Exhibit 10(HH)
LEASE
BETWEEN
PHOENIX CITY SQUARE PARTNERSHIP
AND
XXXXXX X. XXXXXXX AND XXXXXX X XXXXXXX,
as husband and wife, jointly and severally
DATE: MARCH 18, 0000
XXXXXXX XXXX XXXXXX
XXXXXXX, XXXXXXX
This lease shall not be treated as an offer to lease but merely as a Lease for
review purposes. This Lease shall not be valid or binding unless and until
accepted by Lessor in writing and a fully executed copy is delivered to all
parties hereto. This lease is subject to withdrawal or modification by Lessor at
any time. Lessor reserves the right to offer the premises simultaneously to
other third parties, therefore, the premises may be subject to prior leasing.
PHOENIX CITY SQUARE
LEASE
Table of Contents
Section Page
1. Premises 1
2. Term and Completion of Improvements 1
3. Rental 1
4. Security Deposit 3
5. Use; Compliance with Laws 3
6. Insurance 3
7. Lessee's Acceptance 5
8. Repairs 5
9. Notice of Damage 5
10. Inspections 5
11. Common Areas 5
12. Default 6
13. Remedies 6
14. Security Interest 7
15. Nonliability 7
16. Liability 8
17. No Estate 8
18. Services 8
19. Assignment and Subletting 9
20. Destruction or Damage 10
21. Condemnation and Eminent Domain 10
22. Alterations and Improvements 10
23. Attorney's Fees 10
24. Entire Agreement 10
25. Time of Essence 11
26. Rules and Regulations 11
27. Surrender of Premises 11
28. Notices 11
29. Broker 12
30. Affirmative Waivers 12
31. Terms 12
32. Controlling Law and Severability 12
33. Submission of Lease 12
34. Relocation of Lessee 12
35. Special Stipulations 13
36. Subordination and Attornment 13
37. Estoppel Certificate and Financial Information 13
38. Parking 13
39. Tax Status 14
Exhibit A--Floor Plan
Exhibit B--Work Schedule Agreement
Exhibit C--Rules and Regulations
Exhibit D--Special Stipulations
Exhibit E--Acceptance of Premises
PHOENIX CITY SQUARE
LEASE
THIS LEASE (this "Lease") , made this 14th day of March, 1996, by and
between PHOENIX CITY SQUARE PARTNERSHIP, a New York general partnership, with
offices at 000 Xxxxxxx Xxxxxx, Xxxxx Financial Center, Xxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 ("Lessor") and XXXXXX X. XXXXXXX AND XXXXXX X.
XXXXXXX, as husband and wife, jointly and severally, whose principal place of
business is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X-0, Xxxxxxx, Xxxxxxx ("Lessee").
1. PREMISES: Lessor, for and in consideration of the rents, covenants,
agreements and stipulations herein contained to be paid, kept and performed by
Lessee, has leased and rented, and by these presents does lease and rent, unto
Lessee and Lessee hereby leases, upon the terms and conditions set forth herein,
office suite number B-1 (the "Premises") being located on the ground floor(s) of
that certain office building (the "Building") situated on that certain tract of
land (the "Land") located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
The Premises is more particularly shown on the floor plan annexed hereto as
Exhibit "A" and by this reference made a part hereof. The rentable area of the
Premises is deemed to be approximately 3, 598 square feet.
2. TERM AND COMPLETION OF IMPROVEMENTS: (a) The term of this Lease shall be
for four (4) years, two (2) months and eighteen (18) days from and after the
date (the "Commencement Date") which is the earlier of March 14, 1996, or the
date that Lessor tenders possession of the possession of the Premises of Lessee
ready for occupancy in accordance with the requirements of the Work Schedule
Agreement, as set forth in Exhibit "B" attached hereto and made part hereof, and
shall end on May 31, 2000 (the "Expiration Date") unless extended pursuant to
the following paragraph or unless sooner terminated as hereinafter set forth.
(b) Lessor shall proceed with due diligence to complete the initial
improvements to the Premises as set forth in the Work Schedule Agreement and
deliver same Lessee on or before__________________. In the event completion of
the initial improvements shall be delayed due to any act or omission of Lessee
or any of its employees, agents or contractors, the Premises shall be deemed
ready for occupancy on the date when the Premises would have been substantially
completed but for such act or omission. In the event of the Premises are not
completed by____________________, for any other reason, the Expiration Date
shall be extended by the number of days between said date and the date of
completion. Within thirty (30) days after the Commencement Date, Lessee will
execute and deliver to Lessor an Acceptance of the Premises, a form of which is
attached as Exhibit E hereto. Lessee hereby waives any claim for damages due to
Lessor's failure to Lessor's failure to deliver the Premises as of a particular
date.
(c ) Except for the improvements described in the Work Schedule Agreement,
Lessee hereby agrees to accept the Premises in its "as is" condition and
acknowledges that the Premises are suitable for Lessee's intended use and
occupancy.
3. RENTAL: (a) Lessee shall and hereby agrees to pay to Lessor in
advance, without demand, deduction or set off , an annual rental of See Page 1a
and ___________ Dollars ("Base Rental") payment payable in equal monthly
installments of ________________ and __________Dollars on the first day of each
month commencing on the Commencement Date. If the Commencement Date occurs on a
day other than the first day of a calendar month, Base Rental for such partial
calendar month shall be prorated on a per diem basis (calculated on the basis of
a thirty day month ) and shall be paid on the first day of the first month
following the Commencement Date. Base Rental and
RENTAL SCHEDULE
1. Rental Schedule: Base Rental for the leased Premises shall be made in
monthly installments, plus applicable tax, payable as set forth in Article 3
herein:
Months Monthly Rent
03/14/96 - 05/31/97 $3,598.00
06/01/97 - 05/31/98 $3,897.00
06/01/98 - 05/31/99 $4,197.00
06/01/99 - 05/31/00 $4,497.00
"Additional Rental" (as hereinafter defined) for any other fractional month
shall be prorated in the same manner. Base Rental and Additional Rental are
herein collectively called "Rental".
