Exhibit 10.26
GA Property No. 17356 (IP:704)
STANDARD FORM OF INDUSTRIAL LEASE
(NET) (SINGLE TENANT FACILITY)
THIS LEASE, made this 15th day of June, 1999, by and between GENERAL
AMERICAN LIFE INSURANCE COMPANY, a Missouri corporation, whose address is 000
Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, (the "Landlord"), and MEGA Systems and
Chemicals, Inc., whose address is 000 Xxxxx XxXxxx Xxxxxx, Xxxxxxxx, XX (the
"Tenant").
ARTICLE I. DEFINITIONS.
1.1 Base Rent: $39,184.00 per month, subject to rent escalations or
modifications set out in a Rider attached hereto and incorporated herein by this
reference.
1.2 Base Year. The calendar year in which this Lease commences.
1.3 Premises: The Premises as outlined on Exhibit A attached hereto and located
at (Street Address:) Tempe Business Center, Building 5, 1320 West Auto Drive,
(City:) Tempe (State:) Arizona. The Premises shall include all parking areas,
truck loading areas, driveways, landscaped areas and appurtenances associated
therewith or with the Building. The Premises currently contains 43,542 square
feet of space and it is anticipated that Tenant shall construct 9,409 square
feet of mezzanine space in accordance with Rider Five attached hereto, for a
total of 52,951 square feet of space.
1.4 Building/s and Center: The Building in which the Premises is located, such
Building containing approximately 43,542 square feet of space on the ground
floor and to contain 9,409 square feet on the mezzanine floor. The Center is all
the land, improvements and appurtenances depicted on Exhibit A attached hereto,
in which the Building, Premises and Common Area are located and commonly
referred to as: (Name of Center:) Tempe Business Center.
1.5 Common Area: The term "Common Area" means all the areas of the Center
designed for the common use and benefit of the Landlord and all of the tenants,
their employees, agents, customers and invitees. The Common Area includes, but
not by way of limitation, parking lots, truck courts, lobbies, atriums,
landscaped and vacant areas, driveways, walks and curbs with facilities
appurtenant to each as such areas may exist from time to time.
1.6 Lease Term: Tenant agrees to diligently pursue the completion of its tenant
improvements. The Lease Term shall commence the earlier of August 1, 1999 or the
date on which the City of Tempe issues a certificate of occupancy pertaining to
the Premises. The Lease Term shall run for 10 years, expiring on the last day of
said tenth year.
1.7 Rent: All sums, moneys or payments required to be paid by Tenant to Landlord
pursuant to this Lease, including Base Rent and Additional Rent.
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1.8 Additional Rent: All sums, moneys or payments required to be paid by Tenant
to Landlord pursuant to this Lease other than Base Rent.
1.9 Tenant's Proportionate Share: The percentage figure determined by dividing
the number of square feet in the Premises by the total number of square feet in
all of the Buildings in the Center (this paragraph is applicable when the Center
contains more than one Building) owned by Landlord, as determined by Landlord in
its reasonable judgment.
ARTICLE II. THE DEMISED PREMISES.
2.1 Lease of the Premises. In consideration of the Rents, covenants and
conditions hereinafter provided to be paid, kept, performed and observed,
Landlord leases to Tenant and Tenant hereby rents from Landlord the Premises,
upon all the terms and conditions set forth in this Lease.
2.2 Use of Common Area. Landlord grants Tenant the nonexclusive revocable use of
the Common Area by Tenant, Tenant's employees, agents, customers and invitees,
under all the terms and conditions hereof, which use shall be subject at all
times to such reasonable, uniform and non-discriminatory rules and regulations
as may from time to time be established by Landlord.
2.3 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rent herein
provided and on keeping and performing the covenants, agreements and conditions
herein required of Tenant, shall peaceably and quietly hold and enjoy the
Premises for the Lease Term, subject, however, to the terms and conditions of
this Lease.
ARTICLE III. TERM OF THE LEASE.
3.1 Term. Tenant shall have and hold the Premises for and during the Lease Term
subject to the payment of the Rent and the full and timely performance by Tenant
of all the covenants and conditions set forth in this Lease.
3.2 Tender of Possession. Landlord shall use its best efforts to tender
possession of the Premises to Tenant at the commencement of the Lease Term or at
such earlier time as is necessary for Tenant to commence construction of the
Tenant Improvements in accordance with Rider Five attached hereto. Landlord
shall not be subject to any liability for any failure to tender possession of
the Premises to Tenant, provided that such failure occurred as a consequence of
any circumstance or cause beyond Landlord's reasonable control, including, but
not limited to, any Act of God or the failure of a prior tenant to vacate all or
any portion of the Premises.
3.3 Holding Over. In the event of a holding over by Tenant or any of its
successors in interest after expiration or termination of this Lease without the
consent in writing of Landlord, Tenant shall be deemed a tenant at sufferance
and shall pay as liquidated damages, one and one-half times (150%) Rent for the
entire holdover period and all attorney's fees and expenses incurred by Landlord
in enforcing its rights hereunder. Any holding over with the consent of Landlord
shall
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constitute Tenant becoming a month-to-month tenant upon and subject to all the
terms, covenants and conditions of this Lease.
ARTICLE IV. RENT.
4.1 Base Rent. Tenant covenants to pay without notice, deduction, set-off or
abatement to Landlord the Base Rent in lawful money of the United States in
equal consecutive monthly installments in advance on the first day of each month
during the Lease Term. Base Rent for any partial month shall be prorated on a
per diem basis. Base Rent shall be payable to Landlord at Landlord's Address or
such other place as Landlord may designate from time to time in writing. Tenant
shall pay the first full month's Base Rent upon execution of this Lease.
4.2 Additional Rent. For the calendar year 1999, Tenant shall pay $3,641.07 per
month to Landlord as Additional Rent; provided, however, in the event the square
footage of the mezzanine space exceeds 9,409 square feet, said monthly payment
shall be increased at the rate of $.07 per square foot per month for each excess
square foot. Additional Rent is subject to periodic adjustments as provided
herein. Additional Rent shall be due and payable during each month of abated
Base Rent, if any. Tenant covenants to pay without notice, deduction, set-off or
abatement to Landlord the Additional Rent in lawful money of the United States
in equal consecutive monthly installments in advance on the first day of each
month during the Lease Term. Additional Rent for any partial month shall be
prorated on a per diem basis. Additional Rent shall be payable to Landlord at
Landlord's Address or such other place as Landlord may designate in writing. In
order to provide for current payments of Additional Rent, Tenant agrees to pay
an amount of Additional Rent reasonably estimated by Landlord from time to time
commencing on the first day of the month following the month in which Landlord
notifies Tenant of the amount of such Additional Rent. If, as finally
determined, at the close of books for the calendar year and within sixty (60)
days after the end of said calendar year, the amount of Additional Rent owing by
Tenant shall be greater than or less than the aggregate of all installments so
paid to Landlord for each calendar year, Tenant shall pay to Landlord the amount
of such underpayment, or Landlord shall credit Tenant for the amount of such
overpayment, as the case may be. It is the intention hereunder to estimate the
amount of Additional Rent for each calendar year and then to adjust such
estimate in the following year based on the actual amount of Additional Rent
owing. The obligation of Tenant with respect to the payment of Additional Rent
shall survive the termination of this Lease with regard to Additional Rent
attributable to any full and/or partial year immediately preceding the
termination of this Lease for which the amount of any underpayment has not yet
been calculated pursuant hereto. Any payment, refund or credit made pursuant to
this paragraph shall be made without prejudice to any right of Tenant to dispute
the amount of Additional Rent owing, or the right of Landlord to correct any
items as billed pursuant to the provisions hereof. Within 30 days of the date
Landlord notifies Tenant of the amount of Additional Rent owing, Tenant or its
authorized agent at Tenant sole cost and expense shall have the right to inspect
the books of Landlord during the business hours of Landlord at such location
that Landlord may specify, for the purpose of verifying such amount. Unless
Tenant asserts specific errors within such 30 days, such notification by
Landlord shall be deemed to be correct. No decrease in Additional Rent shall
reduce Tenant's liability hereunder below the amount of Base Rent payable
hereunder.
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4.2(a) Utilities and Services. Except to the extent of Landlord's sole
negligence in connection with an interruption of utility services which is not
cured for three (3) business days after Landlord's receipt of written notice,
Landlord shall not be liable for any interruption or failure whatsoever in
utility services, Tenant shall contract in its own name and pay all charges for
electricity, gas, fuel, telephone, water, sewer and any other services or
utilities used in, servicing or assessed against the Premises, unless otherwise
herein expressly provided. Additionally, containerized rubbish collection bins
will be provided to the Building, and Tenant agrees to pay to Landlord as
Additional Rent, the service cost of such bins. Landlord may, however, require
Tenant to contract for his own rubbish collection.
4.2(b) Insurance. Tenant shall pay to Landlord as Additional Rent Tenant's Share
(or, Tenant's Proportionate Share in the event there is more than one Building
in the Center and the cost is not billed separately for the Premises) of the
cost of the premiums for the all risk, fire and extended coverage insurance that
Landlord maintains for the Center or Building.
4.2(c) Real Estate Taxes. Tenant shall pay to Landlord as Additional Rent
Tenant's Share (or, Tenant's Proportionate Share in the event there is more than
one Building in the Center and the items are not billed separately for the
Premises) of all real estate taxes, assessments, occupational taxes or excise
taxes levied on rentals derived from operation of the property, and any other
government or private subdivision levies or charges, whether general or special,
ordinary or extraordinary, which are assessed or imposed upon all or part of the
Center, together with any of the expenses of protesting, negotiating or
contesting the amount or validity of any such taxes, charges or assessments.
Although no tax contest shall excuse Tenant from its obligation to pay its share
of taxes as and when required by this Lease, Tenant shall have the right to
challenge such assessments through legal means at its own expense provided
Tenant posts a security bond acceptable to Landlord and holds Landlord and the
Premises harmless from the consequences of Tenant's participation in such
contest. In the event Landlord, or any tenant of the Center, including Tenant,
obtains a refund, such refund shall first be applied to the costs and fees
incurred in obtaining such refund and then shall be distributed pro rata to the
parties paying such taxes.
If the Lease Term shall end during a tax year ("tax year" shall mean
the annual period for which Real Estate Taxes are assessed and levied) of which
only part is included in the Lease Term, the amount of such Additional Rent
shall be prorated on a per diem basis and shall be paid on or before the last
day of the Lease Term. If the Lease Term ends in any tax year before the amount
to be payable by Tenant has been determined under the provisions of this
Section, an amount payable for the portion of the Lease Term during the tax year
shall be reasonably estimated by Landlord and the estimated amount shall be
promptly paid by Tenant. As soon as the amount properly payable by Tenant for
the partial period has finally been determined, the amount shall be adjusted
between Landlord and Tenant. Tenant shall be liable for all taxes levied against
personal property and trade fixtures placed by Tenant in the Premises.
