Exhibit 10.35
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LEASE AGREEMENT
McCarran Center, LC
and
Nextel WIP Lease Corp.
May 11, 1999
SS-NNN-42
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TABLE OF CONTENTS
1. BASIC LEASE TERMS 1
1.1 Premises Address 1
1.2 Rental Area 1
1.3 Building Designation 1
1.4 Project 1
1.5 Site Plan 1
1.6 Premises Floor Plan 1
1.7 Initial Term: 1
1.8 Commencement Date 2
1.9 Parking Allocation 2
1.10 Option to Renew 2
1.11 Base Rent 2
1.12 Rent Adjustments 3
1.13 Improvements 3
1.14 Rules and Regulations 3
1.15 Operating Expenses 3
1.16 Security Deposit 3
1.17 Permitted Use 3
1.18 Addresses for Payments, Notices and Deliveries: 4
1.19 Brokers: 4
2. PREMISES 4
2.1 Leased Premises: 4
2.2 Delivery and Acceptance of Premises: 4
2.3 Building Name and Address: 5
* * i * *
3. TERM 5
3.1 General: 5
3.2 Delay in Possession: 5
3.3 Early Occupancy: 6
3.4 Option Term(s): 6
3.5 First Right of Refusal 6
3.6 Early Termination 7
4. RENT AND OPERATING EXPENSES 7
4.1 Base Rent: 7
4.2 Operating Expenses 7
4.3 Cost of Living Increases: 11
4.4 Security Deposit: 11
4.5 Option Rent: 11
5. USE 11
5.1 Use: 11
5.2 Hazardous Materials: 12
5.3 Signs and Roof Rights: 12
6. COMMON FACILITIES AND VEHICLE PARKING 13
6.1 Operation and Maintenance of Common Facilities: 13
6.2 Use of Common Facilities: 13
6.3 Parking: 14
6.4 Changes and Additions by Landlord: 14
7. MAINTENANCE, REPAIRS AND ALTERATIONS 14
7.1 Landlord's Obligations: 14
7.2 Tenant's Obligations: 15
7.3 Alterations and Additions: 16
* * ii * *
7.4 Utility Additions: 17
7.5 Entry and Inspection: 17
7.6 Tenant's Non-Standard Building Improvements: 17
7.7 Landlord's Improvements: 18
8. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY 18
8.1 Taxes on Tenant's Property: 18
9. UTILITIES 18
9.1 Multi-Tenant Building 18
9.2 Liability of Landlord 18
10. ASSIGNMENT AND SUBLETTING 19
10.1 Rights of Parties: 19
10.2 Effect of Transfer: 20
11. INSURANCE AND INDEMNITY 20
11.1 Tenant's Insurance: 20
11.2 Landlord's Insurance: 21
11.3 Waiver of Subrogation: 21
11.4 Policies: 21
11.5 Tenant's Indemnity: 21
11.6 Landlord's Indemnity: 22
12. DAMAGE OR DESTRUCTION 22
12.1 Restoration: 22
13. EMINENT DOMAIN 23
13.1 Total or Partial Taking: 23
13.2 Temporary Taking: 23
13.3 Taking of Parking Area: 23
* * iii * *
14. SUBORDINATION; ESTOPPEL CERTIFICATE 24
14.1 Subordination: 24
14.2 Estoppel Certificate: 24
15. DEFAULTS AND REMEDIES 24
15.1 Tenant's Default 24
15.2 Landlord's Remedies: 25
15.3 Expenses and Legal Fees: 28
16. END OF TERM 28
16.1 Holding Over: 28
16.2 Merger on Termination: 28
16.3 Surrender of Premises: Removal of Property: 29
16.4 Termination; Advance Payments: 29
17. PAYMENTS AND NOTICES 29
18. LIMITATION OF LIABILITY 29
19. TRANSFER OF LANDLORD'S INTEREST 29
20. MISCELLANEOUS 30
20.1 Gender and Number 30
20.2 Headings: 30
20.3 Joint and Several Liability: 30
20.4 Successors: 30
20.5 Time of Essence: 30
20.6 Severability: 30
20.7 Entire Agreement 30
20.8 Waiver of Trial by Jury. 30
20.9 Partial Invalidity 31
* * iv * *
20.10 Recording 31
20.11 Waiver 31
20.12 Late Charges 31
20.13 Inability to Perform 31
20.14 Choice of Law 31
20.15 Independently Provided Services 31
20.16 Prior Agreements 32
EXHIBIT A PROJECT & PREMISES
EXHIBIT A-1 PROJECT SITE PLAN (McCarran II)
EXHIBIT A-2 BUILDING SITE PLAN
EXHIBIT B-1 FLOOR PLAN
EXHIBIT B-2 USE OF TENANT IMPROVEMENT ALLOWANCE
EXHIBIT B-3 STANDARD TENANT IMPROVEMENT SPECIFICATIONS
EXHIBIT C TENANT'S WORK LETTER
EXHIBIT D RULES AND REGULATIONS
EXHIBIT E OPERATING EXPENSES
EXHIBIT F PARKING
EXHIBIT I RENEWAL OPTIONS
EXHIBIT J BROKERAGE COMMISSION
EXHIBIT K COMMENCEMENT DATE
EXHIBIT L MASTER SIGN PLAN
EXHIBIT M SUBORDINATION AND NON-DISTURBANCE AGREEMENT
EXHIBIT N TENANT ESTOPPEL CERTIFICATE
* * v * *
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), dated May 11, 1999 is made by and between
McCarran Center, LC, a Nevada Limited Company, (herein called "Landlord") and
Nextel WIP Lease Corp., a Delaware Corporation (herein called "Tenant").
1. Basic Lease Terms
Each reference in this Lease to the "Basic Lease Terms" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining articles of this Lease.
1.1 Premises Address
XXXX Bermuda Road (address to be provided by amendment)
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.2 Rental Area
Building 42: 23,306 sq. ft., Phase I of 15,000 and Phase II of 8,306
(remainder).
Building 42A: 20,000 sq. ft.
1.3 Building Designation
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Ft.: 23,306 sq. ft.
Building 42 Area Acreage: 2.02 acres (see Exhibit A-2).
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Ft.: A minimum of 20,000 sq. ft.
Building 42A Area Acreage: X.XX acres (see amendment to Exhibit
A-2).
1.4 Project
McCarran Center II - Exhibit A-1: 16.5 acres
1.5 Site Plan
EXHIBIT A-2
1.6 Premises Floor Plan
Building 42: EXHIBIT B-1
Building 42A: To be provided by amendment.
1.7 Initial Term:
Building 42: Eighty Four months.
Building 42A: Sixty Months
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1.8 Commencement Date
Building 42: October 1,1999, based upon receipt of an approved space
plan by May 17, 1999, (or for purposes of paying rent, upon
completion of construction).
Building 42A: October 1, 2001, (unless mutually agreed by the
parties due to Tenant's request for an earlier occupancy).
1.9 Parking Allocation
Building 42: 117 standard parking spaces (5 spaces per 1,000 sq.
ft.) from Oct. 1, 1999 to Oct. 1, 2000. Thereafter, 164 standard
parking spaces shall be provided (7 spaces per 1,000 sq. ft.).
Building 42A: 100 standard parking spaces (5 spaces per 1,000 sq.
ft.), unless Tenant shall request an increase of up to 40 additional
spaces on or before October 1, 2000.
1.10 Option to Renew
EXHIBIT "I": Two term(s) of Sixty months each which shall apply to
both Building 42 and 42A.
1.11 Base Rent
Building 42: $24,937.42 per month after full occupancy of 23,306 sq.
ft. in building 42 during the term of the Lease unless otherwise modified
herein. Where reference is made in this Lease to rent as provided in
Section 1.11, or where such reference is made to the term "Original
Monthly Rent", such rent shall be deemed to be the Base Rent.
Phase I Occupancy: From the Commencement Date through October
1, 2000, Tenant shall occupy Phase I (15,000 sq. ft.) and the
Base Rent shall be as follows:
Base Rent: $16,050 per month ($1.07 per sq. ft.
x 15,000 sq. ft.)
Over Std. Parking: $559.34 per month (parking at
5/1,000 on 23,306 sq. ft. @ $.024
per sq. ft. per month).
Total Base Rent: $16,609.34 per month to Sept. 30, 2000.
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Phase II Occupancy: At such time as Tenant shall occupy Phase
II (8,306 sq. ft.) for business operations, but not later than
October 1, 2000, Tenant shall pay a Base Rent as follows:
Phase I Rent: $16,050 per month + adjustment per
Section 4.3.
Phase II Rent: $8,887.42 per month ($1.07 per sq. ft.
x 8,306 sq. ft.) + adjustment per
Section 4.3 as applied to the Phase I
Rent.
Over Std. Parking: $1,504.00 per month (Additional 47
spaces for 7/1,000 parking at $32 per
month per space).
Total Base Rent: $26,441.42 per month from Oct. 1, 2000.
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Should Tenant choose not to utilize Landlord's Tenant
Improvement Allowance of $207,650 for Phase II (see
Exhibit B-2), the Phase II Rent shall be $5,731.14 per
month ($0.69 per sq. ft.) and the Total Base Rent from
Oct. 1, 2000, shall be $23,844.14 per month.
Building 42A: The base rent for the 20,000 sq. ft. expansion into
Building 42A shall be determined by multiplying the Base Rent (for
Building 42) by the percentage increase in the cost of construction of the
premises in Building 42A over and above the cost of constructing the
premises in Building 42 (hereafter the "42A Multiplier). The 42A
Multiplier shall be determined by comparing all costs associated with the
land, infrastructure, entitlements, permitting, design and construction of
the premises in Buildings 42 and 42A on a prorata, sq. ft. basis. Landlord
shall provide Tenant with a comparable cost summary and a determination of
the 42A Multiplier and the associated building 42A base Rent, in writing,
after January 15, 2001 but before March 31, 2001. Based on building
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42A being a single story, 20,000 sq. ft. structure with 5/1,000 parking,
should the 42A Multiplier be greater than 1.15 (a 15% increase over the
adjusted Base Rent for building 42 as of October 1, 2001), Tenant may
elect to cancel its lease obligation for Building 42A by providing written
notice thereof within Fifteen (15) days of receipt of the cost summary.
Such cancellation by Tenant shall release Landlord and Tenant of further
obligations with regard to Building 42A, except Tenant agrees to reimburse
Landlord for the costs of preparing the architectural drawings,
engineering and comparable cost summary, which the parties agree shall not
exceed $20,000. Landlord and Tenant agree to use best efforts to expedite
the design and plans associated with Building 42A and to "value engineer"
the overall costs while maintaining a first class quality building in
keeping with similar buildings within the Project. Building 42A shall be a
single story, 20,000 sq. ft. building unless additional space is requested
by Tenant. Should Tenant request in excess of 20,000 sq. ft. in building
42A (a two story building), the parties shall use best efforts to value
engineer the building and costs taking into account the increased costs
associated with a two story structure, additional land and parking and
Tenant shall not have the ability to cancel the lease commitment. The Base
Rent for the two story structure will be determined by the Multiplier
method previously set forth herein and applied on a prorata basis to the
space to be occupied by Tenant.
1.12 Rent Adjustments
See Section 4 below. CPI adjustments shall be capped at a one and
one half percent (1.5%) minimum and six and one half percent (6.5%)
maximum for any twelve (12) month period.
1.13 Improvements
EXHIBIT B-2
1.14 Rules and Regulations
EXHIBIT "D"
1.15 Operating Expenses
See EXHIBIT "E"
Group I Percentage: 12.24%
Group II Percentage: 100%
Controllable Operating Expenses capped at a seven (7) percent
increase per year (see Section 4.2.1).
1.16 Security Deposit
Waived
1.17 Permitted Use
Commercial Offices and as permitted under the applicable MD (light
industrial) zoning, including, but not limited to the operation of a
"call center", phone programming and the use of a loading dock with
interior warehouse storage.
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1.18 Addresses for Payments, Notices and Deliveries:
Landlord:
McCARRAN CENTER, LC
a Nevada Limited Liability Company
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant:
Nextel Partners, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. Legal Department
1.19 Brokers:
EXHIBIT "J". ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Company
2. Premises
2.1 Leased Premises
Landlord leases to Tenant and Tenant rents from Landlord the
Premises (herein the "Premises") within buildings 42 and 42A, subject to
their corresponding Commencement Dates, Site Plans and Base Rents, and
containing the rental area set forth in Section 1.2 of the Basic Lease
Terms. Unless this Lease specifically refers to and differentiates between
the leased space within building 42 and building 42A, the term "Premises"
shall commonly refer to the use of the leased space within both such
buildings. The Premises is located within the buildings commonly referred
to as building 42 and building 42A (which two buildings, together with the
underlying real property, shall be referred to commonly as the
"Building"), and is a portion of the project including other buildings
described in Section 1.4 of the Basic Lease Terms (herein "Project"). The
Premises and the Project are indicated on Exhibits "A-2" and "A-1",
respectively. The rentable area of the Premises is determined under BOMA
standards for "flex" buildings by measuring: to the "drip line" of the
Building's exterior walls, which includes the area contained within
exterior entry alcoves.
2.2 Delivery and Acceptance of Premises:
Landlord shall deliver the Premises to Tenant, on the Commencement
Dates set forth in Section 1.8, and Landlord further warrants to Tenant
that the Common Facilities referred to in Article 6, (i.e. plumbing,
heating, air conditioning, ventilating, electrical, lighting facilities
and equipment within the Building, fixtures, walls, foundations, ceilings,
roofs, floors, windows, access doors, loading doors, plate glass and
skylights) shall be in good operating condition on the Commencement Date.
In the event that it is determined that this warranty has been violated,
then it shall be the obligation of the Landlord, after receipt of written
notice from Tenant setting forth with specificity the nature of the
violation, to promptly, at Landlord's sole cost, rectify such violation.
Tenant's failure to give such written notice to Landlord within six (6)
months after the corresponding Commencement Date shall cause the
conclusive presumption that Landlord has complied with all of Landlord's
obligations regarding the delivery of the Premises as set forth in this
Section 2.2, unless said defect cannot be ascertained within six (6)
months of that Commencement Date, in which case Tenant shall notify
Landlord of such defect within thirty (30) days of detection of the defect
or notice of a violation of the aforementioned warranties.
Except as otherwise provided in this Lease, Tenant hereby accepts
the Premises in their existing condition (punch list items excepted) as of
the corresponding Commencement Date or the date that Tenant takes
possession of the Premises, whichever is earlier, subject to all
applicable zoning,
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municipal, county and state laws, ordinances and regulations governing and
regulating the use of the Premises and any covenants or restrictions of
record, and accepts this Lease subject thereto as to all matters disclosed
thereby and by any exhibits attached hereto. Tenant acknowledges that
neither Landlord nor Landlord's agent has made any representation or
warranty as to the present or future suitability of the Premises for the
conduct of Tenant's business.
2.3 Building Name and Address:
Tenant shall not utilize any name selected by Landlord from time to
time for the Building and/or the Project as any part of Tenant's corporate
or trade name. Landlord shall have the right to change the name, number or
designation of the Building and/or the Project without notice or
liability. Landlord agrees not to utilize the name or trademark of Tenant,
its subsidiaries or affiliates without Tenant's written approval, which
Tenant may withhold without cause or reason.
3. Term
3.1 General:
The term shall be for the corresponding periods shown in Section 1.7
("Initial Term"). Subject to the provisions of Section 3.3, the term shall
commence on the corresponding commencement date (herein "Commencement
Date") on the earliest of:
a. the Commencement Date as set forth in Section 1.8 of the Basic
Lease Terms for the Building in question, subject to Tenant's
rights set forth in Section 3.2 below, or
b. the date Tenant commences use of the corresponding Premises
for business operations.
Within twenty (20) days after possession of the Premises is tendered
to Tenant, the parties shall execute the Exhibit "K" Certificate form
provided by Landlord, which shall state the Commencement Date and the
expiration date ("Expiration Date") of the Lease. Tenant's failure to
execute that form shall not affect the validity of Landlord's
determination of those dates. It is the intent of the parties that the
expiration date for the leased space with buildings 42 and 42A shall be
coterminous.
The Premises shall be deemed ready for occupancy upon the tendered
date, but only if and when Landlord, to the extent applicable:
a. has provided reasonable access to the Premises for Tenant so
that it may be used without unnecessary interference,
b. has substantially completed all the work required to be done
by Landlord in this Lease as defined in Exhibit "C", and
c. has obtained the necessary certificates for Tenant's legal
occupancy of the Premises in question.
3.2 Delay in Possession:
Notwithstanding the provision of Section 3.1, if Landlord, for any
reason whatsoever, cannot deliver possession of the Premises in either
Building 42 or 42A to Tenant on/or before the corresponding Commencement
Date, this Lease shall not be void or voidable nor shall Landlord be
liable to Tenant for any resulting loss or damage. However, Tenant shall
not be liable for any rent and the Commencement Date (for purposes of the
payment of rent) shall not occur until Landlord delivers possession of the
Premises and the Premises are in fact ready for occupancy in accordance
with Section 3.1; and Tenant shall receive after it is able to take
possession of the Premises, in addition to any free rent period, one (day)
of free rent for each day past the Commencement Date that Landlord delays
(subject to Section 20.13) in so delivering the Premises of the Building
in question. However, if Landlord's failure to so
5
deliver possession on the applicable Commencement Date is attributable to,
(i) Tenant's delays in reasonably fulfilling Tenant's obligations and
approvals related to the design or construction of the Premises, or (ii)
Tenant's gross negligence or willful misconduct, then Landlord shall be
entitled to full performance by Tenant (including the payment of rent)
from the corresponding Commencement Date. If Landlord does not deliver
possession of the Building 42 to Tenant within thirty (30) days after the
corresponding Commencement Date, Tenant may elect to cancel this Lease by
giving written notice to Landlord within ten (10) days after the thirty
(30) day period ends or Tenant may independently take such reasonable
action as necessary to complete the Premises and charge the cost of such
action against the first due rents. If Landlord does not deliver
possession of the Building 42A to Tenant within thirty (30) days after the
corresponding Commencement Date, Tenant may elect to cancel this Lease as
to Building 42A only by giving written notice to Landlord within ten (10)
days after the thirty (30) day period ends or Tenant may independently
take such reasonable action as necessary to complete the Premises and
charge the cost of such action against the first due rents. If Tenant
gives such notice of cancellation, the Lease or the Lease as to Building
42A shall be canceled and neither Landlord nor Tenant shall have any
further obligations to the other with respect to the Lease or Building
42A, as applicable.
3.3 Early Occupancy:
If Tenant occupies the Premises prior to the Commencement Date for
business operations, then Tenant's occupancy of the Premises shall be
subject to all of the provisions of this Lease. Early occupancy of the
Premises shall not advance the expiration date of this Lease.
3.4 Option Term(s):
Tenant is hereby granted the right and option to extend this Lease
for the additional term or terms as provided in Exhibit I (hereinafter
"Option Term(s)"), attached hereto and incorporated herein, commencing at
the expiration of the Initial Term. Such option is granted upon the
following terms and conditions:
1. Terms and Conditions
Except as set forth in Section 3.4.4 below, the Option
Term(s) shall be on the same terms, covenants, conditions,
provisions and agreements as in this Lease and any amendments
thereto.
2. Uncured Defaults
No uncured default exists at the time of the exercise of
the Option Term.
3. Written Notice
Tenant gives to Landlord and Landlord receives from
Tenant written notice of the exercise of each option to extend
this Lease no later than six (6) months prior to the
expiration of the term immediately preceding the Option
Term(s) to be exercised. If said notification is not given and
received, the option to be exercised shall automatically
expire. Failure to exercise an option shall result in
automatic expiration of all successive options.
4. Payable Rent
The rent payable during the Option Term(s) shall be
payable and computed as provided in Exhibit "I" attached
hereto.
3.5 First Right of Refusal
Should building 42A be larger than 20,000 sq. ft.,
Tenant may elect to lease additional space in the building 42A under
the following continuing First Right of Refusal ("First Right").
