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EXHIBIT 10.3
COMMERCIAL AND OFFICE REAL ESTATE LEASE
(Multi Tenant Facility)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the Landlord and
Tenant named below. Other Articles, Sections and Paragraphs of the Lease
referred to in this Article One explain and define the Basic Terms and are to be
read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: August 30, 1994.
Section 1.02. Landlord: Buffalo Westcliff Limited Partnership; Buffalo
Construction, its General Partner.
Address of Landlord: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇.
Section 1.03. Tenant: ▇▇▇▇▇▇▇ ▇▇▇▇ Small, M.D., Professional
Corporation, a Nevada Corporation.
Address of Tenant: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇.
Section 1.04. Property: The demised premises (the "Property") is
commonly referred to as a portion of Building 6, Westcliff House, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, (the "Building"), as further described on
Exhibit A attached hereto and incorporated herein by reference. "Net Rentable
Area" of the Property for the purposes of Article 4 only shall be deemed to be
Two Thousand Ninety Two (2092) square feet.
Section 1.05. Lease Term: One Hundred and Twenty (120) months beginning
on SEE RIDER or such other date specified in this Lease, and ending on SEE RIDER
Notice of Lease Term Dates attached hereto as Exhibit B. Tenant shall have two
(2) consecutive Sixty (60) month renewal option terms.
Section 1.06. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: Three Thousand Four Hundred and Fifty One Dollars
($3,451.00) per month for the first Twelve (12) months, as provided in Section
3.01, and shall be increased every twelve (12) months after the Commencement
Date by $0.05 per square foot per month on the anniversary of each remaining
lease year and renewal lease year, if any. The Base rent for all option periods
shall be
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the rental rate in effect during the previous twelve (12) months immediately
preceding the renewal term. The base rental rate for the first lease year is
calculated as follows:
First Floor Office Space 2092 sq. ft. x $1.65 = $3451.00
(b) OTHER PERIODIC PAYMENTS: Tenant shall be responsible for payment of
certain charges directly such as personal property taxes (See Section 4.02),
utilities (See Section 4.03), and certain insurance (See Section 4.04). In
addition, Tenant shall be responsible for payment of any increase over the base
amount of Tenant's Proportionate Share of Building/Common Area Costs (See
Section 4.05) set forth below. The base amount for Tenant's Proportionate Share
of Building/Common Area Costs for the Property is Six Thousand Two Hundred and
Seventy Six Dollars ($6276.00) ($3.00 x 2092 sq. ft.) per year.
Section 1.07. Tenant's Proportionate Share: (See Section 4.05) Tenant's
proportionate share is thirty-five percent (35%) with respect to the Building
and two percent (2%) with respect to the Project (as defined herein).
Section 1.08. Initial Security, Deposit: (See Paragraph 13.02(c)) Equal
to the first three months rent of Ten Thousand Three Hundred and Fifty Five
Dollars ($10,355.00). Tenant shall deliver the Security Deposit upon execution
of this Lease Agreement. Beginning on the sixty first (61st) month anniversary
of the Commencement Date of this Lease Agreement, provided Tenant is not in
default or breach of the Lease Agreement, Conditional Guaranty of Lease, or
Promissory Note, Landlord shall begin refunding the initial security deposit
described herein, in rental credit, to Tenant. Said refund of security deposit
to be completed over a three (3) month period with Tenant responsible for any
corresponding rental amount due for those three (3) months.
Section 1.09. Tenant's Guarantor: ▇▇▇▇▇▇▇ ▇. Small, M.D.
Section 1.10. Permitted Uses: Medical, health office space, oncology
and related services.
Section 1.11. Vehicle Parking Spaces Allocated to Tenant: Landlord
shall grant Tenant the exclusive use of five (5) during the term of the Lease
and any renewal term at a cost of Twenty Five dollars ($25.00) per month. (See
section 4.05)
Section 1.12. Brokers: (See Article Fourteen) Other than The ▇▇▇▇▇▇▇
Company (Broker), Landlord and Tenant each hereby warrants and represents that
it has not employed a broker in connection with this Lease and each hereby
agrees to hold the other harmless from and any and all claims of any other on
account or brokerage commission in connection with the execution of this
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Lease. Tenant hereby acknowledges that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is a shareholder in
Broker and also a Partner in Landlord.
Section 1.13. Riders: The following Riders are attached to and made a
part of this lease: Modification of Basic Terms Lease Rider 2.01, Rider 3.02,
Rider 9.01, Construction of Improvements by Landlord Lease Rider, and Guaranty
of Lease.
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Property For Lease Term. Landlord specified in
Section 1.05 above, unless the beginning or end of the leases the Property to
Tenant and Tenant leases the Property from Landlord for the Lease Term. The
Lease Term is for the period stated in Section 1.05 above and shall begin and
end on the dates specified in Section 1.05 above, unless the beginning or end of
the Lease Term is changed under any provision of this Lease. The "Commencement
Date" shall be the date specified in Section 1.05 above for the beginning of the
Lease Term, unless advanced or delayed under any provision of this Lease. At
such time as the Commencement Date shall have been established, Landlord and
Tenant shall execute Exhibit B attached hereto and incorporated herein by
reference as a confirmation of said date.
Section 2.02. Delay in Commencement. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on the
first date specified in Section 1.05 above. Landlord's non-delivery of the
Property to Tenant on that date shall not affect this Lease or the obligations
of Tenant under this Lease. However, the Commencement Date shall be delayed
until possession of the Property is delivered to Tenant. The Lease Term shall be
extended for a period equal to the delay in delivery of possession of the
Property to Tenant, plus the number of days necessary to end the Lease Term on
the last day of a month. If delivery of possession of the Property to Tenant is
delayed, Landlord and Tenant shall, upon such delivery, execute Exhibit B as
confirmation of the Commencement Date.
Section 2.03. Early Occupancy. If Tenant occupies the Property prior to
the Commencement Date with Landlord's permission, Tenant's occupancy of the
Property shall be subject to all of the provisions of this Lease, including,
without limitation, all insurance requirements. Early occupancy of the Property
shall not advance the expiration date of this Lease. Tenant shall pay Base Rent
and all other charges specified in this Lease for the early occupancy period.
Section 2.04. Holding Over. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages incurred by Landlord from any
delay by Tenant in vacating
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the Property; including, without limitation, any claim made by any succeeding
tenant based on or resulting from such failure to surrender. If Tenant does not
vacate the Property upon the expiration or earlier termination of the Lease and
Landlord thereafter accepts rent from Tenant, Tenant's occupancy of the Property
shall be a "month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then in effect
shall be increased by fifteen percent (15%).
Section 2.05. Renewal Option. Provided Tenant is not in default under
the terms of this Lease, Tenant shall have the option to extend this Lease for
two (2) renewal terms of five (5) years by giving Landlord at least six (6)
months prior notice of its intention to extend the Lease at the end of the
original term. All terms and conditions of this Lease shall remain unchanged
except that Tenant shall not receive any tenant improvement allowance.
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.06(a) above together with an estimate of Additional Rent (as hereinafter
defined) for the first full month of the Lease Term. The Base Rent shall be
appropriately pro rated for any fractional month on the basis of a thirty (30)
day month. On the first day of the second month of the Lease Term and each month
thereafter, Tenant shall pay Landlord the Base Rent, in advance, without offset,
deduction or prior demand. The Base Rent shall be payable at Landlord's address
or at such other place as Landlord may designate in writing.
Section 3.02. Cost of Living Increases. The Base Rent shall be
increased at the times specified in Paragraph 1.06(a) above. Landlord shall
notify Tenant of each increase by delivering a written statement setting forth
the new amount of the Base Rent. Tenant shall pay the new Base Rent from its
effective date until the next periodic increase.
Section 3.03. Termination; Advance Payments. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Tenant's default, and after Tenant
has vacated the Property in the manner required by this Lease, an equitable
adjustment shall be made concerning advance rent, any other advance payments
made by Tenant to Landlord, and accrued real property taxes, and Landlord shall
refund the unused portion of the Security Deposit to Tenant or Tenant's
successor.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
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Section 4.01. Additional Rent and Definitions.
(a) AddItional Rent. All charges payable by Tenant other than Base Rent
are called "Additional Rent." Unless this Lease provides otherwise, all
Additional Rent shall be paid with the next monthly installment of Base Rent.
The term "rent" shall mean Base Rent and Additional Rent.
