Exhibit 10.36
OFFICE LEASE
SOFI-IV S1M OFFICE INVESTORS II, LIMITED PARTNERSHIP
Landlord
and
INTEFLUX, INC.
Tenant
Dated: November 1, 2000
TABLE OF CONTENTS
ARTICLE 1 SUMMARY OF BASIC TERMS
ARTICLE 2 DELIVERY, TERM AND CONSTRUCTION
2.1 Term
2.2 Memorandum
2.3 Area Measurement
2.4 Condition
ARTICLE 3 USES OF PREMISES
3.1 Permitted Uses
3.2 Insurance Restrictions
3.3 Improvements
3.4 Prohibitions
3.5 Common Areas
3.6 Rules and Regulations
3.7 Compliance with Law
3.8 Audit
3.9 Parking
3.10 Keys, Locks and Access Cards
ARTICLE 4 SECURITY DEPOSIT AND GUARANTIES
ARTICLE 5 RENTS
5.1 Base Rent
5.2 Late Charges and Interest
5.3 Excise Taxes
5.4 Obligations are Rent
5.5 Proration
ARTICLE 6 OPERATING COSTS
6.1 Tenant's Share
6.2 Estimates
6.3 Annual Reconciliation
6.4 Partial Year Proration; Variable Cost Adjustment
6.5 Operating Costs
6.6 Exclusions
ARTICLE 7 TAXES
ARTICLE 8 INSURANCE AND INDEMNITY
8.1 Insurance Policies
8.2 Policy Requirements
8.3 Evidence of Coverage
8.4 Indemnity and Exculpation
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8.5 Landlord's Policies
ARTICLE 9 FIRE AND CASUALTY
9.1 Termination Rights
9.2 Restoration
9.3 Abatement
9.4 Demolition of Project
9.5 Agreed Remedies
ARTICLE 10 CONDEMNATION
10.1 Automatic Termination
10.2 Optional Termination
10.3 Award
ARTICLE 11 MAINTENANCE
11.1 By Tenant
11.2 By Landlord
ARTICLE 12 UTILITIES
ARTICLE 13 LANDLORD RIGHT OF ENTRY
ARTICLE 14 SIGNS
ARTICLE 15 TENANT ALTERATIONS
15.1 Tenant Alterations
15.2 Tenant Installations
15.3 Mechanics Liens
ARTICLE 16 ASSIGNMENT AND SUBLETTING
16.1 Consent Required
16.2 Requests for Approval
16.3 Continued Responsibility
16.4 Excess Proceeds
16.5 Limitations
16.6 No Waiver
16.7 Transfer by Landlord
ARTICLE 17 SUBORDINATION AND ATTORNMENT
17.1 Subordination
17.2 Lender Protection
17.3 Documentation
17.4 Other Transactions
ARTICLE 18 ESTOPPEL CERTIFICATES
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ARTICLE 19 QUIET ENJOYMENT
ARTICLE 20 SURRENDER AND HOLDOVER
20.1 Surrender
20.2 Holdover
ARTICLE 21 BREACH, DEFAULT, AND REMEDIES
21.1 Default
21.2 Remedies
21.3 Subtenancies
ARTICLE 22 LANDLORD LIABILITY
ARTICLE 23 NOTICES
ARTICLE 24 BROKERAGE
ARTICLE 25 RELOCATION
ARTICLE 26 GENERAL
26.1 Severability
26.2 No Waiver
26.3 Effect of Payment
26.4 Delay
26.5 Lender Notice
26.6 No Offer
26.7 Successors
26.8 Integration
26.9 Waiver of Jury Trial
26.10 Governing Law
26.11 Deadlines Enforceable
26.12 Counterparts
26.13 Additional Provisions
EXHIBITS:
EXHIBIT A - THE PREMISES
EXHIBIT A-1 - INTENTIONALLY OMITTED
EXHIBIT B - THE PROJECT
EXHIBIT C - INTENTIONALLY OMITTED
EXHIBIT D - RULES AND REGULATIONS
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OFFICE LEASE
SOFI-IV SIM OFFICE INVESTORS II LIMITED PARTNERSHIP, an Delaware limited
partnership (Landlord), hereby leases the Premises described below, for the Term
and on the terms and conditions set forth in this Lease, to INTEFLUX, INC., an
Arizona corporation (Tenant).
ARTICLE 1 SUMMARY OF BASIC TERMS
1.1 The Premises: Suite 310 in the Building consisting of approximately 3,514
square feet of rentable area as illustrated on the attached Exhibit A.
1.2 The Building: The building is located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Arizona.
1.3 Project means the Building identified in Section 1 .2, and all lands and
facilities used in connection with the Building as reasonably determined from
time to time by Landlord. The Project consists of approximately 323,607 square
feet of rentable area.
1.4 Names of Guarantors: None.
1.5 Security Deposit: $5,000.00.
1.6 The Term: 2 years and 5 months, beginning on the Commencement Date and
ending on the Expiration Date.
1.7 Commencement and Expiration Dates: January 1, 2001, and May 31, 2003,
respectively, subject to the provisions of Exhibit C.
1.8 Base Rent:
Dates Annual Base Rent Base Rent Per Square Foot Monthly Base Rent
1/1/01 5/31/01 $52,710.00 $15.00/sq. ft. $4,392.50
8/1/01 5/31/02 $56,224.00 $16.00/sq. ft. $4,636.33
6/1/02 5/31/03 $59,738.00 $17.00/sq. ft. $4,978.17
1.9 Tenant's Proportionate Share: 1 .09%, consisting of the proportion that the
rentable area of the Premises bears to the rentable area of the Project.
Landlord reserves the right from time to time to re-determine the size of the
rentable area of the Premises and/or of the Project.
1.10 Base Year: 1993
1.11 Description of Tenant's Business: General Office Use
1.12 Normal Business Hours: 7:00 a.m. to 6:00 p.m., Monday through Friday. 8:00
a.m. to 1:00 p.m. on Saturday. Current hourly charge for HVAC services provided
outside Normal Business Hours: $8.50 per hour, per HVAC zone.
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1.13 Tenant Improvement Allowance: None.
1.14 Tenant's Address for Pre-occupancy Notices:
1.15 Notice Addresses: LANDLORD'S: c/o Scottsdale Property Management 97, LLC
0000 X. Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
TENANT'S:
1.16 Tenant's designated broker: None
1.17 Landlord's designated broker: Scottsdale Property Management 97, L.L.C.
ARTICLE 2 DELIVERY, TERM AND CONSTRUCTION
2.1 Term. The Term of this Lease, and the dates of commencement and expiration
of the Term, are set forth in Sections 1.6 and 1.7.
