EXHIBIT 10.247
OFFICE
TRIPLE NET
L E A S E
(2280 CORPORATE CIRCLE)
MEGO FINANCIAL CORP.
THIS LEASE is made and entered into this 31st day of May, 2002, by and
between 0000 XXXXXXXXX XXXXXX, 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 SECTION
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1.1 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" shall mean an amount equal to __None___ and __/100
Dollars ($00.00) per square foot of Rentable Area, as defined below, of the
Premises, as more fully elaborated in EXHIBIT C, "Landlord's Work Letter,"
attached hereto and incorporated herein. SEE EXHIBIT C.
0.0.5 "BASE RENT" shall mean the sum of One and 40/100 Dollars ($1.40) per
month for each square foot of Rentable Area of the Premises, which is equal to
the sum of One Million Seventy-Four Thousand Five Hundred Eleven and 20/100
Dollars ($1,074,511.20) 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 "BROKER" shall refer to CB Xxxxxxx Xxxxx and Xxx & Associates. SEE
SECTION 35.
0.0.7 "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, for purposes of this Lease, is deemed to be approximately 63,959
square feet.
0.0.8 "COMMENCEMENT DATE" shall refer to July 1, 2005. The parties hereto
anticipate that Tenant shall be in occupancy of the Premises pursuant to a
sublease agreement with Providian Bancorp Services, a California corporation,
the previous tenant of the Premises ("Providian"). In the event that Tenant is
no longer an occupant of the Premises at any time on or before the Commencement
Date, or Tenant is in default of its sublease arrangement with Providian, beyond
any notice and cure periods, this Lease shall be voidable, at Landlord's option.
0.0.9 "COMMON AREAS" shall mean those areas as more fully defined in
Section 9.
0.0.10 "DEFAULT INTEREST RATE" shall mean the lesser of eighteen percent
(18%) per annum or the maximum interest rate permitted by Nevada law.
0.0.11 "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.
0.0.12 "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.
0.0.13 "MORTGAGEE" shall mean the holder of a lien of first priority on the
Property.
0.0.14 INTENTIONALLY OMITTED
0.0.15 "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 100 located
within the Building.
0.0.16 "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."
0.0.17 "PROPERTY OPERATING COSTS" shall mean those costs and expenses as
further elaborated in Section 3.3.3.
0.0.18 "RENTABLE AREA" shall be deemed to be, for purposes of this Lease,
63,959 square feet.
0.0.19 INTENTIONALLY OMITTED.
0.0.20 "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.
0.0.21 "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.
0.0.22 "TENANT'S SHARE" of Property Operating Costs shall be calculated as
one hundred percent (100%) attributable to the Property. SEE SECTION 3.3.1.
0.0.23 "TERM" shall mean the period of time commencing with the
Commencement Date and continuing coterminously with a second lease executed by
Tenant for space within a building, commonly referred to as 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx, dated ___________________, 2002, with
Corporate Ctr. IV, LLC, as the Landlord ("Second Lease"), but in no event shall
the term of this Lease be less than sixty (60) months; provided, however, that
the term of Tenant's and Landlord's rights and obligations hereunder may be
extended pursuant to Section 41 below.
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 materially reduce the
Rentable Area of the Premises.
0.0.1 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
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.
0.0.1 FIRST MONTH'S RENTAL OBLIGATION Ninety (90) days prior to the
Commencement Date, Tenant shall deliver to Landlord the sum of Eighty-Nine
Thousand Five Hundred Forty-Two and 60/100 Dollars ($89,542.60), representing
Tenant's first month's rental obligation hereunder.
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. Landlord shall estimate
the initial Lease Year's Property Operating Costs, as that term is more fully
defined below, and shall notify Tenant, in writing, on or about the Commencement
Date and within one hundred and twenty (120) days after the beginning of each
successive Lease Year of Tenant'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 of the Term). In the event that the Property
Operating Cost Statement reflects an amount due to Tenant, then same shall be
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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:
4. all Impositions, as that term is defined in Section 3.3.5 below;
5. all Utilities not separately metered or billed to Tenant, or other
tenants, and all other utilities and services provided to the Property;
6. 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;
7. 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;
8. 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;
9. 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;
10. rental or lease payments paid by Landlord for rented or leased personal
property used in the operation or maintenance of the Property;
11. 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;
12. costs incurred in providing private police protection, roving patrol,
or night watchmen (including, but not limited to, uniforms), and fire
protection;
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13. expenses for the rental of music program services and loudspeaker
systems (if Landlord elects to provide the same), including, but not limited to,
furnishing electricity therefor;
14. 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
15. 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.
