Exhibit 10(A)
LEASE
BELTWAY BUSINESS PARK WAREHOUSE NO. 2, LLC,
A NEVADA LIMITED LIABILITY COMPANY,
AS LANDLORD,
AND
NEVADA POWER COMPANY,
A NEVADA CORPORATION,
AS TENANT
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
TABLE OF CONTENTS
PAGE
ARTICLE ONE BASIC TERMS....................................................................... 1
ARTICLE TWO LEASE TERM........................................................................ 4
ARTICLE THREE BASE RENT......................................................................... 7
ARTICLE FOUR OTHER CHARGES PAYABLE BY TENANT................................................... 8
ARTICLE FIVE USE OF PROPERTY................................................................... 16
ARTICLE SIX CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS....................... 23
ARTICLE SEVEN DAMAGE OR DESTRUCTION............................................................. 26
ARTICLE EIGHT CONDEMNATION...................................................................... 28
ARTICLE NINE ASSIGNMENT AND SUBLETTING......................................................... 28
ARTICLE TEN DEFAULTS; REMEDIES................................................................ 32
ARTICLE ELEVEN PROTECTION OF LENDERS............................................................. 34
ARTICLE TWELVE LEGAL COSTS....................................................................... 35
ARTICLE THIRTEEN BROKERS........................................................................... 36
ARTICLE FOURTEEN BUILDING SHELL AND TENANT IMPROVEMENTS............................................ 36
ARTICLE FIFTEEN TELECOMMUNICATIONS SERVICES....................................................... 40
ARTICLE SIXTEEN MISCELLANEOUS PROVISIONS.......................................................... 40
ARTICLE SEVENTEEN MASTER LEASE...................................................................... 44
ARTICLE EIGHTEEN DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RECIPROCAL EASEMENTS....... 46
ARTICLE NINETEEN NO OPTION OR OFFER................................................................ 46
ARTICLE TWENTY CONDITION SUBSEQUENT.............................................................. 46
EXHIBITS
A DEPICTION OR DESCRIPTION OF THE PROPERTY
B SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT [CONSTRUCTION
LENDER]
B-1 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT [PERMANENT LENDER]
C ESTOPPEL CERTIFICATE
D HAZARDOUS MATERIALS
E CONFIRMATION OF INITIAL LEASE TERM AND AMENDMENT TO LEASE
F MEMORANDUM OF LEASE
G MASTER LEASE
H BASE BUILDING SHELL PLANS
I MODIFIED BUILDING SHELL PLANS
J TENANT'S LIMITED RESTORATION OBLIGATION
K FORM OF TENANT IMPROVEMENT CONTRACT
L MASTER LANDLORD RNDA
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INDEX OF DEFINED TERMS
TERM PAGE
ADDITIONAL LAND......................................................... 2
ADDITIONAL RENT......................................................... 8
APPLICABLE LAWS......................................................... 16
ARCHITECT............................................................... 27
BASE BUILDING SHELL IMPROVEMENTS........................................ 37
BASE BUILDING SHELL PLANS............................................... 36
BASE RENT............................................................... 3
BROKERS................................................................. 36
BUILDING................................................................ 2
BUILDING SHELL IMPROVEMENTS............................................. 36
CAM SERVICES LIST....................................................... 15
CHANGE ORDER............................................................ 38
CHANGES................................................................. 38
COMMON AREA COSTS....................................................... 14
COMMON AREAS............................................................ 13
CONDEMNATION............................................................ 28
CONSENT................................................................. 30
CONSTRUCTION DRAWINGS................................................... 37
CONSULTANT.............................................................. 20
CONTROL................................................................. 30
COUNTY.................................................................. 44, 45
DECLARATION............................................................. 46
ENVIRONMENTAL DAMAGES................................................... 17
ENVIRONMENTAL REQUIREMENTS.............................................. 17
ESTIMATED LEASE COMMENCEMENT DATE....................................... 2
ESTIMATED SUBSTANTIAL COMPLETION DATE................................... 2
EVENT OF DEFAULT........................................................ 32
EXTENSIONS.............................................................. 5
FAIR RENTAL VALUE....................................................... 7
FINAL PLANS............................................................. 37
FORCE MAJEURE........................................................... 42
GOVERNMENTAL AGENCY..................................................... 18
HAZARDOUS MATERIAL...................................................... 16
IMPOSITION.............................................................. 25
LANDLORD................................................................ 1, 22, 41
LANDLORD'S CONTRACTOR................................................... 25
LANDLORD'S NOTICE....................................................... 37
LEASE COMMENCEMENT DATE................................................. 4
LEASE EXPIRATION DATE................................................... 4
LEASE MEMORANDUM........................................................ 42
LEASE MONTH............................................................. 7
LEASE TERM.............................................................. 4
LEASE YEAR.............................................................. 8
LEASEHOLD TITLE POLICY.................................................. 45
MASTER LANDLORD......................................................... 44, 45
MASTER LEASE............................................................ 44
MODIFIED BUILDING SHELL COSTS........................................... 39
NOTICE AND ACKNOWLEDGEMENT.............................................. 24
NOTICES................................................................. 41
NRS..................................................................... 8
OFAC.................................................................... 43, 44
OPTIONS................................................................. 5
PERMITTED PURCHASER..................................................... 30
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PERMITTED USES............................................................. 2
POSTED SECURITY REQUIREMENTS............................................... 24
PRO RATA SHARE............................................................. 14
PROJECT.................................................................... 2
PROPERTY................................................................... 2
REAL PROPERTY TAX.......................................................... 8
RECORDS.................................................................... 38
REDETERMINATION REQUEST.................................................... 7
RENT....................................................................... 8
RENTAL ADJUSTMENT DATE..................................................... 7
RENTAL ADJUSTMENT DATES.................................................... 6
RESTORATION................................................................ 27
SIGN....................................................................... 21
STRUCTURAL AND SAFETY ALTERATIONS.......................................... 25, 26
SUBJECT SPACE.............................................................. 28
SUBLEASE................................................................... 30
SUBTENANT.................................................................. 30
TAX CONTEST................................................................ 9
TELECOMMUNICATIONS EQUIPMENT............................................... 40
TENANT..................................................................... 1, 22
TENANT AFFILIATE........................................................... 30
TENANT GROUP............................................................... 18
TENANT IMPROVEMENTS........................................................ 37
TENANT'S ALTERATIONS....................................................... 24
TENANT'S COSTS............................................................. 38
TENANT'S OBJECTION......................................................... 37
TENANT'S REQUEST AND ACCEPTANCE NOTICE..................................... 38
TENANT'S SHARE............................................................. 39
TENANT'S TELECOMMUNICATIONS EQUIPMENT...................................... 40
TERMINATION OPTION......................................................... 46
TRANSFER NOTICE............................................................ 28
TRANSFER PREMIUM........................................................... 29
TRANSFEREE................................................................. 28
TRANSFERS.................................................................. 28
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LEASE
ARTICLE ONE BASIC TERMS
This Article One contains the Basic Terms of this Lease between Landlord
and Tenant named below. Other Articles, Sections and Paragraphs of this Lease
referred to in this Article One explain and define the Basic Terms and are to be
read in conjunction with the Basic Terms.
Section 1.01. DATE OF LEASE: December 11, 2006.
Section 1.02. LANDLORD: BELTWAY BUSINESS PARK WAREHOUSE NO. 2, LLC, a
Nevada limited liability company.
Address of Landlord: c/o Majestic Realty Co.
13191 Crossroads Parkway North, Sixth Floor
City of Industry, California 91746
Attention: Property Management
[Telephone: (000) 000-0000]
[Fax: (000) 000-0000]
With a copy of any notices to:
c/o Majestic Realty Co.
0000 X. Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
Attention: Property Manager
[Telephone: (000) 000-0000]
[Fax: (000) 000-0000]
MASTER LANDLORD: (see Article Seventeen) County of Xxxxx, a
political subdivision of the State of Nevada.
Section 1.03. TENANT: NEVADA POWER COMPANY, a Nevada corporation.
Address of Tenant: Nevada Power Company
Administrative Services
0000 X. Xxxxxx Xxx.
Xxx Xxxxx, Xxxxxx 00000
Attention: Director of Administrative Services
[Telephone: (000) 000-0000]
[Fax: (000) 000-0000]
With copies of any notices to:
Nevada Power Company
Legal Department
0000 X. Xxxxxx Xxx.
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
[Telephone: (000) 000-0000]
[Fax: (000) 000-0000]
and:
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
1
K. Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx & Xxxxxx
000 X. Xxxxxxx Xxx.
Xxx Xxxxx, XX 00000
[Fax: (000) 000-0000]
Section 1.04. PROPERTY: The Property (defined below) is part of Landlord's
multi-tenant real property development which will, when completed, consist of
two (2) buildings having a total of approximately 540,000 square feet of
rentable space and described or depicted on the attached Exhibit "A" (the
"PROJECT"). The Project includes the land, the buildings and all other
improvements located on the land, and the Common Areas and Common Area
Improvements (as defined in Section 4.05(a) below). The property that is the
subject of this Lease is that part of the Project known as Building 5 (which
will include approximately 288,000 square feet of space) (the "BUILDING"), the
real property upon which the Building and certain Common Areas are located
("BUILDING PREMISES") consisting of approximately 16.00 acres of land generally
located at 0000 Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, plus approximately 15.94 acres
of land adjacent to the Building Premises (the "ADDITIONAL LAND"), all as shown
on 4 0000 Xxxxxxx Xxxx Xxx Xxxxx, Xxxxxx Nevada Power Company DMWEST #6375379
v25 Exhibit "A" attached hereto (collectively, the "PROPERTY"). Although some
Common Area Improvements will be physically located on the Building Premises, as
used in this Lease, neither the defined term "Building" nor the defined term
"Property" is intended to include those improvements included within the defined
term "Common Area Improvements," unless otherwise expressly provided. The square
footage figures for the Project and the Property, as recited in this Section
1.04, are approximate. No adjustment will be made to the Base Rent or any other
amounts payable by Tenant under this Lease (or to any other provisions of this
Lease) if the actual square footage, however measured, is more or less than the
square footage recited.
Section 1.05. TERM.
(a) LEASE TERM: Twenty (20) years, subject to Sections 2.05 and
3.01, commencing on the Lease Commencement Date.
(b) LEASE COMMENCEMENT DATE: The Lease Commencement Date (as defined
in Section 2.01 below) of the initial Lease Term shall be the one hundred
eightieth (180th) day following Substantial Completion (as defined in Article
Fourteen below) of the Building Shell Improvements (as defined in Article
Fourteen below). The estimated date of Substantial Completion of the Building
Shell Improvements is February 1, 2007 (the "ESTIMATED SUBSTANTIAL COMPLETION
DATE"), and the Lease Commencement Date is estimated to be August 1, 2007 (the
"ESTIMATED LEASE COMMENCEMENT DATE"). Upon determination of the actual date of
Substantial Completion of the Building Shell Improvements and the actual Lease
Commencement Date, Landlord and Tenant shall promptly execute a Confirmation of
Initial Lease Term and Amendment to Lease, substantially in the form of that
attached as Exhibit "E" to this Lease.
(c) LEASE EXPIRATION DATE: Subject to Section 2.05, the expiration
date of the initial Lease Term shall be the last day of the two hundred fortieth
(240th) calendar month following the month in which the Lease Commencement Date
falls, unless the Lease Commencement Date is the first day of a calendar month,
in which event the expiration date shall be the last day of the two hundred
thirty-ninth (239th) calendar month following the month in which the Lease
Commencement date falls.
Section 1.06. PERMITTED USES: Office uses; employee fitness center;
storage, warehousing and distribution uses, including, but not limited to
storage and distribution of transformers; design and engineering uses; employee
training; fabrication, assembly and manufacture of items, parts, equipment and
apparatus for use by Tenant, its affiliates and/or permitted Subtenants (as
defined in Section 9.08) in the course of their business, but not for sale to
third parties except with the prior written consent of Landlord; communication,
telecommunication and technological activities and services; call center; credit
union office and services; food and drink preparation, service and sale (but not
for commercial purposes with the general public), including cafeteria and
concession sales; cleaning, maintenance, repair and restoration of personal
property, including equipment and apparatus (but not for commercial purposes
with the public or third parties except with the prior written consent of
Landlord); parking, storage, cleaning, fueling, maintenance, repair and
restoration of vehicles (but not for commercial purposes with the public or
third parties except with the prior written consent of Landlord, and with such
uses to be conducted primarily on the Additional Land); demonstration energy
conservation projects, including solar panels and wind
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turbines; public meeting rooms for community organizations; uses reasonably
related to all of the foregoing; and any other uses approved in advance, in
writing, by Landlord. Consistent with the above, if in the course of consenting
to a proposed assignment or subletting requiring Landlord's consent under
Article Nine below, Landlord expressly approves a different use of all or a
portion of the Property, then such different use (and any ancillary office use)
shall also constitute a Permitted Use under this Lease. Subject to any
restrictions and requirements of Applicable Laws (as defined in Section 5.02
below). Tenant's outside storage yard on the westerly portion of the Additional
Land shall have block walls on the north, west and south boundaries. Any
permanent outside storage of items on other portions of the Property shall be
screened from view from adjacent public roadways, as may be reasonably required
by Landlord. Notwithstanding any language to the contrary in this Section 1.06,
no such Permitted Use shall (i) create obnoxious (as to a reasonable person)
odors or noise, (ii) include storage of tire or other products made with like
materials (except for storage of tires on the Additional Land for future use on
vehicles of Tenant and permitted Subtenants, and temporary storage of used tires
on the Additional Land preceding offsite disposition), (iii) include storage of
explosives, or (iv) involve fabrication or manufacturing, except as specifically
allowed above in this Section 1.06.
Section 1.07. SECURITY DEPOSIT: None.
Section 1.08. TENANT'S GUARANTOR: None.
Section 1.09. BROKERS: (See Article Thirteen)
Landlord's Broker: Majestic Realty Co.
0000 X. Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
and
Valley Realty, LLC
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Tenant's Broker: Commerce CRG of Nevada, LLC
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Section 1.10. RENT AND OTHER CHARGES PAYABLE BY TENANT: (Subject to the
provisions of Section 3.01).
(a) BASE RENT:
Lease Term Monthly Installment of Base Rent
---------- --------------------------------
Partial calendar month (if any) $250,000.00 (prorated)
at commencement of Lease Term
Lease Months 1 through 3 $125,000.00
Lease Months 4 through 24 $250,000.00
Lease Months 25 through 48 $265,000.00
Lease Months 49 through 72 $280,900.00
Lease Months 73 through 96 $297,754.00
Lease Months 97 through 120 $315,619.24
Lease Months 121 through 144 $334,556.39
Lease Months 145 through 168 $354,629.78
Lease Months 169 through 192 $375,907.56
Lease Months 193 through 216 $398,462.02
Lease Months 217 through 240 $422,369.74
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(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (see Section
4.02 below); (ii) Utilities (see Section 4.03 below); and (iii) Tenant's Pro
Rata Share--which shall be fifty percent (50%)--of Common Area Costs (see
Section 4.05(e) below).
ARTICLE TWO LEASE TERM
Section 2.01. LEASE OF PROPERTY FOR LEASE TERM. The term of this Lease
(the "LEASE TERM") shall be as set forth in Section 1.05(a) above, shall
commence on the date (the "LEASE COMMENCEMENT DATE") set forth in Section
1.05(b) above, and shall terminate on the date (the "LEASE EXPIRATION DATE") set
forth in Section 1.05(c) above, unless sooner terminated or extended as
expressly provided in this Lease. The terms and provisions of this Lease shall
be effective as of the date of this Lease, except for Section 1.10, Article
Three (save and except Section 3.03), Article Four (save and except for Section
4.04(a) with respect to, but only with respect to, acts and omissions of Tenant,
its agents, employees, contractors or other persons under the supervision and
control of Tenant while on or about the Property), Section 5.02, Section 5.03
(save and except for Section 5.03.11), Section 5.05.1, Section 6.04 and Article
Seven. Those excepted terms and provisions of this Lease not becoming effective
as of the date of this Lease shall be and become effective on the Lease
Commencement Date unless they become effective earlier pursuant to the
provisions of Section 2.03 below.
Section 2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on the
Estimated Substantial Completion Date. Landlord's non-delivery of the Property
to Tenant on that date shall not affect this Lease or the obligations of Tenant
under this Lease, except that the Lease Commencement Date shall be delayed until
the one hundred eightieth (180th) day following Substantial Completion of the
Building Shell Improvements (unless such delay in Substantial Completion of the
Building Shell Improvements is the result of a Tenant Delay, as defined in
Section 14.02 below, in which event the 180-day period shall be reduced for a
period equal to the period of Tenant Delay). If Substantial Completion of the
Building Shell Improvements does not occur within one hundred eighty (180) days
following the Estimated Substantial Completion Date (extended for any periods of
Tenant Delay and any Force Majeure Delay as defined in Section 16.12 below),
Tenant may elect to cancel and terminate this Lease by giving written notice to
Landlord within fifteen (15) business days after the one hundred eighty
(180)-day period (as it may have been extended) ends. If Tenant gives such
notice, this Lease shall be canceled and terminated, and neither Landlord nor
Tenant shall have any further obligations to the other, excepting only those
obligations which have accrued prior to or which expressly survive termination
of this Lease. If Tenant fails to timely give such notice, the right to cancel
and terminate this Lease shall expire, and the Lease Term shall commence on the
one hundred eightieth (180th) day following Substantial Completion of the
Building Shell Improvements. Consistent with the terms of Section 1.05(b) above,
upon determination of the date of Substantial Completion of the Building Shell
Improvements and the Lease Commencement Date, Landlord and Tenant shall promptly
execute an amendment to this Lease setting forth the Lease Commencement Date and
Lease Expiration Date, substantially in the form attached as Exhibit "E" to this
Lease. Failure to execute such amendment shall not affect the actual Lease
Commencement Date and Lease Expiration Date. The failure of Tenant to take
possession of or to occupy the Property shall not serve to relieve Tenant of any
obligations arising on the Lease Commencement Date, and shall not delay the
payment of rent by Tenant.
Section 2.03. EARLY ENTRY AND OCCUPANCY. Prior to Substantial Completion
of the Building Shell Improvements, Tenant shall have the right of early
occupancy of the Additional Land, subject to (a) full execution of this Lease,
(b) Landlord's receipt of the sum of One Hundred Twenty-five Thousand Dollars
($125,000.00) for Base Rent for Lease Month 1, (c) Landlord's and Tenant's
receipt of any necessary governmental permits, approvals, certificates, or
consents, (d) Landlord's prior receipt of Tenant's proposed schedule describing
the timing and purposes of Tenant's early occupancy, and (e) all of the terms
and conditions of this Lease then becoming effective, with the exception of
Section 1.10, Article Three (save and except Section 3.03), Article Four (save
and except for Section 4.04(a) with respect to, but only with respect to, acts
and omissions of Tenant, its agent, employees, contractors or other persons
under the supervision and control of Tenant while on or about the Property),
Section 5.02, Section 5.03 (save and except for Section 5.03.11 and except with
respect to acts and omissions of Tenant, its agents, employees, contractors or
other parties under the supervision and control of Tenant while on or about the
Property), Section 5.05.1 (except with respect to acts and omissions of Tenant,
its agents, employees, contractors or other parties under the supervision and
control of Tenant while on or about the Property), Section 6.04 and Article
Seven. Those excepted terms and provisions of this Lease not becoming effective
for purposes of the above early
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entry and occupancy period shall be and become effective on the Lease
Commencement Date. In addition to early occupancy of the Additional Land, Tenant
and Tenant's architects and other design representatives shall have the right
during the course of construction of the Building Shell Improvements to enter
upon the Building Premises for review and inspection purposes.
Landlord and Tenant shall together review Tenant's proposed schedule describing
the timing and purposes of Tenant's early occupancy, and Landlord and Tenant
shall work in good faith with each other to limit interference with each other's
activities during any period of early occupancy. Such early occupancy shall be
for the purpose of preparing the Property for use by Tenant and any permitted
Subtenants, including the construction of the Tenant Improvements (defined in
Article Fourteen below), if Tenant elects to do so pursuant to Section 14.04
below, and the installation of improvements and equipment and storage of
inventory and other personal property of Tenant and any permitted Subtenants.
During such period, Tenant shall assume all risk of loss to Tenant's equipment,
products, and other personal property. Tenant's entry upon the Building Premises
during this period shall not interfere with construction of the Building Shell
Improvements by Landlord's contractor, and in the event it does so interfere,
Tenant shall cease all such activity on the Building Premises until Substantial
Completion of the Building Shell Improvements.
Section 2.04. HOLDING OVER. If Tenant holds over after the expiration of
the Lease Term, with or without the express or implied consent of Landlord, such
tenancy shall be from month-to-month only, and shall not constitute a renewal
hereof or an extension for any further term, and in such case Base Rent shall be
payable at a monthly rate equal to one hundred twenty percent (120%) of the Base
Rent applicable immediately before the expiration of the Lease Term. Such
month-to-month tenancy shall be subject to every other term, covenant and
agreement contained herein. Nothing contained in this Section 2.04 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Property to Landlord as provided in this Lease upon the expiration or other
termination of this Lease. The provisions of this Section 2.04 shall not be
deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Property
upon the termination or expiration of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender, and any lost profits to Landlord
resulting therefrom; provided, however, that notwithstanding the foregoing
provisions of this sentence and any language to the contrary in this Section
2.04, Tenant shall not be obligated with respect to the foregoing provisions of
this sentence and shall not be liable for any consequential damages unless (i)
Landlord enters into a written lease with a third-party, unrelated, and
unaffiliated tenant requiring delivery of the Property upon or following the
Lease Expiration Date, (ii) Landlord gives Tenant written notice of having
entered into that lease and a copy of the lease language requiring delivery of
the Property and the required date of delivery and (iii) Tenant fails to
surrender the Property by the later to occur of (a) the Lease Expiration Date or
(b) the one hundred eightieth (180th) day following Tenant's receipt of that
written notice.
Section 2.05. OPTIONS TO EXTEND LEASE TERM.
(a) Grant of Options. Landlord hereby grants to Tenant three (3)
options (the "OPTIONS") to extend the Lease Term for additional periods of ten
(10) years each (the "EXTENSIONS"), on the same terms and conditions as set
forth in this Lease, but at Base Rent as set forth below and without any
additional Options other than those granted in this Section 2.05; provided,
however, that the final Extension shall expire on the earlier of ten (10) years
following the commencement date of such Extension or the expiration date (as it
may be extended) of the Master Lease (defined below). In the event of the
exercise of one or more Options by Tenant, the Lease Expiration Date shall be
the last day of the last Extension for which the Option is exercised. Each
Option shall be exercised only by written notice delivered to Landlord not less
than two hundred seventy (270) days before the expiration of the initial Lease
Term or the preceding Extension of the Lease Term, respectively, and shall be
subject to the provisions of Section 2.05 (c)(1)(iv) below. If Tenant fails to
deliver Landlord written notice of the exercise of an Option within the
prescribed time period, such Option and any succeeding Options shall lapse, and
there shall be no further right to extend the Lease Term. Each Option shall be
exercisable by Tenant on the express conditions that at the time of the exercise
(and at all times following such exercise and prior to the commencement of the
Extension), Tenant shall not be in material default under any of the provisions
of this Lease (beyond any applicable notice and
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cure period). Following Tenant's timely and valid exercise of an Option and the
determination of the amount of Base Rent to be paid on the applicable FRV Rental
Adjustment Date (as defined below) (taking into consideration the provisions of
Section 2.05 (d)(1)(iv) below), Landlord shall prepare and Tenant shall execute
and deliver to Landlord an amendment to this Lease confirming the term of the
Extension and the amount of Base Rent payable by Tenant during such Extension.
(b) Time of Essence. Time is of the essence with respect to Tenant's
exercise of the Option(s) granted in this Section 2.05.
(c) Calculation of Rent. The Base Rent during the Extension(s) shall
be determined by a combination of the following methods:
Fair Rental Value Adjustment (Section 2.05(c)(1), below); and
Fixed Adjustment (Section 2.05(c)(2), below).
(1) Fair Rental Value Adjustment. The Base Rent shall be adjusted on
the first day of the first month of each Extension of the Lease Term (the "FRV
RENTAL ADJUSTMENT DATES") to the "fair rental value" of (a) the Base Building
Shell Improvements (as defined in Section 14.01) upon and including the Building
Premises (exclusive of any (i) Common Area Improvements, other than those
included in the Base Building Shell Plans and located on the Building Premises
[but expressly excluding the ESFR System]), and (ii) any other onsite or offsite
improvements located thereon or associated therewith, other than those included
in the Base Building Shell Plans [as defined in Section 14.01]), and (b) the
land comprising the Additional Land (as if vacant, and without any buildings,
other structures or onsite or offsite improvements located thereon or associated
therewith) (collectively, the "APPRAISED PREMISES"), determined in the manner
that follows. The fair rental value of the Appraised Premises shall equal the
Base Rent on the applicable FRV Rental Adjustment Date and shall be the sum
total of (a) of the fair rental value of the Base Building Shell Improvements
upon and including the Building Premises, as if the Building Shell Improvements
were comprised solely and exclusively of the Base Building Shell Improvements
and had been constructed upon the Building Premises on the Building Shell
Substantial Completion Date as reflected in the Base Building Shell Plans,
without any of the Building Modifications (as defined in Section 14.01),
exclusive of any (i) Common Area Improvements, other than those included in the
Base Building Shell Plans and located on the Building Premises (but expressly
excluding the ESFR System), and (ii) any other onsite or offsite improvements
located thereon or associated therewith, other than those included in the Base
Building Shell Plans, and (b) the fair rental value of the land comprising the
Additional Land, as if vacant land, without any buildings, other structures or
onsite or offsite improvements located thereon or associated therewith, all
appraised in accordance with the provisions of Section 2.05(c)(1)(iii) below.
(i) Not later than two hundred fifty (250) days prior to any
applicable FRV Rental Adjustment Date, Landlord and Tenant shall meet in an
effort to negotiate, in good faith, the fair rental value of the Appraised
Premises as of such FRV Rental Adjustment Date. If Landlord and Tenant have not
agreed upon the fair rental value of the Appraised Premises at least one hundred
eighty (180) days prior to the applicable FRV Rental Adjustment Date, the fair
rental value shall be determined by appraisal issued by a real estate appraisal
firm of national standing in the manner that follows.
