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EXHIBIT 10.12
COMMENCEMENT DATE CERTIFICATE
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This Commencement Date Certificate is entered into as of this 17th
day of February 1998 between 0000 X. Xxxxxxxx Xxxx Limited Partnership, an
Arizona limited partnership ("Landlord") and Midland Credit Management, Inc., a
Kansas corporation ("Tenant").
RECITALS
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Landlord and Tenant entered into that Net Industrial Lease (the
"Lease") covering the premises located at 0000 X. Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, consisting of approximately 30,000 square feet (the "Premises").
AGREEMENT
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1. Defined Terms. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Lease.
2. Confirmation of Lease Commencement. Landlord and Tenant confirm
that the Effective Date, pursuant to Article 4 of the Lease, is
March 1, 1998, and that the Termination Date of the Lease is
February 28, 2003.
3. Effect of the Commencement Date Certificate. Except as expressly
amended by this Commencement Date Certificate, all the terms,
covenants and conditions of the Lease remain in full force and
effect.
Landlord and Tenant hav executed this Commencement Date
Certificate as of the date written above.
LANDLORD: TENANT:
0000 X. XXXXXXXX XXXX LIMITED MIDLAND CREDIT MANAGEMENT,
PARTNERSHIP, INC.,
an Arizona limited partnership A Kansas corporation
By: San Salvador Management, L.L.C., By: Xxxxx Xxxxxxxx
an Arizona limited liability ---------------
company Its: President
Its General Partner -------------
By:-------------
Its Principal
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NET INDUSTRIAL LEASE
INFORMATION SCHEDULE
This Information Schedule is a part of the Lease between the parties
named below. The information in this Schedule is further explained and detailed
in the rest of the Lease, most particularly in the referenced Lease paragraphs.
INFORMATION ARTICLE OR
PARAGRAPH
DATE OF LEASE: November 19, 1997
PARTIES: #1, 20
LANDLORD: 0000 X. Xxxxxxxx Xxxx Limited Partnership
c/o Scottsdale Property Management 97, L.L.C.
0000 X. Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
FAX: (000) 000-0000
TENANT: Midland Credit Management, Inc. #1, 20
000 X. Xxxxx, Xxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
FAX: (000) 000-0000
PREMISES: Building consisting of approximately #2(a)
30,000 Square Feet located at
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Adjacent Site Improvements: #2(b)
Parking areas Exhibit "A"
ALLOWANCES: Tenant Improvements #3
Exhibit "C"
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TERM; The "Lease Term" shall begin on the Effective #4
RENEWAL OPTION: Date and end at midnight on the last day of Exhibit "F"
the fifth year following the Effective Date
(the "Termination Date"), unless sooner
terminated or extended pursuant to the terms
hereof. Renewal Option: As set forth in
Exhibit "F".
FIRST RIGHTS OF As set forth in Exhibit "H". Exhibit "H"
REFUSAL:
RENTS: Fixed Minimum Rent: As set forth in #5
Exhibit "E". Exhibit "E"
SECURITY DEPOSIT: $18,600.00 #5.4
PERMITTED USES: General Office #6.1
LANDLORD'S BROKER: Xxx & Associates #21
TENANT'S BROKER: None #21
ADDITIONAL EXHIBITS: The following Exhibits are attached to and
made a part of this Lease.
"A" Description of Property
"B" Intentionally Omitted
"C" Tenant Improvements
"D" Dangerous/Hazardous Chemicals and Materials
"E" Fixed Minimum Rent Schedule
"F" Renewal Option
"G" Tenant Removal Items
"H" First Rights of Refusal
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LEASE PROVISIONS
1. Parties. This Lease is made as of the date shown in the Information
Schedule, between the parties as provided in said Schedule.
2. Premises, Property. In consideration of the agreements in this Lease
and other consideration paid, Landlord leases to the Tenant and Tenant
leases from Landlord:
(a) the "Premises" which consists of the building identified in the
Information Schedule, which building is located on the Property
described in Exhibit "A" (the "Property") (including square footage
amount(s) which are agreed to and accepted by the parties), and as
depicted on the revised Preliminary Space Plan of the Premises dated
October 22, 1997, which was prepared by XXxxx and has been approved by
Landlord and Tenant (the "Space Plan").
(b) the nonexclusive right to use the "Adjacent Site Improvements"
described in Exhibit "A", if any; and
(c) the nonexclusive right to use, together with Landlord and other
tenants (if any) of the Property, the driveways, parking areas (to the
extent not leased to other tenants for their sole use), and grounds.
Tenant will be entitled to the use of 150 parking spaces. All parking
spaces surrounding the Premises will be reserved for Tenant's use.
Other parking will be random in the adjacent parking lot. Tenant will
not be permitted to use parking spaces surrounding the building located
at 0000 X. Xxxxxxxx Xxxx.
3. Tenant Improvements. Landlord will complete tenant improvements to the
Premises, as depicted on the Space Plan and set out in Exhibit "C"
hereto (the "Tenant Improvements"), which Tenant Improvements will be
completed on or prior to the Effective Date at Landlord's sole expense.
4. Term: Commencement and Termination; Effective Date. The Term of the
Lease shall commence and terminate as provided in the Information
Schedule. This Lease is not terminable by Tenant, except as expressly
stated herein. The "Effective Date" is the later of (i) the date upon
which the Tenant Improvements (as described in Article 3 hereof) are
substantially complete, or (ii) January 1, 1998. The term
"substantially complete" as used in this Article 4 means that state of
completion which will allow Tenant to commence its business operations
at the Premises without material interference from Landlord's
contractor. Landlord shall provide Tenant with written notice that the
Tenant Improvements are substantially complete. Landlord anticipates
that the Tenant Improvements will be substantially complete prior to
January 1, 1998. The parties shall confirm the Effective Date in
writing.
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5. Rents, Security Deposits.
5.1(a) Fixed Minimum Rent. Tenant agrees to pay Landlord Fixed Minimum Rent
for the Premises in the amounts listed on Exhibit "E" hereto. The Fixed
Minimum Rent will be paid in monthly installments, in advance, without
offset, deduction or prior demand, on the first day of each month of
the original and any extended Lease Term. The Fixed Minimum Rent for
the first month of the Term will be paid by Tenant upon execution of
this Lease.
5.1(b) Additional Rent. All fees, charges, costs, expenses or other sums
payable by Tenant hereunder, other than Fixed Minimum Rent, whether or
not designated as such, shall be considered "Additional Rent". For
purposes hereof, the term "Rent" shall include Fixed Minimum Rent or
Additional Rent, or both, as the context may require. It is further
understood and agreed that, except as may be expressly set forth
herein, Landlord shall at all times be entitled to receive the Rent
payable hereunder irrespective of any damage or destruction to the
Premises or the Property or the impairment of any services or utilities
thereto and Tenant shall not be entitled to terminate this Lease nor
shall Tenant be entitled to an abatement of Rent by reason of said
causes. Tenant hereby acknowledges the foregoing and expressly waives
its rights under A.R.S. Section 33-343 or any statute of similar
effect.
Landlord and Tenant contemplate that the Rent provided for herein is a
"net" Rent to Landlord, and that, except as provided otherwise in the
Lease, all maintenance costs and any and all other charges, assessments
and expenses attributable to the Premises or the operation thereof,
whether or not expressly provided for in this Lease (collectively, the
"Premises Costs"), shall be solely the responsibility of, and performed
and paid for by, Tenant. Should Landlord incur any reasonable expense
for Premises Costs, Tenant shall reimburse Landlord in full within ten
business days after receipt by Tenant of each invoice therefor.
In addition to the Premises Costs, Tenant agrees to pay: (A) forty-nine
percent (49%) of the following operating expenses for the Property
(collectively, the "Property Costs"): (i) real property taxes payable
by Landlord pursuant to Paragraph 5.2 hereof, (ii) the cost of
maintaining insurance payable by Landlord pursuant to Article 8 hereof,
and (iii) the cost of any common area charges payable by Landlord
pursuant to Paragraph 7.2 hereof; (B) Tenant's pro rata share of the
cost of a service contract, if any, for the repair and maintenance of
the HVAC system, pursuant to Paragraph 7.2 hereof; (C) Tenant's
pro-rata share of the cost of jointly metered utilities, if any,
pursuant to Article 11 hereof; and (D) an administrative fee equal to
two percent (2%) of the Fixed Minimum Rent for the Premises (the
"Administrative Fee"). Accordingly, during each month of the Term of
this Lease, on the same day that Fixed Minimum Rent is due hereunder,
Tenant shall pay Landlord an amount equal to 49% of 1/12 of the
estimated annual Property Costs plus 1/12 of the Administrative Fee.
The initial monthly payments for Property Costs are based upon the
projected amounts for the year in question. Monthly payments for
Property Costs may be increased or decreased annually to reflect
changes in the projected Property Costs. If Tenant's total Property
Costs payments are less than 49% of the actual Property Costs for such
payment period(s),
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Tenant shall pay the difference to Landlord with Tenant's next monthly
Rent payment; provided, however, if no further monthly Rent payment is
scheduled to be paid by Tenant, then Tenant shall pay the difference
within ten (10) business days after demand therefor. If Tenant's total
Property Costs payments are more than 49% of the actual Property Costs
for such payment period(s), such overage shall be credited against
Tenant's next monthly payment(s); provided, however, to the extent such
overage exceeds further amounts owed by Tenant, Landlord shall refund
such overage excess directly to Tenant. Within ninety (90) days after
the end of each Lease year, or as soon thereafter as is reasonably
practical, Landlord shall provide Tenant with a statement showing
actual Property Costs for the preceding Lease year.