3.3.4 PROPERTY OPERATING COST EXCLUSIONS. Property Operating Costs shall
not include any expenditures by Landlord in connection with:
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16. leasing costs (including Tenant Improvements), fees and leasing
commissions;
17. legal fees and costs, including costs of litigating with other tenants;
18. taxes other than "Impositions," as that term is defined in Section
3.3.5 of this Lease;
19. costs and fines assessed against Landlord, due to violation of any
other leases within the overall development within which the Premises is
situated;
20. 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;
21. depreciation, amortization and interest payments, except as provided
herein, and when required, the item shall be amortized over its reasonably
anticipated useful life;
22. 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
23. 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.
3.3.5 IMPOSITIONS. For the purpose of this Lease, the term "Impositions"
means:
24. 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;
25. all personal property taxes on personal property used in connection
with the Property and related structures other than taxes payable by Tenant
under Section 13.1 hereof, or payable by any other tenant in the Building;
26. 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;
27. 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;
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28. 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;
29. 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;
30. 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
31. 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, 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.
3.3.1 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:
32. TENANT MUST KEEP INFORMATION CONFIDENTIAL. All of the information
obtained through the Tenant's audit with respect to financial matters
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(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.
33. 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.
34. 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.
35. 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
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.
36. 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.
37. 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 DEPOSIT
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1.10 Security Deposit. Tenant, ninety (90) days prior to the Commencement Date,
will deposit with Landlord the sum of Eighty-Nine Thousand Five Hundred
Forty-Two and 60/100 Dollars ($89,542.60), representing Tenant's first month's
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rental obligation hereunder ("Deposit"). Said Deposit shall be held by Landlord
as security for the faithful performance by Tenant of all the terms, covenants
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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.
3.3.2 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.
3.3.3 NO RIGHT OF TENANT TO ENCUMBER DEPOSIT. 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 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
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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, if EXHIBIT C is attached hereto, only to the
completion by Landlord of minor "punch list items" as provided in EXHIBIT C) and
Landlord shall not be liable for any latent or patent defects therein. Landlord
will construct the Tenant Improvements to be constructed or installed by
Landlord according to the Landlord's Work. If EXHIBIT C, Landlord's Work, is not
attached to this Lease, Landlord will be deemed to have delivered to Tenant
possession of the Premises in its "as is" condition as of the Commencement Date.
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 Commencement Date, if applicable, this Lease will not be void
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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
Commencement 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, including the operation of a call center and related
uses with respect to the operation of a travel/timeshare company, and for no
other purpose or purposes whatsoever. Tenant shall not use, or suffer to be
used, the Premises, or any portion thereof, for 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. Except as provided for elsewhere herein, Tenant is
responsible to maintain, at Tenant's sole cost and expense, in good order,
condition and repair (including any such replacement and restoration as is
required for that purpose) the Premises 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,
condition and repair (including any such replacement and restoration as is
required for that purpose) any special equipment, fixtures or facilities other
than the usual and ordinary plumbing and utility facilities, including but not
limited to that certain generator servicing the Building (the "Generator").
Landlord agrees to assign to Tenant any warranties it receives, and continues to
have in its possession, pertaining to those parts of the Premises Tenant is
responsible for maintaining hereunder. Tenant shall service, maintain, and
regularly test the Generator, such that it meets all governmental regulatory
requirements required for the use of same.
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
Page -9-
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.
3.3.1 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,
Page -10-
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.
3.3.1 INTENTIONALLY OMITTED.
3.3.2 BUILDING SIGN. At Tenant's sole cost and expense, Tenant shall have
the ability to display its trade name and/or logo on the exterior fascia of the
Building, which design, size and location shall be subject to Landlord's
approval (the "Building Sign"). 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.
3.3.3 GATEWAY SIGNAGE. Landlord shall provide Tenant a right to display its
trade name on the gateway signage located in the Green Valley Corporate Center
parking lot, as generally depicted on EXHIBIT F, attached hereto and
incorporated herein (the "Gateway Sign"). Tenant shall be responsible for the
cost of the design, construction and placement of the sign panel, bearing
Tenant's trade name logo on the Gateway 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
Page -11-
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
regulations, zoning laws, environmental regulations, laws regarding the
physically disabled and all other governmental rules, regulations, ordinances,
statutes and laws, now or hereafter in effect pertaining 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.
3.3.1 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 14 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
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
Page -12-
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 448 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 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.