(b) Definitions. The Property is part of a multi-tenant commercial and
office real property development of Landlord (the "Project"). The Project
includes the land, the buildings and all other improvements located thereon, and
the Common Areas (as hereinafter defined). As used in this Lease, "Building"
shall mean Building 6 as described in Exhibit A hereto. As used in this Lease,
"Common Areas" shall mean all areas within the Building and the Project which
are available for the common use of tenants of the Project and which are not
leased or held for the exclusive use of Tenant or other tenants, including, but
not limited to, parking areas, driveways, sidewalks, loading areas, access
roads, corridors, landscaping and planted areas. Landlord may from time to time
change the size, location, nature and use of any of the Common Areas, including
converting Common Areas into leasable areas, constructing additional parking
facilities (including parking structures) in the Common Areas, and increasing or
decreasing Common Area land and/or facilities. Tenant acknowledges that such
activities may result in occasional inconvenience to Tenant from time to time.
Such activities and changes shall be expressly permitted if they do not
materially affect Tenant's use of the Property.
Section 4.02. Taxes.
(a) Payment. Tenant shall be liable for and shall pay at least ten (10)
days before delinquency (and, upon demand by Landlord, Tenant shall furnish
Landlord with satisfactory evidence of the payment thereof) all taxes and
assessments of whatsoever kind or nature, and penalties and interest thereon, if
any, levied against Tenant's personal property and any other personal property
of whatsoever kind and to whomsoever belonging situated or installed in or upon
the Property, whether or not affixed to the realty. Any leasehold improvements
in excess of those provided at Landlord's expense pursuant to this Lease shall
be deemed Tenant's personal property for the purposes of this Section 4.02. If
at any time during the term of this Lease any such taxes on Tenant's property
are assessed as part of the tax on the real property of which the Property is a
part, then in such event Tenant shall pay to Landlord the amount of such
additional taxes as may be levied against the real property by reason thereof.
Tenant shall use its best efforts to have Tenant's property assessed separately
from said real property. In the event that Tenant's linear accelerator causes a
greater real estate tax assessment for the Building than the assessment of real
estate taxes on a similar building in the
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complex without such a linear accelerator, Tenant shall be responsible for said
additional real estate property taxes.
(b) Impositions. For the purposes of this Section 4.02 and Section
4.05, "Impositions" means:
(i) Any real estate taxes, assessments or other
charges assessed against the Building and related structures and
parking facilities and the land on which they are located.
(ii) All personal property taxes on personal property
used in connection with the Building and related structures other than
taxes payable by Tenant under Paragraph 4.02(a) hereof and taxes of the
same kind as those described in said Paragraph payable by other tenants
in the Building pursuant to corresponding provisions of their leases.
(iii) Any and all environmental levies or charges now
in force affecting the Building or any portion thereof, or which may
hereafter become effective, including, but not limited to, parking
taxes, levies, or charges, employer parking regulations, and any other
parking or vehicular regulations, levies, or charges imposed by any
municipal, state or federal agency or authority.
(iv) Any other taxes levied or assessed in addition
to or in lieu of such real or personal property taxes.
(c) Exclusion. Notwithstanding anything to the contrary contained in
this Section 4.02, Tenant shall not be liable for any of the following taxes and
assessments:
(i) Personal property, fixture or equipment taxes
assessed against the property used by Landlord in operating, managing
or leasing the Project;
(ii) Inheritance tax, estate taxes, gift taxes,
income taxes, transfer taxes and excess profit taxes.
(d) Substituted Taxes. If at any time during the term of this Lease,
under the laws of the United States, Nevada or any political subdivision
thereof, a tax or excise on rents or other tax (except income tax), however
described, is levied or assessed by the United States, Nevada or said political
subdivision against Landlord on account of any rent reserved or space leased
under this Lease, all such tax or excise on rents or other taxes shall be paid
by Tenant. Whenever Landlord shall receive any statement or ▇▇▇▇ for any such
tax or shall otherwise be required to make any payment on account thereof,
Tenant shall pay the amount due hereunder within ten (10) days after demand
therefor accompanied by delivery to Tenant of a copy of such tax statement, if
any.
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(e) Right to Contest. Tenant shall have the right to contest any taxes
the payment of which, in whole or in part, is the obligation of Tenant
hereunder. Said right to contest shall not excuse Tenant of its obligation to
pay such taxes as herein provided. However, in the event that the effect of such
contest is to extend or postpone the date on which such taxes are delinquent,
Tenant may, instead of payment, deposit with Landlord the amount of such claimed
tax payable by Tenant, together with interest and penalties thereon, pending
resolution of such contest, and within a reasonable time, deliver to Landlord
either (a) evidence satisfactory to Landlord that such claim of taxability has
been withdrawn or defeated, in which event such deposit shall be returned to
Tenant to the extent it exceeds any monies then payable by Tenant or (b) an
instruction that such claim of taxability has not been defeated and that such
deposit be applied towards payment of Tenant's obligations therefor. Such
deposit shall not relieve Tenant of the obligation to make any additional
payments for which Tenant would otherwise be responsible hereunder. Tenant shall
indemnify, save and hold Landlord, the Building, the Project and the Property
free, clear and harmless from any and all liability, loss, costs, charges,
penalties, obligations, liens, expenses, reasonable attorneys' fees, litigation,
judgments, damages, claims and demands of any kind whatsoever in connection
with, arising out of, or by reason of any contest of taxes pursuant to this
Paragraph 4.02(e).
(f) Pro Rata Share. All taxes and assessments of whatever kind or
nature and penalties and interest thereon, if any, levied against Tenant, other
than Tenant's personal property as set forth in Paragraph 4.02(a) herein, shall
be determined based upon Tenant's pro rata portion of said tax and/or assessment
equal to Tenant's Proportionate Share of the Building and the Project, as
applicable.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, any medical refuse disposal, janitorial service, HVAC filter
maintenance, and other utilities and services supplied to the Property. However,
if any services or utilities are jointly metered with other property, Landlord
shall make a reasonable determination of Tenant's proportionate share of the
cost of such utilities and services and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
Section 4.04. Insurance Premiums.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of comprehensive public liability insurance, at Tenant's expense,
insuring Landlord against liability arising out of the ownership, use, occupancy
or maintenance of the Property. The initial amount of such insurance shall be at
least Two Million
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Dollars ($2,000,000.00), and shall be subject to periodic increase based upon
inflation, increased liability awards, recommendation of professional insurance
advisers, and other relevant factors. However, the amount of such insurance
shall not limit Tenant's liability nor relieve Tenant of any obligation
hereunder. The policy shall contain cross-liability endorsements, if applicable,
and shall insure Tenant's performance of the indemnity provisions of parts (a),
(b) and (e) of Section 5.04. Tenant shall, at Tenant's expense, maintain such
other liability insurance as Tenant deems necessary to protect Tenant,
including, without limitation, workers compensation insurance in the manner
required by law.
(b) Hazard and Rental Income Insurance. During the Lease Term, Landlord
shall maintain policies of insurance at Tenant's expense, covering loss of or
damage to the Property in the full amount of its replacement value. Such
policies shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism; malicious mischief,
special extended perils (all risk), sprinkler leakage, earthquake sprinkler
leakage, and inflation guard endorsement, and any other perils (except flood and
earthquake, unless required by any lender holding a security interest in the
Property) which Landlord deems necessary. Landlord may but is not obligated to,
obtain insurance coverage for Tenant's fixtures, equipment or building
improvements installed by Tenant in or on the Property. Tenant shall, at
Tenant's expense, maintain such primary or additional insurance on its fixtures,
equipment and building improvements as Tenant deems necessary to protect its
interest. During the Lease Term, Landlord shall also maintain a rental income
insurance policy at Tenant's expense, with loss payable to Landlord in an amount
equal to one year's Base Rent, estimated real property taxes and insurance
premiums. Tenant shall not do or permit to be done anything which invalidates
any such insurance policies.
(c) Payment of Premium; Insurance Policies. Subject to Section 4.05 of
this Lease, Tenant shall pay all premiums for the insurance policies covering
the Property described in Paragraphs 4.04 (a) and (b) within fifteen (15) days
after receipt by Tenant of a copy of the premium statement or other evidence of
the amount due. If the insurance policies maintained by Landlord cover
improvements or real property other than the Property, Landlord shall also
deliver to Tenant a statement of the amount of the premiums applicable to the
Property showing, in reasonable detail, how such amount was computed. If the
Lease Term expires before the expiration of the insurance policy period,
Tenant's liability for insurance premiums shall be pro rated on an annual basis.
All insurance shall be maintained with companies holding a "General
Policyholder's Rating" of A-VI or better, as set forth in the most current issue
of "Best's Insurance Guide." Tenant shall be liable for the payment of any
deductible amount under Landlord's insurance policies.
