EXHIBIT 10.57
OFFICE LEASE AGREEMENT
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PAN AMERICAN BANK, F.S.B.
NORTHERN TRUST BANK TOWER
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TABLE OF CONTENTS
ARTICLE l. SUMMARY AND DEFINITION OF CERTAIN LEASE PROVISIONS AND EXHIBITS............ 1
ARTICLE 2. PREMISES/RIGHT TO USE COMMON AREAS......................................... 2
ARTICLE 3. TERM....................................................................... 2
ARTICLE 4. MINIMUM MONTHLY RENT....................................................... 2
ARTICLE 5. ADDITIONAL RENT/EXPENSE STOP............................................... 3
ARTICLE 6. PARKING.................................................................... 4
ARTICLE 7. RENT TAX AND PERSONAL PROPERTY TAXES....................................... 4
ARTICLE 8. PAYMENT OF RENT/LATE CHARGES............................................... 4
ARTICLE 9. SECURITY DEPOSIT........................................................... 5
ARTICLE 10. CONSTRUCTION OF THE PREMISES............................................... 5
ARTICLE 11. ALTERATIONS................................................................ 5
ARTICLE 12. FIXTURES/PERSONAL PROPERTY/SURRENDER OF PREMISES........................... 5
ARTICLE 13. LIENS...................................................................... 6
ARTICLE 14. USE OF PREMISES/RULES AND REGULATIONS...................................... 6
ARTICLE 15. RIGHTS RESERVED BY LANDLORD................................................ 7
ARTICLE 16. QUIET ENJOYMENT............................................................ 7
ARTICLE 17. MAINTENANCE AND REPAIR..................................................... 8
ARTICLE 18. UTILITIES AND JANITORIAL SERVICES.......................................... 8
ARTICLE 19. ENTRY AND INSPECTION....................................................... 9
ARTICLE 20. ACCEPTANCE OF THE PREMISES/LIABILITY INSURANCE/INDEMNIFCATION OF LANDLORD.. 9
ARTICLE 21. PROPERTY AND CASUALTY INSURANCE............................................ 10
ARTICLE 22. DAMAGE AND DESTRUCTION OF PREMISES......................................... 10
ARTICLE 23. EMINENT DOMAIN............................................................. 11
ARTICLE 24. ASSIGNMENT AND SUBLETTING.................................................. 11
ARTICLE 25. SALE OF PREMISES BY LANDLORD............................................... 12
ARTICLE 26. SUBORDINATION/ATTORNMENT/MODIFICATION/ASSIGNMENT........................... 12
ARTICLE 27. LANDLORD'S DEFAULT AND RIGHT TO CURE....................................... 12
ARTICLE 28. ESTOPPEL CERTIFICATES...................................................... 12
ARTICLE 29. TENANT'S DEFAULT AND LANDLORD'S REMEDIES................................... 14
ARTICLE 30. TENANT'S RECOURSE.......................................................... 15
ARTICLE 31. HOLDING OVER............................................................... 15
ARTICLE 32. GENERAL PROVISIONS......................................................... 16
ARTICLE 33. NOTICES.................................................................... 17
ARTICLE 34. BROKER'S COMMISSIONS....................................................... 17
Landlord ______
Tenant ______
TABLE OF CONTENTS
ADDENDUM TO OFFICE LEASE AGREEMENT
ARTICLE 35. AGREEMENT........................................................... ADDENDUM-1
ARTICLE 36. TERM................................................................ ADDENDUM-1
ARTICLE 37. MINIMUM MONTHLY RENT................................................ ADDENDUM-1
ARTICLE 38. ADDITIONAL RENT/EXPENSE STOP........................................ ADDENDUM-1
ARTICLE 39. TAXES............................................................... ADDENDUM-1
ARTICLE 40. SECURITY DEPOSIT.................................................... ADDENDUM-I
ARTICLE 41. HAZARDOUS MATERIALS................................................. ADDENDUM-I
ARTICLE 42. RIGHTS RESERVED BY LANDLORD......................................... ADDENDUM-1
ARTICLE 43. MAINTENANCE AND REPAIR.............................................. ADDENDUM-1
ARTICLE 44. UTILITIES........................................................... ADDENDUM-1
ARTICLE 45. ENTRY AND INSPECTION................................................ ADDENDUM-2
ARTICLE 46. ACCEPTANCE OF THE PREMISES/LIABILITY
INSURANCE/INDEMNIFCATION OF LANDLORD............................... ADDENDUM-2
ARTICLE 47. PROPERTY AND CASUALTY INSURANCE..................................... ADDENDUM-2
ARTICLE 48. SUBORDINATION/ATTORNMENT/MODIFICATION/ASSIGNMENT.................... ADDENDUM-2
ARTICLE 49. LANDLORD'S DEFAULT AND RIGHT TO CURE................................ ADDENDUM-2
ARTICLE 50. ESTOPPEL CERTIFICATES............................................... ADDENDUM-2
ARTICLE 51. TENANT'S DEFAULT AND LANDLORD'S REMEDIES............................ ADDENDUM-3
ARTICLE 52. TENANT'S RECOURSE................................................... ADDENDUM-3
ARTICLE 53. NOTICES............................................................. ADDENDUM-3
ARTICLE 54. BROKER'S COMMISSIONS................................................ ADDENDUM-3
ARTICLE 55. LEASE GUARANTEE..................................................... ADDENDUM-3
ARTICLE 56. LEASEHOLD IMPROVEMENT ALLOWANCE..................................... ADDENDUM-3
ARTICLE 57. SIGNAGE............................................................. ADDENDUM-3
ARTICLE 58. RIGHT OF TERMINATION................................................ ADDENDUM-3
Landlord ______
Tenant ______
ii
OFFICE LEASE AGREEMENT
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PAN AMERICAN BANK, F.S.B.
NORTHERN TRUST BANK TOWER
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THIS OFFICE LEASE AGREEMENT, dated February 28, 1997, is made and entered into
by P.R.A. BILTMORE INVESTMENTS, L.L.C., an Arizona limited liability company
(the "Landlord"), and PAN AMERICAN BANK, F.S.B., a federal savings bank (the
"Tenant"). In consideration of the mutual promises and representations set forth
in this Lease, the Landlord and Tenant agree as follows:
ARTICLE 1. SUMMARY AND DEFINITION OF CERTAIN LEASE PROVISIONS AND EXHIBITS
1.1 The following terms and provisions of this Lease, as amplified and
modified by other terms and provisions hereof, are included in this Section 1.1
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for summary and definitional purposes only. If there is any conflict or
inconsistency between any term or provision in this Section 1.1 and any other
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term or provision of this Lease, the other term or provision of this Lease shall
control:
(a) Landlord: P.R.A. Biltmore Investments, L.L.C., an Arizona limited
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liability company.
(b) Address of Landlord for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
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Phoenix, Arizona 85016-9002
with a copy to: Mile High Realty Advisors, L.L.C.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Property Manager
and with a copy to: ▇▇▇▇▇▇ & Posner, 300 Biltmore Commerce Center,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(c) Tenant: Pan American Bank, F.S.B., a federal savings bank
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(d) Address of Tenant for Notices: ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
(e) Lease Term: Three (3) years, plus the remainder of any partial
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calendar month in which the Lease Term commences, beginning on the
Commencement Date defined in Section 3.1.
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(f) Building: The office building known as the Northern Trust Bank Tower
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located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Building"), which is part of the project (the "Project") known as the
Biltmore Financial Center.
(g) Premises: Suite 310 on the third (3rd) floor of the building, as shown
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on Exhibit A, containing 2,518 usable square feet/2,860 Rentable
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Square Feet.
(h) Minimum Monthly Rent: $5,839.17 for each full calendar month during
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the Lease Term commencing on the Commencement Date, which is computed
on the basis of $24.50 per Rentable Square Foot.
(i) Tenant's Pro Rata Share: Ninety-nine hundredths percent (.99%) which
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represents the percentage that the Rentable Square Footage of the
Premises (2,860) bears to the Rentable Square Footage of the Building
(288,435). (See Article 5).
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(j) Expense Stop: An amount equal to Tenant's Pro Rata Share of the
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Operating Costs (as defined in this Lease) for the twelve (12) month
period ending December 31, 1997 (the "Base Year") calculated under the
assumption that throughout the Base Year, the Building is at least
ninety-five percent (95%) occupied. (see Article 5).
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(k) Security Deposit: $5,839.17 (See Article 9).
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(l) Parking: Two (2) reserved parking spaces at $65.00 per month each and
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seven (7) unreserved parking spaces at $45.00 per month each.
(m) Leasehold Improvement Allowance: An amount equal to the product of
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Eight Dollars ($8.00) multiplied by the number of Usable Square Feet of
the Premises (see Article 56).
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1.2 The following exhibits (the "Exhibits") and addends are attached hereto
and incorporated herein by this reference:
Exhibit A Third (3rd) Floor Plan of the Building indicating Premises
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Exhibit A-1 Tenant's Leasehold Improvements
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Exhibit B Building Standard Work Letter for Tenant Improvements
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Exhibit C Building Rules and Regulations
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Exhibit D Telecommunications Lease Rider
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Exhibit E Lease Guarantee (None) (See Article 55).
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Addendum to Office Lease Agreement (the "Addendum"), dated of even date
herewith, consisting of four (4) pages.
The Office Lease Agreement, the Addendum and the Exhibits are collectively
referred to herein as the "Lease."
ARTICLE 2. PREMISES/RIGHT TO USE COMMON AREAS
2.1 Landlord leases to Tenant and Tenant leases from Landlord the Premises,
for and subject to the rents, terms, conditions, covenants, and provisions set
forth in this Lease. This Lease is subject to all liens, encumbrances, ground
leases, easements, restrictions, covenants (including the Declaration of
Covenants, Conditions, Restrictions, Assessments, Charges, Servitudes, Liens,
Reservations and Easements for the Project, dated July 20, 1987, as amended
(the "Declaration") and other matters of record, the Building Rules and
Regulations described in Section 14.2, the Parking rules and Regulations
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described in Section 6.3, and the Common Areas Rules and Regulations described
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in this Section 2.1, applicable from time to time, together with any
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modifications thereto end amendments thereof, with respect to all or any portion
of the Project.
Tenant and Tenant's agents, contractors, customers, directors, employees,
invitees, officers, and patrons (collectively, the "Tenant's Permittees") have a
nonexclusive privilege and license to use, during the Lease Term, the Building
Common Areas and the Project Common Areas, in common with all other tenants,
occupants, and authorized users thereof and their respective permittees. For
purposes of this Lease, (a) "Land" consists of the parcel of land containing the
Building; (b) "Building Common Areas" consist of those areas within the Building
and Land not leased to any Tenant and which are intended by Landlord to be
available for the use, benefit, and enjoyment of all occupants of the Building;
and (c) "Project Common Areas" consist of those non-building areas within the
Project intended for the use, benefit, and enjoyment of all occupants of the
Project, but excluding the Building Common Areas, subject to the limitations set
forth in the Declaration and any rules and regulations adopted thereunder (the
"Common Areas Rules and Regulations"). It is acknowledged and agreed to by
Tenant that all "Automobile Parking Areas" within the Project are Project Common
Areas, but certain parking areas are restricted to use by certain occupants.
2.2 As used in this Lease, "Interior Common Facilities" means lobbies,
corridors, hallways, elevator foyers, restrooms, mail rooms, mechanical and
electrical rooms, janitor closets, and other similar facilities intended for the
use, benefit and enjoyment of all occupants of the Building.
ARTICLE 3. TERM
3.1 Subject to any adjustments under Article 5 of Exhibit B, the
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"Commencement Date" of the Lease Term shall be that date upon which Landlord
notifies Tenant (or the date Tenant has actual notice) that Landlord's
construction obligations under this Lease have been substantially completed and
that the Premises are ready for occupancy, with or without actual entry by
Tenant. Tenant's occupancy or acceptance of possession of the Premises shall
constitute Tenant's acknowledgement that there has been Substantial Completion
(as defined in Exhibit B) of Tenant's Leasehold Improvements (as defined in
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Exhibit B), subject only to any "punchlist" items identified during a
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walkthrough inspection by the parties and applicable construction warranties.
Even though the Lease Term does not commence until the Commencement Date, this
Lease shall be in full force and effect as a binding obligation of the parties
from and after the date of this Lease.
3.2 Within sixty (60) days after Tenant takes possession of the Premises,
both parties agree to execute a written memorandum setting forth the
Commencement Date and the date on which the Lease Term expires (the "Expiration
Date").
ARTICLE 4. MINIMUM MONTHLY RENT
Tenant shall pay to Landlord, without abatement, deduction, setoff, prior
notice, or demand, for the use and occupancy of the Premises, the Minimum
Monthly Rent, payable in advance on the first day of each and every calendar
month during the Lease Term. If the Lease Term commences on a date other than
the first day of a calendar month, the Minimum Monthly Rent for that month (if
applicable) shall be prorated on a per diem basis and be paid to Landlord within
five (5) days after the Commencement Date. Tenant's obligation to pay the
Minimum Monthly Rent and the additional rent are independent of any other term,
covenant, condition, or provision herein contained.
