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EXHIBIT 10.33
STANDARD INDUSTRIAL LEASE
(SINGLE TENANT NET-NET-NET)
This Standard Industrial Lease (Single Tenant Net-Net-Net) (this "Lease")
is entered into by and between the Landlord and Tenant named below, which
parties hereby agree as follows:
Lease Preparation Date: June 1, 1993
Landlord: DERMODY PROPERTIES, a Nevada Corporation, located at 1200 Financial
Boulevard, P.O. Box 7093, Reno, Nevada 89510
Tenant: PIONEER CITIZENS BANK OF NEVADA, a Nevada corporation
Trade Name (dba): Pioneer Citizens Bank of Nevada
1. LEASE TERMS
1.01 Property: The Property referred to in this Lease consists of
approximately 0.928 acres of land, improved with a single story concrete
tilt-up building containing approximately 8,560 square feet of space and
includes adjacent parking areas and landscaping, as shown on the site plan
attached hereto as Exhibit "A" and legally described on Exhibit "A-1" attached
hereto. The address of the Property is: 5400 Equity Avenue, Reno, Nevada 89502.
The term "Improvements" as used in this Lease shall mean all improvements on
the Property, whether constructed by Landlord or by Tenant.
1.02 Project: The Project in which the Property is located consists of
approximately 166.5 acres of lands, including improved and unimproved land,
commonly known as Dermody Business Park. A site plan of the Project is attached
hereto as Exhibit "A-2." The term "Project" as used in this Lease shall include
the Property and the Common Area (as said term is defined in Section 4.01
below).
1.03 Tenant's Notice Address: Tenant's Notice Address is the address of
the Leased Property as defined in Section 1.01 unless otherwise specified here:
10 State Street, Reno, Nevada 89501.
1.04 Landlord's Notice Address: P.O. Box 7098, Reno, Nevada 89510.
1.05 Tenant's Permitted Use: Bank office operations.
1.06 Lease Term: The Lease Term is for 77 months and is scheduled to
commence on September 1, 1993 and expire on January 31, 2000.
1.07 Base Monthly Rent: FIVE THOUSAND FIVE HUNDRED SIXTY-FOUR AND NO/100
DOLLARS ($5,564.00) per month, for the entire Lease Term, in lawful money of
the United States of America.
1.08 Security Deposit: None.
1.09 Proportionate Share: Tenant's Proportionate Share is 0.56%, which
amount equals the total acres of land at the Property divided by the total
acres of land at the Project.
1.10 Tenant is entitled to all available vehicle parking spaces at the
Property, subject to the provisions of Section 8 of this Lease.
2. DEMISE AND POSSESSION; INSPECTION PERIOD
2.01 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Property described in Section 1.01. For a period of sixty (60)
days following the date of mutual execution of this Lease (the "Inspection
Period"), Tenant (and its designated representatives, agents, and consultants),
at Tenant's sole cost and expense, shall have the right to enter upon the
Property for the purpose of inspecting and investigating the condition of the
Property and the suitability of the Property for Tenant's intended use, subject
to all of the following terms and conditions:
A. All of the provisions of this Lease shall apply to any such entry upon
the Property, except that Tenant shall not be permitted to use the Property for
any purpose except as set forth in this Section 2.01 during the inspection
Period. Without limiting the generality of the foregoing, Tenant acknowledges
that the provisions of Section 7.02 - 7.06 (Use), Section 10 (Alterations,
Mechanics Liens), Section 11 (Insurance) and Section 12 (Indemnification) of
this Lease shall apply to any such entry upon the Property.
B. Tenant shall give Landlord not less than forty-eight (48) hours prior
notice before any such entry upon the Property. Throughout the Inspection
Period, Landlord shall retain all keys to the Property. A representative of
Landlord shall have the right to accompany Tenant during any such entry upon
the Property. Tenant shall use its best efforts not to disturb any occupants of
the Property during any such entry.
C. Tenant shall not physically alter the Property in any material manner
during the Inspection Period. If Tenant desires to conduct any tests or
investigations with respect to Hazardous Wastes (as said term is defined in
Section 7.02 below), including without limitation any tests or investigations
with respect to the presence of asbestos or asbestos containing materials in
the Improvements, Tenant shall first present to Landlord a written plan
detailing the procedures and protocols of such tests or investigations, which
plan shall be subject to Landlord's prior approval, not to be unreasonably
withheld. Any such tests or investigations shall be performed by a duly
licensed or certified environmental engineer in strict compliance with all
applicable laws. Tenant shall not perform any such tests or inspections if the
same would in any way interfere with the quiet enjoyment of the Property by any
occupants of the Property or if the same is potentially injurious to public
health or safety. Tenant shall keep all results of such tests or investigations
strictly confidential, except that Tenant shall deliver a copy of any report or
analysis prepared in connection with such tests or investigations to Landlord,
at no cost or expense to Landlord, within five (5) days of the preparation
thereof.
D. If Tenant does not approve of the physical condition of the Property in
any respect, and if Tenant delivers a written notice to Landlord setting forth
the particular reasons for such disapproval prior to the expiration of the
Inspection Period, then Landlord shall have the right to repair or correct any
such conditions, to Tenant's reasonable satisfaction, at Landlord's sole cost
and expense. Landlord shall deliver written notice (the "Correction Notice") to
Tenant within ten (10) days following receipt of
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Tenant's notice of disapproval, stating whether or not Landlord elects to repair
or correct such condition and Landlord's proposed plan for such work. If
Landlord elects to correct such condition and if its plan is acceptable to
Tenant (or if Landlord and Tenant otherwise negotiate a mutually acceptable plan
for such work), then the parties shall promptly execute an amendment to this
Lease setting forth the scope and particular details of such work (the "Remedial
Work"). In such case, Landlord shall substantially complete the Remedial Work
prior to delivery of possession of the Property to Tenant. As used herein, the
term "substantially complete" shall mean completion of the Remedial Work in
substantial conformity with the scope and particular details of such work as set
forth in said amendment to this Lease. If the parties are unable to agree upon
the scope and particular details of such work or if said amendment is not
executed within thirty (30) days following the expiration of the Inspection
Period, then either party shall have the right to terminate this Lease by
written notice to the other party, which notice must be received by the other
party within five (5) days following the expiration of said thirty (30) day
period. If such notice is timely delivered by either party, this Lease shall
terminate pursuant to paragraph F below. If Landlords does not elect to repair
or correct such condition, then Tenant shall have the right to terminate this
Lease pursuant to paragraph E below, or to waive its disapproval (or elect to
perform such work itself, at Tenant's sole cost and expense) by waiving its
right to terminate this Lease pursuant to paragraph E below.
E. If Tenant does not approve of the condition of the Property or the
suitability of the Property for Tenant's intended use, or if Tenant does not
elect to perform any repairs or corrections which it desires Landlord to
perform, but which Landlord does not elect to perform, pursuant to paragraph D
above, then Tenant shall have the right to terminate this Lease by giving
written notice to Landlord (the "Termination Notice"), which notice Landlord
must receive prior to the expiration of the Inspection Period. However, if the
time period from the date of Landlord's delivery to Tenant of the Correction
Notice to the expiration of the Inspection Period is less than ten (10) days,
then the Inspection Period shall be extended for that number of days required to
provide Tenant at least ten (10) days following delivery of the Correction
Notice to elect whether or not to terminate this Lease. If the Termination
Notice is not timely given, Tenant's right to terminate this Lease shall lapse
and expire, and shall be null and void and of no further force or effect, and
Tenant shall be deemed to have approved of the condition of the Property and its
suitability for Tenant's intended use, and (if applicable), Tenant shall be
deemed to have elected to perform itself any repairs or corrections that Tenant
desires but Landlord elects not to perform. Landlord shall have no obligation to
perform any covenant of Landlord under this Lease unless and until Tenant's
rights to terminate this Lease, as set forth in paragraph D above and this
paragraph E, shall lapse or be waived by Tenant in writing. Tenant may waive its
rights to Terminate this Lease at any time prior to the expiration of the
Inspection Period by written notice to Landlord.
F. If either Landlord or Tenant timely terminates this Lease pursuant to
either paragraph D or paragraph E, then such termination shall be effective upon
the date of receipt by the other party of written notice of such election, and
neither party shall have any further obligations or liabilities under this Lease
first arising after said effective date of termination. Without limiting the
generality of the previous sentence, any obligation or liability of Tenant
incurred or arising prior to said effective date of termination (including,
without limitation any liability arising under Section 12 of this Lease) shall
survive the termination of this Lease. If this Lease is terminated, and if
Tenant has not incurred any monetary obligations to Landlord under this Lease
during the Inspection Period, then Landlord shall promptly refund to Tenant its
first month's rent deposit, with interest, as described in Section 3.01 below.
If Tenant has incurred any such monetary obligations, then Landlord shall be
entitled to deduct from said deposit the amount of such obligations prior to the
return of such deposit to Tenant.
G. By its written or deemed approval of the condition of the Property and
the suitability of the same for Tenant's intended use, Tenant represents and
warrants that it accepts the Property in its condition at such time, subject to
all recorded matters, laws, ordinances, and governmental regulations and orders,
and that Tenant has made its own inspection of and inquiry regarding the
condition of the Property and its suitability for Tenant's intended use, and
that Tenant is not relying on any representations or warranties of Landlord or
any representative or agent of Landlord with respect thereto, and that neither
Landlord nor any representative or agent of Landlord has made any
representations or warranties with respect thereto.
2.02 The Property shall be deemed to be "Ready for Occupancy" on the
latter of (i) the substantial completion of any Remedial Work that Landlord
elects to perform under paragraph 2.01(D), or (ii) the vacation of the Property
by any present tenants. Landlord shall have no obligation to prepare the
Property in any respect or to install any tenant improvements prior to delivery
of possession of the Property to Tenant, except that (i) Landlord shall perform
any such Remedial Work prior to delivery of possession of the Property to
Tenant, and (ii) Landlord shall deliver the Property "broom clean" following the
vacation of the Property by any present tenant and in substantially the same
physical condition as of the last date of Tenant's inspection of the Property
during the Inspection Period (subject to any Remedial Work). Tenant shall accept
possession of the Property upon delivery by Landlord in the condition set forth
hereinabove, and the Lease Term shall commence upon said date of delivery of
possession of the Property by Landlord to Tenant (the "Commencement Date"). To
the best of Landlord's knowledge, the structure, roof, and HVAC, plumbing, and
electrical systems at the Improvements are in good working order and repair as
of the date of execution of this Lease. However, Landlord shall have no duty or
obligation to inspect or otherwise investigate the same,and Tenant hereby
assumes all risk with respect to the condition of the same. By its written or
deemed approval of the condition of the Property and the suitability of the
Property for its intended use pursuant to Section 2.01, Tenant acknowledges that
it has inspected and accepts the condition of the Property to its complete
satisfaction, including without limitation the condition of the structure, roof,
and HVAC, plumbing, and electrical systems of the Improvements, and Tenant shall
lease the Property (and, if Tenant elects to purchase the Property pursuant to
Section 40 or Section 41 below, Tenant shall purchase the Property) "as is with
all faults" in reliance solely on its own independent factual, physical and
legal investigations, examinations, and inquiries. Notwithstanding anything set
forth in the preceding sentence to the contrary, Landlord shall be responsible
for repairs to the HVAC system at the Property for a period of one hundred fifty
(150) days following the Commencement Date, pursuant to Section 13.01 below.
Tenant further acknowledges that it has read and understands all covenants,
conditions and restrictions and similar items of record affecting the Property
(collectively, "CC&R'S") and accepts the same. Landlord expressly reserves the
right to lease or sell any other improvements or land available in the Project
to whomever it wishes and Tenant hereby acknowledges that it did not rely on the
presence of any other tenant or owner in the Project as a consideration for
entering into this Lease.
2.03 If for any reason the Property is not Ready For Occupancy or Landlord
cannot deliver possession of the Property to Tenant on the scheduled date set
forth in Section 1.05 for the commencement of the Lease Term or in the condition
set forth in Section 2.02, Landlord shall not be subject to any liability nor
shall the validity of this Lease be affected. If Tenant has not caused such
delay, Tenant's obligations under this Lease to pay Base Monthly Rent,
Additional Rent and such other amounts payable under this Lease commencing on
the Commencement Date shall not commence until the date when Landlord delivers
possession. Tenant, unless it is the cause of the delay, shall have the right to
terminate this Lease by written notice to Landlord if possession of the Property
is not delivered within thirty (30) days of the date the Lease Term is scheduled
to commence as set forth in Section 1.08 and in the condition set forth in
Section 2.02, provided that such notice must be received by Landlord prior to
Landlord's delivery of possession of the Property to Tenant in the condition set
forth in Section 2.02. If such notice is not received prior to delivery of
possession of the Property by Landlord, then Tenant shall have no right to
terminate this Lease and shall accept possession of the Property upon delivery.
