BUTTERFIELD CENTER LEASE AGREEMENT
FIRST AMENDMENT
(PAGE 1 OF 2)
THIS AMENDMENT, made and entered into this 4TH day of MARCH , 2004, by and
between BUTTERFIELD CENTER LIMITED PARTNERSHIP, an Arizona limited partnership,
hereinafter referred to as "Landlord", and CDEX, INC. hereinafter referred to as
"Tenant".
WITNESSETH:
WHEREAS, the parties hereto have entered into that certain lease dated
March 4 , 2004 (the "Lease"), for those certain premises located at 4565 S. Palo
Verde, Suite 213 , City of Tucson, County of Pima, State of Arizona; and,
WHEREAS, the parties hereto now desire to amend, modify or change certain
portions of said Lease;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties do hereby agree as follows, to wit:
1. PREMISES. Beginning May 1, 2004 the leased Premises shall become the
approximately 3,648 square feet known as 4555 S. Palo Verde Road,
Suites 107/123/125, Tucson, Arizona.
Tenant's Proportionate Share of Operating Costs, Utility Costs and
Taxes shall be 4.66%.
Although the new leased Premises may be available for earlier
occupancy, Tenant shall be obligated to pay Rent only for the
premises known as 4565 S. Palo Verde Road, Suite 213 through April
30, 2004. Thereafter, the obligations for Suite 213 under the Lease
shall terminate subject to Article 11.2(c) therein.
2. TERM. The Term of the Lease shall be extended through April 30,
2009.
3. RENT. The Monthly Base Rent beginning May 1, 2004 shall be $583.68
plus applicable Operating Costs, Utility Costs and Taxes, currently
$875.52, for a total of $1,459.20 per month.
The Monthly Base Rent beginning November 1, 2004 shall be $1,969.92
plus applicable Operating Costs, Utility Costs and Taxes, currently
$875.52, for a total of $2,845.44 per month.
Thereafter, the Monthly Base Rent shall increase by three percent
(3%) annually on November 9th through the remainder of the Term.
4. CANCELLATION: Provided Tenant has fully and faithfully performed its
covenants and obligations under the Lease and is not in default,
Tenant may terminate the Lease as follows:
a. Tenant may terminate the Lease between May 1, 2006 and April
30, 2007 with 180 days prior written notice to Landlord and
payment of a termination fee to Landlord equal to five (5)
months Rent (Monthly Base Rent plus Operating Costs, Utility
Costs and Taxes in effect at the time of termination).
b. Tenant may terminate the Lease between May 1, 2007 and April
30, 2008 with 120 days prior written notice to Landlord and
payment of a termination fee to Landlord equal to four (4)
months Rent (Monthly Base Rent plus Operating Costs, Utility
Costs and Taxes in effect at the time of termination).
c. Tenant may terminate the Lease between May 1, 2008 and April
30, 2009 with 120 days prior written notice to Landlord and
payment of a termination fee to Landlord equal to two (2)
months Rent (Monthly Base Rent plus Operating Costs, Utility
Costs and Taxes in effect at the time of termination).
5. IMPROVEMENTS: Prior to May 1, 2004, Landlord shall deliver to Tenant
the new leased Premises in clean and good operating condition
including all electric, plumbing, HVAC and fixtures. Landlord shall
also improve the Premises [stricken text] according to the attached
space plan B-3(c) and described as follows:
a. Remove and build walls, and add doors as necessary to enlarge
the two front offices and create a storage and computer room.
b. Replace counter and sink in lab room.
c. Prepare vent to roof for installation of laminar flow hood in
lab room.
d. Re-paint Premises throughout.
e. Install new building standard carpet, VCT, and sheet vinyl
(lab room) in the locations, style and color of Tenant's
choice.
[initials] f. Install window film or bulk windows to "black-out" windows.
[handwritten insert]
[initials] g. Ensure adequate phone and network lines and jacks throughout
Premises. [handwritten insert]
[ Initials ] [ Initials ]
Landlord Tenant
BUTTERFIELD CENTER LEASE AGREEMENT
FIRST AMENDMENT
(PAGE 2 OF 2)
6. RIGHT OF FIRST REFUSAL. Provided Tenant has fully and faithfully
performed its obligations under the Lease, Tenant shall have the
right of first refusal to lease the approximately 972 square feet
known as 4555 S. Palo Verde Road, Suite 105, which shall be offered
at the same Rent per square foot, terms and conditions as contained
in the Lease. Tenant shall notify Landlord in writing of its
intention to exercise its right within thirty (30) business days of
receiving notice from Landlord of the opportunity to exercise such
right.
7. RELOCATION ALLOWANCE: Landlord shall provide Tenant a check for
$16,245.00 upon Tenant's occupancy in the new leased Premises.
Except as specifically stated herein, in all other respects all other terms and
conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date
first above written.
"LANDLORD" "TENANT"
BUTTERFIELD CENTER LIMITED PARTNERSHIP CDEX, Inc.
By: Butterfield Center, Inc., Its General Partner By: MALCOLM PHILIPS
---------------
By: /S/ [SIGNATURE ILLEGIBLE] Its: CEO
---------------------------------------------- ---------------
, President
[ Initials ] [Initials]
Landlord Tenant
BUTTERFIELD CENTER LEASE AGREEMNT
TABLE OF CONTENTS
LANDLORD: BUTTERFIELD CENTER LIMITED PARTNERSHIP
--------------------------------------
TENANT: DVNAMIC MANAGEMENT RESOLUTIONS, LLC
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PROJECT: BUTTERFIELD CENTER
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ARTICLE l: PARTIES
1 Parties............................................... 1
ARTICLE 2: PREMISES
2 Parties............................................... 1
ARTICLE 3: TERM
3.1 Term.................................................. 1
3.2 Failure to Give Possession............................ 1
3.3 Holding Over.......................................... 1
3.4 Surrender of Premises................................. 1
ARTICLE 4: USE
4.1 Use................................................... 1-2
4.2 Covenant to Operate................................... 2
4.3 Abandonment........................................... 1
4.4 Compliance With Law................................... 2
4.5 Rules and Regulations................................. 2
4.6 Condition of Premises................................. 2
ARTICLE 5: RENT
5.1 Base Rent............................................. 2
5.2 Additional............................................ 2
5.3 Rent.................................................. 2
5.4 Rent Adjustment....................................... 2
5.5 Rent Paid in Lawful Money of the
United States of America.............................. 2
5.6 Time, Manner, Place for Rent Payment.................. 2-3
5.7 Rental Tax............................................ 3
5.8 Charge for Past Due Obligations....................... 3
ARTICLE 6: SECURITY
6.1 Security Deposit ..................................... 3
6.2 Additional Security ................................. 3
ARTICLE 7: OPERATING COSTS, UTILITY COSTS AND REAL ESTATE TAXES
7.1 Tenant's Share........................................ 3
7.2 Annual Statements 3
7.3 Partial Year Proration................................ 3
7.4 Operating Costs....................................... 4
7.5 Utilities............................................. 4
7.6 Taxes................................................. 4
7.7 Record Keeping........................................ 4-5
ARTICLE 8: INSURANCE; INDEMNITY
8.1 Liability Insurance................................... 5
8.2 Property Insurance.................................... 5
8.3 Tenant's Use Limited By Insurance ,................... 5
8.4 Mutual Waiver of Subrogation.......................... 5
8.5 Tenant's Responsibility............................... 5
8.6 Insurance Policies.................................... 5
8.7 Indemnity
ARTICLE 9: TAXES
9.1 Landlord's Obligation for Real Property Taxes......... 5
9.2 Tenant's Obligation for Taxes......................... 5-6
ARTICLE 10: UTILITIES
10.1 Tenant's Obligation for Utilities..................... 6
10.2 Telecommunications Carrier's Access................... 6
ARTICLE 11: MAINTENANCE, REPAIRS, AND ALTERATIONS
11.1 Landlord's Obligations ,.............................. 6
11.2 Tenant's Obligations.................................. 6-7
11.3 Life-Safety Systems .................................. 7
11.4 Hazardous Substances ................................. 7
11.5 Alterations and Additions ............................ 7-8
ARTICLE 12: DAMAGE OR DESTRUCTION
12.1 Partial Damage - Fully Insured ....................... 8
12.2 Partial Damage - Not fully Insured ................... 8
12.3 Total Destruction .................................... 8
12.4 Damage Near End of Term............................... 8
12.5 Abatement of Rent; Tenant's Remedies.................. 8
12.6 Termination - Advance Payments........................ 8
ARTICLE 13: ASSIGNMENT AND SUBLETTING
13.1 Consent Required...................................... 8
13.2 Requests for Approval................................. 8
13.3 Continued Responsibility ............................. 8
13.4 Recapture Option ..................................... 9
13.5 Direct Lease.......................................... 9
13.6 Shared Proceeds....................................... 9
13.7 Limitations........................................... 9
13.8 No Waiver............................................. 9
13.9 Transfer By Landlord.................................. 9
13.10 Attorney's Fees....................................... 9
ARTICLE 14: DEFAULTS; REMEDIES
14.1 Defaults.............................................. 9
14.2 Remedies.............................................. 9-10
14.3 Default By Landlord................................... 10
ARTICLE 15: PARKING
15 Parking............................................... 10
ARTICLE 16: CONDEMNATION
16 Condemnation.......................................... 10
ARTICLE 17: RELOCATION
17 Relocation............................................ 10
ARTICLE 18: GENERAL PROVISIONS
18.1 Landlord's Liability.................................. 10-11
18.2 Estoppel Certificate.................................. 11
18.3 Subordination......................................... 11
18.4 Notice to Mortgagee................................... 11
18.5 Severability and Captions............................. 11
18.6 Time of Essence....................................... 11
18.7 Notices............................................... 11
18.8 Termination, No Waiver, No Oral Change................ 11-12
18.9 Recording............................................. 12
18.10 Cumulative Remedies................................... 12
18.11 Covenants and Conditions.............................. 12
18.12 Binding Effect; Choice of Law......................... 12
18.13 Attorney's Fees....................................... 12
18.14 Landlord's Access..................................... 12
18.15 Signs and Auctions.................................... 12
18.16 Merger................................................ 12
18.17 Corporate Authority................................... 12
18.18 Rentable Area......................................... 12
18.19 Consent............................................... 12
18.20 Legal Proceedings..................................... 12
18.21 Inability to Perform.................................. 13
18.22 Counterparts.......................................... 13
18.23 Commissions........................................... 13
18.24 Incorporation of Prior Agreements; Amendments......... 13
ARTICLE 19 LANDLORD RELIANCE ON TENANT RELATED INFORMATION
19 Landlord Reliance on Tenant Related Information....... 13
ARTICLE 20 NON-DISCLOSURE
20 Non-Disclosure........................................ 13
EXHIBITS:
Exhibit A: Lease Provisions/Guaranty
Exhibit B: Table of Contents of Exhibit B
B-1: Project Legal Description, Site Plan, Premises
B-3: Improvement Standards
B-3(a): Improvement Standards
B-3(b): Space Plan
BUTTERFIELD CENTER LEASE
ARTICLE 1: PARTIES
1. PARTIES. This Lease is made by and between the Landlord and Tenant
described on the attached Exhibit A. All exhibits referred to in this Lease are
incorporated into this Lease and shall be deemed to be a part of the Lease.
ARTICLE 2: PREMISES
2. PREMISES. Landlord hereby leases to Tenant that certain real property
described on Exhibit A and on Exhibit B (the "Premises") for the term, at the
rental, and upon all the conditions set forth in this Lease. In the event that
Landlord or Tenant shall have an obligation to alter, remodel or improve the
Premises, Exhibit B shall set forth the exact extent and nature of such
obligation. The Premises are part of the real estate project described on
Exhibit B (the "Project").
ARTICLE 3: TERM
3.1 TERM. The term of this Lease and Tenant's obligation to pay Rent
("Rent" is defined in Section 5.3 of this Lease) and other charges due hereunder
shall commence on the "Commencement Date" as set forth on Exhibit A, except:
(a) Where Landlord is to improve the Premises for Tenant's Work, the
Commencement Date shall be the earlier of the following dates:
(i) The date which is the earlier of that determined by the
provisions of Section 5 ("Rental Commencement Date") of
Exhibit B-2(a) or fifteen (15) days after Landlord notifies
Tenant in writing that the improvements to be provided by
Landlord to Tenant as set forth in Exhibit B have been
substantially completed, or
(ii) The date on which Tenant shall open the Premises for business.
(b) Where Tenant is to improve the Premises for itself, the Commencement
Date shall be the date set forth in Section 3 ("Rental Commencement
Date") of Exhibit B-2(a).
A Commencement Date Memorandum shall set forth the Commencement Date
of the Lease, as determined according to the provisions hereof.
Should such Commencement Date not occur on the first day of a calendar
month, the term shall begin on the first day of the next succeeding calendar
month. In that event, Tenant shall pay Rent for the fractional month on a per
diem basis: (calculated on the basis of a thirty [30] day month) until the first
day of the calendar month when the term commences and thereafter Rent shall be
paid as provided herein, For purposes of this Lease, the term month means
calendar month.
3.2 FAILURE TO GIVE POSSESSION. If Landlord shall be unable to give
possession of Premises on the date of the commencement of the term hereof by
reason of the fact that Premises are located in a portion of the Project being
constructed and which has not been sufficiently completed to make Premises ready
for occupancy or by reason of the fact that a certificate of occupancy has not
been procured or for any other reason, or if the Project is not in course of
construction and Landlord is unable to give possession of Premises on the date
of the commencement of the term hereof by reason of the holding over of any
tenant or tenants or for any other reason, or if repairs, alterations,
improvements or decorations of Premises or of the Project or any of the areas
used in connection with the operation of the Project are not completed, any such
delay resulting therefrom shall be deemed excused and Landlord shall not be
subject to any liability for the failure to give possession on said date. Under
such circumstances, the Rent reserved and covenanted to be paid herein shall not
commence until possession of Premises is given or Premises is available for
occupancy by Tenant, unless such delay is the fault of Tenant. No such failure
to give possession on the date of the commencement of the term shall in any way
affect or impair the validity of this Lease or the obligations of Tenant
hereunder, nor shall the same be construed in any way to extend the term of this
Lease. If permission is given to Tenant to enter into the possession of Premises
or to occupy premises other than Premises prior to the date specified as the
commencement of the term of this Lease, such occupancy shall be deemed to be
under all the terms, covenants, conditions, provisions and agreements of this
Lease including, without limitation, Tenant hereby agreeing to pay Rent at the
same rate as though the term of this Lease had commenced. In the event the
Premises are to be delivered in stages, then this provision shall apply to each
stage separately.
