EXHIBIT 10.246
OFFICE
FULL SERVICE GROSS
L E A S E
(2285 CORPORATE CIRCLE)
MEGO FINANCIAL CORP.
THIS LEASE is made and entered into this 31st day of May, 2002, by and
between CORPORATE CTR. IV, LLC, a Nevada limited liability company (herein
referred to as "Landlord") and MEGO FINANCIAL CORP., a New York corporation
(herein referred to as "Tenant").
SECTION 1
DEFINITIONS
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Definitions. The following definitions shall pertain hereto:
0.0.1 "Additional Rent" shall mean charges payable by Tenant other than
Base Rent. See Section 3.3.
0.0.2 "Adjustment Month" shall mean the thirteenth (13th) month and each
successive twelve (12) month period thereafter throughout the Lease Term
commencing with the first full calendar month following the Commencement Date
(i.e. 25th, 37th, 49th month, etc.), and each successive twelve (12) month
period throughout any applicable Extension Term(s) (i.e. 13th, 25th, 37th month,
etc.).
0.0.3 "Aggregate Monthly Rent" shall mean Base Rent and all Additional
Rent.
0.0.4 "Allowance" Allowance shall mean an amount equal to Thirty
and 00/100 Dollars ($30.00) per square foot of Usable Area, as defined below,
which Allowance may be increased by an amount equal to three (3) months of Base
Rent, calculated at Two and 10/100 Dollars ($2.10) per month for each square
foot of Usable Area of the Premises (the "Additional Allowance"), as more fully
elaborated in Exhibit C, "Landlord's Work Letter," attached hereto and
incorporated herein. In the event that Tenant elects to increase the Allowance
by all or a portion of the Additional Allowance, the amount of said Additional
Allowance utilized by Tenant to increase the Allowance shall be deducted from
the rental abatement provided to Tenant initially for month three (3) and then
month two (2), and if Tenant utilizes the aggregate sum of the three (3) months
of rental abatement then month one (1), as more fully set forth in Section 3.1.
See Exhibit C.
0.0.5 "Base Rent" shall mean the sum of Two and 10/100 Dollars ($2.10) per
month for each square foot of Rentable Area of the Premises, which is equal to
the sum of Four Hundred Thirty Thousand Nine Hundred Ninety-Five and 60/100
Dollars ($430,995.60) per annum, as may be adjusted pursuant to Section 2.1.1
hereof. The Base Rent shall be due and owing as of the Commencement Date. See
Section 3.1.
0.0.6 "Base Year" shall mean the calendar year 2003.
0.0.7 "Broker" Broker shall refer to CB Xxxxxxx Xxxxx and Xxx &
Associates. See Section 34.
0.0.8 "Building" Building shall mean the structure and all of its
improvements constructed upon the Property, which structure has a business
address of 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000. The total Rentable
Area for the Building is anticipated to be approximately 44,109 square feet.
0.0.9 "Commencement Date" shall refer to the Occupancy Date, subject to
Section 3.1.
0.0.10 "Common Areas" shall mean those areas as more fully defined in
Section 9.
0.0.11 "Default Interest Rate" shall mean the lesser of eighteen percent
(18%) per annum or the maximum interest rate permitted by Nevada law.
0.0.12 "Landlord's Work" shall refer to the improvements to be installed by
Landlord pursuant to the Landlord's Work Letter, attached hereto and
incorporated herein. See Exhibit C.
0.0.13 "Landlord's Share" of Property Operating Costs shall be defined as
that amount equal to one hundred percent (100%) of the Property Operating Costs
during the Base Year and such amount shall be borne by Landlord during each
Lease Year throughout the Term of this Lease.
0.0.14 "Lease Year" shall mean a twelve (12) month calendar year, except
that in the event that the Commencement Date for the Premises occurs on a date
other than January 1, the first Lease Year hereunder shall be that fractional
part of the calendar year from the Commencement Date to December 31 of the same
year, and the final Lease Year shall be that fractional part of the calendar
year from January 1 to the expiration date of the Lease.
0.0.15 "Mortgagee" shall mean the holder of a lien of first priority on the
Property.
0.0.16 "Occupancy Date" shall be deemed to refer to the fifth (5th)
business day following Landlord's written notification to Tenant, that
Landlord's Work has been Substantially Completed, as defined in Section 1.1.21
below, and as more fully elaborated in Exhibit C, and the Premises is available
and suitable for Tenant's move-in and occupancy. Such Occupancy Date is, at the
outset of this Lease, anticipated to be on or about September 1, 2002, subject
to Force Majeure, as that term is defined in Section
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25 below, encountered by Landlord and subject to Tenant Delays, as defined in
Exhibit C. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on or before the Occupancy Date, this Lease will not be void
or voidable, and Landlord will not be liable to Tenant for any resultant loss or
damage, except as otherwise provided herein.
0.0.17 "Premises" Premises shall mean that suite or space as
indicated by cross hatching on the Site Plan attached hereto as Exhibit A-4 and
Exhibit A-5, incorporated herein by reference, and commonly referred to as Suite
200 located within the Building.
0.0.18 "Property" Property shall mean the real property upon which
the Building is located, as more legally described in Exhibit A-1, and depicted
on Exhibit A-2, attached hereto and incorporated herein, and all easements,
rights, rights-of-way, and licenses appurtenant thereto. The Property is
located in a business center commonly referred to as "Green Valley Corporate
Center."
0.0.19 "Property Operating Costs" shall mean those costs and expenses as
further elaborated in Section 3.3.3.
0.0.20 "Rentable Area" shall be determined pursuant to measurement
standards for rentable area promulgated by BOMA and designated with the Standard
Building Owners and Manager's Association ANSI Z65.1-1980 (reaffirmed 1996) (the
"BOMA Standard"). It is anticipated that the Rentable Area for the Premises
shall be approximately 17,103 square feet. The Rentable Area of the Premises
shall be noted in a memorandum, in a form substantially similar to Exhibit B,
attached hereto, and same, after execution shall be incorporated herein by
reference.
0.0.21 "Substantially Complete or Substantial Completion" shall mean the
(i) completion of the Tenant Improvements, as defined below, in accordance with
the Final Plans, as defined in Section 2.3 of the Landlord's Work Letter,
subject only to the completion of minor items that do not materially interfere
with Tenant's occupancy of the Premises ("punch list items"); and (ii) issuance
by the City of Xxxxxxxxx of its conditional or final certificate of occupancy
permitting legal occupation of the Premises by Tenant.
0.0.22 "Tenant Improvements" shall refer to those improvements to be made,
installed or otherwise constructed by the Landlord, as more fully elaborated in
Landlord's Work Letter. See Exhibit C.
0.0.23 "Tenant's Pro-Rata Portion" shall mean a percentage based upon a
fraction, the numerator of which is the Rentable
Area of the Premises, and the denominator of which is the total number of
Rentable Area of the Building. Tenant's Pro-Rata Portion is anticipated to be
approximately 38.7744%, subject to the final confirmation of the Rentable Area
for the Premises as described in Section 2.1.1.
0.0.24 "Tenant's Share" of Property Operating Costs shall be calculated as
the product of Tenant's Pro-Rata Portion and the Property Operating Costs. See
Section 3.3.1.
0.0.25 "Term" shall mean the period of time commencing with
the Commencement Date and continuing for ninety-nine (99) months following the
first day of the first calendar month following the Commencement Date. At such
time as the Commencement Date shall have been established, Landlord and Tenant
shall execute a memorandum confirming said date, as set forth in Exhibit B,
attached hereto, and the same, after execution, shall be deemed incorporated
herein by reference; provided, however, that the term of Tenant's and Landlord's
rights and obligations hereunder may be extended pursuant to Section 39 below.
0.0.26 "Usable Area" shall be determined pursuant to measurement standards
for usable area promulgated by BOMA and designated with the BOMA Standard (as
defined in Section 1.1.20 above) and as more specifically set forth in Exhibit
B. It is anticipated that the Usable Area for the Premises shall be
approximately 14,957 square feet. The Usable Area of the Premises shall be noted
in a memorandum in a form substantially similar to Exhibit B, attached hereto,
and same, after execution shall be incorporated herein by reference.
0.0.27 "Utilities" shall mean those facilities provided to the Premises and
Common Areas of the Building and/or Property, such as water, gas, heat,
electricity, power, refuse disposal, environmental waste disposal, air
conditioning, telephone service, sewer service, and cable television, if
available.
SECTION 2
PREMISES
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1.2 Premises. Upon the conditions, limitations, covenants and agreements herein
set forth, Landlord hereby leases to Tenant, and Tenant hereby accepts, hires
and leases from Landlord, the Premises. Subject to the other provisions of this
Lease, Landlord shall have the right, in its sole and absolute discretion, to
modify the Property and/or the Building from time to time, but in no event shall
such modification substantially interfere with Tenant's use of the Premises, as
such use is more fully elaborated in Section 7 below, nor will it materially
reduce the Rentable or Usable Area of the Premises.
0.0.1 Rental Area Within a reasonable period following
the Occupancy Date, the Rentable Area of the Premises will be
confirmed in writing by Landlord's architect and/or licensed designer or space
planner following completion of construction of the Premises. Tenant may
measure the Premises following the date that the demising walls are established;
otherwise, the Rentable Area set forth in Exhibit B shall be Landlord's final
measurement of the Premises. Landlord's final measurement shall be binding upon
Tenant, unless Tenant notifies Landlord of any actual error therein within ten
(10) days after written notice thereof. Landlord shall notify Tenant of any
adjustment to Rentable Area within thirty (30) days of its receipt of Tenant's
notice of any actual error. Landlord's determination of the Rentable Area shall
be binding. Tenant's rental obligation set forth herein shall be subject to the
final confirmation of the Rentable Area for the Premises.
0.0.2 Landlord's Reservations. Landlord reserves to itself the
use of the roof, exterior walls and the area above and below the Premises (other
than roll-up doors and exterior doorways), together with the right to install,
maintain, use, repair and replace pipes, ducts, conduits, wires and structural
elements now or in the future leading through the Premises and which serve other
parts of the Property.
1.3 Declaration. The Green Valley Corporate Center development is subject to
that certain Declaration of Covenants, Conditions and Restrictions, recorded on
January 25, 1996, in Book 960125, as Document No. 01411, in the Office of the
Recorder of Xxxxx County, Nevada, and any amendments or supplements thereto (the
"Declaration"). The Declaration is enforced and implemented in part by the Green
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Valley Corporate Center Commercial Association, Inc. (the "Association").
SECTION 3
BASE RENT
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1.4 Base Rent. The Base Rent for each Lease Year or portion thereof,
together with the estimated Additional Rent, pursuant to Section 3.3. below,
shall be due and payable in advance, in legal tender of the United States of
America, in twelve (12) equal installments, one such installment being due on
the first day of each calendar month during the Term of the Lease and any
applicable extensions or renewals thereof. Tenant agrees to pay such Base Rent
and Additional Rent to Landlord monthly, in advance, without demand. If the
Lease Term commences on a day other than the first day of a month or terminates
other than the last day of a month, then the installments of Base Rent and
Additional Rent for such month(s) shall be prorated, based upon the number of
days in such month. Provided Tenant is in full compliance with the terms and
conditions of this Lease, Aggregate Monthly Rent shall be abated for the first
three (3) months of the Lease Term, subject to Tenant's election to increase the
Allowance.
0.0.1 First Month's Rental Obligation. Concurrent with the
execution of this Lease, Tenant shall deliver to Landlord the sum of Thirty-Five
Thousand Nine Hundred Sixteen and 30/100 Dollars ($35,916.30), which amount
shall be applied to the Tenant's first month of rental obligation due hereunder
(see Sections 1.1.4 and 3.1 above), and which sum may be subject to adjustment
pursuant to Section 2.1.1.
1.5 Base Rent Increases. The Base Rent shall be increased by three
percent (3%) commencing on the first day of each Adjustment Month.
1.6 Additional Rent. In addition to Base Rent, Tenant shall pay to Landlord,
from the Commencement Date throughout the Term of this Lease, at the time and
manner set forth herein, the following Additional Rent:
0.0.1 Tenant's Share of Property Operating Costs. Tenant shall pay
to Landlord its Pro-Rata Share of Property Operating Costs to the extent that
the Property Operating Costs, as that term is more fully defined below, exceed
Landlord's Share. Following the Base Year, Landlord shall estimate each Lease
Year's Property Operating Costs and shall notify Tenant, in writing, within one
hundred and twenty (120) days after the beginning of each successive Lease Year
of Tenant's Share (net of Landlord's Share), applying the current Lease Year's
estimated Property Operating Costs ("Estimated Tenant's Share"). The Estimated
Tenant's Share shall be pro-rated on a monthly basis for the applicable Lease
Year and such pro-rated amount shall be remitted by Tenant, in advance,
commencing on the Commencement Date and continuing on the first day of each
month thereafter, without further demand or any deduction or setoff. Until such
time as Landlord notifies Tenant of the current Lease Year's Estimated Tenant's
Share, Tenant shall continue to pay the Estimated Tenant's Share for the
previous Lease Year.
0.0.2 Notification of Property Operating Costs. Following the end
of each Lease Year, Landlord will ascertain the actual Property Operating Costs
for the current Lease Year then ending, and shall compute the difference thereof
from the Estimated Tenant's Share paid by Tenant for the applicable Lease Year.
Landlord shall notify Tenant, in writing, within one hundred and twenty (120)
days of the end of each Lease Year of such difference, if any (the "Property
Operating Cost Statement"). In no event, however, shall failure to deliver the
Property Operating Cost Statement within said one hundred and twenty (120) day
period prevent Landlord from collecting the difference, if any, from Tenant.
Tenant shall pay to Landlord, within thirty (30) days following receipt of the
Property Operating Cost Statement, the amount, if any, due to Landlord
(inclusive of the last year
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of the Term). In the event that the Property Operating Cost Statement reflects
an amount due to Tenant, then same shall be credited and applied to the next
monthly payment of Base Rent and Additional Rent, until such amount has been
fully exhausted, provided that in the last year of the Term any excess shall be
refunded to Tenant within thirty (30) days following Tenant's receipt of the
Property Operating Cost Statement, or any shortfall shall be paid by Tenant
within thirty (30) days of its receipt of the Property Operating Cost Statement.
In no event shall Landlord or Tenant be entitled to receive interest on any
amounts due to the respective party as shown on the Property Operating Cost
Statement. The obligation of Tenant to pay Landlord Tenant's Pro-Rata Portion
of the Property Operating Costs, or Landlord's obligation to refund any excess
paid by Tenant shall survive the early termination or expiration of this Lease.
0.0.3 Property Operating Costs. The term "Property Operating
Costs" shall mean the total cost and expense incurred, during each Lease Year,
in managing, operating, equipping, lighting, repairing, replacing and
maintaining the Property, as well as any owners association's common area
assessments which are established and which are allocable to the Property as
reasonably determined by the Landlord, annualized over a Lease Year. Such
operating and maintenance costs shall include all costs and expenses of
operating and maintaining such areas and facilities in such manner as Landlord
may, from time to time, deem appropriate, and for the best interests of the
tenants of the Property, including, without limitation, the following:
d. all Impositions, as that term is defined in Section 3.3.5 below;
e. all Utilities not separately metered or billed to Tenant, or other
tenants, and all other utilities and services provided to the Property;
f. all cleaning and janitorial service for the Premises and cleaning on
a regular basis for all Common Areas of the Building;
g. Landlord's insurance for the Property, including fire and extended
coverage, liability, property damage, rent loss, boiler insurance, vandalism,
malicious mischief, earthquake insurance, insurance against liability for
defamation and claims of false arrest, and such other insurance in such amounts
and covering hazards deemed appropriate by Landlord or which Landlord or any
Mortgagee deems necessary or prudent;
h. the cost (amortized over such period as Landlord reasonably
determines, together with interest at twelve percent (12%) on the unamortized
balance) of any capital improvements to the Property or equipment replacements
made by Landlord after the Commencement Date that are intended to reduce
Property Operating Costs, or are required by any laws, which are necessary in
order to operate the Property at the same quality level as prior to such
replacement;
i. costs and expenses of operation, repair and maintenance of all
structural portions and components of the Property, including, without
limitation, plumbing, communication, common area heating, ventilating and
air-conditioning, elevator, and common area electrical and other common Property
systems;
g. costs of repairs, maintenance, or replacement of paving, curbs,
walkways, remarking, directional or other signs, landscaping, drainage, lighting
facilities, repair and maintenance of the Common Areas and parking areas, costs
and expenses of planting, replanting and replacing flowers, shrubbery and other
landscaping, and the cost to Landlord of servicing and maintaining any sprinkler
system;
h. rental or lease payments paid by Landlord for rented or leased
personal property used in the operation or maintenance of the Property;
i. management fees not to exceed three percent (3%) of the annual gross
revenue of the Building, and administrative fees not to exceed fifteen percent
(15%) of the direct Property Operating Costs, for direct labor and overhead for
administrative personnel at or below the property manager level allocable to the
Premises, Building or Property, which fees shall be payable to Landlord or to
any other entity which is managing or administering the Property and/or the
Building;
j. costs incurred in providing private police protection, roving
patrol, or night watchmen (including, but not limited to, uniforms), and fire
protection;
k. expenses for the rental of music program services and loudspeaker
systems (if
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Landlord elects to provide the same), including, but not limited to, furnishing
electricity therefor;
l. Landlord's share of any charges or contributions made under a
recorded covenant or other agreement that relates to the Property and any other
property, which are disclosed, in writing, in advance to the Tenant; and
m. cost of leasing and operating any signs, the cost of personnel to
implement any service described above, to direct traffic and to police the
Common Areas.
1.6.1.1 For any period that the occupancy of the Building during the Base
Year or any Lease Year is less than ninety-five percent (95%), Property
Operating Costs for such Base Year shall be "grossed up" to that amount of
Property Operating Costs that, using reasonable projections, would normally be
expected to be incurred if the Building were ninety-five percent (95%) occupied
during the Base Year; provided, further, that to the extent that for any reason
the Building was only in operation for a portion of the Base Year, Property
Operating Costs for the Base Year shall be "grossed up" and shall reflect such
adjustments for seasonality and otherwise as Landlord deems appropriate to that
amount of Property Operating Costs that, using reasonable projections and
assumptions, would normally be expected to be incurred if the Building had been
in operation during the entire Base Year. With respect to Real Property Taxes
included in Property Operating Costs for the Base Year, such amount shall be
determined under the assumption that the Building is fully assessed as a
completed and occupied unit and if one or more additional buildings are at any
time constructed on the parcel of real property that the Building is situated
upon, then at the option of Landlord at each instance the amount of the Base
Year shall be changed to give effect to restatement of the Property Operating
Costs for the Base Year predicated upon recomputation of the Real Property Taxes
which were included in Property Operating Costs to be a new amount of Real
Property Taxes multiplied by the fraction whose numerator is the total Rentable
Area of the Building and whose denominator is the total Rentable Area of all
buildings (including the Building) situated upon such parcel.
1.6.1.2 With respect to any Utilities or service mentioned herein which is
not separately metered or billed to Tenant, if Landlord determines that Tenant's
use of such utility or service is excessive or abnormal such that it is unfair
to assess Tenant and other tenants therefor on a pro-rata square footage basis,
Landlord shall so notify Tenant. Such written notice shall contain Landlord's
estimate of a reasonable amount of the overall cost of such utility or service
which should be billed to Tenant. If, within thirty (30) days after Tenant's
receipt of such notice, Landlord and Tenant are unable to agree upon a
reasonable amount of the overall cost of such utility or service to be paid by
Tenant, then, and in such event, Tenant shall cause such utility or service to
be separately metered to Tenant or separately contracted-for by Tenant, so that
Tenant will pay separately, at Tenant's sole expense, for such utility or
service (in which case Landlord shall not thereafter assess Tenant for any
amount of such utility or service). The cost of the installation of any separate
meter shall be paid by Tenant. Tenant has requested and Landlord will provide
certain Additional Service, as defined and more fully elaborated in Section
10.1(c) below.
0.0.4 Property Operating Cost Exclusions. Property
Operating Costs shall not include any expenditures by
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Landlord in connection with:
n. leasing costs (including Tenant Improvements), fees and leasing
commissions;
o. legal fees and costs, including costs of litigating with other
tenants;
p. taxes other than "Impositions," as that term is defined in Section
3.3.5 of this Lease;
q. costs and fines assessed against Landlord, due to violation of any
other leases within the overall development within which the Premises is
situated;
r. all costs and expenses associated with capital improvements or
additions (except as otherwise provided above) to the Property or the
construction of any buildings to be occupied or used primarily for other
tenants;
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s. depreciation, amortization and interest payments, except as provided
herein, and when required, the item shall be amortized over its reasonably
anticipated useful life;
t. interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the Property
except in conjunction with a permitted charge hereunder; and
u. Landlord's general corporate overhead, general and administrative
expenses and profits in connection with goods and services in or to the Property
as supplied by Landlord to the extent the same exceeds the costs therefor if
rendered by an unaffiliated third party within Xxxxx County, Nevada.
21.0.1 Impositions . For the purpose of this Lease, the term
"Impositions" means:
v. any real estate taxes, fees, assessments (including, but not limited
to, any local improvement district assessments), or other charges assessed
against the Property and any improvements thereon;
w. all personal property taxes on personal property used in connection
with the Property and related structures other than taxes payable by Tenant
under Section 12.1 hereof, or payable by any other tenant in the Building;
x. any and all taxes, assessments, license fees, and public charges
levied, assessed, or imposed, and which become payable during the Term hereof
upon all improvements made to the Premises, over and above the Building shell,
whether installed by Landlord or Tenant;
y. any and all environmental levies or charges now in force affecting
the Property or any portion thereof, or which may hereafter become effective,
including, but not limited to, parking taxes, levies, or charges, employer
parking regulations, and any other parking or vehicular regulations, levies, or
charges imposed by any municipal, state or federal agency or authority;
z. any other taxes levied or assessed in addition to, as a replacement,
alteration, or substitute for, or in lieu of such real or personal property
taxes;
aa. any and all fees reasonably paid by Landlord in its opposition of
tax assessments that are directly related to the Premises and/or the Property,
provided, however, that in no event shall such fees exceed the amount of actual
savings;
bb. any expenses incurred in connection with any requirement subsequent
to the date hereof for changes at the Property so as to comply with then
existing laws, ordinances or codes imposed by federal, state or local
governmental authorities, together with any and all fees reasonably incurred by
Landlord in its opposition to any such regulations; and
cc. all new and increased assessments, taxes, fees, levies and charges
relating to the Property shall be included within the definition of
"Impositions" for the purposes of this Lease.
