Exhibit 10.12
LEASE AGREEMENT
THIS LEASE is dated to be effective as of October 1, 2002 between MEDAIRE, INC.,
an Arizona corporation ("Lessee") and BANNER HEALTH SYSTEM, an Arizona a
nonprofit corporation ("Lessor").
BASIC LEASE INFORMATION
1. Building Address: 1111 East McDowell
Phoenix, AZ 85006
2. Premises: The Premises consist of a portion of Good Samaritan Regional
Medical Center (the "Building") and contains the rentable area depicted on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Rentable Area"). The square footage of Rentable Area shall be the square
footage denoted on Exhibit "A", as the same may be amended from
time-to-time. The initial square footage of the Rentable Area is 490 square
feet.
3. Basic Annual Rent: S28.36 per square foot.
4. Monthly installments of Basic Rent: $1,158.33 per month.
5. Lease Term: Five (5) Years and Three (3) Months
6. Commencement Date: October 1, 2002
7. Expiration Date: December 31, 2007
8. Permitted Use: -Medical advisory and specialist consultations to commercial
and private air and watercraft, travelers, and persons and medical clinics
in remote locations (including clinics owned or affiliated with Lessee).
9. Lessee Address: 80 E. Rio Salado Parkway
No. 610
Tempe, AZ 85281
Attn: Kjell Andreassen
10. Lessor's Address: 1441 North 12th Street
Phoenix. Arizona 85006
Attn: President, Arizona Region
11. Security Deposit: $0.00
RECITALS
A. Lessee desires to enter into this Lease whereby a portion of the
Building will be leased to Lessee upon the terms and conditions herein provided.
B. Lessor is willing to lease a portion of the Building to Lessee upon
terms and conditions greed to by the parties.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. LEASE OF PREMISES. Lessor hereby leases to Lessee, and Lessee leases from
Lessor, for the Lease Term, at the Basic Rent rate, and pursuant to the
provisions hereof, the Premises as described in the Basic Lease Information and
depicted in Exhibit "A" located in a portion of the Building.
2. TERM.
2.1 Initial Term. Except as otherwise may be provided herein, the Lease
Term shall be for the period set forth in the Basic Lease Information.
2.2 Renewals. Lessee shall have no right to renew this Lease.
2.3 Commencement Date. The Lease shall commence at 12:01a.m. on the
Commencement Date and shall end at 12:00a.m. on the Expiration Date
set forth in the Basic Lease Information.
2.4 Commencement Confirmation. If the term hereof commences on a date
other than the scheduled Commencement Date, the parties shall confirm
in writing the Commencement Date, which confirmation shall be attached
hereto and made a part hereof.
3. RENTAL.
3.1 Monthly Rental. Lesee shall pay to Lessor as the Basic Rent hereunder
the sum indentified in the Basic Lease Information. The Basic Rent
shall be paid mmonthly in advance of or on the first day of each
calendar month or if the Lease Term commences or terminates on other
than the first or last day of a calendar onth, the the Basic Rent for
the partial month shall be prorated on a perdiem basis (based on a 30
day month). Any prepaid excess rental for the first month shall be
applicable to the subsequent month's rental payable by Lessee on a pro
rata basis.
3.2 Payment. Rental and all other sums payable hereunder shall be paid to
Lessor, at the address set forth in the Basic Lease Information or at
such other place or to such other person as Lessor may from time to
time designate by notice hereunder. All payments shall be made in
lawful money of the United States of America.
3.3 Rent Taxes. Lessee shall pay to Lessor at the same time as any rental
or other payment is made by Lessee hereunder an amount equal to the
amount of all excise, sales, use, transaction privilege and rent taxes
duly levied or assessed upon or on account of such rental, or any
other amounts payable by Lessee hereunder including real property
taxes attributable to the Premises (except Lessor's income taxes).
3.4 Security Deposit. As security for Lessee's performance hereunder,
Lessee has deposited with Lessor a Security Deposit in the amount
specified in the Basic Lease Information. If Lessee fully performs its
obligations hereunder, Lessor shall return the Security Deposit, or
balance thereof then held by Lessor, without interest, to Lessee
within thirty (30) days after Lessee surrenders possession of the
Premises to Lessor as herein required. In the event of a default by
Lessee, Lessor may, at its option and without notice, apply all or
part of the Security Deposit to wholly or partially cure such default.
If the Lessor does so, Lessee shall, upon request, deposit with the
Lessor the amount so applied so that the Lessor will have on hand at
all times during the term of this Lease the full amount of the
Security Deposit. Lessor shall not he required told the Security
Deposit in a separate account.