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4.2(d) HVAC Maintenance. Tenant shall pay all expenses incurred to repair the
heating, ventilating and air conditioning equipment servicing the Premises.
Further, within thirty (30) days from the Commencement Date of the Lease, Tenant
shall provide Landlord with evidence of a fully executed HVAC maintenance
contract. The HVAC maintenance contract shall be performed by a mechanical
contractor, licensed in the state of Arizona, and shall provide for no less than
quarterly (4x per year) preventative maintenance services.
Should Tenant fail to provide the HVAC maintenance contract as specified above,
Landlord may enter into an HVAC maintenance service contract on Tenant's behalf
and xxxx such expenses back to Tenant as Additional Rent.
4.2(e) Common Area Expenses. Tenant will pay to Landlord as Additional Rent
Tenant's Share (or, Tenant's Proportionate Share in the event there is more than
one Building in the Center and the expenses are not billed separately for the
Premises) of the Common Area Operating Cost.
"Common Area Operating Cost" means the Landlord's total cost and
expense incurred in owning, operating, maintaining and repairing the Common
Area, including but not limited to: costs for all electricity, gas, water, sewer
or fuel used in connection with the operation, maintenance and repair of the
Common Area; lighting costs; labor costs, including Landlord's share of
workmen's compensation and disability insurance, payroll taxes and fringe
benefits; managerial, administrative and telephone expenses, related to the
Common Area; snow removal, salting and landscaping of Common Area; property
management fees not to exceed five percent (5%) of gross income of Center; and
all other expenses of maintenance and repair of the Common Area, To the extent
that Landlord elects to provide services which are not separately metered or
directly billed to Tenant, such as water, sewer and trash hauling, the costs of
such services shall be included in Common Area Operating Cost. Common Area
Operating Cost shall not, however, include interest on debt, capital retirement
of debt, depreciation, costs properly chargeable to the capital account, except
for capital expenditures which reduce other operating expenses or such capital
expenditures that are required by changes in any governmental law or regulation
in which case such expenditures, plus interest on the unamortized principal
investment at ten (10%) percent per annum, shall be amortized over the life of
the improvements, and such costs shall be directly chargeable by the Landlord to
Tenant in the Tenant's Share (or, Tenant's Proportionate Share in the event
there is more than one Building in the Center and the costs are not billed
separately for the Premises).
4.2(f) Rent or Sales Taxes. Tenant shall pay to Landlord as Additional Rent any
Sales or Rent Taxes, however named or designated, levied on any form of Rent or
Additional Rent.
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4.3 Late Payment. Tenant's failure to make any rental payment or other payment
required of Tenant hereunder within five (5) days of the due date therefor shall
automatically result in the imposition of a service charge in the amount of
three percent (3%) of such payment, without notice.
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS.
5.1 Maintenance by Landlord. During the Lease Term, Landlord shall operate and
maintain the Common Area and shall keep and maintain the roof, exterior walls
(excluding doors, glass or plate glass), gutters and downspouts of the
Building/s in good condition and repair, but shall be under no obligation and
shall not be liable for any failure to make such repairs until and unless Tenant
notifies Landlord in writing of the necessity therefor, in which event Landlord
shall have a reasonable time thereafter to make such repairs. Landlord reserves
the right to the exclusive use of the roof and exterior walls of the Building/s
which Landlord is so obligated to maintain and repair. Landlord further reserves
the right to place, install, maintain, carry through, repair and replace such
utility lines, air ducts, pipes, wires, appliances, tunneling and the like in,
over, through and upon the Premises as may be reasonably necessary or advisable
for the servicing of the Premises or any other portions of the Center. If any
portion of the Center which Landlord is obligated to maintain or repair is
damaged by the negligence of Tenant, its agents, employees or invitees, then
repairs necessitated by such damage shall be paid for by Tenant. If the
maintenance or repair is not made necessary by the negligence of Tenant, its
agents, employees or invitees, then Tenant shall pay to Landlord, as Additional
Rent, Landlord's cost and expense incurred for such repair and maintenance, less
a proportionate share of any recovery by Landlord for such costs and expenses
incurred.
5.2 Mortgage and Transfer; Estoppel Certificates. Landlord shall have the right
to transfer, mortgage, pledge or otherwise encumber, assign and convey, in whole
or in part, the Center, the Building/s or the Premises, this Lease, and all or
any part of the rights now or thereafter existing therein and all Rents and
amounts payable to Landlord under the provisions hereof. In the event of any
such transfer or transfers, upon transferee's agreement to attorn to this Lease
Landlord herein named (and in the case of any subsequent transfer, the then
transferor) shall be automatically freed and relieved from and after the date of
such transfer of all personal liability as respects the performance of any
covenants or agreements on the part of Landlord contained in this Lease
thereafter to be performed. The rights of the Tenant under this Lease shall be
subject and subordinate to all instruments executed and to be executed in
connection with the exercise of any such rights, including, but not limited to,
the lien of any mortgage, deed of trust, or security agreement now or hereafter
placed upon Landlord's interest in the Premises. This paragraph shall be
self-operative. However, Tenant covenants and agrees to execute and deliver upon
demand such further instruments subordinating this Lease to the lien, of any
such mortgage, deed of trust or security agreement as shall be requested by
Landlord and/or mortgagee or proposed mortgagee or holder of any security
agreement and hereby irrevocably appoints Landlord as its agent and
attorney-in-fact to execute and deliver any such instrument for and in the name
of Tenant. Tenant shall, within ten (10) days after written request of Landlord,
execute, acknowledge, and deliver to Landlord or to any person designated by
Landlord, any estoppel certificates requested by Landlord from time to time,
which estoppel certificates shall show
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whether the lease is in full force and effect and whether any changes may have
been made to the original lease; whether the term of the lease has commenced and
full rental is accruing; whether there are any defaults by Landlord and, if so,
the nature of such defaults; whether possession has been assumed and all
improvements to be provided by Landlord have been completed; and whether rent
has been paid more than thirty (30) days in advance and that there are no
liens, charges, or offsets against rentals due or to become due and that the
address shown on such estoppel certificate is accurate.
5.3 Landlord's Inability to Perform. If, by reason of any cause beyond the
reasonable control of Landlord including "Acts of God," Landlord shall be unable
to perform or shall be delayed in the performance of any covenant or to supply
any service, such nonperformance or delay in performance shall not render
Landlord liable in any respect for damages to either person or property,
constitute a total or partial eviction, constructive or otherwise, work an
abatement of rent or relieve Tenant from the fulfillment of any covenant or
agreement contained in this Lease. Should any circumstances described herein
prevent or delay Tenant's ability to supply any service, except payment of Base
Rent and/or Additional Rent, such non-performance or delay in performance shall
not render Tenant liable for damages to Landlord.
5.4 Rights of Landlord. Landlord may enter upon the Premises for the purpose of
exercising any or all of the rights hereby reserved without being deemed guilty
of an eviction or disturbance of Tenant's use or possession and without being
liable in any manner to Tenant. The reservation of these rights by Landlord
shall not render Landlord liable for not performing any of the matters specified
herein.
5.4(a) Name of Center/Building. To change the name of the Building/s or
the Center without notice or liability of the Landlord to Tenant;
5,4(b) Redecorate. During the last ninety (90) days of the Lease Term
or any renewal or extension thereof, if during or prior to that time
Tenant has vacated the Premises, to decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy;
5.4(c) Re-Lease. To exhibit the Premises to others and to display "For
Lease" signs on the Premises during the last one hundred eighty (180)
days of the Lease Term or any renewal or extension thereof;
5.4(d) Vehicles. To remove abandoned or unlicensed vehicles and
vehicles that are unreasonably interfering with the use of the parking
lot by others, and to charge the responsible tenant for such removal
expense;
5.4(e) Preservation of Center. To take any and all measures, including
making inspection, repairs, alterations, additions and improvements to
the Premises, the Building/s or to the Center, adding and/or excluding
additional areas to or from the Center, constructing additional
buildings and other improvements in the Center, removing or relocating
the whole or any part of any Building or other improvements in the
Center, or relocating any other tenant in the Center, as may be
necessary or desirable for the safety, protection or preservation of
the Premises or the Center or the
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Landlord's interests, or as may be necessary or desirable in the
operation of the Premises or the Center. It is further understood that
the existing layout of the buildings, walks, roadways, parking areas,
entrances, exits, and other improvements shall not be deemed to be a
warranty, representation or agreement on the part of the Landlord that
the Center will remain exactly as presently built. Notwithstanding
anything herein to the contrary, in no event shall Landlord make any
alterations, changes or additions to the Premises that adversely
affects the Tenant's use and quiet enjoyment of the Premises.
ARTICLE VI. TENANT'S RIGHTS AND OBLIGATIONS.
6.1 Acceptance of Premises. Landlord will complete the Premises in its shell
condition in accordance with the plans delivered to Tenant on December 16, 1998
and stamped June 6, 1998 by Xxxxxx Architectural Group. Tenant acknowledges that
it will examine the Premises within five (5) days after full execution of this
Lease and shall be deemed to have accepted the Premises in its present
condition, unless Tenant furnishes Landlord written notice specifying any defect
in the construction or condition of the Premises within said five (5) day
period. In the event Tenant notifies Landlord of a defect pursuant hereto,
Landlord shall have the right to elect to cure such defect or terminate this
Lease, in its good faith discretion.
6.2 Alterations and Additions. Tenant shall not make any alterations,
improvements, or additions to the Premises exceeding $5,000.00 without the prior
written consent and approval of plans therefor by Landlord, whose consent shall
not be unreasonably withheld or delayed. Alterations, improvements or additions
made by either of the parties upon the Premises, except moveable furniture and
equipment placed in the Premises at the expense of Tenant, shall be the property
of Landlord and shall remain upon and be surrendered with the Premises as a part
thereof at the termination of this Lease, without molestation, injury or damage
unless Landlord elects to require Tenant to remove such alterations or
improvements from the Premises at the expiration of this Lease. In the event
damage shall be caused by moving said furniture and equipment in or out of the
Premises, said damage shall be repaired at the cost of Tenant.
