Exhibit 10.1
LEASE
by and between
Van Nuys Airpark Building 5,
LLC,
an Arizona limited liability
company
“ Lessor
”
and
Adventure Vending
Inc.,
a Washington
corporation
“ Lessee
”
for
premises known as
Building 5
7725 Airport Business
Parkway
Van Nuys,
California
November 1,
2005
TABLE OF
CONTENTS
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1.
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Leased
Premises
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1
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2.
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Lease
Term
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1
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3.
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[Intentionally
Omitted.]
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1
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4.
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Rent
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1
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5.
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Payment of
Rent
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1
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6.
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Late
Charges
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2
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7.
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Additional
Rent
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2
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8.
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Taxes
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2
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9.
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Use of Leased
Premises
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2
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10.
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[Intentionally
Omitted.]
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3
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11.
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Alterations and
Improvements
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3
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12.
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Maintenance and
Repairs
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3
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13.
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Access
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3
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14.
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Liability and
Casualty Insurance
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4
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15.
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Liens
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7
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16.
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Destruction of
Premises
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7
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17.
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Condemnation
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7
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18.
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Signs
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7
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19.
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Utilities
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8
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20.
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Intentionally
Omitted
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8
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21.
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Assignment and
Subletting
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8
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22.
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Surrender
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9
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23.
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Title to
Improvements
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9
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24.
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Default -
Grounds
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9
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25.
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Default -
Remedies
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10
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26.
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Right to
Cure
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11
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27.
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Holding
Over
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11
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28.
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Statement from
Lessee
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11
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29.
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Notices -
Manner of Giving
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11
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30.
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Lessor’s
Right to Perform Lessee’s Covenants
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12
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31.
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Waiver
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12
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32.
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Time
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12
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33.
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No
Recording
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12
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34.
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Subordination
by Lessee
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12
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i
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35.
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Invalidity
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12
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36.
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Construction
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12
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37.
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Attorneys’ Fees
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12
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38.
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Binding
Effect
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12
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39.
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Net
Lease
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13
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40.
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Conveyance by
Lessor
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13
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41.
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No Personal
Liability to Lessor
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13
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42.
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Intentionally
Omitted
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13
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43.
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Commissions
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13
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44.
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No
Partnership
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13
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45.
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Intentionally
Omitted
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13
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46.
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Consent of
Lessor
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13
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47.
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Survival of
Obligations
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13
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48.
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Entire
Agreement
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13
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49.
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Rubbish
Removal
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13
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50.
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Hazardous
Materials
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13
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51.
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Representations
and Warranties of Lessee
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15
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52.
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Representations
and Warranties of Lessor
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16
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53.
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Severability
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16
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54.
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Lessee
Financial Information
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16
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55.
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Waiver of
Redemption
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16
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56.
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Disclaimer
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16
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57.
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Brokerage
Disclosure
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16
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58.
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Waiver of Right
to Jury Trial
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16
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Exhibits
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Exhibit “A”
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Legal
Description of Land
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ii
LEASE
THIS LEASE
(this “ Lease
” ) is made and entered into as of the first day of
November, 2005, by and between Van Nuys Airpark Building 5, LLC, an
Arizona limited liability company (“ Lessor
”) , and Adventure Vending Inc., a Washington corporation
(“ Lessee ”).
WITNESSETH:
For and in consideration of the
mutual agreements, covenants and promises set forth in this Lease
and for other good and valuable consideration, the receipt,
sufficiency and validity of which is hereby acknowledged, Lessor
and Lessee agree as follows:
1. Leased Premises: Lessor
leases to Lessee and Lessee accepts and leases from Lessor, upon
the terms and conditions set forth in this Lease, that certain real
property located in the City of Van Nuys, County of Los Angeles,
State of California, more particularly described on Exhibit
“A” attached hereto (the “ Land
”) and the buildings and other improvements located on
the Land (the “ Improvements ”; the Land
and the Improvements being collectively called the “
Premises ”), which is that certain real property
commonly known as Building 5, 7725 Airport Business Parkway, Van
Nuys, Los Angeles County, California.
