Exhibit 10.4
LEASE FOR
000 XXXXXXXXXX XXXXXX XXXXX
BETWEEN
TOMORROW 33 CONVENTION, LP
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LANDLORD
AND
TELCO BILLING, INC
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TENANT
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Lease Form 6/17/03
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TABLE OF CONTENTS
Section Page
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1. THE PARTIES . . . . . . . . . . . . . . . . . . . 4
2. DEFINITIONS AND BASIC TERMS . . . . . . . . . . . 4
3. LEASE OF PREMISES . . . . . . . . . . . . . . . . 5
4. TERM. . . . . . . . . . . . . . . . . . . . . . . 5
5. PAYMENT OF RENT . . . . . . . . . . . . . . . . . 6
6. ADDITIONAL RENT . . . . . . . . . . . . . . . . . 7
7. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . 9
8. USE . . . . . . . . . . . . . . . . . . . . . . . 10
9. TENANT IMPROVEMENTS . . . . . . . . . . . . . . . 10
10. ALTERATIONS. . . . . . . . . . . . . . . . . . . 10
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11. LANDLORD'S SERVICES. . . . . . . . . . . . . . . 11
12. REPAIRS. . . . . . . . . . . . . . . . . . . . . 12
13. TRANSFERS. . . . . . . . . . . . . . . . . . . . 12
14. RISK ALLOCATION AND INSURANCE. . . . . . . . . . 13
15. INDEMNITY. . . . . . . . . . . . . . . . . . . . 16
16. CASUALTY . . . . . . . . . . . . . . . . . . . . 16
17. CONDEMNATION . . . . . . . . . . . . . . . . . . 17
18. RULES AND REGULATIONS. . . . . . . . . . . . . . 17
19. SUBORDINATION & MORTGAGEES . . . . . . . . . . . 17
20. TAXES. . . . . . . . . . . . . . . . . . . . . . 18
21. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . 19
22. REMEDIES . . . . . . . . . . . . . . . . . . . . 20
23. LANDLORD'S LIEN. . . . . . . . . . . . . . . . . 22
24. NON-WAIVER . . . . . . . . . . . . . . . . . . . 22
25. SURRENDER OF PREMISES. . . . . . . . . . . . . . 22
26. HOLDING OVER . . . . . . . . . . . . . . . . . . 23
27. RIGHTS RESERVED BY LANDLORD. . . . . . . . . . . 23
28. LANDLORD'S DEFAULT . . . . . . . . . . . . . . . 24
29. RELOCATION . . . . . . . . . . . . . . . . . . . 24
30. PARKING. . . . . . . . . . . . . . . . . . . . . 25
31. MISCELLANEOUS. . . . . . . . . . . . . . . . . . 25
32. REPRESENTATIONS, WARRANTIES AND
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COVENANTS OF TENANT . . . . . . . . . . . . 27
33. ENVIRONMENTAL PROVISIONS . . . . . . . . . . . . 27
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into between Landlord and Tenant, each
as defined below in Section 1.
1. THE PARTIES
Landlord's Name and Tomorrow 33 Convention L.P.
type of entity: a Delaware Limited Partnership
Landlord's Addresses 000 Xxxxxxxx Xxxxxx, Xxxxx 000
for Notices: Xxxxx Xx, XX 00000
Landlord's Payment 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Address: Xxx Xxxxx, XX 00000
Tenant's Name; and Telco Billing, Inc
Type of entity; and a Nevada Corporation
State of organization
Tenant's Address 0000 X Xxxxxxx Xxxxxx
for Notices: Xxxxx 000
Xxxx XX 00000
Tenant's Social Security or
Federal ID Number 000000000
2. DEFINITIONS AND BASIC TERMS
The following definitions and basic terms shall have the indicated meanings when
used in this Lease:
a. Building: 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000
b. Premises: Suites 1001/1002 in the Building. The Premises are outlined on the
plan attached to the Lease as Exhibit "B".
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c. Property: The Building, the parcel of land upon which the Building is situated
and any other improvements located thereon. The legal description
of the Property is attached to the Lease as Exhibit "A".
d. Tenant's Rentable
Square Feet: 3,591
e. Total Rentable Square
Feet in the Building: 304,849
f. Tenant's Proportionate
Share: 1.18% which is the percentage obtained by dividing (i) Tenant's
Rentable Square Feet by (ii) the total Rentable Square Feet in the
Building. Tenant's Percentage shall be equitably adjusted in the
event of a change in the number of rentable square feet of space in
the Building.
g. Scheduled Commencement Date: September 1, 2003
h. Commencement Date: The Commencement Date is defined in Section 4.
i. Term: Thirty-seven months, commencing on the Commencement Date
and ending at 5:00 p.m., September 1, 2006 subject to adjustment
and earlier termination as provided in the Lease.
j. Base Rent
Lease Years Monthly Base Rent Annual Base Rent
9/01/03-9/30/03 $0 N/A
10/01/03-9/30/04 $16,643.35 $199,720.20
10/01/04-9/30/05 $16,842.65 $202,111.81
10/01/05-9/30/06 $17,047.93 $204,575.15
k. Additional Rent: Additional Rent is defined in Section 6.
l. Rent: Base Rent, Additional Rent and all other sums that Tenant may owe
to Landlord under this Lease.
m. Security Deposit: $ 17,093.16
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n. Base Year: Base Year: 2004
o. Permitted Use: General office use and no other
p. Property Management
Company/Address: Xxxxxxx Xxxxxx Properties, Ltd.
000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
q. Guarantor(s)
(name and address): XX.XXX
r. Parking Spaces: Landlord shall grant to Tenant the use of ten (10) covered parking
spaces within the Buildings parking garage, at a rate of twenty
($20.00) dollars per space per month for the initial lease term and any
Option to renew.
s. Landlord's Mortgagee: ING Investment Management LLC
0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000
and Address: Xxxxxxx, Xxxxxxx 0000-0000
or such other future mortgagee and address as Landlord shall advise Tenant.
3. PREMISES
3.1 Premises. Landlord, in consideration of the Rent to be paid and the
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covenants and agreements to be performed by Tenant, does hereby lease unto
Tenant the Premises, together with the non-exclusive right and easement to
use the parking, if any, and any other common facilities in or on the
Building and the Property, to the extent the same may exist, which may from
time to time be furnished by Landlord, in common with Landlord and the
tenants and occupants of the Building, and their respective agents,
employees, licensees, customers and invitees; subject however to reasonable
restrictions by Landlord as to the use of the foregoing.
3.2 Common Areas. Landlord further grants to Tenant the nonexclusive
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right to use in common with all of the tenants of the Property and their
respective clients, employees, agents, customers, invitees and licensees
and other persons those areas or parts of the Building and the Property
which are designed for use in common by all of the tenants of the Property,
including but not limited to entrances and exits, lobbies, hallways,
corridors and stairwells, elevators, restrooms, sidewalks, driveways,
parking areas, landscaped areas, and such other areas or parts of the
Property as may be designated by the Landlord as part of the Common Areas
(the "Common Areas") subject to such rules and regulations as Landlord may
adopt and modify from time to time relative to the use of the Common Areas.
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a. Rules and Regulations for Common Areas. The Common Areas shall at all
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times be subject to the exclusive management and control of Landlord, and
Landlord shall have the right, from time to time, to establish, modify and
enforce reasonable rules and regulations with respect to all such Common
Areas, and the use of such Common Areas by Tenant shall be subject to such
rules and regulations.
b. Changes in Common Areas. Landlord may do and perform such acts in and
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to said Common Areas as, in Landlord's good business judgment, Landlord
shall determine to be advisable. Landlord hereby reserves the right to make
alterations, additions, deletions or changes including, but not limited to
changes in size and configuration of said Common Areas provided that (i)
Tenant has access to the Premises at all times and (ii) the exercise of
such rights do not unreasonably interfere with Tenant's business operations
in the Premises.
4. TERM
The Commencement Date shall be the later of:
a. the Scheduled Commencement Date or;
b. the date of substantial completion of the Premises by Landlord, as
defined below; provided the Commencement Date shall not be extended for
delays which are due to (x) special changes or additions required by
Tenant; (y) delays of Tenant in submitting plans or specifications,
supplying information, giving authorization, or otherwise; or (z) any
default or other delay of Tenant (collectively, "Tenant Delays"). The
Tenant shall be bound by a written certification by Landlord as to the date
that the Premises are ready for occupancy by the Tenant and, in the event
that there are Tenant Delays, the Landlord's architect shall determine in
its reasonable discretion the date that the Premises would have been ready
for occupancy but for such Tenant Delays.
If the Commencement Date is not the first day of a calendar month, then the
Term shall be extended by the time between the Commencement Date and the
first day of the next month. If this Lease is executed before the Premises
become vacant or otherwise available and ready for occupancy by Tenant, or
if any present occupant of the Premises holds over and Landlord cannot
acquire possession of the Premises before the Commencement Date, then (a)
Landlord shall not be in default hereunder or be liable for damages
therefore and (b) Tenant shall accept possession of the Premises when
Landlord tenders possession thereof to Tenant. Notwithstanding the
foregoing, by occupying the Premises, Tenant shall be deemed to have
accepted the Premises in its condition as of the date of such occupancy,
and the Commencement Date shall be the date of such occupancy. Tenant shall
execute and deliver to Landlord, within ten days after Landlord has
requested same, a letter confirming (i) the Commencement Date, (ii) that
Tenant has accepted the Premises, and (iii) that Landlord has performed all
of its obligations with respect to the Premises (except for punch-list
items specified in such letter). The term "substantial completion" (or
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"substantially complete") as used in the Lease means the date when the
Premises are ready for occupancy by Tenant, subject to completion of minor
details of construction or minor mechanical adjustments that do not
materially interfere with Tenant's occupancy.
5. PAYMENT OF RENT
a. Payment. Tenant shall timely pay to Landlord, without demand,
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deduction, abatement or offset (except as otherwise expressly set forth
herein), the Rent at Landlord's Payment Address. Rent shall be payable
monthly in advance in United States dollars.
The first monthly installment of Rent shall be due and payable
contemporaneously with the execution of this Lease; thereafter, monthly
installments of Rent shall be due on the first day of the second full
calendar month of the Term and continuing thereafter on the first day of
each succeeding calendar month during the Term. Rent for any fractional
month shall be prorated based on 1/365 of the current annual Rent for each
day of the partial month this Lease is in effect, and shall be due on the
Commencement Date.
b. Late Payments. Tenant hereby acknowledges that late payment by Tenant
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to Landlord of Rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will
be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may
be imposed on Landlord by the terms of any mortgage or Deed of Trust,
covering the Premises. Accordingly, if any installment of Rent or any other
sum due from Tenant shall not be received by Landlord or Landlord's
designee within five (5) days after such amount shall be due, Tenant shall
pay to Landlord a late charge equal to the lesser of 10% of such overdue
amount or the maximum allowed by law. The parties hereby agree that such
late charge represents a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Tenant. Acceptance of such late
charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
c. Tenant shall also pay to Landlord monthly as Additional Rent, without
demand, any rent tax, sales tax or other tax (other than Landlord's income
tax) which may be levied by any authorized governmental authority against
the Base Rent or any Additional Rent payable to Landlord under this Lease.
d. Landlord may from time to time designate a lock box collection agent
for the collection of Rent or other charges due Landlord. In such event,
the date of payment shall be the date of receipt by the lock box collection
agent of such payment (or the date of collection of any such sum if payment
is made in the form of a negotiable instrument thereafter dishonored upon
presentment); however, for the purposes of this Lease, no such payment or
collection shall be deemed "accepted" by Landlord if an Event of Default
shall have occurred, and if Landlord thereafter remits a check payable to
Tenant in the amount received by the lock box collection
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agent within twenty one (21) days after the amount sent by Tenant is
received by the lock box collection agent or, in the case of a dishonored
instrument, within twenty one (21) days after collection. Neither the
negotiation of Tenant's negotiable instrument by the lock box collection
agent, nor the possession of the funds by Landlord during the twenty one
(21) day period, nor the return of any such sum to Tenant shall be deemed
to be inconsistent with the rejection of Tenant's tender of such payment
(or collection), nor shall any of such events be deemed to be a waiver of
any breach by Tenant of any term, covenant or condition of this Lease nor a
waiver of any of Landlord's rights or remedies.
