Exhibit 10.10
XxXxxxxxx Ranch
Industrial Center III
Commercial Lease Agreement
Petroleum, Inc.
as Landlord
And
Antigua Group, Inc.,
as Tenant
Petroleum, Inc.
XxXxxxxxx Ranch Industrial Center III
Multi-Tenant Gross Lease
LEASE AGREEMENT
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: August 22, 1996.
Section 1.02. Landlord: Petroleum, Inc.
Address of Landlord: 000 X. Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxx
00000-0000.
Section 1.03. Tenant (include legal entity): Antigua Group, Inc., an
Arizona corporation.
Address of Tenant: 0000 X. 00xx Xxx, Xxxxxxxxxx, Xxxxxxx 00000
Section 1.04. Property: The Property is part of Landlord's multi-tenant
real property development known as XxXxxxxxx Ranch Industrial Center III, 9318
and 0000 Xxxxx 00xx Xxx, Xxxxxxxxxx, Xxxxxxx 00000 and described or depicted in
Exhibit "A" (the "Project"). The Project includes the land, the buildings and
all other improvements located on the land, and the common areas described in
Paragraph 4.05(a). The Property shall be various suites within the buildings
known as 9318 and 0000 Xxxxx 00xx Xxx, Xxxxxxxxxx, Xxxxxxx 00000 as set forth in
Exhibit "B". Landlord has agreed to lease to Tenant and Tenant has agreed to
lease from Landlord the Property in accordance with the schedule set forth on
Exhibit "B".
Section 1.05. Lease Term: The Lease Term for each suite shall commence
November 1, 1996 in accordance with the schedule set forth in Exhibit "B" and
shall expire October 31, 1999.
Section 1.06. Permitted Uses: (See Article Five) Manufacture, sale and
storage of sportswear and gold accessories and related office use.
Section 1.07. Tenant's Guarantor: (If none, so state) None
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Section 1.08. Brokers: (See Article Fourteen) (If none, so state).
Landlord's Broker: Xxxxxx X. Xxxxx Enterprises
Tenant's Broker: None.
Section 1.09. Commission Payable to Landlord's Broker: (See Article
Fourteen) By Separate Agreement
Section 1.10. Initial Security Deposit. None.
Section 1.11. Vehicle Parking Spaces Allocated to Tenant: (See Section
4.05) N/A
Section 1.12. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: The monthly rent shall be calculated in accordance with
Exhibit "B". Tenant shall pay the applicable rental tax to Landlord each month
in addition to the monthly Base Rent. The monthly base rental rate shall be as
follows:
Months 01 through 12 $.60 per S.F.
13 through 24 $.63 per S.F.
25 through 36 $.66 per S.F.
(b) OTHER PERIODIC PAYMENTS: (i) Tenant's pro rata share of Real
Property Taxes above the "Base Real Property Taxes" (See Section 4.02); (ii)
Utilities (See Section 4.03); (iii) Tenant's Pro Rata Share of Increased
Insurance Premiums above "Base Premiums" (See Section 4.04); (iv) Tenant's Pro
Rate Share of Common Area Expenses above the "Base Common Area Charges" (see
Section 4.05); (v) Impounds for Tenant's Share of Insurance Premiums and
Property Taxes (See Section 4.08); (vi) Maintenance, Repairs and Alterations
(see Article Six). For purposes of this Lease, "Tenant's Pro Rata Share" shall
be that percentage from time to time calculated by dividing the aggregate square
foot area of that portion of the Property occupied by Tenant as set forth in
Exhibit "B", by the aggregate square foot area of the Project, which is 74,908
square feet.
Section 1.13. Costs and Charges Payable by Landlord: (a) Base Real
Property Taxes (See Section 4.02); (b) Base Insurance Premiums (See Section
4.04(c); (c) Base Common Area Charges (See Section 4.05); (d) Maintenance and
Repair (See Article Six).
Section 1.14. Landlord's Share of Profit of Assignment of Sublease:
(See Section 9.05) Fifty percent (50%) of the Profit (the "Landlord's Share").
Section 1.15. Riders: The following Riders are attached to and made a
part of this Lease: (if none, so state)
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Exhibit "A" First and Second Floor Plans for
Buildings A and B
Exhibit "B" Suite Covered by Lease
Exhibit "C" None
Exhibit "D" Rules and Regulations
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property for Lease Term: Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease term is for the period stated in Section 1.05 above and shall
begin and end on the dates specified in Section 1.05 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
"Commencement Date" shall be the date specified in Section 1.05 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease.
Section 2.02. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages which Landlord incurs from
Tenant's delay in vacating the Property. If Tenant does not vacate the Property
upon the expiration or earlier termination of the Lease and Landlord thereafter
accepts rent from Tenant, Tenant's occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a "month-to-month" tenancy, except that the Base Rent then in effect shall be
increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the first month of the Lease Term, plus the applicable rental
tax levied on the rent collected by Landlord under the terms of this Lease. On
the first day of the second month of the Lease Term and each month thereafter,
Tenant shall pay landlord the Base Rent, plus the applicable rental tax levied
on the rent collected by Landlord under the terms of this Lease, in advance,
without offset, deduction or prior demand. The Base Rent and applicable rent tax
shall be payable at Landlord's address or at such other place as Landlord may
designate in writing.
Section 3.02. Termination; Advance Payments. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Tenant's default, and after Tenant
has vacated the Property in the manner required by this Lease, Landlord shall
refund or credit to Tenant (or Tenant's successor) any advance rent or other
advance payments made by Tenant to Landlord, and any
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amounts paid for real property taxes and other reserves which apply to any time
periods after termination of the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other than
Base Rent are called "Additional Rent". Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "rent" shall mean Base Rent and Additional Rent.
Section 4.02. Property Taxes.
(a) Real Property Taxes. Landlord shall pay the "Base Real Property
Taxes" on the Project during the Lease Term. Base Real Property Taxes are real
property taxes applicable to the Project for the 1996 tax year. From and after
January 1, 1997, Tenant shall pay Landlord Tenant's pro rate share of the
amount, if any, by which the real property taxes during the Lease Term exceed
the Base Real Property Taxes. Subject to Paragraph 4.02(c), Tenant shall make
such payments within fifteen (15) days after receipt of Landlord's statement
showing the amount and computation of such increase. Landlord shall reimburse
Tenant within thirty (30) days after written demand for any real property taxes
paid by Tenant covering any period of time prior to January 1, 1997 or after the
Lease Term.
(b) Definition of "Real Property Tax." "Real property tax" means: (i)
any fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty or tax imposed by any taxing authority against
the Property; (ii) any tax on the Landlord's right to receive, or the receipt
of, rent or income from the Property or against Landlord's business of leasing
the Property; (iii) any tax or charge for fire protection, streets, sidewalk,
road maintenance, refuse or other services provided to the Property by any
governmental agency; (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Project due to a change of ownership as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Project; and (v) any charge or fee replacing any tax previously included within
the definition of real property tax. "Real property tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes. Nothing contained in this Article Four shall be construed as limiting
Tenant's obligation to pay the applicable rental tax which is currently
scheduled to be assessed at 3.15% on the rent collected by Landlord, and Tenant
shall be required to pay such rental tax (including any increases in the
applicable rental tax) in addition to the Base Rent throughout the Lease Term.
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(c) Joint Assessment. (This provision is not applicable, as the Project
is separately assessed and not jointly assessed with any adjacent property.)
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall try to have personal property taxes separately from the Property.
