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EXHIBIT 10.13
08/21/97 12/01/92
LEASE
THIS INDENTURE of lease, dated as of the 3rd day of September, 1997,
by and between OPUS SOUTHWEST CORPORATION, a Minnesota corporation, owner of
the Complex (as hereinafter defined), hereinafter referred to as "Lessor", and
VANSTAR CORPORATION, a Delaware corporation.
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter
set forth, does hereby lease and let unto Lessee, and Lessee does hereby hire
and take from Lessor, that certain space shown and designated on the site plan
attached hereto and made a part hereof as Exhibit A, which space consists of a
minimum of 85,852 square feet on the ground floor (except as hereinafter
provided), located in the office and warehouse complex known and described as
Tempe Commerce Park located in Tempe, Arizona, and the Premises is located at
7333 South Hardy Road, Tempe, Arizona 85253. In the event Lessee's space plan
for the Premises as mutually approved by Lessor and Lessee, in accordance with
the terms of this Lease, Lessor hereby agrees to construct not less than 14,000
square feet of space on a mezzanine level. The aforesaid space leased and let
unto Lessee is hereinafter referred to as the "Premises"; the land (including
all easement areas appurtenant thereto) upon which the building ("Building")
of which the Premises are a part is hereinafter referred to as the "Property";
and the Property and all buildings and improvements and personal property of
Lessor used in connection with the operation or maintenance thereof located
therein and thereon and the appurtenant parking facilities, if any, are
hereinafter called the "Complex". The parties hereto acknowledge and agree that
Lessor shall construct, as a part of the Tenant Improvements (as defined in
Article XXIX hereof), an approximate 20,000 to 24,000 square foot area located
at the southern end of the Building (the "Temporary Space") for occupancy by
Lessee prior to substantial completion of the balance of the Premises. The
Temporary Space, together with the balance of the Premises, is sometimes
hereinafter referred to "Permanent Premises".
Lessee hereby accepts this Lease and the Premises upon the covenants
and conditions set forth herein and subject to any encumbrances, covenants,
conditions, restrictions and other matters of record and all applicable zoning,
municipal, county, state and federal laws, ordinances and regulations governing
and regulating the use of the Premises.
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or
obligation on the part of Lessor to make any alterations, improvements or
repairs of any kind on or about the Premises, except as expressly provided
herein, commencing, with respect to the Temporary Space, upon substantial
completion of the Temporary Space, and commencing, with respect to the
Permanent Premises, upon substantial completion of the Permanent Premises,
which Lessor estimates will occur on or about the 1st day of February, 1998.
The term of this Lease shall end on the date 10 years following the date of
substantial completion of the Permanent Premises unless sooner terminated in
the manner provided hereinafter, to be occupied and used by Lessee for general
office and warehouse purposes and for no other purpose, subject to the
covenants and agreements hereinafter contained.
ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, Lessee agrees
to pay to Lessor, at c/o Normandale Properties Southwest Corporation, 4742
North 24th Street, Suite 100, Phoenix, Arizona 85016, Attention: Accounting
Department, after October 1, 1997, to Lessor at c/o Normandale Properties
Southwest Corporation, 2415 East Camelback, Suite 850, Phoenix, Arizona 85016,
Attention: Accounting Department, or at such other place as Lessor from time to
time may designate in writing, an annual rental as hereinafter set
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forth, commencing on the first day of the term and continuing on the first day
of each and every month thereafter for the next succeeding months during the
balance of the term:
APPLICABLE PORTION ANNUAL
OF TERM BASE RENT
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Years 1-5 $10.64
Years 6-10 $11.96
If the term commences on a date other than the first day of a calendar
month or ends on a date other than the last day of a calendar month, monthly
rent for the first month of the term or the last month of the term, as the case
may be, shall be prorated based upon the ratio that the number of days in the
term within such month bears to the total number of days in such month.
ARTICLE II. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee
under the provisions of Article I hereof, Lessee shall pay to Lessor
"Additional Rent" as hereinafter provided for in this Article II. All sums
under this Article II and all other sums and charges required to be paid by
Lessee under this Lease (except Base Rent), however denoted, shall be deemed to
be "Additional Rent". If any such amounts or charges are not paid at the time
provided in this Lease, they shall nevertheless be collectible as Additional
Rent with the next installment of Base Rent falling due.
For purposes of this Article II, the parties hereto agree upon the
following Definitions:
A. The term "Lease Year" shall mean each of those calendar years
commencing with and including the year during which the term
of this Lease commences, and ending with the calendar year
during which the term of this Lease (including any extensions
or renewals) terminates.
B. The term "Real Estate Taxes" shall mean and include all
personal property taxes of Lessor relating to Lessor's
personal property located in the Complex and used or useful
in connection with the operation and maintenance thereof,
real estate taxes and installments of special assessments,
including interest thereon, relating to the Property and the
Complex, and all other governmental charges, general and
special, ordinary and extraordinary, foreseen as well as
unforeseen, of any kind and nature whatsoever, or other tax,
however described, which is levied or assessed by the United
States of America or the state in which the Complex is
located or any political subdivision thereof, against Lessor
or all or any part of the Complex as a result of Lessor's
ownership of the Property or the Complex, and payable during
the respective Lease Year. The term "Real Estate Taxes" shall
also include any assessments or other charges imposed against
Lessor or all or any part of the Complex and payable during
the respective Lease Year as a result of the Complex being
subject to any covenants, conditions or restrictions now or
hereafter recorded, as the same may be amended from time to
time. It shall not include any net income tax, estate tax or
inheritance tax.
C. The term "Operating Expenses" shall mean and include all
expenses incurred with respect to the maintenance and
operation of the Property and the Complex as determined by
Lessor's accountant in accordance with generally accepted
accounting principles consistently followed, including, but
not limited to, insurance premiums (including insurance
premiums for rent insurance), maintenance and repair costs,
steam, electricity, water, sewer, gas and other utility
charges, fuel, lighting,
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window washing and janitorial services, trash and rubbish
removal, wages payable to employees of Lessor whose duties
are connected with the operation and maintenance of the
Property and the Complex (but only for the portion of their
time allocable to work related to the Complex), amounts paid
to contractors or subcontractors for work or services
performed in connection with the operation and maintenance of
the Property and the Complex, all costs of uniforms, supplies
and materials used in connection with the operation and
maintenance of the Property and the Complex, all payroll
taxes, unemployment insurance costs, vacation allowances and
the cost of providing disability insurance or benefits,
pensions, profit sharing benefits, hospitalization,
retirement or other so-called fringe benefits, and any other
expense imposed on Lessor or its contractors or
subcontractors, pursuant to law or pursuant to any collective
bargaining agreement covering such employees, all services,
supplies, repairs, replacements or other expenses for
maintaining and operating the Complex, reasonable attorneys,
fees and costs in connection with appeal or contest of real
estate or other taxes or levies, and such other expenses as
may be ordinarily incurred in the operation and maintenance
of a warehouse complex and not specifically set forth herein,
including reasonable management fees and the costs of a
building office at the Complex. The term "Operating Expenses"
shall not include any capital improvement to the Complex
other than replacements required for normal maintenance and
repair, nor shall it include repairs, restoration or other
work occasioned by fire, windstorm or other insured casualty,
expenses incurred in leasing or procuring tenants, leasing
commissions, advertising expenses, expenses for renovating
space for new tenants, legal expenses incident to enforcement
by Lessor of the terms of any lease, interest or principal
payments on any mortgage or other indebtedness of Lessor,
compensation paid to any employee of Lessor above the grade
of building superintendent, depreciation allowance or
expense. Notwithstanding the foregoing, in the event Lessor
installs equipment in or makes improvements or alterations to
the Complex which are for the purpose of reducing energy
costs, maintenance costs or other Operating Expenses or which
are required under any governmental laws, regulations or
ordinances which were not required at the date of
commencement of the term of this Lease, Lessor may include in
Operating Expenses reasonable charges for interest on such
investment and reasonable charges for depreciation on the
same so as to amortize such investment over the reasonable
life of such equipment, improvement or alteration on a
straight line basis. Operating Expenses shall also be deemed
to include expenses incurred by Lessor in connection with
city sidewalks adjacent to the Property and any pedestrian
walkway system (either above or below ground) or other public
facility to which Lessor or the Complex is from time to time
subject in connection with operations of the Property and the
Complex.
D. The term "Lessee's Pro Rata Share of Real Estate Taxes" shall
mean that percentage of the Real Estate Taxes determined by
dividing (i) the actual total square footage of the Premises
by (ii) the actual total square footage of the Building for
the applicable Lease Year, and the term "Lessee's Pro Rata
Share of Operating Expenses" shall mean that percentage of
the Real Estate Taxes determined by dividing (i) the actual
total square footage of the Premises by (ii) the actual total
square footage of the Building for the applicable Lease Year.
Notwithstanding the foregoing, the percentages for
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Lessee's Pro Rata Share of Operating Expenses and for
Lessee's Pro Rata Share of Real Estate Taxes shall be amended
each Lease Year to the greater of the following: (i) if the
total rentable area leased in the Complex (pursuant to leases
under which the term has commenced) is ninety-five percent
(95%) or less than the total rentable area of the Complex,
the percentages shall be that which the rentable area of the
Premises bears to ninety-five percent (95%) of the total
rentable area of the Complex for such Lease Year; or (ii) if
the total rentable area leased in the Complex (pursuant to
leases under which the term has commenced) is greater than
ninety-five percent (95%), the percentages shall be that
which the rentable area of the Premises bears to the actual
rentable area of the Complex for such Lease Year. Rentable
area shall in no event include basement storage space or
garage space.
E. Anything herein to the contrary notwithstanding, it is agreed
that in the event the Complex is not fully occupied during
any calendar year or Lease Year, a reasonable and equitable
adjustment shall be made by Lessor in computing the Operating
Expenses for such year so that the Operating Expenses shall be
be adjusted to the amount that would have been incurred had
the Complex been fully occupied during such year.
As to each Lease Year after the term of this Lease commences, Lessor
shall estimate for each such Lease Year (i) the total amount of Real Estate
Taxes; (ii) the total amount of Operating Expenses; (iii) Lessee's Pro Rata
Share of Real Estate Taxes; (iv) Lessee's Pro Rata Share of Operating Expenses;
(v) the computation of the annual and monthly rental payable during such Lease
Year as a result of increases or decreases in Lessee's Pro Rata Share of Real
Estate Taxes and Lessee's Pro Rata Share of Operating Expenses. Said estimate
shall be in writing and shall be delivered or mailed to Lessee at the Premises.
Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata
Share of Real Estate Taxes for each Lease Year and Lessee's Pro Rata Share of
Operating Expenses for each Lease Year, so estimated, in equal monthly
installments, in advance, on the first day of each month during each applicable
Lease Year. In the event that said estimate is delivered to Lessee after the
first day of January of the applicable Lease Year, said amount, so estimated,
shall be payable as Additional Rent, in equal monthly installments, in advance,
on the first day of each month over the balance of such Lease Year, with the
number of installments being equal to the number of full calendar months
remaining in such Lease Year.
