NEC TELEPHONE SYSTEM
EQUIPMENT LEASE
This lease, effective as of the date stated below, is between
Exber, Inc., a Nevada corporation, referred to as lessor, and
The Union Plaza Operating Company, a Nevada corporation, referred
to as lessee.
Subject to the terms and conditions stated below, lessor leases to
lessee and lessee leases from lessor all that equipment described
in Schedule A, attached to and made a part of this lease, or as
described in any subsequent schedules that may be made a part of
this lease, referred to as the property.
SECTION ONE
TERM OF LEASE
The term of this lease shall be for a period of sixty (60) months,
beginning on July 1, 2001, and ending on June 3, 2006.
SECTION TWO
RENT
Lessee agrees to pay to lessor, as rent for the property, the
present value of Three Hundred Ninety One Thousand Four Hundred
Forty-Five and 61/100 Dollars ($391,445.61) carried at eight
percent (8%) per annum interest, payable in monthly installments
as follows: the sum of Seven Thousand Nine Hundred Thirty-Seven
and 11/100 Dollars ($7,937.11) payable on August 1st, 2001, and on
the first day of each succeeding month thereafter during the term
of the lease. All such payments shall be made at the principal
place of business of lessor at 000 Xxxx Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx 00000, or such other place as shall be designated by written
notice from lessor to lessee, unless lessor shall assign this lease
or the right to receive the lease payments, in which event lease
payments shall be paid to lessor's assignee, after written notice
of the assignment has been given to lessee by lessor.
SECTION THREE
LOCATION OF PROPERTY
Lessee, without prior written consent of lessor, shall not permit
the property to be removed from Xxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxx.
SECTION FOUR
CARE OF PROPERTY
Lessee shall use the property in a careful and proper manner and
shall comply with all laws, ordinances, and regulations relating to
the possession, use, or maintenance of the property.
SECTION FIVE
IDENTIFICATION OF PROPERTY
If at any time during the term of this lease lessor supplies lessee
with labels, plates, or other markings stating that the property is
owned by lessor, lessee shall affix and keep such labels, plates, or
other markings in a prominent place on the property.
SECTION SIX
ALTERATIONS
Lessee agrees that it will make no alterations to or in the property
without obtaining prior written permission from lessor or, where
appropriate lessee is given the right to make alterations, additions,
or improvements to the property, so long as the value of the property
is not reduced. All such additions to and improvements of the property
of any kind shall immediately become lessor's property and subject to
the terms of this lease.
SECTION SEVEN
MAINTENANCE AND REPAIR
Lessee at lessee's own cost and expense shall keep the property in
good repair, condition, and working order. Lessee shall not remove,
alter, disfigure, or cover up any numbering, lettering or insignia
displayed on the property, and shall see that the property is not
subjected to careless or needlessly rough usage.
SECTION EIGHT
LESSOR'S RIGHT OF INSPECTION
Lessor, at all times during business hours, shall have the right to
enter on the premises where the property may be located for the
purpose of inspecting it or observing its use. Lessee shall give
lessor immediate notice of any attachment or other judicial process
affecting the property and, whenever requested by lessor, shall
advise lessor of the exact location of the property.
SECTION NINE
RETURN OF PROPERTY
On expiration or earlier termination of this lease, lessee shall
return the property to lessor in good repair, ordinary wear and
tear resulting from proper use alone excepted, in the following
manner or as may be specified by lessor:
(a) By delivering the property at lessee's expense to such
place as lessor shall specify within the county in which the
property was delivered to lessee or to which the property was
removed with the written consent of lessor; or
(b) By loading the property at lessee's cost on board such
carrier as lessee shall specify and shipping the property,
freight collect, to the destination designated by lessor.
Such conditions for return of the property are subject to lessee's
option to purchase it as set forth below.
SECTION TEN
LESSEE'S OPTION TO PURCHASE
Lessor grants to lessee the option to purchase the property, provided
that lessee gives notice to lessor, in writing, of lessee's intention
to exercise the option at least ninety (90) days prior to expiration
of this lease, and provided further that lessee completely performs
all terms and provisions of this lease on lessee's part to be
performed, including full payment of the lease payments. Should
lessee exercise the option to purchase, all of the lease payments
paid shall be applied to the purchase price of the property and, on
receipt of the balance of the purchase price by lessor, together with
a sum equal to any new or applicable unpaid sales and use taxes,
lessor will transfer title to the property to lessee, and will deliver,
on lessee's written request, written evidence of the transfer of such
title.
The option purchase price is the sum of One Dollar ($1.00).
SECTION ELEVEN
DELIVERY AND ACCEPTANCE OF PROPERTY
Lessee shall inspect the property within twenty-four (24) hours after
it is delivered to lessee. Unless lessee, within ten (10) days, gives
written notice to lessor specifying any defect in or other proper
objection to the property, lessee agrees it shall be conclusively
presumed, as between lessor and lessee that lessee has fully inspected
and acknowledged the property to be in good condition and repair, and
that lessee is satisfied with and has accepted the property in such
good condition and repair.