3.5 Adjusted Basic Rent. The Basic Annual Rent (and the corresponding
Monthly Installments of Basic Rent) are set forth in Items 3 and 4 of
Basic Lease Information. The Basic Rent shall be adjusted from time to
time based on changes in the actual square footage included within the
Premises, as may be agreed by Lessee and Lessor and evidenced in
amendments to Exhibit "A".
4. BUILDING OPERATING COST. For purposes of this Lease, Building Operating Costs
shall be deemed included in the payments of Base Rent.
5. USE OF PREMISES.
5.1 Permitted Uses.
(a) The Premises may be used for the purposes described in Basic
Lease Information and for no other purpose without the written
consent of the Lessor that shall not be unreasonably withheld.
(b) Lessee shall not use the Premises in any manner that would
constitute a nuisance.
(c) Lessee shall, at its expense, comply with all municipal,
county, state and federal laws and regulations, now or hereafter
in force, pertaining to the Premises or their use, provided that
Tenant shall not be obligated to perform structural alterations
or modifications or alterations to the Premises that are capital
in nature unless required by law or regulation relating
specifically to Lessee's use of the Premises.
5.2 Normal Business Hours. The normal business hours shall be 24 hours per
day, 7 days per week. Lessee shall have access to the Premises at all
times, and Lessee employees regularly assigned to work in the Premises
shall be issued security badges by Lessor authorizing such Lessee
employees to have full-time access to the Premises.
5.3 Common Area. Subject to the reasonable rules and regulations from time
to time promulgated by Lessor with respect to the Premises, and the
rights reserved by Lessor, Lessee shall be entitled to the
nonexclusive use in common with Lessor, other Leases and employees,
agents, contractors, customers and invitees, of such sidewalks,
hallways, stairways, toilets, lawns, malls, patios, parking and other
facilities in the Building (the "Common Area") as Lessor shall from
time to time designate for shared use by the lessees of the Building.
5.4 Compliance with Law. At Lessee's expense, Lessee shall comply promptly
with all applicable governmental, ordinances, rules and regulations in
effect during the term or any part of the term hereof regulating the
use or occupancy of the Premises occupied by Lessee pursuant to this
Lease (except that Lessee shall not be required to make structural
changes required to bring the Building into compliance with applicable
laws).
5.5 Compliance with Insurance Requirements. Lessee shall not knowingly
engage in or permit any activity that will cause the cancellation or
increase the existing premium rate of fire insurance.
5.6 Waste, Nuisance, Etc. Lessee shall not commit or permit any waste on
the Premises or deface or injure the Premises. Lessee shall not permit
on the Premises any offensive, noisy or dangerous activity or other
nuisance or other activity or thing that will disturb the quiet
enjoyment or peacable possession of Lessor or any other Lessee in the
Building.
5.7 Trash. Lessee shall place all unregulated refuse or trash in
receptacles provided for the Premises by Lessor, which will then be
disposed of by the Building's janitorial firm. Lessee will be solely
responsible for disposal of substances described in Paragraph 20.
6. SERVICE AND UTILITIES.
6.1 Lessee Obligations. Lessee shall pay prior to delinquency all
telephone and hazardous waste removal services furnished to the
Premises during the term of this Lease.
6.2 Lessor's Obligations. Lessor agrees to pay all real property taxes and
provide landscaping, gas, heat, light, power, electric, water, sewer,
non-hazardous trash collection, general maintenance, including
janitorial services (collectively "Utilities").
7. MAINTENANCE AND REPAIR.
7.1 Lessor's Obligation. As of the effective date of this Lease all
fixtures and equipment in the Premises are in good repair and
operating condition. Lessor, shall promptly repair, and at all times
maintain in good condition, the fixtures and equipment in the interior
of the Premises, including heating units, air conditioning equipment,
hot water heaters, electrical installations, plumbing, plumbing
equipment and fixtures, all hardware, and replace all broken or
damaged glass. All repairs to the Premises and the Building including,
without limitation, heating, air conditioning, electrical and plumbing
systems, which are necessary in order to maintain the foregoing in
good condition shall he made by Lessor. Within twenty four (24) hours
after receipt of written notice of failure of an essential system
(e.g. heating, air conditioning) Lessor shall repair the problem.
Repairs, alterations and additions to the Premises required and
ordered by new governmental regulations or the Board of Fire
Underwriters shall he made by Lessor at its expenses. Lessor hereby
agrees to
maintain the Building standard improvements installed by Lessor,
normal wear and tear and damage by Lessee excepted. In any event,
repairs contemplated by this paragraph shall be completed within
thirty (30) days after receipt of written notice or, if completion is
not possible within such time, repairs shall be commenced within
thirty (30) days and diligently pursued to completion; if repairs are
not so completed rental hereunder shall abate in an amount
proportionate to the portion of the Premises affected by the
unrepaired item.
