OFFICE LEASE
Exhibit
10.17
THIS
LEASE is made and entered into this 28thday
of
February, 2007, by and between Iceman Properties,
LLC ("Landlord"), and Xxxxxxxxx On TV Company ("Tenant").
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1.
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PREMISES.
Landlord hereby leases to Tenant and Tenant leases from Landlord,
for
the term and upon the terms, conditions and agreements set forth
in this
Lease, office space with
a combined total of 2,440 rentable square
feet of space (the "Premises"), consisting of approximately
2,268
square feet of space along with
a portion of the common area (approximately 132 square feet)
depicted on Exhibit 'A' of the
Building located at 00000 Xxxxx 00xx Xxxxxx
in
Scottsdale, Arizona (the "Building"). Tenant hereby acknowledges
that Exhibit 'A' is subject to change by Landlord, provided any such
changes do
not materially alter the size or utility of the Premises.
Additional information is detailed in the "Letter of Intent", dated
January 19, 2007, as depicted in Exhibit
'D',
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2.
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TERM
AND POSSESSION.
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2.1,
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Term,
The term of this Lease, and Tenant's obligation to pay rent, shall
be for
a period of three (3) years
(the "Lease Term"), until February 28, 2010. Renewal option is two
(2)
for additional years.
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2.2.
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Rent
Commencement Date. March 2007, or sooner, if notified by iceman
Properties, LLC.
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2.3.
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Holdover.
Tenant shall have no right to hold over
after the expiration of this Lease without Landlord's consent.
If,
with
Landlord's consent, Tenant holds over after the expiration
of this
Lease, Tenant shall become a tenant from month-to-month on the terms,
and
conditions in existence during the final month of the Lease Term,
except
that the Base Rent shall be increased by fifty percent
(50%).
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3.
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RENT.
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3.1.
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Base
Rent. Tenant shall pay to Landlord during the Lease Term, at the
office of Landlord or at such other place
as Landlord may designate, without notice, demand, deduction
or
set-off, in equal monthly installments in advance on the first day
of each
calendar month, Base Rent as
follows:
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3,1.1
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March
1, 2007 – February 28, 2007: $20.00 per square foot, full service
($4,066.66 monthly), plus estimated CAM charges and required
rental
taxes (1.65%).
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3.1.2
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March
1, 2008 – February 28, 2009: $20.80 per square foot, full service
($4,188.66 monthly), plus estimated CAM charges and required rental
taxes
(1 .65%).
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3,1.3
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March
1, 2009 – February 28, 2010: $21.21
per square foot, full service ($4,312,70 monthly), plus estimated
CAM charges and required rental taxes
(1,65%),
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3.2
Nature of Payments. All sums required to be paid by Tenant under
this Lease, whether or not designated as rent, are deemed to be additional
rent and shall be subject to
all the payment and enforcement provisions applicable to rent
hereunder.
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3.3
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Late
Charges and Interest. Any amount due from a party which is not paid
when due shall bear interest at three percent (3%) In excess of the
prime
rate as established from time to time by Bank of America, Arizona,
NA, from the due date until paid (the "Default Rate"). The
payment
of such interest shall not cure any default by Tenant under this
Lease. In
addition, any rent not paid within five
(5)
days after the due date shall
be
subject to a
two-hundred
and
fifty dollar ($250.00) latecharge,
representing the additional costs
and burdens of special
handling.
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3.4
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Deposit.
One (1) month's rent is required at execution of office lease,
Deposit
will be $4,066,66.
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1
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4
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USE.
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4.1
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Use
of Premises. Tenant shall continuously use and occupy the
Premises for general office purposes and for no other purpose
whatsoever without Landlord's prior written
consent,
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4.2
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Covenants
Regarding Operation. Tenant shall not use or permit in the
Premises anything that would invalidate any policies of insurance
now
or hereafter carried on the Premises or that will Increase
the rate
of insurance on the Premises. Tenant shall not do anything or permit
anything to be done in the Premises which would,
in any way, create a nuisance, or disturb or injure the reputation
of any other tenant of the Building. Tenant shall not commit or suffer
to
be committed any waste in the Premises or cause any objectionable
odor to
be emitted from the Premises. Tenant shall not use the exterior of
the
roof or walls of the Premises or Building for any purpose. Tenant
shall
not cause or permit any Regulated Hazardous Material to be generated,
produced, brought upon, used, stored, treated or disposed of in or
about
the Premises or the Building, whether by Tenant, its invitees, agents,
employees, contractors or sub-lessees, except for routine office
and
janitorial supplies in usual and customary quantities. "Regulated
Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "infectious
wastes", "hazardous materials" or "toxic substances" now or subsequently
regulated under any applicable federal, state or local laws or regulations
including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds, and other chemical products, asbestos, PCBs and similar
compounds, and Including any different products and materials which
are
subsequently found to have adverse effects
on the environment or the health and safety of persons. Tenant
shall faithfully observe and comply with the rules and regulations
set
forth on Exhibit 'B' to this Lease, including all parking regulations
established in connection with Section 6.3 hereof (collectively,
the
"Building Rules"),
and any changes to the Budding Rules, provided that Tenant
receives
notice of such changes and provided that such changes are imposed
on all
tenants
of the Building. Tenant shall maintain in the Premises, at
all
times, an average density that does not exceed one (1) person
per two hundred (200) rentable square
feet.
