OFFICE LEASE between Sansone Pecos I-215 II, LLC, a Nevada limited-liability company and BOOMj.com, Inc. a Nevada corporation Dated: December 28, 2007
between
▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada limited-liability company
and
▇▇▇▇▇.▇▇▇,
Inc.
a
Nevada corporation
Dated:
December 28, 2007
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INITIAL
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LANDLORD
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TENANT
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TABLE
OF CONTENTS
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PAGE
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1.
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LEASE
OF PREMISES
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3
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1.1
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LEASE
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3
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1.2
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MODIFICATION
OF PREMISES
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4
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2.
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PURPOSE
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4
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2.1
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USE
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4
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2.2
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LIMITATION
ON USES
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4
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2.3
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COMPLIANCE
WITH PERMITS
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4
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3.
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TERM
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5
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3.1
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EFFECTIVE
DATE
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5
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3.2
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CONSTRUCTION
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5
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3.3
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ACCEPTANCE
OF PREMISES
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6
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4.
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BASIC
RENT
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7
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4.1
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BASIC
RENT & RENT COMMENCEMENT DATE
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7
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4.2
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BASIC
RENT INCREASES
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7
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4.3
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PARTIAL
MONTHS
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7
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4.4
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NO
OFFSET
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7
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4.5
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SECURITY
DEPOSIT
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8
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5.
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ADDITIONAL
RENT
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9
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5.1
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PAYMENT
OF OPERATING EXPENSES AND REAL ESTATE TAXES
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9
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5.2
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OPERATING
EXPENSES
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9
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5.3
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ADDITIONAL
RENT RECONCILIATION
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10
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6.
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COMMON
AREAS; PARKING FACILITIES; SIGNAGE
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11
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6.1
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UNCOVERED
PARKING
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11
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6.2
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COVERED
PARKING
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11
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6.3
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COMMON
AREAS
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11
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6.4
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MAINTENANCE
OF PARKING FACILITIES AND COMMON AREA
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11
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6.5
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SIGNAGE
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11
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7.
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UTILITIES
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12
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7.1
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UTILITY
CHARGES
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12
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8.
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ALTERATIONS
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12
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8.1
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RESTRICTION
ON ALTERATIONS
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12
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8.2
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REMOVAL
AND SURRENDER OF FIXTURES AND TENANT ALTERATIONS
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13
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9.
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MAINTENANCE
AND REPAIRS
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13
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9.1
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TENANT’S
OBLIGATIONS
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13
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9.2
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LANDLORD’S
OBLIGATIONS
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14
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INITIAL
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LANDLORD
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TENANT
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10.
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TAX
ON TENANT’S PERSONAL PROPERTY
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14
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10.1
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PERSONAL
PROPERTY TAXES
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14
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10.2
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EXCLUSION
FROM REAL ESTATE TAXES
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14
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11.
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INSURANCE;
WAIVER; SUBROGATION
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14
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11.1
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LIABILITY
INSURANCE
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14
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11.2
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PROPERTY
INSURANCE
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15
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11.3
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POLICY
REQUIREMENTS
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15
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11.4
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WAIVER
OF SUBROGATION
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16
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11.5
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BUSINESS
OVERHEAD INSURANCE
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12.
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FIRE
OR CASUALTY
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16
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12.1
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REPAIR
ESTIMATE
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16
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12.2
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TENANT’S
RIGHTS
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16
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12.3
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LANDLORD’S
RIGHTS
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16
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12.4
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REPAIR
OBLIGATION
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17
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12.5
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WAIVER
OF STATUTORY PROVISIONS
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17
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12.6
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ABATEMENT
OF RENT
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17
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13.
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EMINENT
DOMAIN
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17
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13.1
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TOTAL
TAKING
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17
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13.2
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PARTIAL
TAKING - TENANT’S RIGHTS
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17
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13.3
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PARTIAL
TAKING - LANDLORD’S RIGHTS
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18
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13.4
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AWARD
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18
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14.
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ASSIGNMENT
AND SUBLETTING
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18
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14.1
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GENERAL
PROHIBITION
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18
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14.2
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NOTICE
OF INTENT TO ASSIGN OR SUBLET
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18
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14.3
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NO
RELEASE OF TENANT’S OBLIGATIONS
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18
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14.4
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TRANSFER
IS ASSIGNMENT
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19
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14.5
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ASSUMPTION
OF OBLIGATIONS
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19
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15.
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LANDLORD’S
RESERVED RIGHTS
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19
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15.1
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RIGHT
OF ENTRY
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19
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15.2
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BUILDING
AND COMMON AREAS
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20
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15.3
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NAME
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20
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15.4
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DEVELOPMENT
OF OTHER IMPROVEMENTS
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20
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15.5
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INCORPORATION
OF OTHER IMPROVEMENTS
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20
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16.
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INDEMNIFICATION
AND LIMITATION ON LIABILITY
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21
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16.1
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INDEMNIFICATION
OBLIGATIONS
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21
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16.2
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LIMITATION
ON LANDLORD’S LIABILITY
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21
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17.
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SALE
BY LANDLORD
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21
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18.
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SUBORDINATION
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22
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18.1
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SUBORDINATION
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22
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18.2
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ATTORNMENT
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22
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18.3
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NOTICE
FROM TENANT
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22
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INITIAL
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LANDLORD
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TENANT
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19.
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ESTOPPEL
CERTIFICATES
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22
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20.
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SURRENDER
OF PREMISES AND REMOVAL OF PROPERTY
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23
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20.1
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NO
MERGER
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23
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20.2
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SURRENDER
OF PREMISES
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23
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20.3
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DISPOSAL
OF PROPERTY
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23
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20.4
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NOTICE
OF EXPIRATION OF TERM
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24
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21.
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HOLDING
OVER
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24
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22.
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DEFAULTS
AND REMEDIES
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24
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22.1
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DEFAULTS
BY TENANT
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24
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22.2
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LANDLORD’S
REMEDIES
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25
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22.3
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RE-ENTRY
NOT TERMINATION
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27
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22.4
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DEFINITION
OF TENANT
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27
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23.
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BANKRUPTCY
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27
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24.
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INTEREST
ON TENANT’S OBLIGATIONS; LATE CHARGES
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28
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24.1
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INTEREST
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28
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24.2
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LATE
CHARGE
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28
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25.
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QUIET
ENJOYMENT
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28
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26.
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EXAMINATION
OF LEASE
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28
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27.
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BROKERS
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28
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28.
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RULES
AND REGULATIONS
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28
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29.
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INTENTIONALLY
OMITTED
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29
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30.
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RELOCATION
OF PREMISES
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29
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31.
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GENERAL
PROVISIONS
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29
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31.1
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NO
WAIVER
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29
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31.2
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LANDLORD’S
RIGHT TO PERFORM
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30
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31.3
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TERMS;
HEADINGS
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30
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31.4
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ENTIRE
AGREEMENT
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30
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31.5
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SUCCESSORS
AND ASSIGNS
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30
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31.6
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NOTICES
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30
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31.7
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SEVERABILITY
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31
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31.8
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TIME
OF ESSENCE
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31
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31.9
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GOVERNING
LAW
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31
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31.10
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ATTORNEYS’
FEES
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31
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31.11
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FORCE
MAJEURE
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31
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32.
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GUARANTY
OF LEASE
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31
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33.
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CONFIDENTIALITY
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32
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INITIAL
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/
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LANDLORD
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TENANT
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iii
LEASE
TERMS SHEET
This
Lease Terms Sheet is hereby incorporated into, and made a part of, the Lease.
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Date:
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December
28, 2007
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Landlord:
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▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada limited-liability company
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Tenant:
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▇▇▇▇▇.▇▇▇,
Inc. a
Nevada corporation
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Contact
Name: ▇▇▇▇ ▇▇▇▇▇▇ (CFO) / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (CEO) /
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Address:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
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Phone:
▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ / ▇▇▇▇▇▇ cell ▇▇▇-▇▇▇-▇▇▇▇,
▇▇▇-▇▇▇-▇▇▇▇
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Ben
▇▇▇-▇▇▇-▇▇▇▇, cell ▇▇▇-▇▇▇▇ / ▇▇▇▇▇ ▇▇▇-▇▇▇▇, cell
▇▇▇-▇▇▇▇
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Fax:
▇▇▇-▇▇▇-▇▇▇▇
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***Send
copies of all notices to Tenant’s attorney:
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▇▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Premises:
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▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
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Usable
Space,
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Actual
Space,
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and
Rentable Space:
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(a) |
Useable
Space is estimated to be +/- Four Thousand One Hundred Forty
Four (4,144)
square feet.
Actual Space is estimated to be +/-Four Thousand Five Hundred
Sixty
(4,560) square feet.
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(b)
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The
Monthly Rent will be based on the Rentable Space, which is Four
Thousand
Five Hundred Sixty (4,560) square feet. Tenant hereby acknowledges
and
agrees that the Rentable Space is calculated by multiplying the
Actual
Space by a load factor of Zero Percent (0%) (which equal Zero
(0) square
feet) and adding the product thereof to the Actual Space. Tenant
acknowledges and agrees that such load factor is applied to the
Actual
Space to
reflect Tenant’s share of the Common Areas (as defined in this Lease)
inside the Building, which include, without limitation, lobbies,
corridors, mechanical, utility, janitorial, boiler and service
rooms and
closets, restrooms, elevators and elevator shafts, and other
public,
common, and service areas of the Building.
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(c)
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Notwithstanding
the above, the actual amount of square feet of “Actual Space” and “Useable
Space” shall be determined and/or adjusted based on the final
determination thereof by Landlord’s Architect, as provided in Section 1.1
of this Lease.
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(d)
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The
final determination of Actual Space and Useable Space by Landlord’s
Architect as provided in Section 1.1 shall bind the parties hereto
for all
purposes hereof. In addition, Tenant hereby acknowledges that
the
determination to be made by Landlord’s Architect will be based on
measurements, which, for exterior walls, begin at the outer most
concrete
foundation or the outermost architectural engagement (i.e.,
the drip line), which ever is further; and for interior demising
wall(s),
begin at the center thereof, all as determined by Landlord’s Architect.
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Tenant’s
Initials _____________
Landlord’s
Initials____________
1
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Term:
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Forty
Eight (48) full calendar months following the Rent Commencement
Date.
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Rent
Commencement
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Date:
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January
2, 2008
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Basic
Rent:
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$1.95
per each square foot (or Approx. Eight Thousand Eight Hundred
Ninety Two
Dollars ($8,892.00) per month) of Rentable Space. For all other
calculations including Operating Expenses, such amounts shall
be based
upon the Rentable Space. Basic Rent shall be increased as set
forth in
Section 4.2. This is a triple net lease and Tenant shall be responsible
for its share of all Expenses associated with the Project.
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Operating
Expenses:
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Operating
Expenses are estimated to be approximately Thirty One Cents ($0.31)
per
square foot of Rentable Space per month, which is (Three
and 72/100 Dollars ($3.72)
per square foot of Rentable Space per annum).
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Deposit:
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Fifteen
Thousand Four Hundred Fifty Eight and 40/100 Dollars ($15,458.40),
which
is due simultaneously with Tenant’s execution and delivery of this Lease
to Landlord.
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Cost
of Living
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Adjustment:
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Basic
Rent Increases shall be 4%
per year, as set forth in Section 4.2
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Guaranty:
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The
obligations of Tenant under this Lease shall be guaranteed by
▇▇▇▇▇.▇▇▇,
Inc.
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Tenant
Improvement
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Allowance:
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Shall
be Zero Dollars ($0.00) per square foot of Useable Space as set
forth in
Section 3.2.
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Parking:
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Nineteen
(19) spaces collectively. Tenant shall have the non-exclusive
right to use
Nineteen (19) of the Project’s uncovered spaces and the exclusive use of
zero (0) covered parking space if available at the charges set
forth in
Section 6.2.
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Landlord’s
Address:
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▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇▇
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▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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Tenant’s
Address:
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▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
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INITIAL
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LANDLORD
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TENANT
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2
THIS
OFFICE LEASE (this “Lease”) is made and entered into as of this day of December
28, 2007, by and between ▇▇▇▇▇▇▇ Pecos I-215 II, LLC, a Nevada limited-liability
company (the “Landlord”), and ▇▇▇▇▇.▇▇▇, Inc., a Nevada corporation (the
“Tenant”).
1. Lease
of Premises.
1.1
Lease.
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
those
certain premises (the “Premises”) shown on the drawings attached hereto as
Exhibit
A,
which
are commonly described as ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇,
consisting of approximately Four Thousand One Hundred Forty Four (4,144)
square
feet of Usable Space (“Estimated Usable Space”) and approximately Four Thousand
Five Hundred Sixty (4,560) square feet of Actual Space (“Estimated Actual
Space”). The building in which the Premises are located (the “Building”),
consists of Four Thousand Five Hundred Sixty (4,560) square feet of Actual
Space
(the “Building Actual Space”), and is located on the property legally described
as set forth on Exhibit
B,
which
is incorporated herein (the “Property,” and together with the Building and the
other structures thereon, the “Project”).
Notwithstanding
the above, Landlord’s Architect shall determine the exact amount of “Usable
Space” and “Actual Space.” Landlord shall send written notice thereof to Tenant
on or before the tenth (10th)
day
following Landlord’s receipt of such determination from Landlord’s Architect or,
if later, the tenth (10th)
day
following Landlord’s receipt of written notice from Tenant that all the demising
walls for the Premises have been installed. The amount of Actual Space as
finally determined by Landlord’s Architect pursuant to this Section 1.1 shall
bind the parties hereto for all purposes hereof and shall be calculated using
measurements that, for exterior walls, begin at the outer most concrete
foundation or the outermost architectural engagement (i.e.,
the
drip line), which ever is further; and for interior demising wall(s), begin
at
the center thereof.
Tenant
hereby acknowledges and agrees that the Rentable Space will be calculated
by
multiplying the Actual Space by a load factor of Zero Percent (0%) (which
equals
Zero (0) square feet) and adding the product of that mathematical function
to
the Actual Space. Tenant acknowledges and agrees that such load factor is
applied to the Actual Space to
reflect Tenant’s share of the Common Areas (defined below) located inside the
Building, which are measured using the criteria set forth in the preceding
paragraph and which include, without limitation, lobbies, corridors, mechanical,
utility, janitorial, boiler and service rooms and closets, restrooms, elevators
and elevator shafts, and other public, common, and service areas of the
Building.
Tenant
acknowledges that neither Landlord nor any agent of Landlord makes any express
or implied representation, warranty or guarantee with respect to the any
of the
Tenant Improvements whatsoever, including without limitation, any
representation, warranty or guarantee with respect to the suitability or
fitness
of the Tenant Improvements for the Use.
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INITIAL
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LANDLORD
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TENANT
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3
1.2
Modification
of Premises, Building and Project.
Landlord shall have the sole judgment and discretion to determine the
architecture, design, appearance, construction, workmanship, materials and
equipment with respect to the construction of the Building and all other
portions of the Project; provided, however, that Landlord shall not materially
alter the areas, floor elevations of the Premises as shown on Exhibit A without
the express written consent of Tenant, which consent shall not be unreasonably
withheld or delayed. Moreover, at no time shall such modification unreasonably
interfere with Tenants use and enjoyment of the Premises.
Notwithstanding
anything contained herein, it is the Tenant’s responsibility to verify the
Premises by means of As-Built plans or on-site verification as opposed to
relying on the original approved plans.
2. Purpose.
2.1
Use.
The
Premises shall only be used for internet business operations (the “Use”);
provided, however, that the Premises may be used for additional purposes
upon
obtaining Landlord’s prior written consent, which consent may not be
unreasonably withheld so long as Tenants use is for a lawful business purpose
allowable by the applicable governing agencies and subject to Section 2.2.
2.2
Limitation
on Uses.
Except
as otherwise provided in this Lease, Tenant shall not use or occupy the
Premises, or permit the use or occupancy of the Premises, in any manner or
for
any purpose that: (a) would violate any law or regulation of any governmental
authority, or the provisions of any applicable governmental permit or recorded
document; (b) would adversely affect or render more expensive any fire or
other
insurance maintained by Landlord for the Building or any of its contents;(c)
might impair or interfere with any of the services and systems of the Building,
including without limitation, the Building’s electrical, mechanical, fire and
life safety, structural, plumbing, heating, ventilation and air conditioning
systems (collectively, the “Building
Systems”) or the janitorial, security and building maintenance services
(collectively, the “Service
Facilities”); (d) would injure or annoy, or obstruct or interfere with the
rights of, other tenants or occupants of the Building or impair the appearance
of the Building or be prejudicial to the business or reputation of Landlord
or
the Project; or (e) is not compatible with the existing use of the Building
by
other tenants. Further, Tenant’s business machines and mechanical equipment that
cause vibration or noise that may be transmitted to the Building’s structure or
beyond the Premises shall be installed, maintained and used by Tenant so
as to
eliminate such vibration or noise.
2.3
Compliance
with Permits.