3.3 HOLDING OVER. Tenant shall vacate the Premises upon the expiration or
earlier termination of this Lease. Tenant shall reimburse Landlord for and
indemnify Landlord against all damages incurred by Landlord from any delay by
Tenant in vacating the Premises. If Tenant does not vacate the Premises as
provided by this Lease, and Landlord consents in writing to the Tenant's holding
over, then Tenant's occupancy of the Premises shall be a "month-to-month"
tenancy, subject to all of the terms of this Lease applicable to a
month-to-month
tenancy with the exception that the Monthly Base Rent ("Monthly Base Rent" is
defined in Section-5.1 of this Lease) shall be increased on a monthly basis by
fifty percent (50%) and that Tenant shall provide not less than thirty (30) days
written notice prior to terminating its month-to-month tenancy.
3.4 SURRENDER OF PREMISES. On or before the expiration date of Lease,
Tenant and Landlord's representative shall jointly inspect the Premises and
create a Termination Checklist of items which Tenant must repair or replace to
comply with its obligations under the Lease. In the event that Tenant is
unwilling or unavailable to inspect the Premises, Landlord may create the
Termination Checklist and deliver it to Tenant. Tenant shall have two (2) days
to complete the repair or replacement of items on the Termination Checklist. All
items on the Termination Checklist which are not repaired or replaced by Tenant
within such two (2) day period shall be repaired or replaced by Landlord and at
Landlord's discretion and the cost will be either deducted from the Security
Deposit or billed and paid directly by Tenant.
ARTICLE 4: USE
4.1 USE. The Premises shall be used and occupied only for the purpose
stated on Exhibit A (the "Use") and Tenant shall not use or permit the use of
the Premises for any other purpose. Tenant shall, prior to the commencement of
the conduct of business from the Premises, obtain a certificate of occupancy
(the "Certificate of Occupancy") from the appropriate governmental agency having
jurisdiction over occupancy of the Premises. Tenant shall keep the Certificate
of Occupancy in the Premises at all times and immediately deliver a true copy of
the Certificate of Occupancy to Landlord. Tenant shall not at any time use or
occupy or permit the use or occupancy of the Premises in violation of: (a)
Section 8.3 of this Lease, "Tenant's Use Limited By Insurance"; (b) Exhibit C,
"Rules and Regulations"; and (c) Certificates of Occupancy issued for the
Project or Premises; and in the event that any department of the City or County
in which the Project is located or of the State of Arizona shall hereafter at
any time contend or declare that Premises are used for a purpose which is in
violation of such Certificate or Certificates of Occupancy, Tenant shall, upon
five (5) days notice from Landlord or any governmental agency, immediately
discontinue such use of Premises. Failure by Tenant to discontinue such use
after such notice shall be considered a default under this Lease and Landlord
shall have the right to terminate this Lease immediately, and in addition
thereto shall have. the right to exercise any and all rights and privileges and
remedies given to Landlord by and pursuant to the provisions of Article 14,
"Defaults; Remedies". The statement in this Lease of the nature of the business
to be conducted by Tenant in demised Premises shall not be deemed or construed
to constitute a representation or guaranty by Landlord that such business is
lawful or permissible or will continue to be lawful or permissible under any
Certificate of Occupancy issued for the Project or otherwise permitted by law.
Tenant shall not cut or puncture the roof of the Premises nor go on to the
roof of the Premises or the Project nor authorize anyone to cut, puncture or go
on the roof of the Premises or Project without the prior written consent of
Landlord.
Landlord reserves to itself the right to use any Common Areas of the
Project or to license the use of Common Areas to others under terms and
conditions to be determined solely in the discretion of Landlord.
4.2 COVENANT TO OPERATE. As a material inducement to Landlord to enter
into .this Lease, Tenant hereby covenants and agrees to continuously operate
during normal business hours a business in the Premises in conformance with the
Use. Normal hours as used in this section shall mean the usual business hours of
each and every day as is customary for business of like character in the City of
Tucson to be open for business. In addition to the foregoing, Landlord and
Tenant may enter into a written agreement that specifically sets forth the times
and days during which Tenant shall continuously operate its business from the
Premises. Tenant's agreement to operate its business from the Premises shall not
apply during any period that the Premises should be closed and the business of
Tenant temporarily discontinued therein on account of strikes, lockouts or
similar courses beyond the reasonable control of Tenant or closed for up to
three (3) days out of respect to the memory of any deceased officer or employee
of Tenant. Tenant shall keep the Premises adequately stocked with merchandise
and with sufficient sales personnel to care for the patronage and to conduct
business in accordance with sound business practices.
4.3 ABANDONMENT. Tenant shall not vacate or abandon the Premises; and if
Tenant shall abandon, vacate or surrender the Premises or be dispossessed by
process of law or otherwise, any personal property belonging to Tenant and left
on the Premises shall be deemed to be abandoned, at the option of Landlord. In
the event that Landlord shall elect to declare such property abandoned, the
title to such property shall pass to Landlord and Landlord may dispose of such
property without any obligation to Tenant.
4.4 COMPLIANCE WITH LAW. Tenant shall, at Tenant's expense, comply with
all applicable statutes, ordinances, rules, orders and requirements in effect
during the term or any part of the term of this Lease, which shall impose a duty
upon Landlord or Tenant with respect to the use, occupancy or alteration of the
Premises.
4.5 RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the rules and regulations attached to this Lease as Exhibit C (the "Rules and
Regulations") and all reasonable modifications or additions thereto put into
effect by Landlord. Landlord shall not be responsible to Tenant for the
non-observance of the Rules and Regulations by any other tenant or occupant of
the Project. Tenant's obligation to observe and comply with the Rules and
Regulations shall not be diminished by the non-observance of the Rules and
Regulations by any other tenant or occupant of the Project.
4.6 CONDITION OF PREMISES. Tenant acknowledges. that neither Landlord nor
Landlord's agents have made any representation or warranty as to the suitability
of the Premises for the conduct of Tenant's business. Tenant hereby accepts the
Premises in their condition existing as of the date Tenant signed this Lease,
subject to: (a) All applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises; (b)
All the terms of the Landlord and Tenant Work which may be defined on
Exhibit B and all matters disclosed thereby; and (c) By all exhibits attached
hereto.
ARTICLE 5: RENT
5.1 BASE RENT. The Total Base Rent for the Term of this Lease (subject to
the adjustments of Section 5.4) shall be as stated on Exhibit A (the "Total Base
Rent"). The Total Base Rent shall be paid to Landlord in monthly installments as
set forth on Exhibit A (the "Monthly Base Rent"). Total Base Rent and Monthly
Base Rent are sometimes collectively referred to in this Lease as "Base Rent".
5.2 ADDITIONAL RENT. All amounts payable under this Lease, in addition to
the Base Rent, shall be deemed to be additional rent (the "Additional Rent").
Additional Rent shall include, by way of example but not by way of limitation,
Late Charges, Rental Tax and reimbursement by Tenant to Landlord for Operating
Costs, Utility Costs and Real Estate Taxes as provided for in this Lease,
5.3 RENT. Base Rent, Monthly Base Rent and Additional Rent are sometimes
collectively referred to in this Lease as the "Rent".
5.4 RENT ADJUSTMENT. The original Monthly Base Rent (as set forth in this
Lease Exhibit A) shall be increased during the Term of this Lease and as it may
be extended on the first day of each Adjustment Month (as set forth in this
Lease Exhibit A) to an amount which is (stricken text) THREE PERCENT (3 %) over
the Monthly Base. Rent. in the month immediately preceding the Adjustment Month.
5.5 RENT PAID IN LAWFUL MONEY OF THE UNITED STATES OF AMERICA.
(a) All Rent and other sums shall be payable to Landlord at the Landlord's
address stated on Exhibit A or to such other persons or at such other
places as Landlord may designate in writing..
(b) Without notice from Landlord, Monthly Base Rent shall be paid in
advance'on the first day of the month, for each and every month during the
term of this Lease as it may be extended or renewed. Monthly Base Rent for
any period during the term hereof which is for less than one (1) month
shall be a,pro rata portion of the monthly installment.
(c) Additional Rent shall be paid in the manner and at the times set forth
elsewhere in this Lease.
5.7 RENTAL TAX. Tenant shall pay to Landlord any and all excise, privilege
and other taxes (other than net income and estate taxes) levied or assessed by
any federal, state or local authority on the Rent and all other sums received by
Landlord hereunder, and Tenant shall bear any business tax imposed upon Landlord
by any governmental authority which is based or measured in whole or part by
amounts charged or received by Landlord from Tenant. '
5.8 CHARGE FOR PAST DUE OBLIGATIONS. Landlord has made provisions for
paying mortgage payments, utility bills, salaries and other amounts based upon
the prompt payment by Tenant of all Rent and other sums when due. Tenant's
failure to pay such sums when due shall cause loss and injury to Landlord which
shall be difficult to calculate and quantify. Such costs include, but are not
limited to, additional overhead and salary expenses related to following up late
payments, the inconvenience and cost to Landlord of timely performing its own
obligations by obtaining such sums from other sources, and processing and
accounting charges and late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Premises. Therefore, Landlord
and Tenant agree that as liquidated damages, Tenant shall pay to Landlord a late
charge equal to ten percent (10%) of all sums due if such sums are not paid by
5:00 p.m. Mountain Standard Time on the date when they are due. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payment. Acceptance of such late
charge by Landlord shall in no event constitute a waiver of Tenant's default
with respect to such overdue amount, nor prevent Landlord from exercising any of
the other rights and remedies granted hereunder, Time is of the essence and
Landlord shall not be required to provide notice or grace period to Tenant
relating to the payments which Tenant is obligated to make pursuant to this
Lease.
ARTICLE 6: SECURITY
6.1 SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution
hereof the sum set forth on Exhibit A as a security deposit for Tenant's
faithful performance of Tenant's obligations hereunder (the "Security Deposit").
If the Monthly Base Rent shall from time to time increase during the term of
this Lease, Tenant shall deposit with Landlord a sum as an addition to the
Security Deposit equal to the amount of the increase. If Tenant fails to pay
Monthly Base Rent, Additional Rent or other charges when due hereunder, or
otherwise defaults with respect to any provision of this Lease, Landlord may
use, apply or retain all or any portion of the Security Deposit for the payment
of any Rent or other charge in default, or for the payment of any other sum to
which Landlord may become entitled by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer thereby. If
Landlord uses or applies all or any portion of the Security Deposit, Tenant
shall within ten (10) days after written demand therefore deliver to Landlord an
amount sufficient to restore the Security Deposit to the full amount and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the Security Deposit separate from its general
accounts. If Tenant performs all of Tenant's obligations under this Lease, the
Security Deposit, or so much thereof as has not been applied by Landlord, shall
be returned without payment of interest to Tenant (or, at Landlord's option, to
the last assignee, if any, of Tenant's interest hereunder) within thirty (30)
days after the expiration of the term of this Lease.
6.2 ADDITIONAL SECURITY. To secure all of Tenant's obligations to Landlord
hereunder, Tenant hereby grants to Landlord a security
interest in all personal property including equipment, furniture, fixtures and
inventory used, generated or employed in connection with Tenant's business and
located in, on or about the Premises, together with all such personal property
hereafter acquired, and all replacements for and proceeds from all or any part
of such personal property (the "Collateral"). Tenant hereby gives Landlord Power
of Attorney to execute any financing statement or other document necessary or
,appropriate to perfect Landlord's security interest in the Collateral. Upon
default by Tenant of any of its obligations arising hereunder, Landlord shall
have all the rights and remedies before and after default provided for in the
Uniform Commercial Code in force in the State of Arizona as of the date hereof
and, in addition thereto, in conjunction therewith or in substitution for those
rights and remedies, it is agreed that Landlord may, at its discretion and
without notice, enter upon the Premises to take possession of, assemble and
collect the Collateral or to render it unusable. Upon default by Tenant,
Landlord may, at its discretion, require Tenant to assemble the Collateral and
to make it available to Landlord at a place Landlord designates which is
mutually convenient; and written notice mailed to Tenant ten (10) days prior to
the date of public sale of the Collateral or prior to the date after which
private sale of the Collateral will be made shall constitute reasonable notice
of such a sale of the Collateral.
ARTICLE 7: OPERATING COSTS, UTILITY COSTS AND REAL ESTATE TAXES
7.1 TENANT'S SHARE. Tenant shall pay to Landlord, as Additional Rent,
Tenant's Proportionate Share of: a) Operating Costs (defined below in Section
7.4) for each calendar year; and separately, (b) Utility Costs (defined below in
Section 7.5) for each calendar year; and separately, (c) Taxes (defined below in
Section 7.6) for each calendar year. Tenant's Proportionate Share is set forth
on Exhibit A. In this Lease, its Exhibits or Addenda, Operating Costs, Utility
Costs and Taxes are sometimes collectively referred to as "CAM."
7.2 ANNUAL STATEMENTS. From time to time Landlord shall, by written
notice, specify: Landlord's estimate of Tenant's separate obligations (under
Section 7.1) for Operating Costs, for Utility Costs and for Taxes. Tenant shall
pay one-twelfth (1/12) of the estimated annual obligations on the first day of
each calendar month. Within ninety (90) days after the end of each calendar
year, Landlord shall provide to Tenant a written summary of the Operating Costs
for the calendar year (determined on an accrual basis and broken down by
principal categories of expense), a separate written summary of Utility Costs
for the calendar year (determined on an accrual basis and broken down by
principal categories of expense), and a separate written summary of Taxes for
the calendar year. The statement also shall set forth Tenant's Proportionate
Share of Operating Costs, Utility Costs and Taxes and shall show the amounts
paid or refunded, as the case may be, within fifteen (15) days after the
statement is provided. Late delivery of the annual statement of Operating Costs,
Utility Costs and Taxes shall not relieve Tenant of any obligation with respect
to payment of Tenant's Proportionate Share of the Operating Costs, Utility Costs
and Taxes.