(ii) If Landlord and Tenant are not able to agree upon the
fair rental value of the Appraised Premises within the prescribed time period,
then Landlord and Tenant shall attempt to agree in good faith upon a single
appraiser, not later than one hundred fifty (150) days prior to the applicable
FRV Rental Adjustment Date. If Landlord and Tenant are unable to agree upon a
single appraiser within such time period, then Landlord and Tenant shall each
appoint one appraiser not later than one hundred twenty (120) days prior to the
applicable FRV Rental Adjustment Date. Within thirty (30) days thereafter, the
two appointed appraisers shall appoint a third appraiser. If either Landlord or
Tenant fails to appoint its appraiser within the prescribed time period, the
single appraiser appointed shall determine the fair rental value of the
Appraised Premises. If both parties fail to appoint appraisers within the
prescribed time periods, then the first appraiser thereafter selected by a party
shall determine the fair rental value of the Appraised Premises. Each party
shall bear the cost of its own appraiser, and the parties shall share equally
the cost of the single or third appraiser, if applicable. The appraisers used
shall have at least five (5) years' experience in appraising
commercial/industrial real property in Xxxxx County, Nevada. All such appraisers
shall be Members of the Appraisal Institute. The appraisers shall be instructed
to separately determine
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the fair rental value of each of the two components of the Appraised Premises as
noted and described in the second sentence of the first paragraph of this
Section 2.05(c)(1) above
(iii) For the purposes of such appraisal, the term "fair
rental value" shall mean the price that a ready and willing tenant would pay, as
of the applicable FRV Rental Adjustment Date, as monthly rent to a ready and
willing landlord of the Appraised Premises (subject to usual adjustments) if
such property were exposed for lease on the open market for a reasonable period
of time for warehouse distribution purposes as respects the Base Building Shell
Improvements and the Building Premises, and for outside storage and vehicle
parking purposes as respects the Additional Land. If a single appraiser is
chosen, then such appraiser shall determine the fair rental value of the
Appraised Premises. If two appraisers shall agree upon the fair rental value of
the Appraised Premises, then the amount so agreed upon shall be the fair rental
value of the Appraised Premises. Otherwise, the fair rental value of the
Appraised Premises shall be the amount of the appraisal which is neither the
highest nor the lowest value. Base Rent shall not be reduced pursuant to the
provisions of this Section 2.05 (c)(1)(iii) by reason of such determination of
fair rental value of the Appraised Premises. Landlord and Tenant shall instruct
the appraiser(s) to complete their determination of the fair rental value not
later than sixty (60) days prior to the applicable FRV Rental Adjustment Date.
When the fair rental value of the Appraised Premises is determined by appraisal
as provided above, Landlord shall deliver notice thereof to Tenant, together
with statement setting forth the amount of Base Rent determined therefrom. If
the fair rental value is not determined prior to the applicable FRV Rental
Adjustment Date, then Tenant shall continue to pay to Landlord the Base Rent
immediately prior to such Extension, until the fair rental value is determined.
Tenant shall pay to Landlord, within ten (10) days after receipt of Landlord's
notice, any difference between the Base Rent actually paid by Tenant to Landlord
and the new Base Rent determined hereunder.
(iv) Notwithstanding any other provision herein to the
contrary, within one hundred twenty (120) days following receipt by Tenant from
Landlord of the determination of the fair rental value and the amount of the
Base Rent determined therefrom, Tenant may give Landlord written request for
redetermination of the amount of the Base Rent ("REDETERMINATION REQUEST"). The
Redetermination Request may be for purposes of reducing the Base Rent from the
amount payable prior to the applicable FRV Rental Adjustment Date. Within thirty
(30) days following Landlord's receipt of the Redetermination Request, Landlord
and Tenant shall meet and negotiate in good faith to agree upon a redetermined
amount of Base Rent to be paid commencing on the applicable FRV Rental
Adjustment Date. If Landlord and Tenant agree to an adjustment, the adjusted
amount shall be the amount of Base Rent for the applicable period, and Tenant
shall receive credit for any overpayments. If Landlord and Tenant are unable to
agree in writing upon an adjusted amount of Base Rent within ninety (90) days of
Landlord's receipt of the Redetermination Request, Tenant shall have the right
to terminate this Lease and Tenant's further rights and obligations under this
Lease as of a date certain (the "EARLY TERMINATION DATE"), which date shall be
not less than two (2) years following Landlord's receipt of written notice from
Tenant that Tenant intends to terminate this Lease in accordance with the
foregoing provisions. The Base Rent payable by Tenant to Landlord on and after
the applicable FRV Rental Adjustment Date shall be one hundred six percent
(106%) of the Base Rent payable immediately prior to the applicable FRV Rental
Adjustment Date. If the Early Termination Date is more than two (2) years
following the applicable FRV Rental Adjustment Date, the Base Rent shall be
increased by a like amount (106% of the Base Rent then payable) every two (2)
years thereafter.
(2) Fixed Adjustment. The Base Rent shall be increased to the
following amounts on the following dates: on the first day of the 25th, 49th,
73rd and 97th months of each Extension (each a "RENTAL ADJUSTMENT DATE") by a
factor of six percent (6%) over the Base Rent payable immediately prior to the
applicable Rental Adjustment Date.
ARTICLE THREE BASE RENT
Section 3.01. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the sum of One Hundred Twenty-five Dollars
($125,000.00) as and for the Base Rent for Lease Month 1. On the first day of
Lease Month 3, Tenant shall pay Landlord the monthly Base Rent for any partial
Lease Month at the beginning of the Lease Term. On the first day of Lease Month
2 and each month during the Lease Term thereafter, Tenant shall pay Landlord the
monthly Base Rent set forth in Section 1.10(a) above, in advance, without
offset, deduction or prior demand except as otherwise provided herein. The Base
Rent shall be payable at Landlord's address or at such other place as Landlord
may designate in writing. The term "LEASE MONTH" shall
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mean each consecutive full calendar month during the Lease Term (excluding any
partial calendar month at the inception of the Lease Term). For purposes of this
Lease, the term "LEASE YEAR" shall mean, with respect to the first Lease Year,
the period commencing on the Lease Commencement Date and ending on the last day
of the twelfth (12th) calendar month following the month in which the Lease
Commencement Date falls (unless the Lease Commencement Date falls on the first
day of a calendar month, in which case the first Lease Year will end on the last
day of the twelfth (12th) Lease Month), and with respect to subsequent Lease
Years, each consecutive twelve (12) month period during the Lease Term following
the first Lease Year. If the Lease Commencement Date is a day other than the
first day of a calendar month, then (a) the Lease Term shall include the number
of months stated (or the number of months included within the number of years
stated) in Section 1.05 above, plus the partial calendar month in which the
Lease Commencement Date falls, (b) Base Rent of $250,000.00 and Additional Rent
for such partial month shall be prorated based on the number of days in such
calendar month and (c) such rent shall be payable on the first day of Lease
Month 3.
Section 3.02. APPLICATION OF PAYMENTS. Unless otherwise agreed by Landlord
and Tenant, all payments received by Landlord from Tenant shall be applied to
the oldest payment obligation owed by Tenant to Landlord. No designation by
Tenant, either in a separate writing or on a check or money order, shall modify
this Section or have any force or effect.
Section 3.03. TERMINATION; ADVANCE PAYMENTS. Upon termination of this
Lease under Article Seven (Damage or Destruction) of this Lease, or under
Article Eight (Condemnation) of this Lease, or any other termination not
resulting from Tenant's default, and after Tenant has vacated the Property in
the manner required by this Lease, Landlord shall refund or credit to Tenant (or
Tenant's successor) any Rent, including Additional Rent, or other advance
payments made by Tenant to Landlord, and any amounts paid for Real Property
Taxes and insurance which apply to any time periods after termination of this
Lease.
ARTICLE FOUR OTHER CHARGES PAYABLE BY TENANT
Section 4.01. ADDITIONAL RENT. All charges payable by Tenant during the
Lease Term other than Base Rent are called "ADDITIONAL RENT." Unless this Lease
provides otherwise, Tenant shall pay all Additional Rent then due with the next
monthly installment of Base Rent. The term "rent" or "RENT" shall mean Base Rent
and Additional Rent. Without limitation on other obligations of Tenant that
shall survive the expiration or earlier termination of the Lease Term, the
obligations of Tenant to pay the Additional Rent provided for in this Article
Four shall survive the expiration or earlier termination of the Lease Term. The
failure of Landlord to timely furnish Tenant the amount of the Additional Rent
shall not preclude Landlord from enforcing its rights to collect such Additional
Rent after furnishing the amount.
Section 4.02. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. Tenant shall pay all Real Property Taxes on
the Property (including any fees, taxes or assessments against, or as a result
of, any tenant improvements installed on the Property by or for the benefit of
Tenant) during the Lease Term. Until the Property is separately assessed as
provided in Section 4.02(c) below, Landlord shall xxxx Tenant in advance for
Tenant's share of the Real Property Taxes, and Tenant shall pay Landlord the
amount of such Real Property Taxes quarterly prior to their due date, as
Additional Rent. Landlord shall pay such taxes prior to such delinquency date,
provided that Tenant has timely made such payments to Landlord. Any penalty
caused by Tenant's failure to timely make such payments shall also be Additional
Rent owed by Tenant immediately upon demand. When the Property is separately
assessed as provided in Section 4.02(c) below, Tenant shall pay all Real
Property Taxes as part of Tenant's central tax assessment, or as otherwise
required by the applicable taxing authorities.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real Property Tax" means ad
valorem real property tax assessed against the Property and levied pursuant to
the provisions of Nevada Revised Statutes ("NRS") 361.445-361.470, or any
successor statute, and (i) any fee, license fee, license tax, business license
fee, commercial rental tax, levy, charge, assessment, penalty or tax imposed by
any taxing authority against the Property; (ii) any tax on the Landlord's right
to receive, or the receipt of, rent or income from the Property or against
Landlord's business of leasing the Property; (iii) any tax or charge for fire
protection, streets, sidewalks, road maintenance, refuse or other services
provided to the Property by any governmental agency; (iv) any tax imposed upon
this transaction or
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based upon a re-assessment of the Property due to a change of ownership, as
defined by applicable law, or other transfer of all or part of Landlord's
interest in the Property; and (v) any charge or fee replacing any tax previously
included within the definition of Real Property Tax. "Real Property Tax" does
not, however, include (i) Landlord's federal or state income, franchise,
inheritance or estate taxes, or (ii) penalties imposed by any taxing authority
against the Property due to Landlord's failure to pay such taxes prior to
delinquency, unless such failure was due to Tenant's failure to timely make such
payments to Landlord.
(c) JOINT ASSESSMENT; TENANT'S SHARE. Until the Property is
separately assessed, Landlord shall reasonably determine Tenant's share of the
Real Property Taxes payable by Tenant under Section 4.02(a) above from the
assessor's worksheets or other reasonably available information. As used in this
Section 4.02, the Real Property Taxes for the Property shall be (i) Tenant's Pro
Rata Share of the Real Property Taxes for the Project exclusive of the
Additional Land, plus (ii) all of the Real Property Taxes for the Additional
Land. Landlord shall diligently pursue the separate assessment of the Property
as follows: Upon recordation of the Lease Memorandum (defined in Section 16.08
below), Landlord, at Landlord's cost and expense, shall have all of the Property
included in one or more Assessor's Parcels comprised exclusively of all or
portions of the Property, so that the entirety of the Property may be taxed
separately as part of Tenant's central tax assessment. The Building Premises
shall independently comprise a single Assessor's Parcel. The Additional Land
shall separately comprise one or more Assessor's Parcels of such size and
configuration as Tenant shall direct, subject to such requirements as may be
imposed by the Xxxxx County Assessor's Office; provided, however, that the cost
of preparing any additional required legal descriptions of the Additional Land
(other than the legal description of the Additional Land attached as part of
Exhibit "A" to this Lease) due to Tenant's desire to divide the Additional Land
into multiple parcels shall be at Tenant's sole cost. Landlord shall make all
commercially reasonable, good faith efforts to have the foregoing accomplished
through Xxxxx County administrative procedures. However, if the foregoing can be
accomplished only through division of land procedures under NRS 278.320 through
278.4725, Tenant shall reimburse to Landlord one-half (1/2) of the out-of-pocket
survey and engineering costs incurred with unaffiliated survey and engineering
firms and paid by Landlord to effect the land division. Tenant shall make such
reimbursement within thirty (30) days following the recording of applicable maps
and certificates and receipt by Tenant from Landlord of copies of the paid
invoices for such engineering and survey work. In connection with the
above-described separate assessment of the Property, Landlord and Tenant shall
execute and deliver such further instruments and perform such additional acts as
may be reasonably required to obtain the desired central tax assessment
treatment.
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall diligently pursue the separate assessment of such personal
property, so that it is taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the
Property and the Property is not separately assessed, Tenant shall pay Landlord
the taxes for the personal property with its payment to Landlord of Real
Property Taxes.
(e) CONTEST OF TAXES. Tenant, at Tenant's sole cost and expense,
shall have the right, in Landlord's name, if appropriate, to contest Real
Property Taxes on the Property by appropriate legal or administrative
proceedings (a "TAX CONTEST"), subject to the terms of this Section 4.02(e). In
such event, Tenant may defer payment of the contested tax but shall promptly pay
such contested tax or cause it to be paid under protest prior to such time as
the Property may be subject to conveyance by the Xxxxx County Treasurer pursuant
to the provisions of NRS 361.595, 361.603 or NRS 361.604, as those provisions
may, from time to time, be amended. If there shall be any refund with respect to
any contested tax based on a payment by Tenant, Tenant shall be entitled to the
same to the extent of such payment. If the Property is not taxed separate and
apart from other portions of the Project, Landlord shall have the right to
participate jointly with Tenant in any contest of Real Property Taxes relative
to any portion of the Property not so separately taxed. In such event, Landlord
shall bear all costs incurred by Landlord relative to such participation.
Landlord shall promptly cooperate with Tenant, execute such documents and take
such actions as may be reasonably necessary to enable Tenant to properly contest
any tax contemplated in this section; provided, however, that Landlord shall not
be required to incur any out-of-pocket costs in connection with the same except
to the extent that Landlord elects to do so if Landlord elects to proceed
jointly with Tenant relative to the contest of such tax as provided in the
foregoing provisions of this Section 4.02(e). Tenant shall and
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hereby agrees to indemnify, defend and hold harmless Landlord of, from and
against any and all costs, liabilities or tax obligations (including without
limitation any increases in taxes) resulting from any such contest in which
Landlord does not jointly participate with Tenant as provided in the foregoing
provisions of this Section 4.02(e). If Tenant does elect to pursue the Tax
Contest under the circumstances described above, then Tenant shall furnish such
security, if any, as may be required in the Tax Contest proceedings.
Section 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, fiber optic, cable or other telecommunications or data delivery
services, water, refuse disposal and other utilities and services supplied to
the Property during the Lease Term. However, if any services or utilities are
jointly metered with other property, Landlord shall make a reasonable
determination of Tenant's proportionate share of the cost of such utilities and
services and Tenant shall pay such share to Landlord with Tenant's next monthly
installment of Base Rent, consistent with Section 4.01 above. Landlord's
determination shall take into consideration the uses being made of the Building,
the uses being made of the other building in the Project, and any differences in
costs imposed by the utility providing entity. Tenant acknowledges and agrees
that (1) this Lease is entirely separate and distinct from and independent of
any and all agreements that Tenant may at any time enter into with any third
party for the provision of utility services or any other services, and (2)
Landlord has no obligation of any kind concerning the provision of any such
services. Landlord shall not be liable for any failure to furnish, stoppage of,
or interruption in furnishing any of the services or utilities described in this
Section 4.03, when such failure is not caused by, and does not result from, any
act or omission of Landlord, its agents, permitees, invitees or contractors, and
instead results from accident, breakage or repairs caused by parties other than
Landlord, its agents, permitees, invitees or contractors, or is caused by
strikes, lockouts, labor disputes, labor disturbances, governmental regulation,
civil disturbances, terrorist acts, acts of war, moratorium or other
governmental action, or any other cause beyond Landlord's reasonable control,
and, in such event, Tenant shall not be entitled to any damages, nor shall any
failure or interruption xxxxx or suspend Tenant's obligation to pay rent as
required under this Lease or constitute or be construed as a constructive or
other eviction of Tenant. Further, in the event any governmental authority or
public utility promulgates or revises any law, ordinance, rule or regulation, or
issues mandatory controls or voluntary controls relating to the use or
conservation of energy, water, gas, light or electricity, the reduction of
automobile or other emissions, or the provision of any other utility or service,
Landlord may take any reasonably appropriate action to comply with such law,
ordinance, rule, regulation, mandatory control or voluntary guideline without
affecting Tenant's obligations under this Lease. Tenant recognizes that security
services, if any, provided by Landlord at the Project are for the protection of
Landlord's property, and under no circumstances shall Landlord be responsible
for, and Tenant waives any rights with respect to, providing security or other
protection for Tenant or its employees, invitees or property in or about the
Property or the Building.
Section 4.04. INSURANCE POLICIES.
(a) LIABILITY INSURANCE. Subject to the provisions of Section
4.04(e) below, during the Lease Term, Tenant, at Tenant's sole cost and expense,
shall maintain a policy of commercial general liability insurance (or its
equivalent) insuring Tenant against liability for bodily injury, property damage
(including loss of use of property) and personal injury arising out of Tenant's
use or occupancy of the Property. Tenant shall name Landlord as an additional
insured under such policy, and Tenant shall provide Landlord with an appropriate
insurance certificate so evidencing prior to Tenant's occupancy of the Property,
which certificate shall show Landlord as "an additional insured as required by
contract." The initial per occurrence amount of such insurance shall be Three
Million Dollars ($3,000,000.00) and shall be subject to periodic increase based
upon inflation, increased liability awards, the reasonable recommendations of
Landlord's professional insurance advisors and other relevant factors; provided,
however, that any such increase shall not be required during the first three (3)
Lease Years and shall not exceed those increases reasonably required by prudent
owners of like properties in the Las Vegas metropolitan area. The liability
insurance obtained by Tenant under this Section 4.04(a): shall (i) be primary
and non-contributing except with respect to Landlord's negligence or willful
misconduct; (ii) contain cross-liability endorsements; and (iii) provide
contractual coverage with respect to Tenant's obligations under Section 5.05
below. The amount and coverage of such insurance shall not limit Tenant's
liability nor relieve Tenant of any other obligation under this Lease. Landlord
shall also obtain commercial general liability insurance (or its equivalent)
insuring Landlord against liability for bodily injury, property damage
(including loss of use of property) and personal injury arising out of
ownership, operation, use or occupancy of the Property. The initial per
occurrence amount of such insurance shall be not less than Three Million Dollars
($3,000,000.00) and shall be increased in amount and at times coincident with
Tenant's required liability coverage amount increases provided above. The
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policy obtained by Landlord shall not be contributory and shall not provide
primary insurance except with respect to Landlord's negligence or willful
misconduct. The policy obtained by Landlord shall provide contractual coverage
with respect to Landlord's obligations under Section 5.05 below. In addition to
the foregoing, both Landlord and Tenant shall obtain commercial automobile
liability coverage with combined single limit coverage of One Million Dollars
($1,000,000.00) for bodily injury and property damage, which coverage shall
include owned, non-owned and hired automobile liability for vehicles driven on
or about the Property by their respective employees. Landlord shall have Tenant
named as an additional insured on any policy of liability insurance obtained
relative to the Common Areas.
(b) PROPERTY INSURANCE. Except as otherwise provided herein, and
subject to the provisions of Section 4.04 (e) below, during the Lease Term,
Tenant shall maintain policies of insurance covering loss of or damage to the
Building Shell Improvements (including Common Area Improvements on the Building
Premises other than, and excluding, the ESFR System [as defined in Section
4.05(a)]) and Tenant Improvements, in the full amount of their replacement
value, with such policies providing protection against loss or damage due to
fire or other casualties covered within the classification of fire and extended
coverage. Such insurance coverage shall be effected by adding the Building Shell
Improvements (including the Common Area Improvements located on the Building
Premises, other than, and excluding the ESFR System) and the Tenant's
Improvements to Tenant's schedule of insured values on its property coverage
insurance policies, and shall be thereby insured against such other casualties
as Tenant may elect to obtain relative to its other similar properties, which
coverages may, at Tenant's election, include vandalism, malicious mischief,
sprinkler leakage, flood coverage, earthquake coverage and/or terrorism
coverage. All policies required under this Section 4.04(b) shall be written as
primary policies, not contributing with and not supplemental to any property
insurance coverage that Landlord may carry, and shall name Tenant, Landlord and
Landlord's mortgage lender as loss payees as respects the Base Building Shell
Improvements. Tenant shall be responsible for payment of the entirety of any
deductible amount under Tenant's insurance policies. Neither Landlord nor Tenant
shall do or permit anything to be done which invalidates any such insurance
policies.
(c) PAYMENT OF PREMIUMS. Tenant shall pay all premiums for the
insurance policies described in Sections 4.04(a) and (b), except Landlord shall
pay all premiums for liability insurance which Landlord is required to obtain as
provided in Section 4.04(a) above. Subject to the provisions of Section 2.03
above and Section 4.04 (e) below, prior to the Lease Commencement Date Tenant
shall deliver to Landlord the "Xxxxx Form" (or such other reasonable substitute
form as may then be customarily accepted by Landlord's and Landlord's mortgage
lender if the Xxxxx Form is no longer available) certificates of insurance
evidencing insurance coverage which Tenant is required to maintain under this
Section 4.04. Upon the expiration of any such policy, Tenant shall deliver to
Landlord a certificate evidencing renewal of such policy without a lapse in
coverage. All such certificates of insurance shall be issued by an officer or
agent of the insurer. Landlord or Landlord's mortgage lender may request
commercially reasonable modifications to certificates of insurance provided by
Tenant. If so, Tenant shall expend commercially reasonable efforts to obtain
such modifications or to obtain issuance of a modified certificate. If Tenant is
unsuccessful in those efforts, Tenant shall provide to Landlord or Landlord's
mortgage lender written certification by an officer of Tenant, that with respect
to the particular required insurance coverage, such coverage is in force and
effect, or that Tenant is self-insuring such coverage in accordance with the
provisions of Section 4.04(e) below. If Landlord maintains a property casualty
insurance policy with a schedule for "contingent coverage" for multiple Landlord
properties (with claim proceeds payable only if Tenant or Tenant's insurer fails
to respond to the claim), and if Landlord's mortgage lender requires the Base
Building Shell Improvements to be added to such schedule, Tenant shall reimburse
Landlord for seventy-five percent (75%) of the premium cost of adding the Base
Building Shell Improvements to such schedule. In such event, Tenant shall
reimburse Landlord for such premium cost within thirty (30) days following
Tenant's receipt of Landlord's invoice therefor.
(d) GENERAL INSURANCE PROVISIONS.
(i) Any insurance that Tenant is required to maintain under
this Lease shall include the carrier's standard provision for thirty (30) days'
notice to Landlord prior to any cancellation or modification of such coverage,
including the cancellation or modification of any required endorsements.
(ii) If Tenant fails to deliver any certificate to Landlord
required under this Lease within the prescribed time period or if such policy is
cancelled or modified contrary to the requirements of this Lease during the
Lease Term without Landlord's consent (unless such policy is not in force or has
been cancelled or
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modified because Tenant has qualified for and elected to self-insure pursuant to
Section 4.04(e) below), such failure, cancellation or modification shall
constitute a material default under this Lease if not cured by Tenant following
written notice from Landlord pursuant to Section 10.02 of this Lease.
(iii) Tenant shall maintain all insurance required under this
Lease with companies duly authorized to issue insurance policies in Nevada and
holding a Financial Strength Rating of "A" or better, and a Financial Size
Category of "VIII" or larger, based on the most recent published ratings of the
A.M. Best Company. If at any time during the Lease Term, Tenant is unable to
maintain the insurance required under this Lease, Tenant shall nevertheless
maintain insurance coverage which is customary and commercially reasonable in
the insurance industry for Tenant's type of business, as that coverage may
change from time to time.
(iv) Notwithstanding anything in this Lease to the contrary,
Landlord and Tenant each hereby waives any and all rights of recovery against
the other, or against the members, managers, officers, employees, agents or
representatives of the other (whether such right of recovery arises from a claim
based on negligence or otherwise), for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered by any
insurance policy required under the terms of this Lease (or other insurance
coverage not required by this Lease) and which is active and in force at the
time of such loss or damage. Upon obtaining the required policies of insurance,
Landlord and Tenant shall give notice to the insurance carriers of this mutual
waiver of subrogation and shall obtain any policy endorsements required therefor
by any such policy.
(v) Neither Landlord nor Tenant shall do or permit to be done
any act or thing upon the Property or the Project which would jeopardize or be
in conflict with the property insurance policies covering the Project or
fixtures or property in the Project.
(vi) During the Lease Term, Tenant, at Tenant's sole cost and
expense, shall maintain workers' compensation insurance as required by Nevada
law, and employer's liability insurance coverage with a limit of One Million
Dollars ($1,000,000.00) in Constant Dollars (as defined in Section 6.05(b)
below).
(vii) If Tenant carries any of the liability insurance
required hereunder in the form of a blanket policy, any certificate required
hereunder shall make specific reference to the Property.
(viii) Landlord or Landlord's mortgage lender shall not be
limited in the proof of any damages which Landlord or Landlord's mortgage lender
may claim against Tenant arising out of or by reason of Tenant's failure to
provide and keep in force insurance, as provided above, to the amount of the
insurance premium or premiums not paid or incurred by Tenant and which would
have been payable under such insurance; but Landlord and Landlord's mortgage
lender shall also be entitled to recover as damages for such breach, the
uninsured amount of any loss, to the extent that it would have been insured.
Tenant shall self insure any deductibles for the insurance required to be
carried by Tenant in this Section 4.04.
(ix) Insurance claims by reason of damage to or destruction of
any portion of the Property shall be adjusted by Tenant; provided, however, that
although Tenant shall make the final decision with respect to any such
adjustment, with respect to any claim regarding damage to or destruction of the
Base Building Shell Improvements in excess of $200,000.00, promptly after such
damage or destruction, Tenant shall advise Landlord and Landlord's mortgage
lender of such occurrence and consult with Landlord and Landlord's mortgage
lender throughout the process of adjusting any such claim, and provided further
that both Landlord and Landlord's mortgage lender are fully advised as to all
matters on a current basis. Landlord shall not be required to prosecute any
claim against, or to contest any settlement proposed by Tenant or an insurer.