Tenant
shall (a) procure and maintain any license or permit required for the lawful
conduct of its business or other activity on the Premises; (b) submit such
license or permit for inspection by Landlord if so requested; and (c) comply
at
all times with all terms and conditions thereof. The Lease shall be subject
to
all statutes, laws, ordinances and regulations applicable from time to time
to
the use, occupancy or possession of the Premises.
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INITIAL
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3. Term.
3.1
Effective
Date.
This
Lease shall be effective as of the date it is executed (the “Effective Date”).
The Term of this Lease shall commence as of Delivery Date and shall expire
at
the end of the Forty Eighth (48th)
full
calendar month following the “Rent Commencement Date” (as defined below and in
the Lease Terms Sheet) unless sooner terminated as provided herein (the “Term”).
Within five (5) calendar days following receipt of notice from Landlord of
Landlord’s good-faith determination of the Rent Commencement Date, Tenant shall
confirm the Rent Commencement Date and the expiration date of the Term by
executing and delivering a Memorandum of Rent Commencement Date (“Memorandum”)
in the form attached hereto as Exhibit C.
This
Lease shall not be void, voidable, or subject to termination due to, nor
shall
Landlord be liable to Tenant for any loss or damage resulting from, Landlord’s
inability to deliver the Premises to Tenant on the date specified in Landlord’s
notice given pursuant to Section 3.3; provided, however, that Tenant shall
not
be liable for any rent with respect to any such delay in delivery of the
Premises that is caused by Landlord.
3.2
Construction.
On the
Effective Date, Landlord shall be deemed to have delivered, and Tenant shall
be
deemed to have received, the Premises completed in “as is” condition with the
improvements as shown on Exhibit
A
attached
hereto. Upon such delivery, Tenant shall be entitled, unless Landlord has
otherwise agreed with Tenant in writing, to construct, if needed, additional
Tenant Improvements (as defined in the attached Exhibit D)
to be
construct by Tenant at its sole cost and expense.
Tenant
shall construct all Tenant Improvements in accordance with the provisions
of the
Tenant’s Work Letter attached hereto as Exhibit D.
Tenant
shall not make any alterations to the Building’s shell or the Common Areas or
deviate from the approved plans for the Building’s shell with out Landlord’s
prior written consent, of which such consent may not be unreasonably withheld,
and if Landlord does so consent, then Tenant shall be solely responsible
for all
the direct and indirect costs and expenses related to such alterations and/or
deviations. All space planning for the Tenant Improvements shall be performed
by
Landlord’s Architect or such other architect or licensed space planner that is
approved in writing by Landlord, which approval may be withheld in Landlord’s
sole and absolute discretion, and Tenant’s contractor
for the construction of the Tenant Improvements must be licensed in Nevada,
be
bonded, have the following insurance coverages:
(a)
workers'
compensation insurance, or the equivalent thereof, in the statutory
amount;
(b)
broad
form comprehensive general liability insurance in the amount of $1,000,000
per
occurrence and $2,000,000 in the aggregate;
(c)
comprehensive
automobile liability insurance for bodily injury and property damage; and
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(d)
builder's
risk insurance on a non-reporting, completed value basis, insuring against
property damage and loss during construction of the Tenant Improvements;
and
shall
be
approved in writing by Landlord, which approval may be withheld in Landlord’s
sole and absolute discretion. Notwithstanding such pre-approval, Tenant may
request in writing that Landlord, in its sole and absolute discretion, approve
Tenant’s use of another contractor meeting the criteria set forth above in this
Section 3.2.
Subject
to the terms of this Section 3.2, Landlord
shall provide Tenant a tenant improvement allowance (the “Allowance”) of Zero
Dollars ($0.00) per square foot of Usable Space, which is estimated to be
Zero
Dollars ($0.00) based on the Estimated Usable Space, which shall be increased
or
decreased based on the final determination of Usable Space (as finally
determined by Landlord’s Architect under Section 1.1 of this Lease). Prior to
Tenant commencing the construction of the Tenant Improvements, Tenant shall,
as
a condition precedent to receiving any portion of the Allowance, deposit
with
Landlord all the funds that are, under the construction contract that Tenant
executes with its contractor (which contractor shall have been approved by
Landlord as provided in this Lease) for the construction of such Tenant
Improvements in excess of the Allowance (the “Tenant’s Contribution”) in the
form of a cashier’s check or other immediately available funds. Upon Tenant
making the Tenant Contribution, Landlord shall, in Landlord’s discretion either:
(a) retain the Allowance and disburse the same to Tenant’s contractor from
time to time as the construction of the Tenant Improvements are completed,
in
which case Tenant shall pay Landlord a construction fund control fee equal
to
Five Hundred Dollars ($500.00); or (b) deposit the same with a third party
voucher control system company selected by Landlord, in Landlord’s sole
discretion, in which case Tenant shall contribute the Tenant’s Contribution with
such third party voucher control system company, and all the direct and indirect
costs of such third party voucher control system company shall be paid by
Tenant.
Notwithstanding
anything to the contrary contained in this Lease, the Allowance shall only
be
used for the design, purchase, installation and construction of Tenant
Improvements that constitute permanent improvements to the Premises and no
portion of the Allowance shall be used for furniture, fixtures, or equipment,
all of which shall be the sole responsibility and cost of Tenant. In the
event a
Tenant Contribution is made as provided in this Section 3.2, then the Tenant’s
Contribution shall be applied towards the payment of the Tenant Improvements
before any portion of the Allowance is so applied. In the event any portion
of
the Allowance is not applied towards the payment of the Tenant Improvements,
then the leftover portion of the Allowance shall be returned to Landlord.
No
portion of the unused Allowance shall be applied, paid, or otherwise credited
to
Tenant whatsoever, including, without limitation, as a credit against rent
to be
paid hereunder. In addition, the Allowance must be used, if at all, within
five
(5) months following the Effective Date and, if not so used by Tenant within
such five (5) month period, then Tenant shall forfeit its rights to the
Allowance and have no further rights with respect thereto
whatsoever.
3.3
Acceptance
of Premises.
On the
date Landlord delivers possession of the Premises to Tenant (the “Delivery
Date”), Tenant shall be deemed to have accepted the Premises “as is, where is,”
and Landlord shall be deemed to have performed all of Landlord’s obligations
under this Lease to be performed by Landlord on and prior to the Delivery
Date,
subject only to the “punch-list items.” In all events, the Delivery Date shall
be deemed to have occurred no later than the date Landlord delivers the keys
for
the Premise to Tenant. Except as otherwise specifically and expressly set
forth
in this Lease, Tenant hereby acknowledges that neither Landlord nor any agent
of
Landlord has made any representation, warranty, or covenant to Tenant or
any of
Tenant’s representatives or agents with respect to or otherwise regarding the
Premises, the Building, the Project, and/or this Lease whatsoever, including
without limitation, any representation or warranty with respect to the
suitability of or fitness of the Premises, the Building, or any other portion
of
the Project for the Use.
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4. Basic
Rent.
The
basic annual rent payable to Landlord (“Basic Rent”) shall be as set forth in
this Article 4.
4.1
Basic
Rent & Rent Commencement Date.
On
January 2, 2008 (the
“Rent Commencement Date”), Tenant shall pay Landlord Basic Rent for the Premises
based on the amount of One Hundred Fourteen Thousand Nine Hundred Twelve
Dollars
($114,912.00) per annum based on Rentable Space. During the initial six (6)
months following the Rent Commencement Date, Basic Rent shall be payable
in
equal monthly installments of Eight Thousand Eight Hundred Ninety Two Dollars
($8,892.00) per month, which is $1.95 per each square foot of Rentable Space.
During months seven (7) through month twelve (12) following the Rent
Commencement Date, Basic Rent shall be payable in equal monthly installments
of
Ten Thousand Two Hundred Sixty Dollars ($10,260.00) per month, which is $2.25
per each square foot of Rentable Space. Thereafter, Basic Rent shall be adjusted
as provided in Section 4.2 below. Each installment of Basic Rent shall be
payable in advance and without set off, offset, or demand. The first monthly
installment of full Basic Rent and the Security Deposit shall be payable
contemporaneously with Tenant’s execution of this Lease. Following the execution
of this Lease, Basic Rent shall be payable on the first day of each calendar
month beginning on the first day of the second full calendar month of the
Term;
provided, however, that any adjustment to Basic Rent due to the final
determination of square footage shall be paid by or credited to Tenant, as
applicable, on the Rent Commencement Date. The Basic Rent in effect for any
partial month shall be payable as set forth in Section 4.3 below. Tenant
shall
not be entitled to any interest with respect to the prepayment of the first
full
monthly installment of Basic Rent.
4.2
Basic
Rent Increases.
See
Exhibit
G.
TENANT
HEREBY ACKNOWLEDGES THAT TENANT HAS READ AND UNDERSTANDS THIS SECTION
4.2.
__________ (Tenant to Initial)
4.3
Partial
Months.
Basic
Rent for any partial month shall be equal to the product of 1/365 (or 1/366
for
any leap year) of the annual Basic Rent in effect during such partial month
and
the number of days in such partial month from and after the Rent Commencement
Date, and shall be due on the Rent Commencement Date.
4.4
No
offset.
Basic
Rent, together with all other sums due hereunder (“Additional Rent”), shall be
paid to the Landlord without deduction, set off, or offset of any kind
whatsoever, in advance and without demand in lawful money of the United States
at ▇▇▇▇
▇.
▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or
such
other location or to such other person as Landlord may from time to time
designate in writing. The Basic Rent and Additional Rent are collectively
referred to in this Lease as “rent.”
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4.5
Security
Deposit.
Upon
Tenant execution and delivery of this Lease to Landlord, Tenant shall deposit
with Landlord an amount equal to Fifteen Thousand Four Hundred Fifty Eight
and
40/100 Dollars ($15,458.40) as security for the full and faithful performance
of
each of the terms hereof by Tenant (the “Security Deposit”). Landlord shall not
be required to keep the Security Deposit separate from its general funds
and
Tenant shall not be entitled to interest thereon. If Tenant defaults with
respect to any provision of this Lease, including, but not limited to, the
provisions relating to the payment of rent, Landlord may, but shall not be
required to, use, apply or retain all or any part of the Security Deposit
for
the payment of any rent or other sum attributable to a default by Tenant
that is
set forth in Section 22 below including without limitation, costs and attorneys’
fees incurred by Landlord to recover possession of the Premises. If any portion
of the Security Deposit is so used or applied, Tenant shall, upon receipt
of a
written demand from Landlord, deposit cash with Landlord in an amount sufficient
to restore the Security Deposit to its original amount. If there is any
adjustment to the Rentable Space of the Premises, the Security Deposit shall
be
proportionately increased, but not decreased, based on the percentage of
increase in the Rentable Space. If Tenant fully and faithfully performs every
provision of this Lease to be performed by it, including, without
limitation:
(a)
repairing
all holes in the walls and paint all blemishes to match existing color;
(b)
having
had the Premises, including, the carpets therein, professionally cleaned;
(c)
having
cleaned and/or replaced all the HVAC filters used solely by Tenant and located
in the Premises;
(d)
having
made any and all repairs to be made by Tenant under this Lease;
(e)
having
returned to Landlord all keys to the Premises that are in the possession
of
Tenant and/or Tenant’s employees, representative, agents, and similar persons,
whether or not initially issued to Tenant by Landlord;
(f)
having
removed from the Premises and the other applicable parts of the Building
and/or
Project, any and all wall signage, window signage, fascia signage, and pylon
signage and any and all furniture, fixtures, and equipment; and
(g)
having
repaired any and all damage caused by Tenant undertaking or having undertaken
any of the actions described in items (a) through and including (f) above;
then
Security Deposit, or the remaining balance thereof, shall be returned to
Tenant
(or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder)
within thirty (30) days following the later of (y) the expiration of the
Term or
(z) surrender of possession of the Premises to Landlord.
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5. Additional
Rent.
5.1
Payment
of Operating Expenses and Real Estate Taxes.
Tenant
shall pay to Landlord, as Additional Rent, an amount equal to Tenant’s
proportionate share of the annual Operating Expenses (defined below), which
shall include Real Estate Taxes (defined below). Such amount shall be paid
in
advance, without demand, without set off, and without offset in equal monthly
installments and shall be due and payable on the same dates that Basic Rent
is
due and payable hereunder and shall be subject to the terms and provisions
contained in Section 4.3 above. Additional Rent shall be based on Landlord’s
good-faith estimate of the Operating Expenses for the current calendar year,
which shall be given to Tenant in writing and shall be delivered to Tenant
as
set forth in Section 31.6 below. Landlord’s good-faith estimate of the Operating
Expenses for the first twelve (12) months following the Rent Commencement
Date
is
Three
and 72/100 Dollars ($3.72)
per
square foot of Rentable Space per annum (or expressed as a monthly amount,
Thirty
One Cents ($0.31) per
square foot of Rentable Space per month). Landlord reserves the right to
adjust
such estimates from time to time to reflect any changes in Landlord’s estimate
of Operating Expenses.
Landlord’s controllable expenses shall be reasonable and will not exceed the
market rate of similar centers in the area. Notwithstanding
the foregoing, Landlord
shall keep all records showing all expenditures incurred as Operating Expenses,
Landlord’s Insurance and Real Property Taxes for the Project for each calendar
year for a period of two (2) years following each year, and such records
shall
be made available for inspection by Tenant and/or its agents at any time
during
ordinary business hours in the city in which the Premises are located or
in the
city in which Landlord’s records are kept, whatever the case may be.
5.2
Operating
Expenses.
a. “Operating
Expenses”
shall
mean the total of all actual costs incurred by Landlord in connection with
the
management (including all management fees charged to or by Landlord), operation,
maintenance and repair of the Project (including all costs of insuring the
Building) including, without limitation, Real Estate Taxes (defined below),
insurance, parking lot maintenance, landscaping, all utility expenses not
separately metered, labor compensation insurance attributable to all on-site
employees (together with a reasonable allocation of such expenses of off-site
employees who perform a portion of their services in connection with the
operation, maintenance or security of the Project), payroll taxes attributable
to all on-site employees (together with a reasonable allocation of such expenses
of off-site employees who perform a portion of their services in connection
with
the operation, maintenance or security of the Project), materials, supplies
and
all other costs of operating and repairing, lighting, cleaning, sweeping,
painting, striping, removing of rubbish or debris from, policing and inspecting
the Project; together with all depreciation on or rentals of machinery and
equipment, the amortized costs to install capital improvements that are expected
to reduce the normal Operating Expenses (including utility costs) of the
Project
or that are necessary to comply with any existing or future law; costs of
repairs to or maintenance or replacement of paving, curbs, and walkways,
costs
of remarking directional or other signs, costs of landscaping and drainage,
costs of lighting facilities, the costs of repair of and maintenance to Common
Areas (defined below), costs and expenses of planting, replanting and replacing
flowers, shrubbery and other landscaping, fees for required licenses and
permits, costs of compliance with any governmental rules, regulations, laws
or
ordinances, costs of signs (including any and all monument signs), roof and
building maintenance (excluding Tenant’s maintenance responsibilities under this
Lease), costs of premiums for insurance policies to be maintained by Landlord
and any deductibles attributable thereto under Article 11 hereof, the cost
of
placing and maintaining all tenant names on any and all monument signs (but
only
in the event Landlord exercises its option to do so pursuant to Section 6.5
below).
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For
purposes of computing rent adjustments pursuant to this Article 5, Operating
Expenses for the Project shall be allocated and charged to Tenant in accordance
with generally accepted management practices and expressed as an amount per
square foot of Tenant’s Rentable Space compared with the aggregate Rentable
Space of the Project that is then occupied; provided, however, that in no
case
shall the aggregate Rentable Space of the Project that is then occupied be
less
than ninety-five percent (95%) of all the Rentable Space of the Project.
As
stated above, Operating Expenses shall include all Real Estate Taxes. Operating
Expenses shall not include capital expenditures required to build other
buildings in the Project that are not in existence as of the Rent Commencement
Date or any improvements whatsoever to any such building(s).
b. “Real
Estate Taxes.”
Subject to Section 10.2, “Real Estate Taxes” shall mean all taxes, assessments
and charges (special or otherwise) levied upon or with respect to the Project
and ad valorem taxes on Landlord’s personal property used in connection
therewith. In addition, “Real Estate Taxes” shall include, without limitation
(i) all personal property taxes on personal property used in connection with
the
Project and related structures, (ii) any and all taxes, assessments, license
fees, and public charges levied, assessed, or imposed with respect to the
Project and that become payable during the Term; and (iii) any other taxes
levied or assessed in addition to, as a replacement, alteration, or substitute
for, or in lieu of any above described real or personal property taxes.
Notwithstanding the above, the definition of “Real Estate Taxes” shall not
include any amount that is assessed, levied or otherwise charged as (a) a
penalty or interest on the above described items; (b) a federal, state, local
or
other governmental tax on the income or capital of Landlord; (c) a franchise
tax; nor (d) any amount similar to the above described exclusions.
c. “Excluded
Costs.”
Any
costs or expenses for services or utilities not otherwise included in the
definition of Operating Expenses that is attributable directly to Tenant’s use
or occupancy of the Premises and is charged directly to Landlord shall be
paid
in full by Tenant as Additional Rent when such cost is incurred or, if Landlord
makes such payment, within ten (10) days after receiving written demand for
such
payment from Landlord.