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(d) Use. Tenant shall not use or occupy, or permit the Property to be
used or occupied in a manner which will increase the rates of insurance for the
Property or the Project, which will make void or voidable any insurance then in
force with respect thereto, which would constitute a defense to any action
thereon, or which will make it impossible to obtain any insurance with respect
thereto. If by reason of the failure of Tenant to comply herewith, any insurance
rates for the Property or the Project become higher than they otherwise would
be, Tenant shall reimburse Landlord, on the first day of the calendar month next
succeeding notice by Landlord to Tenant of said increase, for that part of all
insurance premiums thereafter paid by Landlord which shall have been charged
because of such failure of Tenant. Any policy of insurance maintained by Tenant
insuring against any risk in, upon, about or in any way connected with the
Property or Tenant's use thereof shall, to the extent reasonably obtainable,
contain an express waiver of any and all rights of subrogation thereunder
whatsoever against Landlord, its officers, agents and employees.
(e) Additional Insureds. Tenant and Landlord shall be named as insureds
(and at Landlord's option, any other persons, firms or corporations designated
by Landlord shall be additionally named insureds) under each such policy of
insurance which shall provide that Landlord, although named as an insured, shall
nevertheless be entitled to recovery thereunder for any loss suffered by it, its
agents, servants and employees by reason of Tenant's negligence or the
negligence of its subtenant or assignee.
(f) Cancellation. Every policy required pursuant to this Section 4.04
shall provide that it will not be cancelled or modified except after thirty (30)
days' written notice to Landlord and any lender of Landlord requesting such
notice, and that it shall not be invalidated by any act or neglect of Landlord
or Tenant, nor by occupation of the Property for purposes more hazardous than
permitted by such policy, nor by any foreclosure or other proceedings relating
to the Property, nor by change in title to the Property or Landlord's interest
therein.
(g) Evidence of Insurance. Tenant shall deliver to Landlord and any
lender of Landlord requiring the same original policies or certificates of
insurers, satisfactory to Landlord and such lender, if any, evidencing the
existence or all insurance which is required to be maintained by Tenant
hereunder, fully paid, such delivery to be made (i) promptly after the execution
and delivery hereof and (ii) within thirty (30) days prior to the expiration of
any then current policies. Tenant shall not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section 4.04 unless Landlord is a named insured therein (and, at Landlord's
option, any other persons, firms or corporations designated by Landlord shall be
additionally named insureds). Tenant shall immediately notify Landlord whenever
any such separate insurance is obtained and shall deliver to
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Landlord and any lender of Landlord the policies or certificates evidencing the
same.
(h) Primary Insurance--Subrogation. Any insurance provided for the
benefit of Landlord by Tenant shall be primary insurance as respects any claim,
loss or liability arising directly or indirectly from Tenant's operations and
any other insurance maintained by Landlord shall be excess and non-contributory
with the insurance provided hereunder by Tenant. Landlord and Tenant each hereby
waive any and all rights of recovery against the other, or against the officers,
employees, agents or representatives of the other, for loss of or damage to its
property or the Property of others under its control, if such loss or damage is
covered by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage. Upon obtaining the policies of
insurance described herein, Landlord and Tenant shall give notice to the
insurance carrier or carriers of the foregoing mutual waiver of subrogation.
Section 4.05. Common Areas; Use and Costs.
(a) Amount Due. Throughout the term hereof, Tenant will pay to Landlord
monthly in advance in addition to the Base Rent, as further Additional Rent, any
increase over a base amount of Six Thousand Two Hundred and Seventy Six Dollars
($6276.00) ($3.00 x 2092 sq. ft.) per year of the pro rata portion of
Building/Common Area Costs incurred by Landlord with respect to the Property
during each calendar year occurring during the term of this Lease. Landlord
shall not increase Tenant's Additional Rent as defined herein for the first two
(2) years of the Lease term. Tenant's pro rata portion with respect to the
Building shall equal the percentage which the number of net rentable square feet
of the Property bears to the total number of net rentable Square feet of the
Building and with respect to the Project shall equal the Percentage which the
number of net rentable square feet of the Property bears to the total number of
net rentable square feet of the buildings occupied or to be occupied in the
Project excluding any loft office space and loft storage space ("Tenant's
Proportionate Share").
(b) Included Costs. "Building/Common Area Costs" shall include all
costs and expenses of every kind or nature incurred by Landlord directly in the
management, operation, maintenance and repair of the Building, the Project and
related Common Areas in a manner reasonable and appropriate and for the best
interest of the entire Project and that are generally passed on to tenants in
first class projects in the Las Vegas metropolitan area under lease provisions
similar to this Section 4.05, as determined and expensed in accordance with
generally accepted accounting Principles. Without otherwise limiting the
generality of the foregoing, there shall be included in such costs and expenses,
all Impositions (as hereinbefore defined); premiums with respect to Public
liability,
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property damage, workmen's compensation, fire and other insurance carried on or
with respect to the Building, the Project and related Common Area structures;
payroll taxes, unemployment taxes, social security taxes, cleaning of any Common
Area facilities, landscaping, signs, lighting, music systems, janitorial
services of common areas, refuse disposal, management fees consistent with other
first class projects in the Las Vegas metropolitan area, reasonable legal and
accounting expenses, supervising of attendants and employment of other personnel
used in such operations, maintenance and repairs, fuel, energy and utilities
(not separately metered by Tenant), providing for security and fire protection
services, alarm systems and equipment, materials and supplies, painting,
stripping, removing of rubbish or debris, depreciation or rentals of machinery
and equipment, costs of replacement of paving, curbs and walkways, drainage,
repair and maintenance of parking and other common areas, roof repairs and an
administrative fee equal to fifteen percent (15%) of all of the foregoing
excluding costs of Impositions and insurance provided such administrative fee
does not exceed $1,000.00 per year.
(c) Payment. The Additional Rent Provided to be paid in this Section
4.05 shall be estimated in advance by Landlord annually and one-twelfth (1/12)
of such estimate shall be paid in advance by Tenant on the first day of each
month without further demand or any deduction or set-off whatever. When Landlord
shall ascertain the actual Building/Common Area Costs for a calendar year,
Landlord shall so notify Tenant and Tenant shall pay to Landlord on demand the
amount, if any, equal to the difference between the amount due for such year
pursuant to this Section 4.05 and the amount previously paid hereunder. Landlord
shall determine actual costs within sixty (60) days of the end of the year.
Should the estimated payments have exceeded the actual amount due, said excess
shall be held by Landlord and applied to the next monthly payment of Additional
Rent provided to be paid under this Section 4.05, and, if necessary, each
monthly payment thereafter until fully exhausted. Tenant shall not be entitled
to receive interest on any Additional Rent paid hereunder. No delay by Landlord
in submitting any statement shall constitute a waiver of Landlord's right to
submit such statement and/or receive any Additional Rent pursuant hereto. The
Additional Rent due hereunder shall be pro rated for the calendar year in which
this Lease terminates. Said amount shall be calculated and paid as herein
provided even though said calculation may not occur until after the end of the
term hereof.
(d) Excluded Costs. There shall not be included in Building/Common Area
Costs the payments (such as salaries or fees) to Landlord's executive personnel;
costs for items that, by standard accounting practice, should be capitalized,
unless these costs reduce operating expenses and are amortized over the
reasonable life of the capital item in accordance with generally accepted
accounting principles and the yearly amortization does not exceed the actual
costs reduction for the relevant year;
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depreciation or interest (unless it is related to allowable capital items);
taxes on Landlord's business (such as income, excess profits, franchise, capital
stock, estate, inheritance); leasing commissions; legal fees not directly
relating to the operation and maintenance of the entire project such as landlord
and tenant issues;, costs to correct original construction defects; expenses
paid directly by a tenant for any reason (such as excessive utility use); costs
for improving any tenant's space; any repair or work necessitated by
condemnation, fire, or other casualty; service or benefits or both provided to
some tenants, but not to Tenant; and any costs, fines, and the like due to
Landlord's violation of any government rule or authority.
(e) Audit. Tenant shall have the right, upon 15 days' written notice to
Landlord, to audit, at Tenant's expense, Landlord's books and records as they
relate to the Building/Common Area Costs. Should said Building/Common Area Costs
be five percent (5%) higher than said Building/Common Area Costs as determined
by the audit, Landlord shall be obligated to pay the cost of said audit and the
estimated payments of Building/Common Area Costs shall be appropriately reduced.
(f) Dispute. Should a dispute arise as to the Building/Common Area
Costs, then the matter shall be determined by arbitration in accordance with the
rules of the American Arbitration Association then prevailing.