Tenant may, at its expense, prosecute any such claim or contest any such
settlement in the name of Landlord, Tenant or both, and Landlord will join
therein at Tenant's written request upon the receipt by Landlord of an indemnity
from Tenant against all costs, liabilities and expenses in connection therewith.
(e) SELF-INSURANCE OPTION. Tenant shall have the right to satisfy
its insurance obligations under this Lease by means of self-insurance to the
extent of all or part of the insurance required hereunder so long as (a) such
self-insurance is permitted under all laws applicable to Tenant and/or the
Property at the time in question, and (b) Tenant maintains a tangible net worth
(as shown by its audited financial statements prepared in accordance with
generally accepted accounting principles) of not less than Two Hundred Fifty
Million Dollars
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($250,000,000.00) in Constant Dollars; and (c) Tenant shall, not less than
annually, provide Landlord an audited financial statement, prepared in
accordance with generally accepted accounting principles, showing the required
tangible net worth (provided, that Tenant need not make such a delivery if its
financial statement is generally available to the public through Tenant's
filings with a governmental authority). If Tenant is a Tenant Affiliate of the
original Tenant, the foregoing $250,000,000.00 net worth requirement shall be
reduced to One Hundred Million Dollars ($100,000,00.00) so long as the original
Tenant maintains a tangible net worth of $250,000,000.00 and remains liable
under this Lease in accordance with the provisions of Section 9.05 below.
"Self-insure" shall mean that Tenant is itself acting as though it were the
third-party insurer providing the insurance required under the provisions of
this Lease, and Tenant shall pay any amounts due in lieu of insurance proceeds
because of self-insurance. To the extent Tenant chooses to provide any insurance
required by this Lease by "self-insurance," then Tenant shall have all of the
obligations and liabilities of an insurer, and the protection afforded Landlord,
Landlord's mortgage lender, and the Property shall be the same as if provided by
a third-party insurer under the coverages required under this Lease. Without
limiting the generality of the foregoing, all amounts which Tenant pays or is
required to pay and all losses or damages resulting from risks for which Tenant
has elected to self-insure shall be subject to the waiver of subrogation
provisions of Section 4.04(d)(iv) of this Lease, and shall not limit Tenant's
indemnification obligations set forth in Section 5.05 of this Lease. In the
event that Tenant elects to self-insure and an event or claim occurs for which a
defense and/or coverage would have been required to be furnished by Tenant under
the provisions of Section 4.04(a) from a third-party insurer, Tenant shall
undertake the defense of the claim (if applicable), including a defense of
Landlord (if applicable), at Tenant's sole cost and expense, and use its own
funds to pay the claim or replace any property or otherwise provide the funding
which would have been available from insurance proceeds but for such election by
Tenant to self-insure. In the event that Tenant elects to self-insure any
coverage required to be insured by Tenant in this Lease, upon written request
from Landlord, Tenant shall provide Landlord and Landlord's mortgage lender with
written confirmation from Tenant (certified to by an officer of Tenant) of that
coverage, in form reasonably acceptable to Landlord and Landlord's mortgage
lender, which may supplement, but not replace the certificates of insurance to
be provided by Tenant pursuant to Section 4.04(c) above for insurance
obligations Tenant chooses not to self-insure.
Section 4.05. COMMON AREAS; USE, MAINTENANCE AND COSTS.
(a) COMMON AREAS. As used in this Lease, "COMMON AREAS" shall mean
those areas within the Project designated as such on Exhibit "A" to this Lease.
If required by law to do so or with Tenant's prior written consent, Landlord,
from time to time, may change the size, location, nature and use of Common Areas
and increase or decrease Common Areas land and/or facilities. Tenant
acknowledges that such legally required activities may result in an
inconvenience to Tenant. Such activities and changes are permitted so long as
they do not permanently and materially affect Tenant's use of the Property.
Although not a part of the Common Areas, the cost of maintaining, testing, and
operating the components of the Project's ESFR fire suppression system,
including the pump house located on the Building Premises, are included within
the Common Area Costs (defined below). Subject to the provisions of Section 5.06
below, Landlord shall be provided access to such pump house for periodic
testing, but no other tenants in the Project shall have such access. The
Project's ESFR fire suppression system, consisting of the pump house, and those
other components of the system that serve, service and benefit both the Building
and the other building in the Project, are collectively referred to herein as
the "ESFR SYSTEM." The (i) ESFR System, (ii) real property improvements,
landscaping, equipment, systems and fixtures located within the Common Areas and
(iii) utility lines within the Common Areas and used in common by tenants of the
Project are collectively referred to herein as "COMMON AREA IMPROVEMENTS."
Notwithstanding any language to the contrary in this Lease, Tenant acknowledges
and agrees that the defined term "ESFR System" does not include those components
of the Project's ESFR fire suppression system which are included within the
Building and which serve, service and benefit only the Building, to the
exclusion of the other building in the Project, and Tenant further agrees that
such components will be treated as part of the Building for purposes of Section
4.04(b) above and as part of the Base Building Shell Improvements for purposes
of Section 7.01 below.
(b) USE OF COMMON AREAS. Tenant shall have the nonexclusive right
(in common with other tenants in the Project) to use the Common Areas for the
purposes intended, subject to such reasonable rules and regulations as Landlord
may establish from time to time. Tenant shall abide by such rules and
regulations and shall use its best effort to cause others who use the Common
Areas with Tenant's express or implied permission to abide by Landlord's rules
and regulations. At any time, Landlord may close any Common Areas to perform any
acts in
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the Common Areas as, in Landlord's judgment, are desirable to improve the
Project. Tenant shall not interfere with the rights of Landlord, other tenants
or any other person entitled to use the Common Areas.
Notwithstanding the foregoing provisions of this Section 4.05,
Tenant, at its cost and subject to its compliance with Applicable Laws, shall
have the right to establish vehicle parking spaces in the Common Areas, but only
within the northerly twenty-five feet (25') of the Building Premises (excluding
areas that are required for fire lanes) by installation and placement of
pavement striping and other parking improvements. Tenant, its permitted
Subtenants, and its and their employees, contractors, customers and other
business invitees shall be entitled to exclusive use of any parking spaces so
established. Such reserved parking improvements shall not be considered Common
Area Improvements and shall be maintained by Tenant pursuant to Section 6.04
below. In the event of use of such parking spaces by other tenants in the
Project or other parties, Landlord shall take all commercially reasonable steps
to curtail such use by other parties and preserve to Tenant and its permitted
Subtenants the use thereof, whether by use of parking reservation signs, or
otherwise.
(c) MAINTENANCE OF COMMON AREAS. Landlord, and not Tenant, shall
maintain the Common Areas and all Common Area Improvements in good order,
condition and repair (including replacement, as necessary), and shall operate
the Project as a first-class industrial/commercial real property development.
Subject to the provisions of Section 4.05(e), Tenant shall pay Tenant's Pro Rata
Share (as determined below) of all costs incurred by Landlord for the operation
and maintenance of the Common Areas and Common Area Improvements (the "COMMON
AREA COSTS"). Common Area Costs include, but are not limited to, all costs and
expenses for the following: utilities, water and sewage charges; maintenance of
signs (other than tenants' signs); maintenance of the ESFR System (including
testing, monitoring and servicing); maintenance of landscaped areas; maintenance
of utility lines within the Common Areas and which are used in common by tenants
of the Project, to the extent such maintenance responsibility is not assumed by
the utility provider; premiums for liability, property damage, fire and other
types of casualty insurance (if applicable) on the Common Area Improvements;
premiums for worker's compensation insurance (if applicable); all property taxes
and assessments levied on or attributable to the Common Areas and all Common
Areas Improvements (if applicable); appropriately prorated personal property
taxes levied on or attributable to personal property used in connection with the
Common Areas; appropriately prorated straight-line depreciation on personal
property owned by Landlord which is consumed in the operation or maintenance of
the Common Areas; the cost of improvements made subsequent to the initial
development of the Common Areas to comply with the requirements of any law,
ordinance, code, rule or regulation; appropriately prorated rental or lease
payments paid by Landlord for rented or leased personal property used in the
operation or maintenance of the Common Areas; appropriately prorated fees for
required licenses and permits; repairing, resurfacing, repaving, maintaining,
painting, lighting, cleaning, refuse removal, security and similar items for the
Common Areas; and reserves for sealing and restriping and/or resurfacing and
repaving of the Common Areas paved areas. Except for payment of Tenant's Pro
Rata Share of the Common Area Costs associated with the operation and
maintenance of the ESFR System, as provided in this Section, Tenant shall have
no obligation or responsibility whatsoever for the maintenance, repair or
replacement of the ESFR System or any portion thereof. Landlord may cause any or
all of such services to be provided by third parties and the cost of such
services shall be included in Common Area Costs. Common Area Costs shall not
include depreciation of Common Area Improvements or any real property, real
property improvements, or equipment, machinery or fixtures which are part of the
Common Areas.
(d) ROUTINE MAINTENANCE. Consistent with Section 4.05(c) above,
Landlord shall maintain, as Common Area Costs, the landscaped and paved areas
within the Common Areas. Such maintenance shall include gardening, tree
trimming, replacement or repair of landscaping, landscape irrigation systems and
similar items. Such maintenance shall also include sweeping and cleaning of
asphalt, concrete or other surfaces on the driveway, parking areas, yard areas,
loading areas or other paved or covered surfaces in Common Areas. In connection
with Landlord's obligations under this Section 4.02(d), Landlord may enter into
a contract with a contractor of Landlord's choice to provide some (but not
necessarily all) of the maintenance services listed above. Subject to the
provisions of Section 4.05(e), Tenant shall pay its Pro Rata Share of the
monthly cost of such contract relative to the Common Areas, as part of its share
of the monthly Common Area Costs.
(e) TENANT'S SHARE AND PAYMENT. Tenant shall pay Tenant's Pro Rata
Share of all Common Area Costs (prorated for any fractional month) upon written
notice from Landlord that such costs have been incurred and are due and payable,
and in any event prior to delinquency. Tenant's "PRO RATA SHARE" shall be as
stated in Section 1.10(b) above, subject to a proportionate equitable adjustment
if the size of the Common Areas
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are adjusted pursuant to Section 4.05(a) above. Landlord may, at Landlord's
election, estimate in advance and charge to Tenant as Common Area Costs, all
Real Property Taxes for which Tenant is liable under Section 4.02(c) of this
Lease, and all other Common Area Costs payable by Tenant hereunder. At
Landlord's election, such statements of estimated Common Area Costs shall be
delivered monthly, quarterly or at any other periodic intervals to be designated
by Landlord; provided, however, that unless otherwise notified by Landlord,
Landlord shall xxxx Tenant monthly in advance for the estimated Common Area
Costs (other than Real Property Taxes, which shall be billed quarterly) and
Tenant shall pay Landlord the amount of such costs, as Additional Rent. Landlord
may adjust such estimates annually based upon Landlord's experience and
reasonable anticipation of costs. Such adjustments shall be effective as of the
next rent payment date after notice to Tenant. Within one hundred twenty (120)
days after the end of each calendar year of the Lease Term, Landlord shall
deliver to Tenant a statement prepared in accordance with generally accepted
accounting principles setting forth, in reasonable detail, the Common Area Costs
paid or incurred by Landlord during the preceding calendar year and Tenant's Pro
Rata Share. Landlord shall thereafter deliver to Tenant copies of all
documentation that Tenant may reasonably request relative to the Common Area
Costs paid or incurred by Landlord during that period, including, but not
limited to, copies of service contracts, invoices, statements and xxxxxxxx,
together with evidence of payments by Landlord, and including the formulas and
other accounting bases by which Landlord has computed Tenant's xxxxxxxx for a
Common Area Costs. Landlord shall retain all such documentation for a period of
not less than three (3) years. Following receipt of such statement and any such
documentation, there shall be an adjustment between Landlord and Tenant, with
payment to or credit given by Landlord (as the case may be) so that Landlord
shall receive the entire amount of Tenant's share of such costs and expenses for
such period and Tenant shall pay only the amount for which Tenant is obligated
for such period. The provisions of this Section 4.05(e) shall survive the
expiration or earlier termination of the Lease Term.
(f) TENANT'S USE OF LANDLORD'S CONTRACTORS. Upon Tenant's written
request, but not more than annually, Landlord shall provide to Tenant a schedule
of the services provided by Landlord in performing its obligations under Section
4.05(c) and Section 4.05(d) above (the "CAM SERVICES LIST") together with the
names and addresses of contractors providing such services and such other
information relative thereto as Tenant may reasonably request. Landlord shall
make available for hiring by Tenant, and Tenant shall have the right to contract
with, any such contractor to perform tasks for which Tenant is responsible under
the provisions of Section 6.04 below.
Section 4.06. LATE CHARGES. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) business days after it becomes due, subject to the subsequent provisions of
this Section 4.06 Tenant shall pay Landlord a late charge equal to five percent
(5%) of the overdue amount. The parties agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of such
late payment. Notwithstanding anything to the contrary in this Section 4.06,
such late charge shall not be incurred unless Tenant fails to deliver such
delinquent payment within three (3) business days following Tenant's receipt of
written notice from Landlord of the delinquency, amount and original due date of
the payment and demanding its payment; provided, however, that Landlord is under
no obligation to provide more than two (2) such notices in any consecutive
12-month period. Further, if Landlord fails to receive any payment or give
Tenant credit for receipt of any payment as a result of errors, omissions or
oversights of Landlord, its employees or bankers, or as a result of any changes
made by Landlord with respect to its bankers or personnel, no such late charges
shall be imposed, and any notices given by Landlord relative thereto shall not
constitute one of the two notices provided for in the immediately proceeding
sentence.
Section 4.07. INTEREST ON PAST DUE OBLIGATIONS. In addition to any late
charge imposed pursuant to Section 4.06 above, but subject to the subsequent
provisions of this Section 4.07, any amount owed by Tenant to Landlord which is
not paid within thirty (30) days when due shall bear interest at the rate of ten
percent (10%) per annum from the due date of such amount ("INTEREST"); provided,
however, that no Interest shall be payable on any late charges imposed on Tenant
under this Lease. The payment of interest on such amounts shall not excuse or
cure any default by Tenant under this Lease. If the interest rate specified in
this Section 4.07 is higher than the rate permitted by law, such interest rate
is hereby decreased to the maximum legal interest rate permitted by law.
Notwithstanding the terms of this Section 4.07, such default interest shall not
be imposed unless Tenant fails to deliver such delinquent payment within three
(3) business days following Tenant's receipt of written notice from
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Landlord of the delinquency, amount and original due date of the payment and
demanding its payment; provided, however, that Landlord is under no obligation
to provide more than two (2) such notices in any consecutive 12-month period.
Further, if Landlord fails to receive any payment or give Tenant credit for
receipt of any payment as a result of errors, omissions or oversights of
Landlord, its employees or bankers, or as a result of any changes made by
Landlord with respect to its bankers or personnel, no interest shall be imposed,
and any notices given by Landlord relative thereto shall not constitute one of
the two notices provided for in the immediately proceeding sentence.
Section 4.08. MANAGEMENT FEE. Tenant pay Landlord, for Landlord's
supervision and management of the Project, a management fee not to exceed one
percent (1%) of the Base Rent payable under this Lease. Such fee shall be
payable monthly by Tenant, as Additional Rent, as and when the monthly Base Rent
is paid.
ARTICLE FIVE USE OF PROPERTY
Section 5.01. PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. MANNER OF USE. Tenant shall not cause or permit the Property
to be used in any way which constitutes a violation of any law, statute,
ordinance, or governmental regulation or order, or other governmental
requirement now in force or which may hereafter be enacted or promulgated
(collectively, "APPLICABLE LAWS"), or which unreasonably interferes with the
rights of other tenants of Landlord, or which constitutes a nuisance or waste.
Tenant shall obtain and pay for all permits required for Tenant's occupancy of
the Property, and for all business licenses, and shall promptly take all actions
necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Property, including without limiting to the Occupational Safety and Health Act.
Notwithstanding the foregoing, Landlord shall, at Tenant's sole cost and
expense, cooperate with Tenant in executing permitting applications and
performing other ministerial acts reasonably necessary to enable Tenant to
obtain a High Pile Stock Permit (or comparable permit) from the applicable
governmental authority, if applicable. Tenant, at Tenant's sole cost and
expense, shall be responsible for the installation of any fire hose valves,
draft curtains, smoke venting and any additional fire protection systems that
may be required by the fire department or any governmental agency, save and
except for the standard ESFR fire suppression systems and pump and any such
valves, draft curtains, smoke venting and additional fire protection systems
that are part of the Building Shell Improvements to be constructed at Landlord's
cost and expense.
Tenant shall, at its sole cost and expense, promptly comply with any
Applicable Laws which relate to (or are triggered by) (i) Tenant's use of the
Property, and (ii) any alteration or any tenant improvements made by Tenant or
at the request of Tenant. Should any standard or regulation now or hereafter be
imposed on Tenant by any federal, state or local governmental body charged with
the establishment, regulation and enforcement of occupational, health or safety
standards, then Tenant agrees, at its sole cost and expense, to comply promptly
with such standards or regulations so long as Tenant is not actively contesting
the same. The final, unappealed or unappealable judgment of any court of
competent jurisdiction or the admission of Tenant in any judicial action,
regardless of whether Landlord is a party thereto, that Tenant has violated any
Applicable Laws, shall be conclusive of that fact as between Landlord and
Tenant. Tenant shall promptly notify Landlord in writing of any water
infiltration at the Property indicating the need for a repair that is the
responsibility of Landlord under this Lease and any other material water
infiltration in the Building.
Section 5.03. HAZARDOUS MATERIALS.
5.03.1 DEFINITIONS.
A. "HAZARDOUS MATERIAL" means any substance, whether solid, liquid
or gaseous in nature:
(i) the presence of which requires remediation under any
federal, state or local statute, regulation, ordinance, order, action or policy
relating to the protection of human health or the environment, or
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(ii) which is or becomes defined as a "hazardous waste,"
"hazardous substance," pollutant or contaminant under any federal, state or
local statute, regulation, rule or ordinance or amendments thereto including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. section 9601 et seq.) and/or the Resource Conservation
and Recovery Act (42 U.S.C. section 6901 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. section 1251 et seq.), the Clean Air Act (42 U.S.C.
section 7401 et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
section 2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C.
section 651 et seq.), as these laws have been amended or supplemented; or
(iii)which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is
or becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, the State of
Nevada or any political subdivision thereof; or
(iv) which contains gasoline, diesel fuel or other petroleum
hydrocarbons; or
(v) which contains polychlorinated biphenyls (PCBs), asbestos
or urea formaldehyde foam insulation; or
(vi) which contains radon gas.
B. "ENVIRONMENTAL REQUIREMENTS" means all applicable present and
future:
(i) statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions, franchises, and
similar items (including, but not limited to those pertaining to reporting,
licensing, permitting, investigation and remediation), of all Governmental
Agencies relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials; and
(ii) all applicable judicial, administrative, and regulatory
decrees, judgments, and orders relating to emissions, discharges, releases, or
threatened releases of Hazardous Materials into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of Hazardous
Materials.
C. "ENVIRONMENTAL DAMAGES" means all claims, judgments, damages,
losses, penalties, fines, liabilities (including strict liability),
encumbrances, liens, costs, and expenses (including the expense of investigation
and defense of any claim, whether or not such claim is ultimately defeated, or
the amount of any good faith settlement or judgment arising from any such claim)
of whatever kind or nature, contingent or otherwise, matured or unmatured,
foreseeable or unforeseeable (including without limitation reasonable attorneys'
fees and disbursements and consultants' fees) any of which are incurred at any
time as a result of the existence of Hazardous Materials upon, about, or beneath
the Property or migrating or threatening to migrate from the Property, or the
existence of a violation of Environmental Requirements pertaining to the
Property and the activities thereon. Environmental Damages include, without
limitation:
(i) compensatory damages for personal injury, or injury to
property or natural resources occurring upon or off of the Property, including
interest, penalties and damages arising from claims brought by or on behalf of
employees of Tenant;
(ii) fees, costs or expenses reasonably incurred for the
services of outside environmental counsel, consultants, contractors, experts,
laboratories and all other costs incurred in connection with the investigation
or remediation of such Hazardous Materials or violation of such Environmental
Requirements, including, but not limited to, the preparation of any feasibility
studies or reports or the performance of any cleanup, remediation, removal,
response, abatement, containment, closure, restoration or monitoring work
required by any Governmental Agency or reasonably necessary to make full
economic use of the Property or any other property in a manner consistent with
its current use or otherwise expended in connection with such conditions, and
including
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without limitation any attorneys' fees, costs and expenses incurred in enforcing
the provisions of this Section 5.03 or collecting any sums for Environmental
Damages due hereunder pursuant to Section 12.01 below;
(iii) liability to any third person or Governmental Agency to
indemnify such person or Governmental Agency for costs expended in connection
with the items referenced in subparagraph (ii) above; and
(iv) diminution in the fair market value of the Property;
provided, however, that this measure of Environmental Damages shall be
inapplicable if, upon expiration or earlier termination of this Lease, there
will be no remaining residual leasehold interest for Landlord under the Master
Lease.
D. "GOVERNMENTAL AGENCY" means all governmental agencies,
departments, commissions, boards, bureaus or instrumentalities of the United
States, states, counties, cities and political subdivisions thereof.
E. The "TENANT GROUP" means Tenant, Tenant's successors, officers,
members, managers, directors, assignees, agents, employees, contractors,
invitees, permitees or other parties under the supervision or control of Tenant
or entering the Property during the Lease Term with the permission or knowledge
of Tenant.
F. The "LANDLORD GROUP" means Landlord, Landlord's successors,
officers, members, managers, directors, assignees, agents, employees,
contractors, invitees, permitees, affiliates, other tenants and other parties
under the supervision or control of Landlord or entering the Property or Project
during the Lease Term with the permission or knowledge of Landlord, other than
any party in the Tenant Group.
5.03.2 PROHIBITIONS.
A. Other than normal quantities of general office and cleaning
supplies and except as specified on Exhibit "D" attached hereto, Tenant shall
not cause, permit or suffer any Hazardous Material to be brought upon, treated,
kept, stored, disposed of, discharged, released, produced, manufactured,
generated, refined or used upon, about or beneath the Property by the Tenant
Group, or any other person without the prior written consent of Landlord;
provided, however, if Tenant is the original Tenant, a Tenant Affiliate of the
original Tenant or a regulated public utility, prior written notification to
Landlord shall be sufficient without the necessity of obtaining Landlord's
consent. If Landlord's consent is required, Landlord shall allow Tenant's use of
such other Hazardous Materials if Tenant establishes, to Landlord's reasonable
satisfaction, that the use of such substances poses no materially greater risk
of contamination to the Property than do Tenant's existing activities in view of
(a) quantities, toxicity and other properties of the proposed new Hazardous
Materials, (b) precautions Tenant agrees to take to prevent a release, (c)
Tenant's current financial condition as it relates to its ability to fund a
major clean-up, and (d) Tenant's policy and historical record respecting its
willingness to respond to any such clean-up. Prior to the Lease Commencement
Date (for those Hazardous Materials described on Exhibit "D") and upon
introduction of other Hazardous Materials on the Property (for other Hazardous
Materials later used on the Property), Tenant shall make available to Landlord
for review and copying: (a) any written handling, storage, use and disposal
procedures of Tenant; and (b) any "community right to know" plans or disclosures
and/or emergency response plans which Tenant is required to supply to local
Governmental Agencies pursuant to any Environmental Requirements.
B. Tenant shall cause the Tenant Group to comply with all
Environmental Requirements relating to Property.
C. Tenant shall keep the Property free and clear from any lien,
imposed pursuant to section 107(f) of the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. section 9607(l)) or any similar state
statute as a result of the acts or omissions of the Tenant Group.
D. Except as specified on Exhibit "D" attached hereto, Tenant shall
not install any below grade Storage Tank (as defined below) on the Building
Premises or install, operate or maintain any sump, pit, pond or lagoon on the
Property without Landlord's prior written consent. No Tenant other than the
original Tenant, a Tenant Affiliate of the original Tenant or a Tenant that is a
regulated public utility shall install any below grade Storage Tank on the
Additional Property without the prior written consent of Landlord. Except as
specified on Exhibit "D" attached hereto, Tenant shall not install any Storage
Tank on the Property except after prior written
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notification to Landlord. "STORAGE TANK" means a stationary tank used to contain
or accumulate Hazardous Materials and that has a storage capacity of more than
five hundred (500) gallons.
5.03.3 INDEMNITY.
A. Subject to the provisions of this Section 5.03.3, Tenant, its
successors and assigns agree to indemnify, defend, reimburse and hold harmless:
(i) Landlord; and
(ii) any other person who acquires all or a portion of the
Property in any manner (including purchase at a foreclosure sale) or who becomes
entitled to exercise the rights and remedies of Landlord under this Lease; and
(iii) the directors, officers, shareholders, employees,
partners, members, managers, agents, contractors, subcontractors, affiliates,
lessees, mortgagees, trustees, heirs, devisees, successors, and assigns and
invitees of such persons;
from and against any and all Environmental Damages which are caused by the
activities or negligence of the Tenant Group or which result from the breach of
any warranty or covenant or the inaccuracy of any representation of Tenant
contained in this Lease, or by Tenant's remediation of the Property or failure
to meet its obligations contained in this Section 5.03. Notwithstanding anything
in the foregoing to the contrary, Tenant, its successors and assigns shall have
no obligation to indemnify, defend, reimburse or hold harmless any of the
foregoing parties from and against any Environmental Damages (i) which are
caused by the activities or negligence of any member of the Landlord Group or
any of the foregoing parties or any agents, contractors, subcontractors, experts
or licensees of any member of the Landlord Group or any of the foregoing
parties, (ii) which result from the breach of any warranty or covenant or the
inaccuracy of any representation of Landlord in this Lease, or which are
contrary to any condition warranted or represented by Landlord in this Lease,
(iii) which are incurred as a result of the existence of Hazardous Materials
upon, about or beneath the Property at the time of Substantial Completion of the
Tenant Improvements), or (iv) which result from or relate to Hazardous Materials
that migrate to, or threaten to migrate to the Property from a location other
than the Property and are not the result of the activities or negligence of the
Tenant Group.