Landlord ______
Tenant ______
2
ARTICLE 5. ADDITIONAL RENT/EXPENSE STOP
5.1 Tenant shall pay, as additional rent, Tenant's Pro Rata Share of
Operating Costs during each Operating Year of the Lease Term, less the Expense
Stop. Tenant's Pro Rata Share of Operating Costs shall be the percentage set
forth in Section 1.1(i) of the Operating Costs (as defined in Section 5.4) for
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the applicable Operating Year (as defined in Section 5.4(c)). If the Lease Term
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begins or ends anytime other than the first or last day of an Operating Year,
Operating Costs and Tenant's Pro Rata Share thereof shall be prorated
appropriately.
5.2 The Minimum Monthly Rent includes an amount equal to one-twelth (1/12)
of the Expense Stop. Prior to the end of each Operating Year, or as soon
thereafter as is reasonably practical, Landlord shall provide Tenant with a
written statement of Landlord's estimate of Tenant's Pro Rata Share of Operating
Costs for the next succeeding Operating Year. If the estimate of Tenant's Pro
Rata Share of the Operating Costs Exceeds the Expense Stop, Tenant shall pay
Landlord, in addition to and concurrently with each payment of the Minimum
Monthly Rent for the next Operating Year, an amount equal to one-twelfth (1/12)
of the amount by which Landlord's estimate of Tenant's Pro Rata Share of
Operating Costs exceeds the Expense Stop. Landlord may provide Tenant with a
revised estimate of Tenant's Pro Rata Share of Operating Costs for the current
Operating Year and adjust the required monthly payment to reflect the revised
estimate.
5.3 Within ninety (90) days after the end of each Operating Year, or as soon
thereafter as is reasonably practical, Landlord shall provide Tenant with a
statement showing the actual Operating Costs for the preceding Operating Year
and any adjustments to Tenant's payments of additional rent for Operating Costs
to be made as a result thereof. If Tenant's Pro Rata Share of the actual
Operating Costs paid or incurred by Landlord during such Operating Year (less
the Expense Stop) exceeds the estimates of Operating Costs paid by Tenant during
the same Operating Year, Tenant shall remit the excess at the time the next
succeeding payment of Minimum Monthly Rent is payable (or within ten (10) days
if the Lease Term has expired or been terminated). If Tenant's Pro Rata Share of
the actual Operating Costs paid or incurred by Landlord during such Operating
Year is less than the estimated amounts paid by Tenant, Landlord shall apply
such excess to payments next falling due under this Article (or refund the same
to Tenant or credit amounts due from Tenant if the Lease Term has expired or
been terminated). In no event shall the Minimum Monthly Rent be reduced below
that set forth in Section 1.1(h).
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5.4 As used herein:
(a) "Operating Costs" means and includes:
(1) Those expenses paid or incurred by Landlord (whether directly or
through independent contractors) for managing, maintaining, operating, and
repairing the Building, the Building Common Areas, the Project Common Areas and
all other portions of the Land, and the personal property used in conjunction
therewith, including, but not limited to, the cost of utilities, (including, but
not limited to, steam, electricity, water, sewer, gas, and other utility
charges); services, supplies, repairs, and replacaments, or other expenses for
managing, maintaining, operating, or repairing the Building, the Building Common
Areas, the Project Common Areas and all other portions of the Land; insurance
(including, without limitation, the coverage described in Section 21.2, and all
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other coverage obtained by Landlord pertaining to the Land, Building and/or
Project, whether by separate policy, inclusion in a blanket policy, or self
insurance, in which case the reasonable value of self insurance shall be
included in Operating Costs), amortization (over the reasonable life of the
item) of the cost of installation of capital investment items which are
installed primarily for the purpose of reducing Operating Costs or which may be
required by any governmental authority; trash and rubbish removal; janitorial
services; compensation (including employment taxes, similar government charges,
unemployment insurance costs, vacation allowances, and the cost of providing
disability insurance or benefits, pensions, profit sharing benefits,
hospitalization, retirement, or other fringe benefits and any other expense
imposed on Landlord or its contractors or subcontractors, pursuant to law or
pursuant to any collective bargaining agreement covering such employees) of all
persons who perform duties in connection with the operation, maintenance,
management, and repair of the Building, the Building Common Areas, the Project
Common Areas and the Land; all costs of uniforms, supplies, and materials used
in connection with the operation and maintenance of the Premises, the Building,
the Building Common Areas, the Project Common Areas and all other portions of
the Land; reasonable attorneys' fees and costs (including, but not limited to,
fees and costs in connection with the appeal or contest of real estate or other
taxes or levies), management fees, and accounting expenses as may be ordinarily
incurred in the operation and maintenance of an office building; costs allocated
to Landlord under the Declaration for operation, maintenance, and use of Project
Common Areas servicing the Building and Project, and the costs attributable to
Landlord for the Biltmore Financial Center Association (the "Association")
created under the Declaration; and any other expense or charge whether or not
hereinabove described which, in accordance with consistently applied generally
accepted accounting and management principles would be considered an expense of
managing, maintaining, operating, or repairing the Building and Building Common
Areas and participating in the Project; and
(2) All impositions, taxes, assessments (special or otherwise), and
other governmental levies and charges of any and every kind, ordinary or
extraordinary, foreseen or unforeseen, assessed or imposed, upon or with respect
to the ownership of, or other taxable interest attributable to, the Building,
Building Common Areas, the Land, and any improvements, fixtures, equipment, and
other property of Landlord, real or personal, located in, or used in connection
with, the operation of the Building, the Building Common Areas, and the Land and
any tax which shall be imposed on any interest or excise in addition to or in
lieu of the foregoing real or personal property taxes.
(b) Operating Costs do not include income, estate, and inheritance taxes
levied against Landlord, taxes payable by any tenant, depreciation, capital
investment items (except as provided in Section 5.4(a)(1)) and debt service,
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costs of leasing space in the Building, including leasing commissions and
leasehold improvements costs, the cost of utilities separately metered to any
tenant or resulting from excess consumption and billed directly to that
tenant, the cost of special services provided to any tenant and billed directly
to that tenant, or repairs and maintenance to the extent paid by proceeds of
insurance or from tenants.
(c) "Operating Year" means a year beginning January 1 and ending December
31.
Landlord ______
Tenant ______
3
(d) Notwithstanding anything to the contrary contained in Section 5.4(a),
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in the event the Building is not fully occupied during any Operating Year, an
adjustment shall be made by Landlord in calculating the Operating Costs for such
Operating Year so that the Operating Costs shall be adjusted to the amount that
would have been incurred had the Building been ninty-five percent (95%) occupied
during such Operating Year.
5.5 Notwithstanding anything in this Lease to the contrary, no failure by
Landlord to give notices or statements of Operating Costs within the time
specified, and no grant of "free rent" or parking fee concessions, shall waive
Landlord's right to require payment by Tenant of Tenant's Pro Rata Share of
Operating Costs in excess of the Expense Stop.
ARTICLE 6. PARKING
6.1 The Association is obligated to operate and maintain or cause to be
maintained and operated a parking facility (the "Automobile Parking Area") for
the benefit and use of all tenants of the Project, and their permittees, as
provided in the Declaration. The Building's share of the cost of maintenance,
operation, repair, and management of the Automobile Parking Area, whether paid
by or allocated to Landlord, shall be included in the Operating Costs set forth
in Article 5 above. Nothing contained herein shall be deemed to create liability
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upon Landlord for any damage to motor vehicles of Tenant or of Tenant's
permittees, or from loss of property from within such motor vehicles, or any
matter relating to the operation, management, and maintenance of the Automobile
Parking Areas by the Association.
6.2 Tenant agrees at all times during the Lease Term to lease parking
rights for the reserved or unreserved spaces desribed in Section 1.1(l) in the
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Automobile Parking Areas. Tenant will receive stickers or cards authorizing
parking equal to the number of vehicles for which parking rights have been
leased. The parking charges described in Section 1.1(l) shall be paid
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concurrently with the Minimum Monthly Rent.
6.3 Landlord and the Association have the right to establish and from time
to time change, alter, and amend, and to enforce against all users of the
Automobile Parking Areas, reasonable rules and regulations (the "Parking Rules
and Regulations"), the exclusion of employee parking from certain areas and the
assignment of spaces to tenants, end other requirements as may be deemed
necessary and advisable for the proper end efficient operation and maintenance
of said Automobile Parking Areas including, without limitation, the hours during
which the Automobile Parking Areas shall be open for use, and Tenant shall
comply therewith and shall cause Tenant's Permittees to comply therewith.
6.4 Landlord or the Association, or both, may establish such reasonable
charges as Landlord deems appropriate for the use of the Automobile Parking
Areas by persons who have not leased space in the Building. Landlord or the
Association may establish a system whereby these persons may present validations
issued by tenants in lieu of payment of the parking charges. If Tenant wishes to
provide Tenant's Permittees with validations as part of the validation system,
Tenant shall pay Landlord or the Association, as additional rent, those charges
established by Landlord or the Association for use of the validation system and
to comply with such system end all Parking Rules and Regulations established by
Landlord or the Association for Tenant's use and the use of Tenant's Permittees
of the validation system.
ARTICLE 7. RENT TAX AND PERSONAL PROPERTY TAXES
7.1 Tenant shall pay to Landlord, in addition to, and simultaneously with,
any other amounts payable to Landlord under this Lease, a sum equal to the
aggregate of any municipal, county, state, or federal excise, sales, use, or
transaction privilege taxes now or hereafter legally levied or imposed against,
or on account of, any or all amounts payable under this lease by Tenant or the
receipt thereof by Landlord (except taxes which are commonly inheritance taxes).
7.2 Tenant shall pay, prior to delinquency, all taxes levied upon fixtures,
furnishings, equipment, and personal property placed on the Premises by Tenant.
If any or all of Tenant's fixtures, furnishings, equipment, or personal property
shall be assessed and taxed with the Landlord's real property, Tenant shall
reimburse Landlord for such taxes within ten (10) days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of such taxes
applicable to the Tenant's property.
ARTICLE 8. PAYMENT OF RENT/LATE CHARGES
8.1 Tenant shall pay the rent and all other charges herein specified to
Landlord at the address set forth in Section 1.1(b) of this Lease, or to another
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person and at another address as Landlord from time to time designates in
writing.
8.2 Minimum Monthly Rent, additional rent or other charges payable by Tenant
to Landlord under the terms of this Lease not received within ten (10) days
after the due date (the "Delinquency Date") thereof shall automatically (and
without notice) incur a one-time late cherge of five percent (5%) of the
delinquent amount. The parties acknowledge that this is a reasonable fee to
compensate Landlord for its additional costs to process delinquencies, and is
not a penalty. Further, any Minimum Monthly Rent, additional rent, or other
charges payable by Tenant to Landlord and not paid prior to the Delinquency Date
shall bear interest from the Delinquency Date at the "Delinquency Interest Rate"
as that term is defined below. The term "Delinquency Interest Rate" as used in
this Lease means the greater of (i) five percent (5%) over the interest rate
publicly announced from time to time by Bank of America, Arizona (BOA), or its
successor, as its prime rate and if such term is no longer utilized, the
interest rate utilized by BOA, or its successor, to replace the prime rate, or
(ii) fifteen percent (15%) per annum. Notwithstanding the above, if the
Delinquency Interest Rate exceeds the maximum interest rate allowed by law, the
Delinquency Rate shall be reduced to the highest rate allowed by law.
8.3 Landlord's right to receive and receipt of late charges or interest for
delinquent amounts shall not limit or restrict Landlord's other rights and
remedies. Landlord's acceptance of partial payments of amounts due, or payments
without inclusion of late charges or interest, shall not be deemed to limit,
restrict, or waive Landlord's right to collect the full amounts due and all
accrued late charges end interest. Receipt of a
Landlord ______
Tenant ______
4
check shall not be deemed to constitute payment unless the check is honored by
the bank upon which it is drawn, and late charges and interest shall accrue from
the original due date if a check is dishonored. Landlord may require that all
payments be made by cashier's check if a check from Tenant is dishonored by the
bank upon which it is drawn for any reason whatsoever.
ARTICLE 9. SECURITY DEPOSIT
9.1 Tenant shall, upon execution of this lease, deposit with Landlord the
Security Deposit, as security for the full and faithful performance of each and
every term, condition, covenant, and provision of this Lease.
9.2 If Tenant defaults in any of the terms, conditions, covenants, and
provisions of this Lease, including, but not limited to, the payment of Minimum
Monthly Rent, additional rent, or other charges, Landlord may, but need not,
use, apply, or retain the whole, or any part, of the Security Deposit, not as
liquidated damages, but for the payment of any Minimum Monthly Rent, additional
rent or charge then due or for any other sum which Landlord may spend, or be
required to spend, by reason of Tenant's default. If any portion of the Security
Deposit is so used or applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount. Should Tenant fully and faithfully
comply with all of the terms, conditions, covenants, and provisions of this
Lease, the Security Deposit, or any balance of the Security Deposit, shall be
returned to Tenant or, at the option of Landlord, to the last assignee of
Tenant's interest in this Lease within thirty (30) days after the Expiration
Date and surrender of the Premises by Tenant in full compliance with this Lease.