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4.3
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Compliance
with Laws. Tenant, at Tenant's expense, shall comply with all present
and future federal, state and local laws, ordinances, orders, rules
and
regulations (collectively, "Laws") applicable to the Premises and
this Lease, and shall
procure all permits, certificates, licenses and other authorizations
required by applicable Laws relating to Tenant's business or Tenant's
use
or occupancy of the Premises. Tenant shall make all reports and filings
required by all applicable Laws, Tenant shall defend,
indemnify and hold harmless Landlord and Landlord's present and
future constituent partners, and
their respective affiliates, owners, officers, directors, employees
and agents, for, from and against all claims, demands,
liabilities, fines, penalties, losses, costs and expenses, including
but not limited to costs of compliance, remedial costs, and
attorneys' fees, arising out
of or relating to any failure of Tenant to comply
with
applicable
Laws. Without limiting the
foregoing, Tenant shall comply with all Laws relating to Hazardous
Materials and shall defend, indemnify and hold harmless Landlord
and
Landlord's present and future constituent partners, and their respective
affiliates,
owners, officers, directors, employees and agents, for, from and
against all claims, demands, liabilities, fines, penalties, losses,
costs
and expenses, including but not limited to costs of compliance, remedial
costs, clean-up costs and reasonable attorneys' fees,
arising from
or related to the manufacture, processing, distribution, use,
treatment, storage,
disposal,
transport or handling, or the emission, discharge, release or
threatened release Into the environment, of any Hazardous Materials
from,
on or at the Premises as a result of any act or omission
on the part of Tenant or any affiliate, owner, officer, director,
employee, agent Or
contractor of Tenant. Tenant's indemnification obligations
shall
survive the expiration or termination of
this
Lease.
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5
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TAXES.
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5.1
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Tenant's
Personal Property. Tenant shall pay, prior to delinquency, all
taxes assessed against (or levied upon) Tenant's fixtures, furnishings,
equipment and other personal property located in or upon the Premises.
If
any of Tenant's fixtures, furnishings, equipment and other personal
property are assessed and taxed with the real property, Tenant shall
pay
to Landlord Tenant's share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement In writing setting
forth the
amount of the taxes applicable to Tenant's personal
property.
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5.2
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Rental
and Other Taxes. Simultaneously with the payment of any sums required
to be paid under this Lease as Base Rent, additional rent or otherwise,
Tenant shall pay to Landlord any excise, transaction privilege, rental,
sales or other tax (except income or estate taxes) levied or assessed
by
any federal, state or local authority upon such amount received by
Landlord.
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6
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PARKING
AND COMMON
AREAS.
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6,1
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Common
Areas. All parking areas, parking structures, access roads, driveways,
pedestrian sidewalks and ramps, landscaped areas, drainage facilities,
exterior lighting, signs, roofs, courtyards, lobby, public rest rooms,
signs and directories and other areas and improvements provided by
Landlord for the general use in common of tenants and their agents,
employees, customers and other invitees (collectively, the "Common
Areas")
shall at all times be subject to the exclusive control and management
of
Landlord, and Landlord shalt have the right from time to time to
modify,
enlarge or eliminate the same and to establish, modify and enforce
reasonable rules, regulations and parking charges with respect thereto,
Landlord and Tenant agree that Tenants current use and
allocation of parking does not interfere with other tenants
in the
building and Landlord herby approves Tenants current exclusive parking
spaces and the nonexclusive use of and access to the Common Areas.
Landlord shall cause the Common Areas to be maintained in a neat,
clean
and orderly condition.
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6.2
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Landlord's
Rights. Landlord, at any time, may close temporarily any portion of
the Common Areas to make repairs or changes, to prevent the acquisition
of
public rights in such areas and to discourage non-customer use. In
addition, Landlord may (I) modify, from time to time, the traffic
flow
pattern and layout of parking spaces and the entrances and exits
to
adjoining public streets or walkways; (ii) utilize portions of the
Common
Areas for entertainment, displays and charitable activities; (iii)
designate, from time to time, certain areas for the exclusive business
use
by certain tenants; and (iv) do such other things in and to the Common
Areas as in its judgment may be desirable to Improve the convenience
or
attraction of the Building.
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6.3
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Parking.
Landlord agrees to operate and maintain or cause to be maintained
and
operated an Automobile Parking Area (the "Automobile Parking Area")
during
the Lease Term for the benefit and use of tenants, customers, patrons
and
employees of tenants of the Building. Nothing contained herein shall
be
deemed to create liability upon Landlord for any damage to, or loss
of
property from, any motor vehicles in or around the
Premises.
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6.3.2
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Landlord
shallhave the right
to reserve and assign parking spaces for Tenant (See Exhibit "C')
and
other tenants of the Building or to designate parking rights on an
unreserved, non-exclusive basis. Landlord shall have the right to
establish and from time to time change, alter and amend, and to enforce
against all users of the Automobile Parking Area, reasonable rules
and
regulations (including the exclusion of parking from designated areas
and
the assignment of spaces to tenants) as may have been deemed necessary
and
advisable for the proper and efficient operation and maintenance
of the
Automobile Parking Area Including, without limitation, the
hoursduringwhich the Automobile Parking Area shall be open for use.
Landlord may establish such reasonable charges as Landlord deems
appropriate for the use of the Automobile Parking Area by persons
who have
not leased space in the Building.
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7
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OPERATING
COSTS.