5.3
Additional
Rental Reconciliation.
Each
year
Landlord
shall, as soon as practicable, prepare a statement of Operating Expenses
for the
previous year (the “Operating Expense Statement”), which shall be made available
for Tenant’s review upon Tenant’s reasonable request. If the Operating Expense
Statement reveals that Tenant paid more for Operating Expenses than Tenant’s
actual proportionate share for the year for which such statement was prepared,
then Landlord shall credit Tenant for such excess or, if the Term has expired
and Tenant is not in default hereunder, Landlord shall reimburse Tenant for
such
excess; likewise, if Tenant paid less than Tenant’s actual proportionate share
for such year, then Tenant shall promptly pay Landlord such deficiency.
Notwithstanding anything contained in this Lease to the contrary, neither
Landlord nor Tenant shall be entitled to collect for any excess or overage
with
respect to the Additional Rent Expenses after the expiration of the second
(2nd)
calendar year following the calendar year to which the same relate.
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6. Common
Areas; Parking Facilities; Signage.
6.1
Uncovered
Parking.
Tenant
and Tenant’s agents, employees, servants, contractors, subtenants, invitees,
guests and licensees (each a “Tenant Party”) shall have the non-exclusive right
to use a total of Nineteen (19) of the Project’s uncovered parking spaces with
the other tenants in the Project.
6.2
Covered
Parking.
If
available, Tenant shall, for the first year of the Term, have the use for
a cost
of $35.00 per space per month, of
zero
(0)
covered
parking spaces located in the covered parking facilities of the Project.
Thereafter, the cost for such covered parking space shall be thirty five
dollars
$35.00 per space per month. Tenant may procure (one space for each whole
1,000
square feet of Actual Space, if available) the exclusive use of additional
covered parking spaces, up to zero (0) spaces, in said covered parking
facilities for an additional monthly charge of $35.00 per space, which charge
shall be paid monthly at such time and place as set forth herein for the
payment
of Basic Rent.
6.3
Common
Areas.
Tenant
and Tenant’s agents, invitees, guests and licensees shall have the nonexclusive
right, in common with Landlord and all others to whom Landlord has or may
hereafter grant rights, to use such Common Areas of the Project (including,
but
not limited to, the walkways, corridors, halls, passageways and ramps,
sidewalks, access roads, landscape and planted areas, public rest rooms and
other public facilities) (collectively, “Common Areas”), subject to the Rules
and Regulations.
6.4.
Maintenance
of Parking Facilities and Common Area.
Landlord
shall operate, manage, equip, light, repair and maintain the Property’s Common
Areas in a manner that is reasonable and consistent with their intended purposes
and the Use.
6.5.
Signage.
Tenant
shall have the right to place a sign identifying Tenant on the exterior of
each
entry door for the Premises. Tenant may mount signage to the exterior of
the
Building only with Landlord’s prior written consent, which may be withheld in
Landlord’s sole and absolute discretion. The location of any such sign shall be
determined by Landlord in Landlord’s sole and absolute discretion. If Landlord
erects a monument sign, Tenant shall have the right, to place its name on
such
monument sign. The cost of placing Tenant’s name on such monument and/or pylon
sign shall be at Tenant’s sole cost and expense and Tenant shall be charged a
monthly fee, to be determined by the Landlord, for the usage of the monument
sign. The cost of maintaining such monument sign shall be an Operating Expense.
Notwithstanding the above, Tenant is obligated to remove all signage upon
vacation of the premises including, but not limited to, wall signs, window
signs, door signs, pylon lettering, and interior signs. Failure to do so
will
result in Landlord using the Security Deposit to cover any expenses relating
to
such removal.
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7. Utilities.
7.1
Utility
Charges.
Tenant
shall be solely responsible for and promptly pay all charges for separately
metered utilities, including, without limitation, Tenant’s separately metered
telephone, electric, gas, water, sewer or any other utility that is used
or
consumed in the Premises; provided, however, that trash shall be excluded
as it
is specifically included in the definition of Operating Expenses. Tenant
shall
further be responsible for any utility connection charges, or system development
charges, from any and all utility companies or districts that are attributable
to Tenant’s separately metered utilities. In the event these charges are billed
to the Landlord, Tenant shall make payment of the full amount or an amount
equal
to Tenant’s prorata share of Landlord’s actual cost for any shared utilities
billed to Landlord within ten (10) days after receiving written notice from
Landlord of such billed amount.
8. Alterations.
8.1 Restriction
on Alterations.
Except
as otherwise provided herein, Tenant may make no alteration, repairs, additions
or improvements in, to or about the Premises (collectively, “Tenant
Alterations”), without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed, and Landlord may impose as
a
condition to such consent such requirements as Landlord, in its sole discretion,
may deem reasonably necessary or desirable, including without limitation,
(a)
the right to approve the plans and specifications for any Tenant Alteration,
(b)
the right to require insurance satisfactory to Landlord, (c) the right to
require security for the full payment for and diligent and faithful performance
of that construction of any Tenant Alteration, (d) requirements as to the
manner
in which or the time or times at which construction of Tenant Alterations
may be
performed, (e) the right to approve the contractor or contractors to perform
such Tenant Alterations, which approval shall not be unreasonably withheld
or
delayed; provided, however, that such contractor shall meet the criteria
set
forth in Section 3.2 for selecting a contractor in connection with the
construction of the Tenant Improvements. All Tenant Alterations shall be
compatible with the Building and completed in accordance with Landlord’s
requirements and all applicable rules, regulations and requirements of
governmental authorities and insurance carriers. Tenant shall pay to Landlord
reasonable charges for having the Tenant Alterations inspected and/or reviewed
(whether by Landlord or Landlord’s employees, representatives, and/or agents),
which amount shall not exceed One Thousand Dollars ($1,000.00) per submission
of
the proposed Tenant Alteration, to assure full compatibility with the Building.
In charging the above fee, Landlord may charge for services of its in-house
personnel. Landlord does not expressly or implicitly covenant or warrant
that
any such plans or specifications will be safe or that the same will comply
with
any applicable laws, ordinances, codes, rules or regulations. Further, Tenant
shall indemnify, protect, defend and hold Landlord, the Project, and Landlord’s
managing agent, if any, harmless from any loss, cost or expense, including
reasonable attorneys’ fees and costs, based upon or growing out of any
alterations or construction undertaken by Tenant or incurred by Landlord
as a
result of any defects in design, materials or workmanship resulting from
Tenant
Alterations, except to the extent such defects are caused by the gross
negligence of Landlord, its agents, servants or employees. If requested by
Landlord, Tenant shall provide Landlord with copies of all contracts, receipts,
paid vouchers, and any other documentation in connection with the construction
of such Tenant Alterations. Tenant shall promptly pay all costs incurred
in
connection with all Tenant Alterations and shall not permit the filing of
any
mechanic’s lien or other lien in connection with any Tenant Alterations. If a
mechanic’s lien or other lien is filed against the Building or the Project,
Tenant shall discharge or cause to be discharged (by bond or otherwise) such
lien within fifteen (15) days after Tenant receives written notice from Landlord
of the filing thereof and shall not allow any such lien to be foreclosed
upon;
provided, however, that Tenant may diligently contest such lien if Tenant
delivers
to Landlord a bond or other security reasonably satisfactory to Landlord.
If
Tenant
fails to timely discharge such lien or to diligently contest the same, Landlord
may, without waiving its rights and remedies based on such breach of Tenant
and
without releasing Tenant from any of its obligations, cause such liens to
be
released by any means it shall deem reasonably proper, including payment
in
satisfaction of the claim giving rise to such lien. Tenant shall pay to
Landlord, within thirty (30) days following receipt of written notice from
Landlord, any sum paid by Landlord to remove such liens, together with interest
at the rate set forth in Section 24.1. Any increase in any tax, assessment
or
charge levied or assessed as a result of any Tenant Alterations shall be
payable
by Tenant in accordance with Article 10 hereof. Tenant shall be responsible
for
all costs in connection with the work performed in accordance to this
Article 8.
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8.2
Removal
and Surrender of Fixtures and Tenant Alterations.
Except
as otherwise provided herein, all Tenant Alterations and Tenant Improvements
installed in the Premises that are permanently attached to or built into
the
Premises, including, without limitation, floor coverings, wall coverings,
window
coverings, paneling, molding, doors, vaults (excluding vault doors), plumbing
systems, electrical systems, mechanical systems, lighting systems, sound
equipment, communication systems and outlets for the systems mentioned above
and
for all telephone, radio, telegraph and television purposes, and any special
flooring or ceiling installations, shall become the property of Landlord
and
shall be surrendered with the Premises, as a part thereof, at the end of
the
Term regardless of whether such Tenant Alterations or Tenant Improvements
were
paid for by Tenant or any credit or allowance granted by Landlord.
9. Maintenance
and Repairs.
9.1
Tenant’s
Obligations.
Except
for Landlord’s obligations specifically set forth in this Lease, Tenant shall,
at Tenant’s sole expense, keep the Premises and every part thereof clean and in
good condition and repair, including the exterior doors and all glass to
the
premises, reasonable wear excepted, including, without limitation, the normal
repair, maintenance and upkeep of the sprinkler systems, heating, ventilation,
and air conditioning systems dedicated solely to the Premises and all other
utility installations within the Premises (including, without limitation,
the
regular replacement of HVAC filters). It is Tenant’s responsibility to provide
regular pest control to the interior and exterior of their premises. Landlord
may, but shall not be obligated to, contract for an HVAC filter replacement
service for the Premises on Tenant’s behalf and at Tenant’s sole cost and
expense, without Tenant’s prior written consent. Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the Premises
or
any part thereof. Notwithstanding the foregoing, if Tenant fails to diligently
complete any repairs for which Tenant is responsible under this Lease within
five (5) days after receipt of written notice from the Landlord, Landlord
may,
at Landlord’s sole discretion, complete such repairs and Tenant shall promptly
reimburse Landlord for any and all costs associated therewith.
Except
as
otherwise provided, Tenant shall, within fifteen (15) days after receipt
of
written notice from Landlord, reimburse Landlord for all repairs to the Building
or any other portion of the Project that are required as a result of any
misuse,
intentional misconduct, or neglect by Tenant or any of its officers, agents,
employees, contractors, licensees or invitees while in or about the Premises,
the Building or any other part of the Project.
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9.2
Landlord’s
Obligations.
Landlord agrees to keep in good order, condition and repair, the foundations,
exterior walls, roofs, structural columns, beams and all other structural
elements of the Project and the Building and improvements thereto, including,
without limitation, such elements that are included within the Premises,
as well
as all mechanical, electrical, plumbing and sewage systems that are located
on
the Project but outside the Premises (i.e., from its utility connection to
the
interior walls of the Premises), reasonable wear and tear excepted. Except
as
otherwise provided, any damage caused by any intentional misconduct or
negligence of Tenant (or any of its officers, agents, employees, contractors,
licensees or invitees) shall be repaired at Tenant’s sole cost and expense. It
is an express condition precedent to all obligations of Landlord to repair
and
maintain that Tenant shall have notified Landlord in writing of the need
for
such repairs or maintenance. Except as otherwise provided, there shall be
no
abatement of rent with respect to, Landlord shall not be liable for, and
Tenant
shall hold Landlord harmless from, any injury to or interference with Tenant’s
business arising from any repairs, maintenance, alteration or improvement
in or
to any portion of the Project or the Building, including the Premises, or
in or
to the fixtures (and any items in connection therewith), appurtenances and
equipment therein. As a material inducement to Landlord entering into this
Lease, except as otherwise provided by Nevada law, Tenant waives and releases
its right to make repairs at Landlord’s expense without Landlord’s prior written
consent.
10. Tax
on Tenant’s Personal Property.
10.1
Personal
Property Taxes.
At
least ten (10) days prior to delinquency, Tenant shall pay all taxes levied
or
assessed upon Tenant’s equipment, furniture, fixtures and other personal
property located in or about the Premises. If the assessed value of Landlord’s
property is increased by the inclusion therein of a value placed upon Tenant’s
equipment, furniture, fixtures or other personal property, Tenant shall pay
Landlord, within ten (10) days following receipt of written notice from
Landlord, the taxes so levied against Landlord, or the proportion thereof
that
is directly related to said increase in such assessed value.
10.2
Exclusion
from Real Estate Taxes.
The
portion of Real Estate Taxes payable by Tenant pursuant to Section 10.1 hereof
shall be excluded from the definition of Real Estate Taxes set forth in Section
5.2(b).
11. Insurance;
Waiver; Subrogation.
11.1
Liability
Insurance.
Tenant
shall at all times during the Term and at its own cost and expense procure
and
continue (a) workers’ compensation insurance and (b) commercial
general liability insurance in amounts of $2,000,000 per occurrence and,
if
the use includes any activity or matter that is or may be excluded from coverage
under a commercial general liability policy (e.g., the sale, service or
consumption of alcoholic beverages), Tenant shall obtain such endorsements
to
the commercial general liability policy or otherwise obtain insurance to
insure
all liability arising from such activity or matter (including liquor liability,
if applicable) in such amounts as Landlord may reasonably require. Such
commercial general liability insurance shall insure Tenant,
Landlord, Landlord’s agents and their respective affiliates against all
liability for injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises, bodily
injury liability and property damage liability insurance adequate to protect
Landlord against liability for injury to or death of any person or damage
to
property in connection with the use, operation and condition of the Premises.
Not more frequently than once every year, if, in the written opinion of
Landlord’s lender the amount of commercial general liability insurance coverage
at that time is not adequate, Tenant shall increase such coverage as required
by
Landlord’s lender.
Landlord
and its lender shall be named as an additional insured on Tenant’s policy with
respect to the Premises
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11.2
Property
Insurance.
a. Building;
Improvements; Rental Value Insurance.
Landlord shall obtain and keep in force during the term of this Lease a policy
or policies of (a) insurance against any loss (other than any loss to any
plate
glass in or on the Project) within the classification of “Fire and Extended
Coverage,” that covers the Project, the Building and the improvements thereon
and that is in an amount equal to one hundred percent (100%) of the Project’s
actual replacement value, as determined from time to time; and (b) commercial
general liability insurance in amounts of $2,000,000 combined single limit
coverage.
All
premiums and deductibles under the policies required to be maintained by
Landlord pursuant to this Section 11.2 shall be included as part of the
Operating Expenses as defined in Section 5.2 above.
b. Tenant’s
Property Insurance.
Tenant,
at its sole cost and expense shall, at all times during the Term, maintain
in
effect policies of insurance covering all leasehold improvements (including
all
Tenant Improvements and any Tenant Alterations that may be made pursuant
to
Article 8 hereof), trade fixtures, plate glass, merchandise and other personal
property from time to time in, on or upon the Premises, in an amount not
less
than one hundred percent (100%) of their actual replacement value, as determined
from time to time, that provides protection against any peril included within
the classification “Fire and Extended Coverage,” together with insurance against
sprinkler damage (if applicable), vandalism and malicious mischief and water
damage caused by plumbing leakage or failure. The proceeds of such insurance,
so
long as this Lease remains in effect, shall be used for the repair or
replacement of the property so insured.
11.3
Policy
Requirements.
All
insurance required to be carried by Tenant hereunder shall be issued by
responsible insurance companies, qualified to do business in the State of
Nevada
and reasonably acceptable to Landlord. Insurance companies rated A-9 or better
by Best’s Insurance Reports are hereby pre-approved by Landlord. Each policy
shall have a deductible or deductibles, if any, which are no greater than
those
maintained by similarly situated tenants and that are reasonably acceptable
to
Landlord. Tenant’s insurance shall provide primary coverage to Landlord when any
policy issued to Landlord provides duplicate or similar coverage, and in
such
circumstance Landlord’s policy will be excess over Tenant’s policy. Copies of
all policies to be obtained by Tenant, together with certificates evidencing
the
existence and amounts of such insurance, shall be delivered to Landlord by
Tenant at least thirty (30) days prior to Tenant’s occupancy of any portion of
the Premises. No such policy shall be cancelable except after thirty (30)
days
written notice to Landlord. Tenant shall, at least thirty (30) days prior
to the
expiration of any such policy, furnish Landlord with renewals or “binders”
thereof, or in the event no such renewals or “binders” are furnished to
Landlord, Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be paid by Tenant within thirty (30) days following
Tenant’s receipt of written demand therefor. Any policy required to be obtained
by either party may be carried under so-called “blanket coverage” form of
insurance policies; provided, however, that any such blanket policy specifically
provides that the amount of insurance coverage required hereunder shall in
no
way be prejudiced by other losses covered by the policy. Neither the issuance
of
any such insurance policy nor the minimum limits specified in this Section
11.3
shall be deemed to limit or restrict in any way Tenant’s liability arising under
or out of this Lease.
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11.4
Waiver
of Subrogation.