From time to time during any applicable Lease Year, Lessor may
reestimate the amount of Real Estate Taxes and Operating Expenses and Lessee's
Pro Rata Share thereof, and in such event Lessor shall notify Lessee, in
writing, of such reestimate in the manner above set forth and fix monthly
installments for the then remaining balance of such Lease Year in an amount
sufficient to pay the reestimated amount over the balance of such Lease Year
after giving credit for payments made by Lessee on the previous estimate.
Upon completion of each Lease Year, Lessor shall cause its accountants
to determine the actual amount of Real Estate Taxes and Operating Expenses for
such Lease Year and Lessee's Pro Rata Share thereof and deliver a written
certification of the amounts thereof to Lessee after the end of each Lease
Year. If Lessee has paid less than its Pro Rata Share of Real Estate Taxes or
its Pro Rata Share of Operating Expenses for any Lease Year, Lessee shall pay
the balance of its Pro Rata Share of the same within ten (10) business days
after the receipt of such statement. If Lessee has paid more than its Pro Rata
Share of Real Estate Taxes or its Pro
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Rata Share of Operating Expenses for any Lease Year, Lessor shall, at Lessee's
option, either (i) refund such excess, or (ii) credit such excess against the
most current monthly installment or installments due Lessor for its estimate of
Lessee's Pro Rata Share of Real Estate Taxes and Lessee's Pro Rata Share of
Operating Expenses for the next following Lease Year. A pro rata adjustment
shall be made for a fractional Lease Year occurring during the term of this
Lease or any renewal or extension thereof based upon the number of days of the
term of this Lease during said Lease Year as compared to three hundred
sixty-five (365) days and all additional sums payable by Lessee or credits due
Lessee as a result of the provisions of this Article II shall be adjusted
accordingly.
Further, Lessee shall pay, also as Additional Rent, all other sums and
charges required to be paid by Lessee under this Lease, and any tax or excise
on rents, gross receipts tax, transaction privilege tax or other tax, however
described, which is levied or assessed by the United States of America or the
state in which the Complex is located or any political subdivision thereof, or
any city or municipality, against Lessor in respect to the Base Rent,
Additional Rent, or other charges reserved under this Lease or as a result of
Lessor's receipt of such rents or other charges accruing under this Lease;
provided, however, Lessee shall have no obligation to pay net income taxes of
Lessor.
ARTICLE III. LATE CHARGE AND OVERDUE AMOUNTS - RENT INDEPENDENT:
Lessee shall pay to Lessor, as liquidated damages, a late charge equal to five
percent (5%) of any amount not paid on the date when the same is due to
compensate Lessor for its costs in connection with such late payment by Lessee.
The assessment or collection of a late charge hereunder shall not constitute
the waiver by Lessor of a default by Lessee under this Lease and shall not bar
the exercise by Lessor of any rights or remedies available under this Lease. In
addition, any installment of Base Rent, Additional Rent or other charges to be
paid by Lessee accruing under the provisions of this Lease, which shall not be
paid when due, shall bear interest at the rate of eighteen percent (18%) per
annum from the date when the same is due until the same shall be paid, but if
such rate exceeds the maximum interest rate permitted by law, such rate shall
be reduced to the highest rate allowed by law under the circumstances. Lessee's
covenants to pay the Base Rent and the Additional Rent are independent of any
other covenant, condition, provision or agreement herein contained. Nothing
herein contained shall be deemed to suspend or delay the payment of any amount
of money or charge at the time the same becomes due and payable hereunder, or
limit any other remedy of Lessor. Base Rent and Additional Rent are sometimes
collectively referred to as "rent". Rent shall be payable without deduction,
offset, prior notice or demand, in lawful money of the United States.
ARTICLE IV. POSSESSION OF PREMISES: Lessor anticipates that Lessor
will require approximately eight (8) weeks following execution of this Lease
and delivery by Lessee of a final, approved, space plan for substantial
completion of the Temporary Space, which schedule is based upon an expedited
review process by the City of Tempe. If Lessor shall be unable to give
possession of the Permanent Premises on the completion date contained in the
construction schedule to be mutually agreed upon by Lessor and Lessee and
delivered by Lessor to Lessee (which construction schedule shall be delivered
to Lessee concurrently with Lessor's receipt of a building permit for the
Tenant Improvements) ("the Target Commencement Date") because the construction
of the Complex or the completion of the Premises has not been sufficiently
completed to make the Premises ready for occupancy, or for any other reason,
Lessor shall not be subject to any claims, damages or liabilities for the
failure to give possession on said date; provided, however, that if substantial
completion of the Tenant Improvements (as hereinafter defined) is not achieved
within sixty (60) days following the Target Commencement Date (provided,
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however, that if delay in substantial completion of the Tenant Improvements is
caused or contributed to by act or neglect of Lessee or those acting for or
under Lessee, or by labor disputes, casualties, acts of God or the public
enemy, governmental embargo restrictions, shortages of fuel, labor or building
materials, action or nonaction of public utilities, or of local, state or
federal governments affecting the Tenant Improvements (such as a delay in the
issuance of a certificate of occupancy or other governmental approvals), or
other causes beyond Lessor's reasonable control, then the Target Commencement
Date shall be extended for the additional time caused by such delay), then
Lessor shall afford Lessee one day of occupancy, free of Base Rent and
Additional Rent, for each one day of delay between the date which is sixty (60)
days after the Target Commencement Date and the actual commencement date, up to
a maximum of ninety (90) days of such free occupancy. In the event Lessor is
unable to deliver the substantially completed Premises to Lessee on or before
the date 150 days following the Target Commencement Date, then either party may
thereafter terminate this Lease by delivery of written notice thereof to the
other party on or before Lessor's substantial completion of the Tenant
Improvements. For purposes of this Article IV, substantial completion of the
Tenant Improvements shall be deemed to have occurred when the only Tenant
Improvement work remaining to be completed is such work which can be
accomplished without material adverse interference with Lessee's business.
Except as specifically set forth in the preceding provisions of this Article
IV, if Lessor shall be unable to give possession of the Premises on the Target
Commencement Date because the completion of the Premises has not been
sufficiently completed to make the Premises ready for occupancy, or for any
other reason, Lessor shall not be subject to any claims, damages or liabilities
for the failure to give possession of said date. Under said circumstances, the
rent reserved and covenant to pay same shall not commence until possession of
the Premises is given or the Premises are ready for occupancy, whichever is
earlier (subject to Lessee's right to abatement of rent as set forth in the
first sentence of this Article), and failure to give possession on the Target
Commencement Date shall in no way affect the validity of this Lease or the
obligations of Lessee hereunder; provided, however, that if the date of
commencement of the initial term is delayed beyond the Target Commencement
Date, the expiration date of the initial term shall be extended to provide for
a full ten-year zero-month initial term of this Lease; and provided further,
however, if Lessee receives an abatement of Base Rent and Additional Rent
pursuant to the first sentence of this Article, then the expiration date of the
initial term shall be further extended by the same number of days as within
such abatement period. If Lessee is given and accepts possession of the
Premises on a date earlier than the Target Commencement Date, the rent reserved
herein and all covenants, agreements and obligations herein and the term of
this Lease shall commence on the date that possession of the Premises is given
to Lessee.
The acceptance of possession by Lessee shall be deemed conclusively to
establish that the Premises and all other improvements of the Complex required
to be constructed by Lessor for use thereof by Lessee hereunder have been
completed at such time to Lessee's satisfaction and in conformity with the
provisions of this Lease in all respects unless Lessee notifies Lessor in
writing within sixty (60) days after commencement of the term as to any items
not completed. Lessee waives any claim as to matters not listed in said notice.
Lessee acknowledges that neither Lessor nor any agent of Lessor has made any
representation or warranty with respect to the Premises or the Complex or with
respect to the suitability or fitness of either for the conduct of Lessee's
business or for any other purpose.
ARTICLE V. SERVICES:
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A. All electric lighting bulbs and tubes and all ballasts and
starters within the Premises shall be replaced by Lessee at
the expense of Lessee.
B. Subject to Article II hereof, Lessor shall provide
maintenance in good order, condition and repair of the
parking facilities and all driveways leading thereto and
keeping the same free from any unreasonable accumulation of
snow. Lessor shall keep and maintain the landscaped area and
parking facilities in a neat and orderly condition. Lessor
reserves the right to designate areas of the appurtenant
parking facilities where Lessee and its agents, employees and
invitees shall park and may exclude Lessee, its agents,
employees and invitees from parking in other areas as
designated by Lessor; provided, however, Lessor shall not be
liable to Lessee for the failure of any tenant or its
invitees, employees, agents or customers to abide by Lessor's
designations or restrictions.
No interruption in, or temporary stoppage of, any of the aforesaid
services caused by repairs, renewals, improvements, alterations, strikes,
lockouts, labor controversies, accidents, inability to obtain fuel or supplies,
or other causes shall be deemed an eviction or disturbance of Lessee's use and
possession, or render Lessor liable for damages, by abatement of rent or
otherwise or relieve Lessee from any obligation herein set forth. In no event
shall Lessor be required to provide any heat, air conditioning, electricity or
other service in excess of that permitted by voluntary or involuntary
guidelines or laws, ordinances or regulations of governmental authority.
ARTICLE VI. USE: The Premises shall be used for general office and warehouse
purposes and for carrying on such activities as may be incidental thereto and
for no other purpose; provided, however, Lessee may not use or occupy the
Premises, or knowingly permit the Premises to be used or occupied, contrary to
any statute, rule, order, ordinance, requirement or regulation or any covenant,
condition or restriction now or hereafter applicable thereto, or in any manner
which would violate any certificate of occupancy or permit affecting the same,
or which would cause structural injury to the Premises or cause the value or
usefulness of the Premises, or any part thereof, substantially to diminish
(reasonable wear and tear excepted) or which would constitute a private or
public nuisance or waste, and Lessee agrees that it will promptly, upon
discovery of any such use, take all necessary steps to compel the
discontinuance of such use.
ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use
or possession, or giving rise to any claim for setoff or abatement of rent:
A. To control, install, affix and maintain any and all signs on
the Property, or on the exterior of the Complex and in any
common corridors, entrances and other common areas thereof,
except those signs within the Premises not visible from
outside the Premises.
B. To reasonably designate, limit, restrict and control any
service in or to the Complex, including but not limited to
the designation of sources from which Lessee may obtain sign
painting and lettering. Any restriction, designation,
limitation or control imposed by reason of this subparagraph
shall be imposed uniformly on Lessee and other tenants
occupying space in the Complex.
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C. To retain at all times and to use in appropriate instances
keys to all doors within and into the Premises. No locks
shall be changed without the prior written consent of Lessor.
This provision shall not apply to Lessee's safes or other
areas maintained by Lessee for the safety and security of
monies, securities, negotiable instruments or like items.
D. To make repairs, improvements, alterations, additions or
installations, whether structural or otherwise, in and about
the Complex, or any part thereof, and for such purposes to
enter upon the Premises during regular business hours with at
least 24 hours prior notice (except in the event of an
emergency), and during the continuation of any of said work,
to temporarily close doors, entryways, public spaces and
corridors in the Complex and to interrupt or temporarily
suspend services and facilities.
E. To approve the weight, size and location of safes and other
heavy equipment and articles in and about the Premises and
the Complex and to require all such items to be moved into
and out of the Complex and the Premises only at such times
and in such manner as Lessor shall direct in writing.
ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any
improvements, alterations, additions or installations in or to the Premises
(hereinafter referred to as the "Work") without Lessor's prior written consent,
which consent shall not be unreasonably withheld or delayed except in the event
that any such Work involves or affects the roof or the structural, mechanical,
electrical, plumbing, or fire/life safety systems in the Premises or the
Complex, in which event such consent may be withheld in Lessor's sole
discretion. Along with any request for Lessor's consent and before commencement
of the Work or delivery of any materials to be used in the Work to the Premises
or into the Complex, Lessee shall furnish Lessor with plans and specifications,
names and addresses of contractors, copies of contracts, necessary permits and
licenses, an indemnification in such form and amount as may be reasonably
satisfactory to Lessor. Lessee agrees to defend and hold Lessor forever
harmless from any and all claims and liabilities of any kind and description
which may arise out of or be connected in any way with said improvements,
alterations, additions or installations. All Work shall be done only by
contractors or mechanics reasonably approved by Lessor and at such time and in
such manner as Lessor may from time to time reasonably designate. All work done
by Lessee or its agents, employees or contractors shall be done in such a
manner as to avoid labor disputes. Lessee shall pay the cost of all such
improvements, alterations, additions or installations (including a reasonable
charge for Lessor's services and for Lessor's inspection and engineering time)
and the cost of painting, restoring or repairing the Premises and the Complex
occasioned by such improvements, alterations, additions or installations. Upon
completion of the Work, Lessee shall furnish Lessor with contractor's
affidavits, cull and final waivers of liens and receipted bills covering all
labor and materials expended and used. The Work shall comply with all insurance
requirements and all laws, ordinances, rules and regulations of all
governmental authorities and shall be constructed in a good and workmanlike
manner. Lessee shall permit Lessor to inspect construction operations in
connection with the Work. Lessee shall not be allowed to make any improvements,
alterations, additions or installations if such action results or would result
in a labor dispute or otherwise would materially interfere with Lessor's
operation of the Complex. Lessor, by
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written notice to Lessee giving at or prior to termination of this Lease, may
require Lessee, at Lessee's sole cost and expense, to remove any improvements
exclusive of Tenant Improvement as set forth herein, alterations, additions or
installations installed by Lessee in the Premises and to repair or restore any
damage caused by the installation and removal of such improvements,
alterations, additions or installations; provided, however, the only
improvements, additions or installations which Lessee shall remove shall be
those specified in Lessor's notice. Lessee shall keep the Premises and the
Complex free from any liens arising out of any work performed, material
furnished or obligations incurred by Lessee, and shall indemnify, protect,
defend and hold harmless Lessor from any liens and encumbrances arising out of
any work performed or material furnished by or at the direction of Lessee. In
the event that Lessee shall not, within twenty (20) days following the
imposition of any such lien, cause such lien to be released of record by
payment or posting of a proper bond, Lessor shall have, in addition to all
other remedies provided herein and by law, the right, but not the obligation,
to cause the same to be released by such means as it shall deem proper,
including payment of and/or defense against the claim giving rise to such lien.
All such sums paid by Lessor and all expenses incurred by it in connection
therewith, including attorneys' fees and costs, shall be payable as Additional
Rent to Lessor by Lessee on demand with interest at the rate provided in
Article III accruing from the date paid or incurred by Lessor until reimbursed
to Lessor by Lessee.
ARTICLE IX. REPAIRS: Subject to Article X hereof, Lessee shall, during the term
of this Lease, at Lessee's expense, keep the Premises in as good order,
condition and repair as they were at the time Lessee took possession of the
same, reasonable wear and tear and damage from fire and other casualties
excepted. Lessee shall keep the Premises in a neat and sanitary condition, and
Lessee shall not commit any nuisance or waste on the Premises or in, on or
about the Complex, throw foreign substances in the plumbing facilities, or
waste any of the utilities furnished by the Lessor. All uninsured damage or
injury to the Premises or to the Complex caused by Lessee moving furniture,
fixtures, equipment or other devices in or out of the Premises or the Complex
or by installation or removal of furniture, fixtures, equipment, devices or
other property of Lessee or its agents, contractors, servants or employees, due
to carelessness, omission, neglect, improper conduct or other cause of Lessee
or its servants, employees, agents, visitors or licensees, shall be repaired,
restored and replaced promptly by Lessee at its sole cost and expense to the
satisfaction of Lessor. All repairs, restorations and replacements shall be in
quality and class equal to the original work.
Lessor and its employees and agents shall have the right to enter the
Premises during or as a result of any emergency, or at any reasonable time or
times for the purpose of inspection, cleaning, repairs, altering or improving
the same but nothing contained herein shall be construed as imposing any
obligation on Lessor to make any repairs, alterations or improvements which are
the obligation of Lessee.
Lessee shall give written notice to Lessor at least thirty (30) days
prior to vacating the Premises for the express purpose of arranging a meeting
with Lessor for a joint inspection of the Premises. In the event of Lessee's
failure to give such notice and arrange such joint inspection, Lessor's
inspection at or after Lessee's vacation of the Premises shall be conclusively
deemed correct for purposes of determining Lessee's responsibility for repairs
and restoration hereunder.
ARTICLE X. INSURANCE: Lessor shall keep the Complex insured for the benefit of
Lessor in an amount equivalent to the full replacement value thereof (excluding
foundation, grading and excavation costs) against:
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(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are now
or may be customarily covered with respect to buildings and improvements
similar in construction, general location, use, occupancy and design to the
Complex, including, but without limiting the generality of the foregoing,
windstorms, hail, explosion, vandalism, malicious mischief, civil commotion and
such other coverage as may be deemed necessary by Lessor, provided such
additional coverage is obtainable and provided such additional coverage is such
as is customarily carried with respect to buildings and improvements similar in
construction, general location, use, occupancy and design to the Complex.
These insurance provisions shall in no way limit or modify any of the
obligations of Lessee under any provision of this Lease. Lessor agrees that
such policy or policies of insurance shall permit releases of liability as
provided herein and/or waiver of subrogation clause as to Lessee, and Lessor
waives, releases and discharges Lessee from all claims or demands whatsoever
which Lessor may have or acquire arising out of damage to or destruction of the
Complex or loss of use thereof occasioned by fire or other casualty, whether
such claim or demand may arise because of the negligence or fault of Lessee or
its agents, employees, customers or business invitees, or otherwise, and Lessor
agrees to look to the insurance coverage only in the event of such loss.
Notwithstanding the foregoing, Lessee shall be obligated to pay the rental
called for hereunder in the event of damage to or destruction of the Premises
or the Complex if such damage or destruction is occasioned by the negligence or
fault of Lessee, its agents or employees. Insurance premiums paid thereon shall
be a portion of the "Operating Expenses" described in Article II hereof.
Notwithstanding the above, in the event a release of Lessee or waiver of
subrogation as to Lessee (without invalidation of coverage) becomes generally
unavailable in insurance policies as to commercial warehouse projects similar
to the Complex, the release and any waiver of subrogation above provided for
shall cease upon written notice by Lessor to Lessee of such event. Thereafter,
Lessee may, upon written notice to Lessor, require Lessor to secure a waiver of
subrogation as to Lessee if (a) a right to waive subrogation as to Lessee
thereafter becomes available without increased premium, or (b) a right to waive
subrogation as to Lessee becomes available and Lessee pays any increased
premium required in connection therewith.
Lessee shall keep all of its machinery, equipment, furniture,
fixtures, personal property (including also property under the care, custody or
control of Lessee) and business interests which may be located in, upon or
about the Premises insured for the benefit of Lessee in an amount equivalent to
the full replacement value or insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as are
now, or may in the future be, customarily covered with respect to a tenants
machinery, equipment, furniture, fixtures, personal property and business
located in a building similar in construction, general location, use, occupancy
and design to the Complex, including, but without limiting the generality of
the foregoing, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion and such other coverage as Lessee may deem
appropriate or necessary.
Lessee agrees that such policy or policies of insurance shall permit
releases of liability as provided herein and/or waiver of subrogation clause as
to Lessor, and Lessee waives, releases and discharges Lessor and its agents,
employees and contractors from all claims or demands whatsoever which Lessee
may have or acquire
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arising out of damage to or destruction of the machinery, equipment, furniture,
fixtures, personal property and loss of use thereof occasioned by fire or other
casualty, whether such claim or demand may arise because of the negligence or
fault of Lessor or its agents, employees, contractors or otherwise, and Lessee
agrees to look to the insurance coverage only in the event of such loss.
Lessor shall, as a portion of the Operating Expenses defined in
Article II, maintain, for its benefit and the benefit of its managing agent,
general public liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the Complex, such insurance to
afford protection to Lessor and its managing agent.
Lessee shall, at Lessee's sole cost and expense but for the mutual
benefit of Lessor, its managing agent and Lessee, maintain general public
liability insurance against claims for personal injury, death or property
damage occurring upon, in or about the Premises, such insurance to afford
protection to Lessor, its managing agent and Lessee to the limit of not less
than One Million and No/100 Dollars ($1,000,000.00) in respect to the injury or
death to a single person, and to the limit of not less than Three Million and
No/100 Dollars ($3,000,000.00) in respect to any one accident, and to the limit
of not less than Five Hundred Thousand and No/100 Dollars ($500,000.00) in
respect to any property damage. Such policies of insurance shall be written in
companies reasonably satisfactory to Lessor, naming Lessor and its managing
agent as additional insureds thereunder, and such policies, or a memorandum or
certificate of such insurance, shall be delivered to Lessor endorsed "Premium
Paid" by the company or agent issuing the same or accompanied by other evidence
satisfactory to Lessor that the premium thereon has been paid. At such time as
insurance limits required of tenants in warehouse buildings in the area in
which the Complex is located are generally increased to greater amounts, Lessor
shall have the right to require such greater limits as may then be customary.
Lessee agrees to include in such policy the contractual liability coverage
insuring Lessee's indemnification obligations provided for herein. Any such
coverage shall be deemed primary to any liability coverage secured by Lessor.
Such insurance shall also afford coverage for all claims based upon acts,
omissions, injury or damage, which claims occurred or arose (or the onset of
which occurred or arose) in whole or in part during the policy period.
Except to the extent of any claims, losses, costs, liabilities,
actions or damages arising from the gross negligence or willful misconduct of
Lessor, Lessee agrees to indemnify, protect, defend and hold harmless Lessor and
Lessor's partners, shareholders, employees, lender and managing agent harmless
from and against any and all claims, losses, costs, liabilities, actions and
damages, including without limitation attorneys' fees and costs, by or on behalf
of any person or persons, firm or firms, corporation or corporations, arising
from any breach or default on the part of Lessee in the performance of any
covenant or agreement on the part of Lessee to be performed, pursuant to the
terms of this Lease, or arising from any act or negligence on the part of Lessee
or its agents, contractors, servants, employees or licensees, or arising from
any accident, injury or damage to the extent caused by Lessee or its agents or
employees to any person, firm or corporation occurring during the term of this
Lease or any renewal thereof, in or about the Premises and the Complex, and from
and against all costs, reasonable counsel fees, expenses and liabilities
incurred in or about any such claim or action or proceeding brought thereon; and
in case any action or proceeding be brought against Lessor or its managing agent
by reason of any such claim, Lessee, upon notice from Lessor, covenants to
resist or defend such action or proceeding by counsel reasonably satisfactory to
Lessor.