(ii) If any of Tenant's personal property is taxed with the
Property, Tenant shall pay Landlord the taxes for the personal property within
thirty (30) days after Tenant receives a written statement from Landlord for
such personal property taxes.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within thirty (30) days after receipt of Landlord's
written statement.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Tenant
shall name Landlord as an additional insured under such policy. The initial
amount of such insurance shall be One Million Dollars ($1,000,000) per
occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisors and other relevant factors. The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and noncontributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05, if the matters giving rise to the indemnity
under Section 5.05 result from the negligence of Tenant. The amount and coverage
of such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease. Landlord may also obtain comprehensive public
liability insurance in an amount and with coverage determined by Landlord
insuring Landlord against liability arising out of ownership, operation, use or
occupancy of the Property. The policy obtained
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by Landlord shall not be contributory and shall not provide primary insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Project in the full amount of its replacement value. Such policy shall contain
an Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance if required by any lender
holding a security interest in the Project. Landlord shall not obtain insurance
for Tenant's fixtures or equipment or building improvements installed by Tenant
on the Property. At any time during the Lease Term and any extensions of the
Lease Term, Landlord may, in Landlord's discretion, also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall not be liable for the payment of any deductible amount under
Landlord's insurance policies maintained pursuant to this Section 4.04 unless
the loss is caused by Tenant's negligence or willful misconduct. Tenant shall
not do or permit anything to be done which invalidates any such insurance
policies.
(c) Payment of Premiums.
(i) Landlord shall pay the "Base Premiums" for the insurance
policies maintained by Landlord under Paragraph 4.04(b). For purposes of this
Lease, the "Base Premiums" shall be the premiums paid by Landlord for coverage
during 1996 for the insurance policies maintained by Landlord under Paragraph
4.04(b).
(ii) From and after January 1, 1997, Tenant shall pay Landlord
Tenant's pro rata share of the amount, if any, by which the insurance premiums
for all policies maintained by Landlord under Paragraph 4.04(b) have increased
over the Base Premiums, whether such increases result from the nature of
Tenant's occupancy, any act or omission of Tenant, the reasonable requirement of
any lender referred to in Article Eleven (Protection of Lenders), the increased
value of the Project or general rate increases. When acquiring insurance
coverage, Landlord will use its good faith efforts to obtain the most reasonably
priced insurance policies for the coverage sought. However, if Landlord
substantially increases the amount of insurance carried or the percentage of
insured value after the period during which the Base Premiums were calculated,
Tenant shall only pay Landlord the amount of increased premiums which would have
been charged by the insurance carrier if the amount of insurance or percentage
of insured value had not been substantially increased by Landlord. This
adjustment in the amount due from Tenant shall be made only
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once during the Lease Term. Thereafter, Tenant shall be obligated to pay the
full amount of any additional increases in the insurance premiums, including
increases resulting from any further increases in the amount of insurance or
percentage of insured value. Subject to Section 4.05, Tenant shall pay Landlord
the increases over the Base Premiums within thirty (30) days after receipt by
Tenant of a statement of the amount due. If the insurance policies maintained by
Landlord cover improvements or real property other than the Project, Landlord
shall also deliver to Tenant a statement of the amount of the premiums
applicable to the Project showing, in reasonable detail, how such amount was
computed. If the Lease Term expires before the expiration of the insurance
period, Tenant's liability shall be prorated on an annual basis.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under
this Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or
renewal to Landlord required under this Lease within the prescribed time period
or if any such policy is canceled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which case Tenant
shall reimburse Landlord for the cost of such insurance within thirty (30) days
after receipt of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this
Lease with companies holding a "General Policy Rating" or A-12 or better, as set
forth in the most current issue of "Best Key Rating Guide". Landlord and Tenant
acknowledge the insurance markets are rapidly changing and that insurance in the
form and amounts described in this Section 4.04 may not be available in the
future. Tenant acknowledges that the insurance described in this Section 4.04 is
for the primary benefit of Landlord. If at any time during the Lease Term,
Tenant is unable to maintain the insurance required under the Lease, Tenant
shall nevertheless maintain insurance coverage which is customary and
commercially reasonable in the insurance industry for Tenant's type of business,
as that coverage may change from time to time. Landlord makes no representation
as to the adequacy of such insurance to protect Landlord's or Tenant's
interests. Therefore, Tenant shall obtain any such additional property or
liability insurance which Tenant deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of recovery
against the other, or against the officers,
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employees, agents or representatives of the other, for loss of or damage to its
property or the property of others under its control, if such loss or damage is
covered by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage. Upon obtaining the required policies
of insurance, Landlord and Tenant shall give notice to the insurance carriers of
this mutual waiver of subrogation.
Section 4.05. Common Areas; Use, Maintenance and Costs.
(a) Common Areas. As used in this Lease, "Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, and increase or decrease Common Areas land and/or facilities.
Tenant acknowledges that such activities may result in inconvenience to Tenant.
Such activities and changes are permitted if they do not materially affect
Tenant's use of the Property.
(b) Use of Common Areas. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its
reasonable efforts to cause others who use the Common Areas with Tenant's
express or implied permission to abide by Landlord's rules and regulations. At
any time, Landlord may close any Common Areas to perform any acts in the Common
Areas, as in Landlord's judgement, are desirable to improve the Project. Tenant
shall not interfere with the rights of Landlord, other tenants or any other
person entitled to use the Common Areas.
(c) Specific Provision Regarding Vehicle Parking. Tenant shall be
entitled to use and enjoy in common with the other tenants of the buildings
located at 9318 and 0000 Xxxxx 00xx Xxx all the vehicle parking spaces without
paying any additional rent. Tenant's parking shall not be reserved and shall be
limited to vehicles no larger than standard size automobiles or pickup utility
vehicles and show vans not exceeding 30 feet in length. Tenant shall not cause
large trucks or other large vehicles to be parked within the Project or on the
adjacent public streets. Temporary parking of large delivery vehicles in the
Project will be permitted as reasonably necessary in the ordinary course of
Tenant's business. Vehicles shall be parked only in striped parking spaces and
not in driveways, loading areas or other locations not
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specifically designated for parking. Handicapped spaces shall only be used by
those legally permitted to use them. If Tenant parks more vehicles in the
parking area than the number set forth in Section 1.11 of this Lease, such
conduct shall be a material breach of this Lease. In addition to Landlord's
other remedies under the Lease, Tenant shall pay a daily charge determined by
Landlord for each such additional vehicle.
(d) Maintenance of Common Areas. Landlord shall maintain the Common
Areas in good order, condition and repair and shall operate the Project, in
Landlord's reasonable discretion, as a first-class industrial/commercial real
property development. Landlord shall pay the "Base Common Area Charges" which
shall be the aggregate amount expended by Landlord pursuant to this Section
4.05(d) during 1996. From and after January 1, 1997, Tenant shall pay Landlord
Tenant's pro rata share of the amount, if any, by which the Common Area costs
exceed the Base Common Area Charges. Common Areas costs include, but not limited
to, costs and expenses for the following: gardening and landscaping; utilities,
water and sewage charges; maintenance of signs (other than tenants' signs);
premiums for liability, property damage, fire and other types of casualty
insurance on the Common Areas and worker's compensation insurance; all property
taxes and assessments levied on or attributable to the Common Areas and all
Common Area improvements; all personal property taxes levied on or attributable
to personal property used in connection with the Common Areas', straight-line
depreciation on personal property owned by Landlord which is consumed in the
operation or maintenance of the Common Areas; fees for required licenses and
permits; repairing, resurfacing, repaving, maintaining, painting, lighting,
cleaning, refuse removal, security and similar items; reserves for roof
replacement and exterior painting and other appropriate reserves and a
reasonable allowance to Landlord for Landlord's supervision of the Common Areas
(actual not to exceed five percent (5%) of the gross rents of the Project for
the calendar year). Landlord may cause any or all of such services to be
provided by third parties and the cost of such services shall be included in
Common Area costs. Common Area costs shall not include depreciation of real
property which forms part of the Common Areas.