Notwithstanding anything to the contrary contained in this Lease whatsoever,
Landlord and Tenant waive their respective right of recovery against the
other
for any injury or loss to the extent such injury or loss is required to be
insured against under a policy or policies of insurance and regardless as
to the
fault of the other party; provided, however, that this waiver shall not be
applicable to any portion of any damage that is not reimbursable by the damaged
party’s insurer including, without limitation, the “deductible” in such party’s
insurance coverage. Each such insurance policy carried by either Landlord
or
Tenant shall include a waiver of the insurer’s rights of subrogation. Such
waiver shall in no way be construed or interpreted to limit or restrict any
indemnity or other waiver made by Tenant under the terms of this
Lease.
12. Fire
or Casualty.
12.1 Repair
Estimate.
If the
Premises, Building or any other part of the Project is damaged by fire or
other
casualty (a “Casualty”), Landlord shall, within ninety (90) days after such
Casualty, deliver to Tenant a good faith estimate (the “Damage Notice”) of the
time needed to repair the damage caused by such Casualty.
12.2 Tenant’s
Rights.
If a
material portion of the Premises is damaged by Casualty such that Tenant
is
prevented from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Casualty and Landlord
estimates that the damage caused thereby cannot be repaired within One Hundred
Eighty (180) days after the Casualty (the “Repair Period”), then Tenant may
terminate this Lease by delivering written notice to Landlord of its election
to
terminate within thirty (30) days after the Damage Notice has been received
by
Tenant.
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12.5 Waiver
of Statutory Provisions.
The
provisions of this Lease, including this Article 12, constitute an express
agreement between Landlord and Tenant with respect to any and all damage
to, or
destruction of, all or any part of the Premises, the Building or the Project
and
any statute or regulation of the State of Nevada with respect to any rights
or
obligations concerning damage or destruction in the absence of an express
agreement between the parties, and any other statute or regulation, now or
hereafter in effect, shall have no application to this Lease or any damage
or
destruction to all or any part of the Premises or the Building.
12.6 Abatement
of Rent.
If the
Premises are damaged by Casualty, rent for the portion of the Premises rendered
untenantable by the damage shall be abated on a reasonable basis from the
date
of damage until the completion of Landlord’s repairs (or until the date of
termination of this Lease by Landlord or Tenant as provided above, as the
case
may be), unless Tenant caused such damage, in which case, Tenant shall continue
to pay rent without abatement.
13. Eminent
Domain.
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13.3 Partial
Taking - Landlord’s Rights.
If any
material portion, but less than all, of the Project or Building becomes subject
to a Taking, or if Landlord is required to pay any of the proceeds arising
from
a Taking to a mortgagee of Landlord, then Landlord may terminate this Lease
by
delivering written notice thereof to Tenant within thirty (30) days after
such
Taking, and Basic Rent and Additional Rent shall be apportioned as of the
date
of such Taking. If Landlord does not so terminate this Lease, then this Lease
shall continue, but if any portion of the Premises has been taken, rent shall
▇▇▇▇▇ as provided in the last sentence of Section 13.2.
13.4 Award.
If any
Taking occurs, then Landlord shall receive the entire award or other
compensation for the Project, the Building, and other improvements taken;
provided, however, that Tenant may separately pursue a claim (to the extent
it
will not reduce Landlord’s award) against the condemnor for the value of
Tenant’s personal property that Tenant is entitled to remove under this Lease,
moving costs and loss of business. Tenant hereby waives any and all rights
it
might otherwise have pursuant to Nevada Revised Statutes (“NRS”) Section
37.115.
14. Assignment
and Subletting.
14.1
General
Prohibition.
Except
as otherwise provided herein, Tenant shall not directly or indirectly,
voluntarily or involuntarily assign, mortgage or otherwise encumber all or
any
portion of its interest in this Lease or in the Premises (collectively,
“Assignment”) or permit the Premises to be occupied by anyone other than Tenant
or Tenant’s employees or sublet the Premises (collectively, “Sublease”) or any
portion thereof without obtaining the prior written consent of Landlord,
which
consent not be unreasonably withheld. Any attempted Assignment or Sublease
without Landlord’s prior written consent shall be null and void and of no
effect. Notwithstanding the foregoing, if Tenant is in default under any
of the
terms of this Lease, Tenant may not request the assignment, transfer or
subletting of the Premises in whole or in part pursuant to Section 14.2
below.
14.2
Notice
of Intent to Assign or Sublet.
If
Tenant desires at any time to enter into an Assignment or to Sublease the
Premises or any portion thereof, it shall first notify Landlord of its desire
to
do so and shall submit in writing to Landlord (i) the name of the proposed
assignee, subtenant, transferee or occupant (“Transferee”); (ii) the nature of
the proposed Transferee’s business to be carried on in the Premises; (iii) the
terms and provisions of the proposed Sublease or Assignment; and (iv) such
financial information as Landlord may reasonably request concerning the proposed
Transferee (collectively, the “Transfer Notice”). In the event the Transferee is
not engaged in the Use, Landlord may, in Landlord’s sole and absolute
discretion, reject the Sublease or Assignment and Tenant agrees such rejection
shall be deemed reasonable.
14.3
No
Release of Tenant’s Obligations.
Unless
otherwise expressly provided, No Assignment or Sublease shall relieve Tenant
of
its obligation to pay the rent and to perform all of the other obligations
to be
performed by Tenant hereunder. The acceptance of rent by Landlord from any
other
person shall not be deemed to be a waiver by Landlord of any provision of
this
Lease or to be a consent to any Assignment or Sublease. Consent to one Sublease
or Assignment shall not be deemed to constitute consent to any subsequent
Sublease or Assignment.
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14.4
Transfer
is Assignment.
If
Tenant is a corporation or is an unincorporated association or partnership,
the
issuance of any additional stock or the sale, transfer, assignment or
hypothecation of any stock or interest in such corporation, association or
partnership in the aggregate in excess of fifteen percent (15%) shall be
deemed
an Assignment hereunder. Tenant agrees to promptly pay as Additional Rent
Landlord’s costs and attorneys’ fees incurred in connection with the processing
and documentation of any requested Assignment or Sublease.
14.5
Assumption
of Obligations.
Each
Transferee, other than Landlord, shall assume, as provided in this Section
14.5,
all obligations of Tenant under this Lease and shall be and remain liable
jointly and severally with Tenant for the payment of the rent, and for the
performance of all of the terms, covenants, conditions and agreements herein
contained on Tenant’s part to be performed for the term of this Lease, the
Assignment or the Sublease; provided, however, that the Transferee shall
be
liable to Landlord for rent only in the amount set forth in the Assignment
or
Sublease. No Assignment shall be binding on Landlord unless the Transferee
or
Tenant shall deliver to Landlord a counterpart of the Assignment and an
instrument in recordable form which contains a covenant of assumption by
the
Transferee that is satisfactory in substance and form to Landlord consistent
with the requirements of this Section 14.5. The failure or refusal of the
Transferee to execute such instrument of assumption shall not release or
discharge the Transferee from its liability as set forth above.
15. Landlord’s
Reserved Rights.
15.1
Right
of Entry.
Landlord and its agents and representatives shall have the right, at all
reasonable times, upon twenty-four (24) hours written notice, except in the
case
of an emergency, in which event notice shall be waived, to enter the Premises
for purposes of inspection, to post notices of non-responsibility, to protect
the interest of Landlord in the Premises, to supply janitorial service and
any
other services to be provided by Landlord hereunder, to perform all required
or
permitted work therein, including the erection of scaffolding, props and
other
mechanical devices for the purpose of making alterations, repairs or additions
to the Premises or the Building which are provided for in this Lease or required
by law. Landlord shall have the further right at any time, but subject to
the
notice provisions of this Section 15.1, to perform any work set forth in
Section
15.2 of this Lease. Landlord and its agents and representatives shall also
have
the right during business hours to show the Premises to prospective tenants
(during the last six (6) months of this Lease), lessors of superior leases,
mortgages, prospective mortgagees or prospective purchasers of the Building.
No
such entry shall be construed under any circumstances as a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction of Tenant, and
Tenant
hereby waives any claim against Landlord or its agents or representatives
for
damages for any injury or inconvenience to or interference with, Tenant’s
business or quiet enjoyment of the Premises with respect to entries made
pursuant to this Section 15.1.
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15.2
Building
and Common Areas.
Provided Landlord does not unreasonably obstruct or interfere with Tenant’s Use,
Landlord may: (a) install, repair, replace or relocate pipes, ducts, conduits,
wires and appurtenant meters and equipment for service to other parts of
the
Building above the ceiling surfaces, below the floor surfaces, within the
walls
and in the central core areas of the Premises or the rest of the Building;
(b)
repair, renovate, alter, expand or improve the Building; (c) make changes
to the
Common Areas, including, without limitation, changes in the location, size,
shape and number of street entrances, driveways, ramps, entrances, exits,
parking spaces, parking areas, loading and unloading areas, halls, passages,
stairways and other means of ingress and egress, direction of traffic,
landscaped areas and walkways; (d) close temporarily any of the Common Areas
for
maintenance purposes as long as reasonable access to the Premises remains
available; (e) designate other land outside the boundaries of the Building
to be a part of the Common Areas; (f) add additional buildings and improvements
to the Common Areas; (g) use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building, or any portion thereof;
and (h) do and perform such other acts and make such other changes in, to
or
with respect to the Common Areas and Building and other portions of the Project
as Landlord may deem appropriate.
15.3
Name.
Landlord may adopt any name for the Building and/or the Project and Landlord
reserves the right to change the name and/or the address of the Building
and/or
the Project or any part thereof at any time.
15.4
Development
of Other Improvements.
Improvements to the Project, other than the Building, and improvements on
any
contiguous property, which may be acquired by Landlord, Landlord’s
successor-in-interest (if any) or by any entity controlling, controlled by
or
under common control with Landlord, shall be referred to herein as “Other
Improvements.”
If
the
Other Improvements are owned by an entity other than Landlord, Landlord shall
have the right, but not the obligation (unless required to comply with zoning
or
other governmental requirements), to enter into an agreement with the owner
of
any or all of the Other Improvements to provide for: (a) reciprocal rights
of
access, use and enjoyment of the Project or the Other Improvements; (b) the
common management, operation, maintenance, improvement or repair of all or
any
portion of the Project or all or any portion of the Other Improvements; and
(c)
the allocation of all or any portion of the Operating Expenses for the Project
to the Other Improvements or the allocation of the Operating Expenses for
the
Other Improvements to the Project; in order to provide for the efficient
management, operation, maintenance, improvement and repair of the Project
and
the Other Improvements.
15.5
Incorporation
of Other Improvements.
In the
event Landlord (a) becomes the owner of any or all of the Other Improvements
and
the property on which they are located, or (b) conveys the Project to the
owner
of the Other Improvements or to any other person or entity that will become
the
owner of both the Project and the Other Improvements, Landlord, or its
successors or assigns, shall have the right, but not the obligation (unless
required to comply with zoning or other governmental requirements), to
incorporate the Other Improvements into the Project and to provide for the
common management, operation, maintenance and repair of the Project and the
Other Improvements. In the event the Other Improvements are so incorporated
into
the Project, all references to the Project contained in this Lease shall
be
deemed and construed to include the Other Improvements.
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16. Indemnification.
16.1
Indemnification
Obligations.
Tenant
shall indemnify, protect, defend and hold harmless, Landlord, its officers,
directors, partners, agents and employees, and any affiliate of Landlord,
including without limitation, any corporations or any other entities
controlling, controlled by or under common control with Landlord, from and
against any and all claims, suits, demands, liability, damages and expenses,
including attorneys’ fees and costs, arising from or in connection with Tenant’s
use or alteration of the Premises or the conduct of its business or from
any
activity performed or permitted by Tenant in or about the Premises, the Building
or any part of the Project during the Term or prior to the Rent Commencement
Date if Tenant has been provided access to the Premises, the Building or
any
part of the Project for any purpose, or arising from any breach or default
in
the performance of any obligation on Tenant’s part to be performed under the
terms of this Lease, or arising from Tenant’s use of the Building Services in
excess of their capacity or arising from any other act, neglect, fault or
omission of Tenant or any of its officers, agents, directors, contractors,
employees, licensees or invitees. As a material part of the consideration
to the
Landlord for entering into this Lease, Tenant hereby assumes all risk of
and
releases, discharges and holds harmless Landlord from and against any and
all
liability to Tenant for damage to property or injury to persons in, upon
or
about the Premises from any cause whatsoever except that which is intentionally
caused by Landlord’s acts or omissions or by the gross negligence of Landlord;
provided, however, that nothing contained in this Section 16.1 shall limit
Tenant’s rights to pursue any claim whatsoever against Landlord to the extent
such claim would be covered by any insurance policy to be obtained and
maintained by Landlord pursuant to Article 11 above. Nothing in this Section
16.1 is intended to limit the mutual waiver set forth in Section 11.4 above.
16.2
Limitation
on Landlord’s Liability.
Except
as otherwise provided, in no event shall Landlord be liable to Tenant for
any
injury to any person in or about the Premises or damage to the Premises or
for
any loss, damage or injury to any property of Tenant therein or by any
malfunction of any utility or other equipment, installation or system, or
by the
rupture, leakage or overflow of any plumbing or other pipes, including without
limitation, water, steam and refrigeration lines, sprinklers, tanks, drains,
drinking fountains or similar cause in, about or upon the Premises, the Building
or any other portion of the Project unless such loss, damage or injury is
caused
by the negligence of Landlord, provided, however, that Landlord shall be
liable
in the event of Landlord’s intentional misconduct or gross negligence. Except as
otherwise provided, none of the shareholders, officers, employees, agents,
partners or affiliates of Landlord shall be responsible for any of the
liabilities, obligations or agreements of Landlord under this
Lease.
17. Sale
by Landlord.
In the
event of any sale or other transfer of Landlord’s interest in the Building, the
Project, or both, other than a transfer for security purposes only, Landlord
shall be automatically relieved of any and all obligations and liabilities
on
the part of Landlord accruing from and after the date of such transfer.
Notwithstanding the following in the event of a sale the new owner shall
assume
all lease obligations under this Lease.
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18. Subordination.
18.1
Subordination.
This
Lease is subject and subordinate to all mortgages, trust deeds, ground leases,
or other encumbrances (the “Underlying Mortgages”) which may now or hereafter be
executed affecting the Project and/or the Building and to all renewals,
modifications, consolidations, replacements and extensions of any such
Underlying Mortgages. This clause shall be self-operative and no further
instrument of subordination need be required by any mortgagee, ground lessor
or
beneficiary, affecting any Underlying Mortgage in order to make such
subordination effective. Tenant, however, shall execute, within ten (10)
days
following a written request therefore, any certificate or document that Landlord
may request to effectuate, evidence or confirm such subordination, and failure
to do so shall be a material breach of this Lease.
18.2
Attornment.
If
Landlord’s interest in the Building is sold or conveyed upon the exercise of any
remedy provided for in any Underlying Mortgage, or otherwise by operation
of
law: (a) this Lease will not be affected in any way, and Tenant will attorn
to
and recognize the new owner as Tenant’s Landlord under this Lease, and Tenant
will confirm such attornment in writing within ten (10) days after written
request (Tenant’s failure to do so will constitute a material breach of this
Lease); and (b) the new owner shall not be (i) liable for any act or omission
of
Landlord under this Lease occurring prior to such sale or conveyance, (ii)
subject to any offset, abatement or reduction of rent because of any default
of
Landlord under this Lease occurring prior to such sale or conveyance, or
(iii)
liable for the return of any security deposit paid by Tenant except to the
extent that the security deposit has actually been paid to such person or
entity.
18.3
Notice
from Tenant.
Tenant
shall give written notice to the holder of any Underlying Mortgage whose
name
and address have, if any, been previously furnished to Tenant of any act
or
omission by Landlord which Tenant asserts as giving Tenant the right to
terminate this Lease or to claim a partial or total eviction or any other
right
or remedy under this Lease or provided by law. Tenant further agrees that
if
Landlord shall have failed to cure any default within the time period provided
for in this Lease, then the holder of any Underlying Mortgage shall have
an
additional sixty (60) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such sixty (60) days such holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including, but not
limited
to commencement of foreclosure proceedings, if necessary to effect such cure),
in which event this Lease shall not be terminated while such remedies are
being
so diligently pursued. Landlord shall send Tenant written notice, as soon
as
practicable, disclosing the name and address of the holder of the Underlying
Mortgage, as well as any other information Landlord deems reasonably necessary.
19. Estoppel
Certificates.
Tenant
shall at any time and from time to time upon not less than ten (10) days’ prior
notice by Landlord, execute, acknowledge and deliver to Landlord a statement
in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and
effect
as modified and stating the modifications), the dates to which the Basic
Rent,
Additional Rent and other charges have been paid in advance, if any, stating
whether or not to the best knowledge of Tenant, Landlord is in default in
the
performance of any covenant, agreement or condition contained in this Lease
and,
if so, specifying each such default of which Tenant may have knowledge and
containing any other information and certifications which reasonably may
be
requested by Landlord or the holder of any Underlying Mortgage. Any such
statement delivered pursuant to this Article 19 may be relied upon by any
prospective purchaser of the fee of the Building or the Project or any
mortgagee, ground lessor or other like encumbrance thereof or any assignee
of
any such encumbrance upon the Building or the Project.