2.2 Memorandum. At the request of either party at any time following initial
occupancy of the Premises by Tenant, Landlord and Tenant shall execute a written
memorandum reflecting the date of initial occupancy and confirming the
Commencement Date and Expiration Date.
2.3 Area Measurement. "Rentable Area" means area measured in accordance with
American Notional Standard Z65.1-1980, as published by BOMA International.
2.4 Condition. Landlord shall have no obligation to make any Improvements or
alterations to the Premises or the Building whatsoever, and Tenant accepts the
Premises in an AS IS condition, with all faults. Notwithstanding the foregoing,
if an Exhibit C is attached to this Lease, Landlord shall cause improvements to
be constructed and alterations to be made in the Premises in accordance with the
provisions of Exhibit C.
ARTICLE 3 USE OF PREMISES
3.1 Permitted Uses. Tenant may use and occupy the Premises for the purposes set
forth in Section 1.11 and for no other purpose whatsoever without Landlord's
prior written consent. Tenant shall not use the Premises for any purpose in
violation of exclusive rights granted by Landlord from time to time to any other
Tenant; provided, however, that Landlord shall not grant any exclusive right
that would prevent Tenant from conducting its business as described in Section
1.11.
3.2 Insurance Restrictions. Tenant shall not perform any act which would cause
the cancellation of any insurance policies related to the Project. Tenant shall
reimburse Landlord for any increases in insurance premiums paid by Landlord
directly related to the nature of Tenant's use of the Premises or the nature of
Tenant's business.
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3.3 Improvements. If solely due to the nature of Tenant's use of the Premises,
improvements or alterations are necessary to comply with any requirements
imposed by law or with the requirements of insurance carriers, Tenant shall pay
the entire cost of the improvements or alterations.
3.4 Prohibitions. Tenant shall not cause or maintain any nuisance in or about
the Premises and shall keep the Premises free of debris, rodents, vermin and
anything of a dangerous, noxious or offensive nature or which would create a
fire hazard (through undue load on electrical circuits or otherwise) or undue
vibration, noise or heat. Tenant shall not cause the safe floor loading capacity
to be exceeded. Tenant shall not disturb or interfere with the quiet enjoyment
of the premises of any other tenant.
3.5 Common Areas. All of the portions of the Project made available by Landlord
for use in common by tenants and their employees and invitees (Common Areas) at
all times shall remain subject to Landlord's exclusive control and Landlord
shall be entitled to make such changes in the Common Areas as It deems
appropriate. Landlord shall have the right at any time to change the arrangement
and/or locations of entrances, or passageways, doors and doorways, and
corridors, windows, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building or
the Project is commonly known.
3.6 Rules and Regulations. Tenant shall comply and shall cause its employees to
comply with the rules and regulations for the Project. The current rules and
regulations are attached as Exhibit D. Landlord from time to time by notice to
Tenant may amend the rules and regulations and establish other reasonable
non-discriminatory rules and regulations for the Project.
3.7 Compliance with Law. Without in any manner limiting any other provision of
this Lease, Tenant hereby represents and warrants and agrees for the full term
of any obligations under this Lease:
(a) to comply fully with all federal, state and local laws, rules,
orders, or regulations pertaining to health or the environment (Environmental
Laws), including, without limitation, the comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA") and the Resource
Conservation and Recovery Act of 1987, as amended ("RCRA");
(b) that Tenant will not dispose of nor permit or acquiesce in the
disposal of any waste (including, but not limited to, any paints, solvents, or
paint thinners) products on, under or around the Premises;
(c) to defend, indemnify and hold harmless Landlord for any and all
costs, claims, demands, damages including attorney's fees and court costs and
investigatory and laboratory fees, related to any breach of this Lease,
including, without limitation, any adverse health or environmental condition
(including without limitation any violation of Environmental Laws) occurring
during the term of this Lease. This indemnification to Landlord shall survive
the termination of the Lease;
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(d) comply with all reporting obligations imposed under the Federal
Emergency Planning and Community Right to Know Act of 1986 and any similar state
or local laws, rules or regulations;
(e) comply with all pretreatment requirements imposed by law with
respect to the disposal of waste or effluent into the sanitary sewer system;
(f) prevent any dumping, spillage, leakage or runoff of substances
regulated by Environmental Laws ("Regulated Substances") into dry xxxxx, storm
drains, water retention areas, Common Areas or any areas where such substances
could be absorbed into the soil;
(g) obtain and maintain all permits required by federal, state or
local laws, rules or regulations;
(h) prepare, and upon request provide a copy to Landlord of, all
response plans required by applicable law; and
(i) not keep, store, or use within the Premises any Regulated
Substances except small quantities that are reasonably necessary for Tenant's
business and customarily associated with office usage, such as copier supplies.
3.8 Audit. At any time and from time to time, Landlord may retain an
environmental consultant or engineer to conduct an audit or environmental
assessment of the Premises and Tenant's compliance with applicable laws, rules
and regulations. Tenant shall extend its full cooperation with the audit or
investigation. If Tenant is found not to be substantially in compliance with
applicable law, all reasonable costs associated with the audit or assessment
shall be paid by Tenant to Landlord upon demand; otherwise all costs shall be
borne by Landlord. In addition, Tenant, at Landlord's request from time to time,
shall complete such questionnaires and provide such information with respect to
Tenant's activities and operations on the Premises as Landlord shall reasonably
require.
3.9 Parking. Tenant shall lease the following parking spaces:
# of Spaces Parking Area Price per Space Total Price
20 Covered, random $15.00 $300.00
3.10 Keys, Locks and Access Cards.
(a) Landlord shall furnish Tenant two keys for each corridor door
entering the Premises. Additional keys will be furnished at a charge by Landlord
on an order signed by Tenant or Tenant's authorized representative. All such
keys shall remain the property of Landlord. No additional locks shall be allowed
on any door of the Premises without Landlord's permission, and Tenant shall not
make, or permit to be made any duplicate keys. Upon termination of this Lease.
Tenant shall surrender to Landlord all keys of the Premises, and give to
Landlord the combination of all locks for safes, safe cabinets and vault doors,
if any, in the Premises.
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(b) Landlord shall furnish tenant with security access cards for
the Building ("Access Cards"). Access Cards will be furnished at a reasonable
charge by Landlord on an order signed by Tenant or Tenant's authorized
representative. A portion of the charge for the Access Cards may constitute a
deposit, the balance of which shall compensate Landlord for costs, record
keeping and other administrative items in respect of the Access Cards. All such
orders shall be treated as confidential. All such cards shall remain the
property of Landlord. Replacement Access Cards shall be subject to a reasonable
charge. Landlord shall charge Tenant a reasonable transfer fee in connection
with a change in the registration of an Access Card. Tenant shall promptly
notify Landlord of a lost Access Card. UNDER NO CIRCUMSTANCES shall tenant
label, or in any other way identify, any Access Cards as to the name of the
Building, address of the Building, or include tenant's personal or company name.