(b) The Base Rental stated herein shall be increased for the 12 month
period beginning each January 1 by an amount equal to the percentage
increase in the CPI Index. The percentage increases in the CPI Index shall
be determined by subtracting from the CPI Index for the December
immediately proceeding the January in which such increases is to be made,
the CPI Index for the month in which this Lease was executed (the "Base
Year CPI Index") and by dividing the result by the Base CPI Index. The
"CPI Index shall mean the United States Bureau of Labor Statistics,
Revised Consumer Price Index (1997 = 100) - U.S. City Average for all
Urban Consumers, all items. In the event the publication of the CPI Index
is hereafter discontinued or substantially revised, Lessor shall designate
a comparable index to be used in lieu there of. Lessor shall notify Lessee
in writing of the new annual and monthly
Base Rental amount at least thirty (30) days prior to the date on which the
increase in Base Rental becomes effective. If no event shall the Base
Rental be reduced as a result of changes in the CPI Index. The following is
an example of how the increase in Base Rental should be calculated
A tenant leased 5,000 square feet of space at an initial Base Rental of $20/
square foot ($100,000). Assume a Base Year CPI Index of 324.3 and a CPI Index of
354.4 for December, 1986. The Base Rental effective January 1, 1987 would be
calculated as follows.
$100,000 x [1 / (354.4 324.3)] = $109,281
324.3
(c) Lessee shall pay to Lessor, as "Additional Rental", for each square
foot of rentable area in the Premises, the amount by which Operating Costs (as
hereinafter defined) per square foot for each square foot for the Building
exceeds $_____(the actual Operating Costs for calendar year 1995) per rentable
square foot for the Building (such excess is hereafter referred to as "Excess
Operating Costs"). For purposes of this provision "Operating Costs" shall mean
the aggregate annual calendar year cost per square foot for the Building and the
Land of the following items for each square foot in the Building (i ) through
(ix): (i) maintenance and repair, including without limitation capital
improvements which are primarily for the purpose of reducing operating costs or
which may be required by governmental authority, of the Building, the Land and
all equipment maintained therein, including, without limitation, garbage
receptacles: (ii) janitorial services, supplies and expenses; (iii) utilities;
(iv) garbage and rubbish removal; (v) security services; (vi) insurance; (vii)
real estate taxes; (viii) advertising and promotion fees; and (ix) management
fees. At the beginning of each calendar year during the term of this Lease, or
at such other time or times as Lessor shall require including at the
commencement of term of the Lease (in the event such commencement of the term of
the Lease (in the event such commencement shall be at other than the beginning
of a calendar year) , Lessor shall estimate the amount of Lessee's share of
Excess Operating Costs for such complete or partial calendar year and shall
notify Lessee of such amount. Lessee shall pay to Lessor such estimated share
monthly installments with Lessee's payment of Base Rental. As soon as is
practical after the end of each calendar year, Lessor shall notify Lessee of the
actual Excess Operating Costs for the prior year. Lessee shall pay any
deficiencies due to Lessor within thirty (30) days of such notice. Any surplus
payments shall be credited to payments of estimated operating expenses for the
current year or, upon the expiration of the term of this Lease, shall be
refunded to Lessee.
(d) In addition to the foregoing, Lessee shall also pay, with each
payment of the foregoing sums, as additional rent, any and all sales
or use taxes assessed or levied upon Lessor with respect to the
rentals paid hereunder, as well as all taxes assessed or imposed upon
Lessor's gross receipts or gross income from leasing the Premises to
Lessee, including without limitation the transaction privilege tax,
education exercise tax of Arizona, any tax imposed by the City of
Phoenix, as well as any similar or excise tax imposed by any other
governmental body and any taxes assessed or imposed in lieu of, or in
substitute of, any of the foregoing taxes.
(e) Lessee shall pay promptly when due all license, franchise, and other
fees or charges imposed on the business conducted by Lessee at the Premises
and shall pay all taxes levied or assessed upon Lessee's personal property
located at the Premises or upon improvements (whether personality or
realty) to the Premises made by Lessee or by Lessor at Lessee's request. If
some of the improvements that Lessee is to pay taxes on are jointly
assessed or taxed with Lessor's improvements on the Building, Lessor shall
determine that portion of the taxes attributable to the improvements for
which Lessee is responsible. Following Lessor's determination, Lessor shall
notify Lessee in writing and Lessee shall pay Lessee's portion to Lessor on
or before the date
specified in Lessor's notice. Within five (5) days of Lessor's request,
Lessee agrees to deliver to Lessor receipted tax bills showing payment of
all required to be paid by Lessee hereunder. If Lessee fails to pay, either
thirty (30) days prior to delinquency, or, if applicable, when specified in
Lessor's notice, any taxes described above that are or may become a lien
against the Premises, Lessor shall have the right, but not the obligation,
to pay such taxes, together with associated fines, penalties and interest,
Lessee agrees to immediately reimburse to Lessor, as Additional Rental, the
amount paid by Lessor, with interest from the date of Lessor's payment of
same rate of 18% per annum.