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20. Surrender
of Premises and Removal of Property.
20.1 No
Merger.
There
shall be no merger of the leasehold estate hereby created with the fee estate
in
the Premises or any part thereof if the same person acquires or holds, directly
or indirectly, this Lease or any interest in this Lease and the fee estate
in
the leasehold Premises or any interest in such fee estate.
20.2
Surrender
of Premises.
Except
as otherwise provided herein, upon the expiration of the Term, or upon any
earlier termination hereof, Tenant shall quit and surrender possession of
the
Premises to Landlord in as good order and condition as the Premises are now
or
hereafter may be improved by Landlord or Tenant, reasonable wear and repairs
which are Landlord’s obligation excepted, and shall, without expense to
Landlord, remove or cause to be removed from the Premises, all debris and
rubbish, all furniture (excluding Landlord’s Furniture as defined in Section 34
below), equipment, business and trade fixtures, free-standing cabinet work,
movable partitioning and other articles of personal property owned by Tenant
or
installed or placed by Tenant at its expense in the Premises, and all similar
articles of any other persons claiming under Tenant unless Landlord exercises
its option to have any subleases or sub-tenancies assigned to Landlord, and
Tenant shall repair all damage to the Premises resulting from such removal.
Nothing in this Section 20.2 shall supersede the provisions set forth in
Section 8.2 above.
20.3
Disposal
of Property.
In the
event of the expiration of this Lease or other re-entry of the Premises by
Landlord as provided in this Lease, any property of Tenant not removed by
Tenant
upon the expiration of the term of this Lease, or within five (5) days after
termination hereof by reason of Tenant’s default, shall be considered abandoned
and Landlord may remove any or all of such property and dispose of the same
in
any manner or store the same in a public warehouse or elsewhere for the account
of, and at the expense and risk of, Tenant. If Tenant shall fail to pay the
costs of storing any such property after it has been stored for a period
of
thirty (30) days or more, Landlord may, after giving Tenant ten (10) days
advance written notice, sell any or all of such property at public or private
sale, in such manner and at such places as Landlord, in its sole discretion,
may
deem proper, without notice to or demand upon Tenant. In the event of such
sale,
Landlord shall apply the proceeds thereof, first, to the cost and expense
of
sale, including reasonable attorneys’ fees; second, to the repayment of the cost
of removal and storage; third, to the repayment of any other sums which may
then
or thereafter be due to Landlord from Tenant under any of the terms of this
Lease; and fourth, the balance, if any, to Tenant.
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20.4
Notice
of Expiration of Term.
Tenant
shall give written notice to Landlord of Tenant’s intention to surrender the
Premises upon the expiration of the Term, which notice shall have been received
by Landlord at least six (6) months before the expiration of the Term. Nothing
contained herein, however, shall be construed as an extension of the Term
or as
consent of Landlord to any holding over by Tenant in the event said notice
is
not given in a timely fashion.
21. Holding
Over.
In the
event Tenant holds over after the expiration or termination of the Term,
with or
without the express or implied consent of Landlord, such tenancy shall be
a
tenancy at sufferance only, and the Term shall not be subject to any renewal
or
extension whatsoever. Tenant’s tenancy at sufferance under this Section 21 shall
be subject to each and every term, covenant and agreement contained herein,
to
the extent such term, covenant and agreement is not inconsistent with the
provisions of this Section 21; provided, however, that Tenant shall pay Basic
Rent during any holding over period in an amount equal to the greater of
two
hundred percent (200%) of the fair market value rental rate of the Premises
or
two hundred (200%) of the Basic Rent payable immediately preceding the
expiration or termination of the Term. Nothing in this Article 21 shall be
construed as a consent by Landlord to any holding over by Tenant and Landlord
expressly reserves the right to require Tenant to surrender possession of
the
Premises upon the expiration or termination hereof and to assert any remedy
in
law or equity to evict Tenant or collect damages in connection with such
holding
over.
22. Defaults
and Remedies.
22.1
Defaults
by Tenant.
The
occurrence of any of the following shall constitute a material default and
breach of this Lease by Tenant:
a. The
failure by Tenant to pay the rent or make any other payment required to be
made
by Tenant hereunder within five (5) calendar days following the date the
same
became due.
b. The
abandonment or vacation of the Premises by Tenant.
c. The
failure by Tenant to observe or perform the provisions of Articles 2 and
8 where
such failure continues and is not remedied within five (5) days after receipt
of
written notice thereof from Landlord to Tenant.
d. The
failure by Tenant to provide estoppel certificates as herein
provided.
e. The
failure by Tenant to observe or perform any other provision of this Lease,
including Rules and Regulations that may be adopted from time to time pursuant
to Article 28 and such failure continues for twenty (20) days after receipt
of
written notice thereof by Landlord to Tenant; provided, however, that if
the
nature of such default is such that the same cannot reasonably be cured within
such twenty (20) day period, Tenant shall not be deemed to be in default
if
Tenant shall within such period commence such cure and thereafter diligently
prosecute the same to completion.
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f. Any
action taken by or against Tenant pursuant to any statute pertaining to
bankruptcy or insolvency or the reorganization of Tenant (unless, in the
case of
a petition filed against Tenant, the same is dismissed within thirty (30)
days);
the making by Tenant of any general assignment for the benefit of creditors;
the
appointment of a trustee or receiver to take possession of all or any portion
of
Tenant’s assets located at the Premises or of Tenant’s interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution, or other judicial seizure of all or any portion of
Tenant’s assets located at the Premises or of Tenant’s interest in this Lease,
where such seizure is not discharged within thirty (30) days.
g. Tenant
shall, except as otherwise provided herein, fail to take delivery of Premises
as
of the Rent Commencement Date.
h. In
addition to the events constituting a default and breach of the Lease by
Tenant
as set forth herein, if within any twelve (12) consecutive month period during
the term of the Lease Tenant shall have failed to perform any obligation
required of Tenant hereunder, or has been in breach for any reason under
the
Lease more than one (1) time, and Landlord, because of any such failure and/or
breach, shall have served upon Tenant within said twelve (12) consecutive
month
period two (2) or more written notices of any such failure or breach, then
any
subsequent failure or breach shall be deemed a noncurable default, without
requirement of notice or opportunity to cure, and Landlord shall be immediately
entitled to exercise any and all rights, remedies or elections specified
below
otherwise available at law or in equity.
i. Tenant’s
failure to vacate and surrender the Premises as required by this Lease upon
the
expiration of the Term or termination of this Lease.
j. The
filing of a petition by or against Tenant (i) in any bankruptcy or other
insolvency proceeding; (ii) seeking relief under any state or federal
debtor relief law; (iii) for the appointment of a liquidator or receiver
for substantially all or all of Tenant’s property or for Tenant’s interest in
this Lease; or (iv) for the reorganization or modification of Tenant’s
capital structure; provided, however, that if such a petition is filed against
Tenant, then such filing shall not constitute a default unless Tenant fails
to
have the proceedings initiated by such petition dismissed within ninety (90)
days after the filing thereof.
Any
notice given by Landlord to Tenant under this Section 22.1 shall be in lieu
of,
and not in addition to, any notice required under Nevada law.
22.2 Landlord’s
Remedies.
a. In
the
event of any such default by Tenant, then, in addition to any other remedies
available to Landlord at law or in equity, Tenant shall repay to Landlord
all
free Base Rent and Landlord shall have the immediate option to terminate
this
Lease and all rights of Tenant hereunder by giving Tenant prior written notice
of its election to terminate at least five (5) business in advance of such
termination date. In the event Landlord shall elect to so terminate this
Lease,
Landlord may recover from Tenant:
(i)
the
worth
at the time of award of any unpaid rent which has been earned at the time
of
such termination; plus
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(ii)
the
worth
at the time of award of any amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount
of such
rental loss that Tenant proves could have been reasonably avoided;
plus
(iii)
the
worth
at the time of award of the amount by which the unpaid rent for the balance
of
the term after the time of the award exceeds the amount of such rental loss
that
Tenant proves could be reasonably avoided; plus
(iv)
any
other
amount necessary to compensate Landlord for all the detriment proximately
caused
by Tenant’s failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result there from; and
(v)
at
Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.
b. All
“rent” (as defined in Section 4.4) shall be computed on the basis on the monthly
amount thereof payable on the date of Tenant’s default, as the same are to be
adjusted thereafter as contemplated by this Lease. As used in paragraphs
(i) and
(ii) above, the “worth at the time of award” is computed by allowing interest in
the per annum amount equal to the prime rate of interest or other equivalent
reference rate from time to time announced by the Bank of America National
Trust
and Savings Association (the “Reference Rate”) plus one percent (1%), but in no
event in excess of the maximum interest rate permitted by law. As used in
paragraph (iii) above, the “worth at the time of award” is computed by
discounting such amount at the discount rate of the Federal Reserve Bank
of San
Francisco at the time of award plus one percent (1%).
c. In
the
event of any such default by Tenant, Landlord shall also have the right,
with or
without terminating this Lease, to re-enter the Premises and remove all persons
and property there from by summary proceedings or otherwise; such property
may
be removed and stored in a public warehouse or elsewhere at the cost of and
for
the account of Tenant.
d. In
the
event of the vacation or abandonment of the Premises by Tenant, or in the
event
that Landlord elects to re-enter as provided in Paragraph (c) above or takes
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, and if Landlord does not elect to terminate this
Lease,
then Landlord may from time to time, without terminating this Lease, either
recover all rent as it becomes due or relet the Premises or any part thereof
for
such term or terms and at such rent and upon such other terms and conditions
as
Landlord, in its sole discretion, may deem advisable, with the right to make
alterations and repairs to the Premises. If Landlord does not terminate this
Lease and if Tenant requests Landlord’s consent to an Assignment of this Lease
or a Sublease of the Premises at such time as Tenant is in default, Landlord
may
not unreasonably withhold its consent to such Assignment or
Sublease.
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e. In
the
event that Landlord shall elect to so relet as provided in Paragraph (d)
above,
then rentals received by Landlord from such reletting shall be applied: first,
to the payment of any indebtedness other than rent due hereunder from Tenant
to
Landlord; second, to the payment of any cost of such reletting; third, to
the
payment of the cost of any alterations and repairs to the Premises; fourth,
to
the payment of rent due and unpaid hereunder; and the remainder, if any,
shall
be held by Landlord and applied in payment of future rent as the same may
become
due and payable hereunder. Should that portion of such rentals received from
such reletting during any month, which is applied to the payment of rent
hereunder, be less than the rent payable during that month by Tenant hereunder,
then Tenant shall pay such deficiency to Landlord. Such deficiency shall
be
calculated and paid monthly. Tenant shall also pay to Landlord, as soon as
ascertained, any and all reasonable costs and expenses incurred by Landlord
in
such reletting or in making such alterations and repairs not covered by the
rentals received from such reletting.
22.3
Re-Entry
Not Termination.
No
re-entry or taking possession of the Premises by Landlord pursuant to this
Article 22 shall be construed as an election to terminate this Lease unless
a
written notice of such intention is given to Tenant or unless the termination
thereof is decreed by a court of competent jurisdiction. Notwithstanding
any
reletting without termination by Landlord because of any default of Tenant,
Landlord may at any time after such reletting elect to terminate this Lease
for
any such default.
22.4
Definition
of Tenant.
As used
in this Article 22 and in Article 23, the term “Tenant” shall be deemed to
include all persons or entities named as Tenant under this Lease, or each
and
every one of them. If any of the obligations of Tenant hereunder is guaranteed
by another person or entity, the term “Tenant” shall be deemed to include all of
such guarantors and any one or more of such guarantors. If this Lease has
been
assigned, the term “Tenant,” as used in this Article 22 and in Article 23 shall
be deemed to include both the assignee and the assignor.
23. Bankruptcy.
If,
at
any time prior to the Rent Commencement Date, any action is taken by or against
Tenant in any court pursuant to any statute pertaining to bankruptcy or
insolvency or the reorganization of Tenant, Tenant makes any general assignment
for the benefit of creditors, a trustee or receiver is appointed to take
possession of substantially all of Tenant’s assets or of Tenant’s interest in
this Lease, or there is an attachment, execution or other judicial seizure
of
substantially all of Tenant’s assets or of Tenant’s interest in this Lease, then
this Lease shall ipso facto
be
canceled and terminated and no further force or effect. In such event, neither
Tenant nor any person claiming through or under Tenant or by virtue of any
statute or of any order of any court shall be entitled to possession of the
Premises or any interest in this Lease and Landlord shall, in addition to
any
other rights and remedies under this Lease, be entitled to retain any rent,
security deposit or other monies received by Landlord from Tenant as liquidated
damages.
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24. Interest
on Tenant’s Obligations; Late Charges.
24.1
Interest.
Any
amount due from Tenant to Landlord which is not paid when due shall bear
interest at the lesser of ten percent (10%) in excess of the Reference Rate
(as
defined in Paragraph 22.2(b) above) or the maximum rate per annum which Landlord
is permitted by law to charge, from the date such payment is due until paid,
but
the payment of such interest shall not excuse or cure any default by Tenant
under this Lease.
24.2
Late
Charge.
In the
event Tenant is more than five (5) days late in paying any installment of
rent
due under this Lease, Tenant shall pay Landlord a late charge equal to ten
percent (10%) of the delinquent installment of rent plus a fee of Twenty
Dollars
($20.00) per day until such installment of rent is paid. The parties agree
that
the amount of such late charge represents a reasonable estimate of the cost
and
expense that would be incurred by Landlord in processing each delinquent
payment
of rent by Tenant and that such late charge shall be paid to Landlord as
liquidated damages for each delinquent payment, but the payment of such late
charge shall not excuse or cure any default by Tenant under this Lease. The
parties further agree that the payment of late charges and the payment of
interest provided for in Section 24.1 above are distinct and separate from
one
another in that the payment of interest is to compensate Landlord for the
use of
Landlord’s money by Tenant, while the payment of a late charge is to compensate
Landlord for the additional administrative expense incurred by Landlord in
handling and processing delinquent payments.
25. Quiet
Enjoyment.
Tenant,
upon the paying of all rent hereunder and performing each of the covenants,
agreements and conditions of this Lease required to be performed by Tenant,
shall lawfully and quietly hold, occupy and enjoy the Premises during the
Term
without hindrance or molestation of anyone lawfully claiming by, through
or
under Landlord, subject, however, to the provisions set forth in this
Lease.
26. Examination
of Lease.
The
submission of this instrument for examination or signature by Tenant, Tenant’s
agents or attorneys, does not constitute a reservation of, or an option to
lease, and this instrument shall not be effective or binding as a lease or
otherwise until its execution and delivery by both Landlord and
Tenant.
27. Brokers.
Each of
the parties hereto represent and warrant to the other that it has not had
any
contact or dealings with any person or real estate broker that would give
rise
to the payment of any fee or brokerage commission, in connection with this
Lease, and each party hereby agrees to indemnify, hold harmless and defend
the
other party from and against any liability with respect to any fee or brokerage
commission in connection with this Lease.
28. Rules
and Regulations.
The
Rules and Regulations attached hereto as Exhibit E
are
hereby incorporated herein and made a part of this Lease. Tenant agrees to
abide
by and comply with each and every one of said Rules and Regulations and any
reasonable amendments, modifications and/or additions thereto as may hereafter
be adopted by Landlord for the safety, care, security, good order and
cleanliness of the Premises, the Building or any other portion of the Project.
Landlord shall have the right to reasonably amend, modify or add to the Rules
and Regulations in its sole discretion. Landlord shall not be liable to Tenant
for any violation of any of the Rules and Regulations by any other tenant
or for
the failure of Landlord to enforce any of the Rules and
Regulations.
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29. Disclosure
Pursuant to SB 343.
SECTION
4 OF SENATE ▇▇▇▇ 343, 73RD SESSION OF THE NEVADA LEGISLATURE (“SB
343”),
WHICH
AMENDS NRS CHAPTER
108,
IMPOSES
CERTAIN REQUIREMENTS ON TENANT WITH RESPECT TO CONSTRUCTION BY TENANT AT
THE
PREMISES, INCLUDING, WITHOUT LIMITATION, THE TENANT IMPROVEMENTS. THIS SHALL
SERVE AS LANDLORD’S NOTICE TO TENANT OF SB 343 AND TENANT’S OBLIGATIONS
THEREUNDER FOR ALL PURPOSES. LANDLORD MAY, BUT SHALL NOT BE REQUIRED TO,
(i)
RECORD A WRITTEN NOTICE OF WAIVER OF THE OWNERS’ RIGHTS SET FORTH IN NRS 108.234
WITH THE ▇▇▇▇▇ COUNTY RECORDER PRIOR TO THE COMMENCEMENT OF CONSTRUCTION
OF
TENANT’S IMPROVEMENTS IN ACCORDANCE WITH SECTION 4.5. OF SB 343; (ii) COMPLY
WITH THE NOTICE REQUIREMENTS TO THE PRIME CONTRACTOR AND OTHER LIEN CLAIMANTS
IN
ACCORDANCE WITH SECTION 4.5. OF SB 343; AND (iii) COMPLY WITH ANY OTHER
STATUTORY REQUIREMENTS OF LANDLORD IN CONNECTION WITH ITEMS (ii) AND (iii)
ABOVE.
