Exhibit 10.08
LEASE
THIS INDENTURE, made this 31 day of August, A.D. 1989, by
and between Cemanudi Associates, an Illinois Limited
Partnership, (hereinafter, for convenience, referred to as
the "Lessor"), and Nelco Technology, Inc., a corporation
organized and existing by and pursuant to the laws of the
state of Arizona, (hereinafter, for convenience, referred to
as the "Lessee").
WITNESSETH:
ARTICLE I
THE LEASED PREMISES,
FIXTURES AND EQUIPMENT:
SEC. 101. THE LEASED PREMISES. That the Lessor, for and
in consideration of TEN DOLLARS ($10.00), to it in hand paid
by the Lessee, the receipt whereof is hereby acknowledged;
and in consideration of the agreements, conditions,
covenants and obligations to be kept, fulfilled, observed or
performed by the Lessee, does hereby demise and lease, and
the Lessee does hereby take and rent from the Lessor, in "As
Is" condition and upon the terms herein set forth,
approximately 38,311 square feet of land, more specifically
described on Exhibit "A" attached hereto, which Exhibit is
by this reference expressly made a part hereof, together
with a building located thereon containing approximately
13,995 square feet (the "Building") and including all
easements, improvements, tenements, appurtenances,
hereditaments, fixtures, rights and privileges thereto
belonging, or in any way appertaining and subject to any
restrictions, easements and encroachments and to any zoning
ordinances, laws, rules or regulations of any Public
Authority, now or hereafter in effect, relating to or
affecting the Demised Premises; including, without
limitation, all those indicated on Exhibit "A".
The Demised Premises are commonly known as 1104 West
Geneva Drive, Tempe, Arizona 85282.
SEC. 102:1. BUILDING FIXTURES AND EQUIPMENT. All
fixtures, machinery and equipment which are necessary to the
general operation and maintenance of the Demised Premises
and which are now in the Demised Premises, shall be the
property of the Lessor, whether owned by Lessor at the
commencement of the term, subsequently purchased by Lessor,
or purchased by Lessee in accordance with the provisions of
this Lease. Without in any way limiting the generality of
the aforegoing, all electric power panels, lighting
fixtures, plumbing, heating and air-conditioning equipment
presently located in the Demised Premises shall be
considered necessary to the general operation and
maintenance of the Demised Premises.
SEC. 102:2. TRADE FIXTURES. Only those trade
fixtures, machinery, non-structural partitions and other
equipment and items which are supplied, installed and used
by Lessee in the conduct of its business, including process
machinery and equipment, process piping and process electric
switch gear (other than replacement of building equipment
referred to above), which may hereafter be installed
therein, shall be the property of Lessee and may be removed
by Lessee at any time prior to or upon termination of the
Lease, whether by lapse of time or otherwise; provided the
Lessee is not, at any such time, in default of any of the
terms or conditions of this Lease. Lessee shall remove, on
demand by Lessor and at Lessee's expense, any and all such
items at the termination of the Lease term, whether by lapse
of time or otherwise, and repair any damage caused by such
removal, restoring the Demised Premises to their condition
prior to the installation of all such items or any of them.
SEC. 103. "DEMISED PREMISES" and 'IMPROVEMENTS" DEFINED.
"Demised Premises" shall mean the real estate described in
Exhibit "A" and shall include any and all Improvements, now
or hereafter, located or constructed thereon.
"Improvements" shall mean all buildings and all other
improvements, (except for Lessee's trade fixtures) now or
hereafter located or constructed on the Demised Premises,
including, without limitation, the Building, fixtures, other
structures and equipment on such premises which are the
property of Lessor as above described in Sec. 102:1.
ARTICLE 2
TERM POSSESSION:
SEC. 201. TERM. The term of this Lease shall be for a
period of Five (5) years commencing upon September 1, 1989
and ending at midnight August 31, 1994 subject to the
further provisions of this Lease.
SEC. 202. HOLD-OVER TENANCY. In the event the Lessee
remains in possession of the Demised Premises after the
expiration of the term of this Lease, or any extension
hereof, without written consent of Lessor, the Lessee shall
then be obligated to pay double the rate of the then current
annual rent as set forth herein, in equal installments on
the first day of each calendar month, for so long as the
Lessor is willfully kept out of possession of the Demised
Premises. No such payment, nor the acceptance thereof,
shall in any way constitute a waiver of the rights of Lessor
to dispossess the Lessee and recover possession of the
Demised Premises and the just and former estate of the
Lessor and to bring any action for damages suffered by
Lessor on account of Lessee's failure to vacate the
Premises.
Notwithstanding the foregoing, in the event there is a
dispute as to the "Market Rental", as such term is
hereinafter defined, or if such "Market Rental" has not been
determined prior to the time within which Lessee must
exercise its second option to extend, as provided in
Schedule 3, Lessee may elect to extend the then term of this
Lease one (1) additional month on the same terms and
conditions and at the same rental as Lessee is then paying,
by notifying Lessor of such election not less than sixty
(60) days prior to the expiration of the Lease.
ARTICLE 3
RENTAL:
SEC. 301. RENTAL. The Lessee hereby covenants and
agrees with the Lessor, as follows:
The following terms shall have the following respective
meanings for the purpose of this lease:
(a) Consumer Price Index. The term "Consumer Price
Index means the United States All Items Consumer Price
Index (1982-1984=100), All Urban Consumer Section, as
published by the United States Department of Labor,
Bureau of Labor Statistics. If the manner in which the
Consumer Price Index is determined by the Bureau of
Labor Statistics shall be substantially revised,
including without limitation, a change in the base index
year, an adjustment shall be made by Lessor in such
revised index which would produce results equivalent, as
nearly as possible, to those which would have been
obtained if such Consumer Price Index had not been so
revised. If the Consumer Price Index shall become
unavailable to the public because publication is
discontinued, or otherwise, or if equivalent data is not
readily available to enable Lessor to make the
adjustment referred to in the preceding sentence, then
Lessor will substitute therefor a comparable index based
upon changes in the cost of living or purchasing power
of the consumer dollar published by any other
governmental agency or, if no such index shall be
available, then a comparable index published by a major
bank or other financial institution or by a university
or a recognized financial publication.
(b) CPI Adjustment. The term "CPI Adjustment" means the
percentage increase, if any, in the Consumer Price Index
for the calendar month of July, 1991 over the Consumer
Price Index for the calendar month of August, 1989.
The Lessee hereby covenants and agrees with the Lessor,
as follows:
To take and accept said demise and lease of the Demised
Premises on the terms as herein set forth and to pay as
Annual Net Basic Rent for said Demised Premises at the
following annual rates applicable during the following
respective periods:
(a) During the period beginning on and including
September 1, 1989 ("Commencement Date") and ending on
and including August 13, 1991, Sixty-three Thousand
Eight Hundred Seventeen and 20/100 Dollars ($63,817.20);
and
(b) During the period beginning on and including August
14, 1991 and ending on and including the last day of the
term of this lease, an amount equal to the greater of
(i) Sixty-three Thousand Eight Hundred Seventeen and
20/100 Dollars ($63,817.20) multiplied by the CPI
Adjustment, and (ii) Sixty-three Thousand Eight Hundred
Seventeen and 20/100 Dollars ($63,817.20).
Such rental shall be paid in then lawful money of the
United States of America in equal monthly installments each
in an amount equal to one-twelfth (1/12) of the amount of
the Annual Net Basic Rent applicable during such month, to
be paid in advance upon the Commencement Date and on the
first day of each and every calendar month thereafter during
the term hereof to the Lessor at such place as may, from
time to time, be designated by them; and in the absence of
such designation, at the last known office of the Lessor in
Tempe, Arizona. Notwithstanding anything herein to the
contrary, (a) if the Commencement Date occurs on a date
other than the first day of a calendar month, the amount of
the monthly installment of Annual Net Basic Rent payable on
the Commencement Date shall be prorated based on the number
of days from and including the Commencement Date through and
including the last day of such calendar month and a calendar
month consisting of thirty (30) days, and (b) if the last
day of the term of this Lease occurs on a day other than the
last day of a calendar month, the amount of the monthly
installment of Annual Net Basic Rent payable on the first
day of such calendar month shall be prorated based on the
number of days of such month which fall within the term and
a calendar month consisting of thirty (30) days.
It is intended that the rent provided for in this Lease
shall be an absolutely net return to Lessor for the term of
this Lease, and any renewals or extensions thereof, free of
any and all expenses or charges with respect to the Demised
Premises including, without limitation, any Taxes and
assessments, now or hereafter imposed upon or related to the
Demised Premises, commonly known as real estate taxes,
general or special or improvement assessments, and any taxes
and assessments, whether by way of an income tax or
otherwise which may be levied, assessed or imposed by the
State in which the Demised Premises are located, or by any
political or taxing subdivision thereof, upon the income
arising from the rents provided herein in lieu of or as a
substitute for taxes or assessments imposed upon or related
to the Demised Premises and commonly known as real estate
taxes; and that Lessee, and not Lessor, shall be required
to, and shall pay, such taxes and assessments, but not to
pay any other income tax or gift, estate or fee title
transfer tax payable upon transfer of fee title to the
Demised Premises which may be levied against the Lessor, or
any of Lessor's interest or Mortgage payments, Lessor's
expenses in negotiating this Lease, or management fees, if
any, paid by Lessor to third parties.
Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause
Lessor to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to
ascertain. Such costs include but are not limited to;
processing and accounting charges and late charges which may
be imposed on Lessor by the terms of any mortgage or trust
deed covering the Demised Premises. Accordingly, if any
installment of rent or any other payment due from Lessee
shall not be received by Lessor within Ten (10) days after
such amount shall be due, Lessee shall pay to Lessor in
addition to the amount due, a late charge equal to Ten
Percent (10%) of such overdue amount. The parties hereto
hereby agree that such late charge by Lessor is a fair and
reasonable estimate of the costs Lessor will incur by reason
of any such late payment. Such late charge is deemed to be
only one of several cumulative remedies available to Lessor
hereunder and acceptance of such late charge by Lessor shall
in no event constitute a waiver of Lessee's default with
respect to such overdue amount nor prevent Lessor from
exercising any of the other rights and remedies granted
hereunder.
ARTICLE 4
TAXES, ASSESSMENTS, UTILITY CHARGES,
INSPECTION FEES AND LIENS:
SEC. 401. TAXES, ASSESSMENTS. The Lessee shall pay as
additional rent, during the full term hereof, all taxes;
including, without limitation, ad valorem general real
estate taxes, installments of assessments, general and
special, and all other public charges levied upon or
assessed against and properly attributable to the Demised
Premises, or any part thereof, or arising by reason of the
existence, occupancy, use or possession of the Demised
Premises, or the business carried on therein, including,
without limitation, the Arizona Rental Income Tax, all of
which are hereinafter, collectively referred to as "Taxes",
but not to pay any other income tax, or gift, estate or fee
title transfer tax payable upon transfer of fee title to the
Demised Premises which may be levied against the Lessor.
The Lessee shall pay to Lessor, contemporaneously with
the monthly rent payments One Twelfth (1-12th) of the
estimated annual Taxes, such estimate to be made by Lessor.
Upon receipt of the real estate tax bills each year the
Lessor will make payment thereof prior to delinquency and
promptly provide Lessee with a copy of the receipted tax
bill.
Adjustments of amounts (credit or debit) shall be made
between the parties within thirty (30) days of the receipt
by Lessor, of any such bill. All Taxes shall be prorated
for the first and last years of the term hereof and any
extension or renewal thereof. Proration with respect to the
Taxes for the last year of the term shall be made on the
basis of the last available tax bill, provided, however,
that upon receipt of the tax bill an appropriate adjustment
shall be made.
SEC. 402. UTILITY CHARGES. Lessee shall secure service
and pay all charges for water, electricity, gas, telephone
and any and all other utility services furnished to the
Demised Premises.
The Lessor, the Public Authorities and the.Utilities
servicing or located on the Demised Premises shall, at all
reasonable hours, by its or their agents or employees, have
the right to install, repair and replace the utility
conduits, meters and other facilities located on the Demised
Premises; it being understood and agreed, however, that the
Lessor shall not be liable for the care, upkeep or
maintenance of such facilities.
SEC. 403. LICENSES, PERMITS AND FEES. All licenses,
permits and fees of any kind or character whatsoever,
imposed on the Demised Premises or the use and operation
thereof by the City, County, State or Federal Government, or
any other governmental unit or Public Authority or for
inspection of the Demised Premises, or any part thereof
during the term hereof, shall be paid promptly by Lessee
prior to delinquency.
SEC. 404. MECHANIC'S LIENS. Lessee shall not permit any
liens to stand against the Demised Premises for any labor or
material in connection with work of any character' performed
or claimed to have been performed on the Demised Premises at
the direction or sufferance of Lessee (except work done by
Lessor), whether such work was performed or furnished prior
to, or subsequent to the commencement of the term of this
Lease.
In the event of any such lien attaching to the Demised
Premises, Lessee will promptly notify Lessor of such event
and Lessee will pay off the same and have such lien released
of record within Thirty (30) days of the filing of such lien
of record.
SEC. 405. PAYMENT BY LESSOR. If at any time, any tax,
assessment, charge, rate, fee or inspection fee, generally
or specifically charged or assessed against and properly
attributable to said Demised Premises shall become due or
payable and the Lessee shall not pay the same, or have paid
same to Lessor or, in the event any lien for labor or
material shall not be released of record by Lessee within
Thirty (30) days of the filing of such lien of record, the
Lessor may, at its option, pay the same at any time
thereafter without inquiring into the validity thereof
whether or not Lessee has failed to pay such amount or
Lessee has paid such amount to Lessor, and the amount of any
and all such payments so made by the Lessor (with interest
thereon at Eighteen Percent (18%) per annum from and after
the date any such payment was paid by Lessor) shall be and
hereby is declared to be so much additional and further rent
for the Demised Premises, due from and payable by the Lessee
with the next installment of rent and may be collected in
the same manner as other rents due hereunder; provided,
however, that subject to the further provisions hereinafter
set forth, Lessee shall have the right, at Lessee's expense,
to contest in good faith the validity of any Taxes,
assessments, charges, liens, rates or fees so specifically
charged or assessed against the Demised Premises; provided,
however, that Lessee notifies Lessor in writing of Lessee's
intention to so contest within Thirty (30) days in advance
of the date such Taxes, assessments, charges, liens, rates
or fees charged or assessed against the Demised Premises
were due and payable; and further provided that such contest
is commenced within Thirty (30) days of the date of such
notice.
SEC. 406. CONTEST. In the event Lessee desires to
contest any Taxes, assessments, charges, liens, rates or
fees herein provided, it shall do so by paying the amounts
under protest, or shall provide for the payment thereof,
together with all penalties, interest, costs and expenses,
by the deposit of a sufficient sum of money to be held in
escrow by Lessor or, at the option of Lessor, by a good and
sufficient undertaking as may be required or permitted by
law, all to the end that no delinquency or proceedings based
upon delinquency shall in anywise affect the title or
interest of Lessor in the Demised Premises.
Lessee agrees that it will prosecute any such contest
with due diligence and in the event any such contest be
adjudicated adversely to Lessee, that Lessee will, within
Thirty (30) days after final determination, or within the
time provided for in such adjudication, whichever is sooner
thereof, pay the full amount of any such Taxes, assessments,
charges, liens, rates or fees, or other obligations not paid
by Lessee to Lessor which may have been the subject of such
contest as so determined, together with all interest and
penalties, costs and charges which may be payable in
connection therewith and satisfy and cause the release of
the same of record.
Lessee shall keep the Lessor notified, from time to time
throughout the period of its pendency, as to the progress
and status of any such contest. If a final determination is
not had within Three (3) years from the date of instituting
any such contest, or in the event of any default of the
Lessee, pursuant to the terms of this Lease, Lessor at its
option, may pay out of any funds held in escrow for any such
Taxes, assessments, charges, liens, rates or fees which may
be under contest, together with all penalties, interest
charges and other expenses whatever in connection with such
contest and Lessee shall immediately upon written demand
from Lessor, terminate any such contest.
In the event the funds so held are insufficient to pay
and satisfy the same, Lessor, at its option, may pay any
deficiency and any amount so paid will be reimbursed by
Lessee as additional rent due hereunder, promptly upon
demand, notwithstanding any previous termination of the term
of this Lease by lapse of time or otherwise, with interest
at Eighteen Percent (18%) per annum from the date of
expenditure by Lessor.
Nothing contained in this agreement shall be construed to
authorize Lessee to create or incur on behalf of Lessor any
liability, indebtedness or obligation whatsoever. Anything
herein to the contrary, notwithstanding, Lessee shall
defend, completely indemnify and hold Lessor forever
harmless from any and all consequences of any such Taxes,
assessments, charges, liens, rates or fees, or any contest
thereof which were the obligations of Lessee to pay
hereunder.
ARTICLE 5
INSURANCE:
SEC. 501. PROPERTY INSURANCE. The Lessee covenants and
agrees that immediately upon the commencement of the term
hereof, Lessee will cause, at Lessee's expense, the Building
and, Improvements placed on the Demised Premises by the
Lessor, including any and all additions thereto, to be
insured for full replacement cost against loss or damage by
fire, lightning and other casualty covered by the provisions
of endorsements for Extended Coverage and Special Extended
Coverage, to include the peril of collapse, vandalism and
malicious mischief, replacement cost, and will keep
insurance to the full replacement value, from time to time,
of the Building and Improvements placed on said Demised
Premises by Lessor, including any and all additions thereto,
in full force and effect during the term hereof so long as
this Lease is in effect, including all extensions hereof.
