Exhibit 10.4
OFFICE LEASE
by and between
PRESSION ADVISORY L.L.C
An Arizona Limited Liability Company
"Landlord"
and
DIMENSIONAL VISIONS GROUP, LTD.
A Delaware Corporation
"Tenant"
October 27, 1997
for premises known as
"XXXXXX EXECUTIVE OFFICE"
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
TABLE OF CONTENTS PAGE
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1. BASIC PROVISIONS 1
2. LEASED PREMISES; NO ADJUSTMENT 2
3. LEASE TERM; COMMENCEMENT DATE 2
4. SECURITY DEPOSIT 2
5. RENT; RENT TAX; ADDITIONAL RENT 3
6. OPERATING COSTS 3
7. CONDITION, REPAIRS AND ALTERATIONS 4
8. SERVICES 5
9. LIABILITY AND CASUALTY INSURANCE 6
10. CASUALTY DAMAGE 6
11. WAIVER OF SUBROGATION 7
12. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS 7
13. DEFAULT AND REMEDIES 7
14. LATE PAYMENTS 8
15. SURRENDER 8
16. INDEMNIFICATION AND EXCULPATION 9
17. ENTRY BY LANDLORD 9
18. SUBSTITUTE PREMISES 9
19. ASSIGNMENT AND SUBLETTING 10
20. USE OF LEASED PREMISES 11
21. SUBORDINATION AND ATTORNMENT 11
22. ESTOPPEL CERTIFICATE 12
23. SIGNS 12
24. PARKING 12
25. LIENS 12
26. HOLDING OVER 12
27. ATTORNEYS' FEES 13
28. RESERVED RIGHTS OF LANDLORD 13
29. EMINENT DOMAIN 13
30. NOTICES 13
31. RULES AND REGULATIONS 14
32. ACCORD AND SATISFACTION 14
33. EARLY MOVE-IN 14
34. MISCELLANEOUS 14
OFFICE LEASE
I. BASIC PROVISIONS
1.1 Date October 27. 1997
1.2 Landlord: Xxxxxxx Advisory. X.XX.
an Arizona Limited Liability Company
1.3 Landlord's Address: 501 Fast Xxxxxx. Xxxxx 000
Xxxxxxx. Xxxxxxx 00000
1.4 Tenant: Dimensional Visions Group, Ltd.
A Delaware Corporation
1.5 Tenant's Address 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
1.6 Property The parcel of real estate located in Maricopa County, Arizona,
described on Exhibit "A" attached hereto and incorporated herein by
this reference.
1.7 Building That certain office building located at 0000 Xxxx Xxxxxx. Xxxxxxx,
XX and situated on the Property, and the landscaping, parking
facilities, and all other improvements and appurtenances to the
Property.
1.8 Leased Premises Approximately 3100 rentable square feet of office space located on
the 2nd floor of the Building and commonly known as Suite 207
1.9 Permitted use General office and no other purpose.
1.10 Lease Term. Three (3) years and One-Half (1/2 ) months.
1.11 Scheduled Commencement Date: December 15, 1997
1.12 Annual Basic Rent: December 15, 1997 through December 31, 1997-Rent at no charge.
1. $44,950.00 ($3,745.83/month) based upon a rental rate of $14.50
PSF 1/1/98 through 12/31/98.
2. $46,500.00 ($3,875.00/month) based upon a rental rate of $15.00
PSF 1/1/99 through 12/31/99
3. $48,050.00 ($4,004.17/month) based upon a rental rate of $15.50
PSF 1/1/2000 through 12/31/2000.
1.13 Security Deposit. $4,100.00
1.14 Base Year Costs 1998 actual Operating Costs per rentable square foot from the
Commencement Date until December 31, 1998 extrapolated over a twelve
(12) month period.
1.15 Building Hours 7 a.m., to 7 p.m., Monday through Friday, and 8 a.m. to 2 p.m. on
Saturday, excluding recognized federal, state or local holidays.
1.16 Parking Spaces Three (3) covered/reserved.
1.17 Parking Charge. Two (2) covered/reserved no charge.
One (1) covered/reserved at $25.00 per month.
1.18 Guarantors None
1.19 Broker XXXX Commercial Real Estate Services and CB Commercial.
1.20 Metropolitan Area: Phoenix
1.21 Late Charge Percentage Ten Percent (10%)
1.22 Riders 1= Hazardous Materials - exception would be for copy machine and
common office supplies.
1.23 Exhibits A = Description of the Property
B = Floor Plan
E = Building Rules and Regulations
G = Work Letter
2. LEASED PREMISES: NO ADJUSTMENTS
2.1 Leased Premises. Landlord leases to Tenant, and Tenant leases and
accepts from Landlord, the Leased Premises, upon the terms and conditions set
forth in this Lease and any modifications, supplements or addenda to this Lease
(the "Lease"), including the Basic Provisions of Article I which are
incorporated into this Lease by this reference, together with the nonexclusive
right to use, in common with Landlord and others, the Building Common Areas (as
defined below). For the purposes of this Lease, the term "Building Common Areas"
means common hallways, corridors, walkways and footpaths, foyers and lobbies,
bathrooms and janitorial closets, electrical and telephone closets, landscaped
areas, and such other areas within or adjacent to the Building which are subject
to or are designed or intended solely for the common enjoyment, use and/or
benefits of the tenants of the Building.
2.2 No Adjustment The Annual Basic Rent at the Commencement Date (as
defined below) is based on the Leased Premises containing approximately the
rentable square footage set forth in Article 1.8 above. The Annual Basic Rent
shall not be increased or decreased if the actual rentable square footage of the
Leased Premises is more or less than the rentable square footage set forth in
Article 1.8.
3. LEASE TERM: COMMENCEMENT DATE
3.1 Lease Term. The Lease Term shall begin on the Commencement Date and
shall be for the period set forth in Article 1.10 above, plus any period of less
than one (1) month between the Commencement Date and the first day of the next
succeeding calendar month, unless sooner terminated in accordance with the
further provisions of this Lease.
3.2 Commencement Date. The Commencement Date shall mean the earliest of (a)
the date on which Landlord tenders possession of the Leased Premises to Tenant;
(b) the date on which Landlord would have tendered possession of the Leased
Premises to Tenant but for any act or omission of Tenant, its agents,
contractors or employees, or (c) the date on which Tenant takes possession of
the Leased Premises.
3.3 Memorandum of Commencement Date. Landlord and Tenant shall, within ten
(10) days after the Commencement Date, execute a declaration in the form of
Exhibit "C" attached hereto specifying the Commencement Date should the
Commencement Date be a date other than the Scheduled Commencement Date.
3.4 Delay in Commencement Date. In the event Landlord shall be unable, for
any reason, to deliver possession of the Leased Premises to Tenant on the
Scheduled Commencement Date, Landlord shall not be liable for any loss or damage
occasioned due to such failure, nor shall such inability affect the validity of
this Lease or the obligations of Tenant. In such event, Tenant shall not be
obligated to pay Annual Basic Rent or Additional Rent until the Commencement
Date. In the event Landlord shall not have delivered possession of the Leased
Premises to Tenant within thirty (30) days after the Scheduled Commencement
Date, and if such failure to deliver possession was (a) caused solely by the
fault or neglect of Landlord, and (b) not caused by any fault or neglect of
Tenant or due to additional time required to plan for and install other work for
Tenant beyond the amount of time which would have been required if only building
standard improvements had been installed, then, as its sole and exclusive remedy
for Landlord's failure to deliver possession of the Leased Premises in a timely
manner, Tenant shall have the right to terminate this Lease by delivering
written notice of termination to Landlord at any time within thirty (30) days
after the expiration of such thirty (30) day period. Such termination shall be
effective thirty (30) days after receipt by Landlord of Tenant's notice of
termination unless Landlord shall, prior to the expiration of such thirty (30)
day period, deliver possession of the Leased Premises to Tenant. Upon a
termination of this Lease pursuant to the provisions of this Article 3.4, the
parties shall have no further obligations or liabilities to the other and
Landlord shall promptly return any monies previously deposited or paid by
Tenant.
3.5 Lease Year. Each "Lease Year" shall be a period of twelve (12)
consecutive calendar months, the first Lease Year beginning on the Commencement
Date or on the first day of the calendar month next succeeding the Commencement
Date if the Commencement Date is not on the first day of a calendar month.
4. SECURITY DEPOSIT
Tenant shall pay to Landlord, upon the execution of this Lease, the
Security Deposit set forth in Article 1.13 above as security for the performance
by Tenant of its obligations under this Lease, which amount shall be returned to
Tenant after the expiration or earlier termination of this Lease, provided that
Tenant shall have fully performed all of its obligations contained in this
Lease. The Security Deposit, at the election of Landlord, may be retained by
Landlord as and for its full damages or may be applied in reduction of any loss
and/or damage sustained by Landlord by reason of the occurrence of any breach,
nonperformance or default by Tenant under this Lease without the waiver of any
other right or remedy available to Landlord at law, in equity or under the terms
of this Lease. If any portion of the Security Deposit is so used or applied,
Tenant shall, within five(5) days after written notice from Landlord, deposit
with Landlord immediately available funds in an amount sufficient to restore the
Security Deposit to its original amount, and Tenant's failure to do so shall be
a breach of this Lease. Tenant acknowledges and agrees that in the event Tenant
shall file a voluntary petition pursuant to the Bankruptcy Code, or if an
involuntary petition is filed against Tenant pursuant to the Bankruptcy Code,
then Landlord may apply the Security Deposit towards those obligations of Tenant
to Landlord which accrued prior to the filing of such petition. Tenant
acknowledges further that the Security Deposit may be commingled with Landlord's
other funds and that Landlord shall be entitled to retain any interest earnings
on the Security Deposit. In the event of termination of Landlord's Interest in
this Lease, Landlord shall transfer the Security Deposit to Landlord's successor
in interest, and Landlord shall be released from liability by Tenant for the
return of such deposit or for an accounting of the Security Deposit.
5. RENT: RENT TAX: ADDITIONAL RENT
5.1 Payment of Rent. Tenant shall pay to Landlord the Annual Basic Rent set
forth in Article 1.12 above, subject to adjustment as provided for in Article
1.12. The Annual Basic Rent shall be paid in equal monthly installments, on or
before the first day of each and every calendar month during the Lease Term, in
advance, without notice or demand and without abatement, deduction or set-off,
except for the first month's rent which is due and payable on execution, and
pro-rata, in advance for any partial month.. The Annual Basic Rent for the first
full month of the Lease Term shall be paid upon the execution of this Lease. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month. In addition, all payments to be made under this Lease shall be paid in
lawful money of the United States of America to Landlord or its agent at the
address set forth in Article 1.3 above, or to such other person or at such other
place as Landlord may from time to time designate in writing.
5.2 Rent Tax. In addition to the Annual Basic Rent and Additional Rent (as
defined below), Tenant shall pay to Landlord, together with the monthly
installments of Annual Basic Rent and payments of Additional Rent, an amount
equal to any state or local sales, rental, occupancy, excise, use or
transactional privilege taxes assessed or levied upon Landlord with respect to
the amounts paid by Tenant to Landlord under this Lease, as well as all taxes
assessed or imposed upon Landlord's gross receipts or gross income from leasing
the Leased Premises to Tenant, including, without limitation, transaction
privilege taxes, education excise taxes, any tax now or subsequently imposed by
the City of Phoenix, the State of Arizona, any other governmental body, and any
taxes assessed or imposed in lieu of or in substitution of any of the foregoing
taxes. Such taxes shall not, however, include any franchise, gift, estate,
inheritance, conveyance, transfer or net income tax assessed against Landlord.
5.3 Additional Rent In addition to Annual Basic Rent, all other amounts to
be paid by Tenant to Landlord pursuant to this Lease (including amounts to be
paid by Tenant pursuant to Article 6 below), if any, shall be deemed to be
Additional Rent, irrespective of whether designated as such, and shall be due
and payable within thirty (30) days after receipt by Tenant of Landlord's
statement or together with the next succeeding installment of Annual Basic Rent,
whichever shall first occur. Landlord shall have the same remedies for the
failure to pay Additional Rent as for the nonpayment of Annual Basic Rent.
6. OPERATING COSTS
6.1 Tenant's Obligation. The Annual Basic Rent does riot include amounts
attributable to any increase in the amount of Taxes (as hereinafter defined) or
amounts attributable to any increase in the cost of the use, management, repair,
service, insurance, condition, operation and maintenance of the Building.
Therefore, in order that the Annual Basic Rent payable throughout the Lease Term
shall reflect any such increases, Tenant shall pay to Landlord, in accordance
with the further provisions of this Article 6, an amount per rentable square
foot of the Leased Premises equal to the difference between the Operating Costs
(as hereinafter defined) per rentable square foot and the Base Year Costs.
Tenant acknowledges that the Base Year Costs does not constitute a
representation by Landlord as to the Operating Costs per rentable square foot
that may be incurred during any calendar year.
6.2 Landlord's Estimate. Landlord shall furnish Tenant an estimate of the
Operating Costs per rentable square foot for each Fiscal Year (as hereinafter
defined) commencing with the Fiscal Year in which the Commencement Date occurs.