5.1(c) Rent Tax. Together with, and in addition to, any payment of Fixed
Minimum Rent or any other sums payable hereunder by Tenant, Tenant
shall also pay to Landlord any excise, sales or transaction privilege
tax levied by any governmental authority upon Landlord (except
Landlord's income tax) in connection with or as a result of any
payments required to be made by Tenant hereunder.
5.1(d) Advance Rental Payment. If twice during any period of 12 consecutive
calendar months during the Term Tenant shall not timely remit to
Landlord any Fixed Minimum Rent or Additional Rent as and when required
hereunder, then Landlord shall have the express right to require that
Tenant pay all Fixed Minimum Rent thereafter due in advance on a
quarterly basis. Notice of election by Landlord under this Paragraph
shall be delivered to Tenant in writing. Not later than five days after
receipt of such notice, Tenant shall remit to Landlord all sums
including Fixed Minimum Rent, Additional Rent or both, then due and
owing under this Lease. Concurrently with the payment of such
arrearages, Tenant shall also pay the Fixed Minimum Rent owed for that
three-month period commencing as of the first day of the calendar month
next ensuing after the notice contemplated by this Paragraph is
delivered. Thereafter, unless otherwise advised by Landlord in writing
that the election made pursuant to this Paragraph has been revoked,
Tenant shall continue to pay Fixed Minimum Rent in advance on a
quarterly basis without further demand therefor by Landlord. By its
execution hereof, Tenant acknowledges, agrees and confirms that the
right granted Landlord pursuant to this Paragraph is being made in lieu
of a personal guaranty by any officer, director, shareholder or other
person involved with Tenant to secure the performance by Tenant of its
rental obligations hereunder. No interest shall be payable by Landlord
on sums received pursuant to this Paragraph nor shall Landlord be
required to keep such sums in a separate account. Provided no default
by Tenant has occurred and is continuing, sums received pursuant to
this Paragraph shall be applied by Landlord against the Fixed Minimum
Rent obligations of Tenant hereunder as and when such obligations
occur.
5.2 Real Property Taxes. Landlord agrees to pay all real property taxes
applicable to the Property. Landlord shall have the right to employ a
tax consulting firm to attempt to assure a fair tax burden on the
Property within the applicable taxing jurisdiction. Tenant agrees to
pay forty-nine percent (49%) of the cost of such consultant, provided
that the real property taxes applicable to the Property are reduced by
more than the amount of the cost of such consultant.
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5.3 Rent Obligations Independent; Abatement; Proration; Where Payable; Late
Charges. The Rent obligations are independent of any other obligations
of Tenant or Landlord, and Tenant is not entitled to any abatement or
reduction in Rent except as expressly provided. Tenant waives the
benefit of any statute which would alter this agreement of the parties.
Rent due for any period which is less than one month will be prorated.
Rent is payable to Landlord at the address listed in the Information
Schedule or such other places the Landlord may designate from time to
time in writing. A handling fee in the amount of $200 or five percent
of the sum not timely received by Landlord, whichever is less, shall be
due on any Rent not paid within ten days of the due date, irrespective
of whether Landlord elects to pursue actions under Article 13 as a
consequence of such late payment.
5.4 Security Deposit. Upon execution of this Lease, Tenant shall deposit
with Landlord a cash Security Deposit in the amount provided in the
Information Schedule. Landlord may apply all or part of the Security
Deposit to any unpaid Rent or other charges due from Tenant or to cure
any default of Tenant. If Landlord uses any part of the Security
Deposit, Tenant shall restore the Security Deposit to its full amount
within ten days after Landlord's written request. Tenant's failure to
comply with this provision shall be a material default. No interest is
payable on the Security Deposit. Landlord is not required to keep the
Security Deposit in a separate account and no trust relationship is
created as to the Security Deposit.
6. Use.
6.1 Use. Tenant covenants and agrees to use the Premises for no purpose
other than those listed in the Information Schedule.
6.2 Compliance with Law. Tenant, at its expense, will comply promptly with
all statutes, ordinances, rules and regulations, orders and
requirements (including the recommendations of fire rating
organizations, Tenant's and Landlord's underwriters and insurance
companies), in effect during the Lease Term regulating the use of the
Premises by Tenant; excluding, however, those requiring structural
changes or substantial modification of the Premises. Tenant will not
carry on, nor permit any dangerous or offensive activity so as to
create damage to the real property upon which the Premises are located,
waste, a nuisance, or, disturbance to other tenants.
6.3 Environmental Protections. Tenant acknowledges that there are in effect
federal, state, and local laws, regulations, and guidelines, and that
additional and other laws, regulations, and guidelines may hereinafter
be enacted to take effect relating to or affecting the Property, and
concerning the impact on the environment of construction, land use,
maintenance and operation of structures, and the conduct of business.
Tenant will not cause or permit to be caused, any act or practice, by
negligence, omission, or otherwise that would adversely affect the
environment, or do anything or permit anything, to be done that would
violate any of said laws, regulations or guidelines. Tenant agrees to
comply with Exhibit "D" ("Control of Dangerous/Hazardous Chemicals and
Materials"). Tenant shall indemnify, defend, protect and hold Landlord,
its employees, agents, partners, members, officers and directors,
harmless from and against all claims, accidents, suits, proceedings,
judgments, losses, costs, damages, liabilities (including, without
limitation, sums paid in settlement of claims), deficiencies, fines,
penalties, punitive damages or expenses
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(including, without limitation, reasonable attorneys', experts', and
consultants' fees, investigation and laboratory fees, court costs and
litigation expenses) resulting from any adverse effect to the
environment caused by Tenant, directly or indirectly resulting from the
presence of any Hazardous Materials in, on, or under the Premises or
Property that were introduced to the Premises or Property by Tenant
during the Term hereof. All obligations of Tenant under this Paragraph
6.3 shall survive the expiration or earlier termination of the Lease.
Landlord shall indemnify, defend, protect and hold Tenant, its
employees, agents, partners, members, officers and directors, harmless
from and against all claims, accidents, suits, proceedings, judgments,
losses, costs, damages, liabilities (including, without limitation,
sums paid in settlement of claims), deficiencies, fines, penalties,
punitive damages or expenses (including, without limitation, reasonable
attorneys', experts', and consultants' fees, investigation and
laboratory fees, court costs and litigation expenses) resulting from
any adverse effect to the environment caused by Landlord, directly or
indirectly resulting from the presence of any Hazardous Materials in,
on, or under the Premises or Property that were introduced to the
Premises or Property by Landlord prior to the Term hereof. All
obligations of Landlord under this Paragraph 6.3 shall survive the
expiration or earlier termination of the Lease.
6.4 Condition of Premises. Tenant accepts the Premises in the condition
existing as of the date of this Lease. Tenant accepts the Premises
subject to all applicable zoning, municipal, county, state and federal
laws, ordinances and regulations governing use of the Premises and to
any covenants or restrictions of record, and matters disclosed by any
attached exhibits. Tenant acknowledges that Landlord and Landlord's
agent have not made any representation or warranty as to the
suitability of the Premises for Tenant's business.
7. Maintenance, Repairs and Alterations.
7.1 Tenant's Obligations. By entry hereunder, Tenant shall be deemed to
have accepted the Property as being in good condition and repair.
Except to the extent Landlord is specifically responsible therefor
under this Lease, Tenant shall, at Tenant's sole cost and expense, make
all repairs to, and provide all maintenance for the Premises and all
improvements therein and thereon. At all times during the Term, Tenant
shall keep the Premises in good order and repair, and in a safe, clean,
neat and sanitary condition. Except to the extent Landlord is
specifically responsible therefor under this Lease, Tenant's
obligations of maintenance and repair shall include by way of
illustration, and not limitation, the maintenance and repair of any
storefront, doors, window casements, glazing, plumbing, pipes,
electrical wiring as well as the maintenance, and repair of those
conduits and the heating, ventilating and air conditioning ("HVAC")
system servicing the Premises (when there is an air conditioning
system). Tenant shall, upon the expiration or sooner termination of
this Lease, surrender the Premises to Landlord in good condition, broom
clean, ordinary wear and tear excepted. Any damage to the Premises
caused by Tenant's use of the Premises shall be repaired at the sole
cost and expense of Tenant. If Tenant refuses or fails to commence
repairs or maintenance for which Tenant is responsible under this Lease
within a reasonable time, but not later than ten days following written
notice or demand made by Landlord, or to adequately and diligently
complete such repairs or maintenance within a reasonable time
thereafter, Landlord may enter the Premises and perform such obligation
without liability to Tenant for any loss or damage to Tenant caused
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thereby, and Tenant shall pay to Landlord, on demand, as Additional
Rent, the cost thereof plus 15% of such cost for Landlord's overhead
and supervision. Such sums shall also bear interest at the rate
provided in Paragraph 24.10 from the date advanced until repaid.
Landlord may, but shall not be obligated to, repair, at the expense of
Tenant, all damage or injury to the Premises, or to the Property or to
its fixtures, appurtenances or equipment, caused by Tenant or its
officers, agents, employees, contractors, visitors or licensees. Tenant
agrees that the performance of any maintenance, repair or replacements
by the Landlord pursuant to this Paragraph 7.1 shall not constitute a
re-entry of the Premises by Landlord, nor a breach of any covenant of
quiet enjoyment contained in this Lease.