7.3 PARTIAL YEAR PROBATION. During the first and last years of the Term,
Tenant's responsibility for Operating Costs, Utility Costs and Taxes shall be
adjusted in the proportion that the number of days of that calendar year during
which the Lease is in effect bears to three hundred sixty (360). Tenant's
obligations under this Article 7 for the payment of Operating Costs, Utility
Costs and Taxes during the Lease Term, including the payment of any deficiency
following receipt of the annual statement under Section 7.2, shall survive the
expiration or termination of this Lease.
7.4 OPERATING COSTS. Operating Costs consist of all expenditures for
operating, maintaining and repairing the Project, except Utility Costs (as
defined in Section 7.5). Operating Costs shall include, without limitation, the
following: (a) Premiums for property, casualty, liability, rent interruption or
other insurance; (b) Salaries, wages and other amounts paid or payable for
personnel including the Project manager, superintendent, operation and
maintenance staff and other employees of Landlord involved in the maintenance
and operation of the Project, including contributions and premiums towards
fringe benefits, unemployment and worker's compensation insurance, pension plan
contributions and similar premiums and contributions and the total charges of
any independent contractors or managers engaged in the repair, care,
maintenance, and cleaning of any portion of the Project; (c) Cleaning of Common
Areas and refuse removal; (d) Landscaping, including irrigating, trimming,
mowing, fertilizing, seeding, replacing plants, and irrigation repair and
replacement including lines, valves and timers; (e) Maintaining, operating,
repairing and replacing components of equipment serving the Common Area; (f)
Maintaining, repairing and replacing all equipment, pipes, ducts and electrical
lines which are directly or indirectly associated with providing air
conditioning to any area of the Project whether or not such area is Common Area
or an area reserved for the exclusive use of any tenant of the Project; (g)
Other items of repair or maintenance of the Project including, without
limitation, roofs, exterior walls, foundations, structure and the sweeping,
striping and sealing of parking areas; (h) The cost of the rental of any
equipment and the cost of supplies used in the maintenance and operation of the
Project; (i) Audit fees and the cost of accounting services incurred in the
preparation of statements referred to in this Lease and financial statements,
and in the computation of the rents and charges payable by tenants of the
Project; (j) Any increase in (1) the rent payable under any ground lease now or
hereafter affecting the real property of which Premises forms a part, or (2) the
interest payable with respect to any permanent financing now or hereafter
affecting the Project which increase results not from a refinancing but solely
from a provision for such increase in the applicable loan documents; (k)
Alterations to the Project or the areas used in connection with the operation of
the Project for life-safety systems and other capital improvements and
replacements together with all costs and interest thereon at.an annual rate
equal to the Improvement Interest Rate (as defined below), all amortized over
their useful life; (1) Such other items as are now or hereafter customarily
included in the cost of managing, operating, maintaining, overhauling and
repairing the Project and the areas used in connection with the operation of the
Project in accordance with now or hereafter accepted accounting or management
principles or practices, including but not limited to reserves for all operating
costs with a useful life greater than one year and the cost of removal, disposal
and recycling costs associated with all fluorescent bulbs as mandated by
governmental laws or regulators; and, the administrative cost and expenses for
telephone, fax, pagers, answering service, postage, supplies, and the
electricity, alarm services and janitorial service for the Project's management
office; and (m) A fee for the management of the Project equal to five percent
(5%) of the Rent (Paragraph 5.3) collected for the Project. Notwithstanding
anything to the contrary in this Section 7.4, "Operating Costs" shall not
include: (a) Amounts reimbursed by other sources, such as insurance proceeds,
equipment warranties, judgments or settlements;
(b) Construction of tenant improvements; (c) Utility Costs; (d) Replacements
(but not repairs) of structural elements; (e) Leasing commissions; (f) General
overhead and administrative expenses of Landlord not directly related to the
operation of the Project; and (g) Costs of negotiating or enforcing leases of
other tenants. The Improvement Interest Rate shall mean a rate equal to four
percent (4%) over the annual prime rate of interest announced publicly by
Citibank, N.A. in New York, New York, and in effect at the time when the
alteration, replacement or capital improvement was completed.
7.5 UTILITIES. "Utility Costs" shall mean the total cost of supplying the
Utilities to the Project including taxes thereon.. "Utilities" shall mean all
gas, electric, heat, light, water, phone, cable television or other utilities
used or to be used at the Project. Utility Costs shall include: a) Repairs
associated with the delivery and distribution of Utilities, and b) The cost of
capital improvements, alterations and replacements to Utility systems installed
after the base year, together with all associated costs and interest thereon at
an annual rate equal to the Improvement Interest Rate (as defined in Section
7.4), all amortized over their useful life; except that, any such capital costs
(and the interest thereon) incurred in connection with improvements, alterations
and replacements for Utility conservation systems or devices may be amortized at
a yearly rate equal to the cost savings realized during such period as a result
of such improvement, alteration and replacement. Notwithstanding anything to the
contrary in this Section 7.5, "Utility Costs" shall not include: (a) Amounts
reimbursed by other sources; or (b) Utilities or other expenses paid directly
by, tenants to suppliers or paid by tenants to Landlord for separately metered
or special services.
7.6 TAXES. "Taxes" shall mean taxes and assessments upon or with respect
to the Project and the areas' used in connection with the operation of the
Project imposed by federal, state or local governments or governmental
assessment distrii6ts, but shall not include income, franchise, capital stock,
estate or inheritance taxes, but shall include gross receipts taxes and other
business taxes. If, because of any change in the method of taxation of real
estate, any tax or assessment is imposed upon Landlord or upon the owner of the
land and/or the Project and/or the areas used in connection with the operation
of the Project or upon or with respect to the land and/or the Project and/or the
areas used in connection with the operation of the Project or the rents or
income therefrom, in substitution for or in lieu of any tax or assessment which
would otherwise be a real estate tax or assessment subject matter, such other
tax or assessment shall be deemed to be included in Taxes. All costs incurred by
Landlord relating to the appeal or protest of real estate taxes, assessments, or
valuations shall be included in the most current calculation of real. property
tax costs when incurred and all savings received from such appeals or protests
shall be applied to reduce real property tax costs when received.
7.7 RECORD KEEPING. The Landlord shall keep complete and accurate records
and accounts of all Operating Costs, Utility Costs, and Taxes for a period not
to exceed 24 months. Only within 24 months of the date Tenant. receives a bill
pursuant to Section 7.2 Tenant may, upon 30 days advance written notice,
request. an inspection of the records which support the specific charges
questioned by such notice. At no cost to Tenant, Landlord shall, during regular
btisiriesshours, provide.Tenant the opportunity to examine and inspect the
records which support the charges billed to Tenant pursuant to Section 7.2 (the
"Audit"); Such Audit shall occur at such place designated by Landlord that does
not disrupt or interfere with Landlord's conduct of its business.
Notwithstanding the foregoing, Tenant may only conduct an Audit after
Tenant and Tenant's representatives engaged in the Audit ("Auditors") agree in
writing (the "Audit Agreement"): (a) to not compensate an Auditor on a
contingency basis where the amount of compensation paid to the Auditor is a
function of the Tenant's recoveries in an audit (b) to keep all matters which
are the subject of the Audit strictly confidential and (c) to indemnify and hold
Landlord harmless from any cost or expense caused by any failure to keep such
information confidential.
Notwithstanding the foregoing, Tenant shall have no right to Audit any of
Landlords books or records if Tenant is in default under the Audit Agreement or
in the performance of any of its obligations under the Lease. Should Tenant wish
to Audit any charges which are currently due. Tenant must first pay such charges
under protest before Tenant may request an Audit of the books and records which
support such charges.
Tenant may request Landlord to make copies of specific documents for
Tenant to keep at a charge of $.25 per sheet copied, said amount to be paid in
advance at the time of such request. In the event Tenant requests meetings with
Landlord which cumulatively exceed two hours, then Tenant shall pay the
reasonable cost of the Landlord's personnel involved in such meetings which
shall be not less than $25 per hour. Payment for such meetings shall be made in
advance at the time of such request. Tenant shall forward to Landlord all of
Tenant's audit reports upon their completion. If Tenant's audit shall disclose
an inaccuracy greater than 5% with respect to the amounts billed to Tenant
pursuant to Section 7.2, then Landlord shall refund to Tenant the amounts paid
by Tenant to Landlord for copies and the amounts paid by Tenant to Landlord for
meetings. In the event of any inaccuracy, Tenant or Landlord, as the case may
be, shall pay to the other any amounts due.
ARTICLE 8: INSURANCE; INDEMNITY
8.1 LIABILITY INSURANCE. Tenant shall, at Tenant's. expense, obtain and
keep in force, during the term of this Lease, a policy of Comprehensive General
Liability Insurance naming Landlord, owner (if owner is other than Landlord),
and Landlord's lender as additional insureds. The minimum limit of liability
shall be $1,000,000 combined single limit for bodily injury and property damage
with a $2,000,000 aggregate limit. This policy should be an "occurrence form"
policy. Tenants whose operations include the service or retail sales of
alcoholic beverages shall also provide Landlord with evidence of liquor legal
liability insurance with amounts not less than $1,000,000 per occurrence. All
required liability insurance shall name Landlord, owner (if owner is other than
Landlord), and Landlord's lender as additional name insureds and shall state
that Tenant's coverage is primary of any similar coverage maintained by
Landlord, owner or Landlord's
lender. If Tenant shall fail to procure and maintain said insurance, Landlord
may, but is not required to, procure and maintain the same at the expense of
Tenant. If Landlord provides such insurance, the.cost plus a service charge of
10% shall be payable as Additional Rent with the Tenant's next rental payment.
Landlord will require Tenant to provide evidence of the insurance coverage
outlined above before occupying the Premises.
8.2 PROPERTY INSURANCE. Landlord shall keep in force during the term of
this Lease a. policy of insurance covering Premises with a "special" causes of
loss form. Tenant shall reimburse Landlord for such insurance pursuant to
Article 7 "Operating Cost, Utility Costs and Real Estate Taxes". Tenant shall be
responsible to insure at full replacement value and naming Landlord as
additional insured, any personal property of Landlord leased to Tenant in
connection with Tenant's lease of the Premises and any other personal property,
including improvements and betterments placed in or on the Premises by Tenant
and at full replacement value, all glass, windows, doors door frames and locks
which comprise a part of the Premises. Tenant assumes full responsibility for
protecting, safeguarding and insuring its personal property maintained in or
about the Premises. Landlord recommends that Tenant install and maintain a
monitored burglar alarm system. Tenant waives all claims against Landlord for
any damage or loss to Tenant's property required to be insured by Tenant
pursuant to this paragraph.
8.3 TENANT'S USE LIMITED BY INSURANCE. Tenant shall not use the Premises,
or any part thereof, for any purposes other than the purposes for which Premises
are leased as stated in Section 4.1 Activities by Tenant on the Premises which
would increase the cost of insurance or cause cancellation of any insurance
covering the building is prohibited. Tenant will not sell or permit to be kept,
used or sold in or about the Premises any article which may be prohibited by
standard property insurance policies. Tenant will, at his sole cost, comply with
any and all requirements of any insurance company pertaining to the use of the
Premises in order to maintain property and liability coverages as established by
Landlord's insurance company. In the event the Tenant's use of the Premises
results in a cost increase of insurance for the Landlord, the Tenant shall pay
annually in advance on the anniversary date of this Lease, as Additional Rent,
the cost of the additional premium.
8.4 MUTUAL WAIVER OF SUBROGATION. Landlord waives any and all rights of
recovery against Tenant for damage to or destruction of the Project or Premises
from any cause insured against under the Landlord's insurance policy required in
Section 8.2, but only to the extent of the coverage provided by said policy.
Tenant waives any and all rights of recovery against Landlord for damage to or
destruction of any property of Tenant, from causes insured against under the
Tenant's insurance policy required within Section 8.2., but only to the extent
of the coverage required by said policy. Landlord and Tenant represent that
their present insurance policy now in force permit waiver of subrogation.
8.5 TENANT'S RESPONSIBILITY. Tenant shall carry such business interruption
insurance as is reasonable for the nature and type of Tenant's business. Tenant
agrees that Landlord shall not be liable for injury to Tenant's business or any
loss of income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers or any other person
in or about Tenant's Premises. Tenant agrees Landlord shall not be liable for
any damage to Tenant's property arising from any act or neglect of another
tenant of the PROJECT.
8.6 INSURANCE POLICIES. Insurance required hereunder shall be in companies
rated an ".`A" or above in "Best's" Insurance Reports. Tenant will deliver to
the Landlord prior to Tenant's occupancy a certificate of insurance for
coverages required under Article 8. The insurance policies required under
Article 8 shall provide that they' will not be canceled .without thirty, (30)
days prior written notice to Landlord. Tenant will furnish Landlord with renewal
certificates of insurance 30 days prior to expiration of Tenant's policies or
Landlord may order such insurance and charge the cost thereof to Tenant in .the
manner set forth in Section 8.1. "Liability Insurance".
8.7 INDEMNITY. Subject to paragraph 8.4, to the fullest extent permitted
by law, the Tenant agrees to indemnify, defend, and hold harmless Landlord,
owner and their agents, officers and employees from and against any and all
loss, damage or claim including reasonable attorney's fees and costs of
investigation arising from Tenant's use of the Premises or from the conduct of
Tenant's business or from any activity, work or things done, permitted or
suffered by Tenant in or about the Premises and the Project. Tenant shall
further indemnify and hold harmless and defend Landlord from and against any and
all loss, damage or claim arising 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 from any negligence of the Tenant or any of Tenant's invitees,
agents, contractors or employees and from and against all costs, attorney's
fees, expenses and liability incurred in the defense of any such claim or any
action or proceeding brought thereon.
ARTICLE 9: TAXES
9.1 LANDLORD'S OBLIGATION FOR REAL PROPERTY TAXES. Landlord shall be
responsible for paying real property taxes and assessments applicable to the
Premises, subject to Tenant's obligation to reimburse Landlord pursuant to
Article 7, "Operating Costs, Utility Costs and Real Estate Taxes".