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7.1
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Operating
Costs, Real Propei[y Taxes and Utilities. The Operating Costs are not
included in the base rent and consist of those costs and expenses
directly
associated with managing, operating, maintaining and repairing the
Building, including the Automobile Parking Area and the other Common
Areas,
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7.1.2
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Operating
Costs shall not include: income, estate and inheritance taxes levied
against Landlord; taxes paid by any tenant under Section 5; depreciation,
capital investment items (except as provided in Section 8.1) and
debt
service; costs of leasing space in the Building, including leasing
commissions and leasehold improvement costs; the cost of utilities
separately metered to any tenant or resulting from Excess Consumption
under Section 10 and billed directly to that tenant; the cost of
special
services provided to any tenant and billed directly to that tenant;
and
repairs and maintenance paid by proceeds from insurance or
tenants,
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8
REPAIR AND MAINTENANCE.
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8.1
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Tenant's
Obligations. Tenant shall maintain the interior of the Premises in
good and sanitary condition and repair. Any repairs, alterations
or other
improvements required under governmental authority resulting from
the
specific use of the Premises by Tenant shall be performed by Tenant
at
Tenant's sole cost
and expense. Tenant hereby waives all right to make repairs
at the
expense of Landlord. If any repairs or maintenance required to be
made by
Tenant are not made within ten (10) days after notice to Tenant,
Landlord,
at Landlord's option, may make such repairs or maintenance without
liability to Tenant for any loss or damage resulting therefrom, and
Tenant
shall pay to Landlord, upon demand, as additional rent hereunder,
the cost
thereof, plus interest thereon at the Default
Rate,
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82
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Landlord's
Obligations. Notwithstanding Section 8.1 above, Landlord shall repair
and maintain the Common Areas, all
Building systems (electrical, heating, ventilation, air
conditioning and plumbing), plate glass and the roof and exterior
of the
Premises. Tenant shall grant access to Landlord's service providers
for performance of all required
maintenance duties during normal business hours. Landlord
shall
not be responsible for making any repairs or performing any
maintenance within the Premises.
Except as described
In 8.1 above and in the case of a fire or casualty
as provided in Section 13, there shall be no abatement of
the Base
Rent and no liability
of Landlord by reason of any entry to the Premises, interruption of
services or facilities, temporary
closure of Common Areas, or interference with Tenant's business
arising from the making of any repairs or
maintenance.
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9
ALTERATIONS.
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9,1
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Restoration.
Upon the expiration or sooner termination of this Lease, Tenant
shall
remove all of Tenant's furniture and trade
fixtures.
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10
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UTILITIES
AND JANITORIAL
SERVICES Landlord
agrees to furnish to the
Premises at
all
times electricity
suitable for the
Intended use
of the Premises,
and
during normal business hours on a five day week and subject
to the rules and
regulations of the Building, heat and air conditioning from 7:00
a.m. to
6:00 p.m.,
Monday
through Friday, and 8:00 a.m. to 12:00 noon, Saturday, excluding
legally
recognized holidays,
for normal use and
occupation
of the Premises, and
janitorial services for the Premises and Common Areas currently scheduled
on Tuesday, Thursday and Sunday. Landlord shall also provide Tenant with
heat and air
conditioning at all other times, day or night, at Landlord's prevailing
charges for
additional
consumption of heat or air conditioning. Landlord further agrees
to
furnish hot and cold water to those areas provided for general use
of all
tenants in the Building (the Common Areas). Tenant shall not, vvithout
the written consent
of Landlord, use any apparatus or device in the Premises, including
without limitation, duplicating machines,
electronic data processing
machines and machines
using electrical
current In excess of 120 volts, which will
result
in Excess
Consumption, nor connect,
except
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Consumption,
nor connect, except through existing electrical outlets, water pipes, ducts
or
airpipes (if any) in the Premises, any apparatus or device for the purposes
of
using electric current, water, heating, cooling or air without Landlord's prior
written approval. As used in this Section 10, "Excess Consumption" means the
consumption of electrical current (including current in excess of 120 volts),
water, heat or cooling in excess of that which would be provided to the Premises
were the Premises to be (I) used as general office space during the foregoing
business hours; and (ii) equipped only with typewriters, telephone systems,
desk
calculators, personal and network computers and servers, dictation equipment
and
copying machines with power requirements of 30 amperes or less. If Tenant shall
require water, heating, cooling, air or electric current which will result
in
Excess Consumption, Tenant shall first procure the consent of Landlord to the
use thereof, and Landlord may cause separate meters to be installed to measure
Excess Consumption or establish another basis for determining the
amount of Excess Consumption_ Tenant covenants and agrees to pay
for
the cost of the Excess Consumption based on Landlord's cost, plus any additional
expense incurred in installing meters or keeping account of the Excess
Consumption, at the same time as payment of the Base Rent is made. Tenant
further agrees to pay Landlord the cost, if any, to upgrade existing mechanical,
electrical, plumbing and air facilities, if required to provide Excess
Consumption, upon receipt of a statement therefore. Excess Consumption costs
will not be an Operating Cost for purposes of Section 7. Landlord shall not
be
liable for damages or otherwise in the event of any failure or interruption
of
any utility or service supplied to the Premises or Building by a regulated
utility or municipality and no such failure shall entitle Tenant to terminate
this Lease.