6. ADDITIONAL RENT
a. Payment of Additional Rent. Tenant shall pay as Additional Rent any
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increases in the amount equal to Tenant's Proportionate Share multiplied by
the difference of (a) the total annual Operating Expenses, as defined
below, for the calendar year in question and (b) the Operating Expenses for
the Base Year. Landlord may collect such amount in a lump sum, due within
30 days after Landlord furnishes to Tenant an annual Operating Expense
Statement as defined below. Alternatively, Landlord may make a good faith
estimate of the Additional Rent to be due by Tenant for any calendar year
or part thereof during the Term, and, unless Landlord delivers to Tenant a
revision of the estimated Additional Rent, Tenant shall pay to Landlord, on
the Commencement Date and on the first day of each calendar month
thereafter, an amount equal to the estimated Additional Rent for such
calendar year or part thereof divided by the number of months in such
calendar year during the Term. From time to time during any calendar year,
Landlord may estimate and re-estimate the Additional Rent to be due by
Tenant for that calendar year and deliver a copy of the estimate or
re-estimate to Tenant. Thereafter, the monthly installments of Additional
Rent payable by Tenant shall be appropriately adjusted in accordance with
the estimations so that, by the end of the calendar year in question,
Tenant shall have paid all of the Additional Rent as estimated by Landlord.
Any amounts paid based on such an estimate shall be subject to adjustment
pursuant to Section 6c when actual "Operating Expenses" are available for
each calendar year.
b. Operating Expenses. "Operating Expenses" shall mean all expenses and
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disbursements of every kind (subject to the limitations set forth below)
which Landlord incurs, pays or becomes obligated to pay in connection with
the ownership, operation, and maintenance of the Property, including but
not limited to the following:
(i) all taxes and assessments and governmental charges whether
federal, state, county or municipal, and whether they be by taxing or
management districts or authorities presently taxing or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to the Property (or its operation), and the grounds,
parking areas, driveways, and alleys around the Property, excluding,
however, federal and state taxes on income (collectively, "Property
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Taxes"); if the present method of taxation changes so that in lieu of
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the whole or any part of the Property Taxes, there is levied on
Landlord a capital tax directly on the rents
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received there from or a franchise tax, assessment, or charge based,
in whole or in part, upon such rents for the Property, then all such
taxes, assessments, or charges, or the part thereof so based, shall be
included within the term "Property Taxes";
(ii) wages and salaries of all employees engaged in the operation,
repair, replacement, maintenance, and security of the Property,
including taxes, insurance and benefits relating thereto;
(iii) management fees
(iv) all supplies and materials used in the operation, maintenance,
repair, replacement, and security of the Property;
(v) annual cost of all capital improvements made to the Property
which can reasonably be expected to reduce the normal operating costs
of the Property, as well as all capital improvements made in order to
comply with any law hereafter promulgated by any governmental
authority, as amortized over the useful economic life of such
improvements as determined by Landlord in its reasonable discretion
(without regard to the period over which such improvements may be
depreciated or amortized for federal income tax purposes);
(vi) cost of all utilities, other than the cost of utilities actually
reimbursed to Landlord by the Building's tenants;
(vii) cost of any insurance or insurance related expense applicable to
the Property and the personal property used in connection therewith;
(viii) cost of repairs, replacements, and general maintenance of the
Property;
(ix) cost of service or maintenance contracts with independent
contractors for the operation, maintenance, repair, replacement, or
security of the Property (including, without limitation, alarm
service, window cleaning, and elevator maintenance); and
(x) the amount of basic rent payable under and pursuant to any ground
lease pertaining to the land on which the Building is located.
There are specifically excluded from the definition of the term "Operating
Expenses" the following costs:
(1) capital improvements made to the Property, other than capital
improvements described in subparagraph (iv) above and except for items
which, though capital for accounting purposes, are properly considered
maintenance and repair items, such as painting of common areas,
replacement of carpet in elevator lobbies, and the like;
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(2) repair, replacements and general maintenance paid by proceeds of
insurance or by Tenant or other third parties, and alterations
attributable solely to tenants of the Property other than Tenant;
(3) interest, amortization or other payments on loans by Landlord;
(4) depreciation of the Building;
(5) leasing commissions;
(6) legal expenses, other than those incurred for the general benefit
of the Property's tenants (e.g., tax disputes);
(7) renovating or otherwise improving tenant space for other tenants
of the Property or vacant space in the Building (except common areas);
(8) correcting structural defects in the construction of the
Building; and
(9) federal income taxes imposed on or measured by the income of
Landlord from the operation of the Property.
c. Operating Expense Statement. Landlord shall provide an annual
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Operating Expense statement including a statement of Landlord's actual
Operating Expenses for the previous year adjusted as provided in subsection
6d. If the annual Operating Expense Statement reveals that Tenant paid more
for Additional Rent than the actual amount due in the year for which such
statement was prepared, then Landlord shall promptly credit (or reimburse,
if the Lease has terminated and Tenant is not in default) Tenant for such
excess. Likewise, if Tenant paid less than the actual amount due, then
Tenant shall promptly pay Landlord such deficiency. This provision applies
only to Tenant's Additional Rent and shall never require a refund or credit
of Base Rent.
d. Building Occupancy. With respect to any calendar year or partial
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calendar year in which the Building is not occupied to the extent of at
least ninety-five percent (95%) of the Total Rentable Square Feet in the
Building thereof, then the variable cost components of the Operating
Expenses (not including real estate taxes) which are based upon occupancy
shall be equitably adjusted so that the total amount of Operating Expenses
for such period shall be increased to the amount which would have been
incurred had the Building been occupied to the extent of ninety-five
percent (95%) of the Total Rentable Square Feet in the Building thereof.
7. SECURITY DEPOSIT
Contemporaneously with the execution of this Lease, Tenant shall pay to
Landlord, in immediately available funds, the Security Deposit, which shall
be held by Landlord without liability for interest and as security for the
performance by Tenant of its obligations under this Lease. The Security
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Deposit is not an advance payment of Rent or a measure or limit of
Landlord's damages upon an Event of Default (defined below). Landlord may,
from time to time and without prejudice to any other remedy, use all or a
part of the Security Deposit to perform any obligation which Tenant was
obligated, but failed, to perform hereunder. Following any such application
of the Security Deposit, Tenant shall pay to Landlord on demand the amount
so applied in order to restore the Security Deposit to its original amount.
Within a reasonable time after the Term ends, provided Tenant has performed
all of its obligations hereunder, Landlord shall return to Tenant the
balance of the Security Deposit not applied to satisfy Tenant's
obligations. If Landlord transfers its interest in the Premises, then
Landlord may assign the Security Deposit to the transferee and Landlord
thereafter shall have no further liability for return of the Security
Deposit.
8. USE
Tenant shall continuously occupy and use the Premises only for the
Permitted Use and shall comply with all laws, orders, rules, and
regulations relating to the use, condition, and occupancy of the Premises.
The Premises shall not be used for any use, which is disreputable or
creates extraordinary fire hazards or results in an increased rate of
insurance on the Building and its contents or the storage of any hazardous
materials or substances. If, because of Tenant's acts, the rate of
insurance on the Building or its contents increases, then such acts shall
be an Event of Default, Tenant shall pay to Landlord the amount of such
increase on demand and acceptance of such payment shall not constitute a
waiver of any of Landlord's rights including, without limitation, the Event
of Default caused by such act. Tenant shall conduct its business and
control its agents, employees, and invitees in such a manner as not to
create any nuisance or interfere with other tenants or Landlord in its
management of the Building.
9. TENANT IMPROVEMENTS
Improvements. Any tenant finish improvements to be provided by Landlord
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for the Premises are described on Exhibit "E" attached hereto.
10. ALTERATIONS
All improvements to the Premises made after the Commencement Date shall be
installed at the expense of Tenant only in accordance with plans and
specifications, which have been previously submitted to and approved in
writing by Landlord. After the initial Tenant improvements are made, no
alterations or physical additions in or to the Premises may be made without
Landlord's prior written consent, which shall not be unreasonably withheld
or delayed; however, Landlord may withhold its consent to any alteration or
addition that would affect the Building's structure, or the Building's
HVAC, plumbing, electrical, or mechanical systems. Tenant shall not paint
or install lighting or decorations, signs, window or door lettering, or
advertising media of any type on or about the Premises without Landlord's
prior consent. All alterations, additions, or improvements (whether
temporary or permanent in character, and including all air-conditioning
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equipment and all other equipment that is in any manner connected to the
Building's plumbing system) made in or upon the Premises, either by
Landlord or Tenant, shall be Landlord's property at the end of the Term and
shall remain on the Premises (unless Landlord requires removal of same)
without compensation to Tenant. Approval by Landlord of Tenant's plans and
specifications prepared in connection with any improvements in the Premises
shall not constitute a representation or warranty as to the adequacy or
sufficiency of such plans and specifications, or the improvements to which
they relate, for any use, purpose, or condition, but such approval shall
merely be the consent of Landlord as required hereunder. Tenant shall be
responsible for the cost of all action required to comply with the
requirements of the Americans with Disabilities Act of 1990 (the "ADA"),
and all rules, regulations, and guidelines promulgated there under, as the
same may be amended from time to time, necessitated by any installations,
additions, or alterations made in or to the Premises at the request of or
by Tenant or by Tenant's use of the Premises (other than retrofit whose
cost has been particularly identified as being payable by Landlord in an
instrument signed by Landlord and Tenant). If Landlord's prior consent is
required, such consent shall not be unreasonably withheld or delayed;
however, Landlord may withhold its consent to any such painting or
installation, which would affect the appearance of the exterior of the
Building or of any common areas of the Building. Landlord shall be
responsible for the cost of compliance with the ADA for all portions of the
Property not part of the Premises or other leases with tenants.
11. LANDLORD'S SERVICES
a. Services. Provided no Event of Default exists, and subject to
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interruptions beyond Landlord's control, Landlord shall use all reasonable
efforts to furnish to Tenant the services outlined on Exhibit "D" attached
hereto. Landlord shall maintain the common areas of the Building in
reasonably good order and condition, except for damage occasioned by
Tenant, or its employees, agents, contractors or invitees.
b. Excess Utility Use. Landlord shall use reasonable efforts to furnish
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electrical current for a reasonable number of computers, electronic data
processing equipment, special lighting, and other equipment that requires
more than 110 volts, or other equipment whose electrical energy consumption
exceeds normal office usage through the then-existing feeders and risers
serving the Building and the Premises, and Tenant shall pay to Landlord the
cost of such service within ten (10) days after Landlord has delivered to
Tenant an invoice therefore. The amount of such additional consumption and
potential consumption shall be paid by Tenant and shall be determined by a
separate meter in the Premises which shall be installed by Landlord, at
Tenant's expense. Tenant shall not install any electrical equipment
requiring special wiring or requiring voltage in excess of 110 volts or
otherwise exceeding Building capacity unless approved in advance by
Landlord. The use of electricity in the Premises shall not exceed the
capacity of existing feeders and risers to or wiring in the Premises. Any
risers or wiring required to meet Tenant's excess electrical requirements
shall, upon Tenant's written request, be installed by Landlord, at Tenant's
cost, if, in Landlord's sole and absolute judgment, the same are necessary
and shall not cause permanent damage or injury to the Building or the
Premises, cause or create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or expenses, or interfere
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with or disturb other tenants of the Building. If Tenant uses machines or
equipment (other than general office machines, excluding computers and
electronic data processing equipment) in the Premises which affect the
temperature otherwise maintained by the air conditioning system or
otherwise overload any utility, Landlord may install supplemental air
conditioning units or other supplemental equipment in the Premises, and the
cost thereof, including the cost of installation, operation, use, and
maintenance, shall be paid by Tenant to Landlord within ten (10) days after
Landlord has delivered to Tenant an invoice therefore.
c. Change or Discontinuance. Landlord's obligation to furnish services
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under subsection 11a shall be subject to the rules and regulations of the
supplier of such services and governmental rules and regulations. Landlord
may change or discontinue services as needed to comply with such rules or
regulations.
d. Restoration of Services; Abatement. Landlord shall use reasonable
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efforts to restore any service that becomes unavailable. Any unavailability
shall not render Landlord liable for any damages caused thereby, nor shall
be a constructive eviction of Tenant, constitute a breach of any implied
warranty, or, except as provided in the next sentence, entitle Tenant to
any abatement of Tenant's obligations hereunder. However, if Tenant is
prevented from making reasonable use of the Premises for more than
forty-five (45) consecutive days because of the unavailability of any such
service, Tenant shall, as its exclusive remedy therefore, be entitled to a
reasonable abatement of Base Rent for each consecutive day (after such
forty five (45) day period) that Tenant is so prevented from making
reasonable use of the Premises. Tenant agrees to promptly notify Landlord
in writing of any interruption of services.
e. Additional Services. Should Tenant desire any additional services
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beyond those described here or service outside the normal times Landlord
provides such services, Landlord may (at Landlord's option), upon
reasonable advance notice from Tenant, furnish such services and Tenant
shall pay Landlord such charges as may be agreed on between Landlord and
Tenant, but in no event at a charge less than Landlord's actual cost plus
overhead for the additional services provided. By way of illustration and
not limitation, special equipment requiring abnormal use of water or
electricity used as a power source for data processing machines, including
air conditioning costs therefore, large business machines and similar
equipment of high electrical consumption shall not be standard and the
costs thereof shall be paid by Tenant within ten (10) days after Landlord
delivers to Tenant an invoice therefore. Landlord shall, at Tenant's sole
cost and expense, install separate meters for measuring consumption of
non-standard services within the Premises.