Landlord will provide Tenant with a proposed lease offer ("Offer")
setting forth at a minimum the location, square feet, term,
improvement allowance and rent for the proposed lease, that Landlord
is willing to accept from a viable tenant. Tenant shall commit to
exercise this First Right for such space within ten (10) business
days of receiving the Offer. Should Tenant exercise it's First
Right, the expansion space set forth in the Offer shall be leased to
Tenant under the same terms and at the same rent as are then
applicable to Tenant's Premises. If the First Right is exercised
during the Tenant's Initial Term and the space is unimproved,
Landlord shall provide a tenant improvement allowance for the
expansion space equal to the amount per sq. ft. originally provided
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for in the Premises (see Exhibit B-2 for Building 42), with an
adjustment for the shortened amortization based on the remaining
lease term. If Tenant exercises its First Right during a renewal
term or if the space is improved, Landlord shall provide a tenant
improvement allowance equal to $12.00 per sq. ft. for a five (5)
year amortization period, with an adjustment for a remaining lease
term of less than five (5) years. The First Right shall be subject
to the rights of existing tenants to renew or sublease their
premises. The addition of rental space to the Premises shall be
memorialized by an amendment which shall also amend Tenant's prorata
share of the operating expenses for the building and Project as set
forth in Exhibit E and subject the additional space to all other
conditions as set forth under this Lease. Landlord may not lease
space in building 42A under terms more favorable than those
presented to Tenant in the Offer without first giving Tenant the
option to rent the space under the more favorable terms.
3.6 Early Termination
During the Initial Term, Tenant shall have the right to cancel
the Lease after October 1, 2004, by providing written notice
to Landlord at least 180 days prior to the effective early
termination date and by paying Landlord the present value of
the unamortized costs of the Tenant Improvement Allowance and
brokerage commission which shall be amortized over a seven (7)
year period from the corresponding commencement date of the
leased premises, at a 10% rate of interest.
4. Rent and Operating Expenses
4.1 Base Rent
From and after the corresponding Commencement Date, Tenant shall pay
without deduction or offset, unless such offset of deduction is
specifically provided for in this Lease, a Base Rent for the Premises in
the total amount shown (including subsequent adjustments, if any) in
Section 1.11 of the Basic Lease Terms. The rent shall be due and payable
in equal monthly installments on the first day of each month. If the
Commencement Date occurs on a day other than the first day of the month,
the first installment of Base Rent shall include rent for both the
fractional month, if any, starting with the Commencement Date and the
following calendar month. No demand, notice or invoice shall be required.
4.2 Operating Expenses
4.2.1 Payment of Operating Expenses
Tenant shall pay to Landlord during the term hereof, in addition to
the Base Rent, Tenant's prorata share of all Operating Expenses (as
hereinafter defined) during each year of the term of this Lease.
Notwithstanding the above, the total cost of Operating Expenses, excluding
therefrom Non-Controllable Operating Expenses, shall not increase by more
than seven percent (7%) per annum. Non-Controllable Operating Expenses
shall mean: (i) real estate taxes as defined in Section 4.2.7, (ii)
insurance (Section 11), (iii) Special Improvements (Section 4.2.6), (iv)
utility services, including electricity, sewer gas and water, (v) trash
removal and those services which are the responsibility of the Tenant
(directly metered utilities, janitorial and communications facilities).
Tenant may elect to assume responsibility for any of the Operating
Expenses provided by Landlord, in which case Landlord's cost for such
service shall be deducted from Tenant's prorata share.
4.2.2 Tenant's Prorata Share Defined
The services provided by Landlord for the maintenance, operation and
repair of the Building, Building Area and Project are set forth in Section
4.2.3 and Exhibit "E". It is understood and agreed that the measurements
(rentable square feet, usable square feet and acreage) set forth in this
Lease and Exhibits are calculations provided by the Landlord's engineers
and architects (see Section 2.1) which Landlord and Tenant agree are
reasonable and shall only be subject to revision by common agreement of
the Landlord and Tenant.
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4.2.3 Operating Expenses
Unless the Landlord and Tenant have mutually agreed to an
alternative operating expense allocation, which alternative shall be set
forth in Exhibit E, Operating Expenses shall mean all costs of any kind
paid or incurred by Landlord in operating, cleaning, equipping,
protecting, lighting, repairing, replacing, heating, air-conditioning, and
maintaining the Building as a first class office project, and a proration
of Operating Expenses for all common areas within the Project as provided
in Exhibit E or as otherwise reasonably determined by Landlord, including
by way of illustration but not limitation, all of the following: (i) the
cost of providing, managing, maintaining and repairing all structural and
mechanical portions and components of the Building including, without
limitation, heating and air conditioning systems, plumbing and all other
utilities and the cost of supplies, equipment, maintenance and service
contracts in connection therewith; (ii) a pro rata portion of the cost of:
repairs and general maintenance of all landscaping, parking areas,
structures and signs, and trash removal; (iii) the cost of fire, extended
coverage, boiler, sprinkler, apparatus, public liability, property damage,
and other insurance; (iv) wages, salaries and other labor costs including
taxes, insurance, retirement, medical and other employee benefits for
individuals employed by Landlord or the property manager to solely provide
the direct repair, maintenance and upkeep services to the Building and
Project on either a part or full time basis and only in proportion to the
actual services so rendered; (v) a management fee consistent with the
industry standard for office park management by a national or regional
office management company providing such services in ▇▇▇▇▇ County
(currently 2.5 % of gross rents) whether such management services are
provided by Landlord or a third party, but limited to any actual fee so
incurred; (vi) the cost of supplying, replacing and cleaning employee
uniforms; (vii) a pro rata portion of the actual cost of the Project
manager's offices or maintenance space in the Project provided said
offices and space are devoted solely to the management, operation,
maintenance or repair of the Project and the costs of the office are
shared by all areas within the Project being serviced thereby; (viii) the
cost of business licenses and similar taxes; (ix) any costs or fees
imposed, assessed or levied pursuant to any applicable laws; (x) a prorata
portion of any charges which are payable by Landlord pursuant to a service
agreement with the County of ▇▇▇▇▇ for services which are provided
directly to the Project; (xi) the reasonable costs of contesting the
validity or applicability of any governmental enactment which would
increase Operating Expenses, which costs shall not exceed the monetary
relief to be obtained from such enactment over a two year period; (xii)
personal property taxes and the cost of depreciation or the rental expense
of personal property used in the maintenance, operation and repair of the
Building and Project. For purposes of computing rent adjustments pursuant
to this Article, Operating Expenses for the entire Project shall be
allocated and charged to Tenant in accordance with generally accepted
accounting principals (GAAP) and expressed as an amount per square foot of
Rentable Area.
4.2.4 Exclusion from Operating Expenses
The following items shall not be included in Operating Expenses: (i)
any expenses which under generally accepted accounting principles would
not be considered a maintenance, repair and/or operating expense for a
multi-tenant commercial office facility, (ii) costs associated with the
operation of the business of the entity which constitutes the "Landlord",
as distinguished from the costs of the Building operations, maintenance
and repair; including, but not limited to, the legal and accounting costs
associated with the selling, syndicating, financing, mortgaging, or
hypothecating of any of Landlord's interest in the Building or Project,
the costs of disputes between Landlord and its employees, tenants or
contractors, expenses incurred by Landlord to prepare, renovate, repaint,
redecorate or perform any other work within any space leased to an
existing or prospective tenant of the Building, (iii) expenses for any
item or service which Tenant pays directly to a third party or separately
reimburses Landlord and expenses incurred by Landlord to the extent the
same are reimbursable or reimbursed from any other tenants or third
parties, (iv) expenses in connection with services provided solely to the
premises of other tenants or prospective tenants which are of no benefit
to Tenant, (v) depreciation and/or amortization of
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the Building, (vi) the cost of repairs or other work incurred by reason of
fire, windstorm or other casualty, except for deductibles paid under
insurance contracts, (vii) Landlord's gross receipts taxes, personal and
corporate taxes, inheritance and estate taxes, franchise, gift or transfer
taxes, (viii) the cost of alterations or capital improvements which under
generally accepted accounting principles are properly classified as
capital expenditures, (ix) expenses for the replacement of any item
covered under warranty, (x) the cost of repair necessitated by Landlord's
negligence or willful misconduct, or to correct any latent defects or
original design defects in the Building construction, materials or
equipment, (xi) salaries of employees above the grade of Manager or
Superintendent for the Building or Project and/or salaries of employees
whose time or cost billed as an Operating Expense was not exclusively
devoted to the Building or Project, (xii) fees paid to Landlord or its
affiliates to the extent that such fees exceed the customary amount
charged for the service provided in ▇▇▇▇▇ County, Nevada, (xiii) HVAC
modifications or replacements necessary to comply with federal, state and
local laws which were in existence at the time of the Lease Commencement,
including the Environmental Protection Agency requirements and ASHRE
standards for the maintenance of fresh air and HCVFC/CFC within the
Premises.
The inclusion of the improvements, facilities and services set forth
in Section 4.2, or in Exhibit "E", shall not be deemed to impose an
obligation upon Landlord to either have said improvements or facilities or
to provide those services unless; (i) the Project already has the same, or
(ii) Landlord already provides the services, or (iii) Landlord has agreed
elsewhere in this Lease to provide the same or some of them.
4.2.5 Annual Statement of Operating Expenses
By March 1 of each calendar year, or as soon thereafter as
practicable, but no later than April 1, Landlord shall furnish to Tenant a
statement showing the actual Operating Expenses for the previous calendar
year, and any charge or credit to Tenant necessary to adjust the
Additional Rent previously paid by Tenant to reflect the actual Operating
Expenses. If such statement reveals an underpayment, Tenant shall promptly
pay, within thirty (30) days of written notice, to Landlord an amount
equal to such underpayment (whether or not this Lease has expired or been
terminated), and if such statement shows an overpayment, Landlord shall
credit the next monthly rental payment of Tenant, or, if the Term has
expired, refund the overpayment to Tenant within thirty (30) days of this
determination.
In the event of any good faith dispute as to the amount or nature of
any Operating Expense, Tenant or its agents shall have the right, not more
frequently than once per calendar year, after notice to Landlord and at
reasonable times, to inspect and photocopy Landlord's Operating Expense
records at Landlord's office. Should Tenant dispute such Operating
Expenses, Tenant shall be entitled, not later than one year following the
operating year in question, to retain an independent certified public
accountant or other competent real estate professional applying GAAP, to
audit Landlord's Operating Expense records for the calendar year in
question, which audit shall be completed within sixty (60) days of
commencement. Tenant shall be entitled to escrow any payments for
increases in operating expenses while completing its audit, which escrow
shall not exceed sixty (60) days. Should the audit determine that Tenant
was overcharged, then, within fifteen (15) days of Landlord's inspection
of the audit, Landlord shall credit Tenant the amount of such over-charge
toward the payments of Base Rent and Additional Rent next coming due under
the Lease. Should the audit determine that Tenant has been undercharged,
Tenant shall reimburse Landlord for such amount as Additional Rent next
coming due under the Lease. Tenant agrees to pay the cost of the audit,
unless the audit determines that Landlord's calculation of Operating
Expenses was in error by more than five percent (5%), in which case
Landlord shall pay for the audit.
4.2.6 Cost Saving or Mandated Special Improvements
(a) For any Lease Year during the Term which is included
in the useful life of a "Special Improvement," Tenant shall
pay as Additional Rent an amount equal to the
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product of (i) the "Special Improvement Amortization" per
square foot of Rentable Area in the Building, multiplied by
(ii) the number of square feet of Rentable Area in the
Premises.
(b) "Special Improvements" shall be allowable to pass
through expenditure only in as much as they pertain to any
equipment, device or other improvement acquired or installed
subsequent to the commencement of the construction of Building
42 or 42A, as the case may be, which benefits all tenants in
Building 42 or 42A and is necessary: (i) to achieve economies
in the operation, maintenance and repair of the Buildings (42
and 42A), but only to the extent the improvements in this
subsection (i) are approved by Tenant; (ii) to comply with any
statute, ordinance, code, or government mandated guidelines
which shall be enacted after the execution of this lease
document, or (iii) to comply with any other future
governmental requirement with respect to the Building or any
such relevant portion of the Building's common areas (42 and
42A), including without limitation, fire, health, safety or
construction requirements, as it pertains to the common areas
of the Buildings (42 and 42A).
(c) "Special Improvement Amortization" shall mean the
amount determined by multiplying the actual cost, including
financing costs, of each Special Improvement acquired by
Landlord by the constant annual percentage required to fully
amortize such cost over the useful life of the Special
Improvement (as reasonably determined by Landlord at the time
of acquisition). The Special Improvement Amortization shall be
allocated and charged to Tenant in accordance with generally
accepted accounting and management practices and as an amount
per square foot of Rentable Area.
4.2.7 Real Property Taxes
"Real Property Taxes" shall mean all taxes, assessments (special or
otherwise) and charges levied upon or with respect to the Building and its
underlying property. Real Property Taxes shall include, without
limitation, any tax, fee or excise on the act of entering into this Lease,
on the occupancy of Tenant, the rent hereunder or in connection with the
business of owning and/or renting space in the Project which are now or
hereafter levied or assessed against Landlord by the United States of
America, the State of Nevada or any political subdivision, public
corporation, district or other political or public entity, and shall also
include any other tax, assessment, fee or excise, however described
(whether general or special, ordinary or extraordinary, foreseen or
unforeseen), which may be levied or assessed in lieu of, as a substitute
for, or as an addition to, any other Real Property Taxes. Landlord may pay
any such special assessments in installments when allowed by law, in which
case Real Property Taxes shall include any interest charged thereon,
however, Landlord and Tenant shall mutually agree as to the reasonable
method or paying such installments. Real Property Taxes shall also include
reasonable legal fees, costs and disbursements incurred in connection with
proceedings to contest, determine or reduce Real Property Taxes, as
mutually agreed to by Landlord and Tenant. Real Property Taxes shall not
include those taxes set forth in Section 4.2.4 (vii), income, franchise,
transfer, inheritance or capital stock taxes, unless such taxes are levied
or assessed solely against the Building and underlying property in lieu
of, or as a substitute for the Real Property Tax.
4.2.8 Final Determination
When the final determination is made of Tenant's share of Operating
Expenses for any prior calendar year in which the Lease terminates, Tenant
shall, within thirty (30) days of receipt of written notice pay the entire
increase due over the estimated expenses paid. Conversely, any overpayment
made in the event expenses decrease shall be, within thirty (30) days,
rebated by Landlord to Tenant.
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4.3 Cost of Living Increases:
After the Commencement Date and upon the expiration of each twelve
(12) calendar month period thereafter during the Initial Term hereof, but
subject to the limitations set forth in Section 1.12, rent shall be
adjusted by multiplying the Base Rent by a fraction, which fraction shall
have as its numerator the Consumer Price Index For All Urban Consumers
using the U.S. City Average (Base Period 1982-84=100), as published by the
U.S. Department of Labor, Bureau of Labor Statistics, for the calendar
month which is four (4) months prior to the expiration of the applicable
twelve (12) month period, and which such fraction shall have as its
denominator said Consumer Price Index, as published for the calendar month
which is four (4) months prior to the commencement of the Term. If the
present base of said Index should hereafter be changed, then the new base
shall be converted to the base now used. In the event that the Bureau
should cease to publish said Index figure, then any similar Index
published by any other branch or department of the U.S. Government shall
be used. In the event said Bureau shall publish more than one such index,
the index showing the greater proportionate increase shall be used, and if
none is so published, then another Index generally recognized as
authoritative shall be substituted by agreement of the parties hereto, or
if no such agreement is reached within a reasonable time, either party may
make application to any court of competent jurisdiction to designate such
other index. In any event, the base used by any new index shall be
reconciled to the 1982-84=100 Base Index. In no event shall the rent to be
paid by Tenant pursuant hereto be less than the Base Rent or the Base Rent
as adjusted with respect to the next preceding twelve (12) month period,
whichever is the greater. In the event the numerator of said fraction is
not available at the time of adjustment of the rent as provided herein,
Tenant shall continue to pay the rent established for the next prior
twelve (12) month period; provided, however, Tenant shall promptly pay to
Landlord any deficiency at such time as said rent is adjusted.
4.4 Security Deposit:
Waived.
4.5 Option Rent
As set forth in Exhibit "I" attached hereto and incorporated herein.
5. Use
5.1 Use:
Tenant shall use the Premises for the purposes stated in Section
1.17. Tenant shall not do or permit or suffer anything to be done in or
about the Premises which will obstruct or interfere with the rights of
other tenants or occupants of the Building or Project and Tenant shall
take all necessary action to prevent odors, emissions, fumes, liquids or
other substances or excessive noise from escaping or extending beyond the
Premises. Tenant shall not use or allow the Premises to be used for any
improper, unlawful or extra hazardous purpose or other activity which will
increase the insurance rates on the Building. Tenant shall refrain from
using or permitting the use of the Premises or any portion thereof as
living quarters, sleeping quarters or for lodging purposes. Tenant shall,
at its sole cost and expense, promptly comply with all federal, state,
county, borough or municipal laws, ordinances, rules, regulations,
directives, orders and/or requirements now in force or which may hereafter
be in force with respect to the Premises (other than those that apply to
structural elements of the Building), Tenant's use and occupancy of the
Premises and Tenant's business conducted thereon and with the requirements
of any board of fire underwriters or other similar bodies now or hereafter
constituted relating to or affecting the condition, use or occupancy of
the Premises. Tenant shall be solely responsible for and pay, and shall
indemnify and hold Landlord harmless from and against, all costs, expenses
(including attorneys' fees), fines, damages, penalties and surcharges
incurred or arising by reason of Tenant's failure to promptly and
completely perform Tenant's obligations under this Section.
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5.2 Hazardous Materials:
Landlord shall not cause or permit any Hazardous Materials (as
defined below) to be brought upon, kept or used in or about the Building,
Project or Tenant's Premises, by Landlord, its agents, employees, or
contractors unless such Hazardous Materials are (i) necessary to
Landlord's business or for the maintenance, repair or cleaning of the
Project and Buildings situated therein, and (ii) will be used, kept and
stored in a manner that complies with all Hazardous Material Laws (as
defined below). Should Landlord fail to fulfill its obligations as stated
herein with regard to Hazardous Materials brought on the Project
previously to or during the term of this Lease, Landlord shall indemnify
Tenant as set forth in this Section 5.2 except that the references to
Landlord and Tenant shall be reversed accordingly.
Except for ordinary cleaning and office supply materials, gas for
emergency generators, handset and other batteries used in Tenant's
business, Tenant shall not cause, permit or allow any Hazardous Materials
(as defined below) to be brought upon, kept or used in or about the
Premises, Building and/or Project, by Tenant, its agents, employees,
contractors or invitees, without the prior written consent of Landlord
(which consent Landlord shall not unreasonably withhold as long as Tenant
demonstrates to Landlord reasonable satisfaction that such Hazardous
Materials are necessary to Tenant's business, and will be used, kept and
stored in a manner that complies with all Hazardous Materials Laws (as
defined below) regulating any such Hazardous Materials so brought upon,
used or kept in or about the Premises.)
Indemnification: If (i) Tenant breaches any obligation stated in the
preceding sentence, or (ii) the presence of Hazardous Materials in the
Premises caused or permitted by Tenant results in contamination of the
Premises, the Building, any other Building in the Project, any structure,
system or improvement in the Project, any soil or water in, on, under or
about the Project (collectively, the "Property"), or (iii) contamination
of the Property by Hazardous Materials otherwise occurs for which Tenant
is legally liable to Landlord for damage resulting therefrom, then Tenant
shall indemnify, defend and hold Landlord and landlord's partners,
affiliates, employees, contractors, representatives, lenders, successors
and assigns (collectively, the "Indemnified Parties") harmless from any
and all claims, judgments, damages, penalties, fines, costs, liabilities,
losses, actions or causes of action (including, without limitation,
diminution in value of the Premises, the Building, or any other building
in the Project, any structure, system or improvement in the Project,
damages for the loss of restriction on use of rentable or usable space or
of any amenity, damages arising from any adverse impact on marketing any
of the foregoing, and sums paid in settlement of claims, attomeys' fees
and costs incurred, consultant fees and expert fees) made, brought or
sought against or suffered or incurred by the Indemnified Parties, or any
of them, which arise during or after the Term of this Lease as a result of
such contamination. This indemnification includes, without limitation,
costs incurred in connection with any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision or
required to return the property to the condition existing prior to the
introduction of any such Hazardous Materials for which Tenant is
responsible. Tenant's obligations hereunder shall survive the expiration
or earlier termination of the Term of this Lease.