In addition, Landlord may, from time to time, furnish Tenant a revised estimate
of Operating Costs should Landlord anticipate any increase in Operating Costs
from that set forth in a prior estimate. Commencing with the first month to
which an estimate applies, Tenant shall pay, in addition to the monthly
installments of Annual Basic Rent, an amount equal to one-twelfth (1/12th) of
the product of the rentable square footage of the Leased Premises multiplied by
the difference (but not less than zero (0)), if any, between such estimate and
the Base Year Costs; provided, however, if less than ninety-five percent (95%)
of the rentable area of the Building shall be occupied by tenants during the
period covered by such estimate, the estimated Operating Costs for such period
shall be, for the purposes of this Article 6, increased to an amount reasonably
determined by Landlord to be equivalent to the Operating Costs that would be
incurred if occupancy would be at least ninety-five percent (95%) during the
entire period. Within one hundred twenty (120) days after the expiration of each
Fiscal Year or such longer period of time as may be necessary to compile such
statement, Landlord shall deliver to Tenant a statement of the actual Operating
Costs for such Fiscal Year, If the actual Operating Costs for such Fiscal Year
are more or less than the estimated Operating Costs, a proper adjustment shall
be made; provided, however, if less than ninety-five percent (95%) of the
rentable area of the Building shall have been occupied by tenants at any time
during such period, the actual Operating Costs for such period shall be, for the
purposes of this Article 6, increased to an amount reasonably determined by
Landlord to be equivalent to the Operating Costs that would have been incurred
had such occupancy been at least ninety-five (95%) during the entire period. Any
excess amounts paid by Tenant shall be, at Landlord's option, applied to any
amounts then payable by Tenant to Landlord or to the next maturing monthly
installments of Annual Basic Rent or Additional Rent. Any deficiency between the
estimated and actual Operating Costs shall be paid by Tenant to Landlord
concurrently with the monthly installment of Annual Basic Rent next due. Any
amount owing for a fractional Fiscal Year in the first or final Lease Years of
the Lease Term shall be prorated. For the purposes of this Lease, the term means
the fiscal year (or portion of the fiscal year) of Landlord. The Fiscal Year
currently commences on January land ends on December 31; provided, however,
Landlord reserves the right to change the Fiscal Year at any time or times, but
no such change shall result in an increase in the amounts otherwise payable by
Tenant pursuant to the provisions of this Article 6.
6.3 Operating Costs - Defined. For the purposes of this Lease, "Operating
Costs" shall mean all costs and expenses accrued, paid or incurred by Landlord,
or on Landlord's behalf, in respect of the use, management, repair. service,
insurance, condition, operation and maintenance of the Building including, but
not limited to the following: (a) salaries, wages and benefits of all persons
who perform duties in connection with landscaping, parking, janitorial and
general cleaning services, security services and any and all other employees
engaged by or on behalf of Landlord; (b) payroll taxes, workmen's compensation,
uniforms and related expenses for such employees; (c)the cost of all charges for
oil, gas, steam, electricity, any alternate source of energy, heat, ventilation,
air-conditioning, refrigeration, water, sewer service, trash collection, pest
control and all other utilities, together with any taxes on such utilities; (d)
the cost of painting non-tenant space; (e) the cost of all charges for rent,
casualty, liability, fidelity and other insurance maintained by Landlord,
including any deductible amounts incurred with respect to an insured loss; (f)
the cost of all supplies (including cleaning supplies), tools, materials,
equipment and personal property, the rental of the personal property and sales,
transaction privilege, excise and oilier taxes on the personal property; (g)
depreciation of hand tools and other moveable equipment; (h) the cost of all
charges for window and other cleaning, janitorial, and security services; (i)
the cost of charges for independent contractors; (j) the cost of repairs and
replacements made by Landlord at its expense and the fees and other charges for
maintenance and service agreements; (k) the cost of exterior and interior
landscaping; (l) costs relating to the operation and maintenance of all real
property and improvements appurtenant to the Building including, without
limitation, all parking areas, service areas, walkways and landscaping; (m) the
cost of alterations and improvements made by reason of the laws and requirements
of any public authorities or the requirements of insurance bodies; (n) all
management fees and other charges for management services and overhead costs
(including travel and related expenses), whether provided by an independent
management company, Landlord or an affiliate of Landlord, not to exceed,
however, the then prevailing range of rates charged in comparable office
buildings in tile metropolitan area set forth in Article 1.20; (o) the cost of
any capital improvements or additions which improve the comfort or amenities
available to tenants of the Building, provided, however, that any such costs
shall be amortized with interest over the useful life of the improvement or
addition; (p) the cost of any capital improvements or additions which are
intended to enhance the safety of the Building or reduce (or avoid increases in)
Operating Costs, provided, however, that any such costs shall be amortized with
interest over the useful life of the improvement or addition; (q) the cost of
licenses and permits, inspection fees and reasonable legal, accounting and other
professional fees and expenses; (r) taxes (as defined below); and (s) all other
charges properly allocable to the use, management, repair, service, insurance,
condition, operation and maintenance of the Building in accordance with
generally accepted accounting principles.
6.4 Operating Costs - Exclusions. Excluded from Operating Costs shall be
the following: (a) depreciation, except to the extent expressly included
pursuant to Article 6.3 above; (b) interest on and amortization of debts, except
to the extent expressly included pursuant to Article 6.3 above;(c)leasehold
improvements, including redecorating made for tenants of the Building; (d)
brokerage commissions and advertising expenses for procuring tenants for the
Building or the Property; (e) refinancing costs; (f) the cost of any repair,
replacement or addition which would be required to be capitalized under general
accepted accounting principles, except to the extent expressly included pursuant
to Article 6.3 above; and (g) the cost of any item included in Operating Costs
under Article 6.3 above to the extent that such cost is reimbursed or paid
directly by an insurance company, condemnor, a tenant of the Building or any
other party.
6.5 Taxes - Defined. For the purposes of this Lease, "Taxes" shall mean and
include all real property taxes and personal property taxes, general and special
assessments, foreseen as well as unforeseen, which are levied or assessed upon
or with respect to the Property any improvements, fixtures, equipment and other
property of Landlord, real or personal, located on the Property and used in
connection with the operation of all or any portion of the Property, as well as
any tax, surcharge or assessment which shall be levied or assessed in addition
to or in lieu of such real or personal property taxes and assessments. Taxes
shall also include any expenses incurred by Landlord in contesting the amount or
validity of any real or personal property taxes and assessments. Taxes shall
not, however, include any franchise, gift, estate, inheritance, conveyance,
transfer or income tax assessed against Landlord.
No Waiver. The failure by Landlord to furnish Tenant with a statement of
Operating Costs shall not constitute a waiver by Landlord or its right to
require Tenant to pay excess Operating Costs per rentable square foot.
7. CONDITION. REPAIRS AND ALTERATIONS
7.1 As-Is Condition. Landlord shall provide the Leased Premises to Tenant,
and Tenant accepts the Leased Premises in an "AS-IS" condition, and Landlord
makes no representations or warranties concerning the condition of the Leased
Premises and has no obligation to construct, remodel, improve, repair, decorate
or paint the Leased Premises or any improvement on or part of the Leased
Premises, except as set forth in Articles 7.4. 10 or as outlined in the "Work
Letter" marked as Exhibit's" below. Tenant represents and warrants that it has
inspected the Leased Premises prior to execution of this Lease, and that it is
relying on its own inspection in executing this Lease and not on any statement,
representation or warranty of Landlord, its agents or employees.
7.2 Alterations and Improvements. Tenant shall not make any improvements or
other alterations to the interior or exterior of the Leased Premises (the
"Tenant Improvements") without first obtaining the written consent of Landlord
to the proposed work, including the plans, specifications and the proposed
architect and/or contractor(s) for such alterations and/or improvements. All
such Tenant Improvements shall be at the sole cost and expense of Tenant. Tenant
acknowledges and agrees that any review by Landlord of Tenant's plans and
specifications and/or right of approval exercised by Landlord with respect to
any Tenant Improvements is for Landlord's benefit only and Landlord shall not,
by virtue of such review or right of approval, be deemed to make any
representation. warranty or acknowledgment to Tenant or to any other person or
entity as to the adequacy of Tenant's plans and specifications or any Tenant
Improvements.
7.3 Tenant's Obligations. Tenant shall, at Tenants sole cost and expense,
maintain the Leased Premises in a clean, neat and sanitary condition and shall
keep the Leased Premises and every part of the Leased Premises in good condition
and repair except where the same is required to be done by Landlord. Tenant
waives all rights to make repairs at the expense of Landlord as provided by any
law, statute or ordinance now or subsequently in effect. All of Tenant's
Improvements are the property of the Landlord, and Tenant shall, upon the
expiration or earlier termination of the Lease Term, surrender the Leased
Premises, including Tenants Improvements, to Landlord, broom clean and in the
same condition as when received, ordinary wear and tear excepted. Except as set
forth in Articles 7.4.10 and the "Work Letter" marked as Exhibit "G" below,
Landlord has no obligation to construct, remodel, improve, repair, decorate or
paint the Leased Premises or any improvement on or part of the Leased Premises.
Tenant shall pay for the cost of all repairs to the Leased Premises not required
to be made by Landlord and shall be responsible for any redecorating,
remodeling, alteration, painting and carpet cleaning other than routine
vacuuming during the Lease Term. Tenant shall pay for any repairs to the Leased
Premises and/or the Building made necessary by any negligence or carelessness of
Tenant, its employees or invitees.
7.4 Landlord's Obligations. Landlord shall (a) make all necessary repairs
to the exterior walls, exterior doors, windows and corridors of the Building,
(b) keep the Building and the Building Common Areas in good condition,
and(c)keep the Building equipment such as elevators, plumbing, heating, air
conditioning and similar Building equipment in good repair, but Landlord shall
not be liable or responsible for breakdowns or interruptions in service when
reasonable efforts are made to restore such service.
7.5 Removal of Alterations. Upon the expiration or earlier termination of
this Lease, Tenant shall remove from the Leased Premises all movable trade
fixtures and other movable personal property, and shall promptly repair any
damage to the Leased Premises and/or the Building caused by such removal. All
such removal and repair shall be entirely at Tenants sole cost and expense. At
any time within fifteen (15) days prior to the scheduled expiration of the Lease
Term or immediately upon any termination of this Lease, Landlord may require
that Tenant remove from the Leased Premises any alterations, additions,
improvements, trade fixtures, equipment, shelving, cabinet units or movable
furniture (and other personal property) designated by Landlord to be removed. In
such event, Tenant shall, in accordance with the provisions of Article 7.2 above
and Article 10 below, complete such removal (including the repair of any damage
caused thereby) entirely at its own expense and within fifteen (15) days after
notice from Landlord. All repairs required of tenant pursuant to the provisions
of this Article 7.5 and Article 10 below shall be performed in a manner
satisfactory to Landlord, and shall include, but not be limited to, repairing
plumbing, electrical wiring and holes in walls, restoring damaged floor and/or
ceiling tiles, repairing any other cosmetic damage, and cleaning the Leased
Premises. Except for normal wear.
7.6 No Abatement. Except as provided herein, Landlord shall have no
liability to Tenant, nor shall Tenants covenants and obligations under this
Lease, including without limitation, Tenant's obligation to pay Annual Basic
Rent and Additional Rent, be reduced or abated in any manner whatsoever by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted to make pursuant to the terms of this Lease or by any other tenants
lease or are required by law to be made in and to any portion of the Leased
Premises or the Building. Landlord shall, nevertheless, use reasonable efforts
to minimize any interference with Tenant's business in the Leased Premises. If
Landlord is unable to xxxxx damages within sixty (60) days then Tenant has the
right to terminate.
8. SERVICES
8.1 Climate Control. Landlord shall provide reasonable climate control to
the Leased Premises during the Building Hours as is suitable, in Landlord's
judgment, for the comfortable use and occupation of the Leased Premises,
excluding, however, air conditioning, evaporative cooling or heating for
electronic data processing or other equipment requiring extraordinary climate
control.
8.2 Janitorial Services. Landlord shall make janitorial and cleaning
services available to the Leased Premises at least five (5) evenings per week,
except recognized federal, state or local holidays. Tenant shall pay to
Landlord, within five (5) days after receipt of Landlord's xxxx, the reasonable
costs incurred by Landlord for extra cleaning in the Leased Premises required
because of (a) misuse or neglect on the part of Tenant, its employees or
invitees, (b) use of portions of the Leased Premises for special purposes
requiring greater or more difficult cleaning work than office areas,(c)interior
glass partitions or unusual quantities of glass surfaces, (d) non-building
standard materials or finishes installed by Tenant or at its request, (e)
removal from the Leased Premises of refuse and rubbish of Tenant in excess of
that ordinarily accumulated in general office occupancy or at times other than
Landlord's standard cleaning times, and (f) shampooing or other forms of carpet
cleaning other than routine vacuuming.
8.3 Electricity. Landlord shall, during Building Hours, furnish reasonable
amounts of electric current as required for normal and usual lighting purposes
and for office machines and equipment such as personal computers, telecopy or
facsimile machines, typewriters, adding machines, copying machines, calculators
and similar machines and equipment normally utilized in general office use.
Tenants use of electric energy in the Leased Premises shall not at any time
exceed the capacity of any of the risers, piping, electrical conductors and
other equipment in or serving the Leased Premises. The Tenant will have
electricity uninterrupted except for any emergency throughout lease period
without regauged to building hours.
8.4 Water. Landlord shall furnish cold and heated water for drinking and
lavatory purposes to the Building Common Areas.
8.5 Light Bulbs. Landlord shall perform such replacement of lamps,
fluorescent tubes and lamp ballasts in the Leased Premises and in the Building
as may be required from time to time. If the lighting fixtures in the Leased
Premises are other than those furnished at the beginning of the Lease Term,
Tenant shall pay Landlord's charge for replacing the lamps, lamp ballasts and
fluorescent tubes in such lighting fixtures so installed by Tenant within thirty
(30) days after receipt of Landlord's xxxx.
8.6 Additional Services. Tenant shall pay to Landlord, monthly as billed,
as Additional Rent, Landlord's charge for services furnished by Landlord to
Tenant in excess of that agreed to be furnished by Landlord pursuant to this
Article 8, including, but not limited to (a) any utility services utilized by
Tenant during other than Building Hours, and (b) climate control in excess of
that agreed to be furnished by Landlord pursuant to Article 8.1 above or
provided at times other than Building Hours.