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CERTAIN
RIGHTS RESERVED BY LANDLORD. Landlord shall have the following rights,
exercisable without notice and 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
of
the Premises and without giving rise to any claim for setoff or abatement
of rent: (a) to establish reasonable rules governing the conduct
of
tenants and all other persons at the Building, (b) to change the
Building's name or street address, (c) to install, affix and maintain
any
and all signs on the exterior and interior of the Building, (d) to
grant
to anyone the exclusive right to conduct any business or render any
service in or to the Building, provided such exclusive right shall
not
operate to exclude Tenant from the use expressly permitted herein,
(e)
to approve the weight, size and location of safes and
other
heavy equipment and articles in and about the Premises and the Building,
and to require all such items and furniture and similar items to
be moved
into and out of the Building and Premises only at such time and in
such
manner as Landlord shall direct in writing, and (f) to take all such
reasonable measures as Landlord may deem advisable for the security
of the
Building and its occupants, including, without limitation, the search
of
all persons entering or leaving the Building, the evacuation of the
Building for cause, suspected cause or for drill purposes, the temporary
denial of access to the Building, and the restriction of access to
the
Building at times other than normal business hours. Per the lease
with
SpinSix and Xxxx Xxx'x Kitchen, Tenant upon notice to Landlord's
other
tenants will be granted access to Tenants other
storage.
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12
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DAMAGE
TO PROPERTY; INJURY TO PERSONS;
INSURANCE.
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12.1
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Indemnification
by Tenant. Tenant shall defend, indemnify and hold Landlord harmless
for, from and against any and all claims, liabilities, suits, losses,
damages, costs and expenses, including without limitation reasonable
attorneys' fees (collectively, "Claims"), arising from Tenant's use
of the
Premises or the conduct of Tenant's business or from any activity,
work,
or thing done by Tenant in or about the Premises. Tenant shall further
defend, indemnify and hold Landlord harmless for, from and against
any and
all Claims arising from any breach or default under the terms of
this
Lease by Tenant, or arising from any negligence or willful misconduct
of
Tenant, or of its agents or employees. Tenant, as a material part
of the
consideration to Landlord, hereby assumes all risk of damage to property
or injury to persons, in, upon, or about the Premises from any cause,
and
Tenant hereby waives all claims in respect thereof against Landlord,
unless caused by the gross negligence of Landlord, its agents or
employees. Landlord shall not be liable for loss of or damage to
any
property by theft or otherwise, or for any injury or damage to persons
or
property resulting from fire, explosion, falling plaster, steam,
gas,
electricity, appliances or plumbing works therein, or from the street
or
subsurface. Landlord shall not be liable for any liable for any damages
arising from any act or neglect of any other tenants in the
Building.
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12.2
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Indemnification
by Landlord,
Landlord
shall
defend, indemnify and hold Tenant harmless for, from and against
any and all Claims
arising from any breach or default under the terms of this Lease
by
Landlord,
or arising
from the negligence or willful misconduct of Landlord or its agents
or
employees.
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12.3
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Tenant's
Insurance, Tenant shall
maintain fire and extended coverage insurance throughout the
term
of this Lease in an amount equal to one hundred percent (100%) of
the
replacement value of Tenant's fixtures, equipment and other personal
property located on the Premises, together with such other insurance
as
may be required by Landlord's lender or by any government agency,
In
addition, Tenant shall maintain the following amounts and types of
insurance commencing as of the Commencement
Date and continuing for the term of this Lease: (i) liability
Insurance coverages relating to the Premises and adjacent sidewalks
and
stairways as follows; (A) comprehensive and broad form general liability
insurance
in an amount not less than $1,000,000, combined single limit;
(8)
liability insurance for owned, hired, or non-owned vehicles, in an
amount
not less than $1,000,000, combined single limit; (C) workers'
compensation, as required by law, and employer's liability in an
amount
not less than $100,000. All liability Insurance policies shall be
written
on an occurrence basis. The required coverage, in excess of a base
coverage of not less than $1,000,000, may be provided by a blanket,
multi-location policy, if such policy provides a separate aggregate
limit
per occurrence for the benefit of the Premises and the Building;
(D)
business interruption insurance in an amount equal to twelve (12)
months
of basic rent
and additional rent. All required insurance policies shall
name
Landlord and mortgagee of Landlords interest in the building as additional
insured; and shall provide that such policies shall not be cancelled,
nor
shall any material change be made to the policy, without at least
thirty
(30) days prior written notice to Landlord. All insurers shall be
rated
A-X or better by Best's. Tenant shall provide Landlord with certificates
evidencing the required insurance coverage within fifteen (15) days
after
the date of this Lease.
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12.4
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Waivers.
Tenant hereby waives any right of recovery from Landlord, and Landlord's
agents, officers and employees, and Landlord hereby waives any right
of
recovery from Tenant and Tenant's agents, officers and employees,
from any
loss or damage (Including consequential loss) resulting from any
of the
perils insured against by the fire and extended coverage insurance
policy of either of them. Neither Landlord nor Tenant shall be liable
to
the other or to any insurance company insuring the other party (by
way of
subrogation or otherwise) for any loss or damage to any building,
structure or other tangible property; or resulting loss
of income, or losses under worker's compensation
laws and benefits, even though such loss
or damage might have been occasioned by the negligence of such
party, its agents or employees, if any such loss or damage is covered
by
insurance benefiting the party suffering such loss or damage or was
required to be covered by insurance pursuant to this
Lease.
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13
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CASUALTY.
If less than twenty-five percent (25%) of the Premises or the
Building
is destroyed or damaged by fire or other casualty, Landlord shall
restore
the Premises with reasonable diligence; provided, however, that Landlord
shall have no obligation to restore improvements not originally provided
by Landlord or its Predecessor, or to replace any of Tenant's fixtures,
furnishings, equipment or personal property, Upon completion of Landlord's
restoration work, Tenant shall promptly replace and restore all of
Tenant's fixtures, furnishings and equipment damaged or destroyed
by the
casualty. Landlord shall not be required to commence repairs until
insurance proceeds are available. If twenty-five percent (25%) or
more of
the Premises or the Building is destroyed, then Landlord may elect,
not to
rebuild the Premises, or the Building (as applicable) and, upon such
election, this Lease shall terminate as of the date of the casualty.