SECTION TWELVE
RISK OF LOSS OR DAMAGE
Lessee assumes all risk of loss of and damage to the property from
any cause. No loss or damage to the property will impair any
obligation of lessee under this lease, which will continue in full
force and effect. In the event of loss of or damage to the property,
lessee, at the option of lessor, shall:
(a) Place the property in good repair; or
(b) Replace the property with like property in good repair,
which property shall become subject to this lease.
SECTION THIRTEEN
OBLIGATION TO INSURE
Lessee, at lessee's own expense, shall keep the property insured for
such risks and in such amounts as lessor shall require with carriers
acceptable to lessor, shall maintain a loss payable endorsement in
favor of lessor affording to lessor such additional protection as
lessor shall require, and shall maintain liability insurance
satisfactory to lessor. All such insurance shall name lessor and
lessee as insured. The policies shall provide that they may not be
canceled or altered without at least thirty (30) days' prior notice
to lessor, and the loss payable endorsement shall provide that all
amounts payable by reason of loss of or damage to the property shall
be payable only to lessor. Lessee shall deliver to lessor evidence
satisfactory to lessor of all such insurance. If loss or damage
occurs under circumstances in which lessee is not in violation of
the terms of any such policies, and if lessee has fulfilled lessee's
obligations under Section Twelve of this lease, and is not otherwise
in defaults under this lease, lessor will pay lessee so much of any
insurance proceeds received by lessor as the result of such loss as
will fully reimburse lessee for the net expense incurred by lessee in
fulfilling lessee's obligations under Section Twelve.
SECTION FOURTEEN
TAXES AND FEES
Lessee shall pay all license fees, assessments, and sales, use,
property, and other taxes imposed on the property by reason of
ownership, leasing, renting, sale, possession, or use, whether they
be assessed to lessor or lessee, together with any penalties of
interest, excepting federal, state, or local governmental taxes, or
payments in lieu of those taxes , imposed on or measured by income of
lessor, If any tax, by law, is to be assessed or billed to lessor,
lessee, at lessee's expense, will do anything required to be done by
lessor in connections with the levy, assessment, billing, or payment
of such tax, and is authorized by lessor to act on lessor's behalf in
such respects; lessee will cause all xxxxxxxx of such taxes to lessor
to be made to lessor in care of lessee and will from time to time, on
request of lessor, submit written evidence of the payment of all
governmental obligations mentioned in this section. Lessee, on any
property tax returns required to be filed by lessee, will include the
property covered by this lease, or any substitutions or additions, as
property owned by lessee for purposes of tax assessments. It is
expressly agreed that lessee, without obtaining prior written
permission of lessor, will not assert on lessee's behalf, or on behalf
of lessor, any immunity from taxation based on the tax-exempt status,
if any, of lessor.
SECURITY FIFTEEN
INDEMNITY OF LESSOR
Lessee shall indemnify and hold lessor harmless from and against all
claims, actions, proceedings, costs, damages, and liabilities,
including attorney fees, arising out of, connected with, or resulting
from use of the property, including, but not limited to, the
manufacture, selection, delivery, possession, use, operation, or
return of the property.
SECTION SIXTEEN
EVENTS CONSTITUTING DEFAULT
The following events shall constitute default under this Agreement:
(a) The nonpayment by lessee for a period of fifteen (15) days
of any sum required to be paid by lessee;
(b) The nonperformance by lessee of any other term, covenant,
or condition of this lease that is not cured within fifteen (15)
days after notice of nonperformance from lessor;
(c) Any affirmative act of insolvency by lessee, or the filing
by lessee of any petition under any bankruptcy, reorganization,
insolvency, or moratorium law, or any law for the relief of,
or relating to, debtors;
(d) The filing of any involuntary petition under any bankruptcy
statute against lessee, or the appointment of any receiver or
trustee to take possession of the property of lessee, unless such
petitions or appointment is set aside or withdrawn or ceases to
be in effect within fifteen (15) days of the date of the filing
or appointment; or
(e) The subjection of any of lessee's property to any levy,
seizure, assignment, application, or sale for or by any creditor
or governmental agency.
SECTION SEVENTEEN
LESSOR'S RIGHT TO PREVENT DEFAULT
Should lessee fail to make any payment or do any act as provided in
this Agreement, the lessor shall have the right, but not the
obligation, without notice to or demand on lessee, and without
releasing lessee from any obligation under this Agreement, to make
or do the same, and to pay, purchase, contest, or compromise any
encumbrance, charge, or lien that, in the sole judgment of lessor,
appears to affect the property, and in exercising any such rights,
incur any liability and expend whatever amounts in its discretion
it may deem necessary. All expenses so incurred by lessor shall be,
without demand, immediately due and payable by lessee and shall bear
interest at the rate of twelve percent (12%) per annum thereafter
until paid.
