EXHIBIT 10.5
STATE FARM PLAZA LEASE
ARTICLE I. PREMISES
SECTION 1.01 PREMISES DEFINED.
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those
certain premises (the "Premises") in the State Farm Plaza (the "Shopping
Center") in Pahrump, County of Xxx, State of Nevada, which Shopping Center and
Premises are more particularly described in Exhibits "A" and "B" attached
hereto, for the term, at the rental, and upon all of the conditions and
agreements set forth herein.
ARTICLE II. TERM
SECTION 2.01 LENGTH OF TERM AND COMMENCEMENT DATE.
(a) The term of this Lease shall be for the period specified as the Term in
the Basic Lease Provisions commencing on the Commencement Date and
expiring at the end of such Term (unless sooner terminated pursuant to the
provisions hereof) specified in the Basic Lease Provisions. Tenant agrees
to accept possession of the Premises when tendered by Landlord and to open
for business in the Premises promptly thereafter. Notwithstanding the
foregoing, Tenant's obligation to pay rent hereunder shall commence on the
earlier of the following dates: (i) The date which is thirty (30) days
after Certificate of Occupancy has been issued; however, it shall not
exceed 90 days from the date of notice Landlord gives written notice to
Tenant that Landlord's work in the Premises as described in Article XVII
is substantially completed and the Premises are ready for Tenant's work
and the installation of Tenant's fixtures and equipment; or (ii) the date
on which Tenant opens for business in the Premises.
(b) If Landlord is unable, for any reason whatsoever, to deliver possession of
the Premises to Tenant on the Commencement Date, with Landlord's work as
described in Article XVII substantially completed, this Lease shall not be
void or voidable for a period of six (6) months thereafter, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom,
but all rent due hereunder shall xxxxx until Landlord delivers possession
of the Premises to Tenant. If Landlord is unable to deliver possession of
the Premises to Tenant with Landlord's work substantially completed within
six (6) months after Commencement Date, this Lease may be canceled by
either Landlord or Tenant by written notice to the other prior to the date
possession is delivered to Tenant. If this Lease is canceled under this
subparagraph, Landlord shall refund any security deposit paid by Tenant
upon execution of this Lease, but neither party shall have any further
liability to the other hereunder.
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ARTICLE III. RENT
SECTION 3.01 FIXED MINIMUM RENT.
Tenant shall pay the Landlord for each full calendar month during the Lease Term
a Fixed Minimum as stated in the Basic Lease Provisions. Fixed Minimum Rent
shall be payable in advance upon the first day of each calendar month without
any deduction or offset. The Fixed Minimum Rent for any fractional part of a
calendar month at the beginning or end of the Lease Term shall be a
proportionate part of the Fixed Minimum Rent for a full calendar month.
SECTION 3.02 DEFINITION OF LEASE YEAR.
The term "Lease Year" as used herein shall mean each calendar year during the
term of this Lease, except that the first Lease shall commence on the
Commencement Date and the last Lease shall end upon the expiration, or sooner
termination, of this Lease.
SECTION 3.03 ADJUSTMENT TO FIXED MINIMUM RENT.
The Fixed Minimum Rent provided for herein shall be adjusted at the end of the
first, second, and third Lease Year by Three Percent (3%) and (3%) or CPI for
the prior year, in years four and five whichever is greater.
(a) LATE PAYMENTS. If Tenant fails to pay when the same is due and payable any
Minimum Annual Rental or Additional Rental, the unpaid amounts shall bear
interest at the maximum lawful rate from the date due to the date of
payment. In addition, Tenant acknowledges that the late payment of any
installment of Minimum Annual Rental or Additional Rental will cause
Landlord to incur certain costs and expenses not contemplated under this
Lease, the exact amount of which are extremely difficult or impractical to
fix. These costs and expenses will include, without limitation,
administrative and collection costs and processing and accounting
expenses. Therefore, within five (5) days after the installment is due,
Tenant shall immediately pay to Landlord a late charge equal to Fifty
dollars ($50.00) a week for each item of Additional Rental and Minimum
Annual Rental due. Landlord and Tenant agree that this late charge
represents a reasonable estimate of the costs and expenses and is fair
compensation to Landlord for its loss.
ARTICLE IV. TAXES
SECTION 4.01 REAL PROPERTY TAXES
Paid by Landlord, reimbursed by Common Area Maintenance funds.
SECTION 4.02 DEFINITIONS.
(a) The term "real property taxes" shall include all taxes, assessments and
governmental charges levied upon with respect to the real property and
improvements, or any future tax levied in lieu of real property taxes,
within the Shopping Center, other than the portions thereof defined below
in Section 13.01 as "common areas", and any tax or excise on rents
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or any other tax, however described, levied against Landlord on account of
the rent reserved hereunder or on the business of renting space in the
(b) Shopping Center or any other tax, or such other costs and fees incurred by
Landlord in contesting all taxes and/or negotiating with any public
authorities with respect thereto; provided, however, that the term "real
property taxes" shall not include any franchise, estate, inheritance,
succession, capital levy, net income or excess profits taxes imposed upon
Landlord.
(c) The term "real property taxes applicable to the Premises" shall mean, if
the Premises are not separately assessed:
(d) (i) That portion of the real property taxes assessed against the land
which the gross floor area of the Premises bears to the gross leaseable
floor area of all improvements within the Shopping Center not separately
assessed; plus
(e) That portion of the real property taxes assessed against the improvements
within the Shopping Center not separately assessed which the valuation
assigned by the taxing authorities to the improvements constituting the
Premises bears to the valuation so assigned to all the improvements within
the Shopping Center not separately assessed. If such separate valuations
are not reasonably available to Landlord, then the reasonable
determination by Landlord, in good faith, from the best information
reasonably available to it, of the proportion of the real property taxes
assessed the improvements which are attributable to the improvements
constituting the Premises shall be conclusive for the purpose of this
Article.
SECTION 4.03 PERSONAL PROPERTY TAXES.
Tenant shall pay before delinquency all personal taxes and assessments on the
furniture, fixtures, equipment and other property of Tenant located in the
Premises and on additional improvements in the Premises belonging to Tenant.
ARTICLE V. CONDUCT OF BUSINESS BY TENANT
SECTION 5.01 USE OF PREMISES.
(a) Tenant shall use the Premises for the purpose stated in the Basic Lease
Provisions. In addition, Tenant further covenants and agrees that it will
not use or suffer or permit any person or persons to use the Premises or
any part thereof in violation of the laws of the United States of America
or the laws, ordinances, regulations and requirements of the State, County
and City where the Shopping Center is situated, or other lawful
authorities. Tenant shall continuously and uninterruptedly during the term
hereof conduct its business activity in the Premises during all business
hours usual for Tenant's type of business, but in any event during those
hours set forth in the Specific Plan Development, attached to this Lease,
unless Tenant is prevented from doing so by strike, fire or other cause
beyond Tenant's reasonable control, and except during reasonable periods
for repairing, cleaning and decorating the Premises. Tenant shall employ
its best judgment, efforts and abilities to operate the business conducted
by it in the Premises in such manner as to produce the
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maximum profitable volume of sales reasonably obtainable and to enhance
the reputation and attractiveness of the Shopping Center.
SECTION 5.02 RESTRICTIONS OF USE.
(a) Tenant shall not use or permit the Premises to be used for any purpose
other than that set forth in Section 5.01, and shall comply promptly with
all applicable statutes, ordinances, rules, regulations, orders and
requirements regulating the use by Tenant of the Premises. Tenant shall
not use or permit the use of the Premises in any manner that will tend to
create a nuisance or tend to disturb other tenants or occupants of the
Shopping Center or tend to injure the reputation of the Shopping Center.
No auction, fire sale or bankruptcy may be conducted in the Premises
without the written consent of Landlord, which may be withheld at
Landlord's sole discretion.
(b) Tenant shall comply at all times with the Rules and Regulations attached
to this Lease and such amendments and modifications thereof and additions
thereto as Landlord may from time to time reasonably adopt for the safety,
care and cleanliness of the Shopping Center for the preservation of good
order therein. Landlord shall not be liable to Tenant for the failure of
any tenant or other person to comply with such Rules and Regulations.
ARTICLE VI. MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 6.01 LANDLORDS' OBLIGATIONS.
(a) Subject to the provisions of Article VIII hereof, Landlord shall, during
the term of this Lease, keep in first-class order, condition and repair,
the foundations, exterior walls (excluding the interior surface of
exterior walls and excluding all windows, doors, plate glass and
showcases), downspouts, gutters and roof of the Premises, except for any
damage thereto caused by any negligent act or omission of Tenant or its
agents, employees or invitees, and except for reasonable wear and tear
provided, however, that Landlord shall have no obligation to repair, until
a reasonable time after the receipt by Landlord of written notice of the
need for repairs. Tenant shall not make repairs at Landlord's expense.
Notwithstanding anything to the contrary in this Lease, there is reserved
to Landlord the use of the exterior walls and roof and the right to
install, maintain, use, repair and replace pipes, ducts, conduits and
wires through the Premises in locations which will not materially
interfere with Tenant's use thereof. Mechanical malfunction not caused by
Tenant -- owner's responsibility for all functions, heating, air
conditioning, and plumbing.
SECTION 6.02 TENANT'S OBLIGATIONS.
(a) Subject to the provisions of Article VIII hereof and Section 6.01 of this
Article VI, Tenant shall during the term of this Lease keep in first-class
order, condition and repair the Premises and every part thereof,
including, without limiting the generality of the foregoing, all plumbing,
heating, air conditioning, ventilating, electrical and lighting facilities
and equipment within the Premises, fixtures, interior walls and interior
surface of exterior walls, ceilings, windows, doors, plate glass,
showcases, skylights, entrances and vestibules located within the
Premises. Tenant shall paint the interior walls and
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interior surface of exterior walls as often as may be required to keep the
Premises neat and attractive.
(b) If tenant fails to perform its obligations under this Section 6.02,
Landlord may at its option, after five (5) days' written notice to Tenant,
enter upon the Premises and put the same in good order, condition and
repair and the cost thereof shall become due and payable as additional
rent by Tenant to Landlord upon demand.
(c) On the last day of the term hereof, or on any sooner termination, Tenant
shall surrender the Premises to Landlord in the same condition as when
received, ordinary wear and tear and damage by fire, the elements or any
other cause beyond the control of Tenant is expected.