Landlord's rights regarding the Security Deposit are in addition to and do not
preclude any other rights, remedies, or recoveries available to Landlord by
law or pursuant to this Lease.
9.3 Tenant agrees that, if Landlord sells or exchanges Landlord's interest
in the Premises during the Lease Term, Landlord may pay, transfer, credit or
assign the Security Deposit to any subsequent owner and in that event, Tenant
does hereby agree to release Landlord from all liability for the return of the
Security Deposit. Landlord shall not be required to maintain such funds in a
segregated account, but may deposit such funds in any general account of
Landlord, provided that such commingling in no way affects Landlord's
obligations to Tenant regarding such funds hereunder. Tenant shall not be
entitled to any interest on the Security Deposit.
ARTICLE 10. CONSTRUCTION OF THE PREMISES
10.1 Landlord shall construct Tenant's Leasehold Improvements, as defined in
Exhibit B, in accordance with plans and specifications prepared by Landlord's
---------
architect. The respective obligations and covenants of Landlord and Tenant with
respect to construction of the Leasehold Improvements, including the division of
responsibilities and procedures for design and construction and for payment of
costs and expenses, are more specifically set forth in Exhibit B.
---------
10.2 Prior to the Commencement Date, any work performed by Tenant (which
Tenant may do only if and to the extent provided for in Exhibit B and in full
---------
compliance therewith), or any fixtures or personal property moved onto the
Premises (which Tenant may do only with Landlord's prior consent and
satisfaction of such requirements as Landlord may impose), shall be at Tenant's
own risk and neither Landlord nor Landlord's agents or contractors shall be
responsible to Tenant for damage or destruction of Tenant's work or property,
including without limitation damage or destruction occasioned by Landlord's own
negligence. Tenant shall indemnify, defend and hold Landlord harmless from and
against claims, liabilities, losses, damages, expenses, or attorneys' fees
incurred or sustained by Landlord as a result of any actions or work by Tenant,
and any of Tenant's Permittees in the Premises or elsewhere in the Project prior
to the Commencement Date, or with respect to damage or destruction of property
of Tenant, Tenant's Permittees and/or of third persons moved on the Premises
prior to the Commencement Date at Tenant's request. Tenant hereby releases
Landlord from any and all such claims, liabilities, losses, damages, expenses
and attorneys' fees.
ARTICLE 11. ALTERATIONS
After completion of Landlord's construction obligations under Article 10,
----------
Tenant shall not make or cause to be made any further additions to, or
alterations of, the Premises or any part thereof without the prior written
consent of Landlord, and subject to compliance with such requirements as
Landlord may impose.
ARTICLE 12. FIXTURES/PERSONAL PROPERTY/SURRENDER OF PREMISES
12.1 All trade fixtures installed by Tenant and movable furniture that is
not permanently affixed to the Premises shall remain the property of Tenant and
may be removed by Tenant not later than the Expiration Date or the earlier
termination of the Lease Term or Tenant's right to possession, provided that
Tenant is not in default hereunder at the time of the proposed removal and there
is no Minimum Monthly Rent, additional rent or other charges then due hereunder.
Tenant shall promptly repair, at its own expense, any damage resulting from such
removal. If Tenant fails to remove its personal property, trade fixtures, and
movable furniture upon the Expiration Date or the earlier termination of the
Lease Term or Tenant's right to possession, the same shall be deemed abandoned
and shall, at the option of Landlord, be removed and disposed of at Tenant's
sole cost and expense or shall become the property of Landlord. Notwithstanding
the foregoing, at any time during the Lease Term or thereafter Landlord may
require Tenant to remove any personal property placed in the Premises by Tenant
or by others at Tenant's direction or with Tenant's actual or implied consent,
if the same is dangerous, illegal, or actually or potentially an environmental
hazard, and repair any damage caused thereby.
Landlord ______
Tenant ______
5
12.2 All cabinetry, built-in appliances, wall coverings, floor coverings,
window coverings, electrical and plumbing fixtures and conduits, lighting, and
other special fixtures that may be placed upon, installed in, or attached to the
Premises by Tenant shall, at the Expiraton Date or earlier termination of this
Lease for any reason, be the property of Landlord and remain upon and be
surrendered with the Premises, without disturbance, molestation, or injury
unless designated by Landlord to be removed, in which case Tenant shall, at
Tenant's sole cost and expense, remove the same prior to the Expiration Date or
earlier termination of the Lease Term and repair any damage caused thereby.
12.3 At the Expiration Date or upon the earlier termination of the Lease
Term or Tenant's right to possession, Tenant shall surrender the Premises in
good order and condition, reasonable wear and tear and casualty damage excepted,
and shall deliver all keys to Landlord. Tenant shall further surrender to
Landlord any Automobile Parking Areas cards issued under Article 6.
---------
ARTICLE 13. LIENS
Tenant shall keep the Premises, Building, the Land, and the Project free from
any liens arising out of work performed, material furnished, or obligations
incurred due to Tenant's actions, the actions of Tenant's employees, agents or
contractors or the failure of Tenant to comply with any law excluding, however,
security interests in Tenant's personal property subordinate to Landlord's lien
rights. In the event any such lien does attach against the Premises, Building,
or Land, and Tenant does not discharge the lien or post bond (which in form and
amount would be sufficient under applicable laws to prevent foreclosure or
execution under the lien) within ten (10) days after demand by Landlord, such
event shall be a default by Tenant under this Lease and, in addition to
Landlord's other rights and remedies, Landlord may take any action necessary to
discharge the lien. Tenant shall pay Landlord upon demand all costs or expenses
(including reasonable attorney's fees) incurred by Landlord by reason of
attachment or discharge of such lien and shall indemnify Landlord against any
liability, claims, or losses arising out of attachment of such lien.
ARTICLE 14. USE OF PREMISES/RULES AND REGULATIONS
14.1 Without the prior written approval of Landlord, Tenant shall not use
the Premises for any use other than for general business office purposes.
14.2 Tenant agrees to:
(a) Comply with all statutes, ordinances, rules, regulations, and orders of
all municipal, state, and federal authorities now in force or which may
hereafter be in force pertaining to the use of the Premises. Tenant shall not
use or permit the Premises to be used in whole or in part for any purpose or use
in violation of any of the laws, ordinances, regulations, or rules of any public
authority at any time applicable thereto;
(b) Keep the Premises in a neat, sanitary, and orderly condition, free of
debris, and shall not deposit or allow others to deposit trash, waste, or debris
within Building Common Areas or Project Common Areas except within designated
areas;
(c) Not commit, or allow others to commit, any waste or nuisance in, from
or upon the Premises, Building, Building Common Areas, Land, or Project Common
Areas;
(d) Not engage, or allow others to engage, in any activity which will
increase the existing premium rate of insurance on the Premises, Building,
Building Common Areas, or Project Common Areas or cause a cancellation of any
insurance policy or permit to remain in or about any such area any article that
may be prohibited by standard form fire insurance policies;
(e) Not use, or allow others to use, the Premises, Building, Building
Common Areas, or Project Common Areas for or carry on or permit any offensive,
noisy, or dangerous trade, business, manufacture, or occupation, or any nuisance
or anything against public policy, or interfere with the business of or disturb
the quiet enjoyment of any other tenant in the Building or Project;
(f) Not use the exterior of the roof or walls of the Premises or Building
for any purpose or allow others to do so;
(g) Not display anything in any windows unless and until Landlord has
consented thereto;
(h) Not use or allow others to use the Building Common Areas or Project
Common Areas for purposes other than the purposes intended for such areas; and
(i) Faithfully observe and comply (and cause Tenant's permittees to observe
and comply) with the Declaration, the Rules and Regulations printed on Exhibit C
---------
to this lease (the "Building Rules and Regulations"), the Parking Rules and
Regulations described in Article 6, the Common Areas Rules and Regulations
---------
described in Section 2.1 or put into effect by Landlord or the Association from
-----------
time to time, and all reasonable and non-discriminatory modifications of and
additions thereto.
14.3 Tenant shall not use, generate, manufacture, store, or dispose of, in,
under, or about the Premises, the Building, the Land, or the Project or
transport to or from the Premises, the Building, the Land, or the Project, any
Hazardous Materials. For purposes of this Lease, "Hazardous Materials" includes,
but is not limited to: (i) flammable, explosive, or radioactive materials,
hazardous wastes, toxic substances, or related materials; (ii) all substances
defined as "hazardous substances," "hazardous materials," "toxic substances," or
"hazardous chemical substances or mixtures" in the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Landlord ______
Tenant ______
6
(S) 9601, et seq., as amended by Superfund Amendments and Reauthorization Act of
1986; the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1901, et seq.;
the Resource Conservation and Recovery Act, 42 U.S.C. (S) 8901, et seq.; or the
Toxic Substances Control Act, 15 U.S.C. (S) 2601, et seq.; (iii) those
substances listed in the United States Department of Transportation Table (49
CFR 172.10 and amendments thereto) or by the Environmental Protection Agency (or
any successor agent) as hazardous substances (40 CFR Part 302 and amendments
thereto); (iv) any material, waste, or substance which is (A) petroleum, (B)
asbestos, (C) polychlorinated biphenyls, (D) designated as a "hazardous
substance" pursuant to (S) 311 of the Clean Water Act, 33 U.S.C. (S) 1251 et seq
-- ---
(33 U.S.C. (S) 1321) or listed pursuant to the Clean Water Act (33 U.S.C. (S)
1317); (E) flammable explosives; or (F) radioactive materials; and (v) all
substances defined as "hazardous wastes" in Arizona Revised Statutes (S) 36-35O1
(16).
14.4 Tenant shall be solely responsible for, and shall indemnify, defend and
hold harmless Landlord, its directors, officers, employees, agents, successors,
and assigns from and against, any loss, damage, cost, expense, or liability
directly or indirectly arising out of or attributable to Tenant's and Tenant's
Permittees' use, generation, storage, release, threatened release, discharge,
disposal, or presence of Hazardous Materials on, under, or about the Premises,
the Building, the Land, or the Project, including without limitation: (a) all
foreseeable consequential damages; (b) the costs of any required or necessary
repairs, cleanup or detoxification of the Premises, the Building, the Land, or
the Project, and the preparation and implementation of any closure, remedial, or
other required plans; and (c) all reasonable costs and expenses incurred by
Landlord in connection with clauses (a) and (b) of this Section 14.4 including
------------
but not limited to reasonable attorneys' fees. Notwithstanding the foregoing,
Tenant may use in the Premises those Hazardous Materials which are customarily
used for general office purposes (i.e., copier toner, liquid paper, glue, ink,
and Landlord approved cleaning solvents).
ARTICLE 15. RIGHTS RESERVED BY LANDLORD
In addition to all other rights, Landlord (and the Association and other
owners of property within the Project, as applicable) has the following rights,
exercisable without notice and without liability to Tenant and without effecting
an eviction, constructive or actual, and without giving right to any claim for
set off or abatement of rent:
(a) To decorate and to make repairs, alterations, additions, changes, or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof, and for such purposes to enter upon the Premises and during the
continuance of any of said work to temporarily close doors, entryways, public
space, and corridors in the Building, to interrupt or temporarily suspend
Building services and facilities and to change the number of floors, the size,
dimensions, arrangement, and location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, toilets, or other interior Common
Facilities or Building Common Areas, so long as the Premises are reasonably
accessible;
(b) To change, rearrange, add to, or subtract from the Building Common
Areas or Project Common Areas, provided Tenant shall always have adequate access
to the Premises and the parking rights described in Section 1.1 (l)
----------- -
(c) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein;
(d) To approve the weight, size, and location of safes and other heavy
equipment and articles in and about the Premises and the Building, and to
require all such items and furniture and similar items to be moved into and out
of the Building and Premises only at such times and in such manner as Landlord
shall direct in writing. Movements of Tenant's property into or out of the
Building and within the Building are entirely at the risk and responsibility of
Tenant and Landlord reserves the right to require permits before allowing any
such property to be moved into or out of the Building;
(e) To prohibit the placing of vending or dispensing machines of any kind
in or about the Premises without the prior written permission of Landlord;
(f) To take all such reasonable measures as Landlord may deem advisable for
the security of the Building and its occupants, including without limitation,
the search of all persons entering or leaving the Building, the evacuation of
the Building for cause, suspected cause, or for drill purposes, the temporary
denial of access to the Building, and the closing of the Building after regular
working hours;
(g) To relocate the Premises to another location of substantially
equivalent size and location in the Building provided such relocation does not
increase the Minimum Monthly Rent or other costs payable by Tenant under this
Lease. If Landlord elects to move Tenant, Landlord shall build out or renovate
the new location with Leasehold Improvements at the new location substantially
equal to Leasehold Improvements constructed or to be constructed on the original
Premises pursuant to Exhibit B and Landlord will pay Tenant's reasonable costs
---------
of moving to the new location, including incidental costs such as reprinting
stationery and new signage, but Landlord will have no other or additional
liability to Tenant with respect to relocation, including, loss of revenues or
profits. Reservation of the rights set forth in this Article shall impose no
obligation or duty upon Landlord to exercise said rights.
ARTICLE 16. QUIET ENJOYMENT
Landlord agrees that upon Tenant's paying the rentals and keeping and
performing all of the terms, conditions, covenants, and provisions of this
Lease, Landlord will do nothing that will prevent Tenant from peaceably and
quietly enjoying, holding, and occupying the Premises during the Lease Term.