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Lessee agrees, to the extent not expressly prohibited by law, that
Lessor and Lessor's agents, employees and servants shall not be liable, and
Lessee waives all claims for damage to property and business sustained during
the term of this Lease by Lessee occurring in or about the Complex, resulting
directly or indirectly from any existing or future condition, defect, matter or
thing in the Premises, the Complex or any part thereof, or from equipment or
appurtenances becoming out of repair, or from accident, or from any occurrence
or act or omission of Lessor, Lessor's agents, employees or servants (except
for any act or omission involving the gross negligence or willful misconduct of
Lessor or its agents, employees, servants or contractors), any tenant or
occupant of the Complex or any other person. This paragraph shall apply
especially, but not exclusively, to damage caused as aforesaid or by the
flooding of basements or other subsurface areas, or by refrigerators,
sprinkling devices, air conditioning apparatus, water, snow, frost, steam,
excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or
noise, or the bursting or leaking of pipes or plumbing fixtures, and shall
apply equally, whether any such damage results from the act or omission of
other tenants or occupants in the Complex or any other persons, and whether
such damage be caused by or result from any of the aforesaid, or shall be
caused by or result from other circumstances of a similar or dissimilar nature.
Anything herein to the contrary notwithstanding, in the event any
damage to the Complex results from any act or omission of Lessee, its agents,
employees or invitees, and all or any portion of Lessor's loss is within the
"deductible" portion of Lessor's insurance coverage, Lessee shall pay to Lessor
the amount of such deductible loss (not to exceed $1,000 per event). All
property in the Complex or on the Premises belonging to Lessee or its agents,
employees or invitees or otherwise located at the Premises, shall be at the
risk of Lessee only, and Lessor shall not be liable for damage thereto or
theft, misappropriation or loss thereof, and Lessee agrees to defend and hold
Lessor and Lessor's agents, employees and servants harmless and indemnify them
against claims and liability for injuries to such property. Lessee shall not do
or permit anything to be done in or about the Premises nor bring or keep
anything therein which will in any way increase the existing rate of or affect
in any other way any fire or other insurance upon the Complex or any of its
contents, or cause a cancellation of any insurance policy covering the Complex
or any of its contents. Notwithstanding anything to the contrary contained
herein, Lessee shall promptly, upon demand, reimburse Lessor for the full
amount of any additional premium charged for such policy by reason of Lessee's
failure to comply with the provisions of this paragraph, it being understood
that such demand for reimbursement shall not be Lessor's exclusive remedy.
Lessee shall promptly, upon demand, reimburse Lessor for any additional premium
charged for any such policy by reason of Lessee's failure to comply with the
provisions of this Article.
In the event Lessee fails to provide Lessor with evidence of insurance
required under this Article X, Lessor may, but shall not be obligated to,
without further demand upon Lessee, and without waiving or releasing Lessee
from any obligation contained in this Lease, obtain such insurance and Lessee
agrees to repay, upon demand, all such sums incurred by Lessor in effecting
such insurance. All such sums shall become a part of the Additional Rent
payable hereunder, but no such payment by Lessor shall relieve Lessee from any
default under this Lease.
ARTICLE XI. ASSIGNMENT AND SUBLETTING: Lessee shall not, without the prior
written consent of Lessor, which consent shall not be withheld unreasonably,
(i) transfer, pledge, mortgage or assign this Lease or any interest hereunder;
(ii) permit any assignment of this Lease by voluntary act, operation of law or
otherwise; (iii) sublet the Premises or any part thereof; or (iv) permit the
use of
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the Premises by any parties other than Lessee and its agents and employees.
Lessee shall seek such written consent of Lessor by a written request therefor,
setting forth such information as Lessor may deem necessary. Lessee shall, by
notice in writing, advise Lessor of Lessee's intention, from, on and after a
stated date (which shall not be less than thirty (30) days after the date of
Lessee's notice), to assign this Lease or to sublet any part or all of the
Premises for the balance or any part of the term. Lessee's notice shall include
all of the terms of the proposed assignment or sublease and shall state the
consideration therefor. In such event, Lessor shall have the right, to be
exercised by giving written notice to Lessee within thirty (30) days after
receipt of Lessee's notice, to recapture the space described in Lessee's notice
and such recapture notice shall, if given, cancel and terminate this Lease with
respect to the space therein described as of the date stated in Lessee's
notice. Lessee's notice shall state the name and address of the proposed
assignee or subtenant and a true and complete copy of the proposed assignment
or sublease shall be delivered to Lessor with Lessee's notice. If Lessee's
notice shall cover all of the Premises, and Lessor shall have exercised its
foregoing recapture right, the term of this Lease shall expire and end on the
date stated in Lessee's notice as fully and completely as if that date had been
herein definitely fixed for the expiration of the term. If, however, this Lease
be canceled with respect to less than the entire Premises, the Base Rent and
Additional Rent shall be equitably adjusted by Lessor with due consideration of
the size, location, type and quality of the portion of the Premises so
remaining after the "recapture" and such rent shall be reduced accordingly from
and after the termination date for said portion, and this Lease as so amended
shall continue thereafter in full force and effect. The rent adjustments
provided for herein shall be evidenced by an amendment to this Lease executed
by Lessor and Lessee. If this Lease shall be terminated in the manner
aforesaid, either as to the entire Premises or only a portion thereof, to such
extent the term of this Lease shall end upon the appropriate effective date of
the proposed sublease or assignment as if that date had been originally fixed
in this Lease for such expiration, and in the event of a termination affecting
less than the entire Premises, Lessee shall comply with Article XIV ("Surrender
of Premises") of this Lease with respect to such portion of the Premises
affected thereby.
In the event of any termination pursuant to this paragraph, Lessee
shall, at its sole cost and expense, discharge in full (i) any outstanding
commission obligation on the part of Lessor with respect to that part of this
Lease so terminated, and (ii) any commission which may be due and owing as a
result of any proposed assignment or subletting, whether or not the subject
portion of the Premises is "recaptured" pursuant thereto and rented by Lessor to
the proposed tenant or any other tenant.
If Lessor, upon receiving Lessee's notice with respect to any such
space, shall not exercise its right to recapture as aforesaid, Lessor will not
unreasonably withhold its consent to Lessee's assignment of the Lease or
subletting such space to the party identified in Lessee's notice, provided,
however, that in the event Lessor consents to any such assignment or
subletting, and as a condition thereto, Lessee shall pay to Lessor ninety
percent (90%) of all profit derived by Lessee from such assignment or
subletting. For purposes of the foregoing, profit shall be deemed to include,
but shall not be limited to, the amount of all rent payable by such assignee or
sublessee in excess of the Base Rent, and rent adjustments, payable by Lessee
under this Lease. If a part of the consideration for such assignment or
subletting shall be payable other than in cash, the payment to Lessor shall be
in cash for its share of any non-cash consideration based upon the fair market
value thereof.
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Lessee shall and hereby agrees that it will furnish to Lessor upon
request from Lessor a complete statement, certified by an independent certified
public accountant, setting forth in detail the computation of all profit
derived and to be derived from such assignment or subletting, such computation
to be made in accordance with generally accepted accounting principles. Lessee
agrees that Lessor and its authorized representatives shall be given access at
all reasonable times to the books, records and papers of Lessee relating to any
such assignment or subletting, and Lessor shall have the right to make copies
thereof. The percentage of Lessee's profit due Lessor hereunder shall be paid
by Lessee to Lessor within five (5) days of receipt by Lessee of all payments
made from time to time by such assignee or sublessee to Lessee.
For purposes of the foregoing, any change in the partners of Lessee,
if Lessee is a partnership, or, if Lessee is a corporation, any transfer of any
or all of the shares of stock of Lessee by sale, assignment, operation of law
or otherwise resulting in a change in the present control of such corporation
by the person or persons owning a majority of such shares as of the date of
this Lease, shall be deemed to be an assignment within the meaning of this
Article XI.
Any subletting or assignment hereunder shall not release or discharge
Lessee of or from any liability, whether past, present or future, under this
Lease, and Lessee shall continue fully liable thereunder. The subtenant or
subtenants or assignee shall agree in a form satisfactory to Lessor to agree to
be obligated for, comply with, and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease to the extent of the space
sublet or assigned, and Lessee shall deliver to Lessor promptly after execution
an executed copy of each such sublease or assignment and an agreement of
compliance by each such subtenant or assignee. Consent by Lessor to any
assignment of this Lease or to any subletting of the Premises shall not be a
waiver of Lessor's rights under this Article as to any subsequent assignment or
subletting.
Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Article XI shall be of
no effect and void. Lessor's right to assign its interest in this Lease shall
remain unqualified. Lessor may make a reasonable charge to Lessee for any
reasonable attorneys' fees or expenses incident to a review of any
documentation related to any proposed assignment or subletting by Lessee.
Notwithstanding anything to the contrary in this Lease, Lessee shall
not assign its rights under this Lease or sublet all or any part of the
Premises to a person, firm or corporation which is (or, immediately prior to
such subletting or assignment, was) a tenant or occupant of the Complex or any
warehouse or office building on property contiguous to the Complex owned by
Lessor.
The consent of Lessor to a transfer may not be unreasonably withheld,
provided that Lessor's withholding its consent for any of the following reasons,
which list is not exclusive, shall be deemed to be reasonable:
(a) Financial strength of the proposed transferee must be acceptable
to Lessor in Lessor's reasonable discretion;
(b) A proposed transferee whose occupation of the Premises would
cause a diminution in the reputation of the Complex or the other
businesses located therein;
(c) A proposed transferee whose impact on the common areas or the
other occupants of the Complex would be disadvantageous; or
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(d) A proposed transferee whose occupancy will require any variation
in the terms and conditions of this Lease.
ARTICLE XII. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall
render the whole or any material portion of the Premises untenantable, and the
Premises can reasonably be expected to be made tenantable within one hundred
twenty (120) days from the date of such event, then Lessor shall repair and
restore the Premises and the Complex to as near their condition prior to the
fire or other casualty as is reasonably possible within such one hundred twenty
(120) day period (subject to delays for causes beyond Lessor's reasonable
control) and notify Lessee that it will be doing so, such notice to be mailed
within thirty (30) days from the date of such damage or destruction, and this
Lease shall remain in full force and effect, but the rent for the period during
which the Premises are untenantable shall be abated pro rata (based upon the
portion of the Premises which is untenantable). If Lessor is required to repair
the Complex and/or the Premises, as aforesaid, said work shall be undertaken
and prosecuted with all due diligence and speed.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event, then either party, by notice in writing to the other mailed within
thirty (30) days from the date of such damage or destruction, may terminate
this Lease effective upon a date within thirty (30) days from the date of such
notice.
In the event that more than fifty percent (50%) of the value of the
Complex is damaged or destroyed by fire or other casualty, and irrespective of
whether damage or destruction can be made tenantable within one hundred twenty
(120) days thereafter, then at Lessor's option, by written notice to Lessee,
mailed within forty-five (45) days from the date of such damage or destruction,
Lessor may terminate this Lease effective upon a date within ninety (90) days
from the date of such notice to Lessee.
