\n U S WEST Business Resources, Inc. U S WEST, Inc.
\n 3640 East Indian School Road, Room 300 7800 East Orchard Road, Room 480
\n Phoenix, AZ 85018 Englewood, CO 80111
\n Attn: Manager–Real Estate Attn: Law Department
\n<\/c><\/s><\/table>\n (d) TENANT: P.F. Chang’s China Bistro, Inc., a Delaware
\n corporation.<\/p>\n
(e) TENANT’S ADDRESS: P.F. Chang’s China Bistro, Inc.
\n 5090 North 40th Street, Suite 160
\n Phoenix, AZ 85018<\/p>\n
(f) BUILDING ADDRESS: 5090 North 40th Street
\n Phoenix, AZ 85018<\/p>\n
(g) PREMISES: The Premises shown on Exhibit A to this
\n Lease, known as Suite 160.<\/p>\n
(h) RENTABLE AREA OF THE PREMISES: Approximately 4,410
\n rentable square feet.<\/p>\n
(i) RENTABLE AREA OF THE BUILDING: 175,186 rentable
\n square feet.<\/p>\n
(j) TERM: Approximately 60 months, beginning on the
\n Commencement Date and expiring on the Expiration
\n Date.<\/p>\n
(k) COMMENCEMENT DATE: May 1, 1997, as the same may be
\n extended pursuant to Article 3 below.<\/p>\n
(l) EXPIRATION DATE: April 30, 2002, as the same may be
\n extended pursuant to Section 3.2 below.<\/p>\n
(m) SECURITY DEPOSIT: $-0-.<\/p>\n
(n) MONTHLY RENT: $8,085.00 per month. For purposes of
\n this subsection (n), month 1 will be considered the
\n first full calendar month of the Term; from the
\n Commencement Date until the beginning of month 1, the
\n Monthly Rent shall be $8,085.00 per month on a
\n prorated basis.<\/p>\n
The Monthly Rent includes the product of 1\/12th of
\n the Operating Expenses Base times the Rentable Area
\n of the Premises. The Monthly Rent does not include
\n the Arizona state and local transaction privileges
\n tax.<\/p>\n
(o) OPERATING EXPENSES BASE: Actual operating expenses
\n for calendar year 1997, expressed on a per square
\n foot basis.<\/p>\n
(p) TENANT’S SHARE: 2.517% (determined by dividing the
\n Rentable Area of the Premises by the total rentable
\n area of the building).<\/p>\n
(q) PARKING SPACES: Landlord shall provide six covered,
\n reserved parking stalls. Upon Tenant’s request,
\n Landlord shall provide twenty-five covered unreserved
\n parking stalls. Tenant shall notify Landlord if it
\n desires any additional unreserved stalls.<\/p>\n
(r) PARKING CHARGE: $45 per month per stall for the
\n covered reserved parking stalls, and $26 per month
\n per stall for covered unreserved Parking stalls.<\/p>\n
(s) BROKER: CB Commercial.
\n 2
\n (t) TENANT IMPROVEMENTS: Landlord shall provide space
\n based on a mutually acceptable space plan. Landlord’s
\n obligation and costs for tenant improvements shall
\n not exceed $7.00 per rentable square foot.<\/p>\n
1.2 Definitions:<\/p>\n
(a) ADDITIONAL RENT: Any amounts which this Lease
\n requires Tenant to pay in addition to Monthly Rent,
\n including, but not limited to, the Arizona state and
\n local transaction privilege tax.<\/p>\n
(b) BUILDING: The building which is located on the Land
\n and of which the Premises are a part<\/p>\n
(c) LAND: The land on which the Project is located and
\n which is described on Exhibit B.<\/p>\n
(d) PRIME RATE: The rate of interest from time to time
\n announced by Norwest Banks, or any successor to it,
\n as its prime rate. If Norwest Banks or any successor
\n to it ceases to announce its prime rate, the Prime
\n Rate will be a comparable interest rate designated by
\n Landlord which replaces the Prime Rate.<\/p>\n
(e) PROJECT: The development consisting of the Land and
\n all improvements built on the Land including without
\n limitation the Building, parking lot, parking
\n structure, if any, walkways, driveways, fences, and
\n landscaping.<\/p>\n
(f) RENT: The Monthly Rent and Additional Rent.<\/p>\n
If any other provision of this Lease contradicts any definition of this
\nArticle, the other provision will prevail.<\/p>\n
1.3 Exhibits. The following addendum and exhibits are attached to this
\nLease and are made part of this Lease:<\/p>\n
EXHIBIT A–The Premises
\n EXHIBIT B–Legal Description of the Land
\n EXHIBIT C–Work Letter
\n EXHIBIT D–Rules and Regulations
\n EXHIBIT E–Commencement Date Certificate<\/p>\n
ARTICLE 2–AGREEMENT<\/p>\n
Landlord leases the Premises to Tenant, and Tenant leases the Premises;
\nfrom Landlord, according to this Lease. The duration of this Lease will be the
\nTerm. The Term will commence on the Commencement Date, and will expire on the
\nExpiration Date.<\/p>\n
ARTICLE 3–DELIVERY OF PREMISES<\/p>\n
Landlord will perform the Tenant Improvements as described in the
\nattached Exhibit C above. Subject to Landlord’s obligation to complete the
\nTenant Improvements, Landlord shall have delivered possession of the Premises to
\nTenant on the Commencement Date, AS-IS in its present condition on the
\nCommencement Date. Tenant acknowledges that neither Landlord nor its agents or
\nemployees have made any representations or warranties as to the suitability or
\nfitness of the Premises for the conduct of Tenant’s business or for any other
\npurpose, nor has Landlord or its agents or employees agreed to undertake any
\nalterations or construct any tenant improvements to the Premises except as
\nexpressly provided in this Lease. If for any reason, Landlord cannot deliver
\npossession of the Premises to Tenant on the Commencement Date, (a) this Lease
\nwill not be void or voidable and Landlord will not be liable to Tenant for any
\nresultant loss or damage, and (b) the Commencement Date and Expiration Date
\nshall each be delayed by one day for each day of such delay; provided, however,
\nif the Commencement Date is delayed by more than 90 days, Tenant, by written
\nnotice to Landlord prior to the Commencement Date, may terminate this Lease.
\nTenant will execute the Commencement Date Certificate attached to this Lease as
\nExhibit E within 15 days of Landlord’s request.<\/p>\n
ARTICLE 4–MONTHLY RENT<\/p>\n
Throughout the Term of this Lease, Tenant will pay Monthly Rent to
\nLandlord as rent for the Premises. Monthly Rent will be paid in advance on or
\nbefore the first day of each calendar month of the Term. If the Term commences
\non a day other than the first day of a calendar month or ends on a day other
\nthan the last day of a calendar month, then Monthly Rent will be appropriately
\nprorated by Landlord based on the actual number of calendar days in such month.
\nIf the Term commences on a day other than the first day of a calendar month,
\nthen the prorated Monthly Rent for such month will be paid on or before the
\nfirst day of the Term. Monthly Rent will be paid to Landlord, without written
\nnotice or demand, and without deduction or offset, in lawful money of the United
\nStates of America at Landlord’s Address, or to such other address as Landlord
\nmay from time to time designate in writing.<\/p>\n
-2-
\n 3
\n ARTICLE 5–OPERATING EXPENSES<\/p>\n
5.1 General.<\/p>\n
(a) In addition to Monthly Rent, beginning on January 1, 1998,
\nTenant will pay Tenant’s Share of the amount by which the Operating Expenses
\npaid, payable or incurred by Landlord in each calendar year or partial calendar
\nyear during the Term exceeds the product of (i) the Operating Expenses Base
\ntimes (ii) the Rentable Area of the Building. If Operating Expenses are
\ncalculated for a partial calendar year, the Operating Expenses Base will be
\nappropriately prorated.<\/p>\n
(b) As used in this Lease, the term “Operating Expenses”
\nmeans:<\/p>\n
(1) All reasonable costs of management, operation and
\nmaintenance of the Project, including without limitation, real and personal
\nproperty taxes and assessments (and any tax levied in whole or in part in lieu
\nof or in addition to real property taxes); wages, salaries and compensation of
\nemployees employed at or allocated to the Project; consulting, accounting,
\nlegal, janitorial, maintenance, guard, and other services; management fees and
\ncosts (charged by Landlord, any affiliate of Landlord, or any other entity
\nmanaging the Project and determined at a rate consistent with prevailing market
\nrates for comparable services and projects); reasonable reserves for Operating
\nExpenses; that part of office rent or rental value of space in the Project used
\nor furnished by Landlord to enhance, manage, operate, and maintain the Project;
\npower, water, waste disposal, and other utilities; materials and supplies;
\nmaintenance and repairs; insurance obtained with respect to the Project;
\ndepreciation on personal property and equipment (except as set forth in (c)
\nbelow or which is or should be capitalized on the books of Landlord); and any
\nother costs, charges, and expenses which, under generally accepted accounting
\nprinciples, would be regarded as management, maintenance, and operating
\nexpenses; and<\/p>\n
(2) The cost (amortized over such period as Landlord
\nwill reasonably determine) together with interest at the greater of (A) the
\nPrime Rate prevailing plus 2% or (B) Landlord’s borrowing rate for such capital
\nimprovements plus 2%, on the unamortized balance of any capital improvements (i)
\nwhich are made to the Project by Landlord for the purpose of reducing Operating
\nExpenses, or (ii) which are required under any governmental law or regulation
\nthat was not applicable to the Project at the time it was constructed and which
\nare not a result of special requirements for any tenant’s use of the Building
\n(whether or not such law or regulation is applicable to the Building as a result
\nof Landlord’s or any tenant’s status under such law or regulation, Landlord’s or
\nany tenant’s use, occupancy, or alteration of any portion of the Building, or
\nimprovements made by or for any tenant in its premises). Notwithstanding the
\nforegoing, the Building’s Operating Expenses will not include the cost of
\ncapital improvements which are required to be made to any tenant’s premises by
\nSuch tenant pursuant to Section 8.1.<\/p>\n
(c) The Operating Expenses will not include: (1) depreciation
\non the Project (other than depreciation on personal property, equipment, window
\ncoverings on exterior windows provided by Landlord and carpeting in public
\ncorridors and common areas); (2) costs of alterations of space or other
\nimprovements made for tenants of the Project; (3) finders’ fees and real estate
\nbrokers’ commissions; (4) ground lease payments, mortgage principal or interest;
\n(5) capital items other than those referred to in clause (b)(2) above; (6) costs
\nof replacements to personal property and equipment for which depreciation costs
\nare included as an Operating Expense; (7) costs of excess or additional services
\nprovided to any tenant in the Building which are directly billed to such
\ntenants; (8) the cost of repairs due to casualty or condemnation which are
\nreimbursed by third parties; (9) any cost due to Landlord’s breach of this
\nLease; (10) any income, estate, inheritance, or other transfer tax and any
\nexcess profit, franchise, or similar taxes on Landlord’s business; (11) all
\ncosts, including legal fees, relating to activities for the solicitation and
\nexecution of leases of space in the Building; and (12) any legal fees incurred
\nby Landlord in enforcing its rights under other leases for premises in the
\nBuilding.<\/p>\n
(d) The Operating Expenses which vary with occupancy and which
\nare attributable to any part of the Term in which less than 95% of the Rentable
\nArea of the Building is occupied by tenants, will be adjusted by Landlord to the
\namount which Landlord reasonably believes that they would have been if 95% of
\nthe Rentable Area of the Building had been so occupied.<\/p>\n
(e) Tenant acknowledges that Landlord has not made any
\nrepresentation or given Tenant any assurances that the Operating Expenses Base
\nwill equal or approximate the actual Operating Expenses per square foot of
\nRentable Area of the Premises for any calendar year during the Term. In no event
\nshall Operating Expenses within the control of Landlord exceed 5% per year.<\/p>\n
5.2 Estimated Payments. Commencing on January 1, 1998 and hereafter
\nduring each calendar year or partial calendar year in the Term, in addition to
\nMonthly Rent, Tenant will pay to Landlord on the first day of each month an
\namount equal to 1\/12 of the product of Tenant’s Share multiplied by the
\n“Estimated Operating Expenses” (defined below) for such calendar year.
\n“Estimated Operating Expenses” for any calendar year shall mean Landlord’s
\nreasonable estimate of Operating Expenses for such calendar year less the
\nproduct of the Operating Expenses Base multiplied by the Rentable Area of the
\nBuilding and shall be subject to revision according to the further provisions of
\nthis Section 5.2 and Section 5.3. During any partial calendar year during the
\nTerm, Estimated Operating Expenses will be estimated on a full-year basis.
\nDuring each December during the Term, or as soon after each December as
\npracticable, Landlord will give Tenant written notice of Estimated Operating
\nExpenses for the ensuing calendar year. On or before the first day of each month
\nduring the ensuing calendar year (or each month of the Term, if a partial
\ncalendar year), Tenant will pay to Landlord 1\/12 of the product of Tenant’s
\nShare multiplied by the Estimated Operating Expenses for such calendar year;
\nhowever, if such written notice is not given in December, Tenant will continue
\nto make monthly payments on the basis of the prior year’s Estimated Operating
\nExpenses until the month after such written notice is given, at which<\/p>\n
-3-
\n 4
\ntime Tenant will commence making monthly payments based upon the revised
\nEstimated Operating Expenses. In the month Tenant first makes a payment based
\nupon the revised Estimated Operating Expenses, Tenant will pay to Landlord the
\ndifference between the amount payable based upon the revised Estimated Operating
\nExpenses and the amount payable based upon the prior year’s Estimated Operating
\nExpenses, for each month which has elapsed since December. If at any time or
\ntimes it reasonably appears to Landlord that the actual Operating Expenses for
\nany calendar year will vary from the Estimated Operating Expenses for such
\ncalendar year, Landlord may, by written notice to Tenant, revise the Estimated
\nOperating Expenses for such calendar year, and subsequent payments by Tenant in
\nsuch calendar year will be based upon such revised Estimated Operating Expenses.<\/p>\n
5.3 Annual Settlement. Within 120 days after the end of each calendar
\nyear or as soon after such 120-day period as practicable, Landlord will deliver
\nto Tenant a statement of amounts payable under Section 5.1 for such calendar
\nyear prepared and certified by Landlord. Such certified statement will be final
\nand binding upon Landlord and Tenant unless Tenant objects to it in writing to
\nLandlord within 60 days after it is given to Tenant. If such statement shows an
\namount owing by Tenant that is less than the estimated payments previously made
\nby Tenant for such calendar year, the excess will be held by Landlord and
\ncredited against the next payment of Rent; however, if the Term has ended and
\nTenant was not in default at its end, Landlord will refund the excess to Tenant.