Notwithstanding such right of Tenant to terminate this Lease, if Landlord
reasonably believes that the Remedial Work cannot be substantially completed
within thirty (30) days of the date that
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the Lease Term is scheduled to commence, as set forth in Section 1.06, then
Landlord shall set forth in the Correction Notice that date (the "Estimated
Completion Date") upon which Landlord reasonably believes the Remedial Work can
be substantially completed. In such case, Tenant shall have the right to
terminate this Lease pursuant to this Section 2.03 if the Remedial Work is not
substantially completed within thirty (30) days of the Estimated Completion
Date. In all cases, if Landlord is obligated to perform any Remedial Work
pursuant to this Lease, the period after which Tenant shall have the right to
terminate this Lease pursuant to this Section 2.02 shall be extended pursuant to
Section 38.11 below. Landlord shall have the right to terminate this Lease by
giving written notice to Tenant if possession of the Property is not delivered
by Landlord in the condition set forth in Section 2.02 within sixty (60) days
following the letter of (i) said scheduled commencement date set forth in
Section 1.08, or, if Landlord is performing any Remedial Work, the Estimated
Completion Date.
2.04 Notwithstanding the scheduled Lease Term commencement date set forth
in Section 1.06 (i.e. September 1, 1993), if the Property is Ready For Occupancy
prior to said scheduled commencement date and if Landlord delivers possession of
the Property to Tenant at any time thereafter, Tenant shall accept possession at
such time of delivery of possession. If the Commencement Date is earlier than
the scheduled commencement date set forth in Section 1.06, then the Lease Term
shall be extended such that the scheduled expiration date of the Lease Term
shall in all cases be January 31, 2000.
3. BASE MONTHLY RENT
3.01 Base Monthly Rent: On the first day of every calendar month of the
Lease Term commencing on the Commencement Date, Tenant shall pay, without
deduction or offset, prior notice or demand, Base Monthly Rent at the place
designated by Landlord. However, Landlord acknowledges that it has previously
received from Tenant the first month's rent, which amount Landlord has deposited
in an interest bearing account of Landlord's choice. If this Lease is not
terminated pursuant to Section 2.01, then the principal amount of said deposit
shall be applied to Tenant's first month's Base Monthly Rent hereunder, and the
accrued interest thereon shall be applied to Tenant's second month's Base
Monthly Rent hereunder. If this Lease is terminated pursuant to Section 2.01 or
Section 2.03 then said deposit and all accrued interest thereon shall be
refunded to Tenant pursuant to paragraph 2.01(F) above. In the event that the
Term of this Lease commences or ends on a day other than the first day of a
calendar month, a prorated amount of Base Monthly Rent shall be due upon
execution and it shall be calculated using a thirty (30) day month. In the event
this Lease is to commence upon a date not ascertained on execution both parties
agree to complete and execute a Commencement Date Certificate in the form of
Exhibit B within ten(10) days of the Commencement Date.
3.02 Any installment of rent or any other charge payable which is not paid
within ten (10) days after it becomes due shall be considered past due and
Tenant will pay to Landlord as Additional Rent a late charge equal to twelve
percent (12%) of such installment or the sum of twenty-five dollars ($25.00),
whichever is greater, for each month or fractional month transpiring from the
date due until paid. A twenty-five dollar ($25.00) handling charge shall be paid
by Tenant to Landlord for each returned check and, thereafter, Tenant will pay
all future payments of rent or other charges due by money order or cashier's
check. In the event a late charge is assessed for three (3) consecutive rental
periods, whether or not it is collected, the rent shall without further notice
become due and payable quarterly in advance notwithstanding any provision of
this Lease to the contrary. If Tenant shall be served with a demand for the
payment of past due rent, any payments tendered thereafter to cure any default
by Tenant shall be made only by cashier's check.
3.03 The amount of the Base Monthly Rent includes consideration for
Landlord's completion of the Remedial Work, if any, in the event that Tenant
requests Landlord to construct any additional improvements on the Property, the
costs and expenses of such work, upon itemized notice by Landlord, shall be paid
by Tenant to Landlord, or Landlord may increase the Base Monthly Rent by that
amount necessary to amortize the cost of such work over the Lease Term.
4. COMMON AREAS
4.01 The term "Common Areas" as used in this Lease shall mean all areas and
facilities outside the Property and within the exterior boundary line of the
Project that are owned, provided and designated by Landlord for the
non-exclusive use of Landlord, Tenant and other lessees and owners of
improvements within the Project, and their respective employees, agents,
customers and invitees. Common Area include, but are not limited to: all parking
areas not a part of any other tenant's or owner's property, roadways, sidewalks,
walkways, parkways, driveways, corridors, and landscaped areas within the
Project. Common Area does not include any roadways or other areas within the
boundaries of the Project previously dedicated by Landlord to any public entity,
city, or county (collectively, the "Dedicated Area").
4.02 Tenant, its employees, agents, customers and invitees shall have the
non-exclusive right (in common with Landlord and other lessees and owners within
the Project, and any other person granted permission by Landlord) to use of the
Common Area. Tenant agrees to abide by and conform to, and to cause its
employees, agents, customers and invitees to abide by and conform to all rules
and regulations established by Landlord subject to provision of Section 24
below.
4.03 Landlord has the right, in its sole discretion, from time to time, to:
1) make changes to the Common Area, including without limitation, changes in the
location, size, shape and number of driveways, entrances, parking spaces,
parking areas, ingress, egress, direction of driveways, entrances, corridors
parking areas and walkways; 2) close temporarily any of the Common Area for
maintenance purposes so long as reasonable access to the Property remains
available; 3) add additional buildings and improvements to the Common Area or
the Project; 4) use the Common Area while engaged in making additional
improvements, repairs or alterations to the Project or any portion thereof; 5)
dedicate, contribute, or otherwise transfer part of the Common Area or any other
land owned by Landlord in the Project to the Dedicated Area; and 6) do or
perform any other acts or make any other changes in, to or with respect to the
Common Area or the Project as Landlord may, in the exercise of sound business
judgement, deemed to be appropriate.
5. ADDITIONAL RENT
5.01 All charges payable by Tenant under this Lease other than Base Monthly
Rent are called "Additional Rent". Unless this Lease provides otherwise,
Additional Rent is to be paid with the next monthly installment of Base Monthly
Rent and is subject to the provisions of Section 3.03 above. The term "rent"
whenever used in this Lease means Base Monthly Rent and Additional Rent.
5.02 Operating Costs
A. The term "Operating Costs" as used in this Lease shall means all costs
and expenses of ownership, operation, maintenance, management, repair and
insurance incurred by Landlord in connection with the Common Area, including but
not limited to the following: all supplies, materials, labor and equipment, used
in or related to the operation and maintenance of the Common Area; all utilities
(including, but not limited to, water, electricity, gas, heating, lighting,
sewer, waste disposals related
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to the maintenance or operation of the Common Area; all of Landlord's costs in
insuring the Common Area; all operation, maintenance and repair costs to the
Common Area, including but not limited to, sidewalks, walkways, parkways,
parking areas, loading and unloading areas, trash areas, roadways, driveways,
corridors, and landscaped area, including for example, costs of resurfacing and
restripping parking areas; signs and directories of the Project; amortization
(along with reasonable financing charges) of capital improvements made to the
Common Area which may be required by any government authority or which will
improve the operating efficiency of the Project; and a fee for Landlord's
supervision of the Common Area equal to five percent (5%) of the total above
mentioned costs and expenses incurred in a calendar year. Operating Costs shall
not include depreciation of the Common area. Operating Costs shall also include
any costs incurred by Landlord in connection with the Dedicated Area.
B. For the entire Lease Term commencing on the Commencement Date, Tenant
shall pay to Landlord Tenant's Proportionate Share (as set forth in Section
1.09) of the monthly Operating Costs. If there is a change in the acreage of
either the Project or the Property during the Lease Term, Tenant's
Proportionate share shall be adjusted accordingly. Such payment shall be paid
by Tenant with and in addition to the monthly payment of Base Monthly Rent,
based on a statement delivered by Landlord. Tenant shall, if Landlord so
elects, pay to Landlord on a monthly basis, in advance, the amount which
Landlord reasonably estimates to be Tenant's Proportionate Share of the
Operating Costs. In the event of such election by Landlord, Landlord shall
periodically determine Tenant's Proportionate Share of the actual Operating
Costs, and in the event that the amount which Tenant has paid to Landlord on
account of the estimated Operating Costs is less than its share of such actual
Operating Costs, Tenant shall pay such difference to Landlord on the next rent
payment date. In the event that Tenant has paid to Landlord more than its
Proportionate Share of such actual Operating Costs, the amount of such
difference shall be credited against Tenant's payment of Operating Costs next
due. Or, if such period is at the end of the Lease Term the amount of any
overpayment shall be promptly refunded to Tenant.
5.03 Taxes
A. The term "Real Estate Taxes" as used in this Lease shall mean (i) any
fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty of tax imposed by any taxing authority
against the Project (including the Property) (and including, without
limitation,any fees, taxes of assessments against, or as a result of, any
tenant improvements installed on the Project); (ii) any tax or fee on
Landlord's right to receive, or the receipt of, rent or income from the Project
or against Landlord's business of leasing the Project (including the Property),
(iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Project (including the
Property) by any governmental agency; (iv) any tax imposed upon this
transaction, or based upon a re-assessment of the Project or the Property due
to a change in ownership or transfer of all of part of Landlord's interest
therein; (v) any change or fee replacing, substituting for, or in addition to
any tax previously included within the definition of real property tax; and
(vi) the Landlord's cost of any tax protest relating to any the above. Real
Estate Taxes do not, however, include Landlord's federal or state income,
franchise, inheritance or estate taxes.
B. For the entire Lease Term commencing on the Commencement Date, Tenant
shall pay directly to the relevant taxing authority all Real Estate Taxes
payable with respect to or assessed against the Property. Such payment shall be
made at least thirty (30) days prior to the delinquency date of such taxes. If
Tenant fails to timely pay such taxes and if a late payment fee or penalty is
assessed against the Property as a result thereof, Tenant shall be responsible
for payment of such penalty or fee. If Tenant does not pay such taxes at least
ten (10) days prior to the delinquency date, or if Tenant does not pay any such
penalty or fee within ten (10) days of the assessment of the same, then
Landlord shall have the right, but not the obligation, to pay such taxes,
penalties, or fees on behalf of Tenant and Tenant shall promptly reimburse
Landlord, as Additional Rent, all such amounts paid by Landlord. If the
Property is separately assessed from the remainder of the Project, and if the
applicable tax bills are delivered to Landlord, as owner of the Property, then
Landlord shall promptly deliver such bills to Tenant upon receipt. If the
Property is not separately assessed, Landlord shall reasonably determine
tenant's share of the Real Estate Tax payable by Tenant pursuant to the
paragraph 5.03(B) from the assessors worksheets or other reasonably available
information. Tenant shall pay such share to Landlord at least thirty (30) days
prior to the delinquency date, and upon delivery of Landlord's written
statement with respect thereto. The Real Estate Taxes payable by Tenant
hereunder shall be prorated for any period of time during any tax year before or
after the Lease Term.
C. Personal Property Taxes: Tenant shall pay all taxes charged against
trade fixtures, furnishing, equipment or any other personal property belonging
to Tenant. If possible, Tenant shall have its personal property taxes billed
separately from the Property. If any of Tenant's personal property is taxed
with the Property, Tenant shall pay the taxes for its personal property
together with payment of Real Estate Taxes pursuant to paragraph 5.03(B) above.
D. In addition, Tenant shall pay to Landlord Tenant's Proportionate Share
of Real Estate Taxes payable with respect to or assessed against the Common
Area during the Lease Term. In the Common Area is not separately assessed,
Landlord shall reasonably determine said amount from the assessors worksheets
or other reasonably available information. Tenant shall pay such amounts to
Landlord at least thirty (30) days prior to the delinquency date, and upon
delivery of Landlord's written statement with respect thereto. Alternatively,
if Landlord so elects, Tenant shall pay such amount in monthly installments, in
addition to its monthly payment of Base Monthly Rent. In such case, Landlord
shall notify Tenant of the amount that Landlord reasonably estimates to be
Tenant's monthly installment payment. Upon receipt of actual tax bills,
Landlord shall adjust such estimate and if the amount previously paid by Tenant
is less than its actual obligation under this Section 5.03(D), Tenant shall pay
such difference to Landlord on the next rent payment date. If Tenant has
overpaid the amount of its actual obligation hereunder, the amount of such
overpayment shall be credited against Tenant next due monthly installment(s)
hereunder.
5.04 Tenant shall also pay as Additional Rent to Landlord its
Proportionate Share of any parking charges, utility surcharges, occupancy
taxes, or any other costs resulting from any statute or regulation, or any
interpretation thereof, enacted by any governmental authority in connection
with the use or occupancy of the Project or any common parking facilities
serving the Project, or any part thereof.