If fire or other casualty shall render any portion of the Premises or
any material portion of the Complex untenantable and the insurance proceeds are
not sufficient to make repairs, then Lessor may, by notice to Lessee, mailed
within thirty (30) days from the date of such damages or destruction, terminate
this Lease effective upon a date within thirty (30) days from the date of such
notice.
If the Premises or the Complex is damaged, and such damage is of the
type insured against under the fire and special form property damage insurance
maintained by Lessor hereunder, the cost of repairing said damage up to the
amount of the deductible under said insurance policy shall be included as a
part of the Operating Expenses. If the damage is not covered by such insurance
policies and Lessor elects to repair the damage, then Lessee shall pay Lessor a
pro rata share of the "deductible amount" (if any) under Lessor's insurance
policies based on Lessee's percentage interest of the Premises and, if the
damage was due to an act or omission of Lessee, Lessee shall pay Lessor the
difference between the actual cost of repair and any insurance proceeds
received by Lessor.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event and neither party hereto terminates this Lease pursuant to its rights
herein or in the event that more than fifty percent (50%) of the value of the
Complex is damaged or destroyed by fire or other casualty, and Lessor does not
terminate this Lease pursuant to its option granted herein, or in the event
that fifty percent (50%) or less of the value of the Complex is damaged or
destroyed by fire or other
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casualty and neither the whole nor any material portion of the Premises is
rendered untenantable, then Lessor shall repair and restore the Premises and
the Complex to as near their condition prior to the fire or other casualty as
is reasonably possible with all due diligence and speed (subject to delays for
causes beyond Lessor's reasonable control) and the rent for the period during
which the Premises are untenantable shall be abated pro rata (based upon the
portion of the Premises which is untenantable). In no event shall Lessor be
obligated to repair or restore any special equipment or improvements installed
by Lessee. Anything herein contained to the contrary notwithstanding, Lessor
shall not be obligated to spend more than the net insurance proceeds available
to Lessor on account of any fire or other casualty in order to repair or
restore the Premises or the Complex following such casualty; provided, however,
Lessor shall notify Lessee promptly after the casualty if Lessor is unwilling
to expend more than available net insurance proceeds.
In the event of a termination of this Lease pursuant to this Article,
rent shall be apportioned on a per diem basis and paid to the date of the fire
or other casualty.
ARTICLE XIII. EMINENT DOMAIN: If the whole of or any substantial part of the
Premises is taken by any public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render the
remaining portion of the Premises unsuitable for the purposes intended
hereunder, then the term of this Lease shall cease as of the day possession
shall be taken by such public authority and Lessor shall make a pro rata refund
of any prepaid rent. All damages awarded for such taking under the power of
eminent domain or any like proceedings shall belong to and be the property of
Lessor, Lessee hereby assigning to Lessor Lessee's interest, if any, in said
award. In the event that fifty percent (50%) or more of the building area or
fifty percent (50%) or more of the value of the Complex is taken by public
authority under the power of eminent domain, then, at Lessor's option, by
written notice to Lessee mailed within sixty (60) days from the date possession
shall be taken by such public authority, Lessor may terminate this Lease
effective upon a date within ninety (90) days from the date of such notice to
Lessee. Further, if the whole of or any material part of the Premises is taken
by public authority under the power of eminent domain, or taken in any manner
for any public or quasi-public use, so as to render the remaining portion of
the Premises unsuitable for the purposes intended hereunder, upon delivery of
possession to the condemning authority pursuant to the proceedings, Lessee may,
at its option, terminate this Lease as to the remainder of the Premises by
written notice to Lessor, such notice to be given to Lessor within thirty (30)
days after Lessee receives notice of the taking. Lessee shall not have the
right to terminate this Lease pursuant to the preceding sentence unless (i) the
business of Lessee conducted in the portion of the Premises taken cannot be
carried on with substantially the same utility and efficiency in the remainder
of the Premises (or any substitute space securable by Lessee pursuant to clause
(ii) hereof); and (ii) Lessee cannot secure substantially similar (in Lessee's
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Lessor in the Complex. Any notice
of termination shall specify the date no more than sixty (60) days after the
giving of such notice as the date for such termination.
Anything in this Article XIII to the contrary notwithstanding, Lessee
shall have the right to prove in any condemnation proceedings and to receive
any separate award which may be made for damages to or condemnation of Lessee's
movable trade fixtures and equipment and for moving expenses; provided,
however, Lessee shall in no event have any right to receive any award for its
interest in this Lease or for loss of leasehold; and, provided further, Lessee
shall not be entitled to claim any award to the extent the award to
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Lessor would be reduced below the amount which would be allowed to Lessor
absent such claim by Lessee. In the event of a partial condemnation of the
Complex or the Premises and this Lease is not terminated, Lessor shall, at its
sole cost and expense, restore the Premises and Complex to a complete
architectural unit and the Base Rent provided for herein during the period from
and after the date of delivery of possession pursuant to such proceedings to
the termination of this Lease shall be reduced to a sum equal to the product of
the Base Rent provided for herein multiplied by a fraction, the numerator of
which is the fair market rent of the Premises after such taking and after the
same has been restored to a complete architectural unit, and the denominator of
which is the fair market rent of the Premises prior to such taking.
Notwithstanding the foregoing provisions of this Article, Lessor may terminate
this Lease with no further liability to Lessee whatsoever in the event that
following any taking of any part of the Complex by condemnation or right of
eminent domain, or any conveyance in lieu thereof, any party holding a
mortgage, trust deed or similar lien on Lessor's interest in the Complex elects
to require the application of an award or payment for the taking or conveyance
in lieu thereof to reduce the indebtedness secured by such mortgage, trust deed
or similar lien. Lessor's obligation to rebuild, repair or restore under this
Article shall in all events be limited to the extent of the net condemnation
proceeds available to Lessor therefor.
ARTICLE XIV. SURRENDER OF PREMISES: On the last day of the term of this Lease,
or on the sooner termination thereof, Lessee shall peaceably surrender the
Premises in good broom-clean condition and repair consistent with Lessee's duty
to make repairs as herein provided. On or before the last day of the term of
this Lease, or the date of sooner termination thereof, Lessee shall, at its
sole cost and expense, remove all of its property and trade fixtures and
equipment from the Premises, and all property not removed shall be deemed
abandoned. Lessee hereby appoints Lessor its agent to remove all property of
Lessee from the Premises upon termination of this Lease and to cause its
transportation and storage for Lessee's benefit, all at the sole cost and risk
of Lessee, and Lessor shall not be liable for damage, theft, misappropriation
or loss thereof and Lessor shall not be liable in any manner in respect thereto
unless caused by the gross negligence or willful misconduct of Lessor or its
agents or employees. Lessee shall pay all costs and expenses of such removal,
transportation and storage. Lessee shall leave the Premises in good order,
condition and repair, reasonable wear and tear and damage from fire and other
casualty not caused by Lessee excepted. Lessee shall reimburse Lessor upon
demand for any expenses incurred by Lessor with respect to removal,
transportation or storage of abandoned property and with respect to restoring
said Premises to good order, condition and repair. All improvements,
alterations, additions, installations and fixtures, other than Lessee's trade
fixtures and equipment, which have been made or installed by either Lessor or
Lessee upon the Premises shall remain the property of Lessor and shall be
surrendered with the Premises as a part thereof, unless Lessee is required to
remove same pursuant to the provisions of Article VIII hereof. If the Premises
are not surrendered at the end of the term or sooner termination thereof,
Lessee shall indemnify Lessor against loss or liability resulting from delay by
Lessee in so surrendering the Premises, including, without limitation, claims
made by any succeeding tenants founded on such delay and any attorneys' fees
resulting therefrom. Lessee shall promptly surrender all keys for the Premises
to Lessor at the place then fixed for the payment of rent and shall inform
Lessor of the combinations of any vaults, locks and safes left on the Premises.
In the event Lessee remains in possession of the Premises after
expiration of this Lease and without the execution of a new lease, but with
Lessor's written consent, Lessee shall be deemed to be occupying the Premises
as a tenant from month-to-month, subject
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to all the provisions, conditions and obligations of this Lease insofar as the
same can be applicable to a month-to-month tenancy, except that the Base Rent
shall be escalated to one hundred fifty percent (150%) of the Base Rent payable
hereunder immediately prior to the expiration of this Lease. In the event
Lessee remains in possession of the Premises after expiration of this Lease and
without the execution of a new lease and without Lessor's written consent,
Lessee shall be deemed to be occupying the Premises without claim of right and
Lessee shall pay Lessor for all costs arising out of loss or liability
resulting from delay by Lessee in so surrendering the Premises as above
provided and shall pay as a charge for each day of occupancy an amount equal to
two hundred percent (200%) of the Base Rent (on a daily basis) payable
hereunder immediately prior to the expiration of this Lease plus the Additional
Rent (on a daily basis) then currently being charged by Lessor on new leases in
the Complex for space similar to the Premises.
ARTICLE XV. DEFAULT OF LESSEE: The occurrence of any one or more of the
following events (in this Article sometimes called "Event of Default") shall
constitute a default and breach of this Lease by Lessee:
A. If Lessee fails to pay any Base Rent or Additional Rent
payable under this Lease or fails to pay any obligation
required to be paid by Lessee when and as the same shall
become due and payable, and such default continues for a
period of five (5) days after written notice thereof given by
Lessor to Lessee.
B. If Lessee fails to perform any of Lessee's nonmonetary
obligations under this Lease for a period of thirty (30) days
after written notice from Lessor; provided that if more time
is required to complete such performance, Lessee shall not be
in default if Lessee commences such performance within the
thirty-day period and thereafter diligently pursues its
completion. However, Lessor shall not be required to give
such notice if Lessee's failure to perform constitutes a
non-curable breach of this Lease. The notice required by this
subsection is intended to satisfy any and all notice
requirements imposed by law on Lessor and is not in addition
to any such requirement.
C. If Lessee, by operation of law or otherwise, violates the
provisions of Article XI hereof relating to assignment,
sublease, mortgage or other transfer of Lessee's interest in
this Lease or in the Premises or in the income arising
therefrom.
D. Lessee, by operation of law or otherwise, violates the
provisions of Article XVII.R relating to compliance with
environmental laws.
E. If (i) Lessee makes a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for
adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against Lessee and is not
dismissed within thirty (30) days; (iii) if a trustee or
receiver is appointed to take possession of substantially
all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease and possession is not restored to
Lessee within thirty (30) days; or (iv) if substantially all
of Lessee's assets located at the Premises or of Lessee's
interest in this Lease is subjected to attachment, execution
or other judicial or non-judicial seizure which is not
discharged within thirty (30) days. If a court of competent
jurisdiction determines that any of the acts described in
this
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subsection does not constitute an Event of Default and a
trustee is appointed to take possession (or if Lessee remains
a debtor in possession) and such trustee or Lessee transfers
Lessee's interest hereunder, then Lessor shall receive, as
Additional Rent, the difference between the rent (or any
other consideration) paid in connection with such assignment
or sublease and the rent payable by Lessee hereunder. As used
in this subsection, the term "Lessee" shall also mean any
guarantor of Lessee's obligations under this Lease. If any
such Event of Default shall occur, Lessor, at any time during
the continuance of any such Event of Default, may give
written notice to Lessee stating that this Lease shall expire
and terminate on the date specified in such notice, and upon
the date specified in such notice this Lease, and all rights
of Lessee under this Lease, including all rights of renewal
whether exercised or not, shall expire and terminate, or in
the alternative or in addition to the foregoing remedy,
Lessor may assert and have the benefit of any other remedy
allowed herein, at law, or in equity.