(f) In the event any payment of Base Rental and /or
Additional Rental is not paid promptly when due as set forth in
Section 3 (a) hereof, there shall be imposed upon Lessee a late
charge in amount equal to five percent (5%) of the amount of Base
Rental and/or Additional Rental then due for each day that such
payment is past due which shall be immediately due and payable.
4. SECURITY DEPOSIT: Upon execution of this Lease, Lessee shall pay
to Lessor the sum of Eleven thousand eight hundred fifty three and 51/100
Dollars ($11,853.51) (the "Security Deposit") as security for Lessee's full
and faithful performance of the terms, payable on the Security Deposit and
it is agreed and acknowledged by Lessee that the Security Deposit is not an
advance payment of rent or a measure of Lessor's damages in the event of a
default by Lessee. Upon the occurrence of an Event of Default, Lessor, in
its sole discretion, may deduct any Rental or other sums due hereunder from
the Security Deposit. Lessee shall restore any portion of the Security
Deposit. Lessee shall restore any portion of the Security Deposit so
applied by Lessor within ten (10) days following notice of such application
from Lessor. Within thirty (30) days following the expiration of the term
of this Lease and surrender of the Premises by Lessee to Lessor, the
balance of the Security Deposit then remaining, if any, shall be returned
to Lessee.
5. USE: COMPLIANCE WITH LAWS: The Premises shall be used as general
office space in connection with the operation of the business of long
distance phone service and for no other purpose whatsoever. Lessee shall,
at its own cost and expense, procure and maintain each and every permit,
license, certificate or other authorization required in connection with the
lawful and proper use of the Premises by Lessee. Lessee, at its sole
expense, shall promptly comply with all laws, orders, ordinances, rules and
regulations of Federal, State, County and Municipal authorities and
departments thereof having or asserting jurisdiction over the Premises or
Lessee's use and occupancy of the Premises.
6. INSURANCE: Lessee covenants and agrees that from and after the
date of delivery of the Premises from Lessor to Lessee, and during the term
of this Lease or any renewal thereof, Lessee will carry and maintain, at
its sole cost and expense, the following types of insurance, in the amounts
specified and in the form hereinafter provided for:
(a) Lessee shall keep in full force and effect
Comprehensive General Liability Insurance including Blanket
Contractual, Personal Injury, Broad From Property Damage,
Products Liability, Completed Operations, Fire Legal Liability,
and Owned, Non-owned and Hired Automobile coverages, naming
Lessor and Lessee, and any designee of limit for property damage
and bodily injury per occurrence for any and all claims for
injury or damage to persons or property or for the loss of life
or of property occurring upon, in or about the Premises and the
Public Portions of the Building used by Lessee, its employees,
agents, contractors, customers, and invitees. Lessee shall
deposit a policy or policies of such insurance, or an approved
certificate thereof issued by
duly authorized agents of the carriers in question, With Lessor,
at least ten (10) days before the Commencement Date and renewals
of same and at least thirty (30) days prior to the expiration of
any existing policies. All such policies must provide that
Lessor and any additional insurers be provided with thirty (30)
days prior written notice of cancellation, reduction, or
material change by the insurer.
(b) Lessee shall keep in full force and effect All Risk
insurance including sprinkler leakage and flood and earthquake
(if flood and earthquake exposure exists) and vandalism and
malicious mischief on a 100% replacement cost basis covering all
contents, fixtures and improvements and such other portions of
the Premises which Lessor is not responsible for restoring.
Lessee shall deposit a policy or policies of such insurance, or
an approved certificate thereof with Lessor, providing Lessor
with thirty (30) days notice of cancellation, reduction, or
material change by the insurer.
(c) Lessee shall keep in full force and effect Workers'
Compensation insurance as required by law and Employer's
Liability coverage for a minimum of $100,000 per occurrence.
(d) Lessee covenants to comply with any and all rules and
regulations applicable to the Premises issued by the Board of
Fire Underwriter or by any other body hereinafter constituted
exercising similar functions and insurance companies writing
policies covering the Premises. Lessee shall pay all costs,
expenses, claims, fines, penalties and damages imposed because
of failure of Lessee to comply with this Section 6 (d) and
agrees to indemnify Lessor from all liability with reference
thereto. Lessee shall, at its own cost and expense, procure and
maintain each and every permit, license, certificate or other
authorization and any renewals, extensions or continuances of
the same required in connection with lawful and proper use of
the Premises for Lessee's business. Lessee agrees to pay any
increase in the amount of insurance premiums over and above the
rate now in force that may caused by Lessee's use or occupancy
of the Premises. This payment shall be addition to any amounts
due Lessor pursuant to other Sections of this Lease.
(e) Carrying the prescribed insurance will in no way be
construed as either a limitation or satisfaction of the hold
harmless or indemnity agreements contained in this Lease.
(f) Lessor and Lessee shall each have included in all
policies of insurance respectively obtained by them with respect
to the Building and / or the Premises a waiver by the insurer of
all right of subrogation against the other in connection with
any loss or damage thereby insured against. So long as both
Lessor's and Lessee's policies then in force include such mutual
waiver of subrogation, Lessor and Lessee, to the fullest extent
permitted by law, each waive all right of recovery against the
other for and agree to release the other from liability for,
loss or damage to the extent such loss or damage is covered by
valid and collectible insurance in effect at the time of such
loss or damage. If such waiver of subrogation shall not be
obtainable or shall be obtainable only at a premium over that
chargeable without such waiver, the party seeking such waiver
shall notify the other thereof in writing, and the latter shall
ten (10) days in which either (i) to procure on behalf of the
notifying party insurance with such waiver from a company or
companies reasonably satisfactory to the notifying party or (ii)
to agree to pay such additional premium (in Lessee's case, in
the proportion which the rentable area of the Premises bears to
the area covered by the insurance policy of Lessor in question).