6. SECURITY DEPOSIT. This Section Intentionally Deleted.
7. USE OF PROPERTY; QUIET CONDUCT
7.01 The Property may be used and occupied only for Tenant's Permitted
Use as shown in Section 1.05 and for no other purpose, without obtaining
Landlord's prior written consent. Tenant shall comply with all laws, ordinances,
orders and regulations affecting the Property. Tenant shall not perform any act
or carry on any practices that may injure the Project or the Property or be a
nuisance or menace, or disturb the quiet enjoyment of other lessees in the
Project including but not limited to equipment which causes vibration, use or
storage of chemicals, or heat or noise which is not properly insulated. Tenant
shall not cause, maintain or permit any outside storage on or about the
Property. In addition, Tenant shall not allow any condition or thing to remain
on or about the Property which diminishes the appearance or aesthetic qualities
of the Property and/or the Project or the surrounding property. The keeping of a
dog or other animal on or about the Property is expressly prohibited.
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Concurrently with its execution of this Lease, Tenant shall complete the Tenant
Questionnaire attached hereto as Exhibit "C" and incorporated herein. Landlord
shall have the right to rely on all of Tenant's responses to the questions set
forth in said Questionnaire as an inducement to Landlord to enter into this
Lease.
7.02 The term "Hazardous Waste" as used in this Lease shall mean:
A. Those substances defined as "hazardous substances", "hazardous
materials", "toxic substances", "regulated substances", or "solid waste" in the
Toxic Substance Control Act, 15 U.S.C. Section 2601 et. seq., as now existing or
hereafter amended ("TSCA"), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et. seq., as now
existing or hereafter amended ("RCRA"), the Federal Hazardous Substances Act, 15
U.S.C. Section 1261 et. seq., as now existing or hereafter amended ("FHSA"), the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et. seq., as
now existing or hereafter amended ("OSHA"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et. seq., as now existing or
hereafter amended ("HMTA"), and the rules and regulations now in effect or
promulgated hereafter pursuant to each law reference above;
B. Those substances defined as "hazardous waste", "hazardous material", or
"regulated substances" in Nev. Rev. Stat. ch 459, 1989 Nev. Stat. ch, 598 and
1989 Nev. Stat. ch 363, or in the regulations now existing or hereafter
promulgated pursuant thereto or in the Uniform Fire Code, 1988 edition;
C. Those substances listed in the United States Department of
Transportation table (49 CFR Section 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CRF Part 302 and amendments thereto); and
D. Such other substances, mixtures, materials and waste which are
regulated under applicable local, state or federal law, or which are classified
as hazardous or toxic under federal, state or local laws or regulations (all
laws, rules and regulations referenced in paragraphs (a), (b), (c) and (d) are
collectively referred to as "Environmental Laws").
7.03. Tenant's Covenants. Tenant does not intend to and Tenant shall not,
nor shall Tenant permit or suffer any other person (including partnerships,
corporations and joint ventures), at any time to manufacture, process, store,
distribute, use, discharge or dispose of any Hazardous Waste in, on, under or
about the Project (including the Property) or any property adjacent thereto.
A. Tenant shall notify Landlord promptly in the event of any spill or
release of Hazardous Waste into, on, or onto the Project (including the
Property), regardless of the source of spill or release, whenever Tenant knows
or suspects that such a release occurred.
B. Tenant shall not be involved in operations at or near the Project
(including the Property) which could lead to the imposition on Tenant or
Landlord of any liability or the creation of a lien on the Project (including
the Property), under any Environment Laws.
C. Tenant shall, upon twenty-four (24) hour prior notice by Landlord,
permit Landlord or Landlord's agent access to the Property to conduct an
environmental site assessment with respect to the Property.
7.04. Indemnity. Tenant for itself and its successors and assigns
undertakes to protest, indemnify, save and defend Landlord, its agents,
employees, directors, officers, shareholders, affiliates, consultants,
independent contractors, successors and assigns (collectively the
"Indemnitees") harmless from any and all liability, loss, damage and expenses,
including attorneys' fees, claims, suits and judgements that Landlord or any
other Indemnitee, whether as Landlord or otherwise, may suffer as a result of,
or with respect to:
A. Any Environmental Law, including the assertion of any lien thereunder
and any suit brought or judgement rendered regardless of whether the action was
commenced by a citizen (as authorized under the Environmental Laws) or by a
government agency;
B. Any spill or release of or the presence of any Hazardous Waste
affecting the Project (including the Property) that originates or emanates from
the Property, including any loss of value of the Project (including the
Property) as a result of a spill or release of or the presence of any such
Hazardous Waste;
C. Any other matter affecting the Project (including the Property) within
the jurisdiction of the United States Environmental Protection Agency, the
Nevada State Environmental Commission, the Nevada Department of Conservation and
Natural Resources, or the Nevada Department of Commerce, including costs of
investigations, remedial action, or other response costs whether such costs are
incurred by the United States Government, the State of Nevada, or any
indemnitee;
D. Liability for clean-up costs, fines, damages or penalties incurred
pursuant to the provisions of any applicable Environmental Law; and
E. Liability for personal injury or property damage arising under any
statutory or common-law tort theory, including, without limitation, damages
assessed for the maintenance of a public or private nuisance, or for the
carrying of an abnormally dangerous activity, and response costs, if such
liability is incurred by the Indemnitees in connection with or arising out of
any spill or release of or the presence of any Hazardous Waste affecting the
Project (including the Property), that originates or emanates from the Property.
7.05 Remedial Acts. In the event of any spill or release of or the
presence of any Hazardous Waste affecting the Project (including the Property),
that originates or emanates from the Property, and/or if Tenant shall fail to
comply with any of the requirements of any Environmental Law, Landlord may,
without notice to Tenant, at its election, but without obligations so to do,
gives such notices and/or cause such work to be performed at the Project
(including the Property ) and/or take any and all other actions as Landlord
shall deem necessary or advisable in order to remedy said spill or release of
Hazardous Waste or cure said failure of compliance and any amounts paid as a
result thereof, together with interest at the rate of twelve percent (12%) per
annum, from the date of payment by Landlord, shall be immediately due and
payable by Tenant to Landlord.
7.06 Settlement. Landlord upon giving Tenant ten (10) days prior notice,
shall have the right in good faith to pay, settle or compromise, or litigate
any claim, demand, loss, liability, cost, charge, suit, order, judgment or
adjudication under the belief that it is liable therefor, whether liable or
not, without the consent or approval of Tenant unless Tenant within said ten
(10) day period shall protest in writing and simultaneously with such protest
deposit with Landlord collateral satisfactory to Landlord sufficient to pay and
satisfy any penalty and/or interest which may accrue as a result of such
protest and any judgement
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or judgments as may result, together with attorneys' and environmental
consultants' fees and expenses.
8. PARKING
8.01 Tenant and Tenant's customers, suppliers, employees, and invitees
shall have the exclusive right to park in all parking spaces available at the
property, in the parking area shown on Exhibit "A" attached hereto. Landlord
shall have no obligation to provide any other parking facilities at the Project.
However, if any other parking facilities are available at the Project from time
to time and if Landlord makes such facilities available on a non-exclusive basis
to Tenant and other tenants of the Project, Tenant shall not overburden any such
other parking facilities and shall cooperate with Landlord and other lessees and
owners of property in the Project in the use of any such other parking
facilities. Landlord reserves the right to, on an equitable basis, assign
specific spaces within any such other parking facilities, with or without charge
to Tenant as Additional Rent, and to make changes in the layout of any such
other parking facilities from time to time, and to establish reasonable time
limits on the use of any such other parking facilities.
9. UTILITIES
9.01 For the entire Lease Term commencing on the Commencement Date,
Tenant shall be responsible for and shall pay for all utilities chargeable to or
provided to the Property, including without limitation water, gas, heat, light,
power, sewer, electricity, or other services, separate from and in addition to
payment of Tenant's Proportionate Share of Operating Costs pursuant to Section
5.02 (with respect to the utility costs for the Common Area). Tenant shall pay
such amounts directly to the provider of such utilities promptly upon delivery
of a bill therefore, or to Landlord, upon delivery of a statement from Landlord,
if any of such utilities are not separately metered to the Property from the
remainder or another part of the Project. In such latter case, Landlord reserves
the right to install separate meters for any such utilities.
9.02 Landlord shall not be liable or in default under this Lease, and
there shall be no abatement of rent for any interruption or reduction of
utilities or services to the Property unless the same are caused entirely by
Landlord's gross negligence or willful misconduct, but in no case shall Landlord
be liable or in default under this Lease for any act beyond Landlord's
reasonable control. Tenant shall comply with any energy conservation program
implemented by Landlord by reason of enacted laws or ordinances.
9.03 Tenant shall contract and pay for all telephone and such other
services for the Property subject to the provisions of 10.02.
10. ALTERATIONS, MECHANIC'S LIENS
10.01 Tenant shall not make any alterations to the Property without
Landlord's prior written consent. Landlord's consent shall be contingent upon
Tenant providing Landlord with the following items or information, all subject
to Landlord's approval: (i) the name of Tenant's contractor, (ii) certificates
of insurance from Tenant's contractor evidencing that Tenant's contractor is
covered by a policy of commercial general liability insurance, with limits not
less than Two Million Dollars ($2,000,000) General Aggregate, One Million
Dollars ($1,000,000) Products/Complete Operations Aggregate, One Million Dollars
($1,000,000) Personal & Advertising Injury, One Million Dollars ($1,000,000)
Each Occurrence, Fifty Thousand Dollars ($50,000) Fire Damage, Five Thousand
Dollars ($5,000) Medical Expense, One Million Dollars ($1,000,000) Auto
Liability (Combined Single Limit, including Hired/Non-Owned Auto Liability),
Workers Compensation, including Employer's Liability, as required by state
statute, all endorsed to show Landlord as an additional insured and for worker's
compensation as required and (iii) detailed plans and specifications for such
work. Tenant shall cause its contractor to execute a waiver of mechanic's lien
and Tenant shall remove any mechanic's lien placed against the Project within
ten (10) days of receipt of a notice of any such lien. In addition, before the
commencement of any alterations work, Tenant shall furnish to Landlord a copy of
a valid building permit and any such other permits or licenses required in
connection therewith, and, once the alterations work begins. Tenant shall
diligently and continuously pursue it to completion. As a further condition to
giving such consent, Landlord may require Tenant to provide Landlord, at
Tenant's sole cost and expense, with a payment and performance bond in form
acceptable to Landlord, in a principal amount not less than one and one-half (1
1/2) times the estimated cost of such alterations, to insure Landlord against
any liability for mechanic's and materialmen's liens and to ensure completion of
work. At Landlord's option, any alterations may become part of the Property
realty and belong to Landlord. Alternatively, Landlord may require Tenant, at
Tenant's sole cost and expense, to remove any such alterations upon the
expiration or earlier termination of the Lease Term and shall restore the
Property to its condition prior to the installation of such alterations,
reasonable wear and tear excepted. If requested by Landlord, Tenant shall pay,
prior to the commencement of any such alterations work, an amount determined by
Landlord as necessary to cover the costs of demolishing such alterations at the
expiration or earlier termination of the Lease Term, and/or the cost of
restoring the Property to such prior condition.
10.02 Notwithstanding anything set forth in Section 10.01 to the contrary,
Tenant shall have the right, subject to the prior written consent of Landlord,
to install trade fixtures, equipment and machinery and private telephone systems
and/or other related telecommunications equipment and lines within the Property
(provided that the same is done in compliance with all applicable laws,
ordinances, rules, and regulations). Tenant shall remove the same upon the
expiration or earlier termination of this Lease, and shall repair any damage to
the Property in connection therewith at Tenant's sole cost and expense, such
that the Property shall be restored to its condition prior to the installation
of such items, reasonable wear and tear excepted.
10.03 Tenant shall pay all costs for any alterations or installations
permitted under this Section 10 and shall keep the Property and the Project free
from any liens arising out of work performed for, materials furnished to or
obligation incurred by Tenant in connection therewith.
10.05 Landlord shall have the right to construct or permit construction of
improvements in or about the Project for existing and new Tenants, and for
owners, and to alter any Common Area in and around the Project. Notwithstanding
anything contained in this Lease to the contrary, Tenant acknowledges the
foregoing right of Landlord and agrees that any such construction shall not be
deemed to constitute a breach of this Lease by Landlord, including without
limitation any covenant of quiet enjoyment, and Tenant hereby waives any such
claim which it might have arising from any such construction.
11. FIRE INSURANCE: HAZARDS AND LIABILITY INSURANCE
11.01 Except as expressly provided as Tenant's Permitted Use, or as
otherwise consented to by Landlord in writing, Tenant shall not do or permit
anything to be done within or about the Property which will increase the
existing rate of insurance on the Project and shall, at its sole cost and
expense, comply with any requirements, pertaining to the Property, of any
insurance organization insuring the Project and Project-related apparatus.
Tenant agrees to pay to Landlord, as Additional Rent, any increases in premiums
on policies resulting from Tenant's Permitted Use or other use consented to by
Landlord which increases Landlord's premiums or requires extended coverage by
Landlord to insure the Project or the Property.