(e) Tenant's Share and Payment. From and after January 1, 1997, Tenant
shall pay Tenant's pro rata share of all increases in Common Area costs above
the Base Common Area Charges (pro rated for any fractional month) upon thirty
(30) days written notice from Landlord that such costs are due and payable, and
in any event prior to delinquency. Tenant's pro rata share shall be calculated
by dividing the square foot area of the Property, as set forth in Section 1.04
of the Lease, by the aggregate square foot area of the Project which is leased
or held for lease by tenants, as of the date on which the computation is made.
Any changes in the Common Area costs and/or the aggregate area of the Project
leased or held for lease during the Lease Term shall be effective on the first
day
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of the month after such change occurs. Landlord may, at Landlord's election,
estimate in advance and charge to Tenant as Common Areas costs, all real
property taxes for which Tenant is liable under Section 4.02 of the Lease, all
insurance premiums for which Tenant is liable under Section 4.04 of the Lease,
all maintenance and repair costs for which Tenant is liable under Section 6.04
of the Lease, and all other Common Area costs payable by Tenant hereunder. At
Landlord's election, such statements of estimated Common Area costs shall be
delivered monthly, quarterly or at any other periodic intervals to be designated
by Landlord. Landlord may adjust such estimates at any time based upon
Landlord's experience and reasonable anticipation of costs. Such adjustments
shall be effective as of the next rent payment date after notice to Tenant.
Within sixty (60) days after the end of each calendar year of the Lease Term,
Landlord shall deliver to Tenant a statement prepared in accordance with
generally accepted accounting principles setting forth, in reasonable detail,
the Common Area costs paid or incurred by Landlord during the preceding calendar
year and Tenant's pro rata share. Upon receipt of such statement, there shall be
an adjustment between Landlord and Tenant, with payment to or credit given by
Landlord (as the case may be) so that Landlord shall receive the entire amount
of Tenant's share of such costs and expenses for such period.
Section 4.06. Late Charges. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes due, Tenant shall pay Landlord a late charge equal to
five percent (5%) of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment.
Section 4.07. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
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Anything in this Lease to the contrary notwithstanding, upon ten (10) days prior
notice to Landlord, Tenant shall have the right to, either partially or fully,
cease business operations at the Property and thereupon either partially or
fully vacate the Property; provided, however, all other obligations of Tenant
under this Lease with respect to the Property shall not be affected thereby
including, without limitation, Tenant's obligation to pay Base Rent, additional
rent and all other costs and charges which Tenant has agreed to pay under this
Lease.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Project, or which constitutes a nuisance or waste.
Section 5.03. Hazardous Materials. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials"
or "toxic substances" now or subsequently regulated under any applicable
federal, state or local laws or regulations, including without limitations
petroleum based products, paints, solvents, lead, cyanide, DDT, printing inks,
acids, pesticides, ammonia compounds and other chemical products, asbestos, PCBs
and similar compounds, and including any different products and materials which
are subsequently found to have adverse effects on the environment or the health
and safety of persons. Tenant shall not cause or permit any Hazardous Material
to be generated, produced, brought upon, used, stored, treated or disposed of in
or about the Property by Tenant, its agents, employees, contractors, sublessees
or invitees without the prior written consent of Landlord. Landlord shall be
entitled to take into account such other factors or facts as Landlord may
reasonably determine to be relevant in determining whether to grant or without
consent to Tenant's proposed activity with respect to Hazardous Material. In no
event, however, shall Landlord be required to consent to the installation or use
of any storage tanks on the Property.
Section 5.04. Signs and Auctions. Tenant shall not place any signs on
the Property without Landlord's prior written consent. Tenant shall not conduct
or permit any auctions or sheriff's sales at the Property. Landlord agrees that
within sixty (60) days after a tenant of 9318 and 0000 Xxxxx 00xx Xxx vacates
the building, Landlord shall at its expense remove such Tenant's identification
signs from the face of the building.
Section 5.05. Indemnity. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's business or
anything else done or permitted
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by Tenant to be done in or about the Property, including any contamination of
the Property or any other property resulting from the presence or use of
Hazardous Material caused or permitted by Tenant; (c) any breach or default in
the performance of Tenant's obligations under this Lease; (d) any
misrepresentation or breach of warranty by Tenant under this Lease; or (e) other
acts or omissions of Tenant. Tenant shall defend Landlord against any such cost,
claim or liability at Tenant's expense with counsel reasonably acceptable to
Landlord or, at Landlord's election, Tenant shall reimburse Landlord for any
legal fees or costs incurred by Landlord in connection with any such claim. As a
material part of the consideration to Landlord, Tenant assumes all risk of
damage to property or injury to persons in or about the Property arising from
any cause, and Tenant hereby waives all claims in respect thereof against
Landlord, except for any claim arising out of Landlord's negligence or willful
misconduct. As used in this Section, the term "Tenant" shall include Tenant's
employees, agents, contractors and invitees, if applicable.
Section 5.06. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material; or for any other purpose Landlord deems necessary. Landlord shall have
given Tenant prior notice of such entry, except in the case of an emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.07. Quiet Possession. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY: MAINTENANCE, REPAIRS AND ALTERNATIONS
Section 6.01. Existing Conditions. Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations, and orders. Except as provided
herein, Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation as to the condition of the Property or the suitability
of the Property for Tenant's intended use. Tenant represents and warrants that
Tenant has made its own inspection of and inquiry regarding the condition of the
Property and except as expressly set forth herein is not relying on any
representations of Landlord or any Broker with respect thereto. If Landlord or
Landlord's Broker has provided a Property Information Sheet or other Disclosure
Statement regarding the Property, a copy is attached as an exhibit to the Lease.
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Section 6.02, Exemption of Landlord from Liability. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or upon other portions of the Project, or from other
sources or places; or (d) any act or omission of any other tenant of the
Project. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.02 shall not, however, exempt
Landlord from liability for Landlord's negligence or willful misconduct.
Section 6.03. Landlord's Obligations. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation), and
except for damage caused by any act or omissions of Tenant, or Tenant's
employees, agents, contractors or invitees, Landlord shall keep the foundation,
roof and structural portions of the improvements on the Property in good order,
condition and repair. However, Landlord shall not be obligated to maintain or
repair windows, doors, plate glass or the surfaces of walls. Landlord shall
begin the repair process for any repairs under this Section 6.03 within thirty
(30) days after receipt of a written notice from Tenant of the need for such
repairs and shall thereafter pursue completion of such repairs in a reasonable
and diligent manner. Tenant waives the benefit of any present or future law
which might give Tenant the right to repair the Property at Landlord's expense
or to terminate the Lease because of the condition of the Property.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions of
the Property (including nonstructural, interior, systems and equipment) in good
order, condition and repair (including Interior repainting and refinishing, as
needed). If any portion of the Property or any system or equipment in the
Property which Tenant is obligated to repair cannot be fully repaired or
restored, Tenant shall promptly replace such portion of the Property or system
or equipment in the Property, regardless of whether the benefit of such
replacement extends beyond the Lease Term; but if the benefit of such
replacement shall be prorated over the remaining portion of the Lease Term (as
extended), and Tenant shall be liable only for that portion of the cost which is
applicable to the Lease Term (as extended). Tenant shall adopt a preventive
maintenance program providing for regular semi-annual
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inspections and maintenance of the heating and air conditioning systems by a
licensed heating and air conditioning contractor. Landlord shall have the right,
upon thirty (30) days written notice to Tenant, to undertake the responsibility
for preventive maintenance of the heating and air conditioning system at
Tenant's expense. In addition, Tenant shall, at Tenant's expense, repair any
damage to the roof, foundation or structural portions of walls caused by
Tenant's acts or omissions. It is the intention of Landlord and Tenant that, at
all times during the Lease Term, Tenant shall maintain the Property in an
attractive, first-class and fully operative condition.