This covenant shall not extend to any disturbance, act, or condition brought
about by any other Tenant or occupant in the Building or Project, the
Association or any other party in control of all or any part of the Project
outside the Building, and shall be subject to the rights of Landlord set forth
in this Lease. Tenant agrees this lease is subordinate to the Declaration and
any amendments thereto hereafter
Landlord ______
Tenant ______
7
imposed upon that property upon which the Building is located, the Building
Rules and Regulations described in Section 14.2, the Parking Rules and
------------
Regulations described in Section 6.3, and the Common Areas Rules and Regulations
-----------
described in Section 2.1. This subordination agreement shall be self-operative,
-----------
however. Tenant agrees to execute and deliver such further instruments necessary
to subordinate this Lease to the foregoing matters.
ARTICLE 17. MAINTENANCE AND REPAIR
17.1 Subject to Articles 14, 22 and 23 and Tenant's obligations under
----------------------
Sections 17.2 and 17.3 Landlord shall maintain the Premises and Building in
----------------------
good and tenantable condition, and repair, reasonable wear and tear excepted.
Tenant waives all rights to make repairs at the expense of Landlord. Landlord's
maintenance and repair costs under this Section 17.1 are deemed to be Operating
------------
Costs. The foregoing notwithstanding, Landlord shall not be liable to Tenant for
failure to make repairs as required herein unless Tenant has previously notified
Landlord, in writing, of the need for such repairs and Landlord has failed to
commence said repairs within fifteen (15) days following receipt of Tenant's
written notification, or such lesser period as shall be reasonable in the event
of a bona fide emergency. Landlord shall have no obligation to alter, remodel,
improve, renovate, decorate, or paint the Premises at any time during the Lease
Term except as set forth in Exhibit B.
17.2 If Landlord would be required to perform any maintenance or make any
repairs under Section 17.1 because of: (a) modifications to the roof, walls,
------------
foundation, and floor of the Building from that set forth in Landlord's plans
and specifications which are required by Tenant's design for improvements,
alterations and additions; (b) installation of Tenant's improvements, fixtures,
or equipment; (c) a negligent or wrongful act of Tenant or Tenant's Permittees;
or, (d) Tenant's failure to perform any of Tenant's obligations under this
Lease, Landlord may perform the maintenance or repairs and Tenant shall pay
Landlord the cost thereof plus a reasonable amount for Landlord's overhead as
additional rent hereunder upon receipt of a statement from Landlord. Landlord's
costs under this Section 17.2 shall not be an Operating Cost for purposes of
------------
Article 5.
---------
17.3 Tenant agrees to:
(a) Pay Landlord's cost of maintenance and repair, including additional
janitorial costs of any Non-Building Standard Improvements and Non-Building
Standard materials and finishes, as defined in Exhibit B, and special
---------
leasehold improvements in excess of or in addition to Building Standard, as
defined in Exhibit B. Landlord's costs under this subsection will not be
---------
deemed an Operating Cost;
(b) Repair or replace all ceiling and wall finishes (including painting)
and floor or window coverings which require repair or replacement during the
Lease Term, at Tenant's sole cost;
(c) Indemnify and hold Landlord, the Association and owners of other
portions of the Project harmless from and against any and all liability,
obligations, claims, costs, damages, expenses, or attorneys' fees incurred or
sustained as a result of any damage, injury, or destruction of the Premises,
Building, Building Common Areas, or Project Common Areas arising from the
actions or negligence of Tenant or Tenant's Permittees.
17.4 Notwithstanding anything in this Lease to the contrary, to the
extent the terms and provisions of Articles 20, 21 and/or 22 conflict with, or
-------------------------
are inconsistent with, the terms and provisions of this Article 17, the terms
----------
and provisions of Articles 20, 21 and/or 22 shall control and prevail.
-------------------------
ARTICLE 18. UTILITIES AND JANITORIAL SERVICES
18.1 Landlord agrees to furnish to the Premises during normal business hours
on a five (5) day week, nine (9) hour day basis (the "Business Hours"), and
subject to the Rules and Regulations of the Building, electricity suitable for
the intended use of the Premises, heat and air conditioning required in
Landlord's judgment for normal use and occupation of the Premises and janitorial
services for the Premises and Common Areas. Landlord further agrees to furnish
hot and cold (or "tempered") water to those areas provided for general use of
all tenants in the Building. Landlord will use diligent efforts to provide
continuous elevator service for the Building from at least one (1) passenger
elevator, but Landlord does not guarantee that all elevators will be operational
at all times.
18.2 As used in this Article 18, "Excess Consumption" means the consumption
----------
of electrical current (including current in excess of 120 volts), water, heat,
cooling, or compressed air (if compressed air is furnished by Landlord) in
excess of that which would be provided to the Premises were the Premises to be
(i) built out with Building Standard Improvements only; (ii) used as general
office space during Business Hours; and (iii) equipped only with typewriters,
desk calculators, normal office computer equipment, dictation equipment, and
copying machines with power requirements of 30 amperes or less. Tenant will not,
without the written consent of Landlord, use any apparatus or device in the
Premises, including but without limitation thereto, duplicating machines,
electronic data processing machines, punch card machines, and machines using
electrical current in excess of 110 volts, which will in any way result in
Excess Consumption nor connect, except through existing electrical outlets,
water pipes, ducts or airpipes (if any) in the Premises, any apparatus or
device for the purpose of using electric current, water, heating, cooling, or
air. If Tenant shall require electric current, water, heating, cooling, or air
which will result in Excess Consumption, Tenant shall first procure the consent
of Landlord to the use thereof, and Landlord may cause separate meters to be
installed to measure Excess Consumption or establish another basis for
determining the amount of Excess Consumption. Tenant agrees to pay as additional
rent hereunder for the cost of Excess Consumption at the rate of $5.00 per hour
of Excess Consumption, or if Landlord's actual cost shall exceed $5.00 per hour,
then Tenant shall pay Landlord's actual cost, plus any additional expense
incurred in installing meters or keeping account of the Excess Consumption, at
the same time as payment of the Minimum Monthly Rent is made. Tenant further
agrees to pay as
Landlord _______
Tenant _________
8
additional rent hereunder Landlord the costs, if any, to upgrade existing
mechanical, electrical, plumbing, and air facilities, if required to provide
Excess Consumption, upon receipt of a statement therefor. Excess Consumption
costs will not be an Operating Cost for purposes of Article 5.
---------
18.3 Landlord shall not be liable for damages nor shall rent or other
charges ▇▇▇▇▇ in the event of any failure or interruption of any utility or
service supplied to the Premises or Building by a regulated utility or
municipality, or any failure of a Building system supplying any such service to
the Premises (provided Landlord uses diligent efforts to repair or restore the
same) and no such failure or interruption shall entitle Tenant to terminate this
Lease or be deemed an actual or constructive eviction.
ARTICLE 19. ENTRY AND INSPECTION
19.1 Landlord and Landlord's agents shall have the right to enter into and
upon the Premises at all reasonable times for the purpose of inspecting the
same; performing Landlord's maintenance and repair obligations under this Lease;
maintaining or making repairs, alterations, or additions to any other portion of
the Building and/or other premises therein, including the erection and
maintenance of such scaffolding, canopy, fences and props as may be required;
posting notices of nonliability for alterations, additions, or repairs, or of
the availability of the Premises for lease or sale; or exhibiting the Premises
to potential tenants and purchasers. Tenant shall permit Landlord, at any time
within one hundred fifty (150) days prior to the Expiration Date, to place upon
the Premises any usual or ordinary "For Lease" signs.
19.2 If Tenant shall not be personally present to open and permit an entry
into the Premises, at any time, when for any reason an entry therein shall be
necessary or permissible, Landlord or Landlord's agents may use a master key to
enter, without rendering Landlord or such agents liable therefor, and without in
any manner affecting the obligations and covenants of this Lease, Landlord shall
be permitted to take any action under this Article without causing any abatement
of rent or liability to Tenant for any loss of occupation or quiet enjoyment of
the Premises, nor shall such action by Landlord be deemed an actual or
constructive eviction.
ARTICLE 20. ACCEPTANCE OF THE PREMISES/LIABILITY INSURANCE/INDEMNIFICATION OF
LANDLORD
20.1 All merchandise, furniture, and other personal property and fixtures
belonging to Tenant and all persons claiming by or through Tenant shall be-
placed and remain on the Premises at Tenant's sole risk. Tenant hereby waives
all claims against Landlord for loss, injury, or damage to all persons claiming
or entering by, through or under Tenant while they are in or immediately about
the Premises, and any and all such claims for loss, injury or damage to property
on the Premises or the Common Areas form theft, fire, water, gas, or otherwise,
including without limitation sprinkler leakage or bursting pipes. Subject to
Exhibit B, Tenant accepts the Premises "as is" and Landlord makes no warranty as
---------
to the condition of the Premises.
20.2 Tenant hereby agrees to indemnify, defend, and hold Landlord and any
property manager and/or lender of Landlord harmless against all Claims (as
defined below) arising from: Tenant's possession, use, maintenance, and repair
of the Premises or use of the Common Areas; any act or omission of Tenant or
Tenant's Permittees; any default of Tenant under this Lease; or other acts or
omissions which result in personal injury, loss of life, or property damage
sustained in and about the Premises.
20.3 Upon taking possession of the Premises and thereafter during the Lease
Term, the Tenant shall, at Tenant's sole cost and expense, maintain in effect at
all times during the Lease Term insurance coverage with limits not less than
those set forth below with insurers meeting the requirements set forth in
Section 20.4:
------------
(a) Worker's Compensation Insurance, minimum limit as defined by the
Worker's Compensation and Occupational Disease Laws of the State of Arizona and
other applicable laws, and as may be amended from time to time.
(b) Employer's Liability Insurance, minimum limit $3,000,000.
(c) Commercial General Liability, Bodily Injury/Property Damage Insurance,
minimum combined single limit $5,000,000. This insurance policy shall include
the following coverages:
(1) Premises/Operations.
(2) Independent Contractors.
(3) Broad Form Contractual in support of the indemnification
obligations of Tenant under this Lease.
(4) Bodily and Personal Injury Liability.
(5) Products/Completed Operations.
(d) Owned, hired and non-owned Automobile Liability Insurance, minimum
limit $3,000,000.
All such policies shall include a waiver of subrogation in favor of Landlord
and shall name Landlord and such other party or parties as Landlord may require
as additional insurance. All such policies of insurance may be carried under a
blanket policy. This insurance will be primary, with any insurance maintained by
Landlord to be considered "excess" for the protection of Landlord.
20.4 Tenant's insurance shall be maintained with an insurance company
qualified to do business in the State of Arizona and having a current A.M. Best
manual rating of at least A-X or better. Tenant's insurance policies will
contain endorsements stating that the insurance shall not be cancelled nor shall
the carrier fail to renew or materially change the policy without first giving
thirty (30) days written notice to Landlord. Before entry into the Premises and
before expiration of any policy, evidence of these coverages represented by
Certificates of Insurance issued
Landlord ________
Tenant __________
9
by the insurance carrier must be furnished to Landlord, and Tenant must provide
Landlord with evidence that the applicable premiums or renewal premiums have
been paid. Certificates of Insurance should specify the additional insured
status mentioned above, as well as the waiver of subrogation, and that such
insurance is primary, and any insurance by Landlord is excess. The Certificate
of Insurance shall state that Landlord will be notified in writing thirty (30)
days before cancellation, material change, or renewal of insurance. If Tenant
fails to timely perform any of the foregoing obligations, Landlord may do so on
behalf of Tenant without notice to Tenant and Tenant shall pay to Landlord the
premium for this insurance within ten (10) days of demand by Landlord plus
interest at the Delinquency Interest Rate as additional rent hereunder.
20.5 During the entire Lease Term, Landlord agrees to maintain public
liability insurance in such forms and amounts as Landlord shall determine, or
elect to self-insure the same. Landlord's cost of insurance shall be an
Operating Cost under Article 5.
---------
20.6 Landlord shall not be responsible or liable to Tenant for any Claims
for loss or damage caused by the acts or omissions of any persons occupying any
space elsewhere in the Building or Project, the Association, or any other party
in control of all or any part of the Project outside the Building.
20.7 As used in this Article, "Claims" means any claim, suit, proceeding,
action, cause of action, damages, liability, responsibility, demand, judgment
and execution, and attorneys' fees and costs related thereto or arising
therefrom.
ARTICLE 21. PROPERTY AND CASUALTY INSURANCE
21.1 Tenant shall maintain fire and full extended coverage insurance ("all
risk") (full replacement value) with business interruption and extra expense
endorsements, on merchandise, personal property, equipment, and trade fixtures
owned or used by Tenant and other property which Tenant may remove on the
Expiration Date. Tenant shall not maintain insurance on any structural portion
of the Premises, roof, demising or interior walls, or floors. In the event of
violation of this obligation, Tenant agrees all proceeds of Tenant's insurance
policies, except proceeds related to Tenant's personal property or improvements
supplied by Tenant, will be held in trust for the benefit of Landlord.
