assignee under Tenant all subrents and
other charges payable by such sublessees or assignees, Tenant hereby assigning
to Landlord such subrents and other charges in the event of a default by Tenant
under this lease, 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 monthly rent 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, less the rentals received from
such reletting, if any. No action of Landlord shall be construed as an election
to terminate this Lease unless written notice of such intention be given to
Tenant. Tenant agrees to pay as additional rental all attorney's fees and other
costs and expenses incurred by Landlord in enforcing any of Tenant's obligations
under this Lease. Any amount due from Tenant to Landlord under this Lease which
is not paid when due shall bear interest at the "Prime Rate" that is in effect
on the date such amount is due, accruing from such date until paid. Furthermore,
that rate of interest paid by Tenant on any such amount shall be adjusted as the
"Prime Rate" is adjusted.
XXII. LATE PAYMENTS
Tenant hereby acknowledges that the late payment by Tenant to Landlord of
rent or any additional rent or other sums due hereunder will cause Landlord to
incur costs not contemplated in this Lease, the exact amount which will be
extremely difficult and impracticable to ascertain. Such costs include but are
not limited to processing, administrative and accounting costs.
Accordingly, if any installment of rent or any additional rent or any other
sum due from Tenant shall not be received by Landlord within five (5) days after
such amount shall be due, Tenant shall pay to Landlord a late charge equal to
five percent (5%) of such overdue amount. If
any installment of rent or any additional rent or any other sum due from Tenant
shall not be received within thirty (30) days after such amount shall be due,
Landlord shall incur additional processing, administrative and accounting costs.
In order to compensate Landlord therefor, Tenant shall pay to Landlord an
additional late charge equal to five percent (5%) of such overdue amount,
including previous penalties. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Neither assessment nor acceptance of such late
charge by Landlord shall constitute a waiver of Tenant's default with respect to
such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted under the Lease. Nothing contained in this paragraph
shall be deemed to condone, authorize, sanction or grant to Tenant an option for
the late payment of rent, and Tenant shall be deemed in default in the payment
of its rent should the same not be paid by the date on which it is due.
XXIII. BUILDING RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of the Building imposed
by Landlord. Such rules and 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 from time to time upon ten (10) days notice
to Tenant. Breach of the rules and regulations of the Building shall not be
ground for termination of the Lease unless Tenant continues to breach the same
after ten (10) days written notice by Landlord. Landlord shall not be
responsible to Tenant for nonperformance by any tenant or occupant of the
Building of any rules or regulations.
XXIV. LIENS
Tenant shall keep the Landlord, Leased Premises and building harmless from
and against any liens or claims arising out of any work performed, materials
furnished or obligations incurred by Tenant, and shall indemnify and hold
Landlord harmless against the same, together with all costs of suit and
attorney's fees incurred by Landlord in connection therewith.
XXV. INDEMNIFICATION OF LANDLORD
Landlord shall not be liable to Tenant and Tenant hereby waives all claims
against Landlord for any injury (including death) or damage to any person or
property in or about the Leased Premises by or from any cause whatsoever and
Tenant shall indemnify and hold Landlord, its successors, officers and employees
harmless from any and all claims, costs, expenses or liability of any kind
(including without limitation a decrease in the value of the Leased Premises and
reasonable consultants' and attorneys' fees) arising directly or indirectly
from: (i) injury (including death) or damage to any person or property
whatsoever occurring on or about the Leased Premises, (ii) Hazardous Substances
or an Environmental Condition on or about the Leased Premises, or (iii)
violations or claims of violations by Tenant of an Environmental Law. This
indemnification obligation shall be in addition to any other obligations and
liabilities Tenant may have to Landlord at law or equity, and shall survive the
term of this Lease and shall not be subject to any other provisions of this
Lease that operate to limit Tenant's liability.
Tenant shall obtain and keep in effect during the term of this Lease a
policy of comprehensive liability insurance, including public liability and
property damage, with a minimum combined single limit of liability of One
Million Dollars ($1,000,000.00). Said policy or policies shall name Landlord
and its agents as additional insureds and shall be issued by an insurance
company, licensed to do business in the State of Arizona, and acceptable to
Landlord. Said policy or policies shall additionally provide that the insurance
shall not be cancelled or modified unless thirty (30) days prior written notice
has been given to Landlord. Tenant shall supply Landlord with a certificate of
the insurance which it has obtained prior to its occupation of the Leased
Premises. Landlord shall have the right to request Tenant to provide additional
or other form of
security satisfactory to Lender in the event that Tenant's activities on the
Leased Premises involve Hazardous Substances.
