INDUSTRIAL GROSS LEASEIndustrial Lease Agreement |
|
|
You are currently viewing: This Industrial Lease Agreement involves
LOTUS PACIFIC INC | MCCLAIN, L.L.C., | GO-VIDEO, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.11
INDUSTRIAL GROSS LEASE
BETWEEN 78 MCCLAIN, L.L.C., AS LANDLORD, AND
GO-VIDEO INC., AS TENANT
INDUSTRIAL GROSS LEASE BETWEEN 78 MCCLAIN,
L.L.C. AND GO-VIDEO, INC.
Legal Description Floor Plan Site Plan
INDEX OF DEFINED TERMS
STANDARD FORM INDUSTRIAL GROSS LEASE
BY THIS LEASE (“Lease”) entered into as of this 15th day of November, 1994, Landlord and Tenant agree as follows:
l. BASIC LEASE INFORMATION THE FOLLOWING BASIC LEASE INFORMATION IS A PART OF THIS LEASE, BUT DOES NOT CONSTITUTE THE ENTIRE LEASE. TENANT ACKNOWLEDGES THAT IT HAS READ ALL OF THE PROVISIONS CONTAINED IN THE ENTIRE LEASE AND ALL EXHIBITS WHICH ARE A PART THEREOF AND AGREES THAT THIS LEASE, INCLUDING THE BASIC LEASE INFORMATION AND ALL EXHIBITS, REFLECTS THE ENTIRE UNDERSTANDING AND REASONABLE EXPECTATIONS OF LANDLORD AND TENANT-REGARDING THE PREMISES. TENANT ALSO ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO REVIEW THIS LEASE PRIOR TO EXECUTION WITH LEGAL COUNSEL AND SUCH OTHER ADVISORS AS TENANT DEEMS APPROPRIATE.
Landlord: 78 McClain, L.L.C., an Arizona limited liability company Address: 7494 East Desert Cove Scottsdale, Arizona 85260 Attention: Tom McClain, Manager Tenant: Go-Video, Inc. Entity: a Delaware corporation Address: 14455 North Hayden Road Suite 219 Scottsdale, Arizona 85260 Contact: Douglas Klein, Vice President of Finance and Treasurer Phone: {602} 998-3400
Street Address: 7807 East McClain Drive Scottsdale, Arizona 85260 Legal Description: All that certain real property located in Scottsdale, Maricopa County, Arizona, and more particularly described in Exhibit “A” attached hereto. Approximate Square Footage: 32,766 square feet of Gross Leasable Area
1.3 Site Plan: The building, parking facilities and other improvements as depicted on Exhibit “B” attached hereto (the “Site Plan”).
1.4 Lease Term: Seven (7) years, commencing May 1, 1995, or such other date as is specified in Section 3.1. The Lease Term shall also include the Renewal Option Term, if properly exercised by Tenant.
1.5 Renewal Option Term: One (1) optional renewal term of three (3)–years, exercised as specified in Section 3.1.
1.6 -Monthly Rent: For year ]., $22,936 per month; for years 2 and 3, $23,591.52 per month; for years 4 and 5, $24,574 per month; for years 6 and 7, $25,557; far years 8 through 10 (the Renewal Option Term) $26,868 per month. In addition to the foregoing amounts, monthly rent shall also include any and all rental, occupancy, use, sales and transactional privilege tax imposed upon or payable by Landlord in connection with this Lease, the rentals due hereunder, or the use or occupancy of the Premises.
1.7 Base Operating Costs: The Base Operating Costs shall equal actual Operating Costs (as defined in Section 5.2) incurred by Landlord during the first Lease Year.
1.8 Use: Consumer electronic products (including, without limitation, video equipment) manufacturing and warehousing and related office and administrative functions.
1.9 Security Deposit: $22,937.30, plus tax. The Security Deposit shall be deposited and subject to increase in accordance with Article 18.
1.10 Guarantors: None.
1.11 Broker: Michael Johnson Gore Range Equities, Inc. 2910 East Camelback Road, Suite 180 Phoenix, Arizona 85016 and John Corritore . The Corritore Company 6166 North Scottsdale Road, Suite 650 Scottsdale, Arizona 85253
2.1 Description. Landlord leases to Tenant and Tenant leases from Landlord the Premises described in Section 1.2. Tenant’s rights under this, Lease are subject to and restricted by the
provisions of any covenants, conditions, restrictions and easements, and all amendments thereto, recorded against the Premises.
