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Exhibit 10.4
OFFICE LEASE
by and between
PIVOTAL SIMON OFFICE XVI, L.L.C.,
FORMERLY KNOWN AS
PIVOTAL SIMON POINTE, L.L.C.,
an Arizona limited liability company,
"LANDLORD"
and
MANAGED CARE SOLUTIONS, INC.,
a Delaware corporation,
"TENANT"
SEPTEMBER 30, 1996
POINTE CORRIDOR CENTRE I
0000 XXXXX 00XX XXXXXX
XXXXXXX, XXXXXXX 00000
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TABLE OF CONTENTS
Page
1. BASIC PROVISIONS................................................. 1
2. LEASED PREMISES; NO ADJUSTMENTS.................................. 2
3. LEASE TERM; COMMENCEMENT DATE.................................... 3
4. SECURITY DEPOSIT................................................. 4
5. RENT; RENT TAX; ADDITIONAL RENT.................................. 4
6. OPERATING COSTS.................................................. 5
7. CONDITION, REPAIRS AND ALTERATIONS............................... 8
8. SERVICES......................................................... 9
9. LIABILITY AND PROPERTY INSURANCE................................. 10
10. RECONSTRUCTION.................................................. 13
11. WAIVER OF SUBROGATION........................................... 14
12. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS.................. 14
13. DEFAULT AND REMEDIES............................................ 15
14. LATE PAYMENTS................................................... 17
15. ABANDONMENT AND SURRENDER....................................... 17
16. INDEMNIFICATION AND EXCULPATION................................. 17
17. ENTRY BY LANDLORD............................................... 18
18. SUBSTITUTE PREMISES............................................. 18
19. ASSIGNMENT AND SUBLETTING....................................... 19
20. USE OF LEASED PREMISES AND RUBBISH REMOVAL...................... 21
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21. SUBORDINATION AND ATTORNMENT....................................... 22
22. ESTOPPEL CERTIFICATE............................................... 23
23. SIGNS.............................................................. 23
24. PARKING............................................................ 23
25. LIENS.............................................................. 24
26. HOLDING OVER....................................................... 24
27. ATTORNEYS' FEES.................................................... 24
28. RESERVED RIGHTS OF LANDLORD........................................ 24
29. EMINENT DOMAIN..................................................... 25
30. NOTICES............................................................ 26
31. RULES AND REGULATIONS.............................................. 26
32. ACCORD AND SATISFACTION............................................ 26
33. BANKRUPTCY OF TENANT............................................... 26
34. HAZARDOUS MATERIALS................................................ 28
35. MISCELLANEOUS...................................................... 30
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1. BASIC PROVISIONS
1.1 Date: September 30, 1996
1.2 Landlord: Pivotal Simon Office XVI, L.L.C.,
formerly known as Pivotal Simon Pointe, L.L.C., an
Arizona limited liability company
1.3 Landlord's Address: c/o Pivotal Group, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. J. Xxxx Xxxxxx
1.4 Tenant: Managed Care Solutions, Inc., a Delaware
corporation
1.5 Tenant's Address:
(a) Prior to Commencement Managed Care Solutions, Inc.
Date: 0000 X. Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(b) Subsequent to
Commencement Date: Managed Care Solutions, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
With a copy to: Managed Care Solutions, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
1.6 Project: The parcel of real estate commonly known
as the Pointe Corridor Centre, located in
Phoenix, Maricopa County, Arizona, legally
described on Exhibit "A" attached hereto
and incorporated herein by this reference,
together with the office buildings now or
hereafter situated thereon, the
landscaping, parking facilities and all
other improvements and appurtenances
thereto.
1.7 Property: The parcel of real estate located in
Phoenix, Maricopa County, Arizona, legally
described on Exhibit "B" attached hereto
and incorporated herein by this reference,
together with the office buildings now or
hereafter situated thereon, the
landscaping, parking facilities and all
other improvements and appurtenances
thereto.
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1.8 Building: That certain office building known as
Pointe Corridor Centre I located at 0000
Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxx 00000, and situated on the
Property.
1.9 Leased Premises: 28,922 rentable (26,293 usable) square
feet of office space located on the first
floor of the Building and commonly known
as Suite 130A, as outlined on the Floor
Plan attached hereto as Exhibit "C".
1.10 Permitted Use: General office use.
1.11 Lease Term: Five (5) years.
1.12 Commencement Date
and Expiration Date: See Articles 1.11 and 3.
1.13 Annual Basic Rent:
Rental Rate
Annual Monthly per Rentable
Lease Year Basic Rent Basic Rent Square Foot
1 $484,443.50 $40,370.29 $16.75
2 498,904.50 41,575.38 17.25
3 513,365.50 42,780.46 17.75
4 527,826.50 43,985.54 18.25
5 542,287.50 45,190.63 18.75
1.14 Security Deposit: See Article 4.
1.15 Base Year Costs: 1997 calendar year actual Operating Costs
per rentable square foot adjusted to 95%
occupancy.
1.16 Building Hours: 7:00 a.m. to 6:00 p.m., Monday through
Friday, and 8:00 a.m. to 12:00 p.m. on
Saturday, excluding recognized federal,
state or local holidays.
1.17 Parking Spaces: 35 covered reserved parking spaces at
$10.00 per space, per month. 79 uncovered
unreserved parking spaces on a first come,
first served basis, at no charge. All such
spaces shall be in parking areas adjacent
to the Building, including the parking lot
north of Belmont Street.
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1.18 Parking Charge: See 1.17 above.
1.19 Guarantors: Not applicable.
1.20 Broker: Xxx & Associates, Benchmark Realty
Advisors and Roc Corporate Partners,
L.L.C.
1.21 Exhibits: A = Legal Description of the Project
B = Legal Description of the Property
C = Floor Plan
D = Memorandum of Commencement Date
E = Reserved Covered Parking License
F = Intentionally Omitted
G = Non-Exclusive Unreserved Parking License
H = As Is; Tenant's Allowance
I = Building Rules and Regulations
J = Intentionally Omitted
K = Janitorial Services
1.22 Riders: 1 = Option to Extend
2 = Rights of First Opportunity and Expansion
Options
2. LEASED PREMISES; NO ADJUSTMENTS
2.1 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases and accepts from Landlord, the Leased Premises, upon the terms and
conditions set forth in this Lease and any modifications, supplements or addenda
hereto (the "Lease"), including the Basic Provisions of Article 0 which are
incorporated herein by this reference, together with the nonexclusive right to
use, in common with Landlord and others, the Building Common Areas (defined
below) and the Project Common Areas (defined below). For the purposes of this
Lease, the term "Building Common Areas" means common hallways, corridors,
walkways and footpaths, foyers and lobbies, bathrooms and janitorial closets,
electrical and telephone closets, landscaped areas, and such other areas within
or adjacent to the Building which are subject to or are designed or intended
solely for the common enjoyment, use and/or benefits of the tenants of the
Building. The term "Project Common Areas" means common walkways, footpaths,
driveways, parking areas, service areas, landscaped areas, and such other areas
within or adjacent to the Project which are subject to or are designed or
intended solely for the common enjoyment, use and/or benefits of the tenants of
the Project.
2.2 Square Footage. The Annual Basic Rent at the Commencement Date (as
hereinafter defined) is based on the Leased Premises containing the rentable
square footage set forth in Article 0 above, which square footage has been
precisely determined by Landlord and approved by Tenant prior to the
Commencement Date. No adjustments to Annual Basic Rent or any other charge shall
be made if the actual size of the Leased Premises is greater or smaller than
that set forth in Article 1.9. For the purpose of this Lease, Landlord and
Tenant agree that the usable square footage of the Leased Premises is 26,293.
2.3 Condition of Leased Premises. The Leased Premises shall be delivered
to Tenant in a clean, broom-swept condition. All furniture and movable personal
property of the previous tenant shall have been removed except the following:
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(i) All computer raised flooring and ramps;
(ii) All overstanding electrical apparatus;
(iii) All supplemental HVAC systems and related equipment; and
(iv) All fire and life safety systems.
All existing permanent built-in and above-the-ceiling improvements shall remain
in the Leased Premises and together with the items described in clauses (i)-(iv)
above (the "Existing Improvements") shall be delivered to Tenant in an "as is"
and "where is" condition, without any representation or warranty whatsoever.
Landlord hereby disclaims all express and implied warranties with respect to the
Existing Improvements, including the implied warranties of habitability,
merchantability and fitness or suitability for any particular purpose. Landlord
shall, at its sole cost and expense, without any deduction from the Tenant
Improvement Allowance or Additional Allowance (each defined in Exhibit "H")
perform any and all work necessary to cause all base building systems serving
the Leased Premises (as distinguished from the Existing Improvements), including
HVAC, plumbing, electrical and mechanical, serving the Leased Premises to be in
good working condition on the Commencement Date; provided, however, that
Landlord may deduct from the Tenant Improvement Allowance or Additional
Allowance the cost of any work performed by Landlord to the base building
systems which is necessitated by changes made to the Leased Premises by Tenant.
3. LEASE TERM; COMMENCEMENT DATE
3.1 Lease Term. The Lease Term shall begin on the Commencement Date and
shall be for the period set forth in Article 0 above, plus any period of less
than one (1) month between the Commencement Date and the first day of the next
succeeding calendar month, unless sooner terminated in accordance with the
further provisions of this Lease.
3.2 Commencement Date. Subject to Force Majeure, the Commencement Date
shall mean January 6, 1997; provided,however, that in the event that the
existing tenant of the Leased Premises shall not have vacated the Leased
Premises on or before September 30, 1996, the Commencement Date shall be
extended by the number of days between September 30, 1996 and the date on which
the existing tenant vacates the Leased Premises. Notwithstanding any provision
of this Lease to the contrary, Tenant shall have access to the Leased Premises
for the five (5) business days immediately preceding the Commencement Date (the
"Occupancy Date").
3.3 Memorandum of Commencement Date and Expiration Date. Landlord and
Tenant shall, within ten (10) days after the Commencement Date, execute a
declaration in the form of Exhibit "D" attached hereto specifying the
Commencement Date and the Expiration Date.
3.4 Delay in Commencement Date. In the event Landlord shall be unable, for
any reason, to deliver possession of the Leased Premises to Tenant on the
Commencement Date, Landlord shall not be liable for any loss or damage
occasioned thereby, nor shall such inability affect the validity of this Lease
or the obligations of Tenant. In such event, Tenant shall not be obligated to
pay Annual Basic Rent or Additional Rent until the Commencement Date. In the
event Landlord shall not have delivered possession of the Leased Premises to
Tenant within thirty (30) days after the Commencement Date, and if such failure
to deliver possession was (a) caused solely by the fault or neglect of Landlord,
and (b) not caused by any fault
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or neglect of Tenant or due to additional time required to plan for and install
other work for Tenant beyond the amount of time which would have been required
if only building standard improvements had been installed, then, as its sole and
exclusive remedy for Landlord's failure to deliver possession of the Leased
Premises in a timely manner, Tenant shall have the right to terminate this Lease
by delivering written notice of termination to Landlord at any time within
thirty (30) days after the expiration of such thirty (30) day period. Such
termination shall be effective thirty (30) days after receipt by Landlord of
Tenant's notice of termination unless Landlord shall, prior to the expiration of
such thirty (30) day period, deliver possession of the Leased Premises to
Tenant. Upon a termination of this Lease pursuant to the provisions of this
Article 0, the parties shall have no further obligations or liabilities to the
other and Landlord shall promptly return any monies previously deposited or paid
by Tenant.
3.5 Lease Year. Each "Lease Year" shall be a period of twelve (12)
consecutive calendar months, the first Lease Year beginning on the Commencement
Date or on the first day of the calendar month next succeeding the Commencement
Date if the Commencement Date is not on the first day of a calendar month. Each
Lease Year after the first Lease Year shall begin on the calendar day next
succeeding the expiration of the immediately preceding Lease Year.
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4. SECURITY DEPOSIT
Tenant shall pay to Landlord, concurrent with the execution of this Lease
by Tenant, a security deposit in an amount equal to the sum of (i) three (3)
monthly installments of the average amount of Annual Basic Rent payable during
the initial Lease Term (i.e., $128,341.37) and (ii) the Additional Allowance, if
any, as security for the performance by Tenant of its obligations under this
Lease (the "Security Deposit"). In addition, if during the first year of the
Lease Term, Tenant exercises an expansion right or a right of opportunity (each
as described on Rider "2"), within five (5) days after the exercise thereof, the
amount of the Security Deposit shall be increased by any Tenant Improvement
Allowance granted by Landlord to Tenant in connection with the exercise of such
option or right in excess of Four Dollars ($4.00) per usable square foot. The
Security Deposit shall be in the form of cash or a certificate of deposit which
Tenant shall be caused to be issued to Landlord by a federally insured financial
institution reasonably acceptable to Landlord. All interest that accrues on the
Security Deposit shall be held for the benefit of Tenant. In addition, upon the
expiration of the thirtieth (30th) month of the Lease Term, provided that there
has not been an Event of Default, or an event which with the lapse of time or
the delivery of notice, or both, would constitute an Event of Default, then the
amount of the Security Deposit shall decrease by sixty-seven percent (67%) and
upon receipt of written request by Tenant, Landlord shall return to Tenant an
amount equal to sixty-seven percent (67%) of the Security Deposit then held by
Landlord, plus interest accrued on such amount. Any increase in the Security
Deposit attributable to the exercise of any right of opportunity or expansion
option, shall be due and payable within five (5) days after the execution of the
supplement to this Lease described in Rider "2". The failure by Tenant to
deliver to Landlord any portion of the Security Deposit when due, which failure
is not cured within five (5) days after written notice thereof by Landlord to
Tenants shall constitute an Event of Default. Any unapplied portion of the
Security Deposit shall be returned to Tenant after the expiration or earlier
termination of this Lease, provided that Tenant shall have fully performed all
of its obligations contained in this Lease. The Security Deposit, in the
reasonable determination of Landlord, may be retained by Landlord as and for its
full damages or may be applied in reduction of any loss and/or damage sustained
by Landlord by reason of the occurrence of any breach, nonperformance or default
by Tenant under this Lease without the waiver of any other right or remedy
available to Landlord at law, in equity or under the terms of this Lease. If any
portion of the Security Deposit is so used or applied, Tenant shall, within
thirty (30) days after written notice from Landlord, deposit with Landlord
immediately available funds in an amount sufficient to restore the Security
Deposit to its then required amount, and Tenant's failure to do so shall be a
breach of this Lease. Tenant acknowledges and agrees that in the event Tenant
shall file a voluntary petition pursuant to the Bankruptcy Code or any successor
thereto, or if an involuntary petition is filed against Tenant pursuant to the
Bankruptcy Code or any successor thereto, then Landlord may apply the Security
Deposit towards those obligations of Tenant to Landlord which accrued prior to
the filing of such petition. In the event of termination of Landlord's interest
in this Lease, Landlord shall transfer the Security Deposit to Landlord's
successor in interest, whereupon Landlord shall be released from liability by
Tenant for the return of such deposit or the accounting therefore.
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5. RENT; RENT TAX; ADDITIONAL RENT
5.1 Payment of Rent. Tenant shall pay to Landlord the Annual Basic Rent
set forth in Article 1.13 above, subject to adjustment as provided herein. The
Annual Basic Rent shall be paid in equal monthly installments, on or before the
first day of each and every calendar month during the Lease Term, in advance,
without notice or demand and, except as set forth in this Lease, without
abatement, deduction or set-off. The Annual Basic Rent for the first full month
of the Lease Term shall be paid upon execution of this Lease. Notwithstanding
the foregoing, Landlord acknowledges that Tenant has previously paid to Landlord
the sum of Seven Thousand Seven Hundred Sixty Four and No/100 Dollars
($7,764.00) in connection with this Lease, which amount Landlord and Tenant
agree shall be applied to the first monthly payment of Annual Basic Rent due and
payable by Tenant. If the Commencement Date is other than the first day of a
calendar month, the payment for the partial month following the Commencement
Date shall be prorated and shall be payable on the first day of the first full
calendar month of the Lease Term. All payments requiring proration shall be
prorated on the basis of a thirty (30) day month. In addition, all payments to
be made under this Lease shall be paid in lawful money of the United States of
America to Landlord or its agent at the address set forth in Article 0 above, or
to such other person or at such other place as Landlord may from time to time
designate in writing.
5.2 Rent Tax. In addition to the Annual Basic Rent and Additional Rent,
Tenant shall pay to Landlord, together with the monthly installments of Annual
Basic Rent and payments of Additional Rent, an amount equal to any governmental
taxes, including, without limitation, any sales, rental, occupancy, excise, use
or transactional privilege taxes assessed or levied upon Landlord with respect
to the amounts paid by Tenant to Landlord hereunder, as well as all taxes
assessed or imposed upon Landlord's gross receipts or gross income from leasing
the Leased Premises to Tenant, including, without limitation, transaction
privilege taxes, education excise taxes, any tax now or hereafter imposed by the
City of Phoenix, the State of Arizona, any other governmental body, and any
taxes assessed or imposed in lieu of or in substitution of any of the foregoing
taxes. Such taxes shall not, however, include any franchise, gift, estate,
inheritance, conveyance, transfer or net income tax assessed against Landlord.
5.3 Additional Rent. In addition to Annual Basic Rent, all other amounts
to be paid by Tenant to Landlord pursuant to this Lease (including amounts to be
paid by Tenant pursuant to Article 0 below and parking charges to be paid by
Tenant pursuant to Exhibits "E", and "G"), if any, shall be deemed to be
Additional Rent, whether or not designated as such, and shall be due and payable
within fifteen (15) days after receipt by Tenant of Landlord's statement.
Landlord shall have the same remedies for the failure to pay Additional Rent as
for the nonpayment of Annual Basic Rent.
6. OPERATING COSTS
6.1 Tenant's Obligation. The Annual Basic Rent does not include amounts
attributable to any increase in the amount of Taxes (defined below) or amounts
attributable to any increase in the cost of the use, management, repair,
service, insurance, condition, operation and maintenance of the Building and the
Project. Therefore, in order that the Annual Basic Rent payable throughout the
Lease Term shall reflect any such increases, Tenant shall pay to Landlord, in
accordance with the further provisions of this Article 0, an amount per rentable
square foot of the Leased Premises equal to the difference between the Operating
Costs (as hereinafter defined) per rentable square foot and the Base Year Costs.