Tenant and Landlord shall at all times and in all respects comply
with all federal, state and local laws, ordinances and regulations
("Hazardous Materials Laws") relating to industrial hygiene, environmental
protection or the use, analysis, generation, manufacture, storage,
disposal or transportation of any oil or petrochemical products, PCB,
flammable materials, explosives, asbestos, urea formaldehyde, radioactive
materials or waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including, without limitation, any
substances defined as or included in the definition of "Hazardous
Materials", "toxic substances" or "chemicals known to the State to cause
cancer or reproductive toxicity" under any such Hazardous Materials Laws
(collectively, "Hazardous Materials").
5.3 Signs and Roof Rights:
Tenant shall be permitted to place up to three (3) parapet signs on
the Building (42 and 42A as one building) consistent with Landlord's
master sign policy. Tenant shall be solely responsible for the cost and
installation of all signs on the Building and shall remove such signs
within thirty (30) days of the
12
termination/expiration of the Lease and repair any damage to the Building
occasioned thereby. Tenant shall not place any other signs, awnings, or
advertising matter on the Premises or Building without Landlord's prior
written consent and in conformance with Exhibit L. In the event Tenant
shall install any sign which does not meet Landlord's sign criteria and
the Master Sign Plan, Landlord shall notify Tenant of the non-conformance
and Tenant shall have thirty (30) days in which to cure or diligently
pursue the correction of the non-conformance, after which Landlord shall
have the right, without liability to Tenant to enter upon the Premises,
remove the subject sign and repair all damage caused by the removal of the
sign. All costs and expenses incurred by Landlord shall be immediately
paid by Tenant as additional rent. Landlord reserves the right to remove
Tenant's sign during any reasonable period when Landlord repairs,
restores, constructs or renovates the Premises or the Building of which
the Premises is a part. Landlord agrees to expedite such repair or
renovation and replace Tenant's sign immediately thereafter. Tenant shall
not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auctions or sheriff's sales from the Premises.
Tenant shall have the right (at no additional rent) to place
communications devises, antennas, cabling, dishes and related equipment
(Roof Equipment) on the roof of the Building under the following
conditions: (i) the Roof Equipment shall be reasonably shielded or
camouflaged from the view of the surrounding Buildings and shall be
permitted in conformance with all applicable local, state and federal
requirements, (ii) Tenant shall be solely responsible for the cost all
installations and shall indemnify Landlord against breaches of the roof
membrane warranties or damage occasioned thereby, and (iii) Tenant shall,
upon the expiration of this Leases, remove all Roof Equipment and repair
the roof membrane and structure to original conditions, normal wear and
tear excepted.
6. Common Facilities and Vehicle Parking
6.1 Operation and Maintenance of Common Facilities:
During the Term, Landlord shall operate and maintain in a first
class condition all Common Facilities within the Project. The term "Common
Facilities" shall mean all areas outside of the exterior walls, glass or
partitions of the Building and other buildings in the Project and all
other appurtenant areas and improvements provided by Landlord for the
common use of Landlord and tenants and their respective employees and
invitees, including, without limitation, parking areas and structures,
driveways, or private streets, sidewalks, landscaped and planted areas not
located within the premises of any tenant.
6.2 Use of Common Facilities:
The occupancy by Tenant of the Premises shall include
the use of the Common Facilities in common with Landlord and
with others for whose convenience and use the Common
Facilities may be provided by Landlord, subject, however, to
compliance with all rules and regulations as are prescribed
from time to time by Landlord. Landlord shall at all times
during the Term have exclusive control of the Common
Facilities, and may temporarily and reasonably restrain any
use or occupancy, except as authorized by Landlord's rules and
regulations. Such restraint of the Common Facilities shall not
impair Tenant's parking rights or occupancy rights as set
forth in the Lease. Except in the event of Landlord's
negligence or willful misconduct, nothing in this Lease shall
be deemed to impose liability upon Landlord for any damage to
or loss of the property, or for any injury to, Tenant, its
invitees or employees. Landlord may, temporarily close any
portion of the Common Facilities for repairs or alterations,
to prevent a public dedication or the accrual of prescriptive
rights. Under no circumstances shall the right herein granted
to use the Common Facilities be deemed to include the right to
store any property, temporarily or permanently, on the Common
Facilities. Any such storage shall be permitted only by the
prior written consent of Landlord or Landlord's designated
agent, which consent may be revoked at any time. In the event
that any unauthorized storage shall occur, then Landlord shall
have the right, without notice, in addition to such other
rights and remedies that it may have, to remove the property
and charge the cost to Tenant, which cost shall be immediately
payable upon demand by Landlord.
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6.3 Parking:
Subject to Landlord's right to adopt reasonable, nondiscriminatory
modifications and additions to the regulations by written notice to
Tenant, Tenant shall have the parking rights set forth in Exhibit "F".
6.3.1 Parking Maintenance
Landlord shall cause to be maintained, an automobile
parking area ("Parking Area") within the Project for the
benefit and use of the visitors and patrons and employees of
Tenant, and other tenants and occupants of the Project. The
Parking Area shall include the automobile parking stalls,
driveways, entrances, exits, sidewalks and attendant
pedestrian passageways and other areas designated for parking.
Landlord shall have the right and privilege of determining the
nature and extent of the Parking Area, and of making such
changes to the Parking Area from time to time which in its
opinion are desirable and for the best interests of all
persons using the Parking Area, provided however that the
parking allocation set forth in Exhibit F shall not be reduced
or adversely impacted except by improvements, temporary
repairs and maintenance. Nothing contained in this Lease shall
be deemed to create liability upon Landlord for any damage to
motor vehicles of visitors or employees, unless ultimately
determined to be caused by the negligence or willful
misconduct of Landlord, its agents, servants and employees.
Unless otherwise instructed by Landlord, every user of the
Parking Area shall park and lock his or her own motor vehicle.
Landlord shall also have the right to establish, amend and
enforce against all users of the Parking Area reasonable rules
and regulations as Landlord may deem necessary and advisable
for the proper and efficient operation and maintenance of the
Parking Area subject to the rights of Tenant as specified
herein.
6.4 Changes and Additions by Landlord:
Landlord reserves the right to make alterations or additions to the
Building(s) or the Project, or to the attendant fixtures, equipment and
Common Facilities. Landlord may at any time relocate or remove any of the
various buildings (other than Building 42 or 42A after construction is
completed) and may add buildings and areas to the Project from time to
time. Except for those portions of the Premises physically affected by a
change or alteration, no change shall entitle Tenant to any abatement of
rent or other claim against Landlord, provided that the change does not
deprive Tenant of reasonable access to or use of the Premises. Due to the
expansion phasing of the Premises in multiple Buildings, Landlord shall
have the right to reasonably adjust Tenants Parking Area, without
diminishing the number of parking spaces or reasonable adjacency to the
Buildings, to accommodate the construction and "bulk-up" of Tenant's
operations.
7. Maintenance, Repairs and Alterations
7.1 Landlord's Obligations:
1. Building Maintenance and Repair
Except for damage caused by any negligent or willful misconduct of
Tenant, Tenant's employees, suppliers, shippers, customers or invitees,
(in which event Tenant shall repair the damage), Landlord at Landlord's
expense, shall keep in good condition and repair the foundations, exterior
walls, structural condition of interior bearing walls, roof structure of
the Building, utility installations of the Common Facilities and all parts
thereof, as well as providing the services for which there is an Operating
Expense pursuant to Section 4.2. Landlord shall not be obligated to paint
the Building's interior walls. Landlord shall not be required to maintain,
repair or replace windows, Tenant's signs, the doors or plate glass of the
Building unless damage thereto was caused by Landlord or its agents or the
damage/repair covered under the insurance policy maintained by Landlord on
the Premises. Landlord shall use best efforts to begin repairs under this
Section 7.1 as soon as reasonably possible, but later than ten (10) days
after receipt of written notice from Tenant of the need for such repairs.
If Landlord has not
14
performed or undertaken to perform maintenance or repair services required
under this Lease within ten (10) days of receipt of written notice from
Tenant, Tenant may take such reasonable action as is necessary to make
repairs or perform such services and deduct the cost of such performance
from any sums due Landlord hereunder. In case of emergencies, the
aforesaid ten (10) day period shall be reduced to such period as is
reasonable under the circumstances and Tenant shall only be required to
provide oral notice to Landlord. Landlord shall not be liable for damages
or loss of any kind or nature by reason of Landlord's failure to furnish
any such services when such failure is caused by strikes, lockout or any
other labor disturbances or disputes of any character beyond the
reasonable control of Landlord.
2. ADA and Health Laws
Landlord represents and warrants that upon the Commencement Date,
the Premises shall be in compliance with the requirements of the Americans
with Disabilities Act of 1990 ("ADA"), and other Federal, State or local
laws relating to environmental, health and safety matters ("Health Laws").
Landlord further represents and warrants that future construction, repairs
or alterations to the Building, Plaza or Project shall be in compliance
with the requirements of the ADA and Health Laws, as then recognized and
applied. If alterations to the Premises, Building, Plaza or Project are
required due to Landlord's failure to comply with the ADA or Health Laws,
as they were applied at the time of construction or alteration, then
Landlord shall be fully responsible for compliance at Landlord's sole cost
and expense, which shall not be passed through to Tenant. However, should
Federal, State or Local Authorities enact changes to the ADA or Health
Laws such that alterations to the Building, Plaza or Project are required
to accommodate Tenant, its employees and/or visitors, those necessary and
required alterations shall be made by Landlord and amortized as an
Operating Expense under generally acceptable accounting principals. My
modifications to the Premises which are required under the ADA or Health
Laws due to Tenant's floor plan or specific use thereof shall be made by
Tenant, at Tenants sole cost and expense, in a good and workmanlike
manner.
7.2 Tenant's Obligations:
7.2.1 Premises Repair and Maintenance
At Tenant's expense, Tenant shall keep in good order,
condition and repair the Premises and every part thereof,
including, without limiting the generality of the foregoing,
all plumbing, heating, ventilating and air conditioning
systems, electrical and lighting facilities and equipment
within the Premises, fixtures, interior walls (excluding
structural and bearing walls) and interior surfaces of
exterior walls, ceilings, windows (including glass and
casings), doors (including casings), plate glass and skylights
located within the Premises. Landlord reserves the right to
procure and maintain a full service ventilating and air
conditioning system maintenance contract for the entire
Project, including the Premises, and if Landlord so elects,
the cost thereof shall be an Operating Expense. Should
Landlord assign any of Tenant's obligations hereunder to an
independent contractor, Tenant's shall be relieved of any
further responsibility pertaining to such obligation and the
contractor shall assume the responsibility of performance.
7.2.2 Remedy for Failure to Perform
If Tenant fails to perform Tenant's obligations under
this Section 7.2, Landlord may enter upon the Premises after
ten (10) days' prior written notice to Tenant (except in the
case of emergency, in which event, no notice shall be
required), perform such obligations on Tenant's behalf and put
the Premises in good order, condition and repair, and the cost
thereof shall be due and payable as additional rent to
Landlord together with Tenant's next Base Rent installment.
15
7.3 Alterations and Additions:
7.3.1 Consent
Tenant shall not, without Landlord's prior written
consent, which shall not be unreasonably withheld, make any
alterations, improvements, additions or Utility Installations,
on or about the Premises, or the Project, except for
nonstructural alterations to the interior of Premises, the
annual cost of which shall not exceed One Hundred Thousand
Dollars ($100,000). In any event, Tenant shall make no change
or alteration to the exterior of the Premises, the exterior of
the Building, or the Project without Landlord's prior written
consent. As used in this Lease, the term "Utility
Installations" shall mean window coverings, air lines, power
panels, electrical distribution systems, lighting fixtures,
space heaters, air conditioning, plumbing and fencing, but
shall specifically exclude Tenant's communications facilities
and roof top equipment used in the operation of Tenant's
business. Landlord may require that Tenant remove any and all
of said alterations, improvements, additions or Utility
Installations at the expiration of the term, and restore the
Premises and the Project to their prior condition provided
that Landlord shall have so notified Tenant at the time it
grants consent therefore. Tenant, Tenant's contractor and
materialmen agree to abide by the reasonable terms and
conditions for construction within the Building or on the
Project set forth by Landlord. Should Tenant make any
alterations, improvements, additions or Utility Installations
without the prior approval of Landlord, Landlord may, at any
time during the term of this Lease, require that Tenant remove
any or all of same. In the event that either Landlord or
Tenant, during the Term, shall be required by the order or
decree of any court, or any other governmental authority, or
by law, code or ordinance, (including but not limited to the
Americans With Disabilities Act as amended) to repair, alter,
remove, reconstruct, or improve any part of the interior area
of the Premises due to Tenant's specific use, interior space
plan or alteration of the Premises, then Tenant shall make or
Tenant shall be required to permit Landlord to perform such
repairs, alterations, removals, reconstruction's, or
improvements without effect whatsoever to the obligations or
covenants of Tenant herein contained, at Tenant's sole cost
and expense, and Tenant hereby waives all claims for damages
or abatement of rent because of such repairing, alteration,
removal, reconstruction, or improvement to the interior area
of the Premises. Should government mandated alterations or
improvements to the exterior of the Premises or parking areas
impair Tenant's use or access to the Premises to the extent
that Tenant is unable to operate its business, then rent shall
▇▇▇▇▇ during such period of impairment.
7.3.2 Written Notice
Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Project that
Tenant shall desire to make and which requires the consent of
Landlord, shall be presented to Landlord in written form with
proposed detailed plans. Landlord's consent shall be provided
no later than five (5) business days after requested, shall
not be unreasonably withheld and shall be deemed conditioned
upon Tenant acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to
Landlord prior to the commencement of the work and the
compliance by Tenant of all conditions of said permit in a
prompt and expeditious manner.
7.3.3 Payment of Labor
Tenant shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or
for Tenant at or for use in the Premises, which claims are, or
may be secured by, any mechanic's or materialman's lien
against the Premises, or the Project, or any interest therein.
Tenant shall give Landlord not less than ten (10) days' notice
prior to the commencement of any work in the Premises, and
Landlord shall have the right to post notices of
non-responsibility in or on the Premises or the Building as
provided by law. If Tenant shall in good faith contest the
validity of any such lien, claim or demand, then Tenant shall,
at its sole expense, defend itself and Landlord against the
same and shall pay and satisfy any such adverse judgment that
may be rendered thereon, before the enforcement thereof
against Landlord or the Premises or the Project upon the
condition that if Landlord shall require,
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Tenant shall furnish to Landlord a surety bond satisfactory to
Landlord in an amount equal to such contested lien claim or
demand indemnifying Landlord against liability for the same
and holding the Premises and the Project free from the effect
of such lien or claim.
7.3.4 Alterations Property of Landlord
All alterations, improvements, additions and Utility
Installations (excluding therefrom any roof top
installations), which may be permanently attached to the
Premises, shall be the property of Landlord and shall remain
upon and be surrendered with the Premises at the expiration of
the Term, unless Landlord requires their removal at the time
of installation. Notwithstanding the provisions of this
paragraph, Tenant's machinery, equipment and trade fixtures
(including, without limitation, rooftop equipment, all
antennas, coaxial cabling equipment and related hardware
installed on the roof or in or about the Premises), other than
that which is permanently affixed to the Premises, and other
than Utility Installations, shall remain the property of
Tenant and may be removed by Tenant subject to the provisions
of Section 7.2
7.4 Utility Additions:
Landlord reserves the right to install new or additional utility
facilities throughout the Building and the Common Facilities for the
benefit of Landlord or Tenant, or any other tenant of the Project,
including, but not limited to, such utilities as plumbing, electrical
systems, security systems, communication systems and fire protection and
detection systems, so long as such installations do not unreasonably
interfere with Tenant's use of the Premises and provided that all such
installations are coordinated with Tenant and, if necessary to avoid
unreasonable interference with Tenant's operations, such installations are
carried out during non-business hours.
7.5 Entry and Inspection:
Landlord shall at all times have the reasonable right, provided
reasonable advance notice is given to Tenant except where Landlord
determines an emergency exists and provided that Landlord abides by
Tenant's reasonable security and privacy requirements, to enter the
Premises to inspect them, to supply services in accordance with this
Lease, to protect the interests of Landlord in the Premises, (or, during
the last one hundred and eighty (180) days of the Term, or when an uncured
tenant default exists, to prospective tenants), to alter, improve or
repair the Premises or any other portion of the Building (with Tenant's
prior acknowledgment and concurrence), or as otherwise permitted in this
Lease, all without being deemed to have caused an eviction of Tenant and
without abatement of rent except as provided elsewhere in this Lease. If
Tenant permanently vacates the Premises and fails to pay rent, Landlord
may enter the Premises and alter them without abatement of rent and
without liability to Tenant. Landlord shall at all times have and retain a
key or code which unlocks all of the doors in the Premises, excluding
Tenant's vaults and safes, and Landlord shall have the right to use any
and all means which Landlord may deem proper to open the doors in an
emergency in order to obtain entry to the Premises. Any entry to the
Premises obtained by Landlord pursuant to this Section 7.5 shall not under
any circumstances be deemed to be a forcible or unlawful entry into, or a
detainer of the Premises, or an eviction of Tenant from the Premises.
7.6 Tenant's Non-Standard Building Improvements:
Tenant shall commence the installation of fixtures, equipment and
any other Tenant's Work as set forth in Exhibits "B" or "C" promptly upon
substantial completion of Landlord's Work and Tenant shall diligently
pursue such installation and work to completion. All of Tenant's Work
shall be at Tenant's sole cost and expense and shall be pursuant to plans
and specifications which meet Landlord's reasonable approval. If required
by Landlord, Tenant shall provide its own trash container(s) as needed for
containment and removal of construction debris and remove said trash
containers prior to opening for business. The location of the trash
containers shall be designated by Landlord. During the Tenant improvement
period, Tenant and its contractor, if any, shall keep the Common
Facilities free of all construction and related debris. Prior to opening
for business, Tenant shall remove all construction and related debris from
the Premises and Common Facilities, and all
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such areas shall be in broom clean condition. Tenant's contractor shall
name Landlord, its employees and agents as additional named insureds on
contractor's insurance policies. All Tenant's Work shall be undertaken and
completed in a good, workmanlike manner, and Tenant shall obtain all
necessary governmental permits, licenses and approvals with respect
thereto and shall fully comply with all governmental statutes, ordinances,
rules and regulations pertaining thereto. Tenant covenants that no work by
Tenant or Tenant's employees, agents or contractors shall disrupt or cause
a slowdown or stoppage of any work conducted by Landlord on the Premises
or Project of which it is a part except in cases of "Force Majeure" as set
forth on Section 20.13.
7.7 Landlord's Improvements:
If the Premises is not presently complete, Landlord shall deliver to
Tenant, and Tenant agrees to accept from Landlord, possession of the
Premises upon substantial completion of Landlord's Work as described in
Landlord's Guidelines for Standard Tenant Improvements (Exhibit "C"
attached hereto and made a part hereof.) Landlord shall, as soon as is
reasonably possible after the execution of this Lease, commence and pursue
to completion the improvements to be erected by Landlord. The term
substantial completion of Landlord's Work' is defined as the date on which
Landlord, or its project architect, notifies Tenant in writing that the
Premises is substantially complete to the extent of Landlord's work, with
the exception of such work as Landlord cannot complete until Tenant
performs necessary portions of its work.
8. Taxes and Assessments on Tenant's Property
8.1 Taxes on Tenant's Property:
Tenant shall be liable for and shall pay all taxes and assessments
levied against all personal property of Tenant located in the Premises. If
any taxes on Tenant's personal property are levied against Landlord or
Landlord's property is increased by the inclusion of a value placed upon
the personal property of Tenant, Landlord shall timely notify Tenant of
such levy and cooperate with Tenant in contesting the validity thereof If
Landlord is thereafter required to pay the taxes based upon the increased
assessment, Tenant shall pay to Landlord the taxes so levied against
Landlord or the proportion of the taxes resulting from the increase in the
assessment.
9. Utilities
9.1 Multi-Tenant Building
Landlord shall provide and maintain necessary easements and, to the extent
enforceable by law, cause public utilities to furnish at all times during the
term of this Lease, as appropriate, electricity, telephone, gas, water and
sewage utilized in operating any and all facilities serving the Premises. Tenant
shall pay, prior to any delinquency, for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises. If any such
services are not separately metered to the Premises, Tenant shall pay, prior to
any delinquency, Tenant proportion of those charges jointly metered with other
premises in the Project.