2.2 Revision of Site Plan . The depiction of the Site Plan on Exhibit “B” represents Landlord’s current plans for the Premises. Such depiction may be subsequently modified (subject to Tenant’s written approval of any material modification) and does not constitute a representation, covenant or warranty of any kind by Landlord.
3. 1 Term. The term of this Lease shall be for the time period set forth in Section 1.4 or until this Lease is sooner terminated (“Lease Term”). The Lease Term shall commence on the date the Premises are ready for occupancy by Tenant (the “Commencement Date”). If Landlord fails to obtain a building Mo4 permit from the City of Scottsdale for construction of the Premises by January 15, 1995, Tenant may cancel by giving Landlord notice of ‘ cancellation within seven (7) days following Landlord’s notice to Tenant of Landlord’s failure- to meet such date. If Tenant fails to give such notice, Tenant shall continue to be bound by the terms of this Lease. If Landlord fails to commence construction of the Tenant Improvements set forth in Exhibit “C” to this Lease (the “Tenant Improvements”) by April 1, 1995, Tenant may cancel by giving Landlord notice of cancellation within seven (7) days of such date and paying Landlord within five (5) business days of such notice the documented cost of rebuilding the exterior walls of the Building to conform with Landlord’s original drawings (i.e, windows inserted in the west wall to match the north and east walls, five (5) roll up doors inserted in the south wall, and a ten-foot panel window inserted in the north wall to match the west wall of the Building). If Tenant fails to give such notice, Tenant shall continue to be bound by the terms of this Lease. If the Building is not ready for occupancy by Tenant on or before May 1, 1995, Tenant shall receive ten (10) days free Monthly Rent in the month of June, 1995. If the Building is not ready for occupancy by Tenant on or before June 1, 1995, Tenant shall receive an additional ten (10) days free Monthly Rent in the month of July, 1995. No free rent penalty shall be assessed against Landlord for any delay resulting from events described in Article 29 of this Lease. Landlord shall provide thirty (30) days’ notice to Tenant of the anticipated Commencement Date. If a delay in obtaining a building permit, commencing construction of Tenant Improvements, or delivery of possession is caused by Tenant’s failure to perform any obligation in accordance with this Lease, the Lease Term shall commence on the date Landlord would have delivered possession of the Premises to Tenant absent such delay. For purposes of calculating the expiration of the Lease Term, if the Commencement Date does not occur on the first day of a calendar month, the expiration of the. Lease Term shall be calculated as though the Lease Term began on the first day of the next succeeding calendar month. Irrespective of when the Commencement Date occurs, all of the provisions of this Lease shall be effective as of the date that Landlord permits Tenant to enter the Premises, except that Tenant’s obligation to pay rent shall not commence until the Commencement Date. Provided Tenant is not in default upon either the notice date or the expiration of the initial Lease Term, Tenant may renew this Lease, upon the terms hereof, for a Renewal Option Term of three {3} years by giving Landlord notice of Tenant’s election to renew no less than 180 days prior to expiration of the initial term Lease Term.
3.2 -Holding Over . If Tenant remains on the Premises after the expiration of the Lease Term, Tenant shall become, at Landlord’s election, a tenant on a month-to-month basis at a Monthly Rent equal to one hundred fifty percent (1500) of the Monthly Rent payable for the last month of the Lease Term. Such rent shall be payable in advance on the first day of such holdover period and on the first day of each month thereafter. Such tenancy shall be subject to all of the other provisions of this Lease.
4. MONTHLY RENT 4.1 Monthly Rent . At the times and in the manner set forth herein, Tenant shall pay to Landlord as rent for the Premises during the Lease Term, the Monthly Rent specified in Section 1.5 beginning on the Commencement Date and continuing thereafter throughout the Lease Term.
4.2 Time and Manner of Payment . The Monthly Rent shall be paid in advance on the first day of each calendar month beginning with the Commencement Date. If the Commencement Date is other than the
first day of a calendar month, the Monthly Rent payment for such fractional month shall be a pro rata amount {based upon a 30-day month} of the full Monthly Rent payment and shall be paid on the Commencement Date (see Article 18 regarding application of the Security Deposit to the first month’s rent).
4.3 Payment . All sums payable pursuant to this Lease shall be paid when due, in lawful money of the United States of America, without deduction, offset, prior notice or demand to Landlord at the address set forth in Section 1.1, or at such other place or to such other person as Landlord may from time to time designate.