B. The obligations contained in this Section 5.03.3 shall include,
but not be limited to, the burden and expense of defending all claims, suits and
administrative proceedings, even if such claims, suits or proceedings are
groundless, false or fraudulent, and conducting all negotiations of any
description, and paying and discharging, when and as the same become due, any
and all judgments, penalties or other sums due against such indemnified persons.
Landlord, at its sole expense, may employ additional counsel of its choice to
associate with counsel representing Tenant.
C. Landlord shall have the right but not the obligation to join and
participate in, at Landlord's sole expense, any legal proceedings or actions
initiated in connection with Tenant's activities. Landlord may also, at
Landlord's sole expense, negotiate, settle, defend, approve and appeal any
action taken or issued by any applicable governmental authority with regard to
contamination of the Property by a Hazardous Material.
D. The obligations of Tenant in this Section 5.03.3 shall survive
the expiration or termination of this Lease.
5.03.4 OBLIGATION TO REMEDIATE. In addition to the obligation of
Tenant to indemnify Landlord pursuant to this Lease, Tenant shall, upon approval
and demand of Landlord, at its sole cost and expense, and using contractors
approved by Landlord, promptly take all actions to remediate the Property which
are required by (i) any Governmental Agency (ii) the Master Lease (as defined in
Article Seventeen) or (iii) any deed of trust or mortgage of Landlord's
mortgagees lender then encumbering the Property, which remediation is
necessitated from the presence upon, about or beneath the Property, at any time
during or upon termination of this Lease (whether discovered during or following
the Lease Term), of a Hazardous Material or a violation of Environmental
Requirements existing as a result of the activities or negligence of the Tenant
Group. Such actions shall include, but
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not be limited to, the assessment of a known environmental condition of the
Property, the preparation of appropriate feasibility studies, reports or
remedial plans, and the performance of any cleanup, remediation, containment,
operation, maintenance, monitoring or restoration work, whether on or off the
Property, which shall be performed in a commercially reasonable manner and in
conformance with requirements of any Governmental Agency, the Master Lease and
any deed of trust or mortgage of Landlord's mortgagee lender in force against
the Property.
5.03.5 RIGHT TO INSPECT. Following written notice to Tenant of not
less than two (2) business days, Landlord shall have the right at its sole cost
and expense (except as provided below), in its reasonably exercised discretion,
but not the duty, to enter and conduct an inspection of the Property accompanied
by one or more representatives of Tenant, including invasive tests, at any
reasonable time to determine whether Tenant is complying with the terms of this
Lease, including but not limited to the compliance of the Property and the
activities thereon with Environmental Requirements and determination of the
existence of Environmental Damages as a result of the condition of the Property
and activities thereon. Landlord shall have the right, but not the duty, to
retain any independent professional consultant (the "CONSULTANT") to enter the
Property to conduct such an inspection or to review any report prepared by or
for Tenant concerning such compliance. The cost of the Consultant shall be paid
by Landlord unless such investigation discloses a material violation of an
Environmental Requirement by the Tenant Group in which case Tenant shall pay the
reasonable cost of the Consultant. Tenant hereby grants to Landlord, and the
agents, employees, consultants and contractors of Landlord the right to enter
the Property accompanied by one or more representatives of Tenant, and to
perform such tests on the Property as are reasonably necessary to conduct such
reviews and investigations following written notice to Tenant of not less than
two (2) business days. Landlord shall use commercially reasonable efforts to
minimize interference with the business of Tenant and any permitted Subtenants.
Notwithstanding anything in the foregoing or elsewhere in this Lease to the
contrary, the right of Landlord or any representative of Landlord to enter or
have access to Tenant's control room shall be subject to the terms of Section
5.06 below.
5.03.6 NOTIFICATION. If Tenant shall receive notice or other
communication concerning any actual, alleged, suspected or threatened material
violation of Environmental Requirements, or liability of Tenant for
Environmental Damages in connection with the Property or past or present
activities of any person thereon, including but not limited to notice or other
communication concerning any actual or threatened investigation, inquiry,
lawsuit, claim, citation, directive, summons, proceeding, complaint, notice,
order, writ, or injunction, relating to same, then Tenant shall promptly deliver
to Landlord a written description of said violation, liability, or actual or
threatened event or condition, together with copies of any documents evidencing
same. Receipt of such notice shall not be deemed to create any obligation on the
part of Landlord to defend or otherwise respond to any such notification.
If requested by Landlord, Tenant shall disclose to Landlord the
names and amounts of all Hazardous Materials other than general office and
cleaning supplies referred to in Section 5.03.2 of this Lease, which were used,
generated, treated, handled, stored or disposed of on the Property or which
Tenant intends to use, generate, treat, handle, store or dispose of on the
Property and which are either not listed in Exhibit "D" or were not the subject
of any consent of, or notice to Landlord under the provisions of Section 5.03.2.
The foregoing in no way shall limit the necessity for Tenant obtaining
Landlord's consent pursuant to Section 5.03.2 of this Lease, if applicable.
5.03.7 SURRENDER OF PROPERTY. In the ninety (90) days prior to the
expiration or termination of the Lease Term, and for up to thirty (30) days
after the later to occur of: (i) Tenant fully surrenders to Landlord exclusive
possession of the Property; and (ii) the termination of this Lease, Landlord, at
Landlord's cost and expense (except as otherwise provided in Section 5.03.5
above), may have an environmental assessment of the Property performed in
accordance with Section 5.03.5 of this Lease. Tenant shall perform, at its sole
cost and expense, any commercially reasonable clean-up or remedial work
reasonably recommended by the Consultant which is necessary to remove, mitigate
or remediate any Hazardous Materials and/or contamination of the Property caused
by the activities or negligence of the Tenant Group, consistent with the
requirements of Section 5.03.4 above.
5.03.8 ASSIGNMENT AND SUBLETTING. With respect to any assignment of
this Lease or subletting of the Property, if the proposed assignee's or
sublessee's activities on the Property would involve the use, handling, storage
or disposal of material amounts of Hazardous Materials other than those which
are the same or similar to those used by Tenant and in quantities and processes
similar to Tenant's uses in compliance with this Lease, (i) it
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shall be reasonable for Landlord to withhold its consent to such assignment or
sublease in light of the risk of contamination posed by such activities, and/or
(ii) Landlord may impose an additional conditions to such assignment or sublease
which requires Tenant to reasonably establish that such assignee's or
sublessee's activities pose no materially greater risk of contamination to the
Property than do Tenant's permitted activities in view of: (a) the quantities,
toxicity and other properties of the Hazardous Materials used by Tenant in
comparison to those to be used by such assignee or sublessee; (b) the
precautions against a release of Hazardous Materials such assignee or sublessee
agrees to implement; (c) any such assignee's financial condition as it relates
to its ability to fund a major clean-up; and (d) any such assignee's policy and
historical record (if any) respecting its willingness to respond to the clean up
of a release of Hazardous Materials.
5.03.9 STORAGE TANKS. Without limiting the generality of the above
provisions of this Section 5.03, with respect to any above or underground
Storage Tanks to be located on the Property by Tenant, whether with or without
Landlord's consent, Tenant shall keep all permits and registrations current and
shall make available to Landlord for review and copying, all test results
regarding all storage tanks, including without limitation, tightness testing and
release detection results, all submissions to and correspondence with any
Governmental Agency regarding such tests and provide copies of all plans for
responding to releases from all Storage Tanks, including any and all SPCC (spill
prevention control and countermeasure) plans. Tenant shall promptly notify
Landlord of any release or suspected release from such tanks, and shall promptly
implement corrective action and remediation consistent with the provisions of
this Section 5.03. Tenant shall comply with all commercially reasonable requests
by Landlord for modification to any spill prevention, investigation or
remediation plan and shall allow Landlord to conduct its own testing (or, at
Tenant's option, provide Landlord with split samples) at Landlord's sole
expense, following request in writing from Landlord.
5.03.10 SURVIVAL OF HAZARDOUS MATERIALS OBLIGATION. Tenant's
material breach of any of its covenants or obligations under this Section 5.03
not timely cured pursuant to the provisions of Section 10.02(c) below shall
constitute a material default under this Lease. The obligations of Tenant under
this Lease shall survive the expiration or earlier termination of this Lease,
and shall constitute obligations that are independent and severable from
Tenant's covenants and obligations to pay rent under this Lease.
5.03.11 LANDLORD'S REPRESENTATION AND WARRANTY. As of the date
of this Lease, Landlord represents and warrants that to the best of Landlord's
actual knowledge (and except as otherwise disclosed in that certain
environmental assessment report dated July 5, 2006 and prepared by OGI
Environmental LLC, a copy of which has been provided by Landlord to Tenant), the
Property is free of any Hazardous Materials in violation of any Environmental
Requirements, and will be free upon Substantial Completion of the Building Shell
Improvements and the Tenant Improvements. Tenant shall have no liability of any
kind to Landlord for any Environmental Damages resulting from or related to
Hazardous Materials located on, under or about the Property as of the date of
this Lease or upon Substantial Completion of the Building Shell Improvements (or
the Tenant Improvements. As used in this Section, the "actual knowledge" of
Landlord means the actual knowledge of Xxxxxx X. Xxxxxx (as opposed to
constructive, implied, or imputed), but without any investigation.
Section 5.04. AUCTIONS AND SIGNS. Tenant shall not conduct or permit any
auctions or sheriff's sales at the Property. Subject to Landlord's prior written
approval, which shall not be unreasonably withheld, delayed or conditioned, and
provided all signs are in keeping with the quality, design and style of the
business park within which the Property is located, Tenant and its permitted
Subtenants, at their cost and expense, may install signs (collectively, "SIGN")
at the Property; provided, however, that (i) the size, color, location,
materials and design of the Sign shall be subject to Landlord's prior written
consent, which shall not be unreasonably withheld, delayed or conditioned; (ii)
the Sign shall comply with all applicable governmental rules and regulations and
the Property's covenants, conditions and restrictions; (iii) the Sign shall not
be painted directly on the Building or attached or placed on the roof of the
Building; and (iv) continuing signage rights shall be contingent upon
maintaining the Sign in a first-class condition. Tenant shall be responsible for
all costs incurred in connection with the design, construction, installation,
repair and maintenance of the Sign. Upon the expiration or earlier termination
of this Lease, Tenant shall cause the Sign to be removed and shall repair any
damage caused by such removal (including, but not limited to, patching and
painting), all at Tenant's sole cost and expense. Any installed signs, notices,
logos, pictures, etc. which have not been approved by Landlord may be removed by
Landlord at Tenant's cost if not removed by Tenant following the applicable
notice and cure period provided in this Lease. Notwithstanding any
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language to the contrary in this Section 5.04, Tenant may, without the prior
consent of Landlord, install typical directional signs at the Property, so long
as the same are in compliance with Applicable Laws.
Section 5.05. INDEMNITY.
5.05.1 TENANT'S INDEMNITY. Tenant shall indemnify, defend, protect
and hold harmless Landlord (and Landlord's agents, employees, contractors, and
property manager) from any and all costs, claims, loss, damage, expense and
liability (including without limitation court costs, litigation expenses, and
reasonable attorneys' fees) incurred in connection with or arising from: (a)
Tenant's use of the Property, including, but not limited to, those arising from
any accident, incident, injury or damage, however and by whomsoever caused
(except to the extent of any claim arising out of the negligence or willful
misconduct of Landlord, its affiliates, employees, agents, contractors, other
tenants or invitees), to any person or property occurring in or about the
Property; (b) the conduct of Tenant's business or anything else permitted by
Tenant to be done in or about the Property; (c) any breach or default in the
performance of Tenant's obligations under this Lease; (d) any misrepresentation
or breach of warranty by Tenant under this Lease; or (e) other acts or omissions
of Tenant. As a material part of the consideration to Landlord, Tenant assumes
all risk of damage to property or injury to persons in or about the Property
arising from any cause from which Tenant is required to indemnify Landlord
pursuant to the foregoing, and Tenant hereby waives all claims in respect
thereof against Landlord, except to the extent of any claim arising out of the
negligence or willful misconduct of Landlord, its agents, contractors, invitees
or permitees. As used in this Section 5.05, acts and omissions of "Tenant" shall
include acts and omissions of Tenant's employees, agents, contractors and
invitees, if applicable. The provisions of this Section 5.05.1 shall survive the
expiration or earlier termination of this Lease with respect to any claims or
liability occurring prior to such expiration or earlier termination, and shall
constitute obligations that are independent and severable from Tenant's
covenants and obligations to pay rent under this Lease.
5.05.2 LANDLORD'S INDEMNITY. Landlord shall indemnify, defend,
protect and hold harmless Tenant (and Tenant's agents, employees, and
contractors) from any and all costs, claims, loss, damage, expense and liability
(including without limitation court costs, litigation expenses, and reasonable
attorneys' fees) incurred in connection with or arising from the following,
except to the extent caused by Tenant's negligence or willful misconduct: (a)
any breach or default in the performance of any obligation of Landlord under
this Lease, (b) any misrepresentation or breach of warranty by Landlord under
this Lease, or (c) any negligence or willful misconduct of Landlord. As material
part of the consideration to Tenant, Landlord assumes all risk of damage to
property or injury to persons in or about the Property arising from any cause
from which Landlord is required to indemnify Tenant pursuant to the foregoing,
and Landlord hereby waives all claims and respect thereof against Tenant, except
to the extent of any claim arising out of the negligence or willful misconduct
of Tenant, its agents, contractors, invitees or permittees. As used in this
Section 5.05, acts and omissions of "Landlord" shall include acts and omissions
of Landlord's employees, agents, contractors and invitees, if applicable. The
provisions of this Section 5.05.2 shall survive the expiration or earlier
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or earlier termination.
Section 5.06. LANDLORD'S ACCESS. Landlord reserves the right at all
reasonable times and upon reasonable notice to Tenant (i.e., notice of not less
than two (2) business days) to enter the Property to (i) inspect it; (ii) show
the Property to prospective purchasers, mortgagees or tenants (but only during
the last year of the Lease Term, in case of prospective tenants, and only if
Landlord will have a residual leasehold interest under the Master Lease at such
time), or to the ground or underlying lessors; (iii) post notices of
non-responsibility if required by statute to be so posted to be effective; (iv)
alter, improve or repair the Property as permitted or required under the terms
of this Lease; or (v) place "For Lease" signs on the Property (but only during
the last year of the Lease Term and only if Landlord will have a residual
leasehold interest under the Master Lease at such time). Any such entries shall
be without the abatement of Rent and shall include the right to take such
reasonable steps as required to accomplish the stated purposes. Any entry into
the Property in the manner described above shall not be deemed to be a forcible
or unlawful entry into, or a detainer of, the Property, or an actual or
constructive eviction of Tenant from any portion of the Property. In case of any
such entry into the Property, Landlord's representatives shall be accompanied by
a representative of Tenant. Landlord acknowledges that the right of Landlord or
any representative of Landlord to enter or have access to Tenant's control room
shall be conditioned upon and subject to Tenant's then security requirements and
procedures, and shall in any event be with the accompaniment of one or more
representatives of Tenant. Tenant represents and warrants that Tenant's present
control room security requirements
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and procedures impose conditions and restrictions but do not prohibit such
access by Landlord or its representatives. Landlord acknowledges the possibility
that such requirements and procedures may in the future prohibit such access,
but Tenant agrees that any such future prohibition will not unfairly
discriminate nor be applied in such a manner so as to unfairly discriminate
against Landlord and its representatives.
Section 5.07 VEHICLE PARKING. Tenant, its permitted Subtenants, and their
employees, contractors, customers and other business invitees shall be entitled
to the exclusive use of those spaces in the vehicle parking areas to be located
on the Property (including the exclusive spaces established by Tenant in the
Common Areas pursuant to Section 4.05(b) above) without paying any Additional
Rent. Tenant shall not allow large trucks or other large vehicles to be parked
on the adjacent public streets.
Section 5.08 QUIET POSSESSION. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Property for the
full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. CONDITION OF PROPERTY. Landlord warrants that upon
Substantial Completion of the Tenant Improvements, the Building Shell
Improvements and the Tenant Improvements shall have been constructed in a good
and workmanlike manner, in conformance with the plans and specifications
therefor, and shall be free of any defects in workmanship or material and in
conformance with all recorded matters and all Applicable Laws. Except as
expressly provided in this Lease, Tenant acknowledges that neither Landlord nor
any agent of Landlord has made any representation as to the suitability of the
Property for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of and inquiry regarding the suitability of the
Property (or has had the opportunity to do so) and is not relying on any
representations of Landlord or any Broker with respect thereto. Notwithstanding
the above, Tenant is entitled to the benefit of the construction warranties set
forth in this Section 6.01 and Section 6.03 below.
Section 6.02. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not be
liable for any damage or injury to the person or business (or any loss of income
therefrom), goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers, or the property of others in the possession and
control of Tenant, in or about the Property, whether such damage or injury is
caused by or results from: (a) fire, steam, electricity, water, gas or rain; (b)
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures or any other cause;
(c) conditions arising in or about the Property or upon other portions of the
Project, or from other sources or places; or (d) any act or omission of any
other tenant of Landlord. Landlord shall not be liable for any such damage or
injury even though the cause of or the means of repairing such damage or injury
are not accessible to Tenant. The provisions of this Section 6.02 shall not,
however, exempt Landlord from liability to the extent of the negligence or
willful misconduct of Landlord, its agents, contractors, invitees and permitees,
and are subject to Section 4.04(d)(iv) and Section 5.05.2 above.
Section 6.03. LANDLORD'S OBLIGATIONS. Subject to the provisions of Article
Seven (Damage or Destruction) and Article Eight (Condemnation), and except as
provided in Section 4.05 above and in this Section 6.03, Landlord shall have no
responsibility to repair, maintain or replace any portion of the Property. Upon
Substantial Completion of the Tenant Improvements, Landlord shall deliver the
Property to Tenant clean and free of debris, and in conformance with Landlord's
warranties and representations set forth in Section 6.01 above. In the event of
non-compliance with the warranties and representations contained in Section 6.01
above, Landlord shall promptly after receipt of written notice from Tenant
setting forth with specificity the nature and extent of such non-compliance,
rectify the same at Landlord's expense. If Tenant does not give Landlord written
notice of a non-compliance with that warranty within one (1) year after the date
of Substantial Completion of the Building Shell Improvements (with respect to
the Building Shell Improvements) or within one (1) year after the date of
Substantial Completion of the Tenant Improvements (with respect to the Tenant
Improvements), correction of that non-compliance shall be the obligation of
Tenant at Tenant's sole cost and expense, and any further obligation of Landlord
arising from or related to such warranty shall be extinguished except with
respect to any latent defects in those components of the Building for which
Landlord has expressly assumed responsibility below in this Section 6.03.
Landlord shall also obtain a ten (10)-year NDL manufacturer warranty covering
the Building's roof membrane, and shall assign its rights thereunder to Tenant
(and Tenant acknowledges it must assume and comply with all of the obligations
thereunder in connection with such assignment).
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With respect to the Building only, Landlord, at its sole cost and expense,
shall be responsible for repair, maintenance, or replacement (as needed) of the
foundations, structural portions of the roof (but excluding all non-structural
portions such as the roof membrane), exterior walls (but excluding the painting
thereof, which shall be Tenant's sole responsibility) and the floor slab due to
any latent defects therein. Subject to Landlord's one-year warranties set forth
in this Article Six, Landlord shall not be obligated to replace or maintain or
repair windows, doors, plate glass or the interior surfaces of the exterior
walls of the Building, or any of the improvements on the Additional Land or any
of the other Tenant Improvements. Landlord shall not be obligated to undertake
any work pursuant to this Section 6.03 until a reasonable time after receipt of
a written notice from Tenant of the need for such work, and shall diligently
pursue such work until complete. In no event shall normal wear and tear
(including that caused by the elements or other natural environmental
conditions) constitute or be deemed to have caused or resulted in a latent
defect.
Section 6.04. TENANT'S OBLIGATIONS.
(a) Except as otherwise expressly provided in Section 4.05 above,
Section 6.03 above, Article Seven (Damage or Destruction) below, and Article
Eight (Condemnation) below, Tenant, at Tenant's sole cost and expense, shall
keep all portions of the Property (including interior, exterior, systems and
equipment) in good order, condition and repair. If any portion of the Property
or any system or equipment in the Property that Tenant is obligated to repair
cannot be fully repaired or restored, Tenant shall promptly replace such portion
of the Property or system or equipment in the Property. The cost of such
replacement shall be amortized (including Interest) over the useful life as
reasonably determined by Landlord, and Tenant shall only be liable for that
portion of the cost which is applicable to the remaining Lease Term (as it may
be extended), and Landlord shall reimburse Tenant or, at Tenant's option,
provide Tenant with a credit against future Additional Rent obligations in an
amount equal to Landlord's share of such total cost. If any part of the Property
or the Project is damaged by any act or omission of Tenant, to the extent such
damage is not insured under any property insurance policy carried by Landlord
that provides primary coverage, Tenant shall repair or replace the same, as
needed. It is the intention of Landlord and Tenant that, at all times during the
Lease Term, Tenant shall maintain the Property in an attractive, first-class and
fully operative condition. Without limiting the generality of the provisions
contained above in this Section 6.04(a), Tenant agrees to repair any damage to
the Building and Building Premises other than ordinary wear and tear caused by
the transportation and storage of its products in, on, or about the Property,
including, but not limited to any damage to the Building's concrete floor slab,
adjoining concrete ramps, adjoining concrete truck apron, and adjoining asphalt
parking and access areas on the Building Premises due to the use of forklifts
hauling Tenant's products. Tenant's repair obligation described above shall
include the restoration of any damaged areas of the Property or the Project, if
repair is impracticable, so as to restore such areas to the condition existing
prior to such damage. For purposes of the foregoing, "damage" excludes ordinary
wear, tear and scrapes, as well as any settling of concrete and paved areas
reasonably anticipated from Tenant's use of the Property.
Section 6.05. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Any alterations, additions or improvements made to the Building
or the Property by or at the request of Tenant, are herein referred to as
"TENANT'S ALTERATIONS." Tenant shall not make any Tenant's Alterations to the
Building without Landlord's prior written consent, except for non-structural
interior alterations and the initial Tenant Improvements (which are to be
constructed subject to the provisions of Article Fourteen below). Tenant shall
promptly remove any Tenant's Alterations constructed in violation of this
Section 6.05(a) upon Landlord's written request. All Tenant's Alterations shall
be performed in a good and workmanlike manner, in conformity with all Applicable
Laws, and to the extent Landlord's consent is required, using a contractor
reasonably acceptable to Landlord. Upon completion of any such work, Tenant
shall make available for Landlord's review and copying, any "as built" plans,
construction contracts, and proof of payment for labor and materials in Tenant's
possession.
(b) Tenant shall pay when due all claims for labor and material
contracted for by Tenant and furnished to the Property. Tenant shall give
Landlord at least ten (10) days' prior written notice of the commencement of any
work with an anticipated cost of One Hundred Fifty Thousand Dollars
($150,000.00) in Constant Dollars (defined below) or more on the Property (other
than the initial Tenant Improvements), regardless of whether Landlord's consent
to such work is required. Notwithstanding any language to the contrary in this
Section 6.05, with respect to any Tenant's Alterations, regardless of whether
Landlord's consent to such work is
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required under the terms of this Lease, Tenant acknowledges Nevada law may
require Tenant to record a notice of posted security in compliance with the
requirements of Nev. Rev. Stat. Chapter 108 (2005) (the "POSTED SECURITY
REQUIREMENTS"). Concurrently with Landlord's delivery of this Lease to Tenant
for execution, Landlord may elect to provide Tenant with a separate written
notice of the Posted Security Requirements, which shall include an
acknowledgement of Tenant (the "NOTICE AND ACKNOWLEDGEMENT"). If so provided,
Tenant agrees to promptly sign and return the Notice and Acknowledgment to
Landlord; provided, however, that Tenant acknowledges and agrees that under no
circumstances shall such Notice and Acknowledgement or the terms of this Section
6.05 be construed as Landlord's consent to or approval of any Tenant's
Alterations; and provided that the Notice and Acknowledgment shall be in form
reasonably satisfactory to Tenant. Landlord may elect to record and post notices
of non-responsibility on the Property. "CONSTANT DOLLARS" means the value of the
U.S. dollar to which such phrase refers, as adjusted from time to time. An
adjustment shall occur on the first (1st) day of January of the sixth (6th) full
calendar year following the date of this Lease, and thereafter at five (5) year
intervals. Constant Dollars shall be determined by multiplying the dollar amount
to be adjusted by a fraction, the numerator of which is the Current Index Number
and the denominator of which is the Base Index Number. The "Base Index Number"
shall be the level of the Index for the calendar month during which this
Declaration is recorded in the Official Records; the "Current Index Number"
shall be the level of the Index for the calendar month that corresponds to the
month of the date of this Lease of the year preceding the adjustment year; the
"Index" shall be the Consumer Price Index for All Urban Consumers, published by
the Bureau of Labor Statistics of the United States Department of Labor for U.S.
City Average, All Items (1996=100), or any successor index thereto as
hereinafter provided. If publication of the Index is discontinued, or if the
basis of calculating the Index is materially changed, then Landlord shall
substitute for the Index comparable statistics as computed by an agency of the
United States Government or, if none, by a substantial and responsible
periodical or publication of recognized authority most closely approximating the
result which would have been achieved by the Index.
(c) To the extent Landlord's prior consent is required by this
Section 6.05, Landlord may condition its consent to any proposed Tenant's
Alterations on: (i) Tenant's submission to Landlord, for Landlord's prior
written approval, of all plans and specifications relating to Tenant's
Alterations; (ii) Tenant's written notice of whether Tenant's Alterations
include the use or handling of any Hazardous Materials; (iii) Tenant's
obtaining, for Landlord's benefit and protection, of such insurance as Landlord
may reasonably require (in addition to that required under Section 4.04 of this
Lease); (iv) Tenant's compliance with the requirements of Nev. Rev. Stat.
Chapter 108 (2005) or any applicable successor statute; and (v) Tenant's payment
to Landlord of all reasonable costs and expenses incurred by Landlord because of
Tenant's Alterations other than the initial Tenant Improvements, including
without limitation, costs incurred in reviewing the plans and specifications
for, and inspecting the progress of, Tenant's Alterations; provided, however,
that Landlord shall only be entitled to such payment to the extent such work
affects (i) the drainage or grade of the Property, or (ii) structural components
(including the floor slabs) of any improvements on the Building Premises. Such
reasonable cost and expenses shall include the standard hourly charges incurred
by Landlord when using employees of Commerce Construction Co., L.P. ("LANDLORD'S
CONTRACTOR") for such review and inspection.