2. Lease Term: This Lease
shall be in effect for a period commencing on November 1, 2005
(the “ Commencement Date ”) and expiring
on the date which is two (2) years thereafter (the “
Initial Term ”) unless this Lease shall sooner
terminate or be extended as hereinafter provided. At the
termination of this Lease, all items of rent, taxes, insurance,
utilities and other matters shall be adjusted and prorated as of
the date of termination, and Lessee shall pay to Lessor, or Lessor
shall pay to Lessee, as the case may be, such sums as shall be
required to accomplish the proration. The Initial Term, as
subsequently extended through the First Renewal Term and/or Second
Renewal Term, is referred to herein as the “ Lease
Term ” .
3. [Intentionally
Omitted.]
4. Rent: Lessee shall,
commencing on the Commencement Date and on the first day of each
month during the Initial Term pay to Lessor as base rent (the
“ Base Rent ” ) the sum of Forty Five
Thousand and No/100 Dollars ($45,000.00). Lessee shall have the
option (the “ First Option ” ) to extend
the term of this Lease for an additional three (3) years
beyond the Initial Term through October 31, 2010 (the
“ First Renewal Term ” ) by giving Lessor
written notice of the exercise of such First Option no later than
January 31, 2007. If Lessee exercises the First Option, Lessee
shall, commencing on the first day of each month during the First
Renewal Term, pay to Lessor as Base Rent the sum of Fifty Thousand
and No/100 Dollars ($50,000.00) for the first 24 months of the
First Renewal Term and Fifty Five Thousand and No/100 Dollars
($55,000.00) for the final 12 months of the First Renewal Term.
Lessee shall have the option (the “ Second Option
” ) to extend the term of this Lease for an additional
five (5) years beyond the First Renewal Term through
October 31, 2015 (the “ Second Renewal Term
” ) by giving Lessor written notice of the exercise of
such Second Option no later than January 31, 2010. If Lessee
exercises the Second Option, Lessee shall, commencing on the first
day of each month during the Second Renewal Term, pay to Lessor as
Base Rent the sum of Fifty Five Thousand and No/100 Dollars
($55,000.00) for the first 12 months of the Second Renewal Term,
Sixty Thousand and No/100 Dollars ($60,000.00) for the next 24
months of the Second Renewal Term, and Sixty Five Thousand and
No/100 Dollars ($65,000.00) for the final 24 months of the Second
Renewal Term.
5. Payment of Rent: Lessee
shall pay the monthly installments of Base Rent and all other sums
due under this Lease to Lessor, without notice or demand, and
except as expressly set forth in this Lease, without deduction,
abatement or setoff, on the first day of each month during the
Lease Term, at c/o Pacific Companies, 1702 East Highland, Suite
310, Phoenix, Arizona 85016, or at such other place, or to such
other person or persons as Lessor may designate in writing. All
sums due under this Lease shall be
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payable in current legal tender of the United
States of America. The extension of time for the payment of any
installment of Base Rent or any other sums due hereunder, or the
acceptance by Lessor of any late payment, will not constitute the
waiver of the right of Lessor to insist on having all other
payments due here-under made in the manner and at the time herein
specified. Concurrently with the execution of this Lease by Lessee,
Lessee shall pay to Lessor the monthly installment of Base Rent,
together with the taxes thereon referenced in Paragraph 8(a)
below, for the first (1st) month of the Lease Term.
6. Late Charges: If any
amount due to Lessor is not received in full by Lessor on or before
ten (10) days after the date any such payment is due, then
Lessee shall pay to Lessor a late payment charge in the amount of
five percent (5%) of the amount then due. The parties
acknowledge that the damages Lessor will suffer in the event of
late payments would be extremely difficult to calculate and the
parties agree that the foregoing late payment charge is a
reasonable estimate of Lessor’s probable damages, and as
such, constitutes a reasonable charge for the expenses Lessor will
suffer if Lessee fails to pay any such sum when due, and is not a
penalty. No payments need be accepted after said ten (10) day
period unless accompanied by the late payment charge. This
provision shall not be construed to allow or permit Lessee to make
payments after the due date, or to waive any of Lessor’s
rights in connection therewith.