7.2 Lessee Obligations. Unless such maintenance or repairs are required
because of any negligent or intentional act or omission of Lessor, its
agents, employees, Contractors or invitees or arc specifically
designated as the obligation of Lessor, Lessee shall, at its expense,
keep the Premises in a safe, neat and clean condition and in good
order and repair (reasonable wear and tear excluded). Lessee shall not
permit, allow, or cause the sinks, toilets, or urinals in the Premises
or Building to be used for any purpose except that for which they were
designed and installed. Lessee agrees to repair any damage to the
Premises or the Building caused by or in connection with the
installation or removal of any personal property, business or trade
fixtures or equipment. The provisions of this Paragraph 7.2 are not
intended to and shall not impose on Lessee an obligation to conduct
routine maintenance or repair areas outside of Lessee's Premises.
8. ALTERATIONS AND ADDITIONS
8.1 Alterations. Lessee may not make alterations, additions or
improvements to the Premises without obtaining the prior written
consent of Lessor.
8.2 Business Fixtures. Provided that Lessee is not in default hereunder,
all articles of personal property and all business and trade fixtures,
equipment, furniture and movable partitions owned by Lessee and
installed by lessee at its expense in the Premises other than Lessee
Improvement items such as shall be and remain the property of Lessee
and may be removed by Lessee at any time during the Lease Term and
Lessee shall make any repairs necessitated thereby.
8.3 Tenant Improvements. Lessor will make no tenant improvements to the
Premises; Lessee expressly accepts the Premises "as is".
9. ENTRY OF LESSOR. Lessor reserves and shall at any and all times have the
right to enter the Premises to inspect the same or provide other services
provided by Lessor hereunder to the Premises and to perform the work of
maintenance, repair or reconstruction which is the responsibility of Lessor
hereunder, provided that the use and enjoyment of the Premises by Lessee shall
not be interfered with.
10. LIENS Lessee shall keep the Premises and the Building free from any liens
arising out of work performed, materials furnished or obligations incurred by
Lessee and shall indemnify, hold harmless and defend Lessor, the Premises and
the Building from any liens and encumbrances arising out of any work performed
or materials furnished by or at the direction of Lessee.
11. INDEMNITY.
11.1 Lessor Indemnity. Lessor shall indemnify Lessee from and against all
actions, claims, liabilities and demands whatsoever, including costs,
expenses and attorney's fees resulting from or claimed to have
resulted from any willful misconduct or negligent acts or omissions of
Lessor or its employees, agents, or invitees engaged in the work under
the Lease at the time of the event or occurrence upon which such
actions, claims or demand are based. This indemnification specifically
provides for indemnitor liability for contribution and percent of
liability under Arizona Revised Statutes Section 12-2501 through 2509.
11.2 Lessee Indemnity. Lessee shall indemnify and save harmless Lessor
against all actions, claims, liabilities and demands whatsoever,
including costs, expenses and attorney's fees resulting from or
claimed to have resulted from any willful misconduct or negligent acts
or omissions of Lessee or its employees, agents, or invitees. This
indemnification specifically provides for indemnitor liability for
contribution and percent of liability under Arizona Revised Statutes
Section 12-2501 through 2509.
12. INSURANCE: WAIVER OF SUBROGATION.
12.1 Lessee Insurance. During the entire Lease Term, Lessee shall, at its
sole cost and expense, procure and maintain: (i) comprehensive general
public liability insurance against claims for personal injury, death
and property damage occurring upon, in or about the Premises with a
combined single limit of not less than S 1,000,000 for one person
injured, 51,000,000 for any one accident and $1,000,000 for property
damage; and (ii) fire and extended coverage, vandalism, malicious
mischief, and special extended perils (all risk) insurance in an
amount not less than the full cost of replacement of improvements by
Lessee on the Premises (if any) and all of Lessee personal property,
inventory, decorations, trade fixtures, furnishings. equipment and
other contents in the Premises.
All policies of insurance shall be issued by an insurer reasonably
acceptable to Lessor and shall name Lessee as insured and Lessor as an
additional insured (and/or the mortgagee of Lessor if Lessor so
requires) and shall he issued by insurance carriers acceptable to
Lessor. On or before the Commencement Date, Lessee shall furnish
Lessor with certificate of insurance showing that insurance meeting
the requirements hereof has been obtained and paid at least one (1)
year in advance by Lessee, and Lessee shall obtain a written
commitment from its insurance carrier to notify Lessor in writing at
least thirty (30) days prior to any cancellation or modification
thereof Pursuant to that certain Services and Support Agreement
between Lessor and Lessee of even date herewith (the "Services
Agreement"), Lessor has agreed to provide the insurance required of
Lessee hereunder until June 30, 2003.