9.2 Liability of Landlord
Except in the event of Landlord's negligence or willful misconduct,
Landlord shall not be liable for failure to furnish, or for suspension or delays
in furnishing, any such utility services caused by breakdown, maintenance or
repair work, strike, civil commotion, governmental regulations or any other
cause or reason whatever beyond the control of Landlord. Likewise, except in the
event of Landlord's negligence or willful misconduct, the suspension
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or interruption of services shall not result in abatement of rent, be deemed an
eviction or release Tenant of performance of Tenant's obligations under this
Lease.
Notwithstanding any other provisions of this Lease, in the event there is
an interruption of essential services by reason of Landlord's negligence, or due
to Landlord's performance of repairs, additions, alterations, or replacements,
which interruption of essential services prevents Tenant from using all of the
Premises for the conduct of its business for a period in excess of two (2)
business days, and provided Tenant does not occupy the Premises during such
period, except for such limited times and purposes as do not invoke any
exclusion in Landlord's applicable insurance policy, then Tenant shall be
entitled to ▇▇▇▇▇ the payment of all Rent and additional rent routinely due
pursuant to the terms and provisions of this Lease for the period commencing on
the third (3rd) business day of the interruption of such essential services and
ending on the earlier of (i) the date Tenant reoccupies the Premises for the
conduct of its business therein or (ii) the date Landlord shall have restored
the essential services so interrupted.
10. Assignment and Subletting
10.1 Rights of Parties:
10.1.1 Non-Assignable
Neither Tenant, nor Tenant's legal representatives,
successors or assigns, shall assign, mortgage or encumber this
Lease, or sublet or permit the Premises or any part thereof to
be used or occupied by others, without the prior written
consent of Landlord in each instance, which shall not be
unreasonably withheld or delayed, and any such assignment,
mortgage, encumbrance, sublease or permission without such
consent shall be voidable at the option of Landlord. If this
Lease is assigned, or if the Premises or any part thereof is
sublet or occupied by any party other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to
the rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver by Landlord
of Tenant's default, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from
the further performance by Tenant of the obligations on the
part of Tenant set forth herein. The consent by Landlord to an
assignment or subletting shall not be construed to relieve
Tenant, the assignee or the subtenant from obtaining the
express consent in writing of Landlord to any further
assignment or subletting or to release Tenant from any
liability, whether past, present or future, under this Lease
or from any liability under this Lease because of Landlord's
failure to give notice of default by Tenant (or by the
assignee or subleases pursuant to the assumption agreement
described below) under any of the terms, covenants,
conditions, provisions or agreements of this Lease.
Notwithstanding the foregoing, no consent shall be required
for an assignment or subletting by Tenant to any subsidiary of
Tenant, its affiliate or related company. Notwithstanding
anything to the contrary contained in this Agreement, Tenant
may assign, mortgage, pledge, hypothecate or otherwise
transfer without consent its interest in this Agreement to any
financing entity, or agent on behalf of any financing entity
to whom Tenant (i) has obligations for borrowed money or in
respect of guaranties thereof, (ii) has obligations evidenced
by bonds, debentures, notes or similar instruments, or (iii)
has obligations under or with respect to letters of credit,
bankers acceptances and similar facilities or in respect of
guaranties thereof.
10.1.2 Notice
If Tenant desires to transfer an interest in this Lease,
it shall first notify Landlord of its desire and shall first
offer such space to the Landlord for recapture by sending
notification to Landlord of the amount of space and the date
the space will become available (the Recapture Notice). If
Landlord fails to accept recapture of the space by notice to
Tenant within ten (10) business days from the Recapture
Notice, Tenant shall be entitled to effect such a transfer
subject to existing use exclusions exercised by other existing
tenants and
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Landlord's reasonable approval, which shall not be
unreasonably withheld, conditioned or delayed; and if such
transfer be in the form of a sublease, Landlord's approval
shall not be required provided that Tenant shall continue to
be liable under this Lease. Prior to the effectiveness of any
transfer hereunder, and as a precondition of any approval
required hereunder, Tenant shall submit in writing to
Landlord: (i) the name and address of the proposed transferee;
(ii) the nature of any proposed subtenant's or assignee's
business to be carried on in the Premises; (iii) the terms and
provisions of any proposed sublease or assignment; and (iv)
any other information requested by Landlord and reasonably
related to the transfer.
If Landlord consents to the proposed transfer, Tenant
may within ninety (90) days after the date of the consent
effect the transfer upon the terms described in the
information furnished to Landlord; provided that any material
change in the terms shall be subject to Landlord's consent as
set forth in this Section. Landlord shall approve or
disapprove any requested transfer within fifteen (15) days
following receipt of Tenant's written request and the
information set forth above.
10.1.3 Reimbursement of Costs
Tenant shall reimburse Landlord for Landlord's
reasonable costs and attorneys' fees incurred in connection
with the processing and documentation of any requested
transfer, not to exceed Five Hundred Dollars ($500).
10.2 Effect of Transfer:
No subletting or assignment, even with the consent of Landlord,
shall relieve Tenant of its obligation to pay rent and to perform all its
other obligations under this Lease unless Landlord accepts the transferee
as a reasonable replacement for Tenant which acceptance shall be based
upon, the transferee's demonstrated ability to meet the financial
obligations of Tenant under this Lease. Moreover, Tenant shall indemnify
and hold Landlord harmless, as provided in Section 11.5, for any acts or
omission by an assignee or subtenant unless Landlord accepts the
transferee as a replacement for Tenant. Each transferee, other than
Landlord, shall assume all obligations of Tenant under this Lease and
shall be liable jointly and severally with Tenant for the payment of all
rent, and for the due performance of all of Tenant's obligations under
this Lease. No transfer shall be binding upon Landlord unless any document
memorializing the transfer is delivered to Landlord and, if the transfer
is an assignment of sublease, both the assignee/subtenant and Tenant
deliver to Landlord an executed document which contains: (i) a covenant of
assumption by the assignee/subtenant, and (ii) an indemnification
agreement by Tenant, both satisfactory in substance and form to Landlord
and consistent with the requirements of this Article; provided that the
failure of the assignee/subtenant or Tenant to execute the instrument of
assumption shall not release either from any obligation under this Lease.
The acceptance by Landlord of any payment due under this Lease from
any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease to be a consent to any transfer. Consent by
Landlord to one or more transfers shall not operate as a waiver or
estoppel to the future enforcement by Landlord of its rights under this
Lease.
11. Insurance and Indemnity
11.1 Tenant's Insurance:
Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering
trade fixtures, merchandise and other personal property from time to time
in on or about the Premises, in amounts reasonable in relation to the
value of the property insured and Tenant's financial condition, from time
to time, providing protection against any peril included with the
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classification "Fire and Extended Coverage," together with insurance
against sprinkler damage, vandalism and malicious mischief
Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term (and any other Option
Term(s)), Tenant shall provide, pay for and maintain in effect workers
compensation insurance as required by law and comprehensive public
liability and property damage insurance with respect to the construction
of improvements on the Premises and the operations of Tenant in, on or
about the Project, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability. Such liability insurance shall name Landlord as an additional
insured on such insurance policy. Tenant shall also procure adequate
insurance to cover all of Tenant's obligations under this Lease,
including, but not limited to Tenant's obligations to indemnify Landlord
as set forth in Section 11.5 below.
11.2 Landlord's Insurance:
Landlord shall provide the following types of insurance, with or
without deductible, reasonable in relation to the value of the property
insured and Landlord's financial condition from time to time, and the
common practice of landlords of comparable properties in the Las Vegas
area: "all risk" property insurance, subject to standard exclusions,
covering the Building, Premises and Tenant Improvements, and such other
risks as Landlord or its mortgages may from time to time deem appropriate.
Landlord shall not be required to carry insurance of any kind on Tenant's
property, including leasehold improvements, trade fixtures, furnishings,
equipment, plate glass, signs and all other items of personal property,
and shall not be obligated to repair or replace the property should damage
occur. All proceeds of insurance maintained by Landlord upon the Premises
and Project shall be the property of Landlord.
11.3 Waiver of Subrogation:
Landlord and Tenant hereby waive any rights each may have against
the other on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be, or to the Premises or its contents, and which
may arise out of or incident to the perils insured against under Section
11.2, which perils occur in, on or about the Premises, whether due to the
negligence of Landlord or Tenant or their agents, contractors and/or
invitees to the extent of such insurance (including any deductibles). The
parties shall obtain from their respective insurance companies insuring
the property a waiver of any right of subrogation which said insurance
companies may have against Landlord or Tenant as the case may be.
11.4 Policies:
All insurance to be maintained by Tenant or Landlord under this
Lease shall be procured from an insurance company or companies rated
"A-11" or better in "Best's Insurance Guide" and admitted in the State of
Nevada, and Tenant shall deliver to Landlord, prior to taking occupancy of
the Premises, Certificates of Insurance required to be maintained by
Tenant hereunder, together with evidence of the payment of the premiums
thereof The policies evidencing such insurance shall provide that they
shall not be canceled except after thirty (30) days prior written notice
of intention to modify or cancel has been given to Landlord and any lien
holder named as beneficiary thereunder. At least ninety (90) days prior to
the expiration date of any policy to be maintained by Tenant hereunder,
Tenant shall deliver to Landlord a renewal policy or "binder" therefor.
11.5 Tenant's Indemnity:
Tenant shall defend, indemnify and hold harmless Landlord, its
agents and any and all affiliates of Landlord, including, without
limitation, any partners, co-venturers, corporations or other entities
controlling, controlled by or under common control with Landlord, from and
against any and all claims or liabilities arising from Tenant's use or
occupancy of the Premises, the Building, the Project or the Common
Facilities, or from the conduct of its business, or from any activity,
work or thing done, permitted or suffered by Tenant or its agents,
employees, invitees or licensees in or about the Premises, the Building,
the Project or the Common Facilities, or from any default in the
performance of
21
any obligation on Tenant's part to be performed under this Lease, or from
any act of negligence or willful misconduct of Tenant or its agents,
employees, visitors, patrons, guests, invitees, or licensees. In case
Landlord, its agent or affiliates are made a party to litigation commenced
by or against Tenant and related to Tenant's occupancy of the Premises,
then Tenant shall protect and hold Landlord harmless and shall pay all
reasonable costs, expenses and attorneys' fees incurred or paid by
Landlord in connection with the litigation.
11.6 Landlord's Indemnity:
Landlord shall defend, indemnify and hold harmless Tenant, its
agents and any and all affiliates of Tenant, including, without
limitation, any partners, co-venturers, corporations or other entities
controlling, controlled by or under common control with Tenant, from and
against any and all claims or liabilities arising from the negligent acts
or willful misconduct of Landlord, its agents or affiliates. Except for
the performance of Landlord's responsibilities as set forth herein,
Landlord shall not be liable to Tenant, its employees, agents and
invitees, and Tenant hereby waives all claims against Landlord for loss of
or damage to any property, or any injury to any person, or loss or
interruption of business or income, resulting from, but not limited to
Tenant's failure to properly maintain the Premises and Building in a
commercially safe and reasonable manner, from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak or flow
from or into any part of the Premises or from the breakage, leakage,
obstruction or other defects of the pipes, sprinklers, wires, appliances,
plumbing, air conditioning, electrical works or other fixtures in the
Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Building. Tenant shall
immediately notify Landlord in case of fire or accident in the Premises,
the Building or the Project and of defects in any improvements or
equipment.
12. Damage or Destruction
12.1 Restoration:
12.1.1 Damage Repair
If the Building of which the Premises are a part is
damaged, Landlord shall repair that damage as soon as
reasonably possible, at its expense, unless: (i) Landlord
reasonably determines that the cost of repair would exceed ten
percent (10%) of the full replacement cost of the Building
("Replacement Cost") and the damage is not covered by
Landlord's fire and extended coverage insurance (or by normal
extended coverage policy should Landlord fail to carry that
insurance); or (ii) Landlord reasonably determines that the
cost of repair would exceed twenty-five percent (25%) of the
Replacement Cost; or (iii) Landlord reasonably determines that
the cost of repair would exceed ten percent (10%) of the
Replacement Cost and the damage occurs during the final twelve
(12) months of the Term.
Should Landlord elect not to repair the damage for one
of the preceding reasons, Landlord shall so notify Tenant in
writing within fifteen (15) days after the damage occurs and
this Lease shall terminate as of the date of that notice and
the obligations of the parties shall terminate as if the Lease
term had naturally expired.
12.1.2 Termination of Lease
Unless Landlord elects to terminate this Lease in
accordance with subsection 12.1.1 above, this Lease shall
continue in effect for the remainder of the Term. However,
provided that if the damage is so extensive as to reasonably
prevent Tenant's substantial use and enjoyment of the Premises
for more than fifteen (15) days, then Tenant may elect to
terminate this Lease by written notice to Landlord within
fifteen (15) days of receiving Landlord's notice of intent not
to repair.
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12.1.3 Rent Abatement
Commencing on the date of any damage to the Premises,
and ending on the date the damage is repaired or this Lease is
terminated, whichever occurs first, the rental to be paid
under this Lease shall be abated in the same proportion that
the floor area of the Premises that is rendered unusable by
the damage from time to time bears to the total floor area of
the Premises.
12.1.4 Cost of Repair
Notwithstanding the provisions of the above subsections
of this Section, if the damage is due to the negligence or
willful misconduct of Tenant or its employees, subtenants,
invitees or representatives, the cost of any repairs not
covered by Landlord's insurance on the Building shall be borne
by Tenant, and Tenant shall not be entitled to rental
abatement or termination rights. In addition, the provisions
of this Section shall not be deemed to require Landlord to
repair any improvements or fixtures that Tenant is obligated
to repair or insure pursuant to any other provision of this
Lease, however Landlord shall pass through to Tenant any
reimbursements from insurance for such repairs.
13. Eminent Domain
13.1 Total or Partial Taking:
If all or a material portion of the Premises is taken by any lawful
authority by exercise of the right of eminent domain, or sold to prevent a
taking, either Tenant or Landlord may terminate this Lease effective as of
the date possession is required to be surrendered to the authority. In the
event title to a portion of the Building or Project, other than the
Premises, is taken or sold in lieu of taking, and if Landlord elects to
restore the Building in such a way as to alter the Premises materially,
Landlord or Tenant may terminate this Lease, by written notice to the
other, effective on the date of vesting of title. In the event neither
party has elected to terminate this Lease as provided above, then Landlord
shall promptly, after receipt of a sufficient condemnation award, proceed
to restore the Premises to substantially their condition prior to the
taking, and a proportionate allowance shall be made to Tenant for the rent
corresponding to the time during which, and to the part of the Premises of
which, Tenant is deprived on account of the taking and restoration. In the
event of a taking, Landlord shall be entitled to the entire amount of the
condemnation award without deduction for any estate or interest of Tenant;
provided that nothing in this Section shall be deemed to give Landlord any
interest in, or prevent Tenant from seeking any award against the taking
authority for the taking of personal property and fixtures belonging to
Tenant or for relocation or business interruption expenses recoverable
from the taking authority.
13.2 Temporary Taking:
No temporary taking of the Premises by governmental authority shall
terminate this Lease or give Tenant any right to abatement of rent,
however, any award specifically attributable to a temporary taking of the
Premises shall belong entirely to Tenant. A temporary taking shall be
deemed to be a taking of the use or occupancy of the Premises for a period
not to exceed ten (10) days.
13.3 Taking of Parking Area:
In the event there shall be a taking of the Tenant's Parking Area
such that Landlord can no longer provide sufficient parking to comply with
this Lease, Landlord may substitute reasonably equivalent parking in a
location within three minutes walking distance of the Building; provided
that if Landlord fails to make that substitution within fifteen (15) days
following the taking and if the taking materially impairs Tenant's use and
enjoyment of the Premises, Tenant may, at its option, terminate this Lease
by notice to Landlord. If this Lease is not so terminated by Tenant, there
shall be no abatement of rent and this Lease shall continue in effect.
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14. Subordination; Estoppel Certificate
14.1 Subordination:
14.1.1 Subordinate to all underlying encumbrances
At the option of Landlord, this Lease shall be either superior
or subordinate to all ground or underlying Leases, mortgages,
deeds of trust and conditions, covenants and restrictions,
reciprocal easements and rights of way, if any, which may
hereafter affect the Premises or Project, and to all renewals,
modifications, consolidations, replacements and extensions
thereof; provided, that so long as Tenant is not in default
under this Lease, this Lease shall not be terminated nor shall
Tenant's quiet enjoyment of the Premises be disturbed. Tenant
shall also, upon the reasonable written request of Landlord,
execute and deliver those instruments, including the Estoppel
Certificate attached as Exhibit N, as may be required from
time to time to subordinate the rights of Tenant under this
Lease to any ground or underlying Lease or to the lien of any
mortgage or deed of trust, or if requested by Landlord to
subordinate in whole or in part, any ground or underling Lease
or the lien of any mortgage or deed to trust to this Lease.
14.1.2 Attornment
Tenant convenants and agrees to attorn to any successor to
Landlord's interest in any ground or underlying lease, and in
the event, this Lease shall continue as a direct lease between
Tenant herein and such landlord or its successor and provided
that such landlord shall be subject to the obligations and
responsibilities due Tenant under this Lease
14.1.3 Failure to Perform
Waived.
14.2 Estoppel Certificate:
14.2.1 Time Limit
Tenant shall, at any time not more than twenty (20) days
after receipt from Landlord, execute, acknowledge and deliver
to Landlord the Estoppel Certificate attached hereto as
Exhibit N. The Estoppel Certificate may be relied upon by any
prospective purchaser or encumbrance of all or any portion of
the Building or Project.
14.2.2 Failure to Perform
Tenant's failure to deliver the Estoppel Certificate
within the provided time shall be conclusive upon Tenant that:
(i) this Lease is in full force and effect without
modification except as may be represented by Landlord, (ii)
there are no uncured defaults in Landlord's performance, and
(iii) not more than one month's rental has been paid in
advance.
15. Defaults and Remedies
15.1 Tenant's Default
In addition to any other event of default set forth in this Lease,
the occurrence of any one or more of the following events shall constitute
a default by Tenant:
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15.1.1 Abandonment
The abandonment of the Premises by Tenant. Abandonment
is defined to include, but not limited to, any absence by
Tenant from the Premises for reasons other than a default by
Landlord or the Premises being determined unusable under
Section 12 for fifteen (15) consecutive days (or longer) or
sixty (60) days (whether consecutive or not) in any calendar
year accompanied by Tenant's failure to pay rent covering the
abandonment period.
15.1.2 Failure to Pay Rent
The failure by Tenant to make any payment of rent or
additional rent required to be made by Tenant, where the
failure continues for a period of five (5) days notice thereof
from Landlord. For purposes of this default and remedy
provision, the term "additional rent" shall be deemed to
include all amounts of any type whatsoever, other than Base
Rent, to be paid by Tenant pursuant to the terms of this
Lease.
15.1.3 Assignment
Assignment, sublease, encumbrance or other transfer of
the Lease by Tenant, either voluntarily or by operation of
law, whether by judgment, execution transfer by intestacy or
testacy, or other means, without the prior written consent of
Landlord, if necessary.
15.1.4 Materially False Financial Statements
The discovery by Landlord that any financial statement
provided by Tenant was materially false.
15.1.5 Failure to Observe Covenants
The failure or inability by Tenant to observe or perform
any of the express or implied covenants or provisions of this
Lease to be observed or performed by Tenant, other than as
specified in any other subsection of this Section, where the
failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant. However, if the nature
of the failure is such that more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commences the cure within
thirty (30) days and thereafter diligently pursues the cure to
completion.
15.1.6 Assignment to Creditors/Bankruptcy
The making by Tenant of any general assignment for the
benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a debtor under the Bankruptcy
Code or to have debts discharged or a petition for
reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days; the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets or of Tenant's interest
in this Lease, if possession is not restored to Tenant within
thirty (30) days; the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interests in this Lease where the
seizure is not discharged within thirty (30) days; or Tenant's
convening of a meeting of its creditors for the purpose of
effecting a moratorium upon or composition of its debts.
Landlord shall not be deemed to have knowledge of any
event described in this subsection unless notification in
writing is received by Landlord, nor shall there be any
presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary
to applicable law, the provision shall be of no force or
effect.