Upon the occurrence of an Event of Default by Lessee, and at any time
thereafter, with or without notice or demand and without limiting Lessor in the
exercise of any right or remedy which Lessor may have, Lessor shall be entitled
to the rights and remedies set forth below:
A. Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall not terminate
unless Lessor gives written notice to Lessee of its intention
to terminate this Lease and Lessee shall immediately
surrender possession of the Premises to Lessor. In such
event, Lessor shall have the immediate right to reenter and
remove all persons and property, and such property may be
removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Lessee, all without service
of notice or resort to legal process and without being deemed
guilty of trespass, or becoming liable for any loss or damage
which may be occasioned thereby. In the event that Lessor
shall elect to so terminate this Lease, then Lessor shall be
entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default, including:
1. The equivalent of the amount of the Base Rent and
Additional Rent which would be payable under this
Lease by Lessee if this Lease were still in effect,
less
2. The net proceeds of any reletting affected pursuant
to the provisions of this Article XV hereof after
deducting all of Lessor's reasonable expenses in
connection with such reletting, including, without
limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorneys'
fees, alteration costs, and expenses of preparation
of the Premises, or any portion thereof, for such
reletting.
Lessee shall pay such current damages in the amount
determined in accordance with the terms of this Article XV as
set forth in a written statement thereof from Lessor to
Lessee (hereinafter called the "Deficiency"), to Lessor in
monthly installments on the days on which the rent would have
been payable under this Lease if this Lease were still in
effect, and Lessor shall be entitled
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to recover from Lessee each monthly installment of the Deficiency as
the same shall arise.
B. At any time after an Event of Default, whether or not Lessor shall
have collected any monthly Deficiency as set forth in this Article
XV, Lessor shall be entitled to recover from Lessee, and Lessee shall
pay to Lessor, on demand, as and for final damages for Lessee's
default, an amount equal to the then present worth of the aggregate
of the Base Rent and Additional Rent and any other charges to be paid
by Lessee hereunder for the unexpired portion of the term of this
Lease (assuming this Lease had not been so terminated). In the
computation of present worth, a discount at the rate of 6% per annum
shall be employed. If the Premises, or any portion thereof, shall be
relet by Lessor for the unexpired term of this Lease, or any part
thereof, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent received upon such
reletting shall be offset against any monies claimed pursuant to this
subsection. Nothing herein contained or contained in this Article XV
shall limit or prejudice the right of Lessor to prove for and obtain,
as damages, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount
be greater, equal to or less than the amount of the difference
referred to above.
C. Upon the occurrence of an Event of Default by Lessee, Lessor shall
also have the right, with or without terminating this Lease, to
reenter the Premises to remove all persons and property from the
Premises. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Lessee.
If Lessor shall elect to reenter the Premises, Lessor shall not be
liable for damages by reason of such reentry.
D. If Lessor does not elect to terminate this Lease as provided in this
Article XV then Lessor may, from time to time, recover all rent as it
becomes due under this Lease. At any time thereafter, Lessor may
elect to terminate this Lease and to recover damages to which Lessor
is entitled.
E. In the event that Lessor should elect to terminate this Lease and to
relet the Premises, it may execute any new lease in its own name. In
the event that Lessor should not elect to terminate this Lease, it
may re-let the premises to a substitute tenant. Lessee hereunder
shall have no right or authority whatsoever to collect any rent from
such substitute tenant. The proceeds of any such reletting shall be
applied as follows:
1. First, to the payment of any indebtedness other than rent due
hereunder from Lessee to Lessor, including but not limited to
storage charges or brokerage commissions owing from Lessee to
Lessor as the result of such reletting;
2. Second, to the payment of the costs and expenses of reletting the
Premises, including alterations and repairs which Lessor, in its
sole discretion, deems reasonably necessary and advisable and
reasonable attorneys' fees incurred by Lessor in connection with
the retaking of the Premises and such reletting;
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3. Third, to the payment of rent and other charges due and unpaid
hereunder; and
4. Fourth, to the payment of future rent and other damages payable
by Lessee under this Lease.
Lessor shall not be deemed to have terminated this Lease and the Lessee's
right to possession of the leasehold or the liability of Lessee to pay rent
thereafter to accrue or its liability for damages under any of the provisions
hereof, unless Lessor shall have notified Lessee in writing that it has so
elected to terminate this Lease. Lessee covenants that the retaking of
possession by Lessor or the service by Lessor of any notice pursuant to the
applicable unlawful detainer statutes of the state in which the Complex is
located and Lessee's surrender of possession pursuant to such notice shall not
(unless Lessor elects to the contrary at the time of, or at any time subsequent
to the service of, such notice, and such election be evidenced by a written
notice to Lessee) be deemed to be a termination of this Lease or of Lessee's
right to possession thereof.
All rights, options and remedies of Lessor contained in this Lease shall
be construed and held to be cumulative, and no one of them shall be exclusive
of the other, and Lessor shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law whether or
not stated in this Lease. No waiver by Lessor of a breach of any of the terms,
covenants or conditions of this Lease by Lessee shall be construed or held to
be a waiver of any succeeding or preceding breach of the same or any other
term, covenant or condition therein contained. No waiver of any default of
Lessee hereunder shall be implied from any omission by Lessor to take any
action on account of such default if such default persists or is repeated, and
no express waiver shall affect default other than as specified in said waiver.
The consent or approval by Lessor to or of any act by Lessee requiring Lessor's
consent or approval shall not be deemed to waive or render unnecessary Lessor's
consent to or approval of any subsequent similar acts by Lessee.
Lessee shall reimburse Lessor, upon demand, for any reasonable costs or
expenses incurred by Lessor in connection with any Event of Default of Lessee
under this Lease, whether or not suit is commenced or judgment entered. Such
costs shall include, but not be limited to: legal fees and costs incurred for
the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, if any action for breach of or to enforce the provisions of this
Lease is commenced, the court in such action shall award to the party in whose
favor a judgment is entered a reasonable sum as attorneys' fees and costs. Such
attorneys' fees and costs shall be paid by the losing party in such action.
Lessee shall also indemnify Lessor against and hold Lessor harmless from all
costs, expenses, demands and liability incurred by Lessor if Lessor becomes or
is made a party to any claim or action (a) instituted by Lessee, or by any
third party against Lessee; (b) for foreclosure of any lien for labor or
material furnished to or for Lessee or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Lessee or such other person;
or (d) necessary to protect Lessor's interest under this Lease in a bankruptcy
proceeding or other proceeding under Title 11 of the United States Code, as
amended. Lessee shall defend Lessor against any such claim or action at
Lessee's expense with counsel reasonably acceptable to Lessor or, at Lessor's
election, Lessee shall reimburse Lessor for any legal fees or costs incurred by
Lessor in any such claim or action.
In addition, Lessee shall pay Lessor's reasonable attorneys' fees incurred
in connection with Lessee's request for Lessor's consent in connection with any
act which Lessee proposed to do and which requires Lessor's consent.
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Except to the extent caused by the gross negligence of Lessor or its agents
or employees, Lessee hereby waives all claims by Lessor's reentering and taking
possession of the Premises or removing and storing the property of Lessee as
permitted under this Lease and will save Lessor harmless from all losses, costs
or damages occasioned Lessor thereby. No such reentry shall be considered or
construed to be a forcible entry by Lessor.
ARTICLE XVI. SUBORDINATION: This Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed upon the
Premises, the Complex, the Property or any portion thereof by Lessor or its
successors or assigns, and to amendments, replacements, renewals and extensions
thereof. Lessee agrees at any time hereafter, upon demand to execute and
deliver any instruments, releases or other documents that may be reasonably
required for the purpose of subjecting and subordinating this Lease, as above
provided, to the lien of any such mortgage, deed of trust or ground lease. It
is agreed, nevertheless, that as long as Lessee is not in default in the
payment of Base Rent, Additional Rent, and other charges to be paid by Lessee
under this Lease and the performance of all covenants, agreements and
conditions to be performed by Lessee under this Lease, then neither Lessee's
right to quiet enjoyment under this Lease, nor the right of Lessee to continue
to occupy the Premises and to conduct its business thereon, in accordance with
the terms of this Lease as against any lessor, lessee, mortgagee, trustee or
their successors or assigns shall be interfered with.
The above subordination shall be effective without the necessity of the
execution and delivery of any further instruments on the part of Lessee to
effectuate such subordination. Notwithstanding anything hereinabove contained
in this Article XVI, in the event the holder of any mortgage, deed of trust or
ground lease shall at any time elect to have this Lease constitute a prior and
superior lien to its mortgage, deed of trust or ground lease, then, and in such
event, upon any such holder or landlord notifying Lessee to that effect in
writing, this Lease shall be deemed prior and superior in lien to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior to
or subsequent to the date of such mortgage, deed of trust or ground lease, and
Lessee shall execute such attornment agreement as may be reasonably requested
by said holder.
Lessee agrees, provided the mortgagee, ground lessor or trust deed holder
under any mortgage, ground lease, deed of trust or other security instrument
shall have notified Lessee in writing (by the way of a notice of assignment of
lease or otherwise) of its address, that Lessee shall give such mortgagee,
ground lessor, trust deed holder or other secured party ("Mortgagee"),
simultaneously with delivery of notice to Lessor, by registered or certified
mail, a copy of any such notice of default served upon Lessor. Lessee further
agrees that said Mortgagee shall have the right to cure any alleged default
during the same period that Lessor has to cure such default.
ARTICLE XVII. MICELLANEOUS:
A. Lessee represents that Lessee has dealt directly with and only with
Jackson & Cooksey and Benchmark Realty Advisors, Inc. (Bill Dutton) and Lee &
Associates Arizona Real Estate Services Com. (Alan Lowe, Bill Blake and Bill
Gosnell (the "Brokers"), as brokers, in connection with this Lease and insofar
as Lessee knows, no other broker negotiated or participated in negotiations of
this Lease or submitted or showed the Premises or is entitled to any commission
in connection therewith. Lessor shall be responsible for paying the commission
due the Brokers on account of this Lease pursuant to a separate agreement
between Lessor and the Brokers.
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B. Lessee agrees from time to time, upon not less than ten (10) days prior
written request by Lessor, to deliver to Lessor a statement in writing
certifying (i) this Lease is unmodified and in full force and effect (or if
there have been modifications that the Lease as modified is in full force and
effect and stating the modifications); (ii) the dates to which the rent and
other charges have been paid; (iii) Lessor is not in default in any provision
of this Lease or, if in default, the nature thereof specified in detail; (iv)
the amount of monthly rental currently payable by Lessee; (v) the amount of any
prepaid rent, and (vi) such other matters as may be reasonably requested by
Lessor or any Mortgagee or prospective purchaser of the Complex.