8.7 Interruptions in Service. Landlord does not warrant that any of the
foregoing services or any other services which Landlord may supply will be free
from interruption. Tenant acknowledges that anyone or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or by causes beyond the reasonable control of Landlord.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Annual Basic Rent or Additional Rent by reason of any
disruption of the services to be provided by Landlord pursuant to this Lease.
9. LIABILITY AND CASUALTY INSURANCE
9.1 Liability Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of commercial general liability insurance
for bodily injury, personal injury (including wrongful death) and damage to
property resulting from (i) any occurrence in the Leased Premises, (ii) any act
or omission by Tenant, by any subtenant of Tenant, or by any of their respective
invitees, agents, servants, contractors or employees anywhere in the Leased
Premises or the Building, (iii) the business operated by Tenant or by any
subtenant of Tenant in the Leased Premises, and (iv) the contractual liability
of Tenant to Landlord pursuant to the indemnification provisions of Article 16.1
below, which coverage shall not be less than One Million and No/100 Dollars
($l,000,000.00), combined single limit, per occurrence. The liability policy or
policies shall contain an endorsement naming Landlord as an additional insured.
9.2 Casualty Insurance. Tenant shall, during the Lease Term, keep in full
force and effect, a policy or policies of so called "All Risk" or "All Peril"
insurance, including coverage for vandalism or malicious mischief, insuring the
Tenant Improvements and Tenant's stock in trade, furniture, personal property,
fixtures, equipment and other items in the Leased Premises, with coverage in an
amount equal to the replacement cost.
9.3 Worker's Compensation Insurance. Tenant shall, during the Lease Term,
keep in full force and effect, a policy or policies of worker's compensation
insurance with an insurance carrier and in amounts approved by the Industrial
Commission of the State of Arizona.
9.4 Business Interruption Insurance. If Landlord shall so require, Tenant
shall, during the Lease Term, keep in full force and effect, a policy or
policies of business interruption insurance in an amount equal to twelve (12)
monthly installments of Annual Basic Rent and Additional Rent payable to
Landlord, together with the taxes on such rent, insuring Tenant against losses
sustained by Tenant as a result of any cessation or interruption of Tenant's
business in the Leased Premises for any reason.
9.5 Insurance Requirements. Each insurance policy and certificate of such
insurance policy obtained by Tenant pursuant to this Lease shall contain a
clause that the insurer will provide Landlord with at least thirty (30) days
prior written notice of any material change, non-renewal or cancellation of the
policy. Each such insurance policy shall be with an insurance company authorized
to do business in the State of Arizona and reasonably acceptable to Landlord. A
certificate (e.g. Xxxxx Form 27) evidencing the coverage under each such policy,
as well as a certified copy of the required additional insured endorsement(s)
shall be delivered to Landlord prior to commencement of the Lease Term. All
insurance policies required pursuant to this Article 9 shall be written as
primary policies, not contributing with or in excess of any coverage which
Landlord may carry. Tenant shall procure and maintain all policies entirely at
its own expense and shall, at least twenty (20) days prior to the expiration of
such policies, furnish Landlord with renewal certificates of such policies.
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies maintained by Landlord or the insurance policies required
pursuant to this Article 9 or the coverage under such policies.
9.6 Co-Insurance. If on account of the failure of Tenant to comply with the
provisions of this Article 9 Landlord is deemed a co-insurer by its insurance
carrier, then any loss or damage which Landlord shall sustain by reason of such
failure shall be borne by Tenant, and shall be paid by Tenant within ten (10)
days after receipt of a xxxx for such loss or damage.
9.7 Adequacy of Insurance. Landlord makes no representation or warranty to
Tenant that the amount of insurance to be carried by Tenant under the terms of
this Lease is adequate to fully protect Tenant's interests. If Tenant believes
that the amount of any such insurance is insufficient, Tenant is encouraged to
obtain, at its sole cost and expense, such additional insurance as Tenant may
deem desirable or adequate. Tenant acknowledges that Landlord shall not, by the
fact of approving, disapproving, waiving, accepting, or obtaining any insurance,
incur any liability for or with respect to the amount of insurance carried, the
form or legal sufficiency of such insurance, the solvency of any insurance
companies or the payment or defense of any lawsuit in connection with such
insurance coverage, and Tenant hereby expressly assumes full responsibility for
and all liability, if any, with respect to, Tenant's insurance coverage.
10. CASUALTY DAMAGE
10.1 Obligation to Repair. In the event of any damage to the Leased
Premises, Tenant shall promptly notify Landlord in writing. If the Leased
Premises or any part of the Building are damaged by fire or other casualty not
due to the fault or negligence of Tenant, its employees, invitees, agents,
contractors or servants, the damage to the Building and/or the Leased Premises
shall be repaired by and at the expense of Landlord, excluding any alterations
or improvements made by Tenant, unless this Lease is terminated in accordance
with the provisions of Article 10.2 below. Until such repairs by Landlord are
completed, Annual Basic Rent and Additional Rent shall be abated in proportion
to the part of the Leased Premises which is unusable by Tenant in the conduct of
its business. If, however, such damage is due in whole or in part to the fault
or neglect of Tenant or any subtenant of Tenant, or any of their respective
agents, employees, servants, contractors or invitees, there shall be no
abatement of Annual Basic Rent or Additional Rent and Tenant shall be required
to repair all such damage at its sole cost and expense. There shall be no
abatement of Annual Basic Rent or Additional Rent on account of damage to the
Building or the Property unless there is also damage to the Leased Premises.
Tenant hereby waives any statute now or subsequently in effect which grants
to Tenant the right to terminate this Lease or which provides for an abatement
of rent on account of damage or destruction, including, without limitation, ARS.
ss. 33-343.
10.2 Landlord's Option. If the damage is not fully covered by Landlord's
insurance, or if Landlord determines in good faith that the cost of repairing
the damage is more than one-third of the then replacement cost of the Building,
or if Landlord has determined in good faith that the required repairs to the
Building cannot be made within a one hundred twenty (120) day period without the
payment of overtime or other premiums, or in the event a holder of a mortgage or
a deed of trust against the Building or the Property requires that all or any
portion of the insurance proceeds be applied in reduction of the mortgage debt,
or if such damage occurs during the final year of the Lease Term, then Landlord
may, by written notice to Tenant within sixty (60) days after the occurrence of
such damage, terminate this Lease as of the date set forth in Landlord's notice
to Tenant. This right will be reciprocal. If Landlord does not elect to
terminate this Lease, Landlord shall, at its sole cost and expense, repair the
Building and the Leased Premises, excluding any alterations or improvements made
by Tenant, and while such repair work is being performed, the Annual Basic Rent
and Additional Rent shall be abated as provided above. Nothing in this Article
10 shall be construed as a limitation of Tenant's liability for any such damage,
should such liability otherwise exist.
11. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waives its rights and the subrogation
rights of its insurer against the other xxxxx and any other tenants of space in
the Building or the Property as well as their respective officers, employees,
agents, authorized representatives and invitees, with respect to any claims
including, but not limited to, claims for injury to any persons, and/or damage
to the Property, the Building or the Leased Premises and/or any fixtures,
equipment, personal property, furniture, improvements and/or alterations in or
to the Leased Premises, which are caused by or result from (a) risks or damages
required to be insured against under this Lease, or (b) risks and damages which
are insured against by insurance policies maintained by Landlord and Tenant from
time to time. Landlord and Tenant shall obtain for the other party from its
insurers under each policy required by this Lease or otherwise maintained a
waiver of all rights of subrogation which such insurers of Landlord or Tenant
might otherwise have against the other party.
12. LANDLORD'S RIGHT TO PERFORM TENANT OBLIGATIONS
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of Annual Basic Rent or Additional Rent. If
Tenant shall fail to pay any sum of money, other than Annual Basic Rent,
required to be paid by it under this Lease, or shall fail to perform any other
act on its part to be performed under this Lease, and such failure shall
continue for ten (10) days after notice of such failure by Landlord (or such
shorter period of time as may be reasonable in the event of an emergency),
Landlord may (but shall not be obligated to do so) without waiving or releasing
Tenant from any of Tenant's obligations, make any such payment or perform any
such other act on behalf of Tenant. All sums so paid by Landlord and all
necessary incidental costs, together with interest at the greater of (a)
eighteen percent (18%) per annum or (b) the rate of interest per annum publicly
announced, quoted or published, from time to time, by Bank of America, at its
Phoenix, Arizona office as its "reference rate" plus four (4) percentage points,
from the date of such payment by Landlord until reimbursement in full by Tenant
(the "Default Rate"), shall be payable to Landlord as Additional Rent with the
next monthly installment of Annual Basic Rent; provided, however, in no event
shall the Default Rate exceed the maximum rate (if any) permitted by applicable
law.
13. DEFAULT AND REMEDIES
13.1 Event of Default. If Tenant shall fail to pay any installment of
Annual Basic Rent, any Additional Rent or any other sum required to be paid by
Tenant under this Lease, and such failure shall continue for ten (10) days, or
if Tenant shall fail to perform any of the other covenants or conditions which
Tenant is required to observe and perform and such failure shall continue for
fifteen (15) days (or such shorter period of time as may be specified by
Landlord in the event of an emergency) after written notice of such failure by
Landlord to Tenant, or if Tenant makes or has made any warranty, representation
or statement to Landlord in connection with this Lease which is or was
materially false or misleading when made or furnished, or if Tenant shall commit
an Event of Default under any other agreement between Landlord and Tenant, or if
the interest of Tenant in this Lease or any of Tenant's equipment, fixtures, or
personal property located on the Leased Premises shall be levied upon under
execution or other legal process. or if any petition shall be filed by or
against Tenant or any Guarantor to declare Tenant or any Guarantor a bankrupt or
to delay, reduce or modify Tenant's or any Guarantor's debts or obligations, or
if any petition shall be filed or other action taken to reorganize or modify
Tenant's or any Guarantor's capital structure, or if Tenant or any Guarantor
shall be declared insolvent according to law, or if any assignment of Tenant's
or any Guarantor's property shall be made for the benefit of creditors, or if a
receiver or trustee is appointed for Tenant or any Guarantor or all or any of
their respective property, or if Tenant or any Guarantor shall file a voluntary
petition pursuant to the Bankruptcy Code or any successor the Bankruptcy Code or
if an involuntary petition be filed against Tenant or any Guarantor pursuant to
the Bankruptcy Code or any successor the Bankruptcy Code, then Tenant shall have
committed a material breach and default under this Lease (an "Event of
Default").
13.2 Remedies. Upon the occurrence of an Event of Default under this Lease
by Tenant, Landlord may, without prejudice to any other rights and remedies
available to a landlord at law, in equity or by statute, Landlord may exercise
one or more of the following remedies, all of which shall be construed and held
to be cumulative and non-exclusive: (a) Terminate this Lease and re-enter and
take possession of the Leased Premises, in which event, Landlord is authorized
to make such repairs, redecorating, refurbishments or improvements to the Leased
Premises as may be necessary in the reasonable opinion of Landlord acting in
good faith for the purposes of reletting the Leased Premises and the costs and
expenses incurred in respect of such repairs, redecorating and refurbishments
and the expenses of such reletting (including brokerage commissions) shall be
paid by Tenant to Landlord within ten (10) days after receipt of Landlord's
statement; or (b) Without terminating this Lease, re-enter and take possession
of the Leased Premises; or (c)Without such re-entry, recover possession of the
Leased Premises in the manner prescribed by any statute relating to summary
process, and any demand for Annual Basic Rent, re-entry for condition broken,
and any and all notices to quit, or other formalities of any nature to which
Tenant may be entitled, are hereby specifically waived to the extent permitted
by law; or (d) Without terminating this Lease, Landlord may relet the Leased
Premises as Landlord may see fit without thereby avoiding or terminating this
Lease, and for the purposes of such reletting, Landlord is authorized to make
such repairs, redecorating, refurbishments or improvements to the Leased
Premises as may be necessary Ill the reasonable opinion of Landlord acting in
good faith for the purpose of such reletting, and if a sufficient sum is not
realized from such reletting (after payment of all costs and expenses of such
repairs, redecorating and refurbishments and expenses of such reletting
(including brokerage commissions) and the collection of rent accruing therefrom)
each month to equal the Annual Basic Rent and Additional Rent payable under this
Lease, then Tenant shall pay such deficiency each month within ten (10) days
after receipt of Landlord's statement; or (e) Landlord may declare immediately
due and payable all the remaining installments of Annual Basic Rent and
Additional Rent, and such amount, less the fair rental value of the Leased
Premises for the remainder of the Lease Term shall be paid by Tenant within ten
(10) days after receipt of Landlord's statement. Landlord shall not by re-entry
or any other act, be deemed to have terminated this Lease, or the liability of
Tenant for the total Annual Basic Rent and Additional Rent reserved under this
Lease or for any installment of Annual Basic Rent and Additional Rent then due
or subsequently accruing, or for damages. unless Landlord notifies Tenant in
writing that Landlord has so elected to terminate this Lease. After the
occurrence of an Event of Default, the acceptance of Annual Basic Rent or
Additional Rent, or the failure to re-enter by Landlord shall not be deemed to
be a waiver of Landlord's right to subsequently terminate this Lease and
exercise any other rights and remedies available to it, and Landlord may
re-enter and take possession of the Leased Premises as if no Annual Basic Rent
or Additional Rent had been accepted after the occurrence of an Event of
Default. Upon an Event of Default, Tenant shall also pay to Landlord all costs
and expenses incurred by Landlord, including court costs and attorneys' fees, in
retaking or otherwise obtaining possession of the Leased Premises, removing and
storing all equipment, fixtures and personal property on the Leased Premises and
otherwise enforcing any of Landlord's rights, remedies or recourses arising as a
result of an Event of Default
13.3 Interest on Past Due Amounts. In addition to the late charge described
in Article 14 below, if any installment of Annual Basic Rent or Additional Rent
is not paid promptly when due, it shall bear interest at the Default Rate;
provided, however, this provision shall not relieve Tenant from any default in
the making of any payment at the time and in the manner required by this Lease;
and provided, further, in no event shall the Default Rate exceed the maximum
rate (if any) permitted by applicable law.