4.4 “Lease Year ” Defined. “Lease Year” is each twelve (7.2) month period during the Lease Term. The first Lease Year shall begin at 12:01 A.M. on the Commencement Date and end at midnight on the day before the first anniversary of the Commencement Date. (For example, if the Commencement Date were May 1, 1995, the first Lease Year would begin at 12:Oi A.M. on May l, 1995, and end at midnight on April. 30, 1996.) Each succeeding Lease Year shall commence on the anniversary of the Commencement Date and end on the anniversary of the end of the First Lease Year.
5. EXCESS OPERATING COSTS 5.1 Tenant’s Obligation . For each Lease Year, Tenant shall pay to Landlord, in the manner and at the intervals provided below, the amount by which the Operating Costs exceed the Base Operating Costs (“Excess Operating Costs”). Tenant’s obligation for Excess Operating Costs is referred to as “Tenant’s Share.”
5.2 “Operating Costs ” Defined. “Operating Costs” shall mean the total-of all costs and expenses incurred in connection with the ownership, operation, maintenance, replacement and repair of the Premises, including, without limitation, all sums expended for: (a) Supplies, materials, labor and equipment, used in or related to the operation and maintenance of the Premises. (b) Water, electricity, gas, sewer, waste disposal and other utilities, security, heating, air conditioning, ventilating, lighting, landscaping, painting, signage and trash removal (not otherwise paid for directly by Tenant). (c) Maintenance, management, janitorial and service agreements related to the Premises (provided, however, that Tenant shall have the obligation to obtain and provide janitorial services for the Premises). (d) Legal and accounting costs (excluding legal costs of negotiating, terminating or -extending this Lease), incurred by Landlord in the operation of the Premises. (e) Insurance premiums and costs, including but not limited to the premiums and costs of fire, casualty and liability coverage, rental abatement, earthquake and flood insurance related to the Premises. (f) Maintenance, repair and replacement costs relating to the Premises, including without limitation, sidewalks, landscaping, service areas, driveways, parking areas (including repairing, resurfacing, repaving and restriping), walkways, building exteriors (including painting and repairing) roofs, signs and directories. (g) Clerical, supervisory and janitorial staff, and a reasonable management fee to Landlord. (h) Real estate taxes and assessments, including all taxes, assessments (general and special) and other impositions or charges which may be taxed, charged, levied, assessed or imposed upon all or any portion of or in relation to the Premises or any portion thereof, any leasehold estate in the Premises or measured by rent from the Premises, including any increase caused by the transfer, sale or encumbrance of the Premises or any portion thereof, and specifically including all assessments and charges imposed against the Premises. Such taxes shall also include any form of assessment, levy;—charge or tax (other than estate, inheritance, net income or franchise taxes) imposed by any authority having a direct or indirect power to tax or charge, including without limitation, any city, county, state, federal or any improvement or other district, whether such tax is (i) determined by the area of the Premises or the rent or other sums payable under this Lease, (ii) upon or with respect to any legal or equitable interest of Landlord in the Premises or any part thereof, (iii) upon this transaction or any document to which Tenant is a party creating a transfer in any interest in the Premises, (iv) in lieu of or as a direct substitute in whole or in part or in addition to any real property taxes on the Premises, (v) based on any parking spaces or parking facilities provided in the Premises, or (vi) in consideration for services, such as police protection, fire
protection, street, sidewalk and roadway maintenance, refuse removal of other services that may be provided by any governmental or quasi-governmental agency from time-to-time. Notwithstanding the foregoing, Operating Costs shall not include any penalty or late charge for Landlord’s failure to pay taxes or assessments when due and payable. If the Premises- are taxed as unimproved land for some or all of the First Lease Year, then Base Operating Costs will be calculated using the taxes and assessment on the Premises for the first tax year in which the Premises are assessed with the improvements contemplated by this Lease. Operating Costs shall not include depreciation of the Building, loan payments, real estate commissions, the initial cost of constructing the Building and other portions of Premises or Tenant Improvement costs.