3.3.1 COVERED PARKING. Tenant's Parking Allotment shall include fifty-nine
(59) 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; and (iv) Tenant's obligation in
connection with the Property Operating Costs, the following services:
Page -13-
a. Preventive maintenance service for Tenant's heating, ventilating and
air-conditioning system; 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;
b. Cleaning and janitorial service five (5) days each week throughout
the Term so that the exterior Common Areas of the Building and/or Property are
cleaned according to the standards set forth in the janitorial service
specifications attached as EXHIBIT E;
c. 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; and Landlord reserves
the right to enter the Premises, with forty-eight (48) hours prior written
notice (facsimile notice is acceptable) so as to minimize any interference with
Tenant's business, excepting therefrom in the event of an emergency, to install
and maintain pipes, energy submeters, conduits and other appurtenances in the
soffit or other space above the ceilings or ceiling line, the walls and under
any floors of the Premises, which appurtenances or the like may be for other
tenants of the building in which the Premises is situated. Subparagraphs (a)
through (d) 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. Tenant shall contract directly
with the utility company for all electrical, water, janitorial, and telephone
provided to the Premises; 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 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
Page -14-
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.
3.3.1 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
UTILITIES
---------
1.36 Utilities. Tenant shall pay all charges for water, gas, heat, electricity,
power, refuse disposal, environmental waste disposal, air conditioning,
telephone service, sewer service charges and sewer rentals and cable television,
if available (collectively "Utilities") charged or attributable to the Premises,
and all other services or utilities used in, upon or about the Premises by
Tenant during the Term. Tenant shall contract with each and every utility
service provider to the Premises, to the extent the costs therefore can be
separately metered or billed to the Tenant. To the extent the costs therefore
are not separately metered or billed to the Tenant, but are a cost of the
Property, Landlord shall estimate in advance and Tenant shall pay as Additional
Rent and in the manner and at the time(s) Tenant pays its pro-rata share of
Property Operating Costs, all charges for Utilities and all other ser-vices or
utilities used in, upon or about the Premises by Tenant.
3.3.1 EXCESSIVE USE. With respect to any utility 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.
3.3.2 MAINTENANCE. All repair, maintenance, upkeep, construction and the
like, upon or within the Premises, shall be the responsibility of and at the
expense of Tenant during the entire Term from the Commencement Date, except for
any obligations of Landlord as set forth in this Lease, including, without
limitation, Landlord's obligations to specifically repair and maintain
improvements in the Common Areas or any warranty applicable to Landlord's Work.
3.3.3 SERVICE CONTRACTS. Tenant shall provide to Landlord proof, if
requested, of the on-going existence of service contracts for the maintenance of
all equipment located in the Premises which Tenant is required to maintain under
this Lease.
SECTION 12
Page -15-
LAWS AND REGULATION
--------------------
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.
1.38 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
after the Commencement 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.
1.39 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, on, or about the Premises.
3.3.1 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").
1.40 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 12. 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
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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
12 will survive the expiration or other termination of this Lease.
1.41 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 13
TAXES
-----
1.42 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.
1.43 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. 3.3.1 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 14
INSURANCE
---------
1.44 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 insurance 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 liability 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 (and at Landlord's option, any
other persons, firms or corporations designated by Landlord shall be
additionally named insureds) under each such policy of insurance. Each such
Page -17-
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.
1.45 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.
1.46 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.
1.47 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.
1.48 Waiver of Recovery Rights. The parties hereto waive any and all rights of
recovery from the other, their 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.
1.49 Waiver of Subrogation. Each policy of insurance provided for in this
Section 14 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.
1.50 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.
1.51 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 -18-
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.
1.52 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 and include all exterior signs maintained by
Landlord hereunder.
1.53 Landlord's Maintenance of General Liability Insurance. Landlord may, 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 15
INDEMNIFICATION
------------
1.54 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 15.1, 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.
1.55 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 16
SUBORDINATION AND NONDISTURBANCE
---------------------------------
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1.56 Subordination. Subject to the receipt by Tenant of the nondisturbance
agreement described in Section 16.4 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.
1.57 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.
1.58 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.
1.59 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 17
ASSIGNMENT AND SUBLETTING
-----------------
1.60 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 17 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
Page -20-
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
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.
3.3.1 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.
3.3.2 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.
3.3.3 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.
1.61 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,
Page -21-
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.
1.62 Bonus Rent. In the event that Landlord does consent to any assignment or
sublet pursuant to this Section 17, then Landlord may also require, as a
condition to such consent, that Tenant agree to pay Landlord as Additional Rent,
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.
1.63 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 17. 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.
1.64 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 18
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 19
DAMAGE OR DESTRUCTION
---------------------
Page -22-
1.65 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 19.2 below. Thereafter, Tenant shall,
in accordance with Section 19.2 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 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.