Tenant acknowledges that the Base Year Costs do not constitute a representation
by Landlord as to the Operating Costs per rentable square foot that may be
incurred during any subsequent calendar year.
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6.2 Landlord's Estimate. Landlord shall furnish Tenant its reasonable good
faith estimate of the Operating Costs per rentable square foot for each calendar
year commencing with the Commencement Date. In addition, Landlord may, annually,
furnish Tenant a revised estimate of Operating Costs should Landlord anticipate
any increase in Operating Costs from that set forth in a prior estimate.
Commencing with the first month to which an estimate applies, Tenant shall pay,
in addition to the monthly installments of Annual Basic Rent, an amount equal to
one-twelfth (1/12th) of the product of the rentable square footage of the Leased
Premises multiplied by the difference (but not less than zero (0)), if any,
between such estimate and the Base Year Costs; provided, however, if less than
ninety-five percent (95%) of the rentable area of the Building shall be occupied
by tenants during the period covered by such estimate, the estimated Operating
Costs for such period shall be, for the purposes of this Article 0, increased to
an amount reasonably determined by Landlord to be equivalent to the Operating
Costs that would be incurred if occupancy would be at least ninety-five percent
(95%) during the entire period. Within one hundred twenty (120) days after the
expiration of each calendar year, Landlord shall deliver to Tenant a statement
of the actual Operating Costs for such calendar year. If the actual Operating
Costs for such calendar year are more or less than the estimated Operating
Costs, a proper adjustment shall be made; provided, however, if less than
ninety-five percent (95%) of the rentable area of the Building shall have been
occupied by tenants at any time during such period, the actual Operating Costs
for such period shall be, for the purposes of this Article 0, increased to an
amount reasonably determined by Landlord, by applying generally accepted
accounting principles, consistently applied, to be equivalent to the Operating
Costs that would have been incurred had such occupancy been at least ninety-five
(95%) during the entire period. Any excess amounts paid by Tenant shall be
refunded to Tenant with such statement. Any deficiency between the estimated and
actual Operating Costs shall be paid by Tenant to Landlord concurrently with the
monthly installment of Annual Basic Rent next due. Any amount owing for a
fractional calendar year in the first or final Lease Years of the Lease Term
shall be prorated.
6.3 Operating Costs - Defined. For the purposes of this Lease, "Operating
Costs" shall mean all costs and expenses accrued, paid or incurred by Landlord,
or on Landlord's behalf, in respect of the use, management, repair, service,
insurance, condition, operation and maintenance of the Project including, but
not limited to the following:
(a) Salaries, wages and benefits of all persons who perform duties
in connection with landscaping, janitorial and general cleaning services,
security services and any and all other employees engaged by or on behalf of
Landlord;
(b) Payroll taxes, workmen's compensation, uniforms and related
expenses for such employees;
(c) The cost of all charges for oil, gas, steam, electricity, any
alternate source of energy, heat, ventilation, air-conditioning, refrigeration,
water, sewer service, trash collection, pest control and all other utilities,
together with any taxes on such utilities;
(d) The cost of painting the Building Common Areas;
(e) The cost of all charges for rent, casualty, liability, fidelity
and other insurance maintained by Landlord, including any deductible amounts
incurred with respect to an insured loss;
(f) The cost of all supplies (including cleaning supplies), tools,
materials, equipment and personal property, the rental thereof and sales,
transaction privilege, excise and other taxes thereon;
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(g) Depreciation of hand tools and other moveable equipment;
(h) The cost of all charges for window and other cleaning,
janitorial, security, refuse, lot sweeping and pest control services;
(i) The cost of charges for independent contractors;
(j) The cost of repairs and replacements made by Landlord at its
expense and the fees and other charges for maintenance and service agreements;
(k) The cost of exterior and interior landscaping;
(l) Costs relating to the operation and maintenance of all real
property and improvements appurtenant to the Project, including, without
limitation, all parking areas, service areas, walkways and landscaping;
(m) The cost of alterations and improvements made by reason of the
laws and requirements of any public authorities or the requirements of insurance
bodies imposed after the Commencement Date, unless such alterations and
improvements are due to Landlord's failure to construct the Building and/or
Project in compliance with such requirements and provided that any such costs
shall be amortized with interest over the useful life of the alteration or
improvement;
(n) All management fees and other charges for management services
and overhead costs (excluding travel and related expenses), whether provided by
an independent management company, Landlord or an affiliate of Landlord, not to
exceed, however, the then prevailing range of rates charged in comparable office
buildings in the Phoenix, Arizona metropolitan area;
(o) The cost of any capital improvements or additions which improve
the comfort available to tenants of the Project, provided, however, that any
such costs shall be amortized with interest over the useful life of the
improvement or addition and such improvements shall be approved by tenants
leasing a majority of the square footage of the Building;
(p) The cost of any capital improvements or additions which are
intended to enhance the safety of the Project (unless such improvements or
additions are due to Landlord's failure to construct the Building and/or Project
in compliance with applicable safety requirements) or reduce (or avoid increases
in) Operating Costs, provided, however, that any such costs shall be amortized
with interest over the useful life of the improvement or addition;
(q) The cost of licenses and permits, inspection fees and reasonable
legal, accounting and other professional fees and expenses;
(r) Taxes (as hereinafter defined);
(s) Costs relating to the use, management, repair, service,
insurance, condition, operation and maintenance of the Project Common Areas in
an amount equal to a fraction, the numerator of which is the rentable square
footage of the Building and the denominator of which is the rentable square
footage of all buildings in the Project;
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(t) Costs of monitoring and maintaining good internal air quality in
the Building and regularly inspecting, monitoring, maintaining and repairing the
Building's air quality systems, hiring outside consultants to investigate and
identify the sources of any suspected internal air quality problems that may be
identified, remedying any such problems, modifying, renovating or encapsulating
any portion of the Building, or systems or components thereof reasonably
required in order to continuously and efficiently maintain reasonably acceptable
internal air quality in the Building and comply with any and all local, state
and federal regulations, or real estate industry standards relating to internal
air quality;
(u) Costs of operating and maintaining an on-site property
management office; and
(v) All other charges properly allocable to the use, management,
repair, service, insurance, operation and maintenance of the Project in
accordance with generally accepted accounting principles.
6.4 Operating Costs - Exclusions. Excluded from Operating Costs shall be
the following: (a) depreciation, except to the extent expressly included
pursuant to Article 0 above; (b) interest on and amortization of debts, except
to the extent expressly included pursuant to Article 0 above; (c) leasehold
improvements, including redecorating made for tenants of the Building; (d)
brokerage commissions and advertising expenses for procuring tenants for the
Building or the Property; (e) refinancing costs; (f) the cost of any repair,
replacement or addition which would be required to be capitalized under general
accepted accounting principles, except to the extent expressly included pursuant
to Article 0 above; (g) the cost of any item included in Operating Costs under
Article 0 above to the extent that such cost is reimbursed or paid directly by
an insurance company, condemnor, a tenant of the Project or any other party; (h)
the cost of any item included in Operating Costs under Article 0 above to the
extent that such cost is attributable solely to the use, management, repair,
service, insurance, condition, operation or maintenance of other office
buildings in the Project; (i) the cost of any item included in Operating Costs
under Article 0 above to the extent that such cost is attributable solely to the
use, management, repair, service, insurance, condition, operation or maintenance
of the Project Common Areas, to the extent such cost is paid by tenants of other
office buildings in the Project; (j) expenses incurred by Landlord to resolve
disputes, enforce or negotiate lease terms with prospective or existing tenants
or in connection with any financing, sale or syndication of the Project; (k)
costs, penalties or fines incurred by Landlord due to Landlord's violation of
any federal, state, or local law or regulation except as set forth in Article
6.3(m), (l) any interest or penalties due to late payment by Landlord of any of
the Operating Costs, except to the extent such interest on penalty is caused by
Tenant's failure to comply with any of Tenant's obligations under the Lease; (m)
expenses for any item or service not provided to Tenant but provided exclusively
to certain other tenants in the Building; (n) salaries of employees above the
grade of building superintendent or building manager; (o) Landlord's general
corporate overhead and administrative expenses except as set forth in Articles
6.3(a), (b), (n) and (u); and (p) fees paid to affiliates of Landlord in excess
of the fair market value of such services provided in exchange therefore.
6.5 Taxes - Defined. For the purposes of this Lease, "Taxes" shall mean
and include all real property taxes and personal property taxes, general and
special assessments, foreseen as well as unforeseen, which are levied or
assessed upon or with respect to the Project, any improvements, fixtures,
equipment and other property of Landlord, real or personal, located on the
Project and used in connection with the operation of all or any portion of the
Project, as well as any tax, surcharge or assessment which shall be levied or
assessed in addition to or in lieu of such real or personal property taxes and
assessments. Taxes shall also include any expenses incurred by Landlord in
contesting the amount or validity of any real or personal property taxes and
assessments. Taxes shall not, however, include any franchise, gift, estate,
inheritance, conveyance, transfer or income tax assessed against Landlord.
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6.6 Waiver. The failure by Landlord to furnish Tenant with a statement of
Operating Costs within two (2) years after the date such statement is due shall
constitute a waiver by Landlord of its right to require Tenant to pay excess
Operating Costs per rentable square foot. The failure by Tenant to complete the
inspection permitted in Article 0 below within two (2) years after receipt by
Tenant of a statement of Operating Costs shall be deemed a waiver of Tenant's
right to require Landlord to refund to Tenant any overpayment by Tenant of
Operating Costs paid pursuant to such statement.
6.7 Inspection Rights. Landlord shall, if requested by Tenant, furnish
Tenant any and all reasonable backup information and documentation pertaining to
any component Operating Costs. Tenant or its authorized agent shall have the
right, within two (2) years after receipt of Landlord's itemized statement of
Operating Costs, upon ten (10) days prior written notice to Landlord, to
inspect, at Landlord's main accounting offices, Landlord's books and records
regarding Operating Costs. Landlord agrees to maintain its books and records at
its main accounting offices for a minimum of two (2) years following the
expiration of each accounting year to which such books and records pertain. In
the event Tenant's audit shall disclose that Landlord has overstated Tenant's
pro rata share of Operating Costs by three percent (3%) or more during any two
(2) accounting years, then Landlord shall pay for the reasonable costs of the
audit. Any refund due Tenant shall be payable in any event.
7. CONDITION, REPAIRS AND ALTERATIONS
7.1 Condition. The respective obligations of Landlord and Tenant with
respect to the condition of the Leased Premises are set forth on Exhibit H to
this Lease.
7.2 Alterations and Improvements. Tenant may place partitions and fixtures
and may make improvements and other alterations to the interior of the Leased
Premises at Tenant's expense, provided, however, that prior to commencing any
structural work or any other work costing in excess of Twenty Thousand and
No/100 Dollars ($20,000.00), Tenant shall first obtain the written consent of
Landlord to the proposed work, including the plans, specifications, the proposed
architect and/or contractor(s) for such alterations and/or improvements and the
materials used in connection with such alterations, including, without
limitation, paint, carpeting, wall or window coverings and the use of carpet
glues and other chemicals for installation of such materials. At least ten (10)
days prior to the commencement of any construction in the Leased Premises,
Tenant shall deliver to Landlord copies of the plans and specifications for the
contemplated work and shall identify the contractor(s) selected by Tenant to
perform such work. Landlord may, as a condition to consenting to such work,
require that Tenant provide security adequate in Landlord's judgment so that the
improvements or other alterations to the Leased Premises will be completed in a
good, workmanlike and lien free manner. All such improvements or alterations
must 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.
All such improvements shall be the property of Landlord, unless otherwise agreed
to in writing by Landlord. Prior to the commencement of such work, Tenant shall
provide Landlord with evidence that Tenant's contractor has procured worker's
compensation, liability and property damage insurance (naming Landlord as an
additional insured) in a form and in an amount approved by Landlord, and
evidence that Tenant's architect and/or contractor has procured the necessary
permits, certificates and approvals from the appropriate governmental
authorities. Tenant acknowledges and agrees that any review by Landlord of
Tenant's plans and specifications and/or right of approval exercised by Landlord
with respect to Tenant's architect and/or contractor is for Landlord's benefit
only and Landlord shall not, by virtue of such review or right of approval, be
deemed to make any representation, warranty or acknowledgment to Tenant or to
any other person or
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entity as to the adequacy of Tenant's plans and specifications or as to the
ability, capability or reputation of Tenant's architect and/or contractor.
7.3 Tenant's Obligations. Tenant shall, at Tenant's sole cost and expense,
maintain the Leased Premises in a clean, neat and sanitary condition and shall
keep the Leased Premises and every part thereof in good condition and repair
except where the same is required to be done by Landlord. Tenant hereby waives
all rights to make repairs at the expense of Landlord as provided by any law,
statute or ordinance now or hereafter in effect. All of Tenant's alterations
and/or improvements are the property of the Landlord, unless otherwise agreed to
in writing by Landlord, and Tenant shall, upon the expiration or earlier
termination of the Lease Term, surrender the Leased Premises, including Tenant's
alterations and/or improvements, to Landlord, janitorial clean and in the same
condition as when received, ordinary wear and tear excepted. Except as set forth
in Article 0 below, Landlord has no obligation to construct, remodel, improve,
repair, decorate or paint the Leased Premises or any improvement thereon or part
thereof. Tenant shall pay for the cost of all repairs to the Leased Premises not
required to be made by Landlord and shall be responsible for any redecorating,
remodeling, alteration and painting during the Lease Term as Tenant deems
necessary. Tenant shall pay for any repairs to the Leased Premises, the
Building, the Property and/or the Project made necessary by any negligence or
carelessness of Tenant, its employees or invitees.
7.4 Landlord's Obligations. Landlord shall (a) make all necessary repairs
to the exterior walls, exterior doors, windows and corridors of the Building and
Building Common Areas, (b) keep the Building, the Building Common Areas and the
Project Common Area in a clean, neat and attractive condition, and (c) keep the
Building equipment such as elevators, plumbing, heating, air conditioning and
similar Building equipment in good repair, but Landlord shall not be liable or
responsible for breakdowns or interruptions in service when reasonable efforts
are made to restore such service.
7.5 Removal of Alterations. Upon the expiration or earlier termination of
this Lease, Tenant shall remove from the Leased Premises all movable trade
fixtures and other movable personal property, and shall promptly repair any
damage to the Leased Premises, the Building, the Property and/or the Project
caused by such removal. All such removal and repair shall be entirely at
Tenant's sole cost and expense. Immediately upon any termination of this Lease,
Landlord may require that Tenant remove from the Leased Premises any
alterations, additions, improvements, trade fixtures, equipment, shelving,
cabinet units or movable furniture (and other personal property) designated by
Landlord to be removed provided that Landlord shall have advised Tenant in
Landlord's written consent to such alteration or improvement that Tenant may be
required to remove the alteration or improvement upon the expiration or earlier
termination of this Lease. In such event, Tenant shall, in accordance with the
provisions of Article 0 above, complete such removal (including the repair of
any damage caused thereby) entirely at its own expense and within fifteen (15)
days after notice from Landlord. All repairs required of Tenant pursuant to the
provisions of this Article 0 shall be performed in a manner satisfactory to
Landlord, and shall include, but not be limited to, repairing plumbing,
electrical wiring and holes in walls, restoring damaged floor and/or ceiling
tiles, repairing any other cosmetic damage, and cleaning the Leased Premises.
7.6 No Abatement. Tenant's covenants and obligations under this Lease,
including without limitation, Tenant's obligation to pay Annual Basic Rent and
Additional Rent, shall not be reduced or abated in any manner whatsoever by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted to make pursuant to the terms of this Lease or by any other
tenant's Lease or are required by law to be made in and to any portion of the
Leased Premises, the Building, the Property or the Project. Landlord shall,
nevertheless, use reasonable efforts to minimize any interference with Tenant's
business in the Leased Premises.
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8. SERVICES
8.1 Climate Control. Landlord shall provide reasonable climate control to
the Leased Premises during the Building Hours as is suitable for the comfortable
use and occupation of the Leased Premises, excluding, however, air conditioning
or heating for electronic data processing or other equipment requiring
extraordinary climate control.
8.2 Janitorial and Other Services. Landlord shall make janitorial and
cleaning services available to the Leased Premises as set forth in Exhibit "K"
at least five (5) evenings per week, except recognized federal, state or local
holidays. Tenant shall pay to Landlord, within five (5) days after receipt of
Landlord's xxxx, the reasonable costs incurred by Landlord for extra cleaning in
the Leased Premises required because of (a) misuse or neglect on the part of
Tenant, its employees or invitees, (b) use of portions of the Leased Premises
for special purposes requiring greater or more difficult cleaning work than
office areas, (c) interior glass partitions or unusual quantities of glass
surfaces, (d) non-building standard materials or finishes installed by Tenant or
at its request, and (e) removal from the Leased Premises of refuse and rubbish
of Tenant in excess of that ordinarily accumulated in general office occupancy
or at times other than Landlord's standard cleaning times. Landlord shall also
furnish elevator service during the Building Hours to be used by Tenant in
common with others. At least one elevator shall remain in service during all
other hours. Landlord shall make day xxxxxx service available to Tenant in
common with others as typically available in comparable office buildings in the
Phoenix, Arizona metropolitan area.
8.3 Electricity. Landlord shall, at all times, furnish reasonable amounts
of electric current as required for normal and usual lighting purposes and for
office machines and equipment such as personal computers, typewriters, adding
machines, copying machines, calculators and similar machines and equipment
normally utilized in general office use. Tenant's use of electric energy in the
Leased Premises shall not at any time exceed the capacity of any of the risers,
piping, electrical conductors and other equipment in or serving the Leased
Premises. In order to insure that such capacity is not exceeded and to avert any
possible adverse effect on the Building's electric system, Tenant shall not,
without Landlord's prior written consent in each instance, connect appliances,
machines using current in excess of 120 volts or heavy-duty equipment other than
ordinary office equipment to the Building's electric system or make any
alterations or additions to the Building's electric system. Should Landlord
grant such consent, all additional risers, piping and electrical conductors and
other equipment therefor shall be provided by Landlord and the cost thereof
shall be paid by Tenant within thirty (30) days after receipt of Landlord's
xxxx.