6.3 Assignment and Subletting. Tenant shall not assign or hypothecate this Lease
to a non-related entity or sublet all or any part of the Premises to a
non-related entity without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Tenant shall give notice in writing (by
certified mail or by personal delivery) of any intention to assign this Lease or
sublet the Premises to Landlord and, thereupon, Landlord shall, within thirty
(30) days of receipt of such notice, have the right to unilaterally terminate
this Lease or to approve said assignment or subletting by written notice to
Tenant. If the assignment or subletting is approved and rents under the sublease
are greater than the rents provided for herein, then Landlord shall have the
further option either (a) to convert the sublease into a prime Lease and receive
all of the rents, in which case Tenant will be relieved of further liability
hereunder and under the proposed sublease, or (b) to require Tenant to remain
liable under this Lease, in which event Tenant shall be entitled to retain such
excess rents. If the assignment or subletting is approved and rents under the
sublease are less than the rents provided for herein, Tenant shall remain liable
under all the covenants and conditions of this Lease. Landlord may withhold its
consent to any proposed
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assignee or subtenant which in Landlord's judgment (a) would conflict with the
tenancy, use or business of any other tenant or the tenant mix of the Center,
(b) has a net worth and/or credit history inferior to that of Tenant, or (c) is
currently a tenant or negotiating for space in the Center, Tenant may assign or
sublet the Premises, or any portion thereof, without Landlord's consent, to any
related entity which controls, is controlled by or is under common control with
Tenant, provided that said assignee or subtenant assumes, in full, the
obligations of Tenant under this Lease. However, it is understood and agreed
that any such assignment or sublease shall not, in any way, affect, limit or
relieve Tenant's obligation under the terms of this Lease. Tenant or Tenant's
agent shall not display signs for sublease on the Premises.
6.4 Locks. All keys must be returned to Landlord at the expiration or
termination of the Lease.
6.5 Maintenance by Tenant. Tenant shall be responsible for all maintenance and
repair to the Premises of whatsoever kind or nature that is not herein set forth
specifically as the obligation of Landlord. Tenant shall take good care of the
Premises and fixtures, and keep them in good repair free from filth,
overloading, danger of fire or any pest or nuisance, repair any damage or
breakage done by Tenant or Tenant's agents, employees or invitees, including
damage done to the Premises by Tenant's equipment or installations. Tenant shall
be responsible for the repair and replacement of all glass and plate glass on
the Premises. In the event Tenant fails to maintain the Premises as provided for
herein, Landlord shall have the right, but not the obligation, to perform such
maintenance as is required of Tenant in which event Tenant shall reimburse
Landlord for its costs in providing such maintenance or repairs together with a
ten (10%) percent charge for Landlord's overhead and Tenant shall promptly
reimburse Landlord for such amount.
6.6 Mechanic's Liens. Tenant will not permit any mechanic's liens for work
performed at the request of or permitted by Tenant, or other liens, to be placed
upon the Premises, the Building/s or the Center during the Lease Term or any
extension or renewal thereof, and in case of the filing of any such lien, Tenant
will promptly pay same. Tenant agrees to pay all legal fees that might be
incurred by Landlord because of any mechanic's liens being placed upon the
Premises, the Building/s or the Center, as a result of Tenant's actions.
6.7 Redelivery of Premises. No later than the last day of the Lease Term (or any
renewals or extension thereof), Tenant will remove all Tenant's personal
property and repair all injury done by or in connection with installation or
removal of such property under the supervision and approval of Landlord and
surrender the Premises broom clean in as good a condition as they were in at the
beginning of the Lease Term, reasonable wear and tear excepted.
6.8 Signs and Advertisements. Tenant shall not put nor permit to be put upon any
part of the Premises, the Building/s or the Center, at places visible from
anywhere outside of the Premises or from public and common areas within the
Premises, any signs, inscriptions, billboards, notices or advertisements
whatsoever in any location or in any form without first obtaining Landlord's
prior written consent, which shall not be unreasonably withheld, and Tenant
shall be assessed a charge of $50.00 per day per sign, billboard or
advertisement if Tenant fails to obtain the written consent of Landlord prior to
placing any such signs. Landlord shall specify the color, size, style and
material to be used on any permitted signs. All exterior and interior signs must
be installed
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by Landlord or someone designated by Landlord and the actual cost thereof shall
be paid by Tenant and all such signs are so placed at the risk of Tenant.
6.9 Use of Common Areas. Tenant shall not use any part of the Center exterior to
the Premises for outside storage. No trash, crates, pallets, or refuse shall be
permitted anywhere on the Center outside of the Building/s by Tenant except in
enclosed metal containers to be located as directed by Landlord. Tenant shall
not park any trucks or trailers, loaded or empty, except in front of the loading
areas.
6.10 Use of Premises. The Premises hereby leased shall be used by Tenant only
for manufacturing, assembling and marketing of chemical distribution systems and
related activities and for no other purposes other than as may hereafter be
approved by Landlord in writing. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Tenant of the Premises, including or relating to
industrial hygiene, environmental protection, or the use, analysis, generation,
manufacture, storage, disposal or transportation of any Hazardous Substances (as
defined in Section 6.11 below). Tenant, its employees and all persons visiting
or doing business with Tenant in the Premises shall be bound by and shall
observe the Rules attached to this Lease, as Exhibit B and made a part hereof.
6.11 Hazardous Substances. Tenant shall not cause or permit any Hazardous
Substances (being hazardous or toxic substances, materials, or wastes as
defined or established from time to time by applicable local, state, or federal
ordinances, statutes, or regulations) to be brought upon, or kept or used in or
about the Premises, the Building/s or the Center by Tenant, its agents,
employees, contractors, or invitees, unless (a) such Hazardous Substances are
necessary for Tenant's business (as such business is a permitted use under
Section 6.10 above), and (b) Tenant first obtains the written consent of
Landlord. Whether or not Landlord has given such consent, if a release of Such
Hazardous Substances occurs (whether caused by Tenant or not), Tenant shall
immediately notify Landlord, and as to any such release that has been caused or
permitted by Tenant: (i) Tenant shall immediately and entirely remove such
released Hazardous Substance/s in a manner fully in compliance with all laws
pertaining to the removal and storage or deposit thereof; and (ii) Tenant
hereby agrees to indemnify and hold Landlord harmless as provided in Section 7.3
below, as a result of (a) Tenant's failure or delay in properly complying with
any law, order, rule, or regulation, or other requirements referred to in
Section 6.10 above, or (b) any adverse effect which results from the presence
of, discharge of, or release of any Hazardous Substances in, about or from the
Premises, the Building/s, the Center, or any Common Areas. This indemnification
by Tenant of Landlord shall survive the termination of this Lease. Further, upon
reasonable evidence that a release of a hazardous substance has occurred, Tenant
shall, upon Landlord's demand and at Tenant's sole expense, demonstrate to
Landlord (through such tests, professional inspections, sampling or otherwise as
is, in Landlord's sole judgment, sufficient for the purpose) that Tenant has
fully and completely removed, cleaned up, detoxified or de contaminated any
releases or discharges of Hazardous Substances in or upon the Premises,
Building/s, Center, or Common Areas.
Page 11
Landlord warrants that as of the date of execution hereof and to the best of its
knowledge, there are no hazardous substances stored on or within the Premises
and Building, utilized in the construction of the Premises and Building or
existing in the Premises and Building that would constitute a violation of any
applicable law, code or ordinance.
Tenant shall be responsible for causing the Premises to at all times be in
compliance with the terms and regulations of the Americans with Disabilities Act
of 1991 (the "ADA"), including, but not limited to, the design and installation
of any improvements, additions or alterations to the Premises, Furthermore,
Tenant shall operate the Premises at all times and its business thereon in a
manner to comply with the ADA. Landlord reserves the right to hereafter modify,
from time to time, the policies, practices, rules regulations and procedures
applicable to the Premises, to the extent necessary to comply with the ADA.
ARTICLE VII. INSURANCE.
7.1 Liability Insurance. Tenant covenants and agrees to maintain on the Premises
at all times during the Lease Term, or any extension or renewal thereof, a
policy or policies of commercial general liability insurance with not less than
$ 1,000,000.00 combined single limit for both bodily injury and property damage.
7.2 Fire and Extended Coverage Insurance. Landlord shall, throughout the Lease
Term, or any extension or renewal thereof, maintain fire and extended coverage
(FEC) insurance on the property owned by Landlord located on the Center in such
amounts and with such deductibles as Landlord shall determine. Landlord shall
not in any way or manner insure any property of Tenant or any property that may
be in the Premises not owned by Landlord. Tenant shall comply with all insurance
regulations so that the lowest fire, lightning, explosion, extended coverage and
liability insurance rates may be obtained; and nothing shall be done or kept in
or on the Premises by Tenant which will cause an increase in the premium for
any such insurance on the Premises or on any Building/s of which the Premises
are a part or on any contents located therein, over the rate usually obtained
for the proper use of the Premises permitted by this Lease or which will cause
cancellation of any such insurance.
7.3 Indemnification of Landlord. Tenant shall indemnify and hold Landlord
harmless from and against any and all actions, claims, demands, costs, damages,
expenses of any kind, and against any and all losses (including loss of rentals
payable by Tenant or other tenants) which may be imposed upon, incurred by, or
asserted against Landlord in connection with loss of life, bodily and personal
injury or damage to property arising from any occurrence in, upon or at the
Premises, or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant or by any one permitted to be on the Premises by Tenant, or
by reason of Tenant's occupancy of the Premises or Tenant's negligent
performance of or failure to perform any of its obligation under this Lease.
Tenant assumes all risk of and Landlord shall not be liable for injury to person
or damage to property resulting from the conditions of the Premises or from the
bursting or leaking of any and all pipes, utility lines, connections, or air
conditioning or heating equipment in, on or about the Premises, or from water,
rain or snow which may leak into, issue or flow from any part of the Building/s.
In case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
Landlord
Page 12
harmless and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by Landlord in connection with such litigation.
7.4 Additional Insured. Any insurance policies of Tenant required or maintained
hereunder shall name Landlord as additional insured.
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION.
8.1 Eminent Domain. In the event that title to the whole or a substantial part
of the Premises shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this Lease and the term and estate hereby granted
shall forthwith cease and terminate as of the date of vesting of title and
Landlord shall be entitled to receive the entire award, Tenant hereby assigning
to Landlord the Tenant's interest therein, if any. However, nothing herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property or
fixtures belonging to Tenant or for the interruption of or damage to Tenant's
business or for Tenant's moving expenses. A sale to a public or quasi-public
authority under threat of condemnation shall constitute a taking by eminent
domain. In the event that title to a part of the Building/s other than the
Premises shall be so condemned or taken, Landlord may terminate this Lease and
the term and estate hereby granted by notifying Tenant of such termination
within sixty (60) days following the date of vesting of title, and this Lease
and the term and estate hereby granted shall expire on the date specified in the
notice of termination, not less than sixty (60) days after the giving of such
notice, as fully and completely as if such date were the date herein set for the
expiration of the Lease Term, and the Rent hereunder shall be apportioned as of
such date. In the event of any condemnation or taking of any portion of the
parking area of the Center which does not result in a reduction of the parking
area by more than twenty percent (20%), the terms of this Lease shall continue
in full force and effect. If more than twenty percent (20%) of the parking area
is taken, either party shall have the right to terminate this Lease upon giving
written notice to the other party within thirty (30) days of such taking.