(b) Tenant Shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Property as required by this Section 6.04, Landlord may, upon ten (10) days'
notice to Tenant (except that no notice shall be required in the case of an
emergency), enter the Property and perform such maintenance or repair (including
replacement, as needed) on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs incurred in performing such maintenance or
repair immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent, except for
non-structural alterations which do not exceed Ten Thousand Dollars ($10,000) in
cost cumulatively over the Lease Term and which are not visible from the outside
of any building of which the Property is part. Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and improvements
shall be done in a good and worklike manner, in conformity with all applicable
laws and regulations, and by a contractor approved by Landlord. Upon completion
of any such work, Tenant shall provide Landlord with "as built" plans, copies of
all construction contracts, and proof of payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
Section 6.06. Condition upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Property to Landlord broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated
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to remedy under any provision of this Lease. However, Tenant shall not be
obligated to repair any damage which Landlord is required to repair under
Article Seven (Damage or Destruction). In addition, unless Tenant has obtained
Landlord's consent to leave any alterations, additions and improvements at the
termination of the Lease at such time as Tenant requests Landlord's consent to
make any such alteration, addition or improvements (whether or not made with
Landlord's consent) prior to the expiration of the Lease and to restore the
Property to its prior condition, all at Tenant's expense. All alterations,
additions and improvements which Landlord has not required Tenant to remove
shall become Landlord's property and shall be surrendered to Landlord upon the
expiration or earlier termination of the Lease, except that Tenant may remove
any of Tenant's machinery or equipment which can be removed without material
damage to the Property. Tenant shall repair, at Tenant's expense, any damage to
the Property caused by the removal of any such machinery or equipment. In no
event, however, shall Tenant remove any of the following materials or equipment
(which shall be deemed Landlord's property) without Landlord's prior written
consent: any power wiring or power panels; lighting or lighting fixtures; wall
coverings; drapes, blinds or other window coverings; carpets or other floor
coverings; heaters, air conditioners or any other heating or air conditioning
equipment; fencing or security gates; or other similar building operating
equipment and decorations. In the event Tenant and Landlord mutually agree to
the removal of any fixtures, Tenant agrees to restore the property to its prior
condition, all at Tenant's expense.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage or less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.04(b) are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient
to pay the entire cost of repair, or if the cause of the damage is not covered
by the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of
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the occurrence of the damage whether Landlord elects to repair the damage or
terminate the Lease. If Landlord elects to repair the damage and the damage was
due to any act or omission of Tenant, or Tenant's employees, agents, contractors
or invitees, Tenant shall pay Landlord the "deductible amount" (if any) under
Landlord's insurance policies and the differences between the actual cost of
repair and any insurance proceeds received by Landlord. If Landlord elects to
terminate the Lease, Tenant may elect to continue this Lease in full force and
effect, in which case Tenant shall repair any damage to the Property and any
building in which the Property is located. Tenant shall pay the cost of such
repairs, except that upon satisfactory completion of such repairs, Landlord
shall deliver to Tenant any insurance proceeds received by Landlord for the
damage repaired by Tenant. Tenant shall give Landlord written notice of such
election within ten (10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6) months
of the Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Property can be rebuilt within six (6) months after the date of
destruction, Landlord may elect to rebuild the Property at Landlord's own
expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after
Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord.
Section 7.03. Temporary Reduction of Rent. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant to
the provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Tenant's use of the property is impaired. However, the reduction
shall not exceed the sum of one year's payment of Base Rent, insurance premiums
and real property taxes. Except for such possible
17
reduction in Base Rent, insurance premiums and real property taxes, Tenant shall
not be entitled to any compensation, reduction, or reimbursement from Landlord
as a result of any damage, destruction, repair, or restoration of or to the
Property. Anything to the contrary contained herein notwithstanding, in the
event that Tenant is prevented from occupying the Property for more than twelve
(12) consecutive months as a result of any such casualty, then Tenant may by
written notice to Landlord cancel this Lease.
Section 7.04. Waiver. Tenant waives the protection of any statute, code
or judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If neither Landlord or Tenant terminates this Lease,
this Lease shall remain in effect as to the portion of the Property not taken,
except that the Base Rent and Additional Rent shall be reduced in proportion to
the reduction in the floor area of the Property. Any Condemnation award or
payment shall be distributed in the following order: (a) first, to any ground
lessor, mortgagee or beneficiary under a deed of trust encumbering the Property,
the amount of its interest in the Property; (b) second, to Tenant, only the
amount of any award specifically designated for loss of or damage to Tenant's
trade fixtures or removable personal Property; provided, however, anything
herein to the contrary notwithstanding Tenant shall have the right to submit a
separate claim for any loss or damage which Tenant may have incurred by reason
of such condemnation and any award pursuant thereto may be retained by Tenant
free of any claim by Landlord or any other party so long as the same does not
reduce Landlord's award, it being specifically understood that Tenant shall not
be entitled to any award for loss of its leasehold estate or any portion of the
condemnation award which is attributable to the taking of any part of the
Project; and (c) third, to Landlord, the remainder of such award, whether as
compensation for reduction in the value of the leasehold, the
18
taking of the fee, or otherwise. If this Lease is not terminated, Landlord shall
repair any damage to the Property caused by the condemnation, except that
Landlord shall not be obligated to repair any damage for which Tenant has been
reimbursed by the condemning authority. If the severance damages received by
Landlord are not sufficient to pay for such repair, Landlord shall have the
right to terminate this Lease or make such repair at Landlord's expense
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the Property
or of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without Landlord's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold its
consent as provided in Section 9.05 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than twenty percent
(20%) of the partnership interests shall require Landlord's consent. If Tenant
is a corporation, any change in the ownership of fifty-one percent (51%) of the
issued and outstanding voting stock of the corporation shall require Landlord's
consent.
Section 9.02. Tenant Affiliate. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of rent from any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Tenant's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Tenant's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease.
Section 9.04. (Intentionally omitted)
Section 9.05. Landlord's Consent.
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(a) Tenant's request for consent to any transfer described in Section
9.01 shall set forth in writing the details of the proposed transfer, including
the name, business and financial condition of the prospective transferee,
financial details of the proposed transfer (e.g., the term of and the rent and
security deposit payable under any proposed assignment or sublease), and any
other information Landlord reasonably deems relevant. Landlord shall have the
right to withhold consent, if reasonable, or to grant consent, based on the
following factors: (i) the business of the proposed assignee or subtenant and
the proposed use of the Property; (ii) the net worth and financial reputation of
the proposed assignee or subtenant: (iii) Tenant's compliance with all of its
obligations under the Lease; and (iv) such other factors as Landlord may
reasonably deem relevant. If Landlord objects to a proposed assignment solely
because of the net worth and/or financial reputation of the proposed assignee,
Tenant may nonetheless sublease (but not assign), all or a portion of the
Property to the proposed transferee, but only on the other terms of the proposed
transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the
Lease the Landlord's share (stated in Section 1.14) of the Profit (defined
below) on such transaction as and when received by Tenant, unless Landlord gives
written notice to Tenant and the assignee or subtenant that Landlord's share
shall be paid by the assignee or subtenant to Landlord directly. The "Profit"
means (A) all amounts paid to Tenant for such assignment or sublease, including
"key" money, monthly rent in excess of the monthly rent payable under the Lease,
and all fees and other consideration paid for the assignment or sublease,
including fees under any collateral agreements, less (B) costs and expenses
directly incurred by Tenant in connection with the execution and performance of
such assignment or sublease for real estate Broker's commissions and cost of
renovation or construction of tenant improvements required under such assignment
or sublease. Tenant is entitled to recover such costs and expenses before Tenant
is obligated to pay the Landlord's share to Landlord. The Profit in the case of
a sublease of less than all the Property is the rent allocable to the subleased
space as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement
certifying all amounts to be paid from any assignment or sublease of the
Property within thirty (30) days after the transaction documentation is signed,
and Landlord may inspect Tenant's books and records during regular business
hours to verify the accuracy of such statement. On written request, Tenant shall
promptly furnish to Landlord copies of all the transaction documentation, all of
which shall be certified by Tenant to be complete, true and correct. Landlord's
receipt of Landlord's share shall not be a
20
consent to any further assignment or subletting. The breach of tenant's
obligation under this Paragraph 9.05(b) shall be a material default of the
Lease.