12. REPAIRS
a. Landlord's Repair Obligations. Within a reasonable time following
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receipt of written notice from Tenant of the necessity therefore, Landlord
shall make necessary repairs to maintain the structure of the Premises and
the Building. "Structure" or "structural" for purposes of this Lease shall
mean only the following: foundation, roof framing and roof, weight bearing
columns and weight bearing walls (specifically excluding interior
surfaces). If any such repair is required
15
because of any act, neglect, or fault of Tenant, its agents, employees,
licensees, contractors or invitees, then Tenant shall pay all costs
therefore within ten (10) days after Landlord has delivered the Tenant an
invoice therefore.
b. Tenant's Repairs. Tenant agrees to promptly make all repairs
-----------------
(including replacements and alterations where necessary) necessary to keep
the interior of the Premises in good order, repair and condition, except
for those necessitated by reasonable use and wear and to repair any damage
caused by Tenant or Tenant's employees, agents, contractors, or invitees to
any portion of the Property. The interior shall include:
(i) interior faces of the exterior walls of the building;
(ii) interior face of the ceilings;
(iii) floor coverings;
(iv) portion of the wiring, plumbing, pipes, conduits and other water,
sewerage, utility, and sprinkler fixtures and equipment in the
Premises which serve the Premises exclusively.
c. Performance of Work. All work described in Sections 9 and 10 above
---------------------
and in this Section 12 shall be performed only by Landlord or by
contractors and subcontractors approved in writing which approval will not
-----------------------
be unreasonable withheld by Landlord. Prior to beginning any work, Tenant
--------------------------
shall cause all contractors and subcontractors to procure and maintain
insurance against such risks, in such amounts, and with such companies as
set forth in subsection 14E and as Landlord may reasonably require, and
shall procure payment and performance bonds reasonably satisfactory to
Landlord covering the cost and completion of the work. All such work shall
place the Property in as good or better condition as that which existed at
the time of such repair and shall be performed in accordance with all legal
requirements and in a good and workmanlike manner so as not to damage any
portion of the Property. Any such work which may affect the HVAC,
electrical system, or plumbing of the Building must be approved by an
engineer acceptable to Landlord.
d. Mechanic's Liens. Tenant shall not permit any mechanic's or other
-----------------
liens to be filed against the Premises or the Property for any obligation
incurred by or at the request of Tenant. If such a lien is filed, then
Tenant shall, no later than ten (10) days after Landlord has notified
Tenant, pay either the amount of the lien or otherwise effect cancellation
or discharge of the lien. If Tenant fails to timely take either such
action, then Landlord may pay the lien claim without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be paid by Tenant to Landlord within ten (10) days after Landlord has
delivered to Tenant an invoice therefore.
13. TRANSFERS
16
a. Transfers; Consent. Tenant shall not, without the prior written
-------------------
consent of Landlord (which shall not be unreasonably withheld); (a)
advertise that any portion of the Premises is available for lease; (b)
assign, transfer, or encumber this Lease or any estate or interest herein,
whether directly or by operation of law; (c) permit any other entity to
become Tenant hereunder by merger, consolidation, or other reorganization;
(d) if Tenant is an entity other than a corporation whose stock is publicly
traded, permit the transfer of an ownership interest in Tenant so as to
result in a change in the current control of Tenant; (e) sublet any portion
of the Premises; (f) grant any license, concession, or other right of
occupancy of any portion of the Premises; or (g) permit the use of the
Premises by any parties other than Tenant (any of the events listed in
clauses (b) through (g) being a "Transfer"). If Tenant requests Landlord's
--------
consent to a Transfer, then Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of
the proposed documentation, and the following information about the
proposed transferee: name and address; reasonably satisfactory information
about its business and business history; its proposed use of the Premises;
banking, financial, and other credit information; and general references
sufficient to enable Landlord to determine the proposed transferee's
experience and credit worthiness and character. Tenant shall reimburse
Landlord for its attorneys' fees and other expenses incurred in connection
with considering any request for its consent to a Transfer. In no event
shall the proposed Transfer be an existing tenant currently in the Building
or at the Property and in no event shall the proposed Transfer be a person
or entity with whom Landlord or its agent is negotiating and to or from
whom Landlord or its agent has given or received any written or oral lease
proposal within the past 6 months regarding leasing space in the Building.
If Landlord consents to a proposed Transfer, then the proposed transferee
shall deliver to Landlord a written agreement whereby it expressly assumes
Tenant's obligations hereunder; however, any transferee of less than all of
the space in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the Transfer, and
only to the extent of the rent it has agreed to pay Tenant therefore.
Landlord's consent to a Transfer shall not release Tenant from performing
its obligations under this Lease, but rather Tenant and its transferee
shall be jointly and severally liable therefore and Tenant shall execute
any documents reasonably required by Landlord to confirm same. Landlord's
consent to any Transfer shall not waive Landlord's rights as to any
subsequent Transfers. If an Event of Default occurs while the Premises or
any part thereof are subject to a Transfer, then Landlord, in addition to
its other remedies, may collect directly from such transferee all rents
becoming due to Tenant and apply such rents against Rent. Tenant authorizes
its transferees to make payments of Rent directly to Landlord upon receipt
of notice from Landlord to do so.
b. Additional Compensation. Tenant shall pay to Landlord, immediately
------------------------
upon receipt thereof, one- half of all compensation received by Tenant for
a Transfer (whether permitted or not) that exceeds the Rent paid by Tenant
to Landlord for the applicable portion of the Premises covered thereby.
Landlord's acceptance of such additional compensation shall not constitute
Landlord's approval of any Transfer that was not approved by Landlord or
permitted by this Lease.
c. Cancellation. Landlord may, within 30 days after submission of
-------------
Tenant's written request for Landlord's consent to a Transfer, cancel this
Lease (or, as to a subletting or assignment, cancel as to the portion of
the Premises proposed to be sublet or assigned) as of the date the proposed
17
Transfer was to be effective. If Landlord cancels this Lease as to any
portion of the Premises, then this Lease shall cease for such portion of
the Premises and Tenant shall pay to Landlord all Rent accrued through the
cancellation date relating to the portion of the Premises covered by the
proposed Transfer and all unamortized brokerage commissions paid or payable
by Landlord in connection with this Lease that are allocable to such
portion of the Premises. Thereafter, Landlord may lease such portion of the
Premises to the prospective transferee (or to any other person) without
liability to Tenant.
14. RISK ALLOCATION AND INSURANCE
a. Allocation of Risks. The parties desire, to the extent permitted by
--------------------
law, to allocate certain risks of personal injury, bodily injury or
property damage, and risks of loss of real or personal property by reason
of fire, explosion or other casualty, and to provide for the responsibility
for insuring those risks. It is the intent of the parties that, to the
extent any event is insured for or required herein to be insured for, any
loss, cost, damage or expense arising from such event, including, without
limitation, the expense of defense against claims or suits, be covered by
insurance, or by the party required to obtain insurance in the event such
party defaults in its obligation to do so, without regard to the fault of
Tenant, its officers, employees, agents, contractors or invitees ("Tenant
Protected Parties"), and without regard to the fault of Landlord, its
agents, their respective partners, shareholders, members, agents,
directors, officers, contractors and employees ("Landlord Protected
Parties"). As between Landlord Protected Parties and Tenant Protected
Parties, such risks are allocated as follows:
(i) Tenant shall bear the risk of bodily injury, personal injury or
death, or damage to the property of third persons, occasioned by
events occurring on or about the Premises, regardless of the party at
fault. Said risks shall be insured as provided in subsection 14(b)(i).
-------------------
(ii) Landlord shall bear the risk of bodily injury, personal injury or
death, or damage to the property of third persons, occasioned by
events occurring on or about the Property (other than the Premises or
premises leased to other tenants) regardless of the party at fault.
Said risk shall be insured against as provided in subsection 14(c)(i).
-------------------
(iii) Tenant shall bear the risk of damage to Tenant's contents, trade
fixtures, machinery, equipment, furniture and furnishings in the
Premises arising out of loss by the events required to be insured
against pursuant to subsection 14(b)(ii).
---------------------
(iv) Landlord shall bear the risk of damage to the Building and common
areas arising out of loss by events required to be insured against
pursuant to subsection 14(c)(ii).
---------------------
Notwithstanding the foregoing, provided the party required to carry
insurance under subsection 14 (b)(i) or subsection 14 (c)(i) hereof does
--------------------- --------------------
not default in its obligation to do so, if and to the extent that any loss
occasioned by any event of the type described in Subsection 14(a)(i) or
Subsection 14 (a)(ii) exceeds the coverage or the amount of insurance
required to be carried
18
under said Sections or such greater coverage or amount of insurance as is
actually carried or results from an event not required to be insured
against or not actually insured against, the party at fault shall pay the
amount not actually covered.
b. Tenant's Insurance. Tenant shall procure and maintain policies of
-------------------
insurance, at its own cost and expense, insuring:
(i) The Landlord Protected Parties, and Landlord's mortgagee, if any,
of which Tenant is given written notice, and Tenant Protected Parties
subject, however, to the subsections 14(a), from all claims, demands
or actions made by or on behalf of any person or persons, firm or
corporation and arising from, related to or connected with the
Premises, for bodily injury to or personal injury to or death of any
person, or more than one (1) person, or for damage to property in an
amount of not less than $3,000,000.00 combined single limit per
occurrence/aggregate. Said insurance shall be written on an
"occurrence" basis and not on a "claims made" basis. If at any time
during the term of this Lease, Tenant owns or rents more than one
location, the policy shall contain an endorsement to the effect that
the aggregate limit in the policy shall apply separately to each
location owned or rented by Tenant. Landlord shall have the right not
more than once every three (3) years, exercisable by giving written
notice thereof to Tenant, to require Tenant to increase such limit if,
in Landlord's reasonable judgment, the amount thereof is insufficient
to protect the Landlord Protected Parties and Tenant Protected Parties
from judgments which might result from such claims, demands or
actions. Tenant shall cause the Landlord Protected Parties to be
insured as "additional insureds" such that Tenant will protect,
indemnify and save harmless the Landlord Protected Parties from and
against any and all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without
limitation reasonable attorney's fees and expenses) imposed upon or
incurred by or asserted against the Landlord Protected Parties, or any
of them, by reason of any bodily injury to or personal injury to or
death of any person or more than one person or for damage to property,
occurring on or about the Premises, caused by any party including,
without limitation, any Landlord Protected Party provided, however,
Tenant shall not be required to indemnify or insure against any loss
resulting from the intentional wrongful acts of any Landlord Protected
Party, to the extent of the amount of the insurance required to be
carried under this subsection 14(b)(i) or such greater amount of
insurance as is actually carried. Tenant shall cause its liability
insurance to include contractual liability coverage fully covering the
indemnity hereinabove set forth.
(ii) All contents and Tenant's trade fixtures, machinery, equipment,
furniture and furnishings in the Premises to the extent of at least
ninety percent (90%) of their replacement cost under Standard Fire and
Extended Coverage Policy and all other risks of direct physical loss
as insured against under Special Form ("all risk") coverage. Said
insurance shall contain an endorsement waiving the insurer's right of
subrogation against any Landlord Protected Party.
c. Landlord's Insurance. Landlord shall procure and maintain policies
---------------------
of insurance insuring:
19
(i) All claims, demands or actions made by or on behalf of any person
or persons, firm or corporation including, without limitation, any
Tenant Protected Party subject, however, to subsection 14(a) and
arising from, related to or connected with the Property (other than
the Premises and premises leased to other tenants), for bodily injury
to or personal injury to or death of any person, or more than one (1)
person, or for damage to property in an amount of not less than
$3,000,000.00 combined single limit per occurrence/aggregate provided,
however, Landlord shall not be required to indemnify or insure against
any loss resulting from the intentional wrongful acts of any Tenant
Protected Party. Said insurance shall be written on an "occurrence"
basis and not on a "claims made" basis. If at any time during the term
of this Lease, Landlord owns more than one location, the policy shall
contain an endorsement to the effect that the aggregate limit in the
policy shall apply separately to each location owned by Landlord.