\nIf such statement shows an amount owing by Tenant that is more than the
\nestimated payments previously made by Tenant for such calendar year, Tenant will
\npay the deficiency to Landlord within 30 days after the delivery of such
\nstatement. Tenant may review Landlord’s records of the Operating Expenses, at
\nTenant’s sole cost and expense, at the place Landlord normally maintains such
\nrecords during Landlord’s normal business hours upon reasonable advance written
\nnotice.<\/p>\n
5.4 Final Proration. If this Lease ends on a day other than the last
\nday of a calendar year, the amount of increase (if any) in the Operating
\nExpenses payable by Tenant applicable to the calendar year in which this Lease
\nends will be calculated on the basis of the number of days of the Term falling
\nwithin such calendar year and Tenant’s obligation to pay any increase or
\nLandlord’s obligation to refund any overage will survive the expiration or other
\ntermination of this Lease. If Tenant’s audit reveals an overstatement of the
\ntotal Operating Expense of more than 5%, then Landlord shall pay the cost of
\nTenant’s audit.<\/p>\n
5.5 Other Taxes.<\/p>\n
(a) Tenant will reimburse Landlord upon demand for any and all
\ntaxes payable by Landlord (other than as set forth in subparagraph (b) below),
\nwhether or not now customary or within the contemplation of Landlord and Tenant:<\/p>\n
(1) Upon or measured by Rent, including without
\nlimitation, any gross revenue tax, excise tax, or value added tax levied by the
\nfederal government or any other governmental body with respect to the receipt of
\nRent, including, but not limited to, the Arizona state and local transaction
\nprivileges tax; and<\/p>\n
(2) Upon this transaction or any document to which
\nTenant is a party creating or transferring an interest or an estate in the
\nPremises.<\/p>\n
(b) Tenant will not be obligated to pay any inheritance tax,
\ngift tax, transfer tax, franchise tax, income tax (based on net income), profit
\ntax, or capital levy imposed upon Landlord.<\/p>\n
(c) Tenant will pay promptly when due all personal property
\ntaxes on Tenant’s personal property in the Premises and any other taxes payable
\nby Tenant, the non-payment of which might give rise to a lien on the Premises or
\nTenant’s interest in the Premises.<\/p>\n
5.6 Additional Rent. Amounts payable by Tenant according to this
\nArticle 5 will be payable as Rent, without deduction or offset. If Tenant fails
\nto pay any amounts due according to this Article 5, Landlord will have all the
\nrights and remedies available to it on account of Tenant’s failure to pay Rent.<\/p>\n
ARTICLE 6–INSURANCE<\/p>\n
6.1 Landlord’s Insurance. At all times during the Term, Landlord will
\ncarry and maintain:<\/p>\n
(a) Fire and extended coverage insurance covering the Project
\nand its equipment and common area furnishings;<\/p>\n
(b) Bodily injury and property damage insurance; and<\/p>\n
(c) Such other insurance as Landlord reasonably determines
\nfrom time to time or required by any Superior Lien (as defined in Section 19.1).<\/p>\n
The insurance coverages and amounts in this Section 6.1 will be reasonably
\ndetermined by Landlord, based on coverages carried by prudent owners of
\ncomparable buildings in the vicinity of the Project.<\/p>\n
6.2 Tenant’s Insurance. At all times during the Term, Tenant will carry
\nand maintain, at Tenant’s expense, the following insurance, in the amounts
\nspecified below or such other amounts as Landlord may from time to time
\nreasonably request and which are customary for projects similar to the Project
\nin the Phoenix area, with insurance companies and on forms reasonably
\nsatisfactory to Landlord: <\/p>\n
-4-
\n 5
\n (a) Bodily injury and property damage liability insurance,
\nwith a combined single occurrence limit of not less than $1,000,000. All such
\ninsurance will be equivalent to coverage offered by a Commercial General
\nLiability form including, without limitation, personal injury and contractual
\nliability coverage for the performance by Tenant of the indemnity agreements set
\nforth in Article 12 of this Lease;<\/p>\n
(b) Insurance covering all of Tenant’s furniture and fixtures,
\nmachinery, equipment, stock and any other personal property owned and used in
\nTenant’s business and found in, on or about the Project.<\/p>\n
Property forms will provide coverage on a broad form basis insuring against “all
\nrisks of direct physical loss.” All policy proceeds will be used for the repair
\nor replacement of the property damaged or destroyed; however, if this Lease
\nceases under the provisions of Article 18, Tenant will be entitled to any
\nproceeds resulting from damage to Tenant’s furniture and fixtures, machinery and
\nequipment, stock and any other personal property;<\/p>\n
(c) Worker’s compensation insurance insuring against and
\nsatisfying Tenant’s obligations and liabilities under the worker’s compensation
\nlaws of the state in which the Premises are located, including employer’s
\nliability insurance in the limits required by the laws of the state in which the
\nProject is located; and<\/p>\n
(d) If Tenant operates owned, hired or nonowned vehicles on
\nthe Project, comprehensive automobile liability will be carried at a limit of
\nliability not less than $500,000 combined bodily injury and property damage.<\/p>\n
6.3 Forms of the Policies. Certificates of insurance, together with
\ncopies of the endorsements when applicable naming Landlord and any others
\nspecified by Landlord as additional insureds, will be delivered to Landlord
\nprior to Tenant’s occupancy of the Premises and from time to time at least 10
\ndays prior to the expiration of the term of each such policy. All Commercial
\nGeneral Liability or comparable policies maintained by Tenant will name Landlord
\nand such other persons or firms having an interest in the Project (whether as
\nowner or mortgagee) as Landlord specifies (in writing) from time to time as
\nadditional insureds entitling them to recover under such policies for any loss
\nsustained by them, their agents and employees as a result of the negligent acts
\nor omissions of Tenant. All such policies maintained by Tenant will provide that
\nthey may not be terminated nor may coverage be reduced except after 30 days’
\nprior written notice to Landlord. All Commercial General Liability and property
\npolicies maintained by Tenant will be written as primary policies, not
\ncontributing with and not supplemental to the coverage that Landlord may carry.<\/p>\n
6.4 Waiver of Subrogation. Landlord and Tenant each waive any and all
\nrights to recover against the other or against any other tenant, occupant of the
\nProject or Superior Lien holder, or against the officers, directors,
\nshareholders, partners, joint venturers, employees, agents, customers, invitees
\nor business visitors of such other party or of such other tenant or, occupant of
\nthe Project, or Superior Lien holder, for any loss or damage to such waiving
\nparty arising from any cause covered by any property insurance required to be
\ncarried by such party pursuant to this Article 6 or any other property insurance
\nactually carried by such party to the extent of the recovery under such policy.
\nLandlord and Tenant, from time to time, will cause their respective insurers to
\nissue appropriate waiver of subrogation rights endorsements to all property
\ninsurance policies carried in connection with the Project or the Premises or the
\ncontents of the Project or the Premises. Tenant agrees to cause all other
\noccupants of the Premises claiming by, under or through Tenant to execute and
\ndeliver to Landlord such a waiver of claims and to obtain such waiver of
\nsubrogation rights endorsements.<\/p>\n
6.5 Adequacy of Coverage. Landlord, its agents and employees, make no
\nrepresentation that the limits of liability specified to be carried by Tenant
\npursuant to this Article 6 are adequate to protect Tenant. If Tenant believes
\nthat any of such insurance coverage is inadequate, Tenant will obtain such
\nadditional insurance coverage as Tenant deems adequate, at Tenant’s sole
\nexpense.<\/p>\n
ARTICLE 7–USE<\/p>\n
The Premises will be used only for general office purposes and ancillary
\noffice purposes. Tenant will not (a) do or permit to be done in or about the
\nPremises, nor bring to, keep, or permit to be brought or kept in the Premises,
\nanything which is prohibited by or will in any way conflict with any law,
\nstatute, ordinance, or governmental rule or regulation which is now in force or
\nwhich may be enacted or promulgated after the Date; (b) do or permit anything to
\nbe done in or about the Premises which will in any way obstruct or interfere
\nwith the rights of other tenants of the Building or Project or injure or annoy
\nthem; (c) use or allow the Premises to be used for any immoral or unlawful,
\npurpose; (d) cause, maintain, or permit any nuisance in, on, or about the
\nPremises, or (e) commit or allow to be committed any, waste in, on, or about
\nthe Premises.<\/p>\n
ARTICLE 8–REQUIREMENTS OF LAW; FIRE INSURANCE<\/p>\n
8.1 General. At its sole cost and expense, Tenant will promptly comply
\nwith all laws, statutes, ordinances and governmental rules, regulations, or
\nrequirements now in force or in force after the Commencement Date, with the
\nrequirements of any board of fire underwriters or other similar body constituted
\nnow or after the Date, with any direction or occupancy certificate issued
\npursuant to any law by any public officer or officers, as well as the provisions
\nof all recorded documents affecting the Premises, insofar as they relate to (a)
\nTenant’s use, occupancy, or alteration of the Premises; (b) the condition of the
\nPremises resulting from Tenant’s use, occupancy, or alteration of the Premises;
\nor (c) alterations to the Premises required as a result of Tenant’s status under
\nsuch laws. Tenant will not be required to comply with such laws with respect to
\nstructural changes or changes outside the Premises unless related to (y)
\nTenant’s use or occupancy of the Premises, or (z) improvements or alterations
\nmade by or for Tenant.<\/p>\n
-5-
\n 6
\n 8.2 Hazardous Materials.<\/p>\n
(a) For purposes of this Lease, “Hazardous Materials” means
\nany toxic or caustic substances, explosives, radioactive materials, hazardous
\nwastes, hazardous substances, or petroleum, its derivatives, by-products, or
\nother hydrocarbons, including, without limitation, substances defined as
\n“hazardous substances” or “hazardous waste” in the Comprehensive Environmental
\nResponse, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections
\n9601-9657; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
\nSections 1801-1812; the Resource Conservation and Recovery Act of 1976,42 U.S.C.
\nSections 6901-6987; The Occupational Safety and Health Act of 1970 or any other
\nfederal, state, or local statute, law, ordinance, code, rule, regulation, order,
\nor decree regulating, relating to, or imposing liability or standards of conduct
\nconcerning hazardous materials, waste, or substances now or at any time
\nhereafter in effect (collectively, “Hazardous Materials Laws”).<\/p>\n
(b) Tenant will not cause or permit the release, treatment,
\nrecycling, storage, use, generation, transportation, or disposition of any
\nHazardous Materials in, on or about the Premises or the Project by Tenant, its
\nagents, employees, or contractors, except typical office products used in the
\nnormal course of business and in accordance with applicable Hazardous Materials
\nLaws. Tenant will not permit the Premises to be used or operated in a manner
\nthat may cause the Premises or the Project to be contaminated by any Hazardous
\nMaterials in violation of any Hazardous Materials Laws. Tenant will not install
\nor permit the installation on the Project of any underground storage tanks,
\nsurface impoundments, or asbestos-containing materials in violation of any
\nHazardous Materials Laws. Tenant will cause any alterations of the Premises to
\nbe made in a way not to expose persons working or visiting the Project to
\nHazardous Materials in excess of safety levels established by Hazardous
\nMaterials Laws. Tenant will immediately advise Landlord in writing of (1) any
\nand all enforcement, cleanup, remedial, removal, or other governmental or
\nregulatory actions instituted, completed, or threatened pursuant to any
\nHazardous Materials Laws relating to any Hazardous Material affecting the
\nPremises; (2) all claims made or threatened by any third party against Tenant,
\nLandlord, or the Premises relating to damage, contribution, cost recovery,
\ncompensation, loss, or injury resulting from any Hazardous Materials on or about
\nthe Premises; and (3) the failure of the Premises to comply with any Hazardous
\nMaterials Laws. Without Landlord’s prior written consent, Tenant will not take
\nany remedial action or enter into any agreements or settlements in response to
\nthe presence of any Hazardous Materials in, on, or about the Premises.<\/p>\n
(c) Tenant will be solely responsible for and will defend,
\nindemnify and hold Landlord, the holders of Superior Liens, their agents,
\nemployees, partners, shareholders, officers, and directors (collectively,
\n“Landlord Indemnities”) harmless from and against all claims, costs and
\nliabilities, including attorneys’ fees and costs, arising out of or in
\nconnection with Tenant’s breach of its obligations in this Article 8. Tenant
\nwill be solely responsible for and will defend, indemnify and hold Landlord
\nIndemnities harmless from and against any and all claims, costs, and
\nliabilities, including attorneys’ fees and costs, arising out of or in
\nconnection with the removal, clean-up and restoration work and materials
\nnecessary to return the Premises and any other property of whatever nature
\nlocated on the Project to their condition existing prior to the appearance of
\nTenant’s Hazardous Materials on the Premises. Tenant’s obligations under this
\nArticle 8 will survive the expiration or other termination of this Lease.<\/p>\n
(d) Landlord will be solely responsible for and will defend,
\nindemnify and hold Tenant, its agents, employees, partners, shareholders,
\nofficers and directors (“Tenant Indemnities”) harmless from and against all
\nclaims, costs and liabilities including attorneys’ fees and costs, arising out
\nof or in connection with Landlord’s release, treatment, recycling, storage, use,
\ngeneration, transportation, or disposition of any Hazardous Materials in, on or
\nabout the Premises or the Project prior to the date of this Lease (“Tenant
\nIndemnification Event”). Landlord will be solely responsible for and will
\ndefend, indemnify and hold Tenant Indemnities harmless from and against any and
\nall claims, costs and liabilities, including attorneys’ fees and costs, arising
\nout of or in connection with the removal, cleanup and restoration work required
\nin connection with any Hazardous Materials on the Premises or the Project
\narising from a Tenant Indemnification Event. Landlord’s obligations under this
\nArticle 8 will survive the expiration or termination of this Lease. Landlord
\nrepresents that it has no actual knowledge of any potential claims, costs, or
\nliabilities arising out of or in connection with a Tenant Indemnification Event.<\/p>\n
(e) Landlord may, from time to time during the Term based on
\nreasonable cause, conduct such environmental assessments or tests as Landlord
\ndeems necessary, provided that Landlord will give Tenant reasonable prior notice
\nof its entry on the Premises for such purposes and will cooperate in minimizing
\nany disruption of Tenant’s use of the Premises as a result of such activity.