If
Landlord notifies Tenant that the restoration is anticipated to take
more
than one hundred twenty (120) days to substantially complete, then
either
party may terminate this Lease
by notice thereof to the other party within ten (10) days
after
notice of such fact has been given. If the
fire
orcasualty
occurs within the last three (3) years of the Lease term, then Landlord,
by written notice to Tenant, may terminate this Lease. If this Lease
is
not terminated as provided above, this Lease shall continue in full
force
and effect, but
if Tenant is unable to use the effect,
but if Tenant is unable to use the Premises during the restoration,
then
Base Rent and
additional rent shall xxxxx until the restoration is substantially
complete. Tenant shall carry business interruption insurance covering
loss
of income for twelve (12) months from any event causing an
interruption.
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14
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CONDEMNATION.
If more than twenty-five percent (25%) of the Premises is taken
under
the power of eminent domain, or if by reason of any appropriation
or
taking, regardless of the amount so taken, the remainder of the Premises
or the Building is not one (1) undivided parcel of property, either
Landlord or Tenant shall have the right to terminate this Lease as
of the
date Tenant is required to vacate a portion of the Premises upon
giving
notice in writing of such election within thirty (30) days after
receipt by
Tenant from Landlord of written notice that
the
Premises have been so appropriated or taken. if any part of the Automobile
Parking Area Is taken, Landlord shall have the right to provide substitute
parking facilities and this Lease shall continue in full force and
effect
unless a government entity forces the closing of the Building. In
all
other situations, if the award is sufficient to restore the property
taken, Landlord shall restore the Premises to the extent practicable
to
the condition existing prior to the taking, and thereafter
the
Base Rent shall be reduced on an equitable basis, taking into account
the
relative value of the portion of the Premises taken (If any) as compared
to the portion remaining. All awards or compensation
for
any taking of any part of the Premises shall be the sole property
of
Landlord. Tenant shall be entitled to apply for and receive an award
of
compensation relating to damage to or loss of trade fixtures or other
personal property belonging to Tenant. Landlord shall be under no
obligation to restore or replace Tenant's furnishings, fixtures,
equipment
and personal property. For the purposes of this Section, a voluntary
sale
or conveyance in lieu of condemnation shall be deemed an appropriation
or
a taking under the power of eminent
domain,
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15
ASSIGNMENT AND SUBLETTING. SALE BY
LANDLORD,
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15.1
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Assignment
and Subletting. Tenant shall not assign, hypothecate or transfer this
Lease, or sublet the Premises or any part thereof, or permit the Premises
or any
part thereof to be occupied by anyone other than Tenant, either
voluntarily or by operation of law, without the Landlord's prior
written
consent, which consent shall not be unreasonably withheld provided
the
proposed assignee, transferee or subtenant is reasonably satisfactory
to
Landlord as to credit and character and will occupy the Premises
for
purposes not inconsistent with Tenant's purposes as stated in Section
4
or other purposes approved by Landlord. Landlord shall
be
under no obligation to give or withhold consent until all information
reasonably required by Landlord with respect to the identity, background,
experience and financial worth of the proposed assignee, transferee,
or
subtenant has been provided. No hypothecation, assignment, sublease
or
other transfer to Which
Landlord has consented shall be effective for any purpose
until
fully executed documents of such transaction have been provided to
Landlord, and, in the case of an assignment, the assignee has attorned
directly to Landlord, and in the case of a sublease, the subtenant
has
acknowledged that the sublease Is subject to all of the terms and
conditions of this Lease. Tenant shall promptly notify Landlord of
the
terms of any approved assignment or sublease. Any assignment, mortgage,
transfer or subletting of this Lease which is not In compliance with
the
provisions of this Section shall be void and shall serve to terminate
this
Lease. The consent by Landlord to an assignment or subletting shall
not be
deemed to be a consent to any subsequent assignment or subletting.
Consent
to an assignment or sublease shall not relieve Tenant from liability
under
this Lease unless expressly agreed to by Landlord. Any change of
fifty
percent (50%) or more of the ownership or control in the
shareholders or partners of Tenant shall be deemed an assignment
for
purposes of this Section.
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|
15.2
|
Sale
by Landlord. Upon the sale of the Premises by Landlord, Landlord shall
be relieved of all liability under this Lease, and Tenant shall look
solely to Landlord's successor in interest for performance of Landlord's
obligations hereunder. Any security given by Tenant to secure performance
of Tenant's obligations
hereunder may be assigned and
transferred by Landlord to such purchaser.
This
Lease
shall not be
affected by any sale, and Tenant shall attorn to the successor in
Interest
of Landlord.
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7
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16
|
ESTOPPEL
CERTIFICATE.
Within ten (10) clays after receipt
of request therefore, either party shall deliver to the other
a
written statement confirming the Commencement
Date and the termination date of the Lease; the material terms
of the Lease; that the Lease is in full force and effect;
that the
Lease has not been modified (or if it has, stating
such modifications); the amount of the security deposit (if
any)
and
the date to which Base Rent has been paid; and
providing any other pertinent information the requesting
party may reasonably require. It is intended that any such
statement delivered pursuant to this Section may be relied upon by
a prospective purchaser or mortgagee of Landlord's interest
in the Building. If Tenant shall fail to respond
within ten (10) days of receipt of a
written request by Landlord as herein provided, Tenant shall be
deemed to have given such certificate as above
provided without modification and shall be deemed
to have admitted the accuracy
of any information supplied by Landlord to a
prospective purchaser or
mortgagee.