7. LESSEE'S ACCEPTANCE: By taking possession thereof, Lessee
shall be conclusively deemed to have accepted the Premises in their "as is"
condition as of the Commencement Date and as suited for the use intended by
Lessee as set forth in Section 5 hereof.
8. REPAIRS. Lessee, at its expense, shall promptly make such
repairs as shall be required by reason of (a) the installation, use, misuse
or operation of Lessee's property in the Premises, (b) the moving of
Lessee's property in or out of the Building, and (c) the misuse or neglect
of Lessee or any of its subtenants or its or their employees, agents,
licensees or contractors. Lessor shall not be required to make any repairs
or improvements to the Premises or the Building other than the structural
repairs to the Building necessary for safety and tenantability. Lessee at
its expense, shall replace all scratched, damaged, or broken doors and
glass in and about the Premises. Lessees shall also be responsible for all
repairs, maintenance and replacement of all wall and floor coverings,
sanitary and electrical fixtures and equipment in the Premises.
Notwithstanding the foregoing, Lessor shall be responsible for any repairs
which are required by reason of the willful or negligent acts of Lessor,
its employees, agents, licensees or contractors. At the termination, for
any reason, of this Lease and in addition to the obligations imposed by
Section 22 hereof, Lessee will surrender the Premises broom clean, in good
condition and repair, ordinary wear and tear excepted, with all personal
property belonging to Lessee removed.
9. NOTICE OF DAMAGE: Less shall give prompt notice to Lessor of (a)
any fire or other casualty in the Premises, (b) any damage to or defect in
the Premises, including the fissures, equipment and appurtenances thereof,
for the repair of which Lessor might be responsible, or (c) any damage to
or defect in any part of or appurtenance to the Building's sanitary,
electrical, heating, air conditioning, elevator or other systems located in
or passing through the Premises or any part thereof. Lessor shall have no
repair obligations whatsoever absent such notice.
10. INSPECTIONS: Lessor may enter the Premises at reasonable hours to
exhibit same to prospective purchasers or tenants, to inspect the Premises
to see that Lessee is complying with all obligations of Lessee hereunder,
and to make repairs required of Lessor under the terms hereof or repairs or
modifications to any adjoining space, Lessee shall not change the locks on
any entrance to the Premises without Lessor's prior written consent.
11. COMMON AREAS: So long as Lessee is not in default hereunder, Lessee
shall have the nonexclusive right to the use of the Common Areas (as
hereinafter defined) of the Building upon such conditions, rules and
regulations as Lessor shall from time to time make. As used in this Lease,
the term "Common Areas" shall refer to all of the Building's core
corridors, passageways, entrances, elevators and any space adjacent to the
Premises used for shafts, pipes, conduits, electric or other utilities.
12. DEFAULT: The occurrence of any of the following shall constitute an
event of default ("Event of Default"):
(a) Any part of portion of Rental or any sum payable hereunder is not
received by Lessor on the date the same are due hereunder;
(b) An attempt by Lessee to assign this Lease or sublet the Premises in
contravention of the provisions hereof;
(c) The Premises are abandoned or vacated (unless as a result of fire or
other casualty) even though Lessee continues to pay Rental;
(d) Lessee, or any guarantor of Lessee's obligations under this Lease,
makes an assignment for the benefit of creditors, or files a voluntary
petition under any bankruptcy or insolvency law;
(e) An involuntary petition is filed against Lessee or such guarantor
under any bankruptcy or insolvency law, and such petition is not dismissed
within ninety (90) days after the date of such filing;
(f) Failure of Lessee, whether by action or inaction, to perform any of
its obligations under any other Leas from Lessor or any affiliate thereof
with respect to any other space; or
(g) Failure of Lessee, whether by action or inaction, to perform any of
its obligations hereunder or failure to observe any of the terms and
conditions hereof (other than as set forth in items (a) (f) above) and such
failure is not remedied within fifteen (15) days of written notice from
Lessor specifying the nature of such failure.
13. REMEDIES: Upon the occurrence of an Event of Default, Lessor may
invoke any of the following remedies, in addition to, or in lieu of, any
and all remedies available to Lessor under the laws of the State of
Arizona:
(a) Lessor may terminate this Lease. Upon termination, Lessee shall
immediately surrender the Premises to Lessor. If Lessee fails to do so,
Lessor may, without prejudice to any other remedy Lessor may have either by
law or under this Lease, enter upon the Premises and remove or expel Lessee
and Lessee's personal property with or without force and without being
liable to Lessee in any manner whatsoever for damages therefor. Upon
termination Lessee shall pay to Lessor (but not in lieu of any other
damages to which Lessor may be entitled), the unamortized cost of all work
performed on the Premises by Lessor in preparing the Premises for occupancy
by Lessee.
Lessor may enter the Premises and remove Lessee and its personal property,
by force in necessary, without being liable to Lessee in any manner
whatsoever for such acts, and may relet the Premises as agent of Lessee and
receive such rent therefor. In no event however, shall Lessor be liable in
any way whatsoever for its failure or refusal to relet the Premises or any
paer thereof. Lessee shall remain liable to Lessor for any deficiency
which may arise by reason of such reletting but shall not be entitled to
any surplus so arising, except for any surplus remaining at the end of the
stated term hereof.