\nTenant will reimburse Landlord for the cost of such environmental assessment or
\ntest if, at the time Landlord causes such assessment or test to be made,
\nLandlord has reasonable grounds to believe that an event has occurred which
\nconstitutes a violation by Tenant of one of its covenants under, or which is
\nlikely to result in Tenant being liable to Landlord by virtue of, an indemnity
\ngiven by Tenant under this Section 8.2.<\/p>\n
8.3 Certain Insurance Risks. Tenant will not do or permit to be done
\nany act or thing upon the Premises or the Project which would (a) jeopardize or
\nbe in conflict with fire insurance policies covering the Project, and fixtures
\nand property in the Project, or (b) increase the rate of fire insurance
\napplicable to the Project to an amount higher than it otherwise would be for
\ngeneral office use of the Project, or (c) subject Landlord to any liability or
\nresponsibility for injury to any person or persons or to property by reason of
\nany business or operation being carried on upon the Premises.<\/p>\n
-6-
\n 7
\n ARTICLE 9–ASSIGNMENT AND SUBLETTING<\/p>\n
9.1 General. Except in connection with the sale or transfer of all of
\nTenant’s assets, Tenant, for itself, its heirs, distributees, executors,
\nadministrators, legal representatives, successors and assigns, covenants that it
\nwill not assign, mortgage or encumber this Lease, nor sublease, or permit the
\nPremises or any part of the Premises to be used or occupied by others, without
\nthe prior written consent of Landlord in each instance, which consent will not
\nbe unreasonably withheld or delayed. Any assignment or sublease in violation of
\nthis Article 9 will be void. If this Lease is assigned, or if the Premises or
\nany part of the Premises are subleased or occupied by anyone other than Tenant,
\nLandlord may, after default by Tenant, collect rent from the assignee, subtenant
\nor occupant, and apply the net amount collected to Rent. No assignment,
\nsublease, occupancy or collection will be deemed a waiver of the provisions of
\nthis Section 9.1, the acceptance of the assignee, subtenant or occupant as
\ntenant, or a release of Tenant from the further performance by Tenant of
\ncovenants on the part of Tenant contained in this Lease. The consent by
\nLandlord to an assignment or sublease will not be construed to relieve Tenant
\nfrom obtaining Landlord’s prior written consent to any further assignment or
\nsublease. No permitted subtenant may assign or encumber its sublease or further
\nsublease all or any portion of its subleased space, or otherwise permit the
\nsubleased space or any part of its subleased space to be used or occupied by
\nothers, without Landlord’s prior written consent in each instance.<\/p>\n
9.2 Submission of Information. If Tenant requests Landlord’s consent
\nto a specific assignment or subletting, Tenant will submit in writing to
\nLandlord (a) the name and address of the proposed assignee or subtenant; (b) the
\nbusiness terms of the proposed assignment or sublease; (c) reasonably
\nsatisfactory information as to the nature and character of the business of the
\nproposed assignee or subtenant, and as to the nature of its proposed use of the
\nspace; (d) banking, financial, or other credit information reasonably sufficient
\nto enable Landlord to determine the financial responsibility and character of
\nthe proposed assignee or subtenant; and (e) the proposed form of assignment or
\nsublease for Landlord’s reasonable approval.<\/p>\n
9.3 Payments to Landlord. If Landlord consents to a proposed
\nassignment or sublease, then Landlord will have the right to require Tenant to
\npay to Landlord a sum equal to (a) 75% of any rent or other consideration paid
\nto Tenant by any proposed transferee which (after deducting the costs of Tenant,
\nif any, in effecting the assignment or sublease, including reasonable alteration
\ncosts, commissions and legal fees) is in excess of the Rent allocable to the
\ntransferred space which is then being paid by Tenant to Landlord pursuant to
\nthis Lease; (b) 75% of any other profit or gain (after deducting any necessary
\nexpenses incurred) realized by Tenant from any such sublease or assignment; and
\n(c) Landlord’s reasonable attorneys’ fees and costs incurred in connection with
\nnegotiation, review and processing of the transfer. All such sums payable will
\nbe payable to Landlord at the time the next payment of Monthly Rent is due.<\/p>\n
9.4 Prohibited Transfers. The transfer of a majority of the issued and
\noutstanding capital stock of any corporate tenant or subtenant of this Lease or
\na majority of the total interest in any partnership tenant or subtenant, however
\naccomplished, and whether in a single transaction or in a series of related or
\nunrelated transactions, will be deemed an assignment of this Lease or of such
\nsublease requiring Landlord’s consent in each instance. For purposes of this
\nArticle 9, the transfer of outstanding capital stock of any corporate tenant
\nwill not include any sale of such stock by persons (other than those deemed
\n“Insiders” within the meaning of the Securities Exchange Act of 1934, as
\namended) or the issuance of new stock, effected through “over-the-
\ncounter-market” or through any recognized stock exchange.<\/p>\n
9.5 Permitted Transfer. Landlord consents to an assignment of this
\nLease, or sublease of all or part of the Premises, to a wholly-owned subsidiary
\nof Tenant or the parent of Tenant or to any corporation into or with which
\nTenant may be merged or consolidated; provided that Tenant promptly provides
\nLandlord with a fully executed copy of such assignment or sublease and that
\nTenant is not released from liability under the Lease.<\/p>\n
ARTICLE 10–RULES AND REGULATIONS<\/p>\n
Tenant and its employees, agents, licensees and visitors will at all
\ntimes observe faithfully, and comply strictly with, the rules and regulations
\nset forth on Exhibit D. Landlord may from time to time reasonably amend, delete
\nor modify existing rules and regulations, or adopt reasonable new rules and
\nregulations for the use, safety, cleanliness and care of the Premises, the
\nBuilding, and the Project, and the comfort, quiet and convenience of occupants
\nof the Project in a nondiscriminatory manner. Modifications or additions to the
\nrules and regulations will be effective upon 30 days’ prior written notice to
\nTenant from Landlord. In the event of any breach of any rules or regulations or
\nany amendments or additions to such rules and regulations, Landlord will have
\nall remedies which this Lease provides for default by Tenant, and will, in
\naddition, have any remedies available at law or in equity, including the right
\nto enjoin any breach of such rules and regulations. Landlord will not be liable
\nto Tenant for violation of such rules and regulations by any other tenant, its
\nemployees, agents, visitors of licensees or any other person for so long as
\nLandlord shall proceed with due diligence to enforce the same in a consistent,
\nreasonable, and non-discriminatory manner. Landlord shall not unreasonably
\nenforce the rules and regulations against Tenant. In the event of any conflict
\nbetween the provisions of this Lease and the rules and regulations, the
\nprovisions of this Lease will govern.<\/p>\n
ARTICLE 11–COMMON AREAS<\/p>\n
As used in this Lease, the term “common areas” means, without
\nlimitation, the hallways, entryways, stairs, elevators, driveways, parking lots,
\nwalkways, terraces, docks, loading areas, restrooms, trash facilities and all
\nother areas and facilities in the Project which are provided and designated from
\ntime to time by Landlord for the general nonexclusive use and convenience of
\nTenant with Landlord and other tenants of the Project and<\/p>\n
-7-
\n 8
\ntheir respective employees, invitees, licensees or other visitors. Landlord
\ngrants Tenant, its employees, invitees, licensees and other visitors a
\nnonexclusive license for the Term to use the common areas in common with others
\nentitled to use the common areas, subject to the terms and conditions of this
\nLease. Without advance written notice to Tenant (except with respect to matters
\ncovered by subsection (a) below) and without any liability to Tenant in any
\nrespect, provided Landlord will take no action permitted under this Article 11
\nin such a manner so as to materially impair or adversely affect Tenant’s
\nsubstantial benefit and enjoyment of the Premises, Landlord will have the right
\nto:<\/p>\n
(a) Close off any of the common areas to whatever extent required
\nin the opinion of Landlord and its counsel to prevent a dedication of any of the
\ncommon areas or the accrual of any rights by any person or the public to the
\ncommon areas;<\/p>\n
(b) Temporarily close any of the common areas for maintenance,
\nalteration or improvement purposes; and<\/p>\n
(c) Change the size, use, shape or nature of any such common
\nareas, including erecting additional buildings on the common areas, expanding
\nthe existing Building or other buildings to cover a portion of the common areas,
\nconverting common areas to a portion of the Building or other buildings, or
\nconverting any portion of the Building (excluding the Premises) or other
\nbuildings to common areas. Upon erection of any additional buildings or change
\nin common areas, the portion of the Project upon which buildings or structures
\nhave been erected will no longer be deemed to be a part of the common areas. In
\nthe event of any such changes in the size or use of the Building or common areas
\nof the Building or Project, Landlord will make an appropriate adjustment in the
\nRentable Area of the Building or the Building’s pro rata share of exterior
\ncommon areas of the Project, as appropriate, and a corresponding adjustment to
\nTenant’s Share of the Operating Expenses payable pursuant to Article 5 of this
\nLease.<\/p>\n
ARTICLE 12–LANDLORD’S SERVICES<\/p>\n
12.1 Landlord’s Repair and Maintenance. Landlord will maintain, repair
\nand restore the common areas of the Project, including lobbies, stairs,
\nelevators, corridors and restrooms, the windows in the Building, the mechanical,
\nplumbing and electrical equipment serving the Building, and the structure of the
\nBuilding in reasonably good order and condition.<\/p>\n
12.2 Landlord’s Services.<\/p>\n
(a) Landlord will furnish the Premises with those services
\ncustomarily provided in comparable office buildings in the vicinity of the
\nProject, including, without limitation, (1) electricity for lighting and the
\noperation of low-wattage office machines (such as desk-top micro-computers,
\ndesk-top calculators and typewriters), although Landlord will not be obligated
\nto furnish more power to the Premises than is proportionally allocated to the
\nPremises under the Building design; (2) heat and air conditioning reasonably
\nrequired for the comfortable occupation of the Premises during Business Hours;
\n(3) access and elevator service; (4) lighting replacement during Business Hours
\n(for building standard lights but not any special Tenant lights, which will be
\nreplaced at Tenant’s sole cost and expense); (5) restroom supplies; (6) window
\nwashing with reasonable frequency, as determined by Landlord; and (7) daily
\ncleaning service on weekdays. Landlord may provide, but will not be obligated to
\nprovide, any such services (except access and elevator service) on Holidays or
\nweekends.<\/p>\n
(b) Tenant will have the right to purchase for use during Business
\nHours and non-Business Hours the services described in clauses (a)(1) and (2) in
\nexcess of the amounts which Landlord has agreed to furnish so long as (1) Tenant
\ngives Landlord reasonable prior written notice of its desire to do so; (2) the
\nexcess services are reasonably available to Landlord and to the Premises; and
\n(3) Tenant pays as Additional Rent (at the time the next payment of Monthly Rent
\nis due) the cost of such excess service from time to time charged by Landlord;
\nsubject to the procedures established by Landlord from time to time for
\nproviding such additional or excess services.<\/p>\n
(c) The term “Business Hours” means 7:00 a.m. to 6:00 p.m. on
\nMonday through Friday, except Holidays (as that term is defined below), and 8:00
\na.m. to 12:00 noon on Saturdays, except Holidays. The term “Holidays” means New
\nYear’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
\nChristmas Day.<\/p>\n
12.3 Tenant’s Costs. Whenever equipment or lighting (other than
\nbuilding standard lights) is used in the Premises by Tenant and such equipment
\nor lighting affects the temperature otherwise normally maintained by the design
\nof the Building’s air conditioning system, Landlord will have the right, after
\nprior written notice to Tenant, to install supplementary air conditioning
\nfacilities in the Premises or otherwise modify the ventilating and air
\nconditioning system serving the Premises; and the cost of such facilities,
\nmodifications, and additional service will be paid by Tenant as Additional Rent.
\nIf Landlord reasonably believes that Tenant is using more power than Landlord
\nfurnishes pursuant to Section 12.2, Landlord may install separate meters of
\nTenant’s power usage, and Tenant will pay for the cost of such excess power as
\nAdditional Rent, together with the cost of installing any risers, meters or
\nother facilities that may be necessary to furnish or measure such excess power
\nto the Premises.<\/p>\n
12.4 Limitation on Liability. Provided such is not the result of the
\ngross negligence or intentional misconduct of Landlord, Landlord will not be in
\ndefault under this Lease or be liable to Tenant or any other person, for direct
\nor consequential damage, or otherwise, for any failure to supply any heat, air
\nconditioning,<\/p>\n
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\n 9
\nelevator, cleaning, lighting, security, surges or interruptions of electricity,
\nor other service Landlord has agreed to supply during any period when Landlord
\nuses reasonable diligence to supply such services. Landlord will use reasonable
\nefforts to diligently remedy any interruption in the furnishing of such
\nservices. Landlord reserves the right temporarily to discontinue such services
\nat such times as may be necessary by reason of accident, repairs, alterations or
\nimprovements, strikes, lockouts, riots, acts of God, governmental preemption in
\nconnection with a national or local emergency, any rule, order or regulation of
\nany governmental agency, conditions of supply and demand which make any product
\nunavailable, Landlord’s compliance with any mandatory governmental energy
\nconservation or environmental protection program, or any voluntary governmental
\nenergy conservation program at the request of or with consent or acquiescence of
\nTenant, or any other happening beyond the control of Landlord. Landlord will not
\nbe liable to Tenant or any other person or entity for direct or consequential
\ndamages resulting from the admission to or exclusion from the Building or
\nProject of any person. In the event of invasion, mob, riot, public excitement,
\nstrikes, lockouts, or other circumstances rendering such action advisable in
\nLandlord’s sole opinion, Landlord will have the right to prevent access to the
\nBuilding or Project during the continuance of the same by such means as
\nLandlord, in its sole discretion, may deem appropriate, including, without
\nlimitation, locking doors and closing parking areas and other common areas.
\nProvided such is not the result of the gross negligence or intentional
\nmisconduct of the Landlord, Landlord will not be liable for damages to person or
\nproperty or for injury to, or interruption of, business for any discontinuance
\npermitted under this Article 12, nor will such discontinuance in any way be
\nconstrued as an eviction of Tenant or cause an abatement of Rent or operate to
\nrelease Tenant from any of Tenant’s obligations under this Lease.<\/p>\n
ARTICLE 13–TENANT’S CARE OF THE PREMISES<\/p>\n
Subject to Landlord’s obligations under Article 12, Tenant will
\nmaintain the Premises (including Tenant’s equipment, personal property and trade
\nfixtures located in the Premises) in their condition at the time they were
\ndelivered to Tenant, reasonable wear and tear excluded. Tenant will immediately
\nadvise Landlord of any damage to the Premises or the Project. All damage or
\ninjury to the Premises, or the Project, or the fixtures, appurtenances and
\nequipment in the Premises or the Project which is caused by Tenant, its agents,
\nemployees, or invitees, may be repaired, restored or replaced by Landlord, at
\nthe expense of Tenant and such expense (plus 15% of such expense for Landlord’s
\noverhead) will be collectible as Additional Rent and will be paid by Tenant
\nwithin 10 days after delivery of a statement for such expense.<\/p>\n
ARTICLE 14–ALTERATIONS<\/p>\n
14.1 General.<\/p>\n
(a) During the Term, Tenant will not make or allow to be made any
\nalterations, additions, or improvements (“Alterations”) to or of the Premises or
\nany part of the Premises, or attach any fixtures or equipment to the Premises,
\nwithout first obtaining Landlord’s written consent. Landlord’s consent to such
\nalterations, additions, or improvements or Landlord’s approval of the plans,
\nspecifications, and working drawings for such alterations, additions, or
\nimprovements shall create no responsibility or liability on the part of Landlord
\nfor the completeness, design sufficiency, or compliance with all laws, rules,
\nand regulations of governmental agencies or authorities with respect to such
\nalterations, additions or improvements. No Alterations will be approved by
\nLandlord if such Alterations would not be approved by the holder of a Superior
\nLien. All such Alterations consented to by Landlord, and capital improvements
\nwhich are required to be made to the Project as a result of the nature of
\nTenant’s use of the Premises:<\/p>\n
(1) Will be performed by contractors approved by Landlord and
\nsubject to conditions specified by Landlord (which may include requiring the
\nposting of a mechanic’s or materialmen’s lien bond);<\/p>\n
(2) Will not be made until Tenant has procured and paid for
\nall permits and authorizations of all municipal and other governmental
\nauthorities with jurisdiction over the Premises;<\/p>\n
(3) Will be expeditiously completed in a good and workmanlike
\nmanner in compliance with all Laws;<\/p>\n
(4) Will not be made until Tenant procures, in addition to
\ninsurance required by Section 6.2, completed value builder’s risk insurance for
\nthe Project, including all building materials thereon, to be maintained
\nduring the period of demolition or construction, covering loss or damage from
\nfire, lightning, extended coverage perils, sprinkler, leakage, vandalism,
\nmalicious mischief, and perils insured under a difference in conditions policy
\nin an amount not less than the cost, as estimated by Landlord, of the
\nconstruction of the alterations;<\/p>\n
(5) Will be of such a character as not to adversely affect
\nthe fair market value of the Project;<\/p>\n
(6) Will be paid for by Tenant when due so that the Project
\nwill, at all times, be free of liens for labor and materials supplied or claimed
\nto have been supplied to the Project;<\/p>\n
(7) Will not be of such a character as to materially
\nadversely affect the character of the Building as a general office Building, a
\nself-contained structural unit, capable of being operated independently of any
\nother buildings or improvements, and as a multi-tenant facility;<\/p>\n
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\n 10
\n (8) At Landlord’s option, will be made by Landlord for
\nTenant’s, account, and Tenant will reimburse Landlord for their cost (including
\n10% for Landlord’s overhead) within 10 days after receipt of a statement of
\nsuch cost;<\/p>\n
(9) If the Alterations have an estimated cost in excess of
\n$10,000:<\/p>\n
(A) Will be conducted under the supervision of an
\narchitect or engineer employed or engaged by Landlord and paid by Tenant;<\/p>\n
(B) Will not be undertaken except in accordance with
\ndetailed plans, specifications, and cost estimates approved by Landlord. Within
\n30 days of Landlord’s receipt of detailed plans, specifications, and cost
\nestimates, Landlord shall either approve the proposed Alterations or disapprove
\nthe proposed Alterations by delivering to Tenant a written explanation for such
\ndisapproval.<\/p>\n
(b) Except to the extent such constitute Tenant’s trade fixtures
\nor trade dress, and subject to Tenant’s rights in Article 16, all alterations,
\nadditions, fixtures and improvements, whether temporary or permanent in
\ncharacter, made in or upon the Premises either by Tenant or Landlord, will
\nimmediately become Landlord’s property and, at the end of the Term will remain
\non the Premises without compensation to Tenant.<\/p>\n
14.2 Free-Standing Partitions. Tenant will have the right to install
\nfree-standing work station partitions, without Landlord’s prior written consent,
\nso long as no building or other governmental permit is required for their
\ninstallation or relocation; however, if a permit is required, Landlord will not
\nunreasonably withhold its consent to such relocation or installation. The
\nfree-standing work station partitions for which Tenant pays will be part of
\nTenant’s trade fixtures for all purposes under this Lease. All other partitions
\nwhich are installed in the Premises are and will be Landlord’s property for all
\npurposes under this Lease.<\/p>\n
ARTICLE 15–MECHANICS’ LIENS<\/p>\n
Tenant will pay or cause to be paid all costs and charges for work (a)
\ndone by Tenant or caused to be done by Tenant, in or to the Premises, and (b)
\nfor all materials furnished for or in connection with such work. Tenant will
\nindemnify Landlord against and hold Landlord, the Premises and the Project free,
\nclear and harmless of and from all mechanics’ liens and claims of liens, and all
\nother liabilities, liens, claims and demands on account of such work by or on
\nbehalf of Tenant. If any such lien, at any time, is filed against the Premises,
\nor any part of the Project, Tenant will cause such lien to be discharged of
\nrecord within 10 days after the filing of such lien, except that if Tenant
\ndesires to contest such lien, it will furnish Landlord, within such 10-day
\nperiod, security reasonably satisfactory to Landlord of at least 150% of the
\namount of the claim, plus estimated costs and interest or comply with such
\nstatutory procedures as may be available to release the lien. If a final
\njudgment establishing the validity or existence of a lien for any amount is
\nentered, Tenant will pay and satisfy the same at once. If Tenant fails to pay
\nany charge for which a mechanics’ lien has been filed, and has not given
\nLandlord security as described above, or has not complied with such statutory
\nprocedures as may be available to release the lien, Landlord may, at its option,
\npay such charge and related costs and interest, and the amount so paid, together
\nwith reasonable attorneys’ fees incurred in connection with such lien, will be
\nimmediately due from Tenant to Landlord as Additional Rent. Nothing contained
\nin this Lease will be deemed the consent or agreement of Landlord to subject
\nLandlord’s interest in the Project to liability under any mechanics’ or other
\nlien law. If Tenant receives written notice that a lien has been or is about to
\nbe filed against the Premises or the Project or any action affecting title to
\nthe Project has been commenced on account of work done by or for or materials
\nfurnished to or for Tenant, it will immediately give Landlord written notice of
\nsuch notice. At least 15 days prior to the commencement of any work (including,
\nbut not limited to, any maintenance, repairs, alterations, additions,
\nimprovements or installations) in or to the Premises, by or for Tenant, Tenant
\nwill give Landlord written notice of the proposed work and the names and
\naddresses of the persons supplying labor and materials for the proposed work.