SECTION 6.03 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without the prior written consent of Landlord, which
consent shall not unreasonably be withheld, make any alterations,
improvements or additions to either the interior or exterior of the
Premises or to fixtures installed therein in accordance with approved
fixture plans, or xxxx, paint, drill or in any way deface any portion of
the Premises.
(b) All alterations, improvements, additions or fixtures, other than trade
fixtures not permanently affixed to the Premises, which may be made or
installed in the Premises and which are attached to the floor, wall or
ceiling of the Premises, shall be the property of Landlord and, at the
termination of this Lease shall remain upon and be surrendered with the
Premises. My floor covering which is cemented or otherwise affixed to the
floor of the Premises shall be the property of Landlord. Stoves, sinks, or
work tables shall be exempt provided mortgages securing said items are
paid in full, and tenant is not in violation of said lease.
SECTION 6.04 LANDLORD'S RIGHT OF ACCESS.
Landlord and its agents shall have free access to the Premises during all
reasonable hours for the purpose of examining the same to ascertain if they are
in good repair, making reasonable repairs which Landlord may be required or
permitted to make hereunder and exhibiting the same to prospective purchasers or
tenants.
SECTION 6.05 CLEANLINESS; WASTE AND NUISANCE.
Tenant shall keep the Premises at all times in a neat, clean and sanitary
condition, shall neither commit nor permit any waste or nuisance thereon, and
shall keep the walks and corridors adjacent thereto free from Tenant's waste or
debris.
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ARTICLE VII. INSURANCE; INDEMNITY
SECTION 7.01 LIABILITY INSURANCE -- PREMISES
Tenant shall at all times during the term hereof and at its cost and expense,
maintain in effect workmen's compensation insurance and bodily injury liability
and property damage liability insurance adequate to protect Landlord and naming
Landlord as an insured in the liability contract, against liability for injury
to or death of any person in connection with the use, operation or condition of
the Premises, in an amount not less than One Million Dollars ($1,000,000) for
injury to or death of one person in any one accident or occurrence and in an
amount not less than One Million Dollars ($1,000,000) for injury to or death to
more than one person in any one accident or occurrence and against liability for
damage to property in the amount of One Hundred Thousand Dollars ($100,000) for
each accident or occurrence. In no event shall the limits of said policies be
considered as limiting the liability of Tenant under this Lease.
SECTION 7.02 FIRE INSURANCE -- FIXTURES AND EQUIPMENT
(a) Tenant shall at all times during the term hereof, and at its cost and
expense, maintain in effect policies of insurance covering its fixtures
and equipment located on the Premises, in an amount not less than eighty
percent (80%) of their actual cash value, providing protection against any
peril included within the classification "Fire and Extended Coverage,"
together with insurance against sprinkler damage, vandalism and malicious
mischief Tenant shall repair plate glass.
(b) The proceeds of such insurance, so long as this Lease remains in effect,
shall be used or replace the fixtures, equipment and plate glass so
insured.
SECTION 7.03 FIRE INSURANCE -- PREMISES; RENT ABATEMENT INSURANCE.
Landlord shall at all times during the term hereof maintain in effect a policy
or policies of insurance covering the Premises, providing protection against any
peril included within the classification "Fire and Extended Coverage," together
with insurance against sprinkler damage, vandalism, malicious mischief,
earthquake damage and abatement or loss of rent in case of said insured
casualties. Such insurance shall be paid for in accordance with Section 6.01
hereof and reimbursed by Common Area Maintenance funds.
SECTION 7.04 INSURANCE POLICIES.
All insurance required to be carried by Tenant hereunder shall be in companies,
on forms and with loss payable clauses satisfactory to Landlord and copies of
policies of such insurance or certificates evidencing such insurance shall be
delivered to Landlord by Tenant. No such policy shall be cancelable except after
ten (10) days' written notice to Landlord.
SECTION 7.05 WAIVER.
Landlord and Tenant each hereby waives any and all rights of recovery against
the other or against any other tenant or occupant of the Shopping Center or
against the officers, employees,
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agents, representatives, customers and business visitors of such other party or
of such other tenant or occupant of the Shopping Center, for loss of or damage
to such waiving party of its property or the property of others under its
control, arising from any cause insured against under the standard form of fire
insurance policy with all permissible extension endorsements covering additional
perils or under any other policy of insurance carried by such waiving party in
lieu thereof Tenant shall obtain and furnish evidence to Landlord of the waiver
by Tenant's workmen's compensation carrier of any right of subrogation against
Landlord.
SECTION 7.06 INDEMNITY.
Landlord agrees to defend, indemnify and hold Tenant harmless from and against
any claims, fines, penalties, suits or judgments arising out of, or in
connection with the negligent acts or omissions caused by Landlord, its
employees, servants, agents, licensees, or contractors and Landlord shall
further defend, indemnify and hold harmless Landlord from and against any and
all claims, fines, penalties, suits or judgments arising out of, or in
connection with any breach, violation or non performance by landlord, its
employees, agents, licensees, or contractors, with respect to the Lease
Agreement hereof.
Tenant agrees to defend, indemnify and hold Landlord harmless from and against
any claims, fines, penalties, suits or judgments arising out of, or in
connection with the negligent act or omissions caused by Tenant, its employees,
servants, agents, licensees, or contractors and Tenant shall further defend,
indemnify and hold harmless Tenant from and against any and all claims, fines,
penalties, suits or judgments arising out of, or in connection with any breach,
violation or non performance by Tenant, its employees, agents, licensees, or
contractors, with respect to the Lease Agreement hereof
SECTION 7.07 EXEMPTION OF LANDLORD
Landlord shall not be liable for injury or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its employees, invitees
or customers or any other persons in or about the Premises caused or resulting
from fire, steam, electricity, gas, water or rain, which may leak or flow from
or into any part of the premises, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures of the same, whether the said damage or injury
results from conditions arising upon the Premises or upon other portions of the
building of which the Premises are a part, or from other sources unless caused
by Landlord's negligence. Landlord shall not be liable for any damages arising
from any act or neglect of any other tenant of the Shopping Center.
ARTICLE VIII. REPAIRS AND RESTORATION
SECTION 8.01 INSURED OR MINOR DAMAGE
Subject to the provisions of Section 8.03, if at any time during the term hereof
the Premises are destroyed or damaged and either (a) such damage is not
"substantial" as that term is hereinafter defined, or (b) such damage was caused
by a casualty required to be insured against under Section 7.03, then Landlord
shall commence the repair of such damage within ninety (90) days
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following the date of such damage at Landlord's expense and this Lease shall
continue in full force and effect.
SECTION 8.02 MAJOR DAMAGE.
Subject to the provisions of Section 8.03, if at any time during the term hereof
the Premises are destroyed or damaged and if such damage is "substantial" as
that term is hereinafter defined, and if such damage was caused by a casualty
not required to be insured against under Section 7.03, then Landlord may at its
option either (a) commence the repair of such damage within ninety (90) days
following the date of such change at Landlord's expense, in which event this
Lease shall continue in full force and effect, or (b) cancel and terminate this
Lease as of the date of the occurrence of such damage, by giving Tenant written
notice of its election to do so within sixty (60) days after the date of
occurrence of such damage.
SECTION 8.03 DAMAGE NEAR END OF TERM.
If the Premises are destroyed or damaged during the last eighteen (18) months of
the term of this Lease and the estimated cost of repair exceeds the Fixed
Minimum Rent then remaining to be paid by Tenant for the balance of the term,
Landlord may at its option cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Tenant of its election to
do so within thirty (30) days after the date of occurrence of such damage. If
Landlord shall not elect to terminate this Lease, the repair of such damage
shall be governed by Section 8.01 or Section 8.02, as the case may be.
SECTION 8.04 ABATEMENT OF RENT; TENANTS' REMEDIES.
(a) If the Premises are destroyed or damaged and Landlord repairs or restores
them pursuant to the provisions of this Article, Tenant shall continue the
operation of its business in the Premises to the extent reasonably
practicable from the standpoint of prudent business management, and the
Fixed Minimum Rent payable hereunder for the period during which such
damage, repair or restoration continues shall be abated in proportion to
the degree to which Tenant's use of the Premises is impaired, but only to
the extent of any proceeds received by Landlord from the rent abatement
insurance described in Section 7.03 hereinabove. There shall be no
abatement of the Percentage Rent payable, hereunder, and Tenant shall have
no claim against Landlord for any damage suffered by Tenant by reason of
such damage, destruction, repair or restoration.
(b) If Landlord shall be obligated to repair or restore the Premises under the
provisions of this Article and shall not commence such repair or
restoration within (90) days after such obligation shall accrue, Tenant
may at its option cancel and terminate this Lease, as its sole and
exclusive remedy against Landlord, as of the date of occurrence of such
damage by giving Landlord prior written notice of its election to do so at
the commencement of such repair or restoration.
SECTION 8.05 RECONSTRUCTION OF IMPROVEMENTS
In the event of any reconstruction of the Premises under this Article VIII, said
reconstruction shall bring the property to the condition existing prior to the
installation of any of the Tenant's
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furnishings and equipment. Tenant shall commence the installation of fixtures,
equipment and merchandise hereof promptly upon delivery to the Premises and
shall diligently prosecute such installation of completion.
SECTION 8.06 TERMINATION.
Upon any termination of this Lease under any of the provisions of this Article,
the parties shall be released thereby without further obligations to the other
party coincident with the surrender of possession of the Premises to the
Landlord except for items which have theretofore accrued and be then unpaid. In
the event of termination for reason of damage by fire or other perils covered by
Tenant's Fire and Extended Coverage insurance under Section 7.02 (a), all such
proceeds covering the items specified as "Tenant Work" and Tenant's leasehold
improvements, but excluding proceeds for trade fixtures, merchandise, signs and
other personal property, shall be disbursed and paid to the Landlord.
SECTION 8.07 WAIVER
With respect to any partial or total destruction which Landlord is obligated to
restore or may restore under any of the provisions of this Lease, the provisions
"given to Tenant by Statute" are hereby waived by Tenant.
SECTION 8.08 DEFINITIONS.
(a) For the purpose of this Article, "substantial" damage to Premises shall be
deemed to be damage, the estimated cost of repair of which exceeds
one-fifth (1/5) of the then estimated replacement cost of the building of
which the Premises are a part.
(b) The determination in good faith by Landlord of the estimated cost of
repair of any damage and/or of the estimated replacement cost of any
building shall be conclusive for the purpose of this Article.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.01 LANDLORD'S CONSENT REQUIRED.