21.2 Landlord shall maintain fire and full extended coverage insurance
("all risk") including vandalism and malicious mischief, sprinkler leakage
damage, and flood and boiler and machinery endorsements throughout the Lease
Term on the Building (excluding Tenant's trade fixtures and personal property)
and may name the holder of any mortgage or deed of trust and any ground lessor
as additional insured. Landlord may elect to self-insure any portion of the
required insurance. At Landlord's option, the policy of insurance may include a
business interruption insurance endorsement for loss of rents. The cost of the
insurance obtained under this Section 21.2 shall be an Operating Cost under
------------
Article 5 of this Lease. If, however, during the Lease Term premiums for fire
---------
and extended coverage insurance are or may be calculated by rating the premises
of individual tenants within the Building and it is determined that the rate for
the Premises, due to Tenant's special fixtures, Non-Building Standard
Improvements, business or otherwise, is in excess of the rate attributable to
the premises having the lowest rate, Tenant agrees to pay Landlord the
difference between the premium attributable to the Premises and that premium
which would be attributable to the Premises were the Premises rated at the
lowest rate. If the Building is rated as a whole and it is determined that the
premium, due to Tenant's special fixtures, Non-Building Standard Improvements or
business, is in excess of the premium which would have been charged, but for
Tenant's fixtures, improvements, or business, Tenant agrees to pay Landlord such
excess. Tenant shall have no rights in said policy procured by Landlord under
this Section 21.1 and shall not be entitled to be named as insured thereunder.
------------
21.3 Subject to the following provisions, Tenant hereby waives any right of
recovery from Landlord and Landlord's partners, agents, officers, directors, and
employees, and Landlord hereby waives any right of recovery from Tenant and
Tenant's Permittees, for any loss or damage (including consequential loss)
resulting from any of the perils required to be insured against by either's fire
and extended coverage policy. The parties shall give their respective insurance
carriers notice of this waiver and shall secure an endorsement from each carrier
to the effect that the waivers given under this Section 21.3 shall not adversely
------------
affect or impair the policies of insurance or prejudice the right of the named
insured on the policy to recover thereunder. A waiver given under this Section
-------
21.3 shall apply only to losses occurring during the time that such an
----
endorsement is in effect and to the extent it applies.
ARTICLE 22. DAMAGE AND DESTRUCTION OF PREMISES
22.1 In the event of (a) fire or other casualty damage to the Premises or
the Building during the Lease Term which requires repairs to either the Premises
or the Building, or (b) the Premises or Building being declared unsafe or unfit
for occupancy by any authorized public authority for any reason other than
Tenant's act, use or occupation, which declaration requires repairs to either
the Premises or the Building, Landlord shall commence to make said repairs
within sixty (60) days of written notice by Tenant of the necessity therefor and
diligently proceed therewith to completion, except as provided in Section 22.2.
------------
The Minimum Monthly Rent shall be proportionately reduced while such repairs are
being made, based upon the extent to which the making of such repairs shall
interfere with the business carried on by Tenant in the Premises. Landlord shall
have no obligation to repair, restore, or replace Tenant's trade fixtures or
other personal property and Tenant shall be solely responsible therefor.
Further, Landlord shall not be obligated to make repairs to the extent that the
cost thereof exceeds the insurance proceeds available to Landlord or to the
extent such repairs would exceed Building Standard as defined in Exhibit B.
---------
22.2 Landlord's obligation to repair the Premises shall, however, be
subject to the following provisions of this Section 22.2. If (a) during the
------------
last year of the Lease Term the Premises or the Building is damaged as a result
of fire or any other insured casualty, or (b) the Premises are damaged to the
extent of twenty~five percent (25%) or more of replacement value, or (c) the
Premises or the Building is damaged or destroyed as a result of a casualty not
insured against, or (d) the Building shall be damaged or destroyed by fire or
other cause to the extent of twenty percent (20%) or more of the Building's
replacement value, then Landlord shall have the right, to be exercised by notice
in writing to Tenant
Landlord ________
Tenant __________
10
given within ninety (90) days from said occurrence, to cancel and terminate this
Lease. Upon notice to Tenant the Lease Term shall expire by lapse of time upon
the third day after such notice is given, and Tenant shall vacate the Premises
and surrender the same to Landlord. If Landlord elects to terminate this Lease
under this Section, all rents shall be prorated as of the date of damage or
destruction and Landlord shall be released from liability or obligation to
Tenant. If Landlord, however, elects to make said repairs, and provided Landlord
uses due diligence in making said repairs, this Lease shall continue in full
force and effect and the Minimum Monthly Rent shall be proportionately reduced
as provided in Section 22.1.
------------
22.3 with respect to any destruction (including any destruction necessary
in order to make repairs) which Landlord is obligated to repair or may elect to
repair under the terms of this Article, Tenant waives any statutory or other
right Tenant may have to cancel this Lease as a result of such destruction and
no such destruction shall annul or void this Lease. The provisions of this
Article shall supersede the obligations of Landlord to make repairs under
Section 17.1 of the Lease.
------------
22.4 Unless the Lease is terminated under this Article, upon substantial
completion of Landlord's restoration obligations, the Minimum Monthly Rent shall
be restored to the amounts which would have been in effect but for the damage or
destruction.
22.5 Notwithstanding the provisions of this Article 22, if the Premises or
----------
any other portion of the Building are damaged by fire or other casualty
resulting from the negligent act or omission or willful misconduct of Tenant or
any of Tenant's Permittees, Minimum Monthly Rent shall not be reduced during the
repair of the damage, and Tenant shall be liable to Landlord for the cost and
expense of the repair and restoration of the Premises or the Building caused
thereby to the extent that cost and expense is not covered by insurance
proceeds.
ARTICLE 23. EMINENT DOMAIN
As used in this Article, "Taking" means a taking of or damage to the
Premises or Building or any part thereof by exercise of the power of eminent
domain, condemnation or sale under the threat of or in lieu of eminent domain or
condemnation. If the whole of the Building or the whole of the Premises shall be
acquired by the Taking, or if the whole of the Automobile Parking Area is
acquired by a Taking, then this Lease shall terminate as of the date of taking
of possession by the Taking authority. If more than ten percent (10%) of the
value of the Building is acquired by a Taking, whether or not any portion of the
Premises is so taken, Landlord shall have the right to terminate this Lease as
of the date of the Taking of possession by giving Tenant ninety (90) days
written notice of Landlord's intent to terminate this Lease. If more than
twenty-five percent (25%) of the value of the Premises is acquired in a Taking,
either Landlord or Tenant may terminate this Lease upon notice to the other
within ninety (90) days prior to the effective date of such Taking. If less than
twenty~five percent (25%) of the value of the Premises is acquired in a Taking
and the award required is sufficient to restore the Premises, subject to
Landlord's right to terminate this Lease in this Article 23, Landlord shall
----------
promptly restore the Premises to a condition comparable to its condition at the
time of such condemnation less the portion acquired in the Taking, this Lease
shall continue in full force and effect with respect to that part not acquired,
and the Minimum Monthly Rent shall be reduced in the proportion that the
Rentable Square Footage of the Premises after the taking bears to the Rentable
Square Footage before the Taking. The Taking of a part of the Automobile Parking
Areas shall not affect this Lease so long as Landlord can provide the parking
spaces described in Section 1.1(1), if any, and reasonable visitor parking
--------------
within the previously existing and/or substitute Automobile Parking Area. In the
event of a Taking as hereinbefore provided, whether whole or partial, the Tenant
shall not be entitled to any part of the award, as damages or otherwise, for
diminution in value or loss of the leasehold, reversion or fee, and Landlord is
entitled to receive the full amount of such award. Tenant expressly waives any
right or claim to all or part of any condemnation award or compensation thereof.
Tenant shall have no claim against Landlord or the Taking authority for the
value of the unexpired Lease Term if the Lease is terminated under this Article.
Although all damages in the event of any condemnation belong to the Landlord,
Tenant shall have the right to claim and recover from the condemning authority,
but not from Landlord, such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right on account of any damage to Tenant's
business by reason of the condemnation and for moving or relocation expenses. If
this Lease is totally or partially terminated under this Article, all rents
shall be prorated as of the date of Taking including refunds for amounts paid in
advance by Tenant.
ARTICLE 24. ASSIGNMENT AND SUBLETTING
24.1 Tenant agrees not to transfer or assign this Lease, or any interest
therein, and shall not sublet the Premises or any part thereof, or any right or
privilege appurtenant thereto, including spaces in the Automobile Parking Area,
or permit any other person or party to use or occupy any portion of the
Premises, either directly or indirectly, by operation of law, merger,
consolidation or otherwise, without Landlord's prior written consent. In the
event Tenant desires to transfer or assign this Lease or any interest therein or
to sublet the Premises or any portion thereof, Tenant shall, by notice in
writing, advise Landlord of Tenant's intention, from, on and after a stated date
(which shall not be less than thirty (30) days after the date of Tenant's
notice), to transfer or assign this Lease or to sublet any portion of the
Premises for the balance or any portion of the Lease Term. Tenant's notice shall
include all the terms of the proposed transfer, assignment or sublease and shall
state the consideration therefor. In such event, Landlord shall have the right,
to be exercised by giving written notice to Tenant within thirty (30) days after
receipt of Tenant's notice, to recapture the space described in Tenant's notice
and such recapture notice shall, if given, cancel and terminate this Lease with
respect to the space therein described as of the date stated in Landlord's
notice. If this Lease is canceled with respect to less than the entire Premises,
the Minimum Monthly Rent shall be equitably adjusted by Landlord with due
consideration of the size, location, type, and quality of the portion of the
Premises so remaining after the "recapture", and this Lease, as so amended,
shall continue thereafter in full force and effect. If Landlord, upon receiving
Tenant's notice with respect to any such space, shall not exercise its right to
recapture such space, Landlord will not unreasonably withhold its consent to
Tenant's assignment of the Lease or subletting such apace to the party
identified in Tenant's notice. Any assignment or subletting hereunder shall not
release or discharge Tenant of or from any liability, whether past, present or
future, under this Lease, and Tenant shall continue to be fully liable
thereunder. Consent by Landlord to one assignment, subletting, occupation, or
use by another person shall not be deemed to be a consent to any subsequent
assignment, subletting,
Landlord _______
Tenant _________
11
occupation, or use by another person. Any attempted transfer, assignment, or
subletting without the prior written consent of Landlord shall be void. Tenant
shall pay Landlord a processing fee of Seven Hundred and Fifty Dollars ($750.00)
and Landlord's reasonable legal fees incurred in connection with the processing
of any documents necessary to give consent under this Article 24. If Tenant is a
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corporation, an unincorporated association, a partnership or a limited liability
company, unless listed on a national stock exchange, the transfer, assignment or
hypothecation of any stock or interest in such corporation, association,
partnership or limited liability company in the aggregate in excess of fifty
percent (50%) shall be deemed an assignment of this Lease. If there is any
change in the ownership of a Tenant which is a corporation, partnership, limited
liability company, trust, or other entity (excluding corporations whose stock is
publicly traded on any United States stock exchange), then within ten (10) days
after the effective date thereof Tenant shall provide notice and a full
description thereof to Landlord, and shall provide such documents or other
materials as Landlord may reasonably request to confirm the then current
ownership of Tenant.
24.2 The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases, or may, at the option of
Landlord, operate as an assignment to Landlord of any or all such subleases.
ARTICLE 25. SALE OF PREMISES BY LANDLORD
In the event of any sale of the Building or the property upon which the
Building is located or any assignment of this Lease by Landlord (or a successor
in title), if the assignee or purchaser assumes the obligations of Landlord
herein in writing, Landlord (or such successor) shall automatically be entirely
freed and relieved of all liability under any and all of Landlord's covenants
and obligations contained in or derived from this Lease or arising out of any
act, occurrence, or omission occurring after such sale or assignment; and the
assignee or purchaser shall be deemed, without any further agreement between the
parties, to have assumed and agreed to carry out any and all of the covenants
and obligations of Landlord under this Lease, and shall be substituted as
Landlord for all purposes from and after the sale or assignment.
ARTICLE 26. SUBORDINATION/ATTORNMENT/MODIFICATION/ASSIGNMENT
Tenant's interest under this Lease is subordinate to all terms of and all
liens and interests arising under any ground lease, deed of trust, or mortgage
now or hereafter placed on the Landlord's interest in the Premises, the
Building, or the Land. Tenant agrees to reasonable amendments to this Lease as
may be required by a lender who proposes to fund construction or permanent
financing provided the amendment does not increase Tenant's monetary obligations
under this Lease. Tenant further consents to an assignment of Landlord's
interest in this Lease to Landlord's lender as required under such financing. If
the Premises or the Building is sold as a result of a default under the
mortgage, or pursuant to a transfer in lieu of foreclosure, or a ground lease is
terminated because of the default of the lessee under such ground lease, Tenant
shall, at the mortgagee's, purchaser's or ground lessor's sole election, attorn
to the mortgage, purchaser or ground lessor, and if so requested, enter into a
new lease for the remainder of the Lease Term. This Article is self-operative;
however, Tenant agrees to execute and deliver, if Landlord or any mortgagee,
purchaser, or ground lessor should so request, such further instruments
necessary to subordinate this Lease to a lien of any mortgage, deed of trust, or
ground lease, to acknowledge the consent to assignment and to affirm the
attornment provisions set forth herein.