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|
17
|
DEFAULTBY
TENANT.
|
|
17.1
|
Default.
The
following shall constitute a
default by Tenant under this Lease: (i) Tenant fails to pay
Base
Rent or any other additional
rent due under this Leasewithin
five (5) days after the
due date; (ii)
Tenant fails to execute, acknowledge and return an estoppel certificate
under Section 16 or a subordination
agreement under
Section 20, within ten (10) days after a request therefore; (iii)
Tenant fails
to
perform any other obligation under this Lease within fifteen (15)
days
after notice of nonperformance;
provided,
however, that if the default is of such a nature that it cannot be
cured
within fifteen
(15)
days, Tenant shall not be in default if Tenant commences to cure
such
default and
thereafter diligently cures such default within thirty (30) days
thereafter; (iv) Tenant vacates, abandons,
or otherwise ceases to
use the Premises on a continuing basis except temporary absence excused
by reason of
fire, casualty, or other cause
wholly beyond
Tenant's control;
(v)
a receiver
is
appointed for the business,
property, affairs or
revenues of Tenant or any guarantor (provided,
however, that in the
case of involuntary proceedings, Tenant shall have sixty
(60) days
to cause such
receiver to be dismissed), or Tenant makes a bulk sale of its goods
or
threatens to move
its goods, chattels and equipment out of the Premises other than
in the
normal course of its
business,
or Tenant
makes an assignment for the benefit of its creditors, or Tenant becomes
insolvent;
or (vi)
Tenant
fails to
comply
with any
other provision of
this
Lease.
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|
17.2
|
Landlorcrs_Rempdies.
On
any
default, Landlord, at Landlord's
option, without notice or demand, may
exercise any and all remedies to which Landlord may be entitled
at
law or in equity, in any
order, successively or concurrently, including without limitation,
the following:
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|
17.2.1
|
Landlord
may take any action deemed necessary by Landlord, in Landlord's sole
discretion, to cure the default, Tenant shall be liable to Landlord
for
all of Landlord's expenses so Incurred, as additional rent, payable
on
demand
by Landlord to Tenant together with interest thereon at the
Default
Rate from the date such sums were
expended.
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|
17.2.2
|
Landlord
may prosecute and maintain an action or actions, as often as Landlord
deems advisable, for collection of rent, other charges
and damages as the same accrue, without entering into possession
and without terminating this Lease, No judgment obtained shall constitute
a merger or otherwise bar prosecution of subsequent actions for rent
and
other charges and damages as they accrue. Tenant agrees to pay Landlord
all costs of collection of past
due rent, including court costs and attorneys'
fees.
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|
17.2.3
|
Landlord
may immediately
or at any time thereafter re-enter
and take possession of the Premises and remove Tenant, Tenant's
agents, any subtenants, licensees, concessionaires, or invitees and
any or
all of their property from the Premises. Reentry andremoval
may be effected by summary proceedings or any other action or proceedings
at law, by force or otherwise. Landlord shall not be liable in any
way in connection with any action taken under this Section. No action
taken, commenced or prosecuted by
Landlord,
|
8
prosecuted
by Landlord, no execution on any judgment and no act or forbearance on the
part
of Landlord in taking or accepting possession of the Premises shall be construed
as an election to terminate this Lease unless Landlord expressly exercises
this
option under Section 17.2.4. Upon taking possession of the Premises, Landlord,
from time to time,
without termination of this Lease, may relet the Premises or any part
thereof as agent for Tenant for such rental terms and conditions (which
may be for a term extending beyond the Lease Term) as Landlord, in its sole
discretion, may deem advisable, with the right to make alterations and repairs
to said Premises required for reletting. The rents received by Landlord from
such reletting shall be applied first to the payment of any costs of
reletting and second to the payment of rent due and unpaid hereunder. The
residue, if any shall be held by Landlord and applied in payment of future
rent
as the same may become due and payable hereunder. If the rents received from
such reletting during any month are insufficient to reimburse Landlord for
any
costs of reletting or rent due and payable, Tenant shall pay
any deficiency to Landlord. Such deficiency shall be calculated and
paid
monthly. Notwithstanding any such reletting without termination, Landlord may
at
any time thereafter elect to terminate
this Lease for
such previous breach.
|
17.2.4
|
Landlord
may elect to terminate this Lease
by written notice to Tenant, In the event of such termination,
Tenant agrees to immediately surrender possession of the Premises,
if Tenant fails or
refuses to surrender the Premises, Landlord may take possession in
accordance
with Section 17.2.3 above, If Landlord terminates this Lease,
Tenant shall have no further interest
in this Lease or in the Premises,
however, Tenant shall remain liable to Landlord for all damages
Landlord may sustain by reason of Tenant's default, including without
limitation (1) the cost
of reletting the Premises, and
(2) either (I) an amount equal to the rent which, but for
termination of this Lease, would have been payable by Tenant during
the
remainder of the Lease Term, less any proceeds received during the
Lease
Term from reletting the Premises; or (ii) an amount equal to the
present
worth (immediately
prior to termination) of the rent which, but for termination of
this Lease, would have been payable during the remainder of the Lease
Term, less the then reasonable rental value of the Premises, which
amount
shall be payable to Landlord upon demand. Rent which
would have been payable for the remainder of the
Lease Term shall be calculated
on the basis of the Base Rent and additional
rent payable by Tenant at the time of default
plus any future Increases which are determinable at the time of
calculation.