Section 9.06. No Merger. No merger shall result from Tenant's sublease
of the Property under this Article Nine, Tenant's Surrender of this Lease or the
termination of this Lease in any other manner. In such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the
Property results in the cancellation of any insurance described in Section 4.04;
(b) If within seven (7) days of the date the same is due, Tenant fails
to pay rent or any other charge;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30)-day period and thereafter diligently pursues
its completion. The notice required by this Paragraph is intended to satisfy any
and all notice requirements imposed by law on Landlord and is not in addition to
any such requirements.
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within sixty (60) days; (iii) if a trustee or receiver is appointed to
take possession of substantially all of Tenant's assets located at the Property
or of Tenant's interest in this Lease and possession is not restored to Tenant
within sixty (60) days; or (iv) if, substantially all of Tenant's assets located
at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other 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 subparagraph (d) is not in
21
default under this Lease, and a trustee is appointed to take possession (or if
Tenant remains a debtor in possession) and such trustee or Tenant transfers
Tenant's interest hereunder, then Landlord shall receive, as Additional Rent,
the excess, if any, of the rent (or any other consideration) paid in connection
with such assignment or sublease over the rent payable by Tenant under this
Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord had earned at the time of the termination; (ii) the worth at the time
of the award of the amount by which the unpaid Base Rent, Additional Rent and
other charges which Landlord would have earned after termination until the time
of the award exceeds the amount of such rental loss that Tenant proves Landlord
could have reasonably avoided; (iii) the worth at the time of the award of the
amount by which the unpaid Base Rent, Additional Rent and other charges which
Tenant would have paid for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves Landlord could have
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom, including, but not limited to, any costs or expenses
Landlord incurs in maintaining or preserving the Property after such default,
the cost of recovering possession of the Property, expenses of retailing,
including necessary renovation or alteration of the Property, Landlord's
reasonable attorneys' fees incurred in connection therewith, and any real estate
commission paid or payable. As used in subparts (i) and (ii) above, the "worth
at the time of the award" is computed by allowing interest on unpaid amounts at
the rate of fifteen percent (15%) per annum, or such lesser amount as may then
be the maximum lawful rate. As used in subpart (iii) above, the "worth at the
time of the award" is computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of
22
the award, plus one percent (1%). If Tenant has abandoned the property, Landlord
shall have the option of (i) retaking possession of the Property and recovering
from Tenant the amount specified in this Paragraph 10.03(a), or (ii) proceeding
under Paragraph 10.03(b).
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due;
(c) Pursue any other remedy now or hereafter available under the laws
or judicial decisions of the state in which the Property is located.
Section 10.04. Repayment of "Free" Rent. If this Lease provides for a
postponement of any monthly rental payments, a period of "free" rent or other
rent concession, such postponed rent or "free" rent is called the "Abated Rent".
Tenant shall be credited with having paid all of the Abated Rent on the
expiration of the Lease Term only if during the term of the Lease (a) Tenant has
not abandoned the Property, (b) Landlord has not retaken possession of the
Property due to Tenant's default, and (c) Landlord has not had to institute an
action against Tenant to collect rent. If any of the conditions set forth in the
preceding sentence are not satisfied, then Abated Rent shall immediately become
due and payable in full and this Lease shall be enforced as if there were no
such rent abatement or other rent concession. In such case Abated Rent shall be
calculated based on the full initial rent payable under this Lease.
Section 10.05. Termination. Notwithstanding any other term or
provisions hereof to the contrary, the Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 10.03 hereof, including the filing of all unlawful detainer
action against Tenant. On such termination, Landlord's damages for default shall
include all costs and fees, including reasonable attorneys' fees that Landlord
incurs in connection with the filing, commencement, pursuing and/or defending of
any action in any bankruptcy court or other court with respect to the Lease; the
obtaining of relief from any stay in bankruptcy restraining any action to evict
Tenant; or the pursuing of any action with respect to Landlord's right to
possession of the Property. All such damages suffered (apart from Base Rent and
other rent payable hereunder) shall constitute pecuniary damages which must be
reimbursed to Landlord prior to assumption of the Lease by Tenant or any
successor to Tenant in any bankruptcy or other proceeding.
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Section 10.06. Cumulative Remedies. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS AND PURCHASERS
Section 11.01. Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidation, replacements or extensions thereof,
whenever made or recorded. Tenant shall cooperate with Landlord and any lender
which is acquiring a security interest in the Property or the Lease. Tenant
shall execute such further documents and assurances as such lender may require,
provided that Tenant's obligations under this Lease shall not be increased in
any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Tenant's right to quiet possession of the Property during the Lease Term shall
not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. Tenant shall not
be obligated to enter into any subordination of the Lease, as aforesaid, unless
and until with respect to any such ground lease, deed of trust or mortgage, the
Landlord under such ground lease, the beneficiary under such deed of trust or
the mortgagee under such mortgage executes and delivers to Tenant a
subordination, non-disturbance and attornment agreement. Furthermore, such
subordination, non-disturbance and attornment agreement shall provide, among
other matters, that upon any termination of such ground lease or foreclosure of
any such deed of trust or mortgage, as the case may be, the successor to
Landlord through such termination and/or foreclosure will assume, observe and
perform all of Landlord's obligations under the Lease which are to be performed
during the period of time that such successor owns the Property. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording thereof.
Section 11.02. Attornment. If Landlord's interest in the Property is
acquired by any purchaser, assignee, transferee, ground lessor, beneficiary
under a deed of trust, mortgagee, or parties at a foreclosure sale, Tenant shall
attorn to the transferee of or successor Landlord's interest in the Property and
recognize such transferee or successor as Landlord under this Lease. Tenant
waives the protection of any statute or rule of law which gives or purports to
give Tenant any right to terminate this Lease or surrender possession of the
Property upon the transfer of Landlord's interest.
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Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so, provided such documents are in form and
content reasonably acceptable to Tenant.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not been
canceled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that Landlord is
not in default under this Lease (or, if Landlord claimed to be in default,
stating why); and (v) such other representations or information with respect to
Tenant or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Landlord
may give any such statement by Tenant to any prospective purchaser or
encumbrancer of the Property. Such purchaser or encumbrancer may conclusively
upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or encumbrancer,
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 Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
Section 11.05. Tenant's Financial Condition. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord its annual
financial statement, together with the report of its independent public
accountants and such monthly unaudited financial statements for the period after
the date of the annual financial statement as Tenant may have prepared in the
normal course of its operation. In addition, Tenant shall deliver such financial
information to any lender designated by Landlord to facilitate the financing or
refinancing of the Property. Tenant represents and warrants to Landlord that
each such financial statement is a true and accurate statement as of the date of
such statement. All financial statements shall be confidential and shall be used
only for the purposes set forth in this Lease.
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Landlord agrees to use reasonable discretion in the request and use of Tenant's
financial information.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any costs
or expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease only if suit is commenced and a
party prevails. 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. The losing party in such action shall pay such attorneys' fees
and costs. Tenant shall also indemnify Landlord against and hold Landlord
harmless from all costs, expenses, demands and liability Landlord may incur if
Landlord becomes or is made a party to any claim or action (a) instituted by
Tenant against any third party, or by any third party against Tenant, or by or
against any person holding any interest under or using the Property by license
of or agreement with Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Tenant or such other person;
or (d) necessary to protect Landlord's interest under this Lease in a bankruptcy
proceeding, or other proceeding under Title 11 of the United States Code, as
amended. Tenant shall defend Landlord against any such claim or action at
Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs
Landlord incurs in any such claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting) in an amount
not to exceed $1,000, or in connection with any other act which Tenant proposes
to do and which requires Landlord's consent. Wherever in this Lease Tenant is
required to obtain Landlord's consent, Landlord agrees that it will not
unreasonably withhold such consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
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Section 13.02. Landlord's Liability: Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or Project or the leasehold
estate under a ground lease of the Property or Project at the time in question.