\nLandlord will have the right to post notices of non-responsibility or similar
\nwritten notices on the Premises in order to protect the Premises against any
\nsuch liens. Upon request, Tenant will furnish Landlord evidence of any
\nsettlement, satisfaction, or payment made of any lien or claim pursuant to this
\nArticle 15.<\/p>\n
ARTICLE 16–END OF TERM<\/p>\n
At the end of this Lease, Tenant will promptly quit and surrender the
\nPremises broom-clean, in good order and repair, ordinary wear and tear excepted.
\nIf Tenant is not then in default, Tenant may remove from the Premises any trade
\nfixtures, equipment and movable furniture placed in the Premises by Tenant,
\nwhether or not such trade fixtures or equipment are fastened to the Building;
\nTenant will not remove any trade fixtures or equipment without Landlord’s prior
\nwritten consent if such fixtures or equipment are used in the operation of the
\nBuilding, or if the removal of such fixtures or equipment will result in
\nimpairing the structural strength of the Building . Tenant will fully repair any
\ndamage occasioned by the removal of any trade fixtures, equipment, and
\nfurniture. All trade fixtures, equipment, furniture, inventory, and effects on
\nthe Premises after the end of the Term will be deemed conclusively to have been
\nabandoned and may be appropriated, sold, stored, destroyed or otherwise disposed
\nof by Landlord without written notice to Tenant or any other person and without
\nobligation to account for them. Tenant will pay Landlord for all expenses
\nincurred in connection with the removal of such property, including, but not
\nlimited to, the cost of repairing any damage to the Building or Premises caused
\nby the removal of such property. Tenant’s obligation to observe and perform this
\ncovenant will survive the expiration or other termination of this Lease.<\/p>\n
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\n 11
\n ARTICLE 17–EMINENT DOMAIN<\/p>\n
If all of the Premises are taken by exercise of the power of eminent
\ndomain (or conveyed by Landlord in lieu of such exercise) this Lease will
\nterminate on a date (the “termination date”) which is the earlier of the date
\nupon which the condemning authority takes possession of the Premises or the date
\non which title to the Premises is vested in the condemning authority. If more
\nthan 25% of the Rentable Area of the Premises is so taken, Tenant will have the
\nright to cancel this Lease by written notice to Landlord given within 20 days
\nafter the termination date. If less than 25% of the Rentable Area of the
\nPremises is so taken, or if the Tenant does not cancel this Lease according to
\nthe preceding sentence, the Monthly Rent will be abated in the proportion of the
\nRentable Area of the Premises so taken to the Rentable Area of the Premises
\nimmediately before such taking, and Tenant’s Share will be appropriately
\nrecalculated. If 25% or more of the Building or the Project is so taken, or such
\nportion of the Building or Project is taken such that the Premises cannot
\nreasonably be used by Tenant an Tenant gives Landlord written notice of that
\nwithin 30 days of the date of the taking, Landlord and Tenant may cancel this
\nLease by written notice to the other given within 30 days after the termination
\ndate. In the event of any such taking, the entire award will be paid to Landlord
\nand Tenant will have no right or claim to any part of such award; however,
\nTenant will have the right to assert a claim against the condemning authority in
\na separate action, so long as Landlord’s award is not otherwise reduced, for (a)
\nTenant’s moving expenses and (b) leasehold improvements owned by Tenant.<\/p>\n
ARTICLE 18–DAMAGE AND DESTRUCTION<\/p>\n
(a) If the Premises or the Building are damaged by fire or other
\ninsured casualty, Landlord will give Tenant written notice of the time which
\nwill be needed to repair such damage, as determined by Landlord in its
\nreasonable discretion, and the election (if any) which Landlord has made
\naccording to this Article 18. Such notice will be given before the 30th day (the
\n“notice date”) after the fire or other insured casualty.<\/p>\n
(b) If the Premises or the Building are damaged by fire or other
\ninsured casualty to an extent which it may be repaired its original condition as
\nof the time of the Commencement Date within 120 days after the notice date, as
\nreasonably determined by Landlord, Landlord will promptly begin to repair the
\ndamage after the notice date and will diligently pursue the completion of such
\nrepair. In that event this Lease will continue in full force and effect except
\nthat Monthly Rent will be abated on a pro rata basis from the date of the damage
\nuntil the date of the completion of such repairs (the “repair period”) based on
\nthe proportion of the Rentable Area of the Premises which Tenant is unable to
\nuse during the repair period.<\/p>\n
(c) If the Premises or the Building are damaged by fire or other
\ninsured casualty to an extent which may not be repaired within 120 days after
\nthe notice date, as reasonably determined by Landlord, then (1) Landlord may
\ncancel this Lease as of the date of such damage by written notice given to
\nTenant on or before the notice date or (2) Tenant may cancel this Lease as of
\nthe date of such damage by written notice given to Landlord within 10 days after
\nLandlord’s delivery of a written notice that the repairs cannot be made within
\nsuch 120-day period. If neither Landlord nor Tenant so elects to cancel this
\nLease, Landlord will diligently proceed to repair the Building and Premises and
\nMonthly Rent will be abated on a pro rata basis during the repair period based
\non the proportion of the Rentable Area of the Premises which Tenant is unable to
\nuse during the repair period.<\/p>\n
(d) Notwithstanding the provisions of subparagraphs (a), (b), and
\n(c) above, if the Premises or the Building are damaged by uninsured casualty, or
\nif the proceeds of insurance are insufficient to pay for the repair of any
\ndamage to the Premises or the Building, Landlord will have the option to repair
\nsuch damage or cancel this Lease as of the date of such casualty by written
\nnotice to Tenant on or before the notice date.<\/p>\n
(e) If any such damage by fire or other casualty is the result of
\nthe willful conduct or negligence or failure to act of Tenant, its agents,
\ncontractors, employees or invitees, there will be no abatement of Monthly Rent
\nas otherwise provided for in this Article 18. Tenant will have no rights to
\nterminate this Lease on account of any damage to the Premises, the Building, or
\nthe Project, except as set forth in this Lease.<\/p>\n
ARTICLE 19–SUBORDINATION<\/p>\n
19.1 General. This Lease and Tenant’s rights under this Lease are
\nsubject and subordinate to any ground or underlying master lease, mortgage,
\nindenture, deed of trust or other lien encumbrance (each a “Superior Lien”),
\ntogether with any renewals, extensions, modifications, consolidations and
\nreplacements of such Superior Lien, now or after the Date affecting or placed,
\ncharged or enforced against the Land, the Building, or all or any portion of the
\nProject or any interest of Landlord in them or Landlord’s interest in this Lease
\nand the leasehold estate created by this Lease (except to the extent any such
\ninstrument will expressly provide that this Lease, is superior to such
\ninstrument). This provision will be self-operative and no further instrument of
\nsubordination will be required in order to effect it. Notwithstanding the
\nforegoing, provided Landlord provides Tenant with a nondisturbance agreement in
\na form reasonably satisfactory to Tenant, Tenant will execute, acknowledge and
\ndeliver to Landlord, within 20 days after written demand by Landlord, such
\ndocuments as may be reasonably requested by Landlord or the holder of any
\nSuperior Lien to confirm or effect any such subordination.<\/p>\n
19.2 Attornment and Non-Disturbance. Tenant agrees that in the event
\nthat any holder of a Superior Lien succeeds to Landlord’s interest in the
\nPremises, Tenant will pay to such holder all rents subsequently payable under
\nthis Lease. Further, Tenant agrees that in the event of the enforcement by the
\nholder of a Superior Lien of the remedies provided for by law or by such
\nSuperior Lien, Tenant will, upon request of any<\/p>\n
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\n 12
\nperson or party succeeding to the interest of Landlord as a result of such
\nenforcement, automatically become the Tenant of and attorn to such
\nsuccessor-in-interest without change in the terms or provisions of this Lease.
\nSuch successor-in-interest will not be bound by (a) any payment of Rent for more
\nthan one month in advance, except prepayments in the nature of security for the
\nperformance by Tenant of its obligations under this Lease; (b) any amendment or
\nmodification of this Lease made without the written consent of such
\nsuccessor-in-interest of which Tenant has written notice at the time of the
\namendment or modifications (if such consent was required under the terms of such
\nSuperior Lien); (c) any claim against Landlord arising prior to the date on
\nwhich such successor-in-interest succeeded to Landlord’s interest; or (d) any
\nclaim or offset of Rent against the Landlord. Upon request by such
\nsuccessor-in-interest and without cost to Landlord or such
\nsuccessor-in-interest, Tenant will, within 20 days after written demand,
\nexecute, acknowledge and deliver an instrument or instruments confirming the
\nattornment, so long as such instrument provides that such successor-in-interest
\nwill not disturb Tenant in its use of the Premises in accordance with this
\nLease.<\/p>\n
ARTICLE 20–ENTRY BY LANDLORD<\/p>\n
Landlord, the holder of a Superior Lien, their agents, employees, and
\ncontractors may enter the Premises at any time in response to an emergency and
\nat least 24 hours prior telephone notice when possible, at reasonable hours to:<\/p>\n
(a) Inspect the Premises;<\/p>\n
(b) Exhibit the Premises to prospective purchasers, lenders or
\ntenants;<\/p>\n
(c) Determine whether Tenant is complying with all its obligations
\nin this Lease;<\/p>\n
(d) Supply cleaning service and any other service to be provided
\nby Landlord to Tenant according to this Lease (without notice);<\/p>\n
(e) Post written notices of non-responsibility or similar notices
\n(without notice); or<\/p>\n
(f) Make repairs required of Landlord under the terms of this
\nLease or repairs to any adjoining space or utility services or make repairs,
\nalterations or improvements to any other portion of the Building; however, all
\nsuch work will be done as promptly as reasonably possible and so as to cause as
\nlittle interference to Tenant as reasonably possible.<\/p>\n
Tenant, by this Article 20, waives any claim against Landlord, its agents,
\nemployees or contractors for damages for any injury or inconvenience to or
\ninterference with Tenant’s business, any loss of occupancy or quiet enjoyment of
\nthe Premises or any other loss occasioned by any entry in accordance with this
\nArticle 20 except to the extent caused by the gross negligence of Landlord.
\nLandlord will at all times have and retain a key with which to unlock all of the
\ndoors in, on or about the Premises (excluding Tenant’s vaults, safes and similar
\nareas designated in writing by Tenant in advance). Landlord will have the right
\nto use any and all means which Landlord may deem proper to open doors in and to
\nthe Premises in an emergency in order to obtain entry to the Premises, provided
\nthat Landlord will promptly repair any damages caused by any forced entry. Any
\nentry to the Premises by Landlord in accordance with this Article 20 will not be
\nconstrued or deemed to be a forcible or unlawful entry into or a detainer of the
\nPremises or an eviction, actual or constructive, of Tenant from the Premises, or
\nany portion of the Premises, nor will any such entry entitle Tenant to damages
\nor an abatement of Monthly Rent, Additional Rent, or other charges which this
\nLease requires Tenant to pay.<\/p>\n
ARTICLE 21–INDEMNIFICATION, WAIVER, AND RELEASE<\/p>\n
21.1 Indemnification. Except for any injury or damage to persons or
\nproperty on the Premises which is proximately caused by or results proximately
\nfrom the negligence or deliberate act of Landlord, its employees or agents, and
\nsubject to the provisions of Section 6.4, Tenant will neither hold nor attempt
\nto hold Landlord, its employees or agents liable for, and Tenant will indemnify
\nand hold harmless Landlord, its employees and agents from and against, any and
\nall demands, claims, causes of action, fines, penalties, damages (including
\nconsequential damages), liabilities, judgments, and expenses (including, without
\nlimitation, reasonable attorneys’ fees) incurred in connection with or arising
\nfrom: (a) the use or occupancy or manner of use or occupancy of the Premises by
\nTenant or any person claiming under Tenant; (b) any activity, work, or thing
\ndone or permitted by Tenant in or about the Premises, the Building, or the
\nProject; (c) any breach by Tenant or its employees, agents, contractors, or
\ninvitees of this Lease; and (d) any injury or damage to the person, property,
\nor business of Tenant, its employees, agents, contractors, or invitees entering
\nupon the Premises under the express or implied invitation of Tenant.<\/p>\n
If any action or proceeding is brought against Landlord, its
\nemployees or agents by reason of any such claim for which Tenant has indemnified
\nLandlord, Tenant, upon written notice from Landlord, will defend the same at
\nTenant’s expense, with counsel reasonably satisfactory to Landlord.<\/p>\n
(a) Except for any injury or damage to persons or property on the
\nPremises which is proximately caused by or results proximately from the
\nnegligence or deliberate act of Tenant, its employees or agents, Landlord will
\nneither hold nor attempt to hold Tenant, its employees or agents liable for, and
\nLandlord will indemnify and hold harmless Tenant, its employees and agents from
\nand against, any and all demands, claims, causes of action, fines, penalties,
\ndamages (including consequential damages), liabilities, judgements and expenses
\n(including without limitation reasonable attorneys’ fees) incurred in connection
\nwith or arising from<\/p>\n
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\n 13
\nthe acts of Landlord or its agents at the Project. If any action or proceeding
\nis brought against Tenant, or its employees or agents by reason of any such
\nclaim for which Landlord has indemnified Tenant, Landlord, upon written notice
\nfrom Tenant, will defend the same at Landlord’s expense, with counsel reasonably
\nsatisfactory to Tenant.<\/p>\n
21.2 Waiver and Release. Tenant, as a material part of the
\nconsideration to Landlord for this Lease, by this Section 21.2, waives and
\nreleases all claims against Landlord, its employees and agents with respect to
\nall matters for which Landlord has disclaimed liability pursuant to the
\nprovisions of this Lease.<\/p>\n
ARTICLE 22–SECURITY DEPOSIT<\/p>\n
Intentionally deleted.<\/p>\n
ARTICLE 23–QUIET ENJOYMENT<\/p>\n
Landlord covenants and agrees with Tenant that so long as Tenant pays
\nthe Rent, and observes and performs all the terms, covenants and conditions of
\nthis Lease on Tenant’s part to be observed and performed, Tenant may peaceably
\nand quietly enjoy the Premises subject, nevertheless, to the terms and
\nconditions of this Lease and Tenant’s possession will not be disturbed by anyone
\nclaiming by, through or under Landlord.<\/p>\n
ARTICLE 24–EFFECT OF SALE<\/p>\n
A sale, conveyance or assignment of Landlord’s interest in the Building
\nor the Project will operate to release Landlord from liability from and after
\nthe effective date of such sale, conveyance or assignment upon all of the
\ncovenants, terms and conditions of this Lease, express or implied, except those
\nliabilities which arose prior to such effective date, and, after the effective
\ndate of such sale, conveyance or assignment, Tenant will look solely to
\nLandlord’s successor-in-interest in and to this Lease. This Lease will not be
\naffected by any such sale, conveyance or assignment, and Tenant will attorn to
\nLandlord’s successor-in-interest to this Lease, so long as such
\nsuccessor-in-interest assumes Landlord’s obligations under the Lease from and
\nafter such effective date.<\/p>\n
ARTICLE 25–DEFAULT<\/p>\n
25.1 Events of Default. The following events are referred to,
\ncollectively, as “Events of Default” or, individually, as an “Event of Default”:<\/p>\n
(a) Tenant defaults in the due and punctual payment of Rent, and
\nsuch default continues for 5 days after receipt of written notice from Landlord;
\nhowever, Tenant will not be entitled to more than 1 written notice for monetary
\ndefaults during any 12-month period, and if after such written notice any Rent
\nis not paid within 5 days after due, an Event of Default will be considered to
\nhave occurred without further notice;<\/p>\n