No such policy of insurance shall include either the
contents of the Building located on the Demised Premises or
any other property of the Lessee or any third party except
as a separate stated item of insurance, separate and in
addition to the coverage which shall apply exclusively to
Lessor's Building and other Improvements owned by Lessor.
All such policies shall provide that Lessor and any
Mortgagee(s) shall be the insureds as their interests
appear, and shall further provide that any loss shall be
payable to Lessor and any Mortgagee(s) notwithstanding any
act or omission of Lessee which might otherwise result in a
forfeiture or reduction of said insurance.
In addition, Lessee shall maintain steam boiler insurance
in such amounts as Lessor may from time to time reasonably
require on all steam boilers, pressure boilers or such
apparatus as Lessor may deem necessary to be covered by such
insurance, if any.
The Lessee will not place, nor permit to be placed, any
other policies of insurance upon the Building or other
Improvements placed upon Demised Premises by Lessor without
advance written permission of Lessor and without Lessor and
Lessor's Mortgagee(s) as a named insured, provided, however,
that nothing herein shall be construed as limiting in any
way the manner in which Lessee insures its personal property
and trade fixtures placed within the Demised Premises.
SEC. 502. PUBLIC LIABILITY INSURANCE. Lessee, at
Lessee's expense, and for mutual benefit of the Lessor any
Mortgagee(s) and the Lessee, shall maintain Comprehensive
Public Liability Insurance, covering the Demised Premises in
an amount not less than ONE MILLION DOLLARS ($1,000,000).
Such insurance shall include the following coverages:
premises/operations, independent contractors, personal
injury, broad form property damage and contractual
liability.
SEC. 503. INSURANCE GENERALLY. All insurance policies
shall be with companies reasonably satisfactory to Lessor
and shall provide for at least Thirty (30) days mandatory
advance written notice to Lessor before cancellation,
reduction or other amendment and the property policies shall
contain a standard mortgage clause. Certificates evidencing
such insurance shall be delivered by Lessee to Lessor at the
commencement of the term of this Lease and all subsequent
amendments and endorsements shall be promptly delivered to
Lessor. Statements for premiums on such policies shall be
sent to and paid by Lessee.
In the event Lessee shall refuse or fail to provide the
insurance coverage herein required or to provide evidence of
such coverage as herein described, the Lessor may, at its
election, but with no obligation so to do, procure and, from
time to time, renew such insurance and all amounts expended
therefor with interest thereon at Eighteen Percent (18%) per
annum from the respective dates of such expenditures shall
be so much additional rent hereunder due from the Lessee on
demand.
Lessee agrees to indemnify the Lessor for any loss
suffered as the result of the exercise of any deductible
feature that may be incorporated in the insurance contract
and Lessor hereby reserves the right to disapprove the
amount and provisions of any such deductible feature.
Lessee agrees to be a self insurer as to such deductible
amounts and further agrees to pay such amounts to Lessor in
the same manner as though such insurance policies did not
contain deductible provisions.
ARTICLE 6
USE MAINTENANCE AND CONDITION OF
THE DEMISED PREMISES:
SEC. 601. DEMISED PREMISES. Lessee shall not breach or
suffer the breach of any of the conditions, agreements and
restrictions of record affecting the Demised Premises and
shall defend, completely indemnify and hold Lessor forever
harmless from all consequences of any such breach.
Lessee may use and occupy the Demised Premises for light
manufacturing (including mass lamination, manufacturing of
copper clad boards, printing and etching of copper clad
laminated boards and the manufacturing of prepreg), storage,
assembly, distribution and for offices in connection
therewith; provided, however, that Lessee shall strictly
comply with all present and future laws, ordinances and
regulations of public authorities, as well as all insurance
underwriting and inspection and rating requirements, now or
hereafter in any manner affecting the use of the Demised
Premises, the sidewalks, alleys, driveways and parkways
adjacent thereto, if any, or any Building thereon, or the
use thereof. Lessee shall not permit any unlawful
occupation, business, trade or nuisance to be conducted on
the Demised Premises, or any use to be made thereof contrary
to any law, ordinance or regulation. Without in any way
limiting the generality of the aforegoing, Lessee will not,
at any time, store any material or equipment of any kind or
character outside the Building(s) located on the Demised
Premises except in strict compliance with all applicable
ordinances, laws or regulations of any governmental unit or
other public authority having jurisdiction.
Lessee, at the sole cost and expense of Lessee, shall
have the right to contest the validity of any such rules,
laws, ordinances or regulations affecting the use of the
Demised Premises; provided, however, in any event, that
Lessee shall defend, completely indemnify and hold the
Lessor forever harmless from all consequences of any such
contest and the violation of any such rule, law, ordinance
or regulation.
Lessee will not use or permit to be used upon or in said
Demised Premises or any Building thereon anything that will
invalidate any policy of insurance at any time insuring the
Demised Premises, or any Building(s) or Improvements
thereon, nor shall Lessee permit any dangerous condition to
exist on the Demised Premises for which appropriate and
sufficient safeguards in compliance with all applicable laws
have not been taken.
Lessee shall not cause or suffer any signs to be erected
upon the Demised Premises, nor upon any Building(s) or
Improvements located thereon without the prior written
approval of Lessor, which shall not be unreasonably
withheld.
Anything herein to the contrary, notwithstanding, Lessee
shall not at any time overload any structural member
(including, by way of illustration and not limitation, all
roofs, columns, walls, beams, trusses and floors) of the
Building located on the Demised Premises; nor shall Lessee
cause or suffer the demolition of the Building(s) or
Improvements, or any part(s) thereof (except as provided in
Sec. 603) without the prior written approval of Lessor.
The Lessee further covenants and agrees that the entry
into occupancy of the Demised Premises by the Lessee shall
constitute an acknowledgment that the same and the
Building(s) and Improvements thereon have been received by
the Lessee in good condition and repair, subject to the
warranties set forth herein.
SEC 602. ENVIRONMENTAL PROVISIONS. As used herein, the
term "Environmental Laws" includes all statutes,
regulations, ordinances and orders, federal, state and
local, including, but not limited to, Title 49 of the
Arizona Revised Statutes, which concern the regulation or
protection of the human health or the environment, including
the ambient air, surface water, groundwater, and surface and
subsurface land use, and any regulations promulgated
thereto. The term "Regulated Substance" includes, but is
not limited to, any and all hazardous substances, hazardous
wastes, toxic substances or hazardous materials defined or
regulated by the Environmental Laws including but not
limited to, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. 9601 et seq.) and
the Arizona Environmental Quality Act (A.R.S. 49-201, et
seq.) and any rules, regulations and guidelines adopted
thereto.
Lessee shall immediately notify Lessor in writing of any
(a) correspondence or communication from any entity,
governmental or private, regarding an actual, potential, or
alleged violation of Environmental Laws, and (b) any event
or change mi Lessee's operation of the Demised Premises that
will change Lessee's or Lessor's obligations or liabilities
under the Environmental Laws.
Lessee shall, at Lessee's own expense, comply with all
existing and hereinafter enacted Environmental Laws, and any
amendments thereto, affecting Lessee's operation and use of
the Demised Premises and Lessee's use, storage and disposal
of Regulated Substances. Lessee shall obtain, prior to the
commencement of the Lease, all permits, licenses and other
authorizations required under the Environmental Laws.
Lessor or Lessor's duly-authorized representative shall
have the right to enter the premises at all reasonable times
to determine whether Lessee is in compliance with this
Section. Lessee's failure to abide by the terms of this
Section shall be restrainable by injunction and may result
in termination of the Lease, at Lessor's sole discretion.
Lessee shall defend, indemnify and hold harmless Lessor,
its agents, successors and assigns, from and against any
claims demands, penalties, fines, liabilities (whether
governmental or private), settlements, damages, costs, or
expenses (including, without limitation, attorney's and
consultants' fees, court costs, and litigation expenses),
arising out of or in any way related to (a) the presence,
use, generation, storage, treatment, disposal, release or
threatened release of any Regulated Substance that is on,
from, or affecting the human health or environment, whether
or not previously disclosed to Lessor; (b) any personal
injury (including wrongful death) or property damage of any
kind arising out of or related to a Regulated Substance: or
(c) any violation of any Environmental Law; provided,
however, that such events described in clauses (a), (b) or
(c) of this sentence are directly caused by or directly
attributable to the acts or omissions of Lessee, its agents,
and contractors. The provisions of this Section and this
indemnification shall be in addition to any other
obligations and liabilities Lessee shall have to Lessor at
law or in equity and shall survive the termination of this
Lease.
SEC. 603. MAINTENANCE. The Lessor warrants that the
foundation, exterior bearing walls, and wood roof structure
shall be free from defects in material and workmanship until
such times as any of these structural systems have been
altered or modified by Lessee. In the event, of the
occurrence of any such defect during the warranty period and
upon receipt of written notice from Lessee, Lessor shall
promptly commence and diligently prosecute to completion
such repairs as are necessary to correct such defect.