Upon termination of any officer, employee, or any other authorized
representative of Tenant, any Access Card to said person shall be surrendered to
Tenant immediately. It shall be the Tenant's obligation to notify Landlord of
all terminated access privileges as soon as possible following such action. Upon
termination of this Lease, Tenant shall surrender to Landlord all registered
Access Cards. The card deposit portion of the charge paid by Tenant, if any,
will be refunded by Landlord within thirty days, provided all Access Cards are
in a reusable condition.
ARTICLE 4 SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit with Landlord a
security deposit in the amount set forth in Section 1.5 to secure Tenant's
performance of this Lease. The deposit shall not bear interest, shall not be
required to be maintained in a separate account, and shall be returned, less any
unpaid claims against Tenant, upon the expiration of this Lease and the
surrender of possession of the Premises, to Tenant or the last assignee of
Tenant's interest.
ARTICLE 5 RENT
5.1 Base Rent. Tenant shall pay to Landlord, in advance, on the first day of
each calendar month, beginning on the Commencement Date, Base Rent in the amount
set forth in Section 1.8.
5.2 Late Charges and Interest. Tenant shall pay to Landlord a late charge equal
to ten percent (10%) of the amount due if any installment of Base Rent or if any
other amount payable under this Lease is not received by Landlord within ten
(10) days after the due date therefore. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment and that such late charge constitutes liquidated
damages to compensate Landlord for costs and inconveniences of special handling
and disruption of cash flow. The assessment or collection of a late charge shall
not constitute the waiver of a default and shall not bar the exercise of other
remedies for nonpayment. In addition to the late charge, all amounts not paid
within ten (10) days after the date due shall bear interest from the date due
until paid at a rate equal to the lesser of: (i) eighteen percent (18%) per
annum, or (ii) the maximum rate allowed by applicable law.
5.3 Excise Taxes. Tenant shall pay to Landlord all rental, sales, use,
transaction privilege, or other excise tax levied or imposed upon, or measured
by, any amount payable by Tenant under this Lease.
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5.4 Obligations Are Rent. All amounts payable to Landlord under this Lease
constitute rent and shall be payable without notice, demand, deduction or offset
to such person and at such place as Landlord may from time to time designate by
written notice to Tenant.
5.5 Proration. Base Rent payable with respect to a period consisting of less
than a full calendar month shall be prorated.
ARTICLE 6 OPERATING COSTS
6.1 Tenant's Share. Tenant shall pay to Landlord Tenant's Proportionate Share of
Operating Costs for each calendar year in excess of the Operating Costs for the
Base Year as set forth in Section 1.10.
6.2 Estimates. From time to time Landlord shall by written notice specify
Landlord's estimate of Tenant's obligation under Section 6.1. Tenant shall pay
one-twelfth of the estimated annual obligation on the first day of each calendar
month.
6.3 Annual Reconciliation. Within 120 days after the end of each calendar year,
Landlord shall provide to Tenant a written summary of the Operating Costs for
the calendar year, determined on an accrual basis and broken down by principal
categories of expense. The statement also shall set forth Tenant's Proportionate
Share of Operating Costs and shall show the amounts paid by Tenant on account.
Any difference between Tenant's obligation and the amounts paid by Tenant on
account shall be paid or refunded, as the case may be, within fifteen days after
the statement is provided. Late delivery of the annual statement of Operating
Costs shall not relieve Tenant of any obligation with respect to payment of
Tenant's Proportionate Share of the Operating Costs.
6.4 Partial Year Proration. During the first and last years of the Term, Tenants
responsibility for Operating Costs shall be adjusted in the proportion that the
number of days of that calendar year during which the Lease is in effect bears
to 365. Tenant's obligations under this Article 6 for the payment of Operating
Costs during the Lease Term, including the payment of any deficiency following
receipt of the annual statement under Section 6.3, shall survive the expiration
or termination of this Lease.
6.5 "Operating Costs" consist of all costs of operating, maintaining and
repairing the Project, including, without limitation, the following:
(a) Premiums for property, casualty, liability, rent interruption or
other insurance.
(b) Salaries, wages and other amounts paid or payable for personnel
including the Project manager, superintendent, operation and maintenance staff,
and other employees of Landlord involved in the maintenance and operation of the
Project, including contributions and premiums towards fringe benefits,
unemployment and workers' compensation insurance, pension plan contributions and
similar premiums and contributions and the total charges of any independent
contractors or managers engaged in the repair, care, maintenance and cleaning of
any portion of the Project.
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(c) Cleaning, including sweeping of parking areas and removal of snow
and ice.
(d) Landscaping, including irrigating, trimming, mowing, fertilizing,
seeding, and replacing plants.
(e) Utilities, including fuel, gas, electricity, water, sewer,
telephone, and other services.
(f) Maintaining, operating, repairing and replacing equipment.
(g) Other items of repair or maintenance of the Project.
(h) Policing and security.
(i) The cost of the rental of any equipment and the cost of supplies
used in the maintenance and operation of the Project.
(j) Audit fees and the cost of accounting services incurred in the
preparation of statements referred to in this Lease and financial statements,
and in the computation of the rents and charges payable by tenant of the
Project.
(k) Costs of capital expenditures incurred for the purpose of
reducing Operating Costs, and costs of improvements, repairs, or replacements
which otherwise constitute Operating Costs under this Article but which are
properly charged to capital accounts shall not be included in Operating Costs in
a single year but shall instead be amortized over their useful lives, as
determined by the Landlord in accordance with generally accepted accounting
principles, and only the annual amortization amount shall be included in
Operating Costs.
(l) A fee for the administration and management of the Project
appropriate to the nature of the Project as reasonably determined by the
Landlord from time to time.
(m) Costs of alterations or modifications to the Project necessary to
comply with requirements of applicable law; and
(n) General and special real and personal property taxes and
assessments for the Project and expenses incurred in efforts to reduce taxes or
assessments.
6.6 Exclusions. Notwithstanding anything to the contrary in Section 6.5,
"Operating Costs" shall not include:
(a) Amounts reimbursed by other sources, such as insurance proceeds,
equipment warranties, judgments or settlements.
(b) Utilities or other expenses paid directly by tenants to suppliers
or paid by tenants to Landlord for separately metered or special services such
as after-hours air conditioning services.
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(c) Ground rents.
(d) Payments on any mortgage or other encumbrance.
(e) Construction of tenant improvements.
(f) Replacements (but not repairs) of structural elements.
(g) Leasing commissions.