(b) Tenant abandons the Premises;<\/p>\n
(c) This Lease or the Premises or any part of the Premises are
\ntaken upon execution or by other process of law directed against Tenant, or are
\ntaken upon or subject to any attachment by any creditor of Tenant or claimant
\nagainst Tenant, and said attachment is not discharged or disposed of within 30
\ndays after its levy;<\/p>\n
(d) Tenant files a petition in bankruptcy or insolvency or for
\nreorganization or arrangement under the bankruptcy laws of the United States or
\nunder any insolvency act of any state, or admits the material allegations of
\nany such petition by answer or otherwise, or is dissolved or makes an assignment
\nfor the benefit of creditors;<\/p>\n
(e) Involuntary proceedings under any such bankruptcy law or
\ninsolvency act or for the dissolution of Tenant are instituted against Tenant,
\nor a receiver or trustee is appointed for all or substantially all of the
\nproperty of Tenant, and such proceeding is not dismissed or such receivership or
\ntrusteeship vacated within 60 days after such institution or appointment;<\/p>\n
(f) Tenant fails to take possession of the Premises on the
\nCommencement Date of the Term; or<\/p>\n
(g) Tenant breaches any of the other agreements, terms, covenants
\nor conditions which this Lease requires Tenant to perform, and such breach
\ncontinues for a period of 30 days after receipt of written notice from Landlord
\nto Tenant or, if such breach cannot be cured reasonably within such 30-day
\nperiod, if Tenant fails to diligently commence to cure such breach within 30
\ndays after written notice from Landlord and to complete such cure within a
\nreasonable time thereafter.<\/p>\n
25.2 Landlord’s Remedies. If any one or more Events of Default set
\nforth in Section 25.1 occurs then Landlord has the right, at its election:<\/p>\n
(a) To give Tenant written notice of Landlord’s intention to
\nterminate this Lease on the earliest date permitted by law or on any later date
\nspecified in such notice, in which case Tenant’s right to possession<\/p>\n
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\n 14
\nof the Premises will cease and this Lease will be terminated, except as to
\nTenant’s liability, as if the expiration of the term fixed in such notice were
\nthe end of the Term;<\/p>\n
(b) Without further demand or notice, to reenter and take
\npossession of the Premises or any part of the Premises, repossess the same,
\nexpel Tenant and those claiming through or under Tenant, and remove the effects
\nof both or either, using such force for such purposes as may be necessary,
\nwithout being liable for prosecution, without prejudice to any remedies for
\narrears of Monthly Rent or other amounts payable under this Lease or as a result
\nof any preceding breach of covenants or conditions; or<\/p>\n
(c) Without further demand or notice to cure any Event of Default
\nand to charge Tenant for the cost of effecting such cure, including, without
\nlimitation, reasonable attorneys’ fees and interest on the amount so advanced at
\nthe rate set forth in Section 27.21, provided that Landlord will have no
\nobligation to cure any such Event of Default of Tenant.<\/p>\n
Should Landlord elect to reenter as provided in subsection (b), or should
\nLandlord take possession pursuant to legal proceedings or pursuant to any notice
\nprovided by law, Landlord may, from time to time, without terminating this
\nLease, relet the Premises or any part of the Premises in Landlord’s or Tenant’s
\nname, but for the account of Tenant, for such term or terms (which may be
\ngreater or less than the period which would otherwise have constituted the
\nbalance of the Term) and on such conditions and upon such other terms (which may
\ninclude concessions of free rent and alteration and repair of the Premises) as
\nLandlord, in its reasonable discretion, may determine and Landlord may collect
\nand receive the rent. Landlord will in no way be responsible or liable for any
\nfailure to relet the Premises, or any part of the Premises, or for any failure
\nto collect any rent due upon such reletting. No such reentry or taking
\npossession of the Premises by Landlord will be construed as an election on
\nLandlord’s part to terminate this Lease unless such notice specifically so
\nstates. Landlord reserves the right following any such reentry or reletting to
\nexercise its right to terminate this Lease by giving Tenant such written notice,
\nin which event this Lease will terminate as specified in such notice.<\/p>\n
25.3 Certain Damages. In the event that Landlord does not elect to
\nterminate this Lease as permitted in Section 25.2(a), but on the contrary,
\nelects to take possession as provided in Section 25.2(b), Tenant will pay to
\nLandlord: (a) Monthly Rent and other sums as provided in this Lease, which would
\nbe payable under this Lease if such repossession had not occurred, less (b) the
\nnet proceeds, if any, of any reletting of the Premises after deducting all of
\nLandlord’s reasonable expenses in connection with such reletting, including,
\nwithout limitation, all repossession costs, brokerage commissions, attorneys’
\nfees, expenses of employees, alteration and repair costs and expenses of
\npreparation for such reletting. If, in connection with any reletting, the new
\nlease term extends beyond the existing Term, or the premises covered by such new
\nlease include other premises not part of the Premises, a fair apportionment of
\nthe rent received from such reletting and the expenses incurred in connection
\nwith such reletting as provided in this Section will be made in determining the
\nnet proceeds from such reletting, and any rent concessions will be equally
\napportioned over the term of the new lease. Tenant will pay such rent and other
\nsums to Landlord monthly on the day on which the Monthly Rent would have been
\npayable under this Lease if possession had not been retaken and Landlord will be
\nentitled to receive such rent and other sums from Tenant on each such day.<\/p>\n
25.4 Continuing Liability After Termination. If this Lease is
\nterminated on account of the occurrence of an Event of Default, Tenant will
\nremain liable to Landlord for damages in an amount equal to Monthly Rent and
\nother amounts which would have been owing by Tenant for the balance of the Term,
\nhad this Lease not been terminated, less the net proceeds, if any, of any
\nreletting of the Premises by Landlord subsequent to such termination, after
\ndeducting all of Landlord’s expenses in connection with such reletting,
\nincluding, without limitation, the expenses enumerated in Section 25.3. Landlord
\nwill be entitled to collect such damages from Tenant monthly on the day on which
\nMonthly Rent and other amounts would have been payable under this Lease if this
\nLease had not been terminated, and Landlord will be entitled to receive such
\nMonthly Rent and other amounts from Tenant on each such day. Alternatively, at
\nthe option of Landlord, in the event this Lease is so terminated, Landlord will
\nbe entitled to recover against Tenant as damages for loss of the bargain and not
\nas a penalty:<\/p>\n
(a) The worth at the time of award of the unpaid Rent which had
\nbeen earned at the time of termination;<\/p>\n
(b) The worth at the time of award of the amount by which the
\nunpaid Rent which would have been earned after termination until the time of
\naward exceeds the amount of such rental loss that Tenant proves could have been
\nreasonably avoided;<\/p>\n
(c) The worth at the time of award of the amount by which the
\nunpaid Rent for the balance of the Term of this Lease (had the same not been so
\nterminated by Landlord) after the time of award exceeds the amount of such
\nrental loss that Tenant proves could be reasonably avoided;<\/p>\n
(d) Any other amount necessary to compensate Landlord for all the
\ndetriment proximately caused by Tenant’s failure to perform its obligations
\nunder this Lease or which in the ordinary course of things would be likely to
\nresult therefrom.<\/p>\n
The “worth at the time of award” of the amounts referred to in clauses (a) and
\n(b) above is computed by adding interest at the per annum interest rate
\ndescribed in Section 27.21 on the date on which this Lease is terminated from
\nthe date of termination until the time of the award. The worth at the time of
\naward of the amount referred to in clause (c) above is computed by discounting
\nsuch amount at the discount rate of the Federal Reserve Bank of Kansas City,
\nMissouri, at the time of award plus 1%.<\/p>\n
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\n 15
\n 25.5 Cumulative Remedies. Any suit or suits for the recovery of the
\namounts, and damages set forth in Sections 25.3 and 25.4 may be brought by
\nLandlord, from time to time, at Landlord’s election, and nothing in this Lease
\nwill be deemed to require Landlord to await the date upon which this Lease or
\nthe Term would have expired had there occurred no Event of Default. Each right
\nand remedy provided for in this Lease is cumulative and is in addition to every
\nother right or remedy provided for in this Lease or now or after the Date
\nexisting at law or in equity or by statute or otherwise, and the exercise or
\nbeginning of the exercise by Landlord of any one or more of the rights or
\nremedies provided for in this Lease or now or after the Date existing at law or
\nin equity or by statute or otherwise will not preclude the simultaneous or later
\nexercise by Landlord of any or all other rights or remedies provided for in this
\nLease or now or after the Date existing at law or in equity or by statute or
\notherwise. All costs incurred by Landlord in collecting any amounts and damages
\nowing by Tenant pursuant to the provisions of this Lease or to enforce any
\nprovision of this Lease, including reasonable attorneys’ fees from the date any
\nsuch matter is turned over to an attorney, whether or not one or more actions
\nare commenced by Landlord, will also be recoverable by Landlord from Tenant.<\/p>\n
25.6 Waiver of Redemption. Tenant waives any right of redemption
\narising as a result of Landlord’s exercise of its remedies under this Article
\n25.<\/p>\n
ARTICLE 26–PARKING<\/p>\n
Tenant will be entitled to use the Parking Spaces during the Term
\nsubject to the rules and regulations set forth on Exhibit D, and any amendments
\nor additions to them. The parking charges set forth in Section 1.1 (r), if any,
\nwill be due and payable in advance at the same time and place as Monthly Rent.
\nExcept for six reserved parking spaces described in Section 1.1(q) above, the
\nParking Spaces will be unassigned, non-reserved, and non-designated. Landlord
\nreserves the right to reasonably adjust the Parking Charges (based on the
\nprevailing rate for similar projects in the Phoenix metro area) in Landlord’s
\nsole discretion at any time after 30 days’ prior written notice.<\/p>\n
ARTICLE 27–MISCELLANEOUS<\/p>\n
27.1 No Offer. This Lease is submitted to Tenant on the
\nunderstanding that it will not be considered an offer and will not bind Landlord
\nin any way until Tenant has duly executed and delivered duplicate originals to
\nLandlord and Landlord has executed and delivered one of such originals to
\nTenant.<\/p>\n
27.2 Joint and Several Liability. If Tenant is composed of more
\nthan one signatory to this Lease, each signatory will be jointly and severally
\nliable with each other signatory for payment and performance according to this
\nLease. The act of, written notice to, written notice from, refund to, or
\nsignature of, any signatory to this Lease (including without limitation
\nmodifications of this Lease made by fewer than all such signatories) will bind
\nevery other signatory as though every other signatory had so acted, or received
\nor given the written notice or refund, or signed.<\/p>\n
27.3 No Construction Against Drafting Party. Landlord and Tenant
\nacknowledge that each of them and their counsel have had an opportunity to
\nreview this Lease and that this Lease will not be construed against Landlord
\nmerely because Landlord has prepared it.<\/p>\n
27.4 Time of the Essence. Time is of the essence of each and every
\nprovision of this Lease.<\/p>\n
27.5 No Recordation. Tenant’s recordation of this Lease or any
\nmemorandum or short form of it will be void and a default under this Lease.<\/p>\n
27.6 No Waiver. The waiver by Landlord of any agreement, condition
\nor provision contained in this Lease will not be deemed to be a waiver of any
\nsubsequent breach of the same or any other agreement, condition or provision
\ncontained in this Lease, nor will any custom or practice which may develop
\nbetween the parties in the administration of the terms of this Lease be
\nconstrued to waive or to lessen the right of Landlord to insist upon the
\nperformance by Tenant in strict accordance with the terms of this Lease. The
\nsubsequent acceptance of Rent by Landlord will not be deemed to be a waiver of
\nany preceding breach by Tenant of any agreement, condition nor provision of this
\nLease, other than the failure of Tenant to pay the particular Rent so accepted,
\nregardless of Landlord’s knowledge of such preceding breach at the time of
\nacceptance of such Rent.<\/p>\n
27.7 Limitation on Recourse. Tenant specifically agrees to look
\nsolely to Landlord’s interest in the Project for the recovery of any judgments
\nfrom Landlord. It is agreed that Landlord (and its shareholders, venturers, and
\npartners, and their shareholders, venturers and partners and all of their
\nofficers, directors and employees) will not be personally liable for any such
\njudgments. The provisions contained in the preceding sentences are not intended
\nto, and will not, limit any right that Tenant might otherwise have to obtain
\ninjunctive relief against Landlord or relief in any suit or action in connection
\nwith enforcement or collection of amounts which may become owing or payable
\nunder or on account of insurance maintained by Landlord.<\/p>\n
27.8 Estoppel Certificates. At any time and from time to time but
\nwithin 10 days after prior written request by Landlord, Tenant will execute,
\nacknowledge and deliver to Landlord, promptly upon request, a certificate
\ncertifying (a) that this Lease is unmodified and in full force and effect or, if
\nthere have been modifications, that this Lease is in full force and effect, as
\nmodified, and stating the date and nature of each modification; (b) the date, if
\nany, to which Rent and other sums payable under this Lease have been paid; (c)
\nthat no written notice of any default has been delivered to Landlord which
\ndefault has not been cured, except, as to defaults specified in said
\ncertificate; (d) there is no Event of Default under this Lease or an event
\nwhich,<\/p>\n
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\n 16
\nwith notice or the passage of time, or both, would result in an Event of Default
\nunder this Lease, except for defaults specified in said certificate; and (e)
\nsuch other matters as may be reasonably requested by Landlord. Any such
\ncertificate may be relied upon by any holder of a Superior Lien, prospective
\npurchaser, or existing or prospective mortgagee or beneficiary under any deed of
\ntrust of the Building or any part of the Project. Tenant’s failure to deliver
\nsuch a certificate within such time will be conclusive evidence of the matters
\nset forth in it.<\/p>\n
27.9 Waiver of Jury Trial. Landlord and Tenant by this Section 27.9
\nwaive trial by jury in any action, proceeding or counterclaim brought by either
\nof the parties to this Lease against the other on any matters whatsoever arising
\nout of or in any way connected with this Lease, the relationship of Landlord and
\nTenant, Tenant’s use or occupancy of the Premises, or any other claims (except
\nclaims for personal injury or property damage), and any emergency statutory or
\nany other statutory remedy.<\/p>\n
27.10 No Merger. The voluntary or other surrender of this Lease by
\nTenant or the cancellation of this Lease by mutual agreement of Tenant and
\nLandlord or the termination of this Lease on account of Tenant’s default will
\nnot work a merger, and will, at Landlord’s option, (a) terminate all or any
\nsubleases and subtenancies or (b) operate as an assignment to Landlord of all or
\nany subleases or subtenancies. Landlord’s option under this Section 27.10 will
\nbe exercised by written notice to Tenant and all known sublessees or subtenants
\nin the Premises or any part of the Premises.<\/p>\n
27.11 Holding Over. Tenant will have no right to remain in
\npossession of all or any part of the Premises after the expiration of the Term.
\nIf Tenant remains in possession of all or any part of the Premises after the
\nexpiration of the Term, with the express or implied consent of Landlord: (a)
\nsuch tenancy will be deemed to be a periodic tenancy from month-to-month only;
\n(b) such tenancy will not constitute a renewal or extension of this Lease for
\nany further term; and (c) such tenancy may be terminated by Landlord upon the
\nearlier of 30 days’ prior written notice or the earliest date permitted by law.