ARTICLE 27. LANDLORD'S DEFAULT AND RIGHT TO CURE
In the event of breach, default or noncompliance hereunder by Landlord,
Tenant agrees, before exercising any right or remedy available to it under the
Lease, to give Landlord written notice of the claimed breach, default, or
noncompliance. If prior to its giving such notice Tenant has been notified in
writing (by way of Notice of Assignment of Rents and Leases, or otherwise) of
the address of a lender which has furnished financing that is secured by realty
mortgage or deed of trust on the Premises or the Building or of a ground lessor,
concurrently with giving the notice to Landlord, Tenant agrees to also give
notice by registered mail to such lender and/or ground lessor. For the thirty
(30) days following such notice (or such longer period of time as may be
reasonably required to cure a matter which, due to its nature, cannot reasonably
be remedied within thirty (30) days), Landlord shall have the right to cure the
breach, default or noncompliance involved. If Landlord has failed to cure a
default within said period, any such lender and/or ground lessor shall have an
additional thirty (30) days within which to cure the same or, if such default
cannot be cured within that period, such additional time as may be necessary if
within such thirty (30) day period said lender and/or ground lessor has
commenced and is diligently pursuing the actions or remedies necessary to cure
the breach, default or noncompliance involved (including, but not limited to,
commencement and prosecution of proceedings to foreclose or otherwise exercise
its rights under its mortgage or other security instrument or ground lease, if
necessary to effect such cure), in which event Tenant shall not be entitled to
exercise any right or remedy available to it under the Lease so long as such
actions or remedies are being diligently pursued by said lender and/or ground
lessor. In no event shall Tenant have the right to terminate this Lease as a
result of Landlord's default and Tenant's remedies shall be limited to an
injunction and/or damages limited to the amount of Minimum Monthly Rent paid
during such period of default. If Tenant fails to give notice to Landlord and
any lender and/or ground lessor of a default within six (6) months of the
occurrence of the events pursuant to which the default arises or would occur
with notice as provided above, thereafter Tenant shall have no right to deem
the same a default hereunder.
ARTICLE 28. ESTOPPEL CERTIFICATES
Tenant agrees at any time and from time to time upon request by Landlord,
to execute, acknowledge and deliver to Landlord within five (5) calendar days of
demand by Landlord a written estoppel certificate certifying the veracity of and
affirming any or all of the following information as of the date of the
execution of such estoppel certificate:
Landlord __________
Tenant __________
12
(a) That Tenant executed and exchanged the Lease with Landlord dated
[insert date, of lease] (a copy of the Lease along with any amendments and/or
modifications may be required as an exhibit to the estoppel certificate)
covering the Premises, as shown crosshatched on the plan annexed hereto as
Exhibit A in the Building located at [insert address of building].
(b) That the Lease, consisting of [insert no.] pages, plus Exhibits [insert
----------------
reference letters] (insert no. pages), is in full force and effect and has
-----------------
not been modified, changed, altered or amended in any respect; or if it has been
modified or amended, Tenant shall certify as true the terms, dates and numbers
of pages of each of such modifications or amendments.
(c) That the Lease Term commenced on [insert date of commencement of
lease], that the rent commencement date, if different from the Commencement
Date, is [insert date of rent commencement], and that the Lease Term shall
expire on [insert expiration date of lease].
(d) Whether Tenant has any option(s) to renew or extend the Lease Term. If
Tenant has any such option(s), Tenant shall certify as true the terms of such
option(s) and whether any option has been exercised.
(e) Whether Tenant has any option(s), right(s) of first refusal, or
right(s) of first offer to expand the Premises or to purchase the Building. If
Tenant has such option(s) or right(s), Tenant must certify as true the terms of
such option(s) or right(s) and whether any such option or right has been
exercised.
(f) Whether Tenant has accepted and is now in full possession of the
Premises and is paying full rent under the Lease; or, if Tenant is not in full
possession, whether Tenant has assigned the Lease, sublet all or any portion of
the Premises, or otherwise transferred any interest in the Lease or the
Premises. Tenant agrees to provide a copy of such assignment, sublease or
transfer upon request.
(g) Whether Tenant has received any notice(s) of prior sale, transfer or
assignment, hypothecation or pledge of the Lease or of the rents payable
thereunder.
(h) The current Minimum Monthly Rent payable under the Lease, the current
additional rent, and the date to which the Minimum Monthly Rent and all
additional rent and other charges required to be paid under this Lease have been
paid.
(i) That no Minimum Monthly Rent or additional rent under the Lease has
been paid for more than thirty (30) days in advance of its due date.
(j) The Base Year for pass-throughs of Operating Costs.
(k) The amount of Security Deposit paid to Landlord.
(1) The total Usable Square Feet and Rentable Square Feet of the Premises.
(m) Whether Tenant is currently receiving any rental concessions, rebates
or abatements, and, if so, the terms of such concession, rebate or abatement,
including, without limitation, the date when this concession, rebate or
abatement shall expire. Tenant will also confirm whether it is entitled to any
future rent concessions, rebates or abatements under the Lease; and, if so, the
terms of the future concessions, rebates or abatements.
(n) That all alterations, improvements, additions, build-outs or
construction required to be performed under the Lease have been completed in
accordance with the plans and specifications in the Building Standard
Workletter attached to Lease as Exhibit B.
(o) The status of any work being performed in the Premises and if there are
any unpaid bills for work performed by any contractors or service people.
(p) That there are no alterations, improvements or fixtures that Tenant has
the right to remove from the Premises except for Tenant's personal property and
trade fixtures.
(q) That there are no defaults existing under the Lease by Landlord and no
circumstances currently exist that would constitute a default solely upon the
service of notice or the passage of time, and there is no existing basis for
Tenant to cancel the Lease or to exercise any other remedies available to it by
virtue of a default by Landlord.
(r) That there are no defaults existing under the Lease by Tenant and no
circumstances currently exist that would constitute a default solely upon the
service of notice or the passage of time, and there is not existing basis for
Landlord to cancel the Lease or to exercise any other remedies available to it
by virtue of a default by Tenant.
(s) That there are currently no valid defenses, counterclaims, offsets,
credits, deductions in rent or claims against the enforcement of any of the
agreements, terms or conditions of the Lease.
(t) That no Hazardous Materials, as defined in Section 14.3 of the Lease,
have been generated, treated, stored or disposed of in the Premises by Tenant
or, to the best of Tenant's knowledge, by any third party.
Landlord _______
Tenant ________
13
(u) That there has been no material adverse change in Tenant's financial
condition between the date of the execution of the Lease and the date
hereof.
(v) That there are currently no bankruptcy or reorganization actions,
whether voluntary or involuntary, pending against Tenant under the Bankruptcy
Laws of the United States or any state thereof.
(w) Either or both of the following:
(i) That any disputes with Landlord giving rise to claims against
Landlord are claims under the Lease only and are subordinate to the rights of
the holder of any superior mortgage or ground lease and shall be subject to all
of the terms, conditions and provisions thereof; and any such claims are not
offsets to or defenses against enforcement of the Lease.
(ii) That any disputes with Landlord giving rise to claims against
Landlord are claims under the Lease only and are subordinate to the rights of
any purchaser pursuant to any contract of sale; and any such claims are not
offsets to or defenses against enforcement of the Lease.
(x) That any claims pertaining to matters currently in existence which are
known to, or which are readily ascertainable by, Tenant shall be enforced solely
by money judgment and/or specific performance against Landlord named in the
Lease and may not be enforced as an offset to or defense against enforcement of
this Lease.
(y) Either or both of the following:
(i) Tenant acknowledges that Landlord has informed Tenant that
Landlord has entered into a contract to sell the Building to a purchaser and
that no modification, revision or cancellation of the written Lease or
amendments thereto shall be effective unless a written consent thereto of the
purchaser is first obtained.
(ii) That Tenant acknowledges Landlord has informed Tenant that an
assignment of Landlord's interest in the Lease has been, or will be, made to a
mortgagee; and that no modification, revision or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereof of such
mortgagee is first obtained.
(z) That Tenant acknowledges that the estoppel certificate is made to
induce a purchaser to consummate a purchase of the Building and/or to induce
mortgagee to make and maintain a mortgage loan secured by the Building, as the
case may be, knowing that said purchaser and/or mortgagee as applicable, shall
rely upon the truth of the estoppel certificate in making and/or maintaining
such purchase and/or mortgage as applicable.
(aa) That the person signing the estoppel certificate on behalf of Tenant is
a duly authorized agent of Tenant.
(bb) Any other information as may be requested by Landlord with respect to
the provisions of this Lease or the tenancy created by this Lease.
ARTICLE 29. TENANT'S DEFAULT AND LANDLORD'S REMEDIES
29.1 The following shall constitute a default by Tenant under this Lease:
(a) if Tenant fails to pay any installment of the Minimum Monthly Rent or
additional rent herein provided or any other sum required by this Lease to be
paid to Landlord, or any part thereof, within ten (10) days of the time or in
the manner provided; or (b) if Tenant fails to perform any other covenants or
obligations to be performed by Tenant under this Lease and such failure shall
continue for ten (10) days after notice thereof from Landlord to Tenant; or (c)
if a petition or proceeding under the Federal Bankruptcy Act or any other
applicable state or federal law relating to bankruptcy or reorganization or
other relief for debtors is filed or commenced by or against Tenant or any
guarantor of this Lease, and if against Tenant, said proceedings shall not be
dismissed within ten (10) days following commencement thereof; or (d) if Tenant
or any guarantor of this Lease is adjudged insolvent, makes an assignment for
the benefit of its creditors or enters into an arrangement with its creditors;
or (e) if a writ of attachment or execution is levied on the leasehold estate
hereby created and is not released or satisfied within ten (10) days thereafter;
or (f) if a receiver is appointed in any proceeding or action to which Tenant is
a party with authority to take possession or control of the Premises or the
business conducted thereon by Tenant or the property of any guarantor of this
Lease and such receiver is not discharged within a period of ten (10) days after
his appointment; or (g) if Tenant abandons or vacates the Premises (abandonment
shall be presumed if the Premises are not occupied by at least two (2) employees
of Tenant four (4) days a week, six (6) hours a day).
29.2 Upon a default of Tenant as defined in Section 29.1, Landlord or
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Landlord's agents and employees shall have the right and option to:
(a) Prosecute and maintain an action or actions, as often as Landlord deems
advisable, for collection of Minimum Monthly Rent, additional rent, other
charges, and damages as the same accrue, without entering into possession and
without terminating this Lease. No judgment obtained shall constitute a merger
or otherwise bar prosecution of subsequent actions for Minimum Monthly Rent,
additional rent, other charges, and damages as they accrue.
(b) Immediately or at any time thereafter reenter and take possession of
the Premises and remove Tenant or Tenant's Permittees and any or all of their
property from the Premises. Reentry and removal may be effected by summary
proceedings or any other action or proceedings at law, by force or otherwise.
Landlord shall not be liable in any way in connection with any action taken
under this paragraph.
Landlord ________
Tenant __________
14
No action taken, commenced, or prosecuted by Landlord, no execution on any
judgment and no act or forbearance on the part of Landlord in taking or
accepting possession of the Premises shall be construed as an election to
terminate this Lease unless Landlord expressly exercises this option under
Section 29.2(c). Upon taking possession of the Premises Landlord may from time
---------------
to time, without termination of this Lease, relet the Premises or any part
thereof as agent for Tenant for such rental terms and conditions (which may be
for a term extending beyond the Lease Term and/or at a higher rental rate) as
Landlord, in its sole discretion, may deem advisable, with the right to make
alterations and repairs to said Premises required for reletting. The rents
received by Landlord from such reletting shall be applied first to the payment
of any costs of reletting and second to the payment of rent and other charges
due and unpaid hereunder. The residue, if any, shall be held by Landlord and
applied in payment of future rent and other charges as the same may become due
and payable hereunder. If the rents received from such reletting during any
month are insufficient to reimburse Landlord for any costs of reletting or rent
and other charges due and payable hereunder, Tenant shall pay any deficiency to
Landlord as additional rent hereunder. Such deficiency shall be calculated and
paid monthly as additional rent hereunder. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate
this Lease for such previous breach.
(c) Elect to terminate this Lease by written notice to Tenant. In the event
of such termination, Tenant shall immediately surrender possession of the
Premises. If Tenant fails or refuses to surrender the Premises, Landlord may
take possession in accordance with Section 29.2(b). Should Landlord
---------------
terminate this Lease, Tenant shall have no further interest in this Lease or in
the Premises. In addition, whether or not this Lease is terminated, Tenant
agrees to pay Landlord as additional rent all damages Landlord may incur by
reason of Tenant's default, including without limitation (1) the cost of
repairs, alterations, redecorating, leasing commissions, tenant improvement
allowances, rental concessions and Landlord's other expenses incurred in
reletting the Premises to a view tenant, as well as to reimburse Landlord for
the amount of all of said expenses in originally procuring Tenant for occupancy
of the Premises, and (2) the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent to rent reserved in
this Lease for the remainder of the Lease Term over the then reasonable rental
value of the Premises for the remainder of the Lease Term, all of which amounts
shall be immediately due and payable at Landlord's election from Tenant to
Landlord.