12.2 Lessor Insurance. During the entire Lease Term, Lessor shall procure
and maintain (i) comprehensive general public liability insurance
against claims for personal injury, death
and property damage occurring upon in or about the Building, with a
combined single limit of not less than 51,000,000 for one person
injured, S1,000,000 for any one accident and $1,000,000 for property
damage; (ii) fire and extended coverage vandalism, malicious mischief
and special extended perils (all risk) insurance in an amount
reasonable and customary under the circumstances, taking into account
the cost of replacing the Building and the availability and expense of
such insurance.. Upon Lessee request, Lessor shall provide Lessee with
evidence of such insurance.
12.3 Waiver of Subrogation. To the extent permitted by any policies of
insurance maintained by Lessor or Lessee. Lessor and Lessee each
hereby waive any and all rights of recovery against the other or
against the officers, partners, employee, agents and representative of
the other for loss of or damage to such waiving party or its property
or the property of others under its control to the extent that such
loss or damage is insured against under any insurance policy in force
at the time of such loss or damage. The Lessor and Lessee shall, upon
obtaining the policies of insurance required hereunder, give notice to
the insurance carrier or carriers that the foregoing conditional
mutual waiver of subrogation is contained in this Lease. Lessor and
Lessee agree to notify the other if the waiver of subrogation is not
permitted under existing insurance policies.
13. DAMAGE OR DESTRUCTION. If the Premises or any portion thereof are damaged
and the cost of Restoration (defined below) does not exceed the amount of any
insurance proceeds available as a result of the destruction. then Lessee shall
diligently effect the Restoration and this Lease shall remain in full effect
provided that if Restoration cannot he completed before the end of the Term,
Lessee shall have no obligation to effect Restoration and Lessor may elect
either to terminate the Lease by written notice to Lessee delivered within 90
days after the date of the event of destruction or damage or to continue the
Lease with rental payments reduced by the proportion that the damaged Premises
has to the entire Premises. Restoration shall mean reconstruction, rebuilding,
rehabilitation, repair or replacement necessary to return the Premises to
substantially the same condition as it was in immediately before the damage or
destruction.
14. EMINENT DOMAIN. If all or any par of the Premises shall be taken or
appropriated for public or quasi-public use by right of eminent domain, with or
without litigation, or transferred by agreement in contemplation of any such
taking or appropriation, and the remainder of the Premises is rendered unusable
for Lessee's business, either Lessor or Lessee shall have the right at their
respective options, exercisable within thirty (30) days of receipt of notice of
such taking, to terminate this Lease as of the date possession is taken by the
condemning authority. If more than twenty five percent (25%) of the area of the
Building shall he taken or appropriated, Lessor shall have the right at its
option to terminate this Lease by giving notice thereof within thirty (30) days
of receipt of notice of such taking, such termination to be effective as of the
date possession is taken by the condemning authority. No award for any partial
or entire taking shall be apportioned and Lessee hereby assigns to Lessor any
award which maybe made in such taking, together with any and all rights of
Lessee now or hereafter arising in or to be the same or any part thereof;
provided, however, that nothing contained herein shall be deemed to give Lessor
any interest in or to require Lessee to assign to Lessor any award made to
Lessee for the taking of property or trade fixtures belonging to Lessee, for
unamortized cost of Leasehold improvement made or installed by Lessee at its
expense or for moving expenses. In the event of a partial taking of the Premises
which does not result in a termination of this Lease, rent shall be reduced,
effective the date possession is transferred to the condemning authority, in the
proportion that the part of the Premises taken or made unusable bears to the
area of the Premises immediately prior to such taking. If a temporary taking
under this paragraph continues for 90 days or more, Lessee may terminate this
Lease by written notice to Lessor, delivered at least 10 days in advance.
Notwithstanding the forgoing sentence, however, Lessee may not terminate this
Lease under this provision if during the 90 days following commencement of the
taking, Lessor has made available to Lessee for Lessee's use, other space
reasonably sufficient for Lessee to operate its business, taking into account
that such other space will be for a temporary use only.
15. ASSIGNMENT AND SUBLETTING.
15.1 Lessor's Consent. Lessee shall not assign, transfer or sublease
(collectively, a "transfer") this Lease or any interest herein or
permit the Premises to be occupied by any party thereof or by any
entity other than Lessee, without the prior written consent of Lessor
which consent may he withheld or conditioned in Lessor's sole
discretion, and any attempt to do so without such consent being first
obtained shall be wholly void and shall constitute a default of this
Lease,
15.2 No Waiver of Lessee. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision
of this Lease or to be a consent to any transfer. Consent to one
transfer shall not be deemed to constitute consent to any subsequent
transfer.