5.3 Tenant’s Share of Excess Operating Costs . Landlord, at its option, shall have the right to estimate the amount of Excess Operating Costs next due and to collect and impound such amount from Tenant on a monthly, quarterly or such other basis as Landlord, in its discretion, may determine. Landlord shall provide Tenant with a reconciliation of Tenant’s impound account within 90 days after the end of each Lease Year, and if such reconciliation reveals that Tenant’s impound account is insufficient to satisfy Tenant’s Share of the Excess Operating Costs for such year, Tenant shall pay to Landlord such deficiency within ten (10) days after Tenant’s receipt of the reconciliation. Tenant, at Tenant’s cost and expense, may audit the Operating Costs upon reasonable notice to Landlord. Landlord shall apply any excess in Tenant’s impound account to Tenant’s rental obligations for the following month. After the final reconciliation after the expiration of the Lease Term, Landlord shall pay to Tenant any excess funds remaining in Tenant’s impound account. If Landlord elects not to impound Tenant’s Share of Excess Operating Costs, Tenant’s-Share of Excess Operating Costs shall be computed not more than once each month and not less than once each year and shall be paid by Tenant within ten (10) days after receipt of a bill therefor from Landlord. Tenant’s Share of Excess Operating Costs relating to items (c), (f), and (g) of Section 5.2 above shall not increase more than five percent (50) per year.
6. CONSTRUCTION OF PREMISES 6.1 Obligations of Landlord and Tenant . Landlord shall, at Landlord’s expense, prepare the Premises for Tenant’s occupancy by performing that work described as “Landlord’s Improvements” on attached Exhibit “C” (“Landlord’s Improvements”). Landlord shall notify Tenant when Landlord substantially completes Landlord’s Improvements and, thereafter, Tenant shall, at its expense, perform all work and supply all materials necessary for Tenant’s use of the Premises that are not included within Landlord’s Improvements.
6.2 Condition of the Premises . Tenant shall have 30 days after the Commencement Date of this Lease to give Landlord notice of any contended defects in the Premises or in Landlord’s Improvements. Upon the expiration of such—30-day period, the Premises and Landlord’s Improvements shall be deemed to be in satisfactory condition and in compliance with this Lease, except as set forth to the contrary in Tenant’s notice to Landlord. If Tenant fails to give such notice within such 30-day period or to specify a defect therein, Tenant shall be deemed to have irrevocably waived all rights with respect to such defects, but only with respect to these defects which Tenant could have reasonable detected. Upon receipt of any such notice Landlord shall repair any actual defects or variances in the exercise of reasonable diligence to the extent such work is Landlord’s obligation pursuant to this Lease. The existence of any defects or variances shall not affect Tenant’s obligations set forth in Section 6.1.
6.3 ADA Standards. Landlord represents and warrants that during the Lease Term the Building will meet all handicap standards per the 1988 Uniform building Code and all applicable requirements of the Americans. with Disabilities Act of 1990 (the “ADA”). Landlord agrees, promptly and with due diligence, to make any alterations and revisions necessary as a result of breach of the foregoing warranty and representation, at Landlord’s sole cost, without charge to any allowance provided to Tenant and without allocating such costs to Excess Operating Costs, it being agreed that such costs are not includable as Operating Costs.
7. COMMON AREAS 7.1 “Common Areas” Defined . “Common Areas” are those areas and facilities within the Premises that are used for landscaping and open-space areas, parking areas, service -roads, loading facilities, sidewalks, driveways and similar uses.
7.2 Use of Common Areas . Tenant shall have the exclusive right to use the Common Areas subject to the terms of this Lease. The foregoing notwithstanding, Tenant shall have no claims against Landlord arising out of the Condemnation or other taking by any public authority of any or all of the Common Areas.
7.3 Parking . The Common Areas shall include a minimum of eighty (80) parking spaces, including fifty (50) covered parking spaces. The parking’ cover shall be of semi-cantilevered construction, and the covered parking shall be located partially on 78th Street and partially at the rear of the Building. Tenant and its subtenants, invitees, licensees, agents, contractors, representatives, and employees (“Tenant’s Permittees”) shall park only in the areas designated for parking. If Landlord determines that Tenant or Tenant’s Permittees are not parking in the designated areas, Landlord shall give Tenant 3 business days’ notice of such fact and, thereafter, Tenant shall, within 3 business days of demand from Landlord, pay to Landlord the sum of Fifteen Dollars ($15.00) per day for each vehicle parked by Tenant or Tenant’s Permittees outside such designated areas; provided, however, that any demands for payment must be given to Tenant within 7 days after the occurrences with respect to which payment is demanded.