30. Relocation
of Premises Landlord
shall have the right, upon sixty (60) days notice to Tenant and subject to
Tenant's written approval, to relocate Tenant in other space ("Substitute
Space'') in the Project. Such Substitute Space shall contain approximately
as
many rentable square feet as the Premises, have same exposure to street traffic
visibility and conditions. The base minimum rent per square foot shall be
the
same for the Substitute Space as for the Premises under the terms of Article
1
of this Lease. Landlord shall pay expenses reasonably incurred by Tenant
in
moving to the Substitute Space, including moving expenses and expenses in
connection with change of telephone and stationary, and any necessary tenant
improvements to put substitute space into the same condition as existing
space.
Landlord agrees to furnish the Substitute Space with Tenant Improvements
comparable in quality and monthly minimum rent to those in the
Premises.
31. General
Provisions.
31.1
No
Waiver.
No
waiver by either party of any breach of any term, provision, covenant or
condition contained in this Lease, or the failure of either party to insist
on
the strict performance by the other, shall be deemed to be a waiver of such
term, provision, covenant or condition as to any subsequent breach thereof
or of
any other term, covenant or condition contained in this Lease. The acceptance
of
rents hereunder by Landlord shall not be deemed to be a waiver of any breach
or
default by Tenant of any term, provision, covenant or condition herein,
regardless of Landlord’s knowledge of such breach or default at the time of
acceptance of rent.
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31.2
Landlord’s
Right to Perform.
Except
as otherwise provided herein, 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 expense and without abatement of rent. Except as otherwise
provided herein, if Tenant shall fail to observe and perform any covenant,
condition, provision or agreement contained in this Lease or shall fail to
perform any other act required to be performed by Tenant, Landlord may, upon
notice to Tenant, without obligation, and without waiving or releasing Tenant
from any default or obligations of Tenant, make any such payment or perform
any
such obligation on Tenant’s part to be performed. All sums so paid by Landlord
and all costs incurred by Landlord, including attorneys’ fees, together with
interest thereon in a per annum amount equal to ten percent (10%) in excess
of
the Reference Rate, which shall begin to accrue on the date such default
occurs.
31.3
Terms;
Headings.
The
words “Landlord”
and
“Tenant”
as used
herein shall include any of their respective officers, agents, employees,
contractors, licensees or invitees. The words used in neuter gender shall
include the masculine and feminine and words in the masculine or feminine
gender
include the neuter. The words in the plural shall include the singular and
vice
versa. If there is more than one tenant, the obligations hereunder imposed
upon
Tenant shall be joint and several. The headings or titles of this Lease shall
have no effect upon the construction or interpretation of any part
hereof.
31.4
Entire
Agreement.
This
instrument along with any exhibits and attachments or other documents affixed
hereto, or referred to herein, constitutes the entire and exclusive agreement
between Landlord and Tenant with respect to matters contained herein. This
instrument and said exhibits and attachments and other documents may be altered,
amended, modified or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant hereby agree that the terms hereof
supersede all prior or contemporaneous oral understandings, agreements or
negotiations relative to the matters set fort herein.
31.5
Successors
and Assigns.
Subject
to the provisions of Article 14 relating to Assignment and Sublease, this
Lease
shall bind and inure to the benefit of the respective heirs, executors,
administrators, assigns and successors the parties hereto.
31.6
Notices.
All
notices, consents, approvals, requests, demands and other communications
(collectively “notices”) which Landlord or Tenant are required or desire to
serve upon, or deliver to, the other shall be in writing and mailed postage
prepaid by certified or registered mail, return receipt requested, or by
personal delivery, to the appropriate address indicated below, or at such
other
place or places as either Landlord or Tenant may, from time to time, designate
in a written notice given to the other. If the term “Tenant” in this Lease
refers to more than one person or entity, Landlord shall be required to make
service or delivery, as aforesaid, to any one of said persons or entities
only.
Notices shall be deemed sufficiently served or given at the time of personal
delivery or three (3) days after the date of mailing thereof; provided, however,
that any notice of default to Tenant under Article 22 shall be hand-delivered
to
the Premises. Any notice, request, communication or demand by Tenant to Landlord
shall be addressed to the Landlord at ▇▇▇▇ ▇. ▇▇▇▇▇▇, #▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ and with a copy to ▇▇▇ ▇▇▇▇▇▇, Esq., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and if requested in writing by the Landlord, given
or
served simultaneously to the Landlord’s mortgagee at the address specified in
such request. Any notice, request, communication or demand by Landlord to
Tenant
shall be addressed to ▇▇▇▇▇.▇▇▇, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (and after the Rent Commencement Date, to the Premises),
with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Rejection or other refusal to accept a notice, request,
communication or demand or the inability to deliver the same because of a
changed address of which no notice was given shall be deemed to be receipt
of
the notice, request, communication or demand sent.
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30
31.7
Severability.
If any
term or provision of this Lease, the deletion of which would not adversely
affect the receipt of any material benefit by either party hereunder, shall
be
held invalid or unenforceable to any extent, the remaining terms, conditions
and
covenants of this Lease shall not be affected thereby and each of said terms,
covenants and conditions shall be valid and enforceable to the fullest extent
permitted by law.
31.8
Time
of Essence.
Time is
of the essence of this Lease and each provision hereof in which time of
performance is established.
31.9
Governing
Law.
This
Lease shall be governed by, interpreted and construed in accordance with
the
laws of the State of Nevada.
31.10
Attorneys’
Fees.
If any
action or proceeding is brought by Landlord or Tenant to enforce its respective
rights under this Lease, the unsuccessful party therein shall pay all costs
incurred by the prevailing party therein, including reasonable attorneys’ fees
to be fixed by the court.
31.11
Force
Majeure.
Neither
party hereto shall be liable for any failure to comply or delay in complying
with its obligations hereunder if such failure or delay is due to acts of
God,
inability to obtain labor, strikes, lockouts, lack of materials, governmental
restrictions, enemy actions, civil commotion, fire, unavoidable casualty
or
other similar causes beyond such party’s reasonable control (all of which events
are herein referred to as force majeure events). It is expressly agreed that
neither party shall be obliged to settle any strike to avoid a force majeure
event from continuing.
31.12
Counterparts;
Signature by Facsimile.
This
Lease agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same instrument.
This
Lease
agreement may be executed by facsimile signature and any party receiving
an
instrument bearing a facsimile signature may rely on such facsimile signature
and the facsimile copy shall be binding on the party that
signed
it.
31.13
Incorporation
by Reference.
All
exhibits attached hereto are herein incorporated herein and expressly made
a
part hereof; provided, however, that in the case of a conflict between the
terms
of this Lease and the terms of such exhibits, the terms of this Lease shall
control.
32. Guaranty
of Lease.
The
obligations of Tenant under this Lease shall be guaranteed by ▇▇▇▇▇.▇▇▇,
Inc.
(“Guarantor”).
Concurrently with the execution of this Lease by Landlord and Tenant, Guarantor
shall execute and deliver to Landlord a guaranty in the form attached hereto
as
Exhibit
F.
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31
33. Confidentiality.
Tenant
agrees to keep all of the terms and conditions of this Lease confidential.
Tenant also agrees not to solicit any terms and conditions of the Leases
of
other Tenants in this or any other project owned or managed by the Landlord
or
any of the Landlord’s affiliates. Any violation of this provision shall be a
default under this Lease. _______ (Tenants Initials)
34. Landlord’s
Furniture. Landlord
shall, during the Term of this Lease, allow Tenant the use of the furniture
as
described and shown on Exhibit
H
attached
hereto (“Landlord’s
Furniture”);
provided, however, that Tenant shall be responsible for the maintenance thereof
and the cost to repair and replace such furniture in the event of any damage
caused thereto due to the negligence of Tenant, normal wear excepted.
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32
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
set
forth in the first paragraph above.
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LANDLORD:
▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada Limited Liability Company
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TENANT:
▇▇▇▇▇.▇▇▇,
Inc.,
a
Nevada corporation
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STATE
OF NEVADA
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)
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SS
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COUNTY
OF ▇▇▇▇▇
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This
instrument was acknowledged before me on the ____day of _____________, 20__,
by
__________________________ as authorized signer for ▇▇▇▇▇.▇▇▇, Inc.
________________________________
Notary
Public
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33
EXHIBIT
A
PREMISES
Tenant
has received a copy of his floor plan for his premises
Tenant’s
Initials _____________
Landlord’s
Initials____________
▇
▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ / ▇▇▇
#177-24-501-014
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2
EXHIBIT
C
MEMORANDUM
OF RENT COMMENCEMENT DATE
▇▇▇▇▇▇▇
Pecos I-215 II, LLC, a Nevada limited-liability company (“Owner/Lessor”),
and
▇▇▇▇▇.▇▇▇, Inc.,
a
Nevada corporation (“Tenant”) hereby covenant, represent and warrant to each
other that the premises, known as ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇, in the Center, consists of Four Thousand One Hundred Forty Four
(4,144)square feet of Usable Space,Four Thousand Five Hundred Sixty (4,560)
square feet of Actual Space, andFour Thousand Five Hundred Sixty (4,560)
square
feet of Rentable Space (as defined in the Lease) for purposes of Section
1.1 of
the Lease (defined below).
1.
Tenant
has leased the premises pursuant to a lease (“Lease”) dated December 28, 2007
entered into between the undersigned Tenant and Owner/Lessor, and hereby
acknowledges that it has received a full and complete copy of the fully executed
Lease Agreement.
2.
The
Lease
is presently in full force and effect.
3.
The
Lease
constitutes the entire agreement between Owner/Lessor and Tenant, and there
have
been no amendments, written or oral, to such agreement.
4.
All
improvements required under the terms of the Lease to be made by Owner/Lessor
have been satisfactorily completed and have been accepted by the undersigned.
(EXCEPTIONS TO BE STATED ON A SEPARATE ATTACHED SHEET HERETO, EXECUTED AND
DATED)
5.
Tenant
hereby acknowledges that the Delivery Date is _____________ and that it has,
of
the date of this Memorandum, received the keys thereto.
6.
The
Rent
Commencement Date, as defined in the Lease, is January 2, 2008. The Lease
is set
to expire, without considering the exercise of any extensions thereto, on
December 31,
2011.
7.
The
amount of prepaid rent is Ten Thousand Three Hundred Five and 60/100 Dollars
($10,305.60) for the month of January 2008.
8.
The
amount of the Security Deposit paid under the terms of the Lease is Fifteen
Thousand Four Hundred Fifty Eight and 40/100 Dollars ($15,458.40), receipt
of
which is hereby acknowledged by Owner/Lessor.
9.
Tenant
has provided Owner/Lessor with the required certificate(s) of insurance on
the
premises pursuant to Article 11 of the Lease.
Tenant’s
Initials _____________
Landlord’s
Initials____________
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
set
forth in the first paragraph above.
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LANDLORD:
▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada Limited Liability Company
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TENANT:
▇▇▇▇▇.▇▇▇,
Inc.,
a
Nevada corporation
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2
EXHIBIT
D
TENANT’S
WORK LETTER
This
Work
Letter is executed concurrently with the lease dated December
28, 2007
by and
between ▇▇▇▇▇▇▇
Pecos I-215 II, LLC, a
Nevada
Limited Liability Company, as Landlord, and ▇▇▇▇▇.▇▇▇,
Inc.,
a
Nevada corporation, as
Tenant
(“Lease”), covering the Premises (as defined in the Lease). Capitalized terms
not otherwise defined herein shall have their definition as set forth in
the
Lease.
1.
Notwithstanding
anything to the contrary contained in this Lease, Landlord shall have delivered
the Premises in “as is” condition as of the Delivery Date with the improvements
as shown on Exhibit
A
attached
hereto (“Landlord’s
Work”).
In
the event Tenant elects to construct additional improvements (“Tenant
Improvements”) within the Premises, Tenant shall, subject to prior approval by
Landlord, construct such additional improvements in accordance with the
provisions of this Exhibit
D.
All
items
provided by Landlord shall be designed and constructed by Landlord in its
sole
discretion. Any items not listed above shall be the responsibility of the
Tenant
to complete.
2.
Tenant’s
Plans and Specifications.
2.1
Submission
of Plans and Specifications by Tenant.
Tenant
shall submit to Landlord for Landlord’s approval, complete plans (full size and
11x17 to be signed by Tenant and attached to Lease) and specifications for
the
layout, improvement and finish of the Premises consistent with the design
and
construction of the Premises shell, including partition plans, floor and
wall
finish plans, reflected ceiling plans, power, telephone communications and
data
plans, construction detail sheets and millwork detail plans, showing the
location of partitions, light fixtures, electrical outlets, telephone outlets,
doors, equipment specifications (including weight specifications and cooling
requirements) and power requirements (including voltage, amps, phase, and
special plugs and connections), wall finishes, floor coverings, millwork
and
other Tenant Improvements (as defined in Section 2.3) required by Tenant
(collectively “Tenants Plan’s”). Plans shall conform to Landlord’s design and
building standard criteria. Any deviation must be approved by Landlord in
writing and Landlord reserves the right to increase Tenant’s Security Deposit to
insure Premises are returned to normal after Tenant vacates Premises. Tenant
shall be required to insure that, if the Building is then occupied by other
tenants, all excessively loud construction shall be performed prior to 9:00
a.m.
or after 5:00 p.m. Monday Friday. Contractor agrees to pay Landlord $100.00
per
day for not complying with the following; Contractor shall provide a trash
container, maintain and keep clean the work area and clean up after each
trade
(daily) through out the course of the construction of all Tenant Improvements.
2.2
Approval
by Landlord.
Tenant’s Plans shall be subject to Landlord’s approval, which approval shall not
be unreasonably withheld or delayed. If Landlord disapproves Tenant’s Plans or
any portion thereof, Landlord shall promptly notify Tenant thereof and of
the
revisions that Landlord reasonably requires in order to obtain Landlord’s
approval. As promptly as reasonably possible thereafter, but in no event
later
than ten (10) days after Landlord’s notice, Tenant shall submit to Landlord
plans and specifications incorporating the revisions required by Landlord.
Said
revisions shall be subject to Landlord’s approval, which shall not be
unreasonably withheld; if Landlord disapproves revised Tenant’s Plans, Landlord
shall notify Tenant thereof and of the further revisions Landlord reasonably
requires in order to obtain Landlord’s approval. The foregoing process shall be
repeated until Landlord finally approves all of Tenant’s Plans required for the
Tenant Improvements of the Premises, so that Landlord and Tenant have an
agreed
upon set of final plans and specifications. The final plans and specifications
approved by Landlord shall be referred to as the “Final
Plans.”
Approval by Landlord shall not be deemed to be a representation by Landlord
as
to the adequacy or correctness of the design of the Tenant
Improvements.
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3
2.3
Construction
of and Payment for Tenant Improvements.
All
improvements that are set forth in the Final Plans are referred to as “Tenant
Improvements” and, subject to Section 3 of this Letter, shall be at Tenant’s
sole cost and expense. Landlord shall pay to voucher on behalf of tenant
subject
to section 3.2 of this Lease as described herewith: Contractor shall comply
with
the below Tenant Improvement Checklist. Contractor is entitled to two (2)
draws
through Landlord’s voucher system. After 50% of the improvements are complete,
Contractor shall submit an invoice and lien releases for 50% of the original
contract amount. After the improvements are completed as per approved plans
with
Minimum Building Standards and the final inspection has been passed, Contractor
shall submit an invoice, lien releases, and “as-built” plans for the remaining
50% of the original contract amount. Landlord shall hold 10% of final invoice
for thirty (30) days after completion to ensure premises are completed, all
liens are released, and Tenant Improvement Checklist (Exhibit
D-1)
has
been completed.
2.4
As-Built
Plans.
Within
thirty (30) days after the occupancy of the Premises, or prior to final payment,
Tenant and or contractor shall submit to Landlord a set of (“As-Built”) plans
incorporating all changes and/or revisions that have been made subsequent
to the
submission of the Final Plans specified in Section 2.2.
Contractor shall provide an electronic plan in CAD format to the project’s
architect and to Landlord with verification of the location of all demising
walls in order to determine the final measurement by the Landlord and the
project’s architect. X_______
3. Tenant
Improvement Allowance.
Landlord shall give Tenant the Allowance (as defined in the Lease), which
shall
be subject to and applied in accordance with the terms and conditions set
forth
in Section 3.2 of the Lease.
4. Tenant
Improvements.
4.1
Tenant
Obligation.
Tenant,
at its sole expense, shall pay for the cost of all Tenant Improvements to
the
extent such cost exceeds the Allowance.
4.2 Payment
Reconciliation.
In the
event of any shortage in the amount of the cost of Tenant Improvements based
on
the actual costs of the construction of such improvements, the Tenant shall
immediately deposit funds with Landlord’s voucher control company in an amount
sufficient to pay for such costs. In the event that Tenant fails to pay for
such
costs, Landlord may, subject to any other remedies in this Lease, apply all
or
part of the Security Deposit held by Landlord under the Lease to the cost
of
Tenant Improvements and the Security Deposit shall, thereafter, be restored
as
provided in Section 4.5 of the Lease.