16. REMOVAL OF LESSEE PROPERTY
16.1 Lessee Property. The term "Lessee Property" is defined as furniture,
trade fixtures, equipment and other personal property installed, in,
on or about the Premises by Lessee at Lessee expense, including metal
storage units, signs, office machines, medical equipment, data
processing equipment, security devices and chests, and other items of
personal property which are not attached or built in.
16.2 Removal. Provided that Lessee is not in default hereunder, Lessee may
remove any of Lessee Property immediately upon the expiration or
termination of this Lease, and any of Lessee Property remaining on the
Premises after such expiration or termination shall, at Lessor's
option, become the property of Lessor. Lessee promptly shall repair,
in good and workmanlike manner, at its own expense, any damage to the
Premises caused by the installation or removal of Lessee Property.
16.3 Surrender. Upon the expiration or termination of this Lease for any
reason, Lessee immediately and peaceably shall surrender the Premises
to Lessor in a safe and clean condition and in good order and repair,
reasonable wear and tear excepted.
17. FORCE MAJEURE. If either party is delayed or prevented from the performance
of any act required hereunder by reason of acts of God, strikes, lockouts, labor
troubles, civil disorder, inability to procure materials, or other cause without
fault and beyond the reasonable control of such party (financial inability
excepted), performance of such act shall be excused for the period of delay.
18. RESERVED RIGHTS. Lessor reserves the following rights, exercisable without
notice, without constituting an eviction, constructive or actual, or a
disturbance of Lessee use or possession or giving right to any reduction of rent
by Lessee:
18.1 Modify the Building. The right to add to, modify, improve, alter,
remodel or remove any part or all of the Building (so long as such
modification does not impair Lessee's use of the Premises or Lessee's
rights hereunder). If any portion of the Premises is modified, Lessor
shall obtain Lessee's written consent that shall not be unreasonably
withheld or delayed.
18.2 Improvements. The right to add to, improve or alter any part or all of
the parking area, sidewalks, hallways and other portions of the Common
Area and facilities appurtenant to the Building, provided that Lessor
shall not materially and adversely effect Lessee access to or use of
the Premises.
18.3 Window Covering. The right to designate and approve, all types of
window shades, blinds, drapes, awnings, window ventilators and other
similar window coverings and equipment.
18.4 Lighting. The right to control all internal lighting.
19. DEFAULTS. REMEDIES.
19.1 Events of Default. The occurrence of any of the following events shall
constitute a "default" hereunder:
19.1.1 The abandoning of the Premises;
19.1.2. Failure to pay any installment of rent or other monies when
due and payable hereunder, if the failure shall continue for five
(5) days after receipt of written notice thereof from Lessor;
19.1.3 Failure to perform any provisions hereof (except for a monetary
default under Paragraph 19.1.2, above) if the failure shall
continue for thirty (30) days after written notice thereof
19.1.4 Termination of the Services Agreement, or the occurrence of a
material breach by Lessee of the Services Agreement that is not
cured within the time permitted under the Services Agreement,
19.2 Remedies. In the event of any such default by Lessee, Lessor shall be
entitled to exercise the following rights and remedies at any time
thereafter:
19.2.1 Collect each installment of rental hereunder as and when the
same matures.
19.2.2 Without termination of this Lease, lock the doors to the
Premises and exclude Lessee therefrom.
19.2.3 Terminate Lessee right to possession and occupancy of the
Premises
without terminating the term of this Lease; and in the event
Lessor shall exercise such right of election, the same shall be
effective as of the date of written notice of Lessor's election,
given by Lessor to Lessee at any time after the date of an Event
of Default. Upon any termination of the term hereof whether by
lapse of time or otherwise, or upon any termination of Lessee
right to possession or occupancy of the Lease without terminating
the term hereof Lessee shall promptly surrender possession and
vacate the Premises and deliver possession thereof to Lessor, and
Lessee hereby grants to Lessor full and free license to enter
into and upon the Premises in such event without process of law
and to expel or remove Lessee and any others who may be occupying
the Premises and to remove therefrom any and all property, using
for such purpose such force as may he necessary without being
guilty of or liable for trespass, eviction, or forcible entry or
detainer and without relinquishing Lessor's right to rent or any
other right given to Lessor hereunder or by operation of law.