7. Additional Rent: In
addition to Base Rent, all other amounts to be paid by Lessee to
Lessor pursuant to this Lease, if any, shall be deemed to be
Additional Rent, whether or not designated as such and shall be due
and payable upon demand or together with the next succeeding
installment of Base Rent, whichever shall first occur. Lessor shall
have the same remedies for the failure to pay Additional Rent as
for the nonpayment of Base Rent.
8. Taxes:
(a) Occupancy, Sales and Rent
Taxes: In addition to and together with its payments of Base
Rent and Additional Rent, Lessee shall pay to Lessor any
governmental taxes, other than income taxes, now or hereafter
imposed on Base Rent, Additional Rent and other charges collected
or paid pursuant to the terms of this Lease, including, without
limitation, state or local rental, occupancy, sales, transaction
privilege and excise taxes.
(b) Personal Property Taxes:
Lessee shall pay to the appropriate taxing authority, not later
than ten (10) days prior to delinquency, all personal property
taxes assessed against any personal property of Lessee located on
or used in connection with the Premises.
(c) Real Property Taxes:
Lessee shall pay all real property taxes and assessments
(including, but not limited to water, irrigation project, sewer,
street, paving and other improvement lien assessments) against the
Premises. Lessee shall pay one-twelfth (1/12) of the estimated
annual amount of such real estate taxes and assessments to Lessor,
together with and at the same time that each monthly installment of
Base Rent is due pursuant to Paragraphs 4 and 5 above. From
time to time, Lessor shall notify Lessee in writing of the most
current tax assessment against the Premises, together with
Lessor’s computation of the monthly amount of such tax to be
paid by Lessee. At the end of each full tax year during the term of
this Lease and again at the expiration or termination of this
Lease, Lessor and Lessee shall calculate the actual tax paid or
owing for the Premises, and Lessee shall be credited or charged, as
the case may be, for such adjustments as may be necessary by reason
of any difference between the actual amounts determined by Lessor
to have been paid or owing for the Premises (or the pro-rata
portion of such amount notwithstanding that payment to the taxing
authority may not then be due) and the amount of such taxes
actually paid by Lessee to Lessor.
9. Use of Leased Premises:
Lessee may occupy and use the Premises throughout the Lease Term
for any legal and lawful business purpose and for no other purpose
whatsoever (the “ Use ” ). Lessee shall
not use or occupy or permit the Premises to be used or occupied,
nor to do or permit anything to be done in or on the Premises, in a
manner which will in any way make void or voidable any insurance
then in force with respect thereto. Further, Lessee shall not use
or occupy the Premises, nor permit anything to be
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done in or on the Premises which will cause or
be likely to cause structural damage to the Improvements or any
part thereof, or which will constitute a public or private
nuisance, or which will violate the rights of adjoining landowners
and Lessee shall not use or occupy or permit the Premises to be
used or occupied in any manner which will violate any laws.
Throughout the Lease Term, Lessee, at its sole cost and expense,
shall promptly remove any violation and shall promptly comply with
all present and future laws, ordinances, orders, rules, regulations
and requirements of all federal, state, and municipal governments
or any other body exercising functions similar to those of any of
the foregoing which may be related to the Premises, or any part
thereof, or to the use or manner of use of the Premises, or any
part thereof. Lessee shall not do or suffer any waste, damage,
disfigurement or injury to the Premises or any part
thereof.
10. [Intentionally
Omitted.]