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11.02 At all times during the Lease Term, Landlord shall maintain a policy
or policies of insurance covering loss of or damage to the Property in the full
amount of its replacement value. Such policy or policies shall contain an
Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils ("all risk"), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall not
obtain insurance for Tenant's fixtures or equipment or building improvements
installed by Tenant on the Property. Landlord shall also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Monthly Rent, plus estimated Real Estate Taxes and insurance
premiums. Tenant shall be liable for the payment of any deductible amount under
the foregoing policies, in an amount not to exceed Twenty-Five Thousand Dollars
($25,000). Tenant shall not do or permit anything to be done which invalidates
any such insurance policies.
11.03 At all times during the Lease Term and during the Inspection Period,
Tenant shall maintain the following:
A. A policy of standard fire and extended coverage insurance with "all
risk" coverage on all of Tenant's improvements and alterations in or about the
Property and on all personal property and equipment to the extent of at least
ninety percent (90%) of their full replacement value. The proceeds from this
policy shall be used by Tenant for the replacement of personal property and
equipment and the restoration of Tenant's improvements and/or alterations at
the Property.
B. A policy of Commercial General Liability insurance, occurrence form,
applying to the ownership, use, occupancy or maintenance of the Property, or
any areas adjacent thereto, and the business operated by Tenant, or any other
occupant, on the Property. The minimum limits of liability under such insurance
shall be a combined single limit with respect to each occurrence of not less
than Two Million Dollars ($2,000,000) to protect Tenant and Landlord (as
additional insured) against claims for bodily injury, personal injury and
property damage occurring during the policy term. Such insurance shall be
provided on a primary basis and shall not contribute with any insurance
maintained by Landlord which shall be considered excess insurance only. Such
insurance shall also include specific coverage or endorsements for (i) broad
form contractual liability insurance insuring all of Tenant's obligations under
this Lease (including, without limitation under Section 12 of this Lease), (ii)
Additional Insured-Management or Lessors of Premises endorsement, and (iii)
waiver of insurer's subrogation rights against Landlord. The amount and coverage
of such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease.
11.04 Tenant shall pay all premiums for the insurance policies described
in Section 11.02 and 11.03, whether obtained by Landlord or by Tenant, within
fifteen (15) days after Tenant's receipt of a copy of the premium statement or
other evidence of the amount due, and whether such statement is delivered by
Tenant's insurance carrier or by Landlord or Landlord's insurance carrier. If
the Lease Term expires before the expiration of an insurance policy maintained
by Landlord, Tenant shall be liable only for Tenant's prorated share of such
insurance premiums.
11.05 All insurance required to be maintained by Tenant under this Section
11 shall (a) name Landlord as an additional insured, (b) be issued by an
insurance company authorized to do business in the State of Nevada and which has
and maintains a rating of A/VII in the Best's Insurance Reports or the
equivalent, (c) be primary and noncontributing with any insurance carried by
Landlord, and (d) contain an endorsement requiring at least thirty (30) days
prior written notice of cancellation to Landlord before cancellation or change
in coverage, scope or limit of any policy. Tenant shall deliver a certificate of
insurance or a copy of the policy to Landlord within thirty (30) days of
execution of this Lease and will provide evidence of renewed insurance coverage
at each anniversary, and prior to the expiration of any current policies.
Tenant's failure to provide evidence of this coverage to Landlord may, in
Landlord's sole discretion, constitute a default under this Lease.
11.06 Landlord and Tenant each hereby release the other from any and all
liability or responsibility (to the other or anyone claiming through or under
them by way of subrogation or otherwise) and waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered by any
insurance policy in force (whether or not described in this Lease) at the time
of such loss or damage. The foregoing mutual release and waiver shall be in
addition to, and not in limitation or derogation of, any other waiver or release
contained in this Lease with respect to any loss of, or damage to property of
the parties hereto. In as much as the foregoing mutual release and waiver will
preclude the assignment of any such released or waived claims by way of
subrogation (or otherwise) to an insurance company (or any other person),
Landlord and Tenant shall immediately give each of their insurance companies
which has issued a policy or policies of fire and/or extended coverage insurance
written notice of the terms of the foregoing mutual release and waiver, and
shall have said insurance policy properly endorsed, if necessary, to prevent the
invalidation of said insurance coverages by reason of the aforesaid mutual
release and waiver.
11.07 Landlord may obtain, at its sole cost and expense, its own
comprehensive public liability insurance in an amount and with coverage
determined by Landlord insuring Landlord against liability arising out of
ownership, operation, use or occupancy of the Property. Any such policy
obtained by Landlord shall not be contributory and shall not provide primary
insurance.
12. INDEMNIFICATION AND WAIVER OF CLAIMS
12.01 Tenant waives all claims against Landlord for damage to any property
in or about the Property and for injury to any persons, including death
resulting therefrom, regardless of cause or time of occurrence. Tenant will
defend, indemnify and hold Landlord harmless from and against any and all
claims, actions, proceedings, expenses, damages and liabilities, including
attorney's fees, arising out of, connected with, or resulting from any use of
the Property by Tenant, its employees, agents, visitors or licensees,
including, without limitation, any failure of Tenant to comply fully with all
of the terms and conditions of this Lease except for any damage or injury which
is the direct result of intentional acts by Landlord, its employees, agents,
visitors or licensees.
13. REPAIRS
13.01 For the entire Lease Term commencing on the Commencement Date, at its
sole cost and expense, Tenant shall (i) keep and maintain the Property and every
part, component and element thereof in good and sanitary order, condition and
repair, and (ii) replace the same when reasonably necessary to keep the Property
in good and sanitary order, condition and repair, whether or not the need for
such repairs, maintenance or replacements occurs as a result of Tenant's use of
the Property, any prior use of the Property, the elements or the age of such
portion of the Property. Tenant's obligation hereunder shall include, without
limitation, maintaining, repairing, and/or replacing, as reasonably necessary to
keep the same in good and sanitary order, condition, and repair; (i) the
interior of the Improvements (including but not limited to all ceilings, walls,
and floor coverings), (ii) the foundation and all structural elements of the
improvements (including but not limited to all exterior and lead bearing walls),
(iii) the exterior of the Improvements (including but not limited to the roof
and all windows, skylights, doors, and plate glass), (iv) all mechanical,
electrical, plumbing, security, fire sprinkler, lawn sprinkler and HVAC systems
at the Property (whether inside
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or outside of the Improvements), and (v) all sidewalks, driveways, parking areas
and other paved areas of the Property and any retaining walls, fences, and signs
at the Property. Tenant shall also, at its sole cost and expense, provide all
desired janitorial services to the Property, furnish all expendables to the
Property (i.e. light bulbs, paper goods, soaps, etc.), and contract for its own
garbage removal services. The standard for comparison and need of maintenance,
repair, or replacement shall be the condition of the Property as of the
Commencement Date. All repairs shall be made by a licensed and bonded contractor
approved by Landlord. It is the intent of the parties that Landlord shall have
no obligation, in any manner whatsoever, to repair, maintain, or replace the
Property or any part thereof or of the Improvements thereon or the equipment
therein, whether structural or nonstructural, all of which obligations are
intended to be that of Tenant. Landlord shall have absolutely no obligations or
liabilities with respect to the repair, maintenance, or replacement of the
Property during the Lease Term. Notwithstanding anything set forth in the
preceding sentence to the contrary, Landlord hereby warrants that the HVAC
system at the Property shall be in good working condition for a period of one
hundred fifty (150) days following the Commencement Date, provided that Tenant
shall enter into a maintenance service contract pursuant to Section 13.04 below.
Except for routine repairs and services covered by said maintenance service
contract, Landlord shall be responsible, at its sole cost and expense, for any
necessary repairs to said HVAC system during said one hundred fifty (150) day
period required to maintain said system in good working condition. Tenant shall
deliver written notice to Landlord of the necessity of any such repairs and
Landlord shall have a reasonable time to complete the same following receipt of
said notice.
13.02 Tenant shall not make repairs to the Property at the cost of
Landlord whether by deductions of rent or otherwise, or vacate the Property or
terminate the Lease if repairs are not made. If during the Lease Term, any
alteration, addition or change to the Property is required by any law, statute,
ordinance, rule, regulation, or other legal authority (whether the same exists
as of the date of execution of this Lease or is hereafter enacted or
promulgated), Tenant shall promptly make such alteration, addition or change at
its sole cost and expense.
13.03 Landlord shall have the right, but not the obligation to make or
perform any maintenance, repairs, replacements, alterations, additions or
changes that Tenant is obligated to make under this Lease but fails to do so
within a reasonable period of time following written notice from Landlord and
Tenant shall reimburse Landlord for all costs and expenses incurred in
connection therewith by Landlord upon demand. If any maintenance, repairs,
replacements, alterations, additions or changes deemed necessary by Landlord or
any government authority are not made by Tenant within the prescribed time frame
as requested in writing, Tenant shall be in default under this Lease.
13.04 Tenant shall, at its own expense, within thirty (30) days of the
Commencement Date, contract with a vendor acceptable to Landlord for the
maintenance service of the HVAC system at the Property, and shall furnish to the
Landlord a copy of such contract upon Landlord's prior written request. If
Tenant fails to obtain and maintain such a maintenance service contract Landlord
shall have the right to obtain such a maintenance service contract at the
expense of Tenant.
14. AUCTIONS, SIGNS, AND LANDSCAPING
14.01 Tenant shall not conduct or permit to be conducted any sale by
auction on the Property. Landlord will have the right to control landscaping and
approve the placement, size, and quantity of signs. Tenant shall not make
alterations or additions to the landscaping and will not place any signs, which
are visible from the outside, on or about the Property, nor in any landscape
area, without the prior written consent of Landlord. Landlord shall have the
right in its sole discretion to withhold its consent. Any signs not in
conformity with this Lease may be removed by Landlord at Tenant's expense.
15. ENTRY BY LANDLORD
15.01 Tenant shall permit Landlord and Landlord's agents to enter the
Property at all reasonable times for the purpose of inspecting the same, or for
the purpose of maintaining the Project, or for the purpose of making repairs,
alterations or additions to any portion of the Project, including the erection
and maintenance of such scaffolding, canopies, fences and props as may be
required, or for the purpose of posting notices of nonresponsibility for
alterations, additions or repairs, or for the purpose of showing the Property to
prospective tenants during the last six months of the Lease Term, or placing
upon the Project any usual or ordinary "for sale" signs, without any rebate of
rents and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Property thereby occasioned. Tenant shall permit Landlord at
any time within sixty (60) days prior to the expiration of this Lease, to place
upon the Property any usual or ordinary "for lease" or "for sale" signs. Tenant
shall not install a new or additional lock or any bolt on any door of the
Property without the prior written consent of Landlord, which shall not be
unreasonably withheld. If Landlord gives its consent, such work shall be
undertaken by a locksmith approved by Landlord, at Tenant's sole cost. Landlord
shall have the right to charge Tenant for restoring any altered doors to their
condition prior to the installation of the new or additional locks.
16. ABANDONMENT
16.01 Tenant shall not vacate or abandon the Property, which shall be
deemed to occur any time during the Lease Term if Tenant does not conduct
business for a period of fifteen (15) consecutive days and/or leaves the
Property unoccupied for any period of time. If Tenant abandons, vacates or
surrenders the Property, or is dispossessed by process of law, or otherwise, any
personal property belonging to Tenant left in or about the Property shall, at
the option of Landlord be deemed abandoned and may be disposed of by Landlord in
the manner provided for by the lase of the State of Nevada.
17. DESTRUCTION
17.01 In the case of total destruction of the Property, or any portion
thereof substantially interfering with Tenant's use of the Property, whether by
fire or other casualty, not caused by the fault or negligence of Tenant, its
agents, employees, servants, contractors, subtenants, licensees, customers or
business invitees, this Lease shall terminate except as herein provided. If
Landlord notifies Tenant in writing within forty-five (45) days of such
destruction of Landlord's election to repair said damage, and if Landlord
proceeds to and does repair such damage with reasonable dispatch, this Lease
shall not terminate, but shall continue in full force and effect, except that
Tenant shall be entitled to a reduction in the Base Monthly Rent in an amount
equal to that proportion of the Base Monthly Rent which the number of square
feet of floor space in the unusable portion bears to the total number of square
feet of floor space in the Property. Said reduction shall be prorated so that
the rent shall only be reduced for those days any given area is actually
unusable. In determining what constitutes reasonable dispatch, consideration
shall be given to delays caused by labor disputes, civil commotion, war, warlike
operations, invasion, rebellion, hostilities, miliary 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
Landlord's control. If this Lease is terminated pursuant to this Section 17 and
if Tenant is not in default hereunder, rent shall be prorated as of the date of
termination, any security deposited with Landlord shall be returned to Tenant,
less any reasonable offsets and all rights and obligations hereunder shall cease
and terminate.
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17.02. Notwithstanding the foregoing provisions, in the event the
Property, or any portion thereof, shall be damaged by fire or other casualty due
to the fault or negligence of Tenant, its agents, employees, servants,
contractors, subtenants, licencees, customers or business invitees, then,
without prejudice to any other rights and remedies of Landlord, this Lessee
shall not terminate, the damage shall be repaired at Tenant's cost, and there
shall be no apportionment or abatement of any rent.
