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Exhibit 10.6(c)
LEASE
THIS INDENTURE of lease, dated as of the 28th day of June, 1996, by and
between OPUS SOUTHWEST CORPORATION, a Minnesota corporation, owner of the
Complex (as hereinafter defined), hereinafter referred to as "Lessor", and
SYNTELLECT INC., a Delaware corporation, hereinafter referred to as "Lessee".
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter
set forth, does hereby lease and let unto Lessee, and Lessee does hereby hire
and take from Lessor, that certain space shown and designated on the site plan
attached hereto and made a part hereof as Exhibit A and that certain space plan
attached hereto and made a part hereof as Exhibit D, which space consists of
approximately 60,000 rentable square feet, located in the office and warehouse
complex known and described as Northgate Center located northwest of the
intersection of Xxxxxxxxx Road and Interstate 17, Phoenix, Arizona. The
aforesaid space leased and let unto Lessee is hereinafter referred to as the
"Premises"; the land (including all easement areas appurtenant thereto) upon
which the building or buildings of which the Premises are a part is hereinafter
referred to as the "Property"; and the Property and all buildings and
improvements and personal property of Lessor used in connection with the
operation or maintenance thereof located therein and thereon and the appurtenant
parking facilities, if any, are hereinafter called the "Complex".
Lessee hereby accepts this Lease and the Premises upon the covenants
and conditions set forth herein and subject to any encumbrances, covenants,
conditions, restrictions and other matters of record and all applicable zoning,
municipal, county, state and federal laws, ordinances and regulations governing
and regulating the use of the Premises.
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or
obligation on the part of Lessor to make any alterations, improvements or
repairs of any kind on or about the Premises, except as expressly provided
herein, for a term of ten (10) years, commencing an the 1ST DAY OF MARCH, 1997,
and ending on the 30TH DAY OF APRIL, 2007, subject to extension or early
termination, in the manner provided hereinafter, to be occupied and used by
Lessee for general office and light assembly purposes and for no other purpose,
subject to the covenants and agreements hereinafter contained.
ARTICLE 1. BASE RENT: In consideration of the leasing aforesaid, Lessee agrees
to pay to Lessor, at c/o Normandale Properties Southwest Corporation, 0000 Xxxxx
00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Accounting Department
or at such other place as Lessor from time to time may designate in writing, an
annual rental as hereinafter set forth, sometimes hereinafter referred to as the
"Base Rent", payable monthly, in advance, in installments as hereinafter set
forth, commencing on the first day of the term and continuing on the first day
of each and every month thereafter for the next succeeding months during the
balance of the term:
APPLICABLE PORTION MONTHLY
OF TERM BASE RENT
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Months 1-60 0.865 per rentable square foot
Months 61-120 1.00 per rentable square foot
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It the term commences on a date other than the first day of a calendar
month or ends on a date other than the last day of a calendar month, monthly
vent for the first month of the term or the last month of the term, as the case
may be, shall be prorated based upon the ratio that the number of days in the
term within such month bears to the total number of days in such month.
ARTICLE 11. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee
under the provisions of Article I hereof, Lessee shall pay to Lessor "Additional
Rent" as hereinafter provided for in this Article II. All sums under this
Article II and all other sums and changes required to be paid by Lessee under
this Lease (except Base Rent), however denoted, shall be deemed to be
"Additional Rent". If any such amounts or charges are not paid at the time
provided in this Lease, they shall nevertheless be collectible as Additional
Rent with the next installment of Base Rent falling due.
For purposes of this Article II, the parties hereto agree upon the
following Definitions:
A. The term "Lease Year" shall mean each of those calendar years
commencing with and including the year during which the term
of this Lease commences, and ending with the calendar year
during which the term of this Lease (including any extensions
or renewals) terminates.
B. The term "Real Estate Taxes" shall mean and include all
personal property taxes of Lessor relating to Lessor's
personal property located In the Complex and used or useful in
connection with the operation and maintenance thereof, real
estate taxes and installments of special assessments,
including interest thereon, relating to the Property and the
Complex, and all other governmental charges, general and
special, ordinary and extraordinary, foreseen as well as
unforeseen, of any kind and nature whatsoever, or other tax,
however described, which is levied or assessed by the United
States of America or the state in which the Complex is located
or any political subdivision thereof, against Lessor or all or
any part of the Complex as a result of Lessor's ownership of
the Property or the Complex, and payable during the respective
Lease Year. The term "Real Estate Taxes" shall also include
any assessments or other charges imposed against Lessor or
all or any part of the Complex and payable during the
respective Lease Year as a result of the Complex being
subject to any covenants, conditions or restrictions now or
hereafter recorded, as the same may be amended from time to
time. It shall not include any net income tax, estate tax,
inheritance tax, excess profit taxes, franchise taxes, gift
taxes, capital stock taxes, other taxes applied or measured
by Lessor's net income, and any items included as Operating
Expenses (defined below).
C. The term "Operating Expenses" shall mean and include all
expenses incurred with respect to the maintenance and
operation of the Property and the Complex as determined by
Lessor's accountant in accordance with generally accepted
accounting principles consistently followed, including, but
not limited to, insurance premiums, maintenance and repair
costs, steam, electricity, water, sewer, gas and other utility
charges, fuel, lighting (including the tubes, ballasts and
starter of florescent parabolic lights), window washing and
janitorial services, trash and rubbish removal, wages payable
to employees of Lessor (below the grade of building
superintendent whose duties are
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connected with the operation and maintenance of the Property
and the Complex (but only for the portion of their time
allocable to work related to the Complex), amounts paid to
contractors or subcontractors for work or services performed
in connection with the operation and maintenance of the
Property and the Complex, all costs of uniforms, supplies and
materials used in connection with the operation and
maintenance of the Property and the Complex, all payroll
taxes, unemployment insurance costs, vacation allowances and
the cost of providing disability insurance or benefits,
pensions, profit sharing benefits, hospitalization, retirement
or other so-called fringe benefits, and any other expense
imposed on Lessor or its contractors or subcontractors,
pursuant to law or pursuant to any collective bargaining
agreement covering such employees, all services, supplies,
repairs, replacements or other expenses for maintaining and
operating the Complex, reasonable attorneys' fees and costs in
connection with appeal or contest of real estate taxes or
levies, and such other expenses as may be ordinarily incurred
in the operation and maintenance of a commercial
office/warehouse complex and not specifically set forth
herein, including reasonable management fees (not to exceed
3.5% of the total Base Rent and other charges to be paid by
Lessee each Lease Year) and the costs of a building office at
the Complex. The term "Operating Expenses" shall not include
any capital improvement to the Complex other than replacements
required for normal maintenance and repair, nor shall it
include repairs, restoration or other work occasioned by fire,
windstorm or other insured casualty, expenses incurred in
leasing or procuring tenants, leasing commissions, advertising
expenses, expenses for renovating space for new tenants, legal
expenses incident to enforcement or negotiation by Lessor of
the terms of any lease, interest or principal payments on any
mortgage or other indebtedness of Lessor, compensation paid to
any employee of Lessor above the grade of building
superintendent, depreciation allowance or expense, any bad
debt loss, rent loss or reserves for bad debt losses or rent
losses, the costs of any services sold or provided to other
tenants or occupants but not to Lessee, or any expense
incurred due to Lessor's gross negligence or willful
misconduct. Notwithstanding the foregoing, in the event Lessor
installs equipment in or makes improvements or alterations to
the Complex which are for the purpose of reducing energy
costs, maintenance costs or other Operating Expenses or which
are required under any governmental laws, regulations or
ordinances which were not required at the date of commencement
of the term of this Lease, Lessor may include in Operating
Expenses reasonable charges for interest on such investment
and reasonable charges for depreciation on the same so as to
amortize such investment over the reasonable life of such
equipment, improvement or alteration on a straight line basis;
however, any charges related to improvements or alterations
for the purpose of reducing energy costs shall be limited, in
any given Lease Year, to the reasonably estimated savings
which result. Operating Expenses shall also be deemed to
include expenses incurred by Lessor in connection with city
sidewalks adjacent to the Property and any pedestrian walkway
system (either above or below ground) or other public facility
to which Lessor or the Complex is from time to time subject in
connection with operations of the Property and the Complex. In
the event Lessor includes
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"Phase II, (as designated on the site plan) as part of the
Complex, the "Operating Expenses" for any leasable buildings
contained within "Phase II" shall not be included in the
Operating Expenses allocable to Lessee, although all
"Operating Expenses" related to all other portions of the
Complex may be included in Operating Expenses and allocated
proportionately.
D. The term "Lessee's Pro Rata Share of Real Estate Taxes" shall
mean fifty-three and 97/100 percent (53.97%) of the Real
Estate Taxes for the applicable Lease Year, and the term
"Lessee's Pro Rata Share of Operating Expenses" shall mean
fifty-three and 97/100 percent (53.97%) of the Operating
Expenses for the applicable Lease Year. Said percentages have
been estimated based upon a ratio of $66,000 sq. ft. to
122,300 sq. ft. (i.e., the rentable area of the Premises to
the rentable area of the Complex); however, each area amount
shall be subject to adjustment, pursuant to Article XXIX of
Exhibit C. Further, although said percentages shall be deemed
to have been agreed upon by the parties hereto after due
consideration of the rentable area of the Premises compared to
the rentable area of the Complex; the percentages for Lessee's
Pro Rata Share of Operating Expenses and for Lessee's Pro Rata
Share of Real Estate Taxes shall be amended each Lease Year to
the greater of the following: (i) if the total rentable area
leased in the Complex (pursuant to leases under which the term
has commenced) is ninety-five percent (95%) or less than the
total rentable area of the Complex, the percentages shall be
that which the rentable area of the Premises bears to
ninety-five percent (95%) of the total rentable area of the
Complex for such Lease Year; or (ii) if the total rentable
area leased in the Complex (pursuant to leases under which the
term has commenced) is greater than ninety-five percent (95%),
the percentages shall be that which the rentable area of the
Premises bears to the actual rentable area of the Complex for
such Lease Year. Rentable area shall include the exterior wall
of the building in which the Premises is to be located but
shall in no event include basement storage space or garage
space.
E. Anything herein to the contrary notwithstanding, it is agreed
that in the event the Complex is not fully occupied during any
calendar year or Lease Year, a reasonable and equitable
adjustment shall be made by Lessor in computing the Operating
Expenses for such year so that the Operating Expenses shall be
adjusted to the amount that would have been incurred had the
Complex been fully occupied during such year.
As to each Lease Year after the term of this Lease commences, Lessor
shall estimate for each such Lease Year (i) the total amount of Real Estate
Taxes; (ii) the total amount of Operating Expenses; (iii) Lessee's Pro Rata
Share of Real Estate Taxes; (iv) Lessee's Pro Rata Share of Operating Expenses;
(v) the computation of the annual and monthly rental payable during such Lease
Year as a result of increases or decreases in Lessee's Pro Rata Share of Real
Estate Taxes and Lessee's Pro Rata Share of Operating Expenses. Said estimate
shall be in writing and shall be delivered or mailed to Lessee at the Premises.
Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata
Share of Real Estate Taxes for each Lease Year and Lessee's Pro Rata Share of
Operating Expenses for each Lease Year, so estimated, in equal monthly
installments, in advance, on the first day of each month during each applicable
Lease Year.
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In the event that said estimate is delivered to Lessee after the first day of
January of the applicable Lease Year, said amount, so estimated, shall be
payable as Additional Rent, in equal monthly installments, in advance, on the
first day of each month over the balance of such Lease Year, with the number of
installments being equal to the number of full calendar months remaining in such
Lease Year.
From time to time during any applicable Lease Year, Lessor may
reestimate the amount of Real Estate Taxes and Operating Expenses and Lessee's
Pro Rata Share thereof, and in such event Lessor shall notify Lessee, in
writing, of such reestimate in the manner above set forth and fix monthly
installments for the then remaining balance of such Lease Year in an amount
sufficient to pay the reestimated amount over the balance of such Lease Year
after giving credit for payments made by Lessee on the previous estimate.
Upon completion of each Lease Year, Lessor shall cause its accountants
to determine the actual amount of Real Estate Taxes and Operating Expenses for
such Lease Year and Lessee's Pro Rata Share thereof and deliver a written
certification of the amounts thereof to Lessee after the end of each Lease Year.
If Lessee has paid less than its Pro Rata Share of Real Estate Taxes or its Pro
Rata Share of Operating Expenses for any Lease Year, Lessee shall pay the
balance of its Pro Rata Share of the same within thirty (30) days after the
receipt of such statement. If Lessee has paid more than its Pro Rata Share of
Real Estate Taxes or its Pro Rata Share of Operating Expenses for any Lease
Year, Lessor shall, at Lessee's option, either (i) refund such excess, or (ii)
credit such excess against the most current monthly installment or installments
due Lessor for its estimate of Lessee's Pro Rata Share of Real Estate Taxes and
Lessee's Pro Rata Share of Operating Expenses for the next following Lease Year.
A pro rata adjustment shall be made for a fractional Lease Year occurring during
the term of this Lease or any renewal or extension thereof based upon the number
of days of the term of this Lease during said Lease Year as compared to three
hundred sixty-five (365) days and all additional sums payable by Lessee or
credits due Lessee as a result of the provisions of this Article II shall be
adjusted accordingly. After the first Lease Year containing twelve (12) full
calendar months, Lessee's Pro Rata Share of "controllable" Operating Expenses
thereafter, for any given Lease Year, shall not exceed the "cap". For these
purposes (i) "controllable" Operating Expenses shall mean those Operating
Expenses which are subject to Lessor's control and discretion, and (ii) the
"cap" for any "controllable" Operating Expense shall mean 105%, multiplied by
the amount of the "controllable" Operating Expense in said first Lease Year,
multiplied by the number of Lease Years since said first Lease Year. Examples of
Operating Expenses which are not "controllable" include taxes, insurance
premiums and utility costs.
Further, Lessee shall pay, also as Additional Rent, all other sums and
charges required to be paid by Lessee under this Lease, and any tax or excise on
rents, gross receipts tax, transaction privilege tax or other tax, however
described, which is levied or assessed by the United States of America or the
state in which the Complex is located or any political subdivision thereof, or
any city or municipality, against Lessor in respect to the Base Rent, Additional
Rent, or other charges reserved under this Lease or as a result of Lessor's
receipt of such rents or other charges accruing under this Lease; provided,
however, Lessee shall have no obligation to pay net income taxes of Lessor.
ARTICLE III. LATE CHARGE AND OVERDUE AMOUNTS - RENT INDEPENDENT: Lessee shall
pay to Lessor, as liquidated damages, a late charge equal to five percent (5%)
of any amount not paid on or before
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five (5) days after the date when the same is due to compensate Lessor for its
costs in connection with such late payment by Lessee. The assessment or
collection of a late charge hereunder shall not constitute the waiver by Lessor
of a default by Lessee under this Lease and shall not bar the exercise by Lessor
of any rights or remedies available under this Lease. In addition, any
installment of Base Rent, Additional Rent or other charges to be paid by Lessee
accruing under the provisions of this Lease, which shall not be paid when due,
shall bear interest at the rate of fifteen percent (15%) per annum from the date
when the same is due until the same shall be paid, but if such rate exceeds the
maximum interest rate permitted by law, such rate shall be reduced to the
highest rate allowed by law under the circumstances. Lessee's covenants to pay
the Base Rent and the Additional Rent are independent of any other covenant,
condition, provision or agreement herein contained. Nothing herein contained
shall be deemed to suspend or delay the payment of any amount of money or charge
at the time the same becomes due and payable hereunder, or limit any other
remedy of Lessor. Base Rent and Additional Rent are sometimes collectively
referred to as "rent". Rent shall be payable without deduction, offset, prior
notice or demand, in lawful money of the United States.
ARTICLE IV. POSSESSION OF PREMISES: If Lessor shall be unable to give possession
of the Premises on the date of the commencement of the term because the
construction of the Complex or the completion of the Premises has not been
sufficiently completed to make the Premises ready for occupancy, or for any
other reason, Lessor shall not be subject to any claims, damages or liabilities
for the failure to give possession on said date except as expressly set forth
below. Under said circumstances, the rent reserved and covenant to pay same
shall not commence until possession of the Premises is given or the Premises are
ready for occupancy, whichever is earlier. Failure to give possession on the
date of commencement of the term shall in no way affect the validity of this
Lease or the obligations of Lessee hereunder; provided, however, that if the
date of commencement of the initial term is delayed beyond the scheduled
commencement date, the expiration date of the initial term shall be extended to
provide for a full ten-year initial term of this Lease; and provided further (a)
that for every two (2) days' delay in Lessor's delivery of possession (other
than for reasons beyond Lessor's control including force majeure) after MARCH 1,
1997 BUT BEFORE APRIL 1, 1997, and (b) that for every one (1) day delay in
Lessor's delivery of possession (other than for reasons beyond Lessor's control
including force majeure) after APRIL 1, 1997, Lessee shall be entitled to a
credit equal to one (1) day of Base Rent, not to exceed ninety (90) total days
of credit against Base Rent, to be applied to the Base Rent first due hereunder.