(d) Upon imposition of any lien resulting from construction of
Tenant's Alterations contracted for by Tenant (an "IMPOSITION"), Tenant shall
either (i) cause the same to be released, if recorded, or (ii) diligently
contest such Imposition and indemnify, defend, and hold Landlord harmless from
any and all loss, cost, damage, liability and expense (including attorney's
fees) arising from or related to it; provided, however, that consistent with
Article Seventeen below, if the Master Landlord requires the removal of any such
Imposition, Tenant shall comply with the terms of the Master Lease and either
bond against or discharge the same within the time period provided in the Master
Lease. Notwithstanding the above, in case of an Imposition for the claimed cost
of work, materials or equipment furnished in construction of the Tenant
Improvements by Landlord pursuant to Section 14.02 below, the provisions of this
Section 6.05(d) shall not apply, unless at the time or recording of the
Imposition (i) all of that claimed cost has been approved by Tenant's Architect
for payment as provided in Section 14.02(a) below and (ii) twenty (20) days or
more have expired following that approval without payment by Tenant to Landlord
as provided in Section 14.02 below.
(e) Notwithstanding any language to the contrary in this Section
6.05, if the proposed Tenant's Alterations (other than the Tenant Improvements,
which are to be constructed subject to the provisions of Article Fourteen
below), materially affect one or more of the structural components of the
Building, or life safety
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matters, including, but not limited to, the Building's or Project's fire
suppression system, Landlord's prior written consent will be required.
(f) Tenant acknowledges and agrees that any Tenant's Alterations are
wholly optional with Tenant and are not being required by Landlord, either as a
condition to the effectiveness of this Lease or otherwise.
Section 6.06. CONDITION UPON TERMINATION. Subject to the provisions
of Article Seven and Article Eight below, upon the termination of this Lease,
Tenant shall surrender the Property to Landlord, broom clean and in good
condition and repair, ordinary wear and tear excepted; provided, however, Tenant
shall not be obligated to repair any damage which Landlord is required to repair
under Article Seven (Damage or Destruction) below, if any, or make any repairs
for which Landlord is responsible hereunder. Landlord may require Tenant to
remove any Tenant's Alterations (whether or not made with Landlord's consent)
prior to, or within thirty (30) days after, the expiration of this Lease and to
restore the Building to its prior condition at Tenant's expense; provided,
however, that Tenant shall not have any obligation to remove any Building Shell
Improvements or Tenant Improvements save and except those described on Exhibit
"J" attached hereto and by this reference incorporated herein, and then only if
requested by Landlord to do so at least one hundred eighty (180) days prior to
the expiration or earlier termination of this Lease (or such shortened period if
the 180-day notice is not practicable under the circumstances, such as in case
of an early termination based on an Event of Default). All alterations,
additions and improvements which Tenant does not remove shall become Landlord's
property if surrendered to Landlord upon the expiration or earlier termination
of this Lease. Tenant may remove any of Tenant's machinery, equipment (including
Tenant's Telecommunication Equipment), trade fixtures and other personal
property. Tenant shall repair, at Tenant's expense, any damage to the Building
or Building Premises caused by the removal of any such machinery, equipment,
fixtures or personal property (including, without limitation, the complete
removal of all studs and bolts that penetrate the floor or walls and filling and
patching the holes). In no event, however, shall Tenant remove any of the
following materials or equipment (which shall be deemed Landlord's property)
from the Building or Building Premises without Landlord's prior written consent:
any power wiring and power panels; lighting and lighting fixtures; wall
coverings; drapes, blinds and other window coverings; carpets and other floor
coverings; heaters, air conditioners and any other heating and air conditioning
equipment; fencing and security gates; load levelers, dock lights, dock locks
and dock seals; and other similar building operating equipment and decorations.
Tenant's obligations under this Section 6.06 shall also include its obligations
under Section 5.04 with respect to any Sign.
ARTICLE SEVEN DAMAGE OR DESTRUCTION
Section 7.01. DAMAGE OR DESTRUCTION TO PROPERTY.
(a) In case of damage to or destruction of Building Shell
Improvements other than the ESFR System, or any part of those Building Shell
Improvements by fire or other casualty, Tenant will promptly give written notice
thereof to Landlord and shall, in accordance with the provisions of this Article
and all other provisions of this Lease, commence and complete restoration of the
Base Building Shell Improvements and Common Area Improvements on the Building
Premises (other than the ESFR System) in conformance with the Base Building
Shell Plans together with such Building Modifications as Tenant elects to
restore and such Tenant Improvements and other Tenant's Alterations as Tenant
elects to restore. In any such event, Tenant shall also have the right to make
additional alterations in conformity with and subject to the conditions of
Section 6.05 above, and in conformity with the plans and specifications required
to be prepared pursuant to this Section 7.01. Tenant's obligations in this
Section 7.01(a) shall be effective whether or not (i) such damage or destruction
has been insured or was insurable, (ii) Tenant is entitled to receive any
insurance proceeds, or (iii) insurance proceeds are sufficient to pay in full
the cost of the restoration work in connection with such restoration. Such
restoration shall be commenced promptly and shall be prosecuted and completed
expeditiously, Force Majeure Delays excepted. Landlord, its agents and
mortgagees, may, from time to time, inspect the restoration upon reasonable
advance notice to Tenant during normal business hours, subject to the provisions
of Section 5.06 above. In case of damage to or destruction of the ESFR System,
other Common Area Improvements not located on the Building Premises, or any part
thereof by fire or other casualty, Landlord shall promptly commence and shall
expeditiously prosecute and complete the restoration thereof, Force Majeure
Delays, excepted. Any restoration or rebuilding of the Building shall be in
conformance with such building code and other Applicable Law requirements as
shall permit the issuance of a certificate of occupancy for the restored or
reconstructed Building by Xxxxx County, Nevada, or such other governmental
entity as shall have jurisdiction with respect thereto.
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(b) In the event of any damage or destruction of the Base Building
Shell Improvements, or any substantial part thereof by fire or other casualty,
if the anticipated cost of repair exceeds One Hundred Fifty Thousand Dollars
($150,000.00) in Constant Dollars, Tenant agrees to furnish to Landlord at least
ten (10) days before the commencement of the restoration of such damage or
destruction, the following:
(i) Complete plans and specifications for such restoration
prepared by a licensed and reputable architect (the "ARCHITECT"), which plans
and specifications shall meet with the reasonable approval of Landlord, and
Landlord's mortgage lender, together with the approval thereof by all
governmental authorities then exercising jurisdiction with regard to such work.
(ii) Contracts then customary in the trade with (a) the
Architect, and (b) with a reputable and responsible contractor providing for the
completion of such restoration in accordance with said plans and specifications.
(iii) Certificates of insurance required by this Lease.
(c) All insurance claims shall be adjusted as provided in Section
4.04(d)(ix) above, and insurance proceeds shall be applied to the payment of the
cost of the restoration, including the cost of temporary repairs or for the
protection of the Property pending the completion of permanent restoration (all
of which temporary repairs, protection of the Property and permanent restoration
are hereinafter collectively referred to as the "RESTORATION"), from time to
time as such Restoration progresses. Insurance proceeds for the Base Building
Shall Improvements shall be received by Tenant in trust for the purposes of
paying the cost of Restoration of Base Building Shell Improvements.
(d) If the net insurance proceeds shall be insufficient to pay the
entire cost of such Restoration, Tenant will pay the deficiency.
(e) If the Property shall be partially or totally damaged or
destroyed by fire or other casualty, except as provided in paragraph (f) below,
Tenant shall restore such damage or destruction as previously provided in this
Section 7.01, Base Rent and Additional Rent shall continue to be due and payable
as if no damage or destruction had occurred, and this Lease shall remain in full
force and effect. In no event shall Base Rent or Additional Rent xxxxx, nor
shall this Lease terminate (subject to paragraph (f) below) by reason of such
damage or destruction.
(f) Notwithstanding anything in this Lease to the contrary, in case
of damage to or destruction of Building during the last year of the Lease Term
(including the last year of any previously exercised Lease Term Extension), and
if such damage will require more than one hundred twenty (120) days to
substantially complete the repair, then Tenant shall have the right and option
to terminate this Lease upon written notice to Landlord dispatched within ninety
(90) days after such damage or destruction. In such event, Tenant shall have the
right and option to do either of the following: (i) commence and complete
restoration of the Base Building Shell Improvements together with such Building
Modifications as Tenant elects to restore and such Tenant Improvements and other
Tenant's Alterations as Tenant elects to restore, or (ii) demolish and remove
the Building and pay to Landlord the full replacement cost of the Base Building
Shell Improvements (including any sums necessary to replace the Base Building
Shell Improvements in conformance with such building code and other Applicable
Law requirements as shall permit the issuance of a certificate of occupancy for
the replaced Building), and this Lease shall terminate upon such restoration or
upon such demolition and payment. Any Restoration or rebuilding of the Building
shall be in conformance with such building code and other Applicable Law
requirements as shall permit the issuance of a certificate of occupancy for the
restored or reconstructed Building by Xxxxx County, Nevada or such other
governmental entity as shall have jurisdiction with respect thereto.
Section 7.02. WAIVER. Tenant waives the protection of any statute,
code or judicial decision which may grant to Tenant the right to terminate a
lease in the event of the destruction of the leased property. Tenant agrees that
the provisions of Article Seven above shall govern the rights and obligations of
Landlord and Tenant in the event of any destruction to the Property.
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ARTICLE EIGHT CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"CONDEMNATION"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If a Condemnation occurs (i) through which any material portion of the Building
is taken or (ii) through which one acre or more of Property land is taken or one
acre or more of Property land will have been cumulatively taken through that
Condemnation and any prior Condemnation, or (iii) through which Property land is
taken after more than one acre of Property land has already been taken through
prior Condemnation, then Tenant may terminate this Lease as of the date the
condemning authority takes title or possession, by delivering written notice to
Landlord, within ninety (90) days after the condemning authority takes title or
possession. If Tenant does not terminate this Lease, this Lease shall remain in
effect as to the portion of the Property not taken, except that the Base Rent
and Additional Rent shall be reduced equitably in the same proportion that the
value of the Property taken bears to the value of the Property prior to such
Condemnation. If Landlord and Tenant are unable to agree upon the amount of such
reduction, the values shall be determined by process of appraisal, in the same
manner set forth in Section 2.05(d) above for determining fair rental value. If
this Lease is not terminated, Tenant shall repair any damage to the Building
Shell Improvements and Common Area Improvements on the Building Premises other
than the ESFR System, and Landlord shall repair any damage to the ESFR System
and the Common Area Improvements not located on the Building Premises. If the
damages received by Tenant are not sufficient to pay for repairs to be made by
Tenant, Tenant shall pay any amount in excess of such award necessary to
complete such repair. Tenant shall be entitled to all of any award or payment
made for (i) any such repair or restoration to be made by Tenant, (ii) the
Building Modifications, (iii) Tenant Improvements and (iv) any other Tenant
Alterations, including buildings and other real property improvements on the
Additional Land, and Landlord hereby assigns to Tenant any interest in any such
awards or payments. Landlord shall be entitled to all of any award or payment
made for Common Area Improvements and Base Building Shell Improvements (save and
except any award or payment to be made to Tenant for repair or restoration of
Common Area Improvements or the Building), and Tenant hereby assigns to Landlord
any interest in any such awards or payments. Landlord and Tenant shall be
entitled to assert and make claim for any other award or payment in connection
with any Condemnation, according to their respective interests in the Property.
Landlord's mortgage lender shall also be permitted to participate in any such
proceeding.
ARTICLE NINE ASSIGNMENT AND SUBLETTING
Section 9.01. TRANSFERS. Subject to all of the terms of this Article
Nine, Tenant shall not, without the prior written consent of Landlord, assign,
mortgage, pledge, encumber or otherwise transfer, this Lease or any interest
hereunder, permit any assignment or other such foregoing transfer of this Lease
or any interest hereunder by operation of law, or sublet the Property or any
part thereof (all of the foregoing are hereinafter sometimes referred to
collectively as "TRANSFERS" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "TRANSFEREE"). To
request Landlord's consent to any Transfer requiring such consent under the
provisions of this Article Nine, Tenant shall notify Landlord in writing, which
notice (the "TRANSFER NOTICE") shall include (i) the proposed effective date of
the Transfer, which shall not be less than forty-five (45) days after the date
of delivery of the Transfer Notice, (ii) a description of the portion of the
Property to be transferred (the "SUBJECT SPACE"), (iii) all of the terms of the
proposed Transfer and the consideration therefor, including a calculation of the
Transfer Premium (defined below) in connection with such Transfer (if
applicable), the name and address of the proposed Transferee, and a copy of all
existing documentation pertaining to the proposed Transfer, including all
existing operative documents to be executed to evidence such Transfer or the
agreements incidental or related to such Transfer, and (iv) current financial
statements of the proposed Transferee certified by an officer, partner or owner
thereof, and any other information reasonably required by Landlord, which will
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and such other information as Landlord may
reasonably require. Any Transfer requiring but made without Landlord's prior
written consent shall, at Landlord's option, be null, void and of no effect, and
if not terminated and rescinded upon expiration of the notice and cure periods
in Section 10.02 (c), shall, at Landlord's option, constitute a material default
by Tenant under this Lease.
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Section 9.02. LANDLORD'S CONSENT. Landlord shall not unreasonably
withhold its consent to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in the Transfer Notice. The parties hereby
agree that it shall be reasonable under this Lease and under any applicable law
for Landlord to withhold consent to any proposed Transfer where one or more of
the following apply, without limitation as to other reasonable grounds for
withholding consent:
9.02.1 The Transferee's business or use of the Subject Space is not
permitted under this Lease and Landlord decides, upon the exercise of its
reasonable discretion, not to approve such new use;
9.02.2 Any proposed assignee Transferee is not a party of reasonable
financial worth and/or financial stability in light of the responsibilities
involved under this Lease on the date consent is requested; or
9.02.3 The proposed Transfer would cause Landlord to be in violation
of another lease or agreement to which Landlord is a party.
If Landlord consents to any Transfer pursuant to the terms of this
Section 9.02), Tenant may within one year after Landlord's consent, but not
later than the expiration of such year period, enter into such Transfer of the
Property or portion thereof, upon substantially the same terms and conditions as
are set forth in the Transfer Notice furnished by Tenant to Landlord pursuant to
Section 9.01 of this Lease.
Section 9.03. TRANSFER PREMIUM. During any Extension (but not during
the initial Lease Term), in the event of a Transfer of Subject Space consisting
of warehouse area on the ground floor of the Building, and if the Transfer
requires Landlord's consent, if Landlord consents to such a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
to Landlord fifty percent (50%) of any "TRANSFER PREMIUM," as that term is
defined in this Section 9.03, received by Tenant from such Transferee, as
received by Tenant from the Transferee. "Transfer Premium" shall mean all rent,
additional rent or other consideration payable by such Transferee for the ground
floor warehouse area in excess of the Rent payable by Tenant under this Lease
for the area on a per rentable square foot basis if less than all of the
Building is transferred, less the total of actual and reasonable expenses
incurred by Tenant in connection with such Transfer (e.g., tenant improvement
costs, legal fees, leasing commission, etc., if applicable). All of the
foregoing sums shall be offset against first due Transfer Premium payments
otherwise payable to Landlord. "Transfer Premium" shall also include, but not be
limited to, key money and bonus money paid by Transferee to Tenant in connection
with such Transfer, and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment,
or furniture transferred by Tenant to Transferee in connection with such
Transfer. Notwithstanding any language to the contrary in this Section 9.03,
Tenant shall not be responsible for payment of any Transfer Premium otherwise
payable in connection with a subletting by the original Tenant of up to fifty
thousand (50,000) square feet of ground floor warehouse area in the Building.
Section 9.04. TRANSFER INVOLVING A PERMITTED USE. Notwithstanding
anything to the contrary contained in Section 9.01 above, a Transfer by the
original Tenant or a Tenant Affiliate of the original Tenant of a portion of the
Building to a subtenant for a Permitted Use shall not be deemed a Transfer for
which Landlord's consent is required. Further, notwithstanding anything to the
contrary contained in Section 9.01 above, a Transfer by the original Tenant to a
Tenant Affiliate of the original Tenant of a portion of the Property other than
the Building to a subtenant for a Permitted Use shall not be deemed a Transfer
for which Landlord's consent is required if (i) the Transfer includes an area of
the Building Premises or Additional Land incident to, ancillary to, and as a
part of a Transfer of a portion of the Building, (ii) the Transferee is a
vendor, supplier, contractor or co-venturer of Tenant, or (iii) the Permitted
Uses for which the Subject Space may be utilized by the Transferee are uses
relating to or in support of Tenant's activities as a public utility. Tenant
shall promptly notify Landlord of any such Transfer and promptly supply Landlord
with any documents or information reasonably requested by Landlord regarding
such Transfer. Any such sublease shall still comply with the provisions of
Section 9.08 below. Notwithstanding the foregoing provisions of this Section
9.04, any sublease of a portion of the Property for any use which (i) is a
Permitted Use, but which would create an unusual or atypical wear and tear on
the Building, different in nature and degree from that which results from the
original Tenant's use of the Property, (ii) is a Permitted Use, but which would
involve the use, handling, storage or disposal of material amounts of Hazardous
Materials other than those which are the same or similar to those used by the
original Tenant and in quantities and processes similar to the original Tenant's
uses, or (iii) is not a Permitted Use, shall require the prior written consent
of Landlord.
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Section 9.05. EFFECT OF TRANSFER. If Landlord consents to a
Transfer, (i) the terms and conditions of this Lease shall in no way be deemed
to have been waived or modified, (ii) such consent shall not be deemed consent
to any further Transfer by either Tenant or a Transferee, (iii) Tenant shall
deliver to Landlord, promptly after execution, a copy of executed Transfer
documentation pertaining to the Transfer, (iv) Tenant shall furnish upon
Landlord's request a complete statement certified by an independent certified
public accountant, or Tenant's chief financial officer, setting forth in detail
the computation of any Transfer Premium Tenant has derived and shall derive from
such Transfer (if applicable), and (v) no Transfer relating to this Lease or
agreement entered into with respect thereto, whether with or without Landlord's
consent, shall relieve Tenant or any guarantor (if applicable) of Tenant's
obligations under this Lease from liability under this Lease. Landlord or its
authorized representatives shall have the right at all reasonable times to audit
the books, records and papers of Tenant relating to any Transfer Premium, and
shall have the right to make copies thereof. If the Transfer Premium respecting
any Transfer shall be found understated, Tenant shall, within thirty (30) days
after demand, pay the deficiency and the reasonable costs of such audit.
Section 9.06. INTENTIONALLY OMITTED.
Section 9.07. TENANT AFFILIATE. Notwithstanding anything to the
contrary contained in Section 9.01 above, a Transfer of all or a portion of the
Property or any interest of Tenant in this Lease to a Tenant Affiliate (as
defined below), shall not be deemed a Transfer under this Article Nine for which
consent is required provided that (i) if such Transfer is an assignment, the
Tenant Affiliate assumes in writing all of Tenant's obligations under this
Lease; and (ii) such Transfer is not a subterfuge by Tenant to avoid its
obligations under this Lease. Tenant shall promptly notify Landlord of any such
transfer and promptly supply Landlord with copies of any applicable documents of
transfer regarding such Transfer. For purposes of this Lease, a "TENANT
AFFILIATE" means (i) an entity which is controlled by, controls, or is under
common control with Tenant, (ii) an entity resulting from a merger of,
consolidation with, or reorganization of Tenant or (iii) a Permitted Purchaser
(as defined below). "CONTROL," as used herein, shall mean the ownership,
directly or indirectly, of at least twenty percent (20%) of the voting
securities of, or possession of the right to vote, in the ordinary direction of
its affairs, of at least twenty percent (20%) of the voting interest in, any
person or entity. Tenant may assign this Lease, without Landlord's consent, to
any entity to which all or substantially all of Tenant's assets are sold, so
long as (a) such purchaser has a tangible net worth (as determined according to
GAAP then in effect) equal to or greater than One Hundred Million Dollars
($100,000,000.00), and (b) Tenant complies with the requirements stated above in
this Section 9.07 with respect to a Transfer involving a Tenant Affiliate. The
original Tenant may also assign this Lease, without Landlord's consent, to any
entity to which other material assets of the original Tenant are sold, so long
as (a) such purchaser has a tangible net worth (as determined according to GAAP
then in effect) equal to or greater than One Hundred Million Dollars
($100,000,000.00), (b) Tenant complies with the requirements stated above in
this Section 9.07 with respect to a Transfer involving a Tenant Affiliate and
(c) the original Tenant remains liable for its obligations under this Lease as
provided in Section 9.05. An assignee described in either of the two immediately
preceding sentences is a "PERMITTED PURCHASER."
Section 9.08. TRANSFER INVOLVING SUBLEASE. Every approved sublease
transaction shall be evidenced by a written sublease (the "SUBLEASE") between
Tenant and the subtenant (the "SUBTENANT"). The Sublease or, where applicable,
Landlord's written consent required under Section 9.01 above, to which Tenant
and Subtenant shall be parties (the "CONSENT"), shall comply with the following
requirements:
(i) The Sublease shall be subject to, and shall incorporate by
reference, all of the terms and conditions of this Lease, except those terms and
conditions relating to Base Rent, Additional Rent, and any other amount due
under this Lease. Subtenant shall acknowledge in the Sublease or Consent that it
has reviewed and agreed to all of the terms and conditions of this Lease.
Subtenant shall agree in the Sublease or Consent not to do, or fail to do,
anything that would cause Tenant to violate any of its obligations under this
Lease.
(ii) The Sublease or Consent shall contain, in full, any use
restrictions or other provisions of this Lease that affect the use of the
Property.
(iii) The Sublease or Consent shall contain a waiver of subrogation
against Landlord, and any Consent shall contain a waiver of subrogation by
Landlord against Subtenant.
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(iv) The Sublease or Consent shall prohibit a sub-subletting of the
Property or the assignment of the Sublease by Subtenant, without first obtaining
Landlord's consent if Landlord's consent to the Sublease was required in this
Lease.
(v) The Sublease or Consent shall require Subtenant, acting through
Tenant, to obtain Landlord's prior written consent to any alterations to the
Property, to the extent Tenant is required by this Lease to obtain such consent.
(vi) The Sublease or Consent shall provide that, at Landlord's
option, the Sublease shall not terminate in the event that this Lease
terminates. The Sublease shall require Subtenant to execute an attornment
agreement, if Landlord, in its sole and absolute discretion, shall elect to have
the Sublease continue beyond the date of termination of this Lease. Such
attornment agreement shall provide that Subtenant confirms it is in direct
privity of contract with Landlord and that all obligations owed to Tenant under
the Sublease shall become obligations owed to Landlord for the balance of the
term of the Sublease.
(vii) The Sublease or Consent shall provide that unless and until
such time as an attornment agreement is executed by Subtenant pursuant to the
terms and conditions of the preceding subsection (vi), nothing contained in the
Sublease shall create or shall be construed or deemed to create privity of
contract or privity of estate between Landlord and Subtenant.
(viii) The Sublease or Consent shall provide that Subtenant shall
have no right (and shall waive any rights it may have) under the Sublease to
hold Landlord responsible for any liability in connection with the Property,
including, without limitation, any liability arising from the noncompliance with
any federal, state, or local laws applicable to the Property.
(ix) The Sublease or Consent shall provide that nothing in the
Sublease shall amend or shall be construed or deemed to amend this Lease.
SECTION 9.09. NO MERGER. No merger shall result from Tenant's sublease of
the Property under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
Section 9.10. RIGHT TO MORTGAGE LEASEHOLD INTEREST. Notwithstanding any
language to the contrary in this Article Nine, Tenant and any Tenant Affiliate,
shall have the right, from time to time, without Landlord's prior written
consent or approval, to mortgage and encumber Tenant's interest in this Lease
and its leasehold interest in the Property. Any such leasehold mortgage is
herein referred to as a "Leasehold Mortgage" or "permitted Leasehold Mortgage"
As used in this Section and throughout this Lease, the noun "mortgage" shall
include a deed of trust or other security instrument (whether in the nature of a
security agreement, assignment, collateral assignment or otherwise); the verb
"mortgage" shall include the granting or creation of a deed of trust or other
such security instrument; the word "mortgagee" shall include the beneficiary
under a deed of trust or other such secured party or assignee; and the phrase
"Leasehold Mortgagee" or "permitted Leasehold Mortgagee" shall mean a mortgagee
of or with respect to a Leasehold Mortgage.
Section 9.11. RIGHT TO NOTICES. If Tenant shall mortgage this Lease in
accordance with Section 9.10 above and shall have furnished Landlord the name
and mailing address of the Leasehold Mortgagee, then Landlord shall give such
Leasehold Mortgagee, at the address specified by Tenant (as the same may be
changed, from time to time, by Tenant or such Leasehold Mortgagee by notice
given Landlord in conformance with Section 16.06 below and in the manner
required by Section 16.06 below), duplicate copies of all notices to Tenant and
all documents and suits delivered to or served upon Tenant, and notwithstanding
anything in this Lease to the contrary, no notice intended for Tenant shall be
deemed properly given, and no Event of Default hereunder shall be deemed to have
occurred unless Landlord shall have given the Leasehold Mortgagee a copy of its
notices to Tenant relating to such Event of Default. Further, notwithstanding
anything in this Lease to the contrary, no Event of Default shall have occurred,
Landlord shall not be empowered to terminate this Lease and this Lease shall not
expire by reason of the occurrence of any Event of Default hereunder unless
Tenant's applicable cure period with respect to such Event of Default shall have
expired without cure or commencement of cure as provided in Section 10.02, and
an additional
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fifteen (15) business days shall have expired without cure or a failure of
performance following receipt by the Leasehold Mortgagee entitled to notice
under the provisions of this Section of written notice from Landlord specifying
(i) the nature of the potential Event of Default, (ii) this Lease Section
together with the Lease Section requiring the applicable performance, (iii) that
the applicable period for Tenant's cure or commencement of cure has expired
without cure or commencement of cure by Tenant and (iv) that unless the
Leasehold Mortgagee cures or commences cure within fifteen (15) business days of
receipt of the notice an Event of Default shall occur and all applicable cure
periods shall have expired.