19.2.4 If Lessor elects to terminate Lessee right to possession only,
without terminating the term of this Lease, Lesor at it option
may enter into the Premises, remove Lessee's property and other
evidences of tenancy, and take and hold possession thereof
without such entry and possession terminating the term of this
Lease or otherwise releasing Lessee in whole or in part from its
obligation to pay the rent herein reserved for the full term
hereof
19.2.5 Retain or take possession of any property belonging to Lessee
upon the Premises pursuant to Lessor's statutory lien. Such
property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Lessee. and
Lessor shall in no event be liable for any damage or loss
thereto.
19.2.6 Terminate this Lease by written notice to Lessee, in which
event Lessee shall have no further interest in this Lease or in
the Premises, and Lessor may recover fom Lessee all damage Lessor
may incur by reason of Lessee breach, including the cost of
recovery the Premises and reasonable attorney's fees.
19.2.7 Render such performance required of Lessee, other than the
payment of Basic Rent, and charge all costs and expenses incurred
in connection therewith to Lessee, and all amounts so charged
shall be due and payable immediately to Lessor upon presentment
of a statement including supporting documentation to Lessee
indicating the amount and nature of such costs or expenses.
19.2.8 Suspend or discontinue any or all of the serices to be provided
to the Premises pursuant to Article 6 or 7 hereof during the
continuance of any such default and any such suspension or
discontinuance shall not be deemed or construed to be an eviction
(whether actual or constructive) or ejection of Lessee.
19.2.9 No reentry or taking possession of the Premises by Lessor
pursuant to the terns of this Article 19 shall be construed as an
election on its pail to terminate this Lease unless a written
notice of such intention be given to Lessee or unless the
termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination,
Lessor may at any time thereafter, elect to terminate this Lease
for such previous breach.
19.2.10 If Lessor does not receive any installment of rent prior to
expiration of the notice period specifed in Paragraph 19.1.2 or
any other sum due hereunder within thirty (30) days afer the sums
are due, Lessee shall pay to lessor a late charge equal to five
percent (5%) of the past due payment. The provision for such late
charge shall be in addition to all of Lessor's other rights and
remedies hereunder or at law, and shall not be construed as
liquidated damages or as limiting Lessor's remedies in any
manner.
19.2.11 No act or conduct of Lessor. whether consisting of the
acceptance of the keys to the Premises, or otherwise, shall be
deemed to be or
constitute an acceptance of the surender of the Premises by
Lessor prior to the expiration of the Lease Term, and such
acceptance by Lessor of surrender by Lessee shall only be
effected, and must be evidenced, by written acknowledgement of
acceptance of surrender signed by Lessor.
19.2.12 In the event the Premises are relet by Lessor afer default by
Lessee at a rental which exceeds that owing from Lessee herein
(including all costs associated with such rcletting and any other
costs and expenses payable by Lessee pursuant hereto). Lessee
expressly states and agrees that Lessee, its successors, assigns
and representatives have no claim to or interest in any excess
rent.
19.3 Lessee's Remedies. If Lessor fails to perform any of the material
covenants and conditions agreed to be performed by Lessor hereunder (a
"Lessor Default") and the Lessor Default continues for thirty (30)
days after notice thereof from Lessee to Lessor, Lessee shall be
entitled to exercise all rights, powers or remedies provided by law;
provided however, that if the nature of the Lessor Default is such
that more than thirty (30) days are required for cure thereof, then
Lessor shall not be in default hereunder if Lessor commences cure
thereof within the thirty (30) day period and diligently prosecutes
the same to completion. Upon written request by Lessor, Lessee shall
serve notice of any alleged Lessor Default upon any lessor and,
notwithstanding any other provision of this Lease or applicable law,
shall allow such Lessor a reasonable amount of time (but not less than
thirty (30) days after the grace period in favor of Lessor, to cure
the same, including such time as is reasonable necessary for such
Lessor to complete termination or other proceedings and obtain
possession of the Building from Lessor.
Except as otherwise expressly provided herein, Lessee agrees that it
shall look solely to the estate and property of Lessor in the building
(subject to prior rights of any ground lessor and mortgagee) requiring
the payment of money by Lessor in the event of any Lessor Default,
with Lessor not to otherwise be liable to Lessee and Lessee not to
otherwise have any remedies against Lessor therefore.