13.4 Landlord Default. In the event Landlord should neglect or fail to
perform or observe any of the covenants, provisions or conditions contained in
this Lease on its part to be performed or observed, and such failure continues
for thirty (30) days after written notice of default (or if more than thirty
(30) days shall be required because of the nature of the default, if Landlord
shall fail to commence the curing of such default within such thirty (30) day
period and proceed diligently to completion), then Landlord shall be responsible
to Tenant for any actual damages sustained by Tenant as a result of Landlord's
breach, but not special or consequential damages. Notwithstanding any other
provisions in this Lease, any claim which Tenant may have against Landlord for
failure to perform or observe any of the covenants, provisions or conditions
contained in this Lease shall be deemed waived unless such claim is asserted by
written notice of such claim to Landlord within ten (10) days of commencement of
the alleged default or of occurrence of the cause of action and unless suit be
brought upon such claim within six (6) months subsequent to the occurrence of
such cause of action. Tenant shall have no right to terminate this Lease, except
as expressly provided elsewhere in this Lease.
14. LATE PAYMENTS
Tenant hereby acknowledges that the late payment by Tenant to Landlord of
any monthly installment of Annual Basic Rent any Additional Rent or any other
sums due under this Lease will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult and
impracticable to ascertain. Such costs include but are not limited to
processing, administrative and accounting costs. Accordingly, if any monthly
installment of Annual Basic Rent, any Additional Rent or any other sum due from
Tenant shall not be received by Landlord within ten (10) days after the date
when due, Tenant shall pay to Landlord a late charge equal to the greater of the
Late Charge Percentage set forth in Article 1.21 multiplied by such overdue
amount or One Hundred and No/l00 Dollars ($100.00). Tenant acknowledges that
such late charge represents a fair and reasonable estimate of the costs Landlord
will incur by reason of late payments by Tenant. Nothing contained in this
Article 14 shall be deemed to condone, authorize, sanction or grant to Tenant an
option for the late payment of Annual Basic Rent, Additional Rent or any other
sum due under this Lease. If any check of Tenant is returned for insufficient
funds, Tenant shall pay to Landlord a Fifty and No/l00 Dollars ($50.00)
processing charge, in addition to payment of the amount due plus applicable
interest and late charges.
15. SURRENDER
Tenant shall, upon the expiration or earlier termination of this Lease,
peaceably surrender the Leased Premises, including any Tenant Improvements, in a
broom clean condition and otherwise in as good condition as when Tenant took
possession, except for (i) reasonable wear and tear subsequent to the last
repair, replacement, restoration, alteration or renewal; (ii) loss by fire or
other casualty, and (iii) loss by condemnation. If Tenant shall abandon, vacate
or surrender the Leased Premises, or be dispossessed by process of law or
otherwise, any personal property and fixtures belonging to Tenant and left in
the Leased Premises shall be deemed abandoned and, at Landlord's option, title
shall pass to Landlord under this Lease as by a xxxx of sale. Landlord may,
however, if it so elects, remove all or any part of such personal property from
the Leased Premises and the costs incurred by Landlord in connection with such
removal, including storage costs and the cost of repairing any damage to the
Leased Premises and/or the Building caused by such removal shall be paid by
Tenant within ten (10) days after receipt of Landlord's statement. Upon the
expiration or earlier termination of this Lease, Tenant shall surrender to
Landlord all keys to the Leased Premises and shall inform Landlord of the
combination of any vaults, locks and safes left on the Leased Premises. The
obligations of Tenant under this Article 15 shall survive the expiration or
earlier termination of this Lease. Tenant shall indemnify Landlord against any
loss or liability resulting from delay by Tenant in so surrendering the
Premises, including, without limitation, any claims made by any succeeding
Tenant founded on such delay. Tenant shall give written notice to Landlord at
least thirty (30) days prior to vacating the Leased Premises for the express
purpose of arranging a meeting with Landlord for a joint inspection of the
Leased Premises. In the event of Tenants failure to give such notice or to
participate in such joint inspection, Landlord's inspection at or after Tenant's
vacation of the Leased Premises shall be conclusively deemed correct for
purposes of determining Tenant's liability for repairs and restoration under
this Lease.
16. INDEMNIFICATION AND EXCULPATION
16.1 Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord harmless for, from and against all claims, damages, losses, costs,
liens, encumbrances, liabilities and expenses, including reasonable attorneys',
accountants' and investigators' fees and court costs (collectively, the
"Claims"), however caused, arising in whole or in part from Tenant's use of all
or any part of the Leased Premises and/or the Building or the conduct of Tenants
business or from any activity, work or thing done, permitted or suffered by
Tenant or by any invitee, servant, agent, contractor, employee or subtenant of
Tenant in the Leased Premises and/or the Building, and shall further indemnify,
protect, defend and hold Landlord harmless for, from and against all Claims
arising in whole or in part from any breach or default in the performance of any
obligation on Tenant's part to be performed under the terms of this Lease or
arising in whole or in part from any act, neglect, fault or omission by Tenant
or by any invitee, servant, agent, employee or subtenant of Tenant anywhere in
the Leased Premises and/or the Building. In case any action or proceeding is
brought against Landlord to which this indemnification shall be applicable,
Tenant shall pay all Claims resulting therefrom and shall defend such action or
proceeding, if Landlord shall so request, at Tenant's sole cost and expense, by
counsel reasonably satisfactory to Landlord. The obligations of Tenant under
this Article 16.1 shall survive the expiration or earlier termination of this
Lease.
16.2 Exculpation. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property, injury and death to
persons and all claims of any other nature resulting from Tenants use of all or
any part of the Leased Premises and/or the Building, and Tenant hereby waives
all claims against Landlord arising out of Tenants use of all or any part of the
Leased Premises and/or the Building. Neither Landlord nor its agents or
employees shall be liable for any damaged property of Tenant entrusted to any
employee or agent of Landlord or for loss of or damage to any property of Tenant
by theft or otherwise. Landlord shall not be liable for any injury or damage to
persons or property resulting from any cause, including, but not limited to,
fire, explosion, falling plaster, steam, gas, electricity, sewage, odor, noise,
water or rain which may leak from any part of the Building or from the pipes,
appliances or plumbing works in tile Building, or from the roof of any structure
on the Property, or from any streets or subsurface on or adjacent to the
Building or the Property, or from any other place or resulting from dampness or
any other causes whatsoever, unless caused solely by the gross negligence or
willful misconduct of Landlord. Neither Landlord nor its employees or agents
shall be liable for any defects in the Leased Premises and/or the Building, nor
shall Landlord be liable for the negligence or misconduct, including, but not
limited to, criminal acts, by maintenance or other personnel or contractors
serving the Leased Premises and/or the Building, other tenants or third parties,
unless Landlord is grossly negligent or guilty of willful misconduct. All
property of Tenant kept or stored on the Property shall be so kept or stored at
the risk of Tenant only, and Tenant shall indemnify, defend and hold Landlord
harmless for, from and against any Claims arising out of damage to the same,
including subrogation claims by Tenant's insurance carriers, unless such damage
shall be caused by the willful act or gross neglect of Landlord and through no
fault of Tenant. None of the events or conditions set forth in this Article 16
shall be deemed a constructive or actual eviction or result in a termination of
this Lease, nor shall Tenant be entitled to any abatement or reduction of Annual
Basic Rent or Additional Rent by reason of such events or condition. Tenant
shall give prompt notice to Landlord with respect to any defects, fires or
accidents which Tenant observes in the Leased Premises and/or the Building.
17. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have, upon twenty four
(24) hours prior written notice (except in the event of an emergency), the right
to enter the Leased Premises, to inspect tile same, to submit the Leased
Premises to prospective purchasers or tenants, to post notices of
non-responsibility, and to alter, improve or repair the Leased Premises and any
portion of the Building of which the Leased Premises area part, without
abatement of Annual Basic Rent or Additional Rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, always providing that access into the
Leased Premises shall not be blocked thereby, and further providing that the
business of Tenant shall not be interfered with unreasonably. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the Leased
Premises or any loss occasioned thereby. For each of the aforesaid purposes,
Landlord shall at all times have and retain a key with which to unlock all the
doors in, upon or about the Leased Premises, excluding Tenant's vaults and
safes, and Landlord shall have the right to use any and all means which Landlord
may deem proper to open such doors in an emergency in order to obtain entry to
the Leased Premises, and any entry to the Leased Premises obtained by Landlord
by any such means or otherwise shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, the Leased
Premises or an eviction of Tenant from all or any portion of the Leased
Premises. Nothing in this Article 17 shall be construed as obligating Landlord
to perform any repairs, alterations or maintenance except as otherwise expressly
required elsewhere in this Lease.
18. SUBSTITUTE PREMISES
18.1 Relocation of Leased Premises. Landlord may, before or after the
Commencement Date, elect by notice to Tenant, to substitute for the Leased
Premises other office space in the Building (the "Substitute Premises")
designated by Landlord, provided that the Substitute Premises shall contain at
least the same useable area as the Leased Premises and have a configuration
substantially similar to the Leased Premises. Landlord's notice shall be
accompanied by a plan of the Substitute Premises. Tenant shall vacate and
surrender the Leased Premises and shall occupy the Substitute Premises promptly
(and, in any event, not later than fifteen (15) days) after Landlord has
substantially completed the work to be performed by Landlord in the Substitute
Premises pursuant to Article 18.2 below. Tenant shall pay the same rental rate
per square foot with respect to tile Substitute Premises as was payable with
respect to the Leased Premises. This Lease shall remain in full force and effect
and the Substitute Premises shall subsequently be deemed to be the Leased
Premise
18.2 Compensation to Tenant. In the event Landlord shall elect to relocate
Tenant to Substitute Premises, Tenant shall not be entitled to any compensation
for any inconvenience or interference with Tenant's business, nor any abatement
or reduction of Annual Basic Rent or Additional Rent, but Landlord shall, at
Landlord's expense perform the following: (a) furnish and install in the
Substitute Premises fixtures, equipment, improvements, appurtenances and
leasehold improvements at least equal in kind and quality to those contained or
to be contained in the Leased Premises at the time such notices of substitution
is given by Landlord; (b) provide personnel to perform, under Tenant's
direction, the moving of Tenant's personal property and trade fixtures from the
Leased Premises to the Substitute Premises;(c)promptly reimburse Tenant for
Tenant's actual and reasonable out-of-pocket costs incurred in connection with
the relocation of any telephone or other communications equipment from the
Leased Premises to the Substitute Premises; and (d) promptly reimburse Tenant
for any other actual and reasonable out-of-pocket costs incurred by Tenant in
connection with Tenants move from Leased Premises to the Substitute Premises,
provided such costs are approved by Landlord in advance which approval shall not
be unreasonably withheld. Tenant shall cooperate with Landlord so as to
facilitate the performance by Landlord of its obligations under this Article
13.2 and the prompt surrender by Tenant of the Leased Premises. Without limiting
the generality of the preceding sentence, Tenant shall provide Landlord promptly
any approvals or instructions and any plans or specifications or any other
information reasonably requested by Landlord, and Tenant shall perform promptly
in the Substitute Premises any work to be performed in the Substitute Premises
by Tenant to prepare the same for Tenant's occupancy.
19. ASSIGNMENT AND SUBLET'TING
19.1 Assignment and Subletting Prohibited. Tenant shall not transfer or
assign this Lease or any right or interest under this Lease, or sublet the
Leased Premises or any part of the Leased Premises, without first obtaining
Landlord's prior written consent, which consent Landlord shall not unreasonably
withhold. No transfer or assignment (whether voluntary or involuntary, by
operation of law or otherwise) or subletting shall be valid or effective without
such prior written consent. Should Tenant attempt to make or allow to be made
any such transfer, assignment or subletting, except as stated above, or should
any of Tenant's rights under this Lease be sold or otherwise transferred by or
under court order or legal process or otherwise, then, and in any of the
foregoing events Landlord may, at its option, treat such act as an Event of
Default by Tenant. Should Landlord consent to a transfer, assignment or
subletting, such consent shall not constitute a waiver of any of the
restrictions or prohibitions of this Article 19, and such restrictions or
prohibitions shall apply to each successive transfer, assignment or subletting
under this Article 19, if any.
19.2 Deemed Transfers. If Tenant is a corporation, an unincorporated
association, a limited liability company or a partnership, the transfer,
assignment or hypothecation of twenty-five percent (25%) or more of any stock or
interest in such corporation, association, limited liability company or
partnership shall be deemed a transfer within the meaning of and subject to the
provisions of this Article 19.
19.3 Landlord's Consent Required. If Tenant desires at any time to assign
this Lease or sublet the Leased Premises or any portion of the Leased Premises,
it shall first notify Landlord of its desire to do so and shall submit in
writing to Landlord: (a) the name, address, telephone number and social security
number or taxpayer identification number, if applicable, of the proposed
sub-tenant or assignee; (b) the nature of the proposed subtenant's or assignee's
business to be carried on in the Leased Premises;(c)the terms and the provisions
of the proposed sublease or assignment; and (d) such financial information as
Landlord may reasonably request concerning the proposed subtenant or assignee.
Tenant's failure to comply with the provisions of this Article 19.3 shall
entitle Landlord to withhold its consent to the proposed assignment or
subletting.