If for any reason whatsoever Lessor fails to substantially complete the Premises
and deliver possession thereof to Lessee by DECEMBER 1, 1997, then at any time
thereafter, Lessee may cancel this Lease by giving written notice to Lessor of
such cancellation. If Lessee is given and accepts possession of the Premises on
a date earlier than the date above specified for commencement of the term, the
rent reserved herein and all covenants, agreements and obligations herein and
the term of this Lease shall commence on the date that possession of the
Premises is given to Lessee.
Subject to the express warranty provided in Article XXVIII of Exhibit
C, the acceptance of possession by Lessee shall be deemed conclusively to
establish that the Premises and all other improvements of the Complex required
to be constructed by Lessor for use thereof by Lessee hereunder have been
completed at such time to Lessee's satisfaction and in conformity with the plans
approved by Lessee for the Tenant Improvements, pursuant to Article XXIII, of
Exhibit C, unless Lessee notifies Lessor in writing within sixty (60) days after
commencement of the term as
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to any items not completed. Lessee acknowledges that neither Lessor nor any
agent of Lessor has made any representation or warranty with respect to the
Premises or the Complex or with respect to the suitability or fitness of either
for the conduct of Lessee's business or for any other purpose.
ARTICLE V. SERVICES:
A. All electric lighting bulbs and tubes and all ballasts and
starters within the Premises shall be replaced by Lessee at
the expense of Lessee.
B. Subject to Article II hereof, Lessor shall provide maintenance
in good order, condition and repair of the common area of the
Complex, including, without limitation, the parking facilities
and all driveways leading thereto and keeping the same free
from any unreasonable accumulation of snow. Lessor shall keep
and maintain the landscaped area and parking facilities in a
neat and orderly condition. Lessor reserves the right to
designate areas of the appurtenant parking facilities where
Lessee and its agents, employees and invitees shall park and
may exclude Lessee, its agents, employees and invitees from
parking in other areas as designated by Lessor; provided,
however, Lessor shall not be liable to Lessee for the failure
of any tenant or its invitees, employees, agents or customers
to abide by Lessor's designations or restrictions.
No interruption in, or temporary stoppage of, any of the aforesaid
services caused by repairs, renewals, improvements, alterations, strikes,
lockouts, labor controversies, accidents, inability to obtain fuel or supplies,
or other causes shall be deemed an eviction or disturbance of Lessee's use and
possession, or render Lessor liable for damages, by abatement of rent or
otherwise or relieve Lessee from any obligation herein set forth. In no event
shall Lessor be required to provide any heat, air conditioning, electricity or
other service in excess of that permitted by voluntary or involuntary guidelines
or laws, ordinances or regulations of governmental authority.
ARTICLE VI. USE: The Premises shall be used for general office purposes, light
assembly and for carrying on such activities as may be incidental thereto and
for no other purpose; provided, however, Lessee may not use or occupy the
Premises, or knowingly permit the Premises to be used or occupied, contrary to
any statute, rule, order, ordinance, requirement or regulation or any covenant,
condition or restriction now or hereafter applicable thereto, or in any manner
which would violate any certificate of occupancy or permit affecting the same,
or which would cause structural injury to the Premises or cause the value or
usefulness of the Premises, or any part thereof, substantially to diminish
(reasonable wear and tear excepted) or which would constitute a private or
public nuisance or waste, and Lessee agrees that it will promptly, upon
discovery of any such use, take all necessary steps to compel the discontinuance
of such use.
ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use or
possession, or giving rise to any claim for setoff or abatement of rent:
A. To control, install, affix and maintain any and all signs on
the Property, or on the exterior of the Complex and in any
common corridors, entrances and other common areas thereof,
except those signs within the Premises not visible from
outside the Premises.
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B. To reasonably designate, limit, restrict and control any
service in or to the Complex, including but not limited to the
designation of sources from which Lessee may obtain sign
painting and lettering. Any restriction, designation,
limitation or control imposed by reason of this subparagraph
shall be imposed uniformly on Lessee and other tenants
occupying space in the Complex.
C. To retain at all times and to use in appropriate instances
keys to all doors within and into the Premises. No locks shall
be changed without the prior written consent of Lessor. This
provision shall not apply to Lessee's safes or other areas
maintained by Lessee for the safety and security of monies,
securities, negotiable instruments or like items.
D. To make repairs, improvements, alterations, additions or
installations, whether structural or otherwise, in and about
the Complex, or any part thereof, and for such purposes upon,
reasonable notice to Lessee, to enter upon the Premises, and
during the continuation of any of said work, to temporarily
close doors, entryways, public spaces and corridors in the
Complex and to interrupt or temporarily suspend services and
facilities.
E. To approve the weight, size and location of safes and other
heavy equipment and articles in and about the Premises and the
Complex and to require all such items to be moved into and out
of the Complex and the Premises only at such times and in such
manner as Lessor shall direct in writing.
ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any
improvements, alterations, additions or installations in or to the Premises in
excess of $10,000.00 (hereinafter referred to as the "Work") without Lessor's
prior written consent, which consent may be withheld in Lessor's sole
discretion. Along with any request for Lessor's consent and before commencement
of the Work or delivery of any materials to be used in the Work to the Premises
or into the Complex, Lessee shall furnish Lessor with plans and specifications,
names and addresses of contractors, copies of contracts, necessary permits and
licenses, an indemnification in such form and amount as may be reasonably
satisfactory to Lessor and a performance bond executed by a commercial surety
reasonably satisfactory to Lessor in an amount equal to the cost of the Work and
for the payment of all liens for labor and material arising therefrom. The bond
required by the preceding sentence shall not be required if the cost of the Work
is less than $100,000.00. Lessee agrees to defend and hold Lessor forever
harmless from any and all claims and liabilities of any kind and description
which may arise out of or be connected in any way with said improvements,
alterations, additions or installations. All Work shall be done only by
contractors or mechanics reasonably approved by Lessor and at such time and in
such manner as Lessor may from time to time reasonably designate. All work done
by Lessee or its agents, employees or contractors shall be done in such a manner
as to avoid labor disputes. Lessee shall pay the cost of all such improvements,
alterations, additions or installations (including, if the cost of the Work
exceeds $100,000.00, a reasonable charge for Lessor's services and for Lessor's
inspection and engineering time) and the cost of painting, restoring or
repairing the Premises and the Complex occasioned by such improvements,
alterations, additions or installations. Upon completion of the Work, Lessee
shall furnish Lessor with contractor's affidavits, full and final waivers of
liens and receipted bills covering all labor and materials expended and used.
The Work shall comply
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with all insurance requirements and all laws, ordinances, rules and regulations
of all governmental authorities and shall be constructed in a good and
workmanlike manner. Lessee shall permit Lessor to inspect construction
operations in connection with the Work. Lessee shall not be allowed to make any
improvements, alterations, additions or installations if such action results or
would result in a labor dispute or otherwise would materially interfere with
Lessor's operation of the Complex. Lessor, by written notice to Lessee given at
or prior to termination of this Lease, may require Lessee, at Lessee's sole cost
and expense, to remove any improvements, alterations, additions or installations
installed by Lessee in the Premises and to repair or restore any damage caused
by the installation and removal of such improvements, alterations, additions or
installations; provided, however, the only improvements, additions or
installations which Lessee shall remove shall be those specified in Lessor's
notice. Lessee shall keep the Premises and the Complex free from any liens
arising out of any work performed, material furnished or obligations incurred by
Lessee, and shall indemnify, protect, defend and hold harmless Lessor from any
liens and encumbrances arising out of any work performed or material furnished
by or at the direction of Lessee. In the event that Lessee shall not, within
twenty (20) days following the imposition of any such lien, cause such lien to
be released of record by payment or posting of a proper bond, Lessor shall have,
in addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as it shall deem
proper, including payment of and/or defense against the claim giving rise to
such lien. All such sums paid by Lessor and all expenses incurred by it in
connection therewith, including attorneys' fees and costs, shall be payable as
Additional Rent to Lessor by Lessee on demand with interest at the rate provided
in Article III accruing from the date paid or incurred by Lessor until
reimbursed to Lessor by Lessee.
ARTICLE IX. REPAIRS: Subject to Article X hereof, Lessee shall, during the term
of this Lease, at Lessee's expense, keep the Premises in as good order,
condition and repair as they were at the time Lessee took possession of the
same, reasonable wear and tear and damage from fire and other casualties
excepted. Lessee shall keep the Premises in a neat and sanitary condition, and
Lessee shall not commit any nuisance or waste on the Premises or in, on or about
the Complex, throw foreign substances in the plumbing facilities, or waste any
of the utilities furnished by the Lessor. All uninsured damage or injury to the
Premises or to the Complex caused by Lessee moving furniture, fixtures,
equipment or other devices in or out of the Premises or the Complex or by
installation or removal of furniture, fixtures, equipment, devices or other
property of Lessee or its agents, contractors, servants or employees, due to
carelessness, omission, neglect, improper conduct or other cause of Lessee or
its servants, employees, agents, visitors or licensees, shall be repaired,
restored and replaced promptly by Lessee at its sole cost and expense to the
satisfaction of Lessor. All repairs, restorations and replacements shall be in
quality and class equal to the original work.
Lessor and its employees and agents shall have the right to enter the
Premises during or as a result of any emergency, or at any reasonable time or
times (upon twenty-four (24) hours notice) for the purpose of inspection,
cleaning, repairs, altering or improving the same but nothing contained herein
shall be construed as imposing any obligation on Lessor to make any repairs,
alterations or improvements which are the obligation of Lessee.
Lessee shall give written notice to Lessor at least thirty (30) days
prior to vacating the Premises for the express purpose
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of arranging a meeting with Lessor for a joint inspection of the Premises. In
the event of Lessee's failure to give such notice and arrange such joint
inspection, then Lessor shall notify Lessee of a date, no earlier than five (5)
after Lessor's notice on which such joint inspection shall be held, and if
Lessee fails to appear at such scheduled inspection, Lessor's inspection at or
after Lessee's vacation of the Premises shall be conclusively deemed correct for
purposes of determining Lessee's responsibility for repairs and restoration
hereunder.
ARTICLE X. INSURANCE AND INDEMNITY: Lessor shall keep the Complex insured for
the benefit of Lessor in an amount equivalent to the full replacement value
thereof (excluding foundation, grading and excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now or may be customarily covered with respect to buildings and improvements
similar in construction, general location, use, occupancy and design to the
Complex, including, but without limiting the generality of the foregoing,
windstorms, hail, explosion, vandalism, malicious mischief, civil commotion and
such other coverage as may be deemed necessary by Lessor, provided such
additional coverage is obtainable and provided such additional coverage is such
as is customarily carried with respect to buildings and improvements similar in
construction, general location, use, occupancy and design to the Complex.
These insurance provisions shall in no way limit or modify any of the
obligations of Lessee under any provision of this Lease. Lessor agrees that such
policy or policies of insurance shall permit releases of liability as provided
herein and/or waiver of subrogation clause as to Lessee, and Lessor waives,
releases and discharges Lessee from all claims or demands whatsoever which
Lessor may have or acquire arising out of damage to or destruction of the
Complex or loss of use thereof occasioned by fire or other casualty, whether
such claim or demand may arise because of the negligence or fault of Lessee or
its agents, employees, customers or business invitees, or otherwise, and Lessor
agrees to look to the insurance coverage only in the event of such loss.
Insurance premiums paid thereon shall be a portion of the "Operating Expenses"
described in Article II hereof. Notwithstanding the above, in the event a
release of Lessee or waiver of subrogation as to Lessee (without invalidation of
coverage) becomes generally unavailable in insurance policies as to commercial
office/warehouse projects similar to the Complex, the release and any waiver of
subrogation above provided for shall cease upon written notice by Lessor to
Lessee of such event. Thereafter, Lessee may, upon written notice to Lessor,
require Lessor to secure a waiver of subrogation as to Lessee if (a) a right to
waive subrogation as to Lessee thereafter becomes available without increased
premium, or (b) a right to waive subrogation as to Lessee becomes available and
Lessee pays any increased premium required in connection therewith.
Lessee shall keep all of its machinery, equipment, furniture, fixtures,
personal property (including also property under the care, custody or control of
Lessee) and business interests which may be located in, upon or about the
Premises insured for the benefit of Lessee in an amount equivalent to the full
replacement value or insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now, or may in the future be, customarily covered with respect to a tenant's
machinery, equipment, furniture,
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fixtures, personal property and business located in a building similar in
construction, general location, use, occupancy and design to the Complex,
including, but without limiting the generality of the foregoing, windstorms,
hail, explosions, vandalism, theft, malicious mischief, civil commotion and such
other coverage as Lessee may deem appropriate or necessary.
Lessee shall be permitted to "self-insure" or to establish deductible
limits under such policies, provided, however, that the amount of such retained
risk shall not exceed, at any time, ten percent (10%) of Lessee's Tangible Net
Worth (defined in Article XX of Exhibit C), as the same may change from time to
time. Lessee agrees that such policy or policies of insurance shall permit
releases of liability as provided herein and/or waiver of subrogation clause as
to Lessor, and Lessee waives, releases and discharges Lessor and its agents,
employees and contractors from all claims or demands whatsoever which Lessee may
have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property and loss of use thereof
occasioned by fire or other casualty, whether such claim or demand may arise
because of the negligence or fault of Lessor or its agents, employees,
contractors or otherwise, and Lessee agrees to look to the insurance coverage
only in the event of such loss.
Lessor shall, as a portion of the Operating Expenses defined in Article
II, maintain, for its benefit and the benefit of its managing agent, general
public liability insurance against claims for personal injury, death or property
damage occurring upon, in or about the Complex, such insurance to afford
protection to Lessor and its managing agent in such amounts as Lessor deems
commercially reasonable and comparable to the amounts maintained for projects
similar to the Complex, but in no event less than $2,000,000.00 of total
insurance coverage for the commercial general liability policy.
Lessee shall, at Lessee's sole cost and expense but for the mutual
benefit of Lessor, its managing agent and Lessee, maintain general public
liability insurance against claims for personal injury, death or property damage
occurring upon, in or about the Premises, such insurance to afford protection to
Lessor, its managing agent and Lessee to the limit of not less than One Million
and No/100 Dollars ($1,000,000.00) in respect to the injury or death to a single
person, and to the limit of not less than Three Million and No/100 Dollars
($3,000,000.00) in respect to any one accident, and to the limit of not less
than Five Hundred Thousand and No/100 Dollars ($500,000.00) in respect to any
property damage. Such policies of insurance shall be written in companies
reasonably satisfactory to Lessor, naming Lessor and its managing agent as
additional insureds thereunder, and such policies, or a memorandum or
certificate of such insurance, shall be delivered to Lessor endorsed "Premium
Paid" by the company or agent issuing the same or accompanied by other evidence
satisfactory to Lessor that the premium thereon has been paid. At such time as
insurance limits required of tenants in office/warehouse buildings in the area
in which the Complex is located are generally increased to greater amounts,
Lessor shall have the right to require such greater limits as may then be
customary. Lessee agrees to include in such policy the contractual liability
coverage insuring Lessee's indemnification obligations provided for herein. Any
such coverage shall be deemed primary to any liability coverage secured by
Lessor. Such insurance shall also afford coverage for all claims based upon
acts, omissions, injury or damage, which claims occurred or arose (or the onset
of which occurred or arose) in whole or in part during the policy period.
Lessor agrees to indemnify and save Lessee harmless against and from
any and all claims, loss, damage and expense by or on
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behalf of any person or persons, firm or firms, corporation or corporations,
arising from any breach or default on the part of Lessor in the performance of
any covenant or agreement on the part of Lessor to be performed, pursuant to the
terms of this Lease, or arising from any negligence or wilful misconduct on the
part of Lessor or arising from any accident, injury or damage to the extent
caused by the negligence or wilful misconduct of Lessor to any person, firm or
corporation occurring during the term of this Lease or any renewal thereof, in
or about the Premises and the Office Complex, and from and against all costs,
reasonable counsel fees, expenses and liabilities incurred in or about any such
claim or action or proceeding brought thereon; and in case any such action or
proceeding be brought against Lessee by reason of any such claim, Lessor, upon
notice from Lessee, covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to Lessee; provided, however, that
notwithstanding anything to the contrary contained in the Article, Lessor shall
not be liable for, and Lessor shall not indemnify Lessee against or from, any
consequential damages of Lessee, which shall include without limitation any loss
of business or loss of profits.