1.66 Reconstruction. The provisions of this Section 19 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 Commencement Date
specified in Landlord's Work Letter or like condition, and when placed in such
condition 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.
3.3.1 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.
1.67 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 19, 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.
1.68 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 19, 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 20
Page -23-
RIGHT OF ACCESS
------------------
1.69 Right of Access. Landlord and its authorized agents and representatives
shall be entitled to enter the Premises and the area where that certain
Generator servicing the Building, 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
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 and the area where the Generator is
located (as more fully depicted in EXHIBIT A-2) in an event of 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.
1.70 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,
annoyance, 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 equipment
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.
1.71 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 21
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 22
TENANT'S DEFAULT/LANDLORD'S REMEDIES
--------------------------------------
1.72 Events of Default. Tenant's compliance with each and every covenant and
Page -24-
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:
3.3.1 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
3.3.2 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 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
3.3.3 ABANDONMENT OF PREMISES. If Tenant shall abandon the Premises
for a period of ten (10) consecutive days; or
3.3.4 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 execu-tion 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
3.3.5 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
3.3.6 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
3.3.7 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
3.3.8 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
3.3.9 INTENTIONALLY OMITTED
3.3.10 INTENTIONALLY OMITTED
3.3.11 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.
Page -25-
1.72.1 Cross-Defaults. The parties hereto acknowledge that in addition to
executing this Lease, Tenant has executed the Second Lease, any default, beyond
any applicable notice and cure periods, under this Lease shall constitute a
default under the Second Lease and any default, beyond any applicable notice and
cure periods, under the Second Lease shall constitute a default hereunder.
1.73 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:
w. to give Tenant written notice of Landlord's intention to terminate
this 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
x. 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 22, 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
y. 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.
1.74 Right to Possession. In the event that Landlord does not elect to terminate
this Lease as permitted in Section 22.2(a) hereof, but, on the contrary, elects
to take possession as provided in Section 22.2(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
Page -26-
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.
1.75 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
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.
1.76 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.
1.77 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.
1.78 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.
1.79 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).
1.80 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.
1.81 Administrative and Interest Charges. Any rents or other amounts due and
Page -27-
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.
w. 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 Rate, until paid; it being understood and agreed that
such concession or 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.
1.82 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 23
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 24
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 25
DEFAULT BY LANDLORD
---------------------
Subject to 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
Page -28-
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 26
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, bioterrorism, or other causes beyond
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 27
NOTICES
-------
1.83 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.
3.3.1 ADDRESS OF LANDLORD27.1.1 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
3.3.2 ADDRESS OF TENANT27.1.2 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
Page -29-
1.84 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 28
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 22.2, 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
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 28 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 29
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 30
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 31
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 32
TIME OF THE ESSENCE
-------------------
Time is of the essence of this Lease and all of the terms, covenants and
conditions hereof.
SECTION 33
Page -30-
ENTIRE AGREEMENT
----------------
This Lease contains the entire agreement between the parties and shall not be
amended, changed or terminated orally.
SECTION 34
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 35
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
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 36
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 37
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 38
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 39
NET LEASE
----------
This is an absolute net Lease and Landlord shall not be required to provide any
services, or do any act or thing with respect to the Premises, or Improvements
or the appurtenances thereto, except as may be specifically provided herein, and
the rent reserved herein shall be paid to Landlord without any claim on the part
of Tenant for diminution, setoff, or abatement, and nothing shall suspend,
xxxxx, or reduce any rent to be paid hereunder, except as otherwise specifically
provided in this Lease.
Page -31-
SECTION 40
GENERAL PROVISIONS
------------------
1.85 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.
1.86 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).
1.87 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.
1.88 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.
1.89 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.
1.90 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.
3.3.1 DEPOSIT. Upon acceptance of Tenant's offer to
lease under the terms 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. If Landlord declines said
offer, any such deposit shall be returned to Tenant.
1.91 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.
1.92 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.
1.93 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
Page -32-
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.
1.94 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.
1.95 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 41
OPTION TO EXTEND
------------------
1.96 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").
3.3.1 COMMENCEMENT DATE. The Extension Term shall commence at
the expiration of the original Term of this Lease.
1.97 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.
3.3.1 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 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.
38. 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.
39. 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.