If this Lease is terminated by Lessor, Lessee shall pay to Lessor as
additional damages (and not in lieu of any other damages to which Lessor
may be entitled), the unamortized cost of all work performed on the
Premises by Lessor in preparing the Premises for occupancy by Lessee and at
the election of Lessor:
(i) a sum which represents the then excess, if any, of (A) the
aggregate amount of the Rental due and reserved hereunder from the date of
Lessee's default to the expiration date of the fully stated term hereof
over (B) the aggregate rental value of the Premises as determined by Lessor
for the same period as reduced by the estimated cost of reletting the
Premises, including attorneys' fees, commissions, alterations and repair
costs; or
(ii) sums equal to the Rental which would have been payable
by Lessee had this Lease not been so terminated, or had Lessor not so re-
entered the Premises, payable upon the due dates therefor specified herein,
provided, however, that if Lessor shall relet the premises received by
Lessor from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Lessor from such
reletting the expenses incurred or paid by Lessor in terminating this Lease
and/or in re-entering the Premises and in securing possession thereof, as
well as the expenses of reletting, including, without limitation, altering
and preparing the Premises for new tenants, brokers' commissions, legal
fees, and all other expenses chargeable against the Premises and the rental
therefrom, it being understood that
any such reletting may be for a period shorter or longer than the remaining
term of this Lease; but in no event shall Lessee be entitled to a credit
for any net rents from a reletting, except to the extent set forth
hereinabove.
If Lessor shall not be permitted to terminate this Lease as
hereinabove provided because of the provisions of Title 11, of the United
States Code relating to Bankruptcy as amended (the "Bankruptcy Code"), the
Lessee or any trustee for Lessee agrees promptly, within no more than
fifteen (15) days upon request by Lessor to the Bankruptcy Court, to assume
or reject this Lease by Lessor with such Court. In such event, Lessee or
any trustee of Lessee may assume this Lease only if it (I) cures or
provides adequate assurance that the trustee will promptly cure any default
hereunder, and (ii) compensates or provides adequate assurance that Lessee
will promptly compensate Lessor for any actual pecuniary loss to Lessor
resulting from lessee's default.
. SECURITY INTEREST: In addition to any statutory landlord's
lien, Lessor is hereby granted a valid security interest to secure payment
of all Rental becoming due hereunder and any amounts for damages that
Lessor may sustain because of Lessee's default in performance of any
provision of this Lease upon all of Lessee's property which may now or
hereafter be located on or within the Premises and all proceeds thereof.
Lessee shall execute such financing statements or other documents as Lessor
shall require in order to perfect said security interest under the Uniform
Commercial Code of the State of Arizona, Title 47, chapter 9, Ariz. Rev.
State.
15. NONLIABILITY: (a) Neither Lessor nor its employees or agents shall
be liable for any damage to property of Lessee or for the loss of or damage
to any property of Lessee by theft or otherwise, whether or not due to the
negligence of Lessor, its agents or employees. Neither Lessor not its
agents shall be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
water, rain or snow or leaks, howsoever caused, from the pipes, appliances,
plumbing works, roof street or sub-surface or from any other place, whether
or not due to the negligence of Lessor, it's agents, or employees; nor
shall Lessor or its employees or agents be liable for any such damage
caused by other persons (including, without limitation, other tenants) in
the Building or caused by construction of any private, public or quasi-
public work.
(a) Lessee agrees, irrespective of whether Lessee shall be at fault,
to indemnify, defend (through counsel of Lessor's choice) and save
harmless, Lessor and its partners, contractors, agents and employees from
and against any and all liability (statutory or otherwise), claims, suits,
demands, damages, judgments, costs, fines, penalties, interest and expenses
(including but not limited to, reasonable counsel fees and disbursements
incurred in any action or proceeding), to which Lessor or any such partner,
contractor, agent or employee may be subject or suffer by reason of any
liability or claim employee may be subject or suffer by reason of any
liability or claim of whatsoever nature arising from or in connection with
(I) the use and occupancy of the Premises, (ii) any work, installation or
thing whatsoever done or omitted in the Premises, (iii) any condition of
the Premises, or (iv) any act, omission or negligence of Lessee or any of
Lessee's agents, contractors, servants, employees, subtenants, licensees,
guests or invitees.
16. LIABILITY: Neither Lessor nor any of its partners shall have any
personal liability with respect to any of the provisions of this Lease, and
if Lessor is in default with respect to its obligations under this Lease,
Lessee agrees to look solely to Lessor's interest in the Building and Land
for satisfaction of Lessee's remedies.
17. NO ESTATE: This Lease shall create the relationship of landlord and
tenant between the parties. No estate shall pass out of Lessor, and Lessee
shall have only a usufruct which is not subject to levy and sale.
18. SERVICES; So long as Lessee is not in default hereunder, Lessor shall
provide the following services to the Premises:
(a) Lessor shall provide routine janitorial services for the Premises;
(b) Lessor shall furnish electrical service for the lighting of the
Premises to building standard light levels produced by building standard
fluorescent lighting fixtures and lamps provided by Lessor and for usual
and normal small office machines and equipment utilizing 110 volt current;
and
(c) Lessor shall furnish seasonal air conditioning and heating from
8:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00 p.m. on
Saturdays, national holidays excepted. Lessor reserves the right to
prohibit the installation of additional lighting fixtures, heat generating
equipment, data processing machines, ect., unless and until arrangements
acceptable to Lessor to Lessor are made b Lessee to install supplementary
air conditioning equipment on the premises at Lessee's cost and expense.