(g) Parking. In addition to any parking facilities included as a part
of the Property, Tenant, its employees and business invitees shall have the
nonexclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant rights, to use Common Areas in the Project
(including but not limited to, the parking lot, walkways and sidewalks) which
are not reserved for others, subject to such rules and regulations as Landlord
may from time to time impose, including the designation of specific areas in
which cars operated by Tenant, its employees and business invitees must be
parked. Tenant shall also be entitled to use up to five (5) covered vehicle
parking spaces in the Project allocated to Tenant on a reserved basis at a cost
of $25.00 per space, per Month. Tenant's other parking shall not be reserved and
all parking shall be limited to vehicles no larger than standard size
automobiles or pickup utility vehicles. Landlord shall assure that unreserved,
undesignated parking spaces available to the public surrounding the Building are
maintained with a parking ratio of four (4) parking spaces for every one
thousand (1000) square feet of office space. Tenant shall not cause large trucks
or other large vehicles to be parked within the Project except in designated
areas and spaces or on the adjacent public streets. Temporary parking of large
delivery vehicles in the Project may be permitted by the rules and regulations
established by Landlord. Vehicles shall be parked only in striped parking spaces
and not in driveways, loading areas or other locations not specifically
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designated for parking. Landlord may at any time close any Common Area to make
repairs or changes (provided the closure does not unreasonably impede access to
the Leased Property by customers and employees of Tenant), to prevent the
acquisition of public rights in such areas, or to discourage noncustomer
parking. Landlord may do such other acts in and to the Common Areas as in its
judgment may be desirable, including, but not limited to, the conversion of
portions thereof to other uses. Tenant shall upon request furnish to Landlord
the license number of cars operated by Tenant and its employees. Tenant shall
not at any time interfere with the right of Landlord, other tenants, its and
their agents, employees, servants, contractors, subtenants, licensees, customers
and business invitees to use any part of the parking lot or other Common Areas.
Landlord assumes no responsibility to police the use of said parking areas and
Landlord shall not be liable for the use thereof by Landlord, Landlord's other
tenants, its or their agents, employees, servants, contractors, subtenants,
licensees, customers and/or business invitees or by any other person or persons,
entity or entities whomsoever.
(h) Environmental Levies. Any and all environmental levies or charges
now in force affecting the Building or any portion thereof, or which may
hereafter become effective, including, but not limited to, parking taxes,
levies, or charges, employer parking regulations, and any other parking or
vehicular regulations, levies, or charges imposed by any municipal, state or
federal agency or authority.
Section 4.06. Late Charges. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes due, and five (5) business days after written notice
to Tenant, Tenant shall pay Landlord a late charge equal to ten percent (10%) of
the overdue amount. The parties agree that such late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of such late
payment.
Section 4.07. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
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ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.10 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the development of which the Property is part, or which
constitutes a nuisance or waste. Tenant shall obtain and pay for all permits
required for Tenant's occupancy of the Property other than those relating to
construction such as the building permit or certificate of occupancy and shall
promptly take all substantial and non- substantial actions necessary to comply
with all applicable statutes, ordinances, rules, regulations, orders and
requirements regulating the use by Tenant of the Property, including the
Occupational Safety and Health Act.
Section 5.03. Signs and Auctions. Tenant shall not place any signs on
the Property without Landlord's prior written consent. Tenant shall be
responsible for all signage costs, including but not limited to all
installation, maintenance and repair costs. Tenant shall not conduct or permit
any auctions or sheriff's sales at the Property. A final signage agreement will
be executed by Landlord and Tenant after Tenant has had the opportunity to
review the signage criteria.
Section 5.04. Indemnity. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Property;
(c) any breach or default in the performance of Tenant's obligations under this
Lease; (d) any misrepresentation or breach of warranty by Tenant under this
Lease; or (e) other acts or omissions of Tenant. Tenant shall defend Landlord
against any such cost, claim or liability at Tenant's expense with counsel
reasonably acceptable to Landlord or, at Landlord's election, Tenant shall
reimburse Landlord for any legal fees or costs incurred by Landlord in
connection with any such claim. As a material part of the consideration to
Landlord, Tenant hereby assumes all risk of damage to property or injury to
persons in or about the Property arising from any cause, and Tenant hereby
waives all claims in respect thereof against Landlord, except for any claim
arising out of Landlord's gross negligence or willful misconduct.
Section 5.05. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times provided it does not interfere with the
business of Tenant to show the Property to potential buyers, investors or
tenants or other parties, or for any
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other purpose Landlord deems necessary. Landlord shall give Tenant prior notice
of at least one (1) day of such entry, except in the case of an emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.06. Quiet Possession. If Tenant pays the rent and complies
with all other terms of this lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND
ALTERATIONS
Section 6.01. Existing Conditions. SEE CONSTRUCTION OP IMPROVEMENTS BY
LANDLORD LEASE RIDER. Tenant agrees to abide by and conform to any covenants,
conditions and restrictions or reciprocal easement agreements relating to the
Property described in a Reciprocal Parking, Access and Maintenance Agreement in
a form reasonably acceptable to Tenant which does not increase Tenant's
obligations or expenses as described in this Lease.
Section 6.02. Exemption of Landlord from Liability. Landlord shall be
required to perform its obligation to make improvements pursuant to the Rider
referred to in Section 6.01 and correct construction defects and shall be
responsible for damages and liability arising from construction defects.
However, Landlord shall not otherwise be liable for any damage or injury to the
person, business (or any loss of income therefrom), goods, wares, merchandise or
other property of Tenant, Tenant's employees, invitees, customers or any other
person in or about the Property, whether such damage or injury is caused by or
results from (a) fire, steam, electricity, water, gas or rain; (b) the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
medical equipment or facilities, plumbing, air conditioning or lighting fixtures
or any other cause; (c) conditions arising in or about the Property or upon
other portions of any building of which the Property is a part, or from other
sources or places; or (d) any act or omission of any other tenant of the
Project. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.02 shall not, however, exempt
Landlord from liability for Landlord's gross negligence or willful misconduct.
Section 6.03. Tenant's Obligations.
(a) Except as provided for elsewhere herein, Tenant shall keep the
Property in good order, condition and repair during the Lease Term, subject to
reasonable wear and tear, including, but without limitation, all non-structural,
interior and exterior portions thereof; the HVAC filter maintenance and filter
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replacement; the exterior and interior portion of all doors, windows, plate
glass; all plumbing and sewage facilities within the Property (including
maintaining free flow up to the main sewer line); interior fixtures, sprinkler
system, walls, floors and ceilings in the Property; and any work performed by or
on behalf of Tenant hereunder. Tenant shall also maintain a preventive
maintenance contract, at Tenants expense, providing for the regular inspection
and maintenance of the heating and air conditioning system by a licensed heating
and air conditioning contractor. However, Landlord shall have the right, upon
written notice to Tenant, to undertake the responsibility for preventive
maintenance of the heating and air conditioning system, at Tenants expense so
long as such expense is reasonable and the service provided is of reasonable
quality and value. Tenant shall promptly replace any portion of the Property or
system or equipment in the Property which cannot be fully repaired, regardless
of whether the benefit of such replacement extends beyond the Lease Term. It is
the intention of Landlord and Tenant that, at all times during the Lease Term,
Tenant shall maintain the Property in an attractive, first-class and fully
operative condition. Tenant shall be solely responsible for its own janitorial
and cleaning services for the Building.
(b) All of Tenant's obligations to maintain and repair shall be
accomplished at Tenant's sole expense. If Tenant fails to maintain and repair
the Property, Landlord may, on ten (10) days' prior notice (except that no
notice shall be required in case of emergency) enter the Property and perform
such repair and maintenance on behalf of Tenant. In such case, Tenant shall
reimburse Landlord for all costs so incurred immediately upon demand.
Section 6.04 Landlord's Obligations. Landlord agrees to keep in good
order, condition and repair the foundations, structural members, exterior walls
and roof of the Property and the Building (but excluding the exterior and
interior of all windows, doors, and plate glass) and the Common Areas of the
Project, except for reasonable wear and tear and except for any damages thereto
caused by any act or negligence of Tenant or its agents, employee, servants,
contractors, subtenants, licensees, customers or business invitees. Except as
specifically provided herein, Tenant shall pay, at its sole cost and expense,
all charges for services and utilities used in, upon or about the Property.
Landlord may, from time to time, prescribe rules and regulations for
implementation of this paragraph.
(b) Limitation. Landlord shall not be obligated to perform any service
or to repair or maintain any structure or facility except as provided in this
Section 6.04 and Section 4.05 hereof. Tenant shall be responsible for its own
janitorial services for the Property. Landlord shall not be responsible for
light bulb or ballast replacement. Landlord shall not be obligated to provide
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any service or maintenance or to make any repairs when such service, maintenance
or repair is made necessary because of the negligence or misuse of Tenant,
Tenant's agents, employee, the servants, contractors, subtenants, licensees,
customers or business invitees. Landlord reserves the right to stop any service
when Landlord reasonably deems such stoppage necessary; whether by reason of
accident or emergency, or for repairs or improvements or otherwise. Landlord
shall not be liable for loss or injury however occurring, through or in
connection with or incident to any stoppage of such services. Landlord shall not
be obligated to inspect the Property and shall not be obligated to make any
repairs or perform any maintenance hereunder unless first notified of the need
thereof in writing by Tenant. In the event that Landlord shall fail to commence
such repairs or maintenance within twenty (20) days after said notice if
business has not been interrupted, Tenant shall, after further notice to
Landlord, make such repairs or perform such maintenance at Landlord's expense;
provided, however, that the amount of such costs not exceed the reasonable value
of such repairs or maintenance. Landlord shall not be liable for any loss or
damage to persons or property sustained by Tenant or other persons, which may be
caused by the Building or the Property, or any appurtenances thereto, being out
of repair or by bursting or leakage of any water, gas, sewer or steam pipe,
whether or not it is the obligation of Landlord to repair the same, by theft, by
fire, oil or electricity, by any act or neglect of any tenant or occupant of the
Building, or of any other person, or by any other cause of whatsoever nature,
unless caused by the negligence of Landlord.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Property without Landlord's prior written consent. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions, and improvements
will be accomplished in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by Landlord. Upon
completion of any such work, Tenant shall provide Landlord with "as built"
plans, copies of all construction contracts, and proof of payment for all labor
and materials.