11. Alterations and
Improvements: Lessee shall have the right, at Lessee’s
sole cost and expense, to make alterations and improvements to the
Premises, provided that Lessee first obtains Lessor’s written
consent, which consent shall not be unreasonably withheld. In
seeking such approval, Lessee shall deliver to Lessor the plans and
specifications therefor and the names and addresses of contractors
being used to make such improvements. All improvements shall be
made in a lien-free manner, in compliance with all applicable
governmental regulations and in conformance with plans and
specifications approved by Lessor. Lessee shall give Lessor at
least ten (10) days prior written notice of the date of
commencement of any construction on the Premises. All alterations,
improvements, additions and fixtures made or installed by Lessee
shall remain upon the Premises at the expiration or earlier
termination of this Lease and shall become the property of Lessor,
unless Lessor shall, either prior to the expiration or termination
of this Lease, or within ten (10) days after the termination
or expiration of this Lease, give written notice to Lessee
directing Lessee to remove the same or such of the same as shall be
specified by Lessor, and all damage occasioned in connection with
such removal shall be repaired by Lessee at its sole cost and
expense.
12. Maintenance and
Repairs:
(a) Lessee’s
Maintenance: Lessee, at its sole cost and expense, shall
maintain in good order and repair (making all necessary
replacements, renewals, and alterations, thereto) the interior of
the Premises and any improvements now existing or hereafter made
upon the Premises by Lessee, and all furnishings, fixtures and
equipment located therein, in a good, safe, sanitary and neat
manner. Lessee’s maintenance obligations shall include,
without limitation, any and all interior and non-structural walls;
all water, drain, sewer, heating, electrical and other pipes, lines
or ducts in the Premises; all fixtures, electrical and lighting
facilities; all windows, doors, plate glass, window and door
frames; and any Lessee signage in or about the Premises. Lessee
shall keep all drainage pipes in the Premises free and open and
will protect water, heating and other pipes within the Premises so
that they will not freeze or become clogged, and will repair all
leaks, and will also repair all damage caused by leaks or otherwise
by Lessee’s failure to perform its obligations under this
paragraph. Lessee shall, at its sole cost and expense, perform all
ordinary maintenance and repair of the HVAC system serving the
Premises as is customary and reasonable, under a net lease, to
maintain it in good order and repair. All maintenance and repair
work shall comply with applicable laws, ordinances, and
regulations. Lessee shall further keep and maintain any sidewalk
area in front of the Premises.
(b) Lessor’s
Maintenance: Lessor shall maintain and repair throughout the
term of the Lease the structural portions of the roof and the roof
membrane, the surfaces of exterior walls, the structural portions
of the Improvements and the foundation, and the pipes, utility and
sewer lines, serving the exterior of the Improvements to the
Premises. All maintenance and repair work shall comply with
applicable laws, ordinances and regulations.
13. Access: Lessor and its
authorized representatives shall have, at all reasonable times,
upon not less than forty-eight (48) hours advance written
notice (except in the event of an emergency, in which event only
such notice as may be reasonable under the circumstances shall be
required), the right to enter the Premises to inspect the same, to
exhibit the Premises to prospective purchasers, lenders or lessees,
to make any necessary repairs to the Premises, or to perform any
work (i) which may be necessary to comply with any
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laws, ordinances, rules or regulations of any
public authority, or (ii) that Lessor may deem necessary to
prevent waste or deterioration in connection with the Premises if
Lessee does not make or cause such repairs to be made or performed
or cause such work to be performed promptly after receipt of a
written request from Lessor. Lessor shall have the right at all
times to retain a key with which to unlock all of the doors in,
upon or about the Premises, excluding Lessee’s vaults, safes
and files.