Except for the aforegoing Lessor warranties, Lessee shall
maintain and preserve the Demised Premises, including,
without limitation, the interior and exterior of the
Building thereon in good and clean condition making all
repairs, replacements and restorations necessary for such
maintenance and preservation: including, without limitation,
tuckpointing, painting, glass replacement, glazing, caulking
and the repair, replacement and restoration of the roof
covering, docks, landscaping and, parking areas. All
repairs, replacements and restorations shall be in quality
at least equal to the original construction.
Notwithstanding anything herein to the contrary, on or
before each anniversary date of this Lease or extension
thereof, Lessee shall deliver to Lessor written evidence
satisfactory to Lessor that the roof of the building on the
Demised Premises has been serviced by a roofing contractor
licensed by the State of Arizona and satisfactory to Lessor.
At the termination of this Lease, by lapse of time or
otherwise, Lessee shall deliver the Demised Premises to the
Lessor in good condition and repair as obtained therein at
the commencement of the term of this Lease subject, however,
to the loss or damage due to any casualty to the extent
actually recovered by Lessor under insurance policies to be
obtained and maintained by Lessee as herein set forth and
normal wear and tear. Anything herein to the contrary,
notwithstanding, Lessee will not suffer any waste t@-occur
on the Demised Premises and will make every reasonable
effort to prevent the Demised Premises from falling into
disrepair; including, without limitation, the prompt
performance of all repair, replacement and restoration
obligations of Lessee as herein set forth.
SEC. 604. ALTERATIONS. Lessee shall make no alterations
to the Demised Premises without prior written approval of
Lessor which shall not be unreasonably withheld provided,
however, Lessee shall make no material alterations to the
Demised Premises (including roof, floor, and structural wall
penetration). Lessee shall remove, on demand by Lessor and
at Lessee's expense, any and all alterations at the
termination of this Lease, whether by lapse of time or
otherwise, and shall repair any damage caused by such
removal, restoring the Demised Premises to their condition
prior to the making of any such alteration(s), or any of
them.
Any and all alterations, additions and improvements made
to or placed upon the Demised Premises by the Lessee, or
suffered by Lessee to be made to or placed upon the Demised
Premises, as well as all fixtures and articles of personal
property attached to or made a part of the Demised Premises,
which Lessee has not removed or been required to remove by
Lessor, shall immediately become the property of the Lessor
at the termination of this Lease and shall be surrendered to
the Lessor.
Subject to the provisions hereinabove set forth, the
Lessee may expend such additional sums of money upon the
Demised Premises, the Building and Improvements on said
Demised Premises as the Lessee may desire, with the full
understanding that such additional sums so paid shall not be
deducted from or set off against any rents or other payments
due hereunder.,
SEC. 605. LESSORS RIGHT TO INSPECT AND REPAIR. Lessor,
its agents and employees shall have the right, at any
reasonable time after notice to Lessee, to enter upon the
Demised Premises to inspect the same in the presence of an
agent of Lessee and Lessee agrees to make such agent
available. In the event Lessee fails to commence such
repairs, replacements or restorations as are necessary to
maintain the Demised Premises in good condition, within
Thirty (30) days after notice from Lessor or fails to
diligently prosecute the same to completion, the Lessor, at
its option, but without any obligation so to do, may make
such repairs, replacements, or restorations, and amounts
expended for such work by the Lessor shall be reimbursed by
the Lessee as additional rent due hereunder, promptly on
demand, together with interest at Eighteen Percent (18%) per
annum from date of expenditure.
Anything herein to the contrary, notwithstanding, Lessor
shall have the right, at any time, to enter upon the Demised
Premises, but without any obligation so to do, in order to
effect any repair, replacement or restoration of an
emergency nature and Lessee shall reimburse Lessor as
additional rent due hereunder, promptly upon demand, for
expenditures incurred for such work and if Lessee denies
Lessor such access, Lessee agrees to defend, indemnify and
hold forever harmless the Lessor from and against any and
all liability, fines, suits, claims, demands, actions,
causes of action, losses, costs, damages, judgments and
expenses of any kind or character, name or nature due to or
arising directly or indirectly out of such emergency.
ARTICLE 7
INDEMNIFICATION AND HOLDING
HARMLESS OF LESSOR:
SEC. 701. INDEMNIFICATION. To the extent permitted by
law, Lessee shall defend, completely indemnify and hold
forever harmless the Lessor from and against any and all
liability, fines, suits, claims, demands, actions, causes of
action, losses, costs, damages, judgments and expenses of
any kind or character, name or nature, due to or arising out
of:
(a) Any breach, violation or non-performance of any
covenant, obligation, condition or agreement in
this Lease set forth and contained on the part of
the Lessee to be fulfilled, kept, observed or
performed; and/or
(b) any damage to, loss or destruction of any
property arising directly or indirectly out of
Lessee's use and occupancy of the Demised Premises,
except for any such damages, losses or destruction
resulting from or attributable to the breach of the
warranty contained in the first sentence of Section
603 hereof; and/or
(c) any injury to any person(s), including death,
resulting at any time therefrom, occurring in or
about the Demised Premises and/or the sidewalks,
drive and alleyways, pkways, if any, and any and
all other appurtenances thereunto appertaining
arising directly or indirectly out of
Lessee's use and occupancy of the Demised
Premises, except for any such injuries or deaths
resulting from or attributable to the breach of the
warranty contained in the first sentence of Section
603 hereof.
In the event the Lessor is made a party to any action or
proceeding which Lessee is required to defend pursuant to
the provisions of this Lease, the Lessor shall have the
right to appear and to take part in any such action or
proceeding by legal counsel of Lessor's choice at Lessor's
cost and expense.
Lessee and Lessor hereby agree to completely indemnify
the prevailing party as to an costs and expenses incurred to
enforce any of the terms, provisions, conditions or
covenants of this Lease; including, but not limited to,
reasonable attorney's fees.
Nothing herein shall be construed as obligating the
Lessee to indemnify or hold harmless any party, from and
against the consequences of willful or negligent acts or
omissions of the party to be indemnified.
SEC. 702. LOSS OF PROPERTY. Anything in this Lease to
the contrary notwithstanding Lessee agrees that under no
circumstances shall Lessor be liable to Lessee or to any
third party for any loss of, destruction of, damage to or
shortage of any property other than that directly or
indirectly caused by defects, latent or otherwise, warranted
herein by Lessor; including, by way of illustration and not
limitation, equipment or inventory placed on the Demised
Premises or suffered to be placed thereon by Lessee, it
being the intention of the parties hereto that the risk of
any and all such loss, destruction, damage or shortage shall
be borne by Lessee and Lessee agrees to defend, completely
indemnify and hold Lessor forever harmless from and against
any and all liability, suits, claims, demands, actions
causes of action, losses, costs, damages, judgments and
expenses if any arising out of such loss, destruction,
damage or shortage.
ARTICLE 8
DAMAGE OR DESTRUCTION
OF BUILDINGS:
SEC. 801. DAMAGE OR DESTRUCTION OF BUILDINGS. If any
Building or Improvements placed by the Lessor on the Demised
Premises shall be injured or destroyed by fire or other
casualty insured against pursuant to the terms of this
Lease, the Lessor will, with due diligence and dispatch,
proceed to collect the insurance thereon and if the Lessor
elects to repair or restore such Building, the Lessor will
apply the insurance monies derived from said policies to
such repair and restoration.
In the event that the monies realized from the insurance
policies shall not be sufficient to restore such Building
and/or Improvements to their condition immediately prior to
such fire or other such casualty, the Lessor may, at the
option of Lessor, advance the additional funds necessary
therefor, and to the extent that the insufficiency of the
insurance proceeds was due to the failure of Lessee to
comply with the provisions of this Lease and to the extent
of any deductible feature in the insurance coverage to be
provided by the Lessee, the Lessee covenants and agrees to
repay any such advance to the Lessor as additional rent due
hereunder, promptly upon demand, with interest at the rate
of Eighteen Percent (18%) per annum from the date of such
expenditure.
In the event Lessor does not elect to repair or restore
such Building and/or Improvements within Thirty (30) days
after such a casualty, such election to be evidenced by
written notice to Lessee within said time period, or if the
repair or restoration cannot reasonably be accomplished
within a period of one hundred twenty (120) days after such
casualty, then in either of such events this Lease and the
term hereof, may be terminated
and cancelled at the election of either party hereto,
provided written notice is given to the other party within
Ten (10) days after the expiration of the last
aforementioned such Thirty (30) day period. Absent such
timely notice this Lease shall remain in full force and
effect.