Tenant agrees to store trash in suitable containers outside the
building where the Premises is located ("Building"). Tenant agrees not
to store goods, pallets, drums, or any other materials outside the
Building in any manner so as to be visible from any street or walkway
adjacent to the Building.
Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which such floor was designed to
carry and which is allowed by law. Use by Tenant of any mezzanines for
storage is at Tenant's sole risk and Tenant agrees to indemnify
Landlord from any claims resulting from any such use.
In the event Landlord designates specific parking areas within the
parking and loading areas, Tenant will cause its employees, agents, and
invitees to park only in the designated areas.
Except as otherwise permitted hereunder, no repair or servicing of any
motorized vehicle shall be allowed on the Property or in any parking or
loading areas, roadways, or service areas within the Property. No
vehicle (including equipment, trailers, and machinery) shall be
abandoned or disabled or in a state of non-operation or disrepair upon
the property of the Landlord, and Tenant shall enforce this restriction
against Tenant's employees, agents, and invitees. Tenant shall have the
right to service its vehicles within the Property so long as the
vehicle being serviced is disabled only temporarily, i.e. for a period
less than 48 hours, and provided further that such vehicle is not
visible from any street or walkway adjacent to the Property. Should
Landlord determine that a violation of this restriction has occurred,
Landlord shall have the right to cause the offending vehicle to be
removed and all costs of such removal shall be the obligation of the
Tenant responsible for such vehicle within ten days of written notice
to Tenant.
7.2 Landlord's Obligations. Unless caused by Tenant or its officers,
agents, employees, contractors, visitors or licensees, and subject to
the provisions of Article 9 hereof, for the first six (6) months of the
Term of the Lease, Landlord shall, at Landlord's sole cost and expense,
(i) maintain the structural soundness of the roof, foundation and
exterior walls of the Premises, and of the air conditioning units
servicing the Premises, in good repair, normal wear and tear excepted,
and (ii) maintain the electrical, plumbing and HVAC systems servicing
the Premises. Thereafter, any such costs or expenses (other than such
structural replacement costs covered under clause (i) above) shall be
Premises Costs in accordance with the provisions of Paragraph 5.1(b)
hereof. Tenant shall immediately give Landlord written notice of defect
or need for repairs, after which Landlord shall have
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reasonable opportunity to repair same or cure such defect. It is
expressly understood that Landlord may obtain a service contract for
the repair and maintenance of the HVAC system, which maintenance
contract shall conform to the requirements under the system's warranty,
if any. Notwithstanding any other provision herein to the contrary,
Landlord hereby agrees that all HVAC units serving the Premises shall
be in working order and otherwise operational as of the Date of
Occupancy.
Subject to the provisions of Article 9 hereof, Landlord shall be
responsible for the operation, maintenance, and repair of the common
areas of the Property in good condition, normal wear and tear excepted,
and the costs or expenses therefor (including any replacement costs)
shall be Property Costs in accordance with the provisions of Paragraph
5.1(b) hereof.
7.3 [Intentionally omitted.]
7.4 Surrender of Premises. At the end of the Term, or any other termination
of the Lease, Tenant will return the Premises in good, clean condition
and operating order, after completing all maintenance and replacement
which is Tenant's responsibility. Damage by ordinary wear and tear is
excepted to the extent that it is not part of Tenant's obligation to
maintain and replace. Extraordinary wear and tear due to Tenant's use
of the Premises is the responsibility of Tenant. Damage to the Premises
caused by Paragraph 7.5(c) removals will be repaired by Tenant. Tenant
shall notify Landlord in writing at least 120 days prior to vacating
the Premises and shall within 30 days prior to vacating arrange to meet
with Landlord for a joint inspection of the Premises prior to vacating.
If Tenant fails to give such notice or to arrange for such inspection,
then Landlord's inspection of the Premises shall be deemed correct for
the purpose of determining Tenant's responsibility for repairs and
restoration of the Premises.
7.5 Alterations and Additions.
7.5(a) Consent. Without Landlord's prior written consent, Tenant shall not
make any alterations or improvements to the Premises, nor shall Tenant
make any changes to the exterior of the Premises, or any other
structure within the Property. Landlord may condition its consent with
any of the following:
(i) Tenant's agreement to remove any alterations or improvements
upon termination, and to restore the Premises or Property to
its prior condition (if requested to do so by Landlord).
(ii) A lien and completion bond equal to one and one-half times the
estimated cost of improvements.
(iii) Insurance necessary to protect both parties while work is in
progress.
(iv) Waivers of Liens from all contractors or sub-contractors
involved in the alterations or improvements.
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7.5(b) Liens. Claims for, or purporting to be for, labor or materials
furnished to Tenant shall be paid by Tenant when due, or secured by
bond, so as to immediately discharge any liens filed against the
Premises or Property. In the event Tenant does not discharge any such
liens, Landlord shall have the right, but not the obligation, to
discharge such liens. Any such amount paid or incurred by Landlord
shall be immediately due and payable as additional rent by Tenant to
Landlord together with interest at the rate indicated in Paragraph
24.10 from the date of payment by Landlord until paid by Tenant.
7.5(c) Surrender or Removal of Alterations. Unless removal is required by
Landlord, at Landlord's option, all alterations or improvements,
irrespective of whether any of such personalty shall be installed
within the Premises so as to constitute a fixture therein, will become
the property of Landlord and will be surrendered with the Premises at
the end of the Lease Term or other termination, without payment.
Machinery, trade fixtures, furniture, equipment or other personal
property acquired by Tenant with Tenant's separate funds shall remain
the property of Tenant and may be removed by Tenant subject to
Paragraph 7.4. Additionally, all interior appointments made or
installed by Tenant at the Premises during the Term hereof, including,
without limitation, any millwork, cabinetry or partition walls, shall
remain at the Premises upon the expiration or sooner termination of
this Lease and shall be the property of Landlord except to the extent
that any of such items are identified on Exhibit "G" hereto (the
"Tenant Removal Items"). Provided no event of default by Tenant then
exists hereunder, Tenant shall have the right to remove the Tenant
Removal Items from the Premises upon the expiration of or sooner
termination of this lease if such removal can be effectuated without
causing material damage to the Premises which cannot be repaired. All
damage sustained by the Premises upon any such removal, whether such
damage is material or otherwise, shall be paid for by Tenant to
Landlord upon demand.
8. Insurance.
8.1 Liability Insurance. During the Lease Term, Tenant will maintain a
policy of 'workers' compensation insurance and a broad form policy of
comprehensive general liability insurance insuring Landlord and Tenant
against liability arising out of the use, occupancy or maintenance of
the Premises. The insurance will be for not less than $2,000,000
combined single limit personal injury and property damage. The limits
of the insurance will not limit the liability of Tenant. The policy
will contain cross-liability endorsements, if applicable, and will
insure Tenant's performance of the indemnity provisions of Paragraph
8.5.
8.2(a) Casualty Insurance. During the Lease Term, Landlord will maintain
property damage liability insurance including damage by fire, sprinkler
damage, vandalism, malicious mischief and all perils customarily
covered under extended coverage endorsements. Such insurance shall be
in an amount equal to the replacement cost of the Premises, except for
a commercially reasonable deductible. During the Lease Term, Tenant
will maintain fire and extended coverage insurance covering the
replacement cost of (i) all alterations, additions, partitions, and
improvements installed or placed on the Premises by Tenant or by
Landlord on behalf of Tenant, and (ii) all of Tenant's personal
property contained within the Premises. Landlord's policy will be
excess over Tenant's policies.
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8.2(b) Payment of Premiums; Insurance Policies. If Tenant fails to maintain
the required insurance, Landlord may, but is not obligated to, maintain
the insurance at Tenant's expense. Each insurance policy shall
expressly provide that it is not subject to invalidation of the
Landlord's interest by reason of any act or omission on the part of
Tenant.
8.2(c) Tenant's Personal Property. Tenant assumes all risk of loss or damage
to Tenant's Property. Tenant assumes the risk that loss or damage to
Tenant's Property, to the Premises or to any other property may result
in loss of income, profits or good will to the business of Tenant or
other persons interested in Tenant's Property. Tenant releases and
holds Landlord harmless from liability for these losses or damage,
except if arising out of Landlord's gross negligence or willful
misconduct. Tenant's Property includes all goods, equipment, inventory,
merchandise, records and other personal property and all fixtures,
improvements and betterments placed in or about the Premises, belonging
to Tenant or any person connected with, or claiming under or through
Tenant. Tenant agrees to indemnify Landlord and save it harmless from
all loss or claims, including reasonable attorneys' fees and costs in
defending a claim, arising, out of loss or damage to Tenant's Property
belonging to others, except if arising out of Landlord's gross
negligence of willful misconduct. Landlord means Landlord, its
employees and agents. Tenant shall provide insurance to the extent of
not less than 90% of the fair market value of Tenant's Property as
appraised by Tenant's insurer(s), with an agreed amount endorsement.
Tenant, at its sole cost and expense, shall obtain the insurance
coverages necessary to provide protection for the risks and obligations
to indemnify assumed by Tenant and shall maintain such insurance for
the Lease Term. Tenant agrees to notify each insurance carrier of
Tenant's assumption of risk, release and indemnification stated above.