The costs of maintaining and repairing such additional lighting, equipment,
machines and supplementary air conditioning equipment shall be paid as
Additional Rental by Lessee with the monthly installments of Base Rental
due hereunder at such reasonable rates as are established by Lessor. Should
Lessee desire either heating or air conditioning at times when such
services are not furnished by Lessor under the terms of this Lease, Lessor
may, but shall not be required to, furnish such services as requested by
lessee, at Lessee's expense and at such hourly charge as is from time to
time determined by lessor. Lessor shall not be liable for any damages
directly or indirectly resulting from the interruption or curtailment of
services referred to in this Section 18 the furnishing of such services.
Lessor reserves the right, in addition to lessor's other rights and
remedies hereunder and at law or in equity, to discontinue furnishing said
services upon five (5) days written notice so long as Lessee shall be and
remain in default hereunder.
19. ASSIGNMENT AND SUBLETTING: (a) Lessee shall not sublet the
Premises or any part thereof nor assign, mortgage, pledge or encumber this
Lease or any interest therein, without the prior written consent of Lessor,
which consent Lessor may refuse, withhold, delay and/or condition in its
sole and absolute discretion
(b) Any transfer of effective control of Lessee or any other
transfer of this Lease from Lessee by merger, consolidation, liquidation by
operation of law or otherwise without the prior written consent of Lessor
shall be deemed a violation of this Article 19. Lessee shall not permit any
business to be operated in or from the premises by any concessionaire or
licensee without the prior written consent of Lessor.
(c) Any consent by lessor to any assignment or subletting, or to
the operation by a concessionaire or licensee, shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or
subletting, or operation by a concessionaire or licensee.
20. DESTRUCTION OR DAMAGE: (A) In The event the building is damaged by
fire or other perils covered by Lessor's extended coverage insurance to an
extent not exceeding twenty-five percent (25%) of the full insurable value
thereof and the damages thereto are such that the Building may be repaired,
reconstructed or restored within a period of ninety (90) days from the date
of the happening of such casualty and Lessor receives insurance proceeds
sufficient to cover the cost of such repairs, Lessor shall commence and
proceed diligently wit the work of repair, reconstruction and restoration
of the building (but shall not be responsible for repairing or restoring
any property owned or installed by Lessee) and this Lease shall continue in
full force and effect without any abatement I Rental except as may be
expressly provided below. If such repair, reconstruction and restoration
will require a period longer than ninety (90) days or if such damage
exceeds twenty-five percent (25%) of the full insurable value thereof, or
if said insurance proceeds will be insufficient to cover the cost of such
repairs. Lessor may elect to so repair, reconstruct and restore the
building to the extent it deems advisable and this lease shall continue in
full force and effect without any abatement in Rental except as may be
expressly provided below. Lessor shall give written notice to lessee of its
intention to repair and restore or not repair or restore the Building
within thirty (30) days from the date of any casualty, together with
lessor's reasonable estimate of the period required to effect such repair.
Provided Lessee is to in default hereunder, Lessee shall have the option to
terminate this lease by written notice delivered to lessor within a
three(30 day period from the date of receipt of Lessor's notice that it has
elected to repair the Building, if the estimate period shall constitute
lessee's irrevocable election not to terminate the Lease. In the event
lessor elects no to restore the Building, this lease shall be deemed to
have terminated as of the date of such partial destruction. Upon any
termination of this lease under any of the provisions of this section 20,
the parties shall be released thereby without further obligation
to the other from the date possession of the Premises is surrendered to
lessor except for items which have theretofore accrued and are then unpaid.
(b) In the event of repair, reconstruction and restoration by Lessor
as herein provided, the base Rental shall be abated to the extent of any
rental abatement insurance proceeds attributable to the premises received
by Lessor during the period of such repair, reconstruction or restoration.
Lessee shall not be entitled to any compensation or damages for loss in the
use of the whole or any part of the Premises and/or for any inconvenience
or annoyance occasioned by such damage, repair, reconstruction or
restoration.
(c) Notwithstanding anything to the contrary contained in this
Section 20, lessor shall not be obligated to repair, reconstruct or restore
the Premises when the damage resulting from any casualty covered under this
Section 20 occurs during the last twelve (12) months of the term of this
Lease or any extension hereof.
21. CONDEMNATION AND EMINENT DOMAIN: In the event the whole or any
part of the premises shall be taken or condemned by any competent authority
for any public or quasi-public use or purpose, or acquired by private
purchase in lieu of condemnation, this Lease shall terminate from the date
when the possession of the part so taken shall be required for such use of
purpose, and the entire amount of the condemnation award attributable to
such taking or condemnation shall be paid to lessor. Lessee shall have no
right in and to such award or any portion thereof; such right, if any being
hereby expressly waived by Lessee.
22. ALTERATIONS AND IMPROVEMENTS: (a0 Lessee shall make no
alterations, additions or improvements to any part of the Premises without
Lessor's prior written consent, which may be given or withheld in lessor's
absolute discretion. Lessor may impose those conditions to its consent that
Lessor deems appropriate, including, without limitation, a requirement that
a contractor or xxxxxxx of Lessor's choice perform all work required in
connection with such alteration, addition, or improvement and that, prior
to the commencement of any work, Lessee pay all anticipated costs to Lessor
for alter disbursement to said contractor. All alterations, additions, or
improvements (or any part of them ), whether temporary or permanent in
nature (except only movable office furniture0 shall, at the option of
Lessor, become the property of lessor without compensation to Lessee and be
surrendered with the Premises at the expiration or termination of this
Lease. Notwithstanding any of the foregoing, Lessor may require Lessee to
remove such alterations, additions or improvements (or any part of them) at
the termination of this Lease. Lessee agrees to indemnify and hold Lessor
and the Premises free from any liability, claim, lien, encumbrance or
judgement created or suffered in connection with any labor services, or
materials relating to such alterations, additions or improvements. Lessee
shall require all contractors, subcontractors, materials suppliers
rendering services or materials to waiver and release of all liens and
privileges that may exist or arise for work done, all labor performed, and
all materials furnished under any contract. In the event that any such
waiver and release is not furnished as required, Lessor shall have the
right to order the immediate cessation of any work being performed in the
Premises, by such contractors or materials suppliers.