(h) General overhead and administrative expenses of Landlord not
directly related to the operation of the Project.
ARTICLE 7 TAXES
7.1 Landlord shall pay before delinquent all general and special real property
taxes assessed or levied on the Project, subject to reimbursement under Article
6.
7.2 Tenant shall pay before delinquent all taxes levied or assessed upon,
measured by, or arising from (a) the conduct of Tenant's business; (b) Tenant's
leasehold estate; or (c) Tenant's property.
ARTICLE 8 INSURANCE AND INDEMNITY
8.1 Insurance Policies. Tenant shall, at its expense, take out and keep in full
force and effect the following Insurance:
(a) All-risk property insurance including sprinkler leakage in an
amount equal to the full replacement cost of all property owned by Tenant.
(b) Business interruption insurance with a limit sufficient to insure
not less than a six month loss of income.
(c) Plate glass insurance coverage.
(d) Comprehensive liability insurance applying to the use and
occupancy of the Premises and the business operated by Tenant, including
coverage for "premises/operations", "products and completed operations", and
"blanket contractual" liabilities, written on an occurrence basis with limits
not less than $1,000.000, naming Landlord, its agents, affiliates and contract
property manager as additional insureds.
(e) At all times during the Lease Term, Tenant shall procure and
maintain workers' compensation insurance in accordance with applicable law and
employer's liability insurance with a limit not less than $1,000,000 bodily
injury each accident; $1,000,000 bodily injury by disease - each person; and
$1,000,000 bodily injury by disease-policy limit.
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8.2 Policy Requirements. Tenant's insurance policies shall:
(a) where applicable, contain the mortgagee's standard mortgage
clause and in any event a waiver of any subrogation rights which Tenant's
insurers may have against Landlord and against those for whom the Landlord is in
law responsible;
(b) be taken out with insurers reasonably acceptable to Landlord and
be in a form satisfactory from time to time to Landlord;
(c) be non-contributing and apply as primary and not as excess to,
any other insurance available to the Landlord;
(d) not be invalidated with respect to the interests of the Landlord
and the holder of any encumbrance on the Project by reason of any breach or
violation by Tenant of any warranties, representations, declarations or
conditions contained in the policies;
(e) contain an undertaking by the insurers to notify the Landlord,
and the holder of any encumbrance on the Project designated by Landlord, in
writing not less than thirty days prior to any material change, cancellation or
termination; and
(f) be satisfactory in form, substance, limits, deductibles and
retentions to Landlord.
8.3 Evidence of Coverage. Tenant shall deliver to Landlord certificates of
insurance or, if required by Landlord, certified copies of each such insurance
policy: (a) as soon as practicable after the placing of the required insurance
and (b) periodically thereafter before expiration, renewal or replacement of the
policies then in force. No review or approval of any such insurance certificate
by Landlord shall derogate or diminish Landlord's rights or Tenant's
obligations. Tenant shall not take possession of the Premises without having
complied with the requirements of this Section.
8.4 Indemnity and Exculpation. Tenant shall defend, indemnify and hold Landlord
harmless, regardless of any negligence imputed to Landlord as owner of the real
property involved in an injury, from and against any and all loss, claims,
actions, damages, liability and expense in connection with loss of life,
personal injury, damage to property or any other loss or injury whatsoever
arising directly or indirectly from or out of this Lease, or any occurrence in,
upon or at the Premises, or the occupancy or use by the Tenant of the Premises,
or any act or omission of Tenant, its agents, servants, employees or invitees.
Tenant shall not be required, however, to indemnify Landlord against a claim
arising from Landlord's active negligence or willful misconduct. Landlord shall
not be liable and Tenant hereby waives all claims for any damage to any property
in or about the Premises or the Project or injury or inconvenience to Tenant's
business, by or from any cause whatsoever (including without limiting the
foregoing, rain or water leakage of any character from the roof, windows, walls,
basement, pipes, plumbing works or appliances). Tenant acknowledges that it is
protecting itself against loss by maintaining appropriate insurance coverage.
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8.5 Landlord's Policies. No insurable interest is conferred upon Tenant under
any policies of insurance carried by Landlord, and Tenant shall not be entitled
to share or receive proceeds of any insurance policy carried by Landlord.
ARTICLE 9 FIRE AND CASUALTY
9.1 Termination Rights. If all or part of the Premises is rendered untenantable
by damage from fire or other casualty which in Landlord's opinion cannot be
substantially repaired (employing normal construction methods without overtime
or other premium) under applicable laws and governmental regulations within 180
days from the date of the fire or other casualty, then either Landlord or Tenant
may elect to terminate this Lease as of the date of such casualty by written
notice delivered to the other not later than ten days after notice of such
determination is given by Landlord.
9.2 Restoration. If in Landlord's opinion the damage caused by the fire or
casualty can be substantially repaired (employing normal construction methods
without overtime or other premium) under applicable laws and governmental
regulations within 180 days from the date of the fire or other casualty, or if
neither party exercises its right to terminate under Section 9,1, Landlord
shall, but only to the extent that insurance proceeds are available therefore,
repair such damage other than damage to furniture, chattels or trade fixtures
which do not belong to the Landlord, which shall be repaired forthwith by Tenant
at its own expense.
9.3 Abatement. During any period of restoration, the Base Rent payable by Tenant
shall be proportionately reduced to the extent that the Premises are thereby
rendered untenantable from the date of casualty until completion by Landlord of
the repairs to the Premises (or the part thereof rendered untenantable) or until
Tenant again uses the Premises (or the part thereof rendered untenantable) in
its business, whichever first occurs.
9.4 Demolition of Project. Notwithstanding anything to the contrary in Section
9.1 if all or a substantial part (whether or not including the Premises) of the
Building is rendered untenantable by damage from fire or other casualty to such
a material extent that in the opinion of Landlord the Project must be totally or
partially demolished, whether or not to be reconstructed in whole or in part,
Landlord may elect to terminate this Lease as of the date of the casualty (or on
the date of notice if the Premises are unaffected by such casualty) by written
notice delivered to Tenant not more than sixty days after the date of the fire
or casualty.
9.5 Agreed Remedies. Except as specifically provided in this Article, there
shall be no reduction of rent and Landlord shall have no liability to Tenant by
reason of any injury to or interference with Tenant's business or property
arising from fire or other casualty, howsoever caused, or from the making of any
repairs resulting therefrom in or to any portion of the Project or the Premises.
Tenant waives any statutory or other rights of termination by reason of fire or
other casualty, it being the intention of the parties to provide specifically
and exclusively in this Article for the rights of the parties with respect to
termination of this Lease as a result of a casualty.