Tenant acknowledges that its insurance coverages could be voided or
otherwise adversely affected by the requirements of this Paragraph
8.2(c) unless the insurance carrier has waived its right of subrogation
or has otherwise agreed to the above assumption of risk, release and
hold harmless agreement and indemnification.
8.3(a) Tenant's Insurance Policies. Insurance carried by Tenant will be with
responsible carriers acceptable to Landlord and licensed in the State
of Arizona. Tenant will deliver to Landlord certified copies of the
policies of insurance or certificates evidencing the existence and
amounts of the insurance. No policy shall be cancelable or subject to
reduction of coverage or other modification except after 30 days prior
written notice to Landlord. Tenant shall, at least 30 days prior to the
expiration of the policies, furnish Landlord with renewals or "Binders"
for the policies, or Landlord may order the required insurance and
charge the cost to Tenant pursuant to Paragraph 23. All policies shall
name Landlord, any person, firm, or corporation designated by Landlord,
and Tenant, as co-insureds, and shall contain or provide for such
loss-payable endorsements as may be required by the holder of any
mortgage or deed of trust constituting a lien upon the Property or any
part thereof, including the Premises. All policies shall be written as
primary policies, not contributing with and not in excess of coverage
which Landlord may carry. All such policies shall contain a provision
that Landlord, although named as an insured, shall nevertheless be
entitled to recover under such policies for any loss occasioned to it,
its servants, agents, and employees by reason of the negligence of
Tenant. All such insurance shall provide that the coverage afforded
shall not be affected by the performance of any work in or about the
Premises.
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8.3(b) Increased Risk. Tenant will not do anything or permit anything to be
done or any hazardous condition to exist ("Increased Risk") which shall
invalidate or cause the cancellation of the insurance policies carried
by either Tenant or Landlord. If Tenant does or permits any Increased
Risk which causes an increase in the cost of Landlord's insurance
policies then Tenant shall reimburse Landlord pursuant to Paragraph 23
for additional premiums attributable to any act, omission or operation
of Tenant causing the increase in the premiums, including, but not
limited to, non-compliance with recommendations under Paragraph 6.2.
Payment of additional premiums will not excuse Tenant from terminating
or removing the Increased Risk unless Landlord agrees in writing.
Absent agreement, Tenant shall promptly terminate or remove the
Increased Risk.
8.4 Waiver of Subrogation on Property Policies. Each party releases the
other party from any and all liability or responsibility (to the other
party or anyone claiming through or under them by way of subrogation or
otherwise) for loss or damage to property resulting from causes insured
against, even if such casualty has been caused by the fault or
negligence of the other party, or anyone for whom such party may be
responsible.
8.5 Indemnity. Except if arising out of Landlord's gross negligence or
willful misconduct, Tenant shall indemnify and hold harmless Landlord,
its agents and employees, from and against any and all claims arising
from: (a) Tenant's use of the Premises, (b) the conduct of Tenant's
business or anything else done or permitted by Tenant to be done in or
about the Premises or elsewhere in the Property, (c) any breach or
default in the performance of Tenant's obligations under the Lease, or
arising from any negligence of the Tenant, or Tenant's agents,
contractors or employees. Tenant shall defend Landlord against all
costs, attorneys' fees, expenses and liabilities incurred in the
defense of any such claim, action or proceeding. In case any action or
proceeding is brought against Landlord by reason of a claim, Tenant,
upon notice from Landlord, shall defend the same at Tenant's expense by
counsel satisfactory to Landlord. Tenant assumes all risk of damage to
property or injury to persons, in or about the Premises arising from
any cause and Tenant waives all such claims against Landlord, except
claims due to Landlord's gross negligence or willful misconduct. The
liability of Tenant to indemnify Landlord, its agents and employees,
shall not extend to any matter against which Landlord shall be
effectively protected by insurance, provided that if any liability
shall exceed the amount of effective and collectable insurance, the
liability of Tenant shall apply to the excess. Whether the insurance is
"effective" depends in part, but not by way of limitation, on the
absence of any defense to coverage made by the insurer.
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9. Casualty Damage.
9.1(a) Notice; No Repairs Elected. If the Premises or any part of the Premises
should be damaged or destroyed by fire or other peril, Tenant
immediately shall give written notice to Landlord. If the Premises
should be totally destroyed by any peril or if they should be so
damaged thereby that, in Landlord's estimation, rebuilding or repairs
cannot be completed within ninety (90) days after the date of such
damage, this Lease shall terminate and the Rent shall be abated during
the unexpired portion of this Lease, effective upon the date of the
occurrence of such damage.
9.1(b) Repairs Elected. If the Premises or any part of the Premises should be
damaged by any peril, and in Landlord's estimation, rebuilding or
repairs can be substantially completed within ninety (90) days after
the date of such damage (the "Repair Period"), this Lease shall not
terminate, and Landlord shall restore the Premises to substantially its
previous condition, except that, other than the Tenant Improvements,
Landlord shall not be required to rebuild, repair or replace any part
of the partitions, fixtures, additions and other improvements that may
have been constructed, erected or installed in, or about the Premises
or for the benefit of, or by or for Tenant. Rent shall be abated during
such portion of the Repair Period, if any, that the Premises are
unusable by Tenant for the conduct of its business operations. If such
repairs and rebuilding have not been substantially completed within
ninety (90) days after the date of such damage, Tenant, as Tenant's
exclusive remedy, may, as the case may be, terminate this Lease by
delivering written notice of termination to Landlord in which event the
rights and obligations hereunder shall cease and terminate.
9.2 Lenders. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied
to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made known by any such
holder, whereupon all rights and obligations hereunder shall cease and
terminate.
9.3 Waiver. Anything in this Lease to the contrary notwithstanding,
Landlord and Tenant hereby waive and release each other of and from any
and all rights of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or
damage that may occur to the Premises, improvements to the Premises, or
personal property within the Premises, for any reason regardless of
cause or origin. Each party to this Lease agrees immediately after
execution of this Lease to give each insurance company, which has
issued to it policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this
subparagraph, and if necessary, to have the insurance policies properly
endorsed.
9.4 Damage During Last Six Months of Term. If casualty damage occurs to the
Premises or any part thereof during the last six months of the Lease
Term, Landlord may terminate this Lease irrespective of the extent of
the damage. If Tenant has an unexpired option to extend or renew the
Lease, the option to extend or renew must be exercised within 20 days
of the casualty. If the option is exercised, Landlord may not cancel
unless there
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is substantial damage. If the option is not exercised, the option is
terminated and Landlord may terminate the Lease.
10. Personal Premises Taxes. Tenant will timely pay all taxes assessed
against trade fixtures, furnishings, equipment and all other personal
property of Tenant. Tenant will cause these items to be assessed and
billed separately from the real property of Landlord.
11. Utilities. Tenant will pay directly to the appropriate supplier, the
cost of all water/sewer, gas, heat, light, electrical, telephone,
refuse disposal and other utilities and services supplied to the
Premises, and any taxes on those bills. If any services are not
separately metered, Tenant will pay as Additional Rent a proportion of
all jointly-metered utilities used by any other occupants of the
Premises based either upon type and extent of use or on area, as
reasonably determined by Landlord.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant will not voluntarily or by
operation of law assign, transfer, mortgage, sublet or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease
or in the Premises or Property, without Landlord's prior written
consent which consent may not be unreasonably withheld by Landlord. Any
attempted assignment, transfer, mortgage, encumbrance or subletting
without consent shall, at Landlord's election, be deemed void as
against Landlord, and shall constitute a breach of the Lease.
12.2 No Release of Tenant. Regardless of Landlord's consent, no subletting,
or assignment will alter the primary liability of Tenant to pay Rent or
to perform all other obligations to be performed by Tenant. Acceptance
of Rent from any other person will not be deemed a waiver by Landlord
of any provision of this Lease. Consent to one assignment or subletting
will not be deemed consent to any subsequent assignment or subletting.
12.3 Processing Fees. If Landlord consents to a sublease or assignment,
Tenant will pay to Landlord the greater of: (i) Landlord's actual cost
of reviewing and documenting such assignment or sublease, including
attorneys' fees or (ii) a standard processing fee of $350.
12.4 No Financial Gain. If Landlord consents to an assignment or sublease,
Tenant shall not realize any financial gain resulting from any increase
in the rental value of the Premises. Therefore, as a condition of any
assignment or subletting, it is agreed by the parties that Landlord
shall receive all consideration due or to become due to Tenant from any
assignee or sublessee with respect to such assignment or subletting,
including, without limitation, the full and complete rental payments
paid by such assignee or sublessee, including any amounts paid in
excess of Tenant's financial obligations set forth in this Lease, less
Tenant's reasonable costs incurred in connection with such assignment
or subletting.