Tenant shall not voluntarily or by operation of law assign, transfer, mortgage
or otherwise encumber all or any part of Tenant's interest in this Lease or in
the Premises, and shall not sublet all or any part of the Premises, without the
prior written consent of Landlord in each instance, which consent shall not be
unreasonably withheld and any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall, at the option of Landlord,
constitute grounds for termination of this Lease.
SECTION 9.02 NO RELEASE OF TENANT.
No subletting or assignment, unless the consent of Landlord, given in writing,
which shall not be unreasonably withheld, shall relieve Tenant of its obligation
to pay the rent and to perform all of the other obligations to be performed by
Tenant hereunder. The acceptance of rent by Landlord
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from any other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any assignment or subletting.
SECTION 9.03 WRITTEN INSTRUMENT.
Each subletting or assignment to which Landlord has consented shall be by an
instrument in writing in form satisfactory to Landlord, and shall be executed by
the sublessor or assignor and by the sublessee or assignee in each instance, as
the case may be, and each sublessee or assignee shall agree in writing for the
benefit of the Landlord herein to assume, to be bound by, and to perform the
terms, covenants, and conditions of this Lease to be done, kept and performed by
the Tenant. One executed copy of such written instrument shall be delivered to
the Landlord. Tenant agrees to reimburse Landlord for Landlord's reasonable
attorney's fees and such other reasonable charges which Landlord incurs or
causes to be incurred in conjunction with the processing and documentation of
any such requested subletting or assignment of this Lease or Tenant's interest
in and to the Premises.
ARTICLE X. EMINENT DOMAIN
SECTION 10.01 ENTIRE OR SUBSTANTIAL TAKING.
If the entire Premises, or so much thereof as to make the balance not reasonably
adequate for the conduct of Tenant's business notwithstanding restoration by
Landlord as hereinafter provided, shall be taken under the power of Eminent
Domain, this Lease shall automatically terminate as of the date on which the
condemning authority takes possession.
SECTION 10.02 PARTIAL TAKING.
In the event of any taking under the power of eminent domain which does not so
result in a termination of this Lease, the Fixed Minimum Rental payable
hereunder shall be reduced, effective as of the date on which the condemning
authority takes possession, in the same proportion which the floor area of the
portion of the Premises taken bears to the floor area of the entire Premises
prior to the taking. Landlord shall promptly at its expense as near its Lease
shall restore the portion not so taken to as near its former condition as is
reasonably possible and this Lease shall continue in full force and effect.
SECTION 10.03 AWARDS.
Any award for any taking of all or any part of the premises under the power of
eminent domain shall be the property of Landlord, whether such award shall be
made as compensation for diminution in value of the leasehold or for taking of
the fee. Nothing contained herein, however, shall be deemed to preclude Tenant
from obtaining or to give Landlord any interest in, any award to Tenant for loss
of or damage to Tenant's trade fixtures and removable personal property or for
damages for cessation or interruption of Tenant's business.
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SECTION 10.04 SALE UNDER THREAT OF CONDEMNATION.
A sale by Landlord to any authority having the power of eminent domain, either
under threat of condemnation or while condemnation proceedings are pending,
shall be deemed as taken under the power of eminent domain for all purposes
under this Article.
ARTICLE XI. UTILITY SERVICES
SECTION 11.01 UTILITY CHARGES.
Tenant shall pay all charges for gas, electricity, telephone and other utility
services used in the Premises during the Lease Term. If any such charges are not
paid when due Landlord may pay the same, and any amount so paid by Landlord
shall thereupon become due to Landlord from Tenant as additional rent.
SECTION 11.02 FURNISHING OF SERVICE
If Landlord shall elect to furnish any utility services to the Premises, Tenant
shall purchase its requirements thereof from Landlord so long as the rates
charged therefor by Landlord do not exceed those which Tenant would be required
to pay if such services were furnished it directly by a public utility.
SECTION 11.03 INTERRUPTION OF SERVICE.
Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility service being furnished the Premises, unless
Landlord has failed to hilly restore such service after a reasonable time after
written notice from Tenant of the existence of such problems with utility
service; provided, however, no such failure or interruption shall entitle Tenant
to terminate this Lease.
ARTICLE XII. DEFAULTS; REMEDIES
SECTION 12.01 DEFAULTS.
The occurrence of any one or more of the following events shall constitute a
default hereunder by Tenant:
(a) The abandonment of the Premises by Tenant. Abandonment is herein defined
to include, but is not limited to, any absence by Tenant from the Premises
for five (5) days or longer while in default of any provision of this
Lease.
(b) The failure by Tenant to make any payment of rent or additional rent
required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in (a) or (b) above, where such failure
shall continue for a period of ten (10) days after
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written notice thereof from Landlord to Tenant; provided further, that if
the nature of Tenant's default is such that more than ten (10) days are
reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant shall commence such cure within said ten-day period and
thereafter diligently prosecute such cure to completion; provided further,
however, Landlord in its sole discretion may require Tenant to deliver a
bond, deposit xxxxx or such other form of security device which may be
necessary to protect the Premises, Landlord and the Shopping Center in the
event such default cannot be cured within said ten-day period.
(d) (i) The making by Tenant of any general assignment for the benefit of
creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged as bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant, the same is dismissed within thirty (30)
days); (iii) the appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to
Tenant within thirty (30) days or (iv) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
SECTION 12.02 REMEDIES.
(a) In the event of any default by Tenant as defined herein, Landlord may
exercise the following remedies:
(1) With notice or progress of law and using such forces as Landlord may
reasonably deem necessary under the circumstances, and without
terminating this Lease or otherwise relieving Tenant of any
obligation hereunder in the absence of express written notice of
Landlord's election to do so as set forth herein, Landlord may
reenter and take possession of the Premises and of all property of
Tenant located therein may evict Tenant and all other persons in
occupations thereof and may store all of Tenant's property or the
property of any other person which is located therein for the
account of and at the risk of Tenant. Under no circumstances shall
Landlord be held liable in damages or otherwise by reason of any
such re-entry or eviction, or by reason of the exercise by Landlord
of any other remedy provided in this subparagraph. All property of
Tenant which is stored by Landlord pursuant hereto may be redeemed
by Tenant within said thirty (30) days after Landlord takes
possession thereof upon payment to Landlord in hill of all
obligations then due from Tenant to Landlord hereunder and of all
costs incurred by Landlord in providing such storage. If Tenant
fails to redeem such property within thirty (30) days period,
Landlord may sell such property in any reasonable manner and shall
apply the proceeds of such sale actually collected against the costs
of storage and sale and then against any other obligation due from
Tenant hereunder.
(2) Without terminating this Lease or otherwise relieving Tenant of any
obligation hereunder in the absence of express written notice of
Landlord's election to do so
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as set forth herein, Landlord may, without being under any
obligation whatsoever to do so, relet the Premises or any portion
thereof at any time or from time to time and for such term or terms
and upon such conditions and at such rental as Landlord in its sole
discretion deem proper. Whether or not the Premises are relet by
Landlord, Tenant shall pay to Landlord all amounts required to be
paid by Tenant hereunder up to the date that Landlord terminates
Tenant's right to possession of the Premises, and thereafter Tenant
shall pay to Landlord, until the end of the term hereof, the amount
of rent and additional rent required to be paid by Tenant hereunder.
Such payments by Tenant shall be due at such times as are provided
elsewhere in this lease, and Landlord need not wait until the
termination of this Lease, by expiration of the term hereof or
otherwise, to recover them by legal action or in any other manner.
If Landlord relets the Premises or any portion thereof, such
reletting shall not relieve Tenant of any obligation hereunder,
except that Landlord shall apply the rent or other proceeds actually
collected by it as a result of such reletting against any amounts
due from Tenant hereunder to the extent that such rent or other
proceeds compensate Landlord for the nonperformance of any
obligation of Tenant hereunder. Landlord may execute any lease made
pursuant hereto in its own name, and the Lessee thereunder shall be
under no obligation to see to the application by Landlord of any
rent or other proceeds by Landlord, nor shall Tenant have any right
to collect any such rent or other proceeds. Landlord shall not by
any re-entry of other acts be deemed to have otherwise terminated
this Lease, or to have relieved Tenant of any obligation hereunder,
unless Landlord shall have given Tenant express written notice of
Landlord's election to do so as set for herein.
(3) Landlord may terminate or otherwise effect a forfeiture of this
Lease by express written notice to Tenant of its election to do so.
Such termination or forfeiture shall not relieve Tenant of any
obligation hereunder which has accrued prior to the date of such
termination or forfeiture. The amount of damages which Landlord may
recover following such termination shall include the worth at the
time of award of the amount of this Lease after the time of award
exceeds the amount of such rental loss for such period Tenant proves
could be reasonably avoided.
(4) Landlord may recover from Tenant, and Tenant shall pay to Landlord
upon demand, such expenses as Landlord may incur in recovering
possession of the Premises, placing the same in good order and
condition and altering or repairing the same for reletting, as well
as all other expenses, commissions and charges incurred by Landlord
in exercising any remedy provided herein or as a result of any
default by Tenant hereunder.
(5) Landlord may exercise any other remedy or right now or hereafter
available to a landlord against a defaulting tenant under the law of
the State of Nevada and not otherwise specifically reserved herein.
13
(b) Landlord shall be under no obligation to observe or perform any covenant
of this Lease on its part to be observed or performed which accrues after
the date of any default by Tenant hereunder.
(c) In any action of unlawful detainer commenced by Landlord against Tenant by
reason of any default hereunder, the reasonable rental value of the
Premises for the period of the unlawful detainer shall be deemed to be the
amount of rent and additional rent reserved in this Lease for the same
period, unless Landlord or Tenant shall prove to the contrary by competent
evidence.
(d) Tenant hereby waives any right of redemption or relief from forfeiture, in
the event Tenant is evicted or Landlord takes possession of the Premises
by reason of any default by Tenant hereunder.
(e) The various rights and remedies reserved to Landlord herein, including
those not specifically described herein, shall be cumulative and, except
as otherwise provided by Nevada statutory law in force and effect at the
time of the execution hereof, Landlord may pursue any or all of such
rights and remedies, whether at the same time or otherwise.
(f) No delay or omission of Landlord to exercise any right or remedy shall be
construed as a waiver of any such right or remedy or any default by Tenant
hereunder.