14. Liability and Casualty
Insurance:
(a) Indemnification and
Waiver
(i) Indemnity. To the fullest
extent permitted by law, and except for Claims arising from the
negligence or other fault of Lessor Parties, Lessee shall, at
Lessee’s sole cost and expense, Indemnify Lessor Parties
against all Claims arising from (i) any Personal Injury,
Bodily Injury or Property Damage occurring in or at the Premises;
(ii) any Bodily Injury to an employee of a Lessee Party
arising out of and in the course of employment of the employee and
occurring anywhere in the Property; (iii) the use or
occupancy, or manner of use or occupancy, or conduct or management
of the Premises or of any business therein; (iv) subject to
the waiver of subrogation provisions of this Lease, any act, error,
omission or negligence of any of the Lessee Parties in, on or about
the Premises or the Property; and (v) the conduct of
Lessee’s business; (vi) any alterations, activities,
work or things done, omitted, permitted or allowed by Lessee
Parties in, at or about the Premises or Property, including the
violation of or failure to comply with any applicable laws,
statutes, ordinances, standards, rules, regulations, orders, or
judgments in existence on the date of the Lease including Hazardous
Materials Laws (defined below); (vii) any breach or default by
Lessee in the full and prompt payment of any amount due under this
Lease, any breach, violation or nonperformance of any term,
condition, covenant or other obligation of Lessee under this Lease
if Lessee does not make such payment or otherwise cure such breach,
default, violation or nonperformance within thirty (30) days
of the commencement of same, or any misrepresentation made by
Lessee or any guarantor of Lessee’s obligations in connection
with this Lease; (viii) all damages sustained by Lessor as a
result of any holdover by Lessee or any Lessee Party in the
Premises including, but not limited to, any claims by another
tenant resulting from a delay by Lessor in delivering possession of
the Premises to such tenant; (ix) any liens or encumbrances
arising out of any work performed or materials furnished by or for
Lessee; or (x) any matter enumerated in Paragraph
14(a)(ii) below.
(ii) Waivers. Lessee, on
behalf of all Lessee Parties, Waives all Claims against Lessor
Parties arising from the following except to the extent caused by
the negligence or other fault of Lessor Parties: (i) any
Personal Injury, Bodily Injury, or Property Damage occurring in or
at the Premises; (ii) any loss of or damage to property of a
Lessee Party located in the Premises or other part of the Premises
by theft or otherwise; (iii) any Personal Injury, Bodily
Injury, or Property Damage to any Lessee Party caused by other
tenants of the Premises, parties not occupying space in the
Property, occupants of property adjacent to the Premises, or the
public or by the construction of any private, public, or
quasi-public work occurring either in the Premises or elsewhere in
the Premises; (iv) any interruption or stoppage of any utility
service or for any damage to persons or property resulting from
such stoppage; (v) business interruption or loss of use of the
Premises suffered by Lessee; (vi) any latent defect in
construction of the Improvements; (vii) damages or injuries or
interference with Lessee’s business, loss of occupancy or
quiet enjoyment and any other loss resulting from the exercise by
Lessor of any right or the performance by Lessor of Lessor’s
maintenance or other obligations under this Lease, or
(viii) any Bodily Injury to an employee of a Lessee Party
arising out of and in the course of employment of the employee and
occurring anywhere in the Premises.
(iii) Definitions. For
purposes of this Paragraph 14: (i) the term “
Lessee Parties ” means Lessee and Lessee’s
officers, directors, shareholders, partners, affiliates, board
members, staff, employees, members, agents, principals, independent
contractors, attorneys, accountants and representatives of the
referenced person and the predecessors, heirs, successors and
assigns of any such person (collectively, “
Representatives ” ); (ii) the term “
Lessor Parties ” means Lessor, and Lessor’s
Representatives; (iii) the term “ Indemnify
” means indemnify, defend and hold free and harmless for,
from
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and against; (iv) the term
“ Claims ” means all liabilities, claims,
damages (including consequential damages), losses, penalties,
litigation, demands, causes of action (whether in tort or contract,
in law or at equity or otherwise), suits, proceedings, judgments,
disbursements, charges, assessments, and expenses (including
attorneys’ and experts’ fees and expenses incurred in
investigating, defending, or prosecuting any litigation, claim, or
proceeding); (v) the term “ Waives ”
means that the Lessee Parties waive and knowingly and voluntarily
assume the risk of; and (vi) the terms “ Bodily
Injury ” , “ Personal Injury
” and “ Property Damage ” will
have the same meanings as in the form of commercial general
insurance policy issued by Insurance Services Office, Inc. most
recently prior to the date of the injury or loss in
question.
(iv) Intentionally
Omitted.
(v) Duty to Defend.