Lessee agrees to indemnify, protect, defend and hold harmless Lessor
and Lessor's partners, shareholders, employees, lender and managing agent
harmless from and against any and all claims, losses, costs, liabilities,
actions and damages, including without limitation attorneys' fees and costs, by
or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any breach or default on the part of Lessee in the
performance of any covenant or agreement an the part of Lessee to be performed,
pursuant to the terms of this Lease, or arising from any act or negligence on
the part of Lessee or its agents, contractors, servants, employees or licensees,
or arising from any accident, Injury or damage to the extent caused by Lessee or
its agents or employees to any person, firm or corporation occurring during the
term of this Lease or any renewal thereof, in or about the Premises and the
Complex, and from and against all costs, reasonable counsel fees, expenses and
liabilities incurred in or about any such claim or action or proceeding brought
thereon; and in case any action or proceeding be brought against Lessor or its
managing agent by reason of any such claim, Lessee, upon notice from Lessor,
covenants to resist or defend such action or proceeding by counsel reasonably
satisfactory to Lessor.
Lessee agrees, to the extent not expressly prohibited by law, and
except in the event of the negligence or willful misconduct of Lessor, that
Lessor and Lessor's agents, employees and servants shall not be liable, and
Lessee waives all claims for damage to property and business sustained during
the term of this Lease by Lessee occurring in or about the Complex, resulting
directly or indirectly from any existing or future condition, defect, matter or
thing in the Premises, the Complex or any part thereof, or from equipment or
appurtenances becoming out of repair, or from accident, or from any occurrence
or act or omission of Lessor, Lessor's agents, employees or servants, any tenant
or occupant of the Complex or any other person. This paragraph shall apply
especially, but not exclusively, to damage caused as aforesaid or by the
flooding of basements or other subsurface areas, or by refrigerators, sprinkling
devices, air conditioning apparatus, water, snow, frost, steam, excessive heat
or cold, falling plaster, broken glass, sewage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, and shall apply equally,
whether any such damage results from the act or omission of other tenants or
occupants in the Complex or any other persons, and whether such damage be caused
by or result from any of the aforesaid, or shall be caused by or result from
other circumstances of a similar or dissimilar nature.
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Anything herein to the contrary notwithstanding, in the event any
damage Lo the Complex results from any act or omission of Lessee, its agents,
employees or invitees, and all or any portion of Lessor's loss is within the
"deductible" portion of Lessor's insurance coverage, Lessee shall pay to Lessor
the amount of such deductible loss (not to exceed $1,000 per event). All
property in the Complex or on the Premises belonging to Lessee or its agents,
employees or invitees or otherwise located at the Premises, shall be at the risk
of Lessee only, and Lessor shall not be liable for damage thereto or theft,
misappropriation or loss thereof, and Lessee agrees to defend and hold Lessor
and Lessor's agents, employees and servants harmless and indemnify them against
claims and liability for injuries to such property. Lessee shall not do or
permit anything to be done In or about the Premises nor bring or keep anything
therein which will in any way increase the existing rate of or affect in any
other way any fire or other insurance upon the Complex or any of its contents,
or cause a cancellation of any insurance policy covering the Complex or any of
its contents. Notwithstanding anything to the contrary contained herein, Lessee
shall promptly, upon demand, reimburse Lessor for the full amount of any
additional premium charged for such policy by reason of Lessee's failure to
comply with the provisions of this paragraph, it being understood that such
demand for reimbursement shall not be Lessor's exclusive remedy. Lessee shall
promptly, upon demand, reimburse Lessor for any additional premium charged for
any such policy by reason of Lessee's failure to comply with the provisions of
this Article.
In the event Lessee fails to provide Lessor with evidence of insurance
required under this Article X, upon three (3) business days' notice to Lessee,
Lessor may, but shall not be obligated to, without further demand upon Lessee,
and without waiving or releasing Lessee from any obligation contained in this
Lease, obtain such insurance and Lessee agrees to repay, upon demand, all such
sums incurred by Lessor in effecting such insurance- All such sums shall become
a part of the Additional Rent payable hereunder, but no such payment by Lessor
shall relieve Lessee from any default under this Lease.
ARTICLE XI. ASSIGNMENT A14D SUBLETTING: Lessee shall not, without the prior
written consent of Lessor, (I) transfer, pledge, mortgage or assign this Lease
or any interest hereunder; (II) permit any assignment of this Lease by voluntary
act, operation of law or otherwise; (iii) sublet the Premises or any part
thereof; or (iv) permit the use of the Premises by any parties other than Lessee
and its agents and employees. Notwithstanding the foregoing, a sublease to a
subsidiary of Lessee, or an arrangement resulting from a merger or
reorganization in which the surviving entity has a "Tangible Net Worth" (defined
in Article XX, Exhibit C) of not less than Lessee's immediately prior to the
merger or reorganization, shall not require the consent of Lessor. Lessee shall
seek such written consent of Lessor by a written request therefor, setting forth
such information as Lessor may deem necessary. Lessee shall, by notice in
writing, advise Lessor of Lessee's intention, from, on and after a stated date
(which shall not be less than thirty (30) days after the date of Lessee's
notice), to assign this Lease or to sublet any part or all of the Premises for
the balance or any part of the term. Lessee's notice shall include all of the
terms of the proposed assignment or sublease and shall state the consideration
therefor. In such event, Lessor shall have the right, to be exercised by giving
written notice to Lessee within thirty (30) days after receipt of Lessee's
notice, to recapture the space described in Lessee's notice and such recapture
notice shall, if given, cancel and terminate this Lease with respect to the
space therein described as of the date stated in Lessee's notice. Lessee's
notice shall state the name and address of the proposed assignee or subtenant
and a true and complete copy of the proposed assignment or sublease shall be
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delivered to Lessor with Lessee's notice. If Lessee's notice shall cover all of
the Premises, and Lessor shall have exercised its foregoing recapture right, the
term of this Lease shall expire and end on the date stated in Lessee's notice as
fully and completely as if that date had been herein definitely fixed for the
expiration of the term. If, however, this Lease be canceled with respect to less
than the entire Premises, the Base Rent and Additional Rent shall be equitably
adjusted by Lessor with due consideration of the size, location, type and
quality of the portion of the Premises so remaining after the "recapture" and
such rent shall be reduced accordingly from and after the termination date for
said portion, and this Lease as so amended shall continue thereafter in full
force and effect. The rent adjustments provided for herein shall be evidenced by
an amendment to this Lease executed by Lessor and Lessee. If this Lease shall be
terminated in the manner aforesaid, either as to the entire Premises or only a
portion thereof, to such extent the term of this Lease shall end upon the
appropriate effective date of the proposed sublease or assignment as if that
date had been originally fixed in this Lease for such expiration, and in the
event of a termination affecting less than the entire Premises, Lessee shall
comply with Article XIV ("Surrender of Premises") of this Lease with respect to
such portion of the Premises affected thereby.
If Lessor, upon receiving Lessee's notice with respect to any such
space, shall not exercise its right to recapture as aforesaid, Lessor will not
unreasonably withhold its consent to Lessee's assignment of the Lease or
subletting such space to the party identified in Lessee's notice, provided,
however, that in the event Lessor consents to any such assignment or subletting,
and as a condition thereto, Lessee shall pay to Lessor fifty percent (50%) of
all profit derived by Lessee from such assignment or subletting. For purposes of
the foregoing, profit shall be deemed to include, but shall not be limited to,
the amount of all rent payable by such assignee or sublessee in excess of the
Base Rent, and rent adjustments, payable by Lessee under this Lease. If a part
of the consideration for such assignment or subletting shall be payable other
than in cash, the payment to Lessor shall be in cash for its share of any
non-cash consideration based upon the fair market value thereof.
Lessee shall and hereby agrees that it will furnish to Lessor upon
request from Lessor a complete statement, certified by an independent certified
public accountant, setting forth in detail the computation of all profit derived
and to be derived from such assignment or subletting, such computation to be
made in accordance with generally accepted accounting principles. Lessee agrees
that Lessor and its authorized representatives shall be given access at all
reasonable times to the books, records and papers of Lessee relating to any such
assignment or subletting, and Lessor shall have the right to make copies
thereof. The percentage of Lessee's profit due Lessor hereunder shall be paid by
Lessee to Lessor within ten (10) days of receipt by Lessee of all payments made
from time to time by such assignee or sublessee to Lessee.
Any subletting or assignment hereunder shall not release or discharge
Lessee of or from any liability, whether past, present or future, under this
Lease, and Lessee shall continue fully liable thereunder. The subtenant or
subtenants or assignee shall agree in a form satisfactory to Lessor to agree to
be obligated for, comply with, and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease to the extent of the space
sublet or assigned, and Lessee shall deliver to Lessor promptly after execution
an executed copy of each such sublease or assignment and an agreement of
compliance by each such subtenant or assignee. Consent by Lessor to any
assignment of this Lease or to any subletting of the Premises shall not be a
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waiver of Lessor's rights under this Article as to any subsequent assignment or
subletting.
Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Article XI shall be of no
effect and void. Lessor's right to assign its interest in this Lease shall
remain unqualified, but shall be subject to the provisions of Article XVII.I.,
below. Lessor may make a reasonable charge to Lessee for any reasonable
attorneys' fees or expenses incident to a review of any documentation related to
any proposed assignment or subletting by Lessee.
Notwithstanding anything to the contrary in this Lease, Lessee shall
not assign its rights under this Lease or sublet all or any part of the Premises
to a person, firm or corporation which is (or, immediately prior to such
subletting or assignment, was) a tenant or occupant of the Complex or any
warehouse or office building an property contiguous to the Complex owned by
Lessor.
The consent of Lessor to a transfer may not be unreasonably withheld,
provided that should Lessor withhold its consent for any of the following
reasons, which list is not exclusive, such withholding shall be deemed to be
reasonable:
(a) Financial strength of the proposed transferee is not at least
equal to that of Lessee at the time of execution of this
Lease;
(b) A proposed transferee whose occupation of the Premises would
cause a diminution in the reputation of the Complex or the
other businesses located therein;
(c) A proposed transferee whose impact on the common areas or the
other occupants of the Complex would be disadvantageous; or
(d) A proposed transferee whose occupancy will require any
variation in the terms and conditions of this Lease.
ARTICLE XII. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall
render the whole or any material portion of the Premises untenable, and the
Premises can reasonably be expected to be made tenantable within one hundred
twenty (120) days from the date of such event, then Lessor shall repair and
restore the Premises and the Complex to as near their condition prior to the
fire or other casualty as is reasonably possible within such one hundred twenty
(120) day period (subject to delays for causes beyond Lessor's reasonable
control) and notify Lessee that it will be doing so, such notice to be mailed
within thirty (30) days from the date of such damage or destruction, and this
Lease shall remain in full force and effect, but the rent for the period during
which the Premises are untenantable shall be abated pro rata (based upon the
portion of the Premises which is untenantable); provided however, if such
casualty occurs within the last two (2) years of the term of this Lease (as the
same may be extended), Lessee shall have the right to terminate this Lease by
notice given to Lessor within thirty (30) days of the casualty and such
termination shall be effective thirty (30) days after said notice. If Lessor is
required to repair the Complex and/or the Premises, as aforesaid, said work
shall be undertaken and prosecuted with all due diligence and speed.
It fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event, then either party, by notice in writing to the other mailed within
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thirty (30) days from the date of such damage or destruction, may terminate this
Lease effective upon a date within thirty (30) days from the date of such
notice.
In the event that more than fifty percent (50%) of the value of the
Complex is damaged or destroyed by fire or other casualty, and irrespective of
whether damage or destruction can be made tenantable within one hundred twenty
(120) days thereafter, then at Lessor's option, by written notice to Lessee,
mailed within forty-five (45) days from the date of such damage or destruction,
Lessor may terminate this Lease effective upon a date within thirty (30) days
from the date of such notice to Lessee.
If fire or other casualty shall render any portion of the Premises or
any material portion of the Complex untenantable and the insurance proceeds are
not sufficient to make repairs, then Lessor may, by notice to Lessee, mailed
within thirty (30) days from the date of such damages or destruction, terminate
this Lease effective upon a date within thirty (30) days from the date of such
notice.
If the Premises or the Complex is damaged, and such damage is of the
type insured against under the fire and special form property damage insurance
maintained by Lessor hereunder, the cost of repairing said damage up to the
amount of the deductible under said insurance policy shall be included as a part
of the Operating Expenses. If the damage was due to an act or omission of
Lessee, Lessee shall pay Lessor the difference between the actual cost of repair
and any insurance proceeds received by Lessor.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event and neither party hereto terminates this Lease pursuant to its rights
herein or in the event that more than fifty percent (50%) of the value of the
Complex is damaged or destroyed by fire or other casualty, and Lessor does not
terminate this Lease pursuant to its option granted herein, or in the event that
fifty percent (50%) or less of the value of the Complex is damaged or destroyed
by fire or other casualty and neither the whole nor any material portion of the
Premises is rendered untenantable, then Lessor shall repair and restore the
Premises and the Complex to as near their condition prior to the fire or other
casualty as is reasonably possible with all due diligence and speed (subject to
delays for causes beyond Lessor's reasonable control) and the rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable). In no event
shall Lessor be obligated to repair or restore any special equipment or
improvements installed by Lessee. Anything herein contained to the contrary
notwithstanding, Lessor shall not be obligated to spend more than the net
insurance proceeds available to Lessor on account of any fire or other casualty
in order to repair or restore the Premises or the Complex following such
casualty; provided, however, Lessor shall notify Lessee promptly after the
casualty if Lessor is unwilling to expend more than available net insurance
proceeds.
In the event of a termination of this Lease pursuant to this Article,
rent shall be apportioned on a per them basis and paid to the date of the fire
or other casualty.
ARTICLE XIII. EMINENT DOMAIN: If the whole of or any substantial part of the
Premises is taken by any public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render the
remaining portion of the Premises unsuitable for the purposes intended
hereunder, then the term of this Lease shall cease as of the day possession
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shall be taken by such public authority and Lessor shall make a pro rata refund
of any prepaid rent. All damages awarded for such taking under the power of
eminent domain or any like proceedings shall belong to and be the property of
Lessor, Lessee hereby assigning to Lessor Lessee's interest, if any, in said
award. In the event that fifty percent (50%) or more of the building area or
fifty percent (50%) or more of the value of the Complex is taken by public
authority under the power of eminent domain, then, at Lessor's option, by
written notice to Lessee mailed within sixty (60) days from the date possession
shall be taken by such public authority, Lessor may terminate this Lease
effective upon a date within ninety (90) days from the date of such notice to
Lessee. Further, if the whole of or any material part of the Premises is taken
by public authority under the power of eminent domain, or taken in any manner
for any public or quasi-public use, so as to render the remaining portion of the
Premises unsuitable for the purposes intended hereunder, upon delivery of
possession to the condemning authority pursuant to the proceedings, Lessee may,
at its option, terminate this Lease as to the remainder of the Premises by
written notice to Lessor, such notice to be given to Lessor within thirty (30)
days after Lessee receives notice of the taking. Lessee shall not have the right
to terminate this Lease pursuant to the preceding sentence unless (i) the
business of Lessee conducted in the portion of the Premises taken cannot be
carried on with substantially the same utility and efficiency in the remainder
of the Premises (or any substitute space securable by Lessee pursuant to clause
(ii) hereof); and (ii) Lessee cannot secure substantially similar (in Lessee's
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Lessor in the Complex. Any notice of
termination shall specify the date no more than sixty (60) days after the giving
of such notice as the date for such termination.
Anything in this Article XIII to the contrary notwithstanding, Lessee
shall have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Lessee's
movable trade fixture's and equipment and for moving expenses; provided,
however, Lessee shall in no event have any right to receive any award for its
interest in this Lease or for loss of leasehold; and, provided further, Lessee
shall not be entitled to claim any award to the extent the award to Lessor would
be reduced below the amount which would be allowed to Lessor absent such claim
by Lessee. In the event of a partial condemnation of the Complex or the Premises
and this Lease is not terminated, Lessor shall, at its sole cost and expense,
restore the Premises and Complex to a complete architectural unit and the Base
Rent provided for herein during the period from and after the date of delivery
of possession pursuant to such proceedings to the termination of this Lease
shall be reduced to a sum equal to the product of the Base Rent provided for
herein multiplied by a fraction, the numerator of which is the fair market rent
of the Premises after such taking and after the same has been restored to a
complete architectural unit, and the denominator of which is the fair market
rent of the Premises prior to such taking. Notwithstanding the foregoing
provisions of this Article, Lessor may terminate this Lease with no further
liability to Lessee whatsoever in the event that following any taking of any
part of the Complex by condemnation or right of eminent domain, or any
conveyance in lieu thereof, any party holding a mortgage, trust deed or similar
lien on Lessor's interest in the Complex elects to require the application of an
award or payment for the taking or conveyance in lieu thereof to reduce the
indebtedness secured by such mortgage, trust deed or similar lien. Lessor's
obligation to rebuild, repair or restore under this Article shall in all events
be limited to the extent of the net condemnation proceeds available to Lessor
therefor.