8.2 Damage or Destruction. If the Premises, the Building/s or the Center or any
part thereof is damaged by fire or other casualty, cause or condition whatsoever
and Landlord shall determine not to restore said Premises, Building/s or Center,
Landlord may, by written notice to Tenant given within sixty (60) days after
such damage, terminate this Lease, effective as of the date of the damage. If
this Lease is not terminated as above provided and if the Premises are made
partially or wholly untenantable, Landlord, at its expense, shall restore the
same with reasonable promptness to the condition in which Landlord furnished the
Premises to Tenant at the commencement of the Lease Term. Landlord shall be
under no obligation to restore any alteration, improvements or additions to the
Premises made by Tenant or paid for by Tenant, including, but not limited to,
any of the initial tenant finish done or paid for by Tenant or any subsequent
changes, alterations or additions made by Tenant or reimbursed by Tenant.
If, as a result of fire or other casualty, cause or condition
whatsoever the Premises are made partially or wholly untenantable and, if
Landlord has not given the sixty (60) day notice above provided for and fails
within one hundred twenty (120) days after such damage occurs to
Page 13
eliminate substantial interference with Tenant's use of said Premises or to
substantially restore said Premises, provided that Landlord has not in good
faith commenced to eliminate such substantial interference with Tenant's use or
to substantially restore the Premises, within said one hundred twenty day
period, Tenant may terminate this Lease after the end of said one hundred twenty
(120) days, effective as of the date such damage occurs, by notice to Landlord
given not later than ten (10) days after expiration of said one hundred twenty
(120) day period. Tenant may not terminate the Lease under this provision if
Landlord has in good faith commenced restoration of the Premises within said one
hundred twenty (120) days, but Landlord is not able to complete restoration
within said one hundred twenty day period due to circumstances beyond the
reasonable control of Landlord and so long as Landlord continues in good faith
to complete such restoration as soon as possible after the end of said one
hundred twenty day period. If the Premises are rendered totally untenantable but
this Lease is not terminated, all Rent shall xxxxx from the date of the fire or
other relevant cause or condition until the Premises are ready for occupancy and
reasonably accessible to Tenant. If a portion of the Premises is untenantable,
Rent shall be prorated on a per diem basis and apportioned in accordance with
the portion of the Premises which is usable by Tenant until the damaged part is
ready for Tenant's occupancy. In all cases, due allowance shall be made for
reasonable delay caused by adjustment of insurance loss, strikes, labor
difficulties or any cause beyond Landlord's reasonable control. In any event,
Tenant shall be responsible for the removal, or restoration, when applicable, of
all its damaged property and debris from the Premises, upon request by Landlord
or else Tenant must reimburse Landlord for the cost of removal.
ARTICLE IX. DEFAULT AND REMEDIES.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute a Default and a material breach of this Lease by Tenant.
9.1 (a) Nonpayment. Failure of Tenant to pay any installment of Rent or
other sum payable to Landlord hereunder on the date that same is due
and such failure shall continue for a period of five (5) days; or
9.1(b) Noncompliance. Failure of Tenant to comply with any term,
condition or covenant of this Lease, other than the payment of Rent or
other sum of money, and such failure shall not be cured within fifteen
(15) days after written notice thereof has been delivered by Landlord
to Tenant (or, if such default is of such a nature that it cannot be
cured with due diligence within fifteen (15) days, Tenant shall fail or
refuse to commence such cure within said fifteen (15) day period and
thereafter diligently in good faith pursue the same to completion; in
no event, however, shall the cure period, as extended hereby, exceed
thirty (30) days); or
9.1(c) Bankruptcy; Insolvency. The filing by or against Tenant or any
guarantor of Tenant's obligations hereunder of a petition in bankruptcy
or for liquidation, or adjudication as a bankrupt or insolvent; or the
appointment of a receiver or trustee for all or substantially all of
the assets of Tenant or any such guarantor; or insolvency, the making
of an assignment for the benefit of
Page 14
creditors, or the making of a transfer in fraud of creditors by Tenant
or any such guarantor; or
9.1(d) Abandonment. Abandonment by Tenant of any substantial portion of
the Premises or cessation of use of the Premises for the purpose
leased.
9.2 Remedies. In the event of the occurrence of any Default, Landlord shall have
the right, without further notice to or demand upon Tenant and without being
liable to Tenant for any damages or to any prosecution therefor, to do any and
all of the following:
9.2(a) Repossession and Sale. Re-enter and take exclusive possession of
the Premises with or without force or legal process, refuse to allow
Tenant to enter the same or have possession thereof, change the locks
on the doors to the Premises, take possession of any furniture or
fixtures or other property in or upon the Premises (Tenant hereby
waiving the benefit of all exemptions bylaw), sell the same at public
or private sale without notice and apply the proceeds thereof to the
costs of sale, payment of damages and payment of all sums owing under
this Lease; and/or
9.2(b) Re-leasing. Relet the Premises as agent of Tenant for the
balance of the term of this Lease or for a shorter or longer term and
receive the rents therefor, applying them first to the payment of the
expense of such reletting, and second to the payment of damages
suffered to the Premises, and third to all sums due and to become due
under this Lease, Tenant remaining liable for and hereby agreeing to
pay Landlord any deficiency; and/or
9.2(c) Cancellation. Cancel and terminate the remaining term of this
Lease, and re-enter and take possession of the Premises free of this
Lease. Thereafter this Lease shall be null and void and the Rent in
such case shall be apportioned and paid on and up to the date of such
entry. Thereafter both parties shall be released and relieved from and
of any and all obligations thereafter to accrue hereunder. Tenant shall
be liable for all loss and damage resulting from such breach or
default; and/or
9.2(d) Anticipatory Breach. Treat such default as an anticipatory
breach of this Lease and, as liquidated damages for such default, be
entitled to the difference, if any, between the sum which, at the time
of such termination for anticipatory breach represents the then present
worth (computed at ten percent (10%) per year) of the excess aggregate
rents and additional rents payable hereunder that would have accrued
over the balance of the Lease Term (including renewals) had such term
not been prematurely terminated, over the aggregate market rental value
of the Premises over the term (including renewals) that the Lease would
have run had it not been prematurely terminated; and/or
Page 15
9.2(e) Attorney's Fees. Recover from Tenant, Landlord's reasonable
attorney's fees incurred in enforcing its rights hereunder.
9.3 Remedies Cumulative. All rights and remedies expressly provided in this
Lease for Landlord's protection shall be cumulative as to each other and of any
other rights and remedies provided hereunder or by law.
9.4 No. Waiver. A waiver by Landlord of a breach or default by Tenant under the
terms and conditions of this Lease shall not be construed to be a waiver of any
subsequent breach or default or of any other or the same term or condition of
this Lease, and the failure of Landlord to assert any breach or to declare a
default by Tenant shall not be construed to constitute a waiver thereof so long
as such breach or default continues unremedied.
ARTICLE X. MISCELLANEOUS.
10.1 Bankruptcy or Assignment to Trustee. Neither this Lease nor any interest
herein nor any estate hereby created shall pass to any trustee or receiver in
bankruptcy or to any other receiver or assignee for the benefit of creditors or
otherwise by operation of law during the term of this Lease or any renewal
thereof.
10.2 Brokers. Except as may be expressly set forth to the contrary in a Rider
attached hereto, each party represents to the other that no person or entity is
entitled to any brokerage commission or finder's fee on account of the
execution, delivery, and consummation of this Lease. Tenant hereby agrees to
indemnify Landlord and to hold Landlord free and harmless of and from any and
all claims, losses, damages, costs and expenses of whatever nature, including
attorneys' fees and costs of litigation arising from or relating to any
brokerage commissions or finder's fees incurred by Tenant in connection with
this Lease.
10.3 Cautions. The captions in this Lease are for convenience and reference only
and shall in no way be held to modify, amplify, or limit the terms and
provisions in this Lease.
10.4 Certificates of Occupancy. Tenant may, prior to the commencement of the
Lease Term, apply for a certificate of occupancy to be issued by the
municipality in which the Premises are located, but this Lease shall not be
contingent on issuance thereof.
10.5 Entire Agreement. This Lease including its Exhibits and Riders, if any,
contains the entire agreement between the parties and no modification of this
Lease shall be binding upon the parties unless evidenced by an agreement in
writing signed by Landlord and Tenant after the date hereof.
10.6 Joint and Several Liability of Multiple Tenants. If there is more than one
Tenant named herein, the provisions of this Lease shall be applicable to and
binding upon such Tenants jointly and severally.
10.7 Notices. Except as otherwise herein provided, whenever by the terms of this
Lease notice shall or may be given either to Landlord or to Tenant, such notice
shall be in writing and shall be
Page 16
deemed to have been properly delivered if sent by certified mail, return receipt
requested, postage prepaid, to Landlord at Landlord's Address and to Tenant at
the Premises, or to such other place as Landlord or Tenant may designate in
writing. The date of mailing shall be deemed the date of delivery.
10.8 Partial Invalidity. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstances shall, to any
extent be invalid or unenforceable, then all other provisions of this Lease, or
the application of such term or provision to persons or circumstances other than
those which are held invalid or unenforceable, shall not be affected thereby,
and each and every other term, condition, covenant and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
10.9 Recording. This Lease shall not be recorded by either party without the
written consent of the other.
10.10 Successors. The agreements, covenants and conditions of this Lease shall
be binding upon and inure to the benefit of the heirs, legal representatives,
successors and assigns of each of the parties hereto.
10.11 Use of the Singular; Gender. The terms "Landlord" and "Tenant," and
pronouns representing the same, wherever used herein shall include the plural as
well as the singular, the feminine as well as the masculine.
10.12 CC&Rs. It is hereby acknowledged that the Center is subject to that
certain Declaration of Covenants, Conditions, Restrictions and Easements for
Autoplex II executed by SunCor Development Company and Plumcor Realty Investors
One, L.L.C. on October 23, 1996 and recorded November 1, 1996 as Instrument No.
96-0776288 in the Official Records of Maricopa County, Arizona ("CC&Rs"), the
rules, Articles of Incorporation and Bylaws of the Autoplex II Owners
Association, and the Development Guidelines adopted pursuant to the CC&Rs. Any
violation of the CC&Rs or other documents listed above shall constitute a
default under this Lease.
10.13 Rider. Riders One through Six consisting of 15 pages in all, are attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
hereinabove stated.
LANDLORD:
GENERAL AMERICAN LIFE INSURANCE COMPANY,
a Missouri Corporation
BY: /s/ [ILLEGIBLE]
-------------------------------------
[ILLEGIBLE]
AUTHORIZED REPRESENTATIVE
Page 17
TENANT:
MEGA SYSTEMS AND CHEMICALS, INC.