If Lessee does not deliver such statement to Lessor within such ten (10)
day period, Lessor and any prospective purchaser or encumbrances of the
Premises or the Complex may conclusively presume and rely upon the following
facts: (i) that the terms and provisions of this Lease have not been changed
except as otherwise represented by Lessor; (ii) that this Lease has not been
cancelled or terminated and is in full force and effect, except as otherwise
represented by Lessor; (iii) that the current amounts of the Base Rent and
security deposit are as represented by Lessor and that any charges made against
the security deposit are uncontested and valid; (iv) that there have been no
subleases or assignments of the Lease; (v) that not more than one month's Base
Rent or other charges have been paid in advance; and (vi) that Lessor is not in
default under the Lease. In such event, Lessee shall be estopped from denying
the truth of such facts.
C. All notices, demands and requests shall be in writing, and shall be
effectively served by forwarding such notice, demand or request by certified or
registered mail, postage prepaid, or by commercial overnight courier service
addressed as follows:
(i) If addressed to Lessee:
By forwarding such notice, demand or request by certified or
registered mail, postage prepaid, addressed to Lessee at:
Vanstar Corporation
5964 West Las Positas Boulevard
Pleasanton, California 94588
Attention: Tom Heinrich
Director of Facilities
or at such other address as Lessee may hereafter designate by written
notice to Lessor, in which case said notice shall be effective at the
time of mailing such notice.
(ii) If addressed to Lessor:
By forwarding such notice, demand or request by certified or
registered mail, postage prepaid, addressed to Lessor at:
Opus Southwest Corporation
c/o Normandale Properties Southwest Corporation
4742 North 24th Street, Suite 100
Phoenix, Arizona 85016
After October 1, 1997:
Opus Southwest Corporation
c/o Normandale Properties Southwest Corporation
2415 East Camelback, Suite 850
Phoenix, Arizona 85016
Attention: Thomas W. Roberts
With copy to:
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Opus Southwest Corporation
4742 North 24th Street
Suite 100
Phoenix, Arizona 85016
Attn: Thomas W. Roberts, President
After October 1, 1997:
Opus Southwest Corporation
2415 East Camelback, Suite 800
Phoenix, Arizona 85016
Attention: Thomas W. Roberts
With copy to:
Opus U.S. Corporation
P. O. Box 59110
Minneapolis, Minnesota 55440
Attention: Law Department
or at such other address as Lessor and Lessee may hereafter designate by
written notice. The effective date of all notices shall be the time of mailing
such notice or the date of delivery to a commercial overnight courier service.
D. All rights and remedies of Lessor under this Lease or that may be
provided by law may be executed by Lessor in its own name, individually, or in
the name of its agent, and all legal proceedings for the enforcement of any
such rights or remedies, including those set forth in Article XV, may be
commenced and prosecuted to final judgment and execution by Lessor in its own
name or in the name of its agent.
E. Lessor covenants and agrees that Lessee, upon paying the Base Rent,
Additional Rent and other charges herein provided for and observing and keeping
the covenants, agreements and conditions of this Lease on its part to be kept
and performed, shall lawfully and quietly hold, occupy and enjoy the Premises
during the term of this Lease. Time is of the essence of this Lease and each
and every provision contained herein, and any extension of time granted by
Lessor to Lessee for the performance of any obligation of Lessee under this
Lease shall not be considered an extension of time for the performance of any
subsequent obligation of Lessee under this Lease.
F. The covenants and agreements herein contained shall bind and inure to
the benefit of Lessor and its successors and assigns and Lessee and its
permitted successors and assigns. All obligations of each party constituting
Lessee hereunder shall be the joint and several obligations of each such party.
G. If any term or provision of this Lease shall to any extent be held
invalid or unenforceable, the remaining terms and provisions of this Lease
shall not be affected thereby, but each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law. This Lease shall
be construed and enforced in accordance with the laws of the state in which the
Premises are located.
H. Lessee covenants not to go or suffer any waste or damage or disfigurement
or injury to the Premises or the Complex and Lessee further covenants that it
will not vacate or abandon the Premises during the term of this Lease.
I. The term "Lessor" as used in this Lease so far as covenants or
obligations on the part of Lessor are concerned shall be limited to mean and
include only the owner or owners of the Complex at the time in question, and in
the event of any transfer or transfers or conveyances the then grantor shall be
automatically
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freed and released from all personal liability accruing from and after the date
of such transfer or conveyance as respects the performance of any covenant or
obligation on the part of Lessor contained in this Lease to be performed, it
being intended hereby that the covenants and obligations contained in this
Lease on the part of Lessor shall be binding on the Lessor, its successors and
assigns, only during and in respect to their respective successive periods of
ownership.
In the event of a sale or conveyance by Lessor of the Complex or any part
of the Complex, the same shall operate to release Lessor from any future
liability upon any of the covenants or conditions herein contained and in such
event Lessee agrees to look solely to the responsibility of the successor in
interest of Lessor in and to this Lease. This Lease shall not be affected by
any such sale or conveyance, and Lessee agrees to attorn to the purchaser or
grantee, which purchaser or grantee shall be personally obligated on this Lease
only so long as it is the owner of Lessor's interest in and to this Lease.
J. The marginal or topical headings of the several Articles are for
convenience only and do not define, limit or construe the contents of said
Articles.
K. All preliminary negotiations are merged into and incorporated in this
Lease, except for written collateral agreements executed contemporaneously
herewith.
L. This Lease can only be modified or amended by an agreement in writing
signed by the parties hereto. No receipt of money by Lessor from Lessee or any
other person after termination of this Lease or after the service of any notice
or after the commencement of any suit, or after final judgment for possession
of the Premises shall reinstate, continue or extend the term of this Lease or
affect any such notice, demand or suit, or imply consent for any action for
which Lessor's consent is required, unless specifically agreed to in writing by
Lessor. Any amounts received by Lessor may be allocated to any specific amounts
due from Lessee to Lessor as Lessor determines.
M. Lessor shall have the right to close any portion of the building area or
land area to the extent as may, in Lessor's reasonable opinion, be necessary to
prevent a dedication thereof or the accrual of any rights to any person or the
public therein. Lessor shall at all times have full control, management and
direction of the Complex, subject to the rights of Lessee in the Premises, and
Lessor reserves the right at any time and from time to time to reduce,
increase, enclose or otherwise change the size, number and location of
buildings, layout and nature of the Complex and the other tenancies, premises
and buildings included in the Complex, to construct additional buildings and
additions to any building, and to create additional rentable areas through use
and/or enclosure of common areas, or otherwise, and to place signs on the
Complex, and to change the name, address, number or designation by which the
Complex is commonly known. No implied easements are granted by this Lease.
Lessor shall in no event be liable for any lack of security in respect to the
Complex.
N. Lessee shall permit Lessor (or its designees) to erect, use, maintain,
replace and Repair pipes, cables, conduits, plumbing, vents, and telephone,
electric and other wires or other items, in, to and through the Premises, as
and to the extent that Lessor may now or hereafter deem necessary or
appropriate for the proper operation and maintenance of the Complex.
O. Employees or agents of Lessor have no authority to make or agree to make
a lease or other agreement or undertaking in connection herewith. The
submission of this document for examination does not constitute an offer to
lease, or a reservation of,
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or option for, the Premises. This document becomes effective and binding only
upon the execution and delivery hereof by the proper officers of Lessor and by
Lessee. Lessee confirms that Lessor and its agents have made no representations
or promises with respect to the Premises or the making of or entry into this
Lease except as in this Lease expressly set forth, and Lessee agrees that no
claim or liability shall be asserted by Lessee against Lessor for, and Lessor
shall not be liable by reason of, breach of any representations or promises not
expressly stated in this Lease. This Lease, except for the Complex Rules and
Regulations, in respect to which subparagraph P of this Article shall prevail,
can be modified or altered only by agreement in writing between Lessor and
Lessee, and no act or omission of any employee or agent of Lessor shall alter,
change or modify any of the provisions hereof.
P. Lessee shall perform, observe and comply with the Complex Rules and
Regulations of the Complex as set forth on Exhibit B attached hereto and by
this reference incorporated herein, with respect to the safety, care and
cleanliness of the Premises and the Complex, and the preservation of good order
thereon, and, upon written notice thereof to Lessee, Lessee shall perform,
observe and comply with any changes, amendments or additions thereto as from
time to time shall be established and deemed advisable by Lessor for tenants of
the Complex. Lessor shall not be liable to Lessee for any failure of any other
tenant or tenants of the Complex to comply with such Complex Rules and
Regulations.
Q. Lessee shall not use the Premises or permit anything to be done in or
about the Premises which will, in any way, conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Lessee shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and governmental
rules and regulations now in force or which may hereafter be in force,
including, without limitation, those pertaining to indoor air quality, and with
the requirements of any fire insurance underwriters or other similar body now
or hereafter constituted relating to or affecting the condition, use or
occupancy of the Premises. Lessee shall use the Premises and comply with any
recorded covenants, conditions, and restrictions affecting the Premises and the
Complex as of the commencement of the Lease or which are recorded during the
lease term. Lessor shall, in conducting its operations in the Complex, comply
with all laws, statutes, ordinances or other governmental rules or regulations
now in force or which may hereafter be enacted or promulgated relating to
Lessor's operation of the Complex.
R. Lessee shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances or materials. Lessee shall not allow the storage or use of
such substances or materials in any manner not sanctioned by law and by the
highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Warehouse Complex any
such materials or substances except to use in the ordinary course of Lessee's
business, and then only after written notice is given to Lessor of the identity
of such substances or materials. Without limitation, hazardous substances and
materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Sections 9601 et seq., the Resource Conservation and Recovery Act, as amended,
42 U.S.C. Section 6901 et seq., any applicable state or local laws and the
regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Lessee to Lessor upon demand as additional charges if such
requirement applies to the Premises. In addition, Lessee shall execute
affidavits, representations and the like from time to time at Lessor's request
concerning Lessee's best knowledge
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and belief regarding the presence of hazardous substances or materials on the
Premises. In all events, Lessee shall indemnify Lessor in the manner elsewhere
provided in this Lease from any release of hazardous materials on the Premises
occurring while Lessee is in possession, or elsewhere if caused by Lessee or
persons acting under Lessee. The within covenants shall survive the expiration
or earlier termination of the term of this Lease.
S. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including, without
limitation, all payment obligations with respect to Operating Expenses and Real
Estate Taxes and all obligations concerning the condition of the Premises.
T. Any claim which Lessee may have against Lessor for default in
performance of any of the obligations herein contained to be kept and performed
by Lessor shall be deemed waived unless such claim is asserted by written
notice thereof to Lessor within ten (10) days of commencement of the alleged
default or of accrual of the cause of action and unless suit be brought thereon
within six (6) months subsequent to the accrual of such cause of action.
Furthermore, Lessee agrees to look solely to Lessor's interest in the Complex
for the recovery of any judgment from Lessor, it being agreed that Lessor, or
if Lessor is a partnership, its partners whether general or limited, or if
Lessor is a corporation, its directors, officers or shareholders, shall never
be personally liable for any such judgment.