17.03. The provisions of this Section 17 with respect to Landlord
shall be limited to such repair as is necessary to restore the Property to its
condition as of the Commencement Date and when placed in such condition the
Property shall be deemed restored and rendered tenantable promptly following
which time Tenant, at Tenant's expense shall repair and replace any
improvements installed in the Property by Tenant after the Commencement Date
and Tenant shall also repair or replace its stock in trade, fixtures,
furniture, furnishings, floor coverings and equipment, and if Tenant has
closed, Tenant shall promptly reopen for business.
17.04. All insurance proceeds payable under any fire, and/or
rental insurance covering the Property (and except for any separate insurance
maintained by Tenant covering Tenant's personal property) shall be payable
solely to Landlord and Tenant shall have no interest therein. Tenant shall in
no case be entitled to compensation for damages on account of any annoyance or
inconvenience in making repairs under any provision of this Lessee. Except to
the extent provided for in this Section 17, 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 Property or any portion
thereof by any cause whatsoever.
18. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP
18.01 Tenant shall not, without Landlord's prior written consent,
assign, sell, mortgage, encumber, convey or otherwise transfer all or any part
of Tenant's leasehold estate, or permit the Property to be occupied by anyone
other than Tenant and Tenant's employees or sublet the premises or any portion
thereof (collectively called "Transfer"). Tenant shall supply Landlord with any
and all documents deemed necessary by Landlord to evaluate any proposed
Transfer at least sixty (60) days in advance of Tenant's proposed Transfer date.
18.02 Landlord need not consent to any Transfer for reasons
including, but not limited to, whether or not: (a) in the reasonable judgment
of Landlord the transferee is of a character or is engaged in a business which
is not in keeping with the standards of Landlord for the Project; (b) in the
reasonable judgment of Landlord any purpose for which the transferee intends to
use the Property is not in keeping with the standards of Landlord for the
Project; provided in no event may any purpose for which transferee intends to
use the Property be in violation of this Lease; (c) the portion of the Property
subject to the transfer is not regular in shape with appropriate means of
entering and exiting, including adherence to any local, county or other
governmental codes, or is not otherwise suitable for the normal purposes
associated with such a Transfer; or (d) Tenant is in default under this Lease or
any other Lease with Landlord.
18.03 Any consent to any Transfer which may be given by
Landlord, or the acceptance of any rent, charges or other consideration by
Landlord from Tenant or any third party, shall not constitute a waiver by
Landlord of the provisions of this Lease or a release of Tenant from the full
performance by it of the covenants stated herein; and any consent given by
Landlord to any Transfer shall not relieve Tenant (or any transferee of
Tenant) from the above requirements for obtaining the written consent of
Landlord to any subsequent Transfer.
18.04 If a default under this Lease should occur while the
Property or any part of the Property are assigned, sublet or otherwise
transferred, Landlord, in addition to any other remedies provided for within
this Lease or by law, may at its option collect directly from the transferee
all rent or other consideration becoming due to Tenant under the Transfer and
apply these monies against any sums due to Landlord by Tenant; and Tenant
authorizes and directs any transferee to make payments of rent or other
consideration direct to Landlord upon receipt of notice from Landlord. No
direct collection by Landlord from any transferee should be construed to
constitute a novation or a release of Tenant or any guarantor of Tenant from
the further performance of its obligations in connection with this Lease.
18.05 If Tenant is a corporation or a partnership, the issuances
of any additional stock or equity interest and/or the transfer, assignment or
hypothecation of any stock or interest in such corporation or partnership in
the aggregate in excess of fifty-one percent (51%) of such interests, as the
same may be constituted as of the date of this lease, whether directly or
indirectly, shall be deemed to be a Transfer within the meaning of this
Section 18, except that the sale or transfer of all or substantially all of the
assets or stock of Tenant, or the merger of Tenant with any other entity
(whether any such sale, transfer, or merger is accomplished in a single
transaction or in a series of related transactions) shall not be deemed to be a
Transfer if the transferee or successor entity of Tenant in such case shall
have substantially the same amount of total assets as Tenant prior to such
transaction or series of related transactions.
19. BREACH BY TENANT
19.01 Tenant shall be in breach of this Lease if at any time
during the term of this Lease (and regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other proceedings in law, in equity
or before any administrative tribunal which have or might have the effect of
preventing Tenant from complying with the terms of this Lease):
A. Tenant fails to make payment of any installment of Base Monthly
Rent, Additional Rent, or of any other sum herein specified to be paid by
Tenant, when due; or
B. Tenant fails to observe or perform any of its other covenants,
agreements or obligations hereunder, and such failure is not cured within ten
(10) days after Landlord's written notice to Tenant of such failure; provided,
however, that if the nature of Tenant's obligation is such that more than ten
(10) days are required for performance, then Tenant shall not be in breach if
Tenant commences performance within such 10 day period and thereafter
diligently prosecutes the same to completion; or
C. Tenant, Tenant's assignee, subtenant, guarantor, or occupant of
the Property becomes insolvent, makes a transfer in fraud of its creditors,
makes a transfer for the benefit of its creditors, is the subject of a
bankruptcy petition, is adjudged bankrupt or insolvent in proceedings filed
against Tenant, a receiver, trustee, or custodian is appointed for all or
substantially all of Tenant's assets, fails to pay its debts as they become due,
convenes a meeting of all or a portion of its creditors, or performs any acts of
bankruptcy or insolvency, including the selling of its assets to pay creditors;
or
D. Tenant has abandoned the Property as defined in Section 16 above.
E. Tenant fails to take possession of the Property within thirty
(30) days of receiving notice by Landlord that the Property is Ready for
Occupancy.
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20. REMEDIES OF LANDLORD
20.01 Nothing contained herein shall constitute a waiver of Landlord's
right to recover damages by reason of Landlord's efforts to mitigate the damage
to it by Tenant's default; nor shall anything in this Section adversely affect
Landlord's right, as in this Lease elsewhere provided, to indemnification
against liability for injury or damages to persons or property occurring prior
to a termination of this Lease.
20.02 All cure periods provided herein shall run concurrently with any
periods provided by law.
20.03 In the event of default, as designated herein above, in addition to
any other rights or remedies provided for herein or at law or in equity,
Landlord, at its sole option, shall have the following rights:
A. The right to declare the term of this Lease ended and reenter the
Property and take possession thereof, and to terminate all of the rights of
Tenant in and to the Property.
B. The right, without declaring the term of this Lease ended, to reenter
the Property and to occupy the same, or any portion thereof, for and on account
of the Tenant as hereinafter provided, and Tenant shall be liable for and pay to
Landlord on demand all such expenses as Landlord may have paid, assumed or
incurred in recovering possession of the Property, including costs, expenses,
attorney's fees and expenditures placing the same in good order, or preparing or
altering the same for reletting, and all other expenses, commissions and charges
paid by the Landlord in connection with reletting the Property. Any such
reletting may be for the remainder of the term of this Lease or for a longer or
shorter period. Such reletting shall be for such rent and on such other terms
and conditions as Landlord, in its sole discretion, deems appropriate. Landlord
may execute any lease made pursuant to the terms hereof either in the Landlord's
own name or in the name of Tenant or assume Tenant's interest in any existing
subleases to any tenant of the Property, as Landlord may see fit, and Tenant
shall have no right or authority whatsoever to collect any rent from such
tenants, subtenants, of the Property. In any case, and whether or not the
Property or any part thereof is relet, Tenant, until the end of the Lease term
shall be liable to Landlord for an amount equal to the amount due as Rent
hereunder, less net proceeds, if any of any reletting effected for the account
of Tenant. Landlord reserves the right to bring such actions for the recovery of
any deficits remaining unpaid by the Tenant to the Landlord hereunder as
Landlord may deem advisable from time to time without being obligated to await
the end of the term of the Lease. Commencement of maintenance of one or more
actions by the Landlord in this connection shall not bar the Landlord from
bringing any subsequent actions for further accruals. In no event shall Tenant
be entitled to any excess rent received by Landlord over and above that which
Tenant is obligated to pay hereunder; or
C. The right, even though it may have relet all or any portion of the
Property in accordance with the provisions of subsection B, above, to thereafter
at any time elect to terminate this Lease for such previous default on the part
of the Tenant, and to terminate all the rights of Tenant in and to the Property.
20.04 Pursuant to the right of re-entry provided above, Landlord may remove
all persons from the Property and may, but shall not be obligated to, remove all
property therefrom, and may, but shall not be obligated to, enforce any rights
Landlord may have against said property or store the same in any public or
private warehouse or elsewhere at the cost and for the account of Tenant or the
owner or owners thereof. Tenant agrees to hold Landlord free and harmless from
any liability whatsoever for the removal and/or storage of any such property,
whether of Tenant or any third party whomsoever. Such action by the Landlord
shall not be deemed to have terminated this Lease.
20.05 If Tenant breaches this Lease and abandons the Property before the
end of the term, or if its right of possession is terminated by Landlord because
of Tenant's breach of this Lease, then this Lease may be terminated by Landlord
at its option. On such Termination Landlord may recover from Tenant, in addition
to the remedies permitted at law:
A. The worth, at the time of the award, of the unpaid Base Monthly Rents
and Additional Rents which had been earned at the time this Lease is terminated.
B. The worth, at the time of the award, of the amount by which the unpaid
Base Monthly Rents and Additional Rents which would have been earned after the
date of termination of this Lease until the time of award exceeds the amount of
the loss of rents that Tenant proves could be reasonably avoided;
C. The worth, at the time of the award, of the amount by which the unpaid
Base Monthly Rents and Additional Rents for the balance of the Lease Term after
the time of award exceeds the amount of such rental loss for such period as the
Tenant proves could have been reasonably avoided; and
D. Any other amount, and court costs, necessary to compensate Landlord for
all detriment proximately caused by Tenant's breach of its obligations under
this Lease, or which in the ordinary course of events would be likely to result
therefrom. The detriment proximately caused by Tenant's breach shall include,
without limitation, (i) expenses for cleaning, repairing or restoring the
Property, (ii) expenses for altering, remodeling or otherwise improving the
Property for the purpose of reletting the Property, (iii) brokers' fees and
commissions, advertising costs and other expenses of reletting the Property,
(iv) costs of carrying the Property such as taxes, insurance premiums, utilities
and security precautions, (v) expenses of retaking possession of the Property,
(vi) attorney's fees and court costs, (vii) any unearned brokerage commissions
paid in connection with this Lease, (viii) reimbursement of any previously
waived Base Rent, Additional Rent, free rent or reduced rental rate, and (ix)
any concession made or paid by Landlord to the benefit of Tenant in
consideration of this Lease including, but not limited to, any moving
allowances, contributions or payments by Landlord for tenant improvements or
build-out allowances or assumptions by Landlord of any of the Tenant's previous
lease obligations.
20.06 In any action brought by the Landlord to enforce any of its rights
under or arising from this Lease, Landlord shall be entitled to receive its
costs and legal expenses including reasonable attorneys' fees, whether or not
such action is prosecuted to judgment.
20.07 The waiver by Landlord of any breach or default of Tenant hereunder
shall not be a waiver of any preceding or subsequent breach of the same or any
other term. Acceptance of any Rent payment shall not be construed to be a
waiver of the Landlord of any preceding breach of the Tenant.
20.08 All past due amounts owed by Tenant under the terms of this Lease
shall bear interest at twelve percent (12%) per annum unless otherwise stated.
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21. SURRENDER OF LEASE NOT MERGER
21.01 The voluntary or other surrender of this Lease by Tenant, or
mutual cancellation thereof, shall not work a merger and shall, at the option
of Landlord, terminate all or any existing transfers, or may, at the option of
Landlord, operate as an assignment to it of any or all of such transfers.
22. ATTORNEYS FEES/COLLECTION CHARGES
22.01 In the event of any legal action or proceeding between the
parties hereto, reasonable attorneys' fees and expenses of the prevailing party
in any such action or proceeding shall be added to the judgment therein. Should
Landlord be named as defendant in any suit brought against Tenant in connection
with or arising out of Tenant's occupancy hereunder, Tenant shall pay to
Landlord its costs and expenses incurred in such suit, including actual
attorney's fees.
22.02 If Landlord utilizes the services of any attorney at law for the
purpose of collecting any rent due and unpaid by Tenant after five (5) days
written notice to Tenant of such nonpayment of rent or in connection with any
other breach of this Lease by Tenant, Tenant agrees to pay Landlord actual
attorneys' fees as determined by Landlord for such services, regardless of the
fact that no legal action may be commenced or filed by Landlord.
23. CONDEMNATION
23.01 If twenty-five percent (25%) or more of the square footage of the
Improvements is taken for any public or quasi-public purpose by any lawful
government power or authority, by exercise of the right of appropriation,
reverse condemnation, condemnation or eminent domain, or sold to prevent such
taking, and if the remaining portion of the Improvements shall not be
reasonably adequate for the operation of Tenant's business after Landlord
completes such repairs or alterations as Landlord elects to make, either Tenant
or Landlord may at its option terminate this Lease by notifying the other party
hereto of such election in writing within thirty (30) days after such taking.