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ARTICLE XIV. SURRENDER OF PREMISES: On the last day of the term of this Lease,
or on the sooner termination thereof, Lessee shall peaceably surrender the
Premises in good condition and repair consistent with Lessee's duty to make
repairs as herein provided. On or before the last day of the term of this Lease,
or the date of sooner termination thereof, Lessee shall, at its sole cost and
expense, remove all of its property and trade fixtures and equipment from the
Premises, and all property not removed shall be deemed abandoned. Lessee hereby
appoints Lessor its agent to remove all property of Lessee from the Premises
upon termination of this Lease and to cause its transportation and storage for
Lessee's benefit, all at the sole cost and risk of Lessee, and Lessor shall not
be liable for damage, theft, misappropriation or loss thereof and Lessor shall
not be liable in any manner in respect thereto. Lessee shall pay all costs and
expenses of such removal, transportation and storage. Lessee shall leave the
Premises in good order, condition and repair, reasonable wear and tear and
damage from fire and other casualty not caused by Lessee excepted. Lessee shall
reimburse Lessor upon demand for any expenses incurred by Lessor with respect to
removal, transportation or storage of abandoned property and with respect to
restoring said Premises to good order, condition and repair. All improvements,
alterations, additions, installations and fixtures, other than Lessee's trade
fixtures, equipment and other removable personal property, which have been made
or installed by either Lessor or Lessee upon the Premises shall remain the
property of Lessor and shall be surrendered with the Premises as a part thereof,
unless Lessee is required to remove same pursuant to the provisions of Article
VIII hereof. If the Premises are not surrendered at the end of the term or
sooner termination thereof, Lessee shall indemnify Lessor against loss or
liability resulting from delay by Lessee in so surrendering the Premises,
including, without limitation, claims made by any succeeding tenants founded on
such delay and any attorneys' fees resulting therefrom. Lessee shall promptly
surrender all keys for the Premises to Lessor at the place then fixed for the
payment of rent and shall inform Lessor of the combinations of any vaults, locks
and safes left on the Premises.
In the event Lessee remains in possession of the Premises after
expiration of this Lease and without the execution of a new lease, but with
Lessor's written consent, Lessee shall be deemed to be occupying the Premises as
a tenant from month-to-month, subject to all the provisions, conditions and
obligations of this Lease insofar as the same can be applicable to a
month-to-month tenancy, except that the Base Rent shall be escalated to one
hundred fifteen percent (115%) of the Base Rent payable hereunder immediately
prior to the expiration of this Lease. In the event Lessee remains in possession
of the Premises after expiration of this Lease and without the execution of a
new lease and without Lessor's written consent, Lessee shall be deemed to be
occupying the Premises without claim of right and Lessee shall pay Lessor for
all costs arising out of loss or liability resulting from delay by Lessee in so
surrendering the Premises as above provided and shall pay as a charge for each
day of occupancy an amount equal to one hundred fifteen percent (115%) of the
Base Rent (on a daily basis) payable hereunder immediately prior to the
expiration of this Lease plus the Additional Rent (on a daily basis) then
currently being charged by Lessor on new leases in the Complex for space similar
to the Premises.
ARTICLE XV. DEFAULT OF LESSEE: The occurrence of any one or more of the
following events (in this Article sometimes called "Event of Default") shall
constitute a default and breach of this Lease by Lessee:
A. If Lessee tails to pay any Base Rent or Additional Rent
payable under this Lease or fails to pay any obligation
required to be paid by Lessee when and as the same
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shall become due and payable, and such default continues for a
period of five (5) days after written notice thereof given by
Lessor to Lessee.
B. If Lessee fails to perform any of Lessee's nonmonetary
obligations under this Lease for a period of thirty (30) days
after written notice from Lessor; provided that if more time
is required to complete such performance, Lessee shall not be
in default if Lessee commences such performance within the
thirty-day period and thereafter diligently pursues its
completion. However, Lessor shall not be required to give such
notice if Lessee's failure to perform constitutes a
non-curable breach of this Lease. The notice required by this
subsection is intended to satisfy any and all notice
requirements imposed by law on Lessor and is not in addition
to any such requirement.
C. If Lessee, by operation of law or otherwise, violates the
provisions of Article XI hereof relating to assignment,
sublease, mortgage or other transfer of Lessee's interest in
this Lease or in the Premises.
D. Lessee, by operation of law or otherwise, violates the
provisions of Article XVII. Relating to compliance with
environmental laws.
E. If (i) Lessee makes a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for
adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against Lessee and is not
dismissed within sixty (60) days; (iii) if a trustee or
receiver is appointed to take possession of substantially all
of Lessee's assets located at the Premises or of Lessee's
interest in this Lease and possession is not restored to
Lessee within sixty (60) days; or (iv) if substantially all of
Lessee's assets located at the Premises or of Lessee's
interest in this Lease is subjected to attachment, execution
or other judicial or non-judicial seizure which is not
discharged within sixty (60) days. If a court of competent
jurisdiction determines that any of the acts described in this
subsection does not constitute an Event of Default and a
trustee is appointed to take possession (or if Lessee remains
a debtor in possession) and such trustee or Lessee transfers
Lessee's interest hereunder, then Lessor shall receive, as
Additional Rent, the difference between the rent (or any other
consideration) paid in connection with such assignment or
sublease and the rent payable by Lessee hereunder. As used in
this subsection, the term "Lessee" shall also mean any
guarantor of Lessee's obligations under this Lease. If any
such Event of Default shall occur, Lessor, at any time during
the continuance of any such Event of Default, may give written
notice to Lessee stating that this Lease shall expire and
terminate on the date specified in such notice, and upon the
date specified in such notice this Lease, and all rights of
Lessee under this Lease, including all rights of renewal
whether exercised or not, shall expire and terminate, or in
the alternative or in addition to the foregoing remedy, Lessor
may assert and have the benefit of any other remedy allowed
herein, at law, or in equity.
Upon the occurrence of an Event of Default by Lessee, and at any time
thereafter, with or without notice or demand and without limiting Lessor in the
exercise of any right or remedy which
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Lessor may have, Lessor shall be entitled to the rights and remedies set forth
below:
A. Terminate lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall not terminate
unless Lessor gives written notice to Lessee of its intention
to terminate this Lease and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event, Lessor
shall have the immediate right to reenter and remove all
persons and property, and such property may be removed and
stored in a public warehouse or elsewhere at the cost of, and
for the account of Lessee, all without service of notice or
resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may
be occasioned thereby. In the event that Lessor shall elect to
so terminate this Lease, then Lessor shall be entitled to
recover from Lessee all damages incurred by Lessor by reason
of Lessee's default, including:
1. The equivalent of the amount of the Base Rent and
Additional Rent which would be payable under this
Lease by Lessee if this Lease were still in effect,
less
2. The net proceeds of any reletting affected pursuant
to the provisions of this Article XV after deducting
all of Lessor's reasonable expenses In connection
with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal
expenses, reasonable attorneys' fees, alteration
costs, and expenses of preparation of the Premises,
or any portion thereof, for such reletting.
Lessee shall pay such current damages in the amount determined
in accordance with the terms of this Article XV as set forth
in a written statement thereof from Lessor to Lessee
(hereinafter called the "Deficiency"), to Lessor in monthly
installments on the days on which the rent would have been
payable under this Lease if this Lease were still in effect,
and Lessor shall be entitled to recover from Lessee each
monthly installment of the Deficiency as the same shall arise.
B. At any time after an Event of Default, whether or not Lessor
shall have collected any monthly Deficiency as set forth in
this Article XV, Lessor shall be entitled to recover from
Lessee, and Lessee shall pay to Lessor, on demand, as and for
final damages for Lessee's default, an amount equal to the
then present worth of the aggregate of the Base Rent and
Additional Rent and any other charges to be paid by Lessee
hereunder for the unexpired portion of the term of this Lease
(assuming this Lease had not been so terminated). In the
computation of present worth, a discount at the rate of 6% per
annum shall be employed. If the Premises, or any portion
thereof, shall be relet by Lessor for the unexpired term of
this Lease, or any part thereof, before presentation of proof
of such damages to any court, commission or tribunal, the
amount of rent received upon such reletting shall be offset
against any monies claimed pursuant to this subsection.
Nothing herein contained or contained in this Article XV shall
limit or prejudice the right of Lessor to prove for and
obtain, as damages, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and
governing the
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proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to or less than the
amount of the difference referred to above.
C. Upon the occurrence of an Event of Default by Lessee, Lessor
shall also have the right, with or without terminating this
Lease, to reenter the Premises to remove all persons and
property from the Premises. Such property may be removed and
stored In a public warehouse or elsewhere at the cost of and
for the account of Lessee. if Lessor shall elect to reenter
the Premises, Lessor shall not be liable fair damages by
reason of such reentry.
D. If Lessor does not elect to terminate this Lease as provided
in this Article XV then Lessor may, from time to time, recover
all vent as it becomes due under this Lease. At any time
thereafter, Lessor may elect to terminate this Lease and to
recover damages to which Lessor is entitled.
E. In the event that Lessor should elect to terminate this Lease
and to relet the Premises, it may execute any new lease in its
own name. In the event that Lessor should not elect to
terminate this Lease, it may re-let the premises to a
substitute tenant. Lessee hereunder shall have no right or
authority whatsoever to collect any rent from such substitute
tenant. The proceeds of any such reletting shall be applied as
follows:
1. First, to the payment of any indebtedness other than
rent due hereunder from Lessee to Lessor, including
but not limited to storage charges air brokerage
commissions owing from Lessee to Lessor as the result
of such reletting;
2. Second, to the payment of the costs and expenses of
reletting the Premises, including alterations and
repair's which Lessor, in its sole discretion, deems
reasonably necessary and advisable and reasonable
attorneys' fees incurred by Lessor in connection with
the retaking of the Premises and such reletting;
3. Third, to the payment of rent and other charges due
and unpaid hereunder; and
4. Fourth, to the payment of future rent and other
damages payable by Lessee under this Lease-
Lessor shall not be deemed to have terminated this Lease and the
Lessee's right to possession of the leasehold or the liability of Lessee to pay
rent thereafter to accrue air its liability for damages under any of the
provisions hereof, unless Lessor shall have notified Lessee in writing that it
has so elected to terminate this Lease. Lessee covenants that the retaking of
possession by Lessor or the service by Lessor of any notice pursuant to the
applicable unlawful detainer statutes of the state in which the Complex is
located and Lessee's surrender of possession pursuant to such notice shall not
(unless Lessor elects to the contrary at the time of, or at any time subsequent
to the service of, such notice, and such election be evidenced by a written
notice to Lessee) be deemed to be a termination of this Lease or of Lessee's
right to possession thereof.
All rights, options and remedies of Lessor contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Lessor shall have the right to pursue any one or all
of such remedies or any other
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remedy or relief which may be provided by law whether or not stated in this
Lease. No waiver by Lessor of a breach of any of the terms, covenants or
conditions of this Lease by Lessee shall be construed or held to be a waiver of
any succeeding or preceding breach of the same or any other term, covenant or
condition therein contained. No waiver of any default of Lessee hereunder shall
be implied from any omission by Lessor to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect default other than as specified in said waiver. The consent or approval
by Lessor to or of any act by Lessee requiring Lessor's consent or approval
shall not be deemed to waive or vender unnecessary Lessor's consent to or
approval of any subsequent similar acts by Lessee.
Lessee shall reimburse Lessor, upon demand, for any costs or expenses
incurred by Lessor in connection with any breach or default of Lessee under this
Lease, whether or not suit is commenced or judgment entered. Such costs shall
include, but not be limited to: legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, if
any action for breach of or to enforce the provisions of this Lease is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered a reasonable sum as attorneys' fees and costs. Such
attorneys' fees and costs shall be paid by the losing party in such action.
Lessee shall also indemnify Lessor against and hold Lessor harmless from all
costs, expenses, demands and liability incurred by Lessor if Lessor becomes or
is made a party to any claim or action (a) instituted by Lessee, or by any third
party against Lessee (unless Lessor is adjudged to have been culpable, and
liable in regard to the basis for the claim); (b) for foreclosure of any lien
for labor or material furnished to or for Lessee; (c) otherwise arising out of
or resulting from any act or transaction of Lessee (unless Lessor is adjudged to
have been culpable, and liable in regard to the basis for the claim); or (d)
necessary to protect Lessor's interest under this Lease in a bankruptcy
proceeding or other proceeding under Title 11 of the United States Code, as
amended. Lessee shall defend Lessor against any such claim or action at Lessee's
expense with counsel reasonably acceptable to Lessor or, at Lessor's election,
Lessee shall reimburse Lessor for any legal fees or costs incurred by Lessor in
any such claim or action.
In addition, Lessee shall pay a portion (as determined by the next
sentence) of Lessor's reasonable attorneys' fees incurred in connection with
Lessee's request for Lessor's consent in connection with any act which Lessee
proposed to do and which requires Lessor's consent. For these purposes, Lessee
shall be responsible to pay the first $500.00 of fees incurred, and 50% of the
fees in excess of $500, for each requested consent.
Lessee hereby waives all claims by Lessor's lawful reentering and
taking possession of the Premises or removing and storing the property of Lessee
as permitted under this Lease and will save Lessor harmless from all losses,
costs or damages occasioned Lessor thereby. No such reentry shall be considered
or construed to be a forcible entry by Lessor.
Lessor shall use commercially reasonable efforts to mitigate its
reasonably foreseeable damages which result from Lessee's default hereunder-
ARTICLE XVI. SUBORDINATION: This Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed upon the
Premises, the Complex, the Property or any portion thereof by Lessor or its
successors or assigns, and to amendments, replacements, renewals and extensions
thereof. Lessee agrees at any time hereafter, upon demand to execute and deliver
any instruments, releases or other documents that may be
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reasonably required for the purpose of subjecting and subordinating this Lease,
as above provided, to the lien of any such mortgage, deed of trust or ground
lease. It is agreed, nevertheless, that as long as Lessee is not in default in
the payment of Base Rent, Additional Rent, and other charges to be paid by
Lessee under this Lease and the performance of all covenants, agreements and
conditions to be performed by Lessee under this Lease, then neither Lessee's
right to quiet enjoyment under this Lease, nor the right of Lessee to continue
to occupy the Premises and to conduct its business thereon, in accordance with
the Terms of this Lease as against any lessor, lessee, mortgagee, trustee or
their successors or assigns shall be interfered with.
The above subordination shall be effective without the necessity of the
execution and delivery of any further instruments on the part of Lessee to
effectuate such subordination. Notwithstanding anything hereinabove contained in
this Article XVI, in the event the holder of any mortgage, deed of trust or
ground lease shall at any time elect to have this Lease constitute a prior and
superior lien to its mortgage, deed of trust or ground lease, then, and in such
event, upon any such holder or landlord notifying Lessee to that effect in
writing, this Lease shall be deemed prior and superior in lien to such mortgage,
deed of trust or ground lease, whether this Lease is dated prior to or
subsequent to the date of such mortgage, deed of trust or ground lease, and
Lessee shall execute such attornment agreement as may be reasonably requested by
said holder.
Lessee agrees, provided the mortgagee, ground lessor or trust deed
holder under any mortgage, ground lease, deed of trust or other security
instrument shall have notified Lessee in writing (by the way of a notice of
assignment of lease or otherwise) of its address, that Lessee shall give such
mortgagee, ground lessor, trust deed holder or other secured party
("Mortgagee"), simultaneously with delivery of notice to Lessor, by registered
or certified mail, a copy of any such notice of default served upon Lessor.
Lessee further agrees that said Mortgagee shall have the right to cure any
alleged default during the same period that Lessor has to cure such default.
Lessor agrees that it shall obtain prior to the commencement of the
term of this Lease a subordination, attornment and non-disturbance agreement
from any Mortgagee holding any mortgage, ground lease, deed of trust or other
security instrument encumbering the Premises as of the date of this Lease.
ARTICLE XVII- MISCELLANEOUS:
A. Lessee represents that Lessee has dealt directly with and only with
CB Commercial Real Estate Group, Inc. (Kit Xxxxxxxxx) and Xxxxxxx & Xxxxxxxxx of
Arizona, Inc. (Xxxx Xxxxx/Xxx Xxxxxx) (the "Brokers"), as brokers, in connection
with this Lease and insofar as Lessee knows, no other broker negotiated or
participated In negotiations of this Lease or submitted or showed the Premises
or is entitled to any commission in connection therewith. Lessor shall be
responsible for paying the commission due the Brokers on account of this Lease
pursuant to a separate agreement between Lessor and the Brokers. Lessor and
Lessee agree that no broker shall be entitled to any commission with any renewal
of the term of this Lease or any expansion of the Premises.