1.7 Expenditures by Landlord. Whenever under any provision of this Lease, Tenant
shall be obligated to make any payment or expenditure, or to do any act or
thing, or to incur any liability whatsoever, and Tenant fails, refuses or
neglects to perform as herein required, Landlord shall be entitled, but shall
not be obligated, (i) to make any such payment; (ii) to do any such act or
thing; or (iii) to incur any such liability, all on behalf of and at the cost of
and for the ac-count of Tenant. In exercising this right, Landlord shall be
permitted to charge Tenant the cost thereof plus interest thereon at the rate of
fifteen percent (15%) per annum, which charge shall constitute and be
collectible as Additional Rent on demand.
1.8 Monetary Payments. All rent and other monies required to be paid by Tenant
hereunder shall be paid to Landlord, without deduction or offset, except as
otherwise provided herein, in legal tender of the United States of America,
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at 000 X. Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000, Attention:
Property Management, or at such other place as Landlord may, from time to time,
designate in writing. Tenant agrees that all monies required to be paid by
Tenant pursuant to this Lease, except for the Base Rent, are hereby conclusively
deemed to be Additional Rent.
SECTION 4
RIGHT OF AUDIT
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1.9 Right of Audit. In the event of any good faith dispute as to the
amount of the Property Operating Costs, as set forth in the Property Operating
Cost Statement forwarded to Tenant by Landlord, pursuant to Section 3.3.2,
Tenant shall have the right to inspect Landlord's Property Operating Cost
records for the Building and the Property at Landlord's offices; provided,
however, that Tenant is not in default under the terms of this Lease at the time
such request for such inspection is made, no more frequently than once per
calendar year, and upon not less than thirty (30) days prior written notice to
Landlord and at reasonable times. Tenant shall further have the right to
photocopy Landlord's Property Operating Cost records for the Building and the
Property at Landlord's offices, in the event that Tenant requests that an
inspection be made. If, after such inspection and photocopying, Tenant
continues, in good faith, to dispute the amount of the Property Operating Costs,
as set forth in said Property Operating Cost Statement, Tenant shall be entitled
not later than ninety (90) days following Tenant's receipt of Property Operating
Cost Statement to retain a national, independent, certified public accountant,
who is not contracted on a contingency fee basis, and who is mutually acceptable
to Landlord and Tenant, to audit Landlord's Property Operating Cost records,
with respect to the calendar year covered by said Property Operating Cost
Statement, to determine the proper amount of the Property Operating Costs.
Landlord shall be entitled to review the results of such audit promptly after
completion of same. If the results of such audit states that Landlord has
overcharged Tenant, then within a reasonable time after the results of the audit
are made available to Landlord, Landlord shall credit Tenant the amount of such
overcharge toward the payments of Base Rent and Additional Rent next coming due
under this Lease, until such amount has been fully exhausted. If such audit
proves that Landlord has undercharged Tenant, then within fifteen (15) days
after the results of the audit are made available to Tenant, Tenant shall pay to
Landlord the amount of any such undercharge.
21.0.1 Audit Confidentiality. Tenant's receipt of any information in
response to a request for inspection of Landlord's books and records with
respect to the Property Operating Costs for the Building is subject to the
following:
e. Tenant must keep information confidential. All of the information
obtained through the Tenant's audit with respect to financial matters
(including, without limitation, costs, expenses, and income) and any other
matters pertaining to the Landlord and/or the Property, as well as any
compromise, settlement, or adjustment reached between Landlord and Tenant
relative to the results of the audit, shall be held in strict confidence by the
Tenant and its officers, agents, and employees; and Tenant shall cause its
auditor and any of its officers, agents, and employees to be similarly bound
pursuant to subparagraph b., below.
f. Auditor must sign confidentiality covenant. As a condition
precedent to Tenant's exercise of its right to audit, Tenant must deliver to
Landlord a signed covenant from the auditor, in a form to be provided by
Landlord, acknowledging that all of the results of such audit as well as any
compromise, settlement, or adjustment reached between Landlord and Tenant shall
be held in strict confidence and shall not be revealed in any manner to any
person except: (i) upon the consent of the Landlord, which consent may be
withheld in Landlord's sole discretion; (ii) if reasonably necessary in
connection with any arbitration or litigation, or regulatory arbitration or
mediation proceeding between Landlord and Tenant materially related to the facts
disclosed by such audit; or (iii) if required by law.
g. Acknowledgment. Tenant understands and agrees that this provision
is of material importance to the Landlord and that any violation of the terms of
this provision shall result in immediate and irreparable harm to the Landlord.
h. Damages. Landlord shall have all rights allowed by law or equity if
Tenant, its officers, agent, or employees and/or the auditor violate the terms
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of this provision, including, without limitation, the right to terminate this
Lease or the right to terminate Tenant's right to audit in the future pursuant
to this clause.
i. Indemnification by Tenant and auditor. Tenant shall indemnify,
defend upon request, and hold Landlord harmless from and against all costs,
damages, claims, liabilities, expenses, losses, court costs, and attorney's fees
suffered by or claimed against Landlord, based, in whole or in part, upon the
breach of this Section by Tenant and/or its auditor; and shall cause its auditor
to be similarly bound.
j. Survival clause. The obligations within this Section shall survive
expiration or earlier termination of the Lease.
1.9.1.1 If Tenant does not request an audit in accordance with the
provisions of this Section 4.1 within ninety (90) days of its receipt of the
Property Operating Cost Statement, such Property Operating Cost Statement shall
be conclusively binding upon Tenant. In the event that Tenant was the prevailing
party, in whole or in part, in an audit, Tenant shall only be entitled to audit
Landlord's books and records that apply to the prior year immediately preceding
the year in which Tenant prevailed in such audit, and in connection with the
same specific item that was the subject of the previous audit in which Tenant
prevailed, but in no event shall Tenant be entitled to conduct an audit nor
challenge the correctness of the Property Operating Cost Statement for a period
earlier than one (1) year prior to the year in which Landlord delivers the most
recent Property Operating Cost Statement. In addition, once having conducted an
audit with respect to a specific item in any year, Tenant shall have no right to
conduct another audit of the same specific item for such year.
SECTION 5
SECURITY DEPOSIT5
---------------------
1.10 Security Deposit. Tenant, concurrently with the execution of this Lease,
has deposited with Landlord the sum of Thirty-Five Thousand Nine Hundred Sixteen
and 30/100 Dollars ($35,916.30), representing Tenant's first month's rental
----------
obligation hereunder, receipt of which is hereby acknowledged by Landlord
("Deposit"), which Deposit may be subject to adjustment pursuant to Section
2.1.1. Said Deposit shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
by Tenant to be kept and performed during the Term hereof, including the
vacating of the Premises by Tenant; provided that Tenant shall not be excused
from the payment of any rent herein reserved or any other charge herein
provided. If Tenant defaults with respect to any provision of this Lease,
Landlord may, but shall not be required, (i) to use or retain all or any part of
the Deposit for the payment of any rent or other monies due Landlord; (ii) to
repair damages to the Premises; (iii) to clean the Premises; or (iv) to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of the Deposit is so used or
applied, Tenant shall, within five (5) business days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Deposit to its original amount.
21.0.1 Return of Deposit Landlord shall not be required to keep
the Deposit separate from its general funds, and Tenant shall not be entitled to
interest on the Deposit. Should Tenant comply with all of said terms, covenants
and conditions and promptly pay all the rent herein provided for and all other
sums payable by Tenant to Landlord hereunder as the same fall due, then the
Deposit shall be returned to Tenant within thirty (30) days after the end of the
Term, or thirty (30) days after the last payment due from Tenant is received by
Landlord, whichever last occurs. In the event of sale, transfer or the making of
a master lease of the Property or of any portion thereof containing the
Premises, if Landlord transfers the Deposit to the lessee or transferee for the
benefit of Tenant, and if such lessee or transferee assumes all liability with
respect to the Deposit, then Landlord shall be considered released by Tenant
from all liability for the return of the Deposit, and Tenant agrees to look
solely to the new landlord for the return of the Deposit, and it is agreed that
this Section 5 shall apply to every transfer or assignment to a new landlord. No
Mortgagee or beneficiary holding a lien on the Property or any portion thereof
shall be liable to Tenant for any Deposit, unless said Deposit has actually been
delivered to such Mortgagee or beneficiary.
21.0.2 No Right of Tenant to Encumber Deposit
Page -9-
Tenant shall have no right or privilege to mortgage, encumber, transfer or
assign the Deposit without the prior written consent of Landlord.
1.11 No Right of Deduction. Tenant may not deduct from its Aggregate Monthly
Rent or from other payments to Landlord under this Lease, the Deposit, and
Landlord's right to possession of the Premises, or to take appropriate action
for nonpayment of any rent, or for any other reason, shall not be affected by
the fact that Landlord holds the Deposit and does not use, apply or retain the
same as set forth herein.
1.12 Right to Raise Security Depositto Raise Security Deposit. Upon the
occurrence of an Event of Default, as defined below, more than three (3) times
within any twelve (12) month period, irrespective of whether or not such default
is cured, then, without limiting Landlord's other rights and remedies provided
for in this Lease, or at law or in equity, the Deposit shall automatically be
increased by an amount equal to the greater of: (i) three (3) times the original
Deposit; or (ii) three (3) months Base Rent, which shall be paid by Tenant to
Landlord within ten (10) days following receipt of written notice by Landlord of
same.
SECTION 6
POSSESSION AND SURRENDER
--------------------------
1.13 Possession of the Premises. Subject to the following provisions, Tenant
shall upon entering and occupying the Premises be conclusively deemed to have
accepted the Premises, subject to Exhibit C, and Landlord shall not be liable
for any latent or patent defects therein. Notwithstanding the foregoing,
Landlord shall correct any latent defects in Landlord's Work with respect to
which Tenant delivers notice to Landlord within one (1) year after the Occupancy
Date, or within such longer period as coincides with the term of a third party
warranty covering that portion of the Landlord's Work at issue. Landlord will
construct the Tenant Improvements to be constructed or installed by Landlord
according to the Landlord's Work. Tenant acknowledges that neither Landlord nor
its agents or employees have made any representations or warranties as to the
suitability or fitness of the Premises for the conduct of Tenant's business or
for any other purpose, nor has Landlord or its agents or employees agreed to
undertake any alterations or construct any Tenant Improvements to the Premises
except as expressly provided for in this Lease and the Landlord's Work. If for
any reason Landlord cannot deliver possession of the Premises to Tenant on or
before the fixed date component of the Occupancy Date, if applicable, this Lease
will not be void or voidable, and Landlord will not be liable to Tenant for any
resultant loss or damage.
1.14 Surrender. Upon the expiration or sooner termination of the Term of this
Lease, if Tenant has fully and faithfully perform-ed all of the terms,
conditions and covenants of this Lease to be performed by Tenant, but not
otherwise, Tenant shall, at its sole cost and expense, remove all personal
property and trade fixtures which Tenant has installed or placed in or on the
Premises (all of which are hereinafter referred to as "Tenant's Property") from
the Premises and repair all damage thereto resulting from such removal, and
Tenant shall thereupon surrender the Premises in the same condition as on the
Occupancy Date, reasonable wear and tear excepted. If Tenant has not fully and
faithfully performed all of the terms, conditions and covenants of this Lease to
be performed by Tenant, Tenant shall never-theless remove Tenant's Property from
the Premises in the manner aforesaid within fifteen (15) days after receipt of
written direction to do so from Landlord. In the event Tenant shall fail to
remove any of Tenant's Property as provided herein, Landlord may, but is not
obligated to, at Tenant's expense, remove all of such Tenant's Property not so
removed and repair all damage to the Premises resulting from such removal, and
Landlord shall have no responsibility to Tenant for any loss or damage to
Tenant's Property caused by or resulting from such removal or otherwise. If the
Premises is not surrendered at the end of the Term, Tenant shall indemnify
Landlord against all loss or liability resulting from delay by Tenant in so
surrendering the Premises including, without limitation, any claims made by any
succeeding tenant due to such delay. Tenant agrees not to commit or allow waste
to be committed on any portion of the Premises.
SECTION 7
USE OF PREMISES
-----------------
1.15 Use of Premises. The Premises are leased to Tenant solely for office and
administrative use relating to a travel/timeshare company, and for no other
Page -10-
purpose or purposes whatsoever. Tenant shall not use, or suffer to be used, the
Premises, or any portion thereof, as a sales office for timeshare and/or land
sale presentations to the general public. Tenant shall conduct business under
the trade name of "Leisure Industries Corporation of America, Inc.," and no
other, without Landlord's prior written consent, which consent shall not be
unreasonably withheld or conditioned.
1.16 Maintenance and Repair. Subject to Section 10, "Landlord Services," Tenant
shall maintain the Premises in good repair and condition (ordinary wear and tear
excepted) and every part thereof and any and all appurtenances thereto wherever
located, including, but without limitation, the exterior and interior portion of
all doors, door checks, windows, plate glass, Tenant signage, all plumbing and
sewage facilities within the Premises including free flow up to the main sewer
line, fixtures, heating and air conditioning and electrical systems (whether or
not located in the Premises), fire sprinkler system, interior walls, floors and
ceilings, and any work performed by or on behalf of Tenant hereunder. Tenant
shall also keep and maintain in good order and condition any special equipment,
fixtures or facilities other than the usual and ordinary plumbing and utility
facilities.
1.17 Storage of Garbage. Tenant shall store all trash and garbage in appropriate
refuse containers in a designated area provided by Landlord and reasonably
located, so as not to be visible or create a nuisance to customers and business
invitees in the Premises and/or the Property, and so as not to create or permit
any health or fire hazard. If Tenant requires larger refuse facilities over that
generally provided by Landlord, Tenant shall arrange and pay for same.
1.18 Abidance of Rules and Regulations. Tenant hereby covenants and agrees that
it, its agents, employees, servants, contractors, subtenants and licensees
shall abide by the Rules and Regulations that Landlord has established, as set
forth in Exhibit D, attached hereto and incorporated herein by reference, and
such additional reasonable rules and regulations hereafter adopted, and
reasonable amendments and modifications of any of the foregoing, as Landlord
may, from time-to-time, adopt for the safety, care and cleanliness of the
Premises or the Property or for the preservation of good order thereon and
therein.
1.19 Commercially Reasonable Operation. Tenant shall operate its
business in the Premises and such operation shall be conducted in a commercially
reasonable manner.
1.20 Prohibition Against Interference With Other Tenants. Tenant shall not do,
permit or suffer anything to be done or kept upon the Property or in the
Premises which will obstruct or interfere with the rights of other tenants
and/or property owners, Landlord or the patrons and customers of any of them, or
which will unreasonably annoy any of them, their patrons or customers by reason
of unreasonable noise or otherwise, nor will Tenant commit or permit any
nuisance on the Premises or commit or suffer any immoral or illegal act to be
committed thereon.
1.21 Use of Common Areas. The use of the Premises and all Common Areas
whatsoever by Tenant, its employees, agents, customers, licensees, invitees and
contractors shall at all times be in compliance with all covenants, conditions
and restrictions, easements, reciprocal easement agreements, and all matters
presently of public record, or which may hereafter be placed of public record,
which affect the Premises or the Property, or any part thereof.
1.22 Parking. Subject to Section 9, Tenant agrees that Tenant and its employees,
invitees and all other individuals visiting the Premises, except for Tenant's
customers, will, if deemed necessary by Landlord, only park in the areas
designated for such use. Written notice of such designation shall be delivered
to Tenant and same shall have the same force and effect as if it was originally
included in this Lease.
1.23 Trademark Restrictions. Tenant agrees to abide by the trademark restriction
covenants contained in Section 7.9.1 below. Tenant hereby acknowledges and
agrees that, upon any breach by Tenant of such covenants, Landlord and ANC,
Inc., an affiliate of the Landlord, will be irreparably and materially injured
for no just cause and without adequate remedy at law, such that Landlord and
ANC, Inc. (as a third party beneficiary hereof) shall be irrebuttably presumed
to be immediately entitled to all forms of equitable relief, including, without
limitation, a temporary restraining order and preliminary or permanent
injunction.
Page -11-
21.0.1 Trademark. Tenant acknowledges that Landlord has informed it that
ANC, Inc., a Nevada corporation, and an affiliate of Landlord, is the owner of
trademark and trade name rights relative to the name "GREEN VALLEY" and with
respect to various distinctive marks utilized in conjunction with the Green
Valley development. Tenant therefore agrees not to denote or utilize the name
"GREEN VALLEY" or any of said distinctive marks as the name of or part of the
name of or in conjunction with the name of the business to be conducted on the
Premises leased to Tenant hereunder without first obtaining the written approval
of ANC, Inc., and executing such license agreements relative thereto as may be
requested and required by ANC, Inc. Any breach of this provision shall
constitute a material breach of this Lease with all attendant rights accruing to
Landlord. Further, ANC, Inc. is acknowledged by both Landlord and Tenant to be
an additional intended beneficiary of this provision of this Lease. Tenant
agrees and acknowledges that either Landlord and/or ANC, Inc. shall be entitled
to all forms of equitable relief, including, without limitation, a temporary
restraining order, preliminary and permanent injunction, in the event of any
unauthorized use by Tenant of the name "GREEN VALLEY" or any trademark of ANC,
Inc., utilized in conjunction with the Green Valley development.
1.24 Gaming. No slot machine, gambling game or device, or other "gaming" of any
type as defined by Nevada law or requiring a gaming license issued by the State
of Nevada shall be permitted in or on the Premises without the prior written
consent of Landlord, which consent is strictly within Landlord's discretion.
1.25 Satellite Dish. Tenant shall have the right, at its sole cost and expense,
in accordance with all applicable governmental laws, codes and regulations, to
install one (1) satellite dish, the size of which shall be consented to by
Landlord (not greater than two (2) meters), utilizing a non-penetrating roof
mount. Tenant represents and warrants that the installation of the dish shall
not cause any damage to the Premises or the Building. Installation of the
satellite dish by Tenant will not adversely affect the Landlord's roof warranty.
Said installation shall be at a location mutually agreed upon by Landlord and
Tenant. The dish shall be screened by view from all elevations of the Premises
and Building in accordance with the City of Xxxxxxxxx and all governmental
ordinances. Tenant shall mount said dish by the mounting configuration and in a
manner reasonably required by Landlord. Tenant agrees to indemnify and hold
harmless Landlord from any costs, liabilities or damages arising from or caused
by the installation, use and/or existence of said satellite dish. Additionally,
at the expiration or early termination of the Lease, Tenant shall remove the
satellite dish at Tenant's sole cost and expense and shall repair any damage
caused by such removal. In the event Tenant fails to remove said dish within
fifteen (15) days after the expiration or earlier termination of this Lease,
Landlord may remove same and Tenant shall pay to Landlord the reasonable costs
therefor incurred. Tenant represents and warrants that any and all roof work
shall comply with the requirements set forth in Exhibit G, attached hereto and
incorporated herein. Tenant shall indemnify, defend, and hold Landlord harmless
from and against all costs, damages, claims, liabilities, expenses, losses,
court costs, and attorney's fees suffered by or claimed against Landlord, based,
in whole or in part, upon the breach of this Section by Tenant.
SECTION 8
IMPROVEMENTS, SIGNAGE AND ALTERATIONS
--------------------------------------
1.26 Improvements. Landlord shall diligently perform and install or cause to be
installed the improvements to the Premises required of it as specifically set
forth on Exhibit C, attached hereto and incorporated herein ("Landlord's Work").
Except as so set forth, Tenant otherwise accepts the Premises in its "as is"
condition. Landlord's Work shall be performed substantially in accordance with
the plans, specifications and related requirements as so outlined on said
Exhibit C or established pursuant thereto.
21.0.1 Exterior Directional Signage. At Tenant's sole cost and
expense, Landlord shall provide Tenant the ability to display its trade name on
exterior directional signage located within the Green Valley Corporate Center
parking lot, as more fully depicted on Exhibit F, attached hereto and
incorporated herein, subject to the sign criteria currently in effect within the
Property. The right to display Tenant's trade name shall terminate upon the
expiration of this Lease or sooner termination as provided herein
Page -12-
21.0.2 Directory Signage. Tenant shall have the ability to display
its trade name on the directory sign and suite identification signage
located within the Building lobby, which designs, sizes and locations
shall be subject to Landlord's approval (the "Directory Sign"). Tenant, at its
sole cost and expense, shall have the ability to display its trade name at the
entry door to the Premises. All signage shall be subject to the sign criteria
currently in effect within the Property. The right to display Tenant's trade
name and/or logo shall terminate upon the expiration of this Lease or sooner
termination as provided herein.
21.0.3 Monument Signage . In the event that Landlord elects
to construct a monument sign, Landlord shall provide Tenant a
right to display its trade name on said monument signage (the "Monument Sign").
Tenant shall be responsible for the cost of the design, construction and
placement of the sign panel, bearing Tenant's trade name on the Monument Sign,
which design, size and location shall be subject to Landlord's approval. The
right to display Tenant's trade name shall terminate upon the expiration of this
Lease or sooner termination as provided herein.