(b) Unless Tenant is contesting payment and has provided security
reasonably acceptable to Landlord, Tenant shall pay when due all claims for
labor and material furnished to the Property. Tenant shall give Landlord at
least fifteen (15) days' prior written notice of the commencement of any work on
the Property. Landlord may elect to record and post notices of
non-responsibility on the Property.
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Section 6.06. Condition upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. However,
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Seven (Damage or Destruction). In addition, Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the termination of the Lease and to
restore the Property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the termination of the Lease, except that Tenant may remove any of Tenant's
machinery or equipment which can be removed without material damage to the
Property. Tenant shall repair, at Tenant's expense, any damage to the Property
caused by the removal of any such machinery or equipment. In no event, however,
shall Tenant remove any of the following materials or equipment without
Landlord's prior written consent: any power wiring' or power panels; lighting or
lighting fixtures; wall coverings; drapes, blinds or other window coverings;
carpets or other floor coverings; heaters, air conditioners or any other heating
or air conditioning equipment; fencing or security gates; or other similar
building operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Property. Tenant shall notify Landlord
in writing immediately upon the occurrence of any damage to the Property. If the
Property is only partially damaged and if the proceeds received by Landlord from
the insurance policies described in Paragraph 4.04(b) are sufficient to pay for
the necessary repairs, this Lease shall remain in effect and Landlord shall
repair the damage as soon as reasonably possible. Landlord may elect to repair
any damage to Tenant's fixtures, equipment, or improvements. If the insurance
proceeds received by Landlord are not sufficient to pay the entire cost of
repair, or if the damage was due to a cause not covered by the insurance
policies which Landlord maintains under Paragraph 4.04(b), Landlord may elect
either to (a) repair the damage as soon as reasonably possible in which case
this Lease shall remain in full force and effect, or (b) terminate this Lease as
of the date the damage occurred. Landlord shall notify Tenant within thirty (30)
days after receipt of notice of the occurrence of the damage, whether Landlord
elects to repair the damage or terminate the Lease and if Landlord elects to
repair the damage it shall commence repair within ninety (90) days of the notice
and complete repairs within one hundred twenty (120) days of the start of
construction. If Landlord, elects to repair the damage, Tenant shall pay
Landlord the "deductible amount" (if any) under Landlord's insurance
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policies, and, if the damage was due to an act any insurance proceeds received
by Landlord. If Landlord terminate the Lease, Tenant may elect to continue this
full force and effect, in which case Tenant shall repair to the Property and any
building in which the Property Tenant shall pay the cost of such repairs, except
that, satisfactory completion of such repairs, Landlord shall deliver to Tenant
any insurance proceeds received by Landlord for the damage repaired by Tenant.
Tenant shall give Landlord written notice of such election within ten (10) days
after receiving Landlord's termination notice. If the damage to the Property
occurs during the last six (6) months of the Lease Term, Landlord may elect
terminate this Lease as of the date the damage occurred regardless of the
sufficiency of any insurance proceeds. In such event, Landlord shall not be
obligated to repair or restore the Property and Tenant shall have no right to
continue this Lease. Landlord shall notify Tenant of its election within thirty
(30) days after receipt of notice of the occurrence of the damage.
Section 7.02 Total or Substantial Destruction. If the Property is
totally or substantially destroyed by any cause whatsoever, this Lease shall
terminate as of the date the destruction occurred regardless of whether Landlord
receives any insurance proceeds. However, if the Property can be rebuilt within
nine (9) months after the date of destruction, Landlord may elect to rebuild the
Property at Landlord's own expense, in which case this lease shall remain in
full force and effect. Landlord shall notify Tenant of such election within
thirty (30) days after the occurrence of the total or substantial destruction.
If the destruction was caused by an act or omission of Tenant, Tenant shall pay
Landlord the difference between the actual cost of rebuilding and any insurance
proceeds received by Landlord. This Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after the
occurrence of total or substantial destruction. If the destruction was caused by
an act or omission of Tenant, Tenant shall pay Landlord the difference between
the actual cost of rebuilding and any insurance proceeds received by Landlord.
Section 7.03. Temporary Reduction of Rent. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant to
the provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Tenant's use of the Property is impaired. However, the reduction
shall not exceed the sum of one year's payment of Base Rent and Additional Rent.
Except for such possible reduction in Base Rent and Additional Rent, Tenant
shall not be entitled to any compensation, reduction, or reimbursement from
Landlord as a result of any damage, destruction, repair, or restoration of or to
the Property.
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ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If the taking causes a material interference with the Tenant's business, either
Landlord or Tenant may terminate this lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes possession). If neither Landlord nor Tenant terminates this Lease, this
Lease shall remain in effect as to the portion of the Property not taken, except
that the Base Rent shall be reduced in proportion to the reduction in the floor
area of the Property. Any Condemnation award or payment shall be distributed in
the following order: (a) first, to any ground lessor, mortgagee or beneficiary
under a deed of trust specifically designated for loss of or damage to Tenant's
trade encumbering the Property, the amount of its interest in the Property; (b)
second, to Tenant, only the amount of any award fixtures or removable personal
property; and (a) third, to Landlord, the remainder of such award; whether as
compensation for reduction in the value of the leasehold, the taking of the fee,
or otherwise. Tenant may make its own claim for moving and related expenses and
its interest in the leasehold. If this Lease is not terminated, Landlord shall
repair any damage to the Property caused by the Condemnation, except that
Landlord shall not be obligated to repair any damage for which Tenant has been
reimbursed by the condemning authority. If the severance damages received by
Landlord are not sufficient to pay for such repair, Landlord shall have the
right to either terminate this Lease or make such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. Except as part of a major
financing arrangement for Tenant, a related corporation or guarantor, no portion
of the Property or of Tenant's interest in this Lease may be acquired by any
other person or entity, whether by assignment, mortgage, sublease, transfer,
operation of law, or act of Tenant, without Landlord's prior written consent,
except as provided in Section 9.02 below. Landlord shall grant or withhold its
consent as provided in Section 9.04 below. Any attempted transfer without
consent shall be void and shall constitute a non- curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than 20% of the
partnership interests shall require Landlord's consent. If Tenant is a
corporation, any change in a controlling interest of the voting stock of the
corporation shall require Landlord's consent.
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Section 9.02. Tenant Affiliate. Tenant may assign this Lease or
sublease the Property, without Landlord's consent, to any corporation which
Landlord determines controls, is controlled by or is under common control with
Tenant, or to any corporation resulting from the merger of or consolidation with
Tenant ("Tenant's Affiliate"). In such case, any Tenant's Affiliate shall assume
in writing all of Tenant's obligations under this Lease.
Section 9.03. No Release of Tenant. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of rent from any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Tenant's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Tenant's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease.
Section 9.04. Landlord's Election. Tenant's request for consent to any
transfer described in Section 9.01 above shall be accompanied by a written
statement setting forth the details of the proposed transfer, including the
name, business and financial condition of the prospective transferee, financial
details of the proposed transfer (e.g., the term of and rent and security
deposit payable under any assignment or sublease), and any other information
Landlord deems relevant. Landlord shall have the right (a) to withhold consent,
if not unreasonable; (b) to grant consent; (c) if the transfer is a sublease of
the Property or an assignment of this Lease, to terminate this Lease as of the
effective date of such sublease or assignment, in which case Landlord may elect
to enter into a direct lease with the proposed assignee or subtenant; or, (d) if
this transfer is a sale of Tenant's medical practice at this facility, and
Landlord has the opportunity to review and subsequently approves the prospective
transferee's financials, Landlord may, at its sole option based upon the
prospective transferee's financials, release Tenant from being primary liability
under this Lease as provided for in Paragraph 9.03 herein and release Tenant
from its obligation to pay the rent and to perform all other obligations of
Tenant under this Lease. Landlord shall not unreasonably without its release of
Tenant from being primarily liable under this Lease.