SECTION 12.03 DETERMINATION OF RENT.
For the purposes of the Article XII, the rent due for any calendar month after
re-entry by Landlord shall be deemed to be the average monthly rent, including
any Percentage Rent and/or additional rent applicable, which shall have been
payable for the term of this Lease prior to such re-entry.
SECTION 12.04 DEFAULT BY LANDLORD.
Landlord shall not be deemed to be in default in the performance of any
obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after written notice
by Tenant to Landlord specifying wherein
Landlord has failed to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
required for its performance then Landlord shall not be deemed to be in default
if it shall commence such performance within such thirty day period and
thereafter diligently prosecute the same to completion.
SECTION 12.05 TENANT REMEDIES.
In the event of any default by Landlord as defined herein, Landlord shall be
responsible to Tenant for any and all damages sustained by Tenant as a result of
Landlord's breach; further; after such notice Tenant shall have the right to
cure such default at Landlord's expense including in such expenditure all costs
and attorneys' fees incurred to cure such default or breach of Lease. Tenant
shall have no right to terminate this Lease except as herein otherwise
specifically provided.
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SECTION 12.06 EXPENSE OF LITIGATION.
If either party incurs any expense, including reasonable attorneys' fees, in
connection with any action or proceeding instituted by either party by reason of
default of the other party hereunder, or pursuant to the provisions of this
Lease, the party prevailing in such action or proceeding shall be entitled to
recover its said reasonable expenses from the other party.
ARTICLE XIII. COMMON AREAS
SECTION 13.01 DEFINITION.
All areas within the exterior boundaries of the Shopping Center which are not
now or hereafter held for lease or occupation by Landlord or used by other
persons entitled to occupy floor space in the Shopping Center, including,
without limiting the generality of the foregoing, parking areas, driveways,
sidewalks, ramps, open and enclosed courts and malls, retaining walls, and other
areas and improvements provided by Landlord for the common use of Landlord and
Tenants and their respective employees and invitees, shall be deemed "common
areas." Landlord may make changes at any time and from time to time in the size,
shape, location, number and extent of the common areas or any of them, and no
such change shall entitle Tenant to any abatement of rent.
SECTION 13.02 USE.
Tenant and its employees and invitees shall be entitled to use the common areas
during the Lease Term, in common with Landlord and with other persons authorized
by Landlord from time to time to use such areas, subject to such reasonable
rules and regulations relating to such use as Landlord may from time to time
establish.
SECTION 13.03 CONTROL BY LANDLORD
(a) Landlord shall operate, manage, equip, police, light, repair and maintain
the common areas in such manner as Landlord may in its sole discretion
determine to be appropriate. Landlord may temporarily close any common
area for repairs or alterations, to prevent a dedication thereof or the
accrual of prescriptive rights therein, or for any other reason deemed
sufficient by Landlord.
(b) Landlord shall at all times during the term of this Lease have the sole
and exclusive control of the automobile parking areas, driveways,
entrances and exits and the sidewalks and pedestrian passageways and other
common areas, and may at any time and from time to time during the term
hereof restrain any use or occupancy thereof except as authorized by the
rules and regulations for the use of such areas established by Landlord
from time to time. The rights of Tenant in and to the common areas shall
at all times be subject to the right of Landlord and other tenants of
Landlord in Shopping Center to use the same in common with Tenant, and
Tenant shall keep said areas free and clear of any obstructions created or
permitted by Tenant or resulting from Tenant's operation. If in the
opinion of Landlord unauthorized persons are using any of said areas by
reason of the presence of Tenant in Shopping Center, Tenant, upon demand
of Landlord, shall restrain such unauthorized use by appropriate
proceedings. Nothing therein shall effect the right of
15
landlord at any time to remove any such unauthorized person from the
common areas nor to prohibit the use of any said areas by unauthorized
persons.
(c) Tenant and its employees shall park their vehicles only in those portions
of the parking areas as are from time to time designated for that purpose
by Landlord. Tenant shall furnish Landlord with a list of its employees'
vehicle license numbers within fifteen (15) days after taking possession
of the Premises and Tenant shall thereafter notify Landlord of any change
in the list within five (5) days after such change occurs upon Landlord's
request. Tenant agrees to assume responsibility for compliance by its
employees with the parking provisions contained herein.
(d) In the event Landlord elects to limit or control parking by customers or
invitees of the Shopping Center, whether by validation or parking tickets
or any other method of assessment. Tenant agrees to participate in such
validation or assessment program under such reasonable rules and
regulations as are from time to time established by Landlord with respect
thereto.
XXXXXXX 00.00 XXXXXX XXXX COSTS. (SEE ADDENDUM #1)
Tenant agrees to pay as provided below, as additional rent, Tenant's
proportionate share (as hereinafter defined in Section 13.05 (a)) of all costs
and expenses of every kind and nature as may be paid or incurred by Landlord
during the Lease Term in operating, lighting, repairing, replacing and
maintaining the common areas as Landlord deems necessary. Such costs and
expenses shall include, but shall not be limited to: general maintenance and
repairs, resurfacing, striping, cleaning and snow removal of the parking and
driveway areas, cleaning, snow removal and repair of sidewalks, curbs,
maintenance and repair of the Landscaping and irrigation systems, maintenance
and repair of the Shopping Center signs and the directional signs, the lighting
system in the parking and walkway areas, janitorial services in public areas,
sanitary sewer systems, trash disposal or other utility systems, the cost of
water service, the cost of electricity for lighting in the public areas,
maintenance and repair, if tenant caused, of the air-conditioning systems,
roofing, and storm drainage, property taxes and insurance.
SECTION 13.05 PROPORTIONATE PAYMENT.
(a) Tenant's proportionate share of such common area costs shall be that
proportion thereof which the gross floor area of the Premises bears to the
gross leasable floor area within the Shopping Center.
(b) Prior to the commencement of each Lease Year, Landlord shall give Tenant a
written estimate of Tenant's share of such common area costs for the
ensuing Lease Year. Tenant shall pay such estimated amount to Landlord in
equal monthly installments, in advance. Within ninety (90) days after the
end of each Lease Year, Landlord shall furnish the Tenant a statement
showing in reasonable detail the cost and expenses incurred by Landlord
for the operation and maintenance of the common areas during such Lease
Year, and the parties shall promptly make any payment or allowance
necessary to adjust Tenant's estimated payment to Tenant's actual
proportionate share of common area costs as shown by such annual
statement.
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ARTICLE XIV. SIGNS; LIGHTING AND ADVERTISING
SECTION 14.01 EXTERIOR SIGN.
Tenant will be permitted to utilize an exterior sign on the Premises, as the
location, size and materials to he used for such signs are specifically
described in Exhibit "D" attached hereto and incorporated herein by this
reference.
SECTION 14.02 PROHIBITED ACTIVITIES
Tenant shall not, without Landlord's prior written consent, do any of the
following:
(a) Install or affix any exterior lighting or plumbing fixtures, shades,
awnings, or exterior decorations (including exterior painting).
(b) Window lettering/signage to be permitted with consent of Landlord.
Lettering and signage to be conforming with the materials and size used by
other buildings in the Shopping Center.
(c) Display or sell merchandise on, or otherwise obstruct any area outside the
exterior walls of the Premises.
(d) Cause or permit to be used any advertising materials or methods which are
objectionable to Landlord or to other Tenant's of the Shopping Center,
including, without limiting the generality of the foregoing, loudspeakers,
mechanical or moving display devises, unusually bright or flashing lights
and similar devices the effect of which may be seen or heard outside the
Premises. South wall to be plexiglass for sound proofing to residences.
Light music to be allowed outside, so long as it does not disturb other
tenants or residential housing occupants.
(e) Solicit business in the parking or other common areas, nor distribute any
handbills or other advertising matter in the parking area or in other
common areas.
SECTION 14.03 MAINTENANCE.
Tenant shall at all times maintain its show windows and signs in a neat, clean
and orderly condition. If, as to any exterior sign, Tenant shall fail to do so
after five (5) days written notice from Landlord, Landlord may repair, clean or
maintain such exterior sign and the costs thereof shall be payable by Tenant to
Landlord upon demand as additional rent.
SECTION 14.04 DISPLAY AND WINDOW LIGHTING.
Tenant shall keep its display windows well lighted from dusk until such
reasonable time as may be fixed from time to time by Landlord for all of the
tenants in the Shopping Center, unless prevented by causes beyond Tenant's
reasonable control.
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SECTION 14.05 ADVERTISED NAME AND ADDRESS.
(a) Tenant shall operate its business under VALLEY BANK, in the Basic Lease
Provisions and under no other name without prior written consent of
Landlord.
(b) Tenant shall be permitted to use as its advertised business address the
words State Farm Plaza should Tenant desire to do so. Tenant shall not use
the words State Farm Plaza for any purpose other than as the address of
the business to be conducted by Tenant in the Premises, and Tenant shall
not acquire any property right in or to any name which contains said words
as a part thereof. Any permitted use by Tenant of the words State Farm
Plaza during the term of this Lease shall not permit Tenant to use, and
Tenant shall not use such words either after the termination of this Lease
or any other location.
(c) Tenant may use in its advertising and promotional activities for its
business in the Premises such references to the name of the Shopping
Center and such identifying lettering, marks, or symbols referring to the
Shopping Center as Landlord shall specify from time to time.
ARTICLE XV. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of (I) months' Fixed Minimum Rent as
security for the full and faithful performance of every provision of this Lease
to be performed by Tenant. If Tenant defaults with respect to any provisions of
this Lease, including but not limited to the provisions of this Lease, including
but not limited to the provisions relating to the payment of rent, Landlord may
use, apply or retain all or any part of this security deposit for the payment of
rent or other sum in default, or for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reasons of Tenant's default. If any portion of said deposit is so used or
applied, Tenant shall within five (5) days after written demand therefor deposit
cash with Landlord in an amount sufficient to restore the security deposit to
its original amount and Tenant's failure to do so shall be an event of default
under this Lease. Landlord shall not be required to keep this security separate
from its general funds, and Tenant shall not be entitled to interest of such
deposit. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, the security deposit or any balance thereof shall
be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) at the expiration of the Lease Term.
ARTICLE XVI. GENERAL PROVISIONS
(a) Tenant shall at any time and from time to time upon not less than ten (10)
days' prior written notice from Landlord execute, acknowledge and deliver
to Landlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which Fixed
Minimum Rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be relied upon by
18
any prospective purchaser or encumbrancer of the Premises or of all or any
portion of the real property of which the Premises are a part.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that
there are no uncured defaults in Landlord's performance and (iii) that not
more than one month's Fixed Minimum Rent has been paid in advance.