Lessee’s duty to defend Lessor Parties is separate and
independent of Lessee’s duty to Indemnify Lessor Parties.
Lessee’s duty to defend includes Claims for which Lessor
Parties may be liable without fault or may be strictly liable.
Lessee’s duty to defend applies regardless of whether issues
of negligence, liability, fault, default or other obligation on the
part of Lessee Parties have been determined. Lessee’s duty to
defend applies immediately, regardless of whether Lessor Parties
have paid any sums or incurred any detriment arising out of or
relating, directly or indirectly, to any Claims. It is the express
intention of Lessor and Lessee that Lessor Parties will be entitled
to obtain summary adjudication regarding Lessee’s duty to
defend Lessor Parties at any stage of any Claim within the scope of
this Paragraph 14.
(vi) Obligations Independent of
Insurance. The indemnification provided in this Paragraph
14 shall not be construed or interpreted as in any way
restricting, limiting or modifying Lessee’s insurance or
other obligations under this Lease, and the provisions of this
Paragraph 14 are independent of Lessee’s insurance and
other obligations. Lessee’s compliance with the insurance
requirements and other obligations under this Lease does not in any
way restrict, limit or modify Lessee’s indemnification
obligations under this Lease.
(vii) Survival. The
provisions of this Paragraph 14 will survive the expiration
or earlier termination of this Lease until all Claims against
Lessor Parties involving any of the indemnified or waived matters
are fully and finally barred by the applicable statutes of
limitations.
(b) Waiver of Subrogation.
Lessor and Lessee each hereby waive any rights one may have against
the other and their respective Representatives, on account of any
loss or damage occasioned to Lessor or Lessee, as the case may be,
or their respective property, the Premises, its contents or to
other portions of the Premises, arising from any risk covered by
any policy of property insurance then in effect. In addition,
Lessor and Lessee, for themselves and on behalf of their respective
insurance companies, waive any right of subrogation that any such
insurance company may have against Lessor, Lessor’s lender,
any other tenant of the Premises, or Lessee, and their respective
Representatives as the case may be. It is the intent of the parties
that with respect to any loss from a named peril required to be
covered under a policy of property insurance, the parties shall
look solely to their respective insurance company for recovery. The
foregoing waivers of subrogation shall be operative only so long as
available in the State of Illinois and provided further that no
policy of insurance is invalidated thereby.
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(c) Lessee’s Insurance.
From and after the Commencement Date, Lessee shall carry, at
Lessee’s sole cost and expense, the following types of
insurance, in the amounts specified or in such higher amounts as
requested by Lessor and which are customary in the Los Angeles
metropolitan area. Lessor agrees that in the event Lessee’s
current insurance does not satisfy the requirements set forth
below, Lessor will cooperate with the Lessee to modify the
insurance coverage required herein so that there will not be a
material increase in the costs of Lessee’s corporate
insurance program nor in the Lessor’s risks. If the Lessee
believes that changes are needed and the parties are not able to
mutually agree on the changes, then the Lessor shall have the right
to terminate this Lease with ninety days notice.
(i) Commercial general liability
insurance for personal injury, bodily injury (including wrongful
death) and damage to property with a combined single limit of not
less than One Million and No/100 Dollars ($1,000,000.00), per
occurrence, Three Million and No/100 Dollars ($3,000,000.00),
annual aggregate, insuring against any and all liability of the
insured with respect to the Premises, or arising out of the
maintenance, use or occupancy thereof, including Premises
operations, products and completed operations and owned, hired and
non-owned automobiles, utilizing ISO policy form CG 0001, or its
equivalent. The commercial general liability insurance policy shall
contain a contractual liability endorsement specifically deleting
the contractual liability exclusion for Personal Injury. In
addition, the policy required pursuant to the provisions of this
Paragraph 14(c) (i) shall not have a deductible in
excess of Ten Thousand and No/100 Dollars ($10,000.00).