Section 9.05. No Merger. No Merger shall result from Tenant's sublease
of the Property under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant or
sublandlord thereunder.
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ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property or if Tenant's vacation of the
Property results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge required to be paid
by Tenant when due and within ten (10) days after written notice to Tenant;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Tenant's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
(d) (i) If Tenant or any guarantor hereunder, or any general partner of
Tenant if Tenant is a partnership makes a general assignment or general
arrangement for the benefit of creditors and payment of rent is not current;
(ii) if a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against Tenant or any guarantor hereunder, or any
general partner of Tenant if Tenant is a partnership and is not dismissed within
thirty (30) days and payment of rent is not current; (iii) if a trustee or
receiver is appointed to take possession of substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease and possession is
not restored to Tenant within thirty (30) days, and payment of rent is not
current, or (iv) if substantially all of Tenant's assets located at the Property
or of Tenant's interest in this Lease is subjected to attachment, execution or
other judicial seizure which is not discharged within thirty (30) days. If a
court of competent jurisdiction determines that any of the acts described in
this subparagraph (d) is not a default under this Lease, and a trustee is
appointed to take possession (or if Tenant remains a debtor in
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possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the difference between the rent
(or any other consideration) paid in connection with such assignment or sublease
and the rent payable by Tenant hereunder.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which had
been earned at the time of the termination; (ii) the worth at the time of the
award of the amount by which the unpaid Base Rent, Additional Rent and other
charges which would have been earned after termination until the time of the
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; (iii) the worth at the time of the award of the amount by
which the unpaid Base Rent, Additional Rent and other charges which would have
been paid for the balance of the Lease Term after the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; and (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under the Lease or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, any costs or expenses incurred
by Landlord in maintaining or preserving the Property after such default, the
cost of recovering possession of the Property, expenses of reletting, including
necessary renovation or alteration of the Property, Landlord's reasonable
attorneys' fees incurred in connection therewith, and any real estate commission
paid or payable. As used in subparts (i) and (ii) above, the "worth at the time
of the award" is computed by allowing interest on unpaid amounts at the rate of
fifteen percent (15%) per annum, or such lesser amount as may then be the
maximum lawful rate. As used in subpart (iii) above, the "worth at the time of
the award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award, plus 1%. If
Tenant shall have abandoned the Property, Landlord shall have the option of (i)
retaking possession of the Property and recovering from Tenant the amount
specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have
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24
abandoned the Property. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder;
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
Section 10.04. Abandonment Remedy. Tenant covenants to occupy the
Property throughout the term hereof. Tenant expressly recognizes that Landlord
will be injured should Tenant not comply with this provision and that the amount
of Landlord's damages thereby are incapable of measurement and Tenant,
therefore, expressly covenants to pay to Landlord as liquidated damages for the
breach of this covenant an amount, in addition to all other rents and other
monies due Landlord hereunder, equal to twenty-five (25%) percent of the Basic
Rent due for the remainder of the term after such breach.
Section 10.05. Cumulative Remedies. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to
subordinate this Lease to any ground lease, deed of trust or mortgage
encumbering the Property, any advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. However, Tenant's right to quiet possession of the
Property during the Lease Term shall not be disturbed if Tenant pays the rent
and performs all of Tenant's obligations under this Lease and is not otherwise
in default. If any ground lessor, beneficiary or mortgagee elects to have this
Lease prior to the lien of its ground lease, deed of trust or mortgage and gives
written notice thereof to Tenant, this Lease shall be deemed prior to such
ground lease, deed of trust or mortgage whether this Lease is dated prior or
subsequent to the date of said ground lease, deed of trust or mortgage or the
date of recording thereof.
Section 11.02. Attornment. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, upon written notice, Tenant shall attorn to the
transferee of or successor to Landlord's interest in the Property and recognize
such transferee or successor as Landlord under this Lease. Tenant waives the
protection of any statute or rule of law which gives or purports to give Tenant
any right to terminate this Lease or
- 24 -
25
surrender possession of the Property upon the transfer of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. Such subordination and attornment
documents may contain such provisions as are customarily required by any ground
lessor, beneficiary under a deed of trust or mortgagee. If Tenant fails to do so
within ten (10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not been
cancelled or terminated; (iii) that the last date of payment of the Base Rent
and other charges and the time period covered by such payment; (iv) that
Landlord is not in default under this Lease (or, if Landlord is claimed to be in
default, stating why); and (v) such other matters as may be reasonably required
by Landlord or the holder of a mortgage, deed of trust or lien to which the
Property is or becomes subject. Tenant shall deliver such statement to Landlord
within ten (10) days after Landlord's written request. Any such statement by
Tenant may be given by Landlord to any prospective purchaser or encumbrancer of
the Property. Such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been cancelled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance except to the
extent set forth in Section 1.08; and (iv) that Landlord is not in default under
the Lease. In such event, Tenant shall be estopped from denying the truth of
such facts.
Section 11.05. Tenant's Financial Condition. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as are reasonably required by Landlord to verify the net worth of
Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition, Tenant
shall deliver to any lender designated by Landlord any financial
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26
statements required by such lender to facilitate the financing or refinancing
of the Property. Tenant represents and warrants to Landlord that each such
financial statement is a true and accurate statement as of the date of such
statement. All financial statements shall be confidential and shall be used only
for the purposes set forth herein. Landlord shall have ten (10) days to review
and accept or reject Tenant's financials. Landlord's review and approval of
Tenant's financials shall be based upon Tenant's financial condition and the
likelihood that Tenant shall be able to perform its obligations under this Lease
Agreement and such other matters as Landlord deems appropriate. If Landlord does
not notify Tenant of disapproval of Tenant's financials within ten (10) days of
receipt thereof, the financials shall be deemed approved. Landlord's obligation
to enter into this Lease with Tenant is contingent upon Landlord's approval of
Tenant's financials.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. 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 legal fees and costs incurred for
the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, if any action for breach of or to enforce the provisions of this
Lease is commenced, the court in such action shall award to the party in whose
favor a judgment is entered, a reasonable sum as attorneys' fees and costs. Such
attorneys' fees and costs shall be paid by the losing party in such action.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability reasonably incurred by Landlord if
Landlord becomes or is made a party to any claim or action (a) instituted by
Tenant, or by any third party against Tenant, or by or against any person
holding any interest under or using the Property by license of or agreement with
Tenant; (b) for foreclosure of any lien for labor or material furnished to or
for Tenant or such other person; (c) otherwise arising out off 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. Tenant
shall defend Landlord against any such claim or action at Tenant's expense with
counsel reasonably acceptable to Landlord or, at Landlord's election, Tenant
shall reimburse Landlord for any legal fees or costs incurred by Landlord in any
such claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting), or in
connection with any other act which Tenant proposes to do and which requires
Landlord's consent.
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ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person or group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or the leasehold estate under a
ground lease of the Property at the time in question. Each Landlord is obligated
to perform the obligations of Landlord under this Lease only during the time
such Landlord owns such interest or title. Any Landlord who transfers its title
or interest is relieved of all liability with respect to the obligations of
Landlord under this Lease to be performed on or after the date of transfer.
However, each Landlord shall deliver to its transferee all funds previously paid
by Tenant if such funds have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such
non-performance reasonably requires more than thirty (30) days to cure, Landlord
shall not be in default if such cure is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
(c) Tenant shall deposit with Landlord a cash Security Deposit in the
amount set forth in and under the provisions of Section 1.08 above. Landlord may
apply all or part of the Security Deposit to any unpaid rent or other charges
due from Tenant or to cure any other defaults of Tenant. If Landlord uses any
part of the Security Deposit, Tenant shall restore the Security Deposit to its
full amount within ten (10) days after Landlord's written request. Tenant's
failure to do so shall be a material default under this Lease. No interest shall
be paid on the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts and no trust relationship is
created with respect to the Security Deposit.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part
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28
thereof is illegal or unenforceable shall not cancel or invalidate the remainder
of such provision or this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Tenant's expressed or
implied permission.
Section 13.05. Incorporation of Prior Agreements, Modifications. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by certified
mail, return receipt requested, postage prepaid. Notices to Tenant shall be
delivered to the address specified in Section 1.03 above to the attention of the
Executive Director, except that upon Tenant's taking possession the Property,
the Property shall be Tenant's address for notice purposes. In addition, copies
of notices to Tenant shall be delivered to:
Attention: ▇▇▇▇▇▇▇ ▇. Small, M.D.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Notices to Landlord shall be delivered to the address specified in Section 1.02
above. All notices shall be effective upon delivery or attempted delivery in
accordance with this Section 13.06. Either party may change its notice address
upon written notice to the other party.