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4
5. Changes,
Additions, Remodels or Alterations.
If
Tenant shall request any change, addition, or alteration in the Final Plans
(a
“Change Order”), Tenant shall prepare and submit to Landlord plans,
specifications and permits with respect to such Change Order for Landlord’s
approval, which
shall not be unreasonably withheld or delayed. Any
such
Change Order shall be subject to the provisions of Sections 2.2 and 4 of
this
Letter. Neither Landlord nor the contractor shall proceed with the Change
Order
until Tenant has paid to Landlord or Landlord’s voucher control the additional
cost, if any, of the Tenant Improvements attributable to such Change
Order.
6. Default.
Any
default by Tenant and/or Tenant’s contactor under the terms of this Work Letter
shall constitute a default under the Lease to which this Work Letter is
attached, and shall entitle Landlord to exercise all
remedies
set forth therein.
7. Payment
and Performance Bond.
Tenant
shall post a bond or cause a bond to be posted to secure the performance
of any
general contractor engaged to construct the Tenant Improvements. Such bond
shall
be for an amount equal to 2.5% of the cost of constructing such Tenant
Improvements. Landlord reserves the right to hire a general contractor at
Tenants expense if the Tenant Improvements or punch-list items have not been
completed within thirty (30) days following the date set forth in the
construction contract for the construction of the Tenant Improvements as
the
contract completion date.
8. Licensed
Contractor.
In
addition to meeting the requirements set forth in Section 3.2 of the Lease,
Tenant shall cause Contractor to be a Nevada
Licensed Bonded and insured
(1
million Liability and 2 million aggregate), and on Landlords approved list.
Before commencing work, Contractor must submit a refundable security deposit
of
$3,000.00 to Landlord prior to commencing the construction of any of the
Tenant
Improvements, which shall applied towards fixing damages done by the Contractor,
his subcontractors, invitees, or guests. As a condition of reimbursement,
Contractor at
its
sole cost and expense
must
make any repairs to the Premises, the Building, or the Project, or reimburse
Landlord for the costs incurred by Landlord in making the same on Contractor’s
behalf, within five (5) calendar days following receipt of written notice
from
Landlord. The Contractor’s security deposit will be refunded upon completion of
work, Landlord’s inspection of premises, on-sites, and compliance with the
Tenant Improvement Checklist (attached as Exhibit
D-1)
and
Tenant Work Letter. Contractor must provide its own trash clean-up and removal
and must keep the exterior of the project free from litter and debris. Dumpsters
are not to be set on the property without the consent of the Landlord. Any
violation will cause the Landlord to hire a cleaning service at the Contractor’s
expense and include a fee of $250.00 for office administration. Contractor
must
protect the existing concrete, asphalt, and landscaping by placing plywood
sheets and plastic sheeting over areas where materials and equipment will
placed
or moved across. Patches are not acceptable replacement from section to section
(see
Landlord).
Before
commencing work, Contractor must submit a $400.00 inspection fee to Landlord
for
periodic inspections during the course of construction and for final inspection
of the premises and building exterior. Contractor
and Tenant must secure and lock all entrances to the Premises at all times
during the course of construction to avoid any damage, vandalism and/or
penetrations to other areas within the Building and Project of which the
Premises are apart. In the event Contractor and Tenant fail to secure the
Premises in the manner as required above, Contractor and Tenant shall
be liable to pay for the total cost and expense for all losses of property
and to repair any and all damage caused thereto prior to receiving any portion
of the
Allowance and Tenant Contribution as defined in Section 3.2 of the Lease.
X____________
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5
9. Subcontractor
List:
The
Contractor must provide, in writing, a complete list of all of the licensed
subcontractors used in the construction of the suite, including their names
and
telephone numbers, with copies to the tenant and the owner/manager of the
Building.
10. Withholding
of Payments:
Notwithstanding anything in this Work Letter to the contrary, Landlord reserves
the right to withhold, or to instruct the third party voucher control system
to
withhold, any and all payments to be made to or for the construction of the
Tenant Improvements, including payments from the funds deposited by Tenant
with
Landlord or such third party voucher control system pursuant to Section 3.2
of the Lease so to ensure the proper construction of such Tenant Improvements
and the removal and repair, at the cost and expense of Tenant and Contractor,
from the Premises, the Building, the Project, and other improvements of all
damage, debris, rubbish, equipment and other similar items.
11. Notices:
Contractor must post a Notice of Non-Responsibility in several conspicuous
areas, both inside and outside of the Tenant’s suites, in full view of all
subcontractors.
12. Penalty:
Unless
otherwise agreed to, Contractor shall substantially complete the construction
of
the Premises on or before the Rent Commencement Date (as defined in the Lease).
Failure to complete said work shall cause the contractor to be penalized
by the
amount of Base Rent and Operating Expenses due from the Tenant to the Landlord
on a per diem basis until the Premises are complete and a Certificate of
Occupancy is issued. The Penalty start-period may be extended if delays are
caused by Tenant changes or acts of g-d. X__________
Office
Minimum Building Standards
Contactor
to provide and verify in writing the following with the
Landlord:
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Ceiling
Tile:
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Provide
2’0” x 4’0” acoustical tile 2120 USG ceiling tile, and shall be “Tegular,”
2 x 2 look. X______
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Ceiling
Height:
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To
be 9’10”, for soffet and bathroom hard lids 9’minimum. Top of the window
mullion 8’. X_______
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Ceiling
Grid:
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Provided
15/16 white suspended T-Bar grid. X_______
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Flooring:
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1.
Carpeting shall be minimum 28
oz
direct glue down commercial grade, color selected by Tenant from
the
project color pallet. Base perimeter shall be carpeted and approved
by
Landlord. X_______
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2.
Commercial Vinyl (VCT) 12” x 12”, 1/8” gauge color selected by Tenant.
X_______
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3.
Base molding 4”, ▇▇▇▇▇ or equal color coordinated rubber base molding,
glued. X_______
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4.
Main entrance to include a 4’X 6’ area at the interior of the door
threshold made of tile or other similar hard surface from the
project
color pallet to be approved by Landlord. X____
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5.
Restroom floors must be tile or other similar hard surface from
the
project color pallet to be approved by Landlord. X____
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Tile:
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All
tile color and selections by Tenant and shall require Landlord
Approval.
X__
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Doors:
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Minimum
exterior 3’0” x 8’0” all interior to 3’0”x 8’0” , by 1¾” thick, all to be
solid core, stain grade, which shall be stained natural cherry
(or CC-420
Salman comp.). Landlord (See
Landlord for approval)
X_______
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Door
Hardware:
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Schlage,
Al Series, U-626 Finish (brushed metal) X_______
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Door
Jambs:
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“Timely”
metal door frames, color black. X_______
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Glass
& Glassing:
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Interior
windows, (available at Tenant’s cost) with “Timely,” pre-finished steel
window frame, color-black, with ¼” thick clear glass. Provide tempered
glass where required by code. X_______
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Window
coverings:
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Window
coverings are not included in Tenant Allowance and are furnished
by
Tenant. Minimum standard is 1” mini-blinds, color alabaster or snow cap
white. Window coverings shall be approved by Landlord. X_______
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Utilities
(General):
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Landlord
shall provide utilities to the building only. Tenant’s contractor shall
make the necessary connections to bring utilities to the Tenant’s suite.
All
utilities shall be extended by Tenant’s Contractor adjacent to vacant
suite or space one (1) foot beyond the subject suite
if it sits between the main utility point of connection and other
adjacent
incomplete suites in order to provide service to others without
interrupting the tenant. Water line shall have accessible shut
off valve
inside the bathroom. X______
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Fire
Sprinklers:
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To
meet NFPA 13 and City or County Requirements. X_______
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Electrical:
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Standard
2’ x 4’ Lay in with 3 bulbs, fluorescent light fixtures. Standard 2 x
2
Lay in with, by Metalux. Recessed Cans to be florescent with
Black or
White Baffle, White Trim. Lobby fixtures shall have no less than
½” chrome
parabolic lenses. Provide control wiring for HVAC equipment.
Phone and
Data Conduit must be installed from the building stub to the
office
Destination ▇▇▇▇. Place phone and data equipment in closet or
in break
room. All switches will be “Décor” style. Provide one junction box, with
conduit, to the exterior of the tenant’s suite for future signage which
shall be individually metered. Contractor shall connect to Landlord’s
exterior lights at perimeter of tenant’s premises. Contractor shall
install 1 (one) electric panel for every 1,500 square feet of
leasable
space to be located on the exterior wall and all shall be approved
by
Landlord. Each office or room (not including restrooms) shall
include not
less than one (1) phone/data box and conduit to Destination
▇▇▇▇ X_______
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7
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Plumbing:
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Commercial
Enamel Porcelain
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Elkay
Stainless steel sinks
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Delta
or ▇▇▇▇ Faucets
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American
Standard or Crane toilets
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Plumbing
(underground only if approved by landlord), to be Copper Type
“K”, above
ground Type “L”, Waste lines shall be ABS or PVC, and shall be installed
around the perimeter for future sewer needs, and all bathrooms
shall have
a floor drain and verified by Landlord. Water line shall have
accessible
shut off valve inside the bathroom. Contractor must provide a
diagram of
the location of the perimeter sewer line and submit to Landlord.
Contractor shall provide a connection to any exterior water spigots
that
exits the Tenants Premises. All Bathrooms shall be insulated
to sound
proof them. All faucets, sinks and toilets shall meet handicap
and ADA
specifications. (code). X_________
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Water
Meter:
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Precision
Meters - PMM-RC”, each space shall be individually metered (in gallons),
accessible from the exterior of the Building. Landlord to approve
spec and
type of the proposed water meter. See Landlord for location.
X_______
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H.V.A.C:
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Trane,
Carrier, or American Standard (See
Landlord)
commercial high efficiency units, minimum of 14 seer rating,
with Digital
Thermostats, HVAC shall not be less than one (1) ton per two
hundred and
fifty (250) square feet. Perimeter spaces may require more. All
units to
be insulated for sound reduction. Return air filters shall be
within each
suite. 2’ x 2’ perforated supply and return air registers to match ceiling
grid for each office / area as required. Each unit to include
a permanent
identification tag in heat and sunlight resistant material that
indicates
which suite the unit provides service to. If Landlord installs
A/C units,
there will be a credit to Landlord. X_______
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|
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Destination
▇▇▇▇:
|
Destination
▇▇▇▇ for phone system to be noted on plans and to be provided
by Tenant’s
General Contractor. Destination ▇▇▇▇ to be placed in a break
or storage
room and enclosed in paint grade material. Any other location
to be
approved by Landlord X_________
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|
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Fire
Extinguishers:
|
Provide
semi-recessed mounted building standard fire extinguishers as
required by
code. X_______ (See Landlord)
|
|
|
Framing:
|
Interior
demising wall shall be minimum 6” 20-gauge 3-5/8” steel stud framing on
24” center. All interior walls shall be 4” 25-gauge metal stud framing.
X____
|
|
|
Insulation:
|
Provide
R-38 insulation wired to the deck, exterior and demising walls
R-19, Walls
between offices, and all plumbing walls, baths and all pipes
shall be
R-11, to minimize sound transmission. If noise transmits to other
tenants
within the building, tenant shall provide R-19 from the demising
wall to
the first separation wall on the Tenant’s side of the demising wall to
reduce sound transmission. X_______
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INITIAL
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/
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LANDLORD
|
TENANT
|
8
|
Drywall:
|
All
walls minimum 5/8” gypsum board (drywall) and all corners shall be
bullnosed. Texture shall be “extra
fine orange peel.” Contractor
shall provide Landlord sample of the Texture for
approval.
X_______
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|
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Painting:
|
The
Landlord pre-approved paint colors are as follows: ▇▇▇▇▇▇ 1S
Desert
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Mulch 8723M. One primer coat and two
coats of eggshell enamel paint latex building standard colors,
building
standard semi-gloss enamel paint at any unfinished hollow metal
door
frames. Any deviation from the pre-approved color must be approved
by
Landlord and Landlord will require an additional security deposit
to
return the premises to the standard colors. X_______
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Roof:
|
All
roof penetrations to be repaired by Landlord roofing contractor,
at
Tenants expense. X_______
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Minimum
Room
|
||
|
and
Hall sizes:
|
No
room shall be less then 9’x10’, except for bathrooms, break or storage
rooms. All offices shall be not less then 10’x12’. All hallways shall not
be less then 5’. X_________
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Tenant
Work Letter:
|
All
plans and working drawings must include the above Minimum Building
Standards printed directly on the
plans.
|
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INITIAL
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/
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LANDLORD
|
TENANT
|
9
|
A.P.N.
|
||
|
RECORDING
REQUESTED BY, AND
WHEN
RECORDED RETURN TO:
_____________________________
_____________________________
_____________________________
_____________________________
|
||
|
|
||
NOTICE
OF NON-RESPONSIBILITY
(Per
NRS §108.234)
Notice
is
hereby given that:
|
1.
|
The
name and address of the disinterested owner is
_____________________.
|
|
2.
|
The
name and address of all co-owners, if any, who hold any title or
interest
with the undersigned in the property are as
follows:
|
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3.
|
The
name and address of the person who is causing the work of the improvement
to be constructed, altered, or repaired is
_______________________.
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4.
|
The
location of the improvement is
_______________.
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5.
|
The
address of the property upon which the improvement is or will be
constructed, altered, or repaired is _____________________, and
the legal
description thereof is as follows:
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|
6.
|
The
nature and extent of the disinterested owner’s interest in the improvement
and the property upon which the improvement is or will be constructed,
altered, or repaired is ____________________________ [INSERT
ONE OF THE FOLLOWING TYPE OF INTERESTS: fee, purchaser under contract
for
purchase, lessee, ground lessee,
etc.].
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7.
|
The
disinterested owner first learned of the construction, alteration,
or
repair of the improvement that is the subject of this Notice of
Non-Responsibility on the ___ day of ________________________,
20___.
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INITIAL
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/
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LANDLORD
|
TENANT
|
10
|
8.
|
The
disinterested owner notified the person who is causing the work
of the
improvement to be constructed, altered, or repaired of his, her,
or its
obligations to comply with Section 4 of SB 343, 73rd
Session of the Nevada Legislature on the ______ day of
______________________, 20___.
|
Dated
this _____ day of ________________, 20__.
|
ENTITY
NAME (MUST BE THE REAL OWNER],
a
______________
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||
| |
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| By: | ||
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|
||
| Its: | ||
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|
||
|
STATE
OF NEVADA
COUNTY
OF ▇▇▇▇▇
|
}ss.
|
The
forgoing Notice of Non-Responsibility was acknowledged before me on this
____
day of _________________, 20___, by ___________________, in his/her capacity
as
the _________________ of [ENTITY NAME AND TYPE], the [CAPACITY OF THE PERSON
SIGNING] of [ENTITY NAME AND TYPE].
|
Notary
Public
|
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INITIAL
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/
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LANDLORD
|
TENANT
|
11
Tenant
and contractor have received this Work Letter.
|
LANDLORD:
▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada Limited Liability Company
|
||
| |
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| Date | By: | |
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| Name: | ||
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||
| Its: | ||
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|
||
|
TENANT:
▇▇▇▇▇.▇▇▇,
Inc.,
a
Nevada corporation
|
||
| |
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| Date | By: | |
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|
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| Name: | ||
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|
||
| Its: | ||
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||
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CONTRACTOR:
|
||
| |
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| Date | By: | |
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| Name: | ||
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|
||
| Its: | ||
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INITIAL
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/
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LANDLORD
|
TENANT
|
12
EXHIBIT
D-1
|
Tenant
Improvement Checklist
|
||||
|
_________________________
|
_____________
|
|||
|
TENANT
|
SQ.