(ii) A policy or policies of
workers’ compensation insurance with an insurance carrier and
in amounts approved by governmental authorities having jurisdiction
and a policy of employer’s liability insurance with limits of
liability not less than One Million and No/100 Dollars
($1,000,000.00), each accident; One Million and No/100 Dollars
($1,000,000.00), disease policy limit; and One Million and No/100
Dollars ($1,000,000.00), disease each employee. Both such policies
shall contain waivers of subrogation in favor of Lessor.
(iii) “ Causes of
Loss-Special Form ” property insurance, including
coverage for sprinkler leakage, vandalism and malicious mischief
and rent insurance covering the entire Premises, including all of
Lessee’s leasehold improvements, alterations, additions or
improvements made pursuant to Paragraph 11, removable
personal property from time to time in, on or upon the Premises, in
an amount not less than one hundred percent (100%) of their
full replacement cost of the Premises without depreciation. Any
policy proceeds shall be used for the repair or replacement of the
property damaged or destroyed unless this Lease shall cease and
terminate under the provisions of Paragraph 16. Such policy
of property insurance shall name Lessor as “loss
payee” and shall not have a deductible in excess of
Twenty Five Thousand and No/100 Dollars ($25,000.00).
All policies of insurance to be
procured by Lessee shall be issued by insurance companies qualified
to do business in the State of Illinois. All property policies
shall be issued in the name of Lessee and shall name Lessor as
“loss payee.” All liability policies obtained by
Lessee shall name Lessor as an additional insured party. Executed
copies of the policies of insurance or evidence of insurance
meeting the requirements of Accord Form No. 27 (February 1993)
or such other evidence as may be reasonably acceptable to Lessor
and evidence of required additional insured endorsements on ISO
Form CG20-26 (collectively referred to in this Paragraph
14(c) as “ Certificates ” ) shall be
delivered to Lessor within ten (10) days after the
Commencement Date and thereafter, executed copies of renewal
policies or Certificates thereof shall be delivered to Lessor
within thirty (30) days prior to the expiration of the term of
each such policy. As often as any such policy shall expire or
terminate, renewal or additional policies shall be procured and
maintained by Lessee in like manner and to like extent. All
commercial general liability, property damage and other casualty
policies shall be written as primary policies and shall provide
that any insurance which Lessor may carry is strictly excess,
secondary and non-contributing with any insurance carried by
Lessee. The insurance requirements contained in this Paragraph
14 are independent of Lessee’s waiver, indemnification
and other obligations under this Lease and shall not be construed
or interpreted in any way to restrict, limit or modify
Lessee’s waiver, indemnification or other obligations or to
in any way limit Lessee’s obligations under this
Lease.
(d) Adequacy of Insurance.
Lessor makes no representation or warranty to Lessee that the
amount of insurance to be carried by Lessee under the terms of this
Lease is adequate to fully protect Lessee’s interest. If
Lessee believes that the amount of any such insurance is
insufficient, Lessee is encouraged to obtain, at its sole cost and
expense, such additional insurance as Lessee may deem desirable or
adequate. Lessee acknowledges that Lessor shall not, by the fact of
approving, disapproving, waiving, accepting, or obtaining any
insurance, incur any liability for or with respect to the amount of
insurance carried, the form or legal sufficiency of such insurance,
the solvency of any insurance companies or the payment or defense
of any lawsuit in connection with such insurance coverage, and
Lessee hereby expressly assumes full responsibility therefor and
all liability, if any, with respect thereto.
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15. Liens: Lessee shall keep
the Premises free and clear of all mechanic’s and
materialmen’s liens. If, because of any act or omission (or
alleged act or omission) of Lessee, any mechanics’,
materialmen’s or other lien, charge or order for the payment
of money shall be filed or recorded against the Land or any
building or improvement thereon, or against Lessor (whether or not
such lien, charge or order is valid or enforceable as such), Lessee
shall, at its own expense, cause the same to be canceled or
discharged of record within thirty (30) days after Lessee
shall have received written notice of the filing thereof, or Lessee
may, within said thirty (30) day period, furnish to Lessor, a
bond pursuant to A.R.S.