Page -33-
1.98 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 a
Permitted Assignee; (iii) the sublease by Tenant of all or any part of the
Premises, excepting therefrom a Permitted Assignee; (iv) the recapture by
Landlord of all or any portion of the Premises under Section 22; 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
A parcel of land being a portion of the South Half (S ) of Section Eighteen
(18) and the North Half (N ) 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 One (1) of Official Plat of Green Valley/Pebble
Commercial Center, as recorded in Book 64 of Plats, Page 68, of Official Records
of Xxxxx County, Nevada, being more particularly described as follows:
COMMENCING at a 2" brass cap in a monument box at the Northwest (NW) Corner of
said Section Nineteen (19), said point being at the intersection of the
centerline of Pebble Road (80 foot wide right-of-way) and the centerline of
Pecos Road (100 foot wide right-of-way); thence Xxxxx 00x00'00" Xxxx along the
North line of said Section Nineteen (19) and along the centerline of said Pebble
Road, 2385.84 feet to the intersection of the centerline of said Pebble Road and
the intersection of Carnegie Street (80 foot wide right-of-way); thence South
00o53'09" West along the centerline of said Carnegie Street 363.63 feet; thence
leaving said centerline Xxxxx 00x00'00" Xxxx 136.69 feet to the TRUE POINT OF
BEGINNING of the herein described tract; thence North 02o58'14" East 341.81
feet; thence Xxxxx 00x00'00" Xxxx 221.39 feet to the beginning of a 750.00 foot
radius curve to the right; thence along said 750.00 foot radius curve to the
right through a central angle of 01o59'21" (the long chord of which bears Xxxxx
00x00'00" Xxxx 26.04 feet) for an arc distance of 26.04 feet; thence Xxxxx
00x00'00" Xxxx 28.95 feet; thence North 21o59'59" East 47.66 feet; thence North
68o00'00" East 144.48 feet; thence Xxxxx 00x00'00" Xxxx 266.00 feet; thence
Xxxxx 00x00'00" Xxxx 254.91 feet to the beginning of a 582.00 foot radius
non-tangent curve to the left; thence along said non-tangent curve to the left
through a central angle of 26o02'26" (the long chord of which bears Xxxxx
00x00'00" Xxxx 262.24 feet) for an arc distance of 264.52 feet to the beginning
of a 25.00 foot radius reverse curve to the right; thence along said reverse
curve to the right through a central angle of 83o13'13" (the long chord of which
bears Xxxxx 00x00'00" Xxxx 33.20 feet) for an arc distance of 36.31 feet to the
beginning of a 352.55 foot radius reverse curve to the left; thence along said
reverse curve to the left through a central angle of 20o31'09" (the long chord
of which bears Xxxxx 00x00'00" Xxxx 125.58 feet) for an arc distance of 126.26
feet; thence North 63o39'56" West 245.85 feet; thence South 68o00'00" West
212.32 feet; thence Xxxxx 00x00'00" Xxxx 62.00 feet; thence South 68o00'00" West
27.00 feet; thence Xxxxx 00x00'00" Xxxx 31.00 feet; thence South 68o00'00" West
212.86 feet; thence North 87o01'46" West 26.91 feet to the TRUE POINT OF
BEGINNING.
Containing 5.622 acres, more or less.
APN #178-19-815-008
Legal prepared by: Tex X. Xxxxxx
WRG Design, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
702/990-9300
Dated: October 22, 2001
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 0000 XXXXXXXXX XXXXXX,
LLC, A NEVADA LIMITED LIABILITY COMPANY, as Landlord, and MEGO FINANCIAL CORP.,
A NEW YORK CORPORATION, as Tenant, as provided for in Section 1.1.8 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, 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
Tenant accepts Premises in its "as is" condition.
EXHIBIT D
0000 XXXXXXXXX XXXXXX
RULES AND REGULATIONS
Tenant agrees as follows:
1. 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.
2. 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.
3. 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.
4. 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.
5. Tenant shall keep the Premises at a temperature sufficiently high to
prevent freezing of water in pipes and fixtures.
6. 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.
g. Tenant shall not burn any trash or garbage of any kind in or about
the Premises or Property.
7. 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.
8. Tenant shall keep the Premises free from pests and vermin.
9. 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.
Page 1 of 3
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
Page 2 of 3
18. 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.
19. 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.
20. 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.
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.
21. 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.
22. 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.
23. 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.
2. 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.
24. 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.
25. 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.
26. 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
Page 3 of 3
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.
27. Tenant shall not use any space heaters in any portion of the Premises.
28. There shall be no smoking in any portion of the Premises or the
Building.
29. 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.
30. Tenant shall refrain from using or permitting the use of the Premises or
any portion thereof as living quarters, sleeping quarters or lodging rooms.
31. 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.
32. 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.