8.4 Water. Landlord shall furnish cold and heated water for drinking and
lavatory purposes to the Building Common Areas and the Leased Premises (but only
to the extent described in the Tenant Improvement Plans). Cost of water used in
the Leased Premises shall be paid by Tenant.
8.5 Light Bulbs. Landlord shall perform such replacement of lamps,
fluorescent tubes and lamp ballasts in the Leased Premises and in the Building
as may be required from time to time. If the lighting fixtures in the Leased
Premises are other than those furnished at the beginning of the Lease Term,
Tenant shall pay Landlord's charge for replacing the lamps, lamp ballasts and
fluorescent tubes in such lighting fixtures within ten (10) days after receipt
of Landlord's xxxx.
8.6 Heat Generating Equipment. Whenever heat generating machines or
equipment used in the Leased Premises affect the temperature otherwise
maintained by the climate control system (as determined by an engineer
reasonably acceptable to both Landlord and Tenant), Landlord shall have the
right to install
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supplementary air-conditioning units in the Leased Premises and the cost
thereof, including the cost of installation, operation and maintenance shall be
paid by Tenant to Landlord within thirty (30) days after receipt by Tenant of
Landlord's statement.
8.7 Separate Meters. Landlord may install separate meters for the Leased
Premises to register the usage of all or any one of the utilities serving the
Leased Premises at Landlord's sole cost and expense (subject to reimbursement as
an Operating Cost) and in such event, Tenant shall pay for the actual cost of
utility usage as metered (a) during other than Building Hours, or (b) which is
in excess of that usage customary for general office use within the Building.
8.8 Additional Services. Tenant shall pay to Landlord, monthly as billed,
as Additional Rent, Landlord's actual cost for services furnished by Landlord to
Tenant in excess of that agreed to be furnished by Landlord pursuant to this
Article 0, including, but not limited to (a) any utility services utilized by
Tenant during other than Building Hours or for computers, data processing
equipment or other electrical equipment in excess of the amounts of electric
current used for general office use within the Project, and (b) climate control
in excess of that agreed to be furnished by Landlord pursuant to Article 0 above
or provided at times other than Building Hours. In the event that Landlord shall
not have installed separate meters, Landlord shall xxxx Tenant for such climate
control services at an initial rate of Five and No/100 Dollars ($5.00) per hour,
per zone of the Leased Premises.
8.9 Interruptions in Service. Landlord does not warrant that any of the
foregoing services or any other services which Landlord may supply will be free
from interruption. Tenant acknowledges that any one or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or by causes beyond the reasonable control of Landlord.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Annual Basic Rent or Additional Rent by reason of any
disruption of the services to be provided by Landlord pursuant to this Lease
unless (i) the cause of the disruption is within Landlord's reasonable control
and is due to Landlord's negligence; and (ii) such disruption has a material
adverse effect on Tenant's business; and (iii) such disruption continues for
three (3) consecutive business days.
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9. LIABILITY AND PROPERTY INSURANCE
9.1 Liability Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of commercial general liability insurance
for personal injury (including wrongful death) and damage to property covering
(a) any occurrence in the Leased Premises, (b) any act or omission by Tenant, by
any subtenant of Tenant, or by any of their respective invitees, agents,
servants or employees anywhere in the Leased Premises or the Project, (c) the
business operated by Tenant and by any subtenant of Tenant in the Leased
Premises, and (d) the contractual liability of Tenant to Landlord pursuant to
the indemnification provisions of Article 0 below, which coverage shall not be
less than One Million and No/100 Dollars ($1,000,000.00) per occurrence and Two
Million and No/100 Dollars ($2,000,000.00) combined single limit. If Landlord
shall so request, Tenant shall increase the amount of such liability insurance
to the amount then customary for premises and uses similar to the Leased
Premises and Tenant's use thereof. The liability policy or policies shall
contain an endorsement naming Landlord, its partners or members (as applicable),
Landlord's lender and management agent and any persons, firms or corporations
designated by Landlord in written notice to Tenant as additional insureds, and
shall provide that the insurance carrier shall have the duty to defend and/or
settle any legal proceeding filed against Landlord seeking damages based upon
bodily injury or property damage liability even if any of the allegations of
such legal proceedings are groundless, false or fraudulent.
9.2 Property Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of insurance with "Special Form
Coverage," including coverage for vandalism or malicious mischief, insuring the
Tenant Improvements as defined on Exhibit H hereto and Tenant's alterations
and/or improvements made pursuant to Article 0 above and Tenant's stock in
trade, furniture, personal property, fixtures, equipment and other items in the
Leased Premises, with coverage in an amount equal to the full replacement cost
thereof.
9.3 Worker's Compensation Insurance. Tenant shall, during the Lease Term,
keep in full force and effect, a policy or policies of worker's compensation
insurance with an insurance carrier and in amounts approved by the Industrial
Commission of the State of Arizona.
9.4 Business Interruption Insurance. Tenant shall, during the Lease Term,
keep in full force and effect, a policy or policies of business interruption
insurance in an amount equal to twelve (12) monthly installments of Annual Basic
Rent and Additional Rent payable to Landlord, together with the taxes thereon,
insuring Tenant against losses sustained by Tenant as a result of any cessation
or interruption of Tenant's business in the Leased Premises for any reason.
9.5 Insurance Requirements. Each insurance policy and certificate thereof
obtained by Tenant pursuant to this Lease shall contain a clause that the
insurer will provide Landlord, its partners and any persons, firms or
corporations designated by Landlord with at least thirty (30) days prior written
notice of any material change, non-renewal or cancellation of the policy. Each
such insurance policy shall be with an insurance company authorized to do
business in the State of Arizona and reasonably acceptable to Landlord.
Certified copies of all insurance policies evidencing the coverage under each
such policy, as well as a certified copy of the required additional insured
endorsement(s) shall be delivered to Landlord prior to commencement of the Lease
Term. Each such policy shall provide that any loss payable thereunder shall be
payable notwithstanding (a) any act, omission or neglect by Tenant or by any
subtenant of Tenant, or (b) any occupation or use of the Leased Premises or any
portion thereof by Tenant or by any subtenant of Tenant for purposes more
hazardous than permitted by the terms of such policy or policies, or (c) any
foreclosure or other action or proceeding taken by any mortgagee or trustee
pursuant to any provision of any mortgage or
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deed of trust covering the Leased Premises, the Building, the Property or the
Project, or (d) any change in title or ownership of the Property. All insurance
policies required pursuant to this Article 0 shall be written as primary
policies, not contributing with or in excess of any coverage which Landlord may
carry. Tenant shall procure and maintain all policies entirely at its own
expense and shall, at least twenty (20) days prior to the expiration of such
policies, furnish Landlord with certified copies of replacement policies or
renewal certificates for existing policies in conformance with Accord Form No.
27 (March 1993). Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies maintained by Landlord or the insurance
policies required pursuant to this Article 0 or the coverage thereunder. If
Tenant or any subtenant of Tenant does or permits to be done anything which
shall increase the cost of any insurance policies maintained by Landlord, then
Tenant shall reimburse Landlord for any additional premiums attributable to any
act or omission or operation of Tenant or any subtenant of Tenant causing such
increase in the cost of insurance. Any such amount shall be payable as
Additional Rent within five (5) days after receipt by Tenant of a xxxx from
Landlord. All policies of insurance shall name both Landlord and Tenant (and/or
such other party or parties as Landlord may require) as insureds and shall be
endorsed to indicate that the coverage provided shall not be invalid due to any
act or omission on the part of Landlord.
9.6 Co-Insurance. If on account of the failure of Tenant to comply with
the provisions of this Article 0, Landlord is deemed a co-insurer by its
insurance carrier, then any loss or damage which Landlord shall sustain by
reason thereof shall be borne by Tenant, and shall be paid by Tenant within five
(5) days after receipt of a xxxx therefor.
9.7 Adequacy of Insurance. Landlord makes no representation or warranty to
Tenant that the amount of insurance to be carried by Tenant under the terms of
this Lease is adequate to fully protect Tenant's interests. If Tenant believes
that the amount of any such insurance is insufficient, Tenant is encouraged to
obtain, at its sole cost and expense, such additional insurance as Tenant may
deem desirable or adequate. Tenant acknowledges that Landlord shall not, by the
fact of approving, disapproving, waiving, accepting, or obtaining any insurance,
incur any liability for or with respect to the amount of insurance carried, the
form or legal sufficiency of such insurance, the solvency of any insurance
companies or the payment or defense of any lawsuit in connection with such
insurance coverage, and Tenant hereby expressly assumes full responsibility
therefor and all liability, if any, with respect thereto.
9.8 Self-Insurance. Tenant shall have the right to self-insure for the
liability insurance, the property insurance and the business interruption
insurance required by Articles 0, 0 and 9.4, respectively, subject to the
requirements of this Article 0:
(a) For purposes of this Article 0, "self-insurance" shall mean that
Tenant is itself acting as though it were the insurance company providing the
insurance required under the provisions of this Article 0 and Tenant shall pay
any amounts due in lieu of insurance proceeds as required under the provisions
of this Lease, which amounts shall be treated as insurance proceeds for all
purposes under this Lease.
(b) All amounts which Tenant pays or is required to pay and all
losses or damages resulting from risks for which Tenant has elected to
self-insure shall be subject to the waiver of subrogation provisions in Article
0 below and shall not limit Tenant's indemnification obligations set forth in
Article 0 below.
(c) Tenant's right to self-insure and to continue to self-insure is
conditioned upon and subject to:
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(i) The Tenant having a net worth, calculated in accordance
with generally accepted accounting principles, consistently applied, of at least
One Hundred Million Dollars ($100,000,000.00).
(ii) The Tenant providing an audited financial statement,
prepared in accordance with generally accepted accounting principles,
consistently applied, to Landlord on or before the date which is thirty (30)
days prior to the upcoming annual anniversary of the Commencement Date which
establishes and confirms that Tenant has the required net worth, unless events
occur that make it apparent that such net worth has diminished below the
required level (such as the bankruptcy of Tenant), in which event Tenant shall
not be permitted to continue to self-insure; and
(iii) The Tenant maintaining appropriate loss reserves which
are actuarially derived in accordance with accepted standards of the insurance
industry and accrued (i.e., charged against earnings) or otherwise funded.
(d) In the event that Tenant elects to self-insure and an event or
claim occurs for which a defense and/or coverage would have been available from
the insurance company Tenant shall:
(i) undertake the defense of any such claim, including a
defense of Landlord, at Tenant's sole cost and expense, and
(ii) use its own funds to pay any claim or replace any
property or otherwise provide the funding which would have been available from
insurance proceeds but for such election by Tenant to self-insure.
(e) In the event Tenant has the right and elects that it will not
operate its business in the Leased Premises after the Leased Premises are
damaged or destroyed, Landlord shall have the right to determine that the
self-insurance proceeds either be paid to Landlord:
(i) for restoration of the Leased Premises in accordance with
Article 0 below and Tenant's liability and obligations under this Lease shall
continue in full force and effect, or
(ii) to terminate this Lease in accordance with the provisions
of Article 0 below.
(f) Tenant shall provide Landlord and Superior Mortgagee (defined
below) or Superior Lessor (defined below) with certificates of self-insurance
specifying the extent of self-insurance coverage hereunder and containing a
waiver of subrogation provision reasonably satisfactory to Landlord. Any
insurance coverage provided by Tenant shall be for the benefit of Landlord, the
Superior Mortgagee and the Superior Lessor as their respective interests may
appear.
9.9 Landlord's Insurance.
(a) Landlord, shall, at all times from and after the Commencement
Date, as a component of Operating Expenses, maintain in effect commercial
general liability insurance covering (a) any occurrence in the Project (other
than within the Leased Premises), (b) any act or omission by Landlord, or its
agent, servants, contractors or employees, anywhere in the Project (other than
within the Leased Premises), and (c) the contractual liability of Landlord to
Tenant pursuant to the indemnification provisions of Article 17.1
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below, which coverage shall not be less than Two Million and No/100 Dollars
($2,000,000.00), combined single limit, per occurrence.
(b) Landlord shall, at all times from and after the Commencement
Date, maintain in effect a policy or policies of "Special Risk" or "Special
Peril" insurance insuring the Building with coverage in an amount not less than
ninety percent (90%) of the replacement cost thereof (exclusive of the cost of
excavations, foundations and footings) from time to time during the Lease Term.
Landlord reserves the right to maintain a reasonable deductible in connection
with such insurance.
(c) Landlord's obligation to carry the insurance required in this
Article 0 may be brought within the coverage of any so called blanket policy or
policies of insurance carried and maintained by Landlord, provided that the
coverage afforded will not be reduced or diminished by reason of the use of such
blanket policy of insurance. Landlord shall have the right to self-insure for
the liability and casualty insurance required by Article 9.9(a) and (b),
provided that Landlord shall have a net worth, calculated in accordance with the
generally accepted accounting principles, consistently applied, of at least One
Hundred Million and No/100 Dollars ($100,000,000.00). In the event that Landlord
elects to self-insure in accordance with the provisions of this Article 9.9(c),
Landlord shall give Tenant written notice of such election, accompanied by
appropriate evidence demonstrating that Landlord is entitled to self-ensure in
accordance with the provisions of this Article 9.9(c).
10. RECONSTRUCTION
10.1 Insured Damage. In the event the Leased Premises are damaged during
the Lease Term by fire or other perils covered by Landlord's insurance, Landlord
shall:
(a) Subject to Force Majeure, within a period of ninety (90) days
after receipt by Landlord of insurance proceeds and the adjustment of the loss
with the Superior Mortgagee and/or the Superior Lessor, as the case may be, and
its insurer, and provided there is not then in existence of an Event of Default,
commence repair, reconstruction and restoration of the Leased Premises and
prosecute the same diligently to completion, in which event this Lease shall
continue in full force and effect.
(b) (i) In the event of a partial or total destruction of either the
Leased Premises, the Building, or the Project during the last two (2) years of
the Lease Term, Landlord shall have the option to terminate this Lease upon
giving written notice to Tenant within sixty (60) days after such destruction.
For purposes of this Article 0, "partial destruction" shall be deemed
destruction to an extent of at least thirty-three and one-third percent (33.33%)
of the then full replacement cost of the Leased Premises, the Building, or the
Project as of the date of destruction.
(ii) In the event of a partial or total destruction of either
the Leased Premises or the Building during the last two (2) years of the Lease
Term, Tenant shall have the option to terminate this Lease upon giving written
notice to Landlord within sixty (60) days after such destruction. For purposes
of this Article 0, "partial destruction" shall be deemed destruction to an
extent of at least thirty-three and one-third percent (33.33%) of the then full
replacement cost of the Leased Premises or the Building as of the date of
destruction.
(c) In the event that Superior Mortgagee shall require that
insurance proceeds be applied against the principal balance due on the Superior
Mortgage (defined below), then Landlord may, at Landlord's option and upon one
hundred twenty (120) days written notice to Tenant, elect to terminate this
Lease.
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10.2 Uninsured Damage. In the event the Leased Premises, the Building or
the Project shall be damaged as a result of any casualty not covered by
Landlord's insurance, to any extent whatsoever, Landlord may, subject to Force
Majeure, within ninety (90) days following the date of the casualty, commence
repair, reconstruction or restoration of the Leased Premises, in which event
this Lease shall continue in full force and effect, or within such ninety (90)
day period elect not to so repair, reconstruct or restore the Leased Premises,
the Building or the Project, as the case may be, in which event this Lease shall
cease and terminate. In either event, Landlord shall give Tenant written notice
of Landlord's intention within such ninety (90) day period.
10.3 Reconstruction. In the event of any reconstruction of the Leased
Premises, the Building or the Project pursuant to this Article 0, such
reconstruction shall be in conformity with all city, county, state and federal
ordinances, rules and regulations then in existence, as the same may be
interpreted and enforced. Notwithstanding that all reconstruction work shall be
performed by Landlord's contractor unless Landlord shall otherwise agree in
writing, Landlord's obligation to reconstruct the Leased Premises shall be only
to the comparable condition of the Leased Premises immediately prior to the
Commencement Date. Landlord's obligation to repair and reconstruct the Leased
Premises shall be limited to the amount of net proceeds of insurance received by
Landlord, subject to reduction pursuant to Article 0 above. Any extra expenses
incurred by Landlord in the reconstruction of the Leased Premises, the Building
or any other portion of the Project as a result of the violation by Tenant of
the terms and conditions set forth in Article 0 below shall be borne by Tenant.
Tenant, at Tenant's sole cost and expense, shall be responsible for the repair
and restoration of all items of the Tenant Improvements or Tenant's improvements
and/or alterations installed pursuant to Article 0 and the replacement of
Tenant's stock in trade, trade fixtures, furniture, furnishings and equipment.
Tenant shall commence the installation of fixtures, equipment and merchandise
promptly upon delivery to Tenant of possession of the Leased Premises and shall
diligently prosecute such installation to completion.
10.4 Termination. Upon any termination of this Lease under any of the
provisions of this Article 0, Landlord and Tenant each shall be released without
further obligations to the other coincident with the surrender of possession of
the Leased Premises to Landlord, except for items which have previously accrued
and remain unpaid. In the event of termination, all proceeds from Tenant's
property insurance coverage and covering the Tenant Improvements or Tenant's
improvements and/or alterations installed pursuant to Article 0 and that would,
except for the casualty, have become the property of Landlord pursuant to
Article 0, but excluding proceeds for trade fixtures, merchandise, signs and
other removable personal property, shall be disbursed and paid to Landlord.