SECTION 16.01 TRANSFER OF LANDLORD'S INTEREST.
In the event of any transfer or transfers of Landlord's interest in the
Premises, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of the Landlord accruing from and after
the date of such transfer. All of the provisions of this Lease shall bind and
incur to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns.
SECTION 16.02 FLOOR AREA.
"Floor Area" as used in this Lease means, with respect to the Premises and with
respect to each store area separately leased, the aggregate of(a) the number of
square feet of floor space on all floor levels, including mezzanines, measured
from the exterior of any wall abutting the common area or any portion thereof
and from the center line of walls which are common walls for floor area in the
Shopping Center which may be leased to tenants. No deduction or exclusion from
floor area shall be made by reason of columns, stairs, or other interior
construction equipment.
SECTION 16.03 SEVERABILITY.
Any provisions of this Lease which shall prove to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provisions hereof and
such remaining provisions shall remain in full force and effect.
SECTION 16.04 INTEREST ON PAST DUE OBLIGATIONS.
Any amount due from Tenant to Landlord hereunder which is not paid when due
shall bear interest at the rate often percent (10%) per annum from the date due
until paid unless otherwise specifically provided herein, but the payment of
such interest shall not excuse or cure any default by Tenant under this Lease.
SECTION 16.05 TIME OF ESSENCE.
Time is of the essence with respect to the performance of every provision of
this Lease in which time of performance is a factor.
SECTION 16.06 HEADINGS.
This article and paragraph captions contained in this Lease are for convenience
only and shall not be considered in the construction or interpretation of any
provision hereof.
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SECTION 16.07 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with respect to
any matter covered or mentioned in this Lease, and no agreement or understanding
pertaining to any such matter shall be effective for any purpose. No provision
of this Lease may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
SECTION 16.08 NOTICES.
Any notice required or permitted to be given hereunder shall be in writing and
may be served personally or by mail; if sewed by mail it should be addressed as
follows:
If to Landlord: 0000 Xxxxx Xxx. 000, Xxxxx 0
Xxxxxxx, XX 00000
If to Tenant: At Tenant's address shown on the Basic Lease
Provision or to the Premises
Any notice given by mail shall be deemed effectively given when deposited in the
United States mail registered or certified, postage prepaid and addressed as
specified above. Either party may by written notice to the other specify a
different address for notice purposes, except that Landlord may in any event use
the Premises as Tenant's address for notice purposes.
SECTION 16.09 BROKERS.
Tenant warrants that it has had no dealing with any real estate broker or agent
in connection with the negotiation of this Lease other than the broker or agent
specified in the Basic Lease Provisions.
SECTION 16.10 WAIVERS.
No waiver by Landlord of any provision of this Lease shall be deemed to be a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act by
Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act by Tenant, whether or not similar to the act so consented to or approved.
SECTION 16.11 RECORDING.
Tenant shall not record this Lease without prior written consent of Landlord.
Both Landlord and Tenant shall concurrently with the execution of this Lease
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 16.12 LIENS.
Tenant shall do all things reasonably necessary to prevent the filing of any
mechanic's or other liens against the Shopping Center or any part thereof by
reason of work, labor, services or
20
materials supplied or claimed to have been supplied or claimed to Tenant, or
anyone holding the Premises, or any part thereof, through or under Tenant. If
any such lien shall at any time be filed against the Shopping Center, Tenant
shall either cause the same to be discharged of record within twenty (20) days
after the date of filing of the same or, if Tenant in Tenant's discretion and in
good faith determines that such lien should be contested, shall furnish such
security as may be necessary or required to (i) prevent any foreclosure
proceedings against the Shopping Center during the pendency of such contract,
and (ii) cause Title Insurance and Title Company or other mutually satisfactory
title company to remove such lien as a matter affecting title to the Shopping
Center. If Tenant shall fail to discharge such lien within such period or fail
to furnish such security, then, in addition to any other right or remedy of
Landlord resulting from Tenant's said default, Landlord may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be due
or by procuring the discharge of such lien by giving security or in such other
manner as is, or may be, prescribed by law. Tenant shall repay to Landlord, as
additional rental, on demand, all sums disbursed or deposited by Landlord
pursuant to the foregoing provision of this Section 16.12 including Landlord's
costs, expenses and reasonable attorney's fees incurred by Landlord in
connection therewith, with interest thereon at the rate provided for payment in
default. Nothing contained herein shall imply any consent or agreement on the
part of Landlord to subject Landlord's estate to liability under any mechanics'
or other lien law. Tenant shall give Landlord adequate opportunity and Landlord
shall have the right to post such notices of non responsibility as are provided
for in the mechanics; lien laws of Nevada.
SECTION 16.13 SUBORDINATION AND ATTORNMENT.
This Lease shall, at Landlord's option, be subordinate to any mortgage or deed
of trust that may exist or hereafter be placed upon Shopping Center or any part
thereof and to any and all advances to be made thereunder and to the interest
thereon and to all renewals, replacements and extensions thereof. Tenant shall
upon written demand by Landlord execute such instruments as may be required at
any time and from time to time to subordinate the rights and interests to Tenant
under this Lease to the lien of any such mortgage or deed of trust, or if
requested by Landlord, to subordinate any such mortgage or deed of trust to this
Lease. Provided, however, that Tenant shall, in the event any proceedings are
brought for the foreclosure of any such mortgage or deed of trust, attorn to the
purchaser upon foreclosure sale or sale under power of sale, and shall recognize
such purchaser as Landlord under this Lease, and, so long as Tenant is not in
default hereunder no such foreclosure shall terminate this Lease or otherwise
affect Tenant's rights hereunder.
SECTION 16.14 FIXTURES AND PERSONAL PROPERTY.
Any trade fixtures, signs and other personal property of the Tenant not
permanently affixed to the Premises shall remain the property of the Tenant and
the Landlord agrees that the Tenant shall have the right, provided the Tenant be
not in default under the terms of this Lease, at any time, and from time to
time, to remove any and all of its trade fixtures, signs and other personal
property which may have been stored or installed in the Premises, including but
not limiting the same to counters, shelving, showcases, minors and other movable
personal property.
Nothing in this Section shall be deemed or construed to permit or allow the
Tenant to remove so much of such personal property, without the immediate
replacement thereof with similar
21
personal property of comparable or better quality, as to render the premises
unsuitable for conduction of Tenant's type of business. The Tenant at its
expense shall immediately repair any damage occasioned to the Premises by reason
of the removal of any such trade fixtures, signs, and other personal property,
and upon the last day of the term or a date of earlier termination of this
Lease, shall leave the Premises in a neat and clean condition, free of debris.
All trade fixtures, signs and other personal property installed in or attached
to the Premises by the Tenant must be new or like new when so installed or
attached.
All improvements to the Premises by the Tenant, including but not limited to,
light fixtures, floor coverings and partitions, but excluding trade fixtures and
signs, shall become the property of Landlord upon expiration or earlier
termination of this Lease.
SECTION 16.15 QUIET POSSESSION.
The Landlord agrees that the Tenant upon paying the rent and performing the
covenants and conditions of this Lease, may quietly have, hold and enjoy the
Premises during the term hereof or any extension thereof.
SECTION 16.16 CERTIFICATES.
Tenant agrees upon request to execute, acknowledge, and deliver promptly to
Landlord, without the payment of any consideration therefor, any instrument or
certificate contemplated by this Section which has been requested by Landlord or
by any prospective purchaser of the Shopping Center, or any part thereof, or by
any lender or prospective lender.
SECTION 16.17 HOLDING OVER.
Any holding over after the expiration of the term hereof, with the consent of
Landlord, shall be construed to be tenancy from month to month, terminable upon
thirty (30) days' written notice by either party to the other, and shall
otherwise be subject to all of the terms and conditions of this Lease.
SECTION 16.18 PAYMENTS.
No payment by Tenant or receipt by Landlord of a lesser amount than the rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check, any letter
accompanying any check or payment as rent be deemed on accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy in this
Lease provided.
SECTION 16.19 NO PARTNERSHIP.
It is agreed that nothing contained in this Lease shall be deemed or construed
as creating a partnership, joint venture, or of any association between Landlord
and Tenant, or cause Landlord to be responsible in any way for the debts or
obligation of Tenant, and neither the method of computing rent nor any other
provision contained in this Lease nor any acts of the parties hereto
22
shall be deemed to create any relationship between Landlord and Tenant other
than the relationship of Landlord and Tenant.
ARTICLE XVII.
SECTION 17.01 TENANT IMPROVEMENTS
The landlord is responsible for the following improvements:
1. Electrical, heating and air conditioning.
2. T-Bar ceiling at the nine foot level.
3. $10/yard commercial carpet allowance.
4. Rubber base.
5. 2,000 SF of ceramic tile.
6. Light fixtures.
7. Electrical, telephone and data outlets per plan.
8. Two handicapped restrooms.
9. Orange peel texturing with one color.
10. Interior doors for each office.
Any upgrades or expensive materials (granite, marble, etc) shall be the tenant's
expense, including vault, ATM's.
Witness Whereof, the parties hereto have executed this Lease as of the day and
year first written above.