Page 4 of 3
EXHIBIT E
JANITORIAL SERVICE SPECIFICATIONS
Pursuant to Section 10.1 (b) of this Lease, Landlord shall perform, or have
performed, the following janitorial services to the Exterior Common Areas of the
Building, subject to the limitations outlined below:
33. 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.
34. Landlord may, if deemed necessary by Landlord, at its sole discretion,
utilize a day xxxxxx for performing specific janitorial services to the Exterior
Common Areas of the Building, during the hours of operation of the
Building.
A. EXTERIOR COMMON AREAS
-----------------------
1. Daily Service
--------------
a. Empty cigarette receptacles.
b. Empty all waste containers and spot clean.
c. Remove trash from plantings.
d. Clean sidewalks and plaza areas.
EXHIBIT F
GATEWAY 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
0000 XXXXXXXXX XXXXXX, 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
TABLE OF CONTENTS
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 "BROKER" Page -1-
1.1.7 "BUILDING" Page -1-
1.1.8 "COMMENCEMENT DATE" Page -1-
1.1.9 "COMMON AREAS" Page -1-
1.1.10 "DEFAULT INTEREST RATE" Page -1-
1.1.11 "LANDLORD'S WORK" Page -1-
1.1.12 "LEASE YEAR" Page -1-
1.1.13 "MORTGAGEE" Page -1-
1.1.14 INTENTIONALLY OMITTED Page -1-
1.1.15 "PREMISES" Page -1-
1.1.16 "PROPERTY" Page -1-
1.1.17 "PROPERTY OPERATING COSTS" Page -2-
1.1.18 "RENTABLE AREA" Page -2-
1.1.19 INTENTIONALLY OMITTED Page -2-
1.1.20 "TENANT IMPROVEMENTS" Page -2-
1.1.21 "TENANT'S PRO-RATA PORTION" Page -2-
1.1.22 "TENANT'S SHARE" Page -2-
1.1.23 "TERM" Page -2-
SECTION 2 PREMISES Page -2-
--------
2.1 PREMISES Page -2-
2.1.1 LANDLORD'S RESERVATIONS Page -2-
2.2 DECLARATION Page -2-
SECTION 3 BASE RENT Page -2-
----------
3.1 BASE RENT Page -2-
3.1.1 FIRST MONTH'S RENTAL OBLIGATION Page -2-
3.2 BASE RENT INCREASES Page -2-
3.3 ADDITIONAL RENT Page -2-
3.3.1 TENANT'S SHARE OF PROPERTY
OPERATING COSTS Page -2-
3.3.2 NOTIFICATION OF PROPERTY
OPERATING COSTS Page -3-
3.3.3 PROPERTY OPERATING COSTS Page -3-
3.3.4 PROPERTY OPERATING COST EXCLUSIONS Page -4-
3.3.5 IMPOSITIONS Page -4-
3.4 EXPENDITURES BY LANDLORD Page -4-
3.5 MONETARY PAYMENTS Page -5-
SECTION 4 RIGHT OF AUDIT Page -5-
----------------
4.1 RIGHT OF AUDIT Page -5-
4.1.1 AUDIT CONFIDENTIALITY Page -5-
SECTION 5 SECURITY DEPOSIT Page -6-
-----------------
5.1 SECURITY DEPOSIT Page -6-
5.1.1 RETURN OF DEPOSIT Page -6-
5.1.2 NO RIGHT OF TENANT TO
ENCUMBER DEPOSIT Page -6-
5.2 NO RIGHT OF DEDUCTION Page -6-
5.3 RIGHT TO RAISE SECURITY DEPOSIT Page -6-
SECTION 6 POSSESSION AND SURRENDER Page -6-
--------------------------
6.1 POSSESSION OF THE PREMISES Page -6-
6.2 SURRENDER Page -6-
SECTION 7 USE OF PREMISES Page -7-
-----------------
7.1 USE OF PREMISES Page -7-
7.2 MAINTENANCE AND REPAIR Page -7-
7.3 STORAGE OF GARBAGE Page -7-
7.4 ABIDANCE OF RULES AND REGULATIONS Page -7-
7.5 COMMERCIALLY REASONABLE OPERATION Page -7-
7.6 PROHIBITION AGAINST INTERFERENCE
WITH OTHER TENANTS Page -7-
7.7 USE OF COMMON AREAS Page -7-
7.8 PARKING Page -7-