B. Lessee agrees from time to time, upon not less than fifteen (15)
days prior written request by Lessor, to deliver to Lessor a statement in
writing certifying (i) this Lease is unmodified and in full force and effect (or
if there have been modifications that the Lease as modified is in full force and
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effect and stating the modifications); (ii) the dates to which the rent and
other charges have been paid; (iii) Lessor is not in default in any provision of
this Lease or, if in default, the nature thereof specified in detail; (iv) the
amount of monthly rental currently payable by Lessee; (v) the amount of any
prepaid rent, and (vi) such other matters as may be reasonably requested by
Lessor or any Mortgagee or prospective purchaser of the Complex.
If Lessee does not deliver such statement to Lessor within such fifteen
(15) day period, Lessor and any prospective purchaser or encumbrancer of the
Premises or the Complex may conclusively presume and rely upon the following
facts: (i) that the terms and provisions of this Lease have not been changed
except as otherwise represented by Lessor; (ii) that this Lease has not been
cancelled or terminated and is in full force and effect, except as otherwise
represented by Lessor; (iii) that the current amounts of the Base Rent and
security deposit are as represented by Lessor and that any charges made against
the security deposit are uncontested and valid; (iv) that there have been no
subleases or assignments of the Lease; (v) that not more than one month's Base
Rent or other charges have been paid in advance; and (vi) that Lessor is not in
default under the Lease. in such event, Lessee shall be stopped from denying the
truth of such facts.
C. All notices, demands and requests shall be in writing, and shall be
effectively served by forwarding such notice, demand or request by certified or
registered mail, postage prepaid, or by commercial overnight courier service
addressed as follows:
(i) If addressed to Lessee:
By forwarding such notice, demand or request by
certified or registered mail, postage prepaid,
addressed to Lessee at:
Syntellect Inc.
[address of Premises]
------------------------------
------------------------------
Attention: Xxxx Xxxxxxxx
With a copy to:
Syntellect Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx 000-X
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
or at such other address as Lessee may hereafter
designate by written notice to Lessor, in which case
said notice shall be effective at the time of mailing
such notice.
(ii) If addressed to Lessor:
By forwarding such notice, demand or
request by certified or registered
mail, postage prepaid, addressed to
Lessor at:
Opus Southwest Corporation
c/o Normandale Properties Southwest Corporation
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With copy to:
Opus Southwest Corporation
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
-00-
00
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
With copy to:
Opus U.S. Corporation
P. 0. Xxx 00000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Law Department
or at such other address as Lessor and Lessee may hereafter designate by written
notice. The effective date of all notices shall be the time of mailing such
notice or the date of delivery to a commercial overnight courier service.
D. All rights and remedies of Lessor under this Lease or that may be
provided by law may be executed by Lessor in its own name, individually, or in
the name of its agent, and all legal proceedings for the enforcement of any such
rights or remedies, including those set forth in Article XV, may be commenced
and prosecuted to final judgment and execution by Lessor in its own name or in
the name of its agent.
X. Xxxxxx covenants and agrees that Lessee, upon paying the Base Rent,
Additional Rent and other charges herein provided for and observing and keeping
the covenants, agreements and conditions of this Lease on its part to be kept
and performed, shall lawfully and quietly hold, occupy and enjoy the Premises
during the term of this Lease. Time is of the essence of this Lease and each and
every provision contained herein, and any extension of time granted by Lessor to
Lessee for the performance of any obligation of Lessee under this Lease shall
not be considered an extension of time for the performance of any subsequent
obligation of Lessee under this Lease.
F. The covenants and agreements herein contained shall bind and inure
to the benefit of Lessor and its successors and assigns and Lessee and its
permitted successors and assigns. All obligations of each party constituting
Lessee hereunder shall be the joint and several obligations of each such party.
G. If any term or provision of this Lease shall to any extent be held
invalid or unenforceable, the remaining terms and provisions of this Lease shall
not be affected thereby, but each term and provision of this Lease shall be
valid and enforced to the fullest extent permitted by law. This Lease shall be
construed and enforced in accordance with the laws of the state in which the
Premises are located.
H. Lessee covenants not to do or suffer any waste or damage or
disfigurement or injury to the Premises or the Complex and Lessee further
covenants that it will not vacate or abandon the Premises during the term of
this Lease.
I. The term "Lessor" as used in this Lease so far as covenants or
obligations on the part of Lessor are concerned shall be limited to mean and
include only the owner or owners of the Complex at the time in question, and in
the event Lessee is given notice of any transfer or transfers or conveyances the
then grantor shall be automatically freed and released from all personal
liability accruing from and after the date of such transfer or conveyance as
respects the performance of any covenant or obligation on the part of Lessor
contained in this Lease to be performed, it being intended hereby that the
covenants and obligations contained in this Lease on the part of Lessor shall be
binding on the Lessor, its successors and assigns, only during and in respect to
their respective successive periods of ownership.
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In the event of a sale or conveyance by Lessor of the Complex or any
part of the Complex, the same shall operate to release Lessor from any future
liability upon any of the covenants or conditions herein contained and in such
event Lessee agrees to look solely to the responsibility of the successor in
interest of Lessor in and to this Lease, who by accepting title to the Complex,
shall be deemed to have assumed the obligations of "Lessor" hereunder. This
Lease shall not be affected by any such sale or conveyance, and Lessee agrees to
attorn to the purchaser or grantee, which purchaser or grantee shall be
personally obligated on this Lease only so long as it is the owner of Lessor's
interest in and to this Lease.
J. The marginal or topical headings of the several Articles are for
convenience only and do not define, limit or construe the contents of said
Articles.
K. All preliminary negotiations are merged into and incorporated in
this Lease, except for written collateral agreements executed contemporaneously
herewith.
L. This Lease can only be modified or amended by an agreement in
writing signed by the parties hereto. No receipt of money by Lessor from Lessee
or any other person after termination of this Lease or after the service of any
notice or after the commencement of any suit, or after final judgment for
possession of the Premises shall reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit, or imply consent for any action
for which Lessor's consent is required, unless specifically agreed to in writing
by Lessor. Any amounts received by Lessor may be allocated to any specific
amounts due from Lessee to Lessor as Lessor determines.
X. Xxxxxx shall have the right to close any portion of the building
area or land area to the extent as may, in Lessor's reasonable opinion, be
necessary to prevent a dedication thereof or the accrual of any rights to any
person or the public therein. Lessor shall at all times have full control,
management and direction of the Complex, subject to the rights of Lessee in the
Premises, the parking areas and access thereto, and Lessor reserves the right at
any time and from time to time to reduce, increase, enclose or otherwise change
the size, number and location of buildings, layout and nature of the Complex and
the other tenancies, premises and buildings included in the Complex, to
construct additional buildings and additions to any building, and to create
additional rentable areas through use and/or enclosure of common areas, or
otherwise, and to place signs on the Complex, and to change the name, address,
number or designation by which the Complex is commonly known. No implied
easements are granted by this Lease. Lessor shall in no event be liable for any
lack of security in respect to the Complex.
N. Upon forty-eight (48) hours notice, Lessee shall permit Lessor (or
its designees) to erect, use, maintain, replace and repair pipes, cables,
conduits, plumbing, vents, and telephone, electric and other wires or other
items, in, to and through the Premises, as and to the extent that Lessor may now
or hereafter deem necessary or appropriate for the proper operation and
maintenance of the Complex.
O. Employees or agents of Lessor have no authority to make or agree to
make a lease or other agreement or undertaking in connection herewith. The
submission of this document for examination does not constitute an offer to
lease, or a reservation of, or option for, the Premises. This document becomes
effective and binding only upon the execution and delivery hereof by the proper
officers of Lessor and by Lessee. Lessee confirms that Lessor and its agents
have made no representations or promises with respect to the Premises or the
making of or entry into this
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27
Lease except as in this Lease expressly set forth, and Lessee agrees that no
claim or liability shall be asserted by Lessee against Lessor for, and Lessor
shall not be liable by reason of, breach of any representations or promises not
expressly stated in this Lease. This Lease, except for the Complex Rules and
Regulations, in respect to which subparagraph P of this Article shall prevail,
can be modified or altered only by agreement in writing between Lessor and
Lessee, and no act or omission of any employee or agent of Lessor shall alter,
change or modify any of the provisions hereof.
P. Lessee shall perform, observe and comply with the Complex Rules and
Regulations of the Complex as set forth on Exhibit B attached hereto and by this
reference incorporated herein, with respect to the safety, care and cleanliness
of the Premises and the Complex, and the preservation of good order thereon,
and, upon written notice thereof to Lessee, Lessee shall perform, observe and
comply with any changes, amendments or additions thereto as from time to time
shall be established and deemed advisable by Lessor for tenants of the Complex.
Lessor shall not be liable to Lessee for any failure of any other tenant or
tenants of the Complex to comply with such Complex Rules and Regulations.
Q. Lessee shall not use the Premises or permit anything to be done in
or about the Premises which will, in any way, conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Lessee shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules and
regulations now in force or which may hereafter be in force, and with the
requirements of any fire insurance underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises. Lessee shall use the Premises and comply with any recorded
covenants, conditions, and restrictions affecting the Premises and the Complex
as of the commencement of the Lease or which are recorded during the lease term.
R. Lessee shall at all times during the term of this lease and in all
respects comply with all federal, state and local laws, ordinances and
regulations ("Hazardous Materials Laws") relating to the industrial hygiene,
environmental protection or the use, analysis, generation, manufacture, storage,
presence, disposal or transportation of any oil, petroleum products, flammable
explosives, asbestos, urea formaldehyde, polychlorinated biphenyls, radioactive
materials or waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including without limitation any "hazardous
substances", "hazardous wastes", "hazardous materials" or "toxic substances"
under any such laws, ordinances or regulations (collectively, "Hazardous
Materials").
Lessee shall at its own expense procure, maintain in effect and comply
with all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Lessee's use of the Premises, including,
without limitation, discharge of (appropriately treated) materials or waste into
or through any sanitary sewer system serving the Premises. Except as discharged
into the sanitary sewer in conformity with all applicable Hazardous Materials
Laws, Lessee shall cause any and all Hazardous Materials brought or permitted on
the Premises by Lessee to be removed from the Premises and transported solely by
duly licensed haulers to duly licensed facilities for final disposal of such
Hazardous Materials and wastes. Lessee shall in all respects handle, treat, deal
with and manage any and all Hazardous Materials brought or permitted on the
Premises by Lessee in conformity with all applicable Hazardous Materials Laws
and prudent industry practices regarding the management of such
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Hazardous Materials. All reporting obligations relating to such Hazardous
Materials to the extent imposed upon Lessee by Hazardous Materials Laws are
solely the responsibility of Lessee. Upon expiration or earlier termination of
this lease, Lessee shall cause all Hazardous Materials (to the extent such
Hazardous Materials are generated, stored, released or disposed of during the
term of this lease by Lessee) to be removed from the Premises and transported
for use, storage or disposal in accordance and in compliance with all applicable
Hazardous Materials Laws. Lessee shall not take any remedial action in response
to the presence of any Hazardous Materials in, on, about or under the Premises
or in any improvements situated on the Complex, nor enter into any settlement
agreement, consent, decree or other compromise in respect to any claims relating
to or in any way connected with the Premises or the Complex without first
notifying Lessor of Lessee's intention to do so and affording Lessor ample
opportunity to appear, intervene or otherwise appropriately assert and protect
Lessor's interest with respect thereto. In addition, at Lessor's request, at the
expiration of the term of this lease, Lessee shall remove all tanks or fixtures
which were placed on the Premises during the term of this lease by or for Lessee
and which contain, have contained or are contaminated with, Hazardous Materials.
Lessee shall immediately notify Lessor in writing of (a) any
enforcement, clean-up, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(b) any claim made or threatened by any person against Lessor, or the Premises,
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous Materials; and (c) any
reports made to any environmental agency arising out of or in connection with
any Hazardous Materials in, on or about the Premises or with respect to any
Hazardous Materials removed by Lessee from the Premises, including, any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Lessee shall also provide to Lessor, as promptly as possible, and in
any event within five business days after Lessee first receives or sends the
same, copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises or Lessee's use thereof. Upon
written request of Lessor (to enable Lessor to defend itself from any claim or
charge related to any Hazardous Materials Law), Lessee shall promptly deliver to
Lessor notices of hazardous waste manifests reflecting the legal and proper
disposal of all such Hazardous Materials removed or to be removed from the
Premises.
To Lessor's knowledge, Lessor is not aware of any Hazardous Materials
which exist or are located on or in the Premises, except as may be disclosed in
that certain Environmental Site Assessment prepared by Geotechnical and
Environmental Consultants, Inc., dated July 14, 1995. Further, Lessor represents
to Lessee that: (x) to the best of its knowledge, Lessor has not caused the
generation, storage or release of Hazardous Materials upon the Premises, except
in accordance with Hazardous Materials Laws; and (y) during the term of this
Lease, Lessor shall not knowingly cause the generation, storage or release of
Hazardous Materials upon the Premises, except in accordance with Hazardous
Materials Laws. In the event (a) Hazardous Materials are discovered upon the
Premises, (b) Lessor has been given written notice of the discovery of such
Hazardous Materials, and (c) pursuant to the provisions of the preceding
paragraphs of this Article XVII.R., neither Lessor nor Lessee is obligated to
pay the cost of compliance with Hazardous Materials Laws, then and in that event
Lessor may voluntarily but shall not be obligated to agree with Lessee to take
all action necessary to bring the Premises into compliance with Hazardous
Materials Laws at Lessor's sole cost. In the event Lessor fails to notify Lessee
in writing within 30 days of the notice to Lessor of the discovery of such
Hazardous Materials that Lessor
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29
intends to voluntarily take such action as is necessary to bring the Premises
into compliance with Hazardous Materials Laws, then Lessee may (i) bring the
Premises into compliance with Hazardous Materials Laws at Lessee's sole cost or
(ii) provided such Hazardous Materials endanger persons or property in, on or
about the Premises or interfere with Lessee's use of the Premises, terminate
this lease on a date not less than ninety days following written notice of such
intent to terminate.
Lessor shall indemnify, defend (with counsel reasonably acceptable to
Lessee), protect and hold Lessee and each of Lessee's officers, directors,
partners, employees, agents, attorneys, successors and assigns free and harmless
from and against any and all claims, liabilities, damages, costs, penalties,
forfeitures, losses or expenses (including attorneys' fees) for death or injury
to any person or damage to any property whatsoever (including water tables and
atmosphere) arising or resulting in whole or in part, directly or indirectly,
from the presence or discharge of Hazardous Materials, in, on, under, upon or
from the Premises, including materials used during construction of the Premises
and the Complex or from the transportation or disposal of Hazardous Materials to
or from the Premises to the extent caused by Lessor. Lessor's obligations
hereunder shall include, without limitation, and whether foreseeable, all cost
of any required or necessary repairs, clean-up or detoxification or
decontamination of the Premises, and the presence and implementation of any
closure, remedial action or other required plans in connection therewith, and
shall survive the expiration of or early termination of the term of this lease.
For purposes of the indemnity provided herein, any acts or omissions of Lessor
or its employees, agents, customers, assignees, contractors or sub-contractors
(whether or not they are negligent, intentional, willful or unlawful) shall be
strictly attributable to Lessor.
Lessee shall indemnify, defend (with counsel reasonably acceptable to
Lessor), protect and hold Lessor and each of Lessor's officers, directors,
partners, employees, agents, attorneys, successors and assigns free and harmless
from and against any and all claims, liabilities, damages, costs, penalties,
forfeitures, losses or expenses (including attorneys' fees) for death or injury
to any person or damage to any property whatsoever (including water tables and
atmosphere) arising or resulting in whole or in part, directly or indirectly,
from the presence or discharge of Hazardous Materials, in, on, under, upon or
from the Premises or from the transportation or disposal of Hazardous Materials
to or from the Premises to the extent caused by Lessee. Lessee's obligations
hereunder shall include, without limitation, and whether foreseeable, all cost
of any required or necessary repairs, clean-up or detoxification or
decontamination of the Premises, and the presence and implementation of any
closure, remedial action or other required plans in connection therewith, and
shall survive the expiration of or early termination of the term of this lease.
For purposes of the indemnity provided herein, any acts or omissions of Lessee
or its employees, agents, customers, sub-lessees, assignees, contractors or
sub-contractors (whether or not they are negligent, intentional, willful or
unlawful) shall be strictly attributable to Lessee.