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|
17.2.5
|
Landlord
may obtain the appointment of a receiver in any court of competent
jurisdiction, and
the receiver may take possession of any
personal property belonging to Tenant and used
in the conduct of the business of Tenant being conducted in the
Premises. Tenant agrees that the entry upon the Premises or possession
of
said personal property by said receiver shall not constitute an eviction
of Tenant from the Premises or
any portion thereof,
and
Tenant hereby agrees to hold Landlord
safe and harmless from any claim by any
person arising out of or
in any way connected with the entry by said receiver in taking
possession of the Premises or any personal
property.
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17.3
|
Recovery
of Costs. Landlord, in every case, shall
be entitled to recover
from Tenant all of Landlord's expenses,
costs and damages arising out of any event of default, including,
but not limited to, advertising, brokerage fees, clean-up, repair,
removal and storage of Tenant's property,
alterations,refurnishing,
refurbishing,custodial and
security expenses,bookkeeping
and
accounting
costs,
legal
expenses (whether
or not suit is brought), and costsand
expenses of
litigation.
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9
|
17.4
|
No
Termination. No act or conduct of the Landlord, whether consisting of
re-entry, taking possession or resetting the Premises or
obtaining appointment of a receiver or accepting the keys
to the
Premises, or otherwise, prior to the expiration of the Lease Term
shall be
deemed to be or constitute an acceptance of the surrender of the
Premises
by the Landlord or an election to terminate this Lease unless Landlord
exercises its election under Section 17.2.4 of this Lease. Such acceptance
or election by Landlord shall only be effected, and must be evidenced,
by
written acknowledgment of acceptance of surrender or notice of
election to terminate signed by
Landlord.
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|
17.5
|
Landlord's
Right to Act. Tenant agrees that in the event Tenant is due to render
performance in accordance with any term or condition of this Lease
and
fails to render such performance within ten (10) days after written
notification thereof is given in accordance with the notice provision
hereof (or immediately if required for protection of the Premises),
Landlord shall have the right, but not the obligation, to render
such
performance and to charge all costs and expenses incurred in connection
therewith to Tenant. All amounts so charged shall be considered additional
rent and shall be due and payable immediately to Landlord upon presentment
of a statement to Tenant indicating the amount and nature of such
cost or
expense.
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|
17.6
|
Cumulative
Nature of Remedies. No remedy herein conferred upon Landlord shall be
considered exclusive of any other remedy, but the same shall be cumulative
and shall be in addition to every other remedy given hereunder, now
or
hereafter existing at law or in equity or by statute. No delay or
omission
of Landlord to exercise any right or power arising from any default
shall
impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence
therein.
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|
17.7
|
Consents
by
Landlord. Any requirement that Landlord provide a
consent or approval under this Lease shall be subject to the condition
that at the time the approval or consent is requested that Tenant
shall
not be in default under this Lease, and no circumstances shall exist,
which with the giving of notice and the passage of any grace period
would
constitute a default by Tenant under this
Lease.
|
|
18
|
DEFAULT
BY
LANDLORD.
|
|
18.1
|
Default.
If Landlord should be in default in the performance of any of
its
obligations under this Lease, which default continues for a
period of more than fifteen (15) days after receipt of written
notice
from Tenant specifying such default, or if such default is
of a nature to require more than fifteen (15) days for
remedy and continues beyond the time reasonably necessary to cure
(provided Landlord must have undertaken procedures to cure the default
within such fifteen (15) day period and diligently pursue such efforts
to
cure to completion), Tenant may, at its option, upon written notice,
incur
any expense necessary to perform the obligation of Landlord specified
in
such notice and recover such expense from Landlord with interest
thereon
at the Default Rate, including the right to set off against rent
due.
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|
18.2
|
Non-recourse
Liability. If Landlord fails to perform any of its obligations under
this Lease and, as a consequence of such nonperformance, Tenant recovers
a
money Judgment against Landlord, such judgment shall be satisfied
only out
of Landlord's Interest in the Building, subject to prior rights of
any
mortgagee of the Building, Landlord and its constituent partners,
and
their respective officers, directors, shareholders, affiliates, heirs,
personal representatives, successors or assigns (collectively, "Related
Parties") shall have no personal liability whatsoever for any deficiency,
and no other assets of Landlord or Landlord's Related Parties shall
be
subject to levy, execution or other enforcement procedures as a result
of
such judgment. None of Landlord's obligations under this Lease shall
be
subject to specific performance or injunctive remedies, and Tenant
waives
all rights with respect to such
remedies.
|
10
|
19
|
NOTICES.
All notices, requests, authorizations, approvals, consents and other
such
communications shall be in writing and shall be delivered in person,
by
private express overnight delivery service (freight prepaid), by
certified
or registered mail, return receipt requests, or by facsimile transmission
(confirmed.
by the
recipient), addressed as follows:
|
|
To Landlord:
|
Iceman
Properties, LLC.
0000
X Xxx Xxx Xxxxxxxx
Xxxxxxx,
XX 00000
|
|
To
Tenant:
|
Xxxxxxxxx
On TV Copany
00000
X. 00xx
Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
|
|
19.1
|
Notices
shall be deemed to be given or received on the date of actual receipt
(or
refusal of delivery) at the applicable
above-stated address or at such other address as a party may direct
from
time to time, upon written notice to the other party at least ten
(10)
days prior to the proposed change of
address.