9.2 TENANT'S OBLIGATION FOR TAXES.
(a) Tenant shall pay before delinquent all taxes levied against
trade fixtures, furnishings, equipment, improvements and all other personal
property located on or about the Premises, including all personal property owned
by Landlord and leased to Tenant pursuant to the terms of this Lease. Tenant
shall attempted to have the trade fixtures, furnishings, fixtures, equipment and
all other personal property assessed separately from the real property and
billed directly to Tenant. If any personal property is assessed with the real
property, Tenant
shall pay Landlord the taxes attributable to the personal property within thirty
(30) days after demand by Landlord containing a written statement showing the
taxes on the personal property.
(b) Tenant agrees to pay all taxes except income tax which may be
levied or assessed upon any Rent payment made by Tenant or
Landlord.
(c) Tenant shall reimburse Landlord for Taxes as provided in
Article 7, "Operating Costs, Utility Costs and Real Estate
Taxes".
(d) Landlord's failure to notify Tenant within the time period
referenced above to pay its proportionate share of the Taxes _
specified in subparagraphs (a), (b) and (c) shall not serve as
a waiver by Landlord of these amounts.
ARTICLE 10: UTILITIES
10.1 TENANT'S OBLIGATION FOR UTILITIES. Tenant shall pay for all gas,
heat, light, power, telephone and other utilities and services supplied to the
Premises, together with any taxes thereon. Tenant shall reimburse Landlord for
Utility Costs as provided in Article 7, "Operating Costs, Utility Costs and Real
Estate Taxes". During the term of this Lease, Tenant shall cause the Premises to
be served continuously by means of an active account with a licensed provider of
electricity. Failure to maintain an active connection with such a provider of
electricity shall be a default under the Lease.
10.2 TELECOMMUNICATIONS CARRIER'S ACCESS.
(a) GRANTER OF CARRIER'S LICENSE. Tenant's right to select and
utilize a telecommunications and data carrier (the "Carrier")
shall be conditioned on the execution by such Carrier of:_
(i) a license agreement, in a form acceptable to Landlord,
at its absolute discretion, pursuant to which Landlord
shall grant to the Carrier a license (which shall be
coextensive with the rights and privileges granted to
Tenant under this Lease) to install, operate, maintain,
repair, replace, and remove cable and related equipment
within the Premises and vertical and horizontal pathways
outside of the Premises that are necessary to provide
telecommunications and data services to Tenant at the
Premises, as well as to hold Landlord harmless in those
services.
(b) NO EXCLUSIVE RIGHTS. The license contemplated herein to be
granted to the Carrier shall permit the Carrier to provide
services only to Tenant and not to any other tenants or
occupants of the Building and shall require all of the
Carrier's equipment (other than connecting wiring) to be
located in the Tenant's Premises. The License shall not grant
an exclusive right to Tenant or to the Carrier. Landlord
reserves the right, at its sole discretion, to grant, renew,
or extend licenses to other telecommunications and data
carriers for the purposes of locating telecommunications
equipment in the Building which may serve Tenant or other
tenants in the Building.
(c) NO GREATER RIGHTS. Except to the extent expressly set forth
herein, nothing herein shall grant to the Carrier any greater
rights or privileges than Tenant is granted pursuant to the
terms of this Lease or diminish Tenant's obligations or
Landlord's rights hereunder.
(d) TENANT ENSURES CARRIER'S COMPLIANCE. Tenant shall be
responsible for ensuring that the Carrier complies with the
terms and conditions of the license agreement relating to the
use of the Premises or the making of any physical Alterations
imposed upon Tenant under this Lease to the extent the Carrier
operates or maintains any equipment or delivers any services
in the Premises. Any failure by the Carrier to observe and
comply with such terms, conditions, agreement, and covenants
on behalf of Tenant, to the extent the Carrier operates or
maintains any equipment or delivers any services in the
Premises or the Licensed Areas, shall be a default under the
Lease.
ARTICLE 11: MAINTENANCE, REPAIRS, AND ALTERATIONS
11.1 LANDLORD'S OBLIGATIONS. Landlord shall maintain the air conditioning
units and/or evaporative coolers that serve the Premises. Subject to the
provisions of Article 12, "Damage or Destruction", and except for damage caused
by any negligent or intentional act or omission of Tenant, Tenant's agents,
employees or invitees, Landlord shall keep in good order, condition and repair
the foundations, exterior walls and the exterior roof of the Premises. Landlord
shall have no obligation to make repairs under this Section until a reasonable
time after Landlord receives a written notice of the need for such repairs.
Tenant expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs or to terminate
this Lease because of Landlord's failure to keep the Premises in good order,
condition and repair. Except as provided in Section 12.5, "Abatement of Rent;
Tenant's Remedies", there shall be no abatement of Rent and no liability of
Landlord by reason of any injury or interference with Tenant's business arising
from making of repairs, alterations or improvements to the Project. Tenant shall
reimburse Landlord for the repairs and maintenance set forth in this Section
11.1 as provided in Article 7, "Operating Costs, Utility Costs and Real Estate
Taxes".
11.2 TENANT'S OBLIGATIONS.
(a) Subject to the provisions of Article 12, "Damage or Destruction",
Section 11.1, "Landlord's Obligations", and Section 7.4, "Operating
Costs", Tenant, at Tenant's expense, shall keep in good order,
condition and repair the Premises and every part thereof (regardless
of whether the damaged portion of the Premises or the means of
repairing the same are accessible to Tenant) including, without
limiting the generality of the foregoing, all plumbing, ventilating,
electrical and lighting facilities and equipment which exclusively
serves the Premises; and all fixtures, interior walls and interior
surface of exterior walls, ceilings, windows, locks, doors, door
frames, plate glass and: skylights which are part of the Premises.
Tenant shall repair any and all damage to any portion of the
Premises caused by vandalism or burglary, or any intentional or.
negligent act or omission of Tenant; Tenant's agents, employees or
invitees. Tenant's obligations under this Section shall include the
obligation to maintain, repair and replace anywhere within the
Project that portion of any sewer line, water line, gas line,
electrical distribution system and telephone line which exclusively
serves the Premises. Tenant shall, at Tenant's expense, provide
janitorial services to the Premises including, without limitation,
the regular cleaning of carpets, floors and windows and the
replacement of light bulbs, air conditioning filters and restroom
supplies. In the event that Tenant operates a business from the
Premises which requires grease traps and/or roof mounted- exhaust
fans, Tenant shall, at its own expense, enter into and maintain a
service contract with a vendor approved by Landlord for the
maintenance of the grease traps and the sewer lines leading from the
grease trap to the public sewer system and for the maintenance of
the roof mounted exhaust fans (the "Service Contract"). The Service
Contract shall contain such provisions as Landlord deems reasonably
necessary to assure that the grease traps and the sewer lines
leading from it to the public sewer system will operate without
interruption in trouble free manner and that the roof mounted
exhaust fans will be maintained on a regular basis and that the roof
around the fans will remain clean. Landlord shall be named as a
third party beneficiary of the Service Contract and the Service
Contract shall provide that Landlord shall be given 30 days written
notice before it is terminated for any reason. Service Contractor
shall provide Landlord a Certificate of Insurance for $1 million in
liability insurance naming Landlord as Additional Insured.
(b) Tenant shall pay its Proportionate Share for the maintenance, repair
or replacement of all air-conditioning, cooling and heating
equipment or systems which serve the Project (including the
Premises) pursuant to Article 7, "Operating Costs, Utility Costs and
Real Estate Taxes".
(c) On the last day of the term of this Lease or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the
same condition as received, broom clean, ordinary wear and tear
excepted. Tenant shall repair any damage to the Premises occasioned
by the removal of its trade fixtures, furnishings and equipment;
which repair shall include the patching and filling of holes and
repair of structural damage. Tenant shall repair or replace silver
insulation in warehouse, where applicable. Tenant shall also leave
in good repair and condition the electrical (including light bulbs)
systems and fixtures and plumbing systems and fixtures of the
Premises.
11.3 LIFE-SAFETY SYSTEMS. If there now is or shall be installed in the
Project a sprinkler system, heat or smoke detection systems or any other so
called life-safety system and any such system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants; employees, contractors, visitors
or licensees, Tenant shall forthwith restore the same to good working condition;
and if the Insurance Services Office 'or any other similar body or any bureau,
department or office of the state, county or city government, or any
governmental authority having jurisdiction, require or recommend that any
changes, modifications, alterations or additional equipment be made or supplied
in or td any such system by reason of Tenant's business or the location of
partitions, trade fixtures or other contents of Premises, or if any such:
changes, modifications, alterations or additional equipment become necessary to
prevent the imposition of a penalty or charge against the full allowance for any
such system in the insurance rate as fixed by the Insurance Services Office or
by any insurance company, Tenant shall, at Tenant's expense, promptly make and
supply such changes, modifications, alterations or additional equipment.
11.4 HAZARDOUS SUBSTANCES.
(a) Tenant covenants and warrants that Tenant's use of the Premises will
at all times comply with and conform to all laws, statutes,
ordinances, rules and regulations of any governmental,
quasi-governmental or regulatory authorities ("Laws") which relate
to the transportation, storage, placement, handling, treatment,
discharge, generation, production or disposal (collectively
"Treatment") of any waste, petroleum product, waste products,
radioactive waste, poly-chlorinated biphenyls, asbestos, hazardous
materials of any kind, and any substance which is regulated by any
law, statute, ordinance, rule or regulation (collectively "Waste").
Tenant further covenants and warrants that it will not engage in or
permit any person or entity to engage in any Treatment of any Waste
on or which affects the Premises.
(b) Immediately upon receipt of any Notice (as hereinafter defined) from
any person or entity, Tenant shall deliver to Landlord a true,
correct and complete copy of any written Notice. "Notice" shall mean
any note, notice or report of any suit, proceeding, investigation,
order, consent order, injunction, writ, award or action related to
or affecting or indicating the Treatment of any Waste in or
affecting the Premises.
(c) Tenant hereby agrees it will indemnify, defend, save and hold
harmless Landlord and Landlord's officers, directors, shareholders,
employees, agents, partners and their respective heirs, successors
and assigns (collectively "Indemnified Parties") against and from,
and to reimburse the Indemnified Parties with respect to, any and
all damages, claims, liabilities, loss, costs and expense
(including, without limitation, all attorneys' fees and expenses,
court costs, administrative costs and costs of appeals) incurred by
or asserted against the Indemnified Parties by reason of or arising
out of: (i) the breach of any representation or undertaking of
Tenant under this Section 11.4, or (ii) arising out of the Treatment
of any Waste by Tenant or any licensee, concessionaire, manager or
other party occupying or using the leased Premises, in or affecting
the leased Premises.
(d) Landlord is given the right, but not the obligation, to inspect and
monitor the Premises and Tenant's use of the Premises in order to
confirm Tenant's compliance with the terms of this Section 11.4 and
the representations set forth in this Section 11.4. Landlord may
require that Tenant deliver to Landlord, concurrent with Tenant's
vacating the Premises upon the expiration of this Lease or any
earlier vacation of the leased Premises by Tenant, at Tenant's
expense, a certified statement by licensed engineers satisfactory to
Landlord, in form and substance satisfactory to Landlord, stating
that. Tenant, Tenant's Work and any alterations thereto and Tenant's
use of the Premises complied and conformed to all Laws `which
relate. to the Treatment of any Waste in or affecting the Premises.
(e) Tenant agrees to deliver upon request from Landlord estoppel
certificates to Landlord expressly stipulating whether Tenant is
engaged in or has engaged in the Treatment of any Waste in or
affecting the: Premises, and whether Tenant has caused any spill,
contamination, discharge, leakage, release or escape of any Waste in
or affecting the Premises, whether sudden or gradual, accidental or
anticipated or any other nature at or affecting the Premises and
whether, to the best of Tenant's knowledge, such an occurrence has
otherwise occurred at or affecting the Premises.
11.5 ALTERATIONS AND ADDITIONS.
(a) Tenant shall make no alterations, improvements or additions to the
exterior of the Premises. Tenant shall not, without Landlord's prior
written consent, make any alterations, improvements, additions or
utility installations in, on or about the Premises. All alterations,
improvements, or additions shall comply with all laws, ordinances,
codes, standards, rules and regulations of any federal, state or
local governmental agency having jurisdiction thereof. As a
condition to giving such consent, Landlord may require that Tenant
agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term and to restore
the Premises to its prior condition. As a further condition to
giving such consent, Landlord may require Tenant to provide
Landlord, at Tenant's sole cost and expense; a lien and completion
bond in an amount equal to one and one-half (1-1/2) times the
estimated cost of such improvements, to insure Landlord against any
liability for mechanics' and materialmen's liens and to insure
completion of the work..
(b) Unless Landlord requires their removal as set forth in Section
11.5(a), all alternations, improvements, additions and utility
installations (whether or not such utility installations constitute
trade fixtures of Tenant) which may be made on the Premises shall
become the property of Landlord and remain upon and be surrendered
with the Premises at the expiration of the term. Notwithstanding the
provisions of this Section, Tenant's machinery and equipment, other
than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the
property of Tenant and may be removed by Tenant subject to the
provisions of Section 11.5(c).
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or
for use in the Premises, which claims are or may be secured by any
mechanics' or materialmen's lien against the Premises or any
interest therein. Tenant shall give Landlord not less than ten (10)
days notice prior to the commencement of any work in the Premises,
and Landlord shall have the right to post notices of
non-responsibility in or on the Premises as provided by law.
d) Prior to commencing to make any alterations, improvements, additions
or utility installations, Tenant shall furnish Landlord with a
certificate of insurance evidencing the existence of owner's
protective liability with the limits set forth in Section 8.1, and
Tenant shall provide Landlord with certificates of insurance
evidencing that all contractors, subcontractors and companies
furnishing services and materials at or in the Premises maintain
concurrent limits of liability on a comprehensive general liability
basis.
(e)- Tenant, at Tenant's expense, shall be solely responsible and
obligated to make all modifications to the Premises to comply with
the Americans With Disabilities Act of 1990 ("ADA"), as it may be
amended from time to time. Tenant shall also be responsible for the
cost of modification to common areas and to other areas of the
building, if they are part of the "path of travel" created by the
tenant's alterations and improvements. Tenant shall also be
responsible for the cost of making physical changes in the Tenant's
Premises required to accommodate the Tenant's employees with
disabilities.