7.9 TRADEMARK RESTRICTIONS Page -7-
7.9.1 TRADEMARK Page -8-
7.10 GAMING Page -8-
7.11 SATELLITE DISH Page -8-
SECTION 8 IMPROVEMENTS, SIGNAGE AND ALTERATIONS Page -8-
----------------------------------------
8.1 IMPROVEMENTS Page -8-
8.1.1 INTENTIONALLY OMITTED Page -8-
8.1.2 BUILDING SIGN Page -8-
8.1.3 GATEWAY SIGNAGE Page -8-
8.2 ALTERATIONS Page -8-
8.3 HOLD HARMLESS Page -9-
8.3.1 LIABILITY INSURANCE Page -9-
8.4 COMPLIANCE WITH APPLICABLE LAW Page -9-
8.5 LIENS Page -9-
SECTION 9 PARKING AND COMMON AREAS Page -9-
---------------------------
9.1 COMMON AREAS Page -9-
9.2 PARKING SPACE LEASING Page -9-
9.2.1 COVERED PARKING Page -10-
SECTION 10 LANDLORD'S SERVICES Page -10-
--------------------
10.1 LANDLORD SERVICES Page -10-
10.2 IMPROVEMENTS TO COMMON AREAS Page -10-
10.3 LANDLORD'S DUTY TO REPAIR Page -11-
10.3.1 UTILITY SERVICE FACILITIES Page -11-
SECTION 11 UTILITIES Page -11-
---------
11.1 UTILITIES Page -11-
11.1.1 EXCESSIVE USE Page -11-
11.1.2 MAINTENANCE Page -11-
11.1.3 SERVICE CONTRACTS. Page -11-
SECTION 12 LAWS AND REGULATIONS Page -11-
----------------------
12.1 AMERICANS WITH DISABILITIES ACT Page -11-
12.2 INSURANCE SERVICES OFFICE Page -11-
12.3 STORAGE OF DISPOSITION OF
HAZARDOUS MATERIALS Page -12-
12.3.1 HAZARDOUS MATERIALS AND SUBSTANCES Page -12-
12.4 INDEMNIFICATION Page -12-
12.5 JEOPARDIZE INSURANCE POLICIES Page -12-
SECTION 13 TAXES Page -12-
-----
13.1 TAXES Page -12-
13.2 EXCISE TAX Page -12-
13.2.1 CONTEST VALIDITY Page -13-
SECTION 14 INSURANCE Page -13-
---------
14.1 GENERAL LIABILITY INSURANCE Page -13-
14.2 SPECIAL PERIL PROPERTY INSURANCE Page -13-
14.3 CERTIFICATE OF INSURANCE Page -13-
14.4 USE OF PREMISES Page -13-
14.5 WAIVER OF RECOVERY RIGHTS Page -13-
14.6 WAIVER OF SUBROGATION Page -13-
14.7 PROHIBITED SALES OR ACTIVITY Page -13-
14.8 PROHIBITED USE DEEMED ULTRA HAZARDOUS Page -13-
14.9 LANDLORD'S MAINTENANCE OF SPECIAL
PERIL PROPERTY INSURANCE Page -14-
14.10 LANDLORD'S MAINTENANCE OF GENERAL
LIABILITY INSURANCE Page -14-
SECTION 15 INDEMNIFICATION Page -14-
---------------
15.1 INDEMNIFICATION Page -14-
15.2 LANDLORD'S LIABILITY Page -14-
SECTION 16 SUBORDINATION AND NONDISTURBANCE Page -14-
----------------------------------
16.1 SUBORDINATION Page -14-
16.2 PRIOR LIEN Page -14-
16.3 ATTORNMENT Page -15-
16.4 NONDISTURBANCE Page -15-
SECTION 17 ASSIGNMENT AND SUBLETTING Page -15-
---------------------------
17.1 ASSIGNMENT Page -15-
17.1.1 PERMITTED ASSIGNEES Page -15-
17.1.2 PROPOSED ASSIGNEE Page -15-
17.1.3 DEFAULT Page -15-
17.2 OPTION TO TERMINATE Page -15-
17.3 BONUS RENT Page -16-
17.4 REMEDIES Page -16-
17.5 PROCESSING FEE Page -16-
SECTION 18 CONDEMNATION Page -16-
------------
SECTION 19 DAMAGE OR DESTRUCTION Page -16-
-----------------------
19.1 DESTRUCTION OF PREMISES Page -16-
19.2 RECONSTRUCTION Page -17-
19.2.1 LEASE TERMINATION Page -17-
19.3 INSURANCE PROCEEDS MAINTAINED BY TENANT Page -17-
19.4 INSURANCE PROCEEDS MAINTAINED BY LANDLORD Page -17-
SECTION 20 RIGHT OF ACCESS Page -17-
-----------------