\nIn such event, Monthly Rent will be increased to an amount equal to 150% of the
\nMonthly Rent payable during the last month of the Term, and any other sums due
\nunder this Lease will be payable in the amount and at the times specified in
\nthis Lease. Such month-to-month tenancy will be subject to every other term,
\ncondition, and covenant contained in this Lease.<\/p>\n
27.12 Notices. Any notice, request, demand, consent, approval or
\nother communication required or permitted under this Lease must be in writing
\nand will be deemed to have been given when personally delivered, sent by
\nfacsimile with receipt acknowledged, deposited with any nationally recognized
\novernight carrier which routinely issues receipts, or deposited in any
\ndepository regularly maintained by the United States Postal Service, postage
\nprepaid, certified mail, return receipt requested, addressed to the party for
\nwhom it is intended at its address set forth in Section 1.1. Either Landlord or
\nTenant may add additional addresses or change its address for purposes of
\nreceipt of any such communication by giving 10 days’ prior written notice of
\nsuch change to the other party in the manner prescribed in this Section 27.12.<\/p>\n
27.13 Severability. If any provision of this Lease proves to be
\nillegal, invalid or unenforceable, the remainder of this Lease will not be
\naffected by such finding, and in lieu of each provision of this Lease that is
\nillegal, invalid or unenforceable, a provision will be added as a part of this
\nLease as similar in terms to such illegal, invalid or unenforceable provision as
\nmay be possible and legal, valid and enforceable.<\/p>\n
27.14 Written Amendment Required. No amendment, alteration,
\nmodification of or addition to the Lease will be valid or binding unless
\nexpressed in writing and signed by Landlord and Tenant. Tenant agrees to make
\nany modifications of the terms and provisions of this Lease required or
\nrequested by any lending institution providing financing for the Building, or
\nProject, as the case may be, provided that no such modifications will materially
\nadversely affect Tenant’s rights and obligations under this Lease.<\/p>\n
27.15 Entire Agreement. This Lease, the Exhibits and Addenda, if
\nany, contain the entire agreement between Landlord and Tenant. No promises or
\nrepresentations, except as contained in this Lease, have been made to Tenant
\nrespecting the condition or the manner of operating the Premises, the Building,
\nor the Project.<\/p>\n
27.16 Captions. The captions of the various Articles and Sections of
\nthis Lease are for convenience only and do not necessarily define, limit,
\ndescribe or construe the contents of such Articles or Sections.<\/p>\n
27.17 Notice of Landlord’s Default. In the event of any alleged
\ndefault in the obligation of Landlord under this Lease, Tenant will deliver to
\nLandlord written notice listing the reasons for Landlord’s default and Landlord
\nwill have 30 days following receipt of such notice to cure such alleged default
\nor, in the event the alleged default cannot reasonably be cured within a 30-day
\nperiod, to commence action and proceed diligently to cure such alleged default.
\nIf Landlord fails to timely cure such default, then Tenant shall have the right
\nto exercise its rights to either terminate the Lease, sue for specific
\nperformance, or sue for actual damages, but not for consequential damages. A
\ncopy of such notice to Landlord will be sent to any holder of a mortgage or
\nother encumbrance on the Building or Project of which Tenant has been notified
\nin writing, and any such holder will also have the same time periods to cure
\nsuch alleged default.<\/p>\n
27.18 Authority. Tenant and the party executing this Lease on behalf
\nof Tenant represent to Landlord that such party is authorized to do so by
\nrequisite action of the board of directors, or partners, as the case may be, and
\nagree upon request to deliver to Landlord a resolution or similar document to
\nthat effect,<\/p>\n
27.19 Brokers. Landlord and Tenant respectively represent and
\nwarrant to each other that neither of them has consulted or negotiated with any
\nbroker or finder with regard to the Premises except the Broker named in Section
\n1.1 and Tenant’s broker. Each of them will indemnify the other against and hold
\nthe other harmless from any claims for fees or commissions from anyone with whom
\neither of them has consulted or<\/p>\n
-16-
\n 17
\nnegotiated with regard to the Premises except Broker and Tenant’s broker.
\nLandlord will pay any fees or commissions due Broker. Tenant shall be
\nresponsible for paying Tenant’s broker any commission.<\/p>\n
27.20 Governing Law. This Lease will be governed by and construed
\npursuant to the laws of the State in which the Project is located.<\/p>\n
27.21 Late Payments. Any Rent which is not paid within 5 days after
\ndue will accrue interest at a late rate charge of the Prime Rate plus 5% per
\nannum (but in no event in an amount in excess of the maximum rate allowed by
\napplicable law) from the date on which it was due until the date on which it is
\npaid in full with accrued interest.<\/p>\n
27.22 No Easements for Air or Liqht. Any diminution or shutting off
\nof light, air or view by any structure which may be erected on lands adjacent to
\nthe Building will in no way affect this Lease or impose any liability on
\nLandlord.<\/p>\n
27.23 Tax Credits. Landlord is entitled to claim all tax credits and
\ndepreciation attributable to Landlord’s leasehold improvements in the Premises.
\nPromptly after Landlord’s demand, Landlord and Tenant will prepare a detailed
\nlist of the leasehold improvements and fixtures and their respective costs for
\nwhich Landlord or Tenant has paid. Landlord will be entitled to all credits and
\ndepreciation for those items for which Landlord has paid by means of any tenant
\nfinish allowance or otherwise. Tenant will be entitled to any tax credits and
\ndepreciation for all items for which Tenant has paid with funds not provided by
\nLandlord.<\/p>\n
27.24 Relocation of the Premises. Landlord at its sole cost and
\nexpense, reserves the right to relocate the Premises to substantially comparable
\nspace within the Building, pursuant to this Section 27.24. Landlord will give
\nTenant a written notice of its intention to relocate the Premises, and Tenant
\nwill complete such relocation within 60 days after receipt of such written
\nnotice. If the space to which Landlord proposes to relocate Tenant is not
\nsubstantially comparable to the Premises, Tenant may so notify Landlord, and if
\nLandlord fails to offer space satisfactory to Tenant, Landlord may not relocate
\nthe Tenant. If Tenant does relocate within the Project, then effective on the
\ndate of such relocation this Lease will be amended by deleting the description
\nof the original Premises and substituting for it a description of such
\ncomparable space. Landlord agrees to reimburse Tenant for its actual reasonable
\nmoving costs to such other space within the Project, the reasonable costs of
\nreprinting stationery, and the costs of rewiring the new Premises for telephone
\nand computers comparable to the original Premises. Landlord will use best
\nefforts to minimize any disruption to tenant’s business.<\/p>\n
27.25 Financial Reports. Within 15 days after Landlord’s request,
\nTenant will furnish Tenant’s most recent audited financial statements (including
\nany notes to them) to Landlord, or, if no such audited statements have been
\nprepared, such other financial statements (and notes to them) as may have been
\nprepared by an independent certified public accountant, or, failing those,
\nTenant’s internally prepared financial statements. Tenant will discuss its
\nfinancial statements with Landlord and will give Landlord access to Tenant’s
\nbooks and records in order to enable Landlord to verify the financial
\nstatements. Landlord will not disclose any aspect of Tenant’s financial
\nstatements which Tenant designates to Landlord as confidential except (a) to
\nLandlord’s lenders or prospective purchasers of the Project, (b) in litigation
\nbetween Landlord and Tenant, and (c) if required by court order.<\/p>\n
27.26 Landlord’s Fees. Whenever Tenant requests Landlord to take any
\naction or give any consent required or permitted under this Lease, Tenant will
\nreimburse Landlord for all of Landlord’s reasonable costs incurred in reviewing
\nthe proposed action or consent, including, without limitation, reasonable
\nattorneys’, engineers’ or architects’ fees, within 10 days after Landlord’s
\ndelivery to Tenant of a statement of such costs. Tenant will be obligated to
\nmake such reimbursement without regard to whether Landlord consents to any such
\nproposed action.<\/p>\n
27.27 Disputes. Any claim, controversy or dispute, whether sounding
\nin contract, statute, tort, fraud, misrepresentation or other legal theory,
\nrelated directly or indirectly to this Agreement, whenever brought and whether
\nbetween the parties to this Agreement or between the parties to this Agreement
\nor between one of the parties to this Agreement and the employees, agents or
\naffiliated businesses of the other party, shall be resolved by arbitration as
\nprescribed in this section. The Federal Arbitration Act, 9 U.S.C. Sections 1-15,
\nnot state law, shall govern the arbitrability of all claims.<\/p>\n
A single arbitrator engaged in the practice of law who is
\nknowledgeable about the subject matter of this Agreement shall conduct the
\narbitration under the then current rules of the American Arbitration Association
\n(the “AAA”). The arbitrator shall be selected in accordance with AAA procedures
\nfrom a list of qualified people maintained by the AAA. The arbitration shall be
\nconducted in the regional AAA office closest to where the claim arose, and all
\nexpedited procedures prescribed by the AAA rules shall apply.<\/p>\n
There shall be no discovery other than the exchange of
\ninformation which is provided to the arbitrator by the parties. The arbitrator
\nshall have authority only to award compensatory damages and shall not have
\nauthority to award punitive damages, or other noncompensatory damages. Each
\nparty shall bear its own costs and attorneys’ fees, and the parties shall share
\nequally the fees and expenses of the arbitrator. The arbitrator’s decision and
\naward shall be final and binding, and judgment on the award rendered by the
\narbitrator may be entered in any court having jurisdiction thereof.<\/p>\n
If any party files a judicial or administrative action
\nasserting claims subject to arbitration as prescribed herein, and another party
\nsuccessfully stays such action or compels arbitration of said claims, the<\/p>\n
-17-
\n 18
\nparty filing said action shall pay the other party’s costs and expenses incurred
\nin seeking such stay or compelling arbitration, including reasonable attorneys’
\nfees.<\/p>\n
27.28 Binding Effect. The covenants, conditions and agreements
\ncontained in this Lease will bind and inure to the benefit of Landlord and
\nTenant and their respective heirs, distributees, executors, administrators,
\nsuccessors, and, except as otherwise provided in this Lease, their assigns.<\/p>\n
27.29 OPTION TO RENEW. (a) Option Period. So long as Tenant is not
\nin default under this Lease, either at the time of exercise or at the time the
\nextended term commences, Tenant will have the option to extend the initial term
\nof this Lease for an additional period of five years, but in no event beyond May
\n31, 2007, (the “Option Period”) on the same terms, covenants, and conditions of
\nthis Lease, except that the monthly rent during the Option Period will be
\ndetermined pursuant to paragraph 27.29(b). Tenant will exercise its option by
\ngiving Landlord written notice (“Option Notice”) at least 180 days but not more
\nthan 270 days prior to the expiration of the initial term of this Lease.<\/p>\n
(b) Option Period Monthly Rent. The monthly rent for the
\nOption Period will be determined as follows:<\/p>\n
(1) The then-fair market rental value of the
\nPremises, as defined in paragraph 27.29(b)(2) below, or the current Monthly
\nRent, whichever is greater.<\/p>\n
(2) The “then-fair market rental value of the
\nPremises” means what a landlord under no compulsion to lease the Premises and a
\ntenant under no compulsion to lease the Premises would determine as rent
\n(including initial monthly rent and rental increase) for the Option Period,
\nexcluding any tenant improvement allowance, as of the commencement of the Option
\nPeriod, taking into consideration the uses permitted under this Lease, the
\nquality, size, design and location of the Premises, and the rent for comparable
\nbuildings located in the vicinity of Phoenix. The then-fair market rental value
\nof the Premises and the rental increases in the monthly rent for the Option
\nPeriod will not be less than that provided during the initial term,<\/p>\n
(3) Within 30 days after receiving written
\nnotice from Tenant of its intent to exercise this option, Landlord shall
\ndetermine the then fair market value of the Premises, and advise Tenant in
\nwriting.<\/p>\n
27.30 EXPANSION SPACE OPTION: If the tenant of either of the
\npremises known as Suites 150 or 165, adjacent to the Premises (either space
\nshall be known as the “Expansion Space”), shall vacate or surrender its premises
\nto Landlord during the term of this Lease, and if Tenant is not in default under
\nthis Lease, then Landlord shall offer the Expansion Space to Tenant on the same
\nterms and conditions as this Lease, except as noted herein regarding monthly
\nrent and Tenant’s Share. The Monthly Rent will be the monthly rent per rentable
\nsquare foot of the Premises in effect on the date on which the Expansion Space
\nbecomes part of the Premises. The Monthly Rent will be increased as of the day
\non which the Expansion Space becomes part of the Premises by an amount equal to
\nthe product of (1) the number of rentable square feet of the Expansion Space
\nmultiplied by (2) the Monthly Rent per rentable square foot of the Premises in
\neffect on the day on which the Expansion Space becomes part of the Premises.
\nTenant’s Share shall be increased as of the day on which any Expansion Space
\nbecomes part of the Premises to a percentage determined by adding the Rentable
\nArea of the Expansion Space to the Rentable Area of the Premises, and dividing
\nsaid product by the total Rentable Area of the Building. If Tenant does not
\nexercise this option to expand in writing within 30 days after Landlord offers
\nthe Expansion Space to Tenant, then this option shall expire as to the space
\noffered. If Tenant exercises this option timely, then the Lease shall be amended
\nto incorporate the Expansion Space into the Premises. If Tenant is offered the
\nExpansion Space and exercises its option in writing as to one of the adjacent
\nsuites prior to January 1, 2000, Landlord shall provide tenant with a tenant
\nimprovement allowance in an amount equal to $5.50 per rentable square foot for
\nthe first adjacent suite to which Tenant exercises this option. This tenant
\nimprovement allowance shall not apply to any subsequent exercise of this
\nexpansion option. Any additional alterations to the Expansion Space or exercise
\nof this option as to a second adjacent suite will be at the sole cost and
\nexpense of Tenant and subject to the alterations provisions of the Lease,<\/p>\n
27.31 EXTERIOR SIGNAGE: Landlord agrees to provide tenant space for
\nsignage on the Building’s monument sign. Tenant’s sign is subject to the
\napproval of Landlord. Tenant shall be responsible for all costs associated with
\nplacing Tenant’s sign on the Building monument sign.<\/p>\n
Landlord and Tenant have executed this Lease as of the day and year
\nfirst above written.<\/p>\n
LANDLORD:<\/p>\n
U S WEST BUSINESS RESOURCES, INC., a Colorado
\n corporation<\/p>\n
By \/s\/ ILLEGIBLE SIGNATURE
\n Name ILLEGIBLE
\n Title Attorney-In-Fact<\/p>\n
-18-
\n 19
\nAPPROVED AS TO LEGAL FORM by
\nCounsel to Landlord:<\/p>\n
Fisher & Sweetbaum, P.C.<\/p>\n
By \/s\/ ILLEGIBLE SIGNATURE
\nDate
\n TENANT:<\/p>\n
P.F. CHANG’S CHINA BISTRO, INC., a Delaware
\n corporation<\/p>\n
By \/s\/ ILLEGIBLE SIGNATURE
\n Name
\n Title<\/p>\n
-19-
\n 20
\n EXHIBIT A
\n THE PREMISES<\/p>\n
EXHIBIT A
\n THE PREMISES<\/p>\n
To be provided by Landlord prior to execution.