Section 9.12. RIGHT TO CURE. Notwithstanding anything in this Lease to the
contrary, a Leasehold Mortgagee shall have the right to pay any amount or do any
act or thing required of Tenant and so remedy any default under this Lease or
cause the same to be remedied, and Landlord shall accept such performance by or
at the instance of such Leasehold Mortgagee as if made by Tenant.
Section 9.13. ASSUMPTION OF OBLIGATIONS. Notwithstanding anything in this
Lease to the contrary, a Leasehold Mortgagee or the purchaser at any foreclosure
or similar sale, without the necessity of Landlord's prior approval, shall
become the legal owner and holder of Tenant's leasehold estate under this Lease
upon lawful foreclosure of a Leasehold Mortgage or as a result of the assignment
of Tenant's leasehold estate under this Lease in lieu of foreclosure, becoming
thereby subject to all the terms and conditions of this Lease. Except as
otherwise permitted in the following sentence of this Section, upon so becoming
the owner and holder of the leasehold estate, a Leasehold Mortgagee or the
purchaser at any foreclosure or similar sale shall have all rights, privileges,
obligations and liabilities of the original Tenant. Notwithstanding anything in
this Lease to the contrary, a Leasehold Mortgagee or the purchaser at any
foreclosure or similar sale following lawful foreclosure of a Leasehold Mortgage
or the assignment of Tenant's leasehold estate under this Lease in lieu of
foreclosure shall have the right to thereupon and thereafter assign Tenant's
leasehold estate under this Lease, without the prior written consent of
Landlord. In the event of any such assignment, the assignee shall become Tenant
hereunder, and the assigning Leasehold Mortgagee or purchaser shall thereupon be
relieved and released of any liability or obligation under this Lease accruing
after the effective date of such assignment. Any Leasehold Mortgage may provide,
at Tenant's option, that the mortgagee, upon making good any default or defaults
on the part of Tenant, shall be thereby subrogated to any and all of the right
of Tenant under the terms and provisions of this Lease.
Section 9.14. OTHER PROVISIONS. For the benefit of any Leasehold
Mortgagee, Landlord shall not accept a voluntary surrender of this Lease at any
time while a Leasehold Mortgage shall remain a lien on the leasehold interest of
Tenant without obtaining the prior written approval of the Leasehold Mortgagee.
ARTICLE TEN DEFAULTS; REMEDIES
Section 10.01. COVENANTS AND CONDITIONS. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions of Landlord and Tenant in this Lease.
Section 10.02. DEFAULTS. Tenant shall be in material default under this
Lease (an "Event of Default"):
(a) If Tenant's vacation of the Property results in the cancellation
of any insurance required in Section 4.04(b) above and Tenant does not replace
such insurance at its cost, or agree to self-insure with respect to such
insurance as provided in Section 4.04(e) within thirty (30) days of receipt of
written notice from Landlord that such insurance is being cancelled or has been
cancelled, demanding such replacement or self-insurance;
(b) If Tenant fails to pay rent or any other charge when due and
such failure continues for a period of fifteen (15) business days or more
following Tenant's receipt of written notice thereof from Landlord demanding
payment;
(c) If Tenant fails to perform any of Tenant's material non-monetary
obligations under this Lease or is otherwise in material breach of its
obligations under this Lease for a period of thirty (30) days after written
notice from Landlord; provided that if more than thirty (30) days are required
to complete such performance or cure such breach, Tenant shall not be in default
if Tenant commences such performance or cure within the thirty
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(30) day period and thereafter diligently pursues its completion. The notice
required by this paragraph is (i) intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement, and (ii) not intended to extend the time for Tenant's performance
if a shorter period of time for performance is expressly provided in this Lease
(although Tenant shall not be in material default of this Lease unless and until
that (a) shorter period of time for performance expires without performance, (b)
Landlord thereupon or thereafter provides the 30-day written notice provided for
above and (c) Tenant fails to complete such performance or cure such breach
within the time period set forth above in this Section 10.02(c)).
(d) If Tenant's interest in this Lease is sold, transferred or
conveyed after attachment, execution or other judicial seizure by a party other
than a permitted Leasehold Mortgagee and is not redeemed by Tenant prior to
expiration of any period during which Tenant may lawfully do so.
SECTION 10.03. REMEDIES. On the occurrence of any Event of Default,
Landlord may, at any time thereafter, with or without notice or demand (except
as required in Section 9.11 above, and except with respect to Tenant or a Tenant
Affiliate) and without limiting Landlord in the exercise of any right or remedy
which Landlord may have:
(a) Terminate Tenant's right to possession of the Property through
the institution of restitution, unlawful detainer or other legal action (as
respects the original Tenant or any Tenant Affiliate of the original Tenant) or
by any other lawful means (as respects a Tenant other than the original Tenant
or any Tenant Affiliate of the original Tenant). Upon termination of Tenant's
possession and occupancy of the Property and recovery, occupancy and possession
of the Property by Landlord, this Lease shall terminate. In such event, Landlord
shall be entitled to recover from Tenant all compensatory damages reasonably
incurred by Landlord by reason of Tenant's default. If Tenant has vacated the
Property, Landlord shall have the option of (i) retaking possession of the
Property as provided in this Section 10.03(a) or (ii) proceeding under Section
10.03(b) below;
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due; or
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the State of Nevada not expressly
prohibited in this Lease.
Notwithstanding any language to the contrary in this Section 10.03, Landlord
agrees to use commercially reasonable efforts to relet the Property and take
other commercially reasonable action in mitigation of damages caused by Tenant's
default hereunder. The provisions of this Section 10.03 shall survive
termination of the Lease.
Section 10.04. TERMINATION. If Landlord elects to terminate this
Lease as a result of a Tenant default, Tenant shall be liable to Landlord for
all compensatory damages resulting therefrom, which shall include, without
limitation, all costs, expenses and fees, including reasonable attorneys' fees
that Landlord reasonably incurs in connection with the filing, commencement,
pursuing and/or defending of any action in any bankruptcy court or other court
with respect to this Lease; the obtaining of relief from any stay in bankruptcy
restraining any action to evict Tenant; or the pursuing of any action with
respect to Landlord's right to possession of the Property. All such damages
suffered (apart from Base Rent and other rent payable hereunder) shall
constitute pecuniary damages that must be reimbursed to Landlord prior to
assumption of this Lease by Tenant or any successor to Tenant in any bankruptcy
or other proceeding.
Section 10.05. CUMULATIVE REMEDIES. Exercise of any right or remedy shall
not prevent a party from exercising any other right or remedy not expressly
prohibited in this Lease.
Section 10.06. SURRENDER. No act or thing done by Landlord or its agents
during the Lease Term shall be deemed an acceptance of a surrender of the
Property, and no agreement to accept a surrender of the Property shall be valid
unless made in writing and signed by Landlord.
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Section 10.07. REMOVAL OF TENANT'S PROPERTY. All furniture, equipment, and
other personal property of Tenant not removed from the Property upon the
vacation thereof following an uncured default by Tenant or upon the termination
of this Lease for any cause whatsoever shall be deemed to have been abandoned by
Tenant, and may be appropriated, sold, stored, destroyed or otherwise disposed
of by Landlord without obligation to account therefor if Landlord first gives
thirty (30) days' written notice to Tenant that Landlord intends to so
appropriate, sell, store, destroy or otherwise dispose of such furniture,
equipment and other personal property, unless Tenant retrieves such property
within such 30-day period, which Landlord shall permit Tenant to do during
reasonable times following dispatch of such notice. Tenant shall reimburse
Landlord for all reasonable expenses incurred in connection with such
disposition of such personal property. Landlord, upon presentation of reasonable
evidence of a third party's claim of ownership or security interest in any such
abandoned property, may turn over such property to the third party claimant
without any liability to Tenant.
Section 10.08. CONSEQUENTIAL DAMAGES. Notwithstanding anything to the
contrary contained in this Lease, nothing in this Lease shall impose any
obligations on Tenant or Landlord to be responsible or liable for, and each
hereby releases the other from all liability for, consequential damages other
than those consequential damages incurred by Landlord in connection with
holdover of the Property by Tenant after the expiration or earlier termination
of this Lease in accordance with, and subject to the provisions of Section 2.04
above.
Section 10.09. LANDLORD DEFAULT; LIMITED SELF-HELP RIGHT. Landlord shall
be deemed to be in default under this Lease, and a default of Landlord shall
have occurred if Landlord shall fail to perform any act or obligation required
of Landlord under this Lease, and should such failure continue for a period of
thirty (30) days following receipt by Landlord of written notice from Tenant of
the failure, requesting the performance of the act or obligation; provided,
however, that if Landlord cannot reasonably complete the cure or performance
within such 30-day period, then so long as Landlord commences such cure or
performance within thirty (30) days after receipt of such notice and thereafter
diligently pursues the same to completion, Landlord shall be deemed to have
timely cured such failure. In the event of any default of Landlord in accordance
with the foregoing, Tenant shall have available to it, and may pursue, any and
all rights and remedies available at law or in equity not expressly prohibited
in this Lease. Tenant shall have the right to make such temporary, emergency
repairs to the structural components of the Building, which are to be otherwise
made by Landlord under Section 6.03 above (but only to the extent as may be
reasonably necessary to prevent damage to the equipment, inventory or other
personal property of Tenant situated in the Building, or to prevent imminent
injury to persons). Tenant's limited self-help right described in the prior
sentence may only be exercised if Tenant has first provided Landlord with prior
notice reasonable under the circumstances stating that an emergency exists, the
nature of such emergency and the nature of the required repairs, and that Tenant
intends to immediately undertake the repair if Landlord does not do so within
twelve (12) hours following Landlord's receipt of such notice. The actual,
direct, and reasonable costs of Tenant's performance in lieu of Landlord's
performance shall be due and payable thirty (30) days after submission by Tenant
to Landlord of an invoice therefor (including the supporting documentation
described below), and if not timely paid, shall accrue Interest until paid.
Notwithstanding the foregoing, Tenant may not recover any costs that are
reimbursed to Tenant under any insurance policies carried by Tenant. In
addition, any requests for reimbursement made by Tenant shall be accompanied by
reasonable documentation showing the actual costs incurred by Tenant.
ARTICLE ELEVEN PROTECTION OF LENDERS
Section 11.01. SUBORDINATION. This Lease is subject and subordinate to all
present and future ground or underlying leases of the Project or Property, and
to the lien of any mortgages or trust deeds, now or hereafter in force against
the Project or Property, and to all renewals, extensions, modifications,
consolidations and replacements thereof, and to all advances made or hereafter
to be made upon the security of such mortgages or trust deeds, (i) unless the
holders of such mortgages or trust deeds, or the lessors under such ground lease
or underlying leases, require in writing that this Lease be superior thereto by
giving notice thereof to Tenant at least five (5) days before the election
becomes effective and (ii) so long as the holder of such mortgage or trust deed,
or the lessor under such ground lease or underlying lease agrees in writing, for
the benefit of Tenant, to accept this Lease and accept Tenant's occupancy as
provided in subsequent provisions of this Section 11.01. Tenant covenants and
agrees in the event any proceedings are brought for the foreclosure of any such
mortgage or trust deed, or if any ground or underlying lease is terminated, to
attorn to the purchaser upon any such foreclosure sale, or to the lessor of such
ground or underlying lease, as the case may be, if so requested to do so by such
purchaser or lessor, and to recognize such purchaser or lessor as the landlord
under this Lease, provided such lienholder or purchaser or ground lessor
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shall agree to accept this Lease and not disturb Tenant's occupancy, so long as
Tenant timely pays the rent and observes and performs all of the terms,
covenants and conditions of this Lease to be observed and performed by Tenant.
Landlord's interest herein may be assigned as security at any time to any
lienholder. Tenant shall, within fifteen (15) business days of request by
Landlord, execute such further instruments or assurances substantially in the
form attached hereto as Exhibit "B" or Exhibit "B-1" to evidence or confirm the
subordination or superiority of this Lease to any such mortgages, trust deeds,
ground leases or underlying leases, which shall expressly provide for the
non-disturbance of Tenant as provided in the foregoing provisions of this
Section 11.01, and if Tenant fails to do so timely, such failure shall
constitute a material default under this Lease, subject to the applicable notice
and cure provisions contained in this Lease. Tenant waives the provisions of any
current or future statute, rule or law which may give or purport to give Tenant
any right or election to terminate or otherwise adversely affect this Lease and
the obligations of Tenant hereunder in the event of any foreclosure proceeding
or sale. Notwithstanding anything to the contrary in this Section 11.01, the
subordination of the original Tenant's interest in this Lease to the lien of
Landlord's existing mortgage lender is conditioned on such lender's execution
and delivery to Tenant, for Tenant's execution, of the subordination
non-disturbance, and attornment agreement attached as Exhibit "B" to this Lease,
with such execution and delivery to Tenant being made no later than thirty (30)
days following full execution and delivery of this Lease by Landlord and Tenant.
In case of any future permanent (term) loan or refinancing of such future loan,
Landlord agrees to cause its then lender to execute and deliver to Tenant for
Tenant's execution, a subordination, non-disturbance and attornment agreement in
substantially the form of that attached as Exhibit "B-1" to this Lease.
Section 11.02. ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute,
acknowledge and deliver to Landlord a written estoppel certificate substantially
in the form attached hereto as Exhibit "C" or such other commercially-reasonable
form as may be reasonably requested by Landlord's purchaser or encumbrance so
long as such certificate merely estops Tenant as a matter of legal defense and
does not create any right of action against Tenant and does not impose on Tenant
any affirmative obligation (such as providing additional notices of default) or
negative obligation (such as forbearing enforcement for additional cure
periods). Tenant shall deliver such certificate to Landlord within fifteen (15)
business days after Landlord's request. Landlord may give any such certificate
by Tenant to any prospective purchaser or encumbrancer of the Property. Such
purchaser or encumbrancer may rely conclusively upon such statement as true and
correct.
(b) If Tenant does not deliver such statement to Landlord within
such fifteen (15) business day period, Landlord, and any prospective purchaser
or encumbrancer, may conclusively presume and rely upon the following: (i) that
the terms and provisions of this Lease have not been changed except as set forth
in written amendments to this Lease attached thereto and reflecting the
signatures of both Landlord and Tenant; (ii) that this Lease has not been
canceled or terminated; (iii) that not more than one month's Base Rent or other
charges have been paid in advance; and (iv) that Landlord is not in default
under this Lease. In such event, Tenant shall be estopped from denying the truth
of the foregoing.
Section 11.03. TENANT'S FINANCIAL CONDITION. Within fifteen (15) business
days after written request from Landlord, Tenant shall deliver to Landlord such
financial statements, as Landlord reasonably requires, to verify the net worth
of Tenant or any Transferee or Permitted Purchaser (if such verification of net
worth is required under the terms of this Lease). Tenant represents and warrants
to Landlord that each such financial statement is a true and accurate statement
as of the date of such statement. All financial statements shall be confidential
and shall be used only for the purposes set forth in this Lease. Notwithstanding
any language in this Section 11.03, Tenant need not provide Landlord with copies
of Tenant's financial statements if they are public record or available to the
public through filings with any governmental authority.
ARTICLE TWELVE LEGAL COSTS
Section 12.01. LEGAL PROCEEDINGS. If any legal action for breach of or to
enforce the provisions of this Lease is commenced, the court in such action
shall award to the party in whose favor a judgment is entered, a reasonable sum
as attorneys' fees and costs. The losing party in such action shall pay such
attorneys' fees and costs. Tenant shall also indemnify Landlord against and hold
Landlord harmless from all costs, expenses, demands and liability Landlord may
incur if Landlord becomes or is made a party to any claim or action (a)
instituted by Tenant
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against any third party, or by any person holding any interest under or using
the Property by license of or agreement with Tenant; (b) for foreclosure of any
lien for labor or material furnished to or for Tenant or such other person; (c)
otherwise arising out of or resulting from any act or transaction of Tenant or
such other person; or (d) necessary to protect Landlord's interest under this
Lease in Tenant's bankruptcy case, or other proceeding under Title 11 of the
United States Code, as amended. Tenant shall defend Landlord against any such
claim or action at Tenant's expense with Tenant's counsel or other counsel
reasonably acceptable to Landlord. Notwithstanding the above, Tenant's indemnity
obligations as set forth above shall not include any claims based on Landlord's
actual or claimed acts or omissions.
ARTICLE THIRTEEN BROKERS
Landlord and Tenant hereby warrant to each other that they have had no
dealings with any real estate broker or agent in connection with the negotiation
of this Lease, and that they know of no other real estate broker or agent who is
entitled to a commission in connection with this Lease, excepting only the real
estate brokers or agents named in Section 1.09 above (the "Brokers"). Each party
agrees to indemnify and defend the other party against and hold the other party
harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments, and costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of the indemnifying party's dealings
with any real estate broker or agent, other than the Brokers. Landlord's Broker
hereby discloses to Landlord and Tenant, and Landlord and Tenant hereby consent
to Landlord's Broker acting in this transaction as the agent of Landlord
exclusively. It is hereby acknowledged that Majestic Realty Co., identified in
Section 1.09 above as Landlord's Broker, and Xxxxxx X. Xxxxxx, are acting as
both principal (that is, they have an interest in the Landlord entity) and
broker in this lease transaction. Landlord shall pay a commission to the Brokers
pursuant to the terms of a separate written agreement.
ARTICLE FOURTEEN BUILDING SHELL AND TENANT IMPROVEMENTS
Section 14.01. BUILDING SHELL IMPROVEMENTS. Subject to obtaining all
necessary governmental approvals (and subject to any changes mandated by the
applicable governmental authorities as a condition to obtaining such approvals),
Landlord shall use commercially reasonable efforts to construct the Building and
the surrounding and associated Common Areas, Common Area Improvements and other
improvements generally shown on the attached Exhibit "A" (using Landlord's
customary materials, methods, and means of construction, modified as required to
construct in conformance with the Building Shell Plans (as defined below) prior
to the Estimated Substantial Completion Date, or as soon thereafter as is
practicable (collectively, the "BUILDING SHELL IMPROVEMENTS"). The Building
Shell Improvements shall not include the Tenant Improvements (defined below) or
any improvements to the Additional Land. The Building Shell Improvements shall
be constructed according to those certain construction drawings identified on
the list attached as Exhibit "H" to this Lease (the "BASE BUILDING SHELL
PLANS"), as modified and supplemented by those construction drawings identified
on the list attached as Exhibit "I" to this Lease, plus all Change Orders (as
defined in Section 14.02(c)) for Building Shell Improvements approved by Tenant
(collectively, the "MODIFIED BUILDING SHELL PLANS"). If any of the construction
drawings listed on Exhibit "H" or Exhibit "I" are modified or supplemented, or
if additional construction drawings are hereafter prepared, Landlord shall
immediately provide copies of all such revisions and construction drawings to
Tenant. The Base Building Shell Plans, as modified by the Modified Building
Shell Plans are collectively referred to in this Lease as the "BUILDING SHELL
PLANS." The Building Shell Improvements, including Common Area Improvements, to
be constructed as reflected in the Base Building Shell Plans include the
following:
(a) UTILITY CONNECTION FEES. All connection fees, "hook-up" fees and
similar fees imposed by utility-providing entities or agencies relative to that
portion of the Building Shell Improvements identified in the Base Building Shell
Plans, including, but not limited to those imposed by the Las Vegas Valley Water
District and the Xxxxx County Water Reclamation District.
(b) PERMIT FEES. All fees of any kind or nature required to be paid
for, or prior to, the issuance of any and all building permits and other permits
required for construction of that portion of the Building Shell Improvements
identified in the Base Building Shell Plans.
Landlord shall construct those portions of the Building Shell Improvements
described in the Base Building Shell Plans at no cost or expense to Tenant other
than the Rent payable under this Lease. The Building Shell
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Improvements described in the Base Building Shell Plans, including those Common
Area Improvements located on the Building Premises (other than the ESFR System),
are referred to herein as the "BASE BUILDING SHELL IMPROVEMENTS." Tenant shall
be solely responsible for the difference between (i) the total costs and
expenses of constructing the Building Shell Improvements and (ii) the total
costs and expenses that would have been incurred in constructing the Base
Building Shell Improvements reflected in the Base Building Shell Plans and all
Common Area Improvements included within the Base Building Shell Plans, which
difference in costs is referred to in this Lease as the "MODIFICATION COSTS."
The changes to the Base Building Shell Improvements resulting from the
modification and supplementation of the Base Building Shell Plans by the
Modified Building Shell Plans are herein referred to as the "BUILDING
MODIFICATIONS."
Section 14.02. TENANT IMPROVEMENTS AND SUBSTANTIAL COMPLETION.
(a) In addition to the Building Shell Improvements, and subject to
obtaining all necessary governmental approvals (and subject to any changes
mandated by the applicable governmental authorities as a condition to obtaining
such approvals), Landlord shall, at Tenant's sole cost and expense, construct
additional improvements (beyond the Building Shell Improvements) desired by
Tenant, including, without limitation, additional Building systems (including
HVAC) and office improvements for the Building and improvements for the
Additional Land, which may include buildings, structures, paving, lighting,
landscaping, screening, street improvements, and utilities (collectively, the
"TENANT IMPROVEMENTS") according to, and in conformance with the Final Plans as
defined below.
Landlord acknowledges having received Tenant's initial design development
drawings for the Tenant Improvements. Landlord acknowledges having received
additional construction drawings for building structures comprising Tenant
Improvements (the "CONSTRUCTION DRAWINGS"). Landlord and Tenant's Architect have
met and discussed the Construction Drawings. Tenant shall have final plans and
specifications prepared for the Tenant Improvements, taking into consideration
Landlord's comments. The final plans and specifications for Tenant Improvements
prepared pursuant to the foregoing, as revised, modified and supplemented from
time to time by Change Orders for the Tenant Improvements, are herein referred
to as the "FINAL PLANS."
On or before December 11, 2006, Landlord shall cause Landlord's Contractor
to provide Tenant with a written proposed guaranteed maximum price (the
"GUARANTEED MAXIMUM PRICE") for the Tenant Improvement Contract (as defined
below in this Section 14.02). The proposed Guaranteed Maximum Price may include
reasonable allowances (some of which may be provided by Tenant's Architect to
Landlord's Contractor in the absence of specifications or other detail not yet
available and not included in the Construction Drawings) for some of the work
("ALLOWANCE WORK") to take into account detail not included in the Construction
Drawings and anticipated differences between the Construction Drawings and the
Final Plans. The Guaranteed Maximum Price, once provided to Tenant, is to be
used by Tenant in determining whether to exercise the Termination Option
(defined in Article Twenty below). If Tenant does not timely exercise the
Termination Option, Landlord and Tenant acknowledge and agree that the
Guaranteed Maximum Price determined pursuant to this paragraph will also serve
as the Guaranteed Maximum Price to be subsequently identified in the Tenant
Improvement Contract (the "TIC GUARANTEED MAXIMUM PRICE"), provided that (a) the
scope of the work described in the Tenant Improvement Contract is materially the
same as the scope of the work described in the Construction Drawings, and (b)
the actual cost of the Allowance Work, as constructed in conformance with the
Final Plans and in the manner set forth in the Tenant Improvement Contract, does
not exceed the amount of such allowances. If, instead, the scope of the work is
materially different or the cost of the Allowance Work exceeds the allowances,
then in the case of either or both, the TIC Guaranteed Maximum Price may exceed
the Guaranteed Maximum Price by the sum total of (i) the increased cost
resulting from the differing scope of the work and (ii) the amount by which the
cost of the Allowance Work exceeds the allowances.
If, in the course of Landlord's seeking the necessary governmental
approvals of the Final Plans and obtaining the building permits required for
construction of the Tenant Improvements from the appropriate governmental
authorities such authorities impose any changes in the Final Plans as a
condition to obtaining such approvals and permits, Landlord shall provide
written notice to Tenant of any such impositions ("LANDLORD'S NOTICE"). Unless
Tenant, within ten (10) business days after receipt of Landlord's Notice,
objects in writing to the imposed changes in the Final Plans and specifically
describes the basis for such objection ("TENANT'S OBJECTION"), Tenant shall be
deemed to have waived any objection to the imposed changes and their effect on
the Property. If
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Tenant timely objects, then Landlord, with Tenant's cooperation, shall
thereafter attempt to resolve the matter to Tenant's reasonable satisfaction.
Landlord shall have the Tenant Improvements constructed by Landlord's
Contractor under and pursuant to a construction contract in the form attached as
Exhibit "K" hereto (the "TENANT IMPROVEMENT CONTRACT"). Landlord shall execute
the Tenant Improvement Contract and shall cause Landlord's Contractor to execute
the Tenant Improvement Contract upon written request from Tenant to Landlord
that Landlord initiate construction of the Tenant Improvements, which written
request shall also include Tenant's written acceptance of all of the final terms
of the Tenant Improvement Contract ("TENANT'S REQUEST AND ACCEPTANCE NOTICE").
Failure of Landlord to so execute or so cause Landlord's Contractor to execute
the Tenant Improvement Contract within ten (10) business days following
Landlord's receipt of Tenant's Request and Acceptance Notice shall constitute a
material default of Landlord hereunder, which, notwithstanding any other
provision of this Lease to the contrary, shall permit Tenant to thereafter
terminate this Lease by written notice to Landlord. Subject to the terms of
Article Twenty below, in the absence of Tenant's Request and Acceptance Notice,
Landlord shall have no obligation to construct the Tenant Improvements, but all
other rights and obligations of Landlord and Tenant under this Lease shall
remain unaffected.
Tenant shall be responsible for all costs of constructing the Tenant
Improvements ("TENANT'S COSTS"), which shall be paid by Tenant to Landlord as
follows: Tenant shall disburse to Landlord on a monthly basis the amount
sufficient for Landlord to pay Landlord's Contractor the monthly amount then
owing to Landlord's Contractor (based on applications for payment submitted to
Landlord by Landlord's Contractor under the Tenant Improvement Contract,
reflecting the portion of the work completed during the prior month as approved
in writing by Tenant's Architect. Such monthly payments shall be made by Tenant
to Landlord within twenty (20) days following Tenant's receipt of written
approval by Tenant's Architect of the application for payment submitted by
Landlord's Contractor to Landlord. If Tenant's payment of these sums is delayed
beyond such 20-day period, Landlord may direct Landlord's Contractor to suspend
the work, in which case Tenant shall be responsible for payment of reasonably
and actually incurred costs to which Landlord's Contractor may be entitled based
upon such suspension. All applications for payment submitted by Landlord's
Contractor shall be submitted with all such invoices and supporting
documentation as Tenant and Tenant's Architect may reasonably request. Tenant
shall provide in Tenant's contract with Tenant's Architect that the Architect
review applications for payment and communicate approval or disapproval thereof
(and the reasons for any disapproval) to Landlord and Tenant within ten (10)
days of receipt of the application for payment and all requested invoices and
supporting documents and all other documentation provided for in the Tenant
Improvement Contract.