ARTICLE 9
RENT ABATEMENT
BECAUSE OF DAMAGE:
SEC. 901. RENT ABATEMENT BECAUSE OF DAMAGE. In the event
the Building and/or Improvements on the Demised Premises
shall be damaged by fire or other casualty covered by the
provisions of the insurance policies then in effect as
provided for herein, the Lessee shall not be required to pay
rent on any untenantable portion of said Building and the
rental reserved hereunder shall be reduced to the proportion
that the square foot area of the Building remaining
tenantable bears to the total square foot area of the
original Building. Such rental shall be increased pro rata,
from time to time, if and when additional areas of the
Building are returned to tenantable condition.
ARTICLE 10
CONDEMNATION:
SEC. 1001. AWARD. In the event the Demised Premises,
or any part thereof, shall be condemned or taken for a
public or a quasi-public use, or is sold by Lessor under
threat of condemnation, any award made or sales price paid
to compensate for the value of the Demised Premises,
Building(s) and Improvements thereon, or for damages to the
remainder thereof shall be paid to the Lessor and Lessee
shall have no claim thereto and the Lessee hereby
irrevocably assigns and transfers to the Lessor any right to
any such compensation or damage awards, providing, however,
that Lessee shall have the right to prove in the proceeding
and to receive any award which may be made for damages for
or condemnation of Lessee's personal property, including
movable trade fixtures and equipment and relocation costs.
In the event any or all of the Demised Premises shall be
so condemned or taken, the Lessee shall execute and deliver
to Lessor, promptly on demand, all documents necessary and
proper to evidence the termination of the interest of the
Lessee in and to the Demised Premises and this Lease,
including, without limitation, a recordable release and
cancellation of this Lease and a quit claim deed. The
failure of the Lessee to so execute and deliver such
documents shall in no way affect such termination of this
Lease and the interest of the Lessee in and to the Demised
Premises.
SEC. 1002. REMAINDER SUSCEPTIBLE OF OCCUPANCY. In
the event a part of the Demised Premises remains which is
susceptible of occupation for the uses set forth herein,
this Lease shall, as to the part so taken, terminate as of
the date title shall vest in the condemning authority and
the rent payable hereunder shall be adjusted so that the
Lessee shall be required to pay for the remainder of the
term only such fractional portion of such rent as the area
of the part of the building located on the Demised Premises
remaining after condemnation bears to the area of said
Building as of the date of condemnation: and in such event,
this Lease shall remain in full force and effect and the
Lessor shall promptly commence and diligently prosecute to
complete the restoration of the Building so that it shall
again constitute a complete architectural unit but the
Lessee shall be required to pay only that fractional portion
of the rent as is provided for hereinabove in this Sec.
1002.
In the event the Lessor does not so terminate this Lease,
this Lease shall remain in full force and effect and the
Lessor shall promptly commence and diligently prosecute to
completion the restoration of the Building so that it shall
again constitute a complete architectural unit but the
Lessee shall be required to pay only that fractional portion
of the rent as is provided for hereinabove in this SEC.
1002.
SEC. 1003. REMAINDER NOT SUSCEPTIBLE OF OCCUPANCY.
In the event all of the Demised Premises, or such part
thereof be taken or condemned so that there does not remain
a portion susceptible for occupancy for the uses set forth
herein, this Lease shall terminate upon the date the title
to the part taken vests in the condemning authority and
Lessee's obligation to pay rent or to discharge any other
obligation hereunder, other than the payment of money then
due and damages arising out of any breach of the covenants,
conditions or terms hereof by the Lessee, shall cease.
Notwithstanding anything herein to the contrary, the
Demised Premises shall not be deemed tenantable in the event
more than twenty-rive percent (25%) of the area of the
Building located on the Demised Premises is taken or
condemned.
ARTICLE 11
DEFAULT, BANKRUPTCY
SEC. 1101. DEFAULT, BANKRUPTCY. It is mutually
agreed and understood by and between the parties hereto that
in the event during the term of this Lease, regardless of
the pendency of any bankruptcy, insolvency, receivership or
reorganization proceedings, in law, equity or before any
administrative tribunal, or any other governmental entity
which has been prevented or which might prevent compliance
by Lessee with the terms or provisions of this Lease:
(1) Lessee shall default in the payment of any
installment of rent or other payment required to be
made by Lessee pursuant to the provisions of this
lease and such default shall continue for Ten (10)
days after notice of such default from Lessor
provided however that in the event Lessor has had
to give Lessee notices of such default more than
twice in any twelve (12) consecutive month period,
this notice requirement shall thereupon terminate
and Lessee shall be in default after the expiration
of any such ten (10) day period regardless of lack
of notice from Lessor; or
(2) Lessee shall make default in the provisions of
any of the agreements, conditions, covenants or
obligations hereunder. to be kept, fulfilled,
observed or performed by the Lessee and such
default shall not be cured within Thirty (30) days
after notice of such default from Lessor to Lessee;
Anything hereinabove to the contrary,
notwithstanding, as to any such default except the
payment of any rent or other monies reserved
herein, in the event the Lessee shall, within said
Thirty (30) day period, commence the cure of such
default and diligently pursue to completion any
such cure as soon as reasonably practicable, the
Lessor may not declare the term ended and this
Lease terminated and cancelled; or
(3) if any voluntary petition or similar pleading
under any bankruptcy act or any federal or state
law seeking reorganization or arrangement with
creditors or adjustment of debts is filed by or
against Lessee, or if any such petition or
pleadings is involuntary and Lessee is not
discharged thereof within Thirty (30) days after
the date of its filing; or
(4) if Lessee admits its inability to pay its debts
or if a receiver, trustee or other appointee of a
court, administrative tribunal or other public
authority is appointed for all or a substantial
part of Lessee's property and if such appointment
is not vacated within Thirty (30) days after being
made; or
(5) if the leasehold interest of Lessee is levied
upon or attached by process of law, and such levy
or attachment is not released of record within
Thirty (30) days; or
(6) if Lessee makes an assignment for the benefit
of creditors, or if any proceedings are filed by or
against Lessee to declare Lessee insolvent or
unable to meet its debts and such proceedings are
not discharged within Thirty (30) days after the
date of their filing; or
(7) if a receiver or similar type of appointment or
court appointee or nominee of any name or character
is made for all or a substantial part of Lessee's
property and if such receiver is not discharged
within Thirty (30) days after appointment;
then, in any such event, Lessor shall have the right, at any
time thereafter (but prior to any timely cure as hereinabove
provided), with or without notice to avail itself to any or
all of the following remedies, (a) to lock the doors of the
Demised Premises and exclude Lessee therefrom; (b) to retain
or re-enter and take complete possession of the Demised
Premises pursuant to Landlord's statutory lien; (c) to
remove all persons and all of Lessee's property therefrom;
(d) to terminate this Lease forthwith; (e) to@sue for the
rent due and to become due under this Lease; (f) to sue for-
any damages sustained by Lessor and/or (g) to keep this
Lease in full force and effect reletting the Demised
Premises on such terms and conditions as Lessor may deem
appropriate without prejudicing Lessor's rights to recover
past and future rents or other obligations of Lessee
hereunder.
Anything herein to the contrary, notwithstanding any
payment of rent or any other payment to be made by the
Lessee to Lessor, pursuant to the provisions of this Lease,
shall bear interest at the rate of Eighteen Percent (18%)
per annum from the date payment was due.
In the event the right, title and interest of Lessee in
and to the Demised Premises and this Lease is terminated,
whether by lapse of time or otherwise, the Lessee shall
execute and deliver to Lessor, promptly on demand, all
documents reasonably requested by Lessor to evidence such
termination: including, without limitation, a recordable
release and cancellation of this Lease and a quit claim
deed. The failure of Lessee to so execute and deliver such
documents shall in no way affect the termination of this
Lease and the interest of the Lessee in and to the Demised
Premises.
SEC. 1102. NO WAIVER. No waiver by Lessor of any
default by the Lessee of any of the obligations, agreements,
conditions or covenants on the part of the Lessee to be
fulfilled, kept, observed or performed hereunder shall be a
waiver of any subsequent default or of any other obligation,
agreement, condition or covenant, nor shall any forbearance
by Lessor to seek a remedy for any default by Lessee be a
waiver by Lessor of any of the rights and remedies available
to Lessor hereunder or by law granted or permitted, with
respect to such or any subsequent default.
ARTICLE 12
TRANSFER, ASSIGNMENT, SUBLEASE
SEC. 1201. TRANSFER, ASSIGNMENT, SUBLEASE. The
Lessee may not assign, transfer, mortgage or pledge this
Lease or the interest of the Lessee herein or hereunder or
sublet Demised Premises or any portion thereof, without, in
each case, the prior written consent of the Lessor which
shall not be unreasonably withheld. Any purported
assignment, mortgage, transfer, pledge or sublease without
the prior written consent
of the Lessor which shall not be unreasonably withheld. Any
purported assignment, mortgage, transfer, pledge or sublease
without the prior written consent of Lessor shall be
absolutely null and void and of no legal force or effect.