Tenant shall not because of such taking assert any claim against the Landlord
or the taking authority for any compensation because of such taking, and
Landlord shall be entitled to receive the entire amount of any award without
deduction for any estate of interest of Tenant. If less than twenty-five
percent (25%) of the Improvements is taken, Landlord at its option may
terminate this Lease. If Landlord does not so elect, Landlord shall promptly
proceed to restore the Improvements to substantially their same condition prior
to such partial taking, allowing for any reasonable effects of such taking, and
a proportionate allowance based on the loss of square footage shall be made to
Tenant for the rent corresponding to the time during which, and to the part of
the Improvements, which, Tenant is deprived on account of such taking and
restoration.
24. RULES AND REGULATIONS; CC&R's
24.01 Tenant shall faithfully observe and comply with any Rules and
Regulations promulgated by Landlord for the Project and the CC&R's. Landlord
reserves the right to modify and amend such Rules and Regulations as it deems
necessary and such CC&R's shall be subject to amendment pursuant to the terms
thereof. Landlord shall not be responsible to Tenant for the nonperformance by
any other tenant, owner or occupant of the Project of any of said Rules and
Regulations or any provisions of any CC&R's.
24.02 In the event that Tenant fails to cure any violations of such
Rules and Regulations or CC&R's following ten (10) days written notice by
Landlord, such failure to cure shall be deemed a material breach of this Lease
by Tenant.
25. ESTOPPEL CERTIFICATE
25.01 Tenant shall execute and deliver to landlord, within ten (10)
business days of Landlord's written demand, a statement in writing certifying
that this Lease is in full force and effect, and that the Base Monthly Rent and
Additional Rent payable hereunder is unmodified and in full force and effect
(or, if modified, stating the nature of such modification) and the date to
which rent and other charges are paid, if any, and acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder or specifying such defaults if they are claimed and such other
matters as Landlord may reasonably request. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Property. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that (1) this Lease is in full force and effect, without
modification except as may be represented by Landlord; (2) there are no uncured
defaults in Landlord's performance and (3) not more than one (1) month's rents
has been paid in advance.
26. SALE BY LANDLORD
26.01 In the event of a sale or conveyance by Landlord of the Property
the same shall operate to release Landlord from any liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. Notwithstanding the
foregoing, Landlord shall remain responsible for any claims of Tenant first
arising prior to the date of such sale or conveyance if such claims are (i)
identified by Tenant in the Estoppel Certificate prepared for Landlord's
successor in interest, and (ii) proved to be true by Tenant in a court of
competent jurisdiction. This Lease shall not be affected by any such sale, and
Tenant agrees to attorn to the purchaser or assignee. Landlord shall have the
right at any time to sell, transfer, encumber, hypothecate, or otherwise
transfer, whether voluntarily or involuntarily, all or any part of the Project
(including the Common Area) and the same shall not affect this Lease in any
manner.
27. NOTICES
27.01 All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, or designations under this
Lease by either party to the other shall be in writing and shall be considered
sufficiently given and served upon the other party if sent by certified or
registered mail, return receipt requested, postage prepaid, delivered
personally, or by a national overnight delivery service and addressed as
indicated in 1.03 and 1.04.
28. WAIVER
28.01 The failure of Landlord to insist in any one or more cases upon
the strict performance of any term, covenant or condition of the Lease shall
not be construed as a waiver of a subsequent breach of the same or any other
covenant, term or condition; nor shall any delay or omission by Landlord to
seek a remedy for any breach of this Lease be deemed a waiver by Landlord of
its remedies or rights with respect to such a breach.
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29. HOLDOVER
29.01 If Tenant remains in the Property after the Lease Term expires, with
the consent of Landlord, and provided that Tenant has given prior written notice
to Landlord, such continuance of possession by Tenant shall be deemed to be a
month-to-month tenancy at the sufferance of Landlord terminable on thirty (30)
days notice at any time by either party. All provisions of this Lease (except
the duration of the Lease Term) and all rent or other amounts payable by Tenant
under this Lease during the Lease Term shall apply to any such month-to-month
tenancy, except the Base Monthly Rent payable by Tenant during said
month-to-month tenancy shall be equal to the Base Monthly Rent payable for the
last full calendar month during the regular Lease Term prior to the commencement
of such month-to-month tenancy (the "Comparison Base Monthly Rent"), increased
as follows:
A. The term "CPI" as used herein shall mean the Consumer Price Index for
the average for "all items" shown on the U.S. City Average for Urban Wage
Earners and Clerical Workers (including Single Workers), all items, groups, and
special groups of items, as promulgated by the Bureau of Labor Statistics of the
U.S. Department of Labor, of such similar or successor index if said index is no
longer published. Each twelve (12) month period, or fraction thereof, commencing
upon the Commencement Date and ending upon the date of expiration of the Lease
Term shall be referred to herein as a "Lease Year." The cumulative percentage
change in the CPI from the Commencement Date until the date of expiration of
the Lease Term shall be referred to herein as the "CPI Increase" and shall be
equal to the cumulative total of the percentage changes in the CPI for each
Lease Year during the Lease Term.
B. The Base Monthly Rent payable each month for the first three (3) months
following the date of expiration of the Lease Term shall be equal to the
Comparison Base Monthly Rent increased by the CPI Increase, except that if the
percentage change in the CPI during any Lease Year exceeds four percent (4%),
then such percentage change for any such Lease Year shall be capped at four
percent (4%) for purposes of calculating the CPI Increase.
C. The Base Monthly Rent payable for each month thereafter, commencing on
the fourth (4th) month following the date of expiration of the Lease Term, shall
be equal to the Comparison Base Monthly Rent increased by the CPI Increase,
without any cap.
D. In no event shall the Base Monthly Rent decrease as a result of any
decreases in the CPI from the Commencement Date until the date of expiration of
the Lease Term.
23.02 If Tenant remains in the Property after the Lease Term expires
without the consent of Landlord, whether or not Tenant has given notice to
Landlord, the same shall be deemed to be a material breach and default by Tenant
under this Lease. Nothing contained in this Article 29 is intended to waive or
limit any rights or remedies of Landlord in such case, and Tenant acknowledges
that Landlord may suffer substantial damages if Landlord is unable to timely
deliver possession of the Property to a subsequent tenant as a result of such
holding over by Tenant. Nothing contained in this Section 29 is intended to nor
shall be deemed to create any right or option of Tenant to extend the term of
the Lease beyond the Lease Term specified in Section 1.05 above.
30. DEFAULT OF LANDLORD/LIMITATION OF LIABILITY
30.01 In the event of any default by Landlord hereunder, Tenant agrees to
give notice of such default, by registered mail, to Landlord at Landlord's
Notice Address as stated in 1.04 and to offer Landlord a reasonable opportunity
to cure the default. In the event of any actual or alleged failure, breach or
default hereunder by Landlord, Tenant's sole and exclusive remedy shall be
against Landlord's interest in the Property, and Landlord, its directors,
officers, employees and any partner of Landlord shall not be sued, be subject to
service or process, or have a judgement obtained against them in connection with
any alleged breach or default, and no writ of execution shall be levied against
the assets of any partner, shareholder or officer of Landlord. The covenants and
agreements are enforceable by Landlord and also by any partner, shareholder or
officer of Landlord.
31. SUBORDINATION
31.01 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any mortgagee with a lien on the Property or any ground lessor with
respect to the Property, this Lease shall be subject and subordinate at all
times to (a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Property, and (b) the lien of any mortgage
or deed of trust which may now exist or hereafter be executed in any amount for
which the Property, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. In the event that any
ground lease or underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to and
become the Tenant of the successor in interest to Landlord, at the option of
such successor in interest. Tenant shall execute and deliver to Landlord, upon
Landlord's request, such documents and instruments, in a form suitable for
recording, as shall reasonably be required to evidence such subordination of
this Lease with respect to any such ground lease or underlying leases or the
lien of any such mortgage or deed of trust. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any such
document in the name and on behalf of Tenant.
32. DEPOSIT AGREEMENT - This Section intentionally Deleted.
33. GOVERNING LAW
33.01 This Lease is governed by and construed in accordance with the laws
of the State of Nevada, and the exclusive venue of any suit arising under or in
connection with this Lease shall be in Washoe County, Nevada.
34. NEGOTIATED TERMS
34.01 This Lease is the result of the negotiations of the parties and has
been agreed to by both Landlord and Tenant after prolonged discussion.
35. SEVERABILITY
35.01 If any part of any provision of this Lease is determined by a court
of competent jurisdiction to be invalid or unenforceable in accordance with its
terms, the invalidity or unenforceability of such part of any such provision
shall not invalidate or render unenforceable the remaining parts of any such
provision or any other provisions of this Lease and all such other parts of such
provisions and all other provisions of this Lease shall remain in full force and
effect.
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36. BROKERS
36.01 Tenant warrants that it has had no dealings with any broker or agent
in connection with this Lease, except Daryl Drake, Hale Day Gallagher Company
and covenants to pay, hold harmless and indemnify Landlord from and against any
and all cost, expense or liability for any compensation, commissions and charges
claimed by any broker or agent, other than any identified above, with respect to
this Lease or its negotiation.
37. QUIET POSSESSION
37.01 Tenant, upon paying the rentals and other payments herein required
from Tenant, and upon Tenant's performance of all of the terms, covenants and
conditions of this Lease on its part to be kept and performed, may quietly have,
hold and enjoy the Property during the Lease Term without disturbance from
Landlord or from any other person claiming through Landlord.
38. MISCELLANEOUS PROVISIONS
38.01 Whenever the singular number is used in this Lease and when required
by the context, the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders, and the word "person" shall
include corporation, firm, partnerships, or association. If there is more than
one Tenant, the obligations imposed upon Tenant under this Lease shall be joint
and several.
38.02 The headings or titles to sections and paragraphs of this Lease are
not a part of this Lease and shall have no effect upon the connection or
interpretation of any part of this Lease.
38.03 This instrument contains all of the agreements and conditions made
between the parties to this Lease. Tenant acknowledges that neither Landlord
nor Landlord's agents have made any representation or warranty as to the
suitability of the Property to the conduct of Tenant's business. Any
agreements, warranties or representations not expressly contained herein shall
in now way bind either Landlord or Tenant, and Landlord and Tenant expressly
waive all claims for damages by reason of any statement, representation,
warranty, promise or agreement, if any, not contained in this Lease.
38.04 Time is of the essence of each term and provision of this Lease. All
reference in this Lease to "days" shall refer to calendar days. If any date for
the giving of notice set forth in this Lease falls on a Sunday or legal holiday
recognized by the United States government or the State of Nevada, then such
date for the giving of notice shall be extended until the next following
business day.
38.05 Except as otherwise expressly stated, each payment required to be
made by Tenant is in addition to and not in substitution for other payments to
be made by Tenant.
38.06 Subject to Article 18, the terms and provisions of this Lease are
binding upon and inure to the benefit of the heirs, executors, administrators,
successors, and assigns of Landlord and Tenant.
38.07 All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
38.08 In consideration of Landlord's covenants and agreements hereunder,
Tenant hereby covenants and agrees not to disclose any terms, covenants or
conditions of this Lease to any other party without the prior written consent
of Landlord.
38.09 Tenant shall provide to Landlord such financial information as
Landlord may reasonably request for the purpose of obtaining construction
and/or permanent financing for the Property or the Project.
38.10 If Tenant shall request Landlord's consent and Landlord shall fail or
refuse to give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent; Tenant's sole remedy shall be an action
for specific performance or injunction, and such remedy shall be available only
in those cases where Landlord has expressly agreed in writing not to
unreasonably withhold its consent or where as a matter of law Landlord may not
unreasonably withhold its consent.
38.11 Whenever a day is appointed herein on which, or a period of time is
appointed in which, either party 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 reasonably 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 materials, or to obtain fuel or energy,
weather or other acts of God, or their 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.
38.11 No slot machine or other gambling game or device shall be permitted
on the Property without the prior written consent of Landlord.
39. CHANGE ORDERS
39.01 If Tenant requests that Landlord perform any tenant improvements in
the Property and thereafter if Tenant approves any changes in the scope the work
being provided by or through Landlord Tenant agrees to pay all the direct and
indirect costs of additional work at the time it gives such approval. In the
event that the aggregate cost of additional work provided under this Lease is
ten thousand ($10,000.00) or more, or in excess of two months rent, whichever is
less, then Landlord may accept payment of one half of the cost of additional
work at the time of approval of said change order by the Tenant, and payment of
the balance to be paid at the time the additional work is substantially
completed.