19.4 Recapture. If Tenant proposes to assign its interest in this Lease or
sublet all or any part of the Leased Premises, Landlord may, at its option, upon
written notice to Tenant within thirty (30) days after Landlord's receipt of the
information specified in Article 19.3 above, elect to recapture all or any
portion of the Leased Premises, and within sixty (60) days after notice of such
election has been given to Tenant, this Lease shall terminate as to the portion
of the Leased Premises recaptured. If all or a portion of the Leased Premises is
recaptured by Landlord pursuant to this Article 19.4, Tenant shall promptly
execute and deliver to Landlord a termination agreement setting forth the
termination date with respect to the Leased Premises or the recaptured portion
of the Leased Premises, and prorating the Annual Basic Rent, Additional Rent and
other charges payable under this Lease to such date. If Landlord doe not elect
to recapture as set forth above, Tenant may then after enter into a valid
assignment or sublease with respect to the Leased Premises, provided that
Landlord consents to such assignment or sublease pursuant to this Article 19,
and provided further, that (a) such assignment or sublease is executed within
ninety (90) days after Landlord has given its consent, (b) Tenant pays all
amounts then owed to Landlord under this Lease,(c)there is not in existence an
Event of Default as of the effective date of the assignment or sublease, (d)
there have been no material changes with respect to the financial condition of
the proposed subtenant or assignee or the business such party intends to conduct
in the Leased Premises, aid (e) a fully executed original of such assignment or
sublease providing for an express assumption by the assignee or subtenant of all
of the terms, covenants and conditions of this Lease is promptly delivered to
Landlord.
19.5 Adjustment to Rental. In the event Tenant assigns its interest in this
Lease or sublets the Leased Premises, the Annual Basic Rent set forth in Article
1.12 above, as adjusted, shall be increased effective as of the date of such
assignment or subletting to the rent and other consideration payable by any such
assignee or sublessee pursuant to such assignment or sublease. Notwithstanding
the foregoing, in no event shall the Annual Basic Rent after any such assignment
or subletting be less than the Annual Basic Rent specified in Article 1.12
above, as adjusted.
19.6 No Release from Liability. Landlord may collect Annual Basic Rent and
Additional Rent from the assignee, subtenant, occupant or other transferee, and
apply the amount so collected, first to the monthly installments of Annual Basic
Rent, then to any Additional Rent and other sums due and payable to Landlord,
and the balance, if any, to Landlord, but no such assignment, subletting,
occupancy, transfer or collection shall be deemed a waiver of Landlord's rights
under this Article 19, or the acceptance of the proposed assignee, subtenant,
occupant or transferee. Notwithstanding any assignment, sublease or other
transfer (with or without the consent of Landlord), Tenant shall remain
primarily liable under this Lease and neither Tenant nor any Guarantor shall be
released from performance of any of the terms, covenants and conditions of this
Lease.
19.7 Landlord's Expenses. If Landlord consents to an assignment, sublease
or other transfer by Tenant of all or any portion of Tenants interest under this
Lease, Tenant shall reimburse Landlord for its actual administrative expenses
and for legal, accounting and other out of pocket expenses incurred by Landlord,
all not to exceed an aggregate of Two Hundred Fifty and No/100 Dollars
($250.00).
19.8 Assumption Agreement. If Landlord consents to an assignment, sublease
or other transfer by Tenant of all or any portion of Tenants interest under this
Lease, Tenant shall execute and deliver to Landlord, and cause the transferee to
execute and deliver to Landlord, an instrument in the form and substance
acceptable to Landlord it) which (a) the transferee adopts this Lease and
assumes and agrees to perform, jointly and severally with Tenant, all of the
obligations of Tenant under this Lease, (b) Tenant acknowledges that it remains
primarily liable for the payment of Annual Basic Rent, Additional Rent and other
obligations under this Lease,(c)Tenant subordinates to Landlord's statutory
lien, contract lien and security interest, any liens, security interests or
other rights which Tenant may claim with respect to any property of transferee
and (d) the transferee agrees to use and occupy the Leased Premises solely for
the purpose specified in Article 20 and otherwise in strict accordance with this
Lease.
20. USE OF LEASED PREMISES
The Leased Premises are leased to Tenant solely for the Permitted Use set
forth in Article 1.9 above and for no other purpose whatsoever. If Tenant wishes
to change the Permitted Use set forth in Article 1.9 above, Tenant shall first
seek Landlord's prior written consent. Within thirty (30) days after receipt by
Landlord of Tenant's request for consent, Landlord shall provide Tenant written
notice that Landlord has (i) consented to the proposed change in the Permitted
Use, or (ii) decline to consent to the change, or (iii) elected to terminate
this Lease, in which event this Lease shall terminate ten (10) days following
receipt by Tenant of Landlord's Notice of Termination. Tenant shall not do or
permit anything to be done in or about tile Leased Premises nor bring or keep
anything in the Leased Premises which will in any way increase the existing rate
of or affect any casualty or other insurance on the Building, the Property, or
any of their respective contents, or cause a cancellation of any insurance
policy covering the Building, the Property, or any part of the Building or the
Property, or any of their respective contents. Tenant shall not do or permit
anything to be done in or about the Leased Premises and/or the Building which
will in any way obstruct or interfere with the rights of other tenants or
occupants of the Building, or injure or annoy them. Tenant shall not use or
allow the Leased Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Leased Premises and/or the Building. In addition, Tenant
shall not commit or suffer to be committed any waste in or upon the Leased
Premises and/or the Building. Tenant shall not use the Leased Premises and/or
the Building or permit anything to be done in or about the Leased Premises
and/or the Building which will in any way conflict with any matters of record,
or any law, statute, ordinance or governmental rule or regulation now in force
or which may subsequently be enacted or promulgated, and shall, at its sole cost
and expense, promptly comply with all matters of record and all laws, statutes,
ordinances and governmental rules, regulations and requirements now in force or
which may subsequently be in force and with the requirements of any Board of
Fire Underwriters or other similar body now or subsequently constituted,
foreseen or unforeseen, ordinary as well as extraordinary, relating to or
affecting the condition, use or occupancy of the Property, excluding structural
changes not relating to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction or the admission by Tenant in
any action against Tenant, irrespective of whether Landlord is a party, that
Tenant has violated any matters of record, or any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of that fact
between Landlord and Tenant. In addition, Tenant shall not place a load upon any
floor of the Leased Premises which exceeds the load per square foot which the
floor was designed to carry, nor shall Tenant install business machines or other
mechanical equipment in the Leased Premises which cause noise or vibration that
may be transmitted to the structure of the Building.
21. SUBORDINATION AND AT'TORNMENT
21.1 Subordination. This Lease and all rights of Tenant under this Lease
shall be, at the option of Landlord, subordinate to (a) all matters of record,
(b) all ground leases, overriding leases and underlying leases (collectively
referred to as the "leases") of the Building or the Property now or subsequently
existing,(c)all mortgages and deeds of trust (collectively referred to as the
"mortgages") which may now or subsequently encumber or affect the Building or
the Property, and (d) all renewals, modifications, amendments, replacements and
extensions of leases and mortgages and to spreaders and consolidations of the
mortgages, irrespective or whether leases or mortgages shall also cover other
lands, buildings or leases. The provisions of this Article 21.1 shall be
self-operative and no further instruments of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any lease or the
holder of any mortgage or any of their respective assigns or successors in
interest may reasonably request to evidence such subordination. Any lease to
which this Lease is subject and subordinate is called a "Superior Lease" and the
lessor under a Superior Lease or its assigns or successors in interest is called
a "Superior Lessor". Any mortgage to which this Lease is subject and subordinate
is called a "Superior Mortgage" and tile holder of a Superior Mortgage is called
a "Superior Mortgagee". If Landlord, a Superior Lessor or a Superior Mortgagee
requires that such instruments be executed by Tenant, Tenant's failure to do so
within ten (10) days after request for such instrument shall be deemed an Event
of Default under this Lease. Tenant waives any right to terminate this Lease
because of any foreclosure proceedings. Tenant hereby irrevocably constitutes
and appoints Landlord (and any successor Landlord) as Tenants attorney-in-fact
to execute and deliver to any Superior Lessor or Superior Mortgagee any
documents required to be executed by Tenant for and on behalf of Tenant if
Tenant shall have failed to do so within ten (10) days after the request for
execution and delivery.
21.2 Attornment If any Superior Lessor or Superior Mortgagee (or any
purchaser at a foreclosure sale) succeeds to the rights of Landlord under this
Lease, whether through possession or foreclosure action, or the delivery of anew
lease or deed (a "Successor Landlord"), Tenant shall attorn to and recognize
such Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence such attornment. Notwithstanding such subordination,
Tenant's right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all of the provisions of this Rental Agreement, unless this Rental
Agreement is otherwise terminated pursuant to its terms.
22. ESTOPPEL CERTIFICATE
Tenant shall, from time to time, within ten (10) days after written request
by Landlord, execute, acknowledge and deliver to Landlord a statement in writing
certifying: (a) that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect); (b) the dates to which
Annual Basic Rent, Additional Rent and other charges are paid in advance, if
any;(c)that there are not, to Tenant's knowledge, any uncured defaults on the
part of Landlord under this Lease or specifying such defaults if any are
claimed; (d) that Tenant has paid Landlord the Security Deposit; (e) the
Commencement Date and the scheduled expiration date of the Lease Term; (f) the
rights (if any) of Tenant to extend or renew this Lease or to expand the Leased
Premises; and (g) the amount of Annual Basic Rent, Additional Rent and other
charges currently payable under this Lease. In addition, such statement shall
provide such other information and facts Landlord may reasonably require. Any
such statement may be relied upon by any prospective or existing purchaser,
ground lessee or mortgagee of all or any portion of the Property, as well as by
any other assignee of Landlord's interest in this Lease. Tenant's failure to
deliver such statement within such time shall be conclusive upon Tenant (I) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord; (ii) that there are no uncured defaults in Landlord's
performance under this Lease; (iii) that Tenant has paid to Landlord the
Security Deposit; (iv) that not more than one month's installment of Annual
Basic Rent or Additional Rent has been paid in advance; (v) that the
Commencement Date and the scheduled expiration date of the Lease Term are as
stated in the statement, (vi) that Tenant has no rights to extend or renew this
Lease or to expand the Leased Premises; (vii) that the Annual Basic Rent,
Additional Rent and other charges are as set forth in the certificate; and
(viii) that the other information and facts set forth in the certificate are
true and correct.
23. SIGNS
Landlord shall retain absolute control over the exterior appearance of the
Building and the exterior appearance of the Leased Premises as viewed from the
public halls. Tenant shall not install, or permit to be installed, any drapes.
shutters, signs, lettering, advertising, or any items that will in any way alter
the exterior appearance of tile Building or the exterior appearance of the
Leased Premises as viewed from the public halls or the exterior of the Building.
Notwithstanding the foregoing, Landlord shall install, at Tenant's sole cost and
expense, letters or numerals at or near the entryway to the Leased Premises
provided Tenant obtains Landlord's prior written consent as to size, color,
design and location. All such letters or numerals shall be in accordance with
the criteria established by Landlord for the Building. In addition, Tenant's
name and suite number shall be identified on the Building directory.
24. PARKING
Tenant is allocated the number of parking spaces designated in Article 1.16
above entitling Tenant to park in parking spaces located in the Parking Facility
as designated by Landlord from time to time for use by Tenant, its employees and
licensees, and for which Tenant shall pay the monthly charges set forth in
Article 1.17 above. The parking spaces shall be available to Tenant, its
employees and licensees on a "first come, first serve" basis. Landlord reserves
the right to increase the parking charges set forth in Article 1.17 in such
reasonable amounts as Landlord deems necessary based upon increased costs of
operating and maintaining the Parking Facility. Holders of parking passes shall
not be entitled to park in visitor parking spaces so designated by Landlord, or
in any other parking spaces other than those designated by Landlord for use by
holders of parking passes.
25. LIENS
Tenant shall keep the Leased Premises free and clear of all mechanic's and
materialmen's liens. If, because of any act or omission (or alleged act or
omission) of Tenant, any mechanics', materialmen's or other lien, charge or
order for the payment of money shall be filed or recorded against the Leased
Premises, the Property, or the Building, or against any other property of
Landlord (irrespective of whether such lien, charge or order is valid or
enforceable as such), Tenant shall, at its own expense, cause the same to be
canceled or discharged of record within thirty (30) days after Tenant shall have
received written notice of the filing of such lien, or Tenant may. within such
thirty (30) day period, furnish to Landlord, a bond pursuant to A.R.S.
ss.33-1004 (or any successor statute) and satisfactory to Landlord and all
Superior Lessors and Superior Mortgagees against the lien, charge or order, in
which case Tenant shall have the right to contest, in good faith, the validity
or amount of such lien.
26. HOLDING OVER
It is agreed that the date of termination of this Lease and the right of
Landlord to recover immediate possession of the Leased Premises thereupon is an
important and material matter affecting the parties hereto and the rights of
third parties, all of which have been specifically considered by Landlord and
Tenant. In the event of any continued occupancy or holding over of the Leased
Premises without the express written consent of Landlord beyond the expiration
or earlier termination of this Lease or of Tenants right to occupy the Leased
Premises, whether in whole or in part, or by leaving property on the Leased
Premises or otherwise, this Lease shall be deemed a monthly tenancy and Tenant
shall pay 150% times the Annual Basic Rent then in effect, in advance at the
beginning of the hold-over month(s), plus any Additional Rent or other charges
or payments contemplated in this Lease.