SEC. 1202. INCREASED RENT TO LESSOR. As a condition
precedent to the approval of any sublease, assignment or any
other type of transfer by the Lessee to any third party of
all or a portion of its interest in and to the Demised
Premises pursuant to the provisions of this Lease, Lessee
agrees that it will pay to the Lessor, contemporaneously
with the rental payments due hereunder, Fifty Percent (50%)
of any increased economic benefit received by Lessee,
including, without limitation, rent in excess of the rent
reserved herein and in the event less than all of the
Demised Premises are so subleased, assigned or transferred
in any way, the Lessee shall pay to the Lessor Fifty Percent
(50%) of any increase in the square foot rate of rent paid
to Lessee by any third party. Lessee shall also increase
any security deposit required hereunder to the amount of a
full month's rent.
The rent that Lessee pays to the Lessor for the purpose
of this, Section 1202. shall be calculated by dividing the
monthly rent reserved herein by the square foot area of the
building located on the Demised Premises as stated
hereinabove.
SEC. 1203. MAINTENANCE, REPAIR, AND RESTORATION UPON
ASSIGNMENT OR SUBLETTING. As a condition precedent to
Lessor's consent to any assignment or subletting of this
Lease or all or any part of the Demised Premises Lessor may
at it's sole discretion require Lessee to undertake any
deferred maintenance and to make all repairs and
restorations which are the obligations of Lessee under this
Lease prior to the effective date of any such assignment or
sublease in the same fashion as could be required at the
expiration of this Lease Term.
SEC. 1204. LESSOR MAY SELL, MORTGAGE, TRANSFER OR
ASSIGN. Lessor shall have the right to sell, mortgage,
pledge, hypothecate or in any other manner transfer or
assign the interest of the Lessor in the Demised Premises
and/or in the Lease, subject to all of the covenants and
conditions of and Lessee's rights under this Lease. The
term "Lessor", as used in this Lease, means only the owner
for the time being of the Demised Premises and in the event
of any sale, conveyance or other transfer of the Demised
Premises, or the interest of Lessor in the Demised Premises,
the Lessor shall upon purchaser's assumption, be and hereby
is entirely freed of all covenants and obligations of Lessor
hereunder arising after the date of such sale, transfer
assignment or conveyance. This Lease shall not be affected
by any such sale and Lessee agrees to attorn to the
purchaser or assignee.
SEC. 1205. SUBORDINATION. This Lease shall be
subject and subordinate to the lien of any mortgage or
mortgages which at any time may be placed upon the Demised
Premises by Lessor, its successors or assigns, and to any
replacements, renewals or extensions thereof, provided that
the holder of the encumbrance agrees to recognize for itself
and its successors, and assigns, Lessee's rights hereunder
notwithstanding any foreclosure. Lessee agrees, at any time
hereafter, on demand, to execute and deliver any
instruments, releases or other documents that may be
required for the purpose of subjecting and subordinating
this Lease to the lien of any such mortgage or mortgages
subject to the provisions set forth above.
SEC. 1204. LESSOR MAY SELL, MORTGAGE, TRANSFER OR
ASSIGN. Lessor shall have the right to sell, mortgage,
pledge, hypothecate or in any other manner transfer or
assign the interest of the Lessor in the Demised Premises
and/or in the Lease, subject to all of the covenants and
conditions of and Lessee's rights under this Lease. The
term "Lessor", as used in this Lease, means only the owner
for the time being of the Demised Premises and in the event
of any sale, conveyance or other transfer of the Demised
Premises, or the interest of Lessor in the Demised Premises,
the Lessor shall upon purchaser's assumption, be and hereby
is entirely freed of all covenants and obligations of Lessor
hereunder arising after the date of such sale, transfer
assignment or conveyance. This Lease shall not be affected
by any such sale and Lessee agrees to attorn to the
purchaser or assignee.
SEC. 1205. SUBORDINATION. This Lease shall be
subject and subordinate to the lien of any mortgage which at
any time may be placed upon the Demised premises by Lessor,
its successors or assigns, and to any replacements, renewals
or extensions thereof, provided that the holder of the
emcumbrance agrees to recognize for itself and its
successors, and assigns, Lessee's rights hereunder
notwithstanding any foreclosure. Lessee agrees, at any time
hereafter, on demand, to execute and deliver any
instruments, releases or other documents that may be
required for the purpose of subjecting and subordinating
this Lease to the lien of any such mortgage or mortgages
subject to the provisions set forth above.
SEC. 1206. LESSEE'S ESTOPPEL LETTER. Lessee agrees
at any time and from time to time upon not less than Ten
(10) days prior written request by Lessor to execute,
acknowledge and deliver to Lessor a statement in writing
certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications that the
same is in full force and effect as modified and stating the
modifications), and the dates to which the basic rent and
other charges have been paid in advance, if any, and all of
the defaults of Lessor hereunder, if any, it being intended
that any such statement delivered pursuant to this Section
may be relied upon by any prospective purchaser of the fee
or mortgagee or assignee of any mortgage upon the fee of the
Demised Premises.
ARTICLE 13
MISCELLANEOUS:
SEC. 1301. NOTICES. Any notice provided for herein
shall be given by registered or certified mail addressed, if
to Lessor, as follows:
Cemanudi Associates
3225 S. Hardy Drive, Suite 105
Tempe, Arizona 85282
with a copy to:
Cemanudi Associates
One First National Plaza
Chicago, Illinois 60603
Attention: Law Department
and if to Lessee, as follows:
Nelco Technology, Inc.
1130 West Geneva Drive
Tempe, Arizona 85282
Attention: President
with a copy to:
Park Electrochemical Corporation
5 Dakota Drive
Lake Success, New York 11042
Attention: General Counsel
SEC. 1302. CHANGE OF ADDRESS. The person and places
to which notices or payments are to be mailed may be
changed, from time to time, by Lessor or Lessee upon written
notice to the other.
SEC. 1303. MODIFICATION. This Lease may be modified
only by written agreement signed by Lessor and Lessee.
SEC. 1304. DESCRIPTIVE HEADINGS. The descriptive
headings and index of this Agreement are inserted for
convenience in reference only and do not constitute a part
of this Agreement.
SEC. 1305. SUCCESSORS AND ASSIGNS. This Lease and
the covenants, terms, conditions and Provisions hereof,
shall be binding upon the respective parties hereto and upon
their respective successors, assigns and personal
representatives and shall inure to the benefit of said
respective parties hereto and their said respective
successors, assigns and personal representatives.
Wherever in this Lease a reference to any of the parties
hereto is made, such reference shall be deemed to include,
wherever applicable and even though not expressly stated,
also a reference to the successors, assigns and personal
representatives of such party, as the case may be, the same
as if in every case expressly stated.
The phrase "successors and assigns" is used in this Lease
in its broadest possible meaning and includes, in addition
to administrators, trustees and conservators; every person,
firm, corporation or other entity succeeding to the interest
in or to this Lease, or any part thereof, or in or to any
real estate, or any part or portion thereof, described or
referred to herein or any part hereto, or of any of the
successors or assigns of any such party, whether such
succession results from the act of a party in interest,
occurs by operation of law or is the effect of the operation
of law together with any act(s) of any such party or
parties.
SEC. 1306. ENTRY TO SHOW PREMISES. Lessor, its
agents or assigns may, from time to time, during the term of
this Lease, and each and every extension hereof after notice
to and in the company of Lessee, enter the Demised Premises
at reasonable times to show the same to prospective buyers
or tenants.
During the last Six (6) months of the term of this Lease
or after the occurrence of any default on the part of the
Lessee hereunder, after notice to and in the company of
Lessee, the Lessor hereby reserves the right to enter the
Demised Premises (and prior to the curing of such default)
and to place, on the outer walls or roof of any building(s)
located thereon and upon any part of the Demised Premises,
outside such building(s), "For Sale" and/or "For Rent" signs
of a type similar to those used in the area. Lessee agrees
not to remove, interfere with, or obstruct the view of any
such sign(s).
SEC. 1307. TIME OF ESSENCE. Time is of the essence
of this Lease and in all of the conditions, obligations,
agreements, provisions, terms and covenants hereof.
SEC. 1308. RESOLUTION. Lessee shall,
contemporaneously with the execution and,delivery of this
Lease, also deliver to Lessor a copy of a Resolution of the
Board of Directors of Lessee, or other evidence satisfactory
to Lessor, specifically authorizing those of Lessee's
officers whose names are subscribed hereto to enter into
this Lease Agreement with the Lessor named herein. Such
Resolution shall make reference to this Lease of the Demised
Premises, lease term and rental reserved, shall be duly
certified to by the Secretary of said Board of Directors and
shall be appended hereto as Schedule 2. Lessor shall,
contemporaneously with the execution and delivery of this
Lease, also deliver to Lessee evidence of Lessor's general
partner's authority to bind Lessor of the officer of
Lessor's general partner who executes this Lease Agreement.