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ARTICLE 10 CONDEMNATION
10.1 Automatic Termination. If during the Term all or any part of the Premises
is permanently taken for any public or quasi-public use under any statute or by
right of eminent domain, or purchased under threat of such taking, this Lease
shall automatically terminate on the date on which the condemning authority
takes possession of the Premises.
10.2 Optional Termination. If during the term any part of the Project is taken
or purchased by right of eminent domain or in lieu of condemnation, whether or
not the Premises are directly affected, then if in the reasonable opinion of
Landlord substantial alteration or reconstruction of the Project is necessary or
desirable as a result thereof, or the amount of parking available to the Project
is materially and adversely affected, Landlord shall have the right to terminate
this Lease by giving Tenant at least thirty days' written notice of such
termination.
10.3 Award. Landlord shall be entitled to receive and retain the entire award or
consideration for the affected lands and improvements and Tenant shall not have
or advance any claims against Landlord for the value of its property or its
leasehold estate or the unexpired term of this Lease or for costs of removal or
relocation or business interruption expense or any other damages arising out of
the taking or purchase. Nothing herein shall give Landlord any interest in or
preclude Tenant from seeking and recovering on its own account from the
condemning authority any award of compensation attributable to the taking or
purchase of Tenant's chattels or trade fixtures or attributable to Tenant's
relocation expenses provided that any such separate claim by Tenant shall not
reduce or adversely affect the amount of Landlord's award. If any such award
made or compensation paid to Tenant specifically includes an award or amount for
Landlord, Tenant shall promptly account therefore to Landlord.
ARTICLE 11 MAINTENANCE
11.1 By Tenant. Tenant shall maintain equipment, alterations or other
improvements whether constructed for Tenant's initial occupancy or made
subsequently pursuant to Article 15, such as supplemental or special cooling
systems not consistent with building standard tenant improvements as established
by the Landlord. If Tenant does not comply with its obligations under this
Article, Landlord may, but need not, make such repairs and replacements or
obtain such service contracts, and Tenant shall pay Landlord the cost thereof
upon demand. Tenant also shall make such repairs and alterations necessary to
comply with the requirements of any governmental or quasi-governmental authority
having jurisdiction.
11.2 By Landlord. Landlord shall maintain the Premises and the improvements
thereon (including all doors, plate glass, and heating, air conditioning,
ventilation, electrical and plumbing systems serving the Premises), in good
condition and repair. Landlord shall provide janitorial services to the Premises
five nights per week. Landlord shall maintain the Project and all Common Areas
in good condition and repair in accordance with standards then prevailing for
comparable properties of like age and character. Landlord shall repair
structural defects in roof or walls and any common utility facilities in the
Common Areas. Landlord shall not be liable or responsible for breakdowns or
temporary interruptions in access or utilities nor for interference with
Tenant's business or Tenant's access to the Premises during the course of
repairs or remedial work.
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ARTICLE 12 UTILITIES
Landlord shall supply to the Premises electrical power for lighting, for the
operation of heating, ventilation and air conditioning equipment, and for the
operation of normal small office equipment and shall supply water and sewer
services for any plumbing facilities in the Premises. Tenant shall pay Landlord
upon demand for any lighting or heating, ventilation and air conditioning
provided outside of Normal Business Hours at Landlord's standard hourly rates,
which shall be subject to adjustment for changes in electrical power rates.
Tenant shall pay Landlord upon demand for any utility costs attributable to any
special or supplemental cooling systems or other special equipment as
established by Landlord. The Normal Business Hours for the Building and the
current applicable rate for after-hours usage are set forth in Section 1.12. Any
other utilities provided to the Premises, including telephone and other
telecommunication services, shall be arranged directly by Tenant with the
utility supplier, including the posting of any required deposits, and paid
directly to the utility supplier when due. Tenant is responsible for requesting
from Landlord the names of suppliers currently authorized to contract with
Tenants in the Building. Landlord shall have no responsibility for the
maintenance of Tenant's telecommunications equipment, including wiring, nor for
any other infrastructure to which Tenant's telecommunications equipment may be
connected. Tenant agrees that to the extent any such service is interrupted,
curtailed, or discontinued, Landlord shall have no obligation or liability with
respect thereto other than for actual out-of-pocket damages in an amount not to
exceed the actual cost of repair incurred on account of the gross negligence or
willful misconduct of Landlord, or its contractors, agents, or employees and
shall not include any consequential damages or punitive damages, and it shall be
the sole obligation of Tenant at its expense to obtain substitute service.
ARTICLE 13 LANDLORD RIGHT OF ENTRY
Upon reasonable notice to Tenant, Landlord shall have access to the Premises for
purposes of showing the Premises to current or prospective lenders, to
prospective purchasers of the Project, and, during the twelve-month period
preceding the expiration of the term of this Lease, to prospective tenants.
Landlord shall at all times have access to the Premises for purposes of
inspection and performing Landlord's obligations and exercising its rights under
this Lease.
ARTICLE 14 SIGNS
Tenant shall not place or permit to be placed any sign, picture, advertisement,
notice, lettering or decoration on any part of the outside of the Premises or
anywhere in the interior of the Premises which is visable from the outside of
the Premises without Landlord's prior written approval. All of Tenant's signs
shall be subject to Landlord's prior approval.
ARTICLE 15 TENANT ALTERATIONS
15.1 Tenant Alterations. Tenant may from time to time at its own expense make
changes, additions and improvements in the Premises, provided that any such
change, addition or improvement shall:
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(a) comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction (including, without limitation,
the Americans with Disabilities Act), with the requirements of Landlord's
insurance carriers, and with Landlord's safety and access requirements,
including restrictions on flammable materials and elevator usage;
(b) not be commenced until Landlord has received satisfactory
evidence that all required permits have been obtained;
(c) be made only with the prior written consent of Landlord (which
may be withheld in Landlord's sole discretion, to the extent it relates in
Landlord's opinion to the structure or electrical, HVAC, plumbing or sprinkler
systems of the Building, but which otherwise shall not be unreasonably
withheld);
(d) be construed in good workmanlike manner and conform to complete
working drawings prepared by a licensed architect and submitted to and approved
by Landlord;
(e) be of a quality that equals or exceeds the then current standard
for the Project and comply with all building, fire and safety codes;
(f) be carried out only during hours approved by Landlord by licensed
contractors selected by Tenant and approved in writing by Landlord, who shall
deliver to Landlord before commencement of the work, performance and payment
bonds as well as proof of workers' compensation and general liability insurance
coverage, including coverage for completed operations and contractual liability,
with Landlord and its agents and designees named as additional insureds, in
amounts, with companies, and in form reasonably satisfactory to Landlord, which
shall remain in effect during the entire period in which the work shall be
carried out. Notwithstanding the foregoing, only subcontractors selected or
designated by Landlord may be used to make connection with the Project's main
electrical, plumbing or HVAC systems, except connections to circuit panels,
pipes or ducts within the Premises; and
(g) upon completion, be shown on accurate "as built" reproducible
drawings in the form of reverse sepia transparencies or mylars delivered to
Landlord.