15.2 Landlord's Remedies:
In the event that Landlord elects to declare a breach of this Lease,
then Landlord shall have the right to give Tenant notice of intention to
end the term of this Lease and, after any cure period provided in this
Lease, thereupon the term of this Lease shall expire as fully and
completely as if that day were the
25
day herein definitely fixed for the expiration of the Term and Tenant
shall then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided. If Tenant fails to so quit and
surrender the Premises as aforesaid, Landlord shall have the right as
provided by law to evict Tenant and the legal representatives of Tenant
and all other occupants of the Premises by unlawful detainer or other
summary proceedings, or otherwise, and remove their effects and regain
possession of the Premises (but Landlord shall not be obligated to effect
such removal).
In the event of any breach of this Lease by Tenant (and regardless
of whether or not Tenant has abandoned the Premises) this Lease shall not
terminate unless Landlord, at Landlord's option, elects at any time when
Tenant is in breach of this Lease to terminate Tenant's right to
possession or, at Landlord's further option, by the giving of any notice
(including but not limited to any notice preliminary or prerequisite to
the bringing of legal proceedings in unlawful detainer) terminating
Tenant's right to possession. For so long as this Lease continues in
effect, Landlord may enforce all of Landlord's rights and remedies under
this Lease, including the right to recover all rent as it becomes due
hereunder. For the purposes of this paragraph, the following shall not
constitute termination of Tenant's right to possession: acts of
maintenance or preservation or efforts to relet the Premises, or the
appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under this Lease.
In the event of termination of this Lease, or termination of
Tenant's right to possession as the result of Tenant's breach of this
Lease, Landlord shall have the right:
a. To relet the Premises for such rent and upon such terms as are
reasonable under the circumstances. If the full rent reserved under this
Lease (and any of the costs, expenses or damages indicated below) shall
not be realized by Landlord, Tenant shall be liable for all damages
sustained by Landlord, including, without limitation, deficiency in rent,
reasonable attorneys' fees, other collection costs, brokerage fees, and
expenses of placing the Premises in first-class rentable condition.
Landlord's putting the Premises in good order or preparing the same for
rerental shall not operate or be construed to release Tenant from
liability hereunder. Landlord shall not be liable for failure to relet the
Premises. In no event shall Tenant be entitled to receive any excess of
such net rent collected over the sums payable by Tenant to Landlord
hereunder. Any damage or loss of rent sustained by Landlord may be
recovered by Landlord, at Landlord's option, at the time of the reletting,
or in separate actions, from time to time, as said damages shall have been
ascertained by successive reletting, or, at Landlord's option, may be
deferred until the expiration of the term of this Lease (in which event
Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of said term). All rights and
remedies of Landlord under this Lease shall be cumulative and shall not be
exclusive if any other rights and remedies provided to Landlord under
applicable law.
b. To remove any and all persons and property from the Premises, with or
without legal process, and pursuant to such rights and remedies as the
laws of the State of Nevada shall then provide or permit, but Landlord
shall not be obligated to effect such removal. Said property may, at
Landlord's option, be stored or otherwise dealt with as such laws may then
provide or permit, including but not limited to the right of Landlord to
store the same, or any part thereof, in a warehouse or elsewhere at the
expense and risk of and for the account of Tenant.
c. To enforce, to the extent permitted by the laws of the State of Nevada
then in force and effect, any other rights or remedies set forth in this
Lease or otherwise applicable hereto by operation of law or contract.
In the event of a breach by Tenant of any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall have
the right of injunction. Mention in this Lease of any particular remedy
shall not preclude Landlord from any other remedy, at law or in equity.
If Tenant vacates or abandons the Premises, any property that Tenant
leaves in the Premises shall be deemed to have been abandoned and may
either be retained by Landlord as the property of Landlord or may be
disposed of at public or private sale in accordance with applicable law as
Landlord sees fit. The proceeds of any public or private sale of Tenant's
property, or the then
26
current fair market value of any property retained by Landlord shall be
applied by Landlord against (i) the expenses of Landlord for removal,
storage or sale of the property; (ii) the arrears of rent or future rent
payable under this Lease; and (iii) any other damages to which Landlord
may be entitled hereunder. Further, Landlord may, upon presentation of
evidence of a claim valid upon its face of ownership or for security
interest in any of Tenant's property abandoned in the Premises, turn over
such property to the claimant with no liability to Tenant.
The following shall be Events of Bankruptcy under this Lease: (1)
Tenant's becoming insolvent, as that terms defined in Title 11 of the
United States Code, entitled Bankruptcy, 11 U.S.C. Sec 101 et seq. (the
"Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or territory of the United States ("insolvency Laws"); (2)
The appointment of a receiver or custodian for any or all of Tenant's
property or assets, or the institution of a foreclosure action upon any of
Tenant's real or personal property; (3) The filing of a voluntary petition
under the provisions of the Bankruptcy Code or Insolvency Laws; (4) The
filing of an involuntary petition against Tenant as the subject debtor
under the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within sixty (60) days of filing, or results in the issuance of
an order for relief against the debtor, whichever is later; or (5)
Tenant's making or consenting to an assignment for the benefit of
creditors or a common law composition of creditors.
Upon occurrence of an Event of Bankruptcy, Landlord shall have the
right to terminate this Lease by giving written notice to Tenant,
provided, however, that this section shall have no effect while a case in
which Tenant is the subject debtor under the Bankruptcy Code is pending,
unless Tenant or its Trustee is unable to comply with the provisions
below. At all other times this Lease shall automatically cease and
terminate, and Tenant shall be immediately obligated to quit the Premises
upon the giving of notice pursuant to this section. My other notice to
quit, or notice of Landlord's intention to re-enter is hereby expressly
waived.
If Landlord elects to terminate this Lease, everything contained in
this Lease on the part of Landlord to be done and performed shall cease
without prejudice, subject, however, to the rights of Landlord to recover
from Tenant all rent and any other sums accrued up to the time of
termination or recovery of possession by Landlord, whichever is later, and
any other monetary damages or loss of reserved rent sustained by Landlord.
Without regard to any action by Landlord as authorized above,
Landlord may at its discretion exercise all the additional provisions set
forth below.
In the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, Landlord's right to terminate this Lease
pursuant to this section shall be subject to the rights of the Trustee in
Bankruptcy to assume or assign this Lease. The Trustee shall not have the
right to assume or assign this Lease unless the Trustee (i) promptly cures
all defaults under this Lease, (ii) properly compensates Landlord for
monetary damages, incurred as a result of such default, and (iii) provide
adequate assurance of future performance on the part of Tenant as debtor
in possession or on the part of the assignee of Tenant.
Landlord and Tenant hereby agree in advance that adequate assurance
of future performance, as used herein, shall mean that all of the
following minimum criteria must be met; (i) Tenant must pay its estimated
pro rata share of Adjustments (whether provided directly or through agents
or contractors and whether or not previously included as part of the
minimum rent), in advance of the performance or provisions of such
services, (ii) The Trustee must agree that Tenant's business shall be
conducted in a first class manner, and that no liquidating sales, auction,
or other non-first class business operations shall be conducted in the
Premises; (iii) The Trustee must agree that the use of the Premises as
stated in this Lease will remain unchanged and that no prohibited use
shall be permitted; and (iv) The Trustee must agree that the assumption of
this Lease will not violate or affect the right of other tenants in the
Project.
In the event Tenant is unable to (i) cure its defaults, (ii)
reimburse the Landlord for its monetary damages, (iii) pay the rent due
under this Lease, and all other payments required by Tenant
27
under this Lease on time (or within five (5) days), or (iv) meet the
criteria and obligations imposed above, Tenant agrees in advance that it
has not met its burden to provide adequate assurance of future
performance, and this Lease may be terminated by Landlord.
15.3 Expenses and Legal Fees:
Tenant shall reimburse Landlord upon demand, for any costs or
expenses incurred by Landlord in connection with any breach or default of
Tenant under this Lease, whether or not suit is commenced or judgment
entered. Such costs shall include reasonable legal fees and costs incurred
for the negotiation of a settlement, enforcement of rights or otherwise.
Tenant shall also indemnify Landlord against and hold Landlord harmless
from all costs, expenses, demands and liability incurred by Landlord if
Landlord becomes or is made a party to any claim or action:
a. by or against any person holding any interest under or using the
Premises by license of or agreement with Tenant;
b. for foreclosure for any lien for labor or material furnished to or
for Tenant or such other person;
c. otherwise arising out of or resulting from any act or transaction of
Tenant or such other person; or
d. necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended.
Landlord shall likewise reimburse Tenant for any costs or expenses
incurred by Tenant in connection with any breach or default by Landlord
under this Lease and indemnify Tenant to the same extent as set forth in
this Section 15.3 should Tenant be made a party to any claim or action
occasioned by Landlord's breach or default.
16. End of Term
16.1 Holding Over:
Tenant shall have the right to extend the Initial Term of the Lease
for an additional six (6) months at 110% of the then applicable rent by
providing Landlord four (4) months written notice. Otherwise, this Lease
shall terminate without further notice upon the expiration of the Term
(herein "Expiration Date"), and any holding over by Tenant after the
expiration the term or the six month extension, if exercised, shall not
constitute a renewal or extension of this Lease, or give Tenant any rights
under this Lease, except when in writing, signed by both parties. If
Tenant holds over for any period after the expiration (or earlier
termination) of the Term, Landlord may, at its option, treat Tenant as a
tenant at sufferance only, commencing on the first (1st) day following the
termination of this Lease and subject to all of the terms of this Lease,
except that the monthly rental shall be one hundred fifty percent (150%)
of the amount of the last monthly rental installment:
If Tenant fails to surrender the Premises upon the expiration of
this Lease despite demand to do so by Landlord, Tenant shall indemnify and
hold Landlord harmless from all loss or liability, including, without
limitation, any claims made by any succeeding tenant relating to such
failure to surrender. Acceptance by Landlord of rent after the termination
shall not constitute a consent to a holdover or result in a renewal of
this Lease. The foregoing provisions of this Section are in addition to,
and do not effect, Landlord's right to re-entry or any other rights of
Landlord under this Lease or at law.
16.2 Merger on Termination:
The voluntary or other surrender of this Lease by Tenant, or mutual
termination of this Lease, shall terminate any or all existing subleases
unless Landlord, at its option, elects in writing to treat the surrender
or termination as an assignment to it of any or all subleases affecting
the Premises.
28
16.3 Surrender of Premises: Removal of Property:
Upon the Expiration Date, or upon any earlier termination of this
Lease, Tenant shall quit and surrender possession of the Premises to
landlord in as good order, condition and repair as when received or as
hereafter may be improved by Landlord or Tenant, reasonable wear and tear
excepted, and shall, without expense to Landlord, remove or caused to be
removed from the Premises all personal property and debris. Tenant shall
repair all damage to the premises resulting from the removal, which repair
shall include the patching and filling of holes and repair of structural
damage. If Tenant shall fail to comply with the provisions of this
Section, Landlord may effect the removal and/or make any repairs, and the
cost to Landlord shall be additional rent payable by Tenant upon demand.
16.4 Termination; Advance Payments:
Upon termination of this Lease under Article 12 (Damage or
Destruction), Article 13 (Eminent Domain) or any other termination not
resulting from Tenant's default, and after Tenant has vacated the Premises
in the manner required by this Lease, and equitable adjustment shall be
made concerning advance rent, and any other advance payments made by
Tenant or Landlord, and Landlord shall refund the unused portion of the
security deposit to Tenant or Tenant's successor.
17. Payments and Notices
All sums payable by Tenant to Landlord shall be paid in lawful money of
the United States to Landlord at its address set forth in Section 1.18 of the
Basic Lease Terms, or at any other place as Landlord may reasonably designate in
writing. Unless this Lease expressly provides otherwise, as for example in the
payment of rent, all payments shall be due and payable within ten (10) days
after demand. All payments requiring proration shall be prorated on the basis of
a thirty (30) day month and a three hundred sixty (360) day year. An notice,
election, demand, consent, approval or other communication to be given, or other
document to be delivered by either party to the other, may be delivered in
person to an officer or duly authorized representative of the other party, or
may be deposited in the United States mail or with a nationally recognized
overnight carrier to the address set forth in Section 1.18. Either party may, by
written notice to the other, designate a different address. If any notice or
other document is sent by mail, it shall be deemed served or delivered when
received. If more than one Tenant is named under this Lease, service of any
notice upon any one of them shall be deemed as service upon all of them.
18. Limitation of Liability
In the event of any actual or alleged failure, breach or default of this
Lease by Landlord, Tenant's sole and exclusive remedy shall be against the
Project and its assets, it being intended that Landlord shall not otherwise be
personally liable for any monetary judgment or deficiency therein.
Tenant agrees that the foregoing provision shall be applicable to any
covenant or agreement either expressly contained in this Lease or imposed by
statute or at common law.
19. Transfer of Landlord's Interest
In the event of any transfer of Landlord's interest in the Premises,
including a so-called "sale-Leaseback", the transferor shall be automatically
relieved of all obligations on the part of Landlord accruing under this Lease
from and after the date of the transfer, provided that any funds held by the
transferor, in which Tenant has an interest, shall be turned over, subject to
that interest, to the transferee, and Tenant is notified of the transfer as
required by law. No holder of a mortgage and/or deed of trust to which this
Lease is, or may be, subordinate, and no landlord under a so-called
sale-Leaseback shall be responsible in connection with the security deposit,
unless the mortgagee or holder of the deed of trust or the landlord actually
receives the security deposit. It is intended that the covenants and obligations
contained in this Lease on the part of the Landlord shall, subject to the
foregoing, be binding on the Landlord, its successors and assigns, only in
respect to their respective successive periods of ownership.
29
20. Miscellaneous
20.1 Gender and Number
Whenever the context of this Lease requires, the words "Landlord"
and "Tenant" shall include the plural as well as the singular, and words
used in neuter, masculine or feminine genders shall include the others.
20.2 Headings:
The captions and headings of the Articles and Sections of this Lease
are for convenience only, and are not a part of this Lease and shall have
no effect upon its construction or interpretation.
20.3 Joint and Several Liability:
If there is more than one Tenant, the obligations imposed upon
Tenant shall be joint and several, and the act of, or notice from, or
notice or refund to, or the signature of, any one or more of them shall be
binding on all of them with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, termination, or
modification of this Lease.
20.4 Successors:
Subject to Articles 10 and 19, all rights and liabilities given to
or imposed upon Landlord and Tenant shall extend to and bind their
respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to
grant to any person other than Landlord and Tenant and their successors
and assigns any rights or remedies under this Lease.
20.5 Time of Essence:
Time is of the essence with respect to the performance of every
provision of this Lease, in which time of performance is a factor.
20.6 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
or the deletion of which is consented to by the party adversely affected,
shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
20.7 Entire Agreement
The parties hereto declare and represent that no promise, inducement
or agreement not herein expressed has been made to them, that this
document embodies and sets forth the entire agreement and understanding
between them relating to the subject matter hereof, and that it merges and
supersedes all prior discussions, agreements, understandings,
representations, conditions, warranties and covenants between them on said
subject matter.
20.8 Waiver of Trial by Jury.
The respective parties hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against
the other on any matter whatsoever arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, or any claim of injury or damage, or the
enforcement of any remedy under any statute, emergency or otherwise.
30
20.9 Partial Invalidity
If any term, covenant, or condition of this Lease is, to any extent,
invalid or unenforceable, the remainder of this Lease shall not be
affected thereby and this Lease shall be valid and enforced to the fullest
extent permitted by law.
20.10 Recording
Tenant shall not record or file this Lease or any form of Memorandum
of Lease, or any assignment or security document pertaining to this Lease
or all or any part of Tenant's interest therein without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. If
such consent is granted Tenant will pay all recording fees, costs, taxes
and other expenses for the recording. However, upon the request of
Landlord, both parties shall execute a memorandum or "short form" of this
Lease for the purposes of recordation in a form customarily used for such
purposes. Said memorandum or short form of this Lease shall describe the
parties, the Premises and the Lease Term and shall incorporate this Lease
by reference.
20.11 Waiver
The waiver by either party of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or
condition for any subsequent breach of the same or any other term,
covenant or condition herein contained.
20.12 Late Charges
If any installment of rent or any sum due from Tenant shall not be
received by Landlord or Landlord's designee on or within three (3) days of
the date such sum is due then Tenant shall pay to Landlord a late charge
equal to five percent (5%) of the amount past due, but in no event more
than the legal maximum on such past due amount, plus any attorneys' fees
incurred by Landlord by reason of Tenant's failure to pay rent and/or
other charges when due hereunder. My late charges shall be added to the
next installment of Base Rent due under the Lease. The parties hereby
agree that such late charges represent a fair and reasonable estimate of
the cost that Landlord will incur by reason of the late payment by Tenant.
20.13 Inability to Perform
This Lease and the obligations of the Parties hereunder shall not be
affected or impaired because either Party is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or
delay is caused by reason of strike, labor troubles, acts of God,
governmental laws, ordinances, rules or regulations, or other cause beyond
the reasonable control of the Party.
20.14 Choice of Law
This Lease shall be governed by the laws of the State of Nevada.
20.15 Independently Provided Services
This Lease is entirely separate and distinct from and independent of
any and all agreements that Tenant may at any time enter into with any
third party for the provision of services, which include, but are not
limited to, telecommunications, office automation, repair, maintenance
services, computer and photocopying ("Independent Services"). Tenant
acknowledges that Landlord has no obligation of any type concerning the
provision of Independent Services, and agrees that any cessation or
interruption of Independent Services or any other act or neglect by the
third party providing the Independent Services shall not constitute a
default or constructive eviction by Landlord.
31
20.16 Prior Agreements
THIS LEASE CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND ANY AND
ALL ORAL AND WRITTEN AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS,
WARRANTIES, PROMISES AND STATEMENTS OF THE PARTIES HERETO AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, AGENTS AND BROKERS WITH RESPECT
TO THE SUBJECT MATTER OF THIS LEASE AND ANY MATTER COVERED OR MENTIONED IN
THIS LEASE SHALL BE MERGED IN THIS LEASE AND NO SUCH PRIOR ORAL OR WRITTEN
AGREEMENT, UNDERSTANDING, REPRESENTATION, WARRANTY, PROMISE OR STATEMENT
SHALL BE EFFECTIVE OR BINDING FOR ANY REASON OR PURPOSE UNLESS
SPECIFICALLY SET FORTH IN THIS LEASE. NO PROVISION OF THIS LEASE MAY BE
AMENDED OR ADDED TO EXCEPT BY AN AGREEMENT IN WRITING SIGNED BY THE
PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS IN INTEREST. THIS LEASE
SHALL NOT BE EFFECTIVE OR BINDING ON ANY PARTY UNTIL FULLY EXECUTED BY
BOTH PARTIES HERETO.
LANDLORD: TENANT:
McCARRAN CENTER L.C. NEXTEL WIP LEASE CORP.
A Nevada Limited Liability Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- --------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Its: Vice President and General
Its: Managing Partner Counsel
--------------------------
On this 17th day of May, 1999, before me, the undersigned, a Notary Public in
and for the County of ▇▇▇▇▇, State of Nevada, duly commissioned and sworn,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in his capacity as Managing Partner, known
to me to be the person that executed within instrument and known to me to be the
person who affixed his name hereto and who acknowledged to me that he executed
the same freely and voluntarily and for the uses and purposes therein mentioned.
[SEAL]
▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public, State of Nevada -----------------------------
▇▇▇▇▇ County NOTARY PUBLIC in and for said
My Appt. Expires Aug 21, 1999 Country and State
On this 13th day of May, 1999, before me, the undersigned, a Notary Public in
and for the County of Kind, State of Washington, duly commissioned and sworn,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as V.P. & General Counsel
known to me to be the person that executed within instrument and known to me to
be the person who affixed his name hereto and who acknowledged to me that he
executed the same freely and voluntarily and for the uses and purposes therein
mentioned.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY PUBLIC -----------------------------
STATE OF WASHINGTON NOTARY PUBLIC in and for said
COMMISSION EXPIRES Country and State
MARCH 29, 2003
32
LEASE EXHIBITS
A Project & Premises
A-1 Project Site Plan: McCarran II
▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇-▇ ▇▇▇▇▇ ▇▇▇▇
▇-▇ Use of Tenant Improvement Allowance
B-3 Standard Tenant Improvement Specifications
C Tenant's Work Letter
D Rules and Regulations
E Operating Expenses - Multi Tenant
F Parking
I Renewal Options
J Brokerage Commission
K Commencement Date
L Master Sign Plan
M Subordination and Non-Disturbance Agreement
N Tenant Estoppel Certificate
EXHIBIT A
PROJECT & PREMISES
PROJECT: McCarran Center II McCarran Center II consisting of 16.50 ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇: 23,306 sq. ft.