(b) Lessee shall neither cut, drill into, disfigure, deface or injure
any part of the Building, nor obstruct or permit any obstruction,
alteration, addition, improvement, or installation in the Premises or the
Building with first obtaining the written consent of the lessor.
23. ATTORNEY'S FEES; lessee agrees to pay all reasonable attorney's
fees and expenses lessor incurs in enforcing any of the obligations of
Lessee under this Lease, or in any litigation or negotiation in which
lessor shall, without its fault, become involved through or on account of
this lease. These provisions shall survive the termination of this Lease.
24. ENTIRE AGREEMENT: This Lease contains the entire agreement of the
parties and no representations or agreements, oral or otherwise, between
the parties not embodied hereinshall be of any force or effect. No failure
of Lessor to exercise any power given Lessor hereunder, or to insist upon
strict compliance by Lessee of any obligation hereunder, and no custom or
practice of the parties at variance with the terms hereof shall constitute
a waiver of Lessor's right to demand exact compliance with the terms
hereof.
25. TIME OF ESSENCE: Time is of the essence of Lessee's obligations
under this Lease.
26. RULES AND REGULATIONS: The rules and regulations attached hereto
as Exhibit "C" shall be and are hereby made a part of this Lease. Lessee,
its officers, partners employees and
agents, will perform and abide by said rules and regulations, and any
amendments, modifications, additions or substitution to said rules and
regulations as may be made from time to time by Lessor.
27. SURRENDER OF PREMISES: Upon termination of this Lease for any
reason whatsoever, Lessee shall surrender the Premises and keys thereof to
Lessor broom clean and in the same condition as on the Commencement Date,
natural wear and tear only excepted, with all personal property of Lessee
removed therefrom, subject to the provisions of Section 22. If Lessee fails
to remove any personality from the Premises upon the termination of this
Lease, Lessor may dispose of or store the same at its election without
liability to Lessee for loss thereof and Lessee shall be liable to Lessor
for the expense of such removal, disposal and/or storage. Should Lessee
refuse of rail to surrender the Premises upon the expiration of the lease
term or earlier termination thereof, Lessee shall be a tenant at sufferance
and shall pay to Lessor on demand each month a sum equal to double the Base
and Additional Rental due hereunder during such holdover period; provided,
however, that there shall be no renewal of this Lease by operation of law.
28. NOTICES: Any notice, demand, consent, authorization or other
communication (collectively, a "Notice") which either party is required or
may desire to give to or make upon the other party pursuant to this Lease
shall be effective and valid only if in writing, signed by the party giving
such Notice, and hand delivered (upon an officer, general partner or
officer of a general partner of the other party if such party is not an
individual) to the other party or sent by registered or certified mail of
the United States Postal service, return receipt requested, addressed to
the other party as follows (or to such other address or person as either
party or person entitled to Notice may by Notice to the other specify):
To Lessee:
XXXXXX X. XXXXXXX AND
XXXXXX X. XXXXXXX
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx X-0
Xxxxxxx, Xxxxxxx 00000
To Lessor:
PHOENIX CITY SQUARE PARTNERSHIP
c/o MLH INCOME REALTY PERTNERSHIP V
000 Xxxxxxx Xxxxxx
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Senior Vice President
Portfolio Management
With a copy sent concurrently to:
PHOENIX CITY SQUARE PARTNERSHIP
c/o MLH INCOME REALTY PERTNERSHIP V
000 Xxxxxxx Xxxxxx
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Senior Vice President
Legal Department
PM REALTY GROUP
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
ATTN: Property Management
Unless otherwise specified, all notices shall be deemed given
when received, but if delivery is not accepted, on the earlier of the date
delivery is refused or the third day after the same is deposited with the United
States Postal Service.
29. BROKER: Lessee covenants, warrants and represents that no broker
except Xxxxxx Real Estate Services, Inc. ("Broker") was instrumental in
consummating this Lease and that Lessee has had no conversations or negotiations
with any broker except Broker concerning the leasing of the Premises. Lessee
agrees to indemnify and hold Lessor harmless against and from any claims for any
brokerage commissions and all costs, expenses and liabilities, including,
without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by Lessee with any broker other than Broker.
30. AFFIRMATIVE WAIVERS: Lessor and lessee hereby waive trial by jury in
any action, proceeding or counterclaim brought by either against the other or
any matter whatsoever arising out of or in any way connected with this lease,
the relationship of Lessor and Lessee, Lessee's use of occupancy of the
Premises, including any claim of injury or damage, and any emergency and other
statutory remedy with respect thereto. Lessee shall not interpose any
counterclaim in any action or proceeding for nonpayment of Base Rental and/or
Additional Rental, other that a compulsory counterclaim.