By:____________________________
Landlord
By:____________________________
Tenant
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ADDENDUM 1
COMMON AREA MAINTENANCE
2000 ESTIMATE
INCOME:
Bldg 1:
3483 SF x.15 = $522.45
Bldg 2:
5187 SF x .15 = $778.05
Bldg 3:
5,415 SF x .15 = $812.25
Bldg 4:
5415 SF x .15 = $812.25
Total Monthly Income $2,925
TOTAL ANNUAL INCOME $35,100
EXPENSE:
Parking Lot Resurfacing
$60,000 ten years from now $ 6,000
Parking Lot re-seal/re-stripe
$6,000 every 4 years $ 1,500
Parking Lot Cleaning/Common Area Cleaning
$300/QTR $ 1,200
Landscape Maintenance
Mowing, Trimming and replacement $ 1,800
Electric
Exterior lights and sign $ 1,200
Trash Removal
$ 900
Property Taxes
$14,100
Insurance
$ 4,000
Holiday Decorating
$ 1,200
Water
$ 1,800
HVAC Bi-annual Maintenance
Spring and fall cheek-up $ 1,400
TOTAL ANNUAL EXPENSE $35,100
RIDER
THE PROVISIONS OF THIS RIDER SHALL BE PARAMOUNT AND SHALL SUPERSEDE THE PRINTED
PROVISIONS OF THIS LEASE AND ALL EXHIBITS NOTWITHSTANDING ANYTHING THEREIN TO
THE CONTRARY. IN THE EVENT OF ANY CONFLICT, INTERPRETATION OR INCONSISTENCY, THE
PROVISIONS OF THIS RIDER SHALL BE CONTROLLING:
AS TO
ARTICLE II: Landlord shall give Tenant at least ten (10) days written notice
of the date that the Premises will be ready for occupancy by
Tenant. Such notice shall include:
(1) a statement that a Certificate or Certificates of Occupancy
will have been issued by the appropriate governmental
authorities for the public spaces of the Building and including
Premises for the uses specified herein; and,
(2) a certificate by Landlord that all work to be done by
Landlord in the Premises will have been or has been completed in
accordance herewith by the Commencement Date, that all
mechanical, heating, and ventilating equipment will have been
tested and approved by the appropriate governmental authorities,
that all utility connections have or will have been brought to
the premises and that utility services are or will be available
in the Premises by the Commencement Date.
Landlord shall make Premises available for communication wiring
and equipment installation by Tenant at least fifteen (15) days
prior to the Commencement Date.
Notwithstanding the date specified in the Lease for the
commencement of the term, the term and
Tenant's obligation to pay rent under the Lease shall not
commence until Landlord shall have substantially completed all
installations pursuant to the lease to be performed by Landlord
for
Tenant's occupancy and Tenant has accepted possession of the
Premises.
Tenant's acceptance of possession of the Premises maybe subject
to a punch list of incomplete or incorrect improvement items.
Landlord shall complete or correct the punch list items within
thirty (30) days of submission of the punch list by Tenant.
AS TO
ARTICLE III: Landlord shall not exercise any late charge or interest penalty
unless and until Landlord shall have given to Tenant written
notice and Tenant shall have failed to remedy such non-payment
within five (5) days, provided, however,
1
Landlord shall not be obligated to give written notice of
nonpayment more than two (2) times in any 12-month period.
AS TO
ARTICLE IV: There shall be deducted from said Taxes the net amount of any
refunds, after reasonable expenses, such refunds to be applied
against said Taxes for the same calendar year to which the taxes
apply.
The amount of special taxes or special assessments to be
included shall be limited to the amount of the installments of
special taxes or special assessments required to be paid during
the calendar year in respect to which these special taxes or
special assessments are to be determined; however, Landlord
shall elect the longest period of time allowed by authority
imposing the tax or assessments in which to pay installments of
special taxes or special assessments and in no event shall such
special taxes or special assessments be prorated over a period
of less than five years.
State income tax (as presently constituted) or any local income
tax (to the extend that it is not in lieu of real estate taxes)
payable by Landlord shall not be included in Taxes, but shall be
the sole responsibility of the Landlord. Taxes will not include
any special assessments for capital improvements, which are
incorporated in to the Building itself
There shall be excluded from Taxes all federal income taxes,
federal excess profits taxes, franchise, capital stock, and
federal or state inheritance or estate taxes.
There shall be excluded from Taxes, taxes in connection with any
major change in the Building such as adding or deleting floors.
AS TO
ARTICLE VI: In addition to any other obligations contained in the Lease,
Landlord shall maintain, repair, and replace as necessary the
plumbing, heating, ventilating and air conditioning equipment,
lighting and other electrical and mechanical equipment,
sprinkler system, elevators, and glass (unless broken or damaged
due to the negligence or acts of Tenant) within the Building of
which the premises are a part, and make all other repairs or
replacements which Tenant is not hereby required to make.
Landlord shall maintain (including painting as necessary),
repair and replace as necessary the exterior of the Building,
including the roof, exterior walls, drains, eves troughs,
downspouts, and gutters and shall provide lateral support and
make all structural repairs to the Building. Landlord shall also
maintain, repair, and replace as necessary the sewers, utility
lines, driveways, sidewalks, Parking Areas, lighting,
landscaping and fencing located on the Land and serving the
Building. Landlord shall also maintain, repair, and replace as
necessary the exterior lighting at all customer and employee
entrances, doors, and, if applicable, at the night depository.
If Landlord fails to commence to make any repairs to
2
the Premises which Landlord is required to make within ten (10)
days after receipt of written notice from Tenant of the need
therefore, or if Landlord fails to diligently proceed to
complete such repairs after commencing such repairs, Tenant
shall have the right (but not an obligation) to make such
repairs on behalf of Landlord and Landlord shall promptly
reimburse Tenant for the reasonable costs incurred by Tenant.
Except in the event of an emergency, Landlord's Right of Access
shall be permitted only (a) upon reasonable written notice to
Tenant; (h) at such times as may be approved by Tenant; and (c)
in such a manner as to cause the minimum disruption to Tenant's
employees and business activities on the Premises.
AS TO
ARTICLE VIII: In the event the Building or Premises shall be destroyed or
rendered untenantable, either in whole or in part, Landlord may,
at its option, restore the Building and Premises to the
condition existing just prior to the casualty and Tenant's rent
for the Premises shall xxxxx until the Building and Premises
have been fully restored or this Lease has been terminated.
Within thirty (30) days of the date of the casualty, Landlord
shall give Tenant written notice indicating whether or not
Landlord will restore the Building and Premises. If Landlord
elects to restore, the notice must indicate how long the
restoration is expected to take.
(a) If Landlord does not give Tenant the required notice
within the thirty (30) day period or Landlord's notice
does not include the required information, Tenant may give
Landlord a written notice indicating the default and
Landlord shall have ten (10) days from date of Tenant's
notice to issue or re-issue the notice. If at the end of
the ten (10) day period Landlord has not given Tenant said
notice, this Lease shall expire and rent shall be abated
from the date of the casualty without further action on
the part of either Landlord or Tenant.
(b) If Landlord's notice indicates that Landlord does not
intend to restore the Building and Premises, this Lease
shall terminate automatically as of the date of Landlord's
notice without further action on the part of either the
Landlord or Tenant and the rent shall be abated from date
of the casualty.
(c) If Landlord's notice indicates that Landlord intends to
restore and the restoration will take more than 180 days,
Tenant shall have the option to cancel this Lease by
giving Landlord written notice within ten (10) days of
receipt of Landlord's notice. In the event the Tenant
should not cancel the Lease, Landlord will proceed to
restore the Building and Premises in accordance with
Landlord's notice to Tenant and Tenant's rent shall remain
abated until the Premises are again Tenantable,
3
however, if the restoration is not complete within 110% of
the time indicated in Landlord's notice, Tenant shall have
an additional option to cancel this Lease by giving
Landlord written notice within ten (10) days.
(d) If Landlord's notice shall indicate that Landlord will
restore in 180 days or less, the Landlord will proceed
with the restoration and Tenant's rent shall remain abated
until Premises shall again be Tenantable, however, if the
restoration is not complete within 110% of the time
indicated in Landlord's notice, Tenant shall have the
option to cancel this Lease by giving Landlord written
notice within ten (10) days.
AS TO
ARTICLE IX: Nothing will be constructed as prohibiting Tenant from and
Tenant shall have the right to assign this Lease or to sublet
all or a portion of the Premises to a subsidiary, parent, or
affiliated company without the consent of Landlord. In the event
of any such assignment or subletting, Tenant shall remain liable
to Landlord for all the rents called for under the terms of this
Lease and for the performance of all covenants herein to be
performed by Tenant.
AS TO
ARTICLE X: Notwithstanding anything to the contrary contained in the Lease,
if part of the Property is taken by any public authority under
the power of eminent domain, Tenant shall have the right to
terminate the Lease upon the occurrence of any of the following
and upon written notice given to Landlord not later than sixty
(60) days after commencement of condemnation proceedings against
the Land and/or Building (or, if such proceedings are not
commenced, not later than thirty (30) days after possession of
the part taken is required by the public authority):
(a) If the taking of part of the Premises significantly and
a4versely affects Tenant's use of the Premises; or
(b) If the taking of part of the Building or Land
significantly and adversely affects Tenant's use of the
Premises, whether or not part of the Premises are taken;
or
(c) If restoration of the remainder of the Premises and/or the
Building or Land cannot in Tenant's opinion be completed
within one hundred eighty (180) days after the date
possession is required by the public authority; or
(d) If the taking (i.e., the date possession is required by
the public authority) occurs within the last twelve (12)
months of the initial term of the Lease or any extension
of such term.
4
Termination of the Lease pursuant to this Section shall be
effective as of the later of the date possession is required by
the public authority or sixty (60) days after Landlord receives
the termination notice described above.
AS TO
ARTICLE XI: Interruption or curtailment of any service maintained in the
Building, if caused by strikes, mechanical difficulties, or any
causes beyond Landlord's control whether similar or dissimilar
to those enumerated, shall not entitle Tenant to any claim
against Landlord or to any abatement in rent, nor shall the same
constitute constructive or partial eviction, unless Landlord
fails to take such measures as may be reasonable in the
circumstances to restore the service without undue delay. If the
Leased Premises are rendered untenantable in whole or part, for
a period of over three (3) business days, by making of repairs,
replacements or additions, other than those made with Tenant's
consent or caused by misuse or neglect by Tenant or Tenant's
employee's agents, servants, visitors or licensees, there shall
be a proportionate abatement of rent during the period of such
untenantability.
AS TO
ARTICLE XII: It is expressly agreed that Landlord shall not exercise any of
its remedies against the Tenant by reason of any default under
this Lease unless and until Landlord shall have given to Tenant
written notice of such default and unless Tenant shall have
failed to remedy such default within fifteen (15) days or, if
the nature of the default is such that it cannot reasonably be
cured or remedied within fifteen (15) days, within such time as
is reasonably necessary to remedy such default after receipt of
such notice. Nothing in this Lease will be construed to give
Landlord the right to possession of any of Tenant's records,
files, business records or customer names or records. Tenant
shall have the right to vacate the Leased Premises without being
in default of this Lease, provided Tenant continues to otherwise
comply with the terms of the Lease.