15.2 Tenant Installations. Tenant may install in the Premises its usual trade
fixtures and personal property in a proper manner, provided that no installation
shall interfere with or damage the mechanical or electrical systems or the
structure of the Building. Landlord may require that any work that may affect
structural elements or mechanical, electrical, heating, air conditioning,
plumbing or other systems be performed by Landlord at Tenant's cost or by a
contractor designated by Landlord.
15.3 Mechanics Liens. Tenant shall pay before delinquency all costs for work
done or caused to be done by Tenant in the Premises which could result in any
lien or encumbrance on Landlord's interest in the Project or any part thereof,
shall keep the title to the Project and every part thereof free and clear of any
lien or encumbrance in respect of such work, and shall indemnify and hold
harmless Landlord and Landlord's agents and employees against any claim, loss,
cost, demand or legal or other expense, whether in respect of any lien or
otherwise, arising out of the supply of
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material, services or labor for such work. Tenant shall immediately notify
Landlord of any such lien, claim of lien or other action of which it has or
reasonably should have knowledge and that affects the title to the Project or
any part thereof, and shall cause the same to be removed by bonding or otherwise
within five days, failing which Landlord may take such action as Landlord deems
necessary to remove same and the entire cost thereof shall be immediately due
and payable by Tenant to Landlord. If provided by applicable law, Tenant shall
cause such postings to be made and notices given as shall prevent any mechanics'
lien for work done for Tenant from attaching to the Project.
ARTICLE 16 ASSIGNMENT AND SUBLETTING
16.1 Consent Required. Tenant shall not assign its interest under this Lease or
sublet all or any part of the Premises without Landlord's prior written consent,
which shall not be unreasonably withheld. Tenant shall not at any time pledge,
hypothecate, mortgage or otherwise encumber its interest under this Lease as
security for the payment of a debt or the performance of a contract. Tenant
shall not permit its interest under this Lease to be transferred by operation of
law. Any purported assignment or sublease made without Landlord's consent shall
be void.
16.2 Requests for Approval. Landlord shall be under no obligation to decide
whether consent will be given or withheld unless Tenant has first provided to
Landlord: (a) the name and legal composition of the proposed assignee or
subtenant and the nature of its business; (b) the use to which the proposed
assignee or subtenant intends to put the Premises; (c) the terms and conditions
of the proposed assignment or sublease and of any related transaction between
Tenant and the proposed assignee or subtenant; (d) information related to the
experience, integrity end financial resources of the proposed assignee or
subtenant; (e) such information as Landlord may request to supplement, explain
or provide details of the matters submitted by Tenant pursuant to subparagraphs
(a) through (d); and (f) reimbursement for all costs incurred by Landlord,
including attorney's fees, in connection with evaluating the request and
preparing any related documentation.
16.3 Continued Responsibility. Tenant shall remain fully liable for performance
of this Lease, notwithstanding any assignment or sublease, for the entire Lease
Term.
16.4 Excess Proceeds. If consent to an assignment or sublease is given, Tenant
shall pay to Landlord, as additional rent, all amounts received from the
assignee or subtenant in excess of the amounts otherwise payable by Tenant to
Landlord with respect to the space involved, measured on a per square foot
basis.
16.5 Limitations. Without limiting appropriate grounds for withholding consent,
it shall not be unreasonable for Landlord to withhold consent if the proposed
assignee or subtenant is a tenant in another building owned by Landlord or by an
affiliate of Landlord or of any of Landlord's constituent partners or principals
or if the use by the proposed assignee or subtenant would contravene this Lease
or any restrictive use covenant or exclusive rights granted by Landlord or if
the proposed assignee or subtenant does not intend to occupy the Premises for
its own use or if the nature of the proposed assignee or subtenant is not
compatible with the Project.
16.6 No Waiver. No consent shall constitute consent to any further assignment or
subletting.
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16.7 Transfer by Landlord. Upon a sale or other transfer of the Project (or a
portion thereof containing the Premises) by Landlord, Landlord's interest in
this Lease shall automatically be transferred to the transferee, the transferee
shall automatically assume all of Landlord's obligations under this Lease
accruing from and after the date of transfer, and the transferor shall be
released of all obligations under this Lease arising after the transfer. Tenant
shall upon request attorn in writing to the transferee.
ARTICLE 17 SUBORDINATION AND ATTORNMENT
17.1 Subordination. This Lease is and shall be subject and subordinate in all
respects to all existing and future mortgagee or deeds of trust now or hereafter
encumbering the Project or any part hereof. The holder of any mortgage or deed
of trust may elect to be subordinate to this Lease.
17.2 Lender Protection. Upon a transfer in connection with foreclosure or
trustee's sale proceedings or in connection with a default under an encumbrance,
whether by deed to the holder of the encumbrance in lieu of foreclosure or
otherwise, Tenant, if requested, shall in writing attorn to the transferee, but
the transferee shall not be:
1. subject to any offsets or defenses which Tenant might have
against Landlord; or
2. bound by any prepayment by Tenant of more than one month's
installment of rent: or
3. subject to any liability or obligation of Landlord except those
arising after the transfer.
17.3 Documentation. The subordination provisions of this Article shall be
self-operating and no further instrument shall be necessary. Nevertheless
Tenant, on request, shall execute and deliver any and all instruments further
evidencing such subordination.
17.4 Other Transactions. Landlord may at any time and from time to time grant,
receive, dedicate, relocate, modify, surrender or otherwise deal with easements,
rights of way, restrictions, covenants, equitable servitudes or other matters
affecting the Project without notice to or consent by Tenant.
ARTICLE 18 ESTOPPEL CERTIFICATES
Tenant shall at any time within ten days after written request from Landlord
execute, acknowledge and deliver to Landlord a statement in writing: (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any; (b) confirming the
commencement and expiration dates of the term; (c) confirming the amount of the
security deposit held by Landlord; (d) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed; and (e) confirming such other
matters as to which Landlord may reasonably request confirmation. Any such
statement may be conclusively relied upon by a prospective purchaser or
encumbrancer of the Premises or the Project. If Landlord desires to
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finance or refinance the Project, Tenant hereby agrees to deliver to any lender
designated by Landlord such financial statements of Tenant as may be reasonably
required by such lender. Such statement shall include the past three years'
financial statements of Tenant. All such financial statements shall be received
by Landlord in confidence and shall be used only for the purposes herein set
forth.