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|
20
|
SUBORDINATION;
ATTORNMENT: QUIET ENJOYMENT. Landlord expressly reserves the right at
any time to place liens and encumbrances on and against the Premises,
superior in lien and effect to this Lease and the estate created
hereby.
This Lease shall be subordinate to any covenants, conditions, and
restrictions that currently are on the Building or that may be placed
on
the Building in the future. The subordination of this Lease shall
be
self-operative without the necessity of a written instrument,
but Tenant shall nevertheless execute, within ten (10) days after
request,
a subordination agreement to that effect in the form customarily
used by
the holder of such lien or encumbrance. Landlord covenants that,
provided
Tenant is in compliance with all of the terms and conditions of this
Lease, Tenant shall have the right of peaceable and quiet enjoyment
of the
Premises during the Lease Term. This covenant shall not extend to
any
disturbance, act, or condition occasioned by any other tenant in
the
Building, and shall be subject to the rights of Landlord set forth
in this
Lease.
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|
21
|
ENTRY
BY LANDLORD. Landlord and Landlord's agents shall have the right to
enter the Premises at all reasonable times to inspect the same; to
perform
Landlord's maintenance and repair obligations under this Lease; to
post
such reasonable notices as Landlord may desire to protect its
rights; to exhibit the Premises to any prospective purchaser or mortgagee
of the Building; or, during the last twelve (12) months of the Lease
Term,
to exhibit the Premises to prospective
tenants,
|
22
GENERAL PROVISICINA,
|
22.1
|
Force
Majeure. If either party hereto shall be delayed or prevented from the
performance of any act required hereunder by reason of acts of God,
strikes, lockouts, labor troubles, inability to procure materials,
restrictive governmental laws or regulations or other cause without
fault
and beyond the control of
the party obligated (financial inability excepted), performance
of
such act shall be excused for the period of the delay, and the period
for
the performance of any such act shall be extended for a period equivalent
to the period of such delay; provided, however, nothing contained
in this
Section shall excuse Tenant from the prompt payment of any rent or
other
sum required of Tenant hereunder.
|
|
22.2
|
Rules.
Tenant and its agents, contractors, employees, and customers
shall
comply with all reasonable rules and regulations established by Landlord
from time
to time for the operation of the Building. The current rules
are as
shown on Exhibit IT.
|
|
22.3
|
Captions,
The captions contained in this Lease are for convenience only and
shall
not be considered in the construction or interpretation of any
provision.
|
11
|
22.4
|
Merger.
This Lease contains all of the agreements of the parties
hereto
with respect to this Lease, and
all preliminary negotiations and covenants are merged herein.
There
are no oral agreementsor
implied covenants except as expressly set forth herein. This Lease
may be
amended only by a written
agreement signed by both parties.
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|
22.5
|
Attorneys'
Fees. If any action is
brought by any party with respect to its rights under this
Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and court costs, as
determined by the court. If Landlord is involuntarily made a party
defendant to any litigation concerning this Lease or the Premises
by
reason of any act or omission of Tenant, Tenant shall indemnify and
hold
Landlord harmless.
|
|
22.6
|
No
Partnership.
Nothing in this Lease shall be
deemed
or construed to create a
partnership or joint venture relationship between Landlord
and
Tenant, it being expressly acknowledged that the sole and exclusive
relationship between the parties is that of Landlord and
Tenant.
|
|
22.7
|
Waiver;
Remedies. The failure of Landlord or Tenant to insist upon
strict performance by the other of any of the provisions of this
Lease or
to exercise any option herein conferred shall not be deemed as a
waiver or
relinquishment for the future of any such provision or option. Except
as
expressly provided otherwise herein, all rights and remedies
provided for herein or otherwise existing at law or in equity are
cumulative, and the exercise of one or more rights or remedies by
either
party shall not preclude or waive its right to the exercise of any
or all
of the others.
|
|
22.8
|
Choice,of
Law. This Lease shall be governed by and construed in accordance with
the laws of the State of Arizona.
|
|
22.9
|
Partial
Invalidity.. Any
provision of
this Lease which shall prove to be invalid, void or illegal
shall
in no way affect, impair or invalidate any other provisions hereof
and
such other provisions shall remain in full force and
effect.
|
|
22.10
|
LeaseConstrued
as Whole..
The language in all parts of this Lease shall in all cases
be
construed as a whole according
to its fair meaning and not strictly for nor against either
Landlord or Tenant.
|
|
22.11
|
Bindirs1
Effect. Except as otherwise expressly limited in this Lease,
this Lease shall be binding upon and inure to the benefit of the
parties
hereto, and their respective heirs, executors, administrators, personal
representatives and assigns and successors in
interest.
|
|
22.12
|
Time.
Time is of the essence of this
Lease.
|
|
22.13
|
Joint
and Several Liability. If Tenant is comprised of more than one entity,
then the obligations of such entities or parties shall be joint and
several.
|
| By: Iceman Properties, LLC | |||
|
Date
|
|
/s/ | |
| Xxxxxxx X. Xxxxx | |||
| Its ManaginizMember, | |||
| "Landlord" | |||
| By: Xxxxxxxxx On TV Company | |||
|
Date
|
|
/s/ | |
| Xxxxxxx | |||
| Its | |||
| "Tenant" | |||
12
LIST
OF EXHIBITS
|
Exhibit
A
|
-
|
Building
Floor Plan
|
| Exhibit B | - | Building Rules and Regulations |
| Exhibit C | - | Parking Space Allocation |
| Exhibit D | - | Letter of Intent |
13