20. ENVIRONMENTAL. Lessee shall not use, generate, manufacture, store or dispose
of in, under or about the Premises or transport to or from the Premises any
Hazardous Material and shall dispose of such materials in accordance with
applicable law. For the purposes of this Lease, "Hazardous Materials" shall
include, but shall not be limited to (i) flammable, explosive or radioactive
materials, hazardous wastes, toxic substances or related materials, (ii) all
substances defned as "hazardous substances", "hazardous materials", or "toxic
substances" in the Comprehensive Environmental Response Compensation and
Liability Act of 1990, as amended 42 U.S.C. Section 9601; et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; and (iii) all
substances defned as "hazardous wastes" in Arizona Revised Statutes Section
49-201 (16). Lessee shall be solely responsible for, and shall indemnify and
hold harmless Lessor and its successors and assigns for, fom and against any
loss, damage, cost, expense or liability directly or indirectly arising out of
or attributable to the use, generation, storage, Lease, threatened Lease,
discharge, or disposal by Lessee of Hazardous Materials on, under or about the
Premises arising subsequent to the date on which this Lease was executed,
including without limitation: (a) all foreseeable consequential damages; (b) the
costs of any required or necessary repairs, cleanup or detoxifcation of the
Premises, and the preparation and implementation of any closure, remedial or
other required plans; and (c) all reasonable costs and expenses incurred by
Lessor in connection with clauses (a) and (b), including but not limited to
reasonable attorneys' fees.
21.MODIFICATION OF AGREEMENT. If, as a result of any federal, state or local
law. rules or regulation modification of this Lease is necessary, the paries
will so modify this Lease as to conform to such law, rule or regulation.
22.SANCTIONS DISCLOSURE. Lessee hereby expressly represents and warrants to
Lessor that neither Lessee nor any offcer, director or owner of 5% or more of
the outstanding stock of Lessee, nor any immediate family or household member
(as that term is defned by Public Law 105-33, Section 4303) of any such ofcer,
director or owner has been placed on the sanctions list issued by the Offce of
the Inspector General of the Department of Health and Human Services pursuant to
provisions of 42 U.S.C. Section 1320 a.7 or been excluded from government
contracts by the General Services Administration (GSA). Further, if during the
term of this Agreement, Lessee, any offcer, director or owner of 5% or more of
the outstanding stock of Lessee, or any immediate family of any such officer,
director or owner is placed on the sanctions list, Lessee shall immediately
notify Lessor in writing of the event and such notice shall contain reasonably
suffcient information to allow Lessor to determine the nature of the sanction.
Lessor shall have the right to terminate this Lease immediately by written
notice to Lessee if Lessee, or any ofcer, director or owner of 5% or more of the
outstanding stock of Lesee, or any family or household member of any such
offcer, director or owner is placed on the sanctions list or banned from
goverunent contracts by the GSA, and such person's connection with Lessee is not
completely and irrevocably severed within 10 days afer demand for such severance
by Lessor.
23. GENERAL PROVISIONS.
23.1 Lessor. The term "Lessor" as used herein, shall mean the owner(s) or
holder of the right to possession of the Building at the time in
question.
23.2 Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall in no way affect
the validity of any other provision hereof
23.3 Time of Essence. Time is of the essence.
23.4 Captions. Paragraph headings are not a part hereof.
23.5 Entire Agreement. This Lease is an integrated contract that contains
all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such
matter shall be effective. This Lease may be modified only in writing,
signed by the parties in interest at the time of the modification.
There are no oral or written statements, representations, agreements
or understandings that modify, amend or vary or purport to modify,
amend or vary any of the terms of this Lease.
23.6 Notices. Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery, against receipted
copy; by certified U.S. Mail, postage paid, return receipt requested;
or by a recognized competent courier: and shall be deemed sufficiently
given if delivered or addressed to Lessee or to Lessor at the address
specified in the Basic Lease Information and for Lessor, with a copy
to:
David M. Bixby, Esq.
Senior Vice President/General Counsel
1441 North 12th Street
P.O. Box 25489
Phoenix, AZ 85002-5489
Either party may by notice to the other specify a different address
for subsequent notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently
transmitted to such party or parties at such addresses as Lessor may
from time to time hereafter designate by notice to Lessee. Notices,
consents, approval or other
communications given by U.S. Mail shall be deemed given or received 72
hours after deposit in the U.S. Mail as herein provided.
23.7 Waivers. No waiver by either party of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent
breach by the other party of the same or any other provision. A
consent to or approval of any act shall not be deemed to render
unnecessary the obtaining of a consent to or approval of any
subsequent act. The acceptance of rent or any other payment by Lessor
shall not be a waiver of any preceding breach by Lessee.
23.8 Holding Over. If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof, unless otherwise
agreed in writing, such occupancy shall he a month-to-month tenancy on
the terms in effect as of the expiration. Rent shall be one hundred
fifty percent (150 degrees/) of the rent in effect during the month
preceding expiration (unless otherwise agreed to by Lessor in
writing).