1.27 Alterations. After completion of the Landlord's Work outlined herein,
Tenant shall not make any further additions, alterations, improvements or
changes ("Alterations") in, or to the Premises without the prior written
approval of Landlord, excepting therefrom the interior non-structural
Alterations costing less than Ten Thousand and 00/100 Dollars ($10,000.00) made
by Tenant to the Premises. The approval of any and all structural Alterations
shall be at the sole and absolute discretion of the Landlord. Any such approved
Alterations shall be at the sole cost and expense of Tenant. Landlord may
impose, as a condition to such consent, such requirements as Landlord may deem
reasonably necessary in its judgment, including, without limitation, (i) the
manner in which the work is done; (ii) a right of approval of the contractor by
whom the work is to be performed; (iii) the times during which the work is to be
accomplished, approval of all plans and specifications, certifications and
inspections; and (iv) the procurement of all licenses and permits. Landlord
shall be entitled to post notices on and about the Premises with respect to
Landlord's non-responsibility for mechanics' liens, and Tenant shall not permit
such notices to be defaced or removed. Tenant further agrees not to connect any
apparatus, machinery or device to the Building systems, including electric
wires, water pipes, fire safety, heating and mechanical systems, or any
penetrations to the roof, walls or structure support of the Building, without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. Any Alterations shall be made promptly and in
a good and workmanlike manner, lien free, and in compliance with all insurance
requirements and with all applicable permits, authorizations, building
regula-tions, zoning laws, environmental regulations, laws regarding the
physically disabled and all other governmental rules, regulations, ordinances,
statutes and laws, now or hereafter in effect per-taining to the Premises or
Tenant's use thereof. Any Alterations made by Tenant shall, at Landlord's
option, be-come the property of Landlord upon the expiration or sooner
termination of this Lease. However, Landlord shall have the right to require
Tenant to remove such Alterations, at Tenant's sole cost and expense, upon such
termination of this Lease and to surrender the Premises in the same condition as
it was prior to the making of any or all such Alterations, reasonable wear and
tear excepted.
1.28 Hold Harmless. Tenant shall indemnify and hold Landlord, the Property
and Landlord's managing agent for the Property free of and harmless from any and
all liabilities, losses, claims, or damages arising out of any Alterations
undertaken by Tenant, whether specifically under the provisions of this Lease or
otherwise, including all costs, damages, expenses, court costs and reasonable
attorneys' fees incurred in or resulting from claims made by any person or
persons, by other tenants in the Property, their subtenants, agents, employees,
customers and invitees.
21.0.1 Liability Insurance. Tenant, before undertaking any
Alterations, or any other improvement(s) or construction, shall
obtain and pay for a commercial liability insurance policy, as more fully set
forth in Section 13 below, insuring Landlord and Tenant against any liability
which may arise on account of such proposed Alterations or construction work in
limits of not less than Two Million and 00/100 Dollars ($2,000,000.00) combined
single limit coverage; a copy of such policy shall be delivered to Landlord
prior to the commencement of any such Alterations.
1.29 Compliance with Applicable Law. Tenant, at its sole cost and expense, shall
cause any Alterations, decorations, installations, additions, or improvements in
or about the Premises to be performed in compliance with all applicable
Page -13-
requirements of insurance bodies having jurisdiction, and in such manner as not
to interfere with, delay, or impose any additional expense upon Landlord in the
construction, maintenance, or operation of the Building, and so as to maintain
harmonious labor relations in the Building.
1.30 Liens. Tenant shall at all times indemnify, save and hold Landlord, the
Premises, the Property and the lease-hold created by this Lease free of and
harmless from any claims, liens, demands, charges, encumbrances, litigation and
judgments arising directly or indirectly out of any use, occupancy or activity
of Tenant, or out of any work performed, material furnished, or obligations
incurred by Tenant in, upon or otherwise in connection with the Premises. Tenant
shall give Landlord written notice at least seven (7) business days prior to the
commencement of any such work on the Premises to afford Landlord the opportunity
of filing appropriate notices of non-responsibility. Tenant shall, at its sole
cost and expense, within fifteen (15) days after filing of any lien of record,
obtain the discharge and release thereof. Nothing contained herein shall prevent
Landlord, at the cost and for the account of Tenant, from obtaining said
discharge and release in the event Tenant fails or refuses to do the same within
said fifteen (15) day period.
SECTION 9
PARKING AND COMMON AREAS
---------------------------
1.31 Common Areas. Tenant, its agents, employees, servants, contractors,
subtenants, licensees, customers and business invitees shall have the
nonexclusive right to utilize parking spaces in common with Landlord and all
others to whom Landlord has or may hereafter grant rights, to use such Common
Areas of the Property (including, but not limited to, the parking lot(s),
walkways, corridors, halls, passageways and ramps, sidewalks, access roads,
landscape and planted areas, public restrooms and other public facilities) as
designated from time to time by Landlord in its sole discretion (collectively,
the "Common Areas"), subject to such reasonable rules and regulations as
Landlord or the Association may, from time to time, impose. Tenant agrees that
it, its agents, employees, servants, contractors, subtenants, invitees and
licensees shall abide by such rules and regulations. Landlord may at any time,
upon written notice to Tenant (except in the case of an emergency), close any
such Common Areas, (i) to make repairs or changes; (ii) to prevent the
acquisition of public rights in such Common Areas; or (iii) to discourage
noncustomer parking. Landlord shall operate, manage, equip, light, repair and
maintain the Common Areas for their intended purposes in such manner as
Landlord, in its sole discretion, shall determine. Landlord reserves the right
to dedicate all or portions of such Common Areas and other portions of the
Property for public utility purposes. Landlord may do such other acts in and to
the Common Areas as in its sole judgment may be desirable. Tenant shall not at
any time interfere with the rights of Landlord, other tenants, its and their
agents, employees, servants, contractors, subtenants, licensees, customers and
business invitees to use any part of the parking lot or Common Areas. Landlord
shall not be subject to any liability, nor shall Tenant be entitled to any
compensation, or reduction or abatement of rent, by reason of any alteration or
diminution of the Common Areas, and no such alteration or diminution of the
Common Areas shall be deemed constructive or actual eviction.
1.32 Parking Space Leasing. Tenant shall not be permitted to park on any access
roads and drives located within the Property ("Prohibited Parking"). Tenant
shall be allocated sixty-seven (67) spaces for unreserved, uncovered parking
spaces at no charge during the Lease Term ("Parking Allotment"). Landlord shall
not have the risk of loss regarding any vehicle. Tenant shall not use more
parking spaces than its Parking Allotment, or any spaces (i) which have been
specifically assigned by Landlord to other tenants or for other uses (e.g., as
visitor parking); or (ii) which have been designated by governmental entities of
competent jurisdiction as being restricted to certain uses. In the event that
Landlord determines in good faith that Tenant is exceeding its Parking
Allotment, Landlord shall give Tenant notice of such fact ("Notice of Excessive
Parking") and shall require Tenant to provide Landlord with Tenant's employees
State license plate numbers within five (5) business days of its
receipt of said initial notice. In the event that Tenant receives three (3)
Notices of Excessive Parking in any six (6) month period, Landlord shall be
entitled to, in addition to any other remedies, including, but not limited to,
towing, charge Tenant Twenty-Five and 00/100 Dollars ($25.00) per day per car in
any prohibited area. Tenant's use of the parking area shall be based upon a
non-exclusive use in common with Landlord, other tenants of the Building, and
their guests and invitees. Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked in areas
Page -14-
other than those designated by Landlord for such activities. If Tenant permits
or allows any of such prohibited activities, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable upon demand by Landlord. Tenant agrees not to
use guest parking for its employees; unless waived in writing by Landlord, guest
parking is limited to guest use only. Tenant acknowledges that, subject to the
express rights of Tenant set forth herein, Landlord has the right to allocate
parking spaces in such manner as it shall determine in its sole discretion.
21.0.1 Covered Parking. Tenant's Parking Allotment shall include
twenty-six (26) reserved covered parking spaces at the market
rate, which is currently Thirty-Five and 00/100 Dollars ($35.00) per month, per
parking space. A separate license agreement shall be entered into by and
between Landlord and Tenant for said reserved parking spaces.
SECTION 10
LANDLORD'S SERVICES
--------------------
1.33 Landlord Services. Landlord agrees to provide Tenant, as Landlord deems
reasonably necessary, and subject to: (i) limitations contained in any
governmental controls, now or hereafter imposed, or matters beyond Landlord's
reasonable control; (ii) cessation on a temporary basis for reasonable
necessity; (iii) tenants requiring excess amounts of services for the conduct of
their business, in which event, at Landlord's discretion and with notice to such
tenant, the cost of such excess services shall be allocated to that particular
tenant on a equitable allocation basis and payable as Additional Rent hereunder,
as billed to the tenant by the Landlord; (iv) Landlord's Duty to Repair, more
fully set forth in Section 10.3 below; and (v) Tenant's obligation in connection
with the Property Operating Costs, the following services:
11. Cleaning and janitorial service five (5) days each week throughout the
Term so that the Premises and Common Areas of the Building are cleaned according
to the standards set forth in the janitorial service specifications attached as
Exhibit E;
12. Electrical, heating and air-conditioning service to the Common Areas
during normal business hours, Monday through Friday from 7:00 a.m. to 6:00 p.m.
and on Saturday from 9:00 a.m. to 2:00 p.m., except on recognized Federal or
State of Nevada Holidays, but all costs in excess of Landlord's Share, shall be
promptly paid by Tenant, as a part of Additional Rent defined in Section 3.3.
Tenant shall be permitted to install or use computer, calculator or similar
equipment; provided, however, (i) no such equipment shall exceed the maximum
legal structural load bearing capacity of the floor(s) of the Premises; (ii)
Tenant shall notify Landlord in writing of any and all such additional
equipment; and (iii) any additional costs of operation and maintenance
associated with such additional equipment shall be paid as Additional Rent by
Tenant to Landlord on the date Base Rent is due as such rates are established by
Landlord. All such charges from Landlord to Tenant shall be promptly paid to
Landlord within thirty (30) days following receipt of billing therefor by
Landlord. All costs associated with metering or submetering not included as part
of the budgeted Property Operating Costs shall be borne by Tenant. Should Tenant
desire either heating or air-conditioning at times other than the normal
business hours as set forth above within the Common Areas, Landlord will furnish
such services as requested by Tenant, but at Tenant's expense and at such hourly
charge as is from time-to-time determined by Landlord (currently Forty-Five and
00/100 Dollars ($45.00) per hour), which charges Tenant shall pay within thirty
(30) days following receipt of billing therefor by Landlord;
13. Normal facilities for furnishing light and electric power for the
operation of primary office equipment such as typewriters, lamps, adding
machines, computers, and calculators, dictating equipment, and clocks. Normal
facilities for electric power is defined as follows: (i) electricity drawn from
Building standard receptacles being 1 watt per usable square foot of the
Premises per hour; (ii) Building standard lighting being 2.5 xxxxx per usable
square foot of the Premises per hour; and (iii) electricity to operate the
Building heating and air conditioning systems being 6.0 xxxxx per usable square
foot of the Premises per hour. Tenant shall not be permitted to exceed any of
the amounts of electricity as referenced herein without Landlord's prior written
approval. Landlord's approval shall be determined at Landlord's sole discretion
and, in the event, Landlord grants its permission to Tenant to use more than
Tenant's permitted allotment of electricity, Landlord may pass through to Tenant
any additional costs to purchase and install equipment, circuit panels and
circuit
Page -15-
breakers, electrical submeters and the like, incurred in providing electricity
in excess of that which is stated herein, to Tenant, in addition to the cost of
such excess electricity use. Any additional costs to Tenant for electrical
consumption in excess of that stated herein shall be deemed to be Additional
Rent and shall be due from Tenant in the same manner of payment set forth in
Section 3 of this Lease. Tenant has requested excess heating and
air-conditioning services at times other than the normal business hours as set
forth above within the Premises. Landlord will furnish such services as
requested by Tenant, at Tenant's expense and at an hourly charge of Twenty-Five
and 00/100 ($25.00) per hour for such excess hours ("Additional Service").
Tenant must subscribe to one hundred (100) hours of Additional Service per year
for the Term of this Lease, which amount shall be pro rated for calendar year
2002 (33 hours). In the event that Tenant requires more than the Additional
Service (or different hours for the Additional Service than pre-arranged, as set
forth below) to the Premises, Landlord will furnish such services as requested
by Tenant, but at Tenant's expense and at an hourly charge of Forty-Five and
00/100 ($45.00) per hour. Tenant shall remit to Landlord the cost of said excess
electricity within thirty (30) days following receipt of billing therefor by
Landlord. All electrical cost may be subject to periodic increases imposed upon
Landlord by the electrical utility provider, in such event Landlord shall
provide Tenant with commercially reasonable documentation evidencing such
increases. Prior to the Commencement Date Tenant shall schedule with Landlord
the desired hours for the Additional Service through December 31, 2002. Tenant
shall have thirty (30) days following the end of the calendar year 2002 to
notify Landlord whether it intends to continue the Additional Service for the
following calendar year, and the schedule of hours for said year should it
desires to continue the Additional Service;
14. Repair and maintenance service for Tenant's heating, ventilating and
air-conditioning system;
15. Repair and maintenance service of plumbing within the Premises;
16. Utilities for the reasonable use of the Premises by Tenant;
17. Water and sewer reasonably used in the Premises and the Common Areas
with the exception of commercial enterprises which require excessive amounts of
water for the conduct of their business, the latter cost thereof being paid as
Additional Rent hereunder as billed to Tenant by Landlord;
18. Landscaping, streetscaping, parking lot repair and maintenance and
sweeping and electrical power for the Common Areas and lighting for the Common
Areas of the Property and other areas of the Property; and
19. A system for limited access to the Building during other than normal
business hours shall be provided in such form as Landlord deems appropriate.
Landlord may charge a reasonable fee for card keys or other security devices.
Landlord, however, shall have no liability to Tenant, its employees, agents,
invitees or licensees for losses due to theft or burglary, or for damages
resulting from the actions of unauthorized persons on the Premises or in the
Building and Landlord shall not be required to insure against any such losses.
Tenant shall cooperate fully in Landlord's efforts to maintain security in the
Building and shall follow all regulations promulgated by Landlord with respect
thereto. Subparagraphs (a) through (i) shall collectively be referred to as
"Landlord's Services."
The failure by Landlord, to any extent, to furnish, or the interruption or
termination of Landlord's Services, in whole or part, resulting from causes
beyond the reasonable control of Landlord shall not render Landlord liable in
any respect, nor be construed as an eviction of Tenant, nor work an abatement of
Aggregate Monthly Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used in
the provision of such services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on account of an
interruption in service resulting therefrom; provided that Landlord shall use
commercially reasonable efforts to restore any Landlord Service which has been
interrupted, as soon as practicable. Notwithstanding the foregoing, if any of
the Landlord's Services are not restored within five (5) business days, Tenant's
Page -16-
Aggregate Monthly Rent under this Lease shall xxxxx each day after such five (5)
business day period that such service is not restored. If Landlord fails to
perform any maintenance or repair work required hereunder within thirty (30)
days following Landlord's receipt of written notice from Tenant of the need for
such repairs (or such period of time in excess of thirty (30) days, as is
reasonably necessary based upon the nature of such work, provided Landlord
commences and diligently pursues the work during such thirty (30) day period),
then Tenant shall be permitted to make such repairs upon delivery of an
additional three (3) business days' prior written notice to Landlord indicating
that Tenant will be undertaking such repairs, and Tenant shall be entitled to
recover from Landlord the reasonable costs of such repairs made by Tenant.
1.34 Improvements to Common Areas. Landlord reserves the right from time to time
without unreasonable interference with Tenant's access to, or use, of the
Premises: (i) to install, use, maintain, repair and replace pipes, ducts,
conduits, wires and appurtenant meters and equipment for service to other parts
of the Building above the ceiling surfaces, below the floor surfaces, within the
walls and in the central core areas, and to relocate any pipes, ducts, conduits,
wires and appurtenant meters and equipment included in the Premises which are
located in the Premises or located elsewhere outside the Premises, and to expand
the Building; (ii) to make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, loading and unloading areas, ingress, egress, direction of traffic,
landscaped areas and walkways and parking spaces and parking areas, provided
that such changes do not materially interfere with or adversely affect Tenant's
use of the Premises and/or the parking areas; (iii) to close temporarily any of
the Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available and advance written notice to Tenant is given; (iv)
to use the Common Areas while engaged in making additional improvements, repairs
or alterations to the Property, or any portion thereof; and (v) to do and
perform such other acts and make such other changes in, to or with respect to
the Common Areas and Property as Landlord may, in the exercise of sound business
judgment, deem to be appropriate.
1.35 Landlord's Duty to Repair. Landlord agrees to keep in good
order, condition and repair the foundations, exterior walls, roof of the
Building, plumbing and electrical systems of the Premises, except for reasonable
wear and tear and except for any damage thereto caused by any act or negligence
of Tenant or its agents, employees, servants, contractors, subtenants,
licensees, customers or business invitees. It is an express condition precedent
to all obligations of Landlord to repair and maintain the Premises that Tenant
shall have notified Landlord in writing of the need for such repairs or
maintenance. The cost of such repairs shall be included in the Property
Operating Costs, as such term is defined herein, or as to repairs of the
Premises, otherwise directly billed to Tenant, as the case may be. All repair,
maintenance, upkeep, and the like, upon or within the Premises, shall be the
responsibility of and at the expense of Tenant during the entire Lease Term,
except for any obligations of Landlord as set forth herein.
21.0.1 Utility Service Facilities. All additions to the utility
service facilities and equipment of the Property which may be installed
for the specific need of Tenant shall be Tenant's responsibility to
maintain and repair.
SECTION 11
LAWS AND REGULATIONS
--------------------
1.36 Americans With Disabilities Act. Landlord shall, subject to reimbursement
as part of the Property Operating Costs, be responsible for any alterations,
modifications or improvements to the Building and Property which are required
under Title III of the Americans With Disabilities Act, hereinafter referred to
as the "ADA." Landlord represents and warrants to Tenant, that to the best of
the Landlord's knowledge, that as of Substantial Completion of the base
Building, Landlord's Work and the operation of the base Building will be in full
compliance with applicable building codes, environmental, zoning and land use
laws, and other applicable local, state and federal laws, regulations and
ordinances, including but not limited to ADA.
1.37 Insurance Services Office. Tenant shall, at Tenant's sole cost and expense,
be responsible for any alterations, modifications or improvements to the
Premises, and the acquisitions of any auxiliary aids required under the ADA
Page -17-
after the Occupancy Date, and regulations of any ISO (Insurance Services Office)
or any other body or entity exercising similar functions in force during the
Term and affecting the Building, the Premises or Tenant's use thereof, including
all alterations, modifications, or improvements required: (i) as a result of
Tenant (or any subtenant, assignee, or concessionaire) being a "Public
Accommodation" (as defined in the ADA); (ii) as a result of the Premises being a
"Commercial Facility" (as defined in the ADA); (iii) as a result of any
Alterations made to the Premises by, or on behalf of, Tenant or any subtenant,
assignee, or concessionaire (whether or not Landlord's consent to such
Alterations was obtained); or (iv) as a result of the employment by Tenant (or
any subtenant, assignee, or concessionaire) of any individual with a disability.
1.38 Storage of Disposition of Hazardous Materials. Tenant will not cause
or permit the storage, use, generation, or disposition of any Hazardous
Materials in, on, or about the Premises or the Property by Tenant, its agents,
employees, or contractors. Tenant will not permit the Premises to be used or
operated in a manner that may cause the Premises or the Property to be
contaminated by any Hazardous Materials in violation of any Hazardous Materials
Laws. Tenant will immediately advise Landlord in writing of: (i) any and all
known enforcement, cleanup, remedial, removal, or other governmental or
regulatory actions instituted, completed, or threatened pursuant to any
Hazardous Materials Laws relating to any Hazardous Materials affecting the
Premises; and (ii) all known claims made or threatened by any third party
against Tenant, Landlord, or the Premises relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any Hazardous Materials
on or about the Premises. Without Landlord's prior written consent, Tenant will
not take any remedial action or enter into any agreements or settlements in
response to the presence of any Hazardous Materials in, o/n, or about
the Premises.
21.0.1 Hazardous Materials and Substances. For purposes of this
Lease, "Hazardous Materials" means any explosives, radioactive materials,
hazardous wastes, or Hazardous Substances, including, without limitation,
substances defined as "Hazardous Substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
9601-9657; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
1801-1812; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
6901-6987; or any other federal, state, or local statute, law, ordinance, code,
rule, regulation, order, or decree regulating, relating to, or imposing
liability or standards of conduct concerning Hazardous Materials, waste, or
substances now or at any time hereafter in effect (collectively, "Hazardous
Materials Laws").
1.38.1.1 The foregoing notwithstanding, Tenant shall be entitled to use and
maintain such limited quantities of materials that may otherwise be defined as
"Hazardous Substances," "Hazardous Materials," "toxic substances" or "solid
waste" as used in the ordinary course of Tenant's business; provided, that such
"materials" are properly maintained, stored and disposed of, and that Tenant
complies with all laws, ordinances, rules and regulations applicable thereto and
that Tenant bears all responsibility and liability therefor.
1.39 Indemnification. Tenant will be solely responsible for and will defend,
indemnify and hold Landlord, its partners, directors, officers, employees,
agents, successors and assigns, the Property and Landlord's management agent for
the Property harmless from and against all claims, costs, and liabilities,
including attorney's fees and costs, arising out of or in connection with
Tenant's breach of its obligations in this Section 11. Tenant will be solely
responsible for and will defend, indemnify, and hold Landlord, its agents, and
employees harmless from and against any and all claims, costs, and liabilities,
including attorney's fees and costs, arising out of or in connection with the
removal, cleanup, and restoration work and materials necessary to return the
Premises and any other property of whatever nature located in, on, or about the
Building, to their condition existing prior to the introduction of Hazardous
Materials by Tenant, its agents, employees or contractors. The foregoing
indemnity shall further apply to any residual contamination on, under, from or
about the Premises, the Property or the property in general, or affecting any
natural resources arising in connection with the use, generation, manufacturing,
production, handling, storage, transport, discharge or disposal of any such
Hazardous Substance, and irrespective of whether any of such activities were or
will be undertaken in accordance with environmental laws or other applicable
laws, regulations, codes and ordinances. Tenant's obligations under this Section
11 will survive the expiration or other termination of this Lease.