AS TO
ARTICLE XIII: The following items are excluded from the definition of common
area costs and expenses:
(1) Markup or profit above the rate for electricity, water,
and gas charged to Landlord by the utility company
providing service to the Property;
(2) Expense for any capital improvement made to the Property
(including, without limitation, expansion of the Parking
Areas);
(3) Expenses for repairs or other work occasioned by fire,
windstorm, or other insurable casualty, or by the act or
omission of other tenants in the Building or necessitated
by eminent domain;
(4) Expenses incurred in leasing office or other space
(including but not limited to fees, commissions,
advertising and promotion, salaries and
5
expenses of the leasing staff, tenant allowances and/or
tenant inducement costs, and legal fees and expenses
respecting leasing activities), or in preparing space for
tenant occupancy, or for painting or decorating any
occupant's space or any vacant space;
(5) Legal expenses incurred in enforcing the terms of any
lease;
(6) Interest or amortization payments of any mortgage or any
other debt for borrowed money.
(7) Wages, salaries, or other compensation paid to any
employee above the grade of maintenance employee or paid
to clerks or attendants in concessions or newsstands
operated by Landlord;
(8) Any expense for which Landlord receives or is entitled to
receive reimbursement from a tenant or another third
party, including but not limited to a warranty or an
insurance policy;
(9) Penalties or interest for late payment on any of the costs
described in (a) above;
(10) Rental for ground leases;
(11) Costs of expenses for any paid parking facilities;
(12) Unless otherwise provided in the Lease, any environmental
remediation, cleanup, removal, or disposal costs,
including such costs for asbestos or PCBs, and including
costs incurred as a result of Landlord's breach of any
representations or warranties contained herein;
(13) Any depreciation or amortization on the Property;
(14) Expenses incurred in connection with services or other
benefits of the type that are not provided Tenant but
which are provided to another tenant or occupant.
(15) Individual Utility Costs, as defined below.
(16) Any other expense which under generally accepted
accounting principles would not be considered a normal
maintenance or operating expense, except as otherwise
specifically provided in the Lease.
If Landlord makes a major change in the Building or the garage,
such as the addition or deletion of one or more floors, an
appropriate adjustment to reflect the added or decreased
operating expenses shall be made.
6
Landlord agrees that the estimated Building Operating Costs paid
by Tenant in any calendar year shall not exceed the previous
year's actual Building Operating Costs by more than five percent
(5%).
If Tenant wishes to dispute the determination of Building
Operating Costs listed herein or the calculation of any amount
payable hereunder, Tenant shall give Landlord written notice of
such dispute within three (3) months after the receipt of notice
from Landlord of the matter giving rise to the dispute. If
Tenant does not give Landlord such notice within such time,
Tenant shall waive its right to dispute such determination or
calculation. Promptly after the giving of such written notice,
Landlord shall meet with Tenant in an attempt to reconcile any
outstanding disputes. If such efforts do not succeed, Landlord
shall cause to be made a complete audit of Landlord's records
relating to the matter in dispute by a nationally recognized
firm of independent certified accountants to be mutually
selected by Landlord and Tenant. The cost of such audit shall be
borne by Tenant unless such audit discloses an error that favors
Landlord, in which event Landlord shall bear the cost of such
audit. If such audit reveals that the amount previously
determined by Landlord was incorrect, a correction shall be made
and either Landlord shall promptly return to Tenant any
overpayment or Tenant shall pay any underpayment to Landlord.
Not withstanding the pendency of any dispute hereunder. Tenant
shall make payments based upon Landlord's determination or
calculation until such determination or calculation has been
established hereunder to be incorrect.
AS TO
ARTICLE XI: Landlord agrees that it will not name said Building or allow
identification signs to be placed so as to identify the Building
as being owned or occupied by any particular competitor of
Tenant; however, nothing shall be deemed to preclude
identification signs of Tenant being placed on the Building,
subject to Landlord's approval. In the event that any other
Tenant other than a competitor of Tenant is granted permission
to place an identification sign on (or around) the Building,
then Tenant herein shall also be granted the right to place a
similar identification sign on (or around) the Building. Tenant
shall have the right to locate their operating name on
Landlord's 20 x 44 billboard for a one time payment of $9,800
and a $100 monthly fee, per Exhibit "D".
AS TO
ARTICLE XVI: Tenant shall, within thirty (30) days of receipt of written
notice from Landlord, execute and deliver an estoppel
certificate certifying, if true, that; (a) the Lease is in full
force and effect and has not been modified or amended (or if
modified or amended, describing the same); (b) the date Tenant
accepted occupancy of the Premises; (c) the date to which Rent
has been paid; (d) to the best of Tenant's knowledge and belief
and without due diligence investigation, the defenses or offsets
thereto or defaults of Landlord under the Lease (or if none be
claimed, stating that fact); and (e) such other matters as
Landlord may reasonably request.
7
16.15 Landlord covenants that so long as Tenant is not in
default in the terms and conditions of the Lease, Tenant may
peacefully and quietly hold and enjoy the Premises and other
rights as set forth in this Lease, for the term hereof without
interference by Landlord or any person claiming by, through, or
under Landlord. Should Tenant be dispossessed from the Premises
or denied its other rights, as set forth in this Lease, by
reason of superior title, payment of Rent shall cease from and
after the date of such dispossession and all Rent that may have
been prepaid for any period of time during which Tenant is
deprived of its peaceful possession by reason of such
dispossession, shall be returned to Tenant forthwith; however,
Landlord shall not be relieved of liability to Tenant for
damages sustained by Tenant due to such dispossession.
6.17 In the event Tenant shall be delayed in surrendering
possession, Landlord consents to the holding over by Tenant for
not more than three (3) additional months, under the same terms,
covenants and conditions, at the same monthly rental. Any
additional holding over, with the consent of Landlord, shall be
from month-to-month at a rate not to exceed 125% of the base
rent payable immediately preceding the termination date of this
Lease and either party may cancel such tenancy upon thirty (30)
days written notice to the other. In no event shall Tenant be
responsible for any consequential damages incurred by Landlord
in the event Tenant shall be delayed in surrendering possession.
AS TO
ARTICLE XVII Landlord, at landlord's expense, is to deliver the premises in a
"turn-key" condition, including completion of the alterations,
changes and improvements as specified below and on a mutually
agreed upon space plan prepared by Tenant's architect. In
addition, tenant, at tenant's sole cost and expense, shall be
responsible for all space planning, architectural and
engineering services, pertaining to the Tenant Improvements:
Flooring building standard commercial grade carpeting with vinyl
base.
Demising Walls: Slab to slab Sheetrock on each side of the
demising/party walls with sound batt insulation from finished
floor to deck above. Minimum fire rating: 1 hour. Each wall
finished with painted drywall chosen from color selections made
available by landlord.
Perimeter Walls: Finished with painted drywall chosen from color
selections made available by landlord. All windowsills to be
installed and finished.
Columns: All columns finished with painted drywall chosen from
color selections made available by landlord. All wet column
enclosures to be built to minimum size required.
8
Doors: Provide and install building standard solid core entrance
door; interior hollow core doors, frames and hardware assembly
per tenant's requirements, but not less than the minimum code
requirement.
Ceiling Grid and Tile: Provide and install building standard
acoustical ceiling grid and ceiling tile; ceiling height a
minimum of 8'O".
Window Treatments: Provide and install building standard window
treatments on the exterior windows. Tenant to specify color and
style of blinds in the absence of a building standard.
Electrical: All electrical equipment and wiring will be provided
and installed with sufficient capacity for tenant's business
operations.
Lighting: Supply and install building standard lighting to
provide a minimum of 70 foot candles maintained at desk level
throughout the leased premises. Location of fixtures to be
approved by tenant.
Telephone Outlets: Provide and install sufficient telephone
outlets for tenant's business operations. Location of telephone
outlets to be approved by tenant.
Plumbing: Provide cold and hot water lines, waste and vent lines
for sink in kitchen.
Fire and Emergency Protection: Provide and install all emergency
systems as required by local, state, and federal codes and
ordinances.
Heating, Ventilation and Air Conditioning (HVAC): Provide basic
HVAC system designated to properly heat, cool and vent tenant
space.
Keys: Provide sufficient number, as determined by tenant, of
keys and/or access cards to allow access to the premises,
parking areas, and other common areas.
Signage: Provide building standard signage for Tenant on the
Building directory and adjacent to the entrance to the Premises.
AS TO
ARTICLE XVIII: RESERVED AND COVERED RESERVED PARKING. Tenant shall have the
exclusive use often (10) reserved parking spaces immediately
adjacent to the Premises. Such reserved parking spaces shall be
designated by Landlord for use by tenant, its agents, employees,
and invitees. These spaces are provided at no cost to tenant and
are in addition to tenant's right to use any part of the Parking
Areas. Tenant shall be entitled to a pro rata share of covered
reserved parking spaces at the rate of $25.00 per space per
month.
9
AS TO
ARTICLE XIX RIGHT TO RENEW. Provided Tenant is not in default, Tenant shall
have the right to renew this Lease for two additional five (5)
year terms, which options may be exercised by Tenant giving
Landlord written notice at least ninety (90) days prior to the
end of the Lease term. The terms of the renewal will be the same
as the terms during the initial Lease term and rent and
escalations shall be renegotiated. Landlord shall provide Tenant
notice of such rate no later than ninety (90) days prior to
Tenant's right to exercise its option to renew. However, if
Landlord does not provide Tenant with such notice, Tenant may
notify Landlord in writing with its intent to renew which shall
be at the same rate of that of the last month under the initial
term.
AS TO
ARTICLE XX: REPRESENTATIONS AND WARRANTIES
(a) Landlord represents and warrants that, both on the date
the Lease is executed and on the Commencement Date, the
Property: (i) may be used for the purpose for which it is
leased; (ii) is and will be in the condition required
under this Lease, (iii) is in compliance and will remain
in compliance with all applicable federal, state and local
environmental laws, regulations, and ordinances; (iv) is
free and clear from all tenancies, occupancies, claims, or
rights to possession of persons other than the rights of
Landlord and Tenant under the Lease; (v) is subject to no
orders, notices, violations, and materialmen's and
mechanics' liens, filed or entered by any public or
quasi-public authority; and (vi) is free from complaints
or reports of violations, noted or existing in or filed
with any federal, state, county, or local authority.
(b) Landlord acknowledges and agrees that it has a continuing
obligation to maintain the Property in accordance with:
(i) all Landlord's representations and warranties herein;
and (ii) all laws, regulations, rules, and ordinances,
including without limitation those pertaining to the
environment and the Americans with Disabilities Act (ADA),
now in existence or subsequently enacted or promulgated
during the Term. Landlord further acknowledges and agrees
that any and all costs for such maintenance of the
Property shall, unless otherwise provided for in the
Lease, be borne solely by Landlord.