For purposes of the covenants and agreements contained in this Article
XVII.R., inclusive, any acts or omissions of Lessee, its employees, agents,
customers, sublessees, assignees, contractors or sub-contractors (except Opus
Southwest Corporation and its contractors and subcontractors) shall be strictly
attributable to Lessee; any acts or omissions of Lessor, its employees, agents,
customers, assignees, contractors or sub-contractors shall be strictly
attributable to Lessor.
-29-
30
S. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including, without
limitation, all payment obligations with respect to Operating Expenses and Real
Estate Taxes and all obligations concerning the condition of the Premises.
T. Lessee agrees to look solely to Lessor's interest in the Complex for
the recovery of any judgment from Lessor, it being agreed that Lessor, or if
Lessor is a partnership, its partners whether general or limited, or if Lessor
is a corporation, its directors, officers or shareholders, shall never be
personally liable for any such judgment.
U. Lessee shall furnish to Lessor promptly upon demand, a corporate
resolution, proof of due authorization of partners, or other appropriate
documentation reasonably requested by Lessor evidencing the due authorization of
Lessee to enter into this Lease. Lessor shall furnish to Lessee promptly upon
demand, a copy of Lessor's title policy or a title commitment which indicates
that Lessor owns insurable title to the Complex.
V. This Lease shall not be deemed or construed to create or establish
any relationship or partnership or joint venture or similar relationship or
arrangement between Lessor and Lessee hereunder.
W. Lessee shall in all respects comply with the Americans With
Disabilities Act Of 1990 (42 U.S.C. Section 12101 et seq.), as the same may be
amended from time to time (as amended, the "ADA"), and Lessee agrees to
indemnify and save Lessor and its managing agent harmless against and from any
and all claims, loss, damage and expense by or on behalf of any person or
persons, firm or firms, corporation or corporations, arising from any failure or
alleged failure of Lessee to comply with the ADA or arising from any claim made
under the ADA in connection with the Premises, and from and against all costs,
reasonable attorneys' fees, expenses and liabilities incurred in or about any
such claim or action or proceeding brought thereon; in case any action or
proceeding be brought against Lessor or its managing agent by reason of any such
claim, Lessee, upon notice from Lessor, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Lessor. Lessor
represents and warrants that as of the commencement of the term of the Lease,
the Premises shall be in compliance with the ADA, as the same is existing,
interpreted and enforced as of such date.
X. Lessor shall in all respects comply with the ADA, and Lessor agrees
to indemnify and save Lessee and its managing agent harmless against and from
any and all claims, loss, damage and expense by or on behalf of any person or
persons, firm or firms, corporation or corporations, arising from any failure or
alleged failure of Lessor to comply with the ADA or arising from any claim made
under the ADA in connection with the Complex (exclusive of the Premises or any
other leasable area within the Complex), and from and against all costs,
reasonable attorneys' fees, expenses and liabilities incurred in or about any
such claim or action or proceeding brought thereon; in case any action or
proceeding be brought against Lessee by reason of any such claim, Lessor, upon
notice from Lessee, covenants to resist or
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31
defend such action or proceeding by counsel reasonably satisfactory to Lessee.
Y. Lessee shall not place, or permit to be placed or maintained, on any
exterior door, wall or window of the Premises any sign, awning or canopy, or
advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on the glass of any window or
door, or that can be seen through the glass, of the Premises except as
specifically approved in writing by Lessor. Lessee further agrees to maintain
such sign, awning, canopy, decoration, lettering, advertising matter or thing as
may be approved, in good condition and repair at all times. Lessee agrees at
Lessee's sole cost, that any Lessee sign will be maintained in strict
conformance with Lessor's sign criteria, if any, as to design, material, color,
location, size, letter style, and method of installation. Lessor shall not
unreasonably withhold its consent to the placement of Lessee's sign on the
southern portion of the east face of the building in which the Premises are
located.
Z. Lessee acknowledges that this Lease is contingent on Lessor
acquiring the fee simple title to substantially all the land depicted on Exhibit
"A", which land is necessary to construct the Office Complex. If Lessor has not
acquired such land on or before JULY 31, 1996, then this Lease shall
automatically terminate and neither Lessor nor Lessee shall have any rights or
obligations thereunder.
ARTICLE XVIII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible, Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
ten (10) days after delivery to Lessee by Lessor of a statement in writing
setting forth the amount of such taxes applicable to Lessee's personal property.
ARTICLE XIX. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein;
A. Site Plan - Exhibit A.
B. Complex Rules and Regulations - Exhibit B.
C. Rider to Lease - Exhibit C.
D. Space Plan/Building Elevation - Exhibit D.
E. Project Specifications- Exhibit E.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
LESSOR: LESSEE:
OPUS SOUTHWEST CORPORATION, SYNTELLECT INC., a Delaware
a Minnesota corporation corporation
By By /s/ XXXXX X. XXXXXXXX
---------------------------- -----------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Its President Its Vice President -
Operations
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32
EXHIBIT A*
*conceptual and subject to change
[MAP OF BUILDING SITE]
SYNTELLECT
I-17 & XXXXXXXXX
PHOENIX, ARIZONA
[OPUS LOGO]
----------------------------------------------------------------------
[MAP LEGEND]
SITE DATA
TOTAL SITE AREA : 786,801.00 SQ. FT.
ZONING : C-2 MR
TOTAL BLDG. AREA : 122,226 SQ. FT.
% BLDG. COVERAGE : 15.50%
PARKING REQUIRED
(1:300) : 408 SPS.
PARKING PROVIDED : 669 SPS.
(1:183)
------------------------------------------------------------------------------
VICINITY MAP
DATE: 6-26-96 JOB: 96012
[BDG LOGO] 0000 X. 00xx Xx. Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Design Group 000-000-0000 Phone
000-000-0000 Fax
Architects & Planners
33
EXHIBIT A-1*
*conceptual and subject to change
[MAP OF FLOOR PLAN]
SYNTELLECT
I-17 & XXXXXXXXX
PHOENIX, ARIZONA
DATE: 6-26-96 JOB: 96012
------------------------------------------------------------------------------
[OPUS LOGO]
[BDG LOGO] 0000 X. 00xx Xx. Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Design Group 000-000-0000 Phone
000-000-0000 Fax
Architects & Planners
34
EXHIBIT B
COMPLEX RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement
installed on or in any part of the Premises and visible from the exterior of the
Complex, or visible from the exterior of the Premises, shall be installed at
Lessee's sole cost and expense, and in such manner, character and style as
Lessor may approve in writing. In the event of a violation of the foregoing by
Lessee, Lessor may remove the same without any liability and may charge the
expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside
walls of the Complex. No curtains, blinds, shades or screens visible from the
exterior of the Complex or visible from the exterior of the Premises shall be
attached to or hung in, or used in connection with, any window or door of the
Premises without the prior written consent of Lessor. Such curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color,
and attached in the manner, approved by Lessor.
3. Lessee and its servants, employees, customers, invitees and
guests shall not obstruct sidewalks, entrances, passages, corridors, vestibules,
halls, elevators or stairways in and about the Complex which are used in common
with other tenants and their servants, employees, customers, guests and invitees
and which are not a part of the Premises of Lessee. Lessee shall not place
objects against glass partitions or doors or windows which would be unsightly
from the Complex corridors or from the exterior of the Complex and will promptly
remove any such objects upon notice from Lessor.
4. Lessee shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances, and Lessee shall not create
obnoxious odors (including cigarette, cigar and pipe smoke), any of which may be
offensive to the other tenants and occupants of the Complex, or that would
interfere with the operation of any device, equipment, radio, television
broadcasting or reception from or within the Complex or elsewhere and shall not
place or install any projections, antennas, aerials or similar devices inside or
outside of the Premises or on the Complex.
5. Lessee shall not waste electricity, water or air conditioning
and shall cooperate fully with Lessor to insure the most effective operation of
the Complex's heating and air conditioning systems and shall refrain from
attempting to adjust any controls other than unlocked room thermostats, if any,
installed for Lessee's use. Lessee shall keep corridor doors closed.
6. Lessee assumes full responsibility for protecting its space
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
7. No person or contractor not employed by Lessor shall be used
to perform janitorial work, window washing, cleaning, maintenance, repair or
similar work in the Premises without the written consent of Lessor.
8. In no event shall Lessee bring into the Complex inflammables,
such as gasoline, kerosene, naphtha and benzine, or explosives or any other
article of intrinsically dangerous nature. If, by reason of the failure of
Lessee to comply with the provisions of this subparagraph, any insurance premium
for
Exhibit B
(Page 1 of 4)
35
all or any part of the Complex shall at any time be increased, Lessee shall make
immediate payment of the whole of the increased insurance premium, without
waiver of any of Lessor's other rights at law or in equity for Lessee's breach
of this Lease.
9. Lessee shall comply with all applicable federal, state and
municipal laws, ordinances and regulations and building rules and shall not
directly or indirectly make any use of the Premises which may be prohibited by
any of the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
10. Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation of
the Complex or its desirability as a warehouse complex for warehouse use and
other uses, and upon written notice from Lessor, Lessee shall refrain from or
discontinue such advertising.
11. The Premises shall not be used for cooking, lodging, sleeping
or for any immoral or illegal purpose. The foregoing prohibition on cooking
shall not preclude the use of small kitchen appliances as typically found in
projects comparable to the Complex.
12. Lessee and Lessee's servants, employees, agents, visitors and
licensees shall observe faithfully and comply with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Lessor or Lessor's agent may from time to time adopt. Reasonable notice of any
additional rules and regulations shall be given in such manner as Lessor may
reasonably elect.
13. Unless expressly permitted by Lessor, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by Lessor shall be made for any door. If more than two keys for
one lock are desired by Lessee, Lessor may provide the same upon payment by
Lessee. Upon termination of this Lease or of the Lessee's possession, Lessee
shall surrender all keys of the Premises and shall explain to Lessor all
combination locks on safes, cabinets and vaults.
14. Any carpeting cemented down by Lessee shall be installed with
a releasable adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
15. The water and wash closets, drinking fountains and other
plumbing fixtures shall not be used for any purpose other than those for which
they were constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the lessee who, or whose servants, employees, agents,
visitors or licensees, shall have caused the same. No person shall waste water
by interfering or tampering with the faucets or otherwise.
16. No electric circuit for any purpose shall be brought into the
leased premises without Lessor's written permission specifying the manner in
which same may be done.
17. No motorized vehicle, and no dog or other animal shall be
allowed in offices, halls, corridors or elsewhere in the Complex.
l8. Lessee shall not throw anything out of the door or windows
or down any passageways or elevator shafts.
Exhibit B
(Page 2 of 4)
36
19. All loading, unloading, receiving or delivery of goods,
supplies or disposal of garbage or refuse shall be made only through entryways
and freight elevator provided for such purposes and indicated by Lessor. Lessee
shall be responsible for any damage to the Complex or the property of its
employees or others and injuries sustained by any person whomsoever resulting
from the use or moving of such articles in or out of the leased premises, and
shall make all repairs and improvements required by Lessor or governmental
authorities in connection with the use of such articles.
20. All safes, equipment or other heavy articles shall be carried
in or out of the Premises only in a manner which will not interfere with or
cause damage to the Premises or the Complex, or to the other tenants or
occupants of the Complex. Lessee shall be responsible for any damage to the
Complex or the property of its employees or others and injuries sustained by any
person whomsoever resulting from the use or moving of such articles in or out of
the leased premises, and shall make all repairs and improvements required by
Lessor or governmental authorities in connection with the use or moving of such
articles.
21. Canvassing, soliciting and peddling In the Complex is
prohibited and all tenants of the Complex shall cooperate to prevent the same.
22. Vending machines shall not be installed without permission of
Lessor; provided, however, Lessor consents to the installation of vending
machines in the pantry or kitchen area of the Premises for the dispensing of
soda and other similar drinks to Lessee's employees and guests.
23. Canvassing, soliciting and peddling in the Complex is
prohibited and each Lessee shall cooperate to prevent the same.
24. Wherever in these Complex Rules and Regulations the word
"Lessee" occurs, it is understood and agreed that it shall mean Lessee and
Lessee's associates, agents, clerks, servants and visitors. Wherever the word
"Lessor" occurs, it is understood and agreed that it shall mean Lessor and
Lessor's assigns, agents, clerks, servants and visitors.
25. Upon twenty-four (24) hours notice, Lessor shall have the
right to enter upon the leased premises at all reasonable hours for the purpose
of inspecting the same.
26. Upon twenty-four (24) hours' notice, Lessor shall have the
right to enter the leased premises at hours convenient to Lessee for the purpose
of exhibiting the same to prospective tenants within the sixty (60) day period
prior to the expiration of this Lease, and Lessor may place signs advertising
the leased premises for rent on the windows and doors of said Premises at any
time within said sixty (60) day period.
27. Lessee and its servants, employees, customers, invitees and
guests shall, when using the common parking facilities, if any, in and around
the Complex, observe and obey all signs regarding fire lanes and no parking
zones, and when parking always park between the designated lines. Lessor
reserves the right to tow away, at the expense of the owner, any vehicle which
is improperly parked or parked in a no parking zone. All vehicles shall be
parked at the sole risk of the owner, and Lessor assumes no responsibility for
any damage to or loss of vehicles. No vehicles shall be parked overnight.
28. In case of invasion, mob, riot, public excitement, or other
commotion, Lessor reserves the right to prevent access to the Complex during the
continuance of the same by closing the doors or otherwise, for the safety of the
tenants or the
Exhibit B
(Page 3 of 4)
37
protection of the Complex and the property therein. Lessor shall in no case be
liable for damages for any error or other action taken with regard to the
admission to or exclusion from the Complex of any person.
29. All entrance doors to the Premises shall be locked when the
Premises are not in use. All corridor doors shall also be closed during times
when the air conditioning equipment in the Complex is operating so as not to
dissipate the effectiveness of the system or place an overload thereon.
30. Lessor reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Rules and Regulations
when it is deemed necessary, desirable, or proper, in Lessor's judgment, for its
beat interest or for the best interest of the tenants of the Complex.
31. Smoking shall be permitted only in the smoking areas located
outside of the building, as designated and redesignated from time to time by
Lessor, and Lessee and its servants, employees, customers, invitees and guests
shall not smoke anywhere at the Complex (other than the smoking areas designated
by Lessor), including without limitation Lessee's Premises and the sidewalks,
entrances, passages, corridors, halls, elevators and stairways of the Complex.
Initials:
Lessor
----------------------
Lessee /s/ XXXXX X. XXXXXXXX
----------------------
6/28/96
Exhibit B
(Page 4 of 4)
38
EXHIBIT C
RIDER TO LEASE
ARTICLE XX. SECURITY DEPOSIT: Within thirty (30) days of the date hereof, Lessee
shall deposit with Lessor in cash the sum of Nine Hundred Thirty-Four Thousand,
Two Hundred and no/100th Dollars ($934,200.00), the receipt of which is hereby
acknowledged, as and for a security deposit for the full and faithful
performance by Lessee of each and every terms, covenant and condition of this
Lease. Upon determination of the total rentable square footage of the Premises,
the amount of security deposit shall thereupon be adjusted (and the parties
shall immediately make adjusting payments, as appropriate), so that the security
deposit shall equal the Base Rent for eighteen (18) months, without regard to
any rights of abatement. At Lessee's election, said security deposit may be
provided in the form of an unconditional, irrevocable letter of credit, drawable
by Lessor merely upon presentation, issued by a federally insured banking
institution reasonably acceptable to Lessor and having an expiration date (at
all times during the Lease term) of not less than thirty (30) days (i.e. so that
it is therefore required hereby, to be replaced or renewed from time to time,
during the Lease term). In the event that an Event of Default exists, Lessor may
use, apply or retain the whole or any part of the security so deposited for the
payment of any such rentals in default or for any other sum which Lessor may
expend or be required to expend by reason of Lessee's default, including, but
not limited to, any damages or deficiency in the reletting of the Premises,
whether such damages or deficiency may accrue before or after reentry by Lessor.
Lessee shall not be entitled to any interest on the security deposit. It is
expressly understood and agreed that such deposit is not an advance rental
deposit or a measure of Lessor's damages in case of Lessee's default. Upon
application of any part of the deposit by Lessor as provided herein, Lessee
shall pay to Lessor on demand the amount so applied in order to restore the
security deposit to its original amount. Any application of the deposit by
Lessor shall not be deemed to have cured Lessee's default by reason of which the
application is made.
In the event of a bona fide sale of the Complex of which the Premises
are a part, Lessor shall have the right to transfer the security deposit to its
vendee for the benefit of Lessee and thereafter Lessor shall be released of all
liability for the return of such deposit and Lessee agrees to look to said
vendee for the return of its security deposit. It is agreed that this provision
shall apply to every transfer or assignment made of the security deposit to any
new landlord.