Section 13.07. Waivers. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any proVision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
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Section 13.08. Recordation. A memorandum of lease in a form reasonably
acceptable to Tenant may be recorded by Landlord within ten (10) days of the
date hereof.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. If Tenant is
a corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person signing this Lease for Tenant represents and warrants that he is a
general partner of the partnership, that has full authority to sign for the
partnership and that this Lease binds the partnership and all general partners
of the partnership. Tenant shall give written notice to Landlord of any general
partner's withdrawal or addition. Within thirty (30) days after this Lease is
signed, Tenant shall deliver to Landlord a copy of Tenant's recorded statement
of partnership or certificate of limited partnership.
Section 13.11. Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. Force Majeure. If a party cannot perform any of its
obligations due to events beyond the party's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond the party's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. Execution of Lease. This Lease may be executed in
counterparts, and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. The delivery of this Lease by
Landlord to Tenant shall not be deemed to be an offer and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. Limitation of Liability. The obligations of Landlord
under this Lease do not constitute personal obligations of
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the individual partners, trustees, directors, officers or shareholders of
Landlord, and Tenant shall not seek recourse against the individual partners,
trustees, directors, officers or shareholders of Landlord or any of their
personal assets for satisfaction of any liability arising out of this Lease.
Tenant's sole remedy shall be recourse against Landlord's interest in the
Property or the Project of which the Property is a part.
Section 13.15. Consents. Whenever the consent of either party is
required hereunder such consent shall not be unreasonably withheld.
Section 13.16. Modification for Lender. If, in connection with
obtaining construction, intent or permanent financing for the Project or the
Property, the lender requests reasonable modifications to this Lease as a
condition to such financing, Tenant will not unreasonably withhold, delay or
defer its consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created or Tenant's rights hereunder. Landlord shall reimburse
Tenant for reasonable attorneys' fees incurred in reviewing and completing such
modifications.
ARTICLE FOURTEEN: BROKERS
The parties recognized that the brokers who negotiated this Lease
are~the brokers whose names are stated in Section 1.12 hereof and agree that
Landlord shall be solely responsible for the payment of brokerage commissions to
said brokers, and that Tenant shall have no responsibility therefore. Tenant
shall indemnify and hold Landlord free and harmless against any claims, damages,
costs, expenses, or liability of any nature arising from claims by any other
person or real estate broker claiming a fee through dealings with Tenant arising
out of this Lease.
ARTICLE FIFTEEN: TOXIC AND HAZARDOUS SUBSTANCES, HAZARDOUS MATERIALS, REGULATED
SUBSTANCES AND HAZARDOUS WASTE
Section 15.01. Definition. As used in this Section, the term "Hazardous
Waste" means:
(a) Those substances, chemicals and mixtures defined as "hazardous
substances," "hazardous materials," "toxic substances," "imminently hazardous
chemical substance or mixture," "pesticide," "heavy metal," "hazardous air
pollutant," "toxic pollutant," "solid waste," "hazardous waste," "medical waste"
or "radioactive waste" in the Toxic Substance Control Act, 15 U.S.C. Sec. 2601
et. seq., as now or hereafter amended ("TSCA"), the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sec. 9601 et. seq.,
as now or hereafter amended ("CERCLA"), the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sec. 6901 et. seq.,
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31
as now or hereafter amended ("RCRA"), the Federal Hazardous Substances Act, 15
U.S.C. Sec. 1261 et. seq., as now or hereafter amended ("FHSA"), the Federal
Water Pollution Control Act, 33 41.S.C. Sec. 1251 et. seq., as now or hereafter
amended ("WPCA"), the Clean Air Act, 42 U.S.C. Sec. 7401 et. seq., as now or
hereafter amended ("CM"), the Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. Sec. 136, et. seq., as now or hereafter amended ("FIFRA"), the
Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sec. 11001
et. seq., as now or hereafter amended ("EPCRKA"), the Occupational Safety and
Health Act of 1970, 29 U.S.C. Sec. 651 et. seq., as now or hereafter amended
("OSHA"), the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et.
seq., as now or hereafter amended ("HMTA"), and the rules, orders and
regulations now in effect or promulgated and effective hereafter pursuant to
each respective law listed above;
(b) Those substances defined as "hazardous waste," "radioactive waste,"
"solid waste," "toxic waste," "pollutant," "hazardous material," "regulated
substance," "asbestos," or "asbestos containing material," in Nev. Rev. Stat.
ch. 459, Nev. Rev. Stat. ch. 444, Nev. Rev. Stat. ch. 445, Nev. Rev. Stat. ch.
590, Nov. Rev. Stat. Secs. 618.750-618.850, inclusive, Nev. Rev. Stat. Sec.
477.045, or in the regulations now existing or hereafter promulgated pursuant
thereto, or in the Uniform Fire Code, as now or hereinafter in effect;
(c) Those substances listed in the United States Department of
Transportation table (49 CFR Sec.172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); and
(d) Such other substances, mixtures, medical waste, materials and waste
which are regulated under applicable local, state or federal law, or which are
classified as hazardous or toxic under federal, state or local laws or
regulations (all laws, rules and regulations referenced in paragraphs (a), (b),
(c) and (d) are collectively referred to as "Environmental Laws").
Section 15.02. Tenant's Covenants. Tenant does not intend to and Tenant
will not, nor will Tenant allow any other person (including partnerships,
corporations and joint ventures), during the term of this Lease, manufacture,
process, store, distribute, use, discharge or dispose any Hazardous Waste in,
under or on the Property, the Common Areas, or any property adjacent thereto
other than medical waste generated pursuant to the permitted uses set forth in
Section 1.10 hereof and Tenant shall comply with all in its practice of oncology
use radioactive isotopes for the Environmental Laws in connection therewith.
Tenant may, however, treatment of Tenant's patients. Tenant agrees to comply
with all governmental rules and regulations applicable to the use and storage of
radioactive isotopes, and to obtain all necessary
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governmental approval, permits or licenses for Tenant's use of radioactive
isotopes prior to begin said use or storage of the radioactive isotopes. Tenant
shall notify Landlord in writing, at least thirty (30) days prior to any use or
storage, or other activity that involves radioactive isotopes and Tenant shall
provide copies of all governmental approval, permits or licenses for the use,
storage or distribution of radioactive isotopes to Landlord prior to Tenant's
use or storage of said radioactive isotopes. Tenant agrees to indemnify and hold
Landlord harmless, pursuant to Section 15.03, from any and all claims associated
with Tenant's use, storage, distribution or other activity involving radioactive
isotopes. Further, in the event Tenant begins use and storage of radioactive
isotopes pursuant hereto, Tenant agrees to maintain its public comprehensive
liability insurance as required by in Paragraph 4.04(A) at Two Million Dollars
($2,000,000.00). Tenant shall be responsible for the costs and expenses of any
Environmental Impact Statement required as a condition for any use or storage of
the radioactive isotopes.
(a) Tenant shall notify Landlord promptly in the event of any spill or
release of Hazardous Waste into, on or onto the Property regardless of the
source of spill or release, whenever Tenant knows or suspects that such a
release occurred.
(b) Tenant will not be involved in operations at or near the Property
which could lead to the imposition on the Tenant or the Landlord of liability or
the creation of a lien on the Property under the Environmental Laws.
(c) Tenant shall, upon twenty-four (24) hour prior notice by Landlord,
permit Landlord or Landlord's agent access to the Property to conduct an
environmental site assessment with respect to the Property.
Section 15.03. Indemnity. Tenant for itself and its successors and
assigns undertakes to protect, indemnify, save and defend Landlord, its agents,
employees, directors, officers, shareholders, affiliates, consultants,
independent contractors, successors and assigns (collectively the "Indemnitees")
harmless from any and all liability, loss, damage and expense, including
reasonable attorneys' fees, claims, suits and judgements that Landlord or any
other Indemnitee, whether as Landlord or otherwise, may suffer as a result of,
or with respect to the following which Tenant has caused or for which Tenant may
be held liable under applicable law:
(a) Any Environmental Law, including the assertion of any lien
thereunder and any suit brought or judgement rendered regardless of whether the
action was commenced by a citizen (as authorized under the Environmental Laws)
or by a government agency;
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(b) Any spill or release of or the presence of any Hazardous result of
a spill or release of or the presence of Waste;
(c) Any other matter affecting the Property within the jurisdiction of
the United States Environmental Protection Agency, Environmental Commission, the
Nevada Department of Conservation and Natural Resources, the State Emergency
Response Commission, the Commission to Oversee Management of Risks, or the
Nevada Department of Commerce, including costs of investigations, remedial
action, or other response costs whether such costs are incurred by the United
States Government, the State of Nevada, or any Indemnitee;
(d) Liability for clean-up costs, fines, damages or penalties incurred
pursuant to the provisions of any applicable Environmental Law; and
(e) Liability for personal injury or property damage arising under any
statutory or common-law tort theory, including, without limitation, damages
assessed for the maintenance of a public or private nuisance, or for the
carrying of an abnormally dangerous activity, and response costs.