XXVI. TAXES
Tenant agrees to pay or cause to be paid, before delinquency, any and all
taxes levied or assessed and which become payable during the term hereof upon
all of Tenant's equipment, furniture, fixtures and other personal property
located in the Leased Premises.
XXVII. HOLDING OVER
Upon the expiration of this Lease, Tenant shall immediately surrender the
Leased Premises to Landlord, such Leased Premises to be broom clean, in good
condition and repair, ordinary wear and tear excepted. If the Tenant or any
sublessee or assignee under Tenant holds over the expiration or earlier
termination of this Lease without Landlord's express written consent, Tenant
shall be in default hereunder and in addition to all of the rights or remedies
available to Landlord, Tenant shall be obligated to pay to Landlord rent at a
rate established by Landlord with regard to the Leased Premises for the time
during which Tenant retains possession, which payment shall not constitute a
waiver of any of Landlord's other rights or remedies provided herein.
XXVIII. INSOLVENCY OR BANKRUPTCY
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Tenant; or (b) an assignment by Tenant for
the benefit of creditors; or (c) any action taken or suffered by Tenant under
any insolvency, bankruptcy or reorganization act, shall constitute a default and
breach of this Lease by Tenant. Upon the happening of any such event, Landlord
shall have all the rights herein provided in the event of any such default or
breach, including without limitation the right, at Landlord's option, to
terminate this Lease and enter the Leased Premises and remove all persons and
property therefrom. In no event shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary bankruptcy proceedings or
otherwise and in no event shall this Lease or any rights or privileges hereunder
be an asset of Tenant under any bankruptcy, insolvency or reorganization
proceedings.
XXIX. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Leased Premises,
the same shall operate to release Landlord from any further liability upon any
of the covenants or conditions, express or implied, herein contained in favor of
Tenant and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. This Lease shall not
be affected by any such sale, and Tenant agrees to attorn to the purchaser of
assignee upon Landlord's request. Tenant shall deliver to such purchaser an
offset statement and an estoppel certificate in such form as Landlord may
request, and, in the event Tenant fails to deliver said statement and
certificate within ten (10) days after demand by Landlord, Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute said
statement and certificate.
XXX. ATTORNEY'S FEES
In the event of any action or proceeding brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
its attorney's fees and costs in such action or proceeding. In the event
Landlord intervenes in or becomes a party or is made a party to any action or
proceeding arising in connection with this Lease in order to protect its rights,
then Tenant shall pay to Landlord the fees of Landlord's attorneys therein as
fixed by the court.
XXXI. SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to Landlord of any or all such
subleases or subtenancies. Tenant agrees that there shall be no value to the
leasehold upon termination or cancellation of the Lease under its terms.
XXXII. LIMITATION OF LANDLORD'S LIABILITY
Tenant covenants and agrees that any claims that Tenant may have now or
hereafter against Landlord shall be asserted solely against and satisfied only
out of Landlord's right, title and interest in the Building and not from any
other thing or asset of Landlord.
XXXIII. TIME OF THE ESSENCE
Time is of the essence of this Lease and all of its provisions.
XXXIV. BINDING EFFECT
The covenants and conditions herein contained shall, subject to the
provisions restricting Tenant's assignment and subletting, apply to and bind the
heirs, executors, administrators, personal representatives, successors and
assigns of the parties hereto.
XXXV. RECORDATION
Tenant shall not record this Lease or any short form memorandum thereof,
without the prior written consent of Landlord.
XXXXVI. NAME OF BUILDING
Tenant shall not use the name of the Building for any purpose other than as
an address of the business to be conducted by Tenant in the Leased Premises.
XXXVII. GOVERNING LAW
This Lease and all the terms and conditions thereof shall be governed by
the laws of the State of Arizona.
XXXVIII. DEFINED TERMS AN PARAGRAPH HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the plural
as well as the singular. Words used in masculine gender include the feminine
and neuter. If there is more than one Tenant, the obligations hereunder imposed
upon Tenant shall be joint and several. The paragraph headings and titles to
the paragraphs of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any party thereof.
CREATIVE NETWORKS, LLC MATRIX CAPITAL CORPORATION
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Name of Tenant Name of Landlord
___________________________ ______________________________
By xxxxxxxxxx By xxxxxxxx
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(Authorized Signature)
Date September 26, 1996
___________________________ ------------------------------
Date September 26, 1996
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