21.0.1 Exclusion for Tenant's Liability.
Page -18-
Notwithstanding the above, Tenant shall not be responsible for
handling, removal or treatment of any Hazardous Substance which is present prior
to the delivery of the Premises to Tenant. Landlord hereby agrees to defend,
indemnify, and hold Tenant, its partners, directors, officers, employees,
agents, successors and assigns, harmless (including defending and paying
Tenant's attorney's fees) from and against any liability arising out of or
attributable to Landlord, its agents', contractors', servants', or employees'
use, generation, manufacture, production, storage, release, threatened release,
discharge, disposal or the presence of any Hazardous Substance on, under, from,
or about the Premises prior to the date of delivery of the Premises, or on the
Property. The indemnity provided for in this Section 11 shall survive the
termination of this Lease.
1.40 Jeopardize Insurance Policies. Tenant will not do or permit to be done any
act or thing upon the Premises or the Building which would: (i) jeopardize or be
in conflict with fire insurance policies covering the Building or covering any
fixtures and property in the Building; (ii) increase the rate of fire insurance
applicable to the Building to an amount higher than it otherwise would be for
general office use of the Building; or (iii) subject Landlord to any liability
or responsibility for injury to any person or persons or to the property by
reason of any business or operation being carried on or upon the Premises.
SECTION 12
TAXES
-----
1.41 Taxes. Tenant shall be liable for and shall pay before delinquency (and,
upon demand by Land-lord, Tenant shall furnish Landlord with satisfactory
evidence of the payment thereof) all taxes, fees, bonds and assessments of
whatsoever kind or nature, and penalties and interest thereon, if any, levied
against Tenant's personal property or any other personal property of whatsoever
kind and to whomsoever belonging to, situated on or installed in or upon the
Premises whether or not affixed to the realty. If at any time during the Term of
this Lease any such taxes on personal property are assessed as part of the tax
on the real property of which the Premises is a part, then in such event Tenant
shall pay to Landlord the amount of such additional taxes as may be levied
against the real property by reason thereof.
1.42 Excise Tax. If at any time during the Term, under the laws of the United
States, Nevada or any political sub-division thereof, a tax or excise on rent or
other tax (except income tax), however described, is levied or assessed by the
United States, Nevada or said political subdivision against Landlord on account
of any rent reserved under this Lease, all such tax or excise on rent or other
taxes shall be paid by Tenant. Whenever Landlord shall receive any statement or
xxxx for any such tax or shall otherwise be required to make any payment on
account thereof, Tenant shall pay, as Additional Rent, the amount due hereunder
within ten (10) days after demand therefor accompanied by delivery to Tenant of
a copy of such tax statement, if any.
21.0.1 Contest Validity. Tenant, at Tenant's own cost and expense,
may, in good faith so desire, contest the validity or amount
of any taxes in which event Tenant may defer the payment thereof for such period
as such contest shall be actively prosecuted and shall be pending undetermined,
so long as such proceedings and any appeals shall not operate to legally prevent
the collection of such payments and/or force the sale of the Premises and/or
Property to satisfy any lien arising out of the non-payment of the same.
SECTION 13
INSURANCE
---------
1.43 General Liability Insurance. Tenant shall, at all times during the Term, at
its sole cost and expense, pro-cure and maintain in full force and effect a
policy or policies of commercial general liability insurance coverage issued by
an insur-ance carrier having an A.M. Best rating of at least A-VIII or higher
and authorized to transact business in the State of Nevada assuring against
loss, damage or liability for injury or death to persons and loss or damage to
property occurring from any cause whatsoever in connection with the Premises or
Tenant's use thereof. Such liabil-ity insurance shall be in amounts not less
than One Million and 00/100 Dollars ($1,000,000.00) per occurrence and Two
Million and 00/100 Dollars ($2,000,000.00) aggregate, or Two Million and 00/100
Dollars ($2,000,000.00) combined single limit coverage. Such insurance shall
also cover and include all exterior signs maintained by Tenant hereunder.
Landlord shall be named as an additional insured
Page -19-
(and at Landlord's option, any other persons, firms or corporations designated
by Landlord shall be additionally named insureds) under each such policy of
insur-ance. Each such party shall be designated as an additional insured under
ISO endorsement CG 20 10 3 97 or such other comparable endorsement upon
Landlord's reasonable request.
1.44 Special Peril Property Insurance. Tenant shall, at all times during the
Term, at its sole cost and expense, procure and maintain in full force and
effect "special peril" property insurance covering not less than one hundred
percent (100%) of the current replacement value of the Tenant's Improvements on
or within the Premises and the personal property therein.
1.45 Certificate of Insurance. A certificate issued by the insurance carrier for
each policy of insurance required to be maintained by Tenant hereunder shall be
delivered to Landlord and all other named insureds on or before the Commencement
Date hereof and thereafter, as to policy renewals, within thirty (30) days prior
to the expiration of the term of each such policy. Each certificate of insurance
and each such policy of insurance required to be maintained by Tenant hereunder
shall be in form and substance reasonably satisfactory to Landlord and shall
expressly evidence insurance coverage as required by this Lease and shall
contain an endorsement or provision requiring not less than thirty (30) days'
prior written notice to Landlord and all other named insureds of the
cancellation. As to any proposed diminution in the perils insured against, or
reduction of the amount of coverage of the particular policy in question,
initiated (i) by the insurer, shall require not less than thirty (30) days'
prior written notice to Landlord; and (ii) by Tenant, shall require not less
than thirty (30) days' prior written notice to Landlord.
1.46 Use of Premises. Tenant shall not use, occupy or permit the Premises to be
used or occupied, in a manner which will make void or voidable any insurance
then in force with respect thereto or the Property, or which will make it
impossible to obtain casualty or other insurance with respect to the Property.
1.47 Waiver of Recovery Rights. The parties hereto hereby
waive any and all rights of recovery from the other, their respective partners,
officers, agents and employees for any loss or damage, including consequential
loss or damage, caused by any peril or perils (including negligent acts)
enumerated in each form of insurance policy required to be maintained by the
other hereunder.
1.48 Waiver of Subrogation. Each policy of insurance provided for in this
Section 13 shall contain an express waiver of any and all rights of subrogation
thereunder whatsoever against the insured party, its partners, officers, agents
and employees, to the extent of the insurance coverage required under this
Lease. All such policies shall be written as primary policies and not
contributing with or in excess of the coverage, if any, which such party may
carry. Any other provision contained in this Section or elsewhere in this Lease
notwithstanding, the amounts of all insurance required hereunder to be paid by a
party shall be not less than an amount sufficient to prevent the other party
from becoming a co-insurer.
1.49 Prohibited Sales or Activity. Tenant agrees that it will not keep, use,
sell or offer for sale in or upon the Premises or any section thereof, any item,
or permit any activity, which may be prohibited by the standard form of casualty
or public liability insurance policy. Tenant agrees to pay any increase in
premiums for insurance which may be carried by Landlord on the Premises or the
Building of which it is a part, resulting from the use or activities in the
Premises, whether or not Landlord has consented to the same. In determining
whether increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization making the insurance rate on the Premises,
showing various components of such rate, shall be conclusive evidence of the
several items and charges which make up the respective insurance rate on the
Premises.
1.50 Prohibited Use Deemed Ultra Hazardous. Tenant shall not use or occupy the
Premises or any part thereof, or suffer or permit the same to be used or
occupied for any business or purpose deemed ultra hazardous on account of fire
or otherwise. In the event Tenant's use and/or occupancy causes any increase of
premium for insurance on the Premises or any part thereof above the rate for the
least hazardous type of occupancy legally permitted in the Premises, Tenant
shall pay such additional premium on the insurance policy that may be carried by
Landlord for its protection. Bills for such additional premiums shall be
rendered by Landlord to Tenant at such time as Landlord may elect, and shall be
due from and payable by Tenant when rendered in writing, but such increase in
Page -20-
the rate of insurance shall not be deemed a breach of this covenant by Tenant.
Failure to pay amounts due hereunder shall be a breach of the Lease.
1.51 Landlord's Maintenance of Special Peril Property Insurance. Landlord shall,
at all times during the Term, subject to Tenant's obligation for its Pro-Rata
Share of the Property Operating Costs, procure and maintain in full force and
effect "special peril" property insurance against perils included therein
(excluding flood and earthquake), boiler and machinery coverage and such further
coverage as Landlord may conclude is necessary covering not less than one
hundred percent (100%) of the current replacement value of the Building in which
the Premises is situated and its improvements. The insurer therefor shall meet
the minimum requirements as otherwise set forth above. Mortgagee(s) of the
Property or any portion thereof may be named as additional insureds thereon.
Such insurance shall also cover all exterior signs maintained by Landlord
hereunder.
1.52 Landlord's Maintenance of General Liability Insurance. Landlord shall,
during the Term, subject to Tenant's obligation for its pro-rata share of the
Property Operating Costs, procure and maintain in full force and effect a policy
or policies of commercial general liability insurance assuring against loss or
damage or liability for injury or death to persons and loss or damage to
property occurring from any cause whatsoever in connection with the Property.
Such liability insurance shall be in an amount of not less than One Million and
00/100 Dollars ($1,000,000.00) per occurrence and Two Million and 00/100 Dollars
($2,000,000.00) aggregate. Such insurance shall also cover and include all
exterior signs maintained by Landlord hereunder. The insurer therefor shall meet
the minimum requirements as otherwise set forth above. Mortgagee(s) of the
Property or any portion thereof may be named as additional insureds thereon.
SECTION 14
INDEMNIFICATION
---------------
1.53 Indemnification. Tenant hereby indemnifies, saves and holds Landlord, the
Premises, the Property, the leasehold estate and Landlord's management agent for
the Property free of and harmless from any and all liabilities, losses, costs,
expenses, including attorney's fees (at trial, and on appeal), causes of action,
suits, judgments, claims, liens and demands of any kind whatsoever in connection
with, arising out of, or by reason of any act, omission or negligence of Tenant,
its agents, employees, servants, contractors, subtenants, licensees, customers
or business invitees while in, upon, about or in any way connected with the
Premises or the Property or arising from the use and occupancy of the Premises
by Tenant, or occasioned wholly or in part by any act or omission of Tenant, its
subtenants, agents, contractors, employees, servants, lessees or
concessionaires, excepting, however, such claims and demands, whether for
injuries to persons or loss of life, or damage to property, caused by the gross
negligence or wilful misconduct of Landlord. If, however, any liability arises
in the Common Areas because of the gross negligence or wilful misconduct of
Tenant, Tenant's subtenants, agents, employees, contractors, invitees, customers
or visitors, then in such event Tenant shall hold Landlord harmless. In case
Landlord shall, without fault on its part, be made a party to any litigation
relating to claims and demands described in this Section 14.1, then Tenant shall
protect and hold Landlord harmless and shall pay all costs, expenses and
reasonable attorney's fees that may be incurred or paid by Landlord in enforcing
the covenants and agreements of this Lease. Landlord shall not be liable for any
damage arising from any acts or neglect of co-tenants or other occupants of the
Property or of adjacent property or of the public.
1.54 Landlord's Liability. Landlord shall indemnify, defend and save Tenant, its
agents, employees, servants, contractors, subtenants, licensees, customers, or
business invitees harmless from and against any and all claims, demands,
actions, suits, losses, damages, costs, expenses and liabilities of any kind or
nature by or in favor of anyone whomsoever, resulting from or in connection with
loss of life, bodily injury or property damage arising out of the use or
maintenance of the Common Areas or occurring within the Common Areas and arising
solely and directly out of the negligence of Landlord or its employees, agents,
servants, contractors or subcontractors.
SECTION 15
SUBORDINATION AND NONDISTURBANCE
--------------------------------------
Page -21-
1.55 Subordination. Subject to the receipt by Tenant of the nondisturbance
agreement described in Section 15.4 below, in a commercially reasonably form
executed by the holder of the mortgage (the "Mortgagee"), Tenant agrees upon
request of Landlord to subordinate every term, provision and covenant in this
Lease to the lien of any mortgage, deed of trust or other encumbrance (a
"Mortgage"), together with any renewals, extensions, or replacement thereof, now
or hereafter placed, charged or enforced against the Premises, or any portion of
the Property of which the Premises is a part. If the holder of a Mortgage
becomes the owner of the Property by reason of foreclosure or acceptance of a
deed in lieu of foreclosure, at such holder's election, this Lease and Tenant's
right to possession of the Premises shall not be disturbed, and Tenant will be
bound to such holder or its designee under all the terms and conditions of this
Lease, and Tenant will be deemed to have attorned to and recognized such holder
or its designee as Landlord's successor-in-interest for the remainder of the
Term. Tenant, upon ten (10) business days' written request by Landlord, will
execute and deliver without charge, a commercially reasonably document(s)
acceptable to Landlord or such holder in order to confirm the subordination
and/or attornment set forth above. Tenant's failure to respond to Landlord's
request to negotiate in good faith and execute any such documents referred to in
this Section 16.1, at the expiration of such ten (10) day period, shall
constitute an immediate default (without notice from Landlord or additional time
to cure) by Tenant and shall entitle Landlord to exercise its rights at law, in
equity or under this Lease.
1.56 Prior Lien. In the event that the Mortgagee or beneficiary of any such
mortgage or deed of trust elects to have this Lease a prior lien to its mortgage
or deed of trust, then and in such event, upon such Mortgagee's or beneficiary's
giving written notice to Tenant to that effect, this Lease shall be deemed prior
in lien to such mortgage or deed of trust, whether this Lease is dated prior to
or subsequent to the date of recordation of such mortgage or deed of trust.
1.57 Attornment. Tenant shall, in the event of the exercise of any power of sale
under any deed of trust or any proceedings that are brought for the foreclosure
of a lien affecting the Property, in which the Premises are situated, attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this Lease, and such purchaser shall recognize the interest
of the Tenant under the Lease, provided that Tenant is not then in default under
this Lease.
1.58 Nondisturbance. With respect to each Mortgage that may encumber the
Property, at or after the commencement of the Term, Landlord agrees that
promptly following receipt of a written request by Tenant (one time only), to
ask the holder of the Mortgage to grant Tenant a "nondisturbance agreement," in
a commercially reasonable form of such holder. The term of the "nondisturbance
agreement," as used herein, shall mean, in general, an agreement that, as long
as Tenant is not in default under this Lease, this Lease will not be terminated
if such holder acquires title to the Property by reason of foreclosure
proceedings or acceptance of a deed in lieu of foreclosure, provided that Tenant
attorns to such holder, in accordance with its requirements. Except for making
such written request, Landlord will be under no duty or obligation hereunder,
nor will the failure or refusal of such holder to grant a nondisturbance
agreement render Landlord liable to Tenant, or affect this Lease, in any manner.
Tenant will bear all costs and expenses, including attorneys' fees, of such
holder in connection with a nondisturbance agreement.
SECTION 16
ASSIGNMENT AND SUBLETTING
----------------------------
1.59 Assignment. Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein. Any one or more (in the aggregate) transfers of
more than a twenty percent (20%) interest in the Tenant shall be deemed to be an
assignment under this Lease (including, but not limited to, any change in
ownership or power to vote, on a cumulative basis, of a majority of Tenant's
outstanding voting stock). Any attempted assignment or sublease by Tenant in
violation of the terms and covenants of this Section 16 shall be void. Tenant
shall not: (i) assign or in any manner transfer this Lease or any estate or
interest therein; (ii) permit any assignment of this Lease or any estate or
interest therein, whether by operation of law or otherwise; (iii) sublet the
Premises or any part thereof; (iv) grant any license, concession, franchise or
other right of occupancy in the Premises or any part thereof; or (v) mortgage,
pledge or otherwise encumber its interest or estate in this Lease or in the
Premises without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or conditioned, and any such acts shall be ineffective
as against Landlord. Waiver by Landlord as to any assignment or subletting
shall not operate as a waiver of the prohibition contained herein or of
Landlord's rights as to any subsequent assignment or subletting.
Notwithstanding any assignment or subletting, Tenant shall at all times remain
fully responsible and liable for the performance of all Tenant's covenants and
obligations under this Lease. If any default of this Lease should occur while
the Premises or any part thereof are then assigned or sublet, Landlord, in
Page -22-
addition to any other rights and remedies which Landlord may have whether
hereunder, at law or in equity, may at its option collect directly from such
assignee or sublessee all rent becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord by Tenant
hereunder, and Tenant hereby authorizes and directs any such assignee or
sublessee to make such payments of said rent directly to Landlord upon receipt
of notice from Landlord. No direct collection by Landlord from any such
assignee or sublessee shall be construed to constitute a novation or a release
of Tenant from the performance of its covenants and obligations hereunder.
Landlord is authorized and empowered, on behalf of Tenant, to endorse the name
of Tenant upon any check, draft or other instrument payable to Tenant evidencing
payment of rent, or any part thereof, and to receive and apply the proceeds
therefrom in accordance with the terms hereof.
21.0.1 Permitted Assignees. Notwithstanding anything to the
contrary contained in this Lease, Tenant may, upon ten (10) days' written notice
to, but without any requirement of consent by Landlord, assign this Lease to a
wholly owned subsidiary of Tenant, to an affiliate of Tenant, to an entity that
is controlled by, controls or is under common control with Tenant, or any person
or entity simultaneously acquiring, by asset or stock transfer, consolidation,
merger, sale or reorganization, a majority of Tenant's assets, provided such
assignee assumes this Lease in its entirety, and agrees to perform the
obligations of Tenant under this Lease ("Permitted Assignee(s)"). Further, if
Tenant is a corporation or a partnership, or a publicly traded company, as
defined by applicable federal securities laws, then, in any such event, any
change of ownership resulting in a change of majority control from those persons
or entities not having control will not be deemed an assignment or transfer
requiring Landlord's consent. For purposes herein, "control" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, or majority ownership of any
sort, whether through ownership or voting securities, by contract or otherwise.
21.0.2 Proposed Assignee. In the event that Tenant requests
Landlord's consent to assign or otherwise transfer this Lease,
sublet or license all or any part of the Premises, Tenant shall submit to
Landlord the name, address, financial statement, credit authorization and
business experience resume for the immediately preceding three (3) years of the
proposed assignee, transferee or subtenant and such other information concerning
such proposed assignee, transferee or subtenant as Landlord may reasonably
require. This information shall be in writing and shall be received by Landlord
not less than thirty (30) days prior to the effective date of the proposed
assignment, transfer or sublease.
21.0.3 Default. Notwithstanding any of the foregoing provisions, if Tenant,
at the time of any request to approve an assignment or sublease, is in default
under any of the terms of this Lease, beyond any applicable notice and cure
period, Tenant may not assign, transfer, or sublet the Premises, in whole or in
part, until such default is cured.
1.60 Option to Terminate. If Tenant requests Landlord's consent to an
assignment of this Lease or subletting of all or part of the Premises, Landlord
shall have the option (without limiting Landlord's other rights hereunder) of
terminating this Lease upon thirty (30) days' notice. Landlord may then, at
Landlord's option, lease space to the prospective assignee or subtenant. In the
event that Landlord elects to terminate this Lease, Tenant may, if it so elects,
by written notice to the Landlord within five (5) business days after receipt of
Landlord's termination notice, revoke its notice to assign or sublet, and in
such event, this Lease shall continue in full force and effect as if such notice
for assignment or sublet had not been given. If Landlord should fail to notify
Tenant in writing of its decision within a twenty (20) day-period after Landlord
is notified in writing of the proposed assignment or sublease, Landlord shall be
deemed to have refused to consent to such proposed assignment or sublease, and
to have elected to keep this Lease in full force and effect.
1.61 Bonus Rent. In the event that Landlord does consent to any assignment or
sublet pursuant to this Section 16, then Landlord may also require, as a
condition to such consent, that Tenant agree to pay Landlord as Additional Rent,
Page -23-
one hundred percent (100%) of any Bonus Rent received by Tenant. For purposes of
this Lease, Bonus Rent shall mean sums or other economic consideration (i) which
Tenant receives pursuant to the terms of the assignment or sublet, whether or
not denominated rentals under the transfer, and which sums are in excess of
total sums which Tenant is obligated to pay Landlord under this Lease (to be
pro-rated if only a portion of the Premises is subject to such transfer); less
(ii) (a) reasonable leasing commissions paid by Tenant; (b) other reasonable
out-of-pocket costs paid by Tenant, including attorney's fees, advertising
costs, and expenses of subtenant improvements or other expenses of readying the
Premises for occupancy by the transferee; and (c) any consideration paid to the
transferee or any third party to induce the transferee to consummate the
transfer. This covenant and assignment shall run with the land and shall bind
Tenant and Tenant's heirs, executors, administrators, personal representatives,
successors and assigns. This Section shall not apply to Permitted Assignees.
1.62 Remedies. No assignment, sublease or other transfer consented to by
Landlord shall release Tenant or change Tenant's primary liability to pay the
rent and to perform all other obligations of Tenant under this Lease. Upon the
occurrence of any default under this Lease, beyond any applicable notice and
cure period, Landlord may proceed directly against Tenant without the necessity
of exhausting any remedies against any subtenant or assignee. Upon termination
of this Lease, any permitted subtenant shall, at Landlord's option, attorn to
Landlord and shall pay all rent directly to Landlord. Landlord's acceptance of
rent from any other person shall not constitute a waiver of any provision of
this Section 16. Consent to one (1) transfer shall not constitute a consent to
any subsequent transfer. Landlord may consent to subsequent assignments or
modifications of this Lease by Tenant's transferee, without notifying Tenant or
obtaining its consent. Such action shall not relieve Tenant of its liability
under this Lease.
1.63 Processing Fee. Tenant shall reimburse Landlord a processing fee in an
amount not to exceed Seven Hundred Fifty and 00/100 Dollars ($750.00) as
reimbursement to Landlord for any and all legally-related expenses and
Landlord's administrative costs in connection with the review of assignment,
transfer or sublease-related documents, which may be incurred by Landlord in
connection therewith. Payment of such fee shall be submitted to Landlord along
with Tenant's request for Landlord's consent. This Section shall not apply to
Permitted Assignees.