13. Defaults; Remedies.
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13.1 Events of Default. It is a default by Tenant under this Lease if any of
the following "Events of Default" happens:
(a) if any Fixed Minimum Rent is not paid when due and default
continues for a period of 5 days; or
(b) if any Additional Rent is not paid when due and default
continues for a period of 10 days; or
(c) if the provisions of Paragraph 5.4 are not fully complied
with; or
(d) if Tenant's obligations under the provisions of Paragraph 6.3
are not fully complied with; or
(e) if Tenant defaults under any of the terms of this Lease other
than as set out in Paragraph 13.l(a), and default continues
for 10 days after written notice (except if default cannot be
completely cured within 10 days, it will not be an Event of
Default if Tenant starts to cure within the 10-day period, and
in good faith continually proceeds to remedy the default); or
(f) if Tenant or any person who has guaranteed performance, files
a voluntary petition in bankruptcy or is adjudicated a
bankrupt or insolvent, or files a petition or answer seeking
relief under any federal, state or other statute or
regulation, or seeks or consents or acquiesces in the
appointment of a trustee, receiver or liquidator of Tenant or
guarantor, or of all or any substantial part of Tenant's
Properties or of the Premises or any or all rents, earnings,
or income or makes an assignment for the benefit of creditors,
or admits in writing its inability to pay its debts generally
as they become due; or
(g) if a petition is filed against Tenant, or any person who has
guaranteed performance, seeking relief under any federal,
state or other statute or regulation, which remains
undismissed or unstayed for an aggregate of 60 days (whether
or not consecutive), or if a trustee, receiver or liquidator
of Tenant or guarantor, or of all or any substantial part of
its properties or of the Premises or any or all rents, or
income is appointed without the consent or acquiescence of
Tenant, or guarantor, and the appointment remains unvacated or
unstayed for an aggregate of 60 days (whether or not
consecutive); or
(h) in the event Tenant or Tenant's subsidiary or affiliate shall
lease other premises from Landlord, any default under such
other leases shall be deemed to be a default under this Lease
and Landlord may enforce all rights and remedies for an Event
of Default herein.
13.2 Notice; Termination. Landlord at any time after the happening of an
Event of Default may declare an Event of Default by written notice to
Tenant specifying the Event(s) of Default. In the same or a later
written notice Landlord may elect that this Lease terminate at 5:00
p.m. on the date listed by Landlord. The date will be at least ten (10)
days after the giving
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of the termination notice (including the termination date). On the date
in the notice, subject to Paragraph 13.4. the Lease and all interests
demised will terminate and all rights of the Tenant shall cease. The
termination will not take place if before the stated date and time:
(i) Tenant has paid all arrears of Fixed Minimum Rent and
Additional Rent and all other amounts payable by Tenant,
(together with interest pursuant to Paragraph 24.10) and as
Additional Rent all expenses (including, without limitation,
attorneys' fees and expenses) incurred by Landlord due to any
default by Tenant (the "Arrearages"), and
(ii) all other defaults have been cured to the satisfaction of
Landlord.
13.3 Repossession, Re-letting. After notice of an Event of Default, whether
before or after a termination as provided in Xxxxxxxxx 00.0, Xxxxxxxx,
without further notice and with no liability to Tenant, may repossess
the Premises, by summary proceedings, ejectment or otherwise, and may
remove Tenant and all other persons and any and all property from the
Premises. After such repossession, Landlord may (but is under no
obligation to) sell Tenant's property and apply the amount of any net
proceeds from such sale(s) to Tenant's obligations hereunder, with any
surplus returned to Tenant. If Landlord elects not to sell Tenant's
property and other arrangements have not been made between the parties
regarding the disposition of such property, Landlord is hereby
authorized as Tenant's agent, with no liability therefor, to select an
auctioneer, and shall employ such auctioneer to conduct a sale of such
property on behalf of Tenant, and to apply the proceeds therefrom, net
of all costs to Landlord, to Tenant's obligations hereunder, with any
surplus returned to Tenant. Landlord will make commercially reasonable
efforts after such repossession to re-let the Premises, any part
thereof, or the Premises with additional property, on account of Tenant
(until Landlord makes demand for final damages), in Tenant's or
Landlord's name, without notice to Tenant, for a term (which may be
more or less than the period which would have been the balance of the
term of this Lease) and on conditions (including concessions, periods
of rent-free use, or alterations) and for purposes which Landlord
determines, and Landlord may receive the rents from any such
relettings. Landlord is not liable for failure to collect any rent due
upon any such reletting. In the event Landlord does not elect to re-let
the Premises, Tenant may present suitable and qualified Tenants to
Landlord to obtain consent, which may or may not be provided at
Landlord's sole discretion, for an assignment of the Lease.
13.4 Survival of Tenant's Obligations; Damages. No provisions in Paragraphs
13.1, 13.2 and 13.3 will relieve Tenant of its liability and
obligations under this Lease, all of which will survive. Landlord will
not be deemed to accept a surrender of Tenant's Lease or otherwise
discharge Tenant because Landlord takes or accepts possession of the
Premises or exercises control over them as provided. Acceptance of
surrender and discharge may be done only by an instrument executed on
behalf of Landlord by its duly authorized officer or employee.
In the event of termination or repossession following an Event of
Default, Tenant will pay to Landlord the Arrearages up to the earlier
of the date of termination or repossession.
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Further, Tenant, until the end of what would have been the Term of this
Lease in the absence of termination and whether or not the Premises or
any part have been relet, is liable to Landlord for, and will pay to
Landlord, as liquidated and agreed "Current Damages" for Tenant's
default:
(a) the Fixed Minimum Rent and all Additional Rent and other
charges payable by Tenant or which would be payable if this
Lease had not terminated, plus all Landlord's expenses in
connection with any reletting, including, without limitation,
repossession costs, brokerage commission, legal expenses,
attorneys' fees, expenses of employees, alteration costs, and
expenses of preparation for such reletting, LESS
(b) the net proceeds, if any, of any re-letting on account of
Tenant pursuant to Paragraph 13.3. If the Premises or any part
has been relet with additional property, the net proceeds, if
any, of reletting shall be prorated.
Tenant shall pay Current Damages to Landlord monthly on the days on
which the Fixed Minimum Rent would have been payable if the Lease were
not terminated, and Landlord is entitled to recover same from Tenant
each month.
After termination under Paragraph 13.2, whether or not Landlord has
collected Current Damages, Tenant will pay to Landlord, on demand, as
liquidated and agreed "Final Damages" for Tenant's default and in lieu
of all Current Damages beyond the date of demand:
(a) an amount equal to the present cash value on the date of
demand of the Fixed Minimum Rent and Additional Rent and other
charges which would have been payable from the date of demand
for what would have been the unexpired term of this Lease if
it had not been terminated, plus the Arrearages to the earlier
of the date of termination or repossession and Current Damages
up to the date of demand which remain unpaid, LESS
(b) the net proceeds, if any, of any re-letting on account of
Tenant pursuant to Paragraph 13.3. If the Premises or any part
has been relet with additional property, the net proceeds, if
any, of reletting shall be prorated..
If any statute or rule of law governing a proceeding in which Final
Damages are to be proved validly limits the amount to an amount less
than that provided for, Landlord is entitled to the maximum amount
allowable under the statute or rule of law. The discount rate of
interest shall be as provided in Paragraph 24.10; provided, however,
such discount rate shall in no event exceed eight percent 8% per annum.
14. Condemnation; Partial or Total Taking. If all or any part of the
Premises or the Property shall be taken for public or quasi-public use
under any governmental law, ordinance or regulation, or by right of
eminent domain, or by consent to sale in lieu thereof, and such taking
in Landlord's reasonable judgment renders the Premises untenantable for
Tenant's business, this Lease shall terminate as of the date of
transfer of possession, and the parties shall have no claim against
each other for the value of any unexpired Term of this Lease.
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If such taking results in a loss of more than 25% of the Premises,
Tenant may elect to terminate this Lease as of the date of transfer of
possession, and the parties shall have no claim against each other for
the value of any unexpired Term of this Lease. All compensation or
damages awarded for such taking or transfer shall belong to and be the
property of Landlord, except for any specific award to Tenant for
fixtures and improvements installed by Tenant at its expense,
interruption of or damage to Tenant's business, Tenant's moving
expenses, or any other claim of Tenant recoverable in its own right and
not derivatively through Landlord. If there is any taking or transfer
in respect of the Premises or the Property not subject to the first two
sentences of this Article 14, this Lease shall continue in full force
and effect and the Rent will be abated or reduced by an amount that is
proportionate to the loss.
15. Force Majeure. If Landlord's performance of any obligation under any
provision in this Lease is delayed by an act or neglect of Tenant, Act
of God, strike, labor dispute, unavailability of materials, boycott,
governmental restrictions, riots, insurrection, war, catastrophe, or
act of the public enemy, the period for the beginning or completion of
the obligation is extended for a period equal to the delay.
16. Subordination. This Lease, at Landlord's option, will be subordinate to
any form of security now or later placed on the real property upon
which the Premises are situated, and to all advances made on the
security and to all renewals, modifications, consolidations,
replacements and extensions. Tenant's right to quiet possession of the
Premises will not be disturbed if Tenant is not in default under this
Lease, unless it is otherwise terminated under the terms hereof. If any
mortgagee, trustee or ground lessor elects to have this Lease prior to
the lien of its security, and gives written notice to Tenant, the Lease
will be deemed prior to the security, whether dated before or after the
date of the security, or the recording date. Tenant agrees to execute
any required documents, and Tenant irrevocably appoints Landlord as
Tenant's attorney-in-fact to do so, if Tenant fails to so execute
within 10 days after written demand.
17. Estoppel Certificate. Tenant, after not less than ten days prior
written notice from Landlord, will deliver to Landlord a written
statement (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of the
modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the Rent and other charges are
paid in advance, if any, (ii) stating the amount of the Security
Deposit, if any, held by Landlord and (iii) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord, or stating any claimed defaults. The statement may be relied
upon by any prospective purchaser of the Property or lender considering
the Property as security for a loan.
Tenant's failure to deliver the statement within said time will 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 any Security Deposit is as represented by Landlord, (iii) that
there are no uncured defaults in Landlord's performance, and (iv) that
not more than one month's Rent has been paid in advance.