20.1 RIGHT OF ACCESS Page -17-
20.2 PERFORMANCE OF WORK Page -17-
20.3 EXHIBITING PREMISES Page -17-
SECTION 21 ESTOPPEL CERTIFICATE Page -18-
---------------------
SECTION 22 TENANT'S DEFAULT/LANDLORD'S REMEDIES Page -18-
--------------------------------------
22.1 EVENTS OF DEFAULT Page -18-
22.1.1 NON-PAYMENT OF MONEY Page -18-
22.1.2 NON-MONETARY NON-PERFORMANCE Page -18-
22.1.3 ABANDONMENT OF PREMISES Page -18-
22.1.4 BANKRUPTCY Page -18-
22.1.5 MECHANIC LIENS Page -18-
22.1.6 FALSIFIED FINANCIAL REPORTS Page -18-
22.1.7 FAILURE TO OBTAIN POLICIES AND/OR
CERTIFICATES OF INSURANCE Page -18-
22.1.8 FAILURE TO OBTAIN CONSENT Page -18-
22.1.9 INTENTIONALLY OMITTED Page -18-
22.1.10 INTENTIONALLY OMITTED Page -18-
22.1.11 FAILURE TO PERFORM OTHER OBLIGATIONS Page -18-
22.1.12 CROSS-DEFAULTS Page -19-
22.2 ADDITIONAL REMEDIES Page -19-
22.3 RIGHT TO POSSESSION Page -19-
22.4 LOSS OF BARGAIN Page -19-
22.5 ACTIONS FOR RECOVERY Page -19-
22.6 ACTIONS FOR ALL RENT Page -20-
22.7 LANDLORD NOT LIABLE FOR TRESPASS Page -20-
22.8 NO WAIVER Page -20-
22.9 LIQUIDATED DAMAGES Page -20-
22.10 ADMINISTRATIVE AND INTEREST CHARGES Page -20-
22.11 LANDLORD'S LIEN Page -20-
SECTION 23 QUIET POSSESSION Page -20-
-----------------
SECTION 24 CONVEYANCE BY LANDLORD Page -20-
------------------------
SECTION 25 DEFAULT BY LANDLORD Page -21-
---------------------
SECTION 26 FORCE MAJEURE Page -21-
--------------
SECTION 27 NOTICES Page -21-
-------
27.1 NOTICES Page -21-
27.1.1 ADDRESS OF LANDLORD Page -21-
27.1.2 ADDRESS OF TENANT Page -21-
27.2 CHANGE OF ADDRESS Page -21-
SECTION 28 HOLDOVER TENANCY Page -22-
-----------------
SECTION 29 REMEDIES CUMULATIVE Page -22-
--------------------
SECTION 30 SUCCESSORS AND ASSIGNS Page -22-
------------------------
SECTION 31 PARTIAL INVALIDITY Page -22-
-------------------
SECTION 32 TIME OF THE ESSENCE Page -22-
----------------------
SECTION 33 ENTIRE AGREEMENT Page -22-
-----------------
SECTION 34 NO PARTNERSHIP Page -22-
---------------
SECTION 35 BROKERS Page -22-
-------
SECTION 36 SAVINGS CLAUSE Page -23-
---------------
SECTION 37 ATTORNEYS' FEES Page -23-
----------------
SECTION 38 INSOLVENCY AND DEATH Page -23-
----------------------
SECTION 39 NET LEASE Page -23-
----------
SECTION 40 GENERAL PROVISIONS Page -23-
-------------------
40.1 CAPTIONS Page -23-
40.2 PRONOUNS Page -23-
40.3 GOVERNING LAW Page -23-
40.4 WORDS OF OBLIGATION Page -23-
40.5 JOINT AND SEVERAL LIABILITY Page -23-
40.6 EXECUTION OF LEASE Page -23-
40.6.1 DEPOSIT Page -23-
40.7 NOTICE OF CLAIM Page -23-
40.8 NEUTRAL CONSTRUCTION Page -23-
40.9 CONSTRUCTION ALLOWANCE Page -24-
40.10 THIRD PARTY BENEFICIARY STATUS Page -24-
40.11 LIMITED LIABILITY Page -24-
SECTION 41 OPTION TO EXTEND Page -24-
------------------
41.1 EXTENSION TERM Page -24-
41.1.1 COMMENCEMENT DATE Page -24-
41.2 NOTICE OF ELECTION Page -24-
41.2.1 ADJUSTMENT OF BASE RENT Page -24-
41.3 TERMINATION OF OPTION TO EXTEND Page -25-
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 GATEWAY SIGNAGE
EXHIBIT G ROOFING REQUIREMENTS