(ii) The improvements at any time situated upon the Property (other
than the contents of Premises and premises leased to other tenants)
against loss or damage by fire, lightning, wind storm, hail storm,
aircraft, vehicles, smoke, explosion, riot or civil commotion as
provided by the Standard Fire and Extended Coverage Policy and all
other risks of direct physical loss as insured against under Special
Form ("all risk") coverage. The insurance coverage shall be for not
less than 90% of the full replacement cost of such improvements with
agreed amount endorsement. Landlord shall be named as insured and all
proceeds of insurance shall be payable to Landlord or its mortgagee.
Said insurance shall contain an endorsement waiving the insurer's
right of subrogation against any Tenant Protected Party.
(iii) Landlord's business income, protecting Landlord from loss of
rents and other charges during the period while the Premises are
untenantable due to fire or other casualty (for the period reasonable
determined by Landlord).
(iv) Such other risks as reasonably determined by Landlord.
d. Forms of Insurance. All of the aforesaid insurance shall be in
----------------------
companies with an A.M. Best rating of at least (A-)(VIII) and licensed to
do business in the State of Nevada. As to Tenant's insurance, the insurer
and the form, substance and amount (where not stated above) shall be
reasonably satisfactory from time to time to Landlord and any mortgagee of
Landlord, and shall unconditionally provide that it is not subject to
cancellation, material modification or non-renewal except after at least
thirty (30) days prior written notice to Landlord and any mortgagee of
Landlord. Original certificates of Tenant's insurance policies reasonably
satisfactory to Landlord, together with reasonably satisfactory evidence of
payment of the premiums thereon, shall be deposited with Landlord at the
Commencement Date and renewals thereof not less than thirty (30) days prior
to the end of the term of such coverage.
e. Tenant's Contractor's Insurance. Tenant shall require any contractor
--------------------------------
of Tenant permitted to perform work in, on, or about the Premises to obtain
and maintain the following insurance coverage at no expense to Landlord:
20
(i) Commercial general liability insurance, including the traditional
broad form general liability coverages, in the amount of One Million
Dollars ($1,000,000), adding Landlord and Tenant as additional insured
parties; (ii) Worker's compensation insurance for all contractor's
employees working in or about the Premises in an amount sufficient to
comply with applicable laws or regulations;
(iii) Employers liability insurance in an amount not less than One
Hundred Thousand Dollars ($100,000); and
(iv) Any other insurance as Tenant, Landlord or its mortgagee may
reasonably require from time to time for contractors performing work
in the Building.
f. Increase of Premiums. Tenant will not do anything or fail to do
----------------------
anything which will cause the cost of Landlord's insurance to increase or
which will prevent Landlord from procuring policies (including but not
limited to public liability) from companies and in a form reasonably
satisfactory to Landlord. If any breach of this subsection 14(f) by Tenant
shall directly cause the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly
upon being billed therefore.
g. Tenant's Additional Insurance. Landlord makes no representation that
-----------------------------
the limits of liability specified to be carried by Tenant under the terms
of this Lease are adequate to protect Tenant against Tenant's undertaking
under this Section 14 and Section 15.
15. INDEMNITY
a. Tenant shall indemnify, defend and hold harmless Landlord Protected
Parties from and against any and all liability, claims, demands, causes of
action, judgments, costs, expenses, and all losses and damages for bodily
injury, death and property damage arising from any activity in the Premises
even if resulting from the negligent act or omission (but not willful
misconduct), of any of the Landlord Protected Parties, and from all costs,
reasonable attorneys' fees and disbursements, and liabilities incurred in
the defense of any such claim. Upon notice from Landlord, Tenant shall
defend any such claim, demand, cause of action or suit at Tenant's expense
by counsel satisfactory to Landlord in its reasonable discretion, or as
designated by Tenant's insurer. The provisions of this subsection (a) shall
survive the expiration or earlier termination of this Lease.
b. Landlord shall indemnify, defend and hold harmless Tenant Protected
Parties from and against any and all liability, claims, demands, causes of
action, judgments, costs, expenses, and all losses and damages for bodily
injury, death and property damage arising from any activity in or about the
Building or common areas (other than the Premises and premises leased to
other tenants) even if resulting from the negligent act or omission (but
not willful misconduct) of any of the Tenant Protected Parties, and from
all costs, reasonable attorneys' fees and disbursements, and liabilities
incurred in the defense of any such claim. Upon notice from Tenant,
Landlord shall defend any such claim, demand, cause of action or suit at
Landlord's expense by counsel
21
satisfactory to Tenant in its reasonable discretion, or as designated by
Landlord's insurer. The provisions of this subsection (b) shall survive the
expiration or earlier termination of this Lease.
16. CASUALTY
a. Repair Estimate. If the Premises or the Building are damaged by fire
----------------
or other casualty (a "Casualty"), Landlord shall, within thirty (30) days
--------
after such Casualty, deliver to Tenant a good faith estimate (the "Damage
------
Notice") of the time needed to repair the damage caused by the Casualty.
------
b. Landlord's and Tenant's Rights. If, because of a Casualty, Tenant is
-------------------------------
prevented from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Casualty
and Landlord estimates within 30 days of loss that the damage caused
----------------
thereby cannot be repaired within one hundred twenty (120) days after the
------------------------
commencement of repair ("Substantial Casualty"), then Landlord may, at its
--------------------
expense, relocate Tenant to office space reasonably comparable to the
Premises, provided that Landlord notifies Tenant of its intention to do so
in the Damage Notice. If Landlord relocates Tenant, Rent shall be abated
only from the date of such damage until the relocation premises are
tendered to Tenant, and thereafter, Tenant shall pay to Landlord the lesser
of the Rent or the fair market rental value of the replacement premises
(including all additional rent and expenses associated therewith). Such
relocation may be for a portion of or the entire remaining Term. Landlord
shall complete any such relocation within forty-five (45) days after
Landlord has delivered the Damage Notice to Tenant. If Landlord does not
elect to relocate Tenant following such Substantial Casualty, then, unless
Tenant caused such damage, Tenant may terminate this Lease by delivering
written notice to Landlord of its election to terminate within thirty (30)
days after the Damage Notice has been delivered to Tenant. Following a
Substantial Casualty, if Landlord does not relocate Tenant and Tenant does
not terminate this Lease, then Landlord shall repair the Building or the
Premises, as the case may be, as provided below, and Rent for any portion
of the Premises necessary for Tenant's business that was rendered
untenantable shall be abated on a reasonable basis from the date of damage
until the completion of the repair, unless Tenant caused such damage, in
which case, Tenant shall continue to pay Rent without abatement. Rent shall
not be abated or reduced for a Casualty, which is not a Substantial
Casualty. Notwithstanding the foregoing, if a Casualty damages a material
portion of the Building, and Landlord makes a good faith determination that
restoring the Premises or Building would be uneconomical, or if Landlord is
required to pay any insurance proceeds arising out of the Casualty to
Landlord's Mortgagee (defined in Section 2 above), then Landlord may
terminate this Lease by giving written notice of its election to terminate
within thirty (30) days after the Damage Notice has been delivered to
Tenant, and Rent shall be abated as of the date of the Casualty.
c. Repair Obligation. If neither party so elects to terminate this Lease
-----------------
following a Casualty, then Landlord shall, within a reasonable time after
such Casualty, restore the Building and Premises to substantially the same
or better condition as they existed immediately before such Casualty;
however, Landlord shall not be required to repair or replace any part of
the furniture, equipment, fixtures, and other improvements which may have
been placed by, or at the request of, Tenant or
22
other occupants in the Building or the Premises, and Landlord's obligation
to repair or restore shall be limited to the extent of the insurance
proceeds actually received by Landlord for the Casualty in question.
17. CONDEMNATION
a. Eminent Domain. If any part of the Property is taken by right of
---------------
eminent domain or conveyed in lieu thereof (either event a "Taking"), and
such Taking prevents Tenant from conducting its business in the Premises in
a manner reasonably comparable to that conducted immediately before such
Taking then Landlord may, at its expense, relocate Tenant to space
reasonably comparable to the Premises, provided that Landlord notifies
Tenant of its intention to do so within thirty (30) days after the Taking.
Such relocation shall be for the remaining Term. Landlord shall complete
any such relocation within forty-five (45) days after Landlord has notified
Tenant of its intention to relocate Tenant. If Landlord does not elect to
relocate Tenant following such Taking, then Tenant may terminate this Lease
as of the date of such Taking by giving written notice to Landlord within
sixty (60) days after the Taking, and Rent shall be prorated on the later
of the date of such Taking or the date Tenant actually vacates the
Premises. After a Taking, if Landlord does not terminate this Lease or
relocate Tenant and Tenant does not terminate this Lease, then Rent shall
be abated on a reasonable basis as to that portion of the Premises which
was necessary for Tenant's business and which was rendered untenantable by
the Taking. Rent shall not be reduced or abated for any condemnation which
does not constitute a Taking.
b. Taking - Landlord's Rights. If all or any material portion of the
-----------------------------
Building becomes subject to a Taking, or if Landlord is required to pay any
of the proceeds received for a Taking to Landlord's mortgagee, then this
Lease, at the option of Landlord, exercised by written notice to Tenant
within thirty (30) days after such Taking, shall terminate and Rent shall
be apportioned as of the date of such Taking.
c. Award. If any Taking occurs, then Landlord shall receive the entire
-----
award or other compensation for the Property taken, and Tenant may
separately pursue a claim against the condemning party for the value of
Tenant's moving costs and other claims it may have, so long as such claim
does not in any way impair or adversely affect the award that the Landlord
is entitled to receive.
18. RULES AND REGULATIONS
Tenant shall comply with the rules and regulations of the Building which
are attached hereto as Exhibit "C". Landlord may, from time to time, change
such rules and regulations for the safety, care, or cleanliness of the
Building and related facilities, provided that such changes are reasonable
and are applicable to all tenants of the Building. Tenant shall be
responsible for the compliance with such rules and regulations by its
employees, agents, and invitees.
23
19. SUBORDINATION & MORTGAGEES
a. Subordination. This Lease is subject and subordinate to any deeds of
-------------
trust, mortgages or other security instruments which now or hereafter
encumber all or any portion of the Property or any interest of Landlord
therein. No further instrument shall be required to effect such
subordination, but upon request Tenant shall execute, acknowledge, and
deliver to Landlord any further instruments and certificates evidencing
such subordination as Landlord or any mortgagee of Landlord shall
reasonably require.
b. Attornment. Notwithstanding subsection 19a, any mortgagee of Landlord
----------
shall have the right at any time to subordinate any such deed of trust or
mortgage to this Lease, or to any of the provisions hereof on such terms
and subject to such conditions as such mortgagee may consider appropriate
in its discretion. At any time, before or after the institution of any
proceedings for the foreclosure of any such deed of trust or mortgage, or
the sale of the Building under any such deed of trust or mortgage, Tenant
shall, upon request of such mortgagee, any person succeeding to the
interest of such mortgagee, or the purchaser at any foreclosure sale
("Successor Landlord"), automatically become the Tenant of the Successor
-------------------
Landlord, without change in the terms or other provisions of this Lease;
provided, however, that the Successor Landlord shall not be bound by any
modification to this Lease made after the institution of any such
proceeding without the consent of the Successor Landlord or by any payment
of Rent more than one (1) month in advance, except for a security deposit
previously paid to Landlord (and then only if such security deposit has
been deposited with and is under the control of the Successor Landlord).
The agreement of Tenant to attorn to a Successor Landlord shall survive any
such foreclosure sale, trustee's sale, or conveyance in lieu thereof.