Each Landlord is obligated to perform the obligations of Landlord under this
Lease only during the time such Landlord owns such interest or title, but
Landlord shall nonetheless remain liable for any material breaches occurring
during its term as Landlord. Any Landlord who transfers its title or interest is
relieved of all liability with respect to the obligations of Landlord under this
Lease to be performed on or after the date of transfer. However, each Landlord
shall deliver to its transferee all funds that Tenant previously paid if such
funds have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord. Landlord shall not
be in default under this Lease unless Landlord (or such ground lessor, mortgagee
or beneficiary) fails to cure such nonperformance within thirty (30) days after
receipt of Tenant's notice. However, if such nonperformance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30) day period and thereafter diligently
pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property and the Project,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect,
Section 13.04. Interpretation. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the Singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Tenant's expressed or
implied permission.
Section 13.05. Incorporation of Prior Agreements; Modifications. This
Lease is the only agreement between the
27
parties pertaining to the lease of the Property and no other agreements are
effective. All amendments to this Lease shall be in writing and signed by all
parties. Any other attempted amendment shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail, return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.03 above, except that upon
Tenant's taking possession of the Property, the Property shall be tenant's
address for notice purposes. Notices to Landlord shall be delivered to the
address specified in Section 1.02 above. All notices shall be effective upon
delivery. Either party may change its notice address upon written notice to the
other party.
Section 13.07. Waivers. All waivers must be in writing and signed by
the waiving party, Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.08. No Recordation. Tenant shall not record this Lease or
any memorandum or other document describing or referring to this Lease without
prior written consent from Landlord. However, Landlord may require that a "Short
Form" memorandum of this Lease executed by both parties be recorded. The party
requesting any recording shall pay all transfer taxes and recording fees.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any
party who legally acquires any rights or interest in his lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. Upon
execution of this Lease, Tenant shall deliver to Landlord a certified copy of a
resolution of Tenant's Board of Directors authorizing the execution of this
Lease or other evidence of such authority reasonably acceptable to Landlord. If
Tenant is a partnership, each person or entity signing this Lease for Tenant
represents and warrants that he or it is a general partner of the partnership,
that he or it has full authority to sign for the partnership and that this Lease
binds the partnership and all general partners of the partnership. Tenant shall
give written
28
notice to Landlord of any general partner's withdrawal or addition. Within
thirty (30) days after this Lease is signed, Tenant shall deliver to Landlord a
copy of Tenant's recorded statement of partnership or certificate of limited
partnership.
Section 13.1 1. Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. (intentionally omitted).
Section 13.13. Execution of Lease. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Landlord's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. Survival. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
Section 13.15. Time of Essence. Time is of the essence in the
performance of the obligations created by this Lease.
ARTICLE FOURTEEN: BROKERS
Section 14.01. Broker's Fee. When this Lease is signed by and delivered
to both Landlord and Tenant, Landlord shall pay a real estate commission to
Landlord's Broker named in Section 1.08 above, If any, as provided In the
written agreement between Landlord and Landlord's Broker.
Section 14.02. (Intentionally omitted).
Section 14.03. Agency Disclosure; No Other Brokers. Landlord and Tenant
each warrant that they have dealt with no other real estate broker(s) in
connection with this transaction. Brokerage or finders fees payable to any
person or entity in any way relating to this Lease shall be the sole
responsibility of the party contracting to pay the same, and each party agrees
to indemnify and hold harmless the other against any loss, cost or expense
(including attorney's fees) which the other may incur by reason of any claim for
such commissions or fees based on an agreement with the indemnifying party.
ARTICLE FIFTEEN: ADDITIONAL PROVISIONS
Section 15.01. Telephone Line. Tenant shall have the right at Tenant's
expense to install an underground telephone and computer lines to the Property
from its adjacent building located to the west of the Property. Following the
installation of the telephone
29
and computer lines, Tenant shall return the parking lot to the same condition as
existed prior to any trenching.
Section 15.02. Options to Renew. Landlord grants Tenant two consecutive
options to extend the Lease Term for additional periods of one (1) year each,
provided, however, that written notice by registered or certified mail of the
exercise of such option shall be given to Landlord by Tenant at least 180 days
before the expiration of the then current Lease Term and Tenant may not be in
default in the performance of any of its obligations under this Lease at the
time of exercising the applicable option. All of the terms and conditions of
this Lease shall remain the same during the option periods except there shall be
no additional options and the monthly Base Rent for each of the option periods
shall be as follows:
First Option $ .69 per square foot;
Second Option $ .72 per square foot.
Each extended period of the Lease Term shall commence immediately at the end of
the immediately preceding period. Should Tenant fail to timely exercise any
option, all options to extend the Lease Term for any period after such
unexercised option shall lapse and terminate.
Section 15.03 First Right to Lease. In the event that Landlord elects
to lease Suites 201, 203 or 209 of 0000 X. 00xx Xxx, Xxxxxxxxxx, Xxxxxxx, and
provided that Tenant is not in default hereunder, Landlord shall deliver a
written notice (the "Offering Notice") to Tenant of such intention to lease. The
Offering Notice shall state the rent and term of the proposed lease, along with
a description of the property subject to the proposed lease. Delivery of the
Offering Notice to Tenant shall be deemed to be an offer by Landlord to lease
the space described in the Offering Notice (the "Option Space") to Tenant upon
the then customary lease form used by Landlord. The offer must be accepted
within three (3) days of the delivery of the Offering Notice to Tenant (the
"Acceptance Period") and may not be withdrawn by Landlord within that period.
Tenant may accept the offer by delivering a written notice of acceptance of the
offer to Landlord on or before the last day of the Acceptance Period. Tenant may
accept such offer for all but not less than all the space described in the
Offering Notice. Failure to give timely notice of acceptance shall be deemed
rejection of the offer.
Following Tenant's rejection of any offer made pursuant to this Section
15.03, Tenant shall execute, acknowledge and deliver any document or instrument
reasonably requested by Landlord acknowledging such rejection and confirming
Tenant's waiver of any and all rights to any qualifying lease. All rights and
obligations of the parties under this Section 15.03 shall cease and terminate
upon expiration or other termination of this Lease, and in that
30
event, Tenant shall execute, acknowledge and deliver any document or instrument
reasonably requested by Landlord acknowledging the expiration or other
termination of this Lease and confirming the cessation and termination of all
rights and obligations of the parties.
Section 15.04. Option to Lease. In the event that (a) Landlord has not
entered into a lease for any or all of Suites 201, 203 and 209 of 0000 Xxxxx
00xx Xxx, Xxxxxxxxxx, Xxxxxxx, by December 31, 1996, (b) the Acceptance Period,
if any, under Section 15.03 above has expired, and (c) there is no pending first
right to lease under Section 15.03 above, then as long as Tenant is not in
default under the terms of this Lease, Tenant shall, subject to the provisions
of Section 15.03, have the right upon thirty (30) days prior written notice to
Landlord to lease Suites 201, 203 and 209. In the event Tenant exercises its
option to lease Suites 201, 203 and 209 in accordance with this Section 15.04,
the rental shall be at the same rate then applicable for space as set forth in
Exhibit "B", and such rental rates shall increase by the same amount and on the
same dates as the rental increases for the space on Exhibit "B". The term of the
Lease for such space shall expire October 31, 1999. Except as specifically set
forth in this Section 15.04, Tenant's occupancy of Suites 201, 203 and 209 under
the provisions of this Section 15.04 shall be upon all the same terms and
conditions set forth in this Lease. Tenant agrees to accept Suites 201, 203 and
209 in "AS IS" condition. Notwithstanding any of the foregoing provisions of
this Section 15.04 to the contrary, the provisions of Section 15.03 shall take
precedence over the foregoing provisions of this Section and should Landlord,
pursuant to Section 15.03, lease all or any of Suites 201, 203 or 209 of 0000
Xxxxx 00xx Xxx, Xxxxxxxxxx, Xxxxxxx, to a third party, their such suite or
suites shall thereafter be exempt from the provisions of this Section. If Tenant
has rejected or is deemed to have rejected any offering under Section 15.03,
Tenant shall not have the right to exercise its rights under this Section with
respect to the suite or suites included within the rejected offering during the
90-day period in which Landlord may rent such suite or suites to a third party.