BY: /s/ Xxxxxx Xxxxx
-------------------------------------
NAME: Xxxxxx Xxxxx
TITLE: [ILLEGIBLE]
EXHIBIT A
TEMPE BUSINESS CENTER
(FLOOR PLAN)
Page 19
EXHIBIT B
RULES
1. Telephone Connections. If Tenant desires telegraphic, cable television,
or telephone connections, Landlord will direct electricians or
technicians where the wires are to be introduced, and without such
direction no boring or cutting for wires shall be permitted.
2. Submission of Plans. Tenant shall submit to Landlord for Landlord's
approval, a copy of its construction and equipment layout plan prior to
commencement of construction. In the event that Tenant is unable to
obtain Landlord's approval for said plans and layout, this Lease shall
at Tenant's sole option be deemed null and void and any amounts paid by
Tenant to Landlord pursuant to this Lease shall be reimbursed to Tenant
without offset.
3. No Nuisances. Tenant shall not do or permit anything to be done to
injure or deface the Building/s nor the woodwork or walls of the
Premises, nor carry on upon the Premises any noisome, noxious, noisy or
offensive business, nor conduct an auction therein, nor interfere in
any way with other tenants or those having business with them, nor
shall Tenant do or permit anything to be done in the Premises which
will be dangerous to life, or limb, or which will tend to create a
nuisance or injure the reputation of the Building/s. Tenant shall not
use burning fluid, camphene, alcohol, kerosene, or anything else in
order to light or heat the Premises except steam, gas or electricity.
Tenant shall not bring into the Premises or keep therein any heating or
lighting apparatus other than that provided by Landlord; or install any
air conditioning or air cooling apparatus without the written consent
of Landlord; or in any way injure, modify, or tamper with any of such
apparatus in any manner or in violation of the regulations of the Fire
Department, or with any insurance policy upon said Building/s or any
part thereof. Tenant shall not do or permit to be done in the Premises
any activity in conflict with any of the laws, rules or regulations of
any governmental agency or municipality having jurisdiction, or use the
Premises for an illegal or immoral purpose. No beer, wine or
intoxicating liquor shall be sold on or about the Premises without the
written consent of Landlord in each instance.
4. Passageways. The sidewalk, passages, lobbies, corridors, elevators
and stairways shall not be obstructed by Tenant; or used except for
ingress and egress from and to the Premises. The doors, skylights,
windows and transoms that reflect or admit light into passageways or
into any place in said Building/s, shall not be covered or obstructed
by Tenant.
5. Water Closets. The water closets and other apparatus shall not be used
for any purpose other than those for which they were constructed, and
no sweepings, rubbish, rags or other substances shall be thrown
therein. Any damage resulting to such apparatus from misuse shall be
borne by the tenant who shall cause it.
6. No Lodging. No room or rooms on or about the Premises shall be occupied
or used as sleeping or lodging apartments.
Page 20
7. Lock all Doors. Tenant shall, when leaving the Premises at close of
business, or unoccupied at any time, lock all doors and windows and for
any default or carelessness in this respect shall make good all
injuries sustained by other tenants and by Landlord or by either of
them, for damages resulting from such default or carelessness.
8. No Animals. No animal or bird shall be allowed in any part of the
Premises or Building/s without the consent of Landlord.
9. No Accumulation of Rubbish. Tenant shall not accumulate or store on or
about the Premises any waste paper, discarded records, paper files,
sweepings, rags, rubbish or other combustible matter other than the
normal accumulation needed to conduct the Permitted Use of the
Premises, Nothing shall be thrown by Tenant, its employees or guests,
put of the windows or doors or down the passages or skylights or over
balcony rails of the Building/s or in the parking areas.
10. Exclusion of Peace Disturbers. Landlord reserves the right to exclude
from the Premises or Building/s all drunken persons, idlers, diseased
persons, peddlers, solicitors, persons of a general character or
conduct so as to create a disturbance, and persons entering in crowds
or in such unusual numbers as to cause inconvenience to tenants of the
Building/s.
11. Changes to Rules. Landlord reserves the right to change these rules and
to make such other and further reasonable rules and regulations either
as it affects one or all tenants as in its judgment may from time to
time be needed for the safety, care and cleanliness of the Center, for
the preservation of good order therein or for any other cause so long
as such change does not adversely affect Tenant's use and quiet
enjoyment of the Premises. When such changes are made, such modified or
new rules shall be deemed a part hereof with the same effect as if
written herein, when a copy shall have been delivered to Tenant or left
with some person in charge of the Premises.
12. No Live Christmas Trees. No live or fresh cut Christmas Trees are
permitted on or about the Premises.
Page 21
RIDER ONE
MONTHLY RENTAL RATE FOR BUILDING 5
Months 1 through 60 $39,184.00/mo. ($.74/sq. ft. NNN)
Months 61 through 120 $42,361.00/mo. ($.80/sq. ft. NNN)
The foregoing rents are based upon the anticipated construction of approximately
9,409 sq. ft. of mezzanine space, for a total Premises square footage of 52,951
sq, ft. In the event the final square footage of the mezzanine space exceeds
9,409 sq. ft., the monthly rental rate for the initial term set forth above, the
renewal terms set forth in Rider Two, and the Purchase Price set forth in Rider
Three shall be increased on a per square foot basis at the per square foot rate
set forth in this Lease for such term or price, as applicable. In the event of
an increase in rent or price pursuant to the foregoing sentence, Landlord and
Tenant shall enter into an amendment of this Lease to reflect said adjustment.
INITIALS:
LANDLORD: /s/ [ILLEGIBLE]
----------------------
TENANT: [ILLEGIBLE]
Page 22
RIDER TWO
RENEWAL OPTION
Tenant shall have the right and option to renew this Lease for two (2)
additional terms of five (5) years each in accordance with the terms and
conditions below:
(a) Tenant shall deliver to Landlord written notice of the exercise of
Tenant's option to renew the Lease for an additional five (5) year term
("EXTENSION NOTICE") no later than twelve (12) months prior to the end
of the initial Lease Term or applicable renewal period. In the event
Tenant does not renew the Lease for the first renewal period, Tenant
shall not be entitled to the second renewal period.
(b) Tenant, at the time of the delivery of the Extension Notice, shall not
be in default under the Lease.
(c) The Base Rent during the extended Term shall be equal to the lesser of:
(i) the Fair Market Rent for buildings on the market available for
lease in Tempe, Arizona that are similar to the Premises and that have
building features including, but not limited to, similar age, quality
of construction, similar office improvements, similar parking ratios,
building clear height and loading features (the "FAIR MARKET RENT") and
(ii) the following:
Months 121 through 180 $45,538.00/mo ($.86/sq. ft. NNN)*
Months 181 through 240 $49,244.00/mo ($.93/sq. ft. NNN)*
*Rent schedule is subject to modification pursuant to Rider One.
Following receipt by Landlord of the Extension Notice, Landlord and
Tenant shall have thirty (30) days to agree upon the Fair Market Rent
to be charged Tenant during the extended Term, if applicable, with such
Fair Market Rent to be unchanged during each year of the, five (5) year
extended Term.
(d) In the event that the Landlord and Tenant are unable mutually to agree
on the Fair Market Rent within thirty (30) days after Landlord's
receipt of tenant's written exercise of its option to renew the Lease,
then Landlord and Tenant shall each appoint an M.A.I. qualified
appraiser at each party's expense. Within thirty (30) days each
appraiser shall render a separate report on their respective opinion of
Fair Market Rent at the time of each renewal option. To the extent that
the two appraisers' rental rates are within five percent (5%) of each
other's rent, then the average of the two appraiser's rents shall
apply. If the two appraisers' opinions of the Fair Market Rent are not
within five percent (5%) of each other's rent then a third M.A.I.
appraiser shall be appointed by the two appraisers to arbitrate and
reach the final determination of the Fair Market Rent at the time of
the renewal option(s).
Page 23
(e) Upon determination of the applicable rent for the renewal period, in
accordance with the terms of this Rider, Landlord and Tenant shall
execute an agreement (the "EXTENSION AGREEMENT") which sets forth the
new term and the new rental rate, but which otherwise incorporates all
the terms and conditions of this Lease.
(f) The Renewal Option set forth in this Rider is personal to Tenant and
may not be exercised or assigned voluntarily or involuntarily by or to
anyone other than Tenant, other than Tenant's successor-in-interest
with respect to the Leased Premises, without Landlord's prior written
consent in its sole discretion.
INITIALS:
LANDLORD: /s/ [ILLEGIBLE]
-------------------
TENANT: [ILLEGIBLE]
Page 24
RIDER THREE
PURCHASE RIGHT OF FIRST REFUSAL/OPTION
For and in consideration of the rentals and other agreements of this Lease and
Rider, Landlord hereby grants to Tenant the right of first refusal ("Right") and
option ("Option") to purchase the Premises (Building 5) upon the following terms
and conditions.
(a) Option Period. The Option shall run during the first six (6)
months of the Lease Term.
(b) Exercise of Option. Provided Tenant is not in default under
the Lease and further provided that, at the same time as
Tenant's exercise of the Option hereunder, Tenant exercises
its option to purchase Building 4 of the Center under the
Standard Form of Industrial Lease between Landlord and Tenant
of even date herewith relating to the leasing of Building 4 to
Tenant, the Option may be exercised at any time prior to the
expiration of the Option Period by written notice to Landlord
as provided in Lease paragraph 10.7.
(c) Option Purchase Price. Upon Tenant's exercise of the Option,
the purchase price for the Premises shall be $4,977,394.00
($94.00/sq. ft.)* payable by Tenant to Landlord in certified
funds at closing.
* The purchase price is subject to modification pursuant to
Rider One.
(d) Right of First Refusal Period. The Right shall run during the
first twelve (12) months of the Lease Term;
(e) Right of First Refusal. At any time during the first twelve
(12) months of the Lease Term, if Landlord receives any offer
that it intends to accept for the purchase of the Premises,
Landlord shall notify and advise Tenant of such offer and
intended acceptance and all of the terms and provisions
thereof. Tenant shall have ten (10) calendar days thereafter
in which to advise Landlord in writing that it agrees to
purchase the Premises: (i) on all of such same terms,
including, without limitation, the purchase price, set forth
in the bona fide offer; or (ii) at the Option purchase price
set forth in subpart (c) above (subject to any adjustments
pursuant to Rider One). If Landlord does not receive notice of
Tenant's exercise of its Right within said ten (10) day
period, Tenant shall be deemed to have waived its Right with
respect thereto, and Landlord may sell the Premises to anyone
else at a price and on terms and conditions no more favorable
than those set forth in the written notice to Tenant.
Page 25
(f) Title Commitment and Survey. (The following terms and
conditions shall apply to a closing hereunder except to the
extent superseded by the terms of a bona fide offer being
matched pursuant to (e)(i) above.)