ARTICLE 19 QUIET ENJOYMENT
If Tenant pays the rent and observes and performs the terms, covenants and
conditions contained in this Lease, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term without hindrance or interruption by Landlord,
or any other person lawfully claiming by, through or under Landlord unless
otherwise permitted by the terms of this Lease. Tenant acknowledges that the
exercise by the Landlord of any of the rights conferred on Landlord under this
Lease and the entry upon the Premises for or in connection with such purposes
shall not be deemed to be a constructive or actual eviction of the Tenant and
shall not be considered to be a breach of Landlord's covenant of quiet
enjoyment.
ARTICLE 20 SURRENDER AND HOLDOVER
20.1 Surrender. Upon the expiration or termination of this Lease or of Tenant's
right to possession, Tenant shall surrender the Premises in a clean undamaged
condition and shall remove all of Tenant's equipment, fixtures and property and
repair all damage caused by the removal. Unless otherwise agreed to in writing
by Landlord, such removal shall include, without limitation, the removal of all
telephone wire and other telecommunications lines located within the Premises
and from the Premises to the central telephone box for the Building. Tenant
shall not remove permanent improvements that were provided by Landlord at the
commencement of this Lease and shall not remove permanent improvements later
installed by Tenant unless directed to do so by Landlord.
20.2 Holdover. If Tenant holds over without Landlord's consent, Tenant shall, at
Landlord's election, be a tenant at will or a tenant from month-to-month. In
either case rent shall be payable monthly in advance at a rate equal to two
(200%) times the rate in effect immediately before the holdover began. A
holdover month-to-month tenancy may be terminated by either party as of the
first day of a calendar month upon at least ten days' prior notice. A holdover
tenancy at will is terminable at any time by either party without notice,
regardless of whether rent has been paid in advance. Upon a termination under
this Section, unearned rent shall be refunded following the surrender of
possession provided Tenant is not otherwise in breach of this Lease.
ARTICLE 21 BREACH, DEFAULT, AND REMEDIES
21.1 Default. The following shall constitute Events of Default:
(a) Tenant's failure to pay rent or any other amount due under this
Lease as due, where such failure shall continue for a period of ten (10) days
after the date when such payment is due; or
(b) Tenant's failure to execute, acknowledge and return a
subordination agreement under Article 17 or an estoppel certificate under
Article 18 within ten days after request: or
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(c) Tenant's failure to perform any other obligation under this Lease
within fifteen days after notice of nonperformance; provided, however, that if
the breach is of such a nature that it cannot be cured within fifteen (15) days,
no Event of Default shall be deemed to have occurred by reason of the breach if
cure is commenced promptly and diligently pursued to completion within a period
not longer than ninety days; and provided further, that in the event of a breach
involving an imminent threat to health or safety, Landlord may in its notice of
breach reduce the period for cure to such shorter period as may be reasonable
under the circumstances; or
(d) Tenant vacates, abandons, or otherwise ceases to use the Premises
on a substantial continuing basis except temporary absence excused by reason of
fire, casualty, failure of services or other cause wholly beyond Tenant's
control; for these purposes, absence for five consecutive business days shall
conclusively be deemed an abandonment.
21.2 Remedies. Upon the occurrence of an Event of Default, Landlord, at any time
thereafter without further notice or demand may exercise any one or more of the
following remedies concurrently or in succession:
(a) Terminate Tenant's right to possession of the Premises by legal
process or otherwise, with or without terminating this Lease, and retake
exclusive possession of the Premises.
(b) From time to time relet all or portions of the Premises, using
reasonable efforts to mitigate Landlord's damages. In connection with any
reletting, Landlord may relet for a period extending beyond the term of this
Lease and may make alterations or improvements to the Premises without releasing
Tenant of any liability. Upon a reletting of all or substantially all of the
Premises, Landlord shall be entitled to recover all of its then prospective
damages for the balance of the Lease Term measured by the difference between
amounts payable under this Lease and the anticipated net proceeds of reletting.
(c) From time to time recover accrued and unpaid rent and damages
arising from Tenant's breach of the Lease, regardless of whether the Lease has
been terminated, together with applicable late charges and interest at a rate
equal to the lesser of: (i) eighteen percent (18%) per annum, or (ii) the
maximum rate allowed by applicable law.
(d) Enforce the statutory Landlord's lien on Tenant's property.
(e) Recover all costs, expenses and attorney's fees incurred by
Landlord in connection with enforcing this Lease, recovering possession,
reletting the Premises or collecting amounts owed, including, without
limitation, costs of alterations, brokerage commissions, and other costs
incurred in connection with any reletting.
(f) Perform the obligation on Tenant's behalf and recover from
Tenant, upon demand, the entire amount expended by Landlord plus 20% for special
handling, supervision, and overhead.
(g) Pursue other remedies available at law or in equity.
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21.3 Subtenancies. Upon a termination of Tenant's right to possession, whether
or not this Lease is terminated: (a) subtenancies and other rights of persons
claiming under or through Tenant shall be terminated or (b) Tenant's interest in
such subleases or other arrangements shall be assigned to Landlord. Landlord may
separately elect termination or assignment with respect to each such subtenancy
or other matter.
ARTICLE 22 LANDLORD LIABILITY
Notwithstanding anything to the contrary in this Lease, neither Landlord nor
Landlord's directors, officers, shareholders, employees, agents, constituent
partners, beneficiaries, trustees, representatives, successors or assigns
(collectively, "Landlord's Affiliates") shall be personally responsible or
liable for any representation, warranty, covenant, undertaking or agreement
contained in the Lease, and the sole right and remedy of the Tenant or any
subsequent sublessee or assignee shall be against Landlord's interest in the
Project. Neither Tenant nor any subsequent sublessor or assignee shall seek to
obtain any judgment imposing personal liability against Landlord, Landlord's
Affiliates, or their successors or assigns nor execute upon any judgment or
place any lien against any property other than Landlord's interest in the
Project.
ARTICLE 23 NOTICES
Except as expressly provided to the contrary in this Lease, every notice or
other communication to be given by either party to the other with respect hereto
or to the Premises or Project, shall be in writing and shall not be effective
for any purpose unless the same shall be served personally or by national air
courier service, or United States certified mail, return receipt requested,
postage prepaid, to the parties at the addresses set forth in Sections 1.14 and
1.15 above, as appropriate, or such other address or addresses as Tenant or
Landlord may from time to time designate by notice given as above provided.
Every notice or other communication hereunder shall be deemed to have been given
as of the third business day following the date of such mailing (or as of any
earlier date evidenced by a receipt from such national air courier service or
the United States Postal Service) or immediately if personally delivered.
Notices not sent in accordance with the foregoing shall be of no force or effect
until received by the foregoing parties at such addresses required herein.