Building 42A: A minimum of 20,000 sq. ft.
PREMISES Building 42 Premises: 23,306 sq. ft.
Building 42A Premises: A minimum of 20,000 sq. ft.
EXHIBIT A-1
CONCEPTUAL MASTERPLAN
McCARRAN CENTER II
[GRAPHIC OMITTED]
EXHIBIT B-2
USE OF TENANT IMPROVEMENT ALLOWANCE
A. Tenant Improvement Allowance
Landlord agrees to construct tenant improvements in the Premises (Tenant
Improvements) for Tenant's exclusive use during the term of the Lease in
accordance with the Space Plan and Conceptual Cost Estimate as approved and
signed by Tenant either prior to or following the execution of this Lease.
Landlord's contribution to such improvements in Building 42 (23,306 sq. ft.)
shall be $25.00 per square foot or $582,650 and in Building 42A (20,000 sq. ft.)
shall be $25.00 per sq. ft. or $500,000 (the Tenant Improvement Allowance).
Landlord's contribution for Building 42 shall be provided in the Phase I and
Phase II build-outs as set forth in Section 1.11 and Tenant shall have the right
to forgo Landlord's contribution for Phase II and receive the stated reduction
in Base Rent. Tenant shall be responsible for the cost of Tenant Improvements
exceeding the Tenant Improvement Allowance, which costs shall be initially
determined and set forth in the Conceptual Cost Estimate for the corresponding
building and paid for by Tenant to Landlord based on the following schedule:
o Twenty percent (20%) at the start of construction.
o Forty percent (40%) within 60 days after the start of
construction
o Thirty percent (30%) within 90 days after the start of
construction. Payment is due in full if construction is
completed within 90 days after the start of construction.
o Ten percent (10%) within 10 days after the completion of the
punch list items.
The Tenant Improvement Allowance shall be used for and include the cost of:
design & engineering, plan check and permit fees, special fees (such as sewer
fixture fee for Tenant's over-standard requirements), insurance and the tenant
improvement construction cost. Tenant shall be responsible for the cost of any
Tenant approved change orders or alterations to the Space Plan or Conceptual
Cost Estimate. Should Tenant fail to fully utilize the Tenant Improvement
Allowance, the remainder shall be applied as a credit to the Base Rent.
Building 42, Phase II Improvements:
As set forth in Section 1.11 of the Lease, Tenant has the option to
construct the improvements in Phase II (8,306 sq. ft.) at Tenants sole
cost and expense and receive a reduced rent. Tenant may also request that
such improvements for Phase II(8,306 sq. ft.) be built simultaneously with
the Phase I improvements. Should Tenant expedite the Phase II
improvements, the Base Rent payable on the October 1, 1999 commencement
date shall be increased to include the amortization of such improvements
at 11% over 8 years ($0.386 x 8,306 sq. ft.) or $3,232.23 per month.
B. Premises Design and Construction Documents
Landlord and Tenant agree that both parties shall use best efforts and
diligently pursue the preparation and completion of the Premises space plan and
construction documents. Should Landlord's authorized space planner and engineers
be utilized, the Tenant Improvement Allowance shall be charged as follows:
Space Plan (Approved) $.15 per USF
Architectural Drawings $.70 per USF
Mechanical & Plumbing $.50 per USF
Electrical $.50 per USF
Tenant shall have the right to utilize its own architect and/or space planner
(Tenant's Designer) for the design and preparation of the tenant improvement
construction documents. Tenant's Designer shall be contracted by Landlord and
compensated from the Tenant Improvement Allowance as set forth above. In all
cases the Mechanical, Plumbing and Electrical engineers designated by Landlord
shall be utilized. Should Tenant elect to have Landlord retain Tenant's
Designer, Landlord shall charge a fee of $.15 per USF, from the Tenant
Improvement Allowance, for the coordination of Tenant's Designer with Landlord's
engineers and general contractors. Tenant's Designer shall submit dimensioned
plans and construction drawings in the CADD 12, 13 or 14 format on an updated
basis to Landlord with final space plans including, at a minimum, a fully
dimensioned space plan, a reflective ceiling plan and an electrical
and data outlet plan. Tenant's Designer shall be required to attend a minimum of
three (3) space plan design meetings with Landlord's engineers and staff as well
as a minimum of three (3) meetings to coordinate the construction drawings.
Tenant's Designer shall be a licensed Nevada architect and responsible for "wet
stamping" all drawings submitted to the permitting government agency.
C. Construction of Tenant Improvements
Upon completion of Tenant's space plan, Landlord shall immediately obtain a bid
for construction from its general contractor. Landlord's general contractor
shall obtain at least three (3) bids in each major trade from subcontractors
unless Tenant waives this provision in the interest of meeting the time
constraints of the construction schedule. Tenant shall have the right to seek
independent bids from Nevada licensed and bonded contractors.
Tenant may, at Tenant's sole option, be responsible for the construction of the
Tenant Improvements, in which event Tenant shall contract for the construction
services and be responsible for meeting the payment of all costs for the Tenant
Improvements from an escrow account into which Landlord shall deposit the Tenant
Improvement Allowance no later than five (5) days prior to the commencement of
the Tenant Improvement construction. The escrow agent shall be selected by
Landlord and shall maintain the funds in customary investment vehicles with all
interest to belong to Landlord, provided that funds shall be available to meet
Tenant's obligations during the construction process. Withdrawals shall require
the written approval of both Landlord and Tenant, which approval shall be
delivered to Tenant within fifteen (15) business days of Landlord's receipt of
proper invoices and conditional lien waivers. In the event that Tenant does not
utilize the available Tenant Improvement Allowance, Tenant may use the remainder
as prepayment of rent.
Tenant shall be responsible for maintaining the same construction schedule as
committed to by Landlord's general contractor, unless Tenant's performance is
delayed by events of "Force Majeure" outside of Tenant's control. Tenant's
contractors shall not interfere with the shell and core construction of the
Building or the construction of other tenant improvements in the Building.
Construction performed by Tenant or it's contractors which causes such noise as
to be a nuisance to the adjacent tenant's shall be carried out during evening
hours. Tenant shall be responsible for its own trash containers and shall
promptly remove all construction and related debris from all Common Areas or
Facilities. Immediately following the completion of construction, Tenant shall
return the Building and Common Areas to the condition they were in immediately
prior to the construction, including, if necessary, parking lot sweeping and
repair to the Building and Common Areas damaged by Tenant's contractors. Tenant
agrees to indemnify Landlord against the actions of its contractors as they
relate to construction activities in the Building (including costs of repair,
reasonable attorneys' fees and liens) and to obtain either a "Builders Risk" or
"Cost of Construction" insurance policy covering the total cost of Tenant
Improvements.
All construction, whether by Landlord or Tenant, shall be in a good,
workmanlike manner and all necessary governmental permits, licenses and
approvals shall be obtained by the party responsible for the construction.
EXHIBIT B-3
STANDARD
TENANT IMPROVEMENT SPECIFICATIONS
FOR INDUSTRIAL/OFFICE BUILDINGS
I. GENERAL IMPROVEMENTS:
The following information is provided to establish standard specifications and
guidelines for Tenant Improvements in Industrial/Office Buildings. The standards
set forth in this Exhibit (or equivalent material at Tenant's election) are
subject to Tenant's Improvement Allowance. Landlord does not warrant that the
Tenant Improvement Allowance shall be sufficient to construct the following
standards. Landlord's reasonable approval is necessary should Tenant desire to
materially alter the following standards or use the Tenant Improvement Allowance
for non-standard improvements.
A. PARTITIONS:
1. One lineal foot of building standard for each fifteen (15)
square feet.
Demising partitions shall be one layer of 5/8" gypsum
wallboard screw applied to each side of 2-1/2" metal studs
spaced at 24" on center. Installation to include 1-1/2" sound
attenuation blankets will extend from floor to deck above.
2. Interior partitions shall be one layer of 5/8" gypsum wall
board screw applied to each side of 2-1/2" metal studs spaced
at 24" on center. Wall board is to extend to 6" above finish
ceiling grid to a height of approximately 9'6".
3. All partitions and column enclosures will be taped and sanded
to receive paint.
B. DOORS FRAMES AND HARDWARE:
1. One (1) door per twenty-five (25) lineal feet of interior
partition allowance.
2. Interior doors shall be 3'0" wide by 7'0" high and 1-3/4"
thick, solid core door with frame, prefinished, with a
standard Mendecino Oak finish, both sides.
3. Interior door hardware will include lever-handled latch sets,
▇-▇/▇" ▇▇▇▇ ▇▇ ▇-▇/▇" ▇▇▇▇▇, ▇▇▇▇▇ stop and three (3)
silencers.
4. Hardware finish to be Schlage Brushed Aluminum or equal.
C. CEILING
1. Ceiling throughout the office area will be a 2' x 4'
mechanically suspended, acoustical system using
flush-finished, lay-in tile with a mineral fiber. Nominal
ceiling height is 9'0".
2. The Building Standard for a Multi-tenant office is ▇▇▇▇▇▇▇▇▇
769 (2767 White or equal.)
3. The Building Standard Allowance for this item is $1.25 per
s.f.
D. FLOOR COVERING AND BASE:
1. Carpeting: The Building Standard Allowance for Multi-tenant
industrial office space is $1.22 per s.f. This is for 22 oz.
Glue down carpet, Queen Commercial Carpet, "Commitment 26"
solution dyed nylon or equal.
2. V.C.T. The Building Standard Allowance for Multi-tenant
industrial office space is $1.25 per s.f. This is for an 12" x
12" Azrock Vinyl Composition Tile 1/8" thick or equal.
3. Rubber Base: The Building Standard Allowance for Multi-tenant
industrial office space is $1.25 l.f. This is for ▇▇▇▇▇
standard 4" top set rubber base or equal.
E. WINDOW TREATMENT:
1. The Building Standard Allowance for Multi-Tenant industrial
office space is $.50 s.f. This is for Riviera Levelor blinds,
alabaster number 112 horizontal 1" slats or equal.
F. PAINT:
1. The Building Standard for Multi-Tenant industrial office space
is ▇▇▇▇▇▇ eggshell 5900w, Arctic, or equal.
G. TOILET PARTITIONS:
1. The Building Standard for this item is Boberick, American
Standard, or ▇▇▇▇▇▇▇, metal, ▇▇▇▇ in color.
II. STRUCTURAL IMPROVEMENTS:
A. STANDARD DESIGN:
1. The structural floor system of the Building is designed to
accommodate up to one hundred (100) pounds per square foot,
including eight of partitions and up to seven (7) pounds of
ceiling and suspended mechanical equipment load.
III. HEATING VENTILATION, AIR CONDITIONING AND FIRE PROTECTION SERVICES.
A. H.V.A.C. SYSTEM:
1. The following operation standards are based upon population
not to exceed one (1) person per 150 square feet of usable
floor area.
2. This system shall be at the sole cost of the tenant.
3. The system will include a series of individual roof pack
units.
4. The system shall be designed to deliver one ton of air for
each 300 s.f. of useable floor space. The system design should
also assume a maximum lighting and appliance distribution of 5
▇▇▇▇▇ per rentable s.f. of Multi Tenant Industrial Office
Space.
5. Tenant H.V.A.C. work shall conform to the master system design
and include, but not necessarily be limited to providing
thermostatically controlled zones, all required ducting, all
required diffusers and grilles, and other items as necessary
to complete the system.
6. The tenant shall provide return ductwork on floors without
ceiling plenum provisions. (Contact Landlord for exact
location of lease spaces requiring such.)
B. FIRE PROTECTION:
1. The base system, the "up system", is included in the shell and
core and is to be composed of risers, mains, and heads that
are turned "up" in order to comply with Building Codes for
unoccupied Multi-Tenant Industrial Office Space. Modification
of the sprinklers is required as a basic part of Tenant
Improvements. This work is to include, but not be limited to;
additional headers as required, and the down system to allow
for protection of the tenant improvement space.
2. The "down" system is to include semi-recessed type heads with
chrome finish as required by code.
3. The standard allowance for this item is $.90 s.f. Any cost
above this amount is considered above standard.
IV. ELECTRICAL AND TELEPHONE SERVICES:
A. LIGHTING:
1. One 2' x 4' fluorescent light fixture per ninety useable
square feet shall be the standard. One single pole, wall
mounted light switch at 48"+/- per each twelve light fixtures
shall be provided.
2. The light fixture shall be a recessed prismatic fluorescent 3
tube light fixture, 2' x 4' by Lithonia or equal, with energy
saving ballast's.
3. Lamps which complete the building standard fixtures shall be
initially furnished and installed as a part of the tenant
improvement allowance standard. Subsequent relamping shall be
performed at the tenant's expense.
4. Lights, as required by code, shall be connected to an
emergency circuit and comply with said code.
5. One (1) 20 amp, 120 volt, single phase, wall type duplex
electrical outlet per each one hundred fifty square feet of
useable floor space in the Multi Tenant Industrial Office
Building.
6. All cover plates to be ivory with no back to back outlets.
B. TELEPHONE:
1. Single gang telephone outlet box in stud wall with conduit
from outlet to telephone board.
2. All cover plates to be ivory with no back to back outlets.
3. The standard distribution for Multi Tenant Industrial Office
Building space is one box for one hundred fifty square feet of
useable office space.
4. Installation of telephones and wiring shall be at Tenant's
sole arrangement and expense.
V. PLUMBING:
A. GENERAL
1. Plumbing wet stacks, containing sanitary waste and vent piping
will be available on each floor. Tenant's connection shall be
at Tenant's expense.
2. Domestic water is available at building core. Tenant's
connection shall be at Tenant's expense.
3. Sanitation:
For every 10,000 s.f. of office space:
Men: 2 Water Closets Women: 3 Water Closets
1 Urinal 1 Lavatory
1 Lavatory
For every 60,000 s.f. of Warehouse
Men: 1 Water Closet Women: 1 Water Closet
1 Lavatory 1 Lavatory
VI. ABOVE STANDARD TENANT IMPROVEMENTS:
1. Any Above Standard Tenant Improvement; i.e., improvements which
exceed the standards described above, in design, quantity, quality,
structurally, mechanically, electrically, or in cost (which includes
the design fees) shall be deemed above standard. Also, Tenant
designs which require fire alarm systems or special emergency
lighting above and beyond that provided by the Landlord shall be at
Tenant's cost and expense.
EXHIBIT C
TENANT'S WORK LETTER
(Construction Rules)
1. The Tenant's Contractors and subcontractors are required to check in
with the Landlord's Property Manager for instructions and
coordination prior to going on the site.
2. All Tenant Contractors are to follow all instructions set forth by
Landlord.
3. Tenant's Contractors will not be permitted to start work until they:
A. Have all necessary building permits and have posted such permits on the
wall in the Tenant's space.
B. Furnish proper evidence of required insurance coverage.
C. Sign for and take possession of keys to service doors of premises (if any)
and acknowledge proper installation and operation of said service door.
D. Furnish names and phone numbers (office and home) of contractor's
supervisory personnel.
E. Have a set of Landlord approved drawings in the space at all times.
F. Acknowledge receipt of a copy of these Construction Rules.
G. Furnish proper evidence that all fees and/or deposits required to commence
work have been fully paid.
4. Insurance:
A. All contractors are required to furnish the Landlord's Property Manager
with certificates showing evidence of the following insurance coverage
prior to commencing any work.
B. The insurance shall: (i) be issued by insurance companies authorized to do
business in the State of Nevada with a current financial rating of at
least an A+ Class XV or better as rated in the most recent edition of
Best's Key Rating Guide; (ii) be issued as a primary policy; (iii) contain
an endorsement requiring thirty (30) days written notice from the
insurance company to Landlord before cancellation or material change and,
(iv) shall be written with minimum coverages and limits as required by law
and the following:
(1) "All risk" builders' risk insurance in an amount
equal to 100% of the replacement cost of the
Improvements on a non-reporting, completed value
basis, coverage against the perils or damage
resulting from water damage;
(2) Owner's Protective Liability Insurance in an
amount of not less than $1,000,000 naming Landlord
as a Named Insured;
(3) Unless otherwise waived, in writing, by Landlord,
a performance bond from Tenant's general
contractor in an amount equal to the contract sum
or contract amount set forth in the construction
contract between Tenant and its general contractor
providing for the construction;
(4) Independent Contractors coverage; and
(5) Comprehensive General Liability in an amount of, not
less than $1,000,000 evidenced by a Certificate of
Insurance (said policies hereinafter referred to as the
"Construction Period Insurance Policies"). From and
after the date of issuance of said certificate of
occupancy, the term "Insurance Policies" shall mean: (i)
All Risk Property coverage naming Landlord as an
Additional Named Insured with Replacement Cost and
Agreed Amount endorsements, and including Increased Cost
of Construction coverage, Demolition, Clean Up and
Clearance coverage, Extra Expense coverage and providing
that collection of a total loss recovery will not
require reconstruction; (ii) Broad Form Comprehensive
General Liability, naming Landlord as an Additional
Named Insured, in an amount of, not less than
$1,000,000, combined single limit, containing Broad Form
Contractual Liability coverage.
C. Liability insurance may be arranged by Comprehensive General
Liability and Comprehensive Automobile Liability policies for the
full limits required or by a combination of underlying comprehensive
liability policies for lesser limits with the remaining limits
provided by an Excess or Umbrellas Liability policy.
D. All policies shall include the following organizations as additional
Named Insureds:
Landlord: McCarran Center, LC
Landlord's Lender: None at time of Lease execution
All policies shall provide for thirty (30) days prior written
notice of expiration or cancellation to the additional
insureds.
5. Parking: All contractors will be assigned a parking area for their
workmen by the Landlord's Property Manager. No parking will be
permitted in other than the designated area. Vehicles improperly
parked are subject to removal by Landlord at Tenant's sole risk and
cost.
6. Tools and Equipment: All contractors are expected to arrive at the
site with all necessary tools and equipment. No tools or machinery
are to be requested of the Landlord's General Contractor.
7. Deliveries:
A. All deliveries of supplies and materials delivered to a
contractor must include the store name and space number to
facilitate delivery.
B. Deliveries will be made only through entrances and routs
designated by the Landlord's Property Manager. Contractors
should verify routes daily, since routes may have to be
changed from time to time. Roadways, loading docks and curb
front delivery is at the discretion of the Landlord.
C. The Landlord's General Contractor will not accept or unload
supplies or materials for any Tenant work.
8. Curb Service:
To the greatest extent possible, curbs adjacent to the Buildings
will be kept open for deliveries. Parking therein is strictly
PROHIBITED. Vehicles delivering materials or merchandise must be
completely unloaded at curbside, and immediately removed. Unattended
parked vehicles in Loading Courts will be tagged or towed at the
expense of the Tenant being served by the vehicles.
9. Fire Protection:
Each Tenant Contractor shall provide and maintain fire extinguishers
within the premises as required by Public Safety Officials.
10. Material Storage/Work Area:
All materials used for Tenant's work must be stored at all times
within the Tenant's demised premises. Under no circumstances will
any other portion of the Building or Project area be used as a work
area, construction office or to store Tenant materials or Tenant
Contractors equipment.
11. Trash Removal:
Each Tenant Contractor is responsible for his own trash removal
during construction. Contractors are expected to remove debris from
the premises on a daily basis.
12. Roof Openings:
All coordination required with Landlord's General Contractor, i.e.,
any openings in the Building roof, are to be scheduled well in
advance of anticipated need. Landlord's General Contractor shall not
be responsible for delays to Tenant work caused by failure of Tenant
Contractor to give adequate notice of work needed. The penetration
and flashing of all roof openings shall be by Landlord's Contractor
at Tenant's expense.
13. Signage:
No signs are to be placed on a Tenant's storefront without approval
of the Landlord.
14. Compliance with Regulations:
Contractors are to comply with all federal and local safety
regulations in the execution of their work as well as any safety
requirements of the Center Contractor. Hard hats are required for
all workmen and visitors to the site.
15. Approved Working Plans:
The Tenant Contractor must maintain one set of Approved Working
Plans displaying signatures of Landlord and Plans Examiner on the
job at all times during construction.