SECTION 17
CONDEMNATION
------------
If the whole or substantially the whole of the Building or the Premises shall be
taken for any public or quasi-public use, by right of eminent domain or
otherwise or shall be sold in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the Building or the Premises is thus taken or sold,
Landlord (whether or not the Premises are affected thereby) may terminate this
Lease by giving written notice thereof to Tenant, in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. If the Lease is not
so terminated upon any such taking or sale, the Base Rent payable hereunder
shall be diminished by an equitable amount, and Landlord shall, to the extent
Landlord deems feasible promptly undertake to repair and restore the Building in
which the Premises are situated to a complete architectural unit, consistent
with the base Building and Landlord's Work specified in Exhibit C. Landlord, in
any event, shall not be required to spend for such work an amount in excess of
the amount received by Landlord as compensation for such taking. All amounts
awarded upon a taking of any part or all of the Building or the Premises shall
belong to Landlord, and Tenant shall not be entitled to and expressly waives all
claims to any such compensation.
SECTION 18
DAMAGE OR DESTRUCTION
---------------------
1.64 Destruction of Premises. In the event of the total or partial
destruction of the Building or the Premises, or any portion thereof, whether by
fire or other casualty, this Lease shall not terminate except as otherwise
specifically provided herein. Landlord shall promptly undertake to repair and
restore the Building in which the Premises is situated including Common Areas
therein consistent with the provisions of Section 18.2 below. Thereafter,
Tenant shall, in accordance with Section 18.2 below, promptly undertake and with
reasonable dispatch repair and reconstruct the Premises and other improvements
of the Tenant on the Premises. To the extent insurance proceeds are
Page -24-
insufficient therefor, Tenant shall be liable for any such differences. In
determining what constitutes reasonable dispatch, consideration shall be given
to delays caused by labor disputes, civil commotion, war, warlike operations,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or control, fire or other casualty, inability to obtain
any materials or services, acts of God and other causes beyond Tenant's
reasonable control. In the event of a casualty, not the result of Tenant's
negligence or wilful misconduct, such that the Premises are unusable to the
Tenant in the conduct of its business for a period of more than ten (10) days,
Base Rent shall be abated in proportion to the part of the Premises which is
unusable by Tenant in the conduct of business, as may be reasonably determined
by Landlord (but there shall be no abatement of Base Rent by reason of any
portion of the Premises being unusable for a period equal to ten (10) days or
less.
1.65 Reconstruction. The provisions of this Section 18 with respect to repair
and reconstruction by Landlord shall be limited as to that which is necessary to
place the Premises in the condition existing as of the Occupancy Date specified
in Landlord's Work Letter or like condition, and when placed in such con-dition
the Premises shall be deemed restored and rendered tenantable, promptly
following which time, but not more than ninety (90) days thereafter, subject to
extension of time for Force Majeure and Landlord Delays, as defined in Exhibit
----- -------
C, in the completion of its repair or restoration work, at Tenant's expense,
Tenant shall perform Tenant's Work and any and all modification, addition or
alteration subsequent thereto, and Tenant shall also repair and restore all
Alterations. Tenant shall also repair or replace its stock in-trade, fixtures,
furniture, furnishings, floor coverings and equipment.
21.0.1 Lease Termination. If the Premises cannot be restored and
Tenant's business opened within twelve (12) months following
such damage or destruction based upon a reasonable estimate therefor made by
Landlord's architect following such damage or destruction, then, and in such
event, Landlord or Tenant may, within thirty (30) days after written notice from
Landlord estimating the time to complete such repair or restoration (which
notice shall be given to Tenant within thirty (30) days of such damage or
destruction), elect to terminate this Lease by written notice to the other.
1.66 Insurance Proceeds Maintained by Tenant. All insurance proceeds payable
under any casualty insurance policy procured and maintained by Tenant shall be
payable solely to Tenant and/or its Mortgagee with the provision that such
proceeds shall be made available for repair and restoration of the Premises.
Tenant shall in no case be entitled to compensation or damages on account of any
annoyance or inconvenience in making repairs under any provision of this Lease.
Except to the extent pro-vided for in this Section 18, neither the rent payable
by Tenant nor any of Tenant's other obligations under any provision of this
Lease shall be affected by any damage to or destruction of the Premises or any
portion thereof by any cause whatsoever.
1.67 Insurance Proceeds Maintained by Landlord. All insurance proceeds payable
under any casualty insurance policy procured and maintained by Landlord shall be
payable solely to Landlord and/or its Mortgagee(s), and Tenant shall have no
interest therein. Landlord shall endeavor to see that the proceeds are made
available for repair and restoration as required of Landlord. Tenant shall in no
case be entitled to compensation or damages on account of any annoyance or
inconvenience in making repairs under any provision of this Lease. Except to the
extent provided for in this Section 18, neither the rent payable by Tenant nor
any of Tenant's other obligations under any provision of this Lease shall be
affected by any damage to or destruction of the Premises or any portion thereof
by any cause whatsoever.
SECTION 19
RIGHT OF ACCESS
-----------------
1.68 Right of Access. Landlord and its authorized agents and representatives
shall be entitled to enter the Premises with forty-eight (48) hours prior
written notice to Tenant (facsimile notice being acceptable), and with minimal
interference with Tenant's business at any reasonable time for the purpose of
observing, posting or keeping posted thereon notices provided for hereunder, and
such other notices as Landlord may deem necessary or appropriate for protection
Page -25-
of Landlord, its interest or the Premises; for the purpose of inspecting the
Premises or any portion thereof; to inspect the Premises relative to concerns
over use, storage or disposal of hazardous waste and chemicals; and for the
purpose of making repairs to the Premises or any other portion of the Property
and performing any work therein or thereon which Landlord may elect or be
required to make hereunder, or which may be necessary to comply with any laws,
ordinances, rules, regulations or requirements of any public authority or any
applicable standards that may, from time to time, be established by an Insurance
Services Office or any similar body, or which Landlord may deem necessary or
appropriate to prevent waste, loss, damage or deterioration to or in connection
with the Premises or any other portion of the Property or for any other lawful
purpose. Landlord shall have the right to use any means which Land-lord may deem
proper to open all doors in the Premises in an emergency. Entry into the
Premises obtained by Landlord by any such means shall not be deemed to be
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction
of Tenant from the Premises or any portion thereof. Nothing contained herein
shall impose or be deemed to impose any duty on the part of Landlord to do any
work or repair, maintenance, reconstruction or restoration which under any
provision of this Lease is required to be done by Tenant; the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to do the same.
1.69 Performance of Work. Landlord may, during the progress of any work on the
Premises, keep and store upon the Premises all necessary materials, tools and
equipment. Landlord shall not in any event be liable for inconvenience,
annoy-ance, disturbance, loss of business or quiet enjoyment, or other damage or
loss to Tenant by reason of making any such repairs or performing any such work
upon the Premises, or on account of bringing materials, supplies and equip-ment
into, upon or through the Premises during the course thereof, and the
obligations of Tenant under this Lease shall not thereby be affected in any
manner whatsoever. Landlord shall, however, in connection with the performance
of such work, cause as little inconvenience, disturbance or other damage or loss
to Tenant as may be reasonably possible under the circumstances.
1.70 Exhibiting Premises. Landlord, its authorized agents and representatives,
shall be entitled to enter the Premises upon not less than forty-eight (48)
hours prior written notice to Tenant (facsimile notice being acceptable), and
with minimal interference with Tenant's business at all reasonable times for the
purpose of exhibiting the same to prospective purchasers and, during the final
year of the Term of this Lease, Landlord shall be entitled to exhibit the
Premises for lease and post signs therein announcing the same.
SECTION 20
ESTOPPEL CERTIFICATE
---------------------
Tenant agrees that within ten (10) days of any demand therefor by Landlord,
Tenant will execute and deliver to Landlord and/or Landlord's designee a
recordable certificate stating that this Lease is in full force and effect (an
"Estoppel Certificate") in a form that is reasonably requested by Landlord.
Tenant acknowledges that any such statement may be relied upon by any Mortgagee
or prospective purchaser of the Building or any interest therein. In the event
that Tenant fails to execute any such certificate for Landlord within said ten
(10) days, Tenant shall be in immediate default under this Lease.
SECTION 21
TENANT'S DEFAULT/LANDLORD'S REMEDIES
----------------------------
1.71 Events of Default. Tenant's compliance with each and every covenant and
obligation hereof on its part to be performed hereunder is a condition precedent
to each and every covenant and obligation of Landlord hereunder. Any one or more
of the following shall be deemed to be an "Event of Default" by Tenant and a
material breach of this Lease:
21.0.1 Non-Payment of Money. If Tenant shall fail to pay Aggregate
Monthly Rent or any other amount or charge to be paid by
Tenant hereunder, within five (5) days of when they are due; or
21.0.2 Non-Monetary Non-Performance. If Tenant shall default in
the performance of any other term, covenant or condition of this Lease on the
part of Tenant to be kept and performed and such default continues for thirty
(30) days after written notice thereof from Land-lord to Tenant; provided,
however, that if the default complained of in
Page -26-
such notice is of such a nature that the same can be rectified or cured, but
cannot with reasonable diligence be done within said thirty (30) day period,
then such default shall be deemed to be rectified or cured if Tenant shall,
within said thirty (30) day period, commence to rectify and cure the same and
shall thereafter complete such rectification and cure with all due diligence; or
21.0.3 Abandonment of Premises. If Tenant shall abandon the
Premises for a period of ten (10) consecutive days; or
21.0.4 Bankruptcy. If there is filed any petition in
bankruptcy, or if Tenant is adjudicated as bankrupt or insolvent, or if there is
appointed a receiver or trustee to take possession of Tenant or of all or
substantially all of the assets of Tenant, or if there is a general assignment
by Tenant for the benefit of creditors, or if any action is taken by or against
Tenant under any state or federal insolvency or bankruptcy act, or if any
similar law now or hereafter in effect, including, without limitation, the
filing of execution or attachment against Tenant and such levy continues in
effect for a period of ninety (90) days. This provision hereof shall also apply
to any guarantor of this Lease or occupant of the Premises; or
21.0.5 Mechanic Liens. If Tenant does, or permits
to be done, any act which creates a mechanic's lien or claim thereof against the
Premises or the Property and fails to timely discharge same; or
21.0.6 Falsified Financial Reports. If Tenant falsifies any
monetary report to Landlord or fails to furnish Landlord with any monetary
report when due, and such default shall continue for twenty (20) days after
written notice from Landlord; or
21.0.7 Failure to Obtain Policies and/or Certificates of Insurance.
If Tenant fails to furnish Landlord with a copy of any insurance policy or
certificate required to be furnished by Tenant to Landlord when due, and such
default shall continue for thirty (30) days after written notice from Landlord;
or
21.0.8 Failure to Obtain Consent. If Tenant's causing, permitting
or suffering to be done any act (i) required by this Lease to have the prior
written consent of Landlord, unless such consent is so obtained; or (ii)
prohibited by this Lease; or
21.0.9 Intentionally Omitted.
21.0.10 Intentionally Omitted .
21.0.11 Failure to Perform Other Obligations. In addition to the
events constituting a default and breach of the Lease by Tenant as stated above,
if within any twelve (12) month period during the Term of the Lease, Tenant
shall have failed to perform any obligation required of Tenant hereunder, or has
been in breach for any reason under the Lease more than two (2) times, and
Landlord, because of any such failure and/or breach, shall have served upon
Tenant within said twelve (12) month period two (2) or more notices of any such
failure or breach, then any subsequent failure or breach shall be deemed a
noncurable default, without requirement of notice or opportunity to cure, and
Landlord shall be immediately entitled to exercise any and all rights, remedies
and/or elections specified below or otherwise available at law or in equity.
1.71.1 Cross-Defaults. The parties hereto acknowledge that in addition to
executing this Lease, Tenant has executed an additional lease with an affiliate
of Landlord's for space located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx,
dated __________, 2002, with 0000 Xxxxxxxxx Xxxxxx, LLC, as the landlord (the
"Additional Lease"). Any default, beyond any applicable notice and cure periods,
under this Lease shall constitute a default under the Additional Lease and any
default, beyond any applicable notice and cure periods, under the Additional
Lease shall constitute a default hereunder.
1.72 Additional Remedies. Upon the occurrence of an Event of Default,
Landlord shall have the right, in accordance with applicable laws, at its
election, then, or at any time thereafter, and while any such Event of Default
shall continue, either:
20. to give Tenant written notice of Landlord's intention to terminate this
Page -27-
Lease on the date such notice is given or on any later date specified therein,
whereupon, on the date specified in such notice, Tenant's right to possession of
the Premises shall cease and this Lease shall thereupon be terminated;
provided, however, that all of Tenant's obligations, including, but not limited
to, payment of the amount of Aggregate Monthly Rent and other obligations
reserved in this Lease for the balance of the Lease Term, shall immediately be
accelerated and due and payable; or
21. to the extent permitted by applicable law, to re-enter and take
possession of the Premises or any part thereof and repossess the same as
Landlord's former estate and expel Tenant and those claiming through or under
Tenant, and remove the effects of both or either, using such force for such
purposes as may be reasonably necessary, (i) without being liable for
prosecution thereof; (ii) without being deemed guilty of any manner of trespass;
and (iii) without prejudice to any remedies for arrears of rent or preceding
breach of covenants or conditions. Should Landlord elect to re-enter the
Premises as provided in this Section 21 or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Landlord may, from time to time, without terminating this Lease, relet the
Premises or any part thereof in Landlord's or Tenant's name, but for the account
of Tenant, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term of this Lease)
and on such conditions and upon such other terms (which may include concessions
of free rent, alteration, and repair of the Premises) as Landlord, in its
discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Premises or any part thereof or for any failure to collect any rent
due upon such reletting. No such re-entry or taking possession of the Premises
by Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention be given to Tenant. No
notice from Landlord hereunder or under a forcible entry and detainer statute or
similar law shall constitute an election by Landlord to terminate this Lease
unless such notice specifically so stated. Landlord reserves the right following
any such re-entry and/or reletting, to exercise its right to terminate this
Lease by giving Tenant such written notice, in which event, this Lease will
terminate as specified in said notice; or
22. the parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim (except for compulsory counterclaims) brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use of occupancy of the Premises, and/or any claim
of injury or damage. In the event Landlord commences any proceedings for
non-payment of any rent, Tenant will not interpose any counterclaim of whatever
nature or description in any such proceedings. This shall not, however, be
construed as a waiver of the Tenant's right to assert such claims in any
separate action or actions brought by Tenant.
1.73 Right to Possession. In the event that Landlord does not elect to
terminate this Lease as permitted in Section 21.2(a) hereof, but, on the
contrary, elects to take possession as provided in Section 21.2(b), Tenant shall
pay to Landlord (i) the rent and other sums as herein provided which would be
payable hereunder if such repossession had not occurred; less (ii) the net
proceeds, if any, of any reletting of the Premises after deducting all
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, reasonable legal
expenses, attorney's fees, expenses of employees, alteration and repair costs,
and expense of preparation for such reletting. If, in connection with any
reletting, the new lease term extends beyond the existing Lease Term, or the
premises covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the expenses incurred
in connection therewith as provided aforesaid will be made in determining the
net proceeds from such reletting. Tenant shall pay such apportioned rent and
other sums to Landlord, monthly on the days on which the rent would have been
payable hereunder if possession had not been taken.
1.74 Loss of Bargain. In the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant, as damages for loss of the bargain
and not as a penalty, an aggregate sum which, at the time of such termination of
this Lease, represents the excess, if any, of the aggregate of the rent and all
other sums payable by Tenant hereunder that would have accrued for the balance
of the Lease Term over the aggregate rental value of the Premises (such rental
value to be computed on the basis of a tenant paying not only rent to Landlord
for the use and occupation of the Premises, but also such other charges as are
required to be paid by Tenant under the terms of this Lease) for the balance of
such Lease Term. Alternatively, at Landlord's option, Tenant shall remain liable
to Landlord for damages in an amount equal to the rent and other sums arising
Page -28-
under the Lease for the balance of the Lease Term had the Lease not been
terminated, less the net proceeds, if any, from any subsequent reletting, after
deducting all expenses associated therewith and as enumerated above. Landlord
shall be entitled to receipt of such amounts from Tenant pro-rated monthly on
the days on which such sums would have otherwise been payable.
1.75 Actions for Recovery. Suit or suits for the recovery of the amounts and
damages set forth above may be brought by Landlord, from time to time, at
Landlord's election, and nothing herein shall be deemed to require Landlord to
await the date whereon this Lease or the Lease Term would have expired had there
been no such default by Tenant or no such termination, as the case may be.
1.76 Actions for all Rent. After an Event of Default by Tenant, Landlord may
xxx for or otherwise collect all rents, issues, and profits payable
under all subleases on the Premises, including those past due and unpaid.
1.77 Landlord not Liable for Trespass. After an Event of Default by Tenant, to
the extent permitted by applicable law, Landlord may, without terminating this
Lease, enter upon the Premises: (i) without being liable for prosecution of any
claim for damages; (ii) without being deemed guilty of any manner of trespass;
and (iii) without prejudice to any other remedies, and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may reasonably incur in
effecting compliance with the Tenant's obligations under this Lease; further,
Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from effecting compliance with Tenant's obligations under this Section
unless caused by the negligence of Landlord or otherwise.
1.78 No Waiver. No failure by Landlord to insist upon the strict performance
of any agreement, term, covenant, or condition hereof or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach of such agreement, term, covenant, or condition. No agreement,
term, covenant, or condition hereof to be performed or complied with by Tenant,
and no breach thereof, shall be waived, altered, or modified except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant, and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any unilateral termination of
this Lease, this Lease shall continue in full force and effect as to any
provisions hereof which require observance or performance of Landlord or Tenant
subsequent to termination (i.e. any and all insurance and indemnifications
provisions provided for herein).
1.79 Liquidated Damages. Nothing contained in this Section shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding,
an amount equal to the maximum allowed by any statute or rule of law governing
such proceeding and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amounts
recoverable, either as damages or rent, referred to in any of the provisions of
this Section.
1.80 Administrative and Interest Charges. Any rents or other amounts due and
owing to Landlord hereunder which are not paid within five (5) days of the date
they are due shall thereafter bear interest at the Default Interest Rate until
paid. In addition to the foregoing, Tenant shall pay to Landlord whenever any
Base Rent, Additional Rent, or any other sums due hereunder remain unpaid more
than five (5) days after the due date thereof, an
administrative charge (and not a penalty) to compensate Landlord for the costs
and expenses associated with handling a delinquent account equal to five percent
(5%) of the amount due.
23. Further, upon an Event of Default by Tenant, in addition to all other
rights and remedies, Landlord shall be entitled to receive from Tenant all sums,
the payment of which may previously have been waived or abated by Landlord, or
which may have been paid by Landlord pursuant to any agreement to grant Tenant a
rental abatement or other monetary inducement or concession, including, but not
limited to, any Tenant Improvement Allowance or moving allowance, together with
interest thereon from the date or dates such amounts were paid by Landlord or
would have been due from Tenant but for the abatement, at the Default Interest
Page -29-
Rate, until paid; it being understood and agreed that such concession or for
Recovery abatement was made on the condition and basis that Tenant fully perform
all obligations and covenants under the Lease for the entire Term. Nothing
herein contained shall limit any other remedy of Landlord provided for in this
Lease, at law or in equity. Landlord shall have the right to require that Tenant
pay monies due in the form of a money order or certified funds.
1.81 Landlord's Lien. Tenant agrees that Landlord shall have a Landlord's lien
on and against all real or personal property belonging to Tenant, Tenant's
agents, subtenants, or licensees, which real or personal property is situated on
or in the Premises, which lien shall secure the payment of all rental and
additional charges payable by Tenant to Landlord under the terms hereof.
SECTION 22
QUIET POSSESSION
-----------------
Tenant, upon paying the Base Rent, Additional Rent and all other charges and
monies herein required of Tenant, and upon Tenant's performance of all of the
terms, covenants and conditions of this Lease on its part to be kept and
per-formed, may quietly have, hold and enjoy the Premises during the Term of
this Lease without any disturbance from Landlord or from any other person
claiming through Landlord.
SECTION 23
CONVEYANCE BY LANDLORD
------------------------
In the event of any sale, transfer or exchange of the Premises by Landlord,
Land-lord shall be and is hereby relieved of all liability under any and all of
its covenants and obligations contained in or derived from this Lease, arising
out of any act, occurrence or omission relating to the Premises occurring after
the consummation of such sale, transfer, conveyance or exchange. Tenant agrees
to attorn to such purchaser, transferee or grantee.
SECTION 24
DEFAULT BY LANDLORD
---------------------
Subject to Section 10.1, it is agreed that in the event Landlord fails or
refuses to perform any of the provisions, covenants or conditions of this Lease
on Landlord's part to be kept or performed, that Tenant, prior to exercising any
right or remedy Tenant may have against Landlord on account of such default,
shall give written notice to Landlord of such default, specifying in said notice
the default with which Landlord is charged and Landlord shall not be deemed in
default if the same is cured within thirty (30) days of receipt of said notice.
Notwithstanding any other provision hereof, Tenant agrees that if the default
complained of in the notice provided for by this Section is of such a nature
that the -same can be rectified or cured by Landlord, but cannot with reasonable
diligence be rectified or cured by Landlord within said thirty (30) day period,
then such default shall be deemed to be rectified or cured if Landlord within a
thirty (30) day period shall commence the rectification and curing thereof and
shall continue thereafter with all due diligence to cause such rectification and
curing to proceed. In no event shall Tenant have the right to terminate or
rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease or as a result of the breach of any promise or
inducement hereof, whether in the Lease or elsewhere. Tenant hereby waives such
remedies of termination and recession and hereby agrees that Tenant's remedies
for default hereunder and for breach of any promise or inducement shall be
limited to a suit for specific performance, declaratory judgment, and/or
injunctive relief.
SECTION 25
FORCE MAJEURE
-------------
Whenever a day is appointed herein on which, or a period of time is appointed in
which, either party hereto is required to do or complete any act, matter or
thing, the time for the doing or completion thereof shall be extended by a
period of time equal to the number of days on or during which such party is
prevented from or is unreasonably interfered with, the doing or completion of
such act, matter or thing because of labor disputes, civil commotion, war,
warlike operation, sabotage, governmental regulations or control, fire or other
casualty, inability to obtain any materials, or to obtain fuel or energy,
weather or other acts of God, terrorism, or bioterrorism, or other causes beyond
Page -30-
such party's reasonable control (financial inability excepted); provided,
however, that nothing contained herein shall excuse Tenant from the prompt
payment of any rent or charge required of Tenant hereunder.