27. ATTORNEYS' FEES
Tenant shall pay to Landlord all amounts for costs (including reasonable
attorneys' fees) incurred by Landlord in connection with any breach or default
by Tenant under this Lease or incurred in order to enforce or interpret the
terms or provisions of this Lease. Such amounts shall be payable within ten (10)
days after receipt by Tenant of Landlord's statement. In addition, if any action
shall be instituted by either of the parties hereto for the enforcement or
interpretation of any of their respective rights or remedies in or under this
Lease, the prevailing party shall be entitled to recover from the losing party
all costs incurred by the prevailing party in such action and any appeal
therefrom, including reasonable attorneys' fees to be fixed by the court.
28. RESERVED RIGHTS OF LANDLORD
Landlord reserves the following rights, exercisable without liability to
Tenant for damage or injury to property, persons or business and without
effecting an eviction, constructive or actual, or disturbance of Tenant's use or
possession or giving rise to any claim: (a) to name the Building and the
Property and to change the name or street address of the Building and the
Property; (b) to install and maintain all signs on the exterior and interior of
the Building and the Property;(c)to designate all sources furnishing sign
painting and lettering; (d) during the last ninety (90) days of the Lease Term,
if Tenant has vacated the Leased Premises, to decorate, remodel, repair, alter
or otherwise prepare the Leased Premises for re-occupancy, without affecting
Tenants obligation to pay Annual Basic Rent; (e) on reasonable prior notice to
Tenant, to exhibit the Leased Premises to any prospective purchaser, mortgagee,
or assignee of any mortgage on the Building or the Property and to others having
interest in the Leased Premises, Building and/or the Property, at any time
during the Lease Term, and to prospective tenants during the last six (6) months
of the Lease Term; (f) to take any and all measures, including entering the
Leased Premises for the purposes of making inspections, repairs, alterations,
additions and improvements to the Leased Premises or to the Building (including,
for the purposes of checking, calibrating, adjusting and balancing controls and
other parts of the Building systems) as maybe necessary or desirable for the
operation, improvement, safety, protection or preservation of the Leased
Premises or the Building, or in order to comply with all laws, orders and
requirements of governmental or other authorities, or as may otherwise be
permitted or required by this Lease; provided, however, that Landlord shall
endeavor (except in an emergency) to minimize interference with Tenants business
in the Leased Premises; (g) to relocate various facilities within the Building
and on the Property if Landlord shall determine such relocation to be in the
best interest of the development of the Building and/or the Property, provided,
that such relocation shall not materially restrict access to the Leased
Premises; (h) to change the nature, extent, arrangement, use and location of the
Building Common Areas; (i) to make alterations or additions to and to build
additional stories on the Building and to build additional buildings or
improvements on the Property; and (j) to install vending machines of all kinds
in the Leased Premises and the Building, and to receive all of the revenue
derived therefrom, provided, however, that no vending machines shall be
installed by Landlord in the Leased Premises unless Tenant so requests. Landlord
further reserves the exclusive right to the roof of the Building. No easement
for light, air, or view is included in the leasing of the Leased Premises to
Tenant. Accordingly, any diminution or shutting off of light, air or view by any
structure which may be erected on the Property or other properties in the
vicinity of the Building shall in no way affect this Lease or impose any
liability upon Landlord.
29. EMINENT DOMAIN
29.1 Taking. If the whole of the Building is lawfully and permanently taken
by condemnation or any other manner for any public or quasi-public purpose, or
by deed in lieu of condemnation, this Lease shall terminate as of the date of
vesting of title in such condemning authority and the Annual Basic Rent and
Additional Rent shall be pro rated to such date. If any part of the Building or
Property is so taken, or if the whole of the Building is taken, but not
permanently, then this Lease shall be unaffected thereby, except that (a)
Landlord may terminate this Lease by notice to Tenant within sixty (60) days
after the date of vesting of title in the condemning authority, and (b) if
twenty percent (20%) or more of the Leased Premises shall be permanently taken
and the remaining portion of the Leased Premises shall not be reasonably
sufficient for Tenant to continue operation of its business, Tenant may
terminate this Lease by notice to Landlord within sixty (60) days after the date
of vesting of title in such condemning authority. This Lease shall terminate on
the thirtieth (30th) day after receipt by Landlord of such notice, by which date
Tenant shall vacate and surrender the Leased Premises to Landlord. The Annual
Basic Rent and Additional Rent shall be pro rated to the earlier of the
termination of this Lease or such date as Tenant is required to vacate the
Leased Premises by reason of the taking. If this Lease is not terminated as a
result of a partial taking of the Leased Premises, the Annual Basic Rent and
Additional Rent shall be equitably adjusted according to the rentable area of
the Leased Premises and Building remaining.
29.2 Award. In the event of a taking of all or any part of the Building or
the Property, all of the proceeds or the award, judgment, settlement or damages
payable by the condemning authority shall be and remain the sole and exclusive
property of Landlord, and Tenant hereby assigns all of its right, title and
interest in and to any such award, judgment, settlement or damages to Landlord.
Tenant shall, however, have the right, to the extent that the same shall not
reduce or prejudice amounts available to Landlord, to claim from the condemning
authority, but not from Landlord, such compensation as may be recoverable by
Tenant in its own right for relocation benefits, moving expenses, and damage to
Tenants personal property and trade fixtures.
30. NOTICES
Any notice or communication given under the terms of this Lease shall be in
writing and shall be delivered in person, sent by any public or private express
delivery service or deposited with the United States Postal Service or a
successor agency, certified or registered mail, return receipt requested,
postage pre-paid, addressed as set forth in the Basic Provisions, or at such
other address as a party may from time to time designate by notice under this
Article 30. Notice given by personal delivery or by public or private express
delivery service shall be effective upon delivery, notice sent by mail shall be
deemed to have occurred upon deposit of the notice in the United States mail.
The inability to deliver a notice because of a changed address of which no
notice was given or a rejection or other refusal to accept any notice shall be
deemed to be the receipt of the notice as of the date of such inability to
deliver or rejection or refusal to accept. Any notice to be given by Landlord
may be given by the legal counsel and/or the authorized agent of Landlord.
31. RULES AND REGULATIONS
Tenant shall abide by all rules and regulations (the "Rules and
Regulations") of the Building imposed by Landlord, as attached hereto as Exhibit
"E" or as may subsequently be issued by Landlord. The Rules and Regulations may
be changed from time to time upon ten (10) days notice to Tenant. Breach of the
Rules and Regulations, by Tenant shall constitute an Event of Default if such
breach is not fully cured within ten (10) days alter written notice to Tenant by
Landlord; provided, however, no notice or opportunity to cure shall be required
in connection with a breach of rule number 39. Landlord shall not be responsible
to Tenant for nonperformance by any other tenant, occupant or invitee of the
Building of any Rules or Regulations.
32. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of Annual Base Rent and Additional Rent (jointly called
"Rent" in this Article 32), shall be deemed to be other than on account of the
earliest stipulated Rent due and not yet paid, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as Rent
be deemed an accord and satisfaction. Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy in this Lease. No receipt of money by Landlord from
Tenant after the termination of this Lease, after the service of any notice
relating to the termination of this Lease, after the commencement of any suit,
or after final judgment for possession of the Leased Premises, shall reinstate,
continue or extend the Lease Term or affect any such notice, demand, suit or
judgment.
33. EARLY MOVE IN
Landlord shall give occupancy to Tenant on December 8, 1997 to start moving
furniture, equipment, etc. into the premises. All terms and conditions of this
lease shall apply during the early move-in period.
34. MISCELLANEOUS
34.1 Entire Agreement, Amendments. This Lease and any Exhibits attached to
and forming a part of this Lease set forth all of the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Leased Premises and there are no covenants, promises, agreements,
representations, warranties, conditions or understandings either oral or written
between them other than as contained in this Lease. Except as otherwise provided
in this Lease, no subsequent alteration, amendment, change or addition to this
Lease shall be binding unless it is in writing and signed by both Landlord and
Tenant..
34.2 Time of the Essence. Time is of the essence of each and every term,
covenant and condition of this Lease.
34.3 Binding Effect. The covenants and conditions of this Lease shall,
subject to the restrictions on assignment and subletting, apply to and bind the
heirs, executors, administrators, personal representatives, successors and
assigns of the parties to this Lease.
34.4 Recordation Neither this Lease nor any memorandum of this Lease shall
be recorded by Tenant.
34.5 Governing law. This Lease and all the terms and conditions of this
Lease shall be governed by and construed in accordance with the laws of the
State of Arizona.
34.6 No Partnership. Nothing contained in this Lease shall be deemed or
construed as creating an agency, partnership or joint venture relationship
between Landlord and Tenant or between Landlord and any other party, or cause
Landlord to be responsible in any way for the debts or obligations of Tenant or
any other party.
34.7 Authority. If Tenant executes this Lease as a partnership, each
individual executing this Lease on behalf of the partnership represents and
warrants that he or she is a general partner of the partnership and that this
Lease is binding upon file partnership in accordance with its terms. If Tenant
executes this Lease as a corporation, each of the persons executing this Lease
on behalf of Tenant covenants and warrants that Tenant is a duly authorized and
existing corporation, that Tenant has and is qualified to transact business in
Arizona, that the corporation has full right, authority and power to enter into
this Lease and to perform its obligations under this Lease, that each person
signing this Lease on behalf of the corporation is authorized to do so and that
this Lease is binding upon the corporation in accordance with its terms.
34.8 No Waiver. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election contained in this Lease, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission.
34.9 Severability. If any clause or provision of this Lease is or becomes
illegal or unenforceable because of any present or future law or regulation of
any governmental body or entity effective during the Lease Term, the intention
of the parties is that the remaining provisions of this Lease shall not be
affected by such determination.
34.10 Exhibits. If any provision contained in an Exhibit or Addenda to this
Lease is inconsistent with any other provision of this Lease, the provision
contained in this Lease shall supersede the provisions contained in such Exhibit
or Addenda, unless otherwise provided.
34.11 Fair Meaning. The language of this Lease shall be construed to its
normal and usual meaning and not strictly for or against either Landlord or
Tenant. Landlord and Tenant acknowledge and agree that each party has reviewed
and revised this Lease and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Lease, or any Exhibits, Riders or amendments to this
Lease.
34.12 No Merger. The voluntary or other surrender of this Lease by Tenant
or a mutual cancellation of this Lease shall not work as a merger and shall, at
Landlord's option, either terminate any or all existing subleases or
subtenancies, or operate as an assignment to Landlord of any or all of such
subleases or subtenancies.
34.13 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes for labor or materials, governmental restrictions,
regulations or controls, judicial orders, enemy or hostile government actions,
civil commotion, fire or other casualty and other causes beyond the reasonable
control of Landlord shall excuse the Landlord's performance under this Lease for
the period of any such prevention, delay, or stoppage.
34.14 Transfer of Landlord's Interest. The term "Landlord" as used in this
Lease, insofar as the covenants or agreements on the part of the Landlord are
concerned, shall be limited to mean and include only the owner or owners of
Landlord's interest in this Lease at the time in question. Upon any transfer or
transfers of such interest, the Landlord herein named in this Lease (and in the
case of any subsequent transfer, the (lien transferor) shall be relieved of all
liability for the performance of any covenants or agreements on the part of the
Landlord contained in this Lease.
34.15 Limitation on Landlord's Liability. If Landlord becomes obligated to
pay Tenant any judgment arising out of any failure by the Landlord to perform or
observe any of the terms, covenants, conditions or provisions to be performed or
observed by Landlord under this Lease, Tenant shall be limited in the
satisfaction of such judgment solely to Landlord's interest in the Building and
the Property or any proceeds arising from the sale of the Building or the
Property, and no other property or assets of Landlord or the individual
partners, directors, officers or shareholders of Landlord or its constituent
partners shall be subject to levy, execution or other enforcement procedure
whatsoever for the satisfaction of any such money judgment.
34.16 Brokerage Fees. Tenant warrants and represents that it has not dealt
with any realtor, broker or agent in connection with this Lease except the
Broker identified in Article 1.19 above. Tenant shall indemnify, defend and hold
Landlord harmless for, from and against any cost, expense or liability
(including the cost of suit and reasonable attorneys' fees) for any
compensation, commission or charges claimed by any other realtor, broker or
agent in connection with this Lease or by reason of any act of Tenant.
34.17 Guaranty. Concurrently with the execution of this Lease, Tenant shall
cause the Guarantors to execute, have acknowledged and deliver to Landlord, the
Guaranty of Lease attached hereto as Exhibit "F", whereby Guarantors
unconditionally guaranty to Landlord each and every obligation of Tenant under
this Lease.
34.18 Continuing Obligations. All obligations of Tenant under this Lease
not fully performed as of the expiration or earlier termination of this Lease
shall survive the expiration or earlier termination of this Lease, including,
without limitation, all payment obligations with respect to Annual Basic Rent,
Additional Rent and all obligations concerning the condition of the Leased
Premises.
34.19 Confidentiality. Tenant shall keep the term, rental rate and all
other provisions of this lease confidential and shall prevent the publication or
other disclosure thereof by Tenant, its shareholders, officers, directors,
employees, agents or representatives unless Tenant receives the prior written
consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion. A breach by Tenant of the provisions of this paragraph
shall constitute an Event of Default under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
and year first above written.
LANDLORD TENANT
XXXXXXX ADVISORY L.L.C. Dimensional Vision Group, Ltd.
an Arizona Limited Liability Company A Delaware Corporation
By Xxxxxxx Corporation,
An Arizona Corporation
Its: General Manager
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- -------------------------------
Its President Its: CFO
RIDER "1"
Rider I to Office Lease dated October 27,1997, between XXXXXXX ADVISORY
L.L.C., an Arizona Limited Liability Company ("Landlord") and Dimensional
Visions Group, Ltd. a Delaware Corporation ("Tenant").