U. Lessee shall furnish to Lessor promptly upon demand, a corporate
resolution, proof of due authorization of partners, or other appropriate
documentation reasonably requested by Lessor evidencing the due authorization
of Lessee to enter into this Lease.
V. This Lease shall not be deemed or construed to create or establish any
relationship or partnership or joint venture or similar relationship or
arrangement between Lessor and Lessee hereunder.
W. Lessee in its occupancy shall, in all respects, comply with the
Americans With Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as the
same may be amended from time to time (as amended, the "ADA"), and Lessee
agrees to indemnify and save Lessor and its managing agent harmless against and
from any and all claims, loss, damage and expense by or on behalf of any person
or persons, firm or firms, corporation or corporations, arising from any
failure or alleged failure of Lessee to comply with the ADA or arising from any
claim made under the ADA in connection with the Premises, and from and against
all costs, reasonable attorneys' fees, expenses and liabilities incurred in or
about any such claim or action or proceeding brought thereon; in case any
action or proceeding be brought against Lessor or its managing agent by reason
of any such claim, Lessee, upon notice from Lessor, covenants to resist or
defend such action or proceeding by counsel reasonably satisfactory to Lessor.
Lessor agrees to cause the Tenant Improvements (as hereinafter defined) to
be constructed in accordance with the public accommodations provisions of Title
III of the Americans With Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et
seq.), as presently interpreted and enforced by the governmental bodies having
jurisdiction thereof.
X. Lessee shall not place, or permit to be placed or maintained, on any
exterior door, wall or window of the Premises any sign, awning or canopy, or
advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on the glass of any window or
door, or that can be seen through the glass, of the Premises except as
specifically
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approved in writing by Lessor. Lessee further agrees to maintain such sign,
awning, canopy, decoration, lettering, advertising matter or thing as may be
approved, in good condition and repair at all times. Lessee agrees at Lessee's
sole cost, that any Lessee sign will be maintained in strict conformance with
Lessors sign criteria, if any, as to design, material, color, location, size,
letter style, and method of installation.
ARTICLE XVIII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible, Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
ten (10) days after delivery to Lessee by Lessor of a statement in writing
setting forth the amount of such taxes applicable to Lessee's personal
property.
ARTICLE XIX. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
A. Site Plan - Exhibit A.
B. Complex Rules and Regulations - Exhibit B.
C. Rider to Lease - Exhibit C.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
LESSOR: LESSEE:
OPUS SOUTHWEST CORPORATION, VANSTAR CORPORATION, a Delaware
a Minnesota corporation corporation
By /s/ Thomas Roberts By /s/ Tom Heinrich 8/29/97
------------------------------ ------------------------------
Thomas W. Roberts Its Director Facilities
Its President
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11/21/97
FIRST AMENDMENT TO LEASE ORIGINAL
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is made and
entered into as of the 19th day of November, 1997, by and between OPUS WEST
CORPORATION, a Minnesota corporation formerly known as Opus Southwest
Corporation, hereinafter referred to as "Lessor", and VANSTAR CORPORATION, a
Delaware corporation, hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain Lease dated as of
September 3, 1997 (the "Lease"), for certain demised premises in the office and
warehouse complex located at 7333 South Hardy Road, Tempe, Arizona 85253, known
and described as Tempe Commerce Park; and
WHEREAS, Lessor and Lessee desire to modify the Lease as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. This First Amendment shall be effective as of the date hereof. All
capitalized terms used in this First Amendment, unless otherwise defined
herein, shall have the same meanings given to them in the Lease.
2. The third paragraph following "WITNESSETH" on page 1 of the Lease
is hereby deleted in its entirety and the following is substituted in its
place:
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or
obligation on the part of Lessor to make any alterations, improvements or
repairs of any kind on or about the Premises, except as expressly provided
herein, commencing on December 19, 1997 (the "Commencement Date"). The
term of this Lease shall end on the date 10 years following the
Commencement Date unless sooner terminated in the manner provided
hereinafter, to be occupied and used by Lessee for general office and
warehouse purposes and for no other purpose, subject to the covenants and
agreements hereinafter contained.
3. Article I of the Lease is hereby deleted in its entirety and the
following is hereby substituted in its place:
ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, Lessee
agrees to pay to Lessor, at c/o Opus West Management Corporation, 2415
East Camelback, Suite 840, Phoenix, Arizona 85016, Attention: Accounting
Department, or at such other place as Lessor from time to time may
designate in writing, an annual rental as hereinafter set forth, sometimes
hereinafter referred to as the "Base Rent", payable monthly, in advance, in
installments as hereinafter set forth, commencing on the first day of the
term and continuing on the first day of each and every month thereafter for
the next succeeding months during the balance of the term:
APPLICABLE PORTION ANNUAL BASE RENT
OF TERM PER SQUARE FOOT
------------------ ----------------
December 19, 1997 through the earlier $5.32
of (i) Lessor's delivery of the
substantially completed Premises or
(ii) January 22, 1998
30
January 23, 1998 through Year 5 $10.64
Years 6-10 $11.96
If the term commences on a date other than the first day of a calendar
month or ends on a date other than the last day of a calendar month, monthly
rent for the first month of the term or the last month of the term, as the case
may be, shall be prorated based upon the ratio that the number of days in the
term within such month bears to the total number of days in such month.
4. Notwithstanding anything to the contrary contained in Article II
of the Lease to the contrary, the parties acknowledge that for the period
commencing on the Commencement Date and ending on January 22, 1998, Lessee
shall only be obligated to pay one-half (1/2) of the actual amount of Lessee's
Pro Rata Share of Real Estate Taxes and one-half (1/2) of the actual amount of
Lessee's Pro Rata Share of Operating Expenses. From and after January 23, 1998,
Lessee shall be obligated to pay Lessee's Pro Rata Share of Real Estate Taxes
and Lessee's Pro Rata Share of Operating Expenses in accordance with the
provisions of Article II of the Lease.
5. Article IV of the Lease is hereby deleted in its entirety
and the following is substituted in its place:
ARTICLE IV. POSSESSION OF PREMISES: If Lessor shall be unable to give
possession of the Premises on the Commencement Date because the
construction of the Complex or the completion of the Premises has not been
sufficiently completed to make the Premises ready for occupancy, or for
any other reason, Lessor shall not be subject to any claims, damages or
liabilities for the failure to give possession on said date, provided that
Lessor shall use commercially reasonable efforts to substantially complete
the Premises as soon as is reasonably possible thereafter. Under said
circumstances, the term of this Lease shall commence on the Commencement
Date and Lessee shall be obligated to accept, in writing, the Premises
within three (3) days following the date upon which the Premises are ready
for occupancy. If Lessee is given and accepts possession of the Premises
on a date earlier than the Commencement Date, the rent reserved herein and
all covenants, agreements and obligations herein and the term of this
Lease shall commence on the date that possession of the Premises is given
to Lessee.
The acceptance of possession by Lessee shall be deemed conclusively
to establish that the Premises and all other improvements of the Complex
required to be constructed by Lessor for use thereof by Lessee hereunder
have been completed at such time to Lessee's satisfaction and in
conformity with the provisions of this Lease in all respects unless Lessee
notifies Lessor in writing within ninety (90) days after commencement of
the term as to any items not completed. Lessee waives any claim as to
matters not listed in said notice. Lessee acknowledges that neither Lessor
nor any agent of Lessor has made any representation or warranty with
respect to the Premises or the Complex or with respect to the suitability
or fitness of either for the conduct of Lessee's business or for any other
purpose.
6. In accordance with the provisions of Article XXIX.A of the Lease,
in the event Lessee desires any Tenant Improvements having a price in excess of
the Tenant Improvement Allowance, Lessee shall pay Lessor in cash for such
excess amount. As of the date of this First Amendment, the parties acknowledge
and agree that Lessor estimates that the price of the Tenant Improvements will
exceed the Tenant Improvement Allowance by approximately Nine Hundred Forty
Thousand and No/100ths Dollars ($940,000.00) (the "Improvement Excess"). Lessor
and Lessee agree that Lessee shall reimburse Lessor for the Improvement Excess
in three payments as
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approved in writing by Lessor. Lessee further agrees to maintain such sign,
awning, canopy, decoration, lettering, advertising matter or thing as may be
approved, in good condition and repair at all times. Lessee agrees at Lessee's
sole cost, that any Lessee sign will be maintained in strict conformance with
Lessor's sign criteria, if any, as to design, material, color, location, size,
letter style, and method of installation.
ARTICLE XVIII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible, Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
ten (10) days after delivery to Lessee by Lessor of a statement in writing
setting forth the amount of such taxes applicable to Lessee's personal
property.
ARTICLE XIX. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
A. Site Plan - Exhibit A.
B. Complex Rules and Regulations - Exhibit B.
C. Rider to Lease - Exhibit C.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
LESSOR: LESSEE:
OPUS SOUTHWEST CORPORATION, VANSTAR CORPORATION, a Delaware
a Minnesota corporation corporation
By /s/ Thomas Roberts By /s/ Tom Heinrich 8/29/97
------------------------------ ------------------------------
Thomas W. Roberts Its Director Facilities
Its President
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December l9, 1997
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Vanstar Corporation
5964 West Las Positas Boulevard
Pleasanton, California 94588
Attention: Tom Heinrich
Director of Facilities
Re: VANSTAR CORPORATION, a Delaware corporation; Tempe Commerce
Park -- Building E, Tempe, Arizona
Dear Tenant:
This letter shall constitute notice of the transfer of the above-referenced
premises and assignment of the lease for said premises by Opus West
Corporation, a Minnesota corporation formerly known as Opus Southwest
Corporation ("Former Landlord"), to First Industrial, L.P. ("Successor
Landlord"). The rental shall be paid to the Successor Landlord at:
First Industrial, L.P.
P.O. Box 75631
Chicago, Illinois 60675-5631
or if sent by Federal Express or overnight courier:
The Northern Trust Company
801 South Canal, 4th Floor
Receipt and Dispatch
Chicago, Illinois 60607
Attn: First Industrial, L.P., Lockbox #75631
Your local First Industrial property management office is located at the
following address:
First Industrial Realty Trust, Inc.
7615 Golden Triangle Drive, Suite N
Eden Prairie, Minnesota 55344
Attn: Mr. Michael Stephens
(612) 943-2700
33
However, all formal notices under the lease should be directed to the Successor
Landlord at:
First Industrial, L.P.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attn: Chief Operating Officer
and: First Industrial Realty Trust, Inc.
7615 Golden Triangle Drive, Suite N
Eden Prairie, Minnesota 55344
Attn: Mr. Duane H. Lund
w/copy to: Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive
27th Floor
Chicago, Illinois 60606
Attn: Suzanne Bessette-Smith
Please do not hesitate to contact your local First Industrial property
management office with any questions. The effective date of this notice is the
date of this letter.
OPUS WEST CORPORATION, a FIRST INDUSTRIAL, L.P., a Delaware
Minnesota corporation limited partnership
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its general
partner
By: /s/ Thomas Roberts
-------------------------
Thomas Roberts
Its President
By: /s/ Todd A. Geller
-------------------------
Todd A. Geller
Its Signing Officer
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