(d) Obtain the appointment of a receiver in any court of competent
jurisdiction, and the receiver may take possession of any personal property
belonging to Tenant and used in the conduct of the business of Tenant being
carried on in the Premises. Tenant agrees that the entry upon the Premises or
possession of said personal property by said receiver shall not constitute an
eviction of Tenant from the Premises or any portion thereof, and Tenant agrees
to hold the Landlord safe and harmless from any claim of any character by any
person arising out of or in any way connected with the entry by said receiver in
taking possession of the Premises or said personal property.
29.3 No act or conduct of the Landlord, whether consisting of reentry,
taking possession, or reletting the Premises or obtaining appointment of a
receiver or accepting the keys to the Premises, or otherwise, prior to the
expiration of the Lease Term shall be deemed to be or constitute an acceptance
of the surrender of the Premises by the Landlord or an election to terminate
this Lease unless Landlord exercises its election under Section 29.2(c) of this
--------------
Lease. Such acceptance or election by Landlord shall only be effected, and must
be evidenced, by written acknowledgement of acceptance of surrender or notice of
election to terminate signed by Landlord.
29.4 Tenant agrees that in the event it is due to render performance in
accordance with any term, condition, covenant, or provision of this Lease and it
fails to render such performance within ten (10) days after written notification
from Landlord that such performance is past due, in accordance with the notice
provision hereof or immediately if required for protection of the Premises, in
addition to all of Landlord's other rights and remedies, Landlord shall have the
right, but not the obligation, to render such performance and to charge all
costs and expense incurred in connection therewith to Tenant. All amounts so
charged together with interest thereon at the Delinquency Interest Rate shall be
considered additional rent and shall be due and payable immediately to Landlord
within ten (10) days after presentment of a statement to Tenant indicating the
amount and nature of such cost or expense.
29.5 No remedy herein conferred upon Landlord shall be considered exclusive
of any other remedy, but the same shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Landlord may exercise its remedies in any order or
combination selected by Landlord in its sole discretion. No delay or omission of
Landlord to exercise any right or power arising from any default shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein.
ARTICLE 30. TENANT'S RECOURSE
Anything in this Lease to the contrary notwithstanding, Tenant agrees to
look solely to the estate and property of Landlord in the Land and the Building,
subject to prior rights of any mortgagee of the Land and Building or any part
thereof, for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord under this Lease. Tenant agrees that it is prohibited from using any
other procedures for the satisfaction of Tenants' remedies. Neither Landlord nor
any partner thereof nor any of their respective officers, directors, employees,
heirs, successors, or assigns, shall have any personal liability of any kind or
nature, directly or indirectly, under or in connection with this Lease.
ARTICLE 31. HOLDING OVER
If Tenant holds over after the Expiration Date, or any extension thereof,
with the consent of Landlord, Tenant shall become a tenant on a month-to-month
basis at a Minimum Monthly Rent equal to one and one-half times the Minimum
Monthly Rent payable immediately prior to the Expiration Date, which rental
shall be payable in advance on the first day of such holdover period and on the
first day of each month thereafter, upon all the terms, covenants and conditions
herein specified. If Tenant holds over without the consent of Landlord, Tenant
shall be a tenant at
Landlord ________
Tenant __________
15
sufferance, the Minimum Monthly Rent shall be two times the sum of (i) the
Minimum Monthly Rent payable immediately prior to the Expiration Date, plus,
(ii) any amounts due under Article 5, and the other provisions of the preceding
---------
sentence will apply. Tenant shall further indemnify and hold Landlord harmless
from any and all liability, obligations, claims, losses, expenses, or attorneys'
fees incurred by Landlord as a result of any unauthorized holdover by Tenant or
any other failure of Tenant to deliver the Premises when and as required by this
Lease.
ARTICLE 32. GENERAL PROVISIONS
32.1 This Lease is construed in accordance with the laws of the State of
Arizona, and venue for resolution of any dispute arising under this Lease lies
exclusively in Maricopa County, Arizona. Each party waives the right to a jury
in any action, proceeding or counterclaim brought by either of them against the
other on any matters whatsoever arising under this Lease.
32.2 If Tenant is composed of more than one person or entity, then the
obligations of such entities or parties are joint and several.
32.3 If any term, condition, covenant, or provision of this Lease is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, conditions, covenants, and provisions hereof shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated.
32.4 The various headings and numbers herein and the grouping of the
provisions of this Lease into separate articles and sections are for the purpose
of convenience only and are not to be considered a part hereof.
32.5 Time is of the essence of this Lease. All references in this Lease to
"days" shall mean calendar days unless specifically modified herein to be
"business" days.
32.6 Neither Landlord nor Tenant shall record this Lease. In addition,
neither party shall record a short form memorandum of this Lease without the
prior written consent (and signature on the memorandum) of the other, and
provided that prior to recordation Tenant executes and delivers to Landlord, in
recordable form, a property acknowledged quitclaim deed or other instrument
extinguishing all of the Tenant's rights and interest in and to the Land,
Building and Premises, and designating Landlord as the transferee, which deed or
other instrument shall be held by Landlord and may be recorded by Landlord once
the Lease terminates or expires (but not prior thereto). If such short form
memorandum is recorded in accordance with the foregoing, the party requesting
the recording shall pay for all costs of or related to such recording,
including, but not limited to, recording charges.
32.7 In the event either party initiates legal proceedings or retains an
attorney to enforce, protect or establish any right or obligation under this
Lease or to obtain relief for the breach of any covenant hereof, the party
ultimately prevailing in such proceedings or the non-defaulting party shall be
entitled to recover all costs and reasonable attorneys' fees, and in the event
of legal proceedings the same shall be determined by the court and not by a jury
and shall be included in any judgment or award obtained. In addition, Landlord
shall be entitled to all attorneys' fees and all other costs incurred in the
preparation and service of any notice or demand hereunder, whether or not a
legal action is subsequently commenced, and such fees and costs shall constitute
additional rent under this Lease and shall be due and payable with Tenant's
succeeding installment of Minimum Monthly Rent. If Landlord is involuntarily
made a party defendant to any litigation concerning this Lease or the Premises
by reason of any act or omission of Tenant, Tenant shall indemnify and hold
Landlord harmless from all liability by reason thereof, including Landlord's
reasonable costs and attorneys' fees.
32.8 This Lease, and any Exhibit or Addendum attached hereto, set forth all
the terms, conditions, covenants, provisions, promises, agreements, and
undertakings, either oral or written, between the Landlord and Tenant. No
subsequent alteration, amendment, change, or addition to this Lease is binding
upon Landlord or Tenant unless reduced to writing and signed by both parties. If
a term, condition, covenant, or provision of the Addendum and this Lease are in
conflict, the terms, conditions, covenants, and provisions of the Addendum
govern.
32.9 Subject to Article 24, the covenants herein contained shall apply to
----------
and bind the heirs, successors, executors, personal representatives, legal
representatives, administrators, and assigns of all the parties hereto.
32.10 No term, condition, covenant, or provision of this Lease shall be
waived except by written waiver of Landlord, and the forbearance or indulgence
by Landlord in any regard whatsoever shall not constitute a waiver of the term,
condition, covenant, or provision to be performed by Tenant to which the same
shall apply, and until complete performance by Tenant of such term, condition,
covenant, or provision, Landlord shall be entitled to invoke any remedy
available under this Lease or by law despite such forbearance or indulgence. The
waiver by Landlord of any breach or term, condition, covenant, or provision
hereof shall apply to and be limited to the specific instance involved and shall
not be deemed to apply to any other instance or to any subsequent breach of the
same or any other term, condition, covenant, or provision hereof. Acceptance of
rent by Landlord during a period in which Tenant is in default in any respect
other than payment of rent shall not be deemed a waiver of the other default.
Any payment made in arrears shall be credited to the oldest amount outstanding
and no contrary application will waive this right.
32.11 The use of a singular term in this Lease shall include the plural and
the use of the masculine, feminine, or neuter genders shall include all others.
32.12 Within thirty (30) days of receipt of a request from Landlord (which
shall not occur more frequently than annually), Tenant shall provide reasonably
detailed financial statements for Tenant, any parent entities of Tenant and any
guarantors of this Lease, for the most recent fiscal or calendar year, which
shall be audited or accountant prepared, and in any event shall be certified to
be true and correct by Tenant.
Landlord _______
Tenant _________
16
32.13 Landlord's submission of a copy of this Lease form to any person,
including Tenant, shall not be deemed to be an offer to lease or the creation of
a lease unless and until this Lease has been fully signed and delivered by
Landlord.
32.14 Every term, condition, covenant, and provision of this Lease, having
been negotiated in detail and at length by both parties, shall be construed
simply according to its fair meaning and not strictly for or against Landlord or
Tenant.
32.15 If the time for the performance of any obligation under this Lease
expires on a Saturday, Sunday, or legal holiday, the time for performance shall
be extended to the next succeeding day which is not a Saturday, Sunday, or legal
holiday.
32.16 If requested by Landlord, Tenant shall execute written documentation
with signatures acknowledged by a notary public, to evidence when and if
Landlord or Tenant has met certain obligations under this Lease.
ARTICLE 33. NOTICES
Wherever in this Lease it is required or permitted that notice or demand be
given or served by either party to or on the other, such notice or demand shall
be in written and shall be given or served and shall not be deemed to have been
duly given or served unless (a) in writing; (b) either (1) delivered personally,
(2) deposited with the United States Postal Service, as registered or certified
mail, return receipt requested, begin adequate postage, or (3) sent by
overnight express courier (including, without limitation, Federal Express, DHL
Worldwide Express, Airborne Express, United States Postal Service Express Mail)
with a request that the addressee sign a receipt evidencing delivery; and (o)
addressed to the party at its address in Section 1.1. Either party may change
-----------
such address by written notice to the other. Service of any notice or demand
shall be deemed completed forty-eight (48) hours after deposit thereof, if
deposited with the United States Postal Service, or upon receipt if delivered by
overnight courier or in person.
ARTICLE 34. BROKER'S COMMISSIONS
Tenant represents and warrants that there are no claims for brokerage
commissions or finder's fees in connection with this Lease (excepting
commissions or fees approved or authorized in writing by Landlord). Tenant shall
indemnify Landlord against and hold it harmless from all liabilities arising
from any such claims, including any attorneys' fees incurred by Landlord in
connection therewith.
[Remainder of page intentionally left blank.]
Landlord _______
Tenant _________
17
IN WITNESS WHEREOF, the parties have duly executed this Lease as of the day and
year first above written.
LANDLORD
P.R.A. BILTMORE INVESTMENTS, L.L.C.,
an Arizona limited liability company
By: PACIFIC INVESTMENTS LIMITED PARTNERSHIP,
an Arizona limited partnership, as a
Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Sole General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, III, acting in his
capacity as Vice President and
Designated Representative of Motown
Mall General, Inc., a Delaware
corporation, as a Member, and of
Motown Mall Limited, Inc., a Delaware
corporation, as a Member
TENANT
PAN AMERICAN BANK, F.S.B., a federal
savings bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Grill
-----------------------------------
its: President
----------------------------------
State of Arizona )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 18 day of March
-- -----
1997, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the sole general partner of Pacific Investments
Limited Partnership, an Arizona limited partnership, as a Member of P.R.A.
BILTMORE INVESTMENTS, L.L.C., an Arizona limited liability company, on behalf of
the limited liability company.
/s/ R.E. ▇▇▇▇▇
-----------------------------
Notary Public
My Commission Expires:
May 31, 1997
----------------------
State of Georgia )
) ss.
County of ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 17 day of March,
-- -----
1997, by ▇▇▇▇▇ ▇. ▇▇▇▇▇, III, acting in his capacity as Vice President and
Designated Representative of Motown Mall General, Inc., a Delaware corporation,
as a Member, and of Motown Mall Limited, Inc., a Delaware corporation, as a
Member, both of P.R.A. BILTMORE INVESTMENTS, L.L.C., an Arizona limited
liability company, on behalf of the limited liability company.
/s/ [SIGNATURE ILLEGIBLE]
----------------------------
Notary Public
My Commission Expires:
Notary Public, ▇▇▇▇▇▇ County, Georgia
My Commission Expires March 7, l999
--------------------------------------
Landlord _______
Tenant _________
18
ADDENDUM TO OFFICE LEASE AGREEMENT
ARTICLE 35. AGREEMENT
This Addendum is attached to and incorporated by reference in that certain
Office Lease Agreement, dated February 28, 1997, by P.R.A. BILTMORE INVESTMENTS,
L.L.C., an Arizona limited liability company (the "Landlord"), and PAN AMERICAN
BANK, F.S.B., a federal savings bank (the "Tenant"). The Office Lease Agreement,
the Exhibits thereto, and this Addendum shall constitute one agreement (the
"Lease"). In the event of any conflict or inconsistency between the terms,
conditions, covenants, and provisions of this Addendum and the terms,
conditions, covenants, and provisions of the Office Lease Agreement or its
Exhibits, the terms, conditions, covenants, and provisions of this Addendum
control.