1. Hazardous Materials Laws. "Hazardous Materials Laws" means any and all
federal, state or local laws, ordinances, rules, decrees, orders, regulations or
court decisions (including the so-called "common-law") relating to hazardous
substances, hazardous materials, hazardous waste, toxic substances,
environmental conditions on, under or about the Property, or soil and ground
water conditions, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42
U.S.C.ss.9601, et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C.ss.6901, et seq., the Hazardous Materials Transportation Act, 49
U.S.C.ss.1801, et seq., any amendments to the foregoing, and any similar
federal, state or local laws, ordinances, rules, decrees, orders or regulations.
2. Hazardous Materials. "Hazardous Materials" means any chemical, compound,
material, substance or other matter that: (I) is a flammable explosive,
asbestos, radioactive material, nuclear medicine material, drug, vaccine,
bacteria, virus, hazardous waste, toxic substance, petroleum product, or related
injurious or potentially injurious material, whether injurious or potentially
injurious by itself or in combination with other materials; (ii) is controlled,
designated in or governed by any Hazardous Materials Law; (iii) gives rise to
any reporting, notice or publication requirements under any Hazardous Materials
Law; or (iv) gives rise to any liability, responsibility or duty on the part of
Tenant or Landlord with respect to any third person under any Hazardous
Materials Law.
3. Use. Tenant shall not allow any Hazardous Material to be used, generated,
released, stored or disposed of on, under or about, or transported from, the
Leased Premises, the Building or the Property, unless: (I) such use is
specifically disclosed to and approved by Landlord in writing prior to such use;
and (ii) such use is conducted in compliance with the provisions of this Rider
1. Landlord may approve such use subject to reasonable conditions to protect the
Leased Premises, the Building or the Property, and Landlord's interests.
Landlord may withhold approval if Landlord determines that such proposed use
involves a material risk of a release or discharge of Hazardous Materials or a
violation of any Hazardous Materials Laws or that Tenant has not provided
reasonable assurances of its ability to remedy such a violation and fulfill its
obligations under this Rider 1.
4. Compliance With Laws. Tenant shall strictly comply with, and shall maintain
the Leased Premises in compliance with, all Hazardous Materials Laws. Tenant
shall obtain and maintain in full force and effect all permits. licenses and
other governmental approvals required for Tenant's operations on the Leased
Premises under any Hazardous Materials Laws and shall comply with all terms and
conditions of any Hazardous Materials laws. At Landlord's request, Tenant shall
deliver copies of; or allow Landlord to inspect, all such permits, licenses and
approvals. Tenant shall perform any monitoring, investigation, clean-up, removal
and other remedial work (collectively, "Remedial Work") required as a result of
any release or discharge of Hazardous Materials affecting the Leased Premises or
the Building, or any violation of hazardous Materials Laws by Tenant or any
assignee or sublessee of Tenant or their respective agents, contractors,
employees, licensees, or invitees. Landlord shall have the right to intervene in
any governmental action or proceeding involving any Remedial Work, and to
approve performance of the work, in order to protect Landlord's interests.
5. Compliance With Insurance Requirements. Tenant shall comply with the
requirements of Landlord's and Tenant's respective insurers regarding Hazardous
Materials and with such insurers' recommendations based upon prudent industry
practices regarding management of Hazardous Materials.
6. Notice: Reporting. Tenant shall notify Landlord, in writing, within two (2)
days after any of the following: (a) a release or discharge of any Hazardous
Material, whether or not the release or discharge is in quantities that would
otherwise be reportable to a public agency; (b) Tenant's receipt of any order of
a governmental agency requiring any Remedial Work pursuant to any Hazardous
Materials Laws; (c) Tenant's receipt of any warning, notice of inspection,
notice of violation or alleged violation, or Tenant's receipt of notice or
knowledge of any proceeding, investigation of enforcement action, pursuant to
any Hazardous Materials Laws; or (d) Tenant's receipt of notice or knowledge of
any claims made or threatened by any third party against Tenant or the Leased
Premises, the Building or the Property, relating to any loss or injury resulting
from Hazardous Materials. Tenant shall deliver to Landlord copies of all test
results, reports and business or management plans required to be filed with any
governmental agency pursuant to any Hazardous Materials Laws.
7 Termination: Expiration. Upon the termination or expiration of this Lease,
Tenant shall remove any equipment, improvements or storage facilities utilized
in connection with any Hazardous Materials and shall, clean up, detoxify, repair
and otherwise restore the Leased Premises to a condition free of Hazardous
Materials.
8. Indemnity. Tenant shall protect, indemnify, defend and hold Landlord harmless
for, from and against any and all claims, costs, expenses, suits, judgments,
actions, investigations, proceedings and liabilities arising out of or in
connection with any breach of any provisions of this Rider I or directly or
indirectly arising out of the use, generation, storage, release, disposal or
transportation of Hazardous Materials by Tenant or any sublessee or assignee of
Tenant, or their respective agents, contractors, employees, licensees, or
invitees, on, under or about the Leased Premises, the Building or the Property
during the Lease Term or Tenant's occupancy of the Leased Premises, including,
but not limited to, all foreseeable and unforeseeable consequential damages and
the cost of any Remedial Work. Neither the consent by Landlord to the use,
generation, storage, release, disposal or transportation of Hazardous Materials
nor the strict compliance with all Hazardous Material Laws shall excuse Tenant
from Tenant's indemnification obligations pursuant to this Rider 1. The
foregoing indemnity shall be in addition to and not a limitation of the
indemnification provisions of Rider 1 of the Lease. Tenant's obligations
pursuant to this Rider 1 shall survive the termination or expiration of this
Lease.
9 Assignment: Subletting. If Landlord's consent is required for an assignment of
this Lease or a subletting of the Leased Premises, Landlord shall have the right
to refuse such consent if the possibility of a release of Hazardous Materials is
materially increased as a result of the assignment or sublease or if Landlord
does not receive reasonable assurances that the new tenant has the experience
and the financial ability to remedy a violation of the Hazardous Materials Laws
and fulfill its obligations under this Rider 1.
10. Entry and Inspection: Cure. Landlord and its agents, employees and
contractors, shall have the right, but not the obligation, to enter the Leased
Premises at all reasonable times to inspect the Leased Premises and Tenant's
compliance with the terms and conditions of this Rider 1, or to conduct
investigations and tests. No prior notice to Tenant shall be required in the
event of an emergency, or if Landlord has reasonable cause to believe that
violations of this Rider 1 have occurred, or if Tenant consents at the time of
entry. In all other cases, Landlord shall give at least twenty-four (24) hours
prior notice to Tenant. Landlord shall have the right, but not the obligation,
to remedy any violation by Tenant of the provisions of this Rider I or to
perform any Remedial Work which is necessary or appropriate as a result of any
governmental order, investigation or proceeding. Tenant shall pay, upon demand,
as Additional Rent, all costs incurred by Landlord in remedying such violations
or performing all Remedial Work, plus interest on such costs incurred at the
Default Rate from the date of demand until the date received by Landlord.
11. Event of Default. The release or discharge of any Hazardous Material or the
violation of any Hazardous Materials Law shall constitute an Event of Default by
Tenant under this Lease. In addition to and not in lieu of the remedies
available under this Lease as a result of such Event of Default, Landlord shall
have the right, without terminating this Lease, to require Tenant to suspend its
operations and activities on the Leased Premises until Landlord is satisfied
that appropriate Remedial Work has been or is being adequately performed and
Landlord's election of this remedy shall not constitute a waive of Landlord's
right to subsequently pursue the other remedies set forth in this Lease.
LANDLORD TENANT
XXXXXXX ADVISORY L.L.C. Dimensional Vision Group, Ltd.
an Arizona Limited Liability Company A Delaware Corporation
By Xxxxxxx Corporation,
An Arizona Corporation
Its: General Manager
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- -------------------------------
Its President Its: CFO
EXHIBIT "E"
RULES AND REGULATIONS
1. Unless otherwise specifically defined in this Exhibit, all capitalized
terms in these Rules and Regulations shall have the meaning set forth in the
Lease to which these Rules and Regulations are attached.
2. The sidewalks, driveways, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls of the Building shall not be
obstructed or encumbered or used for any purpose other than ingress and egress
to and from the premises leased to any tenant or occupant. The halls, passages,
exits, entrances, elevators, stairways, balconies and roof are not for the use
of the general public, and the Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence in the judgment
of Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants.
3. No awnings or other projection shall be attached to the outside walls or
windows of the Building. No curtains, blinds, shades, or screens shall be
attached to or hung in, or used in connection with, any window or door of the
premises leased to any tenant or occupant, without the prior written consent of
Landlord. All electrical fixtures hung in any premises leased to any tenant or
occupant must be of a type, quality, design, color, size and general appearance
approved by Landlord.
4 No tenant shall place objects against glass partitions, doors or windows
which would be in sight from the Building corridors or from the exterior of the
Building and such tenant will promptly remove any such objects when requested to
do so by Landlord.
5. The windows and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed, nor shall any bottles, parcels, or other articles be placed on
any window xxxxx.
6. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building nor placed in the halls, corridors,
walkways, landscaped areas, vestibules or other public parts of the Building.
7. The restrooms, water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were constructed,
and no sweepings, rubbish, rags or other substances shall be thrown in the
restrooms, water and wash closets. The reasonable costs incurred by Landlord (a)
for extra cleaning in any restroom, water or wash closet required because of any
misuse of such restroom, water or wash closet, and/or (b) to repair any damage
resulting from any misuse of the fixtures will be borne by the tenant who, or
whose employees, agents, visitors or licensees, caused the same. No tenant shall
bring or keep, or permit to be brought or kept, any inflammable, combustible,
explosive or hazardous fluid, material, chemical or substance in or about the
premises leased to such tenant or the Property.
8. No tenant or occupant shall xxxx, paint, drill into, or ii any way
deface any part of the Building or the premises leased to such tenant or
occupant. No boring, cutting or strings of wires shall be permitted, except with
the prior consent of Landlord, and as Landlord may direct. No tenant or occupant
shall install any resilient tile or similar floor covering in the premises
leased to such tenant or occupant except in a manner approved by Landlord.
9. Any carpeting cemented down by a tenant shall be installed with a
releasable adhesive. In the event of a violation of this paragraph by a tenant,
Landlord may charge the expense incurred to remove the carpeting to such tenant.
10. No bicycles, vehicles or animals of any kind (except seeing eye dogs)
shall be brought into or kept in or about the premises leased to any tenant. No
cooking shall be done or permitted in the Building by any tenant without the
written approval of Landlord. No tenant shall cause or permit any unusual or
objectionable odors to emanate from the premises leased to such tenant.
11. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction.
12. No tenant and no employee, visitor, agent, or licensee of any Tenant
shall make, or permit to be made, any unseemly or disturbing noises or
vibrations or disturb or interfere with other tenants or occupants of the
Building, or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set broadcasting equipment or other audio device,
unmusical noise, whistling, singing, yelling or screaming. or in any other way.
Nothing shall be thrown out of any doors. No tenant and no employee, visitor,
agent, or licensee of any Tenant shall conduct itself in any manner that is
inconsistent with the character of the Building as a first quality building or
that will impair the comfort, convenience or safety of other tenants in the
Building.
13. No additional locks or bolts of any kind shall be placed upon any of
the doors, nor shall any changes be made in belts or the mechanism of such
locks. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant.
14. All removals from the Building, or the carrying in or out of the
Building or from the premised leased to any tenant, of any safes, freight,
furniture or bulky matter of any description must take place at such time and in
such manner as Landlord or its agents may determine, from time to time. Landlord
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of the Rules and
Regulations or the provisions of such tenant's lease.
15. Landlord shall have the right to prohibit any advertising by any tenant
or occupant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon notice from
Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Each tenant, before closing and leaving the premises leased to such
tenant at any time, shall see that all entrance doors are locked and all
electrical equipment and lighting fixtures are turned off. Corridor doors, when
not in use, shall be kept closed.
17. Each tenant shall, at its expense, provide artificial light in the
premises leased to such tenant for Landlord's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
18. No premises shall be used, or permitted to be used for lodging or
sleeping, or for any immoral or illegal purposes or in any manner that, in
Landlord's reasonable judgment, threatens the safety of the Building or the
tenants of the Building and their employees and invitees.
19. The requirements of tenants will be attended to only upon application
at the office of Landlord. Building employees shall not be required to perform,
and shall not be requested by any tenant or occupant to perform, and work
outside of their regular duties, unless under specific instructions from the
office of Landlord.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
21. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and such
other safeguards as Landlord may require.
22. If the premises leased to any tenant become infested with vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators for the extermination of the vermin as shall be
approved in writing by Landlord.
23. No premises shall be used, or permitted to be used, at any time,
without the prior written approval of Landlord, as a store for the sale or
display of goods, wares or merchandise of any kind, or as a restaurant, shop,
booth, bootblack or other stand, or for the conduct of any business or
occupation which predominantly involves direct patronage of the general public
in the premises leased to such tenant, or for manufacturing or for other similar
purposes.
24. No tenant shall clean any window of the Building from the outside
25. No tenant shall move, or permit to be moved, into or out of the
Building or the premises leased to such tenant, any heavy or bulky matter,
without the specific approval of Landlord. If any such matter requires special
handling, only a qualified person shall be employed to perform such special
handling. No tenant shall place or permit to be placed, on any pad of the floor
or floors of the premises leased to such tenant, a load exceeding the floor load
per square foot which such floor was designed to carry and which is allowed by
law. Landlord reserves the right to prescribe the weight and position of safes
and other heavy objects, which must be placed so as to distribute the weight.
26. With respect to work being performed by a tenant in its premises with
the approval of Landlord, the tenant shall refer all contractors, contractors'
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and ally other physical portion of the
Building.
27. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the premises of tenants or public rooms
whether or not such loss occurs when the Building or the premises are locked
against entry.