SECTION 26
NOTICES
-------
1.82 Notices. Any and all notices and demands by or from Landlord to Tenant, or
by or from Tenant to Landlord, required or desired to be given hereunder shall
be in writing and shall be validly given or made if served either personally, or
delivered by recognized commercial courier that requires a written
acknowledgment of delivery (such as Federal Express), or if deposited in the
United States mail, certified or registered, postage prepaid, return receipt
re-quested. All notices given in accordance with this Section shall be effective
when actually received; provided, however, that the first attempted delivery of
any notice which was not delivered as a result of a change of address of which
the sending party was not notified or as a result of any party's refusal to
accept delivery shall be deemed receipt.
21.0.1 Address of Landlord Address of Landlord. Any notice or
demand to Landlord shall be addressed to Landlord at:
000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attn: Vice President Property Management
with a copy to:
American Nevada Realty
000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attn: Legal Department
21.0.2 Address of Tenant Address of Tenant. Any notice or demand
to Tenant shall be addressed to Tenant at the Premises with a copy to:
Mego Financial Corp.
0000 Xxxxxxxx Xx.
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxx Xxxxxx, General Counsel
1.83 Change of Address. Any party hereto may change its address for the purpose
of receiving notices or demands as herein provided by a written notice given in
the manner aforesaid to the other party hereto, which notice of change of
address shall not become effective, however, until the actual receipt thereof by
the other party.
SECTION 27
HOLDOVER TENANCY
-------------
In the event of holding over by Tenant after the expiration of the Term of this
Lease (the "Expiration Date"), or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Section 21.2, Tenant shall throughout the entire holdover period pay rent equal
to two hundred percent (200%) of the Base Rent, which would have been applicable
had the Term of this Lease continued through such holding over by Tenant. If
Tenant remains in possession of all or any part of the Premises after the
expiration of the Lease Term, with the express written consent of Landlord: (i)
such tenancy will be deemed to be a periodic tenancy from month-to-month only;
(ii) such tenancy will not constitute a renewal or extension of this Lease for
Page -31-
any further term; and (iii) such tenancy may be terminated by Landlord upon the
earlier of thirty (30) days prior written notice or the earliest date permitted
by law. Such month-to-month tenancy will be subject to every other term,
condition, and covenant contained in this Lease including the Base Rent and
Additional Rent provisions. Nothing contained in this Section 27 shall be
construed as consent by Landlord to any holding over of the Premises by Tenant,
and Landlord expressly reserves the right to require Tenant to surrender
possession of the Premises to Landlord upon the expiration or earlier
termination of this Lease. If Tenant fails to surrender the Premises upon the
expiration or earlier termination of this Lease, despite demand to do so by
Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or
liability, including, without limitation, any claim made by any succeeding
tenant founded on or resulting from such failure to surrender.
SECTION 28
REMEDIES CUMULATIVE
--------------------
The various rights, options, elections and remedies of Landlord contained in
this Lease shall be cumulative and no one of them shall be construed as
exclusive of any other, or of any right, priority or remedy allowed or provided
for by law and not expressly waived in this Lease.
SECTION 29
SUCCESSORS AND ASSIGNS
------------------------
The terms, provisions, covenants and conditions contained in this Lease shall
apply to, bind and inure to the benefit of the heirs, executors, administrators,
legal representatives, successors and assigns of Landlord and Tenant (where
permitted), respectively.
SECTION 30
PARTIAL INVALIDITY
------------------
If any term, covenant or condition of this Lease, or any application thereof,
should be held by a court of competent jurisdiction to be invalid, void, or
unenforceable, all terms, covenants and conditions of this Lease, and all
applications thereof, not held invalid, void, or unenforceable shall continue in
full force and effect and shall in no way be affected, impaired or invalidated
thereby.
SECTION 31
TIME OF THE ESSENCE
-------------------
Time is of the essence of this Lease and all of the terms, covenants and
conditions hereof.
SECTION 32
ENTIRE AGREEMENT
----------------
This Lease contains the entire agreement between the parties and shall not be
amended, changed or terminated orally.
SECTION 33
NO PARTNERSHIP
--------------
Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and agent,
or of partnership, or of joint venture, or of any association between Landlord
and Tenant. Neither the method of computation of rent nor any other provisions
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship between Landlord and Tenant other than the relationship
of landlord and tenant.
SECTION 34
BROKERS
-----------
The parties hereto warrant that they have had no dealings with any broker or
agent in connection with this Lease other than the Broker, for which Landlord
shall be responsible for the payment of a real estate commission, pursuant to a
separate agreement with Broker. Landlord and Tenant hereby hold each other
Page -32-
harmless and indemnify the other from and against any and all cost, expense, or
liability including legal fees and costs in defense thereof, for any
compensation, commissions and charges claimed by any broker or agent, other than
Broker, with respect to this Lease or the negotiation thereof based on any such
broker's or agent's representation of Tenant or Landlord.
SECTION 35
SAVINGS CLAUSE
--------------
In the event the Term of this Lease shall not have commenced within one (1) year
from the date of execution hereof, this Lease shall become null and void and
Landlord and Tenant shall thereupon be released from any and all obligations
with respect thereto.
SECTION 36
ATTORNEYS' FEES
---------------
In the event any action at law or in equity, or any special proceeding, be
instituted by either of the parties hereto against the other to enforce this
Lease, or any rights arising hereunder, or in connection with the subject matter
hereof, the prevailing party shall be entitled to recover all costs of suit and
reasonable attorney's fees at trial and on appeal.
SECTION 37
INSOLVENCY AND DEATH
------------------------
It is understood and agreed that neither this Lease nor any interest herein or
hereunder, nor any estate hereby created in favor of Tenant, shall pass by
operation of law under any state or federal insolvency, bankruptcy or
inheritance act, or any similar law now or hereafter in effect, to any trustee,
receiver, assignee for the benefit of creditors, heir, legatee, devisee, or any
other person whomsoever without the express prior written consent of Landlord.
SECTION 38
GENERAL PROVISIONS
------------------
1.84 Captions. The captions appearing at the commencement of the Sections hereof
are descriptive only and for convenience of reference to this Lease and in no
way whatsoever define, limit or describe the scope or intent of this Lease, nor
in any way affect this Lease.
1.85 Pronouns. Masculine or feminine pronouns shall be substituted for the
neuter form and vice versa, and the plural shall be substituted for the singular
form and vice versa, in any place or places herein in which the context requires
such substitution(s).
1.86 Governing Law. The laws of the State of Nevada shall govern the validity,
construction, performance, enforcement and effect of this Lease. Any legal
action under this Lease or in any way pertaining to this Lease must be
instituted and maintained in Xxxxx County, Nevada. The exclusive venue of any
action or proceeding arising out of or in connection with this Lease shall be
Xxxxx County, Nevada. Each party hereby consents to the personal jurisdiction of
any court of competent subject matter jurisdiction sitting in Xxxxx County,
Nevada, and to the service of process in accordance with the laws of the State
of Nevada and any rules applicable to such court.
1.87 Words of Obligation. Whenever in this Lease any words of obligation or duty
are used in connection with either party, such words shall have the same force
and effect as though framed in the form of express covenants on the part of the
party obligated.
1.88 Joint and Several Liability. In the event Tenant now or hereafter shall
consist of more than one person, firm or corporation, then and in such event,
all such persons, firms or corporations shall be jointly and severally liable as
Tenant hereunder.
1.89 Execution of Lease. The submission of this Lease for examination does not
constitute a reservation of or option to lease the Premises; this Lease becomes
effective as a Lease only upon execution by Landlord and delivery thereof by
Landlord to Tenant.
21.0.1 Deposit. Upon acceptance of Tenant's offer to lease under the terms
Page -33-
hereof and receipt by Landlord of a deposit in connection with Tenant's
submission of said offer, Landlord shall be entitled to retain such deposit and
apply same to damages, costs and expenses incurred by Landlord in the event
Tenant fails to occupy the Premises, and subject to Landlord completing the
Landlord's Work in accordance with Exhibit C. If Landlord declines said offer,
any such deposit shall be returned to Tenant.
1.90 Notice of Claim. Should any claim or lien be filed against the Premises, or
any action or proceeding be instituted affecting the title to the Premises,
Tenant shall give Landlord written notice thereof as soon as Tenant obtains
actual or constructive knowledge thereof.
1.91 Neutral Construction. This Lease shall not be construed either for or
against Landlord or Tenant, but this Lease shall be interpreted in accordance
with the general tenor of its language.
1.92 Construction Allowance. Tenant agrees and acknowledges that Landlord has
bargained for Tenant's full and faithful compliance with the terms of the Lease,
and Tenant's full and faithful payment of all Base Rent, Additional Rent and
other charges and monies to be paid by Tenant. Therefore, if Landlord has
granted Tenant any construction allowance, Tenant Improvement Allowance, free
rent, or other monetary concession, all such concessions and/or benefits to
Tenant shall be effective only so long as Tenant is not in default of any term,
covenant or provision of this Lease. Thus, should Tenant default hereunder, in
addition to any amounts owing from Tenant to Landlord as a result of such
default, the full amount of any such construction allowance, Tenant Improvement
Allowance, free rent and/or other monetary concession shall be immediately due
and payable by Tenant to Landlord upon demand. If such default by Tenant occurs
after the first full Lease Year of the Term, the total amount provided to Tenant
as construction allowance or Tenant Improvement Allowance shall be reimbursed to
Landlord, equitably prorated in proportion to the balance of the Lease Term, any
free rent or other monetary concessions shall be reimbursed to Landlord in full.
1.93 Third Party Beneficiary Status. Tenant acknowledges that, by entering into
this Lease with Landlord, Tenant has not become a third party beneficiary of any
lease between Landlord and any other tenant of the Property, and that no part of
the inducement to Tenant to enter into this Lease was any promise or covenant of
Landlord, express or implied, to enforce any other lease for the benefit of
Tenant.
1.94 Limited Liability. The obligations of Landlord under this Lease do not
constitute personal obligations of Landlord, or its members, managers, partners,
directors, officers, or shareholders, and Tenant shall look solely to Landlord's
interest in the Property and to no other assets of Landlord for satisfaction of
any liability with respect to this Lease and will not seek recourse against the
members, managers, partners, directors, officers, or shareholders of Landlord
herein, nor against any of their personal assets for such satisfaction.
SECTION 39
OPTION TO EXTEND
--------------
1.95 Extension Term. Provided Tenant is in compliance with each and every term,
covenant and condition of this Lease at the time that Tenant notifies Landlord
of its intent to exercise its Option to Extend, as defined herein, and on the
commencement date of any extension granted hereby, Tenant shall have the right
and option to extend this Lease ("Option to Extend") for one (1) consecutive
additional term of five (5) years ("Extension Term").
21.0.1 Commencement Date. The Extension Term
shall commence at the expiration of the original Term of this Lease.
1.96 Notice of Election. The Option to Extend shall be exercised by Tenant
giving Landlord notice in writing of such election to extend at least nine (9)
months, but not more than twelve (12) months, prior to the expiration of the
original Term.
21.0.1 Adjustment of Base Rent. Such Extension Term shall be on
the same terms, covenants, and conditions as provided herein for the original
Term, except that the Base Rent provided in Section
Page -34-
1.1.5 of the Lease shall be determined in accordance with this Section. The
Base Rent payable by Tenant during the initial year of the Extension Term shall
be equal to the fair market rental value of the Premises ("FMV"), as defined
below, as of the commencement date of the Extension Term.
nn. Within thirty (30) days following the Tenant's notification to
exercise its Option to Extend, Landlord shall furnish Tenant with Landlord's
good faith determination of the FMV for the Premises for the applicable
Extension Term ("Landlord's Determination"). Tenant shall have thirty (30) days
following receipt of Landlord's Determination to elect to proceed with the
exercise of its Option to Extend by executing an amendment to this Lease,
reflecting the adjustment to Base Rent.
b. As used herein, the term "FMV" shall mean the average annual rental,
expressed as a rate per rentable square foot, which a willing, comparable,
non-equity, Tenant would pay for comparable space, and that a willing Landlord,
exercising reasonable business judgment, would accept, at arms-length for
comparable space in a comparable building product type, comparable business park
environment, limited to facilities and proximity to amenities within the Green
Valley and airport sub-markets, as evidenced where possible by leases that
commence or are to commence on or about the commencement of the applicable
Extension Term ("Comparison Leases"), adjusted to account for variations between
this Lease and the Comparison Leases with respect to all relevant terms and
conditions, including, without limitation, the brokerage commissions, and tenant
improvements or tenant allowances, the age and quality of construction of the
Building and the relative credit worthiness and financial strength of Tenant as
compared to the tenants under Comparison Leases.
1.97 Termination of Option to Extend. The Option to Extend shall automatically
terminate and become null and void upon the earlier to occur of: (i) the
termination of Tenant's right to possession of the Premises; (ii) the assignment
by Tenant of this Lease, in whole or in part, excepting therefrom to Permitted
Assignees; (iii) the sublease by Tenant of all or any part of the Premises,
excepting therefrom to Permitted Assignees; (iv) the recapture by Landlord of
all or any portion of the Premises under Section 21; or (v) the failure of
Tenant to timely or properly exercise the Option to Extend.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date set forth above.
LANDLORD TENANT
CORPORATE CTR. IV, LLC, MEGO FINANCIAL CORP.,
a Nevada limited liability company a New York corporation
By: Silver Springs, Inc.,
s/s Xxxxxx X. Xxxxxxxxxx
_______________________________
a Nevada corporation, By:
Xxxxxx X. Xxxxxxxxxx
_______________________________
Its Manager Title: Chief Financial Officer
_______________________________
By: s/s Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx,
Senior Vice President
Page -00-
XXXXXXX X-0
LEGAL DESCRIPTION OF
0000 XXXXXXXXX XXXXXX
That portion of Section Nineteen (19), Township Twenty-two (22) South, Range
Sixty-two (62) East, M.D.M., City of Xxxxxxxxx, Xxxxx County, Nevada, being a
portion of Lot Four (4) as shown on record of Survey on file in File 82 of
Surveys, Page 6, in the Office of the County Recorder, Xxxxx County, Nevada,
also being a portion of Lot One (1) of Green Valley/Pebble Commercial Center, as
shown by map thereof on file in Book 64 of Plats, Page 68, in the Office of the
County Recorder of Xxxxx County, Nevada, being more particularly described as
follows:
COMMENCING at the Northwest (NW) Corner of the Northeast Quarter (NE 1/4) of
said Section Nineteen (19); thence along the Northerly line of said Section
Nineteen (19), South 89o05'55" East 657.42 feet; thence Xxxxx 00x00'00" Xxxx
362.98 feet to the westerly line of Parcel "A," as shown on Record of Survey on
file in File 81 of Surveys, Page 1, in the Office of the County Recorder, Xxxxx
County, Nevada; thence Xxxxx 00x00'00" Xxxx along said Westerly line of Parcel
"A," 287.61 feet to the Southwest (SW) Corner of said Parcel "A" and the TRUE
POINT OF BEGINNING, said point also being the Northwest (NW) Corner of Parcel
"B" of said Record of Survey on file in File 81 of Surveys, Page 1;
Thence South 74o27'51" West 421.99 feet to the beginning of a 184.00 foot radius
non-tangent curve to the right; thence along said curve to the right through a
central angle of 55o47'05" (the long chord of which bears Xxxxx 00x00'00" Xxxx
172.16 feet) for an arc distance of 179.15 feet to a point of tangency;
Thence South 40o55'05" West 33.43 feet to the beginning of a 308.55 foot radius
non-tangent curve to the left;
Thence along said curve to the left through a central angle of 48o41'39" (the
long chord of which bears Xxxxx 00x00'00" Xxxx 254.41 feet) for an arc distance
of 262.23 feet;
Thence North 08o42'17" West 10.01 feet;
Xxxxxx Xxxxx 00x00'00" Xxxx 10.00 feet;
Thence Xxxxx 00x00'00" Xxxx 10.01 feet to the beginning of a 308.55 foot radius
non-tangent curve to the left; thence along said curve to the left through a
central angle of 05o54'10" (the long chord of which bears Xxxxx 00x00'00" Xxxx
31.77 feet) for an arc distance of 31.79 feet; thence North 74o27'51" East
275.00 feet to the southerly extension of the westerly line of said Parcel "B;"
thence North 15o32'09" West along the westerly line of said Parcel "B" and it's
southerly extension 307.72 feet to the TRUE POINT OF BEGINNING.
Containing 3.213 acres, more or less.
APN #178-19-511-021
Legal prepared by: WRG Design, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
May 8, 2000
EXHIBIT A-2
SITE PLAN OF PROPERTY
EXHIBIT A-3
SCHEMATIC OF BUILDING
EXHIBIT A-4
SITE PLAN OF PREMISES WITHIN BUILDING
EXHIBIT A-5
SCHEMATIC OF PREMISES
EXHIBIT B
MEMORANDUM OF COMMENCEMENT DATE
AND CONFIRMATION OF RENTABLE AREA
The Commencement Date of that Lease by and between CORPORATE CTR. IV, LLC,
a Nevada limited liability company, as Landlord, and MEGO FINANCIAL CORP., a New
York corporation, as Tenant, as provided for in Section 1.1.9 of said Lease is
the __ day of _____, 200_. The Lease expiration date is the __ day of _____,
200_.
Further, the parties hereto confirm that the Rentable Area (i) of the
Premises shall be deemed to be __________ square feet; and (ii) of the Building
shall be deemed to be __________ square feet; and (iii) of the Usable Area of
the Premises shall deemed to be __________ square feet, which may be adjusted
from time to time. Tenant's Pro-Rata Portion shall be ____%.
Dated: _______ __, 2002.
LANDLORD TENANT
CORPORATE CTR. IV, LLC, MEGO FINANCIAL CORP.,
a Nevada limited liability company a New York corporation
By: Silver Springs, Inc., _________________________________
a Nevada corporation, By:______________________________
Its Manager Title:___________________________
By: ________________
Xxxxxxx X. Xxxxx,
Senior Vice President
EXHIBIT C
LANDLORD'S WORK LETTER
THIS WORK LETTER ("Work Letter") is attached to and made a part of that
certain Lease at 0000 Xxxxxxxxx Xxxxxx, dated May __, 2002, by and between
CORPORATE CTR. IV, LLC, a Nevada limited liability company, as Landlord, and
MEGO FINANCIAL CORP., a New York corporation, as Tenant, covering the Premises
(the "Lease").
General
-------
24. The purpose of this Work Letter is to set forth how the Tenant
Improvements in the Premises are to be constructed, who will undertake the
construction of the Tenant Improvements, who will pay for the construction of
the Tenant Improvements, and the time schedule for completion of the
construction of the Tenant Improvements.
25. Except as defined in this Work Letter to the contrary, all terms
utilized in this Work Letter shall have the same meaning ascribed to them in the
Lease.
26. When work, services, consents or approvals are to be provided by or on
behalf of Landlord, the term "Landlord" shall include Landlord's Employees.
27. The provisions of the Lease, except where clearly inconsistent or
inapplicable to this Work Letter, are incorporated into this Work Letter.
28. The Tenant Improvements shall be constructed pursuant to this Work
Letter. Landlord shall provide the Tenant an Allowance, as such term is defined
in Section 3 below, and Landlord shall provide possession of the Premises to
Tenant upon the Substantial Completion of the Tenant Improvements, as more fully
set forth in the Lease and this Work Letter.
3. Plans and Specifications for Tenant Improvements
-----------------------------------------------------
21.1 Selection of Designer. Tenant shall select an architect or
designer (hereinafter referred to as the "Designer") of its choice, to prepare
the plans and specifications for the Tenant Improvements. The Designer shall be
selected by Tenant, subject to Landlord's consent, which consent shall not be
unreasonably withheld, and which consent (or refusal to consent) shall be
granted or denied, within three (3) days following the submission of the name of
said Designer to Landlord. The following Designer, Xxxxxx & Xxxxxxxxx, if
retained by Tenant, is hereby deemed consented to by Landlord. All plans and
specifications shall be submitted to Landlord in accordance with the schedule
set forth in Section 6 below. Tenant shall be solely responsible for the design
and function of such plans and specifications, including, without limitation,
their integration with all of the Building systems.
21.2 Space Plan. Landlord shall submit the Building plans and
specifications to Designer, to permit Designer to complete the Premises space
plans, sufficient to convey the architectural design of the Premises, including,
without limitations, displaying all demising walls, corridors, entrances, exits,
location of doors, partitions, the location of all offices, conference rooms,
computer rooms, millwork, finishes, electrical, data and telephone outlets,
plumbing fixtures, heavy floor loads and other special requirements, together
with reflective ceiling plans (the "Space Plan"). Tenant shall cause the
Designer to submit the Space Plan to Landlord for approval, within such time
frame, as is more fully elaborated in Section 6 below. If Landlord shall
disapprove of any portion of the Space Plan, Landlord shall advise Tenant of
recommended revisions to the Space Plans, and reasons therefor, as are required
by Landlord for the purpose of obtaining approval. Tenant shall then submit to
Landlord, for Landlord's approval, a redesign of the Space Plan, incorporating
the recommended revisions and such modifications thereof as may be suggested by
Tenant (said modifications to be subsequently approved by Landlord prior to
Tenant's submission of Final Plans).
21.3 Final Plans. Landlord shall submit the Building plans and
specifications to Designer, to permit Designer to complete the Premises final
plans, sufficient to convey the architectural design of the Premises, including,
without limitations, displaying all demising walls, corridors, entrances, exits,
location of doors, partitions, the location of all offices, conference rooms,
computer rooms, millwork, finishes, electrical, data and telephone outlets,
plumbing fixtures, heavy floor loads and other special requirements, together
with reflective ceiling plans (the "Final Plan"). Tenant shall cause the
Designer to submit the Final Plan to Landlord for approval, within such time
frame, as is more fully elaborated in Section 6 below. If Landlord shall
disapprove of any portion of the Final Plan, Landlord shall advise Tenant of
recommended revisions to the Final Plans, and reasons therefor, as are required
by Landlord for the purpose of obtaining approval. Tenant shall then submit to
Landlord, for Landlord's approval, a redesign of the Final Plan, incorporating
the recommended revisions and such modifications thereof as may be suggested by
Tenant (said modifications to be subsequently approved by Landlord prior to
Tenant's submission of Final Plan).