10.5 Abatement. In the event of repair, reconstruction and restoration of
the Leased Premises, the Minimum Annual Rental and Additional Rent shall be
abated proportionately with the degree to which Tenant's use of the Leased
Premises is impaired commencing from the date of destruction and continuing
during the period of such repair, reconstruction or restoration. Tenant shall
continue the operation of Tenant's business at the Leased Premises during any
such period to the extent reasonably practicable from the standpoint of prudent
business management. Tenant shall not be entitled to any compensation or damages
from Landlord for loss of the use of the whole or any part of the Leased
Premises, or the building of which the Leased Premises are a part, Tenant's
personal property or for any inconvenience or annoyance occasioned by such
damage, repair, reconstruction or restoration.
10.6 Conflict. Landlord and Tenant acknowledge and agree that the
provisions of this Article 10 are the result of arms' length negotiations
between Landlord and Tenant and that in the event of any conflict between the
provisions of this Article 10 and any statutory or common law rights of
termination which may
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arise by reason of any partial or total destruction of the Leased Premises,
including the provisions of A.R.S. Section 33-343, the provisions of this
Article 10 shall prevail.
11. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waive their respective rights and the
subrogation rights of their respective insurers against the other and any other
tenants of space in the Building, the Property or the Project, as well as their
respective members, officers, employees, agents, authorized representatives and
invitees, with respect to any claims including, but not limited to, claims for
injury to any persons, and/or damage to the Leased Premises and/or any fixtures,
equipment, personal property, furniture, improvements and/or alterations in or
to the Leased Premises, which are caused by or result from (a) risks or damages
required to be insured against under this Lease, or (b) risks and damages which
are insured against by insurance policies maintained by Tenant from time to
time. Landlord and Tenant each shall obtain for the other from their respective
insurers under each policy required by this Lease a waiver of all rights of
subrogation which such insurers of Tenant and Landlord might otherwise have
against Tenant or Landlord, as applicable.
12. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS
Unless otherwise provided herein, all covenants and agreements to be
performed by Tenant under any of the terms of this Lease shall be performed by
Tenant at Tenant's sole cost and expense. If Tenant shall fail to pay any sum of
money, other than Annual Basic Rent, required to be paid by it hereunder, and
such failure shall continue for ten (10) days after notice thereof by Landlord,
or Tenant shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for thirty (30) days after notice
thereof by Landlord, Landlord may (but shall not be obligated to do so) without
waiving or releasing Tenant from any of Tenant's obligations, make any such
payment or perform any such other act on behalf of Tenant. All sums so paid by
Landlord and all necessary incidental costs, together with interest thereon at
the greater of (a) fourteen percent (14%) per annum or (b) the rate of interest
per annum publicly announced, quoted or published, from time to time, by Bank
One, Arizona, NA, at its Phoenix, Arizona office as its "prime rate" plus four
(4) percentage points, from the date of such payment by Landlord until
reimbursement in full by Tenant (the "Default Rate"), shall be payable to
Landlord as Additional Rent with the next monthly installment of Annual Basic
Rent; provided, however, in no event shall the Default Rate exceed the maximum
rate (if any) permitted by applicable law.
13. DEFAULT AND REMEDIES
13.1 Event of Default. The occurrence of any one or more of the following
events will constitute an "Event of Default" on the part of Tenant:
(a) Failure to pay any installment of Annual Basic Rent, any
Additional Rent or any other sum required to be paid by Tenant under this Lease
when due, and such failure shall continue for seven (7) days after written
notice thereof by Landlord to Tenant;
(b) Failure to perform any of the other covenants or conditions
which Tenant is required to observe and perform (except failure in the payment
of Annual Basic Rent, Additional Rent or any other monetary obligation contained
in this Lease) and such failure shall continue for thirty (30) days (or such
shorter period of time as may be specified by Landlord in the event of an
emergency) after written notice thereof by Landlord to Tenant, provided that if
such default is other than the payment of money and cannot be
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cured within such thirty (30) day period, then an Event of Default shall not
have occurred if Tenant, within such thirty (30) day period, commences curing of
such failure and diligently in good faith prosecutes the same to completion and
furnishes evidence thereof to Landlord within thirty (30) days thereafter;
(c) If any warranty, representation or statement made by Tenant to
Landlord in connection with this Lease is or was materially false or misleading
when made or furnished;
(d) The occurrence of an Event of Default under any other agreement
between Landlord and Tenant;
(e) Intentionally Omitted;
(f) Intentionally Omitted;
(g) The levy of a writ of attachment or execution or other judicial
seizure of substantially all of Tenant's assets or its interest in this Lease,
such attachment, execution or other seizure remaining undismissed or discharged
for a period of sixty (60) days after the levy thereof;
(h) The filing of any petition by or against Tenant to declare
Tenant a bankrupt or to delay, reduce or modify Tenant's debts or obligations,
which petition is not discharged within sixty (60) days after the date of
filing;
(i) The filing of any petition or other action taken to reorganize
or modify Tenant's or any Guarantor's capital structure, which petition is not
discharged within sixty (60) days after the date of filing;
(j) If Tenant shall be declared insolvent according to law;
(k) A general assignment by Tenant for the benefit of creditors;
(l) The appointment of a receiver or trustee for Tenant or all or
any of their respective property, which appointment is not discharged within
sixty (60) days after the date of filing;
(m) The filing by Tenant of a voluntary petition pursuant to the
Bankruptcy Code or any successor thereto or the filing of an involuntary
petition against Tenant pursuant to the Bankruptcy Code or any successor
legislation, which petition is not discharged within sixty (60) days after the
date of filing; or
(n) The occurrence of an Event of Default under Articles 19.1, 0 or
0.
13.2 Remedies. Upon the occurrence of an Event of Default under this Lease
by Tenant, Landlord may, without prejudice to any other rights and remedies
available to a landlord at law, in equity or by statute, exercise one or more of
the following remedies, all of which shall be construed and held to be
cumulative and non-exclusive: (a) Terminate this Lease and re-enter and take
possession of the Leased Premises, in which event, Landlord is authorized to
make such repairs, redecorating, refurbishments or improvements to the Leased
Premises as may be necessary in the reasonable opinion of Landlord acting in
good faith for the purposes of reletting the Leased premises and the costs and
expenses incurred in respect of such repairs, redecorating and refurbishments
and the expenses of such reletting (including brokerage commissions) shall be
paid by Tenant to Landlord within five (5) days after receipt of Landlord's
statement;
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or (b) Without terminating this Lease, re-enter and take possession of the
Leased Premises; or (c) Without such re-entry, recover possession of the Leased
Premises in the manner prescribed by any statute relating to summary process,
and any demand for Annual Basic Rent, re-entry for condition broken, and any and
all notices to quit, or other formalities of any nature to which Tenant may be
entitled, are hereby specifically waived to the extent permitted by law; or (d)
Without terminating this Lease, Landlord may relet the Leased Premises as
Landlord may see fit without thereby voiding or terminating this Lease, and for
the purposes of such reletting, Landlord is authorized to make such repairs,
redecorating and refurbishments or improvements to the Leased Premises as may be
necessary in the reasonable opinion of Landlord acting in good faith for the
purpose of such reletting, and if a sufficient sum is not realized from such
reletting (after payment of all costs and expenses of such repairs, redecorating
and refurbishments and expenses of such reletting (including brokerage
commissions) and the collection of rent accruing therefrom) each month to equal
the Annual Basic Rent and Additional Rent payable hereunder, then Tenant shall
pay such deficiency each month within five (5) days after receipt of Landlord's
statement; or (e) Landlord may declare immediately due and payable the present
value of the remaining installments of Annual Basic Rent and Additional Rent
(utilizing the discount rate of the Federal Reserve Bank situated nearest to the
location of the Building at the time of Landlord's declaration plus one (1)
percentage point), and such amount, less the present value of the fair rental
value of the Leased Premises for the remainder of the Lease Term (utilizing the
discount rate of the Federal Reserve Bank situated nearest to the location of
the Building at the time of Landlord's declaration plus one (1) percentage
point) shall be paid by Tenant within five (5) days after receipt of Landlord's
statement. Landlord shall not by re-entry or any other act, be deemed to have
terminated this Lease, or the liability of Tenant for the total Annual Basic
Rent and Additional Rent reserved hereunder or for any installment thereof then
due or thereafter accruing, or for damages, unless Landlord notifies Tenant in
writing that Landlord has so elected to terminate this Lease. In no event shall
Tenant be responsible to Landlord for any special or consequential damages.
After the occurrence of an Event of Default, the acceptance of Annual Basic Rent
or Additional Rent, or the failure to re-enter by Landlord shall not be deemed
to be a waiver of Landlord's right to thereafter terminate this Lease and
exercise any other rights and remedies available to it, and Landlord may
re-enter and take possession of the Leased Premises as if no Annual Basic Rent
or Additional Rent had been accepted after the occurrence of an Event of
Default. Upon an Event of Default, Tenant shall also pay to Landlord all costs
and expenses incurred by Landlord, including court costs and attorneys' fees, in
retaking or otherwise obtaining possession of the Leased Premises, removing and
storing all equipment, fixtures and personal property on the Leased Premises and
otherwise enforcing any of Landlord's rights, remedies or recourses arising as a
result of an Event of Default.
13.3 Additional Remedies. All of the remedies given to Landlord in this
Lease in the event Tenant commits an Event of Default are in addition to all
other rights or remedies available to a landlord at law, in equity or by
statute, including, without limitation, the right to seize and sell all goods,
equipment and personal property of Tenant located in the Leased Premises and
apply the proceeds thereof to all due and unpaid Annual Basic Rent, Additional
Rent and other amounts owing under the Lease. All rights, options and remedies
available to Landlord shall be construed and held to be cumulative, and no one
of them shall be exclusive of the other.
13.4 Interest on Past Due Amounts. In addition to the late charge
described in Article 0 below, if any installment of Annual Basic Rent or
Additional Rent is not paid within thirty (30) days of the date when due, it
shall bear interest at the Default Rate; provided, however, this provision shall
not relieve Tenant from any default in the making of any payment at the time and
in the manner required by this Lease; and provided, further, in no event shall
the Default Rate exceed the maximum rate (if any) permitted by applicable law.
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13.5 Landlord Default. In the event Landlord should neglect or fail to
perform or observe any of the covenants, provisions or conditions contained in
this Lease on its part to be performed or observed, and such failure continues
for thirty (30) days after written notice of default (or if more than thirty
(30) days shall be required because of the nature of the default, if Landlord
shall fail to commence the curing of such default within such thirty (30) day
period and proceed diligently thereafter), then Landlord shall be responsible to
Tenant for any actual damages sustained by Tenant as a result of Landlord's
breach, but not special or consequential damages. Should Tenant give written
notice to Landlord to correct any default, Tenant shall give similar notice to
the holder of any mortgages or deeds of trust against the Building or the lessor
of any ground lease, and prior to any cancellation of this Lease, the holder of
such mortgage or deed of trust and/or the lessor under such ground lease shall
be given a reasonable period of time to correct or remedy such default. If and
when such holder of such mortgage or deed of trust and/or the lessor under any
such ground lease has made performance on behalf of Landlord, the default of
Landlord shall be deemed cured.
14. LATE PAYMENTS
Tenant hereby acknowledges that the late payment by Tenant to Landlord of
any monthly installment of Annual Basic Rent, any Additional Rent or any other
sums due hereunder will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of 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 monthly installment of
Annual Basic Rent, any Additional Rent or any other sum due from Tenant shall
not be received by Landlord within five (5) days after the date when due, Tenant
shall pay to Landlord a late charge equal to five percent (5%) of such overdue
amount or Two Hundred and No/100 Dollars ($200.00), whichever is greater. Tenant
acknowledges that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payments by Tenant. With respect
to any late payment by Tenant that is subject to a late charge, the acceptance
of payment in full of all amounts past due and the applicable late charge by
Landlord shall constitute a waiver of Tenant's default with respect to such
overdue amount, and shall prevent Landlord from exercising any of the other
rights and remedies available to Landlord with respect to that particular
default by Tenant. Nothing contained in this Article 0 shall be deemed to
condone, authorize, sanction or grant to Tenant an option for the late payment
of Annual Basic Rent, Additional Rent or any other sum due hereunder.
15. ABANDONMENT AND SURRENDER
15.1 Abandonment. Tenant shall not abandon the Leased Premises at any time
during the Lease Term. No act or thing done by Landlord or by any agent or
employee of Landlord during the Lease Term shall be deemed an acceptance of a
surrender of the Leased Premises unless such acceptance is expressed in writing
and duly executed by Landlord. Unless Landlord so agrees in writing, the
delivery of the key to the Leased Premises to any employee or agent of Landlord
shall not operate as a termination of this Lease or as a surrender of the Leased
Premises.
15.2 Surrender. Tenant shall, upon the expiration or earlier termination
of this Lease, peaceably surrender the Leased Premises, including any Tenant
Improvements and Tenant's improvements and/or alterations installed pursuant to
Article 0, in a janitorial clean condition and otherwise in as good condition as
when Tenant took possession, except for (i) reasonable wear and tear subsequent
to the last repair, replacement, restoration, alteration or renewal; (ii) loss
by fire or other casualty, and (iii) loss by condemnation. If Tenant shall
abandon the Leased Premises, any personal property and fixtures belonging to
Tenant and left in the Leased Premises shall be deemed abandoned and, at
Landlord's option, title shall pass to Landlord under this Lease as by a xxxx of
sale. Landlord may, however, if it so elects, remove all or any part
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of such personal property from the Leased Premises and the costs incurred by
Landlord in connection with such removal, including storage costs and the cost
of repairing any damage to the Leased Premises, the Building and/or the Project
caused by such removal shall be paid by Tenant within five (5) days after
receipt of Landlord's statement. Upon the expiration or earlier termination of
this Lease, Tenant shall surrender to Landlord all keys to the Leased Premises
and shall inform Landlord of the combination of any vaults, locks and safes left
on the Leased Premises. The obligations of Tenant under this Article 0 shall
survive the expiration or earlier termination of this Lease. Tenant shall
indemnify Landlord against any loss or liability resulting from delay by Tenant
in so surrendering the Premises, including, without limitation, any claims made
by any succeeding Tenant founded on such delay. Tenant shall give written notice
to Landlord at least thirty (30) days prior to vacating the Leased Premises for
the express purpose of arranging a meeting with Landlord for a joint inspection
of the Leased Premises.
16. INDEMNIFICATION AND EXCULPATION
16.1 Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord harmless from and against, and shall be responsible for, all claims,
damages, losses, costs, liens, encumbrances, liabilities and expenses, including
reasonable attorneys', accountants' and investigators' fees and court costs
(collectively, the "Claims"), arising in whole or in part from Tenant's use of
all or any part of the Leased Premises, the Building and/or the Project or the
conduct of Tenant's business or from any activity, work or thing done, permitted
or suffered by Tenant or by any invitee, servant, agent, employee or subtenant
of Tenant in the Leased Premises, the Building and/or the Project, and shall
further indemnify, protect, defend and hold Landlord harmless from and against,
and shall be responsible for, all Claims arising in whole or in part from any
breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease or arising in whole or in part from any
act, neglect, fault or omission by Tenant or by any invitee, servant, agent,
employee or subtenant of Tenant anywhere in the Leased Premises, the Building
and/or the Project. In case any action or proceeding is brought against Landlord
to which this indemnification shall be applicable, Tenant shall pay all Claims
resulting therefrom and shall defend such action or proceeding, if Landlord
shall so request, at Tenant's sole cost and expense, by counsel reasonably
satisfactory to Landlord. The obligations of Tenant under this Article 0 shall
survive the expiration or earlier termination of this Lease. Except for the
negligence or willful misconduct of Tenant, its employees, agents, servants,
contractors, subtenants and assignees, or a breach of this Lease by Tenant or
Tenant's employees, agents, contractors or servants, subtenants or assignees
Landlord hereby indemnifies and agrees to hold Tenant harmless for, from and
against any and all liability, claims, demands, damages, expenses, fees
(including attorney's fees), fines, penalties, suits, procedures, actions and
causes of action of any and every kind or nature which either (i) arise from, or
in connection with, any negligence or willful misconduct of the Landlord except
in connection with the Leased Premises to the extent covered by the insurance
maintained or required to be maintained by Tenant pursuant to Article 0; or (ii)
result from any default, breach, violation or non-performance of this Lease or
any provision of this Lease by Landlord.
16.2 Exculpation. Neither Landlord nor its agents or employees shall be
liable for (i) any injury or damage to persons or property resulting from any
cause, including, but not limited to, fire, explosion, falling plaster, steam,
gas, electricity, sewage, odor, noise, water or rain which may leak from any
part of the Building or from the pipes, appliances or plumbing works therein, or
from the roof of any structure on the Property or the Project, or from any
streets or subsurfaces on or adjacent to the Building, the Property or the
Project, or from any other place or resulting from dampness or any other causes
whatsoever, (ii) any defects in the Leased Premises, the Building and/or the
Project, nor shall Landlord be liable for the negligence or misconduct,
including, but not limited to, criminal acts, by maintenance or other personnel
or contractors serving the Leased Premises, the Building and/or the Project,
other tenants or third parties, unless caused by
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the negligence or wilful misconduct of Landlord, its agents or employees. All
property of Tenant kept or stored on the Project shall be so kept or stored at
the risk of Tenant only, and Tenant shall indemnify, defend and hold Landlord
harmless from and against, and shall be responsible for, any Claims arising out
of damage to the same, including subrogation claims by Tenant's insurance
carriers, unless such damage shall be caused by the willful act or gross neglect
of Landlord and through no fault of Tenant. None of the events or conditions set
forth in this Article 0 shall be deemed a constructive or actual eviction or
result in a termination of this Lease, nor shall Tenant be entitled to any
abatement or reduction of Annual Basic Rent or Additional Rent by reason
thereof. Tenant shall give prompt notice to Landlord with respect to any
defects, fires or accidents which Tenant observes in the Leased Premises, the
Building and/or the Project.
17. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right, with
prior notice to Tenant, to enter the Leased Premises, to inspect the same, to
supply janitorial service and other services to be provided by Landlord to
Tenant hereunder, to submit the Leased Premises to prospective purchasers or
tenants, to post notices of non-responsibility, and to alter, improve or repair
the Leased Premises and any portion of the Building of which the Leased Premises
are a part, without abatement of Annual Basic Rent or Additional Rent, and may
for that purpose erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing that access into the Leased Premises shall not be blocked thereby, and
further providing that the business of Tenant shall not be interfered with
unreasonably. For each of the aforesaid purposes, Landlord shall at all times
have and retain a key with which to unlock all the doors in, upon or about the
Leased Premises, excluding Tenant's vaults and safes, and Landlord shall have
the right to use any and all means which Landlord may deem proper to open such
doors in an emergency in order to obtain entry to the Leased Premises, and any
entry to the Leased Premises obtained by Landlord by any such 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 all or any portion of the Leased Premises. Nothing in this Article 0
shall be construed as obligating Landlord to perform any repairs, alterations or
maintenance except as otherwise expressly required elsewhere in this Lease.
18. SUBSTITUTE PREMISES
18.1 Relocation of Leased Premises. Landlord may, before or after the
Commencement Date, request by notice to Tenant, to substitute for the Leased
Premises other office space in the Project (the "Substitute Premises")
designated by Landlord, provided that the Substitute Premises shall contain at
least the same useable area as the Leased Premises and have a configuration
substantially similar to the Leased Premises. Tenant shall not be relocated by
Landlord without Tenant's prior written consent to such request. Landlord's
notice shall be accompanied by a plan of the Substitute Premises. In the event
that Tenant shall consent to relocation, Tenant shall vacate and surrender the
Leased Premises and shall occupy the Substitute Premises promptly (and, in any
event, not later than fifteen (15) days) after Landlord has substantially
completed the work to be performed by Landlord in the Substitute Premises
pursuant to Article 0 below. Tenant shall pay the same Annual Basic Rent and
Additional Rent with respect to the Substitute Premises as was payable with
respect to the Leased Premises. This Lease shall remain in full force and effect
and the Substitute Premises shall thereafter be deemed to be the Leased
Premises.
18.2 Compensation to Tenant. In the event Tenant shall have consented to
relocation to Substitute Premises, Tenant shall not be entitled to any
compensation for any inconvenience or interference with Tenant's business, nor
any abatement or reduction of Annual Basic Rent or Additional Rent, but Landlord
shall, at Landlord's expense perform the following:
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(a) Furnish and install in the Substitute Premises fixtures,
equipment, improvements, appurtenances and leasehold improvements at least equal
in kind and quality to those contained or to be contained in the Leased Premises
at the time such notices of substitution is given by Landlord;
(b) Provide personnel to perform, under Tenant's direction, the
moving of Tenant's personal property and trade fixtures from the Leased Premises
to the Substitute Premises;
(c) Promptly reimburse Tenant for Tenant's actual and reasonable
out-of-pocket costs incurred in connection with the relocation of any telephone
or other communications equipment from the Leased Premises to the Substitute
Premises; and
(d) Promptly reimburse Tenant for any other actual and reasonable
out-of-pocket costs incurred by Tenant in connection with Tenant's move from
Leased Premises to the Substitute Premises, provided such costs are approved by
Landlord in advance which approval shall not be unreasonably withheld.
Tenant shall cooperate with Landlord so as to facilitate the performance by
Landlord of its obligations under this Article 0 and the prompt surrender by
Tenant of the Leased Premises. Without limiting the generality of the preceding
sentence, Tenant shall provide Landlord promptly any approvals or instructions
and any plans or specifications or any other information reasonably requested by
Landlord, and Tenant shall perform promptly in the Substitute Premises any work
to be performed therein by Tenant to prepare the same for Tenant's occupancy.
19. ASSIGNMENT AND SUBLETTING
19.1 Consent of Landlord Required. Tenant shall not transfer or assign
this Lease or any right or interest hereunder, or sublet the Leased Premises or
any part thereof, without first obtaining Landlord's prior written consent,
which consent Landlord may not unreasonably withhold, delay or qualify. No
transfer or assignment (whether voluntary or involuntary, by operation of law or
otherwise) or subletting shall be valid or effective without such prior written
consent. Should Tenant attempt to make or allow to be made any such transfer,
assignment or subletting, except as aforesaid, or should any of Tenant's rights
under this Lease be sold or otherwise transferred by or under court order or
legal process or otherwise, then, and in any of the foregoing events Landlord
may, at its option, treat such act as an Event of Default by Tenant. Should
Landlord consent to a transfer, assignment or subletting, such consent shall not
constitute a waiver of any of the restrictions or prohibitions of this Article
0, and such restrictions or prohibitions shall apply to each successive
transfer, assignment or subletting hereunder, if any.
19.2 Deemed Transfers. For the purposes of this Article 0, an assignment
shall be deemed to include the following: (a) if Tenant is a partnership, a
withdrawal or change (voluntary, involuntary, by operation of law or otherwise)
of any of the partners thereof, a purported assignment, transfer, mortgage or
encumbrance (voluntary, involuntary, by operation of law or otherwise) by any
partner thereof of such partner's interest in Tenant, or the dissolution of the
partnership; (b) if Tenant consists of more than one person, a purported
assignment, transfer, mortgage or encumbrance (voluntary, involuntary, by
operation of law or otherwise) from one person unto the other or others; (c) if
Tenant (or a constituent partner of Tenant) is a corporation, any dissolution,
merger, consolidation or reorganization of Tenant (or such constituent partner),
or any change in the ownership (voluntary, involuntary, by operation of law,
creation of new stock or otherwise) of fifty percent (50%) or more of its
capital stock from the ownership existing on the date set forth
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in Article 0 above; (d) if Tenant is an unincorporated association, a purported
assignment, transfer, mortgage or encumbrance (voluntary, involuntary, by
operation of law or otherwise) of any interest in such unincorporated
association; or (e) if Tenant is a limited liability company, a withdrawal or
change of any of the members thereof, a purported assignment, transfer, mortgage
or encumbrance (voluntary, involuntary, by operation of law or otherwise) by any
member of such member's interest in Tenant, or the dissolution of the limited
liability company; or (f) the sale of fifty percent (50%) or more in value of
the assets of Tenant. Notwithstanding the foregoing, Landlord hereby
acknowledges and consents to Tenant's right, without further approval from
Landlord but only after written notice to Landlord to sublease the Premises or
assign its interest in this Lease (i) to a corporation that directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with Tenant; (ii) in the event of the merger or
consolidation of Tenant with another corporation; (iii) in the event of a sale
or transfer of all or substantially all of the stock of Tenant or substantially
all of Tenant's assets; or (iv) in the event of a private placement by Tenant of
its shares pursuant to applicable federal and state securities acts
(collectively, the "PERMITTED TRANSFERS"). No Permitted Transfer shall relieve
Tenant of its liability under this Lease and Tenant shall remain liable to
Landlord for the payment of all Annual Basic Rent, Additional Rent and Operating
Costs and under performance of all covenants and conditions of this Lease
applicable to Tenant. The provisions of Articles 19.4 and 19.5 shall not be
applicable to a Permitted Transfer.
19.3 Delivery of Information. If Tenant wishes at any time to assign this
Lease or sublet the Leased Premises or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing to Landlord:
(a) the name of the proposed subtenant or assignee; (b) the nature of the
proposed subtenant's or assignee's business to be carried on in the Leased
Premises; (c) the terms and the provisions of the proposed sublease or
assignment; and (d) such financial information as Landlord may reasonably
request concerning the proposed subtenant or assignee. Tenant's failure to
comply with the provisions of this Article 0 shall entitle Landlord to withhold
its consent to the proposed assignment or subletting.
19.4 Recapture. If Tenant seeks to assign its interest in this Lease
Landlord may, at its option, upon written notice (the "ASSIGNMENT RECAPTURE
NOTICE"), to Tenant within thirty (30) days after Landlord's receipt of the
information specified in Article 0 above, elect to recapture the Leased
Premises, and within sixty (60) days after notice of such election has been
given to Tenant, this Lease shall terminate unless Tenant shall, within fifteen
(15) days after delivery of the Assignment Recapture Notice to Tenant, deliver
to Landlord written notice withdrawing its notification delivered pursuant to
Article 0. If Tenant seeks to sublet all or any portion of the Leased Premises,
Landlord may, at Landlord's option, upon notice to Tenant (the "SUBLEASE
RECAPTURE NOTICE") within thirty (30) days after Landlord's receipt of Tenant's
notification delivered pursuant to Article 0, elect to recapture such portion of
the Leased Premises as Tenant seeks to sublet, and within sixty (60) days after
notice of such election has been given to Tenant, this Lease shall terminate as
to the portion of the Leased Premises recaptured, unless within fifteen (15)
days after delivery to Tenant of the Sublease Recapture Notice, Tenant delivers
to Landlord written notice withdrawing its notification delivered pursuant to
Article 0. If all or a portion of the Leased Premises is recaptured by Landlord
pursuant to this Article 0, Tenant shall promptly execute and deliver to
Landlord a termination agreement setting forth the termination date with respect
to the Leased Premises or the recaptured portion thereof, and prorating the
Annual Basic Rent, Additional Rent and other charges payable hereunder to such
date. If Landlord does not elect to recapture as set forth above, Tenant may
thereafter enter into a valid assignment or sublease with respect to the Leased
Premises, provided that Landlord consents thereto pursuant to this Article 0,
and provided further, that (a) such assignment or sublease is executed within
ninety (90) days after Landlord has given its consent, (b) Tenant pays all
amounts then owed to Landlord under this Lease, (c) there is not in existence an
Event of Default as of the effective date of the assignment or sublease, (d)
there have been no material changes with respect to the financial condition of
the proposed subtenant or assignee or
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the business such party intends to conduct in the Leased Premises, and (e) a
fully executed original of such assignment or sublease providing for an express
assumption by the assignee or subtenant of all of the terms, covenants and
conditions of this Lease is promptly delivered to Landlord.
19.5 Adjustment to Rental. In the event Tenant assigns its interest in
this Lease or sublets the Leased Premises, the Annual Basic Rent set forth in
Article 1.13 above, as adjusted, shall be increased effective as of the date of
such assignment or subletting by an amount equal to one-half (1/2) of the
difference, if any, between the Annual Basic Rent payable pursuant to this
Lease, as adjusted, and the rent and other consideration payable by any such
assignee or sublessee pursuant to such assignment or sublease. Notwithstanding
the foregoing, in no event shall the Annual Basic Rent after any such assignment
or subletting be less than the Annual Basic Rent specified in Article 1.13
above, as adjusted.
19.6 No Release from Liability. Landlord may collect Annual Basic Rent and
Additional Rent from the assignee, subtenant, occupant or other transferee, and
apply the amount so collected, first to the monthly installments of Annual Basic
Rent, then to any Additional Rent and other sums due and payable to Landlord,
and the balance, if any, to Landlord, but no such assignment, subletting,
occupancy, transfer or collection shall be deemed a waiver of Landlord's rights
under this Article 0, or the acceptance of the proposed assignee, subtenant,
occupant or transferee. Notwithstanding any assignment, sublease or other
transfer (with or without the consent of Landlord), Tenant shall remain
primarily liable under this Lease and shall not be released from performance of
any of the terms, covenants and conditions of this Lease.
19.7 Landlord's Expenses. If Landlord consents to an assignment, sublease
or other transfer by Tenant of all or any portion of Tenant's interest under
this Lease, Tenant shall pay or cause to be paid to Landlord, a transfer fee to
reimburse Landlord for administrative expenses and for legal, accounting and
other out of pocket expenses incurred by Landlord, which fee shall not exceed
Five Hundred and No/100 Dollars ($500.00).
19.8 Assumption Agreement. If Landlord consents to an assignment, sublease
or other transfer by Tenant of all or any portion of Tenant's interest under
this Lease, Tenant shall execute and deliver to Landlord, and cause the
transferee to execute and deliver to Landlord, an instrument in the form and
substance acceptable to Landlord in which (a) the transferee adopts this Lease
and assumes and agrees to perform, jointly and severally with Tenant, all of the
obligations of Tenant hereunder, (b) Tenant acknowledges that it remains
primarily liable for the payment of Annual Basic Rent, Additional Rent and other
obligations under this Lease, (c) Tenant subordinates to Landlord's statutory
lien, contract lien and security interest, any liens, security interests or
other rights which Tenant may claim with respect to any property of transferee
and (d) the transferee agrees to use and occupy the Leased Premises solely for
the purpose specified in Article 0 and otherwise in strict accordance with this
Lease.
19.9 Withholding Consent. Without limiting the grounds for withholding
consent which may be reasonable, it shall be reasonable for Landlord to withhold
consent if the proposed assignee or subtenant is a tenant in default of such
tenant's lease (or the termination by such assignee or subtenant of such lease
to sublease from Tenant will be a default under same) in a building in the
Phoenix metropolitan area owned by Landlord or by an affiliate of Landlord or
any of Landlord's constituent partners or principals; or if the proposed
assignee or subtenant is a governmental or quasi-governmental entity, agency,
department or any subdivision thereof; or if the use by the proposed assignee or
subtenant would violate the terms of this Lease, or any restrictive use covenant
or exclusive rights granted by Landlord; or if the nature of the proposed
assignee or subtenant or its business would not be consistent with the operation
of a first class, institutional grade office building; or if the proposed
assignee or subtenant does not intend to occupy the Premises for its
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own use, or if the proposed assignee or subtenant is an existing tenant of the
Project or the adjoining Pointe Corporate Centre located at 7500 North Dreamy
Draw Street, Phoenix, Arizona, or is a prospective tenant of the Project or the
adjoining project with whom Landlord or its broker are in active negotiations.
20. USE OF LEASED PREMISES AND RUBBISH REMOVAL
20.1 Use. The Leased Premises are leased to Tenant solely for the
Permitted Use set forth in Article 0 above and for no other purpose whatsoever.
Tenant shall not use or occupy or permit the Leased Premises to be used or
occupied, nor shall Tenant do or permit anything to be done in or about the
Leased Premises nor bring or keep anything therein which will in any way
increase the existing rate of or affect any casualty or other insurance on the
Building, the Property, the Project or any of their respective contents, or make
void or voidable or cause a cancellation of any insurance policy covering the
Building, the Property, the Project or any part thereof or any of their
respective contents. Tenant shall not do or permit anything to be done in or
about the Leased Premises, the Building and/or the Project which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building, the Property or the Project or injure or annoy them. Tenant shall not
use or allow the Leased Premises to be used for any improper, immoral, unlawful
or objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Leased Premises, the Building and/or the Project.
In addition, Tenant shall not commit or suffer to be committed any waste in or
upon the Leased Premises, the Building and/or the Project. Tenant shall not use
the Leased Premises, the Building and/or the Project or permit anything to be
done in or about the Leased Premises, the Building and/or the Project which will
in any way conflict with any matters of record, or any law, statute, ordinance
or governmental rule or regulation now in force or which may hereafter be
enacted or promulgated, and shall, at its sole cost and expense, promptly comply
with all matters of record and all laws, statutes, ordinances and governmental
rules, regulations and requirements now in force or which may hereafter be in
force and with the requirements of any Board of Fire Underwriters or other
similar body now or hereafter constituted, foreseen or unforeseen, ordinary as
well as extraordinary, relating to or affecting the condition, use or occupancy
of the Project, excluding structural changes not relating to or affected by
Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission by Tenant in any action against Tenant, whether
Landlord be a party thereto or not, that Tenant has violated any matters of
record, or any law, statute, ordinance or governmental rule, regulation or
requirement, shall be conclusive of that fact between Landlord and Tenant. In
addition, Tenant shall not place a load upon any floor of the Leased Premises
which exceeds the load per square foot which the floor was designed to carry,
nor shall Tenant install business machines or other mechanical equipment in the
Leased Premises which cause noise or vibration that may be transmitted to the
structure of the Building.
20.2 Rubbish Removal. Tenant shall keep the Leased Premises clean, both
inside and outside, subject, however, to Landlord's obligation as set forth in
Article 0 above. Tenant shall not burn any materials or rubbish of any
description upon the Leased Premises. Tenant shall keep all accumulated rubbish
in covered containers. In the event Tenant fails to keep the Leased Premises in
the proper condition, Landlord may cause the same to be done for Tenant and
Tenant shall pay the expenses incurred by Landlord on demand, together with
interest at the Default Rate, as Additional Rent. Tenant shall, at its sole cost
and expense, comply with all present and future laws, orders and regulations of
all state, county, federal, municipal governments, departments, commissions and
boards regarding the collection, sorting, separation, and recycling of waste
products, garbage, refuse and trash. Tenant shall sort and separate such waste
products, garbage, refuse and trash into such categories as provided by
law. Each separately sorted category of waste products, garbage, refuse and
trash shall be placed in separate receptacles reasonably approved by Landlord.
Such separate receptacles may, at Landlord's option, be removed from the Leased
Premises in accordance with a collection schedule prescribed by law. Landlord
reserves the right to refuse to collect or accept from Tenant any waste
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products, garbage, refuse or trash that is not separated and sorted as required
by law, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense using a contractor satisfactory to Landlord. Tenant shall pay
all costs, expenses, fines, penalties or damages that may be imposed on Landlord
or Tenant by reason of Tenant's failure to comply with the provisions of this
Article 0, and, at Tenant's sole cost and expense, Tenant shall indemnify,
defend and hold Landlord and Landlord's agents and employees harmless (including
legal fees and expenses) from and against, and shall be responsible for, all
actions, claims, liabilities and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Landlord.
21. SUBORDINATION AND ATTORNMENT
21.1 Subordination. This Lease and all rights of Tenant hereunder shall
be, at the option of Landlord, subordinate to (a) all matters of record, (b) all
ground leases, overriding leases and underlying leases (collectively referred to
as the "leases") of the Building, the Property or the Project now or hereafter
existing, (c) all mortgages and deeds of trust (collectively referred to as the
"mortgages") which may now or hereafter encumber or affect the Building, the
Property or the Project, and (d) all renewals, modifications, amendments,
replacements and extensions of leases and mortgages and to spreaders and
consolidations of the mortgages, whether or not leases or mortgages shall also
cover other lands, buildings or leases. The provisions of this Article 0 shall
be self-operative and no further instruments of subordination shall be required.