Tenant shall, upon request, before or after any such foreclosure or
conveyance, execute, acknowledge, and deliver to any mortgagee of Landlord
or to the Successor Landlord instruments evidencing such attornment as the
mortgagee or Successor Landlord may reasonably require.
c. Estoppel Certificates. Tenant shall, from time to time, within ten
----------------------
(10) business days after request from Landlord, or from any mortgagee of
Landlord, execute, acknowledge and deliver in recordable form a certificate
certifying, to the extent true, that this Lease is in full force and effect
and unmodified (or, if there have been modifications, that the same is in
full force and effect as modified and stating the modifications); that the
Term has commenced and the full amount of the Rent then accruing hereunder
and the dates to which the Rent has been paid; that Tenant has accepted
possession of the Premises and that any improvements required by the terms
of this Lease to be made by Landlord have been completed to the
satisfaction of Tenant; the amount, if any, that Tenant has paid to
Landlord as a security deposit; that no Rent under this Lease has been paid
more than thirty (30) days in advance of its due date; that the address for
notices to be sent to Tenant is as set forth in this Lease (or has been
changed by notice duly given and is as set forth in the certificate); that
Tenant, as of the date of such certificate, has no charge, lien, or claim
of offset under this Lease or otherwise against Rent; that, to the
knowledge of Tenant, Landlord is not then in default under this Lease; and
such other matters as may be reasonably requested by Landlord or any
mortgagee of Landlord. Any such certificate may be relied upon by Landlord,
any successor
24
of Landlord, any mortgagees of Landlord or any prospective purchaser of the
Building or the Property.
d. Notice to Mortgagee. No act or failure to act on the part of Landlord
--------------------
which would entitle Tenant under the terms of this Lease, or by law, to be
relieved of Tenant's obligations hereunder or to terminate this Lease,
shall result in a release of Tenant's obligations or termination of this
Lease unless (i) Tenant has given notice by certified mail to any mortgagee
of Landlord whose address has been furnished to Tenant, and (ii) Tenant
offers such mortgagee of Landlord a reasonable time to cure the default (in
no event to be less than thirty (30) days), including time to obtain
possession of the Building if such should prove necessary to effect a cure.
No such mortgagee of Landlord shall be obligated to Tenant to cure any
default by Landlord hereunder, but if a mortgagee elects in its discretion
to effect a cure Tenant shall accept same as though done by Landlord.
20. TAXES
Tenant shall be liable for all taxes levied or assessed against personal
property, furniture, or fixtures placed by Tenant in the Premises. If any
taxes for which Tenant is liable are levied or assessed against Landlord or
Landlord's property and Landlord elects to pay the same, or if the assessed
value of Landlord's property is increased by inclusion of such personal
property, furniture or fixtures and Landlord elects to pay the taxes based
on such increase, then Tenant shall pay to Landlord, upon demand, that part
of such taxes for which Tenant is primarily liable hereunder. Landlord
shall not pay such amounts if Tenant notifies Landlord that it will contest
the validity or amount of such taxes and thereafter diligently proceeds
with such contest in accordance with applicable law and in a manner that is
not inconsistent with the rights of Landlord or any other tenants of the
Building and the non-payment thereof does not; (a) pose a threat of loss or
seizure of the Building or interest of Landlord therein; or (b) result in
the imposition of any fines, penalties or interest against Landlord.
Notwithstanding the foregoing, Landlord may (but shall never be obligated
to do so) contest the amount or validity of any such taxes.
21. EVENTS OF DEFAULT
The occurrence of any one of the following events will be an Event of
Default by Tenant under this Lease:
a. Tenant shall fail to pay Landlord any Rent or other sum of money when
due under this Lease or under any other agreement with Landlord concerning
the Premises after the expiration of five (5) days written notice.
b. Tenant shall fail to maintain any insurance that this Lease requires
Tenant to maintain or shall fail to deliver any certificate of such
insurance when required by this Lease.
c. Tenant shall fail to provide an estoppel certificate within the time
provided in subsection 19. (c)
25
d. Tenant shall fail to perform or observe any term, covenant or
condition of this Lease or any other agreement with Landlord concerning the
Premises (other than a failure described in the preceding subsections
21.(a), 21.(b) and 21. (c) and Tenant shall not cure the failure within ten
(10) days after Landlord notifies Tenant thereof in writing; but if the
failure is of a nature that it cannot be cured within such ten (10) day
period, Tenant shall not have committed an Event of Default if Tenant
commences the curing of the failure within such ten (10) day period and
thereafter diligently pursues the curing of same and completes the cure
within thirty (30) days; provided, however, that if Tenant fails to perform
or observe any term, condition, covenant or provision in this Lease
including the timely payment of Rent, more than twice in any Lease year,
then notwithstanding that such defaults have been cured by Tenant, any
further similar failure shall, at Landlord's election, be deemed an Event
of Default without notice or opportunity to cure.
e. Tenant or any guarantor of Tenant's obligations under this Lease shall
become insolvent, or shall admit in writing its inability to pay its debts
when due, shall make a transfer in fraud of its creditors, or shall make a
general assignment or arrangement for the benefit of creditors, or all or
substantially all of Tenant's assets or the assets of any guarantor of
Tenant's obligations under this Lease or Tenant's interest in this Lease
are levied on by execution or other legal process.
f. A petition shall be filed by Tenant or any guarantor of Tenant's
obligations under this Lease to have Tenant or such guarantor adjudged a
bankrupt, or a petition for reorganization or arrangement under any law
relating to bankruptcy shall be filed by Tenant or such guarantor, or any
such petitions shall be filed against Tenant or such guarantor and shall
not be dismissed within thirty (30) days.
g. A receiver or trustee shall be appointed for all or substantially all
the assets of Tenant or of any guarantor of Tenant's obligations under this
Lease or for Tenant's interest in this Lease.
h. Tenant shall abandon or vacate any substantial portion of the Premises
or shall fail to occupy the Premises within thirty (30) days after the Term
commences and the Premises are ready for occupancy.
22. REMEDIES
a. Upon the occurrence of any uncured Event of Default by Tenant,
Landlord shall have the option, without any notice to Tenant (except as
expressly provided above) and with or without judicial process, to pursue
any one or more of the following remedies:
(i) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord.
(ii) Landlord may enter upon and take custodial possession of the
Premises by picking the locks if necessary, lock out or remove Tenant
and any other person occupying the Premises and
26
alter the locks and other security devices at the Premises, all
without Landlord being deemed guilty of trespass or becoming liable
for any resulting loss or damage and without causing a termination or
forfeiture of this Lease or of Tenant's obligation to pay rent.
Landlord shall not, in the event of a lockout by the changing of
locks, be required to provide new keys to Tenant.
(iii) Landlord may terminate Tenant's possession and not this Lease
whereby Landlord may enter the Premises and take possession of and
remove any and all trade fixtures and personal property situated in
the Premises, without liability for trespass or conversion. If
Landlord takes possession of and removes personal property from the
Premises, then prior to any disposition of the property by sale or
until Tenant reclaims the property if no public or private sale is
contemplated, Landlord may store the property in a public or private
warehouse or elsewhere at the cost of and for the account of Tenant
without the resort to legal process and without becoming liable for
any resulting loss or damage.
(iv) Landlord may perform on behalf of Tenant any obligation of Tenant
under this Lease which Tenant has failed to perform, and the cost of
the performance will be deemed Additional Rent and will be payable by
Tenant to Landlord upon demand.
b. In the event Landlord enters and takes possession of the Premises
without electing to terminate this Lease, Landlord will have the right to
relet the Premises for Tenant's account, in the name of Tenant or Landlord
or otherwise, on such terms as Landlord deems advisable. But Landlord will
not be required to incur any expense to relet the Premises and the failure
of Landlord to relet the Premises shall not reduce Tenant's liability for
Rent and other charges due under this Lease or for damages. Landlord will
not be obligated to relet for less than the then market value of the
Premises or to relet the Premises when other rental space in the Building
is available for lease. Without causing a termination or forfeiture of this
Lease after an Event of Default by Tenant, Landlord may: (i) relet the
Premises for a term or terms to expire at the same time as, earlier than,
or subsequent to, the expiration of the Term; (ii) remodel or change the
use and character of the Premises; (iii) grant rent concessions in
reletting the Premises, if necessary in Landlord's judgment, without
reducing Tenant's obligation for Rent specified in this Lease; and (iv)
relet all or any portion of the Premises as a part of a larger area.
Subject to the next subsection, Landlord may retain the excess, if any, of
the rent earned from reletting the Premises over the Rent specified in this
Lease.
c. If Landlord has relet the Premises or relets thereafter without first
terminating this Lease, Landlord will apply any future rentals from
reletting (but not rental allocable to any area outside the Premises or
rental allocable to the period following the Term) in the following manner:
first, to reduce any amounts then due from Tenant, including but not
limited to attorneys' fees, brokerage commissions and other expenses
Landlord may have incurred in connection with the collection of any Rent,
recovery of possession, and redecorating, altering, dividing, consolidating
with adjoining premises, or otherwise preparing the Premises for reletting;
and, the balance, if any, of the future rentals from reletting shall be
retained by Landlord as compensation for reletting the Premises.
27
d. No re-entry or reletting of the Premises or any filing or service of
an unlawful detainer action or similar action will be construed as an
election by Landlord to terminate or accept a forfeiture of this Lease or
to accept a surrender of the Premises after an Event of Default by Tenant,
unless a written notice of such intention is given by Landlord to Tenant;
but notwithstanding any such action without such notice, Landlord may at
any time thereafter elect to terminate this Lease by notifying Tenant.
e. Upon the termination of this Lease or termination of Tenant's
possession, Landlord will be entitled to recover, at its election, all
unpaid Rent that have accrued through the date of termination plus the
costs of performing any of Tenant's obligations (other than the payment of
Rent) that should have been but were not satisfied as of the date of such
termination. In addition, Landlord will be entitled to recover, not as rent
or a penalty but as compensation for Landlord's loss of the benefit of its
bargain with Tenant, the difference between (i) an amount equal to the
present value of the Rent and other sums that this Lease provides Tenant
will pay for the remainder of the Term and for the balance of any then
effective extension of the Term, and (ii) the present value of the net
future Rent for such period that will be or with reasonable efforts could
be collected by Landlord by reletting the Premises. For purposes of
determining what could be collected by Landlord by reletting under the
preceding sentence, it will be assumed that Landlord is not required to
relet when other space in the Building is available for lease and that
Landlord will not be required to incur any cost to relet, other than
customary leasing commissions. If relet. Any monies obtained are to be
-----------------------------------------
offset against what tenant owes.
-----------------------------------
f. After an Event of Default by Tenant, Landlord may recover from Tenant
from time to time and Tenant shall pay to Landlord upon demand, whether or
not Landlord has relet the Premises or terminated this Lease, (i) such
expenses as Landlord may incur in recovering possession of the Premises,
terminating this Lease, placing the Premises in good order and condition
and altering or repairing the same for reletting; (ii) all other costs and
expenses (including brokerage commissions and legal fees) paid or incurred
by Landlord in exercising any remedy or as a result of the Event of Default
by Tenant; and (iii) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which in the ordinary course of
things would be likely to result from such failure.
g. In the event that any future amount owing to Landlord or offsetting an
amount owing to Landlord is to be discounted to present value under this
Lease, the present value shall be determined by discounting at the rate of
four percent (4%) per annum.
h. For the purposes of any suit by Landlord brought or based on this
Lease, this Lease may, at Landlord's option, be construed to be a divisible
contract to the end that successive actions may be maintained and
successive periodic sums shall mature and become due hereunder, and the
failure to include in any suit or action any sum or sums then matured shall
not be a bar to the maintenance of any suit or action for the recovery of
the sum or sums so omitted.
i. This Section 22 shall be enforceable to the extent not prohibited by
applicable law, and the unenforceability of any provision in this Section
shall not render any other provision
28
unenforceable. Tenant will be presumed to have abandoned the Premises if
goods, equipment, or other property, in an amount substantial enough to
indicate a probable intent to abandon the Premises, is being or has been
removed from the Premises and the removal is not within the normal course
of Tenant's business.
j. The failure or delay by Landlord, at any time after a default has
occurred, to exercise or enforce any of the rights, remedies and
obligations provided for in this Lease shall not be deemed or construed to
be a waiver of any such default or remedy or to affect the validity or
enforceability of any part of this Lease or the right of Landlord
thereafter to exercise or enforce each and every such right, remedy and
obligation. No waiver of any default under this Lease by Landlord shall be
deemed or construed to be a waiver of any other or subsequent default, and
the consent or approval by Landlord to or for any act by Tenant requiring
Landlord's consent or approval shall not be deemed to render unnecessary
Landlord's consent or approval to or for any subsequent similar act by
Tenant. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly installments of Rent, Additional Rent or other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated Rent, Additional Rent or other charges, nor shall any
endorsement or statement on any check or letter accompanying a check for
payment of Rent be deemed an accord and satisfaction, nor shall acceptance
of Rent with knowledge of breach constitute a waiver of the breach, and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent, to terminate this Lease, to
repossess the Premises or to pursue any other remedy provided in this
Lease. No breach of a covenant or condition of this Lease shall be deemed
to have been waived by Landlord, unless such waiver be in writing signed by
Landlord.