(i) Promptly upon Landlord's receipt of the notice
required in Section (b) or (e) above, Landlord shall
obtain and deliver or cause to be delivered to Tenant
a survey of the Premises and a commitment for an
owner's policy of title insurance to be issued to
Tenant upon closing in the amount of the applicable
purchase price. Such commitment and policy shall show
good and merchantable title in Landlord, subject only
to taxes and special assessments for the current and
subsequent years, restrictions, conditions, and
covenants of record, rights of parties in possession,
and easements, rights-of-way, and mineral
reservations, if any, of record.
(ii) Tenant shall, within ten (10) days after receiving
the commitment for said owner's title insurance
policy, deliver to Landlord written specifications of
any objections to the title. Should any material
defect be found in said title and be not removed
within thirty (30) days of such notice thereof, the
contract formed pursuant hereto shall become
absolutely null and void.
(g) Closing. (The following terms and conditions shall apply to a
closing hereunder except to the extent superseded by the terms
of a bona fide offer being matched pursuant to (e)(i) above.)
(i) Settlement shall be made and Deed delivered at the
offices of the title company issuing the title policy
provided for hereunder or at a duly appointed agent
thereof on or before sixty (60) days from Landlord's
receipt of the notice required in Section (b) or (e)
above, as applicable, or at such other time or place
as may be mutually agreed upon.
(ii) The deed to Tenant shall be a Special Warranty Deed
conveying the Premises by way of the proper legal
description thereof, subject to the above exceptions.
(iii) At closing, there shall be appropriately pro-rated
and adjusted between Landlord and Tenant ad valorem
taxes and special assessments for the current year as
of the date of closing, Landlord being charged and
credited for all of same up to such date and Tenant
being charged and credited for all of same on and
after such date. Tenant shall be responsible for
purchasing separately its own policy of hazard
insurance upon the Premises.
(iv) Landlord shall be responsible for the cost of the
owner's title policy to Tenant and the commitment
therefor; one-half of any escrow service fee charged
for closing; state revenue stamps, if any, required
upon the Special Warranty Deed to be delivered
hereunder; recording fees;
Page 26
Landlord's own attorney's fees; proratable items
chargeable to Landlord; and any other incidental
expenses customarily borne by sellers of real estate
in Tempe, Arizona not otherwise specifically provided
for herein. Tenant shall be responsible for the cost
of one-half of any escrow service fee charged for
closing; Tenant's own attorney's fees; proratable
items chargeable to Tenant at closing; and any other
incidental expenses customarily borne by purchasers
of real estate in Tempe, Arizona not otherwise
specifically provided for herein.
(h) Commissions. Upon and only upon the completion of the closing
of this sale transaction, Landlord shall pay to CB Commercial
Real Estate Group, Inc. a real estate sales brokerage
commission in accordance with its agreement with said broker.
Otherwise, Landlord and Tenant each represent to one another
that neither has knowledge of any involvement of any broker in
connection with this purchase and sale.
(i) Condition of Premises. Tenant acknowledges that in the event
it exercises the Right or Option, it will purchase the
Premises in its condition at the time of exercise, "as is",
and without representation or warranty from Landlord with
respect to the condition of the Premises including, but not
limited to, the condition of the soil, presence of hazardous
materials or contaminants, and other physical characteristics.
Tenant shall rely solely upon its own independent
investigation concerning the physical condition of the
Premises.
(j) Remedies. If the contract formed pursuant to this Rider fails
to close because of the failure to perform on the part of
Tenant (other than termination pursuant to any right granted
to Tenant to do so), Landlord may, at its option, declare such
contract null and void. If such contract fails to close
because of Landlord's non-performance (other than Landlord's
inability to deliver good and merchantable title hereunder),
Tenant shall be entitled to specific performance or other
appropriate remedies at law or in equity. If such contract
fails to close because Tenant elects to terminate such
contract pursuant to any right granted Tenant to do so or
because Landlord is unable to deliver good and merchantable
title hereunder, this contract shall rescind and cease effect
without further liability of any party hereto; provided,
however, such contract termination shall not affect the Lease,
which Lease shall continue in full force and effect. This
Rider and all rights conferred to Tenant herein shall wholly
extinguish and cease effect in the event that Tenant, after
having indicated its intent to exercise its Option or Right,
thereafter fails to perform in closing said purchase within
the time allowed under this Rider.
(k) Time of Essence. Time is of the essence of the contract formed
pursuant to this Right of First Refusal/Option to Purchase and
of all the terms and conditions hereof.
Page 27
(l) Binding Effect. Any contract pursuant to this Rider shall
inure to the benefit of and be binding upon the parties hereto
and their heirs, executors, administrators, successors and
assigns.
(m) Contract. This Rider shall become a contract of purchase and
sale between the parties hereto according to all of the terms
hereof upon Tenant's exercise of the Right or Option pursuant
to paragraph (b) or (e) above.
(n) Marketing. Nothing herein shall prohibit or restrict
Landlord's ability to advertise or market the Premises for
sale or to enter into negotiations with any third party
related to the sale of the Premises.
FULL SIGNATURE:
LANDLORD:
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: /s/ [ILLEGIBLE]
------------------------------------------
Name: [ILLEGIBLE]
Title: AUTHORIZED REPRESENTATIVE
TENANT:
MEGA SYSTEMS AND CHEMICALS, INC.
By: /s/ [ILLEGIBLE]
------------------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
Page 28
RIDER FOUR
RIGHT OF FIRST REFUSAL AND RENTAL RATE OPTION FOR BUILDINGS 3 AND 7
Landlord hereby grants to Tenant a Right of First Refusal for Buildings 3 and 7
of Tempe Business Center during the first twelve (12) months of the Lease Term
in accordance with the terms and conditions below:
(a) Bona Fide Offer. At any time during the aforementioned twelve (12)
month period, if Landlord receives any offer that it intends to accept
for the purchase or lease of Building 3 and/or 7, then Landlord shall
notify and advise Tenant of such offer and intended acceptance, and all
of the terms and provisions thereof. Tenant shall have ten (10)
calendar days thereafter in which to advise Landlord in writing that it
agrees to purchase or lease the subject property, as applicable, on all
of the same terms and conditions as set forth in said offer; provided
however, in exercising its Right of First Refusal to lease said
Buildings, the Tenant shall have the right to elect whether the terms
and conditions of said lease would be: (i) the same as set forth in the
bona fide offer; or (ii) the Established Terms set forth in subpart (c)
below.
(b) Waiver. If Landlord does not receive notice of Tenant's exercise of its
Right of First Refusal and any related election within said ten (10)
day period, Tenant shall be deemed to have waived its Right of First
Refusal with respect thereto, and Landlord may lease or sell the
subject property, as applicable, to anyone else at a rental or price
and on terms and conditions no more favorable than those set forth in
the written notice to Tenant. This Rider and all rights conferred to
Tenant herein shall wholly extinguish and cease effect in the event
that Tenant, after having indicated its intent to exercise its right to
lease or purchase hereunder, thereafter fails to perform in closing
said lease or purchase within the time allowed under the bona fide
offer relating thereto.
(c) Established Terms.
(i) At any time during the aforementioned twelve (12) month
period, in the event the Tenant desires to lease Building 3 or
7 of Tempe Business Center prior to any bona fide offer being
made to lease said Building or, in the event that a bona fide
offer to lease said Building has been presented to Tenant
pursuant to subpart (a) above, Tenant shall have the right to
elect to lease the Building for a ten (10) year term at the
applicable rental rate and allowance for tenant improvements
set forth in the Lease Rate Price Schedule below, on all of
the same terms and provisions as this Lease, other than the
Riders to this Lease (Riders One through Six, including this
Rider Four), and with a lease guaranty by U.S. Filter on the
same terms and provisions as provided with this Lease.
Page 29
LEASE RATE PRICE SCHEDULE
BUILDING NUMBER
/SQUARE FEET TENANT T.I. TERM LEASE RATE
--------------- ----------- ---- ----------
3 $ 8.00/Sq.Ft. Months 1 through 60: $.63/sf NNN*
21,138 Months 61 through 120: $.73/sf NNN*
7 $10.00/Sq.Ft. Months I through 60: $.70/sf NNN*
8,926 Months 61 through 120: $.81/sf NNN*
*The rent shall increase on a per square foot basis if the
building square feet exceeds the applicable square footage
listing set forth above.
(ii) In the event Tenant exercises a Right of First Refusal to
lease Building 3 or 7 pursuant to the Established Terms set
forth in this subpart (c), Tenant shall have the right and
option to renew said lease for two (2) additional terms of
five (5) years each in accordance with the terms and subject
to the provisions of Rider Two of this Lease; provided,
however, the Base Rent during the extended term shall be at
the rate set forth below:
BUILDING NUMBER
/SQUARE FEET TERM LEASE RATE
--------------- ---- ----------
3 Months 121 through 180: $ .84/sf NNN*
21,138 Months 181 through 240: $ .96/sf NNN*
7 Months 121 through 180: $ .93/sf NNN*
8,926 Months 181 through 240: $1.07/sf NNN*
*The rent shall increase on a per square foot basis if the
building square feet exceeds the applicable square footage
listing set forth above.
(iii) Upon entering into a lease for Building 3 or 7 pursuant to
this subpart (c), as a Tenant Improvement Allowance to Tenant,
Landlord shall make a payment to Tenant at the applicable rate
set forth in the Lease Rate Price Schedule above. Such payment
shall be made by Landlord to Tenant upon completion of tenant
improvements which are designed and constructed in accordance
with the procedures set forth in Rider Five and satisfaction
of the conditions for payment set forth in such Rider, or as
otherwise mutually agreed to by the parties.
(d) Term Adjustment. Notwithstanding anything herein to the contrary, in
the event Tenant exercises a Right of First Refusal to lease Building 3
or 7 during the first twelve (12) months of the Lease Term, and the
applicable lease term for Building 3 or 7 is ten (10) years, the first
year of the lease term for Building 3 or 7, as applicable, shall be
reduced so that the lease term under said lease shall equal to the
remaining portion of the ten (10) year initial lease term for this
Lease (Building 5).
(e) Marketing. Nothing herein shall prohibit or restrict Landlord's ability
to advertise or market Buildings 3 and 7 for sale or leasing or to
enter into negotiations with any third
Page 30
party related thereto; provided, however, any sale of said Buildings
(which Tenant does not elect to pursue hereunder) shall be subject to
Tenant's Right of First Refusal to lease set forth herein.
(f) Termination of Right of First Refusal. This Rider Four and all rights
conferred to Tenant herein shall wholly extinguish and cease effect in
the event that Tenant, after having indicated its intent to exercise
its Right of First Refusal or Rental Rate Option, thereafter fails to
perform in entering into said lease or purchase within the time period
set forth in the bona fide offer or allowed under this Rider.