18. Intentionally Omitted.
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19. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of the corporation represents and
warrants that he is duly authorized to execute and deliver this Lease
on behalf of the corporation, in accordance with a duly adopted
resolution of the Board of Directors of the corporation, or in
accordance with the bylaws of the corporation, and that this Lease is
binding upon the corporation.
20. Notices. All notices required or permitted under this Lease shall be in
writing and shall be deemed duly given if sent by United States
certified or registered mail, return receipt requested, by confirmed
facsimile, or by Federal Express or other major overnight courier that
provides evidence of delivery, addressed to Landlord or Tenant,
respectively, at the addresses provided in the Information Schedule.
Either party by notice as provided above may change the address for
notices and/or payment of Rent.
21. Broker's Fee. Landlord and Tenant acknowledge that the broker(s) in
this transaction (the "Broker") are as listed in the Information
Schedule and that payments of commissions will be in accordance with
their respective agreements. Landlord and Tenant each represent and
warrant to each other that except for the Broker, no broker, agent or
finder has been employed by it in connection with this Lease and no
commissions are payable by it to any person. Tenant and Landlord each
agree to indemnify, defend and save harmless the other from any
expenses or claim for fees or commissions resulting from the
indemnifying party having dealt with any broker, agent or finder in
negotiating this Lease. Tenant represents it did not deal with any
other broker, agent or finder other than the Broker. Landlord
represents that it shall be solely responsible for those commissions
due the Broker. By their execution hereof, Landlord and Tenant mutually
agree and understand that if this Lease is renewed, extended or
otherwise modified, then no additional compensation shall be due the
Broker as a consequence of such action.
22. Landlord's Access. Landlord and Landlord's agents have the right to
enter the Premises at reasonable times for the purposes of inspecting
the Premises, showing the Premises to prospective purchasers, tenants
or lenders, and making alterations, repairs, improvements or additions
to the Premises that Landlord deems necessary or desirable; provided,
however, except in cases of emergency, such entry shall not be made
unless at least 24 hours' prior notice of such entry is given to Tenant
by Landlord. Except in emergency situations, Landlord's agents must be
accompanied by Tenant's representative during any entry to the Premises
by Landlord. Landlord may place any ordinary "For Sale" or "For Lease"
signs on the Property without rebate of rent liability during the final
60 days of the Term.
23. Landlord's Liability. The term "Landlord" means only the owner or
owners of the fee title to the Property at the time in question. If the
Landlord (or the then grantor) transfers any title or interest, from
and after the date of transfer the Landlord (or the then grantor) is
relieved of all liability for Landlord's obligations. Any Security
Deposit not delivered to the grantee is excepted. Landlord's
obligations under this Lease shall thereafter be binding on Landlord's
successors and assigns. Tenant agrees to attorn to any transferee or
lender of Landlord.
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24. Landlord's Right. If Tenant fails to make any required payment or
defaults in performing any other term in this Lease, Landlord may, but
need not (and without waiving the default), make such payment or remedy
other defaults for Tenant's account and at Tenant's expense,
immediately and without notice in case of emergency, otherwise on ten
days written notice to Tenant. The costs, with interest under Paragraph
24.10, and with charges equaling 15 % of the cost (to cover Landlord's
Overhead), is due as Additional Rent with Tenant's next Fixed Minimum
Rent installment.
25. Miscellaneous.
25.1 Time of Essence. Time is of the essence under this Lease.
25.2 Covenants and Conditions. Each provision of this Lease performable by
Tenant is both a covenant and a condition.
25.3 Captions. Article and Paragraph captions are only for convenience.
25.4 Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned. No
prior agreement or understanding is effective after execution of this
Lease. This Lease may be modified in writing only, signed by the
parties. The exhibits listed on the Information Schedule and attached
to this Lease are part of this Lease as fully as if placed in the body
of the Lease.
25.5 Cumulative Remedies. No remedy or election is exclusive but, wherever
possible, is cumulative with all other remedies at law or in equity.
25.6 Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall not affect the
validity of any other provision. The valid portions of the Lease shall
be interpreted together to accomplish the intent of the parties.
25.7 Merger. The voluntary or other surrender by Tenant or a mutual
cancellation will work a merger, and at Landlord's option, will
terminate existing subtenancies or operate as an assignment of
subtenancies.
25.8 Holding Over. If Tenant retains possession of the Premises after the
Term expires (unless extended pursuant to the terms hereof), without
the written consent of Landlord, the occupancy will be a tenancy from
month-to-month at a rent in the amount of 150% of the last Fixed
Minimum Rent plus all Additional Rent and other charges payable and
upon all other terms contained herein. Any options (i.e. renewal,
expansion) and rights of first refusal contained in the Lease are
terminated in the event of a holdover tenancy.
25.9 Waivers. Waiver by Landlord of any provision or breach by Tenant of any
provision of the Lease is not a waiver of any other provision or of any
subsequent breach by Tenant of the same or any other provision.
Landlord's consent or approval of any act will not make it unnecessary
to obtain Landlord's consent or approval in the future. The acceptance
of Rent by Landlord is not a waiver of any breach by Tenant other than
a failure of Tenant to pay the particular Rent accepted, regardless of
whether Landlord knows of such a breach.
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25.10 Interest on Past-due Obligations. Any amount due to Landlord not paid
when due will bear interest from the date due at 4% over the prime
lending rate in effect from time to time at Bank One Arizona or 18% per
annum, whichever rate is lower. Payment of interest will not cure any
default by Tenant under this Lease except as expressly provided.
25.11 Attorney Fees. If either party brings an action regarding terms or
rights under this Lease, the prevailing party in any action, on trial
or appeal, is entitled to reasonable attorneys' fees as fixed by the
court to be paid by the losing party. The term "attorneys' fees" shall
include, but is not limited to, reasonable attorneys' fees incurred in
any and all judicial, bankruptcy, reorganization, administrative or
other proceedings, including appellate proceedings, whether the
proceedings arise before or after entry of a final judgment, and all
costs and disbursements in connection with the matter.
25.12 Waiver of Jury Trial. Landlord and Tenant each waive trial by jury in
any action, proceeding, or counterclaim brought by either of the
parties to this Lease against the others on any matter whatsoever
arising out of or in any way connected with this Lease or its
termination, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, any claim of injury or damage, or any
emergency statutory or other statutory remedy.
25.13 Recording. Tenant will not record this Lease without Landlord's written
consent. Any recordation, at Landlord's option, will constitute a
non-curable default of Tenant.
25.14 Signs and Auctions. Tenant shall not place any sign upon or conduct any
auction on the Premises or Property without Landlord's prior written
consent, which consent shall not be unreasonably withheld. Landlord's
consent to the placement of any sign on the Premises or Property shall
not, either expressly or by implication, constitute a representation or
warranty by Landlord that such sign complies with applicable law or
regulation.
25.15 Security. Tenant acknowledges that the Rent reserved in this Lease does
not include the cost of security guards or other security measures, and
that Landlord has no obligation to provide such services. Tenant
assumes all responsibility for the protection of Tenant, its agents,
employees and invitees from acts of third parties.
25.16 Easements and Restrictive Covenants. Landlord reserves the right to
grant and record easements, cross easements, rights, restrictive
covenants and conditions and dedications which it deems necessary or
desirable. The grants will not unreasonably interfere with Tenant's use
of the Premises. Tenant agrees to promptly execute documents reasonably
requested by Landlord to give effect to the foregoing obligations of
Tenant under this paragraph. Failure to execute will be a material
breach under this Lease.
25.17 Rules and Regulations. Tenant will comply with the rules and
regulations respecting the Property. Notice of the rules and
regulations will be posted or given to Tenant. Furthermore, any rules
and regulations hereafter promulgated for the Property shall be
uniformly applied to all tenants in the Property, including Tenant.
21
23
25.18 Binding Effect; Choice of Law. Subject to provisions restricting
assignments or subletting and to the provisions of Paragraph 12, this
Lease will bind the parties, their personal representatives, successors
and assigns. This Lease shall be governed by the laws of the State of
Arizona.
25.19 Absence of Option. This Lease becomes effective only upon execution by
Landlord. Both parties acknowledge that they have reviewed this Lease
thoroughly and have given their voluntary consent to the provisions.
Landlord and Tenant agree that, at execution, the terms are
commercially reasonable and show the intent of the parties.
IN WITNESS WHEREOF, the parties have executed this Lease in duplicate
as of the day and year first above.
LANDLORD:
0000 X. XXXXXXXX XXXX LIMITED PARTNERSHIP,
an Arizona limited partnership
By: San Salvador Management, L.L.C.,
an Arizona limited liability company
Its General Partner
By: /s/ Xxxxx Xxxxxx
---------------------------------
Its: PRINCIPAL
-----------------------------
TENANT:
MIDLAND CREDIT MANAGEMENT, INC.,
a Kansas corporation
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Its: PRESIDENT
-----------------------------
22
24
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY AND ADJACENT SITE IMPROVEMENTS
The Property is described as follows:
PARCEL NO. 1:
Xxx 0, XXXXXXXX XXXXXXX XXXXXX XXXX 0 XXXXX, a subdivision recorded in
Book 171 of Maps, page 6, records of Maricopa County, Arizona.