23. LANDLORD'S LIEN
In addition to all statutory landlord's liens granted under applicable law,
Tenant grants to Landlord, to secure performance of Tenant's obligations
hereunder, a security interest in all equipment, fixtures, furniture,
improvements, and other personal property of Tenant now or hereafter
situated on the Premises, and all proceeds there from (the "Collateral"),
----------
and the Collateral shall not be removed from the Premises without the
consent of Landlord until all obligations of Tenant have been fully
performed. Upon the occurrence of an Event of Default, Landlord may, in
addition to all other remedies, without notice or demand except as provided
below, exercise the rights afforded a secured party under the Uniform
Commercial Code of the State in which the Building is located (the "UCC").
---
In connection with any public or private sale under the UCC, Landlord shall
give Tenant five (5) days prior written notice of the time and place of any
public sale of the Collateral or of the time after which any private sale
or other intended disposition thereof is to be made, which is agreed to be
a reasonable notice of such sale or other disposition. Tenant grants to
Landlord a power of attorney to execute and file any financing statement or
other instrument necessary to perfect Landlord's security interest which
power is coupled with an interest and shall be irrevocable during the Term.
Landlord may also file a copy of this Lease as a financing statement to
perfect its security interest in the Collateral. Tenant further agrees to
execute any financing statements requested by Landlord to evidence or
perfect the liens set forth in this section.
29
24. NON-WAIVER
Landlord's acceptance of Rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. No waiver by Landlord of
any violation or breach of any of the terms contained herein shall waive
Landlord's rights regarding any future violation of that term or any other
term. No custom or practice which may occur or develop between the parties
in connection with the terms of this Lease shall be construed to waive or
lessen Landlord's right to insist upon strict performance of the terms of
this Lease.
25. SURRENDER OF PREMISES
No act by Landlord shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be
valid unless the same is in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall immediately deliver
to Landlord the Premises with all improvements located thereon in good
repair and condition, reasonable wear and tear excepted (and condemnation
and Casualty damage not caused by Tenant, as to which Sections 16 and 17
shall control), and shall deliver to Landlord all keys to the Premises and
access cards to the Building. Provided that Tenant has performed all of its
obligations hereunder, Tenant may remove all unattached trade fixtures,
furniture, and personal property placed in the Premises by Tenant (but
Tenant shall not remove any such item which was paid for, in whole or in
part, by Landlord). Additionally, Tenant shall promptly remove such
alterations, additions, improvements, trade fixtures, equipment, wiring,
and furniture as Landlord may request; however, Tenant shall not be
required to remove any addition or improvement to the Premises if Landlord
has specifically agreed in writing that the improvement or addition in
question shall not be removed. Tenant shall repair all damage caused by
such removal. All items not so removed shall be deemed to have been
abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items. If Tenant fails to surrender the
Premises, Landlord shall have the right, without notice and without
resorting to legal process, to enter upon and take possession of the
Premises and to expel or remove Tenant and its effects. The provisions of
this Section shall survive the end of the Term.
26. HOLDING OVER
a. If, at the expiration of the Term of this Lease, Tenant continues to
occupy the Premises with the written consent of Landlord, then Tenant shall
be a Tenant from month to month at a monthly rent as established by
Landlord and subject to all of the other terms and conditions of this
Lease.
30
b. If, at the expiration of the term of this Lease or other termination
of this Lease, Tenant continues to occupy the Leased Premises without the
written consent of Landlord, or if no new agreement shall have been entered
into by the parties hereto, then Tenant shall be a Tenant at will only, and
Tenant's continued occupancy shall not defeat Landlord's right to
possession of the Leased Premises at any time, with or without notice.
Tenant shall pay Rent equal to the greater of (a) 200% of the monthly Base
Rent and Additional Rent payable during the last month of the Term, or (b)
the prevailing rental rate in the Building for similar space. In such
event, Tenant shall pay Rent on a monthly basis and shall not be entitled
to a daily proration. In addition, Tenant shall pay to Landlord all
damages, costs and expenses incurred, directly or indirectly, by Landlord
by reason of Tenant's retention of possession of the Leased Premises after
such expiration or termination. Tenant shall indemnify Landlord against all
claims made by any other tenant or prospective tenant against Landlord
resulting from delay by Landlord in delivering possession of the Leased
Premises to such other tenant or prospective tenant as a result of such
holdover.
No payment of money by Tenant to Landlord after the termination of this
Lease shall reinstate, continue, or extend the lease Term and no extension
of this Lease after the termination thereof shall be valid unless and until
the same shall be reduced to writing and signed by both Landlord and
Tenant.
27. RIGHTS RESERVED BY LANDLORD
Landlord has the following rights, exercisable without notice to Tenant and
without causing an eviction (constructive or actual) or disturbance of
Tenant's possession of the Premises and without giving rise to any claim
for setoff or abatement of rent:
a. to change the Building's name or street address;
b. to install signs on the exterior and interior of the Building or on
the Property;
c. to designate and approve, prior to installation, all types of
window shades, blinds, drapes, awnings, window ventilators and other
similar equipment, and to control all internal lighting that may be
visible from the exterior of the Building;
d. to enter upon the Premises at reasonable hours to inspect, clean or
make repairs or alterations (without implying any obligation to do so)
and to show the Premises to prospective lenders, purchasers and
tenants and, if the Premises are vacated, to prepare them for
reoccupancy;
e. to retain and use in appropriate instances keys to all doors into
and within the Premises (Tenant will not change or add locks without
the prior written consent of Landlord);
31
f. to decorate and to make repairs, alterations, additions or
improvements (whether structural or otherwise) to and about the
Building and the Property and, for such purposes, to enter upon the
Premises, to temporarily close doors, entryways, public space and
corridors in the Building or the Property, to temporarily suspend
building services and facilities and to change the arrangement and
location of entrances or passageways, doors and doorways, corridors,
elevators, stairs, toilets, or other Common Areas, all without
abatement of rent or impairing Tenant's obligations so long as the
Premises remain reasonably accessible and fit for the use expressly
permitted in this Lease;
g. to grant to anyone the exclusive right to conduct any business or
render any service in or to the Building or the Property (including
the exclusive right to sell any food or beverages), provided such
exclusive right does not exclude Tenant from the use expressly
permitted in this Lease;
h. to approve the weight, size and location of safes and other heavy
equipment and articles in the Premises and to require that all such
items and all furniture be moved into and out of the Building and
Premises at the times and in the manner directed by Landlord
(movements of Tenant's property into or out of the Building and within
the Building are entirely at the risk and responsibility of Tenant);
and
i. to take any measures (without implying any obligation to do so)
Landlord deems advisable for the security of the Building and its
occupants, including the evacuation of the Building for drill purposes
and the closing of the Building after normal business hours, subject,
however, to Tenant's right to admittance when the Building is closed
under reasonable regulations prescribed by Landlord from time to time.
28. LANDLORD'S DEFAULT
a. All covenants of Tenant in this Lease are independent covenants, not
conditioned upon Landlord's satisfaction of its obligations hereunder,
except to the extent otherwise specifically provided herein. Tenant waives
any statutory lien it may have against the rent due under this Lease or
against Landlord's property in Tenant's possession.
b. If Landlord defaults in the performance of any of its obligations
under this Lease, Landlord will have thirty (30) days to cure after Tenant
notifies Landlord of the default; or if the default is of a nature to
require more than thirty (30) days to remedy, Landlord will have the time
reasonably necessary to cure it.
c. Whenever a period of time is prescribed in this Lease for action to be
taken by Landlord, Landlord will not be liable or responsible for, and
there shall be excluded from the computation for any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, applicable laws or any other causes of any kind whatsoever
which are beyond the control of Landlord.
32
d. Tenant agrees to serve a notice of claimed default or breach by
Landlord upon the lender holding a first mortgage or deed of trust against
the Premises (herein called "Landlord's Mortgagee") if Tenant has been made
aware of the name and address of such lender in writing. Notwithstanding
----------
anything to the contrary contained herein, Tenant will not exercise any
right to terminate this Lease because of a default by Landlord before
allowing such lender the opportunity to cure such default as provided in
subsection 19(d). This subsection will not be interpreted as creating or
broadening any right of Tenant to terminate this Lease because of a default
by Landlord.
29. RELOCATION
Landlord may, at Landlord's expense, relocate Tenant within the Building or
Property in space which is reasonably comparable in size to the Premises
and is reasonably suited for Tenant's use. If Landlord relocates Tenant,
Landlord shall reimburse Tenant for Tenant's reasonable out-of-pocket
expenses for moving Tenant's furniture, equipment and supplies from the
Premises to the relocation space and for reprinting Tenant's stationery of
the same quality and quantity as Tenant's stationery supply on hand
immediately before Landlord's notice to Tenant of the exercise of this
relocation right. Upon such relocation, the relocation space shall be
deemed to be the Premises and the terms of this Lease shall remain in full
force and shall apply to the relocation space.
30. PARKING
If there is a parking lot and/or parking garage associated or connected
with the Building, Landlord grants to Tenant the nonexclusive right of its
employees, agents, customers, invitees and licensees to park vehicles in
those areas of the Property designated by the Landlord as parking for the
Building, subject to such terms, conditions and regulations as Landlord may
adopt and modify from time to time relative to the parking areas. If Tenant
sublets any portion of the Premises or assigns any of its interest in this
Lease, then the parking spaces allocated to Tenant hereunder shall be
reduced to the extent the ratio between the rentable square feet of the
Premises and the parking spaces granted to Tenant hereunder exceeds the
Building standard ratio of 3 parking spaces per 1,000 rentable square feet
as established by Landlord from time to time.
31. MISCELLANEOUS
a. Landlord Transfer. Landlord may transfer, in whole or in part, the
------------------
Building and any of its rights under this Lease. If Landlord assigns its
rights under this Lease, then Landlord shall thereby be released from any
further obligations hereunder provided that the assignee assumes Landlord's
obligations under this Lease.
33
b. Landlord's Liability. The liability of Landlord to Tenant for any
----------------------
default by Landlord under the terms of this Lease shall be limited to
Tenant's actual direct, but not consequential, damages and shall be
recoverable only from the interest of Landlord in the Property. Landlord
and its directors, officers, partners, employees, agents, attorneys and
representatives shall not be personally liable for any deficiency and
Tenant agrees to look solely to Landlord's interest in the Property for
recovery of any judgment from Landlord, it being intended that Landlord
shall not be personally liable for any judgment or deficiency.
c. Brokerage. Landlord and Tenant each warrant to the other that it has
---------
not dealt with any broker or agent in connection with the negotiation or
execution of this Lease except Landlord's Broker (Colliers International)
and Tenant's Broker (Xxxxx & Xxxxx). Tenant and Landlord shall each
indemnify the other against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any broker or
agent claiming the same by, through, or under the indemnifying party.