8. USE OF PREMISES 8.1 Permitted Uses . Tenant shall occupy and use the Premises for the purposes specified in Section 1.7, and for no other purposes whatsoever. No transfer pursuant to Article 17 shall affect the foregoing restriction. Tenant warrants that Tenant has investigated and is satisfied that the use of the Premises as permitted by this Lease and Tenant’s proposed manner of operation will comply with all applicable laws, statutes, ordinances, codes, rules and regulations of governmental and/or private entities having jurisdiction over the Premises, including without limitation all zoning laws regulating the use and enjoyment of the Premises. Tenant hereby waives any defense of its obligations hereunder based upon the legal doctrines of frustration of purpose or impossibility or other defenses based upon Tenant’s inability to use the Premises for the purposes for which the Premises were leased.
8.2 Insurance Requirements . Tenant shall not engage in or permit any activity that will cause the cancellation of or increase the existing insurance premiums on or relating to the Premises. Tenant shall not allow or permit to remain in or about the Premises any article that may be prohibited by the broadest form of “All Risk” or “Special Form” property damage insurance policies. Tenant shall comply with all requirements pertaining to the use of the Premises -necessary for maintenance of such insurance as Landlord may from time to time obtain for the Premises. If Tenant breaches this Section, Landlord shall have the right to demand and receive from Tenant an amount equal to the increase in the existing premium rate.
8.3 Prohibited Operations . No use, operation or conduct by Tenant or Tenant’s Permittees shall be conducted or permitted within the Premises that is inconsistent with the operation of a first-class industrial project, as reasonably determined by Landlord. Without limiting the foregoing, Tenant shall not commit or permit any waste or any unlawful, improper or offensive use of the Premises, or create or permit any public or private nuisance.
8.4 Antenna . Tenant shall not erect any aerial or antenna or any other item on the roof or exterior walls of the Premises, other than signs as permitted by Article 19, except as expressly approved by Landlord or as shown on Exhibit “E” attached hereto.
8.5 Compliance with Laws. Tenant, at its expense, shall comply with all existing and future rules, regulations, ordinances, orders, codes, laws and requirements of all municipal, county, state, federal and other applicable governmental authorities, the Board of Fire Underwriters, Landlord’s and Tenant’s insurance companies and other organizations that establish insurance rates pertaining to the Premises or the use of the Common Areas, including without limitation the installation of fire extinguishers, alarm systems, sprinkler systems or automatic dry chemical extinguishing systems. The judgment of any court of competent jurisdiction, or Tenant’s admission in any action or proceeding against Tenant, whether or
not Landlord is a party thereto, that Tenant has violated any such rule, regulation, ordinance, order, code, law or requirement, shall be conclusive of that fact as between Landlord and Tenant.
8.6 Use of Walls . Landlord reserves the use of the exterior walls, the roof and the floor of the Premises and the right to install, maintain, use, repair and replace pipes, conduits, wire and-other improvements through the Premises in locations and in a manner that will not materially interfere with Tenant’s use of the Premises.
8.7 Indecent Materials . Tenant or Tenant’s Permittees shall not manufacture, produce, publish, sell, lease, display or disseminate on the Premises any media, materials, or devices (including, but not limited to newspapers, magazines, books, pamphlets, paintings, photographs, tapes, films, cassettes, cable television programs, movies, advertisements, and records) that Landlord, in its reasonable discretion, deems to be unacceptable or inappropriate due to the indecent or otherwise offensive nature and content of such media, materials, or devices. Landlord specifically retains the right to enter and inspect the Premises during normal business hours to assure itself that Tenant is not in violation of this covenant. Tenant shall immediately cease the production of and remove from the Premises, at Tenant’s cost, any such media, materials or devices upon receipt of notice from Landlord requiring such ceasing and removal. If Tenant fails to permanently cease the production of and remove such media, materials or devices within 2 business days after receipt of such notice, notwithstanding any grace periods afforded to Tenant elsewhere in this Lease, Tenant shall be deemed in breach of this Lease and Landlord shall have the right to enter the Premises to remove the media, material or devices and to immediately terminate this Lease as of the date of the breach.