This security deposit shall not be assigned or encumbered by Lessee. It
is expressly understood that the reentry of the Premises by Lessor for any
default on the part of Lessee prior to the expiration of the term of this Lease
shall not be deemed a termination of this Lease so as to entitle Lessee to
recover the security deposit, and the security deposit shall be retained and
remain in the possession of Lessor until the end of the term of this Lease.
Actions by Lessor against Lessee for breach of this Lease shall in no
way be limited or restricted by the amount of the security deposit and resort to
such deposit shall not waive any other rights or constitute and election of
remedies which Lessor may have.
Exhibit C
Page 1 of 8
39
The requirement for Lessor to provide the security deposit shall be
suspended upon Lessee's demonstration to Lessor's reasonable satisfaction that
Lessee has a "Tangible Net Worth" of not less than $35,000,000.00, pursuant to
Lessee's then most recent annual financial statements, prepared in accordance
with generally accepted accounting principles ("GAAP") and audited and
certified by a nationally recognized public accounting firm in accordance with
generally accepted auditing standards. The security deposit requirement shall be
reinstated subsequently, in the event Lessee's "Tangible Net Worth" is less than
$35,000,000.00, based upon any financial statement prepared by Lessee and/or its
accounts. Throughout the term of this Lease, Lessee shall cause copies of all
its press releases and filings with the Securities and Exchange Commission (the
"SEC") (including without limitation all Form 1OK's, Form 10Q's, Form 8K's and
proxy statements), or if Lessee is no longer required to file statements with
the SEC, then copies of its annual and quarterly financial statements, each in a
timely fashion after issuance or filing. For purposes hereof, "Tangible Net
Worth", shall mean equity of Lessee and its subsidiaries on a consolidated basis
determined in accordance with GAAP, minus the net book value of all intangible
assets including, without limitation, good will, trademarks, trade names,
service marks, brand names, copyrights, patents and unamortized debt discount
and expense, organizational expenses and the excess of the equity in any
subsidiary over the cost of the investment in such subsidiary.
ARTICLE XXI. LOCK BOX: Lessor may from time to time designate a lock box
collection agent for the collection of rents or other charges due Lessor. In
such event, the payment made by Lessee to the lock box shall be the date of
receipt by the lock box collection agent of such payment (or the date of
collection of any such sum if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment); however, for the purpose of
this Lease, no such payment or collection shall be deemed a waiver by Lessor of
any breach by Lessee of any term, covenant or condition of this Lease nor a
waiver of any of Lessor's rights or remedies and any payment of amounts other
than that deemed due and proper by Lessor shall not prejudice Lessor in any
manner nor constitute a waiver and Lessor shall hereby be authorized to retain
the proceeds of any payments by Lessee, whether restrictively endorsed or
otherwise, and apply same to the amounts due and payable from Lessee under this
Lease without waiver.
ARTICLE XXII. PRIOR PROPOSALS: All prior proposals in respect to this Lease are
hereby terminated.
ARTICLE XXIII. TENANT IMPROVEMENTS: Lessor is providing the existing base
building and a tenant improvement allowance of approximately $990,000.00 (to be
adjusted to equal $16.50 per rentable square foot determined for the Premises,
as adjusted, the "ITT Allowance") for the tenant improvements to be constructed
by Lessor at the Premises, which tenant improvements are depicted on the space
plan described on the outline specifications attached hereto and incorporated
herein as Exhibit D (the "Tenant Improvements"). The Tenant Improvements will be
installed by Lessor and paid for by Lessee subject to Lessor providing an
allowance in the aforesaid amount. In the event Lessee desires and Lessor
approves any tenant improvements in addition to the Tenant Improvements, then,
at Lessee's election (to be determined within five (5) days of Lessor's demand
thereof) either: (i) Lessee shall pay Lessor therefor in cash upon substantial
completion thereof; or (ii) the Base Rent otherwise payable annually by Lessee
shall be increased by $120.00 for each $1,000.00 incremental increase in the
cost of Tenant Improvements. Option (ii), above, shall only be allowed in regard
to the first (approximately) $180,000.00 (to be adjusted
Exhibit C
Page 2 of 8
40
to equal $3.00 per rentable square foot determined for the Premises) in Tenant
Improvement costs after the amount of the TI Allowance. Lessee shall have the
responsibility to select a layout and to reach agreement with Lessor as to
quality and type on or before September 15, 1996. Anything herein to the
contrary notwithstanding, Lessee shall be responsible for all of Lessor's
increased costs or damages (including lost rent) arising out of any failure of
Lessee to select its layout and reach agreement with Lessor as above required on
or before September 15, 1996. Lessor shall be entitled to include as a Tenant
Improvement cost a general contractor's fee, contingency and general conditions
amounts as reasonably charged for comparable projects.
On or before September 15, 1996. Lessee shall have approved a space
plan acceptable to Lessor for the Tenant Improvements, which space plan shall
have received final approval of Lessee, shall be adequate for preparation by
Lessor of working drawings for construction of such Tenant Improvements, shall
show in reasonable detail the design and appearance of the tenant finishing
materials to be used in the construction thereof (and such other detail or
description as may be necessary to adequately outline the scope of the Tenant
Improvements) and shall be in substantial conformance with the Project
Specification, attached as Exhibit E. Lessee shall be responsible for Lessor's
costs (including lost rent) arising out of delays in completing the Tenant
Improvements caused by Lessee, whether by Lessee's failure to approve the
aforesaid space plan on or before September 15, 1996 or to respond to within a
reasonable time to Lessor's inquiries or requests in connection with the Tenant
Improvements or otherwise. Lessee also agrees to refrain from ordering long lead
time items which would delay substantial completion of the Tenant Improvements.
Lessor agrees to cause the Tenant Improvements to be constructed in
accordance with the public accommodations provisions of Title III of the
Americans With Disabilities Act of 1990 (42 U.S.C. Section 12-101 et seq.), as
presently interpreted and enforced as of the date of this Lease by the
governmental bodies having jurisdiction thereof.
Lessor shall also, at its sole cost and expense, install along the
perimeter of the shell building in which the Premises is located additional
glass as depicted in the building elevation contained in Exhibit D attached
hereto.
Lessor shall also provide an allowance of approximately $90,000.00
(subject to adjustment at the rate of $1.50 per rentable square foot for the
Premises) to reimburse Lessee for its actual, out-of-pocket costs incurred in
engaging a space planning consultant for design and review of the preliminary
working drawings for the Tenant Improvements to be constructed by Lessor. Said
allowance shall be paid upon the Commencement Date, subject to the submission by
Lessee of reasonable evidence of such costs so incurred.
ARTICLE XXIV. PARKING: Lessor shall construct not less than five (5) standard,
and, in accordance with applicable building codes, compact vehicular parking
spaces on the Property for every 1,000 square feet of rentable area in the
Complex. Lessee shall be entitled to use, on a non-exclusive basis, up to five
(5) of such spaces for every 1,000 rentable square feet determined for the
Premises. Neither party shall unreasonably withhold its consent to the
identification of parking spaces required by law (e.g., handicapped spaces,
carpool spaces, etc.),
ARTICLE XXV. OPTION TO EXTEND: Lessee shall have the right, subject to the
provisions hereinafter provided, to extend the term of this Lease for one (1)
period of five (5) years on the terms and provisions of this Article. Such
five-year renewal
Exhibit C
Page 3 of 8
41
period is sometimes herein referred to as the "Renewal Term". The conditions of
such Renewal Term shall be as follows:
(a) That this Lease is in full force and effect and Lessee is not
in default in the performance of any of the terms, covenants
and conditions herein contained, in respect to which notice of
default has been given hereunder which has not been or is not
being remedied in the time limited in this Lease, at the time
of exercise of the right of renewal, but Lessor shall have the
right at its sole discretion to waive the non-default
conditions herein.
(b) That such Renewal Term shall be on the same terms, covenants
and conditions as in this Lease; provided, however, the annual
Base Rent for such Renewal Term shall be an amount equal to
ninety-five percent (95%) of the fair market rental rate for
such space on the date such renewal term shall commence in
relation to comparable (in quality, location and size) space
located within a five (5) mile radius of the Property. The
determination of such fair market rental rate for the Premises
shall be made by Lessor and Lessee no later than the date that
is eight (8) months prior to commencement of the Renewal Term.
Provided Lessee has properly elected to renew the term of this
Lease, and if Lessor and Lessee fail to agree at least eight
(8) months prior to commencement of the Renewal Term upon the
fair market rental rate of the Premises, the fair market
rental rate of the Premises shall be determined by appraisal
in accordance with the provisions of Article XXXII
("Appraisal") hereof. Notwithstanding anything to the contrary
contained in this Article, in no event shall the Base Rent of
the Premises for the Renewal Term be less than the Base Rent
payable by Lessee under the terms of this Lease immediately
prior to commencement of such Renewal Term.
(c) That Lessee shall exercise its right to the Renewal Term
provided herein, if at all, by notifying Lessor in writing of
its election to exercise the right to renew the term of this
Lease no later than nine (9) months prior to the end of the
initial ten-year term. Upon notification with respect to such
renewal, and for one month thereafter, the parties hereto
shall make a good faith effort to agree upon the fair market
rental rate of the Premises for the Renewal Term. In the event
that Lessor and Lessee fail to agree within the one month time
period set forth in this subparagraph (c), the fair market
rental rate of the Premises for such Renewal Term shall be
determined by appraisal in the manner set forth in Article
XXXII hereof. Any determination by appraisal or any agreement
reached by the parties hereto with respect to such fair market
rental rate and the resulting Base Rent of the Premises for
the Renewal Term shall be expressed in writing and shall be
executed by the parties hereto, and a copy thereof delivered
to each of the parties.
ARTICLE XXVI. SEPARATE METERING: Notwithstanding anything to the contrary
contained in Article II ("Additional Rent") of the Lease, the water, gas, heat,
light, power, electricity, telephone and other utilities and services supplied
to the Premises, if separately metered, shall be paid for by Lessee upon receipt
of invoice therefor. Any such separately metered cost paid for by Lessee in
accordance with this Article shall be excluded from the definition of "Operating
Expenses" set forth in Article II, it being agreed that this Article shall
govern and control as to the payment thereof by Lessee.
Exhibit C
Page 4 of 8
42
ARTICLE XXVII. CONFIDENTIALITY: Lessee agrees to keep this Lease and the terms
hereof in confidence, and not to publish or disclose, in whole or in part, the
same without Lessor's prior written consent, which consent may be withheld in
Lessor's sole discretion.
ARTICLE XXVIII. CONSTRUCTION WARRANTY: Notwithstanding anything to the contrary
contained in this paragraph, Lessor shall guarantee the Tenant Improvements
against defective workmanship and/or materials for a period of one (1) year from
the date of substantial completion of the Tenant Improvements and shall
guarantee the shell building, the parking area and other improvements surveying
the Premises that have been constructed by Lessor on the Property against
defective workmanship and/or materials for a period of one (1) year from the
date on which the City of Phoenix issues its Letter of Compliance for such shell
building and other improvements and Lessor agrees to repair or replace any
defective item in the Tenant Improvements or such other improvements occasioned
by poor workmanship and/or materials during the applicable one-year period, and
Lessor's performance of such one-year guarantee shall be the sole and exclusive
obligation of Lessor with respect to such defective workmanship and/or
materials, and Lessee's rights to enforce such one-year guarantee against Lessor
shall be Lessee's sole and exclusive remedy with respect to such defective
workmanship and/or materials in limitation of any contract, warranty or other
rights, whether express or implied, that Lessee may otherwise have under
applicable law. To the extent warranties of any of Lessor's subcontractors or
suppliers remain enforceable after the expiration of Lessor's one (1) year
guarantee described above, Lessor shall cooperate with Lessee to enforce same
for the parties mutual benefit.
Subject to Articles II, XII and XIII hereof and to Lessee's obligations
hereunder, except to the extent of any damage caused by the fault or negligence
of Lessee, Lessor shall maintain and keep in good order, condition and repair
the structural components of the shell building in which the Premises is
located. All costs and expenses incurred in connection therewith shall be
included in Operating Expenses, except for any capital improvements that are
excluded pursuant to Article II, which excluded capital improvements shall not
be included in Operating Expenses.
ARTICLE XXIX. MEASUREMENT: On or before the sixtieth (60th) day after Lessor
delivers the Premises, Lessor shall cause the Premises to be measured and the
square footage thereof determined in accordance with the Building Owners and
Managers Association (BOMA) Standard Method of Measurement. In the event the
square footage of the Premises as determined by Lessor's architect shall differ
from 60,000, the Base Rent, Lessee's Pro Rata Share of Operating Expenses and
Real Estate Taxes, and the TI Allowance, the Relocation Allowance and the space
planning consultant allowance shall be equitably adjusted.
ARTICLE XXX. RENT ABATEMENT: Notwithstanding anything contained in Article I
("Base Rent") or Article II ("Additional Rent") hereof to the contrary, the Base
Rent to be paid by Lessee under Article I during the first three (3) months of
the initial ten-year term of this Lease shall be abated as a concession to
Lessee by Lessor.
ARTICLE XXXI. RELOCATION ALLOWANCE: Lessor will reimburse Lessee for relocation
costs incurred by Lessee in an aggregate amount of approximately $120,000.00
(subject to adjustment at the rate of $2.00 per rentable square foot for the
Premises). Any relocation costs submitted to Lessor for reimbursement must be
supported by reasonable documentation, such as an invoice. Lessor agrees to
reimburse Lessee for submitted relocation costs
Exhibit C
Page 5 of 8
43
within thirty (30) days after Lessee's occupancy of the Premises and Lessor's
receipt of such documentation.
ARTICLE XXXII. APPRAISAL: Within seven (7) days after the expiration of the
period within which Lessor and Lessee were to reach agreement on the fair market
rental rate as provided in Article XXV, Lessor and Lessee shall mutually appoint
an appraiser that has at least five (5) years full-time commercial appraisal
experience and is a member of the American Institute of Real Estate Appraisers.
If Lessor and Lessee are unable to agree upon an appraiser, either of the
parties to this Lease, after giving five (5) days prior written notice to the
other party, may apply to the then president of the Phoenix Board of Realtors
for the selection of an appraiser who meets the foregoing qualifications, which
selection shall be made within fifteen (15) days. The appraiser selected by the
president of the Board of Realtors shall be a person who has not previously
acted in any capacity for either party, its affiliates or leasing agents and who
meets the above experience qualifications. Lessor and Lessee shall each, within
seven (7) days of the appointment (either by agreement or selection) of the
appraiser, submit to the appraiser such parties' determination of the fair
market rental rate for purposes of Article XXV. Within twenty (20) days after
the conclusion of the above-referenced seven-day period, the appraiser shall
review each of the Lessor's and Lessee's submittals and shall review such other
information as such appraiser shall deem necessary (a party may furnish the
appraiser with any information it deems relevant) and shall determine which of
the two submittals is the more reasonable. The appraiser shall immediately
notify the parties of his or her selection, and such selection shall be
multiplied by ninety-five percent (95%) to determine the Base Rent of the
Premises for the Renewal Term; provided, however, that the Base Rent of the
Premises for the Renewal Term shall in no event be less than the Base Rent
payable by Lessee under the terms of this Lease immediately prior to the
commencement of the Renewal Term. If, upon the expiration of the
above-referenced seven-day period, the appraiser shall have received one of the
party's submittals as to the fair market rental rate, but not both, the
appraiser shall designate the submitted item as the fair market rental rate to
be used to calculate the Base Rent for the Premises for the Renewal Term in the
manner provided in the previous sentence, and the appraiser shall immediately
notify the parties of same. Notwithstanding the foregoing two sentences, in no
event shall the Base Rent of the Premises for the Renewal Term be less than the
Base Rent payable by Lessee under the terms of this Lease immediately prior to
commencement of the Renewal Term.