ARTICLE 12: DAMAGE OR DESTRUCTION
12.1 PARTIAL DAMAGE - FULLY INSURED. Subject to the provisions of Section
12.4, "Damage Near End of Term", if the Premises are damaged or destroyed and
such damage or destruction was caused by a casualty covered under an insurance
policy maintained by Landlord pursuant to Section 8.2, "Property Insurance", and
the proceeds of such insurance are sufficient to fully pay for the restoration
of the Premises, Landlord shall, at Landlord's expense, repair such damage as
soon as reasonably possible and this Lease shall continue in full force and
effect.
12.2 PARTIAL DAMAGE - NOT FULLY INSURED. Subject to the provisions of
Section 12.4, "Damage Near End of Term", if at any time during the
term of this Lease the Premises are damaged, except by a negligent
or willful act of Tenant, and such damage was caused by a casualty
not fully covered under an insurance policy maintained by Landlord
pursuant to Section 8.2, "Property Insurance", Landlord may at
Landlord's option either: (a) Repair such damage as soon as
reasonably possible at Landlord's expense, in which event this Lease
shall continue in full force and effect, or (b) Give written notice
to Tenant within thirty (30) days after the date of the occurrence
of such damage of Landlord's intention to cancel and terminate this
Lease as of the date of the occurrence of such damage. In the event
Landlord elects to give such notice of Landlord's intention to
cancel and terminate this Lease, Tenant shall have the right, within
ten (10) days after the receipt of such notice, to give written
notice to Landlord of Tenant's intention to repair such damage at
Tenant's expense with reimbursement from Landlord up to the amount
of the insurance proceeds, in which event this Lease shall continue
in full force and effect and Tenant shall proceed to make such
repairs as soon as reasonably possible. If Tenant does not give such
notice within such ten (10) day period, this Lease shall be canceled
and terminated as of the date of the occurrence of such damage.
12.3 TOTAL DESTRUCTION. If at any time during the term hereof the
Premises are totally destroyed from any cause not covered by the
insurance maintained by Landlord pursuant to Section 8.2, "Property
Insurance" (including any total destruction required by an
authorized public authority), this Lease shall automatically
terminate as of the date of such total destruction.
12.4 DAMAGE NEAR END OF TERM. If the Premises are substantially destroyed
or damaged during the last year of the term of this Lease, Landlord
may at Landlord's option cancel and terminate this Lease as of the
date of occurrence of such damage by giving written notice to Tenant
of Landlord's election to do so within thirty (30) days after the
date of occurrence of such damage.
12.5 ABATEMENT OF RENT; TENANT'S REMEDIES.
(a) If the Premises are destroyed or damaged and Landlord or Tenant repairs or
restores them pursuant to the provisions of this Article 12, the Rent
payable hereunder for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Tenant's use of the Premises or, alternative space (provided by Landlord)
within the Project is impaired. Except for abatement of Rent, if any,
Tenant shall have no claim against Landlord for any damage suffered by
reason of any such damage, destruction, repair or restoration.
(b) If Landlord shall be obligated to repair or restore the Premises under the
provisions of this Article 12 and shall not commence such repair or
restoration within ninety (90) days after such obligations shall accrue,
Tenant may at Tenant's option cancel and terminate this Lease by giving
Landlord written notice of Tenant's election to do so at any time prior to
the commencement of such repair or restoration. In such event, this Lease
shall terminate as of the date of such notice. Any abatement in Rent shall
be computed as provided in Section 12.5(a).
12.6 TERMINATION - ADVANCE PAYMENTS. Upon termination of the Lease
pursuant to this Article 12, an equitable adjustment shall be made
concerning advance Rent and any advance payments made by Tenant to
Landlord. Landlord shall, in addition, return to Tenant so much of
Tenant's Security Deposit as has not theretofore been applied by
Landlord.
ARTICLE 13: ASSIGNMENT AND SUBLETTING
13.1 CONSENT REQUIRED. Tenant shall not assign its interest under this
Lease or sublet all or any part of the Premises without Landlord's
prior written consent, which shall not be unreasonably withheld.
Tenant shall: not at any time pledge, hypothecate, mortgage or
otherwise encumber its interest under this Lease as security for the
payment of a debt or the performance of a contract. Tenant shall not
permit its interest under this Lease to be transferred by operation
of law. Any purported assignment or sublease made without Landlord's
consent shall be void. If Tenant is a partnership; association or
corporation, the cumulative sale or transfer of a forty-nine percent
(49%) interest or greater, either directly or indirectly, of the
entity shall constitute an assignment hereunder. If Tenant is a
limited partnership, the substitution. of a general partner or the
transfer of a 49% or; more ownership interest in the general partner
shall constitute an assignment hereunder.
13.2 REQUESTS FOR APPROVAL. Landlord shall be under no obligations to
decide whether consent will be given or withheld unless Tenant has
first provided to Landlord: (a) The name and legal composition of
the proposed assignee or subtenant and the nature of its business;
(b) The use to which the proposed assignee or subtenant intents to
put the Premises; (c) The terms and conditions of the proposed
assignment or sublease and of any related transaction between Tenant
and the proposed assignee or subtenant; (d) Information related to
the experience, integrity and financial resources of the proposed
assignee or subtenant; (e) Such information as Landlord may request
to supplement, explain or provide details of the matters submitted
by Tenant pursuant to subparagraphs (a) through (d); and (f)
Reimbursement for all costs incurred by Landlord, including
attorneys' fees, in connection with evaluating the request and
preparing any related documentation.
13.3 CONTINUED RESPONSIBILITY. Tenant shall remain fully liable for
performance of this Lease, notwithstanding any assignment or
sublease, for the entire Lease Term.
13.4 RECAPTURE OPTION. Landlord at its option may elect, no later than
ten (10) days after. Tenant has provided all necessary
information, to give notice of cancellation of this Lease with
respect to the space affected by a proposed assignment or sublease.
Tenant, by giving notice of withdrawal of its request for consent to
a proposed assignment or sublease within ten (10) days after
Landlord's notice, may cause Landlord's notice to be automatically
rescinded. If the notice of cancellation is not rescinded, it shall
be effective thirty (30) days after it was given. A cancellation
relating to the entire Premises shall relieve Tenant of all
obligation under this. Lease except obligations accruing prior to
the date possession is surrendered to Landlord and obligations
related to the condition in which the Premises are to be
surrendered. Upon a cancellation relating to a portion of the
Premises, Tenant's rental obligations shall be reduced, as of the
effective date of the cancellation, in the proportion that the area
of the Premises has been reduced.
13.5 DIRECT LEASE. Landlord also shall have the option, in the case of a
proposed sublease, to sublease the affected space from Tenant on the
same terms and conditions as are being offered by the proposed
subtenant. This option shall be exercised, if at all, no later than
ten (10) days after Tenant has provided all of the information
required by Section 13.2.
13.6 SHARED PROCEEDS. If consent to an assignment or sublease is given,
Tenant shall pay to Landlord, as Additional Rent, one half (1/2) of all
amounts received from the assignee or subtenant in excess of the amounts
otherwise payable by Tenant to Landlord with respect to the space
involved, measured on a per square foot basis.
13.7 LIMITATIONS. It shall not be unreasonable for Landlord to withhold
consent if the proposed assignee or subtenant is a tenant in another
building in the Tucson Metropolitan Area owned by Landlord or by an
affiliate of Landlord or of any of Landlord's constituent partners or
principals or if the use by the proposed assignee or subtenant would
contravene this Lease or any restrictive use covenant or exclusive rights
granted by Landlord or if the proposed assignee or subtenant does not
intend to occupy the Premises for its own use.
13.8 NO WAIVER. No consent shall constitute consent to any further
assignment or subletting.
13.9 TRANSFER BY LANDLORD. Upon a sale or other transfer of the Building
by Landlord, Landlord's interest in this Lease shall automatically be
transferred to the transferee, the transferee shall automatically assume all of
Landlord's obligations under this Lease, and Landlord shall be released of all
obligations under this Lease arising after the transfer. Tenant shall upon
request attorn in writing to the transferee.
13.10 ATTORNEY'S FEES. In the event that Landlord shall agree to consent
to any matter set forth under Section 13.1, Tenant shall pay a One Hundred
Dollar ($100) assignment fee to Landlord and shall also pay Landlord's
reasonable attorney's fees incurred in connection with giving such consent as a
condition to receiving the consent.
ARTICLE 14: DEFAULTS; REMEDIES
14.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of Rent or any other
payment required to be made by Tenant hereunder, as and when due.
Landlord shall not be required to give Tenant notice of Tenant's
failure to make such payments, as and when due.
(c) The submission by Tenant to Landlord of Tenant Related Information
(Article. 19, "Landlord Reliance on Tenant Related Information")
which was false or incomplete in any material respect as of the date
of the Lease:
(d) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed
by Tenant, other than the defaults described in Sections 14.1(a),
14:1(b) or 14.1 (c), where such failure shall continue for a period
of thirty (30) days after written notice hereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's default is
such that it can be cured and more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be deemed to
be in default if Tenant commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to
completion.
(e) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a
petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant,,
the same is dismissed within sixty (60) days); the appointment of a
trustee or receiver to take possession of substantially ail of
Tenant's assets located at the Premises or of Tenant's interest in
this Lease, where possession is not restored to Tenant within'thirty
(30). days; or the attachment,, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or.
of Tenant's: interest in this Lease, where such seizure is not
discharged within thirty (30) days.
14.2 REMEDIES. In the event of any material default or breach by Tenant,
Landlord may at any time thereafter, with or without notice
or demand and without limiting Landlord in the exercise of any right or remedy
which Landlord may, have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this- Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In
such event Landlord shall be entitled to recover from Tenant all
damages incurred by Landlord by reason of Tenant's default
including, but not limited to, the cost of recovering possession of
the Premises; expense of reletting including necessary renovation
and alteration of the Premises, reasonable attorney's fees, and any
real estate commission actually paid; the worth at the time of award
by the court having jurisdiction thereof of the amount by which the
unpaid Rent for the balance of the term after the time of such award
exceeds the amount of such rental loss for the same period that
Tenant proves could be reasonably avoided; that portion of any
leasing commission actually paid by Landlord applicable to the
unexpired term of this Lease. Unpaid installments of Rent or other
sums shall bear interest from the date due at the rate of eighteen
percent (18%) per annum. In the event Tenant shall have abandoned
the Premises, Landlord shall have the option of: (i) retaking
possession of the Premises and recovering from Tenant the amount
specified in this Section 14.2(a), or (ii) proceeding under Section
14.2(b).
(b) Maintain Tenant's right to possession in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the
right to recover the Rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Premises is
located.
14.3 DEFAULT BY LANDLORD. Notwithstanding anything which may be contained
anywhere in this lease to the contrary, Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event less than thirty (30) days after written notice by Tenant
to Landlord and to the holder of any first mortgage or deed of trust covering
the Premises, and if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. Tenant's remedy for
default by the Landlord shall be limited to money damages and shall not include
the right to terminate this Lease.
ARTICLE 15: PARKING
15. PARKING. During the term of this Lease, Tenant shall have the
non-exclusive right to use the parking lot for automobile or truck parking
purposes subject to the Rules and Regulations established by Landlord from time
to time designating areas for Tenant, employee and invitee parking; provided
that the condemnation or other taking by any public authority, or sale in lieu
of condemnation, of any or all of such common and parking areas shall not
constitute a violation of this covenant. From time to time, as requested by
Landlord, Tenant shall furnish Landlord with the name of each person working at
or from the Premises together with .the make, model, year and license plate
number of each vehicle used by such person parked at or about the Project.
Landlord shall have the right to require Tenant and each of Tenant's employees
and agents to maintain a Landlord furnished identification tag in or on each
vehicle used or leased by Tenant or Tenant's employees and agents parked at or
about the Project. Landlord reserves the right to change the entrances, exits,
traffic lanes and the boundaries and locations of such parking area or areas.
Landlord may, from time to time, designate areas in the parking lot for the
exclusive use of certain designated Tenant's as covered parking or non-covered
parking. Landlord may charge a fee pursuant to a separate rental agreement for
the use of covered parking. Tenant and Tenant's employees shall park their
automobiles in those areas from time to time designated for employee parking, or
at Landlord's written request shall park their automobiles outside of the
Project. Tenant for itself, its employees, and its invitees shall assume the
full risk of loss or injury to all vehicles parked by them on or about the
Premises. Landlord shall have the right to have vehicles parked in violation of
this Section 15 towed at owner's expense. This Lease shall be subordinate to any
agreement existing as of the date of this Lease or subsequently placed upon the
real property of which the demised Premises are a part, which agreement provides
for reciprocal easements and restrictions pertaining to the common and parking
areas, and in the event of conflict between the provisions of such agreement and
this Lease, the provisions of said agreement shall prevail; provided, however,
nothing therein shall cause the Tenant to pay a greater share of the common area
maintenance cost than herein provided. Landlord shall have the right to require
Tenant and each of Tenant's employees and agents to sign a parking registration
agreement acknowledging and agreeing to the terms of this Article 15.
ARTICLE 16: CONDEMNATION
16. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "Condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs. However, theLease shall remain in
full force and effect as to the portion of the Premises remaining, except that
the Base Rent shall be reduced in proportion that the floor area taken bears to
the total floor area of the building situated on the Premises. Any award for the
taking of all or any part of the Premises under the power of eminent domain or
any payment made under threat of the exercise of such power shall be the
property of Landlord, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Tenant shall be entitled to any award
for loss of or damage to Tenant's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
Condemnation, Landlord shall, to the extent of severance damages received by
Landlord in connection with such Condemnation, repair any damage to Premises
caused by such Condemnation except to the extent that Tenant has been reimbursed
therefor by the condemning authority. Tenant shall pay any amount in excess of
such severance damages required to complete
such repair. If more than twenty percent (20%) of the floor area of the
improvements on the Premises, or more than thirty-five percent (35%) of the land
area of the real property of which the Premises are a part which is not occupied
by any improvements, is taken by Condemnation, Tenant may, at Tenant's option,
to be exercised in writing only within ten (10) days after Landlord shall have
given Tenant written notice of such taking (or in the absence of such notice,
within ten (10) days after condemning authority shall have taken possession)
terminate this Lease as of the date the condemning authority takes such
possession.