INITIALS:
LANDLORD: /s/ [ILLEGIBLE]
---------------
TENANT: [ILLEGIBLE]
Page 31
RIDER FIVE
TENANT IMPROVEMENTS
1. Tenant Improvements. Reference herein to "Tenant Improvements" shall
include all work to be done in the Premises pursuant to the Tenant
Improvement Plans (defined in Paragraph 2 below), including, but not
limited to, mezzanine space, partitioning, doors, ceilings, floor
coverings, wall finishes (including paint and wall covering),
electrical (including lighting, switching, etc.), plumbing, fixtures,
heating, ventilating and air conditioning, fire protection, cabinets
and other millwork.
2. Tenant Improvements Plans. The architect and contractor which Tenant
desires to utilize for the Tenant Improvements shall be subject to
Landlord's prior approval. Immediately after the execution of the
Lease, Tenant agrees to meet with Tenant's space planner for the
purpose of promptly preparing a space plan for the layout of the
Premises, and shall submit such space plan to Landlord in a timely
manner. Based upon such space plan, Tenant's architect shall prepare
final working drawings and specifications for the Tenant Improvements.
Such final working drawings and specifications are referred to herein
as the "Tenant Improvement Plans." The Tenant Improvement Plans shall
be approved by Landlord and Tenant and shall thereafter be submitted to
the appropriate governmental body by Tenant's architect for plan
checking and the issuance of a tenant improvement permit. Landlord
shall not unreasonably withhold its approval of the Tenant Improvement
Plans provided, that (a) such plans conform to applicable governmental
regulations and necessary governmental permits and approvals have been
secured; (b) the proposed Tenant Improvements are of a nature and
quality that are consistent with the overall objectives of Landlord for
the Building; and (c) the proposed Tenant Improvements will not
unreasonably delay Tenant's completion of the Tenant Improvements and
opening for business. Tenant, upon Landlord's approval, shall cause to
be made to the Tenant Improvement Plans any changes necessary to obtain
the tenant improvement permit. After final approval of the Tenant
Improvement Plans, no further changes may be made thereto without the
prior written approval from both Landlord and Tenant, and then only
after agreement by Tenant to pay any net excess costs resulting from
the design and/or construction of such changes. Tenant hereby
acknowledges that any such changes shall be subject to the terms of
Paragraph 4 below. All Tenant Improvements made shall remain on and be
surrendered with the Premises upon expiration of the Term.
3. Construction of Tenant Improvements. After the Tenant Improvement Plans
have been prepared and approved, the final pricing has been approved, a
contractor selected, a building permit for the Tenant Improvements has
been issued and the Building shell is completed to such an extent so as
to allow all or specified portions of the Tenant Improvement
construction to begin without disruption of completion of the Building
shell and core construction, Landlord shall permit the Tenant
Improvement contractor and Tenant's consultants and subcontractors to
begin installation of the Tenant Improvements in accordance with the
Tenant Improvement Plans. Tenant shall supervise the completion
Page 32
of such work and shall use reasonable commercial efforts to secure
substantial completion of the work on or before December 31, 1999. The
cost of such work shall be paid as provided in Paragraph 4 below.
4. Payment for the Tenant Improvements.
(a) Landlord hereby grants to Tenant a "Tenant Improvement
Allowance" of $1,588,530.00. The Tenant Improvement Allowance
shall only be used for:
(i) Payment of the cost of preparing the space plan and
the Tenant Improvement Plans, including mechanical,
electrical, plumbing and structural drawings and of
all other aspects necessary to complete the Tenant
Improvement Plans. The Tenant Improvement Allowance
will not be used for the payment of extraordinary
design work or for payments to any other consultants,
designers or architects other than Tenant's
architect, which excluded costs shall be borne solely
by Tenant.
(ii) The payment of plan check, permit and license fees
relating to construction of the Tenant Improvements.
(iii) Construction of the Tenant Improvements, including,
without limitation, the following (see subpart (b)
for provisions applicable to mezzanine space):
(aa) Installation within the Premises of all
partitioning, doors, floor coverings,
coatings, wall coverings and painting,
millwork and similar items;
(bb) All electrical wiring, lighting fixtures,
outlets and switches, and other electrical
work to be installed within the Premises;
(cc) The furnishing and installation of all duct
work, terminal boxes, diffusers and
accessories required for the completion of
the heating, ventilation and air
conditioning systems within the Premises,
including the cost of motor and key control
for after-hour air conditioning;
(dd) Any additional Tenant requirements
including, but not limited to, odor control,
special heating, ventilation and air
conditioning, noise or vibration control or
other special systems;
(ee) All fire and life safety control systems
such as fire walls, sprinklers, halon and
fire alarms, including piping, wiring and
accessories, installed within the Premises;
Page 33
(ff) All plumbing, fixtures, pipes and
accessories to be installed within the
Premises;
(gg) Testing and inspection costs; and
(hh) Contractor's fees, including but not limited
to any fees based on general conditions.
(b) Tenant intends to construct 9,409 sq. ft. of mezzanine space
in the Premises. After the Tenant Improvement Plans relating
to the construction of the mezzanine space have been approved
by Landlord, Landlord shall obtain three (3) bids from
contractors for the construction of said mezzanine space. The
dollar amount of the lowest of the three (3) bids shall be the
amount of the "Mezzanine Space Reimbursement." Tenant shall
then select a contractor approved by Landlord to construct the
mezzanine space. Landlord shall grant Tenant an allowance for
the construction of the mezzanine space in the amount of the
Mezzanine Space Reimbursement, to be paid in accordance with
subpart (c) below.
(c) The Tenant Improvement Allowance and the Mezzanine Space
Reimbursement shall be paid in installments as follows:
(i) Tenant shall submit to Xxxxxx Architectural Group Tenant's
request for disbursement relating to the construction of
Tenant Improvements, together with invoices and supporting
documentation relating to work performed through the date of
Tenant's request; Xxxxxx Architectural Group shall inspect the
Premises and the work, at the cost and expense of Tenant, and,
if said work has been appropriately completed, shall deliver
to Landlord an executed AIA draw request with all pertinent
invoices and supporting documentation reflecting that all
costs and expenses incurred by Tenant in construction of said
improvements through the date of the request shall be paid in
full out of the requested disbursement and that the general
contractor and all major, material contractors,
sub-contractors, suppliers and materialmen who furnished any
labor, services, materials and equipment in the connection
with the work for which the request is being made have
executed conditional lien waivers in content satisfactory to
Landlord. Also, Landlord, its duly authorized representatives,
and/or an engineer hired by Landlord, but whose reasonable
costs and expenses shall be paid by Tenant, shall have the
right to inspect the work prior to any such disbursement.
Landlord shall process requests for disbursement, by payment
or denial, as appropriate, on a net thirty (30) day basis.
Tenant shall not submit requests for disbursement more than
one (1) time per month or for amounts less than $50,000.00.
(ii) Notwithstanding anything herein to the contrary, as a
condition to any request for disbursement following the
initial disbursement hereunder, Tenant shall deliver to
Landlord unconditional lien waivers executed by the general
contractor
Page 34
and all major, material contractors, sub-contractors,
suppliers and materialmen who furnished any labor, services,
materials and equipment in connection with the work for which
the most recent prior disbursement was made hereunder, in
content satisfactory to Landlord. In the event Tenant fails to
deliver appropriate unconditional lien waivers as set forth
above, Landlord shall be entitled to withhold any further
disbursements for Tenant Improvements and the mezzanine space
until said unconditional lien waivers are received; and
(iii) In the event that the cost of installing the Tenant
Improvements (other than the mezzanine space) shall exceed the
Tenant Improvement Allowance and/or the cost of installing the
mezzanine space shall exceed the Mezzanine Space
Reimbursement, or if any of the Tenant Improvements are not to
be paid out of the Tenant Improvement Allowance as provided in
Paragraph 4(a) above, the excess shall be paid by Tenant.
(d) Any unused portion of the Tenant Improvement Allowance or
Mezzanine Space Reimbursement upon completion of the Tenant
Improvements (including the mezzanine space) shall not be
refunded to Tenant or be available to Tenant as a credit
against any obligations of Tenant under the Lease.
INITIALS:
LANDLORD:/s/ [ILLEGIBLE]
---------------
TENANT: [ILLEGIBLE]
Page 35
RIDER SIX
BROKER MATTERS
Landlord and Tenant each represent to the other that they have not entered into
any agreement or incurred any obligation in connection with this transaction
which might result in the obligation to pay a brokerage commission to any broker
other than CB Xxxxxxx Xxxxx, on behalf of Landlord, and Colliers International,
on behalf of Tenant. Landlord agrees to pay the six percent (6%) (Lease years
1-5) and thereafter three percent (3%) (Lease years 6-10) commission due to CB
Commercial in connection with this Lease (which CB Xxxxxxx Xxxxx shall split
with Colliers International, as appropriate). Landlord shall also pay CB Xxxxxxx
Xxxxx its appropriate commission upon Tenant's purchase of the Premises pursuant
to its Purchase Option (which CB Xxxxxxx Xxxxx shall split with Colliers
International, as appropriate) and upon any leasing or sale of Building Three or
Seven pursuant to the Right of First Refusal granted in this Lease. In the event
Tenant purchases the Premises pursuant to its Purchase Option, all leasing
commissions previously paid shall be credited against the sale commission to be
paid at the time of said purchase.
INITIALS:
LANDLORD: /s/ [ILLEGIBLE]
-------------------
TENANT: [ILLEGIBLE]
LEASE GUARANTY
In order to induce GENERAL AMERICAN LIFE INSURANCE COMPANY
("Landlord"), a Missouri corporation having an address at 000 Xxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 to enter into a Lease with MEGA SYSTEMS AND CHEMICALS,
INC. ("Tenant"), a Delaware corporation whose address is 00-000 Xxxx Xxxxxx,
Xxxx Xxxxxx, XX 00000 of a portion of the premises known as 0000 Xxxx Xxxx
Xxxxx, Xxxxx, Xxxxxxx, the undersigned, ("Guarantor"), for valuable
consideration, the receipt and adequacy of which are hereby acknowledged, hereby
unconditionally and irrevocably guarantees to Landlord the prompt payment by
Tenant of all sums which may become due and payable from time to time, and the
performance by Tenant of all other duties and obligations for which it may be
obligated from time to time, under the terms of the Lease, including any and all
extensions and renewals thereof.
Guarantor hereby represents to Landlord that Guarantor will receive
substantial benefit from its execution and delivery of this Guaranty and that
such execution is in the interests of Guarantor.
Guarantor hereby waives notice of acceptance of this Guaranty, waives
diligence, presentment, and suit on the part of Landlord in the enforcement of
any liability, obligation, or duty guaranteed hereby. Guarantor's obligations
hereunder are not conditional upon notice or demand, except as expressly set
forth herein.