23.9 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, he cumulative with all other
remedies at law or in equity.
23.10 Covenants and Conditions. Each provision of this Lease shall be
deemed both a covenant and a condition.
23.11 Binding Effect: Choice of Law. This Lease shall bind the parties,
their personal representatives, successors and assigns. This Lease
shall he governed by the laws of the State of Arizona.
23.12 Subordination and Estoppel Provision.
23.12.1 At Lessors option, this Lease shall be subordinate to any
ground Lease, mortgage, deed of trust or any other hypothecation
for security now or hereafter placed upon the Building and to any
and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and
extensions thereof Notwithstanding such subordination, Lessee's
tight to quiet possession of the premises shall not be disturbed
if Lessee is not in default and so long as Lessee shall pay the
rent and observe and perform all of the provisions of this Lease,
unless this Lease is otherwise terminated pursuant to its terms.
If any mortgagee, trustee or ground lessor shall elect to have
this Lease prior to the lien of its mortgage, deed of trust or
ground Lease, and shall give written notice thereof to Lessee,
this Lease shall be deemed prior to such mortgage, deed of trust,
or ground Lease, whether this Lease is dated prior o subsequent
to the date of the mortgage, deed of trust or ground Lease or the
date of recording thereof.
23.12.2 Lessee shall execute any agreements reasonably required to
effectuate such subordination or to make this Lease prior to the
lien of any mortgage, deed of trust or ground Lease, as the case
maybe within ten (I0) days after written demand therefore.
23.13 Brokerage. Lessee warrants and represents that it has not dealt with
any real estate broker, salesperson or agent in connection with this
Lease or its negotiation.
23.14 Attorney's Fees. If either party brings an action to enforce the
terns hereof or to declare the rights of the parties hereunder or for
the interpretation of any part of this Lease, the prevailing party in
any such action, or trial or appeal, shall be entitled to its
reasonable attorneys fees to be paid by the losing party as determined
by the judge of the court and not by the jury.
23.15 Quiet Enjoyment. Upon Lessee paying the rent reserved hereunder and
observing and performing all of the covenants, conditions and
provisions on Lessee part to be observed and performed hereunder,
Lessee shall have quiet possession of the Premises for the entire teen
hereof subject to all of the provisions of this Lease.
23.16 Authority. Any individual executing this Lease on behalf of or as
representative for a corporation or other person, firm, partnership or
entity represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said corporation, person, firm,
partnership, or other entity and that this Lease is binding upon said
entity in accordance with its terms.
23.17 Incorporation of Schedules and Riders. All exhibits attached hereto
shall be deemed a part of this Lease.
23.18 Estoppel. Lessee shall within ten (10) business days following Lessee
receipt of any written request from Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying: (a) whether this
Lease is in full force and effect and stating the nature of any
modification hereto; (b) the dates to which the rentals and other
charges are paid in advance, if any (c) that there are not, to Lessee
knowledge, any defaults on the part of Lessor hereunder, or specifying
such defaults if they are claimed; and (d) such other matters as may
reasonably be requested by Lessor. Lessee acknowledges that any such
statement maybe relied upon by any prospective purchaser or
encumbrance of all or any portion of the Building. Lessee failure to
deliver such statement within such time shall be conclusive upon
Lessee (a) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (b) that there
are no uncured defaults in Lessors performance.
23.19 Execution. Lessee must execute and deliver this Lease to Lessor
within five
(5) days of execution by Lessor or this Lease shall be null and void.
23.20 Lessor Warranty. Lessor hereby represents to Lessee that the Premises
and the building in which the Premises are located comply with
applicable law in effect as of the date of completion of construction
and shall comply with after enacted laws to the extent compliance is
mandated by applicable federal, state or local law.
23.21 Signs. At Lessee's expense and subject to the approval of the Lessor
Lessee shall be included in the Building directory. Lessee shall be
solely responsible for installation of all signage within the
Premises.
23.22 Consents. Except as otherwise expressly provided, if consent or
approval of either party is required or permitted, the party being
asked to consent or approve shall not unreasonably withhold or
condition its consent or approval.
23.23 Parking. Lessee shall have the no exclusive or reserved parking; all
Lessee parking shall be nonexclusive use, in common with other
building tenants, guest, invitees, employees and agents.
IN WITNESS WHEREOF the parties hereto have executed this Lease to be effective
as of the day and year first above written.
BANNER HEALTH SYSTEM, an Arizona MEDAIRE, INC. an Arizona corporation
nonprofit coporation
By: /s/ Peter Fine By: /s/ Joan Sullivan Garrett
--------------------------------- ------------------------------------
President & COO President