16. Permits:
The Tenant Contractor is required to obtain all necessary permits
prior to the start of construction on the Tenant space.
17. Protection of Work and Property:
Tenant and Tenant's Contractor shall protect their work from damage
and shall protect the work of other Tenants and Landlord from damage
by Tenant, Tenant's Contractor and their employees and
sub-contractors.
18. Strictly Prohibited Work and Practices:
A. Combustible materials above finished ceilings or in any other
concealed, non-sprinklered space are prohibited.
B. Imposing any structural load, temporary or permanent, on any
part of the Landlord's work or structure without the approval
of Landlord's Engineer and Property Manger is prohibited.
C. Cutting any holes in Landlord-installed floor slabs, walls, or
roof is prohibited unless written approval is provided by the
Property Manager.
19. Required Documents at Occupancy:
Contractor must furnish to Tenant a Certificate of Occupancy (if
applicable) and a Contractors Waiver of Lien upon completion of
construction.
20. Liens:
If any mechanic's lien shall at any time be filed against any part
of the Premises by reason of work, labor, services or materials
performed for or furnished to Tenant, Tenant shall forthwith
cause the lien to be discharged or bonded off to the satisfaction of
Landlord. If Tenant shall fail to cause such lien to be discharged
or bonded off within fifteen (15) days after being notified of the
filing thereof then, in addition to any other right or remedy of
Landlord, Landlord may discharge the lien by paying the amount
claimed to be due. The amount paid by Landlord, and all costs and
expenses, including reasonable attorney's fees incurred by Landlord
in procuring the discharge of the lien, shall be due and payable by
Tenant to Landlord as additional rent on the first day of the next
following month, or if the Lease term has expired, upon demand.
21. Plans:
Ten (10) days prior to the commencement of any construction Tenant
shall submit to Landlord for Landlord's approval preliminary plans
and specifications for the construction ("preliminary Plans"). As
promptly as possible after submission of the Preliminary Plans, but
in any event within twenty (20) days after receipt thereof, the
Landlord will notify the Tenant of any objections thereto
(specifying in reasonable detail such objections) and Tenant shall
cause such objections to be rectified and to promptly resubmit the
revised Preliminary Plans to the Landlord. If Landlord fails to
respond within such twenty (20) days, the Preliminary Plans shall be
deemed approved.
Landlord's right to object to the Preliminary Plans shall be limited
to objections that the submitted Preliminary Plans do not provide
for a quality first class structure, workmanship and materials, or
functional or architectural harmony with existing improvements,
or-otherwise do not meet the requirements of this Lease or any
applicable Governmental Requirements. Tenant will, immediately after
receipt of written notice of objections from Landlord, undertake to
amend or modify the Preliminary Plans to conform to the requirements
of this Lease and to cure any objections from the Landlord. In the
event of Landlord's failure to give written notice of any objections
within any of the requisite time periods, the Preliminary Plans as
submitted to Landlord shall be deemed approved by the Landlord.
Tenant shall submit one (1) copy of the "Final Plans" to Landlord
prior to submission to the Building Department for a Building Permit
(the "Final Plans").
Within ten (10) days after the Final Plans have been received by
Landlord for final approval, Landlord shall give written notice of
its approval or disapproval thereof, specifying in the latter event,
its reasons therefor. Such approval shall not be unreasonably
withheld and the right to disapprove the Final Plans shall be
limited to objections that they are not consistent developments of
the Preliminary Plans, or do not meet the requirements of this Lease
or applicable Governmental Requirements.
In the event the Landlord fails to give notice of its approval or
disapproval of the Final Plans, as submitted to Landlord, within
said ten (10) day period, the Final Plans shall be deemed approved
by the Landlord.
Notwithstanding anything contained in this Lease which is or may be
construed to be to be contrary, Landlord shall have no liability or
obligation whatsoever in connection with any of the Plans and no
responsibility for the adequacy thereof or for the construction of
all or any portion of the Premises contemplated by the Plans.
Landlord has no duty to inspect the Premises, and if Landlord should
inspect the Premises, Landlord shall have no liability or obligation
to Tenant or any other Person arising out of such inspection. No
such inspection, or any failure by Landlord to make objections after
any such inspection, shall constitute an agreement or a
representation by Landlord that the Premises is in accordance with
the Plans or constitute a waiver of Landlord's right thereafter to
insist that the Premises be constructed in accordance with the
Plans.
EXHIBIT D
RULES AND REGULATIONS
1.00 PROJECT & PREMISES
1.01 Industrial and Commercial Use: The Premises shall be used for
industrial and commercial purposes permitted under the ▇▇▇▇▇ County, Nevada "MD"
Zoning Ordinance and Guidelines or as further permitted in Lease, and for no
other use.
1.02 Oil Drilling: No oil drilling, oil development operations, oil
refining, holding tanks, quarrying or mining operations of any kind, shall be
permitted upon or in the Project. No ▇▇▇▇▇▇▇ or other structure designed for use
in boring for water, oil or natural gas shall be erected, maintained or
permitted upon the Project.
1.03 Offensive Conduct - Nuisance: Tenant, Renters, Occupiers and Guests
within the Project shall conform to all applicable Codes of the County of ▇▇▇▇▇,
and no noxious or offensive activities shall be carried on, upon or within the
Project. Any obstruction of Common Access areas is hereby deemed to be a
nuisance and is prohibited except for reasonable periods in connection with
repairs to the driveway, parking, walkway and Common Facilities. Objects which
create or emit loud noise, vibrations or obnoxious odors shall not be located,
used or placed on any portion of the Project other than temporarily for
landscape, driveway, parking, walkway or building maintenance. No Tenant shall
permit or cause anything to be done or kept on its Premises which may increase
the rate or cause the cancellation of insurance because of the dangerous or
volatile nature of such activity or substance, nor shall any Tenant violate or
permit the violation of any law on its Premises. Each Tenant shall comply and
require the Occupants and Permittees of its Premises to comply with all the
requirements of the local or state health authorities and with all other
governmental authorities with respect to the occupancy and use of a building or
any portion thereof. The Landlord shall be entitled, but shall not be obligated,
to take any action to ▇▇▇▇▇ an unlawful nuisance, including without limitation
the right to enter into a Premises or Building to exercise the abatement of the
unlawful nuisance.
1.04 Vehicular Maintenance: No person shall conduct repairs, restorations,
or painting of any motor vehicle, boat, trailer, aircraft or other vehicle upon
any portion of the Project except wholly within an enclosed building.
1.05 Antenna, External Fixtures, Etc.: Tenant shall have the right to use
the roof of the Building as set forth in the Lease.
1.06 Fences, Etc.: No fences, awnings, ornamental screens, screen doors,
sunshades or walls of any nature shall be erected or maintained on or around any
portion of any structure or elsewhere within the Premises except those installed
in accordance with the original construction of the Premises, and any
replacement thereof, or as are authorized and approved by the Landlord.
1.07 Animals: No animals, reptiles, rodents, livestock or poultry shall be
kept in any Premises or elsewhere within the Project, without the express
written consent of the Landlord.
1.08 No Storage or Living Use of Recreational Vehicles: No boat, truck,
trailer, camper, recreational vehicle or tent shall be stored on the Project or
used as a living area.
1.09 Trash Disposal: Trash, garbage, or other waste shall be kept only in
sanitary containers in the enclosures provided. No Tenant shall permit or cause
any trash or refuse to be kept on any portion of the Project other than in the
receptacles customarily used therefor, and placed or maintained as required by
Landlord.
1.10 Exterior Alterations: No Tenant shall, at his expense or otherwise,
make any alterations or modifications to the exterior of the buildings, fences,
railings or walls situated within the Project without the prior written consent
of the Landlord and approval by the County.
1.11 Parking Restrictions: No parking shall be permitted which may
obstruct free traffic flow within the Common Facilities, constitute a nuisance,
or otherwise create a safety hazard. Notwithstanding the forgoing, this document
shall not be interpreted in such a manner so as to permit an activity which
would be contrary to any ordinance. Provided the requirements are not violated,
construction activity shall be exempt from this section where applicable. The
Landlord is hereby empowered to established "no parking" areas within Common
Access areas of the Project as well as to enforce parking limitations through
its officers and agents by all means lawful for such enforcement on private
drives, including the removal of any violating vehicle; provided that the
parking allotment provided to Tenant in the Lease shall not be adversely
impacted other than on a temporary basis for maintenance or emergencies as
provided in the Lease. Adequate off-street parking is provided to accommodate
all parking needs for employees, visitors and company vehicles on the site.
1.12 Building Maintenance: Unless otherwise provided in the Lease, each
Tenant shall be responsible for maintaining its building, including the
equipment and fixtures therein and the interior and exterior walls, ceiling and
roof private restrooms contained within the Building, (if any), windows and
doors thereof in a first class, clean, sanitary, workable and attractive
condition. Tenant shall have complete discretion as to the choice of furniture,
furnishings, and interior decorating; provided, that:
a) Windows may only be covered by drapes, shades or shutters and may
not be painted or covered by foil, cardboard, or other similar materials. Each
Tenant shall be responsible for repair, replacement and cleaning of the interior
windows and glass of his building.
b) Decoration of the exterior of the doors to the Building shall be
of uniform design to be adopted and approved by the Landlord.
1.13 Signs: The Landlord shall adopt as part of the Project rules, rules
for signage established by Landlord for a signage program pertaining to the use
of signs by the Tenant. The Landlord shall have the right to approve all signs
posted within the Project, including signs on the building doors. No Tenant
shall permit or cause any advertising, identifications, or other sign to be
constructed, installed or maintained on the Premises or on any property adjacent
to the Premises and visible from the Premises until the plans and specifications
therefor, including the height, size, coloring, design and location of
installation, have been submitted to and approved in writing by the Landlord and
the County of ▇▇▇▇▇. All signs installed on the Premises or on any property
adjacent to the Premises and visible from the Premises shall be consistent with
the character and architectural style of the buildings located on the Premises
upon which they are placed. In addition, no sign, poster, display, or other
advertising device shall be placed in the public view upon any portion of the
Premises and/or Building or on any property adjacent to the Premises and visible
from the Premises unless it complies with all applicable County ordinances. No
Tenant shall permit or cause any sign advertising a person, firm, company, or
corporation which does not operate, conduct a business, or sell products on such
Premises to be constructed, installed, or maintained on such Premises. Landlord,
consultants, or contractors may use signs of a size, design and location as
determined by the Landlord for the purposes of developing, constructing,
marketing and improving the Project.
1.14 Maintenance of Drainage Facilities: The Premises upon which drainage
ditches and/or related facilities are located, or which may be hereafter be
located, shall keep and maintain any improvements constructed thereon, in a
reasonable condition according to their design, purpose and/or function,
including, but not limited to, the removal of all obstructions which may or
reasonably might cause redirection or impedance of the flow of the drainage
thereon regardless of the source or cause of such obstruction or impedance.
1.15 Retention of Lot Grade: Unless specifically approved in writing by
both the County and the Landlord, the grade of any Premises shall not be
modified, altered or otherwise changed.
1.16 Storage and Loading Areas: No materials, trash, supplies or
equipment, including company-owned or operated trucks, shall be stored on the
Premises except inside a closed building, or behind a visual barrier screening
such areas form the view of adjoining properties and/or private streets subject
to the approval of the County of ▇▇▇▇▇ and the Landlord; provided, however, that
this provision shall not apply during the course of construction of a building.
1.17 Canvassing, soliciting and peddling in the Project are prohibited.
2.00 RECIPROCAL EASEMENTS
2.01 Premises Included: Certain Premises, located within the Project,
because of unique characteristics regarding the relationship of each of these
Premises to the other, are encumbered by this document with a special set of
easements. These special easements provide for reciprocal surface access and
reciprocal subsurface utility access on and under the affected Premises.
2.02 Special Reciprocal Surface Access Easements: Each Tenant of the
affected Premises, does covenant for itself and its successors, a nonexclusive
special reciprocal surface access easement over portions of his property for the
purpose of providing landscape planting and on-going maintenance and utility
maintenance and repair. Such surface access shall be reciprocal from one to
another, and shall provide continuous access to each Premises, Landlord/Tenant,
his tenant(s), guest(s), vendors, suppliers and to landscape maintenance
personnel employed by the Landlord or by authorized personnel of Public
Utilities servicing a given utility located within the Reciprocal Easement Area.
2.03 Reciprocal Subsurface Utility Easements: Each Tenant of the affected
Premise does covenant for itself and its successors, a nonexclusive reciprocal
subsurface easement beneath the surface of its Leasehold Premise for the purpose
of providing a satisfactory location for subsurface utility lines servicing all
or some of the Project. Such utilities would be for, but not limited to: water
lines, sanitary sewer lines, storm drainage lines, electrical lines, gas lines,
fiber optic lines, telephone lines or cable TV lines. Such subsurface access
shall be reciprocal from one Leasehold Premise to another and shall provide the
necessary reciprocal easement for the utility line in question and provide
continuous access to authorized personnel of the utility companies providing the
services.
2.04 Subsurface Easements: The utility company or public agency utilizing
the subsurface portion of the Reciprocal Easement Area shall be responsible for
the continuous upkeep and maintenance of the utility facilities.
3.00 BUILDING
3.01 Without limitation upon any of the provisions of the Lease, Tenant
shall not ▇▇▇▇, paint, drill into, cut, string wires within, or in any way
deface any part of the Building or Premises, without the prior written consent
of Landlord, and as Landlord may direct. Upon removal of any wall decorations or
installments or floor coverings by Tenant, any damage to the walls or floors
shall be repaired by Tenant at Tenant's sole cost and expense. Tenant shall not
lay linoleum or similar floor coverings so that the same shall come into direct
contact with the floor of the Premises and, if linoleum or other similar floor
covering is to be used, an interlining of builder's deadening felt shall be
first affixed to the floor, by a paste or other materials soluble in water. The
use of cement or other similar adhesive material is expressly prohibited. Floor
distribution boxes for electric and telephone wires must remain accessible at
all times.
3.02 Tenant shall not install or permit the installation of any awnings,
shades, mylar films or sunfilters on windows. Tenant shall not obstruct, alter
or in any way impair the efficient operation of Landlord's heating, ventilating,
air conditioning, electrical, fire, safety or lighting systems.
3.03 Tenant shall, upon the termination of its tenancy, provide Landlord
with the combinations to all combination locks on safes, safe cabinets and
vaults and deliver to Landlord all keys to the Building and all interior doors,
cabinets, and other key-controlled mechanisms therein, whether or not such keys
were furnished to Tenant by Landlord.
3.04 These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the agreements,
covenants, conditions and provisions of any lease of Premises in the Project.
Should there be any inconsistency between the Lease and these Rules and
Regulations, the provisions of the Lease shall prevail.
EXHIBIT E
OPERATING EXPENSES
For the purposes of this Lease, "Operating Expenses" shall include those items
and services set forth in Section 4.2 and further defined in Section 9 of the
Lease. Operating Expenses associated with the Project Common Facilities and the
Building occupied by the Tenant are calculated and prorated as set forth
hereafter:
Group I - Project Common Area
o Consists of the maintenance and up-keep of perimeter
Landscaping Areas generally located parallel to the public
streets within the Project to a average depth of 15 to 20 feet
from the public right-of-way.
o Categories covered include: Landscape Maintenance and
Utilities (Electrical and Water), and Property Management.
Perimeter Landscaping Areas in the Project shall be constructed and
maintained along public streets and private streets within the Project.
The method for calculation of the Building's prorata share of Project
Operating Expenses shall be based on the number of acres of land assigned
to the Building divided by the total number of acres in that phase of the
Project. The calculation for the Premises prorata share of the Buildings
Operating Expenses shall be based on the square feet of the Premises
divided by the total square feet in the Building (See Section 2.1 of the
Lease for measurement guidelines). The calculation for the Building and
Premises Group I Operating Expense is set forth below.
Building Acreage: 2.02
McCarran II Project Acreage: 16.50 Building/Project: 12.24 percent
Premises sq. ft.: 23,306sq. ft.
Building sq. ft.: 23,306 sq. ft. Premises/Building: 100 percent
Group I Premises Allocation percent (Prem/Bldg x Bldg/Proj)
Group II - Provided by Landlord to the Building and Premises.
Operating Expense obligations of the Building include, but are not limited
to:
o Real Property Taxes including special assessments as indicated
on a separate tax ▇▇▇▇ for the Building but exclusive of any
increased taxes due to the sale of the Building.
o All Risk Property Insurance.
o Property Management for the Building (including, but not
limited to: parking facilities and landscaping) as provided by
Landlord (see Lease, Section 4.2).
o Tenant shall be responsible for its prorata share of the
Building Area's Group II expenses.
The Building's share of Group II Operating Expenses shall be based upon
the Acreage of the Building Area divided by the Acreage of the Project:
Building Area Acreage: 2.02 acres
Building Area Responsibility: 12.24 percent
Operating Expense Obligations of the Premises:
- On-Site-Water and Sewer (unless separately metered to
the Premises)
- Building Maintenance & Repair
- HVAC Maintenance and Repair under a Guaranteed Service
Contract
- Fire Sprinkler Maintenance and Monitoring
- Building Area Trash Removal
- Prorata share of exterior Building area Expenses
Group II Expenses are allocated to the Premises on a prorata basis. The
Building is grossed up to reflect at least 95% occupancy.
Premises sq. ft.: 23,306
Building sq. ft.: 23,306 sq. ft.
Premises Percentage Allocation: 100 Percent. (same as
Premises/Bldg.)
Group III - Provided by Tenant
Operational Expenses which are the sole responsibility of the Tenant are:
- Utility - Electrical: (HVAC, Lighting & Wall Outlets on
separate meter)
- Utility - Telephone (In-Suite)
- Janitorial and Premises Trash Removal (In-Suite)
- All other utilities separately metered to the Premises
Future Expansion
At such time as Tenant shall occupy Building 42A, this Exhibit B shall be
amended to include the additional land associated with Tenant's expansion
and parking requirements.
EXHIBIT F
PARKING
On the October 1,1999 commencement date for building 42, Tenant shall be
provided 117 unrestricted regular size parking stalls (5/1,000 on 23,306 sq.
ft.), free of charge, for the use by Tenant's employees and visitors. On October
1, 2000, Tenant shall receive an additional 47 unrestricted regular size
parking stalls. On the October 1, 2001 commencement date for building 42A,
Tenant shall be provided and additional 100 unrestricted regular size parking
stalls (5/1,000 on 20,000 sq. ft.), free of charge, for the use by Tenant's
employees and visitors.
The rules and regulations governing the use of these spaces are contained in
Exhibit "D" of this Lease. Tenant shall not use more parking spaces than said
number, or any spaces (a) which have been specifically assigned by Landlord to
other tenants or for such other uses as visitor parking or (b) which have been
designated by governmental entities of competent jurisdiction as being
restricted to certain uses. Landlord reserves the right to erect such security
and access and egress control devices as it may reasonably deem to be
appropriate (including, without limitation card controlled gates) and Tenant
agrees to cooperate fully with Landlord in such matters.
Tenant shall not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's employees, suppliers, shippers, customers, or invitees to
be loaded, unloaded, or parked in areas other than those designated by Landlord
for such activities. If Tenant permits or allows any of such prohibited
activities, then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow away the
vehicle involved and charge the cost to Tenant, which cost shall be immediately
payable upon demand by Landlord.
Tenant may, at any time during the Lease term, request additional parking spaces
for use by Tenant's employees and customers. Such spaces shall be provided on a
"first come -- first serve" basis at a rental rate of $32 per space per month
through October 1, 2001 and thereafter subject to the same percentage increases
as set forth in the Lease for the Base Rent. Tenant may also request that
Landlord construct covered parking improvements for Tenant's unrestricted
spaces. The rental rate for such improvements shall be the monthly amortization
of the associated costs over the remaining applicable term of the Lease at
twelve percent (12%) interest and shall be payable monthly with the each
installment of Base Rent due under the Lease.
Landlord shall have the right to reasonably relocate portions of Tenant's
parking to other areas which are adjacent to the Building (within 300 feet) in
order to accommodate repairs, modifications to ingress and egress or Project
construction.