Section 15.05. Representation of Landlord. Landlord represents and
warrants to Tenant as follows:
(a) Landlord is the owner of the buildings located at 9318 and 0000
Xxxxx 00xx Xxx, Xxxxxxxxxx, Xxxxxxx (the "Buildings").
(b) The Buildings are in compliance with all applicable laws and
ordinances that are material to Tenant's occupancy and use of the Buildings.
(c) Landlord has full right and authority to enter into this Lease.
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(d) There are no latent defects in the Buildings that would materially
affect Tenant's use or occupancy of the Buildings.
(e) All utility service reasonably necessary for Tenant's use and
occupancy is already installed or available to the Property.
(f) There are no Hazardous Materials located upon or within the
Buildings that would materially affect Tenant's use or occupancy of the
Buildings.
(g) Any item of property that Tenant is required to maintain in
accordance with the terms of this Lease is on the date of this Lease in good
working order and repair.
Landlord and Tenant have signed this Lease on the dates specified
adjacent to their signatures below.
"LANDLORD"
Signed on July 26, 1996. PETROLEUM, INC.,
a Kansas corporation
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: Senior Vice-President
Signed on August 22, 1996 "TENANT"
ANTIGUA GROUP, INC.,
an Arizona corporation
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx.
Its: President and CEO
32
EXHIBIT A
SKETCH OF XXXXX XXXXX XXXX - XXXXXXXX X
Xxxxxx 000, 000, 104, 105, 106, 107, 108 and 109.
Gross Building Area: 37,454 sf
Common Area: 3,175 xx
Xxxxx Less Common Area: 34,279 sf
Load Factor: 9.3%
SKETCH OF XXXXX XXXXX XXXX - XXXXXXXX X
Xxxxxx 000, 000, 103, 105, 107, 108 and 109.
Gross Building Area: 37,454 sf
Common Area: 3,175 xx
Xxxxx Less Common Area: 34,279 sf
Load Factor: 9.3%
XXXXXX XXXXX XXXX - XXXXXXXX X
Xxxxxx 000-000, 209, Roof Below
00
XXXXXXX X
XXXXX XX. XX. FT.
BUILDING A 203 B 1,612
109 3,026
108 3,117
107 3,282
106 3,166
103 3,140
104-105 6,357
101 3,004
BUILDING B 109 3,025
TOTAL 29,729
EXHIBIT C
NONE.
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EXHIBIT D
RULES AND REGULATIONS
---------------------
1. No sign, placard, picture, advertisement, name or notice shall be inscribed,
displayed or printed or affixed on or to any part of the outside or inside of
the Building without the written consent of Landlord first had and obtained and
Landlord shall have the right to remove any such placard, picture,
advertisement, name or notice without to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted, affixed
or inscribed at the expense of the Tenant by a person approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly from
outside the premises, provided, however, that Landlord may furnish and install a
Building standard window covering at all exterior windows. Tenant shall not
without prior written consent of Landlord cause or otherwise sunscreen any
window.
2. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by any of the tenants or used by them for any purpose
other than for ingress and egress from their respective premises.
3. Tenant will be furnished keys to the Tenant's Premises without charge. Tenant
may duplicate such keys for its own use as needed at Tenant's own expense.
Tenant shall exercise strict care to ensure that any keys Tenant has in tenant's
possession are neither lost nor made available to any unauthorized party. Upon
expiration or any termination of a Tenant's Lease, all keys to tenant's premises
and to the Building in tenant's possession shall be surrendered to Landlord.
Tenant shall not add, change, or re-key the locks to or within its Premises
without the written consent of Landlord. Tenant shall not alter any lock or
install any new or additional locks or any bolts on any doors or windows of the
premises. Landlord's acceptance of any keys returned by Tenant shall not
constitute an agreement that any Lease is terminated or modified in any way.
Tenant shall not install security systems in its Premises without the prior
written consent of Landlord.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be thrown therein and the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by the Tenant who, or those employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the premises or in any way deface the
premises or any part thereof.
35
6. No furniture, freight or equipment of any kind ("Movable Items") shall be
brought into the Building without the prior notice to Landlord and all moving of
the same into or out of the Building shall be done at such time and in such
manner as Landlord shall designate. Tenant shall notify Landlord reasonably in
advance of the date Tenant wishes to move such Movable Items into or out of the
building. Landlord shall designate which elevator is to be used for moving such
Movable Items. Movable Items shall be adequately padded in order to protect the
Building and elevator from scratches and damage. Movable Items may be moved into
or out of the Building only at such time as when the Building is normally open.
Any hand trucks or dollies used for moving Movable Items shall be equipped with
rubber wheels. Any vehicle used in the delivery or removal of Movable Items
shall be parked only where permitted by Landlord so as not to disrupt the normal
business of other Tenants of the Building or the normal operation of the
Building. Landlord shall have the unrestricted right to prescribe and limit
size, weight, final positioning and installation of any Movable Items brought
into the Building. In no event shall Tenant knowingly bring Movable Items into
the Building which exceed a weight per square foot of floor space utilized which
may be dangerous or detrimental to the Building. Any scratching or damage done
to the Building by Tenant while moving such Movable Items into or out of the
Building shall be immediately and professionally repaired at the Tenants
expense.
Landlord shall have the right to prescribe the weight, size and position of
all safes and other heavy equipment brought into the Building and also the times
and manner of moving the same in and out of the Building. Safes or other heavy
objects shall, if considered necessary by Landlord, stand on supports of such
thickness as is necessary to property distribute the weight. Landlord will not
be responsible for loss of or damage to any such safe or property from any cause
and all damage done to the building shall be repaired at the expense of Tenant.
36
7. Tenant shall not use, keep or permit to be used any or kept any foul or
noxious gas or substance in the premises, or permit or suffer the premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any fish, birds, or animals be brought in or kept in or about the premises
or the Building, except when needed by the visually impaired.
8. No cooking shall be done or permitted by any Tenant on the premises, nor
shall the premises be used for the storage of merchandise, for washing clothes,
for lodging, or for any improper, objectionable or immoral purposes.
9. Tenant shall not use or keep in the premises or the Building any kerosene,
gasoline or flammable or combustible fluid or material, or use any method of
heating or air conditioning other than that supplied by Landlord.
10. Landlord will direct electricians as to where and how telephone wires are to
be introduced. No boring or cutting for wires will be allowed without the
consent of the Landlord. The location of telephones, call boxes and other office
equipment affixed to the premises shall be subject to the approval of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 P.M. and 8:00 A.M. the following day, access to the Building, or
to the halls, corridors, elevators or stairways in the Building, or to the
premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
The Landlord shall in no case be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case of
invasion, mob, riot, public excitement, or other combination, the Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing of the doors or otherwise, for the safety of the tenants and
protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any person
who, in the judgment of Landlord, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
13. No vending or arcade machine or machines of similar description shall be
installed, maintained or operated upon the premises without the written consent
of the Landlord.