PARCEL NO. 2:
That portion of Xxx 0, XXXXXXXX XXXXXXX XXXXXX XXXX 0 XXXXX, a subdivision
recorded in Book 178 of Maps, page 8, records of Maricopa County, Arizona, more
particularly described as follows:
Beginning at the Southeast corner of said Lot 3;
Thence South 89 degrees 25 minutes 52 seconds West, along the South line of
said Lot 3, 200.00 feet;
Thence South 89 degrees 08 minutes 05 seconds West continuing along said South
line, 29.05 feet to the True Point of Beginning;
Thence North 0 degrees 43 minutes 0 seconds West, 273.97 feet to a point on the
North line of said Lot 3;
Thence South 89 degrees 08 minutes 05 seconds West along the said North line,
189.76 feet;
Thence South 0 degrees 51 minutes 55 seconds East along the West line of said
Lot 3, 273.97 feet;
Thence North 89 degrees 08 minutes 05 seconds East along the South line of said
Lot 3, 189.05 feet to the True Point of Beginning.
PARCEL NO. 3:
A non-exclusive easement for ingress and egress over the South 140 feet of the
East 50 feet of Xxx 0, XXXXXXXX XXXXXXX XXXXXX XXXX 0 XXXXX, a subdivision
recorded in Book 178 of Maps, page 8, records of Maricopa County, Arizona, as
created in document recorded in Recording No. 86-164418.
The Adjacent Site Improvements are described as follows:
The parking lot adjacent to the Building.
A-1
25
EXHIBIT "C"
TENANT IMPROVEMENTS
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 DATE ESTIMATE
Xxxxxxx, XX 00000 11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx PROJECT
Phoenix, Arizona Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
10/22/97 10/28/97 30,000 $13.13
ITEM DESCRIPTION QTY RATE TOTAL
Demolition Wall 140 lineal feet of existing 140 15.00 2,100.00
walls, storefront and
glass sections
Demolition La Demo of existing exterior 1 1,180.00 1,180.00
building, pad and fence
Demolition La Demo and remove covered patio 1 600.00 600.00
area
Demolition Total 3,880.00
Frame & DW
Int Partition 340 lineal feet of new interior 340 35.00 11,900.00
partitions to grid
Xxxx out 890 lineal feet xxxx out all 11' 890 20.00 17,800.00
high exterior walls with 2-1/2"
studs with insulation
Columns Xxxx out 24 columns at modular 24 140.00 3,360.00
areas
Frame and Drywall Total 33,060.00
Acoustical
Ceiling Tile New 30,000 square foot 2X4 30,000 1.10 33,000.00
acoustical grid ceiling
Acoustical Ceiling Total 33,000.00
Doors
Interior Door 12 new paint grade interior door 12 193.60 2,323.20
Timely Frames 12 timely door frames 12 146.00 1,752.00
TOTAL
Page 1
C-1
26
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 Date Estimate
Xxxxxxx, XX 00000 11/3/97 313
Property/Tenant Project
-------------------------- --------------------------
Midland Credit Corporation Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
Original Revised Rentable Cost Per
Plan Date Plan Date Sq Ft Sq Ft
--------- --------- -------- ------
10/22/97 10/28/97 30,000 $13.13
Item Description Qty Rate Total
---- ----------- --- ---- -----
Door Labor Door & Frame labor 12 200.00 2,400.00
Metal Door 2 new 3.o X 7.o metal insulated door 2 980.00 1,960.00
and frame with wire glass sidelite
Doors Total 8,435.20
Hardware
Passage 12 new passage door handles 12 62.00 744.00
Hinges 33 new building standard door handles 33 7.00 231.00
Stops 12 new building standard door stops 12 4.00 48.00
Stops 2 floor mounted door stop 2 16.00 32.00
Hardware Total 1,055.00
Glass
Storefront New storefront glass sections and new 1 9,100.00 9,100.00
glass entrance; includes glass at
managers office
Glass Total 9,100.00
Millwork
Lower Cabinet 32 lineal feet of lower cabinets 32 115.00 3,680.00
Upper Cabinet 32 lineal feet of upper cabinets 32 100.00 3,200.00
Countertops 32 lineal feet of countertops 32 45.00 1,440.00
Countertops 40 lineal feet of countertops in 40 100.00 4,000.00
restrooms
Millwork Total 12,320.00
TOTAL
Page 2
C-2
27
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 DATE ESTIMATE
Xxxxxxx, XX 00000 11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx PROJECT
Phoenix, Arizona Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
---------------------------------------------------------------------------------------------------
10/22/97 10/28/97 30,000 $13.13
---------------------------------------------------------------------------------------------------
ITEM DESCRIPTION QTY RATE TOTAL
---------------------------------------------------------------------------------------------------
Plumbing
Cap Plumbing Cap plumbing at 3 locations below floor 1 380.00 380.00
per code and infill concrete to finish
floor level
Plumbing Demo Demo all toilets, sinks, partitions and 1 2,238.00 2,238.00
accessories
Water Lines Rework plumbing supplies and drains to 1 3,600.00 3,600.00
accept new; repair drywall and floors as
needed
ADA New handicapped toilets, urinals, 1 12,210.00 12,210.00
partitions, grab bars and accessories
required by the ADA
Plumbing Total 18,428.00
Fire Protect
Sprinkler Mod Sprinkler relocation and modifications to 1 14,500.00 14,500.00
existing
Fire Protection Total 14,500.00
Site Work Site Work Total 17,100.00
Concrete
Ramp Handicap ramp at specified location 1 590.00 590.00
Concrete Total 590.00
----------------------------------------------------------------------------------------------------
TOTAL
----------------------------------------------------------------------------------------------------
Page 3
C-3
28
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 DATE ESTIMATE
Xxxxxxx, XX 00000 11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx PROJECT
Phoenix, Arizona Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
10/22/97 10/28/97 30,000 $13.13
ITEM DESCRIPTION QTY RATE TOTAL
Electrical
Elec Demo Demo 1 200.00 200.00
Duplex Outlet 40 standard duplex outlets 40 45.00 1,800.00
Duplex Outlet 5 standard - double 5 52.00 260.00
Duplex Outlet 12 standard dedicated duplex 12 165.00 1,980.00
outlet
Tele Outlet 25 standard telephone/computer 25 22.00 550.00
outlet
Exit Sign 13 standard c/w battery exit 13 150.00 1,950.00
signs
Emer Light 14 standard emergency wall 14 150.00 2,100.00
battery pack light
Emer Light 4 emergency night lights; 2 head 4 100.00 400.00
for restroom
2X4 Lighting 375 new 2 X 4 light fixtures; 375 135.00 50,625.00
electronic ballasts
Switches 17 standard switches 17 47.00 799.00
Circuits Tie in existing in restroom 1 300.00 300.00
Light Fixture 3 keyless light fixtures in 3 65.00 195.00
electrical room
Light Fixture 3 - 1X4 strips in computer room 3 65.00 195.00
GFIC 5 GFIC receptacles 5 65.00 325.00
Power Pole 9 power poles with new circuits 9 425.00 3,825.00
Panel Repairs to existing electrical 1 1,000.00 1,000.00
panels
Electrical - Distribution of power and 1 2,500.00 2,500.00
lighting
Extras for restrooms:
Light Fixture 9 light fixtures 125 9.00 1,125.00
TOTAL
Page 4
C-4
29
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 DATE ESTIMATE
Xxxxxxx, XX 00000 11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx PROJECT
Phoenix, Arizona Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
-------------------------------------------------------------------------
10/22/97 10/28/97 30,000 $13.13
ITEM DESCRIPTION QTY RATE TOTAL
-------------------------------------------------------------------------
Switches 4 standard switches 4 47.00 188.00
GFIC 4 GFIC receptacles 4 65.00 260.00
Fan 4 exhaust fan tie-ins 4 46.00 184.00
Fan 4 exhaust fan switches 4 47.00 188.00
Extras for computer room:
Dedicated 4-20 amp dedicated outlets 4 150.00 600.00
Circuits 1-240 volt 30 amp circuit; 1 200.00 200.00
isolated ground
Electrical Total 71,749.00
Heating & Air
HVAC Allowance 53,838.00 53,838.00
-Repairs to existing units is
extra; price assumes we have
adequate tonnage for space
-Repairs to existing hard duct
on 13 units
-39 new ducted returns on 13
units (these are presently
not to code)
-125 new supplies
-13 new thermostats
-New hard duct as required
-No flex runs over 14 feet
TOTAL
Page 5
C-5
30
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0 DATE ESTIMATE
Xxxxxxx, XX 00000 11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation
0000 X. Xxxxxxxx Xxxx PROJECT
Phoenix, Arizona Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
---------------------------------------------------------------------------------------------------
10/22/97 10/28/97 30,000 $13.13
---------------------------------------------------------------------------------------------------
ITEM DESCRIPTION QTY. RATE TOTAL
---------------------------------------------------------------------------------------------------
-No EMS included, but can be priced if
needed
HVAC Extras for restrooms: 1,194.00 1,194.00
-Demo and reinstall exhaust fans
-Demo and install 4 new outlets 55,032.00
Heating and Air Conditioning Total
Paint
Walls Painting of walls throughout 6,720.00 6,720.00
Door Finish Painting of 16 doors 16 100.00 1,600.00
Paint Total 8,320.00
Flooring
Carpet 3,334 square yards 32 oz. cut pile 3,334 14.00 46,676.00
carpet
VCT 2,720 square yards 2,720 1.25 3,400.00
Base 1,800 lineal feet 1,800 1.00 1,800.00
Ceramic Tile 220 square feet of ceramic tile on all 220 10.00 2,200.00
restroom wet walls
Flooring Total 54,076.00
General Cond
Allowance Misc materials and off hour labor 1 1,000.00 1,000.00
Dumpster Dumpster Rental 2 400.00 800.00
---------------------------------------------------------------------------------------------------
TOTAL
---------------------------------------------------------------------------------------------------
Page 6
C-6
31
GTI CONTRACTORS, INC. REVISED ESTIMATE
0000 X. 0xx Xxxxxx, Xxxxx X-0
Xxxxxxx, XX 00000 DATE ESTIMATE
11/3/97 313
PROPERTY/TENANT
Midland Credit Corporation PROJECT
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx Midland Credit Corporation
ORIGINAL PLAN DATE REVISED PLAN DATE RENTABLE SQ FT COST PER SQ FT
10/22/97 10/28/97 30,000 $ 13.13
ITEM DESCRIPTION QTY RATE TOTAL
Tele Board Install telephone mounting board 2 110.00 220.00
Supervision 8 weeks supervision 8 600.00 4,800.00
Clean Final cleaning of entire space 30,000 0.15 4,500.00
Profit & OH Profit & Overhead 24,638.00 24,638.00
General Conditions Total 35,958.00
Sales Tax 4.5825% 17,257.84
TOTAL $393,861.04
Add 6 ton AC unit at north end of bldg 6,000.00
Ceiling insulation 12,000.00
Architectural construction drawings 30,000.00
Drywall relocation and cleaning 20,000.00
-----------
$461,861.04
Page 7
32
EXHIBIT "D"
CONTROL OF DANGEROUS/HAZARDOUS CHEMICALS AND MATERIALS
In consideration of existing and future legislation concerning the handling,
storage, use and disposition of dangerous hazardous chemicals and materials,
Tenant acknowledges the risks and liabilities associated with same and agrees to
the following:
A. Tenant shall determine what laws, regulations and ordinances
regarding the handling, storage, use and disposition of
dangerous or hazardous chemicals and materials apply to
Tenant's business with respect to the Premises or Property.