21.4 Indemnification. Tenant acknowledges that, unless specifically
shown as Landlord's responsibility on the Final Plans, Landlord shall not be
responsible for the design, construction or installation of, various
nonstructural items which Tenant may find desirable for the Premises including,
without limitation, furniture, trade fixtures, office equipment, telephone,
telecommunications and data equipment and systems, artwork or cabling required
in connection with any of these items.
21.5 Tenant Improvement Permits. Landlord shall be responsible for
obtaining all permits for the Tenant Improvements, and Tenant shall cooperate
with Landlord in obtaining approval of the Final Plans by all governmental
agencies having jurisdiction.
4. Allowance for Work and Work Costs
--------------------------------------
21.1 Allowance. Tenant shall receive from Landlord an Allowance, which
Allowance shall be used solely for "Work Costs," as that term is defined in
Section 3.2 below, in an amount equal to Thirty and 00/100 Dollars ($30.00) per
square foot of Usable Area of the Premises, which Allowance may be increased by
an amount equal to three (3) months of Base Rent, calculated at Two and 10/100
Dollars ($2.10) per month for each square foot of Usable Area of the Premises
(the "Additional Allowance"). All Tenant Improvements, whether or not the cost
thereof is covered by the Allowance and/or the Additional Allowance, shall
become the property of Landlord upon expiration or earlier termination of the
Lease and shall remain on the Premises at all times during the Lease Term. The
Allowance and Additional Allowance shall be provided to Tenant only during the
original Term of this Lease. In the event that Tenant elects to increase the
Allowance by all or a portion of the Additional Allowance, the amount of said
Additional Allowance utilized by Tenant to increase the Allowance shall be
deducted from the rental abatement provided to Tenant as more fully set forth in
Section 3.1 of the Lease.
4.1 Work Costs. As used herein, "Work Costs" shall include all expenses
associated with space planning, engineering, construction drawings, construction
of Tenant's Premises, any necessary permits, so long as they are associated with
the improvement of the Premises, including but not limited to: (i) engineering
fees for the review of the Tenant's Space Plans and Final Plans; (ii) the actual
contractor costs and charges for material and labor, contractor's profit,
overhead and general conditions incurred by Landlord in having the Tenant
Improvements constructed in accordance with the Final Plans; (iii) governmental
agency plan check, permit and other fees and sales and use taxes; (iv) testing
and inspection costs; (v) any paint touch-up or repair work necessary due to
Tenant's move into the Premises; (vi) all other costs expended or to be expended
by Landlord in the construction of the Tenant Improvements including, window
blind system within the Premises, fluorescent light fixtures, air balancing, and
other pre-stocked materials; and (vii) a fee to be paid to Landlord equal to
five percent (5%) of all Work Costs for construction management by Landlord of
construction of the Tenant Improvements.
5. Construction
------------
21.1 General Contractor. Upon the approval of the Final Plans,
Landlord shall submit the Final Plans to Xxxxxx Custom Builders, who shall act
as the general contractor on this project (the "General Contractor").
21.2 Submittal of Work Costs to Tenant. Following the submittal of the
Finals plans to the General Contractor, Landlord shall submit to Tenant
Landlord's Work Costs estimate, based upon the Final Plans ("Work Cost
Estimate"). Landlord's Work Cost Estimate shall include a reasonable
contingency to allow for changes in Tenant Improvements and/or other unforeseen
costs and expenses arising after Tenant's approval thereof.
21.3 Tenant Improvement Overage. In the event that the Work Cost
Estimate exceeds the sum of the Allowance and the Additional Allowance, in the
event Tenant elects to utilize same ("Tenant Improvement Overage"), Tenant shall
pay one hundred percent (100%) of the Tenant Improvement Overage, to Landlord,
prior to the commencement of construction of the Tenant Improvements. Landlord
shall not be required to commence construction of the Tenant Improvements until
Landlord receives the Tenant Improvement Overage.
21.4 Commencement of Tenant Improvements. Following: (i) Tenant's
payment of any Tenant Improvement Overage; and (ii) receipt by Landlord of all
relevant governmental agency approvals and permits, Landlord shall cause the
General Contractor to commence the construction of the Tenant Improvements per
the Final Plans. Landlord shall furnish Tenant with a schedule setting forth
the projected completion dates therefor and showing the deadlines for any
actions required to be taken by Tenant during such construction. Landlord may,
from time to time, during the construction of the Tenant Improvements,
reasonably modify or amend such schedule.
21.5 Modifications to Final Plans. Any changes to the approved Final
Plans ("Changes") which are requested by Tenant, or required by any governmental
agency, as a result of the requested Changes by Tenant, shall be forwarded to
Landlord for approval and pricing. If Landlord approves of the Changes, Tenant
shall be given a written cost estimate for the completion of said Changes, which
estimate must be approved by Tenant, prior to construction of the Changes. To
the extent the revised contract amount, inclusive of the Changes, exceeds the
sum of the Allowance and Additional Allowance, if Tenant elects to use such
Additional Allowance, Tenant shall pay to Landlord one hundred percent (100%) of
such excess, prior to Landlord commencing construction of the Changes ("Tenant
Additional Payments"), inclusive of a fee equal to five percent (5%) of the
cost of said Changes. Any delay in the construction of Tenant Improvements as a
result of Changes shall be a Tenant Delay, as defined in Section 7 below.
21.6 Construction Representatives. In connection with the construction
of the Tenant Improvements, each party shall be entitled to rely upon the other
party's construction representative who shall be as follows: Landlord's
construction representative ("Landlord's Construction Representative"): XXXXX
XXXXXX, Tenant's construction representative ("Tenant's Construction
Representative"): XXX XXXXXX of Plaza Construction Company. Each respective
construction representative shall have the authority to make binding commitments
relative to the Tenant Improvements on behalf of the party appointing such
construction representative. All inquiries of Tenant pertaining to construction
of the Tenant Improvements shall be directed in writing to Landlord's
Construction Representative. A party may designate a substitute construction
representative by giving written notice to the other party at any time. Any
representatives of Tenant who desires to visit the Premises during construction
of the Tenant Improvements must obtain the prior consent of and be accompanied
by the Landlord and the General Contractor.
Substantial Completion and Punch List
-----------------------------------------
21.1 Inspection of Premises. Upon Substantial Completion of the Tenant
Improvements of the Premises, Landlord shall cause the General Contractor to
inspect the Premises with Landlord's Construction Representative and Tenant's
Construction Representative, and to complete a written punch list of unfinished
items of Tenant Improvements. Tenant's Construction Representative shall execute
said written punch list to indicate approval thereof, and thereafter Landlord
shall cause the General Contractor to correct all such punch list items with
reasonable diligence.
21.2 Work Costs Accounting. Within forty-five (45) days after
Substantial Completion of the Tenant Improvements, Landlord shall submit to
Tenant a final written accounting of the Work Costs, completed in accordance
with the Final Plans (inclusive of Changes, if any), and a reconciliation of
such costs with the Allowance and Additional Allowance, if Tenant elects to use
such Additional Allowance, and payments made by Tenant in accordance with
Section 4.3 and Section 4.5.
f. In the event that the reconciliation shows that the Work Costs
exceeded the sum of (i) the Allowance; (ii) Additional Allowance; (iii) payment
of the Tenant Improvement Overage; and (iv) Tenant Additional Payments, Tenant
shall reimburse Landlord such excess within thirty (30) days of receipt thereof.
g. In the event the Work Costs are less than the sum of (i) the
Allowance; (ii) payment of the Tenant Improvement Overage; and (iii) Tenant
Additional Payments, Landlord will refund to Tenant the difference up to the sum
of Tenant payments made in (ii), (iii) and (iv) above, within thirty (30) days
of Tenant's receipt of said reconciliation. Any remaining unused Allowance will
be held by Landlord, and Tenant, subject to its being in full compliance with
the terms and provisions of the Lease and not in default thereunder, shall have
the ability to utilize the remaining Allowance during the initial Term of the
Lease for Alterations made to the Premises, pursuant to Section 8.2 of the
Lease. Landlord agrees to disburse to Tenant, within thirty (30) days following
receipt of invoices and/or other reasonable documentation evidencing and/or
supporting the costs incurred for services performed or material supplied
regarding the Alterations, in an amount not to exceed the remaining Allowance.
7. Schedule
--------
Preparation and approval of the Space Plan, Final Plans and the Work Costs
Estimate shall proceed as indicated below and each action shall be completed on
or before the date herein specified. Time is of the essence.
Action Responsibility Date Due
------ -------------- ---------
1. Submission of Space Tenant 5 days from Lease execution
Plan to Landlord
2. Delivery of written approval Landlord 3 business days from receipt of
of Space Plan to Tenant Space Plan from Tenant
(including any necessary
design revision comments)
3. Submission of Final Plans Tenant 20 days from Lease execution
to Landlord for approval
(including any necessary
re-design of the Final Plans)
4. Delivery of written approval Landlord 5 days from Tenant's submittal
of Final Plans to Tenant of approved Final Plans
5. Building Department Landlord within 5 business days from
Submission Landlord's approval of Final Plans
6. Delivery of Work Costs Landlord on or before submittal to
Estimate to Tenant Building Department
7. Delivery of written approval Tenant within 5 days after Tenant's
of Work Costs Estimate receipt of Work Costs
to Landlord
8. Payment of Tenant Improvement Tenant at the time of approval of Work
Overage, if any Costs. Tenant to remit to Landlord,
if applicable
9. Receipt of Building permit; Landlord estimated 4 weeks from
commence construction of submittal to City of Xxxxxxxxx
Tenant Improvements
10. Substantial Completion of Landlord 45 days from receipt of
Tenant Improvements permit from City of Xxxxxxxxx
11. Occupancy Date Landlord September 1, 2002
8. Delays
------
8.1 Tenant Delay. Any one or more of the following, which causes Landlord
to be delayed in substantially completing the Tenant Improvements shall be
deemed to be a "Tenant Delay":
12. Tenant's failure to complete any action item which is the
responsibility of Tenant on or before the due date specified in Section 6 above
to the extent that such failure is not caused by failure of Landlord to timely
perform its obligations in accordance with the schedule in Section 6; or
13. Tenant's changes to Final Plans after the final submission date in
Section 6(iii) above; or
i. any delay of Tenant in making payment to Landlord of the Tenant
Improvement Overage or Tenant Additional Payments as provided in Section 4.3 and
Section 4.5 above, relating to changes to Final Plans above; or
ii. any delay, requested or caused by Tenant.
In the event of a Tenant Delay, so long as Landlord notifies Tenant that a
Tenant Delay has occurred within five (5) business days of the date of the event
causing such delay, the Occupancy Date shall be accelerated to the date that
Landlord would have Substantially Completed the Tenant Improvements, but for
such Tenant Delay. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on or before the Occupancy Date, the Lease will not be void
or voidable, and Landlord will not be liable to Tenant for any resultant loss or
damage, except as otherwise provided herein.
7.2 Force Majeure Delay. The Occupancy Date shall be delayed by one
(1) day for each day of delay that is caused by any Force Majeure Delay or
Landlord Delay. No Landlord Delay (defined below), Force Majeure Delay or
Tenant Delay shall be deemed to have occurred unless and until the party
claiming such delay has provided written notice to the other party specifying
the action or inaction that such notifying party contends constitutes a Landlord
Delay, Force Majeure Delay or Tenant Delay, as applicable. If such action or
inaction is not cured within one (1) day of receipt of such notice, then a
Landlord Delay, Force Majeure Delay or Tenant Delay, as set forth in such notice
shall be deemed to have occurred commencing as of the date such notice is
received and continuing for the number of days the design of the Tenant
Improvements and/or Tenant's move-in into the Premises was in fact delayed as a
direct result of such action or inaction.
The term "Force Majeure" as used in this Work Letter shall mean any delay
incurred by Tenant in the design of its Tenant Improvements or its move-in into
the Premises attributable to any: (i) actual delay or failure to perform
attributable to any strike, lockout or other labor or industrial disturbance
(whether or not on the part of the employee of either party hereto), civil
disturbance, further order claiming jurisdiction, act of public enemy, war,
riot, sabotage, blockade, embargo; (ii) delay due to changes in any Applicable
Laws (including, without limitation, the ADA); or (iii) delay attributable to
lightning, earthquake, fire, storm, hurricane, tornado, flood, washout,
explosion, or any other similar industry-wide or Building-wide cause beyond the
reasonable control of the party from whom performance is required, or any of its
contractors or other representatives. Any prevention, delay or stoppage due to
any Force Majeure Delay shall excuse the performance of the party affected for a
period of time equal to any such prevention, delay or stoppage (except the
obligations of either party to pay money, including rental and other charges,
pursuant to the Lease).
7.3 Landlord Delay. The term "Landlord Delay" as used in this Work
Letter shall mean any delay in the design of the Tenant Improvements or Tenant's
move-in into the Premises which is due to any act or omission of Landlord
(wrongful, negligent or otherwise), its agents or contractors. The term
Landlord Delay shall include, but shall not be limited to any: (i) delay in the
giving of authorizations or approvals by Landlord; (ii) delay attributable to
the acts or failures to act, whether willful, negligent or otherwise, of
Landlord, its agents or contractors; and (iii) delay attributable to Landlord
giving the Designer incorrect Building requirement plans, or revision made to
such Building requirement or subsequent to the delivery of such items to Tenant.
In the event that, at any time and for any reason, Tenant elects not to proceed
with or to suspend (i) the design or construction of the Tenant Improvements, or
(ii) move into the Premises, then, such election shall not require any further
performance of Landlord under the Lease or this Work Letter, until Tenant
resumes its obligations under this Work Letter, and shall not result in an Event
of Default by Landlord. The only economic consequence to Tenant as a result of
such election shall be that the Occupancy Date shall be accelerated for the days
Landlord would have Substantially Completed the Tenant Improvements, but for
Tenant's suspension of Tenant Improvements and Tenant's obligation to pay all
rent shall begin in accordance with Section 1.1.9 of the Lease.
9. Miscellaneous
-------------
Any default by either party under the terms of this Work Letter shall
constitute a default under the Lease and shall entitle either party to exercise
all remedies set forth therein. Both Landlord and Tenant agree to use
reasonable diligence in performing all of their respective obligations and
duties under this Work Letter and in proceeding with the construction and
completion of the Building and all Tenant Improvements in the Premises.
LANDLORD TENANT
CORPORATE CTR. IV, LLC, MEGO FINANCIAL CORP.,
a Nevada limited liability company a New York corporation
By: Silver Springs, Inc., _________________________________
a Nevada corporation, By:______________________________
Its Manager Title:___________________________
By: ________________
Xxxxxxx X. Xxxxx,
Senior Vice President
EXHIBIT D
0000 XXXXXXXXX XXXXXX
RULES AND REGULATIONS
Tenant agrees as follows:
9. All loading and unloading of supplies, equipment or the like shall be
done only at such time, in the areas, and through the entrance(s) or areas as
may be designated for such purposes by Landlord. The delivery or shipping of
merchandise, supplies and fixtures to and from the Premises shall be subject to
such Rules and Regulations as, in the judgment of Landlord, are necessary for
the proper operation of the Premises or the Property.
10. Without the prior written consent of the Landlord, Tenant shall not
sell, or permit the sale at retail, of newspapers, magazines, periodicals, or
theater tickets, in or from the Premises, nor shall Tenant carry on, or permit
or allow any employee or other person or carry on, the business of stenography,
typewriting or any similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building, or any
manufacturing of any kind, or the business of a public xxxxxx shop, beauty
parlor, or a manicuring and chiropodist business or any business other than that
specifically provided for in the Lease. No Tenant shall obtain for use upon the
Premises ice, drinking water, towel and other similar services, or accept
barbering or bootblack services in the Premises, except from persons authorized
by the Landlord and at hours and under regulations fixed by the Landlord.
11. Subject to the terms of the Lease, no aerial, antenna, satellite dish
or similar device shall be erected on the roof or exterior walls of the Premises
or in the Property, without in each instance, the prior written consent of
Landlord, unless otherwise provided in the Lease. Any such item so installed
without such written consent shall be subject to removal without notice at any
time at Tenant's expense.
12. Tenant shall not, without the prior written consent of Landlord, use in
or about the Premises any advertising or promotional media such as searchlights,
loud speakers, phonographs, or other similar visual or audio media which can be
seen or heard outside the Premises.
13. Tenant shall keep the Premises at a temperature sufficiently high to
prevent freezing of water in pipes and fixtures.
14. The exterior areas immediately adjoining the Premises shall be kept
clean and free from dirt and rubbish by Tenant to the satisfaction of Landlord,
and Tenant shall not place or permit any obstructions in such areas.
15. Tenant shall not burn any trash or garbage of any kind in or about the
Premises or Property.
16. The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be thrown therein. The expense of any breakage, stoppage, or damage resulting
from a violation of this provision shall be borne by the Tenant who shall, or
whose employees, agents, servants, customers or invitees shall, have caused it.
17. Tenant shall keep the Premises free from pests and vermin.
18. On Saturdays, Sundays or legal holidays, and on other days between the
hours of 6 p.m. and 7 a.m., access to the Building, or to the halls, corridors,
or stairways in the Building, or to the Premises may be refused unless the
person seeking access is known to the building watchman, if any, in charge and
has a pass or is properly identified. The Landlord shall in no case be liable
for damages for the admission or exclusion from the Building of any person whom
the Landlord has the right to exclude under these Rules and Regulations. In
case of invasion, mob riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing the doors or otherwise, for the safety of the tenants and
protection of property in the Building.
19. The Landlord shall clean the Premises as provided in this Lease and,
except with the written consent of the Landlord, no person or persons other than
those approved by the Landlord will be permitted to enter the Building for such
purpose, but the Tenant shall not cause unnecessary labor by reason of the
Tenant's carelessness and indifference in the preservation of good order and
cleanliness.
20. No Tenant shall lay linoleum or other similar floor covering so that
the same shall be affixed to the floor of the Premises in any manner except by a
paste or other material which may easily be removed with water, the use of
cement or other similar adhesive materials being expressly prohibited. The
method of affixing any such linoleum or other similar floor covering to the
floor, as well as the method of affixing carpets or rugs to the Premises, shall
be subject to prior approval by the Landlord. The expense of repairing any
damage resulting from a violation of this rule shall be borne by the Tenant by
whom, or by whose agents, clerks, employees or visitors, the damage shall have
been caused.
21. No sign, advertisement or notice visible from the exterior of the
Premises shall be inscribed, painted or affixed by the Tenant on any part of the
Building without the prior written consent of the Landlord. If the Landlord
shall have given such consent at any time, whether before or after the execution
of this Lease, such consent shall in no way operate as a waiver or release of
any of the provisions hereof or of this Lease, and shall be deemed to relate
only to the particular sign, advertisement or notice so consented to by the
Landlord and shall not be construed as dispensing with the necessity of
obtaining the specific written consent of the Landlord with respect to each and
every such sign, advertisement or notice other than the particular sign,
advertisement or notice, as the case may be, so consented to by the Landlord. If
the Landlord, by a notice in writing to the Tenant, shall object to any curtain,
blind, shade or screen attached to, or hung in, or used in connection with any
window or door of the Premises, such use of such curtain, blind, shade or screen
shall be forthwith discontinued by the Tenant. No awning shall be permitted on
any part of the Premises.
22. Tenant shall not make noises, cause disturbances, or create odors which
may be offensive to Landlord or to other tenants of the Property or their
employees, agents, servants, customers or invitees.
23. No portion of the Premises or the Property shall be used for sale or
display of any obscene, pornographic, so called "adult" or other offensive
merchandise or activities.
24. Without Landlord's prior written consent, no sign or other object or
thing visible to public view outside of the Premises shall be placed or allowed
on the exterior of the Premises or in the interior of the Premises in such a
manner as shall be visible from outside the Premises. Tenant shall be required
to properly maintain any sign permitted under the Lease, including prompt
repairs of any nature. Upon expiration of the Lease, Tenant shall be responsible
for promptly removing any sign placed in and around the Premises by Tenant.
Tenant shall repair all damage caused to the Building or Premises by such
removal, including proper "capping off" of electrical wiring. Without limiting
the generality of the foregoing, Tenant shall adhere to all requirements
contained in Exhibit C attached to this Lease and incorporated herein by
reference.
25. Tenant and Tenant's employees and agents shall not solicit business in
the parking areas or other Common Areas, nor shall Tenant distribute any
handbills or other advertising matter in automobiles parked in the parking area
or in the Common Areas.
26. Tenant shall refrain from keeping, displaying or selling any
merchandise or any object outside of the interior of the Premises or in any
portion of any sidewalks, walkways or other part of the Property outside of the
Premises. No sales tables, merchandise displays, signs or other sections shall
be placed in front of, or affixed to, any part of the exterior of the Building
nor placed in the halls, common passageways, corridors, vestibule or parking
area without the prior written consent of the Landlord.
27. The sidewalks, halls, passages, corridors, exits, stairways and other
Common Areas shall not be obstructed by Tenant or used for any purpose other
than for ingress and egress to the Premises. Tenant shall not erect or maintain
any barricade or scaffolding which may obscure the signs, entrances or show
window of any other tenant in the Property or tend to interfere with any such
other tenant's business.
28. Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of the Landlord is intoxicated or under the
influence of liquor, or who shall in any manner do any act in violation of any
of the rules and regulations of the Property.
29. Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot which said floor was designed to carry or which
is allowed by law.
a. The Landlord shall have power to prescribe the weight and position of
safes or other large or heavy objects which shall, if considered
necessary by the Landlord, stand on three-inch thick wood strips to
distribute the weight. The moving of safes shall occur only between
such hours as may be designated by, and only upon previous notice to,
the manager of the Building and the persons employed to move safes in
or out of the Building must be acceptable to the Landlord. No freight,
furniture or bulky matter of any description shall be received into
the Building except during hours and in a manner approved by the
Landlord.