40. OPTION TO PURCHASE PROPERTY
Landlord hereby grants to Tenant the right and option (the "Option") to
purchase the Property, together with all improvements, upon the following terms
and subject to the following conditions:
40.01 Tenant's rights to exercise the Option and Landlord's obligation to
sell the Property to Tenant at any time during the Lease Term shall be
expressly contingent upon Landlord's ability to consummate a tax-deferred
exchange of the Property, pursuant to Section 1031 of the Internal Revenue
Code, or any successor provisions of said Code, or to otherwise meet
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Landlord's tax-planning objectives, in Landlord's sole and absolute discretion
(collectively, "Landlord's Tax Plan"). If Landlord elects to accomplish
Landlord's Tax Plan (including without limitation such tax-deferred exchange),
Tenant shall cooperate with Landlord in connection therewith provided that
Tenant shall not be liable for any cash consideration or expense greater than
that which Tenant would have incurred had Tenant purchased the Property as a
direct sale from Landlord at the Purchase Price, as defined in Section 40.03
below.
40.02 If, at any time during the Lease Term, Tenant desires to exercise
the Option, Tenant shall deliver written notice of such desire (the "Option
Notice") to Landlord. Provided that Tenant is not then in default under any
terms or provisions of this Lease, Landlord shall reasonably endeavor to
accomplish Landlord's Tax Plan, including without limitation a sale, exchange,
or other transfer (collectively, "Sale" or "Sell") of the Property to Tenant,
but Landlord shall have absolutely no obligation to Sell the Property to Tenant
or any other third party unless the same shall accomplish Landlord's Tax Plan.
Within sixty (60) days of delivery of the Option Notice, landlord shall deliver
written notice to Tenant (the "Sale Notice") of Landlord's determination, in its
sole and absolute discretion, of whether or not Landlord's Tax Plan may not be
accomplished at such time by the Sale of the Property to Tenant. If Landlord
determines that Landlord's Tax Plan may not be accomplished at such time,
Landlord shall have no obligation to Sell the Property to Tenant, but Tenant
may deliver a new Option Notice to Landlord at any time thereafter.
40.03 If Landlord determines that Landlord's Tax Plan may be accomplished
at such time, the Sale Notice shall contain (i) the proposed date of the
consummation of the Sale of the Property to Tenant (the "Closing"), which
consummation shall be evidenced by the recordation of a grant deed conveying the
Property to Tenant, (ii) the Purchase Price of the Property, calculated by
Landlord as of the proposed Closing date, and (iii) an Agreement of Purchase and
Sale (the "Purchase Contract") setting forth such other terms and conditions for
the Sale, as proposed by Landlord. The purchase price of the Property (the
"Purchase Price") shall be an amount equal to Six Hundred Fifty thousand Dollars
($650,000) as of the Commencement Date, which amount shall be increased by One
Thousand Two Hundred Ninety-Eight and 70/100 dollars ($1,298.70) per month on
the last day of each calendar month of the Lease Term following the Commencement
Date. For example (for illustrative purposes only), if the Closing date is the
first day of the twenty-fifth (25th) month of the Lease Term, then the Purchase
Price shall equal $650,000 + ($1,288.70 x 24) = $650,000 + $31,168.80 =
$681,168.80. And, if the Closing date is the tenth day of the seventy-eighth
(78th) month of the Lease Term, then the Purchase Price shall equal $650,000 +
($1,298.70 x 77) = $650,000 + $99,999.50 = $749,999.50. The Purchase Price shall
be payable in all cash, or a cash equivalent acceptable to Landlord in its sole
discretion.
40.04 Within fifteen (15) days of delivery of any Sale Notice with such
proposed terms of Sale, Tenant shall notify Landlord in writing of either (i)
its acceptance of the terms and conditions set forth in the Sale Notice,
including without limitation those set forth in the Purchase Contract, (ii) its
election not to exercise the Option and therefore not to purchase the Property
at such time, or (iii) its acceptance of the terms and conditions set forth in
the Sale Notice, subject to Landlord's acceptance of such changes as proposed by
Tenant and set forth in said notice. If Tenant accepts the terms and conditions
set forth in the Sale Notice, then the parties shall proceed to consummate the
Sale pursuant to said terms and conditions. If Tenant accepts the terms and
conditions set forth in the Sale Notice, subject to proposed changes, then
Landlord and Tenant shall negotiate in good faith in an attempt to agree on all
such proposed changes, in their sale and absolute discretion. If such an
agreement is reached, then the parties shall proceed to consummate the Sale
pursuant to said agreed upon terms and conditions, as put forth in a written
document executed by both parties. If the parties are unable to agree on all
such proposed changes within sixty (60) days following delivery of the Sale
Notice, then the Option Notice shall lapse.
40.06 If the Option Notice shall lapse pursuant to Section 40.04, Tenant
shall have the right at any time thereafter to deliver another Option Notice to
Landlord. Notwithstanding the Option, Landlord shall have the right at any time
to Sell the Property to any third party, subject to Tenant's Right of First
Refusal set forth in Section 41 below. Notwithstanding anything set forth in
this Lease to the contrary, the Option is personal to Tenant and shall not be
assignable to or exercisable (or enforceable) by any consignee, subtenant,
transferee or other successor in interest of Tenant. Upon any Transfer described
in Section 18 above, the Option shall terminate and be null and void and of no
further force or affect.
41. RIGHT OF FIRST REFUSAL
41.01 Except during any period of time that Tenant has delivered an Option
Notice and the parties are proceeding under the terms and provisions of Section
40 above, Landlord shall have the right to Sell the Property to any third party,
subject to Tenant's prior right (the "Right of First Refusal") to purchase the
Property under this Section 41. If Landlord desires to Sell the Property to any
third party at any time during the Lease Term, Landlord shall first give written
notice thereof to Tenant (the "First Refusal Notice"). Said notice shall set
forth the exact and complete terms of the proposed Sale and shall have attached
thereto a photocopy of a bonafide offer (and counteroffer, if any) duly executed
by both Landlord and the prospective purchaser.
41.02 For a period of fifteen (15) days after delivery to Tenant of the
First Refusal Notice, Tenant shall have the right to give written notice to
Landlord of Tenant's election to purchase the Property on the same terms and
conditions as set forth therein, except that (i) the purchase price for the
Property shall be equal to the lesser of (a) the purchase price set forth in the
First Refusal Notice, or (b) the Purchase Price, as delivered in Section 40.03,
as of the scheduled closing date of the transaction described in the First
Refusal Notice, and (ii) if the proposed Sale includes the Sale of more real
property than just the Property, then Tenant shall only be obligated, upon
timely exercise of its Right of First Refusal, to purchase just the Property.
Notwithstanding anything set forth in the preceding sentence to the contrary,
if the proposed Sale includes the Sale of more real property than just the
Property, Tenant shall have the right to exercise the Right of First Refusal
with respect to the entire real property described in the First Refusal Notice,
and the purchase price of such entire real property shall, in such case, be
equal to the total purchase price set forth in the First Refusal Notice. If
Tenant does not timely deliver to Landlord said notice with said fifteen (15)
day period, then Tenant's Right of First Refusal and the Option, as set forth in
Section 40, shall lapse, terminate, be null and void and of no further force or
effect and Landlord shall have no obligation thereafter to Sell the Property to
Tenant under either this Section 41 or Section 40 above. In such case, Landlord
shall be free to Sell the Property on the same terms set forth in the First
Refusal Notice to the prospective purchaser described therein or to any other
third party. Upon the consummation of the Sale proposed therein, the Property
shall be transferred subject to this Lease, but expressly excluding any rights
of Tenant under Section 40 of this Section 41 of this Lease.
41.03 Notwithstanding anything set forth in section 41.02 to the contrary,
if Tenant's Right of First Refusal and the Option lapse and are terminated
pursuant to Section 41.02 but the Sale of the Property is not consummated on or
before the latter of (i) the closing date set forth in the First Refusal Notice,
or (ii) that date which is two hundred seventy (270) days after the date of
delivery of the First Refusal Notice, then Tenant's Right of First Refusal and
Option shall not lapse and shall apply to said transaction and any other
proposed Sale of the Property at all times thereafter. Notwithstanding anything
set forth in this Lease to the contrary, the Right of First Refusal is personal
to Tenant and shall not be assignable to or exercisable (or enforceable) by any
assignee, subtenant, transferee or other successor in interest of Tenant. Upon
any Transfer described in Section 18 above, the Right of First Refusal shall
terminate and be null and void and of no further force or affect.
14
15
42. EXHIBITS
42.01 The following Exhibits are attached to and made a part of this Lease
as if set forth herein in full:
Exhibit "A" Property Site Plan
Exhibit "A-1" Legal Description of Property
Exhibit "A-2" Project Site Plan
Exhibit "B" Commencement Date Certificate
Exhibit "C" Tenant Questionnaire
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year indicated by Landlord's execution date as written below.
Individuals signing on behalf of a Tenant warrant that they have the
authority to bind their principals. In the event that Tenant is a corporation,
Tenant shall deliver to Landlord, concurrently with the execution and deliver of
this Lease, a certificated copy of corporate resolutions adopted by Tenant
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease. THIS LEASE, WHETHER OR NOT EXECUTED
BY Tenant, IS SUBJECT TO ACCEPTANCE AND EXECUTION BY Landlord, ACTING ITSELF OR
BY ITS AGENT ACTING THROUGH ITS PRESIDENT, VICE PRESIDENT, OR ITS DIRECTOR OF
LEASING AND MARKETING.
"Landlord"
Dermody Properties,
a Nevada corporation
Date Executed: 7-21-93 /s/ MICHAEL C. DERMODY
---------- -----------------------------
Michael C. Dermody, President
"Tenant"
Pioneer Citizens Bank of Nevada,
a Nevada corporation
Date Executed: 7-13-93 By: /s/ MARK L. CAMPBELL
---------- -------------------------
Name: Mark L. Campbell
-----------------------
Its: Senior Vice President
-----------------------
15
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EXHIBIT "A-1"
All that certain parcel of land situate in the West half of Section 16, T.19 N.
R. 20 E., M.D.M., State of Nevada, City of Reno, being a portion of Parcel 4
of Parcel Map Number 1362, recorded in the Official Records of Washoe County,
Nevada, and being more particularly described as follows:
Commencing at the Southwesterly corner of said Parcel 4, said point being the
True Point of Beginning; thence South 64 degrees 49'04" East, 199.00 feet along
the Southerly line of said Parcel 4; thence North 25 degrees 10'56" East,
200.00 feet to a point on the Southerly right of way of Equity Avenue; thence
North 64 degrees 49'04" West, 176.50 feet along said Southerly right of way to a
point of curvature; thence 48.5 feet along the arc of a curve to the left,
having a central angle of 92 degrees 32'14" and a radius of 30.00 feet to a
point on the Easterly right of way of Corporate Boulevard; thence South 22
degrees 38'42" West, 168.84 feet along said right of way returning to the True
Point of Beginning.
-0-
Exhibit A-1 to lease dated June 1, 1993, by
and between Dermody Properties and Pioneer
Citizens Bank of Nevada.
/s/ MICHAEL C. DERMODY
--------------------------------------------
Dermody Properties
/s/ MARK L. CAMPBELL
--------------------------------------------
Pioneer Citizens Bank of Nevada
17
EXHIBIT "B"
COMMENCEMENT DATE CERTIFICATE
THIS COMMENCEMENT DATE CERTIFICATE is made as of the __ day of
_________________, 199_, by and between DERMODY PROPERTIES (hereinafter called
"Landlord") and PIONEER CITIZENS BANK OF NEVADA (hereinafter called "Tenant").
RECITALS:
A. Landlord and Tenant have entered into a Lease Agreement (the "Lease")
dated as of June 1, 1993, whereby Landlord leased to Tenant, and Tenant leased
from Landlord, certain real property located in the County of Washoe, State of
Nevada, which real property is commonly known as 5400 Equity Avenue, Reno,
Nevada.
B. In accordance with Section ___ of the Lease, Landlord and Tenant
desire to set forth herein the date that the Term of the Lease had commenced
(the "Commencement Date"), and the date of expiration of the initial Term of
the Lease.
NOW THEREFORE, Landlord and Tenant certify and agree as follows:
1. The Commencement Date of the Lease defined in Section ___ of the
Lease is hereby established as _____________, 199_.
2. The Initial Term of this Lease shall be years ending upon
______________.
3. The rental adjustment date(s) shall be ______________,
_________________, _____________, and ____________________.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Commencement
Date Certificate to be executed as of the day and year first above written.
LANDLORD: TENANT:
DEMODY PROPERTIES PIONEER CITIZENS BANK OF NEVADA
by: Michael C. Dermody By:
- --------------------------- -----------------------------------
Signature Signature
- --------------------------- -----------------------------------
Title Title
Exhibit B to lease dated June 1,
1993, by and between Dermody
Properties and Pioneer Citizens
Bank of Nevada.