In confirmation of such subordination, Tenant shall promptly execute,
acknowledge and deliver any instrument that Landlord, the lessor under any lease
or the holder of any mortgage or any of their respective assigns or successors
in interest may reasonably request to evidence such subordination. Any lease to
which this Lease is subject and subordinate is called a "Superior Lease" and the
lessor under a Superior Lease or its assigns or successors in interest is called
a "Superior Lessor". Any mortgage to which this Lease is subject and subordinate
is called a "Superior Mortgage" and the holder of a Superior Mortgage is called
a "Superior Mortgagee". If Landlord, a Superior Lessor or a Superior Mortgagee
requires that such instruments be executed by Tenant, Tenant shall execute and
deliver such instruments within ten (10) days after request therefor. Tenant
waives any right to terminate this Lease because of any foreclosure proceedings.
Tenant hereby irrevocably constitutes and appoints Landlord (and any successor
Landlord) as Tenant's attorney-in-fact, with full power of substitution coupled
with an interest, to execute and deliver to any Superior Lessor or Superior
Mortgagee any documents 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 request
therefore.
21.2 Attornment. If any Superior Lessor or Superior Mortgagee (or any
purchaser at a foreclosure sale) succeeds to the rights of Landlord under this
Lease, whether through possession or foreclosure action, or the delivery of a
new lease or deed (a "Successor Landlord"), provided that such Superior Lessor
or Superior Mortgagee shall have executed and delivered to Tenant a
Non-Disturbance Agreement in a form reasonably acceptable to Landlord and
Tenant, Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
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22. ESTOPPEL CERTIFICATE
Tenant shall, whenever requested by Landlord, within twenty (20) days
after written request by Landlord, execute, acknowledge and deliver to Landlord
a statement in writing certifying: (a) 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); (b)
the dates to which Annual Basic Rent, Additional Rent and other charges are paid
in advance, if any; (c) that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder or specifying such defaults if any
are claimed; (d) that Tenant has paid Landlord the Security Deposit, (e) the
Commencement Date and the scheduled expiration date of the Lease Term, (f) the
rights (if any) of Tenant to extend or renew this Lease or to expand the Leased
Premises and (g) the amount of Annual Basic Rent, Additional Rent and other
charges currently payable under this Lease. In addition, such statement shall
provide such other information and facts Landlord may reasonably require. Any
such statement may be relied upon by any prospective or existing purchaser,
ground lessee or mortgagee of all or any portion of the Property, as well as by
any other assignee of Landlord's interest in this Lease. Tenant's failure to
deliver such statement within such time shall be conclusive upon Tenant (i) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord; (ii) that there are no uncured defaults in Landlord's
performance hereunder; (iii) that Tenant has paid to Landlord the Security
Deposit; (iv) that not more than one month's installment of Annual Basic Rent or
Additional Rent has been paid in advance; (v) that the Commencement Date and the
scheduled expiration date of the Lease Term are as stated therein, (vi) that
Tenant has no rights to extend or renew this Lease or to expand the Leased
Premises, (vii) that the Annual Basic Rent, Additional Rent and other charges
are as set forth therein and (viii) that the other information and facts set
forth therein are true and correct.
23. 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 shall not install, or permit to be installed, any drapes,
shutters, signs, lettering, advertising, or any items that will in any way, in
the sole opinion of Landlord, adversely alter the exterior appearance of the
Building or the exterior appearance of the Leased Premises as viewed from the
public halls or the exterior of the Building. Notwithstanding the foregoing,
Landlord shall install, at Tenant's sole cost and expense, letters or numerals
at or near the entryway to the Leased Premises provided Tenant obtains
Landlord's prior written consent as to size, color, design and location. All
such letters or numerals shall be in accordance with the criteria established by
Landlord for the Building. In addition, Tenant's name and suite number shall be
identified on the Building directory. Notwithstanding any provision of this
Article 23 to the contrary, subject to governmental restrictions, Tenant shall
have the right to display its corporate signage in each location utilized as of
June 11, 1996 by Colonial Penn and on the monument sign located along 16th
Street. Tenant shall reimburse Landlord for all costs and expenses incurred by
Landlord in installing such signage.
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24. PARKING
24.1 Parking Facility. Landlord shall provide, operate and maintain
parking accommodations (the "Parking Accommodations"), together with necessary
access, having a capacity adequate in Landlord's opinion to accommodate the
requirements of the Building and the Project. All spaces allocated to Tenant
pursuant to Article 0 shall be in parking areas adjacent to the Building,
including the parking xxx xxxxx xx Xxxxxxx Xxxxxx. No storage of vehicles or
parking for more than twenty-four (24) hours shall be allowed without Landlord's
prior written consent. Subject to the terms of the Reserved Covered Parking
License in the form attached hereto as Exhibit "E" and Unreserved Parking
License in the form attached as Exhibit "G", as applicable, Landlord shall have
the right to establish, and from time to time change, alter and amend, and to
enforce against all users of the Parking Accommodations, such reasonable
requirements and restrictions as Landlord deems necessary and advisable for the
proper operation and maintenance of the Parking Accommodations, including,
without limitation, designation of particular areas for reserved, visitor and/or
employee parking, and establishment of a reasonable rental charge for the use of
the Parking Accommodations by tenants of the Building, the Project and/or the
general public, as a part of the Rules and Regulations of the Building
referenced in Article 31 hereof. Landlord and Tenant acknowledge that Landlord
is involved in litigation regarding the parking lot north of Belmont Street
(Maricopa County Civil Action No. CV 96-08708). Landlord represents and warrants
that notwithstanding such litigation throughout the Lease Term, as same may be
extended, Tenant shall have the non-exclusive right to use such parking lot in
common with others, subject to and in accordance with the terms and conditions
set forth in this Lease.
24.2 Parking Passes. Tenant is hereby allocated the number of reserved
covered, reserved uncovered and unreserved parking passes designated in Article
0 hereof, entitling holders to park in either reserved covered, reserved
uncovered or unreserved parking spaces, as the case may be, located in the
Parking Accommodations as designated by Landlord from time to time for use by
Tenant, its employees and licensees, and for which Tenant shall pay the monthly
charges set forth in Article 1.18 hereof. Landlord and Tenant shall execute,
prior to the Commencement Date a Reserved Covered Parking License in the form
attached hereto as Exhibit "E" and Unreserved Parking License in the form
attached as Exhibit "G", as applicable. The unreserved parking spaces shall be
available to Tenant, its employees and licensees on a "first come, first serve"
basis. Holders of parking passes shall not be entitled to park in visitor
parking spaces so designated by Landlord, or in any other parking spaces other
than those designated by Landlord for use by holders of parking passes.
25. LIENS
Tenant shall keep the Leased Premises free and clear of all mechanic's and
materialmen's liens. If, because of any act or omission (or alleged act or
omission) of Tenant, any mechanics', materialmen's or other lien, charge or
order for the payment of money shall be filed or recorded against the Leased
Premises, the Property, the Project or the Building, or against any other
property of Landlord (whether or not such lien, charge or order is valid or
enforceable as such), Tenant shall, at its own expense, cause the same to be
canceled or discharged of record within thirty (30) days after Tenant shall have
received written notice of the filing thereof, or Tenant may, within such thirty
(30) day period, furnish to Landlord, a bond pursuant to A.R.S. Section 33-1004
(or any successor statute) and satisfactory to Landlord and all Superior Lessors
and Superior Mortgagees against the lien, charge or order, in which case Tenant
shall have the right to contest, in good faith, the validity or amount thereof.
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26. HOLDING OVER
It is agreed that the date of termination of this Lease and the right of
Landlord to recover immediate possession of the Leased Premises thereupon is an
important and material matter affecting the parties hereto and the rights of
third parties, all of which have been specifically considered by Landlord and
Tenant. In the event of any continued occupancy or holding over of the Leased
Premises without the express written consent of Landlord beyond the expiration
or earlier termination of this Lease or of Tenants right to occupy the Leased
Premises, whether in whole or in part, or by leaving property on the Leased
Premises or otherwise, this Lease shall be deemed a monthly tenancy and Tenant
shall pay two (2) times the Annual Basic Rent then in effect, in advance at the
beginning of the hold-over month(s), plus any Additional Rent or other charges
or payments contemplated in this Lease, and any other costs, expenses, damages,
liabilities and attorneys' fees incurred by Landlord on account of Tenant's
holding over.
27. ATTORNEYS' FEES
Tenant shall pay to Landlord all amounts for costs (including reasonable
attorneys' fees) incurred by Landlord in connection with any breach or default
by Tenant under this Lease or incurred in order to enforce or interpret the
terms or provisions of this Lease. Such amounts shall be payable within five (5)
days after receipt by Tenant of Landlord's statement. In addition, if any action
shall be instituted by either of the parties hereto for the enforcement or
interpretation of any of their respective rights or remedies in or under this
Lease, the prevailing party shall be entitled to recover from the losing party
all costs incurred by the prevailing party in such action and any appeal
therefrom, including reasonable attorneys' fees to be fixed by the court.
28. RESERVED RIGHTS OF LANDLORD
Landlord reserves the following rights, exercisable without liability to
Tenant for damage or injury to property, persons or business and without
effecting an eviction, constructive or actual, or disturbance of Tenant's use or
possession or giving rise to any claim:
(a) To name the Building, the Property and the Project and to change the
name or street address of the Building, the Property or the Project after ninety
(90) days prior notice to Tenant;
(b) To install and maintain all signs on the exterior and interior of the
Building, the Property and the Project;
(c) To designate all sources furnishing sign painting and lettering;
(d) During the last ninety (90) days of the Lease Term, if Tenant has
vacated the Leased Premises, to decorate, remodel, repair, alter or otherwise
prepare the Leased Premises for re-occupancy, without affecting Tenant's
obligation to pay Annual Basic Rent;
(e) To have pass keys to the Leased Premises and all doors therein,
excluding Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Leased Premises
to any prospective purchaser, mortgagee, or assignee of any mortgage on the
Building, the Property or the Project and to others
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having interest therein at any time during the Lease Term, and to prospective
Tenants during the last six (6) months of the Lease Term;
(g) To take any and all measures, including entering the Leased Premises
for the purposes of making inspections, repairs, alterations, additions and
improvements to the Leased Premises or to the Building (including, for the
purposes of checking, calibrating, adjusting and balancing controls and other
parts of the Building systems) as may be necessary or desirable for the
operation, improvement, safety, protection or preservation of the Leased
Premises or the Building, or in order to comply with all laws, orders and
requirements of governmental or other authorities, or as may otherwise be
permitted or required by this Lease; provided, however, that Landlord shall
endeavor (except in an emergency) to minimize interference with Tenant's
business in the Leased Premises;
(h) To relocate various facilities within the Building and on the Property
and/or the Project if Landlord shall determine such relocation to be in the best
interest of the development of the Building, the Property and/or the Project,
provided, that such relocation shall not materially restrict access to the
Leased Premises;
(i) To change the nature, extent, arrangement, use and location of the
Building Common Areas and the Project Common Areas;
(j) To make alterations or additions to and to build additional stories on
the Building and to build additional buildings or improvements on the Property
and on the Project; and
(k) To install vending machines of all kinds in the Building, and to
receive all of the revenue derived therefrom.
Landlord further reserves the exclusive right to the roof of the Building. No
easement for light, air, or view is included in the leasing of the Leased
Premises to Tenant. Accordingly, any diminution or shutting off of light, air or
view by any structure which may be erected on the Property, the Project or other
properties in the vicinity of the Building shall in no way affect this Lease or
impose any liability upon Landlord. Notwithstanding the foregoing, and subject
to governmental restrictions, Tenant may install upon the roof of the Building
an antenna or satellite dish. Such satellite dish shall be screened from view
and shall not be visible from the streets and roadways adjacent to the Project.
The satellite dish shall be installed and maintained by Tenant at its sole cost
and expense and shall be operated in a manner that does not unreasonably
interfere with the business being conducted by other tenants of the Building.
Tenant agrees to use any specified roofing contractor required to comply with
the existing roof warranties. Tenant shall be liable for any damage to the roof
caused by the installation, maintenance, repair or operation of the satellite
dish.
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29. EMINENT DOMAIN
29.1 Taking. If the whole of the Building is lawfully and permanently
taken by condemnation or any other manner for any public or quasi-public
purpose, or by deed in lieu thereof, this Lease shall terminate as of the date
of vesting of title in such condemning authority and the Annual Basic Rent and
Additional Rent shall be pro rated to such date. If any part of the Building,
Property or Project is so taken, or if the whole of the Building is taken, but
not permanently, then this Lease shall be unaffected thereby, except that (a)
Landlord may terminate this Lease by notice to Tenant within thirty (30) days
after the date of vesting of title in the condemning authority, and (b) if
twenty percent (20%) or more of the Leased Premises shall be permanently taken
and the remaining portion of the Leased Premises shall not be reasonably
sufficient for Tenant to continue operation of its business, Tenant may
terminate this Lease by notice to Landlord within thirty (30) days after the
date of vesting of title in such condemning authority. This Lease shall
terminate on the one hundred twentieth (120th) day after receipt by Landlord of
such notice, by which date Tenant shall vacate and surrender the Leased Premises
to Landlord. The Annual Basic Rent and Additional Rent shall be pro rated to the
earlier of the termination of this Lease or such date as Tenant is required to
vacate the Leased Premises by reason of the taking. If this Lease is not
terminated as a result of a partial taking of the Leased Premises, the Annual
Basic Rent and Additional Rent shall be equitably adjusted according to the
rentable area of the Leased Premises and Building remaining.
29.2 Award. In the event of a taking of all or any part of the Building,
the Property or the Project, all of the proceeds or the award, judgment,
settlement or damages payable by the condemning authority shall be and remain
the sole and exclusive property of Landlord, and Tenant hereby assigns all of
its right, title and interest in and to any such award, judgment, settlement or
damages to Landlord. Tenant shall, however, have the right, to the extent that
the same shall not reduce or prejudice amounts available to Landlord, to claim
from the condemning authority, but not from Landlord, such compensation as may
be recoverable by Tenant in its own right for relocation benefits, moving
expenses, and damage to Tenant's personal property and trade fixtures.
30. NOTICES
Any notice or communication given under the terms of this Lease shall be
in writing and shall be delivered in person, sent by any public or private
express delivery service or deposited with the United States Postal Service or a
successor agency, certified or registered mail, return receipt requested,
postage pre-paid, addressed as set forth in the Basic Provisions, or at such
other address as a party may from time to time designate by notice hereunder.
Notice shall be effective upon delivery. The inability to deliver a notice
because of a changed address of which no notice was given or a rejection or
other refusal to accept any notice shall be deemed to be the receipt of the
notice as of the date of such inability to deliver or rejection or refusal to
accept. Any notice to be given by Landlord may be given by the legal counsel
and/or the authorized agent of Landlord.
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31. RULES AND REGULATIONS
Tenant shall abide by all rules and regulations (the "Rules and
Regulations") of the Building and the Project imposed by Landlord, as attached
hereto as Exhibit "I" or as may hereafter be issued by Landlord. Such Rules and
Regulations are imposed to enhance the cleanliness, appearance, maintenance,
order and use of the Leased Premises, the Building and the Property, and the
proper enjoyment of the Building, the Property and the Project 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, by Tenant shall constitute an Event of Default if such
breach is not fully cured within ten (10) days after written notice to Tenant by
Landlord. Landlord shall not be responsible to Tenant for nonperformance by any
other tenant, occupant or invitee of the Building, the Property or the Project
of any Rules or Regulations.
32. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of Annual Base Rent and Additional Rent (jointly called
"Rent" in this Article 0), shall be deemed to be other than on account of the
earliest stipulated Rent due and not yet paid, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as Rent
be deemed an accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy in this Lease. No receipt of money by Landlord from
Tenant after the termination of this Lease, after the service of any notice
relating to the termination of this Lease, after the commencement of any suit,
or after final judgment for possession of the Leased Premises, shall reinstate,
continue or extend the Lease Term or affect any such notice, demand, suit or
judgment.
33. BANKRUPTCY OF TENANT
33.1 Chapter 7. If a petition is filed by, or an order for relief is
entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of
Tenant elects to assume this Lease for the purpose of assigning it, the election
or assignment, or both, may be made only if all of the terms and conditions of
Articles 0 and 0 below are satisfied. If the trustee fails to elect to assume
this Lease for the purpose of assigning it within sixty (60) days after
appointment, this Lease will be deemed to have been rejected. To be effective,
an election to assume this Lease must be in writing and addressed to Landlord
and, in Landlord's business judgment, all of the conditions hereinafter stated,
which Landlord and Tenant acknowledge to be commercially reasonable, must have
been satisfied. Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee, and this Lease
will be terminated. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive.
33.2 Chapters 11 and 13. If Tenant files a petition for reorganization
under Chapters 11 or 13 of the Bankruptcy Code or a proceeding that is filed by
or against Tenant under any other chapter of the Bankruptcy Code is converted to
a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as a
debtor-in-possession fails to assume this Lease within sixty (60) days from the
date of the filing of the petition or the conversion, the trustee or the
debtor-in-possession will be deemed to have rejected this Lease. To be
effective, an election to assume this Lease must be in writing and addressed to
Landlord and, in Landlord's business judgment, all of the following conditions,
which Landlord and Tenant acknowledge to be commercially reasonable, must have
been satisfied:
(a) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this Article 0, that;
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(1) The trustee will cure all monetary defaults under this
Lease within ten (10) days from the date of the assumption; and
(2) The trustee will cure all non-monetary defaults under this
Lease within thirty (30) days from the date of the assumption.
(b) The trustee or the debtor-in-possession has compensated
Landlord, or has provided to Landlord adequate assurance, as defined in this
Article 0, that within ten (10) days from the date of the assumption Landlord
will be compensated for any pecuniary loss it incurred arising from the default
of Tenant, the trustee, or the debtor-in-possession as recited in Landlord's
written statement of pecuniary loss sent to the trustee or the
debtor-in-possession. For purposes of this Lease, pecuniary loss shall include
all attorneys' fees and court costs incurred by Landlord in connection with any
bankruptcy proceeding filed by or against Tenant.