8.8 Hazardous Substances . Tenant shall not manufacture, produce, use, store, release, dispose or handle in or about the Premises or transfer to or from the Premises (or permit any other party to do such acts) any Hazardous Substance except in compliance with all applicable Environmental Laws. Tenant shall not construct or use any improvements, fixtures or equipment or engage in any act on or about the Premises that would require the procurement of any license or permit pursuant to any Environmental Law. Tenant shall immediately notify Landlord of (i) the existence of any Hazardous Substance on or about the Premises that may be in violation of any Environmental Law (regardless of whether Tenant is responsible for the existence of such Hazardous Substance), (ii) any proceeding or investigation by any federal, state or local governmental authority regarding the presence of any Hazardous Substance on the Premises or the migration thereof to or from any other property, (iii) all claims made or threatened by any third party against Tenant relating to any loss or injury resulting from any Hazardous Substance, or (iv) Tenant’s notification of the National Response Center of any release of a reportable quantity of a Hazardous Substance in or about the Premises. “Environmental Laws” shall mean any federal, state or local statute, ordinance, rule, regulation or guideline pertaining to health, industrial hygiene, or the environment, including without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act,, as amended, and the Arizona Environmental Quality Act. “Hazardous Substance” shall mean all substances, materials and wastes that are-or become regulated or classified as hazardous or toxic under any Environmental Law.
8.9 Rules and Regulations . Landlord shall have the right from time to time to adopt, amend, delete or modify reasonable rules and regulations for the use, safety, cleanliness or care of the Premises. All rules and regulations and any modifications thereto shall be effective immediately upon the delivery of notice to Tenant, along with a complete copy of the rules and regulations. Tenant and Tenant’s Permittees shall at all times faithfully observe and strictly comply with the rules and regulations. Any failure 1:iy-Tenant or Tenant’s Permittees to comply with any rules or regulations shall be deemed to be a default under this Lease. Landlord-shall have no liability to Tenant for any violation of rules and regulations by any other tenant or person.
9. WAIVER AND INDEMNITY 9.1 Assumption and Waiver. Tenant assumes all risk of, and waives all claims against Landlord arising from, damage, loss or theft of property or injury to persons in, upon, or about the Premises from any cause. The foregoing waiver includes, without limitation, the following risks against which Tenant should maintain adequate insurance to protect Tenant’s inventory, equipment and other personal property:
(i) any defect in or failure of plumbing, heating or air conditioning equipment, electric wiring, water pipes, stairs, railings or walks; (ii) the disrepair of any equipment; (iii) the bursting, leaking or running of any tank, washstand, water closet, drain or any pipe or tank in, upon or about the Premises; (iv) the backup of any sewer pipe or down spout; (v) the escape of steam or hot water; (vi) water, snow or ice; (vii) the falling of any fixture, plaster or stucco; (viii) broken glass; (ix) any act or omission of occupants of adjoining property; and {x) any unauthorized or criminal entry of third parties within the Premises or the Building, regardless of any breakdown, malfunction or insufficiency of any security measures provided. Notwithstanding anything contained herein to the contrary, Tenant shall not be liable to the extent that damage or injury is determined ultimately to be caused by the negligent or intentional tortuous acts of Landlord, or of Landlord’s employees, agents, invitees, licensees, or contractors (“Landlord’s Agents”) or by breach of this Lease by Landlord.
9.2 Notice of Claims . Tenant shall give notice to Landlord as soon as possible (i) in case of fire or accidents in the Premises or any breakdown or malfunction of any security measures, and (ii) in the event any claim, action, proceeding or suit instituted or threatened against Landlord.
9.3 Indemnity . Tenant shall indemnify Landlord and Landlord’s property manager, if any, against all claims, costs, attorneys’ fees, damages, expenses, liabilities and losses arising out of or in connection with any of the following: (a) Tenant’s and Tenant’s Permittees’ use of the Premises or the conduct of Tenant’s business thereon; (b) Any activity, work or occurrence performed, permitted or suffered by Tenant in, on or about the Premises; (c) Tenant’s failure to perform fully and properly all of Tenant’s obligations under this Lease; (d) The negligence or intentional misconduct of Tenant or Tenant’s Permittees; (e) Any loss or damage to Tenant’s property or the property of others or death of or injury to Tenant or Tenant’s Permittees, unless caused by Landlord’s negligence or intentional misconduct; (f) Tenant’s compliance with or violation of any laws, statutes, codes, licensing requirements, ordinances, orders and rules and regulations of any public authority applicable to the Premises or any activity engaged thereon; (g) Tenant’s failure to surrender the Premises immediately upon the expiration or termination of the Lease Term; (h) Any claims for brokerage commissions or finder’s fees resulting from Tenant executing this Lease, excluding fees payable to the general leasing agent for the Project designated by Landlord; - (i) The production or presence of a Hazardous Substance in or about the Premises or any violation or claim of violation of any Environmental Law relating to the Premises as a result of the act or omission of Tenant or Tenant’s Permittees. If any claim is made or action is brought against Landlord as a result of any activities, or omissions listed above, Tenant, upon notice from Landlord, shall diligently defend-the same at Tenant’s expense through counsel satisfactory to Landlord. Notwithstanding anything contained herein to the contrary, Tenant shall not be liable to the extent that damage or injury is determined ultimately to be caused by the negligent or intentional tortuous act of landlord, or of Landlord’s employees, agents, invitees, licensees, or contractors (“Landlord’s Agents”) or by breach of this Lease by Landlord.