31. TERMS: "Lessor" as used in this Lease shall include Lessor its
representatives, assigns and successors in title to the Premises. "Lessee"
shall include Lessee, its representatives, and if this Lease shall be validly
assigned or sublet, shall also include Lessee's assignees or sub-lessees, as to
the Premises covered by such assignment or sublease. "Lessor" and "Lessee"
include male and female, singular and plural, corporation, partnership or
individual, as may fit the particular parties, and any other necessary
grammatical changes required to express singular, plural, male female or neuter
as applicable shall be assumed in each case to be fully expressed. The use of
the terms "hereof" , hereunder", "hereinabove" and "herein" shall refer to this
Lease as a whole, inclusive of the Exhibits, except when specifically noted
otherwise..
32. CONTROLLING LAW AND SEVERABILITY: The laws of the State of Arizona
shall govern the interpretation, validity, performance and enforcement of this
Lease. Should any term, covenant, or provision of this Lease or the application
thereof be to any extent invalid or unenforceable, the remainder of this Lease
or the application of such provision to circumstances other than those to which
it is held invalid or unenforceable shall not be affected.
33. SUBMISSION OF LEASE: The submission of this Lease to Lessee for
examination does not constitute an offer to lease, and this Else shall be
effective only upon its complete execution by both Lessor and Lessee. Execution
of this Lease by Lessee and delivery of this Lease Lessor for its execution
shall constitute an offer to lease to Lessor.
34. RELOCATION OF LESSEE: In the event the Premises now or hereafter is
comprised of less than 5,000 square feet of area, Lessor shall have the right,
upon not less than thirty (30) days written notice, to transfer and remove
Lessee from the Premises to any other space of substantially equivalent size and
area in the Building or any other buildings known as Phoenix City Square located
in Phoenix, Arizona. Lessor shall bear the expense of removal as well as the
expense of any renovation and alteration, necessary to make the new premises
conform in arrangement with the premises covered by this Lease.
35. SPECIAL STIPULATIONS: Insofar as the special stipulations attached
hereto as Exhibit "D" and by this reference made a part hereof conflict with any
of the foregoing provisions, the special stipulations shall control.
36. SUBORDINATION AND ATTORNMENT: This Lease, and all rights of Lessee
hereunder, are and shall be subject and subordinate to all leases of the entire
Building and/or the Land now or hereafter existing and to all security deeds
which may now or hereafter affect the Land and/or the Building and to all
renewals, modifications. replacements and extensions of such leases and such
security deeds. While this Section 36 is self-operative and no further
instrument of subordination is necessary, Lessee shall at any time or times,
execute acknowledge or deliver to Lessor or any successor to the title or
interest of lessor any and all instruments requested by either of them to
evidence such subordination at the request of Lessor any successor to the title
or interest of lessor, Lessee shall promptly execute, acknowledge and deliver
any and all instruments necessary to evidence such attornment.
37. ESTOPPEL CERTIFICATE AND FINANCIAL INFORMATION: Lessee agrees within
fifteen (15) days following request by Lessor:
(a) to execute and deliver to Lessor any documents (including an estoppel
certificate) certifying (I) that this Lease is unmodified and in full force and
effect, or, if modified, stating the nature of such modification (s) and 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) whether any renewal
or expansion options contained in the Special Stipulations have been exercised,
(iii) the amount of any Security Deposit held by Lessor, (iv) that there are
not, to Lessee's knowledge, any uncured defaults on the part of Lessor hereunder
(or specifying such defaults if they are claimed) and (v) such other mattress as
may be reasonable requested by Lessor evidencing the status of this Lease;
(b) to deliver to Lessor current financial statements of Lessee including
a balance sheet and a profit and loss statement for at 'least two (2) years, all
prepared in accordance with generally accepted accounting principles
consistently applied, together with an principles consistently applied, together
with an opinion of a certified public accountant, if requested; and
(c) to execute and deliver to Lessor Lessee's written consent to any assignment
by Lessor of this Lease. Lessee's failure to deliver an estoppel certificate
within such time shall be conclusive upon Lessee that (I) this Lease is in full
force and effect without modification except as may be represented by Lessor,
(ii0 to lessee's knowledge, there are not uncured defaults in Lessor's
performance and (iii) no rent has been paid in advance except as set forth in
this Lease.
38.PARKING: (a) Lessee shall have the non-exclusive privilege, in common
with other occupants of the Building, to park vehicles in the parking facility
provided by Lessor, for use by Lessee, its employees, agents, invitees and
licensees, subject, however, to the rights given to other tenants of the
Building, and subject to the rules and regulations propounded by lessor from
time to time. Lessor shall, however, have the right to change the size,
location, elevation and/or nature of the parking area upon 60 days prior
written notice
(b) Lessor reserves the right, at any time and from time to time, to close
temporality all or any portions of the parking area when in Lessor's reasonable
judgment any such closing is necessary or desirable 9a) to make repairs or
changes or to effect construction, (b) to prevent the acquisition of public
rights in such area, (C) to discourage unauthorized parking, or (d) to protect
or preserve natural persons or property. Lessor may remove, at Lessee's expense,
any vehicles which are parked or abandoned in violation of the rules and
regulations propounded by Lessor from time to time.
39. Tax Status: Tenant represents that it is not a tax-exempt organization
as defined under Sec. 401 or Sec. 501 of the Internal Revenue Code of 1986 or a
foreign entity not subject to United States taxation.
IN WITNESS WHEREOF, the parties herein have hereunto set their respective
hands, the day and year first above written.
LESSOR:
PHOENIX CITY SQUARE PARTNERSHIP
By: MLH Property Managers Inc.
Managing General Partner
By: __________________________________
Authorized Representative
LESEE:
XXXXXX X. XXXXXXX AND XXXXXX X. XXXXXXX,
as husband and wife, jointly and severally
By: _________________________________
Name: ______________________________
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By: _________________________________
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