SEC. 1309. UNENFORCEABILITY. In the event any
covenant, term, provision, obligation, agreement or
condition of this Lease is held to be unenforceable at law
it is mutually agreed and understood, by and between the
parties hereto, that the other covenants, terms, provisions,
obligations, agreements and conditions herein contained
shall remain in full force and effect.
SEC. 1310. WAIVER OF TRIAL BY JURY. The Lessee
waives a trial by jury of any or all issues arising in any
action, or proceeding between the parties hereto, or their
successors arising out of, or in any way connected with this
Lease, or any of its provisions the Lessee's use, or
occupancy of the Demised Premises and/or any claim of injury
or damage.
SEC. 1311. GOVERNING LAW. This Lease and the rights
of the parties hereto shall be interpreted and determined in
accordance with the laws of Arizona.
SEC. 1312. ENTIRE AGREEMENT. This Lease contains the
Entire Agreement between the parties respecting the matters
herein set forth and supersedes, all prior agreements
between the parties hereto about such matters.
SEC. 1313. ADDITIONAL TERMS. The Lessor hereby
covenants, represents and warrants as follows:
(a) The Demised Premises consists of approximately
38,311 square feet of land together with a building located
thereon containing approximately 13,995 square feet.
(b) Lessor has not received any notice of any violation
of any zoning ordinances, building codes or other local,
state and federal statutes, codes, ordinances, laws and
regulations and has no knowledge of the existence of any
such violation.
(c) At Lessee's request, Lessor shall promptly execute
and acknowledge and deliver to Lessee Memorandum of this
Lease summarizing the material terms of this Lease.
(d) Lessor's covenants, representations and warranties
shall be true on and as of the date hereof, on and as of
August 31, 1989.
SEC. 1314. EXHIBITS AND SCHEDULES. The following
Exhibits and Schedules are attached hereto and expressly
made a part hereof, to wit:
Exhibit A- Legal Description
Schedule 1- Security Deposit
Schedule 2- Lessee's Board Resolution
Schedule 3- First and Second-Option to Extend Term
IN WITNESS WHEREOF, said Lessor and Lessee have caused
this instrument to be executed by their respective duly
authorized officers, all as of the day and year first above
written.
Cemanudi Associates, Lessor
By CMD Corporation, its General Partner
By /s/ President
ATTEST:
/s/Secretary
NELCO TECHNOLOGY, INC.
By: /s/Robert A. Forcier, President
ATTEST:
/s/Ron Fleming, Secretary
EASEMENT
R/W# 2381 AGT. PRL
COUNTY Maricopa
Parcel MCR 228-38
CMD SOUTHWEST INCORPORATED, an Arizona corporation, for an
in consideration of the sum of One Dollar, and other
valuable consideration, receipt of which is hereby
acknowledged, do hereby grant to the Salt River Project
Agricultural Improvement and Power District, a political
subdivision of the State of Arizona, its successors and
assigns, the non-exclusive right, easement and privilege to
construct, operate and maintain underground electrical
conduits, together with its manholes, transformer pads and
vaults and other appurtenances through, over, under and
across the following described property:
The East 162 feet of Lot 9 of BROADWAY INDUSTRIAL
PARK UNIT 4-A, as recorded in Book 228 of Maps, page
38, Maricopa County, Arizona.
Said easement being 7.0 feet in width,
3.5 feet on each side of the following
described centerline:
Commencing at the Southeast corner of
said Lot 9; thence North 89 degrees 53',
53" West (assumed bearing) along the South
line thereof, a distance of 70.5 feet;
thence North 16 degrees 13' 47" East a
distance of 8.0 feet to the TRUE POINT OF
BEGINNING of the easement herein described;
thence continue North 16 degrees 13' 47"
East a distance of 103.7 feet; thence North
03 degrees 41' 27" East a distance of 103.3
feet; thence South 88 degrees 37' 07" West
a distance of 13.0 feet to a terminus:
Caution: The above described easement contains high voltage
electrical equipment and notice is hereby given that the
location of underground electrical conduits may vary from
the locations indicated in the above description, therefore
all persons who may excavate in the area must accordingly
proceed with caution.
The GRANTEE shall at all times have the right of full and
free ingress and egress to said easement for the purpose
heretofore specified, and the right to permit other utility
companies to use the right of way jointly with the Grantee
for their utility purposes.
In the event the right, privilege and easement herein
granted shall be abandoned and permanently cease to be used
for the purpose herein granted, all rights herein granted
shall cease and revert to the grantors, their heirs or
assigns.
The covenants and agreements herein set forth shall
extend and inure in favor and to the benefit of and shall be
binding on the heirs, successors in ownership and estate,
assigns and lessees of the respective parties hereto.
IN WITNESS WHEREOF, CMD SOUTHWEST INCORPORATED, an Arizona
corporation
has caused its corporate name to be signed and its corporate
seal to be affixed by the undersigned officers thereunto
duly authorized, this 24th day of August, 1981.
/s/ President
State of Arizona
County of Maricopa
CERTIFICATE OF RESOLUTION
OF
NELCO TECHNOLOGY, INC.
The undersigned, Harry Linzer, Secretary of NELCO
TECHNOLOGY, INC., an Arizona corporation (hereinafter
referred to as the "Corporation"), hereby certifies that the
following resolutions were duly and regularly passed and
adopted in all respects as required by law and the Bylaws of
the Corporation, and that such resolutions are still in full
force and effect and have not been revoked:
RESOLVED, that the Corporation should, and it hereby
does, approve that certain Lease by and between
Cemanudi Associates, an Illinois limited partnership,
as Lessor, and the Corporation, as Lessee, for
approximately 38,311 square feet of land, together
with a building located thereon containing
approximately 13,995 square feet, commonly known as
1104 West Geneva Drive, Tempe, Arizona 85282; and
FURTHER RESOLVED, that Robert A. Forcier, President
of the Corporation, should be acting alone hereby is,
authorized to execute said Lease on behalf of the
Corporation.
IN WITNESS WHEREOF, the undersigned has signed his name as
Secretary of the Corporation on this 1st day of September,
1989.
Harry Linzer
Secretary
SCHEDULE 1
SECURITY DEPOSIT:
Lessee has deposited the sum of Five Thousand Dollars
($5,000) with the Lessor as security for the full and
faithful performance by the Lessee of the terms of this
Lease. It is agreed that in the event Lessee defaults in
respect of any of the terms, provisions and conditions of
this Lease, including, but not limited to, the payment of
rent and additional rent, Lessor may use, apply or retain
the whole or any part of the security so deposited to the
extent required for the payment of any rent and additional
rent or any other sum as to which Lessee is in default or
for any sum which Lessor may reasonably expend or may be
reasonably required to expend by reason of Lessee's default
in respect of any of the terms, covenants and conditions of
this Lease, including, but not limited to, any damages or
deficiency accrued before or after summary proceedings or
other re-entry by Lessor.
In the event that Lessee shall fully and faithfully
comply with the terms, provisions, covenants and conditions
of the Lease, the security shall be returned to Lessee
promptly after the date fixed as the end of the Lease Term
and after delivery of the entire possession of the Demised
Premises to Lessor.
In the event of a sale of the demised premises, Lessor
then has the right to transfer the security to the
purchaser, and upon the purchaser's assumption Lessor shall
thereupon be released by Lessee from all liability for
return of such security and Lessee agrees to look to the new
Lessor solely for return of said security.
SCHEDULE 2
LESSEE'S BOARD RESOLUTION
[To be inserted by Lessee]
SCHEDULE 3
FIRST OPTION TO EXTEND TERM
Lessee, at its option, may extend the term of this Lease
for an additional Five (5) years by delivering irrevocable
written notice thereof upon the Lessor at lease Six (6)
Months prior to the expiration of the then existing Lease
Term, and upon delivery of said notice, the term of this
Lease shall be extended for said additional period upon the
same terms without further action of the parties; subject,
however, to the further provisions of this schedule.
RENTAL DURING FIRST EXTENSION OF TERM:
In the event the original term of this Lease is extended
as hereinabove provided, the Annual Net Basic Rent during
the first three (3) years of the extended term will be the
greater of the following:
(a) The Annual Net Basic Rent during the last two
(2) years of the original Lease term; or
(b) An amount equal to the product of Sixty-three
Thousand Eight Hundred Seventeen and 20/100 Dollars
($63,817.20) multiplied by a fraction which has as
its denominator the United States All Item Consumer
Price Index (1982-1984 = 100), All Urban Consumer
Section, issued by the Bureau of Labor Statistics,
U.S. Department of Labor (hereinafter the "CPI-U")
published for the month immediately prior to the
beginning of the original term of this Lease and,
as its numerator said Index published for the month
immediately prior to the commencement date of said
extension;
In the event the original term of this Lease is extended
as herein provided, the Annual Net Basic Rent during the
last two (2) years of the extended term will be the greater
of the following:
(c) The Annual Net Basic Rent during the first
three (3) years of the extended term; or
(d) An amount calculated by the following formula:
(A)x(.50)x{(B/C)-1.00}+(A) = Annual Basic Rent during the
last two (2) year of extended
term of Lease.
where A =The amount described in preceding
subparagraphs (a) or (b) whichever is greater;
where B =The CPI-U published for the period
immediately prior to the commencement date of
the last two year period of the extended term.
where C =The CPI-U published for the period
immediately prior to the commencement date of
the Five year extended term.