10. INSURANCE 10.1 Required Insurance . Tenant, at its expense, shall procure and maintain the following insurance: (a) Comprehensive general liability insurance policies against claims for bodily injury, death or property damage, occurring in, on or about the Premises or the Project, or resulting from Tenant’s use, occupancy or maintenance thereof, which policies shall name Landlord, Landlord’s property manager and -any other entities designated by Landlord, as additional insureds. Such insurance shall be primary with respect to Landlord and shall be in a total amount of at least Five Million Dollars ($5,000,000.00) combined single limit (or in such higher amounts as Landlord may reasonably designate from time to time). In the event such amount is impaired or reduced for any reason, including but not limited to, claims made by Tenant against such policies, Tenant shall immediately purchase additional insurance so that the total amount of insurance required hereunder shall be available in full at all times during the Lease Term. No parties named as additional insureds shall incur any liability for the payment of premiums for such policies. Such
policies shall be endorsed to indicate that they will cover Tenant’s obligations under Article 9 to the coverage limit of such policies (to the extent coverage is available under standard form policies or under a contractual liability endorsement) and shall provide that the insurance carrier shall have the duty to defend and/or settle any legal proceeding filed against Landlord seeking damages on account of bodily injury or property damage liability even if any of the allegations of such legal proceedings are groundless, false or fraudulent;
(b) Insurance against damage and destruction to Tenant’s personal property, inventory and all fixtures, equipment, machinery, improvements, additions and alterations to the Premises occurring as a result of acts or events typically covered by the broadest form “All Risk” or “Special Form” property damage insurance policies in the amount of full replacement value. In the event such items are damaged or destroyed, Tenant shall diligently and fully repair and restore such items; (c) Fire legal liability insurance in an amount equal to the full replacement value of all improvements, additions and alterations within the Premises that Tenant is not entitled to remove from the Premises. Such insurance shall provide that all funds payable as a result of damage to the Premises or the Building shall be payable to Landlord. Such insurance policy shall also contain a severability of interest clause pertaining to the coverage afforded by such policy;
(d) Such other insurance and in such amounts as may from time to time be reasonably required by Landlord against other insurable hazards. Landlord makes no representations that the above listed insurance is adequate to protect Tenant and Tenant may obtain such additional insurance=coverage as Tenant deems appropriate.
10.2 Notice of Insurance . All insurance provided for in this Article shall be effected under valid and enforceable policies issued by insurance companies authorized to do business in Arizona and approved by Landlord. The insurance policies shall be endorsed to indicate that Tenant’s coverage shall not be invalid due to any act or omission on Landlord’s part. Tenant shall cause the insurance companies issuing such insurance to agree to notify Landlord in writing of any cancellation, alteration or non-renewal of said insurance at least 60 days prior thereto. Tenant shall deliver to Landlord at least 30 days prior to the date Tenant takes possession of the Premises, and thereafter on each anniversary of the Commencement Date, certificates evidencing the insurance coverage required herein. If Tenant fails to deliver such certificates to Landlord at least five (5) business days prior to the expiration or termination of any existing insurance coverage or if Landlord receives notice that the existing insurance coverage has been altered or reduced, Landlord, notwithstanding any grace periods afforded Tenant in this Lease, shall be entitled to terminate this Lease immediately upon notice to Tenant. All public liability and property damage policies shall contain a provision that Landlord, although .named as an additional insured, shall nonetheless be entitled to recovery under said policies for any loss occasioned to Landlord, its servants, agents and employees by reason of Tenant’s negligence. All insurance policies shall provide “occurrence” coverage, rather than “claims-made” coverage.