(b) CONSTRUCTION RECORDS. The Building Shell Improvements and the
Tenant Improvements, to the extent designed by Landlord's design consultants and
constructed by Landlord's Contractor, shall be designed and constructed on an
"open book" basis with Tenant. Landlord shall keep, and shall cause Landlord's
Contractor and design consultants to keep, full and accurate accounts, records,
books, journals, ledgers, and data with respect to the direct expenses incurred
by Landlord's Contractor and design consultants in completing the Building Shell
Improvements and the Tenant Improvements pursuant to this Lease (the "RECORDS"),
which shall truthfully, accurately, and fully document the costs incurred in
connection with the construction of the Building Shell Improvements and the
Tenant Improvements. Tenant shall have the right, through its designated
representatives, during regular business hours, to inspect the Records as may be
reasonably necessary to verify performance by Landlord, Landlord's Contractor
and Landlord's design consultants of their respective obligations with regard to
construction of the Building Shell Improvements and the Tenant Improvements.
Landlord and Landlord's Contractor shall retain all Records for at least three
(3) years following the later of the date of Substantial Completion of the
Building Shell Improvements and the date of Substantial Completion of the Tenant
Improvements, and make the same available from time to time to Tenant and its
designated representatives during regular business hours at Landlord's offices
in Las Vegas, Nevada, within ten (10) days after receipt of a written request
for inspection from Tenant.
(c) CHANGES. Tenant may request a change to any part of the Building
Shell Improvements or the Tenant Improvements by providing written notice to
Landlord in which Tenant specifies with particularity the requested changes.
Within ten (10) business days of Landlord's receipt of Tenant's request for
changes ("CHANGES"), Landlord shall review the Changes requested and notify
Tenant in writing ("CHANGE ORDER") of any increase or decrease in the cost of
the Building Shell Improvements or the Tenant Improvements and the amount of any
delay that would result from the Change. Any delay that results from
Tenant-requested Changes to the Building
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Shell Improvements shall constitute a Tenant Delay if the critical path for
construction of the Building Shell Improvements is affected. Tenant shall
approve or disapprove the Change Order in writing before the expiration of ten
(10) business days following receipt of the Change Order. Any failure to approve
shall constitute a disapproval. Any and all costs, fees and expenses reasonably
incurred by Landlord relative to a Tenant-approved Change Order to (a) evaluate
a Tenant-requested Change, and (b) to change the Building Shell Improvements or,
the Tenant Improvements and to incorporate the Changes into the Building Shell
Improvements or, the Tenant Improvements contemplated under the Change Order
shall be expressly set forth in the Change Order and shall be paid by Tenant if
the Change Order is approved by Tenant. If such costs are incurred during the
course of Landlord's construction of the Tenant Improvements, such costs shall
be paid as provided above with respect to payment of Tenant's Costs. If such
costs are incurred by Landlord in connection with its construction of the
Building Shell Improvements, such costs shall be paid as provided in Section
14.02(e) below.
(d) SUBSTANTIAL COMPLETION. If the Building Shell Improvements are
not Substantially Completed by the Estimated Substantial Completion Date, then
the Lease Commencement Date shall be one hundred eighty (180) days following the
date the Building Shell Improvements would have been Substantially Completed but
for any Tenant Delay, subject to the provisions of Section 2.02 above. Tenant
agrees that any Tenant Delay shall be cumulative and shall not cause the Lease
Commencement Date to be extended beyond what it otherwise would have been in the
absence of any Tenant Delay. For purposes of this Lease, the Building Shell
Improvements shall be Substantially Completed when (a) all of such improvements
are completed, except for minor items of work (e.g., pick-up, "punch list" work,
etc.) that can be completed with only minor interference with construction and
installation of the Tenant Improvements, which shall be itemized on a punch list
and completed by Landlord within sixty (60) days following the date of
Substantial Completion of the Building Shell Improvements, (b) the Xxxxx County
Building Department has conducted its final inspection of all Building Shell
Improvements, has provided its approval thereof, and has issued a Certificate of
Completion therefor, and (c) upon written notice from Landlord to Tenant of the
foregoing, accompanied by a copy of such Certificate of Completion and expressly
granting Tenant possession and occupancy of the Building Shell Improvements
("SUBSTANTIALLY COMPLETED" or "SUBSTANTIAL COMPLETION" of the Building Shell
Improvements, or similar phrase). For purposes of this Lease , the Tenant
Improvements shall be Substantially Completed when (a) all of such improvements
are completed, except for minor items of work (e.g., pick-up, "punchlist work,"
etc.) that can be completed with only minor interference with Tenant's conduct
of business at the Property, and (b) the issuance of a final unconditional
Certificate of Occupancy for the Property.
(e) TENANT'S SHARE OF BUILDING SHELL COSTS. During the course of
construction of the Building Shell Improvements, no more than monthly, Landlord
shall provide Tenant an itemized statement ("TENANT'S BUILDING SHELL COST
STATEMENT") setting forth the Modification Costs incurred during the prior month
for constructing Building Modifications, including any Changes related thereto
approved by Tenant, which are costs for which Tenant is responsible under this
Lease. Tenant's Building Shell Cost Statement (i) shall be accompanied by such
invoices and other documentation as Tenant may reasonably request, (ii) shall be
subject to written approval by Tenant's Architect or other contract
administration personnel and (ii) shall be subject to review and audit by Tenant
and its representatives, which may include an audit of the Records. Within
twenty (20) days following receipt of written approval by Tenant's Architect or
other contract administration personnel of Tenant's Building Shell Cost
Statement, Tenant shall pay the approved portion of the Modification Costs to
Landlord. If audit or review results in a determination of revised Modification
Costs for any monthly period, Landlord or Tenant shall pay to the other any
applicable overpayment or underpayment within thirty (30) days following such
determination. Tenant shall provide in Tenant's contract with Tenant's Architect
or other contract administration personnel that the Architect or other contract
administration personnel review Tenant's Building Shell Cost Statement and
communicate their approval or disapproval thereof (and the reasons for any
disapproval) to Landlord and Tenant within ten (10) days of receipt of Tenant's
Building Shell Cost Statement and all requested invoices and other
documentation. Tenant shall be entitled to reduction of, and credit against, the
first payments due under this Section 14.02(e) in the cumulative amount of all
advances and/or payments made by Tenant to Landlord for Modification Costs,
whether such advances or payments are so characterized, and whether such
advances or payments are made before or after execution of this Lease.
(f) TENANT DELAY. As used in this Lease, "Tenant Delay" shall mean,
in addition to the Tenant Delay specifically described above in this Article
Fourteen, any delay caused by (a) any Tenant-requested and approved Changes; (b)
any act or omission of Tenant or its employees, agents or contractors,
including, but not
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limited to, any interference with the construction of the Building Shell
Improvements; and (c) any unreasonable delays by Tenant in providing Landlord
with information requested by Landlord, or in providing consents or approvals
required to be given by Tenant.
During the Lease Term, the Base Building Shell Improvements shall be the
property of Landlord, the Building Modifications and the Tenant Improvements and
other Tenant's Alterations shall be the property of Tenant. The Building Shell
Improvements and the Tenant Improvements shall remain upon and be surrendered
with the Property upon the expiration or earlier termination of the Lease Term,
subject to the other provisions of this Lease.
Notwithstanding any language to the contrary in this Section 14.02,
neither Landlord nor Landlord's Contractor shall be responsible for tracking the
compliance with the requirements for obtaining LEED certification for the Tenant
Improvements. Any such work related to obtaining such certification shall be
performed by Tenant or Tenant's consultants at Tenant's sole cost and expense.
Section 14.03. NO OTHER IMPROVEMENTS. Except for the Building Shell
Improvements, the Tenant Improvements, and any unfinished "punch list" items,
Landlord shall have no liability or obligation for making any further
alterations or improvements of any kind in or about the Property.
Section 14.04. NO POSTED SECURITY REQUIREMENTS. Notwithstanding the
provisions of Section 6.05 above, Landlord acknowledges and agrees that Tenant
is not required to comply with the Posted Security Requirements with respect to
any work of improvement to be undertaken by Landlord in constructing the
Building Shell Improvements and/or the Tenant Improvements. Further, Landlord
shall obtain the express written waiver by Landlord's Contractor of any right to
stop work on either the Building Shell Improvements or the Tenant Improvements
pursuant to the provisions of the Posted Security Requirements.
ARTICLE FIFTEEN TELECOMMUNICATIONS SERVICES
Section 15.01. TENANT'S TELECOMMUNICATIONS EQUIPMENT. Subject to all
Applicable Laws, Tenant may, at Tenant's sole cost and expense, install antennae
and related facilities and other equipment for the provision of
telecommunications services (the "TELECOMMUNICATIONS EQUIPMENT") on the rooftop
or in other portions of the Building or elsewhere on the Property, but only if
such use is solely limited to Tenant's own use in the conduct of its business
("TENANT'S TELECOMMUNICATIONS EQUIPMENT"); provided, however, that co-location
of equipment supplied by third parties on Tenant's Telecommunications Equipment
shall be permitted without Landlord's prior written approval. Tenant shall be
solely responsible for all costs and expenses related to the use and maintenance
of Tenant's Telecommunications Equipment, the removal of which upon the
expiration or earlier termination of this Lease shall be governed by Section
6.06 of this Lease. All operations by Tenant pursuant to this Article shall be
lawful and in compliance with all rules and regulations of the Federal
Communications Commission, Federal Aviation Administration, and Xxxxx County
Department of Aviation. Consistent with the terms of Section 6.05 above,
Landlord shall have the right, in its reasonably exercised discretion, to
determine the location of any visible Tenant's Telecommunications Equipment on
the Building; provided, however, that Landlord shall not require any location
that precludes or interferes with the intended operation of Tenant's
Telecommunications Equipment. Regardless of any roof warranty or any repair
obligations of Landlord in this Lease, Tenant shall be solely responsible for
the repair of any leaks or other damage to the roof membrane resulting from the
installation of any Tenant's Telecommunications Equipment. Landlord shall
include language in all other leases for space in the Project requiring the
tenants under such leases to operate any of their Telecommunications Equipment
in compliance with all rules and regulations of the Federal Communications
Commission, Federal Aviation Administration, and Xxxxx County Department of
Aviation.
ARTICLE SIXTEEN MISCELLANEOUS PROVISIONS
Section 16.01. NON-DISCRIMINATION. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
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Section 16.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "LANDLORD" means only the
current owner of the leasehold estate under a ground lease of the Property at
the time in question. Each Landlord is obligated to perform the obligations of
Landlord under this Lease only during the time such Landlord owns such interest
or title. Any Landlord who transfers its title or interest is relieved of all
liability with respect to the obligations of Landlord under this Lease to be
performed on or after the date of transfer. However, each Landlord shall deliver
to its transferee all funds that Tenant previously paid if such funds have not
yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and, if Landlord
expressly so requests in written notice thereof to Tenant, to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Property whose
name and address have been furnished to Tenant in writing in that notice.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure or commence to cure such
non-performance within the period(s) specified in Section 10.09 above.
(c) Notwithstanding any term or provision herein to the contrary,
the liability of Landlord for the performance of its duties and obligations
under this Lease is limited to Landlord, and neither Landlord nor Landlord's
partners, members, managers, shareholders, officers or other principals shall
have any personal liability under this Lease.
(d) Except as otherwise expressly provided in this Lease, Tenant
shall have no right to terminate this Lease based on an uncured default by
Landlord in the performance of Landlord's obligations under this Lease;
provided, however, that in addition to all other rights and remedies not
expressly prohibited in this Lease, Tenant may seek to recover from Landlord an
amount representing appropriate actual, compensatory damages for breach of
contract based on any such uncured default of Landlord. Consistent with Section
10.08 above, in no event shall Tenant be permitted to recover consequential,
punitive, or exemplary damages from Landlord based on any such uncured default
of Landlord, or otherwise.
Section 16.03. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect, and it is the intention
of the parties that there shall be substituted for such provision as is illegal
or unenforceable a provision as similar to such provision as may be possible and
yet be legal and enforceable.
Section 16.04. INTERPRETATION. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Tenant's express or
implied permission. Any reference in this Lease to a "business day" refers to a
date that is not a Saturday, Sunday or legal holiday (or observed as a legal
holiday) for Nevada state government offices pursuant to NRS. If any deadline
specified in this Lease falls on a day that is not a business day, the deadline
shall be extended to the next business day.
Section 16.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 16.06. NOTICES. All notices, demands, statements or communications
(collectively, "NOTICES") given or required to be given by either party to the
other hereunder shall be in writing, shall be sent by United States certified or
registered mail, postage prepaid, return receipt requested,
nationally-recognized commercial overnight courier, or delivered personally (i)
to Tenant at the addresses set forth in Section 1.03 above, or (ii) to Landlord
at the addresses set forth in Section 1.02 above. Landlord or Tenant shall have
the right to change its respective Notice address upon giving Notice to the
other party. Any Notice will be deemed given three (3) business days after the
date it is mailed as provided in this Section 16.06, or upon the date delivery
is made, if delivered by an approved
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courier (as provided above) or personally delivered. Consistent with the
provisions of Section 16.02(b) above, if Tenant is notified as provided in this
Section 16.06 of the identity and address of Landlord's secured lender or ground
or underlying lessor, Tenant shall give to such lender or ground or underlying
lessor written notice of any default by Landlord under the terms of this Lease
by registered or certified mail or nationally-recognized commercial overnight
courier, and such lender or ground or underlying lessor shall be given the same
opportunity to cure such default as is provided Landlord under this Lease
(unless such cure period is extended pursuant to the terms of any agreement to
which Tenant is a party or to which Tenant consents) prior to Tenant's
exercising any remedy available to Tenant. Notices required hereunder may be
given by either an agent or attorney acting on behalf of Landlord or Tenant.
Section 16.07. WAIVERS. The failure of either party to insist upon the
strict performance, in any of one or more instances, of any term, covenant or
condition of this Lease shall not be deemed to be a waiver by that party of such
term, covenant or condition. No waiver of any breach of any term, provision and
covenant contained herein shall be deemed or construed to constitute a waiver of
any other or subsequent breach of any term, provision or covenant contained
herein. Landlord's acceptance of the payment of rent (or portions thereof) or
any other payments hereunder after the occurrence of and during the continuance
of a default unrelated to the payment of that rent (or with knowledge of a
breach of any term or provision of this Lease which with the giving of notice
and the passage of time, or both, would constitute such a default) shall not be
construed as a waiver of such default or any other rights or remedies of
Landlord, including any right of Landlord to recover the Property. Moreover,
Tenant acknowledges and agrees that Landlord's acceptance of a partial rent
payment shall not, under any circumstances (whether or not such partial payment
is accompanied by a special endorsement or other statement), constitute an
accord and satisfaction with regard to the unpaid balance of the rent. Landlord
will accept the check (or other payment means) for payment without prejudice to
Landlord's right to recover the balance of such rent or to pursue any other
remedy available to Landlord. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon the occurrence of a default shall not be
deemed or construed to constitute a waiver of such default.
Section 16.08. NO RECORDATION. Tenant shall not record this Lease.
Concurrently with their execution of this Lease, Landlord and Tenant shall
execute a memorandum of this Lease in the form of that attached as Exhibit "F"
to this Lease (the "LEASE MEMORANDUM"), which shall be recorded at Landlord's
sole cost and expense.
Section 16.09. BINDING EFFECT; CHOICE OF LAW. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease, without regard to such state's conflicts of law
principles. Landlord and Tenant agree that any action or claim brought to
enforce or interpret the provisions of this Lease, or otherwise arising out of
or related to this Lease or to Tenant's use and occupancy of the Property,
regardless of the theory of relief or recovery and regardless of whether third
parties are involved in the action, may only be brought in the State and County
where the Property is located, unless otherwise agreed in writing by the other
party prior to the commencement of any such action.
IN THE INTEREST OF OBTAINING A SPEEDIER AND LESS COSTLY ADJUDICATION OF
ANY DISPUTE, LANDLORD AND TENANT HEREBY KNOWINGLY, INTENTIONALLY, AND
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING,
CLAIM, OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ALL
MATTERS ARISING OUT OF OR RELATED TO THIS LEASE OR THE USE AND OCCUPANCY OF THE
PROPERTY.
Section 16.10. INTENTIONALLY OMITTED.
Section 16.11. INTENTIONALLY OMITTED.
Section 16.12. FORCE MAJEURE. A "FORCE MAJEURE" event shall occur if
Landlord or Tenant cannot perform any of its obligations due to events beyond
such applicable party's control, except with respect to the obligations imposed
with regard to Base Rent, Additional Rent and other charges to be paid by Tenant
pursuant to this Lease, the time provided for performing such obligations shall
be extended by a period of time ("FORCE MAJEURE DELAY") equal to the duration of
such events. Events beyond Landlord's or Tenant's control include, but are not
limited to, acts of God, war, civil commotion, terrorist acts, labor disputes,
strikes, fire, flood or other casualty, shortages of labor or material,
government regulation or restriction, waiting periods atypical in Xxxxx
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County, Nevada for obtaining governmental permits or approvals, or weather
conditions. No express reference in this Lease to a Force Majeure event shall
create any inference that the terms of this Section 16.12 do not apply with
equal force in the absence of such an express reference.
Section 16.13. COUNTERPARTS. This Lease may be executed in counterparts
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument.
Section 16.14. SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
Section 16.15. RELATIONSHIP OF PARTIES. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venturer or
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
Section 16.16. NO WARRANTY. In executing and delivering this Lease, Tenant
has not relied on any representation, including, but not limited to, any
representation whatsoever as to the amount of any item comprising Additional
Rent or the amount of the Additional Rent in the aggregate or that Landlord is
furnishing the same services to other tenants, at all, on the same level or on
the same basis, or any warranty or any statement of Landlord which is not set
forth herein or in one or more of the exhibits attached hereto.
Section 16.17. INTENTIONALLY OMITTED.
Section 16.18. INDEPENDENT COVENANTS. This Lease shall be construed as
though the covenants herein between Landlord and Tenant are independent and not
dependent and Tenant hereby expressly waives the benefit of any statute or other
law to the contrary and agrees that if Landlord fails to perform its obligations
set forth herein, Tenant shall not be entitled to make any repairs or perform
any acts hereunder at Landlord's expense or to any setoff of the Rent or other
amounts owing hereunder against Landlord, except as otherwise expressly provided
in this Lease.
Section 16.19. CONFIDENTIALITY. Each party acknowledges that the content
of this Lease and any related documents are confidential information. Except
with respect to any disclosure required by law, each party shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than its financial,
legal, and design consultants, provided that such recipients agree to maintain
the confidentiality of the information.
Section 16.20. REVENUE AND EXPENSE ACCOUNTING. Landlord and Tenant agree
that, for all purposes (including any determination under Section 467 of the
Internal Revenue Code), rental income will accrue to the Landlord and rental
expenses will accrue to the Tenant in the amounts and as of the dates rent is
payable under this Lease.
Section 16.21. TENANT'S REPRESENTATIONS AND WARRANTIES. Tenant warrants
and represents to Landlord as follows, each of which is material and being
relied upon by Landlord:
(a) Tenant (i) is not, and shall not become, a person or entity with
whom Landlord is restricted from doing business under regulations of the Office
of Foreign Asset Control ("OFAC") of the Department of the Treasury (including,
but not limited to, those named on OFAC's Specially Designated and Blocked
Persons list), or under any statute, executive order (including, but not limited
to, the September 24, 2001 Executive Order Blocking Property and Prohibiting
Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action, (ii) is not knowingly engaged and shall not
knowingly engage in any dealings or transactions with or otherwise be associated
with such persons or entities, and (iii) is not and shall not become, a person
or entity whose activities are regulated by the International Money Laundering
Abatement and Financial Anti-Terrorism Act of 2001, or the regulations or orders
thereunder.
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(b) Tenant is duly organized, validly existing and in good standing
under the laws of the state of its organization, and is qualified to do business
in the state in which the Property is located, and the persons executing this
Lease on behalf of Tenant have the full right and authority to bind Tenant
without the consent or approval of any other person or entity. Tenant has full
power, capacity, authority and legal right to execute and deliver this Lease and
to perform all of its obligations hereunder. This Lease is a legal, valid and
binding obligation of Tenant, enforceable in accordance with its terms.
(c) Tenant has not (1) made a general assignment for the benefit of
creditors, (2) filed any voluntary petition in bankruptcy or suffered the filing
of an involuntary petition by any creditors, (3) suffered the appointment of a
receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially all of
its assets, (5) admitted in writing its inability to pay its debts as they come
due, or (6) made an offer of settlement, extension or composition to its
creditors generally.
Tenant confirms that all of the above representations and warranties are true as
of the date of this Lease, and acknowledges and agrees that they shall survive
the expiration or earlier termination of this Lease.
Section 16.22. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord
warrants and represents to Tenant as follows, each of which is material and
being relied upon by Tenant:
Landlord (i) is not, and shall not become, a person or entity with whom Tenant
is restricted from doing business under regulations of the Office of Foreign
Asset Control ("OFAC") of the Department of the Treasury (including, but not
limited to, those named on OFAC's Specially Designated and Blocked Persons
list), or under any statute, executive order (including, but not limited to, the
September 24, 2001 Executive Order Blocking Property and Prohibiting
Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action, (ii) is not knowingly engaged and shall not
knowingly engage in any dealings or transactions with or otherwise be associated
with such persons or entities, and (iii) is not and shall not become, a person
or entity whose activities are regulated by the International Money Laundering
Abatement and Financial Anti-Terrorism Act of 2001, or the regulations or orders
thereunder.
(a) Landlord is duly organized, validly existing and in good
standing under the laws of the state of its organization, and is qualified to do
business in the state in which the Property is located, and the persons
executing this Lease on behalf of Landlord have the full right and authority to
bind Landlord without the consent or approval of any other person or entity.
Landlord has full power, capacity, authority and legal right to execute and
deliver this Lease and to perform all of its obligations hereunder. This Lease
is a legal, valid and binding obligation of Landlord, enforceable in accordance
with its terms.
(b) Landlord has not (1) made a general assignment for the benefit
of creditors, (2) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by any creditors, (3) suffered the appointment
of a receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially all of
its assets, (5) admitted in writing its inability to pay its debts as they come
due, or (6) made an offer of settlement, extension or composition to its
creditors generally.
Landlord confirms that all of the above representations and warranties are true
as of the date of this Lease, and acknowledges and agrees that they shall
survive the expiration or earlier termination of this Lease.
Section 16.23. APPROVALS AND CONSENTS. Any approvals, consents,
authorizations or similar discretionary acceptances, endorsements and
ratifications required or provided for in this Lease shall not be unreasonably
withheld, conditioned or delayed, except in any case in which the action to be
taken is expressly described in this Lease as being within the "sole discretion"
of a party.
ARTICLE SEVENTEEN MASTER LEASE
(a) This Lease is subject and subordinate to that certain Lease
Agreement, dated November 15, 2005, as amended by that certain First Amendment
to Lease Agreement, dated June 20, 2006 (collectively, the "MASTER LEASE"), by
and between Landlord, as tenant, and County of Xxxxx, a political subdivision of
the State of
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Nevada ("COUNTY"), as landlord (the "MASTER LANDLORD"), and to any renewal,
amendment or modification thereof, and to any mortgage or other encumbrance to
which the Master Lease is subject or subordinate, and to all renewals,
modifications, consolidations, replacements and extensions thereof. A copy of
the Master Lease is attached as Exhibit "G" to this Lease. Except as
specifically modified in this Lease, during the Lease Term Tenant shall be bound
by and shall observe all of the terms and conditions to be observed by Landlord
under the Master Lease as fully and to the same extent and effect as though
Tenant were the lessee thereunder in the place and stead of Landlord. Any event
resulting in termination of the Master Lease by its terms or otherwise shall
also automatically result in termination of this Lease, except as otherwise
provided or contemplated in Section 2.3 (Attornment) of the Master Lease.
(b) Without limiting the generality of (a) above, Tenant expressly
agrees to comply with and be bound by any and all covenants, conditions and
restrictions or rules, regulations or standards of operation or conduct
contemplated under the terms of the non-discrimination provisions of Article III
of the Master Lease, which are hereby incorporated into this Lease by this
reference.
(c) Without limiting the generality of (a) above, Tenant
acknowledges and agrees that Landlord's covenant of quiet possession or
enjoyment (Section 5.08 of this Lease) is expressly subject to the Master
Landlord's rights under the Master Lease, including but not limited to the right
to recover the Property (Section 2.21 of the Master Lease), the right to improve
or expand McCarran International Airport (Section 3.10 of the Master Lease), and
the right to enter and inspect the Property (Section 2.7 of the Master Lease).
(d) Without limiting the generality of (a) above, Tenant
acknowledges and agrees that this Lease is subject to the attornment provisions
of Section 2.3 of the Master Lease. Pursuant to the provisions of such section
of the Master Lease, Section 11.01 of this Lease is supplemented by adding the
following thereto:
If by reason of a default on the part of Landlord as tenant in the
performance of the terms of the provisions of the Master Lease, the
Master Lease and the leasehold estate of Landlord as ground lessee
thereunder are terminated by summary proceedings or otherwise in
accordance with the terms of the Master Lease, Tenant will attorn to
Master Landlord and recognize Master Landlord as lessor; provided,
however, Master Landlord agrees that so long as Tenant is not in
default, Master Landlord agrees to provide quiet enjoyment to Tenant
and to be bound by all the terms and conditions of this Lease.
(e) Without limiting the generality of (a) above, Tenant further
acknowledges and agrees that (i) all Tenant signs must have the prior written
approval of the designated representative of Master Landlord (pursuant to
Section 2.6.2 of the Master Lease), and (ii) Master Landlord must be named as an
additional insured on all liability insurance policies maintained by Tenant
under the terms of this Lease (pursuant to Section 2.12.2.7.4 of the Master
Lease).