(c) The trustee or the debtor-in-possession has provided Landlord
with adequate assurance of the future performance of each of Tenant's
obligations under the Lease; provided, however, that:
(1) If not otherwise required by the terms of this Lease, the
trustee or the debtor-in- possession will also pay in advance, on each day that
the Annual Basic Rent is payable, one-twelfth of Tenant's estimated annual
obligations under the Lease for the Additional Rent.
(2) From and after the date of the assumption of this Lease,
the trustee or the debtor- in-possession will pay the Annual Basic Rent and
Additional Rent as provided in Article 0 above.
(3) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the completion of bankruptcy
proceedings.
(d) Landlord has determined that the assumption of the Lease will
not:
(1) Breach any provisions in any other lease, mortgage,
financing agreement, or other agreement by which Landlord is bound relating to
the Property; or
(2) Disrupt, in Landlord's judgment, the tenant mix of the
Building or the Project or any other attempt by Landlord to provide a specific
variety of Tenants in the Building or the Project that, in Landlord's judgment,
would be most beneficial to all of the tenants of the Building and the Project
and would enhance the image, reputation, and profitability of the Building and
the Project.
(e) For purposes of this Article 0 "adequate assurance" means that:
(1) Landlord will determine that the trustee or the
debtor-in-possession has, and will continue to have, sufficient unencumbered
assets after the payment of all secured obligations and administrative expenses
to assure Landlord that the trustee or the debtor-in-possession will have
sufficient funds to fulfill Tenant's obligations under this Lease and to keep
the Leased Premises properly staffed with sufficient employees to conduct a
fully operational, actively promoted business on the Leased Premises; and
(2) An order will have been entered segregating sufficient
cash payable to Landlord and/or a valid and perfected first lien and security
interest will have been granted in property of
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Tenant, trustee, or debtor-in-possession that is acceptable for value and kind
to Landlord, to secure to Landlord the obligation of the trustee or
debtor-in-possession to cure the monetary or non-monetary defaults under this
Lease within the time periods set forth above.
33.3 Landlord's Right to Terminate. In the event that this Lease is
assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession
under the provisions of Article 0 above and, thereafter, Tenant is either
adjudicated a bankrupt or files a subsequent petition for arrangement under
chapter 11 of the Bankruptcy Code, then Landlord may terminate, at its option,
this Lease and all Tenant's rights under it, by giving written notice of
Landlord's election to terminate.
33.4 Assignment by Trustee. If the trustee or the debtor-in-possession has
assumed the Lease, under the terms of Article 0 or 0 above, and elects to assign
Tenant's interest under this Lease or the estate created by that interest to any
other person, that interest or estate may be assigned only if Landlord
acknowledges in writing that the intended assignee has provided adequate
assurance, as defined in this Article 0, of future performance of all of the
terms, covenants, and conditions of this Lease to be performed by Tenant.
33.5 Adequate Assurance. For the purposes of this Article 0 "adequate
assurance of future performance" means that Landlord has ascertained that each
of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement,
audited by a certified public accountant, that shows a net worth and working
capital in amounts determined by Landlord to be sufficient to assure the future
performance by the assignee of Tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees,
in form and substance satisfactory to Landlord from one or more persons who
satisfy Landlord's standards of creditworthiness;
(3) Landlord has obtained all consents or waivers from any third
party required under any lease, mortgage, financing arrangement or other
agreement by which Landlord is bound, to enable Landlord to permit the
assignment;
(4) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy charges
for the use of all or part of the Leased Premises, the charges will not be less
than the Annual Basic Rent and Additional Rent.
33.6 Consent of Landlord. Neither Tenant's interest in the Lease nor any
estate of Tenant created in the Lease will pass to any trustee, receiver,
assignee for the benefit of creditors, or any other person or entity, or
otherwise by operation of law under the laws of any state having jurisdiction of
the person or property of Tenant unless Landlord consents in writing to the
transfer. Landlord's acceptance of Annual Basic Rent or Additional Rent or any
other payments from any trustee, receiver, assignee, person, or other entity
will not be deemed to have waived, or waive, the need to obtain Landlord's
consent or Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without that consent.
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34. HAZARDOUS MATERIALS
34.1 Hazardous Materials Laws. "Hazardous Materials Laws" means any and
all federal, state or local laws, ordinances, rules, decrees, orders,
regulations or court decisions (including the so-called "common-law") relating
to hazardous substances, hazardous materials, hazardous waste, toxic substances,
environmental conditions on, under or about the Premises, or soil and ground
water conditions, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42
U.S.C. Section 9601, et seq., the Resource Conversation and Recovery Act
("RCRA"), 42 U.S.C. Section 6901, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., any amendments to the
foregoing, and any similar federal, state or local laws, ordinances, rules,
decrees, orders or regulations.
34.2 Hazardous Materials. "Hazardous Materials" means any chemical,
compound, material, substance or other matter that: (i) is a flammable
explosive, asbestos, radioactive material, nuclear medicine material, drug,
vaccine, bacteria, virus, hazardous waste, toxic substance, petroleum product,
or related injurious or potentially injurious material, whether injurious or
potentially injurious by itself or in combination with other materials; (ii) is
controlled, designated in or governed by any Hazardous Materials Law; (iii)
gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Law; or (iv) gives rise to any liability, responsibility or
duty on the part of Tenant or Landlord with respect to any third person under
any Hazardous Materials Law.
34.3 Use. Tenant shall not allow any Hazardous Material to be used,
generated, released, stored or disposed of on, under or about, or transported
from, the Leased Premises, the Building or the Project, unless: (i) such use is
specifically disclosed to and approved by Landlord in writing prior to such use;
and (ii) such use is conducted in compliance with the provisions of this Article
0. Landlord may approve such use subject to reasonable conditions to protect the
Leased Premises, the Building or the Project, and Landlord's interests. Landlord
may withhold approval if Landlord determines that such proposed use involves a
material risk of a release or discharge of Hazardous Materials or a violation of
any Hazardous Materials Laws or that Tenant has not provided reasonable
assurances of its ability to remedy such a violation and fulfill its obligations
under this Article 0.
34.4 Compliance With Laws. Tenant shall strictly comply with, and shall
maintain the Leased Premises in compliance with, all Hazardous Materials Laws.
Tenant shall obtain and maintain in full force and effect all permits, licenses
and other governmental approvals required for Tenant's operations on the Leased
Premises under any Hazardous Materials Laws and shall comply with all terms and
conditions thereof. At Landlord's request, Tenant shall deliver copies of, or
allow Landlord to inspect, all such permits, licenses and approvals. Tenant
shall perform any monitoring, investigation, clean-up, removal and other
remedial work (collectively, "Remedial Work") required as a result of any
release or discharge of Hazardous Materials affecting the Leased Premises, the
Building or the Project, or any violation of Hazardous Materials Laws by Tenant
or any assignee or sublessee of Tenant or their respective agents, contractors,
employees, licensees, or invitees. Landlord shall have the right to intervene in
any governmental action or proceeding involving any Remedial Work, and to
approve performance of the work, in order to protect Landlord's interests.
34.5 Compliance With Insurance Requirements. Tenant shall comply with the
requirements of Landlord's and Tenant's respective insurers regarding Hazardous
Materials and with such insurers' recommendations based upon prudent industry
practices regarding management of Hazardous Materials.
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34.6 Notice; Reporting. Tenant shall notify Landlord, in writing, within
two (2) days after any of the following: (a) a release or discharge of any
Hazardous Material, whether or not the release or discharge is in quantities
that would otherwise be reportable to a public agency; (b) Tenant's receipt of
any order of a governmental agency requiring any Remedial Work pursuant to any
Hazardous Materials Laws; (c) Tenant's receipt of any warning, notice of
inspection, notice of violation or alleged violation, or Tenant's receipt of
notice or knowledge of any proceeding, investigation of enforcement action,
pursuant to any Hazardous Materials Laws; or (d) Tenant's receipt of notice or
knowledge of any claims made or threatened by any third party against Tenant or
the Leased Premises, the Building or the Project, relating to any loss or injury
resulting from Hazardous Materials. Tenant shall deliver to Landlord copies of
all test results, reports and business or management plans required to be filed
with any governmental agency pursuant to any Hazardous Materials Laws.
34.7 Termination; Expiration. Upon the termination or expiration of this
Lease, Tenant shall remove any equipment, improvements or storage facilities
utilized in connection with any Hazardous Materials and shall, clean up,
detoxify, repair and otherwise restore the Leased Premises to a condition free
of Hazardous Materials.
34.8 Indemnity. Tenant shall protect, indemnify, defend and hold Landlord
harmless from and against, and shall be responsible for, any and all claims,
costs, expenses, suits, judgments, actions, investigations, proceedings and
liabilities arising out of or in connection with any breach of any provisions of
this Article 0 or directly or indirectly arising out of the use, generation,
storage, release, disposal or transportation of Hazardous Materials by Tenant or
any sublessee or assignee of Tenant, or their respective agents, contractors,
employees, licensees, or invitees, on, under or about the Leased Premises, the
Building or the Project during the Lease Term or Tenant's occupancy of the
Leased Premises, including, but not limited to, all foreseeable and
unforeseeable consequential damages and the cost of any Remedial Work. Neither
the consent by Landlord to the use, generation, storage, release, disposal or
transportation of Hazardous Materials nor the strict compliance with all
Hazardous Material Laws shall excuse Tenant from Tenant's indemnification
obligations pursuant to this Article 0. The foregoing indemnity shall be in
addition to and not a limitation of the indemnification provisions of Article 0
of this Lease. Tenant's obligations pursuant to this Article 0 shall survive the
termination or expiration of this Lease.
34.9 Assignment; Subletting. If Landlord's consent is required for an
assignment of this Lease or a subletting of the Leased Premises, Landlord shall
have the right to refuse such consent if the possibility of a release of
Hazardous Materials is materially increased as a result of the assignment or
sublease or if Landlord does not receive reasonable assurances that the new
tenant has the experience and the financial ability to remedy a violation of the
Hazardous Materials Laws and fulfill its obligations under this Article 0.
34.10 Entry and Inspection; Cure. Landlord and its agents, employees and
contractors, shall have the right, but not the obligation, to enter the Leased
Premises at all reasonable times to inspect the Leased Premises and Tenant's
compliance with the terms and conditions of this Article 0, or to conduct
investigations and tests. No prior notice to Tenant shall be required in the
event of an emergency, or if Landlord has reasonable cause to believe that
violations of this Article 0 have occurred, or if Tenant consents at the time of
entry. In all other cases, Landlord shall give at least twenty-four (24) hours
prior notice to Tenant. Landlord shall have the right, but not the obligation,
to remedy any violation by Tenant of the provisions of this Article 0 or to
perform any Remedial Work which is necessary or appropriate as a result of any
governmental order, investigation or proceeding. Tenant shall pay, upon demand,
as Additional Rent, all costs incurred by Landlord in remedying such violations
or performing all Remedial Work, plus interest thereon at the Default Rate from
the date of demand until the date received by Landlord.
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34.11 Event of Default. The release or discharge of any Hazardous Material
or the violation of any Hazardous Materials Law shall constitute an Event of
Default by Tenant under this Lease. In addition to and not in lieu of the
remedies available under this Lease as a result of such Event of Default,
Landlord shall have the right, without terminating this Lease, to require Tenant
to suspend its operations and activities on the Leased Premises until Landlord
is satisfied that appropriate Remedial Work has been or is being adequately
performed and Landlord's election of this remedy shall not constitute a waiver
of Landlord's right thereafter to pursue the other remedies set forth in this
Lease.
34.12 Representation and Warranty by Landlord. To Landlord's knowledge,
which knowledge is based solely on that certain Phase I Environmental Site
Assessment of Pointe Corporate Center, Pointe Corridor Centre I and Pointe
Corridor Centre II, Phoenix, Arizona (WT Job No. 2185JF187) prepared by Western
Technologies Inc., Landlord has received no written notice that there are
Hazardous Materials present in the Building or Project in violation of any
Hazardous Materials Laws. Subject to the receipt of written notice by Landlord
of the breach of the foregoing warranty and the expiration of the applicable
cure periods set forth in Article 12.5, Landlord shall indemnify, defend and
hold Tenant harmless for, from and against any loss, cost, damage, fine,
penalty, claim or expense (including reasonable attorneys' fees) incurred or
sustained by Tenant as a result of the breach by Landlord of any Hazardous
Materials Laws.
35. MISCELLANEOUS
35.1 Entire Agreement, Amendments. This Lease and any Exhibits and Riders
attached hereto and forming a part hereof, set forth all of the covenants,
promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Leased Premises and there are no covenants, promises, agreements,
representations, warranties, conditions or understandings either oral or written
between them other than as contained in this Lease. Except as otherwise provided
in this Lease, no subsequent alteration, amendment, change or addition to this
Lease shall be binding unless it is in writing and signed by both Landlord and
Tenant.
35.2 Time of the Essence. Time is of the essence of each and every term,
covenant and condition of this Lease.
35.3 Binding Effect. The covenants and conditions of this Lease shall,
subject to the restrictions on assignment and subletting, apply to and bind the
heirs, executors, administrators, personal representatives, successors and
assigns of the parties hereto.
35.4 Recordation. Neither this Lease nor any memorandum hereof shall be
recorded by Tenant. At the sole option of Landlord, Tenant and Landlord shall
execute, and Landlord may record, a short form memorandum of this Lease in form
and substance satisfactory to Landlord.
35.5 Governing Law. This Lease and all the terms and conditions thereof
shall be governed by and construed in accordance with the laws of the State of
Arizona.
35.6 Defined Terms and Paragraph Headings. The words "Landlord" and
"Tenant" as used in this Lease 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 in this Lease 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 part hereof.
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35.7 Representations and Warranties.
(a) Tenant represents and warrants to Landlord as follows:
(i) Tenant has been duly organized, is validly existing, and
is in good standing under the laws of its state of incorporation and is
qualified to transact business in Arizona. All necessary action on the part of
Tenant has been taken to authorize the execution, delivery and performance of
this Lease and of the other documents, instruments and agreements, if any,
provided for herein. The persons who have executed this Lease on behalf of
Tenant are duly authorized to do so;
(ii) This Lease constitutes the legal, valid and binding
obligation of Tenant, enforceable against Tenant in accordance with its terms,
subject, however, to bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, general principles of equity, whether enforceability is
considered in a proceeding in equity or at law, and to the qualification that
certain waivers, procedures, remedies and other provisions of this Lease may be
unenforceable under or limited by applicable law, however, none of the foregoing
shall prevent the practical realization to Landlord of the benefits intended by
this Lease;
(iii) To the best of its knowledge, there are no suits,
actions, proceedings or investigations pending, or to the best of its knowledge,
threatened against or involving Tenant before any court, arbitrator or
administrative or governmental body which might reasonably result in any
material adverse change in the contemplated business, condition or operations of
Tenant;
(iv) To the best of its knowledge, Tenant is not, and the
execution, delivery and performance of this Lease and the documents, instruments
and agreements, if any, provided for herein will not result in any breach of or
default under any other document, instrument or agreement to which Tenant is a
party or by which Tenant is subject or bound;
(v) To the best of its knowledge, Tenant has obtained all
required licenses and permits, both governmental and private, to use and operate
the Leased Premises in the manner intended by this Lease.
(b) Landlord represents and warrants to Tenant as follows:
(i) Landlord has been duly organized, is validly existing, and
is in good standing under the laws of its state of formation and is qualified to
transact business in Arizona. All necessary action on the part of Landlord has
been taken to authorize the execution, delivery and performance of this Lease
and of the other documents, instruments and agreements, if any, provided for
herein. The persons who have executed this Lease on behalf of Landlord are duly
authorized to do so;
(ii) This Lease constitutes the legal, valid and binding
obligation of Landlord, enforceable against Landlord in accordance with its
terms, subject, however, to bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, general principles of equity, whether enforceability is
considered in a proceeding in equity or at law, and to the qualification that
certain waivers, procedures, remedies and other provisions of this Lease may be
unenforceable under or limited by applicable law, however, none of the foregoing
shall prevent the practical realization to Tenant of the benefits intended by
this Lease;
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35.8 No Waiver. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission.
35.9 Severability. If any clause or provision of this Lease is or becomes
illegal or unenforceable because of any present or future law or regulation of
any governmental body or entity effective during the Lease Term, the intention
of the parties is that the remaining provisions of this Lease shall not be
affected thereby.
35.10 Exhibits. If any provision contained in an Exhibit, Rider or Addenda
to this Lease is inconsistent with any other provision of this Lease, the
provision contained in this Lease shall supersede the provisions contained in
such Exhibit, Rider or Addenda, unless otherwise provided.
35.11 Fair Meaning. The language of this Lease shall be construed to its
normal and usual meaning and not strictly for or against either Landlord or
Tenant. Landlord and Tenant acknowledge and agree that each party has reviewed
and revised this Lease and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Lease, or any Exhibits, Riders or amendments hereto.
35.12 No Merger. The voluntary or other surrender of this Lease by Tenant
or a mutual cancellation of this Lease shall not work as a merger and shall, at
Landlord's option, either terminate any or all existing subleases or
subtenancies, or operate as an assignment to Landlord of any or all of such
subleases or subtenancies.
35.13 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, regulations or
controls, judicial orders, enemy or hostile government actions, civil commotion,
fire or other casualty and other causes beyond the reasonable control of Tenant
or Landlord shall excuse the performance of the applicable party hereunder for
the period of any such prevention, delay, or stoppage, except (unless otherwise
stated herein) the obligations imposed with regard to Annual Basic Rent,
Operating Costs, Additional Rent and other charges to be paid by Tenant pursuant
to this Lease.
35.14 Government Energy or Utility Controls. In the event of the
imposition of federal, state or local governmental controls, rules, regulations
or restrictions on the use or consumption of energy or other utilities during
the Lease Term, both Landlord and Tenant shall be bound thereby. In the event of
a difference in interpretation of any governmental control, rule, regulation or
restriction between Landlord and Tenant, the reasonable interpretation of
Landlord shall prevail, and Landlord shall have the right to enforce compliance,
including the right of entry into the Leased Premises to effect compliance.