FT.
|
|||
|
Before
Work Commences
|
||||
|
Notes
|
||||
|
Contractor
License
|
o
|
|
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Contractor
License Insurance
|
o
|
|
|
|
|
Plans
Approved by Landlord
|
o
|
|
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Signed
Construction Contract
|
o
|
|
|
|
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Signed
Tenant Work Letter
|
o
|
|
|
|
|
$3,000
Security Deposit + $400 Inspection Fee + $250 Office Administration
Fee
|
o
|
|
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Tenant
Contribution
|
o
|
|
|
|
|
Contractor
Acknowledgement of repayment of reimbursables per section 1.1 in
Exhibit
D
|
o
|
|
|
|
|
Before
1st Draw
|
||||
|
Rough
Plumbing Complete
|
o
|
|
|
|
|
(w/Perimeter
As-Built)
|
||||
|
Plumbing
Location Verification
|
o
|
By: Feet
From Perimeter
|
||
|
Rough
Electrical & Conduit
|
o
|
|
|
|
|
(Low
Voltage)
|
||||
|
Framing
Complete
|
o
|
|
|
|
|
Insulation
Complete
|
o
|
|
|
|
|
(except
for above ceiling grid)
|
||||
|
HVAC
Units Installed
|
o
|
|
|
|
|
Water
Meter
|
o
|
|
|
|
|
200
AMP Panel
|
o
|
|
|
|
|
(per
every 1,500-2,000 s.f.)
|
||||
|
Sewer
stubbed to other adjacent suites
|
o
|
|
|
|
|
(if
applicable)
|
||||
|
INITIAL
|
|
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/
|
|
LANDLORD
|
TENANT
|
13
|
Before
2nd Draw
|
||||
|
Ceiling
Tile Complete
|
o
|
|
|
|
|
Flooring
Complete
|
o
|
|
|
|
|
Finished
Plumbing & Restroom Fixtures
|
o
|
|
|
|
|
Finished
Electrical & Lighting
|
o
|
|
|
|
|
Doors
Complete with Hardware
|
o
|
|
|
|
|
Glass
& Glass Doors Complete
|
o
|
|
|
|
|
Fire
Sprinklers Complete
|
o
|
|
|
|
|
Fire
Extinguishers Installed
|
o
|
|
|
|
|
Paint
& Texture Complete
|
o
|
|
|
|
|
HVAC
& Distribution Complete
|
o
|
|
|
|
|
Gas
Meter
|
o
|
|
|
|
|
Electric
Meter
|
o
|
|
|
|
|
Walk
Roof - Check Penetrations
|
o
|
|
|
|
|
Passed
Final Inspection
|
o
|
|
|
|
|
Before
Final Draw
|
||||
|
30
Days from Certificate of Occupancy
|
o
|
|
|
|
|
All
Lien Releases Submitted
|
o
|
|
|
|
|
Two
Sets of As-Built Plans Provided
|
o
|
|
|
|
INITIAL
|
|
|
|
/
|
|
LANDLORD
|
TENANT
|
14
EXHIBIT
D-2
NOTICE
OF DELIVERY DATE
|
Sent
Via:
|
Facsimile
|
|
US
Mail
|
|
|
Certified
Mail
|
|
|
Hand-delivered
|
Today’s
Date: __________________
Dear
Tenant,
This
shall serve as notice to Tenant that the premises described in the Lease
dated
December 28, 2007
by and
between ▇▇▇▇▇▇▇
Pecos I-215 II, LLC a
Nevada
Limited Liability Company, as Landlord, and ▇▇▇▇▇.▇▇▇,
Inc. are
available for possession by the Tenant. Tenant may occupy the space or commence
Tenant Improvements.
Please
acknowledge receipt of this letter by signing below and faxing it back our
office at 914-9505. Also, please check the appropriate box referring to the
receipt of the key to you premises.
Sincerely,
_____________________
▇▇▇▇▇▇▇
Pecos I-215 II, LLC
I
or my contractor (circle one) have
/ have not
received a key for my premises.
_____________________
▇▇▇▇▇.▇▇▇,
Inc.
|
INITIAL
|
|
|
|
/
|
|
LANDLORD
|
TENANT
|
15
EXHIBIT
E
RULES
AND REGULATIONS
|
(a)
|
Sidewalks,
parking areas, doorways, vestibules, halls, stairways, and similar
areas
shall not be obstructed nor shall refuse, furniture, boxes, or
other items
be placed therein by Tenant or its officers, agents, servants,
and
employees, or used for any purpose other than ingress and egress
to and
from the Premises, or for going from one part of the Building to
another
part of the Building. Canvassing, soliciting and peddling in the
Building
are prohibited.
|
|
(b)
|
Tenant
shall dispose of all trash in receptacles designated by Landlord.
|
|
(c)
|
Plumbing,
fixtures and appliances shall be used only for the purposes for
which
constructed and no unsuitable material shall be placed
therein.
|
|
(d)
|
No
signs, directories, posters, advertisements, or notices shall be
painted
or affixed on or to any of the (inside or outside) windows or doors,
or in
corridors or other parts of the Building, except in such color,
size, and
style, and in such places, as shall be first approved in writing
by
Landlord in its reasonable discretion. Landlord shall have the
right to
remove all unapproved signs without notice to Tenant, at the expense
of
Tenant. Tenant shall not cause or allow persons to hold, display,
solicit
or wear any promotional costumes, signs, or materials for the purpose
of
advertising to the general public on the exterior of its Premises
including, but not limited to, on-site areas, public sidewalks,
or any
area within five hundred (500) yards of the
Project.
|
|
(e)
|
Tenant
shall not do, or permit anything to be done in or about the Building,
or
bring or keep anything therein, that will in any way increase the
rate of
fire or other insurance on the Building, or on property kept therein
or
otherwise increase the possibility of fire or other
casualty.
|
|
(f)
|
Corridor
doors, when not in use, shall be kept
closed.
|
|
(g)
|
Tenant
shall not cause or permit any improper noises in the Building,
or allow
any unpleasant odors to emanate from the Premises, or otherwise
interfere,
injure or annoy in any way other tenants, or persons having business
with
them.
|
|
(h)
|
No
animals shall be brought into or kept in or about the
Building.
|
|
(i)
|
When
conditions are such that Tenant must dispose of crates, boxes,
etc. on the
sidewalk, it will be the responsibility of Tenant to dispose of
same prior
to 7:30 a.m. or after
5:30 p.m.
|
|
(j)
|
No
machinery of any kind, other than ordinary office machines such
as
computers and photocopy machines and ordinary and necessary equipment
for
Tenant’s business shall be operated on Premises without the prior written
consent of Landlord, nor shall Tenant use or keep in the Building
any
inflammable or explosive fluid or substance (including living Christmas
trees and lighted ornaments), or any illuminating materials, except
candles, without Landlord’s written consent.
|
|
INITIAL
|
|
|
|
/
|
|
LANDLORD
|
TENANT
|
16
|
(k)
|
No
motorcycles or similar vehicles will be allowed in any portion
of the
Building other than the parking
areas.
|
|
(l)
|
No
nails, hooks, or screws (other than for the purpose of hanging
normal
office wall decorations) shall be driven into or inserted in any
part of
the Building except as approved by Building maintenance
personnel.
|
|
(m)
|
Landlord
has the right to evacuate the Building in the event of an emergency
or
catastrophe.
|
|
(n)
|
No
food and/or beverages shall be distributed from Tenant’s office (other
than food and beverages intended for Tenant’s employees and clients)
without the prior written approval of
Landlord.
|
|
(o)
|
No
additional locks shall be placed upon any doors without the prior
written
consent of Landlord. All necessary keys shall be furnished by Landlord,
and the same shall be surrendered upon termination of this Lease,
and
Tenant shall then give Landlord or its agent an explanation of
the
combination of all locks on the doors or vaults. Tenant shall initially
be
given two (2) keys to the Premises by Landlord.
|
|
(p)
|
Tenant
will not locate furnishings or cabinets adjacent to mechanical
or
electrical access panels or over air conditioning outlets so as
to prevent
operating personnel from servicing such units as routine or emergency
access may require. Cost of moving such furnishings for Landlord’s access
will be for Tenant’s account.
|
|
(q)
|
Tenant
shall comply with parking rules and regulations as may be posted
and
distributed from time to time.
|
|
(r)
|
No
portion of the Building shall be used for the purpose of lodging
rooms.
|
|
(s)
|
Vending
machines or dispensing machines of any kind will not be placed
in the
Premises by Tenant other than soft drink, candy and other similar
vending
machines for the use of Tenant’s
employees).
|
|
(t)
|
Prior
written approval, which shall be at Landlord’s sole discretion, must be
obtained for installation of window shades, blinds, drapes, or
any other
window treatment of any kind whatsoever. Landlord will control
all
internal lighting that may be visible from the exterior of the
Building
and shall have the right to change any unapproved lighting at Tenant’s
expense.
|
|
(u)
|
No
Tenant shall make any changes or alterations to any portion of
the
Building without Landlord’s prior written approval, which may be given on
such conditions as Landlord may elect. All such work shall be done
by
Landlord or by contractors and/or workers approved by Landlord.
The
provisions of this Paragraph shall not affect or be deemed to supersede
in
any way the provisions of the Lease with regard to the improvement
and
alteration of the Premises.
|
|
INITIAL
|
|
|
|
/
|
|
LANDLORD
|
TENANT
|
17
|
(v)
|
Tenant
shall provide plexiglass or other pads for all chairs mounted on
rollers
or casters.
|
|
(w)
|
In
the event that the project is governed by an owner’s association and/or
covenants, codes and restrictions (CC&R’s), Tenant agrees to pay for
any fines on the property and abide by CC&R's, of the owner’s
association. In the event CC&R’s are applicable, the Landlord will
make available, at Landlord’s office during normal business hours, a copy
to the Tenant at its request.
|
|
(x)
|
Landlord
reserves the right to rescind any of these rules and make such
other and
further rules and regulations as in its reasonable business judgment
shall
from time to time be needful for the operation of the Building,
which
rules shall be binding upon each Tenant upon delivery to such Tenant
of
notice thereof in writing.
|
|
INITIAL
|
|
|
|
/
|
|
LANDLORD
|
TENANT
|
18
EXHIBIT
F
GUARANTY
OF LEASE
This
Guaranty of Lease (“Guaranty”) is made as of the December 28, 2007, by
▇▇▇▇▇.▇▇▇, Inc. (“Guarantor”) in favor of ▇▇▇▇▇▇▇ Pecos I-215 II, LLC, a Nevada
Limited Liability Company (“Landlord”), with respect to that certain lease
agreement dated December 28, 2007 a copy of which is attached hereto and
incorporated herein by reference as Lease dated December 28, 2007 (collectively,
the “Lease”) between Landlord and, ▇▇▇▇▇.▇▇▇,
Inc.
(Tenant).
WITNESETH
FOR
VALUABLE CONSIDERATION,
receipt
of which is hereby acknowledged, Guarantor agrees as follows:
1.
The
Guarantor directly, absolutely, independently, primarily, unconditionally
and
continually guarantees to the Landlord and its successors and assigns, the
full
and punctual payment, performance and observance by the Tenant of all terms,
covenants and conditions contained in the Lease on Tenant’s part to be kept,
performed or observed. If, at any time, default shall be made by Tenant in
the
performance or observance of any of the terms, covenants or conditions contained
in the Lease on the Tenant’s part to be kept, performed or observed, the
Guarantor will pay, keep, perform and observe the same, as the case may be,
in
the place and stead of the Tenant.
2.
Any
act
of the Landlord or its agents, or the successors or assigns of the Landlord
or
their agents, consisting of a waiver of any of the terms or conditions of
the
Lease, or the giving of any consent to any manner or thing relating to the
Lease, or the granting of any indulgences or extensions of time to the Tenant,
or to the release of any collateral providing security for the full performance
of Tenant’s obligations, or the failure of Landlord to resort to any of its
remedies provided by the Lease or at law or in equity, may be done and taken
without notice to the Guarantor and without releasing the obligations of
the
Guarantor hereunder. Guarantor hereby expressly waives any notice of
non-payment, non-performance or non-observance, or proof of notice or demand,
in
order for Landlord to claim under this Guaranty.
3.
The
obligations of the Guarantor hereunder shall not be released by Landlord’s
receipt, application or release of security given for the performance and
observance of covenants and conditions contained in the Lease, nor by any
modification of the Lease, but in case of any such modification the liability
of
the Guarantor shall be deemed modified in accordance with the terms of any
such
modification.
4.
The
liability of the Guarantor hereunder shall in no way be affected by:
(a) the release or discharge of the Tenant in any receivership, bankruptcy
or other proceedings; (b) the impairment, limitation or modification of the
Tenant’s liability under the Lease resulting from the operation of any present
or future provision of the bankruptcy laws or other statute or from the decision
in any court; (c) the rejection or disaffirmance
of the
Lease in any such proceedings; (d) the assignment or transfer of the Lease
by the Tenant; (e) any disability or other defense of the Tenant;
(f) the cessation from any cause whatsoever of the liability of the Tenant;
or (g) the impairment or release of any collateral securing the full
performance of Tenant’s obligations.
Tenant’s
Initials _____________
Landlord’s
Initials____________
5.
This
Guaranty shall apply to the Lease, any extension or renewal thereof and to
any
holdover term thereby granted or any extension or renewal thereof.
6.
This
instrument may not be changed, modified, discharged or terminated orally
or in
any manner other than by an agreement in writing signed by the Guarantor
and the
Landlord.
7.
Guarantor
shall pay all costs incurred, including reasonable attorneys’ fees, in the event
collection or enforcement efforts are commenced against Guarantor under this
Guaranty, such costs and reasonable attorneys’ fees to be paid irrespective of
whether or not action or actions are commenced or continued to
judgment.
8.
Guarantor’s
liability herein is primary, direct, absolute, continual and unconditional
and
is independent of the obligations of Tenant. A separate action may be brought
and the obligations of Guarantor be immediately enforced without necessity
of
any action against Tenant or collateral, if any, or the resort by Landlord
to
any of its remedies under the Lease, whether at law or in equity, and a separate
action may be prosecuted against Guarantor whether or not action or actions
are
brought against Tenant and whether or not Tenant is joined in any such action.
9.
No
delay
on Landlord’s part in exercising any right, power or privilege under this
Guaranty or any other document executed in connection herewith shall operate
as
a waiver of any such right, power or privilege.
10.
Guarantor
agrees that any judgment rendered against Tenant for monies or performance
due
Landlord shall in every and all respects bind and be conclusive against
Guarantor to the same extent as if Guarantor had appeared in any such proceeding
and judgment therein had been rendered against Guarantor.
11.
Guarantor
subordinates to Tenant’s obligations to Landlord all indebtedness of Tenant to
Guarantor, whether now existing or hereafter contracted, whether direct or
indirect, contingent or determined. With respect to any such indebtedness
of
Tenant to Guarantor, Guarantor further agrees to make no claim therefore
until
any and all obligations of Tenant to Landlord shall have discharged in full
and
Guarantor further covenants and agrees not to assign all or any part of such
indebtedness while this Guaranty remains in effect.
12.
The
terms, covenants and conditions contained in this Guaranty shall apply to
and
bind the Guarantor and the Guarantor’s heirs, successors and
assigns.
13.
The
terms, covenants and conditions contained in this Guaranty shall inure to
the
benefit of the successors and assigns of Landlord. Without limiting the holder
of any lien or security interest in the real property described in the Lease,
any assignee of Landlord’s interest in the Leases and any purchaser at a
foreclosure, trustee’s or other sale shall be entitled to the benefits of this
guaranty provided that the foregoing is not intended to supersede any
subordination of the Lease to such lien or security interest.
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INITIAL
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LANDLORD
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TENANT
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2
14.
If
any
term, covenant or condition of this Guaranty, or any application thereof,
should
be held by a court of competent jurisdiction to be invalid, void or
unenforceable, all terms, covenants and conditions of this Guaranty, and
all
applications thereof not held invalid, void or unenforceable shall continue
in
full force and effect and shall in no way be affected, impaired or invalidated
thereby.
IN
WITNESS WHEREOF,
the
Guarantor has caused this instrument to be executed as of the day and year
first
written above.
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GUARANTOR:
▇▇▇▇▇.▇▇▇,
Inc.
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| By: | Date | ||
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| Name | It’s | ||
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STATE
OF NEVADA
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)
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)
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SS
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COUNTY
OF ▇▇▇▇▇
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)
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This
instrument was acknowledged before me on the ____day of _____________, 20__,
by
__________________________ as authorized signer for ▇▇▇▇▇.▇▇▇, Inc.
________________________________
Notary
Public
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INITIAL
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LANDLORD
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TENANT
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3
EXHIBIT
G
RENT
SCHEDULE
Effective
as of the first day of the calendar month on the first anniversary in which
the
Rent Commencement Date occurred, the Basic Rent shall be adjusted in accordance
with the provisions of Article
4.2
of the
Lease, as provided in this Exhibit
G;
provided, however, that the following is based on the Rentable Space being
Four
Thousand Five Hundred Sixty (4,560) square feet, which is an estimate of
such
Rentable Space and is subject to change as provided in the Lease. If the
actual
Rentable Space is increased or decreased as provided in the Lease, then the
Basic Rent to be paid, as reflected on this Exhibit
G,
as be
adjusted accordingly.
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YEAR(S):
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MONTHLY
BASIC RENT:
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1
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$8,892.00
months 1-6
$10,260.00
months 7-12
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2
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$10,670.40
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3
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$11,097.22
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4
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$11,541.11
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IN
WITNESS WHEREOF this Basic Rent Schedule is executed as of the date of the
Lease
Agreement.
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LANDLORD:
▇▇▇▇▇▇▇
Pecos I-215 II, LLC,
a
Nevada Limited Liability Company
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| Date | By: | |
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| Name: | ||
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| Its: | ||
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TENANT:
▇▇▇▇▇.▇▇▇,
Inc.
a
Nevada corporation
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| Date | By: | |
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| Name: | ||
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| Its: | ||
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INITIAL
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LANDLORD
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TENANT
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4
EXHIBIT
H
LANDLORD’S
FURNITURE
Landlord
to allow Tenant the use, subject to Section 34 of the Lease, of the following
list furniture items in the original condition as shown on the attached
photos:
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INITIAL
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LANDLORD
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TENANT
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5