ARTICLE 17: RELOCATION
17. RELOCATION. Landlord, upon at least sixty (60) days prior notice to
Tenant, may require Tenant to relocate to other premises of substantially equal
size in the Building which shall, upon delivery, be substituted for the Premises
under this Lease. The amount of the Base Rent and Tenant's share of Operating
Costs, Utility Costs and Taxes shall be adjusted based upon the Rentable Area of
the substitute premises. Landlord, at Landlord's expense, shall cause the
substitute premises to be improved prior to delivery in a manner similar to the
original Premises. Upon request, Tenant shall cooperate in the preparation or
approval of plans and specifications for the improvements. Landlord shall bear
all reasonable out-of-pocket costs incurred in connection with the relocation
for changes in signs, changes in stationery, reinstallation of telephone
equipment, moving of furniture and personal property, and similar matters.
Should Tenant refuse to permit Landlord to move Tenant to such new space,
Landlord, in such event, shall have the right to, terminate this Lease by giving
written notice to that effect to Tenant in which event this Lease shall
terminate effective ninety (90) days from the date of original notification by
Landlord of Landlord's desire that Tenant be relocated. If Landlord moves Tenant
to such new space, this Lease and each and all of its terms, covenants and
conditions shall remain in full force and effect and be deemed applicable to
such new space, and such new space shall thereafter be deemed to be the
"Premises".
ARTICLE 18: GENERAL PROVISIONS
18.1 LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title or a Tenant's
interest in a ground lease of the Premises and, in the event of any transfer of
such title or interest, Landlord herein named (and in the case of any subsequent
transfers the then grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord's obligations thereafter to be
performed; provided, that any funds in the hands of Landlord or the then grantor
at the time of such transfer in which Tenant has an interest, shall be delivered
to the grantee. The obligations contained in this Lease to be performed by
Landlord shall, subject as aforesaid, be binding on Landlord's successors and
assigns only during their respective periods of ownership.
In consideration of the benefits accruing hereunder, Tenant agrees that,
in the event of any actual or alleged failure, breach or default of this Lease
by Landlord, if Landlord is a partnership: (a) The sole and exclusive remedy
shall be against the partnership and its partnership assets; (b) No partner of
Landlord shall be used or named as party in any suit or action (except as may be
necessary to secure jurisdiction of the partnership); (c) No service of process
shall be made against any partner of Landlord (except as may be necessary to
secure jurisdiction of the partnership); (d) No partner of Landlord shall be
required to answer or, otherwise plead to any service or process; (e) No
judgment may be taken against any partner of Landlord; (f) Any judgment taken
against any partner of Landlord may be vacated and set aside at any time without
hearing; (g) No writ of execution will ever be levied against the assets of any
partner of Landlord; and (h) These covenants and agreements are enforceable both
by Landlord and also by any partner of Landlord. Tenant agrees that each of the
foregoing provisions shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by statute or at common law.
18.2 ESTOPPEL CERTIFICATE.
(a) Tenant shall at any time upon not less than five (5) days
prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing: (i) certifying
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) and the date to which the Rent and other charges
are paid in advance, if any; and (ii) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the
part of Landlord hereunder, or specifying such defaults if any
claimed. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises.
(b) 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; (iii) that not more than
one (1) month's Rent has been paid in advance; and (iv) that
Landlord is irrevocably constituted as Tenant's
attorney-in-fact to issue such statement.
(c) If Landlord desires to sell or to finance or refinance the
Premises or any part thereof, Tenant hereby agrees to deliver
to any buyer or lender designated by Landlord such financial
statements of Tenant as may be reasonably required by such
buyer or lender. Such statements shall include the past three
(3) years financial statements of Tenant. All such financial
statements shall be received by Landlord in confidence and
shall be used only for the purposes herein set forth.
18.3 SUBORDINATION. This Lease is subject and subordinate to all ground or
underlying leases, mortgages and deeds of trust which now affect the real
property of which Premises forms a part or affect the ground or underlying
leases and to all renewals, modifications, consolidations, replacements and
extensions thereof. It is further agreed that this Lease may, at the option of
Landlord, be made
subordinate to any ground or underlying leases, mortgages, or deeds of trust
which may hereafter affect the real property of which Premises forms a part or
affect the ground or underlying leases, and that Tenant or Tenant's
successors-in-interest will execute and deliver upon the demand of Landlord any
and all instruments desired by Landlord subordinating in the manner requested by
Landlord this Lease to such lease, mortgage or deed of trust. Landlord is hereby
irrevocably appointed and authorized as agent and attorney-infact of Tenant to
execute and deliver all such subordination instruments in the event Tenant fails
to execute and deliver said instruments within five (5) days after written
request therefor.
18.4 NOTICE TO MORTGAGEE. Tenant agrees to give any Mortgagees and/or
Trust Deed Holders, by Certified - Return Receipt Requested Mail, a copy of any
Notice of Default served upon the Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of Notice of Assignment of Rents and
Leases, or otherwise),of the address of such Mortgagees and/or Trust Deed
Holders. Tenant further agrees that if Landlord shall have failed to cure such
default within the timeprovided for in this Lease, then the Mortgagees and/or
Trust Deed Holders shall have an additional thirty (30) days in which to cure
such default or, if such default cannot be cured within that time, then such
additional time as may be necessary, if within such thirty (30) days any
Mortgagee and/or Trust Deed Holder has commenced and is diligently pursuing the
remedies necesary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
18.5 SEVERABILITY AND CAPTIONS. The invalidity of any provision of this
Lease as determined by a court of competent jurisdiction shall in no way affect
the validity of any other provision hereof. Section and paragraph captions are
for reference purposes only and are not a part of the terms of this Lease.
18.6 TIME OF ESSENCE. Time of performance of each and. every condition and
agreement made herein is of the essence.
18.7 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be served personally or by Certified - Return Receipt
Requested Mail, addressed to Landlord and Tenant respectively at the addresses
set forth on Exhibit A.
18.8 TERMINATION, NO WAIVER, NO ORAL CHANGE. In the event this Lease
terminates for any reason (including but not limited to termination by Landlord)
prior to its natural expiration date, such termination will effect the
termination of any and all agreements for the extension of this Lease (whether
expressed in an option, exercised or not, or collateral document or otherwise);
any right herein contained on the part of Landlord to terminate this Lease shall
continue during any extension hereof; any option on the part of Tenant herein
contained for an extension hereof shall not be deemed to give Tenant any option
for a further extension beyond the first extended term. Interruption or
curtailment of any services shall not constitute a constructive or partial
eviction or entitle Tenant to any abatement of Rent or any compensation
(including but not limited to compensation for annoyance, inconvenience or
injury to business). No act or thing done by Landlord or Landlord's agents
during the term hereby demised shall be deemed an acceptance of a surrender of
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of said Premises prior to the
termination of this Lease. The delivery of keys to an employee of Landlord or of
Landlord's agents shall not operate as a termination of this Lease or a
surrender of Premises. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of, any term, covenant, condition,
provision or agreement of this Lease or any of the Rules and Regulations
attached to this Lease or hereafter adopted against Tenant.or any other tenant
in the Project shall not be deemed a waiver of any such Rules and Regulations.
No provision of this Lease shall be deemed, to have been waived by Landlord,
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt. by Landlord f, a lesser amount than the Monthly Rent herein stipulated
shall be deemed to be other than on account,of the earliest stipulated Rent, 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; and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy in this Lease provided. This
Lease contains the entire agreement between the parties and recites the entire
consideration given and accepted by the parties. Any agreement hereafter made
shall be ineffective to change, modify, waive or discharge it in whole or in
part unless such agreement is in writing and signed by the party against whom
enforcement of the change, modification, waiver or discharge is sought.
18.9 RECORDING. Tenant shall not record this Lease without Landlord's
prior written consent and such recordation shall, at the option of Landlord,
constitute a non-curable default of Tenant hereunder. Either party shall, upon
request of the other, execute, acknowledge and deliver to the other a "short
form" memorandum of this Lease for recording purposes which shall contain only
the names of Landlord and Tenant, address of Premises, legal description of
Project, and term of lease, including options.
18.10 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
18.11 COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
18.12 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
Section 18.1, "Landlord's Liability", this Lease shall bind the parties, their
personal representatives, successors and assigns. This Lease shall be governed
by the laws of the state in which the Premises are located. Venue shall be in
the county in which the Premises are located.
18.13 ATTORNEY'S FEES. If either party brings an action to enforce the
terms hereof.or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to its reasonable attorney's fees
to be paid by the losing party as fixed by the court.
18.14 LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises with reasonable notice (except in case of emergency,
where no notice is required) at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers or lenders, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Landlord may deem necessary or desirable.
Landlord may at any time place on or about the Premises any ordinary "For Sale"
signs and Landlord may at any time during the last one hundred twenty (120) days
of the term hereof place on or about the Premises any ordinary "For Lease"
signs, all without rebate of Rent or liability to Tenant.
18.15 SIGNS AND AUCTIONS. Landlord makes no representation or warranty,
either expressed or implied, concerning any sign ordinances, rules or
regulations relating to the Premises or Tenant's signage. . Tenant is
responsible to inform itself of all governmental laws, ordinances, rules and
regulations applying to the Premises or Tenant's signage. Tenant shall, at its
own cost and expense, obtain all necessary sign permits from all governmental
bodies having jurisdiction over Tenant's signage. Tenant shall not install any.
signs in or about the Premises without first obtaining all necessary sign
permits.
Tenant shall not place any sign, loudspeakers, banners or flags upon the
Premises therein without Landlord's prior written consent. Exhibit D ("Sign
Criteria") contains all of the requirements and specifications for, any signs
that are permitted in or about the Premises and the requirements for the removal
of all signs at the end of the Lease term. Exhibit D refers only to Landlord's
Sign Criteria, which may be more or less restrictive than the governmental laws,
ordinances, rules and regulations applying to the Premises or Tenant's signage.
Tenant shall not conduct its business outside of the Premises (i.e., on
sidewalks or driveways.) Tenant shall not conduct any auctions from the
Premises.
18.16 MERGER. The voluntary or other surrender of this LEASE BY Tenant or
a mutual cancellation thereof shall not work a merger and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
18.17 CORPORATE AUTHORITY. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease. on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation, Tenant shall, within thirty (30)
days after execution of this Lease, deliver to Landlord a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
18.18 RENTABLE AREA. The approximate Rentable Area of the Premises is set
forth on Exhibit A and the approximate Rentable Area of the Project is set forth
on Exhibit A. All disputes concerning the Rentable Area of the Premises or the
Rentable Area of the Project shall be conclusively settled by Landlord's
architect through the application of the BOMA "Standard Method for Measuring
Floor Area in Office Buildings", as REVISED AND adopted June 7, 1996 (ANSI/BOMA
265.1 - 1996).
18.19 CONSENT. Any consent by Landlord to any assignment or subletting or
other operation by a concessionaire or licensee shall not constitute a waiver of
the necessity for such consent under any subsequent assignment or subletting or
operation by a concessionaire or licensee.
18.20 LEGAL PROCEEDINGS. The respective parties hereto shall and they
hereby do waive trial by jury in any action or proceeding brought by either of
the parties hereto against the other on any matter whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of Premises or any claim of injury or damage, or the
enforcement of any remedy under any statute under any statute, emergency or
otherwise. In the event Landlord commences any proceedings for nonpayment of
Rent or other sums due hereunder, Tenant shall not, and Tenant hereby waives any
right to, interpose any counterclaim of whatever nature or description in any
such proceedings. Such waiver shall not, however, be construed as a waiver of
Tenant's rights to assert such claims in any separate action or actions brought
by Tenant.
18.21 INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay
Rent hereunder and to keep; observe and perform all of the other terms,
covenants conditions, provisions and agreements. of this Lease on the part
of Tenant to be kept, observed or performed shall in no way be affected,
impaired or excused because Landlord. is unable to fulfill any of its'.
obligations under this Lease or to supply, or is delayed or curtailed in
supplying, any service' expressly or implied to be supplied or is unable
to make, or is delayed or curtailed in making, any repairs, alterations,
decorations, additions or improvements, or is unable to supply, or is
delayed or curtailed in supplying, any equipment or fixtures, if Landlord
is prevented, delayed or curtailed from so doing by reason of any cause
beyond Landlord's reasonable control including, but not limited to; acts
of God, strike or, labor troubles, fuel or energy shortages, governmental
preemption or curtailment in connection with a national emergency or in
connection with any rule, order, guideline or regulation of any department
or governmental agency or by reason of the conditions of supply and demand
which have been or are affected by a war or other emergency. Any such
prevention, delay or curtailment shall be deemed excused and Landlord
shall not be subject to any liability resulting therefrom.
18.22 COUNTERPARTS. This Lease maybe executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute and be construed as one and the same instrument.
18.23 COMMISSIONS. The parties warrant that they have not entered into any
agreement that would subject the other to payment of any real estate commissions
or finder's fees and do hereby agree to hold the other harmless (including
reasonable attorneys' fees) from claims for commissions or fees due or allegedly
due any maker by reason of such agreement.
18.24 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to and such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification.
ARTICLE 19: LANDLORD RELIANCE ON TENANT RELATED ,INFORMATION:
19. LANDLORD RELIANCE ON TENANT RELATED INFORMATION. To induce Landlord to
lease the Premises to Tenant, Tenant has furnished to Landlord certain
information concerning Tenant, including, without limitation, financial
statements, resumes, and other business materials (the "Tenant Related
Information"). Tenant hereby: certifies to Landlord that as of the date of the
Lease, all of the Tenant Related Information is true, accurate and complete in
all material respects. Tenant acknowledges that without the Tenant Related
Information, Landlord would not have entered into this Lease with Tenant. If at
any time subsequent to the execution of this Lease, Landlord discovers that any
of the Tenant Related Informationmas false or incomplete in any material respect
as of the date of the Lease, then Landlord shall have 60 days from the date of
such discovery to notify Tenant in writing of such discovery and to declare the
Tenant to have committed a non-curable default under the Lease. In such event,
Landlord may pursue the Remedies provided for in Article 14: Defaults.