All such Annual Net Basic Rent due to be paid during any
and all extensions of the original Lease Term shall be paid
in equal monthly installments, in advance, in the same
manner as the rent paid during the original Term of this
Lease.
In the event that the Index hereinabove referred to
ceases to incorporate a significant number of items
contained therein in the Index last published prior to the
commencement date of the original term of this Lease, or if
a substantial change is made in the method of establishing
such Index, then the Index shall be adjusted to the figure
that would have resulted had no change occurred in the
manner of computing such Index. In the event that such
Index (or a successor or substitute Index) is not available,
a reliable governmental or other non-partisan publication
evaluating the information theretofore used in determining
the Index, shall be used in lieu of such Index.
SECOND OPTION TO EXTEND TERM:
Provided Lessee has validly exercised the First Option to
Extend Term hereinabove described, Lessee at its option, may
extend the term of this Lease for a second, additional Five
(5) years by delivering irrevocable written notice thereof
upon the Lessor at lease Six (6) months prior to the
expiration of the first Five year extension of the Lease
Term, and upon delivery of said notice, the term of this
Lease shall be extended for said additional period upon the
same terms without further action of the parties, subject,
however to the further provisions of this Schedule.
RENTAL DURING SECOND EXTENSION OF TERM:
The Annual Net Basic Rent due to be paid to Lessor for
said Demised Premises during the first Three (3) years of
the second option to extend shall be the "Market Rental, as
that term is hereinafter defined. The Market Rental will be
equal to the product of 13,995 multiplied by the market rate
of rent per square foot for comparable warehouse/office
space for a comparable lease term on the commencement date
of the option term (hereinafter referred to as "Market
Rate"). The Market Rate will be determined as hereinafter
set forth without regard to (a) the rate of rent Lessee is
then paying for the Demised Premises, and (b) the value of
Lessee's improvements and trade fixtures. In the event
Lessee desires to consider exercising its second option to
extend as set forth in this Schedule, Lessee shall submit to
Lessor nine (9) months prior to the expiration of the then
existing lease term, a written statement setting forth the
Lessee's proposed Market Rate, which statement shall include
the method used and assumptions made in arriving at such a
rate. Lessor shall within twenty (20) days of receipt of
the statement accept or reject the same or submit a revised
statement of Market Rate which statement shall include the
method used and assumptions made in arriving at such a rate.
If Lessor accepts Lessee's statement of Market Rate, Market
Rate shall be determined as set forth therein and Lessee
shall, in the event it exercises its option to extend, pay
to Lessor during the first Three (3) years of the second
option to extend, Annual Net Basic Rent equal to the product
of Market Rate times 13,995 square feet. If Lessor elects
to submit a revised statement, Lessee shall within ten (10)
days of receipt thereof either accept or reject the same.
If Lessee accepts Lessor's revised statement of Market Rate,
Market Rate shall be determined as set forth therein and
Lessee shall, in the event it exercises its option to
extend, pay to Lessor Annual Net Basic Rent determined as
set forth above in this paragraph. If, however, Lessor
rejects Lessee's statement of Market Rate or Lessee rejects
Lessor's revised statement of Market Rate, the rejecting
party shall name and appoint an independent M.A.I. appraiser
and give written notice thereof to the non-rejecting party
within five (5) days of the date of such rejection. The non-
rejecting party shall, within five (5) days of the receipt
of said notice of rejection, name and appoint another
appraiser and give the rejecting party written notice
thereof. Thereafter, said appraisers shall select a third
appraiser. If said appraisers are unable to agree on the
selection of a third appraiser within five (5) days, they
shall jointly petition the Superior Court of the County of
Maricopa, Arizona, for the appointment of a third appraiser.
Thereupon, the said appraisers shall independently determine
the market rate for leasing the Demised Premises. Their
respective written reports of Market Rate shall be submitted
to Lessor and Lessee not later than seven (7) months prior
to the expiration of the then term or on such later date as
Lessor and Lessee may mutually agree. Upon delivery of the
aforesaid written reports of value, and Market Rate
shall be computed as follows: (a) average the three
appraisals and disregard the appraisal which deviates the
greatest from the average; and (b) average the two remaining
appraisals. The average of the two remaining appraisals
shall constitute the Market Rate and shall be binding upon
the Lessor and Lessee. In the event Lessee then exercises
its option to extend, the exercise of which shall take
place, if at all, at lease six (6) months prior to the
expiration of the then existing lease term, Lessee shall pay
to Lessor during the first three (3) years of the second
option to extend Annual Net Basic Rent equal to the product
of Market Rate times 13,995 square feet. The Lessor and
Lessee shall each bear the fees, costs and expenses of the
appraiser selected by it, and the fees, costs and expenses
of the appraiser appointed by the parties' appraisers shall
be shared equally by Lessor and Lessee. Either party's
failure to fully comply in a timely fashion with the
provisions regarding determination of Market Rate shall be
deemed an abandonment of this method of determining rental,
and the Market Rate shall be determined solely by the non-
defaulting party's appraiser. Thereafter, the Annual Net
Basic Rent to be paid for the Demised Premises during the
fourth and fifth years of the second option to extend shall
be the greater of the following:
(a) The Market Rental (as determined hereinabove);
or
(b) An amount calculated by the following formula:
(A)x(.50)x{(B/C)-1.00}+(A) = Annual Basic Rent during the
last two
(2) year of second extended term of
Lease.
where A =The Annual Net Basic Rent during the
first three (3) years of the second extended
term.
where B =The CPI-U published for the period
immediately prior to the commencement date of
the last two year period of the second
extended term.
where C =The CPI-U published for the period
immediately prior to the commencement date of
the second Five year extended term.
In the event that the Price Index hereinabove referred to
ceases to incorporate a significant number of items
contained in the Index last published prior, or if a
substantial change is made in the method of establishing
such Index, then the Index shall be adjusted to the figure
that would have resulted had no change occurred in the
manner of computing such Index. In the event that such
Index (or a successor or substitute Index) is not available,
a reliable governmental or other non-partisan publication
evaluating the information theretofore used in determining
the Index, shall be used in lieu of such Index.
All such rental required herein shall be paid in then
lawful money of the United States of America in equal
monthly installments; one installment to be paid upon the
first day of each and every calendar month during the term
hereof to the Lessor at such place as may, from time to
time, be designated by them; and in the absence of such
designation, at the last known office of the Lessor in
Tempe, Arizona.
RESTRICTIONS ON OPTION:
Lessee may not exercise an Option if Lessee is in any way
in default of any of the terms, conditions or covenants
contained in this Lease beyond an applicable cure period,
and the occurrence of any default by Lessee from and after
the date of notice of exercise of an Option and Lessee's
subsequent failure to cure said default within the
applicable period, shall result in the immediate termination
forever of the Options, and all rights of Lessee as set
forth in this Schedule without further action of the parties
and all without prejudice to the other rights of Lessor.
The Options are for the sole benefit of the above named
Lessee and shall automatically terminate upon any assignment
of this Lease, sublease of the Demised Premises, or other
transfer of this Lease and/or the rights of Lessee,
provided, however, that Lessee shall have the right to
exercise only the next available option to extend the term
an additional five (5) years in the event Lessee assigns or
subleases this Lease, pursuant to the provisions of SEC.
1201, subject however, to the following terms and
conditions:
1) This right to exercise one (1) option to extend
the term in the event of an assignment or sublease
is a one time right, and shall not be applicable in
the event of any subsequent assignments or
subleases;
2) Notwithstanding the provisions of Article 3
with regard to determining the Annual Net Basic
Rent, the Annual Net Basic Rent during the extended
term if this option is exercised following an
assignment or sublease, shall be the "Market
Rental", and shall be determined substantially in
accordance with the procedures set forth in this
Schedule 3 for determining Market Rental.
3) Notwithstanding the provisions of SEC.1202, as
a condition precedent to the approval of any
sublease, assignment of any other type of transfer
by the Lessee to any third party of all or a
portion of its interest in and to the Demised
Premises pursuant to the provisions of this Lease,
Lessee agrees that it will pay to the Lessor,
contemporaneously with the rental payments due
during the five (5) year option period, any amounts
Lessee may receive in excess of the Market Rental
as determined aforesaid, and in the event less than
all of the Demised Premises are so subleased,
assigned or transferred in any way, the Lessee
shall pay to the Lessor any increase in the square
foot rate of rent paid to Lessee during this option
period by any third party.
[Exhibis-02-10.08]bd