ARTICLE XXXIII. FIRST RIGHT OF OFFER: Subject to the terms and conditions set
forth in this Article XXXIII, Lessor hereby grants to Lessee the first right
("First Right") to be offered by Lessor the opportunity to lease the
approximately rentable square feet of space shown as designated on
Exhibit attached hereto and incorporated herein by this reference. If, at any
time while this First Right is in effect, Lessor should intend to lease such
space to a third party tenant, then Lessor shall first offer to lease such space
to Lessee. In the event Lessor offers to Lease such space to Lessee pursuant to
this Article XXXIII, Lessee shall notify Lessor in writing within five (5) days
of its receipt of Lessor's notice whether Lessee desires to offer to lease such
space from Lessor. If Lessee notifies Lessor in writing within such five-day
period that Lessee does not desire to lease such space, or if Lessee does not
respond in writing to Lessor's notice within such five-day period, then, in
either of the above instances, Lessor's obligations under this Article XXXIII
shall automatically terminate and be of no further force or effect and Lessor
shall thereafter be entitled to lease such space. If Lessee notifies Lessor in
writing within such two-day period that Lessee desires to lease such space from
Lessor, the
Exhibit C
Page 6 of 8
44
parties shall thereafter negotiate for Lessee's lease of the space from Lessor;
provided, however, that if Lessor and Lessee fail to mutually agree upon the
terms of Lessee's lease of such space and to execute a written amendment to this
Lease within ten (10) business days of the date of Lessee's receipt of written
notice (which amendment shall contain the terms mutually agreed to by the
parties for Lessee's lease of such space), then Lessor's obligations under this
Article XXXIII shall automatically terminate and be of no further force or
effect at the end of such ten (10) business days period. Notwithstanding
anything to the contrary contained in this Article XXXIII, in the event Lessee's
First Right as set forth in this Article XXXIII is still in effect at the end of
the initial ten-year term of this Lease, such First Right shall automatically
terminate on the last day of the initial ten-year term of this Lease. The
purpose of this Article is to provide notice to Lessee so that Lessee may be in
a position to offer to lease such space on a competitive basis with others, and,
notwithstanding anything to the contrary contained in this Article XXXIII,
nothing in this Article XXXIII shall be deemed to be an option or right of first
refusal.
ARTICLE XXXIV. OPTION TO EXPAND: Between the end of the 60th month and the end
of the 72nd month of the Lease term, Lessor shall notify Lessee in writing of
the location in the Office Complex of approximately 20,000 rentable square feet
of space into which Lessee shall have an option to expand adjacent to the
Premises and of an effective date for the expansion area (which effective date
shall be approximately months after Lessor's notice), and such addition to the
Premises shall be governed by the provisions of this Lease (including provisions
relating to renewals), to the extent the same are not inconsistent with the
following terms of this Article. In the event Lessee needs such additional
expansion space in the Complex, Lessee shall notify Lessor on or before fifteen
(15) days after Lessor's notice that Lessee exercises its expansion rights to
such space designated by Lessor. In the event Lessee so notifies Lessor, Lessor
shall deliver to Lessee an amendment of this Lease adding such additional space
to the Premises demised hereunder, such space being added on the effective date
designated therefor in Lessor's notice, for the balance of the term of this
Lease (as the same may be extended pursuant to Article XXV ("Option to Extend")
hereof. Additional annual Base Rent shall be payable for the additional area in
the amount of said area multiplied by the then current (as of the effective
date) fair market annual Base Rent (considering tenant improvements and duration
of term) for such Premises payable monthly, in advance, at the rate of
one-twelfth (1/12th) of said annual fair market Base Rent per month. The
"percent" for Lessee's Pro Rata Share of Excess Operating Expenses for such
additional space shall be a "percent" equal to the rentable area of the
additional space and divided by the rentable office area of the Complex subject
to adjustment as provided in Article II ("Additional Rent") hereof. Such change
in the Base Rent and such percent shall be applicable from and after the
effective date as to the additional area as designated by Lessor. All
redecorating of each respective space shall be done after the effective date and
shall be Lessee's responsibility. If any portion thereof has not been
theretofore fitted up for occupancy, Lessor will install therein (at Lessor's
sole cost and expense) Lessor's then building standard improvements. Lessee
shall designate its layout for same so as not to delay occupancy of such space
by the said effective date. Lessee shall execute and redeliver to Lessor the
appropriate amendment of Lease promptly after receipt and so as to not delay any
tenant improvements. The fair market Base Rent for such applicable space shall
be determined in relation to comparable (in quality and location) office space
located in the relevant market area (considering tenant improvements and
duration of term). The fair market Base Rent of the additional space shall be
determined as of the effective date of the expansion. If
Exhibit C
Page 7 of 8
45
Lessor and Lessee fail to agree within thirty (30) days after exercise by Lessee
of its rights to expand the Premises, upon the fair market Base Rent for such
expansion area, the amount of the fair market Base Rent for such area shall be
determined by appraisal in accordance with the provisions of Article XXXII
("Appraisal") hereof. The fair market Base Rent shall be based on the assumption
that the use of said expansion area shall be comparable to Lessee's then
existing use of the Premises and to the use of the other leasable area in the
Complex.
ARTICLE XXXV. MEMORANDUM. At the request of either party after the execution
hereof, the parties shall agree on a form of a memorandum of Lease for the
purpose of providing constructive notice of Lessee's leasehold interest, and
shall cause the same to be executed and recorded in the Maricopa County
Recorder's Office.
Initials:
Lessor
----------------------
Lessee /s/ XXXXX X. XXXXXXXX
----------------------
6/28/96
Exhibit C
Page 8 of 8
46
EXHIBIT D
[To be added upon approval pursuant to
Article XXIII of Exhibit C]
47
EXHIBIT E
Project Specifications
48
EXHIBIT E
PROJECT SPECIFICATIONS
SYNTELLECT, INC.
JUNE 28, 0000
XXXXXXX
XXXXXXXX
Xxxxx Xxxxxx Feet: Approximately 66,000 square feet, (125,000 square
feet total building).
Site Area: 11.9 acres (approximately).
SCHEDULE
Occupancy Date: Upon substantial completion, on or before
March 3, 1997.
PARKING
Parking Required: 5:1000.
WARRANTY
Warranty: One (1) year.
ADA/Americans with Building to be designed and constructed to meet
Disabilities Act: ADA codes.
SITE WORK
XXX PREPARATION Soils report by a registered Arizona Soils
Engineer.
Building pad to be built according to soils report
recommendations, with soils engineer providing
on-site monitoring during construction.
SITE DEVELOPMENT
Exterior Concrete: Sidewalks to all parking areas and at all exits.
Concrete curbs around all paved areas and
planters.
49
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 2
--------------------------------------------------------------------------------
Sidewalks: 4" thick minimum.
Curbs: MAG standard vertical curb or curb & gutter (8"
thick concrete). Curbs around entire paved
perimeter.
Paving/Auto: Standard bituminous paving in accordance with
geotechnical report.
All paved areas: To be bound with concrete curbs and v-gutters, if
required, to assist sheet drainage.
Water Service: Yard hydrants located around facility. 2"
domestic service (minimum).
Sewage: Hook up to include all governmental costs and
fees.
Storm Drainage: As required by city.
Exterior Lighting: 1 foot Candle minimum in all areas.
(Parking Area)
BASE BUILDING
ELECTRICAL 2500 amps of 277/480 three phase with K-13 rated
transformers for all 120/208 stepdown for
computer loads.
HVAC HEATING/COOLING Rooftop gas or electrical package units per the
requirements of the office build-out to maintain
74 degrees in all areas during summer and 68
degrees during winter (tenant to approve).
All office roof-top mechanical equipment will be
screened from view by exterior parapet wall.
BUILDING STRUCTURE
AND EXTERIOR ENVELOPE
Building Exterior: Split face block or architecturally enhanced
concrete tilt panel. Reflective, double-pane
glass. Mini-blinds (Levelor brand) on all
exterior windows. R-11 insulated dry wall,
finished for paint on interior of all
exterior walls.
50
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 3
--------------------------------------------------------------------------------
Structural Concrete: Typical 4" slab in office areas, 6" in shipping
and configuration areas, or per tenant's
requirements within reason. 98% compaction
sub base.
Contraction Joints: 15' both ways minimum, caulked in all
configuration and shipping areas.
Bay Size: 40' x 40' with steel pipe columns minimum.
Roof Insulation: R-30 minimum.
Wall Insulation: R-11 minimum.
Glass Insulation: R-2 minimum.
Loading Dock: One (1) cut in dock high loading areas with
one (1) 9 x 12 electric insulated sectional
overhead doors.
Windows: Fixed - double pane.
Roofing: Four-ply built-up roof with a 25 lb. base,
two (2) 15 lb. plys, and a 90 lb, fiberglass cap
sheet minimum (or equal).
All rooftop mechanical equipment shall be properly
flashed and equipped with an insulated curb no
less than 12". Metal roof deck shall be 1.5",
22 gauge plywood system acceptable. All roof
areas shall slope to exterior roof drains.
Ten (10) year unlimited labor and material
warranty.
INTERIOR FINISHES 2' x' 4' T-bar grid with acoustic tile at 10'
height; sheetrocked metal framed walls taped,
textured, and painted with two (2) coats of
interior semi-gloss paint; stain grade doors
with commercial hardware.
Interior Clearance Height: 10 feet floor to ceiling grid in office area,
15 feet floor to ceiling grid in configuration
and shipping areas.
Lighting: 50 F.C. of 2' x 4' lay-in lighting with prismatic
lens and electronic ballast in configuration and
shipping area, and office areas to accommodate 25
workstations per 40 x 40 bay. Battery pack exit
signs and lighting.
51
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 4
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Open Office Areas: Within offices, outlets provided every eight (8)
lineal feet of wall with a telephone and data
conduits and outlet in each. J-boxes above the
ceiling tile on an approximately 15' x 15' grid
for power distribution, to accommodate 25
workstations per 40 x 40 bay.
Washrooms: Washroom partitions shall be ceiling hung, metal.
Washrooms shall receive a plastic laminate vanity
for recessed sinks. Ceramic tile walls and floors.
Fans: Six (6) exhaust fans in restrooms and lunchrooms
ducted roof.
Fire Extinguishers: Fire extinguishers to be provided as code
requires.
Flooring: Fifteen and No/100 Dollars ($15.00) per yard
installed allowance (see note*).
Fire Protection System: A complete fire protection sprinkler system shall
be provided to meet all city codes, with
semi-recessed heads.
Walls: Walls to be slab to slab surrounding the
configuration and shipping area (see note*).
Doors & Frame: Provide rated doors and hardware for Tenant's
exits.
Provide double glass entrance doors, structural
support, frame and all hardware with sidelights.
Hardware: Provide coat hooks behind office doors
(see note*).
Install locks on all interior office doors.
Provide Tenant with two sets of keys for each
door (see note*).
Painting: Landlord shall paint all interior surface of
exterior walls and columns.
Security: Provide a facility access control system,
including all hardware and software with
electronic numeric cypher readers at each
entrance (see note*).
*Note: Items included in Tenant Improvement Allowance.
52
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 5
--------------------------------------------------------------------------------
ARCHITECTURAL WORK Complete architectural working drawings prepared
by a registered Arizona Architect. Included shall
be all necessary architectural, structural,
mechanical, electrical, civil and landscape
drawings. Topographic survey from a registered
Arizona Civil Engineer.
City required building permits and plan check
fees.
CONCRETE WORK 4" thick concrete 3,500 psi floor slab, 6" in
shipping and configuration areas, over 3" of
A.B.C. designed to provide 3,500 psi at 28 days
and a crack free surface with saw cutting of
control joints a maximum of 1 5' by 15'. Concrete
cured after placing and sealed with two (2) coats
of seater at completion of project.
Sidewalks at street frontages.
7 and 28 day strength tests for each 50 cubic
yards of concrete poured.
PLUMBING Six (6) restrooms [3 men, 3 women] for office
personnel with (2) 30-gallon water heaters and a
total of twenty-eight (28) wall hung water
closets, twenty-four (24) lavatories, and eight
(8) urinals.
Bathrooms complete with ceramic tile on walls,
ceiling hung toilet partitions, urinal screens,
mirrors, paper holders, soap dispensers, towel
dispensers and ceramic tile flooring.
Four (4) drinking fountains, three (3)
lunchrooms sinks, two (2) utility sinks, four (4)
floor drains, four (4) hose bibs.
INSULATION 3.5" batt insulation for sound deadening around
bathrooms.
MISCELLANEOUS Each 40 x 40 bay to be able to provide power,
data and telephone to 25 workstations per bay.
Painting of exterior walls one (1) coat exterior
block fillprimer, two (2) cost of exterior
poly-vinyl paint.
Power company charges for design of electrical
service paid by developer.
53
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 6
--------------------------------------------------------------------------------
Masonry trash enclosure with concrete stab to
match building.
Telephone conduits and US West main trunks brought
to central phone room with telephone mounting
boards.
Final cleanup.
Sales tax.
Fire hydrant per fire department.
CONSTRUCTION REQUIREMENTS
Interior Floors: To be level within 1/8" in 10' to accommodate
furniture systems. With survey.
MASONRY 8" x 8" x 16" CMU exterior block walls with a 20'
overall height utilizing split-face only.
TILT PANELS Architecturally enhanced.
TENANT IMPROVEMENTS
ALLOWANCE See lease.
MISCELLANEOUS
ALLOWANCE SUMMARY Any allowance not fully utilized will accrue to
the benefit of the tenant in the form of a rental
credit.
Landscaping: One Hundred Thousand and No/100 Dollars
($1 00,000.00).
Signage: Five Thousand and No/I 00 Dollars ($5,000.00).
Interior Architecture/ One and 50/1 00 Dollars ($1.50) per square foot.
Engineering/Construction
Management:
GENERAL REQUIREMENTS
Environmental Study: Included.
54
SYNTELLECT, INC. June 28, 1996
PROJECT SPECIFICATIONS Page 7
--------------------------------------------------------------------------------
Project Engineers/ Included in Base Building cost.
Architect Fees:
Geotechnical Investigation: Included.
Taxes/Fees: Included in Base Building cost.
Temporary Facilities: Included in Base Building cost.
Insurance Coverage: Included in Base Building cost.
GC and Fee: Not to exceed ten percent (10%).
55
FIRST AMENDMENT TO LEASE
This First Amendment To Lease dated as of this 16th day of October,
1996, by and between Opus Southwest Corporation, a Minnesota corporation
("Lessor") and Syntellect, Inc., a Delaware corporation ("Lessee").
RECITALS
WHEREAS, pursuant to that Lease dated June 28, 1996, the Lessor and
Lessee agreed upon the lease of certain premises of approximately 60,000
rentable square feet located in the office and warehouse complex known and
described as Northgate Center, located northwest of the intersection of
Xxxxxxxxx Road and Intersection 17, Phoenix, Arizona; and
WHEREAS, the parties intend to modify the Lease pursuant to the express
provisions below;
THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. The parties by this Amendment intend to increase the
approximate rentable size of the Premises from 60,000 square feet to 70,564
square feet in those places in the Lease where it appears. The agreement to
measure the Premises within sixty (60) days of its delivery, pursuant to Article
XXIX shall not be affected hereby.
2. Article XX. Security Deposit, is hereby amended so that the
amount of the security deposit is increased from $934,200.00 to $1,100,000.00.
3. Article XXIII. Tenant Improvements, is hereby amended as
follows:
a. The reference to "$990,000.00" (i.e., the "TI
Allowance") is hereby changed to $1,164,306.00.
b. The reference to "$180,000.00" (i.e. the additional
cost of Tenant Improvements which may be factored into the Base Rent rate) is
hereby changed to $211,692.00.
C. The reference to "$90,000.00" (i.e., the space
planning allowance) is hereby changed to $105,846.00.
4. Article XXIV. Parking, is amended to replace the second
sentence with the following: "Lessee shall be entitled to use, on a
non-exclusive basis, up to 350 parking spaces."
5. Article XXIX. Measurement, is amended to change the reference
from "60,000" to "70,564" square feet.
56
6. Article XXXI. Relocation Allowance, is hereby amended to
change the reference from "$120,000.00" to "$141,128.00".
7. Article XXXIII. First Right of Offer, is hereby amended to
specify that the First Right applies to the approximately 10,000 rentable square
feet of space shown as designated on Exhibit A-1 attached hereto and
incorporated herein by this reference.
8. Article XXXIV. Option to Expand, is hereby amended to insert,
in the blank located on the seventh line, the number "two (2)" as the number of
months after Lessor's notice for which the effective date of the expansion area
lease shall occur.
9. Exhibit "A" and Exhibit "A-1" attached hereto are hereby
substituted for the same exhibits in the Lease.
10. Article 2.d is hereby changed so that the reference to
"49.06%" is changed to "51.66%".
Except as expressly modified, the parties agree that the Lease remains
enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Lease as of the day and year first above written.
LESSOR:
OPUS SOUTHWEST CORPORATION
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Its: President
LESSEE:
SYNTELLECT INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Its: Vice President-
Chief Financial
Officer
57
EXHIBIT "A"
Site Plan
Total Square Footage
136,602
[MAP OF SITE PLAN]
NORTHGATE BUSINESS CENTER
PHOENIX, ARIZONA
[OPUS LOGO]
[SITE PLAN MAP LEGEND]
DATE: JOB: 96012
-------------------------------------------------------------------------------
[BDG LOGO] 0000 X. 00xx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Design Group 000-000-0000 Phone
000-000-0000 Fax
Architects & Planners
58
EXHIBIT "A-1"
Floor Plan
[MAP OF FLOOR PLAN]
NORTHGATE BUSINESS CENTER
SYNTELLECT INC.
NORTHGATE
00000 XXXXX 00XX XXXXXX
XXXXXXX, XXXXXXX 00000
[LOGO]