14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building of
which the premises are a part.
37
15. Tenant shall not disturb, solicit, peddle or canvass any occupant of the
Building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business of
Tenant except as Tenant's address.
17. Landlord shall have the right to control and operate the public portions of
the Building, and the public facilities furnished for the common use of the
tenants, in such manner as it deems best for the benefit of the tenants
generally.
18. All entrance doors in the premises shall be left locked when the premises
are not in use, and all doors opening to public corridors shall be kept closed
except for normal ingress and egress from the premises.
19. Unless Tenant or its employees are using the Premises, no unattended vehicle
may be left in the parking area of the Building between the hours of 8:00 P.M.
and 6:00 A.M. of the following day. Parking spaces marked for the handicapped
shall only be used by persons who are handicapped and are driving vehicles
marked with a handicapped sticker. Anything to the contrary herein
notwithstanding, Landlord shall have the unrestricted right to control all
parking about the Building by whatever methods and means it desires. Tenant and
its employees shall adhere to and obey all parking control measures as may be
placed into effect at any time and from time to time by Landlord through the use
of numbered parking spaces, signs, stickers or identifying decals to be placed
on vehicles, or any other measures, methods, or means. Landlord may change such
parking control measures from time to time at its sole discretion. Any vehicle
violating the Buildings parking signs, parked in a reserved space in which it
has not right, parked in a visitor space when the driver is a Tenant or an
employee of Tenant, parked in a handicapped space without a handicapped sticker
affixed to the vehicle, blocking a driveway, or otherwise parked as prohibited
or in violation of Landlord's parking control measures, shall, by Landlord's
option, be towed away at the violating owner's expense or, when applicable, be
subject to citation, all without Landlord incurring any liability.
20. Upon noticing a situation concerning the Premises which could result in
damage to its Premises or the Building, Tenant shall immediately provide written
notice to Landlord. In an emergency situation, Tenant shall take immediate and
appropriate action to protect Tenant's Premises or the Building.
21. Tenant shall never at any time use its Premises as a sleeping or lodging
quarters. Tenant shall not install any lighting fixture or sound speaker or any
other device in or above the suspended ceiling of its Premises and shall not
hang potted plants or any other items from such ceiling without the prior
written consent of the Landlord. Tenant may hang pictures and other
light-weighted items on drywalled walls within its Premises by the use of metal
38
picture hangers only, and on wood paneled walls by the use of small nails driven
into the grooving of such wood paneling. Except for the foregoing, no other type
of fastener or hanger shall ever be used for any purpose on any wall within the
Premises. Tenants are prohibited from painting any masonry, wallpapered or
paneled wall within its Premises without the prior written consent of Landlord.
22. Tenant shall keep a hard surface such as plastic or masonite under each and
every chair in the Premises which is located in a carpeted area and which is
used at a person's work station (as opposed to a visitor's chair) to protect the
carpeting. Also, all furniture having legs shall be equipped with a "coaster"
for each leg to protect the carpet from indentations. Tenant shall further
maintain all carpeting in its Premises which shall include shampooing and
re-stretching.
23. Tenant shall supply and install, at its expense, all lighting tubes for
fluorescent light fixtures in Tenant's Premises, and Tenant shall supply and
install, at its expense, all incandescent bulbs in its Premises.
24. Should a toilet room be a part of the Tenant's Premises, Tenant shall supply
and install, at its expense, all toilet room supplies.
25. Tenant shall never deposit used injection needles in any trash container.
Such needles shall be placed in some type of hardcover container and disposed of
as required by government regulations.
26. Landlord shall have the right to prohibit any advertising by any Tenant
which, in the Landlord's opinion, materially impairs the reputation of the
Building or its desirability and, upon written notice from Landlord, Tenant
shall refrain from or discontinue such advertising or promotion.
27. Tenant shall not install or affix any type of radio or television antenna to
any part of its Premises or the Building without the prior written consent of
Landlord.
28. Tenant shall not conduct any auction or permit any fire or bankruptcy sale
to be held in the Premises or about the Building.
29. Any door opening from Tenant's Premises onto any common area of the Building
shall be kept closed at all times, except for normal ingress and egress.
Bicycles or other vehicles shall not be permitted in the office or corridors in
the building.
30. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, jewelry or any other item from Tenant's Premises or from
common areas of the Building regardless of whether such loss or theft occurs
when such Premises or whether or not the Building is locked.
39
31. Tenant, when leaving its premises shall see that all water faucets or water
apparatus have been shut off, and that all electricity and electrical appliances
have been shut off, so as to prevent waste or damage.
32. Tenant shall not throw cigar or cigarette butts, or other substances or
litter of any kind, in or about the Building, except in receptacles provided for
that specific purpose, and in those areas as designated by Landlord for those
purposes.
33. Tenant shall not obstruct the driveways, parking areas, sidewalks or
entrances and exits of the Building, but shall use same only as ingress to and
egress from its Premises.
34. Tenant shall refer all contractors, service people, installation technicians
and the like who are rendering any service on or to its Premises to Landlord for
Landlord's reasonable approval and supervision prior to the performance of any
work or service. This requirement shall apply to all work or service to be
performed in Tenant's Premises or in the Building, including installation and
service of telephone, computers and any other items of a physical nature.
Landlord shall be given reasonable notice prior to a Tenant expecting Landlord's
approval or supervision.
35. Landlord shall not be responsible to Tenant or to any other person for the
non-observance or violation of these Rules and Regulations by any Tenant or by
any other person. Tenant shall be deemed to have read these Rules and
Regulations and to have agreed to abide by them as a condition to their
occupancy of its Premises. Landlord shall use reasonable efforts to assist
Tenant with any problems it may have with a Tenant in an adjoining suit.
36. Should any Tenant incur or become liable for any cost, charge, or expense
under these Rules and Regulations, such Tenant shall pay same upon demand by
Landlord, and failure to do so within five (5) days after such demand shall
constitute, at Landlord's option, a material breach and default of Tenant under
its Lease.
37. Landlord shall have the unrestricted right, at any time, and from time to
time, to rescind any one or more of these Rules and Regulations, or to make such
other and further reasonable rules and regulations as in Landlord's judgment
may, from time to time, be necessary for the operation, maintenance, safety,
care and cleanliness of Tenant's Premises and of the Building and for the
preservation of order therein.
38. Increase in Risk. No tenant shall do anything in the Leased premises and/or
the Building or bring or keep anything therein which will in anyway increase or
tend to increase the risk of fire or which shall conflict with the regulations
of the fire Department or the fire laws or with any rule ordinances established
by the Board of Health. No tenant shall use any machinery which may cause
40
any objectionable noise, jar or tremor to the floors or walls or which by its
weight may injure the floor of the building.
39. Locking of Leased Premises. Each tenant shall see that the windows and doors
of the Leased Premises are close and securely locked before leaving the Leased
Premises and that all lights are properly turned off.
40. Notice of Accidents. Each tenant shall give Landlord prompt notice of any
accident or defect on the Building, the Leased Premises, the plumbing,
electrical wiring, heating or air conditioning so that the same may be attended
to promptly.
41. Cooperation with Landlord. Each tenant shall cooperate with Landlord in
obtaining maximum effectiveness of the cooling system by closing spaces and/or
other window coverings when the sun's rays fall on the window of leased
Premises. No tenant shall temper with or alter or change the setting of any
thermostats or temperature control valves.
ANTIGUA GROUP, INC.,
an Arizona corporation
Date: ___________________ Signed ______________________________
By: Xxxxxx X. Xxxxxx, Xx.
Its: President
00
XXXXXXX X
XXXXX XX. XX. FT.
BUILDING A 203 B 1,612
109 3,026
108 3,117
107 3,282
106 3,166
103 3,140
104-105 6,357
101 3,004
BUILDING B 109 3,025
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TOTALS 29,729
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