Tenant shall take all reasonable and necessary steps,
including any inspections, tests or studies, as required by
such laws to cause prompt and ongoing compliance therewith.
B. Tenant agrees to immediately notify Landlord and the
appropriate authorities of any spills, accidents, or improper
discharges of any dangerous or hazardous chemicals and
materials. Further, in addition to and in further support of
and compliance with other hold harmless and indemnification
obligations, Tenant acknowledges and assumes total
responsibility for any and all dangerous or hazardous
chemicals and materials it may handle, store, use and dispose
of in or about the Premises or Property. Such responsibility
shall include, but not be limited to, medical costs and
personal injury awards (compensatory and/or punitive),
environmental cleanups and related costs, governmental fines
against Landlord or Tenant resulting from Tenant's willful or
negligent handling, storage, use, disposition of dangerous or
hazardous chemicals and materials, or Tenant's non-compliance
with acceptable law.
C. Tenant shall, upon Landlord's or governmental request,
disclose the type and quantity of dangerous or hazardous
chemicals and materials handled, stored, used or disposed of
in or about the Premises or Property.
D. Tenant shall endeavor to:
1. Maintain and control all inventories of dangerous or
hazardous chemicals and materials handled, stored,
used or disposed of in or about the Premises or
Property.
2. Educate managers, employees, and shipping personnel
on the proper handling, storage, use and disposition
of dangerous or hazardous chemicals and materials.
3. Develop a dangerous/hazardous chemicals and materials
accident plan.
4. Isolate key use and storage areas of dangerous or
hazardous chemicals and materials from ground waters,
surface waters, and soils.
5. Keep informed about existing and future governmental
requirements concerning dangerous or hazardous
chemicals and materials and Tenant's respective
compliance obligations.
D - 1
33
EXHIBIT "E"
RENT SCHEDULE
During the Term of the Lease, Tenant's monthly Fixed Minimum Rent will be
as follows:
Months Rate Amount
------ ---- ------
1 - 30 $0.62/sf $18,600/mo.
31 - 60 $0.67/sf $20,100/mo.
E - 1
34
EXHIBIT "F"
OPTION TO EXTEND
Tenant will have the option to extend the Term of this Lease for one
five-year period (the "Extended Term"), subject to the further provisions of
this Exhibit "F".
a. Tenant must exercise the option with respect to
the Extended Term, if at all, by giving written notice of exercise to Landlord
on or before the date which is 270 days prior to the Termination Date. Any
notice of extension by Tenant is called "Tenant's Notice". Tenant will have no
right to extend the Term of this Lease if Tenant's Notice is not timely
delivered.
b. It is a condition precedent to Tenant's option to
extend that Tenant not be in default of any material provision of the Lease on
the date that any Tenant's Notice is given; provided, however, that if Tenant is
in default but the cure period has not expired, than this condition shall be
deemed satisfied if Tenant cures the default within the permitted cure period.
c. The Extended Term will be on the same terms and
conditions as this Lease except that (i) Tenant's Fixed Minimum Rent will be
based on an amount equal to the prevailing market rate ("Market Rate") at the
time of Tenant's Notice for space of comparable age, size, location and quality;
and (ii) all references in the Lease to the "Term" will mean the Extended Term.
d. If Tenant disputes Landlord's determination of the
Market Rate, Tenant may, by giving written notice to Landlord within 15 days
following Tenant's receipt of Landlord's Notice of the Rent for the Extended
Term, withdraw its exercise of the option to extend.
F - 1
35
EXHIBIT "G"
TENANT REMOVAL ITEMS
MIDLAND CREDIT MANAGEMENT, INC.
0000 X. XXXXXXXX
XXXXXXX, XX
2 file cabinets
Xxxxxx Xxxxxxx fax/printer
Brother 7000 fax/printer
2 personal computers - 1 with speakers
2 main switchboard phone centers
Danka copier
Large and small dry erase board
Receptionist desk (1 large unit)
Office Mgr. Large desk unit and hutch
Paper shredder
Cherry desk (2), credenza (2)
Computer shelving racks
Computer room phones: (2) standard, (1) console
Computer printer
Phone technology equipment
Computer stand
Pitney Xxxxx Postage meter/weigh station
Television
(8) 4' round tables
(35) standard chairs
(105) roller chairs
(91) CRT Screens
(92) standard phones
(2) microwaves
1 refrigerator
Any other thing of personal property including (but not limited to) office
furnishings, equipment or supplies which are moveable or which have not been
attached to the above described premises to such an extent they become or
constitute fixtures.
G-1
36
EXHIBIT "H"
FIRST RIGHTS OF REFUSAL
1. First Right of Refusal to Purchase Property. During the Term of the
Lease, provided Tenant is not in default under the Lease, Tenant will have a
right of first refusal to purchase all, but not less than all, of the Property
under the same terms and conditions as those offered to a third party that is
ready, willing, and able to purchase the Property under such terms and
conditions. Tenant must accept or reject Landlord's notice of interest of a
third party to purchase the Property in writing within five (5) business days
after delivery of such notice. If Tenant accepts within the required time frame,
Landlord and Tenant will promptly enter into a purchase and sale agreement for
the Property, and the sale of the Property to Tenant shall close within 60 days
after the date of Tenant's written acceptance. If Tenant does not accept within
the required time frame, or if the sale of the Property does not close within 60
days after the date of Tenant's written acceptance for any reason other than
Landlord's default under the purchase and sale agreement for the Property,
Tenant's right of first refusal to purchase the Property will lapse (unless
Landlord does not sell the Property to such third party), and Landlord may
proceed to sell the Property to such third party subject to the provisions of
the Lease then in effect.
2. First Right of Refusal to Lease Additional Space. During the term of
the Lease, provided Tenant is not in default under the Lease, Tenant will have a
right of first refusal to lease any or all of the space in the building adjacent
to the Premises, which adjacent building is located on the Property at 0000 Xxxx
Xxxxxxxx Xxxx ("Additional Space"), under the same terms and conditions as those
offered to a third party that is ready, willing, and able to lease such
Additional Space under such terms and conditions. Tenant must accept or reject
any Landlord's notice of interest of a third party to lease space in the
adjacent building in writing within five (5) business days after delivery of
such notice. If Tenant accepts within the required time frame, Landlord and
Tenant will promptly execute an amendment to the existing Lease for the
Additional Space. If Tenant does not accept within the required time frame,
Tenant's right of first refusal to lease the Additional Space that is the
subject of such notice of interest to lease space in the adjacent building will
lapse unless Landlord does not lease such Additional Space to such third party.
H - 1
37
TENENT REMOVAL ITEMS
MIDLAND CREDIT MANAGEMENT, INC.
0000 X. XXXXXXXX
XXXXXXX, XX
2 file cabinets
Xxxxxx Xxxxxxx fax/printer
Brother 7000 fax/printer
2 personal computers -- 1 with speakers
2 main switchboard phone centers
Danka copier
Large and small dry erase board
Receptionist desk (1 large unit)
Office Mgr. Large desk unit and hutch
Paper shredder
Cherry desk (2), credenza (2)
Computer shelving racks
Computer room phones: (2) standard, (1) console
Computer printer
Phone technology equipment
Computer stand
Pitney Xxxxx Postage meter/weigh station
Television
(8) 4' round tables
(35) standard chairs
(105) roller chairs
(91) CRT Screens
(92) standard phones
(2) microwaves
1 refrigerator