ARTICLE 24 BROKERAGE
Tenant warrants and represents that no broker or other person is entitled to
claim a commission, broker's fee or other compensation in connection with this
Lease except: (i) brokers or other persons that Landlord may have retained or
employed directly, and (ii) brokers whom Tenant has previously specifically
designated in writing to Landlord as Tenant's representative as listed in
Section 1 .18. Tenant shall defend, indemnify and hold Landlord harmless from
all claims or liabilities arising from any breach of the foregoing
representation and warranty.
ARTICLE 25 RELOCATION
Intentionally Omitted
ARTICLE 26 GENERAL
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26.1 Severability. If any term, covenant or condition of this Lease, or the
application thereof, is to any extent held or rendered invalid, it shall be and
is hereby deemed to be independent of the remainder of the Lease and to be
severable and divisible therefrom, and its invalidity, unenforceability or
illegality shall not affect, impair or invalidate the remainder of the Lease or
any part thereof.
26.2 No Waiver. The waiver by Landlord of any breach of any term, covenant or
condition contained in this Lease shall not be deemed to be a waiver of such
term, covenant or condition or of any subsequent breach of the same or of any
other term, covenant or condition contained in this Lease. The subsequent
acceptance of rent by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of rent. No term, covenant or condition of this Lease shall be deemed
to have been waived by Landlord unless such waiver is in writing by Landlord.
26.3 Effect of Payment. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly payment of rent herein stipulated is deemed to be other
than on account of the earliest stipulated rent, nor is any endorsement or
statement on any check or any letter accompanying any check or payment of rent
deemed an acknowledgment of full payment or accord and satisfaction, and
Landlord may accept and cash any check or payment without prejudice to
Landlord's right to recover the balance of the rent due and pursue any other
remedy provided in this Lease.
26.4 Delay. If either party is delayed or hindered in or prevented from the
performance of any term, covenant or act required hereunder by reasons of
strikes, labor troubles, inability to procure materials or services, power
failure, restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, act of God, or other reason whether of a like nature
or not that is beyond the control of the party affected, financial inability
excepted, then the performance of that term, covenant or act is excused for the
period of the delay and the party delayed shall be entitled to perform such
term, covenant or act within the appropriate time period after the expiration of
the period of such delay. Nothing in this Section, however, shall excuse Tenant
from the prompt payment of any amount payable under this Lease nor from the
consequences of Tenant Delay as provided in Exhibit C (if attached).
26.5 Lender Notice. In the event of a material default by Landlord of a
sufficiently serious nature that Tenant considers the utility of the Premises to
Tenant to be significantly impaired, Tenant shall give written notice of the
default to Landlord and shall simultaneously send a copy of the notice to the
holder of any encumbrance, the name and address of whom has previously been
furnished in writing to Tenant. If Landlord fails to cure the default within a
reasonable time, Tenant shall send a second notice to that effect to the holder
of the encumbrance, with a copy to Landlord, and the holder of the encumbrance
then shall have a reasonable time, not less then thirty days, to cause the
default to be remedied.
26.6 No Offer. The submission of this Lease for examination does not constitute
a reservation of an option to lease the Premises, and this Lease becomes
effective as a lease only upon its execution and delivery by Landlord and
Tenant.
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26.7 Successors. All rights and liabilities under this Lease extend to and bind
the successors and assigns of Landlord and permitted successors and assigns of
Tenant. No rights, however, shall inure to the benefit of any transferee of the
Tenant unless the transfer has been consented to by the Landlord in writing as
provided in Section 16.1. If there is more than one Tenant, they are all bound
jointly and severally by the terms, covenants and conditions of this Lease.
26.8 Integration. This Lease and the Exhibits hereto attached, set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Premises and there are no other covenants, promises,
agreements, conditions or understandings, either oral or written, between them.
No alteration, amendment or addition to this Lease shall be binding upon
Landlord or Tenant unless in writing and signed by Tenant and Landlord.
26.9 WAIVER OF JURY TRIAL. IN ANY LITIGATION BETWEEN LANDLORD AND TENANT, THE
MATTER SHALL BE DECIDED BY A JUDGE SITTING WITHOUT A JURY, AND TENANT
ACCORDINGLY WAIVES ITS RIGHT TO A JURY TRIAL.
26.10 Governing Law. This Lease shall be construed in accordance with and
governed by the laws of the State of Arizona.
26.11 Deadlines Enforceable. Time is of the essence of this Lease and of every
part hereof.
26.12 Counterparts. This Lease may be executed in counterparts, which together
shall constitute a single instrument.
26.13 Additional Provisions:
Option to Further Extend. Tenant will have the option to extend the
term of this Lease for all space then under lease by Tenant in the Building for
one period of three (3) years, or for one period of five (5) years, at Tenant's
election, subject to the further provisions of this Section 26.13. Such
extension of the term of this Lease is referred to as the Extended Term.
(a) Tenant must exercise the option with respect to the Extended
Term, if at all, by giving written notice of exercise to Landlord on or before
December 1, 2002. Any such notice of exercise by Tenant is called "Tenant's
Notice". Tenant will have no right to extend the Term if Tenant's Notice is not
timely delivered.
(b) It is a condition precedent to Tenant's option to further extend
that Tenant not be in default of any material provision of the Lease on the date
that Tenant's Notice is given; provided, however, that if Tenant is in default
but the cure period has not expired, then this condition shall be deemed
satisfied if Tenant cures the default within the permitted cure period.
(c) The Extended Term will be on the same terms and conditions as the
Lease, except that (i) Tenant's monthly Base Rent will be based on an amount
equal to the prevailing market rate ("Market Rate") per rentable square foot at
the time of Tenant's Notice; (ii) the Base Year shall be the calendar year 2003;
and (iii) all references in the Lease to the "Lease term" or the
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"term" will mean the Extended Term. The monthly Base Rent referenced in clause
(i) does not include Tenant's Proportionate Share of the Operating Costs, rental
taxes, parking charges or any other sums payable to Landlord under the Lease,
all of which sums will remain payable during the Extended Term.
(d) If Tenant disputes Landlord's determination of the Market Rate,
Tenant may, by giving written notice to Landlord within 15 days following
Tenant's receipt of Landlord's notice of the rent for the Extended Term,
withdraw its exercise of the option to extend.
TENANT:
INTEFLUX, INC.
An Arizona Corporation
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Its: CEO - Inteflux
Date: 1/04/01
LANDLORD:
SOFI-IV SM OFFICE INVESTORS II, LP, an
Delaware limited partnership
By: Scottsdale Property Management 97,
X.XX., an Arizona limited liability
company, Agent
By
---------------------------------
Authorized signatory
Date:
-----------------------------------
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