(c) Landlord represents and warrants that the Property has not
been used to treat, store, process, or dispose of
hazardous wastes, hazardous substances, or toxic
substances as those terms are defined under federal,
state, and local environmental laws, regulations, and
ordinances and further warrants that there are no releases
nor, to the best of Landlord's knowledge, have there ever
been any releases of such wastes or substances at, on, or
under the Property which would give rise to a cleanup or
remediation obligation under any applicable
10
federal, state, or local environmental law, regulation, or
ordinance or under common law.
(d) Landlord represents and warrants that the Property does
not contain: (i) any underground storage tanks, nor to the
best of Landlord's knowledge, have there ever been any
underground storage tanks on the Property; (ii) asbestos
in any form, including insulation or flooring; (iii)
PCB-containing equipment, including transformers or
capacitors; or (iv) to the best of Landlord's knowledge,
any other hazardous wastes, hazardous substances, or toxic
substances which could affect or impair Tenant's use of or
operations at the Property or the health or safety of
Tenant's employees.
(e) Landlord represents and warrants that it will indemnify
and hold Tenant harmless from and against any damage,
liability, fines, penalties, costs, or losses (hereinafter
collectively "Claims") to which Tenant may be subjected as
a result of Landlord's breach of any of its
representations or warranties.
(f) Landlord agrees to manage and operate the Property in
accordance with generally accepted standards for managing
and operating similar properties in the vicinity. Landlord
further agrees that Expenses (as defined below) shall not
exceed the customary and usual costs incurred in managing
and operating similar properties in the vicinity.
AS TO
ARTICLE XXI EXCLUSIVE USE RIGHT. As an inducement to Tenant's execution of
this Lease, Tenant is hereby granted the sole and exclusive
privilege in the Shopping Center (as currently constituted and
as may be expanded and now or hereafter owned or controlled by
Landlord or an affiliate) to perform banking services. The
Landlord covenants that it will not lease or permit any tenant,
subtenant or assignee of another tenant in the Shopping Center
to lease, sublease, assign or use any part of the Building for
the uses exclusively granted to Tenant herein. Upon breach of
the exclusive use right, Tenant shall have all remedies given to
it at law or in equity, including the right to injunctive relief
and damages.
11
EXHIBIT 10.5
STATE FARM PLAZA
LEASE
In consideration of the rents and covenants hereinafter set forth, Landlord
hereby leases to Tenant, and Tenant hereby rents from Landlord the following
described premises upon the following terms and conditions:
BASIC LEASE PROVISIONS
Date: January 16, 2001
Landlord: Xxx Xxxxxx, CPCU
Tenant: Valley Bank
Lease Term: 5 years (Section 2.01)
Commencement Date: February 1, 2001 (Section 2.01)
Or Date of Occupancy
Fixed Minimum Rent: Year 1: 1.10/SF plus .15/SF C.A.M.
Year 2: 1.13/SF plus .15/SF C.A.M.
Year 3: 1.17/SF plus .15/SF C.A.M.
Year 4: 1.20/SF plus .15/SF C.A.M. (dependent on CPJ)
Year 5: 1.24/SF plus .15/SF C.A.M. (dependent on CPI)
Plus two five year options
(Yr. 1 $7,118.75/mo., Yr. 2 $7,281.20/mo., Yr. 3 $7,497.80/mo., Yr. 4
$7,660.25/mo., Yr. 5 $7,876.85/mo.) Rental rate includes maintenance
expense of the entrance sign and 10 covered parking stalls
Use of Premises: Banking (Section 5.01)
Tenant's Trade Name: Valley Bank (For Sign) (Section 14.05)
Floor Area of Premises:
0000 X. Xxx. 000, XXX 0-0 -- Approximately 5,415 SF (Section 16.02) Exact
amount to be determined after construction
Security Deposit: One months rent
Seven thousand one hundred and eighteen and 75/1 00 ($7,118.75) (Article XV)
Real Estate Broker: None (Section 16.09)
i
EXHIBIT 10.5
Address for Notices:
To Landlord: 3250 S. Xxx 000, Xxxxx 0 (Section 16.08)
Xxxxxxx, Xxxxxx 00000
To Tenant: Before Occupancy:
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
After Occupancy: To Premises
The Basic Lease Provisions are an integral part of this Lease and each reference
in this Lease to any of the Basic Lease Provisions shall be construed to
incorporate all of the terms provided under each such Basic Lease Provision. In
the event of any conflict between any Basic Lease Provision and the balance of
the Lease, the latter shall control. References to specific sections are for
convenience and designate only certain of the sections where references to the
particular Basic Lease Provisions appear.
ii
EXHIBIT 10.5
STATE FARM PLAZA
INDEX
PAGE
ARTICLE I PREMISES..................................................................... 1
Section 1.01 Premises Defined............................................................. 1
ARTICLE II TERM......................................................................... 1
Section 2.01 Length of Term and Commencement Date......................................... 1
ARTICLE III RENT......................................................................... 2
Section 3.01 Fixed Minimum Rent........................................................... 2
Section 3.03 Definition of Lease Year..................................................... 2
Section 3.04 Adjustment to Fixed Minimum Rent............................................. 2
ARTICLE IV TAXES........................................................................ 2
Section 4.01 Real Property Taxes.......................................................... 2
Section 4.02 Definitions.................................................................. 2
Section 4.03 Personal Property Taxes...................................................... 3
ARTICLE V CONDUCT OF BUSINESS TENANT................................................... 3
Section 5.01 Use of Premises.............................................................. 3
Section 5.02 Restrictions of Use.......................................................... 4
ARTICLE VI MAINTENANCE, REPAIRS AND ALTERATIONS......................................... 4
Section 6.01 Landlord's Obligations....................................................... 4
Section 6.02 Tenant's Obligations......................................................... 4
Section 6.03 Alterations and Additions.................................................... 5
Section 6.04 Landlord's Right of Access................................................... 5
Section 6.05 Cleanliness; Waste and Nuisance.............................................. 5
ARTICLE VII INSURANCE; INDEMNITY......................................................... 5
Section 7.01 Liability Insurance -- Premises.............................................. 5
Section 7.02 Fire Insurance Fixtures & Equipment.......................................... 6
Section 7.03 Fire Insurance -- Premises; Rent Abatement Insurance......................... 6
Section 7.04 Insurance Policies........................................................... 6
Section 7.05 Waiver....................................................................... 6
Section 7.06 Indemnity.................................................................... 6
Section 7.07 Exemption of Landlord........................................................ 7
ARTICLE VIII REPAIRS AND RESTORATION...................................................... 7
Section 8.01 Insured or Minor Damage...................................................... 7
Section 8.02 Major Damage................................................................. 7
Section 8.03 Damage Near End of Term...................................................... 8
iii
EXHIBIT 10.5
Section 8.04 Abatement of Rent; Tenant's Remedies......................................... 8
Section 8.05 Reconstruction of Improvements............................................... 8
Section 8.06 Termination.................................................................. 8
Section 8.07 Waiver....................................................................... 9
Section 8.08 Definitions.................................................................. 9
ARTICLE IX ASSIGNMENT AND SUBLETTING.................................................... 9
Section 9.01 Landlord's Consent Required.................................................. 9
Section 9.02 No Release of Tenant......................................................... 9
Section 9.03 Written Instrument........................................................... 9
ARTICLE X EMINENT DOMAIN............................................................... 10
Section 10.01 Entire or Substantial Taking................................................. 10
Section 10.02 Partial Taking............................................................... 10
Section 10.03 Awards....................................................................... 10
Section 10.04 Sale Under Threat of Condemnation............................................ 10
ARTICLE XI UTILITY SERVICES............................................................. 10
Section 11.01 Utility Charges.............................................................. 10
Section 11.02 Furnishing of Services....................................................... 10
Section 11.03 Interruption of Service...................................................... 11
ARTICLE XII DEFAULTS; REMEDIES........................................................... 11
Section 12.01 Defaults..................................................................... 11
Section 12.02 Remedies..................................................................... 11
Section 12.03 Determination of Rent........................................................ 13
Section 12.04 Default by Landlord.......................................................... 13
Section 12.05 Tenant Remedies.............................................................. 14
Section 12.06 Expense of Litigation........................................................ 14
ARTICLE XIII COMMON AREAS................................................................. 14
Section 13.01 Definition................................................................... 14
Section 13.02 Use.......................................................................... 14
Section 13.03 Control by Landlord.......................................................... 14
Section 13.04 Common Area Costs............................................................ 15
Section 13.05 Proportionate Payment........................................................ 16
ARTICLE XIV SIGNS, LIGHTING AND ADVERTISING.............................................. 16
Section 14.01 Exterior Sign................................................................ 16
Section 14.02 Prohibited Activities........................................................ 16
Section 14.03 Maintenance.................................................................. 16
Section 14.04 Display Window Lighting...................................................... 17
Section 14.05 Advertised Name and Address.................................................. 17
ARTICLE XV SECURITY DEPOSIT............................................................. 17
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EXHIBIT 10.5
ARTICLE XVI GENERAL PROVISIONS........................................................... 18
Section 16.01 Transfer of Landlord's Interest.............................................. 18
Section 16.02 Floor Area................................................................... 18
Section 16.03 Severability................................................................. 18
Section 16.04 Interest on Past Due Obligations............................................. 18
Section 16.05 Time of Essence.............................................................. 19
Section 16.06 Headings..................................................................... 19
Section 16.07 Incorporation of Prior Agreements; Amendments................................ 19
Section 16.08 Notices...................................................................... 19
Section 16.09 Brokers...................................................................... 19
Section 16.10 Waivers...................................................................... 19
Section 16.11 Recordings................................................................... 20
Section 16.12 Liens........................................................................ 20
Section 16.13 Subordination and Attornment................................................. 20
Section 16.14 Fixtures and Personal Property............................................... 21
Section 16.15 Quiet Possession............................................................. 21
Section 16.16 Certificates................................................................. 21
Section 16.17 Holding Over................................................................. 21
Section 16.18 Payments..................................................................... 21
Section 16.19 No Partnership............................................................... 22
ARTICLE XVII CONSTRUCTION OF PREMISES..................................................... 22
Section 17.01 Tenant Improvements.......................................................... 22
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