Commissions payable to Tenant's Broker shall be paid by Landlord only if a
written commission agreement has been executed by and between Landlord and
such broker. Landlord shall be responsible for payment of all commissions
to Landlord's Broker.
d. Notices. All notices and other communications given pursuant to this
-------
Lease shall be in writing and shall be (i) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in Section 1 of
the Lease, (ii) hand delivered by local courier or national overnight
delivery service to the specified address, or (iii) sent by facsimile
transmission or telex followed by a confirmatory letter. All notices to
Landlord shall be delivered to the addresses set forth in Section 1 and to
Landlord's property management company at the address set forth in Section
2 and all notices to Tenant shall be to Tenant's address(es) set forth in
Section 1. Notice sent by certified mail, postage prepaid, shall be
effective three (3) business days after being deposited in the United
States Mail; notices sent by hand delivery or overnight courier shall be
effective upon delivery to the address specified herein and notices sent by
facsimile or telex shall be effective when and if actually received by the
individual to whom the notice is to be directed. The parties hereto may
change their addresses for notice or payment by giving notice thereof to
the other in conformity with this provision. In addition to the foregoing,
any written notice to Tenant shall be deemed received when delivered to the
Premises.
e. Severability. It is the parties intention that this Lease be
------------
enforceable and that it comply with all applicable laws. If any clause or
provision of this Lease is illegal, invalid, or unenforceable under present
or future laws, then the remainder of this Lease shall not be affected
thereby and in lieu of such clause or provision, there shall be added as a
part of this Lease a clause or provision as similar in terms to such
illegal, invalid, or unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
f. Amendments; and Binding Effect. This Lease may not be amended except
-------------------------------
by instrument in writing signed by Landlord and Tenant. No provision of
this Lease shall be deemed to have been waived by Landlord unless such
waiver is in writing signed by Landlord. The terms and conditions contained
in this Lease shall inure to the benefit of and be binding upon the parties
34
hereto, and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This Lease
is for the sole benefit of Landlord and Tenant, and, other than Landlord's
mortgagee, no third party shall be deemed a third party beneficiary hereof.
g. Tenant's Right of Possession. Provided Tenant has timely performed
-------------------------------
all of the terms and conditions of this Lease to be performed by Tenant,
Tenant shall peaceably and quietly hold and enjoy the Premises for the
Term, without hindrance from Landlord or any party claiming by, through, or
under Landlord, subject to the terms and conditions of this Lease.
h. Joint and Several Liability. If there is more than one Tenant, then
-----------------------------
the obligations hereunder imposed upon Tenant shall be joint and several.
If there is a guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord need not first
proceed against Tenant before proceeding against such guarantor nor shall
any such guarantor be released from its guaranty for any reason whatsoever.
I. Captions. The captions contained in this Lease are for convenience of
--------
reference only, and do not limit or enlarge the terms and conditions of
this Lease.
j. No Merger. There shall be no merger of the leasehold estate hereby
----------
created with the fee estate in the Premises or any part thereof if the same
person or entity acquires or holds, directly or indirectly, this Lease or
any interest in this Lease and the corresponding fee estate or any interest
in such fee estate.
k. No Offer. The submission of this Lease to Tenant shall not be
---------
construed as an offer, nor shall Tenant have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
l. Exhibits. All exhibits added and attachments attached hereto are
--------
incorporated herein by this reference.
Exhibit A - Legal Description
Exhibit B - Outline of Premises
Exhibit C - Building Rules and Regulations
Exhibit D - Landlord Services
Exhibit E - Tenant Improvements
m. Entire Agreement. This Lease constitutes the entire agreement between
----------------
Landlord and Tenant regarding the subject matter hereof and supersedes all
oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have
been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith.
35
n. Property Management. Landlord's Property Management Company is
--------------------
identified in Section 2 of the Lease. Landlord's Property Management
Company may be changed without notice to Tenant from time to time. Tenant
acknowledges that the Property Management Company is an independent
contractor hired by Landlord to operate the Property.
o. Choice of Law. This Lease shall be governed by the laws of the state
--------------
in which the Property is located and by the applicable laws of the United
States of America.
p. Construction and Interpretation. This Lease shall not be construed in
-------------------------------
favor of either Landlord or Tenant regardless of who prepared the same.
Whenever the terms "hereof," "hereby," "herein," or words of similar import
are used herein they shall be construed as referring to this Lease in its
entirety rather than to a particular section or provision. References to
Sections and Exhibits refer to the sections of, and exhibits to, this
Lease. Whenever the term "including" is used herein, it shall be
interpreted as meaning "including, but not limited to."
q. Waiver of Jury Trial. Landlord and Tenant waive the right to trial by
---------------------
jury in any action, proceeding or counterclaim involving any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises or involving the right to any statutory relief or remedy.
Tenant hereby waives the right to interpose any counterclaim of any nature
in any summary proceeding or other action or proceeding instituted by
Landlord against Tenant, or in any action instituted by Landlord for unpaid
Rent, Additional Rent or other amounts due under this Lease.
r. Use of Term "Tenant". The term "Tenant" wherever used in this Lease
---------------------
shall include its employees, agents, invitees, contractors, licensees,
partners, officers and shareholders.
32. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TENANT
Tenant represents, warrants and covenants that it is now in a solvent
condition; that no bankruptcy or insolvency proceedings are pending or
contemplated by or against Tenant or any guarantor of Tenant's obligations
under this Lease; that all reports, statements and other data furnished by
Tenant to Landlord in connection with this Lease are true and correct in
all material respects; that the execution and delivery of this Lease by
Tenant does not contravene, result in a breach of, or constitute a default
under any contract or agreement to which Tenant is a party or by which
Tenant may be bound and does not violate or contravene any law, order,
decree, rule or regulation to which Tenant is subject; and that there are
no judicial or administrative actions, suits, or proceedings pending or
threatened against or affecting Tenant or any guarantor of Tenant's
obligations under this Lease. If Tenant is a corporation, limited liability
company or partnership, each of the persons executing this Lease on behalf
of Tenant represents and warrants that Tenant is duly organized and
existing, is qualified to do business in the state in which the Premises
are located, has full right and authority to enter into this Lease, that
the persons signing on behalf of
36
Tenant are authorized to do so by appropriate corporate, company or
partnership action and that the terms, conditions and covenants in this
Lease are enforceable against Tenant. If Tenant is a corporation or limited
liability company, Tenant shall deliver certified resolutions to Landlord,
upon request, evidencing that the execution and delivery of this Lease has
been duly authorized and properly executed, and will deliver such other
evidence of existence, authority and good standing as Landlord shall
require.
33. ENVIRONMENTAL PROVISIONS
a. Terms defined below in this Section shall have the following meanings:
(i) "Applicable Environmental Laws" means all applicable federal,
state and other laws, ordinances, rules and regulations of any
governmental entity pertaining to health or the environment,
including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (as amended,
hereinafter called "CERCLA"), the Resource Conservation and Recovery
Act of 1976, as amended by the Used Oil Recycling act of 1980, the
Solid Waste Disposal Act Amendments of 1980, and the Hazardous and
Solid Waste Amendments of 1984 (as amended, hereinafter called
"RCRA").
(ii) "Expenses" means all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, proceedings, costs, expenses
(including reasonable attorneys' fees), costs of settlement and
disbursements of any kind and nature whatsoever.
(iii) "Hazardous substance" and "release" shall have the meanings
specified in CERCLA, and the terms "solid waste" and "disposal" (or
"disposed") shall have the meanings specified in RCRA; provided, in
the event either CERCLA or RCRA is amended so as to broaden the
meaning of any term defined thereby, such broader meaning shall apply
subsequent to the effective date of such amendment and provided
further, to the extent that the laws of the State of Nevada establish
a meaning for "hazardous substance", "release," "solid waste," or
"disposal" which is broader than that specified in either CERCLA or
RCRA, such broader meaning shall apply.
(iv) "Indemnified Party" means each of Landlord and any successors and
assigns as to all or any portion of the Property or any interest
therein, and any affiliate, officer, agent, director, employee or
servant of any of them.
b. Tenant warrants and represents that to Tenant's knowledge Tenant's
intended use of the Premises will not violate Applicable Environmental
Laws. Tenant shall not cause or permit the Property, the Premises or Tenant
to be in violation of, or do anything or permit anything to be done which
will subject the Landlord or the Premises or the Property to any remedial
obligations under any Applicable Environmental Laws, assuming disclosure to
the applicable governmental authorities of all relevant facts, conditions
and circumstances, if any, pertaining to the Premises, the Property and
Tenant. Tenant shall promptly notify Landlord in writing of any existing,
pending or, to the knowledge of Tenant, threatened investigation or inquiry
by any governmental
37
authority in connection with any violation of Applicable Environmental Laws
by Tenant or any person or entity acting through or on behalf of Tenant or
the Premises. Tenant shall take all steps necessary to determine during the
Term of this Lease that no hazardous substances or solid wastes are being
disposed of or otherwise released on or to or from the Property or the
Premises. Landlord may enter upon the Premises at any time and without
notice to verify compliance with this Section if Landlord believes in good
faith that a violation of this Section may have occurred or be threatened.
Any violation of this Section by Tenant shall constitute an Event of
Default under this Lease, which cannot be cured.
c. Tenant hereby agrees to assume liability for and to pay, indemnify,
protect and hold harmless every Indemnified Party from any and all Expenses
imposed, incurred or asserted (regardless of whether the Indemnified Party
shall be indemnified by any other person or entity) in any way relating to
or arising out of (a) a violation of Applicable Environmental Laws by
Tenant during the term of this Lease or during any period of holdover by
Tenant after the Term of the Lease, or (b) a disposal or other release of
any hazardous substance or solid waste on, to or from the Premises or the
Property by the Tenant during the term of the Lease or during any such
period of holdover. The Tenant acknowledges that it has been given ample
time to consult with counsel in agreeing to the indemnity set forth in this
Lease and fully understands it. This indemnity shall survive the
termination or expiration of this Lease. The foregoing indemnity shall not
render Tenant liable to any Indemnified Party for any Expenses to the
extent that such Indemnified Party may incur such Expenses as a result of
its own willful misconduct or negligence.
d. If an Indemnified Party notifies Tenant of any claim or notice of the
commencement of any action, administrative or legal proceeding, or
investigation as to which the indemnity may apply, Tenant shall assume on
behalf of the Indemnified Party and conduct with due diligence and in good
faith the defense thereof with counsel reasonably satisfactory to the
Indemnified Party; provided, that the Indemnified party shall have the
right to be represented therein by advisory counsel of its own selection
and at its own expense; and provided further, that if any such claim,
action, proceeding or investigation involves both Tenant and the
Indemnified Party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it which are different from,
additional to, or inconsistent with those available to Tenant, then the
Indemnified Party shall have the right to select separate counsel to
participate in the defense of such claim, action, proceeding or
investigation on its own behalf at Tenant's expense.
e. If any claim, action, proceeding or investigation arises as to which
the indemnity provided for may apply, and Tenant fails to assume promptly
(and in any event within ten (10) days after being notified of the claim,
action, proceeding or investigation) the defense of the Indemnified Party,
then the Indemnified Party may contest (or, with the prior written consent
of Tenant, settle) the claim, action, proceeding or investigation at
Tenant's expense using counsel selected by the Indemnified Party; provided,
that no such contest need be made by the Indemnified Party and settlement
or full payment of any claim may be made by the Indemnified Party without
38
Tenant's consent and without releasing Tenant from any obligations to the
Indemnified Party if, in the written opinion of the Indemnified Party's
counsel, the settlement or payment in full is advisable. All costs and
expenses incurred by the Indemnified Party in connection with any such
contest, settlement or payment shall be payable upon demand.
f. To the Landlord's best knowledge no hazardous substance exists in the
Premises that are in violation of Applicable Environmental Laws.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT EXPRESSLY
DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S
INTENDED COMMERCIAL PURPOSE.
EXECUTED as indicated below and effective on the latter of the dates indicated
below.
LANDLORD: Tomorrow 33 Convention, LP
a Delaware limited partnership
By: TFMGP 33 L.P., It's general partner
a Delaware limited partnership
its sole general partner
By: TFMGP 33 Corp., It's general partner
its general partner
By: _/s/ Xxxxxx X. Willoughby________
Xxxxxx X. Xxxxxxxxxx
Vice President
Date: 9/3/03
TENANT: Telco Billing, Inc
A Nevada Corporation
--------------------------------------------------------------------------------
39
By: /s/ Xxxxxx Xxxxx, pres
-----------------------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------------------------------------------
Title: President
--------------------------------------------------------------------------
Date: 8/29/03
-----
40
EXHIBIT "A"
LEGAL DESCRIPTION
-----------------
Parcel One (1):
That portion of the Southeast Quarter (SE 1/4) of Section 9, Township 21 South,
Range 61 East, M.D.B. & M., Xxxxx County, Nevada, being more particularly
described as follows:
Parcels One (1), Two (2) and Three (3) as shown on Parcel Map recorded October
14, 1980, at Page 69, File 32 of Parcel Maps, in the Office of the County
Recorder, Xxxxx County, Nevada.
Excepting therefrom that certain spandrel area lying within the Northwest Corner
thereof as conveyed to the County of Xxxxx, by Deed recorded March 6, 1981 as
Instrument/File No. 1324003 in Book 1365 of Official Records.