\n 21
\n EXHIBIT B<\/p>\n
LEGAL DESCRIPTION OF THE LAND<\/p>\n
PARCEL NO. 1:<\/p>\n
BEGINNING at the Northeast corner of the Southeast quarter of the Southeast
\nquarter of Section 13, Township 2 North, Range 3 East of the Gila and Salt
\nRiver Base and Meridian, Maricopa County, Arizona; thence North 89 degrees 55′
\n58″ West along the North line of said Southeast quarter of the Southeast
\nquarter, 40 feet to the TRUE POINT OF BEGINNING; thence South, 40 feet West of
\nand parallel to the East line of said Southeast quarter of the Southeast
\nquarter, 400 feet; thence North 73 degrees 30′ 00″ West 400 feet; thence North
\n16 degrees 30′ 00″ East 299.06 feet to a point on the North line of said
\nSoutheast quarter of the Southeast quarter; thence South 89 degrees 55′ 58″
\nEast along said North line 298.59 feet to the TRUE POINT OF BEGINNING.<\/p>\n
PARCEL NO. 2:<\/p>\n
A non-exclusive easement for pedestrian and vehicle ingress and egress as
\ncreated in Docket 15938, page 464, records of Maricopa County, Arizona,
\ndescribed as follows:<\/p>\n
That part of the Southeast quarter of the Southeast quarter of Section 13,
\nTownship 2 North, Range 3 East of the Gila and Salt River Base and Meridian,
\nMaricopa County, Arizona, described as follows:<\/p>\n
FROM the Northeast corner of the said Southeast quarter of the Southeast
\n quarter of Section 13, measure; thence North 89 degrees 55′ 56″ West along
\n the North line of the said Southeast quarter of the Southeast quarter,
\n Section 13, a distance of 40.00 feet to a point on the West right-of-way
\n line of 40th Street; thence South (bearing of reference) along the West
\n right-of-way line of 40th Street a distance of 426.00 feet to the POINT OF
\n BEGINNING; thence continuing South 40.00 feet to the end of a curve having
\n a radius point bearing North 140.00 feet; thence Westerly 59.01 feet along
\n the arc of this curve through 24 degrees 09′ 00″ of central angle; thence
\n North 67 degrees 26′ 28″ West 36.01 feet; thence North 65 degrees 51′ 00″
\n West 57.00 feet to the beginning of a curve having point bearing South 24
\n degrees 09′ 00″ West 369.00 feet; thence Westerly 108.09 feet along the
\n arc of this curve through 16 degrees 47′ 00″ of central angle; thence
\n North 82 degrees 38′ 00″ West 17.18 feet to the beginning of a curve
\n having a radius point bearing North 07 degrees 22′ 00″ East 1,839.00 feet;
\n thence Westerly 148.47 feet along the arc of this curve through 04 degrees
\n 37′ 33″ of central angle to a point of a compound curve having a radius
\n point bearing North 11 degrees 59′ 33″ East 918.00 feet thence Westerly
\n 36.42 feet along the arc of this curve through 02 degrees 16′ 23″ of
\n central angle to a point of a reverse curve having a radius point bearing
\n South 14 degrees 15′ 56″ West 10.00 feet; thence Southerly 15.32 feet
\n along the arc of this curve through 87 degrees 45′ 56″ of central angle;
\n thence South 89 degrees 26′ 28″ West 31.38 feet to a point at the end of a
\n curve having a radius point bearing North 73 degrees 30′ 00″ West 10.00
\n feet; thence Northerly 15.71 feet along the arc of this curve through 90
\n degrees 00′ 00″ of central angle; thence North 73 degrees 30′ 00″ West
\n 6.98 feet; thence North 16 degrees 30′ 00″ East 28.00 feet to a point at
\n the end of a curve having a radius point bearing North 16 degrees 30′ 00″
\n East 10.00 feet; thence Northeasterly 20.54 feet along the arc of this
\n curve through 117 degrees 42′ 00″ of central angle; thence North 11
\n degrees 12′ 00″ West 5.77 feet to the beginning of a curve having a radius
\n point bearing South 78 degrees 48′ 00″ West 7.00 feet; thence
\n Northwesterly 2.19 feet along the arc of this curve through 17 degrees 53′
\n 05″ of central angle; thence South 73 degrees 30′ 00″ East 39.37 feet to a
\n point on a curve having thence Easterly 18.95 feet along the arc of this
\n curve through 30 degrees 09′ 32″ of central angle to a point of a compound
\n curve having a radius point bearing North 13 degrees 47′ 15″ East 882.00
\n feet; thence Easterly 35.80 feet along the arc of this <\/p>\n
22
\n curve through 02 degrees 19′ 33″ of central angle to a point of a compound
\n curve having a radius point bearing North 11 degrees 27′ 42″ East 15.00
\n feet; thence Northeasterly 22.24 feet along the arc of this curve through
\n 84 degrees 57′ 42″ of central angle; thence North 16 degrees 30′ 00″ East
\n 26.65 feet; thence South 73 degrees 30′ 00″ East 28.00 feet; thence South
\n 16 degrees 30′ 00″ West 22.40 feet to the beginning of a curve having a
\n radius point bearing South 73 degrees 30′ 00″ East 10.00 feet; thence
\n Southeasterly 17.30 feet along the arc of this curve through 99 degrees
\n 08′ 00″ of central angle; thence South 82 degrees 38′ 00″ East 100.36 feet
\n to the beginning of a curve having a radius point bearing South 07 degrees
\n 22′ 00″ West 411.00 feet; thence Easterly 120.39 feet along the arc of
\n this curve through 16 degrees 47′ 00″ of central angle; thence South 65
\n degrees 51′ 00″ East 29.00 feet to the beginning of a curve having a
\n radius point bearing North 24 degrees 09′ 00″ East 10.00 feet; thence
\n Northeasterly 17.04 feet along the arc of this curve through 97 degrees
\n 39′ 00″ of central angle; thence North 16 degrees 30′ 00″ East 8.73 feet;
\n thence South 73 degrees 30′ 00″ East 32.00 feet; thence South 16 degrees
\n 30′ 00″ West 16.73 feet to the beginning of a curve having a radius point
\n bearing South 73 degrees 30′ 00″ East 10.00 feet; thence Southeasterly
\n 14.37 feet along the arc of this curve through 82 degrees 21′ 00″ of
\n central angle; thence South 65 degrees 51′ 00″ East 11.40 feet to the
\n beginning of a curve having a radius point bearing North 24 degrees 09′
\n 00″ East 100.00 feet; thence Easterly 42.15 feet along the arc of this
\n curve through 24 degrees 09′ 00″ of central angle to the POINT OF
\n BEGINNING.<\/p>\n
23<\/p>\n
EXHIBIT C<\/p>\n
WORK LETTER<\/p>\n
This Work Letter is dated January , 1997, between U S WEST BUSINESS
\nRESOURCES, INC. (“Landlord”) and P.F. CHANG’S CHINA BRISTRO, INC. (“Tenant”),
\nand is attached to and forms a part of that certain Office Lease of even date
\n(the “Lease”), whereby Landlord leased to Tenant 4,410 rentable square feet in
\nthe building located at 5090 North 40th Street, Phoenix, Arizona (the
\n“Premises”).<\/p>\n
Tenant desires to make certain improvements to the Premises, and Tenant
\ndesires to hire its own architect and contractors to manage the construction of
\nsuch initial improvements, prior to occupancy, upon the terms and conditions of
\nthis Work Letter. In addition, the provisions hereof shall apply to any
\nadditional improvements or alterations to the Premises by Tenant, and Landlord
\nhas agreed to allow such initial improvements, upon the terms and conditions
\ncontained in this Work Letter.<\/p>\n
1. Definitions. In this Work Letter, some defined terms are used.
\nThey are:<\/p>\n
(a) Tenant’s Representative: John Middleton<\/p>\n
(b) Landlord’s Representative: Mike Reynard<\/p>\n
(c) Final Space Plan: A drawing of the Premises clearly
\nshowing the layout and relationship of all departments and offices, depicting
\npartitions, door locations, and types of electrical\/data\/telephone outlets and
\ndelineation of furniture and equipment,<\/p>\n
(d) Estimated Construction Costs: A preliminary estimate
\nof the cost for the improvements that are depicted on the Final Space Plan,
\nincluding all architectural, engineering, contractor, and any other costs as can
\nbe determined from the Final Space Plan.<\/p>\n
(e) Working Drawings: Construction documents detailing
\nthe improvements and conforming to applicable codes, complete in form and
\ncontent.<\/p>\n
(f) Construction Schedule: A schedule depicting the
\nrelative time frames for various activities related to the construction of the
\nimprovements in the Premises.<\/p>\n
(g) Work: The Work is inclusive of the following:<\/p>\n
(l) The development of Final Space Plans and
\nWorking Drawings, including, without limitation, architectural and engineering
\nfees and expenses, and costs of supporting engineering studies (i.e., structural
\ndesign or analysis, lighting or acoustical evaluations, or others as determined
\nby Tenant’s architect).<\/p>\n
(2) All construction work necessary to augment
\nthe Base Building, creating the details and partitioning shown on the Final
\nSpace Plan. The Work will create finished ceilings, walls, and floor surfaces,
\nas well as complete HVAC, lighting, electrical, and fire protection systems.<\/p>\n
(h) Costs of the Work: The Costs of the Work includes,
\nbut is not limited to, the following:<\/p>\n
(l) All architectural and engineering fees and
\nexpenses.<\/p>\n
(2) All contractor and construction manager
\ncosts and fees.<\/p>\n
(3) All permits and taxes.<\/p>\n
(i) Change Order: Any change, modification, or addition
\nto the Final Space Plan or Working Drawings after Landlord has approved the
\nsame.<\/p>\n
(j) Base Building: Those elements of the core and shell
\nconstruction that are completed in preparation for the Work to the Premises.
\nThis includes Building structure, envelope, and systems. This defines the
\nexisting conditions to which improvements are added.<\/p>\n
(k) Building Standard: Component elements utilized in the
\ndesign and construction of the improvements that have been pre-selected by the
\nLandlord to ensure uniformity of quality, function, and appearance throughout
\nthe Building. These elements include, but are not limited to, ceiling systems,
\ndoors, hardware, walls, floor coverings, finishes, window coverings, light
\nfixtures, and HVAC components.<\/p>\n
Any of the capitalized terms which is used in this Work Letter but not defined
\nin this Work Letter has the meaning set forth for such term in the Lease.<\/p>\n
2. Representatives. Landlord appoints Landlord’s Representative
\nto act for Landlord in all matters covered by this Work Letter. Tenant appoints
\nTenant’s Representative to act for Tenant in all matters covered by this Work
\nLetter. All inquiries, requests, instructions, authorizations and other
\ncommunications with respect to the matters covered by this Work Letter will be
\nmade to Landlord’s Representative or Tenant’s Representative, as the case may
\nbe. Either party may change its Representative under this Work Letter at any
\ntime by providing 3 days’ prior written notice to the other party.<\/p>\n
(C-1)
\n 24
\n 3. Building Standard. Tenant must use Building Standard items in
\norder to assure the consistent quality and appearance of the Building.<\/p>\n
(a) All Work will be performed by designers, contractors
\nand subcontractors selected and engaged by Tenant. Tenant’s contractor and all
\nsubcontractors shall be subject to Landlord’s written approval, which shall not
\nbe unreasonably withheld.<\/p>\n
(b) Landlord shall receive no fee during construction or
\nmove-in for profit, overhead, general conditions, construction supervision,
\ndrawing review, freight elevator, utilities, parking or other similar
\nmiscellaneous costs.<\/p>\n
4. Cost Responsibilities. Landlord agrees that it will contribute
\nup to $7.00 per usable square foot which equals $30,870.00 (such amount is
\nsometimes herein after referred to as the “Construction Allowance”) toward the
\ncost of constructing and installing the Tenant Improvements, which amount will
\nbe payable within 30 days from the date the Work is completed in accordance with
\nthe terms of this Lease and Tenant has submitted to Landlord a written statement
\nrequesting such payment, providing that at the time of such request and
\nscheduled payment:<\/p>\n
a) Tenant is not in default under this Lease;<\/p>\n
b) No liens have been filed and appropriate waivers,
\naffidavits and releases of liens will have been received by Landlord covering
\nall work for which payment is requested or the time for filing liens has
\nexpired;<\/p>\n
c) The certificate of occupancy for the Premises has
\nbeen issued;<\/p>\n
d) Tenant’s architect has certified in writing to
\nLandlord that the Work has been completed in substantial accordance with
\nTenant’s Drawings and with applicable law, ordinances, rules, regulations and
\ncodes.<\/p>\n
5. Landlord’s Approval. Landlord, in its sole, but reasonable
\ndiscretion, may withhold its approval of any Final Space Plan, Working Drawings,
\nor Change Orders, and may consider, among other things, whether any of the same:<\/p>\n
(a) Exceeds or adversely affects the structural integrity
\nof the Building, or any part of the heating, ventilating, air conditioning,
\nplumbing, mechanical, electrical, communication or other systems of the
\nBuilding;<\/p>\n
(b) Would not be approved by a prudent owner of property
\nsimilar to the Building;<\/p>\n
(c) Violates any agreement which affects the Project or
\nbinds Landlord;<\/p>\n
(d) Landlord reasonably believes will increase the cost
\nof operation or maintenance of any of the systems of the Project;<\/p>\n
(e) Landlord reasonably believes will reduce the market
\nvalue of the Premises or the Project at the end of the Term;<\/p>\n
(f) Does not conform to applicable building code or is
\nnot approved by any governmental authority with jurisdiction over the Premises;<\/p>\n
(g) Does not conform to the Building Standard; or<\/p>\n
(h) Is not approved by any holder of a mortgage or other
\nsuperior lien (“Superior Lien”) at the time the work is proposed, unless such
\napproval is not required under the documents evidencing the applicable Superior
\nLien, or is contained in any agreement now or hereafter executed by such
\nSuperior Lien holder.<\/p>\n
6. Schedule of Improvement Activities.<\/p>\n
(a) After Landlord’s approval of the Final Space Plan,
\nTenant will cause to be prepared and delivered to Landlord the Working Drawings,
\nand the Construction Schedule, in accordance with the Final Space Plan for
\nLandlord’s review,<\/p>\n
(b) Following approval of the Working Drawings, Tenant
\nwill cause application to be made to the appropriate governmental authorities
\nfor necessary approvals and building permits. Within a reasonable time after its
\nreceipt of the necessary approvals and permits, Tenant will begin construction
\nof the improvements.<\/p>\n
(c) Landlord will join in, and will use best efforts to
\ncause the joinder in, to the extent necessary, of all parties holding Superior
\nLiens, all applications and other documents required for Tenant to obtain all
\npermits necessary for its intended use of the Premises (including, but not
\nlimited to, any rezoning application.)<\/p>\n
(C-2)
\n 25
\n 7. Change Orders. Tenant may authorize changes in the Work during
\nconstruction, only by written instructions to Landlord’s Representative on a
\nform approved by Landlord. All such changes will be subject to Landlord’s prior
\nwritten approval in accordance with Paragraph 5.<\/p>\n
8. Access to Premises and Conduct of Work. During the
\nconstruction period, Tenant and its contractors and subcontractors shall have
\n24-hour access to the Building’s freight elevator and to the Premises, subject
\nto Landlord’s reasonable generally applicable requirements relating thereto, and
\nshall be provided electrical power and other utilities sufficient for completion
\nof Work.<\/p>\n
9. Completion and Commencement Date. Tenant’s obligation for
\npayment of Rent pursuant to the Lease will commence on the Commencement Date,
\nregardless of whether the Work has been completed.<\/p>\n
11. Condition of the Premises. Except as otherwise provided in the
\nLease, Tenant acknowledges that neither Landlord nor its agents or employees
\nhave made any representations or warranties as to the suitability or fitness of
\nthe Premises for the conduct of Tenant’s business or for any other purpose, nor
\nhas Landlord or its agents or employees agreed to undertake any alterations or
\nconstruct any tenant improvements to the Premises.<\/p>\n
12. Disclaimer of Liability. Landlord’s approval of the Final
\nSpace Plan, other plans, specifications and the Working Drawings shall create no
\nresponsibility or liability on the part of Landlord for the completeness, design
\nsufficiency, or compliance with laws, rules and regulations of governmental
\nagencies or authorities with respect to such plans, specifications and Working
\nDrawings or improvements constructed in conformity therewith. Tenant shall be
\nsolely responsible for ensuring that the design and improvements of the interior
\nof the Premises comply with the Americans with Disabilities Act and Tenant shall
\nindemnify and hold harmless Landlord in connection therewith.<\/p>\n
13. Landlord’s Approval. All approvals by Landlord under this Work
\nLetter shall be granted or withheld, in Landlord’s reasonable discretion, within
\n3 business days after request for each such approval is made.<\/p>\n
(C-3)
\n 26
\n EXHIBIT D<\/p>\n
RULES AND REGULATIONS<\/p>\n
1. Landlord may from time to time adopt appropriate systems and
\nprocedures for the security or safety of the Building, any persons occupying,
\nusing or entering the Building, or any equipment, finishing or contents of the
\nBuilding, and Tenant will comply with Landlord’s reasonable requirements
\nrelative to such systems and procedures.<\/p>\n
2. The sidewalks, halls, passages, exits, entrances, elevators,
\nand stairways of the Building will not be obstructed by any tenants or used by
\nany of them for any purpose other than for ingress to and egress from their
\nrespective premises. The halls, passages, exits, entrances, elevators,
\nescalators and stairways are not for the general public, and Landlord will in
\nall cases retain the right to control and prevent access to such halls,
\npassages, exits, entrances, elevators and stairways of all persons whose
\npresence in the judgment of Landlord would be prejudicial to the safety,
\ncharacter, reputation and interests of the Building and its tenants, provided
\nthat nothing contained in these Rules and Regulations will be construed to
\nprevent such access to persons with whom any tenant normally deals in the
\nordinary course of its business, unless such persons are engaged in illegal
\nactivities. No tenant and no employee or invitee of any tenant will go upon the
\nroof of the Building except such roof or portion of such roof as may be
\ncontiguous to the premises of a particular tenant and may be designated in
\nwriting by Landlord as a roof deck or roof garden area. No tenant will be
\npermitted to place or install any object (including, without limitation, radio
\nand television antenna, loud speakers, sound amplifiers, microwave dishes, solar