30. Landlord will direct electricians as to where and how telephone wires
are to be introduced. No boring or cutting for wires will be allowed without the
consent of Landlord. The location of telephones, call boxes and other office
equipment affixed to the Premises shall be subject to the reasonable approval of
Landlord.
31. Tenant, upon termination of the Lease, shall deliver to Landlord the
keys of offices, rooms and toilet rooms which shall have been furnished to
Tenant or which Tenant shall have made, and in the event of loss of any keys so
furnished, shall pay Landlord its reasonable cost therefor. Tenant shall not
alter any lock or install any new or additional locks or any bolts on any doors
of the Premises without the prior approval of Landlord, and if such approval is
given, then Tenant shall furnish Landlord with the key therefor.
32. Tenant shall see that the doors of the Premises are closed at all times
when not in use for ingress or egress and securely locked before leaving the
Building of which the Premises is a part, and that all electricity, gas, heating
or air conditioning shall likewise be carefully shut off, so as to prevent waste
or damage, and for any default or carelessness in connection there with Tenant
shall make good all injuries sustained by other tenants or occupants of the
Property by Landlord.
a. Tenant shall see that the windows, transoms and doors of the Premises
are closed and securely locked before leaving the Building and must
observe strict care not to leave windows open when it rains, and
Tenant shall exercise extraordinary care and caution that all water
faucets or water apparatus are entirely shut-off before Tenant or
Tenant's employees leave the Building and that all electricity, gas or
air shall likewise be carefully shut-off as to prevent waste or damage
and for any default or carelessness Tenant shall make good all
injuries sustained by other tenants or occupants of the Building or by
Landlord.
33. Employees of Landlord shall not perform any work or do anything outside
of their regular duties unless under special instructions from Landlord, and
none of Landlord's employees will admit any person to any office without
specific instructions from Landlord.
34. All professional practice conducted on the Premises shall be in
compliance with the Code of Ethics of such profession. All advertising, if any,
by Tenant, its agents, employees, servants, contractors, and licenses in
connection with the Premises shall be in compliance with said Code of Ethics.
35. Landlord reserves the right to waive any rule in any particular
instance or as to any particular person or occurrence and further, Landlord
reserves the right to amend or rescind any of these Rules and Regulations or
make, amend or rescind new rules to the extent Landlord, in its sole judgment,
deems suitable for the safety, care and cleanliness of the Property and the
conduct of high standards of performance therein. Tenant agrees to conform to
such new or amended rules upon receiving written notice of the same.
36. Tenant shall not use any space heaters in any portion of the Premises.
37. There shall be no smoking in any portion of the Premises or the
Building.
38. Tenant shall not, without Landlord's prior written approval, operate or
permit to be operated on the Premises any coin or token-operated vending
machines or similar device for the sale or leasing to the public of any goods,
wares, merchandise, food, beverages, and or service, including, without
limitation, pay telephones, pay lockers, pay toilets, scales and amusement
devices.
39. Tenant shall refrain from using or permitting the use of the Premises
or any portion thereof as living quarters, sleeping quarters or lodging rooms.
40. Tenant shall not, without Landlord's prior written approval, cover or
obstruct any windows, glass doors, lights, skylights, canopies or other
apertures that reflect or admit light into the Premises.
41. Tenant shall refrain from keeping or permitting the keeping of any
animals of any kind in, about or upon the Premises without Landlord's prior
written approval.
EXHIBIT E
JANITORIAL SERVICE SPECIFICATIONS
Pursuant to Section 10.1 (a) of this Lease, Landlord shall perform, or have
performed, the following janitorial services to the Premises and Common Areas of
the Building, subject to the limitations outlined below:
42. Daily service, as outlined below, shall be performed five (5) nights
per week, typically Sunday through Thursday, excluding all legally recognized
federal and state holidays. Any weekly, quarterly, semi-annual, or annual
service, which Landlord shall deem necessary, shall be performed as scheduled by
Landlord.
43. Landlord may, if deemed necessary by Landlord, at its sole discretion,
utilize a day xxxxxx for performing specific janitorial services to the Common
Areas of the Building, during the hours of operation of the Building.
44. Landlord's obligation to clean the Premises shall exclude any portion
of the Premises not used as office areas, including, but not limited to,
closets, storage rooms, mailrooms, computer areas, laboratories, and areas used
for the storage, preparation, service or consumption of food and beverage.
Tenant, at its sole cost and expense, shall cause all portions of the Premises
not used as office areas to be cleaned on a regular basis. This shall be done by
contracting directly with the Landlord, or at Landlord's option, directly with
Landlord's contractor for cleaning service in excess of those furnished by
Landlord in accordance with this Lease.
1. COMMON AREAS OTHER THAN RESTROOM
------------------------------------
1. Daily Service
--------------
a. Dust and wipe all lobby walls.
b. Empty cigarette receptacles.
c. Empty all waste containers and spot clean.
d. Wash and clean all glass doors.
e. Clean all drinking fountains.
f. Clean all floor surfaces.
g. Vacuum all mats and runners, as needed.
h. Clean building directory glass.
i. Polish all metal.
j. Remove trash from plantings.
k. Clean all elevators, including doors, walls, switch plates
and controls, as specified by manufacturer.
l. Clean sidewalks and plaza areas.
B. PREMISES
--------
1. Daily Service
--------------
a. Empty all wastebaskets and trash containers.
b. Install plastic wastebasket liners, replace as necessary.
c. Dust telephones, desks, chairs, file cabinets, furniture and equipment.
d. Wipe furniture, counter tops, tabletops and equipment.
e. Clean, as needed, all glass and metal surfaces, including window
interiors.
f. Vacuum all carpeted areas and spot clean.
g. Clean vinyl floor surfaces.
h. Wipe all door facings, doors, light switches, receptacle covers and
walls.
C. RESTROOMS
---------
1. Daily Service
--------------
a. Wash and disinfect all commodes, urinals, wash basins, counters,
toilet seats, faucets and urinal partitions.
b. Spot clean all partitions, ledges, light fixtures, receptacles and
dispensers.
c. Empty all wastepaper and sanitary napkin containers.
d. Wash and clean all mirrors.
e. Clean and polish all metal and metal dispensers.
f. Sweep restroom floors and clean with all germicidal disinfectant
solution.
g. Refill soap and towel dispensers, toilet tissue holders and sanitary
napkin machines.
h. Wipe all door facings, doors, light switches, receptacle covers and
partitions.
i. Wipe and clean all walls to remove dust, dirt, smudges, stains and
fingerprints.
EXHIBIT F
EXTERIOR DIRECTIONAL SIGNAGE
EXHIBIT G
ROOFING REQUIREMENTS
Tenant shall notify Landlord's roofing/waterproofing contractor, Commercial
Roofers, Xxxxxxx Xxx at 702/876-1777 ("Roofing Contractor") before any type of
work is performed that impacts any roofing or waterproofing system in any
fashion. Roofing Contractor shall be given the opportunity to review all
proposed modifications to the roofing/ waterproofing system (including, but not
limited to, the installation of new unit curbs, satellite dishes, vent stacks,
etc.). Roofing Contractor shall note any proposed modifications, ensure that
they are in compliance with requirements by the roofing or waterproofing
membrane manufacturer, and shall advise Tenant of any conflicts or requirements
to maintain Landlord's roofing/waterproofing manufacturer's guarantee.
No roofing or waterproofing work, in any form, shall commence until Roofing
Contractor has reviewed and approved all proposed roofing or waterproofing
modifications and developed a cost proposal regarding said items. Tenant shall
be liable for any and all costs relating to any roofing or waterproofing
modifications. In the event that Tenant fails to adhere to these guidelines,
Landlord shall have the right to direct Roofing Contractor to make all necessary
changes to the roofing or waterproofing system in order to maintain Landlord's
roofing or waterproofing warranty (including, but not limited to, new roofing or
waterproofing membrane items and all associated items such as HVAC equipment,
electrical, etc.) said costs shall then be passed on to the Tenant.
Tenant shall adhere to the guidelines set above. Should Tenant be uncertain of
any potential impacts to any roofing or waterproofing system, they shall first
contact the Roofing Contractor for clarification.
Lease between
CORPORATE CTR. IV, LLC,
a Nevada limited liability company,
as
Landlord,
and
MEGO FINANCIAL CORP.,
a New York corporation,
as
Tenant,
in
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
May _____ , 2002
SECTION 1 DEFINITIONS Page -1-
-----------
1.1 DEFINITIONS Page -1-
1.1.1 "ADDITIONAL RENT" Page -1-
1.1.2 "ADJUSTMENT MONTH" Page -1-
1.1.3 "AGGREGATE MONTHLY RENT" Page -1-
1.1.4 "ALLOWANCE" Page -1-
1.1.5 "BASE RENT" Page -1-
1.1.6 "BASE YEAR" Page -1-
1.1.7 "BROKER" Page -1-
1.1.8 "BUILDING" Page -1-
1.1.9 "COMMENCEMENT DATE" Page -1-
1.1.10 "COMMON AREAS" Page -1-
1.1.11 "DEFAULT INTEREST RATE" Page -1-
1.1.12 "LANDLORD'S WORK" Page -1-
1.1.13 "LANDLORD'S SHARE" Page -1-
1.1.14 "LEASE YEAR" Page -1-
1.1.15 "MORTGAGEE" Page -1-
1.1.16 "OCCUPANCY DATE" Page -2-
1.1.17 "PREMISES" Page -2-
1.1.18 "PROPERTY" Page -2-
1.1.19 "PROPERTY OPERATING COSTS" Page -2-
1.1.20 "RENTABLE AREA" Page -2-
1.1.21 "SUBSTANTIALLY COMPLETE OR
SUBSTANTIAL COMPLETION" Page -2-
1.1.22 "TENANT IMPROVEMENTS" Page -2-
1.1.23 "TENANT'S PRO-RATA PORTION" Page -2-
1.1.24 "TENANT'S SHARE" Page -2-
1.1.25 "TERM" Page -2-
1.1.26 "USABLE AREA" Page -2-
1.1.27 "UTILITIES" Page -2-
SECTION 2 PREMISES Page -2-
--------
2.1 PREMISES Page -2-
2.1.1 RENTAL AREA Page -3-
2.1.2 LANDLORD'S RESERVATIONS Page -3-
2.2 DECLARATION Page -3-
SECTION 3BASE RENT Page -3-
----------
3.1 BASE RENT Page -3-
3.1.1 FIRST MONTH'S RENTAL OBLIGATION Page -3-
3.2 BASE RENT INCREASES Page -3-
3.3 ADDITIONAL RENT Page -3-
3.3.1 TENANT'S SHARE OF PROPERTY
OPERATING COSTS Page -3-
3.3.2 NOTIFICATION OF PROPERTY
OPERATING COSTS Page -3-
3.3.3 PROPERTY OPERATING COSTS Page -4-
3.3.4 PROPERTY OPERATING COST EXCLUSIONS Page -5-
3.3.5 IMPOSITIONS Page -5-
3.4 EXPENDITURES BY LANDLORD Page -6-
3.5 MONETARY PAYMENTS Page -6-
SECTION 4RIGHT OF AUDIT Page -6-
----------------
4.1 RIGHT OF AUDIT Page -6-
4.1.1 AUDIT CONFIDENTIALITY Page -6-
SECTION 5SECURITY DEPOSIT Page -7-
-----------------
5.1 SECURITY DEPOSIT Page -7-
5.1.1 RETURN OF DEPOSIT Page -7-
5.1.2 NO RIGHT OF TENANT TO ENCUMBER DEPOSIT Page -7-
5.2 NO RIGHT OF DEDUCTION Page -7-
5.1 RIGHT TO RAISE SECURITY DEPOSIT Page -7-
SECTION 6POSSESSION AND SURRENDER Page -7-
--------------------------
6.1 POSSESSION OF THE PREMISES Page -7-
6.2 SURRENDER Page -8-
SECTION 7USE OF PREMISES Page -8-
-----------------
7.1 USE OF PREMISES Page -8-
7.2 MAINTENANCE AND REPAIR Page -8-
7.3 STORAGE OF GARBAGE Page -8-
7.4 ABIDANCE OF RULES AND REGULATIONS Page -8-
7.5 COMMERCIALLY REASONABLE OPERATION Page -8-
7.6 PROHIBITION AGAINST INTERFERENCE
WITH OTHER TENANTS Page -8-
7.7 USE OF COMMON AREAS Page -8-
7.8 PARKING Page -9-
7.9 TRADEMARK RESTRICTIONS Page -9-
7.9.1 TRADEMARK Page -9-
7.10 GAMING Page -9-
7.11 SATELLITE DISH Page -9-
SECTION 8 IMPROVEMENTS, SIGNAGE AND ALTERATIONS Page -9-
----------------------------------------
8.1 IMPROVEMENTS Page -9-
8.1.1 EXTERIOR DIRECTIONAL SIGNAGE Page -9-
8.1.2 DIRECTORY SIGNAGE Page -9-
8.1.3 MONUMENT SIGNAGE Page -10-
8.2 ALTERATIONS Page -10-
8.3 HOLD HARMLESS Page -10-
8.3.1 LIABILITY INSURANCE Page -10-
8.4 COMPLIANCE WITH APPLICABLE LAW Page -10-
8.5 LIENS Page -10-
SECTION 9 PARKING AND COMMON AREAS Page -10-
---------------------------
9.1 COMMON AREAS Page -10-
9.2 PARKING SPACE LEASING Page -11-
9.2.1 COVERED PARKING Page -11-
SECTION 10 LANDLORD'S SERVICES Page -11-
--------------------
10.1 LANDLORD SERVICES Page -11-
10.2 IMPROVEMENTS TO COMMON AREAS Page -12-
10.3 LANDLORD'S DUTY TO REPAIR Page -13-
10.3.1 UTILITY SERVICE FACILITIES Page -13-
SECTION 11 LAWS AND REGULATIONS Page -13-
----------------------
11.1 AMERICANS WITH DISABILITIES ACT Page -13-
11.2 INSURANCE SERVICES OFFICE Page -13-
11.3 STORAGE OF DISPOSITION OF
HAZARDOUS MATERIALS Page -13-
11.3.1 HAZARDOUS MATERIALS AND SUBSTANCES Page -13-
11.4 INDEMNIFICATION Page -13-
11.4.1 EXCLUSION FOR TENANT'S LIABILITY Page -14-
11.5 JEOPARDIZE INSURANCE POLICIES Page -14-
SECTION 12 TAXES Page -14-
-----
12.1 TAXES Page -14-
12.2 EXCISE TAX Page -14-
12.2.1 CONTEST VALIDITY Page -14-
SECTION 13 INSURANCE Page -14-
---------
13.1 GENERAL LIABILITY INSURANCE Page -14-
13.2 SPECIAL PERIL PROPERTY INSURANCE Page -14-
13.3 CERTIFICATE OF INSURANCE Page -15-
13.4 USE OF PREMISES Page -15-
13.5 WAIVER OF RECOVERY RIGHTS Page -15-
13.6 WAIVER OF SUBROGATION Page -15-
13.7 PROHIBITED SALES OR ACTIVITY Page -15-
13.8 PROHIBITED USE DEEMED ULTRA HAZARDOUS Page -15-
13.9 LANDLORD'S MAINTENANCE OF SPECIAL PERIL
PROPERTY INSURANCE Page -15-
13.10 LANDLORD'S MAINTENANCE OF GENERAL
LIABILITY INSURANCE Page -15-
SECTION 14 INDEMNIFICATION Page -16-
---------------
14.1 INDEMNIFICATION Page -16-
14.2 LANDLORD'S LIABILITY Page -16-
SECTION 15 SUBORDINATION AND NONDISTURBANCE Page -16-
----------------------------------
15.1 SUBORDINATION Page -16-
15.2 PRIOR LIEN Page -16-
15.3 ATTORNMENT Page -16-
15.4 NONDISTURBANCE Page -16-
SECTION 16ASSIGNMENT AND SUBLETTING Page -16-
---------------------------
16.1 ASSIGNMENT Page -16-
16.1.1 PERMITTED ASSIGNEES Page -17-
16.1.2 PROPOSED ASSIGNEE Page -17-
16.1.3 DEFAULT Page -17-
16.2 OPTION TO TERMINATE Page -17-
16.3 BONUS RENT Page -17-
16.4 REMEDIES Page -17-
16.5 PROCESSING FEE Page -18-
SECTION 17 CONDEMNATION Page -18-
------------
SECTION 18 DAMAGE OR DESTRUCTION Page -18-
-----------------------
18.1 DESTRUCTION OF PREMISES Page -18-
18.2 RECONSTRUCTION Page -18-
18.2.1 LEASE TERMINATION Page -18-
18.3 INSURANCE PROCEEDS MAINTAINED BY TENANT Page -18-
18.4 INSURANCE PROCEEDS MAINTAINED BY LANDLORD Page -19-
SECTION 19 RIGHT OF ACCESS Page -19-
-----------------
19.1 RIGHT OF ACCESS Page -19-
19.2 PERFORMANCE OF WORK Page -19-
19.3 EXHIBITING PREMISES Page -19-
SECTION 20 ESTOPPEL CERTIFICATE Page -19-
---------------------
SECTION 21 TENANT'S DEFAULT/LANDLORD'S REMEDIES Page -19-
--------------------------------------
21.1 EVENTS OF DEFAULT Page -19-
21.1.1 NON-PAYMENT OF MONEY Page -19-
21.1.2 NON-MONETARY NON-PERFORMANCE Page -19-
21.1.3 ABANDONMENT OF PREMISES Page -20-
21.1.4 BANKRUPTCY Page -20-
21.1.5 MECHANIC LIENS Page -20-
21.1.6 FALSIFIED FINANCIAL REPORTS Page -20-
21.1.7 FAILURE TO OBTAIN POLICIES AND/OR
CERTIFICATES OF INSURANCE Page -20-
21.1.8 FAILURE TO OBTAIN CONSENT Page -20-
21.1.9 INTENTIONALLY OMITTED Page -20-
21.1.10 INTENTIONALLY OMITTED Page -20-
21.1.11 FAILURE TO PERFORM OTHER OBLIGATIONS Page -20-
21.1.12 CROSS-DEFAULTS Page -20-
21.2 ADDITIONAL REMEDIES Page -20-
21.3 RIGHT TO POSSESSION Page -21-
21.4 LOSS OF BARGAIN Page -21-
21.5 ACTIONS FOR RECOVERY Page -21-
21.6 ACTIONS FOR ALL RENT Page -21-
21.7 LANDLORD NOT LIABLE FOR TRESPASS Page -21-
21.8 NO WAIVER Page -21-
21.9 LIQUIDATED DAMAGES Page -21-
21.10 ADMINISTRATIVE AND INTEREST CHARGES Page -22-
21.11 LANDLORD'S LIEN Page -22-
SECTION 22 QUIET POSSESSION Page -22-
-----------------
SECTION 23 CONVEYANCE BY LANDLORD Page -22-
------------------------
SECTION 24 DEFAULT BY LANDLORD Page -22-
---------------------
SECTION 25 FORCE MAJEURE Page -22-
--------------
SECTION 26 NOTICES Page -23-
-------
26.1 NOTICES Page -23-
26.1.1 ADDRESS OF LANDLORD Page -23-
26.1.2 ADDRESS OF TENANT Page -23-
26.2 CHANGE OF ADDRESS Page -23-
SECTION 27 HOLDOVER TENANCY Page -23-
-----------------
SECTION 28 REMEDIES CUMULATIVE Page -23-
--------------------
SECTION 29 SUCCESSORS AND ASSIGNS Page -23-
------------------------
SECTION 30 PARTIAL INVALIDITY Page -24-
-------------------
SECTION 31 TIME OF THE ESSENCE Page -24-
----------------------
SECTION 32 ENTIRE AGREEMENT Page -24-
-----------------
SECTION 33 NO PARTNERSHIP Page -24-
---------------
SECTION 34 BROKERS Page -24-
-------
SECTION 35 SAVINGS CLAUSE Page -24-
---------------
SECTION 36 ATTORNEYS' FEES Page -24-
----------------
SECTION 37 INSOLVENCY AND DEATH Page -24-
----------------------
SECTION 38 GENERAL PROVISIONS Page -24-
-------------------
38.1 CAPTIONS Page -24-
38.2 PRONOUNS Page -24-
38.3 GOVERNING LAW Page -24-
38.4 Words of Obligation Page -25-
38.5 JOINT AND SEVERAL LIABILITY Page -25-
38.6 EXECUTION OF LEASE Page -25-
38.6.1 DEPOSIT Page -25-
38.7 NOTICE OF CLAIM Page -25-
38.8 NEUTRAL CONSTRUCTION Page -25-
38.9 CONSTRUCTION ALLOWANCE Page -25-
38.10 THIRD PARTY BENEFICIARY STATUS Page -25-
38.11 LIMITED LIABILITY Page -25-
SECTION 39 OPTION TO EXTEND Page -25-
------------------
39.1 EXTENSION TERM Page -25-
39.1.1 COMMENCEMENT DATE Page -25-
39.2 NOTICE OF ELECTION Page -25-
39.2.1 ADJUSTMENT OF BASE RENT Page -25-
39.3 TERMINATION OF OPTION TO EXTEND Page -26-
EXHIBITS
--------
EXHIBIT A-1 LEGAL DESCRIPTION OF PROPERTY
EXHIBIT A-2 SITE PLAN OF PROPERTY
EXHIBIT A-3 SCHEMATIC OF BUILDING
EXHIBIT A-4 SITE PLAN OF PREMISES WITHIN BUILDING
EXHIBIT A-5 SCHEMATIC OF PREMISES
EXHIBIT B MEMORANDUM OF COMMENCEMENT DATE AND CONFIRMATION
OF RENTABLE AREA OF THE PREMISES
EXHIBIT C LANDLORD'S WORK LETTER
EXHIBIT D RULES AND REGULATIONS
EXHIBIT E JANITORIAL SERVICE SPECIFICATIONS
EXHIBIT F EXTERIOR DIRECTIONAL SIGNAGE
EXHIBIT G ROOFING REQUIREMENTS