28. Landlord may permit entrance to the premises of tenants by use of pass
keys controlled by Landlord employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
29. Each tenant and all of tenant's representatives, shall observe and
comply with the directional and parking signs on the property surrounding the
Building, and Landlord shall not be responsible for any damage to any vehicle
towed because of noncompliance with parking regulations.
30. No tenant shall install any radio, telephone, television, microwave or
satellite antenna, loudspeaker music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
31. Each tenant shall store all trash and garbage within its premises. No
material shall be placed in the trash boxes or receptacles in the Building
unless such material may be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage and will not result in a violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord shall designate.
32. No tenant shall employ any persons other than the janitor of Landlord
for the purpose of cleaning its premises without the prior written consent of
Landlord.
33. Each tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical or heating apparatus so that same may be
attended to properly.
34. No tenant shall bring into the Building any pollutants, contaminants,
inflammable, gasoline, kerosene or hazardous substances (as now or later defined
under State or Federal law).
35. Landlord reserves the right to restrict access to and from the Building
between the hours of 6:00P.M. and 8:00 A.M. on business days and at all hours on
Saturdays, Sundays and holidays.
36. All tenant and tenant's servants, employees, agents, visitors, invitees
and licensees shall observe faithfully and comply strictly with these Rules and
Regulations and such other and further appropriate Rules and Regulations as
Landlord or Landlord's agent from time to time adopt. Each tenant shall at all
times keep the premises leased to such tenant, its employees, agents mid
invitees under its control so as to prevent the performance of any act that
would damage the Building or its reputation or the premises leased to such
tenant or could injure, annoy, or threaten the security of the other tenants in
the Building or their respective employees, agents or invitees or the public.
37. Landlord may deny entrance to the Building and may remove from the
Building any person or persons who appear to be or are intoxicated, or who
appear to be or are under the influence of liquor or drugs, or who are in any
manner violating any of the Building Rules and Regulations, or who present a
hazard or nuisance to any other person. The reasonable costs incurred by
Landlord for security services or other costs reasonably incurred by Landlord to
remove any such persons shall be borne by the tenant whose employees, agents
and/or invitees are so removed.
38. Landlord shall furnish each tenant, at Landlord's expense, with two (2)
keys to unlock the entry level doors and two (2) keys to unlock each corridor
door entry to each tenant's premises and, at such tenant's expense, with such
additional keys as such tenant may request. No tenant shall install or permit to
be installed any additional lock on any door into or inside of the premises
leased to that tenant or make or permit to be made any duplicate of keys to tile
entry level doors or the doors to such premises. Landlord shall be entitled at
all times to possession of a duplicate of all keys to all doors into or inside
of the premises leased to tenants of the Building. All keys shall remain the
property of Landlord. Upon the expiration of the Lease Term, each tenant shall
surrender all such keys to Landlord and shall deliver to Landlord the
combination to all locks on all safes, cabinets and vaults which will remain in
the premises leased to that tenant. Landlord shall be entitled to install,
operate and maintain security systems in or about the Property which monitor, by
computer, close circuit television or otherwise, persons entering or leaving the
Property, tile Building and/or the premises leased to any tenant. For the
purposes of this rule the term "keys" shall mean traditional metallic keys,
plastic or other key cards and other lock opening devices.
39. Each person using the Parking Facility or other areas designated by
Landlord where parking will be permitted shall comply with all Rules and
Regulations adopted by Landlord with respect to the Parking Facility or other
areas, including any employee or visitor parking restrictions, and any sticker
or other identification system established by Landlord. Landlord may refuse to
permit any person who violates any parking rule or regulation to park in the
Parking Facility or other areas, aid may remove any vehicle which is parked in
the Parking Facility or other areas in violation of the parking Rules and
Regulations. The Rules and Regulations applicable to the Parking Facility and
the outside parking areas are as follows:
a. The maximum speed limit within the Parking Facility shall be 5 miles per
hour, the maximum speed limit in other parking areas shall be 15 miles per hour.
b. All directional signs and arrows must be strictly observed
c. All vehicles must be parked entirely within painted stall lines.
d. No intermediate or full-size car may be parked in any parking space reserved
for a compact car; no bicycle, motorcycle or other two or three wheeled vehicle,
and no truck, van or other oversized vehicle, may be parked in any area not
specifically designated for use by such vehicle.
e. No vehicle may be parked (i) in an area not striped for parking, (ii) in a
space which has been reserved for visitors or for another person or firm, (iii)
in an aisle or on a ramp, (iv) where a "no parking" sign is posted or which has
otherwise designated as a 110 parking area, (v) in a cross hatched area, (vi) ii
an area bearing a "handicapped parking only" or similar designation unless the
vehicle bears an appropriate handicapped designation, (vii) in an area bearing a
"loading zone" or similar designation unless the vehicle is then engaged in a
loading or unloading function and (viii) in an area with a posted height
limitation if the vehicle exceeds the limitation.
f. Parking passes, stickers or other identification devices supplied by Landlord
shall remain the property of Landlord and shall not be transferable. A
replacement charge determined by Landlord will be payable by each tenant for
loss of any magnetic parking card or parking pass or sticker.
g. Garage managers or attendants shall not be authorized to make or allow any
exceptions to these Rules and Regulations.
h. Each operator shall be required to park and lock his or her own vehicle,
shall use the Parking Facilities at his or her own risk and shall bear full
responsibility for all damage to or loss of his or her vehicle, and for all
injury to persons and damage to property caused by his or her operation of the
vehicle.
i. Landlord reserves the right to tow away, at the expense of the owner, any
vehicle which is inappropriately parked or parked in violation of these Rules
and Regulations.
40. Landlord has designated the Building a "non-smoking" building in
accordance with The Smoking Pollution Control Ordinance adopted by the City of
Phoenix, Arizona as set forth in Sections 23-101, etc. of the City of Phoenix
Municipal Code. Accordingly, smoking of tobacco or any other weed plant is
prohibited in the Building Common Areas located within the Building, including
the Building lobby, public corridors, lavatories, elevators and other public
areas. Further, smoking of tobacco or any other weed plant is prohibited within
the Leased Premises.
41. Landlord reserves the right at any tine and from time to time to
rescind, alter or waive, in whole or in part, any of the Building Rules and
Regulations when it is deemed necessary, desirable or proper, in Landlord's
judgment for its best interest or of the best of the tenants of the Building.
TENANT:
Dimensional Visions Group, Ltd.
A Delaware Corporation
By: /s/ Xxx X. Xxxxxxx
---------------------------
Its: CFO
EXHIBIT G
WORKLETTER
Landlord at its sole cost and expense shall provide the following tenant
improvements:
1. Demise suite in accordance with plan in Exhibit B.
2. Touch-up paint throughout.
3. Install new carpet throughout.
4. Remove and replace the glass wall adjacent to the exterior door for the
purpose of moving large office equipment through the door.
RIDER 2
THIS RIDER 2 to Office Lease dated October 27, 1997 between XXXXXXX ADVISORY
L.L.C. an Arizona Limited Liability Company ("Landlord") and DIMENSIONAL VISIONS
GROUP, LTD. a Delaware Corporation ("Tenant").
1. Quite Enjoyment:
Landlord covenants that, provided Tenant complies with the terms and conditions
set forth herein, Tenant shall quietly and peacefully have and hold the Leased
Premises for the Term of the Lease.
2. In Addition to 7.1:
Notwithstanding the foregoing, Landlord knows of no defect or repair or other
condition of the Leased Premises that would interfere with Tenant's Quiet
Enjoyment and possession of the Leased Premises.
3. In Addition to 18.1:
In the event Landlord needs to relocate Tenant into a substitute premise in the
building and substitute promise is not acceptable to Tenant, Tenant may cancel
the Lease.
LANDLORD TENANT
XXXXXXX ADVISORY L.L.C. Dimensional Vision Group, Ltd.
an Arizona Limited Liability Company A Delaware Corporation
By Xxxxxxx Corporation,
An Arizona Corporation
Its: General Manager
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- -------------------------------
Its President Its: CFO
AMENDMENT #1
TO LEASE
THIS AMENDMENT #1 TO LEASE, made and entered into this 10th day of August, 1998
by and between XXXXXXX ADVISORY L.L.C., an Arizona Limited Liability Company,
hereinafter referred to as ("Landlord") and DIMENSIONAL VISIONS GROUP, LTD, a
Delaware Corporation hereinafter referred to as ("Tenant").
WITNESETH
WHEREAS, Landlord leased certain premises to Tenant in the Xxxxxx Executive
Office Building, located at 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, in the City of
Phoenix, State of Arizona, pursuant to that certain Lease dated the 27th day of
October 1997, the premises being more particularly described; therein; and
WHEREAS, Landlord wishes to expand Tenant's premises and Tenant wishes to expand
its premises from Landlord; and
WHEREAS, Landlord and Tenant therefore wish to amend said Lease;
NOW, THEREFORE, in consideration of these present and the agreement of each
other, Landlord and Tenant agree that the said Lease shall be and the same is
hereby amended as of the 15th day of September 1998.
1. Lease Premises:
Paragraph 1.8 of the Lease is deleted and the following new Paragraph
replaces it:
"Approximately 4,364 rentable square feet of office space located on the
2nd floor of the Building and commonly known as Suite 207 and 201.
Furthermore, Suite 207 consists of approximately 3,100 rentable square feet
and Suite 201 consists of approximately 1,264 rentable square feet.
2. Rental:
The Annual Basic Rent set forth by Paragraph 1.12 shall be amended to
reflect the following New Base Rent Schedule:
September 15, 1998 through September 30, 1998 - $63,278.00 ($2,812.32 per
month), based upon a rental rate of $14.50 per rentable square foot.
October 1, 1998 through December 31, 1998 - $63,278.00 ($5,273.17 per
month), based upon a rental rate of $14.50 per rentable square foot.
January 1, 1999 through December 31, 1999 - $65,460.00 ($5,455.00 per
month), based upon a rental rate of $15.00 per rentable square foot.
January 1, 2000 through December 31, 2000 - $67,642.00 ($5,636.83 per
month), based upon a rental rate of $15.50 per rentable square foot.
3. All other terms and conditions of this Lease, as amended, remain in full
force and effect as heretofore.
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument by proper
persons thereunto duly authorized so to do on the day and year first
hereinabove.
LANDLORD TENANT
XXXXXXX ADVISORY L.L.C. Dimensional Vision Group, Ltd.
an Arizona Limited Liability Company A Delaware Corporation
By Xxxxxxx Corporation,
An Arizona Corporation
Its: General Manager
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- -------------------------------
Its President Its: CFO
SECOND AMENDMENT
TO LEASE
THIS SECOND AMENDMENT TO LEASE, made and entered into this 13th day of November,
2000 by and between PRESSION ADVISORY L.L.C., an Arizona Limited Liability
Company, hereinafter referred to as ("Landlord") and DIMENSIONAL VISIONS GROUP,
LTD, a Delaware Corporation, hereinafter referred to as ("Tenant").
WITNESSETH
WHEREAS, Landlord leased certain premises to Tenant in the Xxxxxx Executive
Office Building, located at 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, in the City of
Phoenix, State of Arizona, pursuant to that certain Lease dated the 27th day of
October, 1997, and as amended by Amendment #1 To Lease, dated the 10th day of
August, 1998, the Premises being more particularly described therein; and
WHEREAS, Landlord and Tenant therefore wish to amend said Lease;
NOW, THEREFORE, in consideration of these present and the agreement of each
other, Landlord and Tenant agree that the said Lease shall be and the same is
hereby amended as of the 1st day of January, 2001.
1. Article 1.10 of the Basic Provisions of the Lease is hereby deleted in its
entirety and replaced with the following New Article 1.10: "This Lease is
hereby extended for an additional term of Three (3) years commencing on
January 1, 2001 and terminating at midnight on December 31, 2003, under the
same terms and conditions except as may be amended herein."
2. Article 1.11 of the Basic Provisions of the Lease, Scheduled Commencement
Date "December 15, 1997" is replaced with the New Scheduled Commencement
Date of "January 1, 2001."
3. Article 1.12 of the Lease is deleted and replaced with the following New
Article 1.12: 1/1/01 through 12/31/01 $4,004.17 per month based on rental
rate of $15.50 a square foot. 1/1/02 through 12/31/02 $4,133.33 per month
based on rental rate of $16.00 a square foot. 1/1/03 through 12/31/03
$4,262.50 per month based on rental rate of $16.50 a square foot.
4. Article 1.14 of the Basic Provisions of the Lease, the Base Year costs: the
year "1998" is hereby deleted and "2000" is substituted.
5. Line 1 of Article 1.8 of the Basic Provisions of the Lease "4,364" rentable
square feet is replaced with "3,100" rentable square feet.
6. Line 2 of Article 1.8 of the Basic Provisions of the Lease, Suite 201 is
deleted to the end of Suite 207.
7. Exhibit G "WORKLETTER" having been fully satisfied is hereby deleted in its
entirety.
8. Article 33 "EARLY MOVE-IN" having been fully satisfied is hereby deleted in
its entirety.
9. Number 33 of the Table of Contents having been fully satisfied is hereby
deleted.
10. The following is added to the end of 6.1 Operating Costs: in no event shall
the increase in Controllable Operating costs exceed six percent (6%) per
year from the previous year's Controllable Operating costs. Controllable
Operating costs are defined as those operating costs except taxes,
insurance and utilities.
11. All other terms and conditions of this Lease, as amended, remain in full
force and effect as heretofore.
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument by proper
persons thereunto duly authorized so to do on the day and year first
hereinabove.
LANDLORD TENANT
XXXXXXX ADVISORY L.L.C. Dimensional Vision Group, Ltd.
an Arizona Limited Liability Company A Delaware Corporation
By Xxxxxxx Corporation,
An Arizona Corporation
Its: General Manager
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- -------------------------------
Its President Its: CFO