ARTICLE20: NON-DISCLOSURE
20. NON-DISCLOSURE. Landlord has informed Tenant that Landlord would not
enter into this Lease with Tenant unless Tenant agrees to the terms and
provisions of this non-disclosure section of the Lease. As. a material
inducement to Landlord to enter into this Lease, Tenant has agreed that Tenant
and its employees (past, present or future) will not disclose any of the terms
or conditions of this Lease, including without limitation the Lease addenda and
Lease exhibits, or any of the negotiations leading up to the consummation of the
Lease. Any disclosures made in violation of this section of the Lease shall be a
ndn-curable material default under this Lease. Within ninety (90) days of the
date that Landlord learns of such default, Landlord may terminate this Lease by
written notice delivered to Tenant; and in such event, Landlord shall have no
further obligation to Tenant of any kind whatsoever. The provisions of this
section may not be waived or modified by Landlord except by written instrument
signed by Landlord and delivered to Tenant.
THIS AREA INTENTIONALLY LEFT BLANK.
Landlord and Tenant hereto have executed this Lease on the dates
specified immediately adjacent to their respective signatures on
Exhibit A.
BUTTERFIELD CENTER LEASE
EXHIBIT A
Premises Address: Rentable Area (approximate) of Premises: 1.800 square feet
------
Street: 4565 S. Palo Verde Rentable Area (approximate) of Project: 78.252 square feet
------
Suite: 213
Tucson, Arizona 85714 Tenant's Proportionate Share of
Operating Costs, Utility Costs, Taxes: 2.30%
------
Trade Name: Dynamic Management Resolutions LLC
Use office/warehouse for consulting
Base Term:
Period 36 Months Adjustment Month August in each year.
Commencement Date 7/9/01
Ending Date 7/31/04
Base Rent:
Monthly Base Rent $ 918.00 /Per Month
-----------
Monthly Expenses $ 432.00 /Per Month for Operating Costs, Utility Costs, Taxes (adjusted
----------- annually, based on actual)
Rental Tax $ 00 /Tax is current estimate only which may change;
----------- Tenant obligation to pay tax is specified in Lease
TOTAL: $ 1,350.00 /Per Month Estimated only which may change; .
----------- Tenant's obligation specified in Lease.
Total Base Rent $ 33.048.00 /for the Base Term - prior to adjustments
-----------
Security Deposit $ 1,350.00
-----------
This Exhibit was prepared on June 27, 2001 This date shall be referred to for all purposes as the date of the Lease
TENANT Date Signed 6/29/01 LANDLORD Date Signed 7/03/01
---------------------------------- -------------------------
Dynamic Management Resolutions, LLC Butterfield Center Limited Partnership
- ----------------------------------------------------- ----------------------------------------------
By: /S/ Wade Poteet Butterfield Center Limited Partnership
------------------------------------------------- ----------------------------------------------
Wade Poteet
Its: Vice President By Its Agent: /S/ [Signature Illegible}
------------------------------------------------ ----------------------------------------------
President
Notice & Billing Address 4565 S. Palo Verde Suite 213 Notice Address Anthem Equity, Inc.
---------------------------- -------------------
Tucson. AZ 85714 1600 N. Kolb RdSuite 118, Tucson, AZ 85715
- ----------------------------------------------------- ----------------------------------------------
Preparation of this Lease by Landlord or Landlord's agent and submission of the
same to Tenant shall not be deemed to be an offer to Lease. This Lease shall
become binding upon Landlord and Tenant only when fully executed by Landlord and
Tenant.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE
PREMISES.
BUTTERFIELD CENTER LEASE
GUARANTY
(PAGE 1 OF 2)
1. As a material inducement to Landlord to enter into the Lease described
on the attached Exhibit A by and between BUTTERFIELD CENTER LIMITED PARTNERSHIP,
("Landlord") and DYNAMIC MANAGEMENT RESOLUTIONS LLC ("Tenant"), the undersigned
hereby jointly and severally (if there be more than one) unconditionally and
absolutely guarantee payment and performance, and not collection, of all
obligations of Tenant to Landlord under the Lease.
2. The undersigned guarantor or guarantors hereby acknowledge that
Landlord entered into the Lease in reliance upon the creditworthiness and
character 'of the undersigned guarantor or guarantors. :The undersigned
guarantor or guarantors also acknowledge that the Landlord has relied on any and
all representations presented to it, whether written or oral, reflecting the
creditworthiness and/or financial condition of the undersigned guarantor or
guarantors, and by signing below, the undersigned guarantor or guarantors
acknowledge that all representations to the Landlord are true and accurate.
3. Liability of the undersigned shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against the Tenant or
any other person or entity and a separate action may be brought against
guarantor(s) whether or not an action is brought against Tenant or Tenant is
joined in such action. Notice of Default or any extension of time to cure a
default is hereby waived; provided, that any applicable notice and time to cure
a default has been given to the Tenant as provided for in the Lease.
4. The undersigned guarantor or guarantors covenant and agree that this
guaranty shall remain in full force and effect from the date of execution until
the lease termination date, during any and all renewals, modifications or
extensions of the lease or of any schedule to the Lease, and during any period
when Tenant holds over or occupies, or has a right to occupy, the demised
premises.
5. The undersigned guarantor or guarantors covenant, agree and consent
that this guaranty shall remain in full force and effect after the occurrence of
any of the following
A. Any change or modification to the size of the demised
premises.
B. Any change or modification to the Tenant's permitted use of
the demised premises.
C. Any change or modification to the rent amount or method of
payment.
D. Any change or modification of any other term condition or
covenant of the Lease to be performed by either Landlord or
Tenant.
For the purposes of this guaranty, modifications or other alterations of
terms and/or conditions of the Lease shall be treated to the same extent as if
they were in effect at the time of the execution of this guaranty, whether or
not the undersigned guarantor or guarantors have notice of such modification or
alteration (the undersigned guarantor or guarantors hereby waiving such notice)
and whether or not the undersigned guarantor or guarantors consent or object
thereto.
6. This Guaranty may not be changed or terminated orally but only by an
agreement in writing signed by the party against whom enforcement of such change
or termination is sought.
THIS GUARANTY SHALL SERVE TO REPLACE AND NULLIFY ANY PREVIOUS GUARANTY TO THE
LEASE.
Dated this 27 day of September, 2002.
--
GUARANTOR:
CDEX, Inc.
By: /S/ Michael Mergenthaler Director, Business BY:
-------------------------------------------
Michael Mergenthaler Title Title
1700 Rockull Pike Suite 400
ROCKULL MD 20852
--------------------------- ---------------------------
Address Address
301 881-0080
------------
BUTTERFIELD CENTER LEASE
GUARANTY
(PAGE 2 OF 2)
Tenant: Dynamic Management Resolutions, LLC
-----------------------------------
Premises 4565 S. Palo Verde Ste. 213, Tucson AZ
--------------------------------------
STATE OF MARYLAND
OUNTY OF MONTGOMERY
On this 27 day of SEPT, 2002 before me personally appeared Michael Merbenthaler
and ___________________________ who acknowledged that he/she/they executed the
foregoing instrument as his/her/their own act and deed in the capacity stated
therein and for the purposes therein contained.
/S/
---------------------------------
Notary Public Robin D. Smith
My Commission Expires: MY COMMISSION 'EXPIRES 5/22/2006
STATE OF ____________________________)
)SS.
COUNTY OF ___________________________)
On this day of ______________, 20___ before me personally appeared who
acknowledged that he/she/they executed the foregoing instrument as his/her/their
own act and deed in the capacity stated therein and for the purposes therein
contained,
Notary Public
My Commission Expires:
BUTTERFIELD CENTER LEASE
GUARANTY
(PAGE 1 OF 2)
1. As a material inducement to Landlord to enter into the Lease described
on the attached Exhibit A by and between BUTTERFIELD CENTER LIMITED PARTNERSHIP,
("Landlord") and DYNAMIC MANAGEMENT RESOLUTIONS LLC_ ("Tenant"), the undersigned
hereby jointly and severally (if there be more than one) unconditionally and
absolutely guarantee payment and performance, and not collection, of all
obligations of Tenant to Landlord under the Lease.
2. The undersigned guarantor or guarantors hereby acknowledge that
Landlord entered into the Lease in reliance upon the creditworthiness and
character of the undersigned guarantor or guarantors. The undersigned guarantor
or guarantors also acknowledge that the Landlord has relied on any and all
representations presented to it, whether written or oral, reflecting the
creditworthiness and/or financial condition of the undersigned guarantor or
guarantors, and by signing below, the undersigned guarantor or guarantors
acknowledge that all representations to the Landlord are true and accurate.
3. Each of the undersigned guarantors who is not joined in this guaranty
by a spouse represents and warrants that he or she is not a married person.
4. Liability of the undersigned shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against the Tenant or
any other person or entity and a separate action may be brought against
guarantor(s) whether or not an action is brought against Tenant or Tenant is
joined in such action. Notice of Default or any extension of time to cure a
default is hereby waived; provided, that any applicable notice and time to cure
a default has been given to the Tenant as provided for in the Lease.
5. The undersigned guarantor or guarantors covenant and agree that this
guaranty shall remain in full force and effect from the date of execution until
the lease termination date set forth below, during any and all renewals,
modifications or extensions of the lease or of any schedule to the Lease, and
during any period when Tenant holds over or occupies, or has a right to occupy,
the demised premises.
6. The undersigned guarantor or guarantors covenant, agree and consent
that this guaranty shall remain in full force and effect after the occurrence of
any of the following
A. Any change or modification to the size of the demised
premises.
B. Any change or modification to the Tenant's permitted use of
the demised premises.
C. Any change or modification to the rent amount or method of
payment.
D. Any change or modification of any other term condition or
covenant of the Lease to be performed by either Landlord or
Tenant.
For the purposes of this guaranty, modifications or other alterations of
terms and/or conditions of the Lease shall be treated to the same extent as if
they were in effect at the time of the execution of this guaranty, whether or
not the undersigned guarantor or guarantors have notice of such modification or
alteration (the undersigned guarantor or guarantors hereby waiving such notice)
and whether or not the undersigned guarantor or guarantors consent or object
thereto.
7. This Guaranty may not be changed or terminated orally but only by an
agreement in writing signed by the party against whom enforcement of such change
or termination is sought.
Dated this 29th day of June , 2001.
/S/ Wade Poteet
- -----------------------------------------
GUARANTOR SIGNATURE GUARANTOR SIGNATURE
WADE POTEET
- -----------------------------------------
NAME (PLEASE Print) Name (Please Print) .
11200 E. Calle Aurora, Tuscon, AZ 85748
- ----------------------------------------- ---------------------------
Home Address Home Address
(520) 885-7307
- -----------------------------------------
Home Phone Home Phone
GUARANTOR SIGNATURE GUARANTOR SIGNATURE
NAME (PLEASE PRINT) Name (Please Print)
BUTTERFIELD CENTER LEASE
GUARANTY
(PAGE 2 OF 2)
Tenant: Dynamic Management Resolutions, LLC
----------------------------------------
Premises 4565 S. Palo Verde, Ste. 213, Tucson AZ
----------------------------------------
STATE OF ARIZONA _________________________)
)SS.
COUNTY OF PIMA ___________________________)
On this 29th day of JUNE , 2001 before me personally appeared Wade Poteet and
who acknowledged that he/she/they executed the foregoing instrument as
his/her/their
own act and deed in the capacity stated therein and for the purposes therein
contained.
/S/
--------------------
Notary Public
My Commission Expires: 4-21-03 Notary Public Stamp
STATE OF
COUNTY OF
On this day of ______________, 20___ before me personally appeared who
acknowledged that he/she/they executed the foregoing instrument as his/her/their
own act and deed in the capacity stated therein and for the purposes therein
contained,
Butterfield Center Lease
Exhibit B
Table of Contents of Exhibit B
Exhibit B contains several sections each of which is indexed below. It is
intended that each section of Exhibit B remains a separate and distinct unit and
the failure of any. section of Exhibit B shall not cause a failure of any other
section of Exhibit B. The following constitutes an index of all of the sections
which make up Exhibit B.
B-1 THE PROJECT this section defines the Project and the location of the
Premises.
B-1(a) - Legal Description of Land Comprising the Project
B-1(b) - Project Site Plan
B 2 Stricken Text
Stricken Text
B-3 This exhibit consists of the following sub-parts and contains a
Space Plan for the Premises and the Improvement Standards for the
Premises.
B-3(a) Improvement Standards
B-3(b) Space Plan
BUTTERFIELD CENTER LEASE
EXHIBIT B-1 PAGE 2
B-1(A) -- LEGAL DESCRIPTION OF LAND COMPRISING THE PROJECT
PARCEL 1:
All of Lots 9 and 10 in BUTTERFIELD BUSINESS CENTER, Lots 1 through 22, Block
"A" through "M" and Common Areas "A" and "B", a subdivision on record in the
office of the Pima County, Arizona Recorder in Book 37 of Maps and Plats at Page
76 thereof, except that portion being more particularly described as follows, to
wit:
BEGINNING at the Northern most corner of said Lot 10, said corner being the TRUE
POINT OF BEGINNING, said point also being on a 250.00 foot radius curve from
which the radius bears South 14 degrees 29 minutes 16 seconds West;
THENCE Southeasterly around said 250.00 foot radius curve to the right through a
central angle of 28 degrees 36 minutes 11 seconds an arc distance of 124.80 feet
to a point of tangency;
THENCE South 46 degrees 54 minutes 33 seconds East, a distance of 151.89 feet;
THENCE South 43 degrees 05 minutes 27 seconds West, a distance of 72.11 feet;
THENCE South 89 degrees 28 minutes 18 seconds West, a distance of 119.41 feet;
THENCE North 45 degrees 31 minutes 42 seconds West, a distance of 12.02 feet;
THENCE South 89 degrees 28 minutes 18 seconds West, a distance of 40.00 feet;
THENCE North 0 degrees 31 minutes 42 seconds West, a distance of 208.96 feet to
the TRUE POINT OF BEGINNING.