/s/ MICHAEL C. DERMODY
-----------------------------------
Dermody Properties
/s/ MARK L. CAMPBELL
-----------------------------------
Pioneer Citizens Bank of Nevada
18
EXHIBIT C
(Tenant Questionnaire)
TENANT QUESTIONNAIRE REGARDING USE OF
PROPERTY AT 5400 EQUITY AVENUE, RENO, NEVADA
Yes No
1. Will any manufacturing process be done on the subject
premises? [ ] [X]
2. Do you or your company intend to use any internal
combustion engines greater than 50 hp at the subject
premises? [ ] [X]
3. Do you or your company intend to use processes that
involve mixing, blending, or processing any solvents,
adhesives, paints or coatings? [ ] [X]
4. Will your operation at the premises create any dusts or smoke? [ ] [X]
5. At the subject premises, will you or your company refine any
liquids or solids? Reclaim any metals? [ ] [X]
6. Will your or your company plate or coat anything at the
subject premises? [ ] [X]
7. Will any process be used on the Property which requires
equipment for the heating of materials (i.e., boilers,
furnaces, broilers, baking ovens, etc.)? [ ] [X]
8. Will you handle or store solvents or motor fuels on the
premises? [ ] [X]
9. Will you use or store any acids at the premises? [ ] [X]
10. Will you or your company use any chemical processes at the
premises? [ ] [X]
11. Will you or your company use any solvents for clean up? [ ] [X]
12. Is your business a dry cleaner, restaurant, body shop,
gasoline station, printer or part coater? [ ] [X]
13. Will you or your company use any process which requires lead
or melting or soldering with lead or lead alloys? [ ] [X]
14. Do you or your company have a Hazardous Materials Management
plan? [ ] [X]
If you have marked "Yes" to any of the questions as to processes, chemicals,
including types and quantities, to be used on the Property, please give a more
detailed explanation below and on a second page if necessary. __________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Name of person completing form: MARK L. CAMPBELL /s/ MARK L. CAMPBELL
Company name and address: PIONEER CITIZENS BANK OF NEVADA
10 STATE ST. RENO, NV. 89501
14
19
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease ("Assignment") is made as of the
____ day of ________, 1998, by and between PIONEER CITIZENS BANK OF NEVADA, a
Nevada corporation ("Assignor") and COMPUTING RESOURCES, INC., a Nevada
corporation ("Assignee").
RECITALS
This Assignment is made with regard to the following facts:
A. Assignor is the tenant under that certain Standard Industrial Lease
dated June 1, 1996 (the "Lease") between DERMODY PROPERTIES, a Nevada
corporation ("Landlord"), as landlord, and Assignor, as tenant, for
approximately 0.928 acres of land and a single story concrete tilt-up building
containing approximately 8,560 square feet of space (the "Premises"), located
at 5400 Equity Avenue, Reno, Washoe County, Nevada. A copy of the Lease is
attached hereto as EXHIBIT "A".
B. Assignor desires to assign its right, title, and interest in, to,
and under the Lease and the Premises to Assignee, and Assignee desires to
accept that assignment on, and subject to, all of the terms and conditions in
this Assignment.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Assignment, and for valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, the parties agree as follows:
1. Assignment and Assumption. Assignor assigns to Assignee all of
its right, title and interest in, to, and under the Lease and the Premises.
Assignee accepts this assignment, assumes all of Assignor's obligations under
the Lease, and agrees to be bound by all of the provisions of the Lease and to
perform all of the obligations of the tenant under the Lease as a direct
obligation to Landlord from and after the effective date of this Assignment.
Assignee shall make all payments required under the Lease directly to Landlord.
This assignment and assumption is made on, and is subject to, all of the terms,
conditions, and covenants of this Assignment.
2. Condition of Premises. The Premises will be delivered by
Assignor to Assignee in "as is" condition.
1
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3. Indemnification of Assignor. Assignee shall protect, defend,
indemnify and hold Assignor harmless from all costs, expenses, claims, causes of
action and damages (including, without limitation, reasonable attorney fees and
costs), which arise in connection with the Lease (as the same may be amended
from time to time after the date of this Assignment) and the Premises from and
after the date of this Assignment.
4. General Provisions.
4.1. Further Assurances. Each party to this Assignment will, at
its own cost and expense, execute and deliver such deliver such further
documents and instruments and will take such other actions as may be reasonably
required or appropriate to evidence or carry out the intent and purposes of
this Assignment.
4.2. Enforcement by Landlord. Landlord is a third party
beneficiary of this Assignment. As such, the provisions of this Assignment
inure to the benefit of, and are enforceable by, Landlord.
4.3. Entire Assignment; Waiver. This Assignment constitutes the
final, complete and exclusive statement between the parties to this Assignment
pertaining to the terms of Assignor's assignment of the Lease and Premises to
Assignee, supersedes all prior and contemporaneous understandings or agreements
of the parties, and is binding on and inures to the benefit of their respective
heirs, representatives, successors and assigns. Neither party has been induced
to enter into this Assignment by, nor is either party relying on, any
representation or warranty outside those expressly set forth in this
Assignment. Any agreement made after the date of this Assignment is ineffective
to modify, waive, or terminate this Assignment, in whole or in part, unless
that agreement is in writing, is signed by the parties to this Assignment, and
specifically states that agreement modifies this Assignment.
4.4. Attorneys' Fees and Costs. In the event that a dispute
arises hereunder, the prevailing party in such dispute shall be entitled to its
reasonable attorneys' fees and costs incurred in connection therewith.
4.5. Governing Law. This Assignment will be governed by, and
construed in accordance with, Nevada law.
4.6. Captions. Captions to the sections in this Assignment are
included for convenience only and do not modify any of the terms of this
Assignment.
4.7. Severability. If any term or provision of this Assignment
is, to any extent, held to be invalid or unenforceable, the remainder of this
Assignment will not be affected, and each term or provision of this Assignment
will be valid and be enforced to the fullest extent permitted by law. If the
application of any term or provision of this Assignment to any person
2
21
or circumstances is held to be invalid or unenforceable, the application of
that term or provision to persons or circumstances other than those as to which
it is held valid or unenforceable, will not be affected, and each term or
provision of this Assignment will be valid and be enforced to the fullest
extent permitted by law.
4.8. Consent of Landlord. The Landlord's written consent to this
Assignment in accordance with the terms of Section 18 of the Lease is a
condition precedent to the validity and effectiveness of this Assignment. If
the Landlord's consent is not obtained in space provided below, then this
Assignment shall automatically terminate and the parties shall be released from
any further obligations hereunder.
4.9. Capitalized Terms. All terms spelled with initial capital
letters in this Assignment that are not expressly defined in this Assignment
will have the respective meanings given such terms in the Lease.
4.10. Brokers. The parties to this Assignment represent and warrant
to each other than neither party dealt with any broker or finder in connection
with the consummation of this Assignment and each party agrees to protect,
defend, indemnify, and hold the other party harmless from and against any and
all claims or liabilities for brokerage commissions or finder's fees arising
out of that party's acts in connection with this Assignment. The provisions of
this Section 4.10 shall survive the expiration or earlier termination of this
Assignment and the Lease.
4.11. Notices. Any notice that may or must be given by either party
under this Assignment will be delivered (i) personally, (ii) by certified mail,
return receipt requested, or (iii) by a nationally recognized overnight courier,
addressed to the party to whom it is intended. Any notice given to Assignor or
Assignee shall be sent to the respective address set forth on the signature
page below, or to such other address as that party may designate for service of
notice by a notice given in accordance with the provisions of this Section
4.11. A notice sent pursuant to the terms of this Section 4.11 shall be deemed
delivered (a) when delivery is made, if delivered personally, (b) three (3)
business days after deposit into the United States mail, or (c) the day
following deposit with a nationally recognized overnight courier.
4.12. Word Usage. Unless the context clearly requires otherwise, (a)
the plural and singular numbers will each be deemed to include the other; (b)
the masculine, feminine, and neuter genders will each be deemed to include the
others; (c) "shall", "will", "must", "agrees", and "covenants" are each
mandatory; (d) "may" is permissive; (e) "or" is not exclusive; and (f)
"includes" and "including" are not limiting.
4.13. COMMENCEMENT OF OBLIGATIONS. NOTWITHSTANDING THE DATE ON WHICH
THIS ASSIGNMENT MAY BE EXECUTED, ASSIGNEE'S OBLIGATIONS HEREUNDER SHALL NOT
COMMENCE UNTIL POSSESSION OF THE PREMISES IS DELIVERED BY ASSIGNOR TO ASSIGNEE.
THE PARTIES EXPECT POSSESSION TO BE DELIVERED ON JUNE 10, 1998, BUT THE ACTUAL
POSSESSION DATE SHALL CONTROL.
3
22
4
23
Assignor and Assignee have executed this Assignment as of the above date.
ASSIGNOR:
PIONEER CITIZENS BANK OF NEVADA,
A NEVADA CORPORATION,
BY: [SIGNATURE ILLEGIBLE]
------------------------------------
ITS: C.F.O.
--------------------------------
Address of Assignor: 1 West Liberty
Reno, NV. 89502
ASSIGNEE:
COMPUTING RESOURCES, INC.,
A NEVADA CORPORATION,
BY:
------------------------------------
RANSON W. WEBSTER
ITS: SECRETARY/TREASURER
Address of Assignee:
----------------------------
----------------------------
----------------------------
4
24
Assignor and Assignee have executed this Assignment as of the above date.
ASSIGNOR:
PIONEER CITIZENS BANK OF NEVADA,
A NEVADA CORPORATION,
BY:
------------------------------------
ITS:
--------------------------------
Address of Assignor:
----------------------------
----------------------------
----------------------------
ASSIGNEE:
COMPUTING RESOURCES, INC.,
A NEVADA CORPORATION,
BY: /s/ RANSON W. WEBSTER
------------------------------------
RANSON W. WEBSTER
ITS: SECRETARY/TREASURER
Address of Assignee:
----------------------------
----------------------------
----------------------------
5
25
LANDLORD'S CONSENT
Pursuant to Section 18 of the Lease, the undersigned Landlord hereby
acknowledges and consents to the terms of the foregoing Assignment and
Assumption of Lease.
Dated: This ____ day of ________________, 1998.
DERMODY PROPERTIES,
A NEVADA CORPORATION,
BY:
----------------------------------
ITS:
---------------------------
6
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LANDLORD'S CONSENT
Pursuant to Section 18 of the Lease, the undersigned Landlord hereby
acknowledges and consents to the terms of the foregoing Assignment and
Assumption of Lease.
Dated: This ____ day of ________________, 1998.
DERMODY PROPERTIES,
A NEVADA CORPORATION,
BY: /s/ MICHAEL D. DERMODY
----------------------------------
ITS: President
---------------------------
5
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ADDENDUM TO ASSIGNMENT AND ASSUMPTION OF LEASE
This Addendum to Assignment and Assumption of Lease ("Addendum") is made
effective as of the 1st day of July, 1999, regardless of the date of signature
of the parties hereto, by and between Pioneer Citizens Bank of Nevada, a Nevada
corporation ("Assignor"), Computing Resources, Inc., a Nevada corporation
("Assignee"), and DP Operating Partnership, L.P., a Delaware limited
partnership, successor in interest to Dermody Properties, a Nevada corporation
("Landlord"). This Addendum is made with regard to the following facts:
A. Assignor was the tenant under that certain standard industrial lease
dated June 1, 1993 (the "Lease"), between Landlord as landlord and Assignor as
tenant of the premises commonly known as 5400 Equity Avenue, Reno, Washoe
County, Nevada.
B. Assignor heretofore, with the written consent of Landlord, assigned
all of Assignor's right, title and interest in to and under the Lease to
Assignee pursuant to a written Assignment and Assumption of Lease which
provides, among other things, that Assignee may not modify or amend the Lease
after the date of the assignment without first obtaining Assignor's written
consent.
C. The Lease provides in paragraph 1.05 that the Tenant's permitted use
is "Bank Office Operations", but Assignee is not a bank and the parties desire
to amend the Lease so that Assignee's business is a permitted use thereunder.
NOW THEREFORE, in consideration of the mutual covenants contained in the
aforesaid Assignment and Assumption of Lease and in this Addendum thereto, the
parties agree as follows:
1. So long as Assignee occupies the premises under the Lease assigned to
Assignee, paragraph 1.05 of the Lease is modified to read as follows:
"1.05. Tenant's Permitted Use: Payroll, tax and related business services."
28
2. Except as modified in paragraph 1 above, the Lease and the
Assignment and Assumption of Lease and the Landlord's consent thereto shall
remain in full force and effect.
"ASSIGNOR"
PIONEER CITIZENS BANK OF NEVADA,
a Nevada corporation
By: CHRIS SWENSEID
-----------------------------------
(Signature)
Its: SVP/CONTROLLER
-----------------------------------
(Title)
"ASSIGNEE"
COMPUTING RESOURCES, INC.,
a Nevada corporation
By: RANSON WEBSTER
-----------------------------------
(Signature)
Its: CHAIRMAN & C.E.O.
-----------------------------------
(Title)
"LANDLORD"
DP OPERATING PARTNERSHIP, L.P. a
Delaware limited partnership, by:
DERMODY PROPERTIES, a Nevada
corporation
By: MICHAEL C. DERMODY
-----------------------------------
(Signature)
Its: PRESIDENT
-----------------------------------
(Title)