Landlord shall use best efforts to send to Guarantor copies of any
notice of default sent to Tenant simultaneously with the delivery of such notice
to Tenant. Guarantor shall have the right, but not the obligation, in place of
Tenant to cure said default within the cure period provided to Tenant under the
Lease; provided, however, Guarantor's cure period shall not begin to run until
Guarantor receives said written notice of Tenant's default. Copies of notices of
default shall be sent by certified mail, return receipt requested, postage
prepaid, or by overnight delivery, addressed to Guarantor at the address set
forth above, or to such other address as may be hereafter designated by
Guarantor in writing. Notice sent by certified mail, return receipt requested,
postage prepaid, shall be deemed received three days after deposit in U.S. Mail,
and notice sent by overnight delivery shall be deemed received upon delivery or
first attempted delivery.
No agreement of Landlord and Tenant to modify, amend, sublease or
terminate the Lease shall be binding on the Guarantor unless Guarantor has
consented to such action in writing. Guarantor's consent hereunder shall not be
unreasonably withheld.
Suit may be brought and maintained against Guarantor, by Landlord, to
enforce any liability, obligation, or duty guaranteed hereby, without joinder of
Tenant or any other person. The liability of Guarantor hereunder shall not be
impaired, modified, changed, released, or limited in any manner whatsoever by
(i) the invalidity, irregularity, unenforceability or other legal infirmity of
the obligations of the Lease, or any other documents executed in connection
therewith, as to Tenant for any reason; (ii) the unavailability of any remedy
for the enforcement thereof, for any reason whatsoever; (iii) the release of
Tenant from observance or performance of any of the agreements, covenants, terms
or conditions under any of said documents or instruments by operation of law,
whether with or without notice; or (iv) any exculpatory provision contained in
the Offer. No assignment, sublease, modification, amendment, expiration or
termination of the Lease or any of the documents or instruments executed in
connection therewith shall release Guarantor from its obligations hereunder
unless such assignment, sublease, modification, amendment, expiration or
termination releases Tenant from its obligations under the Lease.
Page 2
In the event any payment or performance by Tenant under the Lease is
held to constitute a preference under the bankruptcy laws, or if, for any other
reason, Landlord is required to refund such payment or pay the amount thereof to
any other party, such payment by Tenant to Landlord shall not constitute a
release of Guarantor from any liability hereunder, and this Guaranty shall
continue to be effective or shall be reinstated, as the case may be, to the
extent of any such payment or payments.
In the event default is made in the prompt payment or performance of
any amounts or actions when due and the matter is placed in the hands of an
attorney for collection or enforcement or suit is brought on same or is
collected or enforced through any legal proceedings whatever, then the
undersigned agrees and promises to pay, in addition to all other sums due, all
costs of said collection and enforcement, including a reasonable attorney's fee.
Guarantor shall have the right to assigns its duties, liabilities and
obligations only upon the prior written consent of Landlord, not to be
unreasonably withheld, and further conditioned upon satisfaction all of the
following requirements: i) the assignment must take place in the context of an
assignment of the Lease by Tenant, with Landlord's consent and in which Tenant
is released from all further duties, liabilities and obligations of Tenant under
the Lease; and ii) the assignee of Guarantor (or the assignee of Tenant) must
have a net worth and annual gross revenues at the date of the assignment in
excess of the net worth and annual gross revenues of Guarantor at the date of
this Guaranty, as determined by generally accepted accounting principles.
This Guaranty shall be construed in accordance with and governed by the
laws of the State of Arizona; and Landlord and Guarantor hereby agree that any
action or dispute between Beneficiary and Guarantor with respect to this
Guaranty may be asserted and maintained in any court of competent subject matter
jurisdiction.
This Guaranty shall be binding upon Guarantor and the successors of
Guarantor, and shall inure to the benefit of Landlord and Landlord's successors
and assigns, but upon termination of the Lease and satisfaction in full of all
of Tenant's obligations thereunder, this Guaranty shall then become null and
void and of no further effect.
EXECUTED on 6/15/99
UNITED STATES FILTER CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: XXXXX X. XXXXXXX
Title: PRESIDENT - COO
Duly Authorized
BROOKHILL CORP.
XXXXXXX X. XXXX
PRESIDENT
March 29, 2001
VIA FACSIMILE
Xx. Xxxx Xxx
Mega Systems & Chemicals, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx, XX 00000
Re: 0000 Xxxx Xxxx Xxxxx, Xxxxx, Xxxxxxx
Dear Xxxx:
As you are now aware your Landlord has changed its name to TBC 2000, LLC. Please
update your certificate of insurance to reflect the new name (TBC 2000, LLC) as
an additional insured, A copy of the new certificate may be mailed to the
address listed below.
If you have any questions, please call our office at (000) 000-0000.
Very truly yours,
TBC 2000, LLC
By: Brookhill Corn, Manager
/s/ Xxxxxx Xxxx
--------------------------
Xxxxxx Xxxx, Secretary to Xxxxxxx X. Xxxx
MJH:ag
cc: Dee May Xxxxx
Xxxxxxxx Xxxxx
Xxxxxx and Xxxxx Xxxxxxxxxx
0000 XXXXX XXXX XXXXXXXXX, XXXXX 0000, XXXXX XXXXXX, XXXXXXXXXX 00000
TEL. (000) 000-0000 - FAX (000) 000-0000
[GENERAL AMERICAN LOGO] National Headquarters
000 Xxxxxx Xxxxxx
Products to value, people to trust Xx. Xxxxx, XX 00000
Mailing: X.X. Xxx 000
Xx. Xxxxx, XX 00000
July 16, 1999
MEGA Systems & Chemicals, Inc.
000 Xxxxx XxXxxx Xxxxxx
Xxxxxxxx, XX
Re: GA Property No. 17356
Lease of Building 5 of Tempe
Business Center - 0000 Xxxx Xxxx
Xxxxx, Xxxxx, Xxxxxxx
Dear Gentlemen:
Pursuant to Rider Five, Section 4(b) of that certain Standard Form of Industrial
Lease dated June 15, 1999 between General American Life Insurance Company, as
Landlord, and MEGA Systems & Chemicals, Inc., as Tenant, relating to the
captioned property, this letter is being prepared to confirm the parties'
agreement as to the dollar amount of the "Mezzanine Space Reimbursement." The
parties agree and acknowledge that the "Mezzanine Space Reimbursement" is
distinct from and in addition to the "Tenant Improvement Allowance. " Landlord
has obtained the required number of bids from contractors for the construction
of the approximately 9,409 sq.ft. of mezzanine space to be constructed by Tenant
in the Premises. The lowest of the bids was received from MD Construction in the
amount of $199,900.00. A copy of said bid is attached for your reference.
Landlord and Tenant hereby acknowledge and agree that the amount of the
Mezzanine Space Reimbursement shall be $199,900.00.
Please indicate your agreement with the terms and provisions of this letter by
countersigning the enclosed duplicate original where indicated below and
returning one countersigned original to the undersigned. Notwithstanding
anything herein to the contrary, the effectiveness of the agreement set forth in
this letter is contingent and conditioned upon the written consent to said
agreement by United States Filter Corporation, as set forth below.
Very truly yours,
GENERAL AMERICAN LIFE INSURANCE COMPANY
By:
----------------------------------------
Title: Vice President/Authorized representative
cc: Xxxx Xxxxxxx -- X0-00
Xxxxxx Xxxx -- Xxxxxxx Investment Office
XX XXXXXXX INC
MEGA Systems and Chemicals, Inc.
July 16,1999
Page 2
The undersigned, MEGA Systems and Chemicals Inc, hereby agrees to and
acknowledges the terms and provisions of the foregoing letter as of this 21st
day of July 1999:
MEGA Systems and Chemicals, Inc.
By: /s/ Xxx Xxxxx
-----------------------------
Name: Xxx Xxxxx
Title: Vice President
The undersigned, United States Filter Corporation, hereby consents to the
agreements relating to the Lease set forth in the foregoing letter as of this
21st day of , July, 1999.
United States Filter Corporation
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and COO
Enclosure
[GENERAL AMERICAN LOGO] National Headquarters
000 Xxxxxx Xxxxxx
Products to value, people to trust Xx. Xxxxx XX 00000
Mailing: X.X. Xxx 000
Xx. Xxxxx, XX 00000
July 6, 1999
MEGA Systems & Chemicals, Inc.
000 Xxxxx XxXxxx Xxxxxx
Xxxxxxxx, XX
Re: GA Property No. 17356
Lease of Building 5 of Tempe
Business Center - 0000 Xxxx Xxxx
Xxxxx, Xxxxx, Xxxxxxx
Dear Gentlemen:
In response to your recent request relating to that certain Standard Form of
Industrial Lease dated June 15,1999 between General American Life Insurance
Company and MEGA Systems & Chemicals, Inc. relating to the captioned property,
this letter is to confirm that Section 1.6 of the Lease is hereby amended by
deleting the second sentence of such section and replacing such sentence with
the following: "The Lease Term shall commence the earlier of October 1, 1999 or
the date on which the City of Tempe issues a Certificate of Occupancy pertaining
to the Premises." The foregoing amendment does no, however, modify your
obligation to diligently pursue the completion of your tenant improvements.
Furthermore, Exhibit A to the Lease is hereby deleted and replaced with the
attached Exhibit A, which contains an outline of the Premises in a contrasting
color.
Except as expressly set forth above, the Lease shall continue in full force and
effect, unmodified hereby. Please indicate your agreement with the terms and
provisions of this letter by countersigning the enclosed duplicate original
where indicated below and returning one countersigned original to the
undersigned. Notwithstanding anything herein to the contrary, the effectiveness
of the Lease amendments set forth in this letter are contingent and conditioned
upon the written consent to said amendments by United States Filter Corporation,
as set forth below.
Very truly yours,
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: [ILLEGIBLE]
----------------------------------------
Title: Vice President/Authorized representative
cc: Xxxx Xxxxxxx -- X0-00
Xxxxxx Xxxx -- Xxxxxxx Investment Office
MEGA Systems and Chemicals, Inc.
July 16,1999
Page 2
The undersigned, MEGA Systems and Chemicals, Inc., hereby agrees to and
acknowledges the terms and provision of the forgoing letter, and the Lease
amendments set forth therein, as of 21st day of July, 1999:
MEGA Systems and Chemicals, Inc.
By: /s/ Xxx Xxxxx
---------------------------
Name: Xxx Xxxxx
Title: Vice President
The undersigned, United States Filter Corporation, hereby consents to the
amendments of the Lease set forth in the foregoing letter as of this 21st day of
July, 1999.
United States Filter Corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and COO
Enclosure
EXHIBIT A
TEMPE BUSINESS CENTER
[FLOOR PLAN]