PARCEL 2:
All that portion of Lot 10 in BUTTERFIELD BUSINESS CENTER, Lots 1 through 22,
Blocks "A" through "M" and Common Areas "A" and "B", a subdivision on record in
the office of the Pima County, Arizona Recorder in Book 37 of Maps and Plats at
Page 76 thereof, more particularly described as follows, to wit:
BEGINNING at the Northern most corner of said Lot 10, said corner being the TRUE
POINT OF BEGINNING, said point also being on a 250.00 foot radius curve from
which the radius bears South 14 degrees 29 minutes 16 seconds West;
THENCE Southeasterly around said 250.00 foot radius curve to the right through a
central angle of 28 degrees 36 minutes I I seconds an arc distance of 124.80
feet to a point of tangency;
THENCE South 46 degrees 54 minutes 33 seconds East, a distance of 151.89 feet;
THENCE South 43 degrees 05 minutes 27 seconds West, a distance of 72.11 feet;
THENCE South 89 degrees 28 minutes 18 seconds West, a distance of 119.41 feet;
THENCE North 45 degrees 31 minutes 42 seconds West, a distance of 12.02 feet;
THENCE South 89 degrees 28 minutes 18 seconds West, a distance of 40.00 feet;
THENCE North 0 degrees 31 minutes 42 seconds West, a distance of 208.96 feet to
the TRUE POINT OF BEGINNING.
BUTTERFIELD
Exhibit B-1 Page 3
CENTER LEASE
B-1(b) -- Project Site Plan
BUTTERFIELD BUSINESS CENTER
4555 - 4605 S. Palo Verde
0
w c w
0
TUCSON, AR[ZONA
1
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[FLOOR MAP] ~, o
Butterfield Center Lease
Exhibit B-3
Exhibit B- 3(a) Improvement Standards
Subject to city and county building codes, the following items constitute
Improvement Standards which shall be employed by Landlord or Tenant in the
completion or modification of the Premises. The Tenant and Landlord agree that
the Improvement Standards indicate a level of quality, and that Landlord or
Tenant may substitute alternatives which produce a finished product which is
reasonably equal to or superior to the Improvement Standards.
1. DEMISING WALLS.
Demising Walls are those walls which completely seal and separate the
Premises from space occupied by other tenants or from corridors or
hallways which are Common Areas. Demising Walls shall be constructed to
the underside of the structure above from either concrete masonry units or
25 gauge aluminum metal studs faced on both sides with 1/2" drywall taped,
textured and ready to paint. All Non-Masonry Demising Walls shall be
filled with batt insulation.
2. FLOOR.
Floor shall be 4" thick smooth troweled concrete. Coverings must be
approved by Landlord.
3. STORE FRONT.
Store Front per Landlord's design shall be bronze anodized aluminum with
I/4" clear glass panels and one (1) single acting front door with single
cylinder dead bolt lock and closer.
4. REAR EXTERIOR METAL DOOR.
Rear Exterior Metal Door shall be 1 3/4" x 3'-0" x 7'-0" hollow metal
door; flush set in a hollow metal frame with three (3) hinges, with a
single cylinder dead bolt lock and handle set.
5. SUSPENDED CEILING.
Suspended ceiling shall be Armstrong or equal exposed white T-Bar grid
with 2' x 4' white fissured non-directional lay-in mineral acoustic tile.
6. AIR CONDITIONING.
Air conditioning/heating system will be provided by a heat pump and
thermostat sized per design of the Landlord's engineer to serve open sales
area. (No provisions for interspace partition distribution.) R30
insulation at the roof line or RI I insulation over the ceiling tiles will
be included with a maximum ceiling height of 10'.
7 LIGHTING.
Lighting shall be 2' x 4' recessed 4 tube `cool white' fluorescent
fixtures at approximately one (1) light per one hundred (100) square feet
of floor area. All lighting shall be single switched from a convenient
location near the entry door.
8. ELECTRICAL/TELEPHONE.
110 volt duplex wall receptacles will be provided for each 20 feet of
Demising Wall.
Exterior junction box for Tenant sign shall be provided by Landlord. The
junction box will be switched from the 100 amp electrical subpanel in the
Premises (Buildings 4555 and 4605 (westside only).
One recessed telephone ring and conduit stub above ceiling will be
provided in the location as directed by Tenant.
9. INTERIOR PARTITIONS.
Interior Partitions are those walls which are located wholly within the
Premises. Interior Partitions shall be constructed to the underside of the
acoustic tile ceiling if existing and 6" above the ceiling if not already
existing. The Interior Partitions shall be constructed from approximately
10' x 8' x 0" 25 gauge aluminum metal studs faced on both sides with 1/2"
drywall taped, textured and ready to paint.
10. INTERIOR DOORS, FRAMES AND HARDWARE.
Interior doors and frames are those which are located wholly within the
Prenuses. Interior doors shall be a 1 3/8" x 3'-0" x 6'-8" wood hollow
core, flush doors set in wood pre-hung frames with three (3) hinges, and a
standard, commercial grade passage set. All doors and frames shall be
ready for paint.
11. TOILET ROOM.
One (1) floor mounted handicap water closet - tank type 1.6 gallon flush
as manufactured by Briggs,or equal; one (1) wall mounted cold water
lavatory
with handicap faucet; one (1) ceiling exhaust fan; one (1) light bracket
each with switch; two (2) handicap grab bars per code; and one (1) each -
tri fold paper towel dispenser, 21" x 30" mirror, and toilet paper holder
shall be provided. Partition and wood hollow core door complete with
privacy hardware and wall bumper will be installed. Walls and ceilings
shall be latex-semi gloss painted gypsum board or concrete masonry units.
Floor shall be rolled sheet vinyl per all city and county codes.
Butterfield Center-- Lease
Exhibit B-3 Page 2
Exhibit B- 3(b)
Space Plan
Tenant shall take the Premises "as is" except that Landlord shall install new
carpet in 3 rooms, as well as replace sheet vinyl in restroom.
(DFLOOR PLAN
SCALE I/$'=I'-O~
[FLOOR MAP]
Butterfield Center Lease
EXHIBIT C
RULES AND REGULATIONS
Tenant agrees to abide by all the requirements set forth herein.
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Project without the written consent of Landlord
first had and obtained and Landlord shall have the right to remove any
such sign, placard, picture, advertisement, name or notice with notice to
and at the expense of Tenant.
2. All approved signs or lettering on doors shall be affixed at the expense
of Tenant by a person approved of by Landlord in accordance with Exhibit
D, "Sign Criteria".
3. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises.
4. The sidewalks, road, passage, loading zones, exits and entrances shall not
be obstructed by Tenant, Tenant's employees, agents, contractor or
invitees and none of them shall loiter or congregate outside of the
Premises. The Landlord shall in all cases retain the right to control and
prevent access to the Project by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character,
reputation and interests of the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom the Tenant normally deals in the ordinary course of
Tenant's business unless such persons are engaged in illegal activities.
5. Tenant shall not alter any lock or install any new or additional locks or
any bolts on any door of the Premises without approval of Landlord.
6. The bathrooms, wash bowls and other apparatus shall not be used for any
purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be thrown therein; the expense of
any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employees, agents, contractor
or invitees, shall have caused it.
7. Tenant shall not overload the floor of the Premises or mark, drive nails,
screw or drill into the partitions, woodwork or plaster unless approved by
Landlord, or in any way deface the Premises or any part thereof.
8. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness of the Project.
9. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to the
Landlord or other occupants of the Project by reason of noise, odors
and/or vibrations which would interfere in any way with other occupants.
10. Tenant shall not use or keep in the Premises or the Project any kerosene,
gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied or approved
by Landlord.
11. Landlord will direct electricians as to where and how telephone wires and
cables are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject
to the approval of Landlord.
12. Each Tenant, upon the termination of its tenancy, shall deliver to the
Landlord the keys of offices which shall have been furnished the Tenant
and, in the event of loss of any keys so furnished, shall pay the Landlord
therefor.
13. No Tenant shall lay linoleum, tile, carpet or other similar floor covering
so that the same shall be affixed to the floor of the Premises in any
manner except as approved by the Landlord. The expense of repairing any
damage resulting from violation of this rule or removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors,
employees, agents or invitees, the damage shall have been caused.
14. Tenant shall see that the doors of the Premises are closed and securely
locked before leaving the Premises and should observe strict care and
caution that all water faucets or water apparatus are entirely shut off
before Tenant or Tenant's employees leave, so as to prevent waste or
damage.
15. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Project.
16. The requirements of Tenant will be attended to only upon application at
the Office of Landlord as so designated. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless
under special instructions from the Landlord, and no employee will admit
any person (Tenant or otherwise) to any office without specific
instructions from the Landlord.
17. No vending machine or machines of any description shall be installed,
maintained or operated upon the Project without the written consent of
Landlord.
18. Tenant shall not disturb, solicit or canvass any occupant of the Project,
and shall cooperate to prevent same.
19. Without the written consent of Landlord, Tenant shall not use the name of
the Project in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
20. The word "Project" as used herein means the Project of which the Premises
are a part.
21. Tenant shall provide chair pads for all desk chairs of the swivel base
type that are used on carpeted areas.
22. The driveways and loading zones must be kept free of parked automobiles.
23. The Landlord reserves the right at any time to rescind any one or more of
these rules and regulations, or to make such other and further reasonable
rules and regulations as in the Landlord's judgment may from time to time
be necessary for the safety, care and cleanliness of the Project, and for
the preservation of order therein.
24. Neither Tenant nor Tenant's employees, agents guests or invitees may smoke
tobacco or other such products in or about the Premises or the Project,
except in areas that may be designated by Landlord in writing for such
purposes.
25. Except for guide dogs, neither Tenant nor its employees or agents shall
bring dogs or cats in or about the Premises or the Project.
26. Tenant shall not discharge any waste, water or other material into the
common areas of the Project, nor produce noise in or about the Premises,
such that it effects the quiet enjoyment of other Tenants in the Project.
27. All forklifts must have rubber tires.
28. Excessive dumping in refuse containers, including waste from Tenant
Improvements or furniture, is not permitted, and Tenant must provide its
own refuse container for such items. Should Tenant's business generate
excessive waste, Landlord may require Tenant to contract for refuse
services individually.
Butterfield Center Lease
Exhibit D
Sign Criteria
Lots 9 & 10
I. INTRODUCTION
The intent of this Sign Criteria is to establish and maintain guidelines
consistent with the signage policies of the Landlord and Pima County.
Further, the purpose is to assure a standard conformity for the design,
size, and materials for signage for Tenant identification.
Tenant shall, at its own expense, provide and maintain its own
identification sign in accordance with specifications noted herein. Tenant
is encouraged to work with the sign vendors approved by Landlord:
Alternatives Signs or Fluoresco Lighting-Sign Maintenance Corp.
II. GENERAL REQUIREMENTS
A. Landlord's written approval of Design Drawings and Working Shop
Drawings is required prior to the preparation and installation of
Tenant signage. All signage submittals must state the name of sign
company, and include letter style, sizes and color.
B. Sign permits must be obtained by Tenant prior to installation of
signage when required by County sign codes. This is Tenant's
responsibility and not the responsibility of Landlord. Electrical
signs must comply with local and building codes.
C. Signs installed without written approval of the Landlord or the
appropriate permit will be subject to removal and proper
reinstallation at Tenant's expense.
D. Tenant shall repair any damage caused during installation or removal
of signage.
E. No labels shall be permitted on the exposed surface of signs, except
those required by local ordinance.
F. Flashing, moving or audible signs are not permitted.
G. No portable signs or so-called "A" frame signs to be displayed on
site.
H. No secondary exterior signs are to be placed on building wall
elevations, and no roof mounted signs of any kind shall be
permitted.
I. No freestanding and/or pylon type exterior signs will be permitted.
J. Tenant shall remove all signs at his own expense at the expiration
of Lease term.
K. The Landlord reserves the right in its absolute discretion to reject
any sign that does not comply with the intent and spirit of the Sign
Criteria. It will be Tenant's responsibility to correct or remove
any non-conforming sign at Tenant's expense.
III. TENANT IDENTIFICATION SIGN (4555, 4565, 4575, 4585, 4595, 4605 BUILDINGS)
Tenant shall be permitted one (1) window identification sign that shall
not exceed ten (10) square feet in total area.
A.. TYPE: All signage will be computer cut adhesive vinyl placed on
Tenant's window next to main entrance door. No press type or hot
stamped letters purchased from a hardware store will be allowed. No
hanging plexiglas in the window or on the wall will be allowed
unless preapproved in writing by Landlord. No computer printed paper
signs taped to the window or walls will be allowed.
B. STYLE: Letter style will be open to Tenant.
C. COLOR. No neon or fluorescent colors unless preapproved in writing
by Landlord.
D. SIZE: Tenant's window signs will not exceed the boundaries of the
ten (10 ) square foot area shown in example Detail "D-1". Any
conditions not conforming to this example are subject to approval of
Landlord or on-site Manager.
E. INSTALLATION LOCATION/LANDLORD APPROVAL: Positioning of signs is
strictly subject to Landlord approval.
F. No sign of any sort shall be mounted on the building face except as
outlined in these requirements.
IV. TENANT IDENTIFICATION SIGN (WEST FACING SUITES, 4555 AND 4605 BUILDINGS
ONLY)
A. FORMAT: Internally illuminated pan-channel sheet metal letters with
white plex faces and 3/4" white trim-cap. Letter depth S",
illumination must be with neon, with no hot spots or neon
skeletoning showing when letters illuminate.
B. LOGOS: Shall be allowed, but shall not exceed 25% of sign area. Logo
colors shall be allowed. Landlord must approve all logo colors, and
colors can be denied if they are not in keeping with the
architectural design of the project.
C. LETTER STYLE: Shall be open to the Tenant's discretion. The Landlord
does have the right to deny any letter style that he feels does not
comply with the architectural design of the project.
D. COLOR: The letter faces shall be white. The letter returns and
raceway shall be painted to match the sign band color (Cabernet).
E. LETTER HEIGHT: Shall not exceed 18". Only one line of copy allowed.
Length of sign shall not exceed 75% of the leased building frontage.
F. INSTALLATION: Raceways are required. No double back connection
allowed. Maximum Height not to exceed Letter Height - 18". Maximum
Depth - 8". Minimum Depth -6".