EXHIBIT I
RENEWAL OPTIONS
If immediately prior to the expiration of the operative term, this Lease
shall be in full force and effect, and if written notice is given to Landlord no
later than one hundred and eighty (180) days prior to the expiration of the
operative term of Tenant's intent to renew, the giving of such notice by Tenant
shall be effective to renew this Lease and extend the term hereof as to the
Premises without the necessity for execution of any further instrument by either
party. Tenant shall have the right to extend the Lease for Two (2) additional
periods of sixty (60) months each (Option Terms) from and after the expiration
of the Initial Term. The Option Terms shall be under the same covenants,
agreements, terms, provisions and conditions as are contained herein for the
Initial Term. Base Rent for each year during the entirety of such Option Terms
on the Premises shall, however, be at the "Extension Rate" (as hereinafter
defined).
The "Extension Rate" for purposes of calculating the Base Rent payable
during each twelve (12) month period of an Option Term shall be the amount equal
to the Base Rent applicable for the last month of the operative term multiplied
by a fraction, which fraction shall have as its numerator the Consumer Price
Index For All Urban Consumers using the U.S. City Average (1982-84 = 100), or
alternative thereto as hereinafter provided, as published by the U.S. Department
of Labor, Bureau of Labor Statistics, for the calendar month which is four (4)
months prior to the expiration of the last applicable twelve (12) month period
of tenancy, and which shall have as its denominator the Consumer Price Index, as
published for the calendar month which is four (4) months prior to the
commencement of the final twelve month period of the operative term (Initial
Term or the first Option Term, as the case may be). If the present base of said
Index should hereafter be changed, then the new base shall be converted to the
base now used. In the event that the Bureau should cease to publish the Consumer
Price Index, then a similar Index published by any other branch or department of
the U.S. Government shall be used. In the event the Bureau shall publish more
than one such index, then the index showing the greater proportionate increase
shall be used, and if none is so published, then another index generally
recognized as authoritative shall be substituted by agreement of the parties
hereto, or if no such agreement is reached within a reasonable time, either
party may make application to any court of competent jurisdiction to designate
such other index. In any event, the base used by any new index shall be
reconciled to the 1982-84=100 Base Index. In no event shall the Extension Rate
to be paid by Tenant pursuant hereto be less than the Base Rent as adjusted with
respect to the last twelve (12) month period of the prior operative term. In the
event the numerator of said fraction is not available at the time of adjustment
of the rent as provided herein, Tenant shall continue to pay the rent
established for the next prior twelve (12) month period; provided, however,
Tenant shall promptly pay to Landlord any deficiency at such time as said rent
is adjusted.
The Extension Rate shall be subject to all rent adjustments and increases
as set forth in the Lease, including, but not limited to, Sections 1.12 and 4.
Refurbishment Allowance: Should Tenant exercise its right to extend the
Lease during either of the Option Terms, Landlord shall contribute a
refurbishment allowance, payable on the first day of such Option Term, of $3.50
per rentable sq. ft. to be used solely for the refurbishment and/or alterations
to the Premises, including, but not limited to new carpet, painting or wall
relocation. The refurbishment allowance shall not be used for the purchase of
furniture, fixtures or equipment or payment of rent.
EXHIBIT J
BROKERS COMMISSION
The parties recognize as the broker(s) who negotiated this Lease, the
firm(s), if any, whose name(s) is (are) ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Company, and
agree that Landlord shall be solely responsible for the payment of brokerage
commissions to those broker(s), and that the other party shall have no
responsibility for the commissions unless otherwise provided in this Lease.
Tenant warrants that it has had no dealings with any other real estate broker or
agent in connection with the negotiation of this Lease, and the Tenant agrees to
indemnify and hold Landlord harmless from any cost, expense or liability
(including reasonable attorneys' fees) for any compensation, commissions or
charges claimed by any other real estate broker or agent employed or claiming to
represent or to have been employed by Tenant in connection with the negotiation
of this Lease. The foregoing agreement shall survive the termination of this
Lease. If Tenant fails to take possession of the Premises or if this Lease
otherwise terminates prior to the expiration date, Landlord shall be entitled to
recover the unamortized portion of any brokerage commission funded by Landlord
in addition to any other damages to which Landlord may be entitled.
It is the Landlord's express policy not to pay commissions for the extensions,
renewals, options or expansions of an existing Tenant.
EXHIBIT K
COMMENCEMENT DATE
The Commencement date of that Lease by and between McCarran Center, LC, as
Landlord, and Nextel Partners, Inc., as Tenant, is hereby acknowledged and
agreed to be October 1,1999.
Accordingly, the Expiration Date is acknowledged and agreed to be ________
199__.
LANDLORD: TENANT:
McCarran Center, LC Nextel Partners, Inc.
a Nevada Limited Liability Company
By:________________________________ By: _____________________________________
Its:_______________________________ Its: ____________________________________
EXHIBIT L
MASTER SIGN PLAN
MULTI-TENANT
SIGNAGE STANDARDS
A. GENERAL REQUIREMENTS - ALL BUILDINGS:
1. All sign plans shall be reviewed and approved in writing by the Landlord
for conformity with this criteria and overall design quality prior to
installation. Approval or disapproval of sign submittals shall remain the
sole right of the Landlord.
2. All permits for signs and installation thereof shall be approved by the
Landlord or its representative. The expense of obtaining permits, the
fabrication and the installation of all signs shall be the responsibility
of the Tenant.
B. GENERAL SPECIFICATIONS - ALL BUILDINGS:
1. No projections beyond the sign area will be permitted. Signage area is to
be within limits as indicated by the Landlord in this criteria.
2. Except as provided herein, no advertising placards, banners, pennants,
name insignia, trademarks or other described material shall be affixed or
maintained upon the glass panels and supports of the windows and doors or
upon the exterior walls of the building or office front.
3. All signs and their installation shall comply with all local building
codes.
4. Signs shall be composed of individual lettering. Logos will be considered
on a case by case basis.
C. GENERAL CONSTRUCTION REQUIREMENTS - ALL BUILDINGS:
1. Tenant shall be responsible for the manufacture, complete installation and
maintenance of the building letters and vinyl lettering.
2. All signs are to be installed under the direction of the Project
Contractor's superintendent or representative.
3. Tenant shall be fully responsible for the Tenant's sign contractor.
4. Tenant's sign contractor shall execute Landlord's Right of Entry Agreement
prior to installation of signage.
5. Tenant's sign contractor shall repair any damage to any portion of the
structure and finish caused by its work.
6. All penetrations of the building structure required for sign installation
shall be sealed in a water tight condition and shall be patched to match
Building finish adjacent to the installation.
7. No sign-maker's label or other identification will be permitted on an
exposed surface of the sign, except for those required by ordinance, which
shall be placed in an inconspicuous location.
8. No signs or lettering will be permitted on the building roof other than as
required by applicable laws or regulations in connection with Tenant's
Roof Top Equipment.
D. SIGN CONTRACTOR GENERAL REQUIREMENTS - ALL BUILDINGS:
1. Tenant shall use YESCO (Young Electric Sign Company) or other licensed and
Landlord approved sign contractor to produce and install signage for
aesthetic consistency. Landlord's approval shall be reasonable and timely.
2. All companies bidding to manufacture signs are to be advised by Tenant
that no substitutes will be accepted unless indicated in the
specifications and approved by the Landlord.
3. All manufacturers are to be advised by Tenant that prior to acceptance and
final payment, each unit will be inspected for conformity with approved
plans. Any signs found not in conformity will be rejected and removed at
the Tenant's expense.
4. Entire display shall be guaranteed for 90 days against defects in material
and workmanship. Defective parts shall be replaced without charge.
5. Sign company shall carry ▇▇▇▇▇▇▇'▇ compensation and public liability
insurance against all damage suffered or done to any and all persons
and/or property while engaged in the construction or erection of signs in
the amount of $1,000,000.
E. SINGLE-STORY MULTI-TENANT BUILDINGS - SIGNAGE:
1. Building signage to be flush mounted, non-illuminated, individual letters,
with both upper and lower case permitted.
2. The width of the Tenant sign facia shall not exceed the width of the Sign
Band (as delineated on the exterior elevations). Lettering shall center on
demised premises unless otherwise approved by Landlord.
3. Size of the Building signage letters shall be 18" maximum and logos 24"
maximum in height by 3/4" in depth. Any exceptions will require prior
written consent of the Landlord.
4. Building signage letters will be Helvetica medium or as approved by the
Landlord and painted to match McCarran Center - ▇▇▇▇▇▇▇ Red, available at
Silver State Paint Center.
5. Tenant will be permitted to place at the main entrance of its demised
premises not more than 144 inches of vinyl lettering, not to exceed two
and three fourths inches (2-3/4") in height, maximum of four (4) lines,
indicating suite number and name. An exceptions will require prior written
consent of the Landlord.
6. Tenant's non-customer door for private, employee or merchandise entry may
have uniformly applied in two and three-fourths inches (2-3/4") high vinyl
block letters, the Tenant's name and suite number.
7. Building address (excluding suite number) shall be provided by Landlord.
Address shall be individual 3/4" deep 12" high numbers (Helvetica medium)
flush mounted where indicated on exterior elevations.
F. MULTI-STORY BUILDINGS - PARAPET SIGN:
1. Parapet Wall Sign
Shall mean a logo symbol and/or sign text consisting of individual symbols
or letters installed directly to the parapet of the Building. The use of
"Raceways" for letter attachment to the Building is not permitted.
2. Signable Area
Shall mean the display surface of a sign encompassed within a single
continuous perimeter, which encloses the extreme limits of the display
face of that graphic.
3. Location
Shall be above the upper-most window line, and as indicated on the Sign
Location Plan (if provided), or as otherwise designated by Landlord.
4. Number
Landlord shall determine the number of individual tenants and signs
permitted on a Building.
5. Display
Parapet signs shall use a single line of text.
6. Alignment
Parapet signs shall be located a distance equal to the height of the wall
sign (but not less that 3'0") from the vertical edge of the building, a
minimum of 18" above the highest ceiling line and a minimum of 18" below
the top of the parapet. The sign shall insure the geometric relationship
to the vertical and horizontal features of the building.
7. Height
Wall sign height shall not exceed the height as listed in the table below.
Number of Stories Maximum Height
----------------- --------------
1 2'-0"
2 2'-6"
3 or more 3'-0"
8. Area
Wall sign area shall be as listed in the table below.
Number of Stories Maximum Square Footage
----------------- ----------------------
1 64
2 100
3 or more 144
9. Materials and Construction
Parapet signs shall utilize dark anodized bronze aluminum or other
materials as approved by Landlord. Returns and trim shall match color of
sign face unless otherwise approved. All signs shall consist of individual
letters and/or symbols. No continuous sign cabinets or raceways shall be
permitted.
10. Colors
Colors of parapet sign materials shall be consistent with the Building and
be subject to the approval of the Landlord prior to issuance of the
required building permit. Registered trademark/logo colors are allowed.
11. Illumination and Lighting Control
Parapet signs shall be either non-illuminated or interior or halo
illuminated with no exposed conduit, raceway or similar cabinets and shall
be wired in such a manner that if any one portion and/or letter of the
sign were to burn out, the illumination of the entire sign will
automatically turn off.
12. Submittal
All parapet signs must be submitted to the Landlord for approval. Upon
receiving approval from the Landlord, the Tenant's sign contractor shall
obtain all required permits.
EXHIBIT M
WHEN RECORDED, RETURN TO:
__________________________________________
__________________________________________
__________________________________________
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
(Modify as Necessary for Ground Lease, if Any)
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into as of ____________, 19__, by and between
_________________________________, a(n) _____________________________("Lender")
and ______________________________,a(n) ________________________________________
("Tenant").
Recitals
This Agreement is made with respect to the following facts:
A. Pursuant to Loan Agreement dated as of ____________,19__ (the "Loan
Agreement") entered into among _________, a ___________, and _____________, a
_____________,the Lenders made a loan to Landlord (the "Loan").
B. The loan is secured by a Deed of Trust, Security Agreement, Assignment
of Leases, Rents and Profits, Financing Statement and Fixture Filing (the "Deed
of Trust") which was recorded in the Official Records of ▇▇▇▇▇ County, Nevada,
as Instrument No. __________, encumbers certain real property owned by Landlord
located in ▇▇▇▇▇ County, Nevada, and more particularly described in the Deed of
Trust (the "Property").
C. Lender is [the holder of 100% of the rights/has purchased the Loan and
succeeded to 100% of the rights] of the Landlord under the Loan Agreement, the
Deed of Trust and the other documents evidenced the Loan [pursuant to, inter
alia, (i) an Assignment of Loan Documents dated ___________________, and (ii)
and Assignment of Beneficial Interest under Deed of Trust and under Assignment
of Leases and Rents recorded in the Official Records of ▇▇▇▇▇ County, Nevada, on
_________________ as Instrument No. ].
D. Pursuant to a Lease Agreement dated ______________________ between
McCarran Center, LC, a Nevada limited liability company, as landlord
("Landlord"), and Tenant (the "Lease"), Landlord leased to Tenant [a portion of]
the Property consisting of approximately ___________________ rentable square
feet of office space commonly know as _________________________________,as more
particularly described in the Lease as the "Premises".
E. Lender and Tenant now desire to clarify their respective rights with
respect to the Premises, to confirm the right of Tenant to quiet and peaceable
possession of the Premises under the Lease, and to further define the terms,
covenants and conditions precedent to such right of quiet and peaceable
possession.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. The recitals set forth above are incorporated herein by reference.
2. Tenant covenants and agrees that the Lease now is and at all times
shall continue to be subject and subordinate in each and every respect to the
lien of the Deed of Trust, to the full extent of the principal, interest and
other sums secured thereby. Tenant, upon request, shall execute and deliver any
a certificate or other instrument whether or not in recordable form which Lender
reasonably may request to confirm such subordination.
3. As long as Tenant is in compliance with the terms of this Agreement and
is not in default in the performance of its obligations under the Lease, which
default remains uncured beyond the expiration of any applicable grace or cure
periods, (i) Lender shall not name Tenant as a party defendant in any action for
foreclosure or other enforcement of the Deed of Trust (unless required by law),
nor shall the Lease be terminated by Lender in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Deed of Trust, or by
reason of a transfer of the Landlord's interest under the Lease pursuant to the
taking of a deed or assignment in lieu of foreclosure (or similar device), and
in such event the Lease shall remain in full force and effect as a direct lease
between Tenant and any person, including without limitation Lender, acquiring or
succeeded to the interests of Landlord as a result of any such action or
proceeding (hereinafter referred to as a "Successor") and (ii) Tenant's use or
possession of the Premises shall not be interfered with by Lender or anyone
acting by or through Lender.
4. If any portion of the Property affected by the Lease is damaged by an
insured casualty or if any portion of the Property affected by the Lease is
taken under the power of eminent domain, or sold under the threat of the
exercise of said power, then Lender agrees that insurance or condemnation
proceeds otherwise payable to Lender as a result thereof shall be made available
to Landlord to repair and/or restore the Property.
5. If the interest of Landlord under the lease shall be transferred by
reason of foreclosure or other proceedings for enforcement of the Deed of Trust
or the obligations which it secures or pursuant to a taking of a deed or
assignment in lieu of foreclosure (or similar device), Tenant shall be bound to
the Successor and the Successor shall be bound to Tenant under all terms,
covenants and conditions of the Lease for the unexpired balance of the term
thereof remaining (and any extensions, if exercised), with the same force and
effect as if the Successor were the landlord, and Tenant does hereby (i) agree
to attorn to the Successor, including lender if it be the Successor, as its
landlord, (ii) affirm its obligation under the Lease and (iii) agree to make
payments of all sums due under the Lease to the Successor, said attornment,
affirmation and agreement to be effective and self-operative without the
execution of any further instruments, upon the Successor succeeding to the
interest of Landlord under the Lease.
6. Tenant agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
with respect to the Deed of Trust. Tenant further agrees that in the event there
is any inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance, the terms and provisions
hereof shall be controlling.
7. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors-in-interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
8. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Deed of Trust, except as specifically set forth herein.
9. If either party hereto shall bring suit to enforce the terms and
provisions hereof or to recover damages for breach, the prevailing party shall
be entitled to recover from the other party all reasonable costs, expenses and
attorneys' fees incurred in connection with the exercise by the prevailing party
of its rights and remedies hereunder. The amount of the attorneys' fees is to be
affixed by the court without a jury. For the purpose of this paragraph, the term
"prevailing party" shall mean, in the case of the claimant, one who is
successful in obtaining substantially all of the relief sought, and in the case
of the defendant or respondent, one who is successful in denying substantially
all of the relief sought by the claimant.
10. This Agreement may be executed in one or more counterparts, each of
which when taken together shall constitute one and the same instrument. This
Agreement has been executed in the State of Nevada, and the laws of the State of
Nevada shall govern its construction, performance and terms. This Agreement
shall be construed according to its plain meaning and shall not be strictly
construed either for or against any party hereto. Either party hereto may record
this document in the official records of the county in which the Property is
located.
LENDER:
________________________________
a(n)___________________________
By:____________________________
Name:__________________________
Title:_________________________
TENANT:________________________
_______________________________
a(n)___________________________
By:____________________________
Name:__________________________
Title:_________________________
STATE OF NEVADA )
)ss.
County of ▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this ___ day of
__________, 19__, by _________________________ _______________________________
the _________________ of ___________________________________, on behalf of such
__________________________.
_______________________________
Notary Public
My Commission Expires:
STATE OF NEVADA )
)ss.
County of ▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this __________ day of
_________________, 19__, by the _________________ of _______________________, on
behalf of such ______________________.
_______________________________
Notary Public
My Commission Expires:
_______________________________
EXHIBIT N
TENANT ESTOPPEL CERTIFICATE
TO: ______________________________
PREMISES: ________________________
LOCATION: ________________________
LEASE DATE: ______________________
DATE OF AMENDMENTS, IF ANY: ______
TENANT: __________________________
LANDLORD: McCarran Center, LC
Tenant is a tenant of the Premises pursuant to the lease described above
and any amendments thereto (the "Lease") and hereby certifies the following
information which you, exclusively, may rely upon in connection with your loan
to Landlord:
1. The Lease, a copy of which is attached hereto as Exhibit "A", is presently in
full force and effect and has not been modified, supplemented or amended except
as follows:
________________________________________________________________________________
2. (a) The commencement date of the Lease was or will be ___________________,
and the date of expiration of the Lease will be _______________________, subject
to extensions of the Commencement Date pursuant to Paragraph ________of the
Lease and subject to the Tenant's right, if any, to extend the term of the Lease
as follows: ____________________________________________________________________
_______________________________________________________________________________.
(b) The Premises consists of____________________ square feet for _________
________________________________________________________________ use(s).
3. (a) The base rent payable under the terms of the Lease is $__________.
(b) The base rent payable under the terms of the Lease has been paid
through _______________.
(c) The Lease provides for __________ months free rent, and Landlord has
not agreed to any other free rent periods except as follows:
______________________________.
5. Tenant has not assigned its rights under the Lease or sublet any portion of
the Premises except as follows: _______________________________________________.
6. There are no current actions, whether voluntary or otherwise, pending against
Tenant under any insolvency, bankruptcy or other debtor relief laws of the
United States.
7. Landlord is not currently in default in the performance of any covenants,
conditions, agreements, terms or provisions contained in the Lease. Landlord has
no current obligations to Tenant or agreements with Tenant, except as set forth
in writing in the Lease.
8. Tenant has not been granted any rent abatements or concessions for the term
of the Lease, except as set forth in the Lease or in Paragraph 4 (c) of this
estoppel certificate, and Tenant is not owed any money by Landlord which can be
offset or otherwise deducted from the rental due under the Lease, except as
follows: _______________________________________________.
9. Tenant has deposited ________________ as a security deposit with Landlord.
10. Except as set forth in the Lease, landlord has no current obligations to or
agreements with Tenant with respect to the Premises, including, without
limitation, any obligations or agreements regarding any tenant improvement work
to be performed by Landlord.
THE STATEMENTS MADE HEREIN SHALL BE BINDING UPON US, OUR SUCCESSORS AND
ASSIGNS, AND SHALL INURE TO YOUR BENEFIT AND THE BENEFIT OF YOUR SUCCESSORS AND
ASSIGNS. THE OFFICER, PARTNER OR PERSON, AS APPLICABLE, EXECUTING THIS
CERTIFICATE HAS BEEN DULY EMPOWERED TO DO SO ON BEHALF OF THE UNDERSIGNED.
Tenant:
By: _________________________
Its: ________________________