35.15 Shoring. If any excavation or construction is made adjacent to, upon
or within the Building, or any part thereof, Tenant shall afford to any and all
persons causing or authorized to cause such excavation or construction license
to enter onto the Leased Premises for the purpose of doing such work as such
persons shall deem necessary to preserve the Building or any portion thereof
from injury or damage and to support the same by proper foundations, braces and
supports without any claim for damages, indemnity or abatement of Annual Basic
Rent or Additional Rent or for a constructive or actual eviction of Tenant.
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35.16 Transfer of Landlord's Interest. The term "Landlord" as used in this
Lease, insofar as the covenants or agreements on the part of the Landlord are
concerned, shall be limited to mean and include only the owner or owners of
Landlord's interest in this Lease at the time in question. Upon any transfer or
transfers of such interest, the Landlord herein named (and in the case of any
subsequent transfer, the then transferor) shall thereafter be relieved of all
liability for the performance of any covenants or agreements on the part of the
Landlord contained in this Lease.
35.17 Limitation on Landlord's Liability. If Landlord becomes obligated to
pay Tenant any judgment arising out of any failure by the Landlord to perform or
observe any of the terms, covenants, conditions or provisions to be performed or
observed by Landlord under this Lease, Tenant shall be limited in the
satisfaction of such judgment solely to Landlord's interest in the Building and
the Property or any proceeds arising from the sale thereof and no other property
or assets of Landlord or the individual partners, directors, officers or
shareholders of Landlord or its constituent partners shall be subject to levy,
execution or other enforcement procedure whatsoever for the satisfaction of any
such money judgment.
35.18 Brokerage Fees. Tenant warrants and represents that it has not dealt
with any realtor, broker or agent in connection with this Lease except the
Broker identified in Article 0 above. Tenant shall indemnify, defend and hold
Landlord harmless from and against, and shall be responsible for, any cost,
expense or liability (including the cost of suit and reasonable attorneys' fees)
for any compensation, commission or charges claimed by any other realtor, broker
or agent in connection with this Lease or by reason of any act of Tenant.
35.19 Intentionally Omitted.
35.20 Continuing Obligations. All obligations of Lessee hereunder not
fully performed as of the expiration or earlier termination of this Lease shall
survive the expiration or earlier termination of this Lease, including, without
limitation, all payment obligations with respect to Annual Basic Rent,
Additional Rent and all obligations concerning the condition of the Premises.
35.21 Consent of Landlord and Tenant. Whenever in this Lease the approval
or consent of any party is required or desired, unless otherwise expressly
provided, such party shall not withhold or delay its approval or consent
unreasonably.
35.22 Quiet Possession. So long as there is not in existence an Event of
Default, Tenant may quietly have, hold and enjoy the Leased Premises during the
Lease Term, subject, however, to the matters referred to in Article 0. The
provisions of this Article 0 shall not extend to any disturbance, act or
condition brought about by any tenant in the Building.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date and year first above written.
LANDLORD:
Pivotal Simon Office XVI, L.L.C., an Arizona
limited liability company, formerly known as
Pivotal Simon Pointe, L.L.C.
By: Pivotal Group II, L.L.C., an Arizona
limited liability company, its
Administrative Member
By: Xxxx Xxxxxx, Trustee of the Xxxx Xxxxxx
Trust dated July 30, 1996, its Member
By: Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Its: Trustee
TENANT:
MANAGED CARE SOLUTIONS, INC.,
a Delaware corporation
By: Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Its: CFO and Assistant Secretary
Witness for purposes of
Power of Attorney:
Xxxxx Xxxxxx Xxxxxxx By: Xxxxx X. Xxxxx
----------------------------- -----------------------------------
Witness Name: Xxxxx X. Xxxxx
Name: Xxxxx Xxxxxx Shader Its: President
If Tenant is a CORPORATION, the
authorized officers must sign on behalf
of the corporation and indicate the
capacity in which they are signing. The
Lease must be executed by the president
or vice-president and the secretary or
assistant secretary, unless the bylaws
or a resolution of the board of
directors shall
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otherwise provide, in which event, the
bylaws or a certified copy of the
resolution, as the case may be, must be
attached to this Lease.
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RIDER "1"
Rider 1 to Lease dated September 30, 1996 between Pivotal Simon Office
XVI, L.L.C., formerly known as Pivotal Simon Pointe, L.L.C., an Arizona limited
liability company ("Landlord"), and Managed Care Solutions, Inc., a Delaware
corporation ("Tenant").
1. Option to Extend. Provided that Tenant is not in breach or default of
any of the terms, conditions, covenants, obligations or provisions of the Lease
to which this Rider is attached, and that no event shall have occurred or state
of facts exists which if continued uncured will, with the lapse of time or the
delivery of notice, or both, constitute an Event of Default, then Tenant shall
have, and is hereby granted, the option to extend the Initial Term for one (1)
additional period of five (5) years. Except as set forth in Section 0 of this
Rider, Tenant's occupancy of the Leased Premises during the Renewal Term shall
be governed by all of the terms, conditions, covenants and provisions of the
Lease to which this Rider is attached except that Tenant shall have no further
option to extend the Initial Term after the expiration of the Renewal Term. If
Tenant desires to exercise its option to extend the Initial Term, it must give
Landlord notice in writing ("Option Notice") of its intent to do so at least
eight (8) months, but not more than twenty-four (24) months prior to the
expiration of the Initial Term. For the purposes of the Lease to which this
Rider is attached, the phrase "Lease Term" shall be deemed to refer to the
Initial Term and the Renewal Term to the extent applicable.
2. Amendment to Basic Provisions.
(a) Lease Term. Article 1.11 of the Lease entitled "Lease Term" is
hereby deleted and replaced with the following:
1.11 Lease Term.
(a) Initial Term: Five (5) years;
(b) Renewal Term: Five (5) years.
(b) Annual Basic Rent. Article 1.13 of the Lease entitled "Annual
Basic Rent" is hereby deleted and replaced with the following:
1.13 Annual Basic Rent.
(a) Initial Term:
Rental Rate
Annual Monthly per Rentable
Lease Year Basic Rent Basic Rent Square Foot
---------- ---------- ---------- ------------
1 $484,443.50 $40,370.29 $16.75
2 498,904.50 41,575.38 17.25
3 513,365.50 42,780.46 17.75
4 527,826.50 43,985.54 18.25
5 542,287.50 45,190.63 18.75
Rider 1 - 1
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(b) Renewal Term: Landlord and Tenant shall have thirty (30) days
after Landlord receives the Option Notice within which to agree on the Annual
Basic Rental for the Renewal Term based upon ninety-five percent (95%) of the
"THEN FAIR MARKET RENTAL VALUE OF THE PREMISES" as defined below. If the parties
agree on the Annual Basic Rental for the Renewal Term within thirty (30) days,
they shall amend this Lease by stating the Annual Basic Rental for the Renewal
Term.
3. Calculation of Fair Market Rental Value of the Premises: (a) If they
are unable to agree on the Annual Basic Rental for the Renewal Term within the
thirty (30) day period, then the Annual Basic Rental shall be ninety-five
percent (95%) of the "THEN FAIR MARKET RENTAL VALUE OF THE PREMISES" as
determined in accordance with this Rider.
(b) The "THEN FAIR MARKET RENTAL VALUE OF THE PREMISES" means what a
landlord under no compulsion to lease the Premises and a tenant under no
compulsion to lease the Premises, would determine as rent for the Renewal Term,
as of the commencement of the Renewal Term, taking into consideration the use
permitted under the Lease, the quality, size, shape, design and location of the
Premises within the Building, taking into account concessions and all other
relevant factors. The then fair market rental value of the Premises for the
first year of the Renewal Term will not be less than the Annual Basic Rental and
Parking Charge payable during the last year of the Initial Term.
(c) Within seven (7) days after the expiration of the fifteen (15)
day period set forth in Subsection 1.12 above, Landlord and Tenant shall each
appoint a real estate broker with at least ten (10) full years full-time
commercial brokerage experience in the area in which the Premises are located to
appraise the then fair market rental value of the Premises. If either the
Landlord or the Tenant does not appoint an broker within ten (10) days after the
other has given notice of the name of its broker, the single broker appointed
shall be the sole broker and shall set the then fair market rental value of the
Premises. If two (2) brokers are appointed pursuant to this paragraph, they
shall meet promptly and attempt to set the then fair market rental value of the
Premises. If they are unable to agree within the thirty (30) days after the
second broker has been appointed, they shall attempt to elect a third broker
meeting the qualifications stated in this paragraph within ten (10) days after
the last day the two (2) brokers are given to set the then fair market rental
value of the Premises. If they are unable to agree on the third broker, either
the Landlord or Tenant may petition the presiding civil court judge of the
Maricopa County Superior Court for the selection of a third broker who meets the
qualifications stated in this paragraph. Tenant and Landlord shall each bear
one-half (1/2) of the cost of appointing the brokers and of paying the broker's
fees.
(d) Within thirty (30) days after the selection of the third broker,
a majority of the brokers shall set the then fair market rental value of the
Premises. If a majority of the brokers are unable to set the then fair market
rental value of the Premises within thirty (30) days after selection of the
third broker, the three (3) appraisals shall be averaged and the average shall
be the then fair market rental value of the Premises.
The broker(s) determination of the fair rental value of the Premises shall
contemplate an Annual Basic Rent that increases over the Renewal Term.
4. Definitions. Capitalized terms used in this Rider without definition
shall have the definition assigned to such terms in the Lease to which this
Rider is attached, unless the context requires otherwise.
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52
5. Full Force and Effect. Except as specifically modified by this Rider,
the Lease to which this Rider is attached remains in full force and effect.
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Rider 1 - 3
53
RIDER "2"
Rider 2 to Lease dated May ____, 1996 between Pivotal Simon Office XVI
L.L.C., formerly known as Pivotal Simon Pointe, an Arizona limited liability
company ("Landlord"), and Managed Care Solutions, Inc., a Delaware corporation
("Tenant").
Rider 2 - 1
54
EXHIBIT 10.4
1. Terms and Conditions of Right of First Opportunity to Lease and
Expansion Options. Tenant's right to exercise the rights of opportunity to lease
and/or expansion options described in this Rider "2" shall be conditioned on the
following: (i) there is not then in existence an Event of Default (notice
thereof having been given and any applicable cure period having expired), (ii)
there shall not have been three (3) or more Events of Default prior to Tenant's
exercise of the right of first refusal to lease, right of first opportunity to
lease, or expansion option, as applicable, (iii) the originally named Tenant or
the tenant pursuant to a Permitted Transfer (as defined in Article 0 of the
Lease to which this Rider is attached) shall be in occupancy of all of the
Leased Premises, and (iv) there has not occurred a material adverse change in
Tenant's financial condition from and after the date Tenant executed the Lease.
Tenant's rights to exercise any of the rights and options described herein shall
also be subject to any rights of first refusal or opportunity existing prior to
the date of this Lease, which rights are more particularly described on Annex 1
to this Rider. If a right of first opportunity or option to expand is exercised
by Tenant on or before September 30, 1997, the additional space leased by Tenant
shall be occupied by Tenant upon the same terms and conditions contained in the
Lease with respect to the Leased Premises, including Annual Basic Rent, Lease
Term, renewal option and Tenant Improvement Allowance (but not the Additional
Allowance); provided, however, the Tenant Improvement Allowance shall be reduced
on a straight-line basis (e.g., one-sixtieth (1/60th) each month) commencing on
the Commencement Date. If Tenant exercises a right of first opportunity or
expansion option after September 30, 1997, unless otherwise set forth below,
such additional space shall be leased for a term of not less than three (3)
years and at otherwise prevailing fair-market rental rates, terms and conditions
determined in accordance with the provisions of Paragraph 3 of Rider "1". In the
event that Tenant expands the Leased Premises by exercise of any right of
opportunity to lease or expansion option, the number of covered reserved and
uncovered reserved parking spaces to which Tenant is entitled shall expand
proportionately (i.e. the ratio of parking spaces to square footage leased by
Tenant), unless the lease supplement between Landlord and Tenant in connection
with such expansion provides for a lower ratio of parking spaces.
2. Right of First Opportunity to Lease. In the event all or any portion of
the space in Suites 100A, 110, 145 and 240 (collectively, the "ADDITIONAL
SPACE") (as more particularly described on the floor plan attached hereto as
Annex 3) is not then leased or occupied or all renewal rights held by the
current tenant of any portion of the Additional Space shall have expired without
exercise thereof, prior to Landlord offering the Additional Space for lease,
Landlord shall deliver to Tenant written notice (the "OPPORTUNITY PROPOSAL
NOTICE") which Opportunity Proposal Notice shall set forth the Base Year Costs,
Annual Basic Rent, Additional Rent and Tenant Improvement Allowance at which
Landlord intends to market the Additional Space. Tenant shall have an option
(the "OPTION") exercisable by written notice to Landlord within thirty (30) days
after receipt of the Opportunity Proposal Notice to lease all of the Additional
Space upon the terms and conditions contained in the Opportunity Proposal
Notice. Promptly after Tenant exercises the Option, Landlord and Tenant shall
exercise supplement agreement to the Lease to which this Rider is attached, in a
form satisfactory to Landlord and Tenant, incorporating the Additional Space as
part of the Lease Premises. If Tenant does not timely exercise the Option, or if
Landlord and Tenant do not execute a supplemental agreement to this Lease within
thirty (30) days after notice by Tenant to Landlord of its election to exercise
the Option, the Option shall be deemed waived and Landlord may lease the
Additional Space to third parties provided that the Annual Basic Rent,
Additional Rent and tenant improvement allowance is at least ninety-five percent
(95%) of the Annual Basic Rent and Additional Rent set forth in the Opportunity
Proposal Notice. Prior to entering into a lease with a third party for all or
any
55
portion of the Additional Space, Landlord shall provide Tenant with notice
of the material terms of such Lease. In the event that the Base Year Costs,
Annual Basic Rent, Additional Rent and Tenant Improvement Allowance contained in
the lease between Landlord and any third party to whom Landlord proposes to
lease the applicable Additional Space are not at least ninety-five percent (95%)
of the Base Year Costs, Annual Basic Rent, Additional Rent and Tenant
Improvement Allowance set forth in the Opportunity Proposal Notice, Tenant shall
have five (5) business days to lease the Additional Space on the terms and
conditions set forth in the lease between Landlord and such third party. In the
event Tenant does not agree to lease the Additional Space within such five (5)
business day period, Tenant shall have no further rights of opportunity with
respect to such Additional Space.
3. Expansion Rights.
(a) Expansion Right No. 1. Tenant shall have and is hereby granted
an option to lease approximately twelve thousand twenty-nine (12,029) rentable
square feet comprising Suite 200 on the second floor of the Building (the
"EXPANSION SPACE NO. 1") (as more particularly described on the floor plan
attached hereto as Annex 4) for a lease term to commence not later than February
1, 1997 and terminating on the Expiration Date. If Tenant desires to exercise
its option to lease the Expansion Space No. 1, it must give Landlord notice of
its intent to do so (the "EXPANSION NOTICE NO. 1") no later than October 1,
1996. Promptly after receipt by Landlord of the Expansion Notice No. 1, Landlord
and Tenant shall enter into a supplemental agreement to the Lease to which this
Rider is attached, in a form satisfactory to Landlord and Tenant, incorporating
the Expansion Space No. 1 into the Leased Premises. If Landlord and Tenant do
not execute a supplemental agreement to the Lease to which this Rider is
attached within thirty (30) days after notice by Tenant to Landlord of its
election to exercise the Expansion Right No. 1, the expansion right shall be
deemed waived.
(b) Expansion Right No. 2. Tenant shall have and is hereby granted
an option to lease Suite 100A located on the first floor of the Building (the
"EXPANSION SPACE NO. 2") (as more particularly described on the floor plan
attached hereto as Annex 5) for a term to commence sixty (60) days after the
date the existing tenant vacates Suite 100A, subject to the following terms and
conditions: (i) Tenant shall have furnished Landlord written notice exercising
such option, (ii) within thirty (30) days of delivery of such notice Landlord
and Tenant shall have executed a supplement to the Lease, in a form satisfactory
to Landlord and Tenant, incorporating Suite 100A into the Leased Premises, and
(iii) Landlord shall, within thirty (30) days after execution of such supplement
to the Lease to which this Rider is attached, have entered into an agreement
pursuant to which the existing tenant of Suite 100A agrees to relocate to other
space within the Building.
(c) Expansion Right No. 3. Tenant shall have and is hereby granted
an option to lease all or any portion of the space in Suites 110 and 240 (the
"EXPANSION SPACE NO. 3") as more particularly described on the floor plan
attached hereto as Annex 6) for a term to commence on the date the applicable
existing tenants vacate all or such portion of Suites 110 and 240, respectively,
as the case may be. Tenant's exercise of its option to lease all or any portion
of the Expansion Space No. 3 shall be subject to the following terms and
conditions: (i) Tenant shall have furnished Landlord written notice exercising
such option, (ii) within thirty (30) days after delivery of such notice Landlord
and Tenant shall have executed a
56
supplement to the Lease to which this Rider is attached, in a form satisfactory
to Landlord and Tenant, incorporating all or such portion of Suite 110 and 240
into the Leased Premises, (iii) Landlord shall, within thirty (30) days after
execution of such supplement to the Lease, have entered into an agreement
pursuant to which the existing tenants of all or such portion of Suites 110 and
240 agree to relocate to other space within the Building, and (iv) Tenant shall
reimburse Landlord for all reasonable costs and expenses (including reasonable
attorneys' fees) incurred by Landlord in connection with relocating such tenants
to other space within the Building.
4. Landlord shall use commercially reasonable efforts to relocate tenants
occupying space subject to any of the rights of opportunity to lease and/or
expansion options described in this Rider "2", so as to make such space
available for offer to Tenant pursuant to the terms hereof.
5. Definitions. Capitalized terms used in this Rider without definition
shall have the definition assigned to such terms in the Lease to which this
Rider is attached, unless the context requires otherwise.
6. Full Force and Effect. Except as specifically modified by this Rider,
the Lease to which this Rider is attached remains in full force and effect.
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Landlord's Initials Tenant's Initials