Parcel Two (2):
The West 100.00 feet of that portion of the Southeast Quarter (SE 1/4) of
Section 9, Township 21 South, Range 61 East, M.D.M., Xxxxx County, Nevada,
described as follows:
Commencing at the Southeast Corner of said Section 9;
Thence North 4 39' 07" West along the East line thereof, a distance of 702.78
feet to a point;
Thence North 89 02' 13" West, a distance of 258.90 feet to a point;
Thence North 0 11' 20" East, East 235.02 feet to a point;
Thence North 89 21' 40" West, a distance of 1337.25 feet to the Northwest
Corner of that certain parcel of land conveyed by Vegas Valley Development Co.,
Ltd., to Xxxxxxxx X. Xxxxx and X. X. Xxxxx, by Deed recorded December 4, 1951 as
Instrument/File No. 378222,Xxxxx County, Nevada, being the True Point of
Beginning;
Thence South 2 51' East, a distance of 277.06 feet to the Southwest Corner of
the said conveyed parcel;
Thence South 88 56' East along the South line of the said conveyed parcel, a
distance of 337.30 feet to a point;
Thence Northerly, a distance of 279.70 feet, more or less, to a point on the
North line of said conveyed parcel, distant thereon South 89 21' 40" East,
340.00 feet from the Northwest Corner thereof;
Thence North 89 21' 40" West, a distance of 340.00 feet to the True Point of
Beginning.
Assessor's Parcel No: 162-09-805-001,002,004 & 007
41
EXHIBIT "B"
OUTLINE OF PREMISES
-------------------
[GRAPHIC OMITED]
000 XXXXXXXXX XXXXXX XXXXX
--------------------------
L E V E L T E N
42
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
------------------------------
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas shall
not be obstructed by tenants or their officers, agents, contractors, invitees,
servants, and employees, or used for any purpose other than ingress and egress
to and from their respective leased premises and for going from one part of the
Building or Property to another part of the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which constructed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Any stoppage or damage resulting to any such
fixtures or appliances from misuse on the part of a tenant or such tenant's
officers, agents, contractors, invitees, servants, and employees shall be paid
by such tenant.
3. No signs, posters, advertisements, or notices shall be painted or affixed
by or on behalf of any tenant on any of the windows or doors, or other part of
the Building or Property, except lettering of such color, size and style and in
such places, as shall be first approved in writing by the Landlord's Property
Manager. No nails, hooks or screws shall be driven into or inserted in any part
of the Building, except by building maintenance personnel.
4. Directories may be placed by the Landlord, at Landlord's own expense, in
conspicuous places in the Building or on the Property. No other directories
shall be permitted.
5. Tenants shall not do anything, or permit anything to be done, in or about
the Property, or bring or keep anything therein or thereon, that will in any way
increase the possibility of fire or other casualty or obstruct or interfere with
the rights of, or otherwise injure or annoy, other tenants, or do anything in
conflict with the valid pertinent laws, rules or regulations of any governmental
authority.
6. Corridor doors, when not in use, shall be kept closed.
7. All deliveries of furniture, freight, office-equipment or other materials
for dispatch or receipt by Tenant must be made by licensed commercial movers via
the service entrance of the Building in a manner and during hours set by
Landlord from time to time. Prior approval must be obtained from the Landlord's
Property Manager for any deliveries that might interfere with the free movement
of others through the public corridors of the Building. All hand trucks shall
be equipped with rubber tires and rubber side guards.
8. Each tenant shall cooperate with Building employees in keeping the
Property, Building and their respective Premises neat and clean.
43
9. Nothing shall be swept or thrown into the corridors, halls, elevator shafts
or stairways. No birds or animals shall be brought into or kept in or about the
Property or Building.
10. Should a tenant require telegraphic, telephonic, annunciator or any other
communication service, the Landlord will direct the electricians and installers
where and how the wires are to be introduced and placed, and none shall be
introduced or placed except as the Landlord shall direct.
11. Tenants shall not make or permit any unseemly, disturbing or improper
noises in the Property or Building, or otherwise interfere in any way with other
tenants, or persons having business with them.
12. No equipment of any kind shall be operated in any tenant's leased premises
that could in any way annoy any other tenant in the Building without the prior
written consent of the Landlord.
13. Tenants shall not use or keep on the Property or in the Building any
inflammable or explosive fluid or substance, or any illuminating material,
unless it is battery powered, UL approved.
14. Tenant and Tenant's employees, or agents, or anyone else who desires to
enter the Building after normal working hours will be required to close doors
into the Building behind them. Locks to such doors will not be tampered with.
15. All electrical fixtures hung in the Premises must be fluorescent or can
------
lighting and of a quality, type, design, bulb color, size and general appearance
--------
approved by Landlord.
16. No water (swamp) cooler, air conditioning unit, space heater or system or
---------------------
other apparatus shall be installed or used by a tenant without the prior written
consent of Landlord.
17. Normal business hours for the Building shall be 7:00 a.m. through 6:00 p.m.
on weekdays, excluding legal holidays.
18. References to "holidays" and "legal holidays" in the leases to tenants in
the Building shall include the following:
January 1st. . . . . . . . . . . . . New Year's Day
Last Monday in May . . . . . . . . . Memorial Day
July 4th . . . . . . . . . . . . Independence Day
First Monday in September . . . . . . . . Labor Day
Fourth Thursday in November . . . . . Thanksgiving
44
December 25th . . . . . . . . . . . . . . Christmas
19. The Landlord reserves the right to rescind any of these rules (as to any
particular tenant or as to all tenants generally) and to make such other and
further rules and regulations as in the judgment of Landlord shall from time to
time be needed for the safety, protection, care and cleanliness of the Property
and Building, the operation thereof, the preservation of good order therein, and
the protection and comfort of its tenants, their agents, employees and invitees,
which rules when made and notice thereof given to a tenant shall be binding upon
such tenant in like manner as if originally herein prescribed. In the event of
any conflict, inconsistency, or other difference between the terms and
provisions of these Rules and Regulations (as now or hereafter in effect) and
the terms and provisions of any lease now or hereafter in effect between
Landlord and any tenant in the Building, Landlord shall have the right to rely
on the term or provision in either such lease or such Rules and Regulations
which is most restrictive on such tenant.
45
EXHIBIT "D"
LANDLORD'S SERVICES
-------------------
The following services will be provided by Landlord:
1. water (hot and cold) at those points of supply provided for general use of
tenants of the Building;
2. heated and refrigerated air conditioning as appropriate, at such
temperatures and in such amounts as are reasonably considered by Landlord to be
standard office conditions for the Building, from 7:00 a.m. to 6:00 p.m., Monday
through Friday, and from 8:00 a.m. to 1:00 p.m. on Saturdays;
3. janitorial service to the Premises on weekdays other than holidays for
Building-standard installations (Landlord reserves the right to xxxx Tenant
separately for extra janitorial service required for non-standard installations)
and such window washing as may from time to time in Landlord's judgment be
reasonably required;
4. elevators for ingress and egress to the floor on which the Premises are
located, in common with other tenants, provided that Landlord may reasonably
limit the number of elevators to be in operation at times other than during
customary business hours and on holidays;
5. replacement of ballasts and fluorescent tubes in building-standard ceiling
mounted fixtures installed by Landlord and incandescent bulb replacement in all
public areas of the Building;
6. electrical current during normal business hours other than for computers,
electronic data processing equipment, special lighting and equipment that
requires more than 110 volts, or other equipment whose electrical energy
consumption exceeds normal office usage;
7. landscaping; and
8. snow and ice removal from primary ingress, egress and parking areas
46
EXHIBIT "E"
TENANT FINISH: ALLOWANCE
------------------------
1. Except as set forth in this Exhibit, Tenant accepts the Premises in its "as
is" condition on the date that this Lease is entered into.
2. Landlord agrees to clean the premises of all debris, have the carpets
professionally cleaned, and repair minor defects in all walls, and touch-up said
defects with paint. Landlord will use its best efforts to match the paint color
as close as possible.
3. Landlord shall provide to Tenant a construction allowance ("Construction
Allowance") equal to the lesser of (a) $3,591.00 ($1.00 /rentable square foot)
----------------------------------------
or (b) the Total Construction Costs, as adjusted for any approved changes to the
Drawings; however, if Tenant or its agent is managing the performance of the
work, then Tenant shall not become entitled to full credit for the Construction
Allowance until Tenant has caused to be delivered to Landlord (i) all invoices
from contractors, subcontractors, and suppliers evidencing the cost of
performing the work, together with lien waivers from such parties, and a consent
of the surety to the finished Improvements (if applicable) and (ii) a
certificate of occupancy from the appropriate governmental authority, if
applicable, and evidence of governmental inspection and approval of the
Improvements, if applicable.
47
GUARANTY
--------
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in consideration for, and as an inducement to
Landlord to make the attached Lease with Tenant dated September _3__, 2003
by and between Tomorrow 33 Convention, LP and Telco Billing, Inc, the
undersigned does hereby guarantee to Landlord, without condition or
limitations except as hereinafter provided, the payment of Rent and
Additional Rent to be paid by the Tenant and the full performance and
observance of all the terms, covenants and conditions therein provided to
be performed, observed or complied with by Tenant, including the Rules and
Regulations as therein provided, without requiring any notice of
non-payment, non-performance or non-observance, or proof, or notice, or
demand, whereby to charge the undersigned therefor, all of which the
undersigned hereby expressly waives and expressly agrees that the validity
of this guaranty and the obligations of the guarantor hereunder shall in no
way be terminated, affected or impaired by reason of the assertion by
Landlord against Tenant of any of the rights or remedies reserved to
Landlord pursuant to the provisions of the attached Lease. Landlord may
grant extensions of time and other indulgences and may modify, amend or
waive any of the terms, covenants or conditions of the attached lease, and
discharge or release any party or parties thereto, all without notice to
the undersigned and without in any way impairing, releasing or affecting
the liability or obligation of the undersigned. Each of the undersigned
agrees that Landlord may proceed directly against the undersigned without
taking any action under the attached Lease and without exhausting Landlord
remedies against Tenant; and no discharge of Tenant in bankruptcy or in any
other insolvency proceedings shall in any way or to any extent discharge or
release the undersigned from any liability or obligation hereunder. The
undersigned further covenants and agrees that this guaranty shall remain
and continue in full force and effect as to any renewal, modification or
extension of the attached Lease, and that no subletting and no assignment
of the within Lease, with or without Landlord's consent thereto, shall
release or discharge the undersigned. As a further inducement to Landlord
to make the within Lease and in consideration therefor, the undersigned
agrees that in any action or proceeding brought by either Landlord or the
undersigned against the other on any matter whatsoever arising out of,
under, or by virtue of any of the terms, covenants or conditions of the
attached Lease or of this guaranty, the undersigned shall pay, in addition
to any damages which a court of competent jurisdiction may award, such
amount or amounts as the court may determine to be reasonable attorneys'
fees incurred by Landlord or its successors or assigns in the enforcement
of this guaranty. All rights under this guaranty shall inure to the benefit
of any successors or assigns of Landlord.
This Guaranty relates to that certain Lease, dated _Sept 3__, 2003, covering
Premises located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000/0000, Xxx Xxxxx, Xxxxxx
00000.
IN WITNESS WHEREOF, the undersigned has signed this Guaranty as of the ___ of
____________, 200__.
48
Guarantor: XX.XXX, Inc,
a __Nevada______ corporation
By:__/s/ Xxxxxx Xxxxx, pres
its:_President, Chairman
(Title)
Date:___8/29/03__________
____88-0391858___________
Employer Identification Number
ACKNOWLEDGEMENT OF LEASE COMMENCEMENT
-------------------------------------
The undersigned parties acknowledge that the following described Lease Agreement
is in full force and effect and that Tenant has taken possession of the demised
Premises.
Date of Lease:
----------------------------
Landlord:
----------------------------
Tenant:
----------------------------
Building Name:
----------------------------
Suite Number:
----------------------------
The undersigned parties acknowledge that the Commencement Date and the
expiration date of the initial Lease term as defined in Paragraph ____ of the
above referenced Lease Agreement is as follows:
49
Commencement: ___9/1/03___________________
Expiration: ___9/30/06__________________
The undersigned parties further acknowledge that the above referenced Lease
Agreement has not been amended or modified and all terms and provisions remain
in full force and effect.
LANDLORD:
-------------------------------------
By _________________, General Partner
By: ________________________
Xxxxxx X. Xxxxxxxxxx
Vice President
Date:________________________
TENANT:
_/s/ Xxxxxx Tullo____________
By:__President_______________
(Title)
Date:__8/29/03_______________
50