36. TERM
36.1 Notwithstanding anything in this Lease to the contrary, the
Commencement Date of the Lease Term shall be thirty (30) days after the date
that a Certificate of Occupancy for the Premises is obtained.
36.2 Section 3.1 is revised on the sixth lines to add after the word
-----------
"parties" the words, "latent defects,..."
37. MINIMUM MONTHLY RENT
Article 4 is revised on the first line to add after the word "demand," the
---------
words "except as expressly provided herein,..."
38. ADDITIONAL RENT/EXPENSE STOP
38.1 Section 5.3 is revised on the eighth line to add after the words
-----------
"due from Tenant" the words "within ten (10) days,..."
38.2 Section 5.4(a)(1) is revised on the seventh and eighth lines to add
-----------------
after the words "by separate policy," the word "or", and to delete the words "or
self insurance, in which case the reasonable value of self insurance shall be
included in Operating Costs),..."
38.3 Section 5.4(d) is revised on the third line to add after the words
-------------
"the Building been" the words "at least,..."
39. TAXES
Section 7.1 is revised on the last line to add after the words "Inheritance
-----------
taxes" the words "or net income taxes".
40. SECURITY DEPOSIT
Section 9.2 is revised on the eighth line to delete the words "thirty (30)
-----------
days" and to replace them with the words "ten (10) days..."
41. HAZARDOUS MATERIALS
Section 14.3 and Section 14.4 are revised to delete the entire last
------------ ------------
sentence of Section 14.4 and to add it as the last sentence to Section 14.3.
------------ ------------
42. RIGHTS RESERVED BY LANDLORD
Article 15 is revised to add the following sentence at the end of that
----------
Article: "Notwithstanding the foregoing, Landlord shall use reasonable efforts
to minimize the disruption to Tenant's use of the Premises in the exercise of
Landlord's rights contained in Article 15(a), (b), (f) and (g).
-------------
43. MAINTENANCE AND REPAIR
43.1 Section 17.1 shall be revised to add the following words to the
------------
end of that paragraph: "or as otherwise set forth in the Lease."
43.2 Section 17.3(b) is revised to add the following words to the end
---------------
of that sentence: ",ordinary wear and tear excepted."
44. UTILITIES
44.1 Section 18.1 is revised to add the following sentence to the end of
------------
that paragraph: "Landlord agrees to provide electricity and water to the
Premises 24 hours per day, 7 days per week."
44.2 Section 18.3 is revised to add the following sentences to the end of
------------
that paragraph: Notwithstanding anything to the contrary in this Section 18.3,
------------
in the event that the utility services to the Premises described in
Section 18.1 of this Lease are interrupted for a
------------
Landlord ________
Tenant __________
ADDENDUM-1
consecutive period greater than or equal to seven (7) business days as a result
of the gross negligence or willful misconduct of Landlord and such interruption
of utility services substantially interferes with Tenant's use of all or a
substantial portion of the Premises (the "Interruption Period"), then Tenant's
Minimum Monthly Rent and other sums payable by Tenant to Landlord under this
Lease shall be abated or reduced, from the date Tenant delivers written notice
to Landlord of such circumstance until sufficient utility services are restored,
in the proportion that the Rentable Square Footage of the portion of the
Premises that Tenant is prevented from using and does not use, bears to the
total Rentable Square Footage of the Premises. In the event that Landlord
subsequently receives proceeds from any rental interruption insurance policy
which it may maintain on the Premises, Landlord shall promptly provide Tenant
with a credit equal to the amount of rental insurance proceeds that Landlord
received attributable to those days prior to the abatement or reduction provided
herein during which the interruption of utility services substantially
interfered with Tenant's use of all or a substantial portion of the Premises."
45. ENTRY AND INSPECTION
45.1 Section 19.1 is revised on the first line to add after the words "at
------------
all reasonable times the words", upon reasonable prior notice to Tenant except
in the case of an emergency..."
45.2 Section 19.1 is also revised on the fifth line to add the following
------------
sentence as a new second sentence to that paragraph:
"Notwithstanding the foregoing, Landlord shall use reasonable efforts to
minimize the disruption to Tenant's use of the Premises during such entry."
45.3 Section 19.2 is revised on the first line to add after the word "If"
------------
the words "an employee of..."
46. ACCEPTANCE OF THE PREMISES/LIABILITY INSURANCE/INDEMNIFICATION OF LANDLORD
46.1 Section 20.1 is revised on the fifth line to add after the words
------------
"bursting pipes" the words ", except to the extent caused by the gross
negligence or willful misconduct of Landlord."
46.2 Section 20.1 is also revised on the fifth line to add after the words
------------
"Exhibit B," the words "and Section 3.1..."
----------- ---------------
46.3 Section 20.2 is revised to add the following to the end of that
------------
paragraph: "Landlord hereby agrees to indemnify, defend and hold Tenant harmless
against all Claims (as defined in Section 20.7) arising from: any grossly
-------------
negligent act or omission or act of willful misconduct of Landlord, its agents,
servants, employees and contractors; any default of Landlord under this Lease;
or other grossly negligent acts or omissions or acts of willful misconduct of
Landlord, its agents, servants, employees and contractors which result in
personal injury, loss of life or property damage sustained in and about the
Premises, the Building, the Land or the Project."
46.4 Section 20.5 is revised to delete the first sentence of that
------------
paragraph and replace it with the following sentence: "During the entire Lease
Term, Landlord agrees to maintain public liability insurance with policy limits
of at least $3,000,000.00 in such forms as Landlord shall determine.
47. PROPERTY AND CASUALTY INSURANCE
47.1 Section 21.2 is revised on the first line to add after the words "(all
------------
risk)" the words "in the amount of ninety percent (90%) of replacement cost..."
47.2 Section 21.2 is also revised on the fourth line to delete the
------------
following sentence: "Landlord may elect to self-insure any portion of the
required insurance.
47.3 Section 21.2 is further revised on the eighth and ninth lines to add
------------
after the words "excess of the" the word "average", and to delete the words
"having the lowest rate" and to replace them with the words "in the
Building,..."
47.4 Section 21.2 is finally revised on the tenth line to delete the word
------------
"lowest" and to replace it with the word "average..."
48. SUBORDINATION/ATTORNMENT/MODIFICATION/ASSIGNMENT
Article 26 is revised on the fourth line to add after the word "monetary"
----------
the words "or other..."
49. LANDLORD'S DEFAULT AND RIGHT TO CURE
49.1 Article 27 is revised on the seventh line to add after the words
----------
"within thirty (30) days" the words ", provided Landlord commences such cure
within thirty (30) days,..."
49.2 Article 27 is also revised on the second to last line to delete the
----------
words "six (6) months" and to replace them with the words "one (1) year..."
50. ESTOPPEL CERTIFICATES
50.1 Article 28 is revised on the first and second lines to delete the
----------
words "five (5) calendar days" and to replace them with the words "ten (10)
calendar days...
Landlord ______
Tenant ________
ADDENDUM-2
50.2 Article 28(bb) is revised on the first line to add after the words
--------------
"as may be" the word "reasonably..."
51. TENANT'S DEFAULT AND LANDLORD'S REMEDIES
51.1 Section 29.1 is revised on the fourth line to delete the words "ten
------------
(10) days" and to replace them with the words "thirty (30) days..."
51.2 Section 29.1 is also revised on the fourth line to add after the word
------------
"Tenant" the words ", unless such failure cannot be cured within such thirty
(30) day period, in which case Tenant shall fail to commence such cure within
thirty (30) days and thereafter diligently prosecute such cure to
completion;..."
51.3 Section 29.1 is further revised on the seventh, ninth and eleventh
------------
lines to delete the words "ten (10} days" and to replace them with the words
"thirty (30) days..."
51.4 Section 29.1(g) is deleted and replaced with the following words:
---------------
"or (g) if Tenant abandons the Premises (abandonment shall be presumed if the
Premises are not occupied by any employees of Tenant or open for business for
thirty (30) consecutive days."
51.5 Section 29.4 is revised on the second line to delete the words "ten
------------
(10) days" and to replace them with the words "twenty (20) days..."
52. TENANT'S RECOURSE
Article 30 is revised on the second line to add after the words "and the
----------
Building," the words "and any insurance or condemnation proceeds relating
thereto, if applicable,..."
53. NOTICES
Article 33 is revised to delete the last sentence in that paragraph and to
----------
replace it with the following sentence: "Service of any notice or demand shall
be deemed completed upon receipt."
54. BROKER'S COMMISSIONS
Article 34 is deleted in its entirety and replaced with the following
----------
sentences: "Tenant and Landlord represent and warrant to each other that there
are no claims for brokerage commissions or finder's fees in connection with this
Lease (excepting commissions or fees approved or authorized in writing by
Landlord). Tenant and Landlord shall indemnify each other and hold the other
harmless from all liabilities arising from any such claims, including any
attorneys' fees incurred in connection therewith. Tenant and Landlord agree that
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of Arizona, Inc. is the only party entitled to a commission
in connection with procuring the Tenant under this Lease, which commission shall
be paid by Landlord pursuant to separate agreement."
55. LEASE GUARANTEE
No Lease Guarantee shall be required for this Lease. Exhibit E of the Lease
---------
entitled "Continuing Lease Guarantee" is hereby intentionally deleted.
56. LEASEHOLD IMPROVEMENT ALLOWANCE
To the extent the entire Leasehold Improvement Allowance is not utilized in
connection with constructing Tenant's Leasehold Improvements, Tenant shall
receive a credit against its Minimum Monthly Rent obligation in the amount of
the unused portion of the Leasehold Improvement Allowance. In addition, in the
event Landlord agrees to construct Tenant's Leasehold Improvements in an amount
in excess of Tenant's Leasehold Improvement Allowance for which Landlord does
not require immediate reimbursement from Tenant, which decision may be made by
Landlord in its sole and absolute discretion, any amount expended by Landlord in
excess of the Leasehold Improvement Allowance shall be amortized into Tenant's
Minimum Monthly Rent obligation together with interest on such excess amount at
the rate of twelve percent (12%) per annum. In this event, Tenant agrees to
promptly execute an amendment to the Lease to reflect the increase in its
Minimum Monthly Rent obligation.
57. SIGNAGE
Landlord shall provide Tenant with Building Standard entry signage and panel
locations on the Building's directories located in the lobby and visitor parking
level in the parking garage.
58. RIGHT OF TERMINATION
Provided Tenant shall not have ever been in default under any provision of
the Lease beyond any applicable cure period, Tenant shall have a one (1)-time
right to terminate this Lease (the "Termination Right") upon the expiration of
the twenty-fourth (24th) month from the Commencement Date (the "Termination
Date"). In order to exercise its Termination Right, Tenant shall provide written
notice of its election to Landlord ("Termination Exercise Notice") at least
three (3) months before the Termination Date, or else such right shall be
waived. Tenant shall pay to Landlord a fee for the Termination Right (the
"Termination Fee") consisting of (a) six (6) full installments of Minimum
Monthly Rent and
Landlord ________
Tenant __________
ADDENDUM-3
Operating Costs (in excess of the Expense Stop) at the rate in effect at the
time of the Termination Date, (b) "Unamortized Leasehold Improvement Costs" (as
defined below), (c) "Unamortized Broker's Commissions" (as defined below), plus
(d) any applicable taxes on any of the amounts. "Unamortized Leasehold
Improvement Costs" shall mean the product obtained when multiplying (i) the sum
of any Leasehold Improvement Allowance plus any other costs provided, paid or
incurred by Landlord in connection with the design and construction of the
Leasehold Improvements installed in the Premises prior to the Commencement Date
pursuant to Exhibit B by (ii) the fraction, the numerator of which is the number
---------
of months of the Term of this Lease not yet elapsed as of the Termination Date
(excluding any unexercised renewal option), and the denominator of which is the
total number of months of the Term of this Lease (excluding any unexercised
renewal option). "Unamortized Broker's Commissions" shall mean the product
obtained when multiplying (i) the sum of any Broker's Commissions paid or
incurred by Landlord in connection with procuring Tenant for the Premises by
(ii) the fraction, the numerator of which is the number of months of the Term of
this Lease not yet elapsed as of the Termination Date (excluding any unexercised
renewal option), and the denominator of which is the total number of months the
Term of this Lease (excluding any unexercised renewal option). For example, if
the total costs paid or incurred by Landlord with respect to the Leasehold
Improvements (or Broker's Commissions) is $50,000.00, the Lease Term is
thirty-six (36) months, and the Lease is terminated at the end of twenty-four
(24) months, the Unamortized Leasehold Improvement Costs (or Unamortized
Broker's Commissions) would be $16,666.67 (i.e., $16,666.67 equals $50,000.00 x
12/36). If Tenant exercises its Termination Right, Tenant shall pay to Landlord
the Termination Fee and peaceably vacate the Premises and deliver possession
thereof to Landlord at or before the Termination Date, and, as of such
Termination Date, neither party shall have any further liability or obligation
to the other under this Lease, except as set forth in this Article 58, and
----------
further except for the then accrued liabilities under the Lease as of said
Termination Date, including, but not limited to, all monetary amounts due and
owing, the obligations of indemnification for acts or omissions occurring prior
to the Termination Date and as otherwise stated in the Lease, which amounts and
obligations shall expressly survive the termination of this Lease.
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