Section 15.04. Remedial Acts. In the event of any spill or release of
or the presence of any Hazardous Waste affecting the Property, and/or if Tenant
shall fail to comply with any of the requirements of any Environmental Law,
Landlord may, without notice to Tenant, at its election, but without obligation
so to do, gives such notices and/or cause such work to be performed at the
Property and/or take any and all other actions as Landlord shall deem necessary
or advisable in order to remedy said spill or release of Hazardous Waste or cure
said failure of compliance and any amounts paid as a result thereof, together
with interest at the rate of fifteen percent (15%) per annum, from the date of
payment by Landlord, shall be immediately due and payable by Tenant to Landlord.
Section 15.05. Settlement. Landlord, upon giving Tenant ten (10) days
prior notice, shall have the right in good faith to pay, settle or compromise,
or litigate any claim, demand, loss, liability, cost, charge, suit, order,
judgment or adjudication (a "Hazardous Waste Claim") under the belief that it is
liable therefor and that Landlord then has a claim against Tenant for
indemnification, whether liable or not, without the consent or approval of
Tenant unless Tenant within said ten (10) day period shall protest in writing
and simultaneously with such protest deposit with Landlord or in escrow or with
a court collateral satisfactory to Landlord sufficient to pay and satisfy any
penalty and/or interest which may accrue as a result of such protest and any
judgment or judgments as may result, together with attorney's fees and expenses,
including, but not limited to, environmental consultants.
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If the Tenant is held to be liable for a Hazardous Waste Claim pursuant
to a final adjudication, the funds shall be used to pay the claim. If the Tenant
is not found liable by a final adjudication, the funds shall be promptly
returned to Tenant.
ARTICLE SIXTEEN: RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations", a copy of which is attached hereto and marked Exhibit "C", and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or nonperformance by any other tenant or occupant of
the Project of any of said Rules and Regulations.
Landlord and Tenant have signed this Lease at the place and on the
dates specified adjacent to their signatures below and have initialed all Riders
which are attached to or incorporated by reference in this Lease.
Signed on , 1994
----------------
BUFFALO WESTCLIFF LIMITED
at Las Vegas, Nevada PARTNERSHIP, BUFFALO
CONSTRUCTION COMPANY, GENERAL
PARTNER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title:
------------------------------
"LANDLORD"
Signed on AUGUST 27, 1994
----------------------
▇▇▇▇▇▇▇ ▇. Small, M.D.
Professional Corporation.
at Las Vegas, Nevada.
By: /s/ ▇▇▇▇▇▇▇ ▇. Small, M.D.
---------------------------------
Title: PRESIDENT
------------------------------
"TENANT"
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AMENDMENT TO COMMERCIAL AND OFFICE REAL ESTATE LEASE
This Amendment to commercial and Office Real Estate Lease (the
"Amendment") shall modify and amend the terms and conditions to that certain
commercial and Office Real Estate Lease (the "Lease") dated August 30, 1994,
between Buffalo Westcliff Limited Partnership Buffalo Construction Company, its
General Partner, as Landlord and ▇▇▇▇▇▇▇ ▇. Small, M.D., a Professional
Corporation, as Tenant, covering the Property commonly known as a portion of
Westcliff House Office Complex Building 6 (the "Premises").
RECITALS
A. Landlord has agreed to lease to Tenant, and Tenant has agreed to
lease from Landlord, all of the Premises pursuant to the terms and conditions
contained within the Lease.
B. Since the Lease was executed by and between the parties thereto
adjustments to the terms and conditions of the Lease have become necessary.
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth herein, and for good and valuable
consideration receipt of which is hereby acknowledged, the parties hereto agree
as follows:
AGREEMENT
1. The Tenant Improvement Allowance as contained within the
construction of Improvements By Landlord Lease Rider, Paragraph B, shall be
amended to reflect that Landlord has paid into a construction Control Account
for the benefit of Tenant an additional One Hundred and Thirty Eight Thousand
Dollars ($138,000.00) which was used for Tenant Improvements to the Premises
(hereinafter the "Additional Tenant Improvement Allowance"). As such, the Tenant
Improvement Allowance paid by Landlord into the Construction Control Account for
the purposes of constructing Tenant Improvements was One Hundred Ninety One
Thousand Five Hundred and Thirty Dollars ($191,530.00).
2. The Section entitled Landlord's Financing of Tenant's Improvements
Over and Above Tenant Allowance contained within the Construction of
Improvements by Landlord Lease Rider, Paragraph H, is hereby amended to reflect
that Tenant shall execute a Promissory Note in the amount of One Hundred and
Thirty Eight Thousand Dollars ($138,000.00). Said Promissory Note shall be made
payable to the order of Landlord, and bear interest at the rate of eleven
percent (11%) per annum. The Promissory Note will require monthly installments
of principal and interest and shall be fully amortized over the initial thirty
(30) months of the Lease term. The Promissory Note shall have no prepayment
penalties.
36
3. The Base Rent, as defined in Section 1.06(a) of the Lease, is hereby
be increased during the initial thirty (30) months at the Lease term beginning
on the Commencement Date by an additional amount of Five Thousand Two Hundred
and Eighty Two and 37/100 Dollars ($5,282.37) a month. Said Base Rent increase
reflects the amortization payments of said Promissory Note described in
Paragraph 2 herein. Thereafter, the Base Rent shall be decreased to the amount
of Base Rent provided for in the Lease plus any Base Rent increases that may
have accrued during said Lease Term. As such, for Lease months 1 through 30 the
monthly Base Rent will be as follows:
LEASE MONTHS BASE RENT
------------ ---------
1 through 12 $8,733.37
13 through 24 $8,835.37
25 through 30 $8,943.37
4. The Description of Improvements and Tenant Improvements as contained
within the Construction of Improvements By Landlord Lease Rider, Paragraphs A
and B, is hereby amended to reflect that the Approved Preliminary Plans shall
incorporate a vault door and door frame (the "Vault Door"). Landlord shall
advance to Tenant Twenty-Six Thousand Four Hundred and Twelve Dollars
($26,412.00) which amount represents the costs of the Vault Door. Within thirty
(30) days of Tenant's occupancy of the Premises, Tenant shall reimburse Landlord
in full for the costs of materials and installation of the Vault Door. Upon
Tenant's delivery of payment for the Vault Door to Landlord, the Vault Door
shall be deemed the property of Tenant. At Tenant's election the cost of said
Vault Door shall be depreciated by Tenant over a period of seven (7) years,
whereupon ownership in said Vault Door shall be transferred by Tenant to
Landlord at no cost and expense to Landlord.
5. All provisions contained with the August 30, 1994 Commercial and
Office Real Estate Leases, Guaranty of Lease's, and all attached Riders unless
specifically modified by this Amendment shall remain in full force and effect.
6. This Amendment and the August 30, 1994 Commercial and Office Real
Estate Leases, Guaranty of Leases and attached Riders, constitute the entire
agreements between the parties with respect to the subject matter hereof and
supersedes all prior understandings and writings with respect thereto. This
Amendment may not be modified, changed or supplemented, nor may any obligations
hereunder be waived, except by a written instrument
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37
signed by the party to be charged or by its agent duly authorized in writing or
as otherwise expressly permitted herein.
DATED this 11 day of July, 1995.
----
TENANT:
▇▇▇▇▇▇▇ ▇. SMALL, M.D.,
a Professional Corporation
/s/ ▇▇▇▇▇▇▇ ▇. Small, M.D.
By
------------------------------------
Its: President
----------------------------------
LANDLORD:
BUFFALO WESTCLIFF LIMITED
PARTNERSHIP,
BUFFALO WESTCLIFF CONSTRUCTION
COMPANY,
its General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: President
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38
LANDLORD CONSENT TO ASSIGNMENT
Buffalo Westcliff Limited partnership and Buffalo construction Company,
its General Partner, as Landlord in the above-described Lease Agreement, hereby
consents to the Assignment and transfer of that certain Commercial and office
Real Estate Lease dated August 30, 1994 and all amendments thereto (hereinafter
the "Lease Agreement"), including all terms and conditions thereof, to Assignee.
This Landlord Consent to Assignment is made and based upon Article Nine of said
Lease Agreement, and Landlord specifically reserves all of its rights under
Section 9.03 of said Lease Agreement, including, without limitation, the right
to proceed under the Lease Agreement against the Assignor or the guarantor(s) of
the Assignor, if any. Further, this Consent does not constitute a consent to any
other assignment or sublease of the leasehold interest under the Lease
Agreement.
DATED this 10 day of July, 1997.
----
BUFFALO WESTCLIFF LIMITED
PARTNERSHIP, BUFFALO CONSTRUCTION
COMPANY
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its President
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