\ndevices, or similar devices) on the exterior of the Building or on the roof of
\nthe Building.<\/p>\n
3. No sign, placard, picture, name, advertisement or written
\nnotice visible from the exterior of Tenant’s premises will be inscribed,
\npainted, affixed or otherwise displayed by Tenant on any part of the Building or
\nthe Premises without the prior written consent of Landlord. Landlord will adopt
\nand furnish to Tenant general guidelines relating to signs inside the Building
\non the office floors. Tenant agrees to conform to such guidelines. All approved
\nsigns or lettering on doors will be printed, painted, affixed or inscribed at
\nthe expense of the tenant by a person approved by Landlord. Other than draperies
\nexpressly permitted by Landlord and building standard mini-blinds, material
\nvisible from outside the Building will not be permitted. In the event of the
\nviolation of this Rule by Tenant, Landlord may remove the violating items
\nwithout any liability, and may charge the expense incurred by such removal to
\nthe tenant or tenants violating this Rule.<\/p>\n
4. No cooking will be done or permitted by any tenant on the
\nPremises, except in areas of the Premises which are specially constructed for
\ncooking and except that use by the tenant of microwave ovens and Underwriters’
\nLaboratory approved equipment for brewing coffee, tea, hot chocolate and similar
\nbeverages will be permitted, provided that such use is in accordance with all
\napplicable federal, state and city laws, codes, ordinances, rules and
\nregulations.<\/p>\n
5. No tenant will employ any person or persons other than the
\ncleaning service of Landlord for the purpose of cleaning the Premises, unless
\notherwise agreed to by Landlord in writing. Except with the written consent of
\nLandlord, no person or persons other than those approved by Landlord will be
\npermitted to enter the Building for the purpose of cleaning it. No tenant will
\ncause any unnecessary labor by reason of such tenant’s carelessness or
\nindifference in the preservation of good order and cleanliness. Should Tenant’s
\nactions result in any increased expense for any required cleaning, Landlord
\nreserves the right to assess Tenant for such expenses.<\/p>\n
6. The toilet rooms, toilets, urinals, wash bowls and other
\nplumbing fixtures will not be used for any purposes other than those for which
\nthey were constructed, and no sweepings, rubbish, rags, or other foreign
\nsubstances will be thrown in such plumbing fixtures. All damages resulting from
\nany misuse of the fixtures will be borne by the tenant who, or whose servants,
\nemployees, agents, visitors or licensees, caused the same.<\/p>\n
7. No tenant will in any way deface any part of the Premises or
\nthe Building of which they form a part. In those portions of the Premises where
\ncarpet has been provided directly or indirectly by Landlord, Tenant will at its
\nown expense install and maintain pads to protect the carpet under all furniture
\nhaving casters other than carpet casters,<\/p>\n
8. No tenant will alter, change, replace or rekey any lock or
\ninstall a new lock or a knocker on any door of the Premises. Landlord, its
\nagents or employees, will retain a pass (master) key to all door locks on the
\nPremises. Any new door locks required by Tenant or any change in keying of
\nexisting locks will be installed or changed by Landlord following Tenant’s
\nwritten request to Landlord and will be at Tenant’s expense. All new locks and,
\nrekeyed locks will remain operable by Landlord’s pass (master) key. Landlord
\nwill furnish each Tenant, free of charge, with two keys to each door lock on the
\nPremises, and two (2) Building\/area access cards. Landlord will have the right
\nto collect a reasonable charge for additional keys and cards requested by any
\ntenant. Each tenant, upon termination of its tenancy, will deliver to Landlord
\nall keys and access cards for its premises and Building which have been
\nfurnished to such tenant.<\/p>\n
9. The elevator designated for freight by Landlord will be
\navailable for use by all tenants in the Building during the hours and pursuant
\nto such procedures as Landlord may determine from time to time. The persons
\nemployed to move Tenant’s equipment, material, furniture or other property in or
\nout of the Building must be acceptable to Landlord. The moving company must be a
\nlocally recognized professional mover, whose primary business is the performing
\nof relocation services, and must be bonded and fully insured. A certificate or
\nother verification of such insurance must be received and approved by Landlord
\nprior to the start of any moving operations. Insurance must be sufficient in
\nLandlord’s sole opinion, to cover all personal liability, theft<\/p>\n
(D-1)
\n 27
\nor damage to the Project, including, but not limited to, floor coverings, doors,
\nwalls, elevators, stairs, foliage and landscaping. Special care must be taken to
\nprevent damage to foliage and landscaping during adverse weather. All moving
\noperations will be conducted at such times and in such a manner as Landlord will
\ndirect, and all moving will take place during non-business hours unless Landlord
\nagrees in writing otherwise. Tenant will be responsible for the provision of
\nBuilding security during all moving operations, and will be liable for all
\nlosses and damages sustained by any party as a result of the failure to supply
\nadequate security. Landlord will have the right to prescribe the weight, size
\nand position of all equipment, materials, furniture or other property brought
\ninto the Building. Heavy objects will, if considered necessary by Landlord,
\nstand on wood strips of such thickness as is necessary to properly distribute
\nthe weight. Landlord will not be responsible for loss of or damage to any such
\nproperty from any cause, and all damage done to the Building by moving or
\nmaintaining such property will be repaired at the expense of Tenant. Landlord
\nreserves the right to inspect all such property to be brought into the Building
\nand to exclude from the Building all such property which violates any of these
\nRules and Regulations or the Lease of which these Rules and Regulations are a
\npart. Supplies, goods, materials, packages, furniture and all other items of
\nevery kind delivered to or taken from the Premises will be delivered or removed
\nthrough the entrance and route designated by Landlord, and Landlord will not be
\nresponsible for the loss or damage of any such property unless such loss or
\ndamage results from the negligence of Landlord, its agents or employees.<\/p>\n
10. No tenant will use or keep in the Premises or the Building any
\nkerosene, gasoline or inflammable or combustible or explosive fluid or material
\nor chemical substance other than limited quantities of such materials or
\nsubstances reasonably necessary for the operation or maintenance of office
\nequipment or limited quantities of cleaning fluids and solvents required in such
\ntenant’s normal operations in the Premises. Without Landlord’s prior written
\napproval, no tenant will use any method of heating or air conditioning other
\nthan that supplied by Landlord. No tenant will use or keep or permit to be used
\nor kept any foul or noxious gas or substance in the Premises.<\/p>\n
11. Landlord will have the right, exercisable upon written notice
\nand without liability to any tenant, to change the name and street address of
\nthe Building.<\/p>\n
12. Landlord will have the right to prohibit any advertising by
\nTenant, mentioning the Building, which, in Landlord’s reasonable opinion, tends
\nto impair the reputation of the Building or its desirability as a building for
\noffices, and upon written notice from Landlord, Tenant will refrain from or
\ndiscontinue such advertising.<\/p>\n
13. Tenant will not bring any animals (except “Seeing Eye” dogs)
\nor birds into the Building, and will not permit bicycles or other vehicles
\ninside or on the sidewalks outside the Building except in areas designated from
\ntime to time by Landlord for such purposes.<\/p>\n
14. All persons entering or leaving the Building between the hours
\nof 6 p.m. and 7 a.m. Monday through Friday, and at all hours on Saturdays,
\nSundays and holidays will comply with such off-hour regulations as Landlord may
\nestablish and modify from time to time. Landlord reserves the right to limit
\nreasonably or restrict access to the Building during such time periods.<\/p>\n
15. Each tenant will store all its trash and garbage within its
\nPremises. No material will be placed in the trash boxes or receptacles if such
\nmaterial is of such nature that it may not be disposed of in the ordinary and
\ncustomary manner of removing and disposing of trash and garbage without being in
\nviolation of any law or ordinance governing such disposal. All garbage and
\nrefuse disposal will be made only through entryways and elevators provided for
\nsuch purposes and at such times as Landlord designates. Removal of any furniture
\nor furnishings, large equipment, packing crates, packing materials and boxes
\nwill be the responsibility of each tenant and such items may not be disposed of
\nin the Building, trash receptacles nor will they be removed by the Building’s
\njanitorial service, except at Landlord’s sole option and at the tenant’s
\nexpense. No furniture, appliances, equipment or flammable products of any type
\nmay be disposed of in the Building trash receptacles.<\/p>\n
16. Canvassing, peddling, soliciting, and distribution of
\nhandbills or any other written materials in the Building are prohibited, and
\neach tenant will cooperate to prevent the same.<\/p>\n
17. The requirements of the tenants will be attended to only upon
\napplication by written, personal or telephone notice at the office of the
\nBuilding. Employees of Landlord will not perform any work or do anything outside
\nof their regular duties unless under special instructions from Landlord.<\/p>\n
18. A directory of the Building will be provided for the display
\nof the name and location of tenants only and such reasonable number of the
\nprincipal officers and employees of tenants as Landlord in its sole discretion
\napproves, but Landlord will not in any event be obligated to furnish more than
\none directory strip for each 2,500 square feet of Rentable Area in the Premises.
\nAny additional name(s) which Tenant desires to place in such directory must
\nfirst be approved by Landlord, and if so approved, Tenant will pay to Landlord a
\ncharge, set by Landlord, for each such additional name. All entries on the
\nbuilding directory display will conform to standards and style set by Landlord
\nin its sole discretion. Space on any exterior signage will be provided in
\nLandlord’s sole discretion, No tenant will have any right to the use of the
\nexterior sign.<\/p>\n
19. Tenant will see that the doors of the Premises are closed and
\nlocked and that all water faucets, water apparatus and utilities are shut off
\nbefore Tenant or Tenant’s employees leave the Premises, so as to prevent waste
\nor damage, and for any default or carelessness in this regard Tenant will make
\ngood all injuries sustained by other tenants or occupants of the Building or
\nLandlord. On multiple-tenancy floors, all tenants will keep the doors to the
\nBuilding corridors closed at all times except for ingress and egress.<\/p>\n
(D-2)
\n 28
\n 20. Tenant will not conduct itself in any manner which is
\ninconsistent with the character of the Building as a first quality building or
\nwhich will impair the comfort and convenience of other tenants in the Building.<\/p>\n
21. Neither Landlord nor any operator of the parking areas within
\nthe Project, as the same are designated and modified by Landlord, in its sole
\ndiscretion, from time to time (the “Parking Areas”) will be liable for loss of
\nor damage to any vehicle or any contents of such vehicle or accessories to any
\nsuch vehicle, or any property left in any of the Parking Areas, resulting from
\nfire, theft, vandalism, accident, conduct of other users of the Parking Areas
\nand other persons, or any other casualty or cause. Further, Tenant understands
\nand agrees that: (a) Landlord will not be obligated to provide any traffic
\ncontrol, security protection or operator for the Parking Areas; (b) Tenant uses
\nthe Parking Areas at its own risk; and (c) Landlord will not be liable for
\npersonal injury or death, or theft, loss of or damage to property. Tenant waives
\nand releases Landlord from any and all liability arising out of the use of the
\nParking Areas by Tenant, its employees, agents, invitees, and visitors, whether
\nbrought by any of such persons or any other person.<\/p>\n
22. Tenant (including Tenant’s employees, agents, invitees, and
\nvisitors) will use the Parking Spaces solely for the purpose of parking
\npassenger model cars, small vans and small trucks and will comply in all
\nrespects with any rules and regulations that may be promulgated by Landlord from
\ntime to time with respect to the Parking Areas. The Parking Areas may be used by
\ntenant, its agents or employees, for occasional overnight parking of vehicles.
\nTenant will ensure that any vehicle parked in any of the Parking Spaces will be
\nkept in proper repair and will not leak excessive amounts of oil or grease or
\nany amount of gasoline. If any of the Parking Spaces are at any time used (a)
\nfor any purpose other than parking as provided above; (b) in any way or manner
\nreasonably objectionable to Landlord; or (c) by Tenant after default by Tenant
\nunder the Lease, Landlord, in addition to any other rights otherwise available
\nto Landlord, may consider such default an Event of Default under the Lease.<\/p>\n
23. Tenant’s right to use the Parking Areas will be in common with
\nother tenants of the Project and with other parties permitted by Landlord to use
\nthe Parking Areas. Landlord reserves the right to assign and reassign, from time
\nto time, particular parking spaces for use by persons selected by Landlord
\nprovided that Tenant’s rights under the Lease are preserved. Landlord will not
\nbe liable to Tenant for any unavailability of Tenant’s designated spaces, if
\nany, nor will any unavailability entitle Tenant to any refund, deduction, or
\nallowance. Tenant will not park in any numbered space or any space designated
\nas: RESERVED, HANDICAPPED, VISITORS ONLY, or LIMITED TIME PARKING (or similar
\ndesignation).<\/p>\n
24. If the Parking Areas are damaged or destroyed, or if the use
\nof the Parking Areas is limited or prohibited by any governmental authority, or
\nthe use or operation of the Parking Areas is limited or prevented by strikes or
\nother labor difficulties or other causes beyond Landlord’s control, Tenant’s
\ninability to use the Parking Spaces will not subject Landlord or any operator of
\nthe Parking Areas to any liability to Tenant and will not relieve Tenant of any
\nof its obligations under the Lease and the Lease will remain in full force and
\neffect.<\/p>\n
25. Tenant has no right to assign or sublicense any of its rights
\nin the Parking Spaces, except as part of a permitted assignment or sublease of
\nthe Lease; however, Tenant may allocate the Parking Spaces among its employees.<\/p>\n
26. No act or thing done or omitted to be done by Landlord or
\nLandlord’s agent during the term of the Lease in connection with the enforcement
\nof these Rules and Regulations will constitute an eviction by Landlord of any
\ntenant nor will it be deemed an acceptance of surrender of the Premises by any
\ntenant, and no agreement to accept such termination or surrender will be valid
\nunless in a writing signed by Landlord. The delivery of keys to any employee or
\nagent of Landlord will not operate as a termination of the Lease or a surrender
\nof the Premises unless such delivery of keys is done in connection with a
\nwritten instrument executed by Landlord approving the termination or surrender.<\/p>\n
27. In these Rules and Regulations, “tenant” includes the
\nemployees, agents, invitees and licensees of Tenant and others permitted by
\nTenant to use or occupy the Premises.<\/p>\n
28. Landlord may waive any one or more of these Rules and
\nRegulations for the benefit of any particular tenant or tenants, but no such
\nwaiver by Landlord will be construed as a waiver of such Rules and Regulations
\nin favor of any other tenant or tenants, nor prevent Landlord from enforcing any
\nsuch Rules and Regulations against any or all of the tenants of the Building
\nafter such waiver.<\/p>\n
29. These Rules and Regulations are in addition to, and will not
\nbe construed to modify or amend, in whole or in part, the terms, covenants,
\nagreements and conditions of the Lease.<\/p>\n
(D-3)
\n 29
\n EXHIBIT E<\/p>\n
COMMENCEMENT DATE CERTIFICATE<\/p>\n
This Commencement Date Certificate is entered into by Landlord and
\nTenant pursuant to Section 3.1 of the Lease.<\/p>\n
1. DEFINITIONS. In this Certificate the following terms have the
\nmeanings given to them:<\/p>\n
(a) Landlord: U S WEST Business Resources, Inc.<\/p>\n
(b) Tenant: P.F. Chang’s China Bistro, Inc.<\/p>\n
(c) Lease: Office Lease dated , 1997 between
\n Landlord and Tenant.<\/p>\n
(d) Premises: Suite 160.<\/p>\n
(e) Building Address: 5090 North 40th Street
\n Phoenix, AZ 85018<\/p>\n
2. CONFIRMATION OF LEASE COMMENCEMENT. Landlord and Tenant
\nconfirm that the Commencement Date of the Lease is and the
\nExpiration Date is and that Sections 1.1(k) and (l) are
\naccordingly amended.<\/p>\n
Landlord and Tenant have executed this Commencement Date Certificate
\nas of the dates set forth below.<\/p>\n
LANDLORD: TENANT:<\/p>\n
U S WEST BUSINESS RESOURCES, INC., P.F. CHANG’S CHINA BISTRO, INC., a
\na Colorado corporation Delaware corporation<\/p>\n
By By
\n ————————————– ——————————–
\nName Name
\n ———————————— ——————————-
\nTitle Title
\n ———————————– ——————————<\/p>\n
APPROVED AS TO LEGAL FORM by Counsel to
\nLandlord:<\/p>\n
Fisher & Sweetbaum, P.C.<\/p>\n
By
\n —————————
\nDate
\n ————————<\/p>\n
(E-1)<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8630],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9582,9579],"class_list":["post-41826","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-land__az","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41826","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41826"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41826"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41826"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41826"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}