SECTION EIGHTEEN
LESSOR'S RIGHTS ON DEFAULT
On the occurrence of any of the events stated in Section Eighteen
as consulting defaults, lessor, without notice to or demand on lessee,
may:
(a) Take possession of the property and lease the property or
any portion of it, for such amount, and to such persons, as
lessor shall elect, and apply the proceeds of any such renting,
after deducting all costs and expenses incurred in connection
with the recovery, repair, storage, and renting of the property,
in payment of the lease payments and other obligations due from
lessee to lessor, lessee remaining responsible for any
deficiency; or
(b) Take possession of the property and sell it or any portion
of it at public or private sale, without demand or notice of
intention to sell, and apply the proceeds of any such sale,
after deducting all costs and expenses incurred in connection
with the recovery, repair, storage, and sale of the property
and any rentals and other obligations of lessee than due,
against the value of the property sold. If the proceeds, after
the permitted deduction, are less than the value so determined,
lessee shall immediately pay lessor the difference.
SECTION NINETEEN
GOVERNING LAW
This lease shall be governed by and construed under the laws of the
State of Nevada.
SECTION TWENTY
STATUS OF THE PROPERTY
The property is, and shall at all times remain, personal property,
notwithstanding that any part of it may now be, or may become, in any
manner attached to, or embedded in, or permanently resting on, real
property or any building on real property, or attached in any manner
to what is permanent as by means of cement, plaster, nails, bolts,
screws, or otherwise.
SECTION TWENTY-ONE
OWNERSHIP OF THE PROPERTY
The property is, and shall at all times remain, the sole property of
lessor, and lessee shall have no right, title, or interest in the
property except as expressly set forth in this lease.
SECTION TWENTY-TWO
ASSIGNMENT
Without the prior written consent of lessor, lessee shall not:
(a) Assign, transfer, or pledge this lease, or any part of,
or any interest in the property;
(b) Sublet or lend any part of the property; or
(c) Permit any part of the property to be used by anyone
other than lessee or lessee's employees.
Lessor may assign its interest, or a part of its interest, in this
lease.
SECTION TWENTY-THREE
LAMITATION OF EFFECTS OF WAIVERS
No delay or omission to exercise any right, power, or remedy accruing
to lessor on any breach or default of lessee under this lease shall
impair any such right, power, or remedy of lessor, nor shall it be
construed to be a waiver of any such breach of default, or any
acquiescence therein, or of or in any similar breach or default
occurring subsequently; nor shall any waiver of any single breach of
default be deemed a waiver of any other breach or default occurring
previously or subsequently. Any waiver, permit, consent, or approval
of any kind or character on the part of lessor of any breach or default
under this lease, or any waiver on the part of lessor of any provision
or condition of this lease, must be in writing and shall be effective
only to the extent in such writing specifically set forth. All
remedies, either under this lease or by law, or otherwise afforded to
lessor, shall be cumulative and not alternative.
SECTION TWENTY-FOUR
ATTORNEY FEES
In the event that any action is filed in relation to this lease,
the unsuccessful party in the action shall pay to the successful
party, in addition to all other sums that either party may be called
upon to pay a reasonable sum for the successful party's attorney fees.
SECTION TWENTY-FIVE
NOTICES
Any communications between lessor and lessee, payments, and notices
provided in this Agreement to be given or made, shall be given or made
by mailing them to lessor, Xxxx Xxxxxxxx, for Exber at 000 Xxxx Xxxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, and to lessee Xxx Xxxxx for Plaza at
Xxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, or to such other addresses as
either party may indicate in writing.
SECTION SIX
LIMITATION OF WARRANTIES
Lessee acknowledges that the property is of a size, design, capacity,
and manufacture selected by lessee. Lessor is not a manufacturer of
the property or a dealer in similar property and has not made and does
not make any representation, warranty, or covenant, express or implied,
with respect to the condition, quality, durability, suitability, or
merchantability of the property. Lessor, however, will take any
steps reasonably within its power to make available to lessee any
manufacturer's or similar warranty applicable to the property. Lessor
shall not be liable to lessee for any liability, loss, or damage
caused or alleged to be caused directly or indirectly by the property,
by any inadequacy of, or defect in, the property, or by any incident
in connection with the property.
SECTION THIRTY-SEVEN
SUCCESSORS AND ASSIGNS
This Agreement shall be binding on all successors and assigns of
either party.
IN WITNESS whereof, each party has caused this Agreement to be
executed on the date indicated below.
DATED this 25th day of July 2001.
Lessee: Union Plaza Operating Company
A Nevada corporation
By: /s/ XXXX XXXXX
Its: General Manager
Lessor: Exber, Inc.
A Nevada corporation
By: /s/ XXXX X. XXXXXXX
Its: President
EXHIBIT A
NEC TELEPHONE SYSTEM
EQUIPMENT
PRICING SUMMARY
New NEC NEAX2400 IPX $327,247.00
NEC NEAXMail C-70 $27,000.00
1,037 Teledex Opal 1000 Guest Room Sets 37,198.61
Total Installed Price $391,445.61 (Includes tax)