10.3 Waiver of Subrogation : Release. Notwithstanding any other provisions in this Lease, Tenant and Landlord each waive all rights of recovery against the other, and against the directors, shareholders, partners, officers, employees, agents and representatives of the other, for loss of, or damage to, the waiving party, its property or the property of others under its control to the extent that, with respect to Landlord, Landlord receives insurance proceeds from any insurance policy in force at the time of such loss or damage and, with respect to Tenant, Tenant is required to maintain insurance pursuant to this Lease. Each party shall, upon obtaining the insurance policies required hereunder, give notice to the insurance carrier or carriers that the foregoing waiver of subrogation is contained in this Lease and shall obtain, at their own expense, an appropriate waiver of subrogation endorsement from the insurer. If the Premises, the Building or the Project or Tenant’s personal property are damaged or destroyed by fire or any other cause against which Tenant is required to maintain insurance pursuant to this Lease, Landlord shall not be liable to Tenant for any such damage or destruction. Tenant shall have no claim to or interest in any portion of the proceeds of any insurance maintained by Landlord.
10.4 Landlord’s Insurance . Landlord shall maintain “All Risk” hazard insurance on the Building and other improvements to the Premises in an amount equal to the full replacement value of the Building and other
improvements. Failure by Landlord to maintain such insurance shall not relieve Tenant of any obligation under this Lease, including without limitation, the obligation to pay rent.
11. PERSONAL PROPERTY TAXES Tenant shall pay, prior to delinquency, all taxes assessed against or levied upon fixtures, leasehold improvements (including without limitation those improvements defined as “Leasehold Improvements” in the Maricopa County version of DPST Form 520, “Personal Property Statement”) and all personal property located in or upon the Premises (“Taxed Personal Property”). Tenant shall cause the Taxed Personal Property to be assessed and billed separately from the real property upon which the Premises are located. Tenant shall deliver copies of the DPST Form 520 filed with the State of Arizona and Maricopa County within five (5) business days after mailing or delivering the form to the State and County, respectively. If any of Tenant’s Taxed Personal Property is assessed and taxed with the Building or the Project, Tenant shall pay to Landlord its share of such taxes, as determined by Landlord, within 10 days after delivery to Tenant by Landlord of a statement setting forth the amount thereof.
12. MAINTENANCE 12.1 Landlord’s Obligations . Landlord shall promptly repair and maintain in good order and condition the Common Areas and the roof, foundation, load-bearing walls, columns and beams, and heating, ventilation, and air conditioning equipment (provided Landlord shall only be obligated for replacement, not repair or maintenance, of HVAC equipment) of the Building, and the outside Building plumbing, electrical and other facilities serving the Premises, except for (i) maintenance or repairs required because of any negligent or intentional act or omission of Tenant or Tenant’s Permittees, including without limitation, damage to the interior or exterior of the Building or the parking stalls and covers, or (ii) maintenance, repairs, alterations or improvements required by a rule, regulation, ordinance, order, code, law or requirement of any governmental authority or insurer as a result of Tenant’s use or possession of the Premises. Except as provided elsewhere in this Lease, Monthly Rent shall not abate and Landlord shall not be liable by reason of any injury or interference with Tenant’s business arising from the making of any repairs, alterations, or improvements in or to the Premises; provided, however, Landlord shall perform such work in a manner so as to not unreasonably interfere with the conduct of Tenant’s business. Tenant shall not be entitled to undertake any such maintenance or repairs, whether at the expense of Tenant or Landlord. Tenant shall pay to Landlord Tenant’s Share of the costs incurred by Landlord in-performing such repair and maintenance obligations in accordance with the provisions of Article 5 above; provided that Tenant has no obligation to pay for repairs necessitated by faulty construction performed by Landlord except for those repairs necessitated by defects waived by Tenant pursuant to Section 6.2. 3f Landlord elects to perform maintenance or repairs required due to the negligence or misconduct of Tenant or Tenant’s Permittees, Tenant shall reimburse Landlord for all costs so incurred by Landlord (including a reasonable charge for Landlord’s overhead) within 10 days after delivery of demand by Landlord.
12.2 Tenant’s Obligations . Tenant shall, unless specifically designated as Landlord’s obligations in Section 12.1, at Tenant’s expense, promptly repair and maintain the Premises in good order, condition and repair, including without limitation, all plate glass, windows, window coverings or treatment, doors, floors, floor coverings, utility systems, wiring, alarm systems, interior wall surfaces and painting, heating, ventilating and a |
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