(f) As required by the terms of Section 2.9 of the Master Lease,
should Tenant cause any improvements to be made to the Property, Tenant shall
cause any contract with any contractor, designer, or other person providing
work, labor, or materials to the Property to include the following clause:
Contractor agrees on behalf of itself, its subcontractors, suppliers
and consultants and their employees that there is no legal right to
file a lien upon County-owned property and will not file a
mechanic's lien or otherwise assert any claim against County's real
estate or any County's leasehold interest on account of any work
done, labor performed or materials furnished under this contract.
Contractor agrees to indemnify, defend and hold the County and
Landlord harmless from any liens filed upon the County's property
and County's leasehold interest and shall promptly take all
necessary legal action to ensure the removal of any such lien at
Contractor's sole cost.
(g) Within twenty (20) days following full execution of this Lease
and the recordation of the Lease Memorandum, Landlord shall cause Nevada Title
Company to issue in favor of Tenant, as insured, a policy of
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
45
leasehold title insurance for Tenant's leasehold interest under this Lease, in
the form of the Pro-Forma Policy (2nd Amendment) prepared by Nevada Title
Company (Order No. 06-04-0139-JJA) (the "LEASEHOLD TITLE POLICY"). The Leasehold
Title Policy shall reflect the recording of (i) the executed Recognition
Nondisturbance and Attornment Agreement in the form of Exhibit "L" (in Schedule
A, item 2 of the Leasehold Title Policy) and (ii) the executed Subordination
Non-Disturbance and Attornment Agreement in the form of Exhibit B (in Schedule
B, Part 1, item 13 of the Leasehold Title Policy). The face amount of the
Leasehold Title Policy shall be Thirty Million Dollars ($30,000,000.00). The
Leasehold Title Policy shall be provided to Tenant by Landlord at no additional
cost or expense to Tenant, provided that if Tenant desires "extended coverage"
or any endorsements, Tenant shall be solely responsible for all costs associated
with obtaining the same, including the cost of any survey or other requirements
for such coverage and endorsements. Within thirty (30) days of written request
from Tenant, Landlord, at Landlord's cost shall undertake all commercially
reasonable actions to commence and diligently pursue to completion (including
all commercially reasonable efforts to have Master Landlord cooperate in such
efforts) the vacation, release and relinquishment of record of (i) all
right-of-way reservations and easements for roadway and public utilities
purposes and (ii) the rights and interests of any public utility-providing
agencies with respect thereto, as reserved and granted within the boundaries of
the Property in patents from the United States of America. Landlord shall
diligently pursue such efforts, but its failure to obtain a release of all such
matters of record despite and after expending all commercially reasonable
efforts shall not constitute a default under this Lease. If Landlord fails to
timely deliver the Leasehold Title Policy, and should such failure continue for
a period of thirty (30) days, following Tenant's written request to deliver the
Leasehold Title Policy, Landlord shall be in material default of this Lease.
Consistent with Section 16.02(d) above, Tenant may thereafter seek to recover
from Landlord an amount representing appropriate actual compensatory damages for
such default.
(h) Upon the full execution of this Lease, Landlord shall execute
and deliver to Master Landlord for execution and delivery to Tenant the
Recognition, Non-Disturbance and Attornment Agreement in the form of Exhibit "L"
attached hereto. Landlord shall diligently pursue the execution of that
Recognition, Non-Disturbance and Attornment Agreement by Master Landlord and the
delivery thereof to Tenant following such execution.
ARTICLE EIGHTEEN DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND
RECIPROCAL EASEMENTS
Landlord may prepare for eventual recordation against the Property and
other adjacent land a Declaration of Covenants, Conditions, Restrictions and
Reciprocal Easements (the "DECLARATION"). So long as the provisions of the
Declaration do not affect Tenant's obligations in any material way (the
performance of ministerial acts shall not be deemed material) and do not affect
Tenant's use or conduct of business from the Property, Tenant will not
unreasonably withhold consent to a subordination of this Lease to the
Declaration, and further agrees to execute a recordable instrument (prepared by
Landlord at its sole cost and expense) in order to evidence any such
subordination.
ARTICLE NINETEEN NO OPTION OR OFFER
THE SUBMISSION OF THIS LEASE BY LANDLORD, ITS AGENT OR REPRESENTATIVE FOR
EXAMINATION OR EXECUTION BY TENANT DOES NOT CONSTITUTE AN OPTION OR OFFER TO
LEASE THE PROPERTY UPON THE TERMS AND CONDITIONS CONTAINED HEREIN OR A
RESERVATION OF THE PROPERTY IN FAVOR OF TENANT, IT BEING INTENDED HEREBY THAT
THIS LEASE SHALL ONLY BECOME EFFECTIVE UPON THE EXECUTION HEREOF BY LANDLORD AND
DELIVERY OF A FULLY EXECUTED LEASE TO TENANT. NEITHER PARTY SHALL HAVE ANY
OBLIGATION TO CONTINUE DISCUSSIONS OR NEGOTIATIONS OF THIS LEASE.
ARTICLE TWENTY CONDITION SUBSEQUENT
At any time prior to the earlier of (i) Landlord's receipt of Tenant's
Request and Acceptance Notice (defined in Section 14.02 above), (ii) the
expiration of five (5)
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
46
business days following Tenant's receipt from Landlord's Contractor of written
notice of the proposed Guaranteed Maximum Price pursuant to Section 14.02 above,
or (iii) December 14, 2006, Tenant shall have the option and right to terminate
this Lease (the "TERMINATION OPTION"), by providing written notice to Landlord
of the same, subject to Landlord's receipt, within five (5) business days
following its receipt of Tenant's termination notice, in immediately available
funds, of the sum of Five Million Dollars ($5,000,000.00) (the "TERMINATION
FEE") in consideration for the exercise by Tenant of the Termination Option. If
the above terms of the Termination Option are not strictly complied with
(including Landlord's timely receipt of the Termination Fee), then the
Termination Option shall be rendered null and void and any purported exercise
shall be ineffective. Assuming the Termination Option is timely and validly
exercised and the Lease is terminated, then following such termination neither
Landlord nor Tenant shall have any further obligations to the other under this
Lease, excepting those obligations which have accrued prior to or which
expressly survive such termination. Time is of the essence with respect to
Tenant's rights under this Article Twenty. Tenant shall be entitled to reduction
of, and credit against, the Termination Fee due under this Article Twenty in the
cumulative amount of all advances and /or payments made by Tenant to Landlord
for Modification Costs, whether such advances or payments are so characterized,
and whether such advances or payments are made before or after execution of this
Lease.
(Left intentionally blank - signature page to follow)
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
47
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below.
LANDLORD:
Signed on_____________, 2006 BELTWAY BUSINESS PARK WAREHOUSE NO. 2, LLC,
at__________________________ a Nevada limited liability company
By: MAJESTIC BELTWAY WAREHOUSE
BUILDINGS, LLC, a Delaware
limited liability company, its Manager
By: MAJESTIC REALTY CO.,
a California corporation,
Manager's Agent
By:/s/ Xxxxxx X. Xxxxx, Xx.
Name:Xxxxxx X. Xxxxx, Xx.
Its:Chairman and Chief Executive Officer
By: XXXXXX & XXXX BELTWAY, L.L.C.,
a Nevada limited liability company,
its Manager
By:.s. Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: Manager
TENANT:
Signed on December 11, 2006 NEVADA POWER COMPANY,
at_________________________ a Nevada corporation
By:/s/ Xxxxxx X. Xxxxxxx
Printed Name: Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
48
EXHIBIT A
DEPICTION OR DESCRIPTION OF THE PROPERTY
(Attached)
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
A-1
[DIAGRAMS OF LEASED PROPERTY]
THENCE SOUTH 00(degree)54'27" WEST, 40.08 FEET TO A POINT ON THE NORTH LINE OF
THE SOUTH HALF (S 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 01;
THENCE ALONG SAID LINE, SOUTH 87(degree)14'47" WEST, 630.64 FEET TO THE
NORTHWEST CORNER OF SAID SOUTH HALF (S 1/2);
THENCE ALONG THE WEST LINE OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 01, NORTH
01(degree)05'30" EAST, 652.21 FEET;
THENCE DEPARTING SAID WESTERLY LINE AND ALONG A LINE 16.50 FEET SOUTH OF AND
PARALLEL TO THE NORTHERLY LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SOUTHWEST QUARTER (SW 1/4) NORTH 87(degree)13'43" EAST, 1083.01 FEET TO THE
POINT OF BEGINNING.
CONTAINING: 16.00 ACRES OF LAND.
BASIS OF BEARINGS
THE EAST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE
1/4) OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M., XXXXX COUNTY,
NEVADA, AS SHOWN ON THAT MAP ON FILE IN FILE 66 OF SURVEYS AT PAGE 02 OF
OFFICIAL RECORDS, XXXXX COUNTY, NEVADA, SAID LINE BEARS NORTH 00(degree)42'44"
WEST.
XXXX X. XXXXX
PROFESSIONAL LAND SURVEYOR
NEVADA CERTIFICATE NO 11825
EXPIRES 12/31/06
LOCHSA SURVEYING
(000) 000-0000 / FAX (000) 000-0000
[DIAGRAMS OF LEASED PROPERTY]
LEGAL DESCRIPTION
BBP WAREHOUSE II
PORTION OF A.P.N.: 176-01-301-032
BEING A PORTION OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1, TOWNSHIP 22
SOUTH, RANGE 60 EAST, M.D.M., XXXXX COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
M.D.M., XXXXX COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 01;
THENCE ALONG THE NORTH LINE THEREOF, NORTH 87(degree)13'39" EAST, 314.79 FEET TO
THE NORTHEAST CORNER OF SAID SOUTHEAST QUARTER (SE 1/4);
THENCE ALONG THE EAST LINE THEREOF, SOUTH 01(degree)05'30" WEST, 334.37 FEET TO
THE NORTH LINE OF THE SOUTH HALF (S 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF
THE SOUTHWEST QUARTER (SW 1/4) OF SAID SECTION 01;
THENCE ALONG SAID NORTH LINE, NORTH 87(degree)14'47" EAST, 630.64 FEET TO A
POINT HEREINAFTER KNOWN AS "POINT A";
THENCE DEPARTING SAID NORTH LINE AND ALONG THE EAST LINE OF THE SOUTHWEST
QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 01, SOUTH 00(degree)54'27" WEST, 161.72 FEET TO A
NON-TANGENT 56.00 FEET RADIUS CURVE, A RADIAL LINE TO SAID POINT BEARS SOUTH
16(degree)58'33" WEST;
THENCE ALONG SAID CURVE CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF
171(degree)46'44", AN ARC LENGTH OF 167.89 FEET TO A REVERSE 14.50 FEET RADIUS
CURVE, A RADIAL LINE TO SAID POINT BEARS SOUTH 25(degree) 11'49" WEST;
THENCE ALONG SAID CURVE CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF
65(degree)42'38", AN ARC LENGTH OF 16.63 FEET;
THENCE SOUGH 00(degree)54'27" WEST, ALONG A LINE 30.00 FEET WEST OF AND PARALLEL
TO THE EASTERLY LINE OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF SAID SOUTHWEST QUARTER (SW 1/4), 322.47 FEET TO A TANGENT 25.00 FEET
RADIUS CURVE;
THENCE ALONG SAID CURVE CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF
86(degree)21'59", AN ARC LENGTH OF 37.68 FEET TO A LINE 45.00 FEET NORTH OF AND
PARALLEL TO THE SOUTHERLY LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SOUTHWEST QUARTER (SW 1/4);
THENCE ALONG SAID LINE, SOUTH 87(degree)16'26" WEST, 569.11 FEET TO THE WESTERLY
LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID SOUTHWEST QUARTER (SW 1/4);
THENCE ALONG SAID WESTERLY LINE, NORTH 01(degree)05'30" EAST, 289.27 FEET TO THE
SOUTHEAST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE
1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SOUTHWEST QUARTER (SW 1/4);
THENCE ALONG THE SOUTHERLY LINE THEREOF, SOUTH 87(degree)13'31" WEST, 315.98
FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST
QUARTER (SE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SAID SOUTHWEST QUARTER (SW
1/4);
THENCE ALONG THE WESTERLY LINE THEREOF, NORTH 01(degree)11'37" EAST, 668.84 FEET
TO THE POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF SAID SOUTH HALF (S 1/2) OF THE SOUTHWEST QUARTER
(SW 1/4) OF SECTION 01, TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M., XXXXX COUNTY,
NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE AFOREMENTIONED "POINT A";
THENCE NORTH 00(degree)54'27" EAST, 40.08 FEET;
THENCE NORTH 87(degree)14'47" EAST, 526.77 FEET TO A POINT ON THE WESTERLY
RIGHT-OF-WAY LINE OF XXXXXXX ROAD AD DEDICATED BY THAT CERTAIN DOCUMENT RECORDED
MARCH 14, 2002 IN XXXX 00000000 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00744 IN
THE XXXXX COUNTY RECORDER'S OFFICE, XXXXX COUNTY, NEVADA;
THENCE ALONG SAID RIGHT-OF-WAY LINE, SOUTH 15(degree)38'00" EAST, 116.43 FEET TO
THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 760.00 FEET;
THENCE CURVING TO THE RIGHT ALONG THE ARC OF ARC OF SAID CURVE, CONCAVE
SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 16(degree)21'23", AN ARC LENGTH OF
216.96 FEET;
THENCE SOUTH 00(degree)43'23" WEST, 45.00 FEET;
THENCE DEPARTING SAID RIGHT-OF-WAY LINE, SOUTH 87(degree)15'37" WEST, 275.78
FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST
QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHWEST QUARTER (SW
1/4) OF SAID SECTION 01;
THENCE NORTH 00(degree)48'55" EAST, 334.50 FEET TO A POINT ON THE NORTH LINE OF
THE SOUTH HALF (S 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) OF SAID SECTION 01;
THENCE ALONG SAID NORTH LINE, SOUTH 87(degree)14'47" WEST, 315.32 FEET TO THE
POINT OF BEGINNING.
CONTAINING: 15.94 ACRES OF LAND.
BASIS OF BEARINGS
THE EAST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE
1/4) OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M., XXXXX COUNTY,
NEVADA, AS SHOWN ON THAT MAP ON FILE IN
FILE 66 OF SURVEYS AT PAGE 02 OF OFFICIAL RECORDS, XXXXX COUNTY, NEVADA, SAID
LINE BEARS NORTH 00(degree)42'44" WEST.
XXXXXX X. XXXXXXX
PROFESSIONAL LAND SURVEYOR
NEVADA CERTIFICATE NO. 12998
EXPIRES 12/31/07
LOCHSA SURVEYING
(000) 000-0000/FAX (000) 000-0000
EXHIBIT D
"HAZARDOUS MATERIAL" AND "STORAGE TANK" LIST
In addition to general office and cleaning supplies, the following (which may be
defined as "Hazardous Material" in the Lease) may be brought upon, treated,
kept, stored, generated, or used upon the Property:
Gasoline, diesel fuel and other petroleum hydrocarbons, including, but not
limited to, new and used oil, hydraulic fluid, brake fluid, transmission fluid,
gear oil, etc.
Polychlorinated biphenyls (PCBs), including PCB transformer oil, PCB
contaminated soil and PCB-contaminated debris.
Cleaning solvents.
Welding gases.
Antifreeze.
Aerosols, including paint, brake cleaner, WD-40, glass cleaner, etc.
Windshield washer fluid.
Steam cleaner soap.
Oils and greases.
New and used batteries, including those with lead and acid contents.
New and used transformer oil.
SF6 gas.
Water contaminated with oil and/or metals.
Asbestos.
Ampac shells and Xxxxxxxx cartridges containing gun powder and similar
substances.
Treated wood poles.
Paint.
Paint remover.
CFCs. Mercury.
Solvents.
Soil contaminated with any Hazardous Material identified above on this
Exhibit "D".
The following "Storage Tanks" and containment facilities will be located on the
Property:
One or more above-grade unleaded gasoline fuel tanks, each with a capacity
of 15,000 gallons or less.
One or more above-grade diesel fuel tanks, each with a capacity of 15,000
gallons or less.
Three or more above-grade vaulted tanks for new and used non-detect
transformer oils, each with a capacity of up to 3,000 gallons.
One or more above-grade tanks for used non-PCB mineral oil, each with a
capacity of up to 3,000 gallons.
One or more above-grade tanks for used PCB contaminated oil, each with a
capacity of up to 3,000 gallons.
One or more concrete pads and self-contained containment tanks in
transformer containment areas, including covered containment slabs and run-off
trenches.
Two or more above-grade multiple compartment tanks for new and used oil,
hydraulic fluids, transmission fluids and other petroleum hydrocarbons, each
tank with multiple compartments of up to 500 gallons and single tank capacity of
up to 1,000 gallons.
One or more sand/oil separators and associated tank systems.
One or more kitchen grease traps.
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
D-1
EXHIBIT G
MASTER LEASE
(Attached or provided separately to Tenant)
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
G-1
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is made and
entered this 20th day of June, 2006, by and between the COUNTY OF XXXXX,
a political subdivision of the State of Nevada ("County"), and BELTWAY BUSINESS
PARK WAREHOUSE NO. 2, LLC, a Nevada limited liability company authorized to do
business in the State of Nevada ("Company").
RECITALS:
A. County and Company entered into that certain Lease Agreement, dated
November 15, 2005 (the "Lease"), wherein Company agreed to lease from County and
County agreed to lease to Company certain real property located in Xxxxx County,
Nevada, which is depicted and more particularly described in the Lease (the
"Premises"). All terms used herein and not otherwise defined shall have the same
meaning as given to them in the Lease.
B. County and Company desire to amend the Lease, as provided below in this
Amendment.
NOW, THEREFORE, for and in consideration of the covenants and conditions
herein, County and Company hereby agree as follows:
AGREEMENT:
1. Enlargement of Premises. The size of the Premises is hereby enlarged to
include an additional tract of land (the "Additional Land"); accordingly, the
descriptions of the Premises set forth on Exhibit "D" to the Lease and on
Exhibit "A" to that certain Memorandum of Lease, dated November 15, 2005 (and
recorded with the official records of Xxxxx County, Nevada on November 21, 2005
in Book 20051121 as Instrument No. 2760), are hereby superseded and replaced
with the description attached as Exhibit "A" to this First Amendment, which
includes the Additional Land. Consistent with the above modification to the
description of the Premises, the parties shall execute and record an appropriate
Amended and Restated Memorandum of Lease.
2. Condition Subsequent. The continued effectiveness of this First
Amendment is expressly conditioned on the execution and delivery, within one
hundred eighty (180) days following the date of this First Amendment, of a lease
agreement between Company, as landlord, and a third party, as tenant, for the
Additional Land (the "Condition Subsequent"). If the Condition Subsequent is
timely satisfied, Company shall promptly provide County with written notice of
the same. In the event the Condition Subsequent is not satisfied or waived by
Company within the time set forth above, this First Amendment shall be rendered
null and void and without further force or effect, and in such event County and
Company shall execute and deliver an instrument confirming the same. Any waiver
by Company of the Condition Subsequent must be in writing and received by County
on or before the expiration of the time set forth above, and in the event of
such timely waiver by Company, this First Amendment shall remain binding on
County and Company and remain in full force and effect.
-1-
3. Effect of Amendment. Except as modified by this First Amendment, the
Lease shall remain in full force and affect. As amended hereby, the Lease is
hereby ratified and confirmed in its entirety. In the event of a conflict
between the terms of the Lease and this First Amendment, this First Amendment
shall control.
4. Miscellaneous. This First Amendment embodies the entire agreement
between the parties relating to the subject matter contained herein. There are
no representations, promises, warranties, understandings or agreements, express
or implied or otherwise, except for those expressly referred to or set forth
herein or in the Lease. No modification of this First Amendment or the Lease
shall be binding unless evidenced by an Agreement in writing signed by both
County and Company. This First Amendment may be executed in counterparts, each
of which shall constitute an original, and all of which taken together shall
constitute one and the same instrument.
[intentionally left blank -- signature page to follow]
-2-
IN WITNESS WHEREOF, this First Amendment has been executed as of the date
first written above.
COUNTY:
XXXXX COUNTY, NEVADA,
a political subdivision of the State of
Nevada
By:
------------------------------------
Printed Name:
--------------------------
Its:
-----------------------------------
APPROVED AS TO FORM:
Xxxxx Xxxxx, District Attorney
By:
---------------------------------
Name:
-------------------------------
Deputy District Attorney
COMPANY:
BELTWAY BUSINESS PARK WAREHOUSE
NO. 2, LLC, a Nevada limited liability
company
By: MAJESTIC BELTWAY WAREHOUSE
BUILDINGS, LLC, a Delaware limited
liability company, its Manager
By: MAJESTIC REALTY CO., a California
corporation, Manager's Agent
By:
------------------------------------
Printed Name:
--------------------------
Its:
-----------------------------------
By:
------------------------------------
Printed Name:
--------------------------
Its:
-----------------------------------
By: XXXXXX & XXXX BELTWAY, L.L.C
a Nevada limited liability company,
its Manager
By:
------------------------------------
Xxxxxx X. Xxxxxx, Manager
-3-
EXHIBIT A
TO
FIRST AMENDMENT TO LEASE
Description of Premises
(Attached)
LEGAL DESCRIPTION
FOR
APN 176-01-301-032, 176-01-401-007, 009, 010, 012, 013 & 014, 176-01-402-007
(THE OVERALL BOUNDARY WAREHOUSE 2)
APN 176-01-301-032 AND APN 176-01-401-013
THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHWEST
QUARTER (SW 1/4) AND THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF
THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 60 EAST,
M.D.M., IN THE COUNTY OF XXXXX, STATE OF NEVADA.
EXCEPTING THEREFROM ALL THAT PORTION OF THE ABOVE DESCRIBED LAND WHICH LIES
EASTERLY OF THE WESTERLY RIGHT OF WAY OF XXXXXXX ROAD AS DESCRIBED IN DOCUMENT
RECORDED MARCH 14, 2002 AS BOOK/INSTRUMENT NO. 20030314:00744, OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF XXXXX, NEVADA.
APN 176-01-402-007
THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1,
TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M. IN THE COUNTY OF XXXXX, STATE OF
NEVADA.
EXCEPTING THEREFROM ALL THAT PORTION OF THE ABOVE DESCRIBED LAND WHICH LIES
EASTERLY OF THE WESTERLY RIGHT OF WAY OF XXXXXXX ROAD AS DESCRIBED IN DOCUMENT
RECORDED MARCH 14, 2002 AS BOOK/INSTRUMENT NO. 20030314:00743, OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF XXXXX, NEVADA.
APN 176-01-401-014
THE EAST HALF (E 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1, TOWNSHIP 22 SOUTH,
RANGE 60 EAST, M.D.M., IN THE COUNTY OF XXXXX, STATE OF NEVADA.
EXCEPTING THEREFROM ALL THAT PORTION OF THE ABOVE DESCRIBED LAND WHICH LIES
SOUTHERLY OF THE NORTHERLY RIGHT OF WAY OF WARM SPRINGS ROAD AS DESCRIBED IN
DOCUMENT RECORDED JANUARY 28, 2000 AS BOOK/INSTRUMENT NO. 20000128:00910, OF
OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF XXXXX, NEVADA.
APN 176-01-401-010 AND 176-01-401-012
THE WEST HALF (W 1/2) OF THE SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHEAST QUARTER
(SE 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION I, TOWNSHIP 22 SOUTH,
RANGE 60 EAST, M.D.M., IN THE COUNTY OF XXXXX, STATE OF NEVADA.
APN 176-01-401-009
THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1,
TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M. IN THE COUNTY OF XXXXX, STATE OF
NEVADA.
APN 176-01-401-007
THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF THE
SOUTHWEST QUARTER (SW 1/4) OF THE SOUTHWEST QUARTER (SW 1/4) OF SECTION 1,
TOWNSHIP 22 SOUTH, RANGE 60 EAST, M.D.M. IN THE COUNTY OF XXXXX, STATE OF
NEVADA.
OVERALL ACREAGE = 47.07 ACRES MORE OR LESS
PREPARED BY:
LOCHSA ENGINEERING
0000 XXXXX XXXXX XXXXXXXXX
XXXXX 000
XXX XXXXX, XX 00000
XXXXXXXX X. HAND
X.X. #00000
(XXXXX XXXX)
X-0000, CLOSURE CALCULATION, 05-18-0-2006, BEH
Parcel name: SUBJECT PROPERTY
North: 4396.3926 East: 1352.8021
Line course: N 87-20-5S E Length: 303.08
North: 4410.4128 East: 1655.5576
Line Course: N 87-20-55 E Length: 780.20
North: 4445.5040 East: 2434.9224
Line Course: S 01-08-44 W Length: 564.75
North: 3881-8669 East: 2423.6317
Line course: S 01-08-44 W Length: 16.54
North: 3865.3302 East: 2423.3010
Line course: S 01-08-44 W Length: 235.77
North: 3529.6073 East: 2418.5874
Curve Length: 245.99 Radius: 840.40
Delta: 16-46-44 Tangent: 123.33
chord: 245.11 Course: X 00-00-00 X
Xxxxxx Xx: S 88-51-16 E Course Out: S 74-22-00 W
RP North: 3612.8137 East: 3258.4196
End North: 3386.4537 East: 2449.4941
Line Course: S 15-38-00 E Length: 251.32
North: 3144.4310 East: 2517.2199
Curve Length: 216,96 Radius: 760.00
Delta: 16-21-23 Tangent: 109.22
Chord: 216.22 Course: X 00-00-00 X
Xxxxxx Xx: S 74-22-00 W Course Out: S 89-16-37 E
RP North: 2933.6261 East: 1785.3354
End North: 2930.0387 East: 2545.2739
Line Course: S 00-43-23 W Length: 45.00
North: 2S8S.0423 East: 2544.7060
Line Course: S 87-15-37 W Length: 275.78
North: 2871.8603 East: 2269.2412
Line Course: H 00-48-55 E Length: 334.50
North: 3206.3265 East: 2274.0008
Line Course: S 87-14-47 W Length: 315.32
North: 3191.1781 East: 1959.0448
Line Course: S 00-54-27 W Length: 618.81
North: 2572,4455 East: 1949.2440
Line Course: S 87-16-26 W Length: 316.31
North: 2557.4015 East: 1633.2920
Line Course: S 00-59-58 W Length: 50.11
North: 2507.2992 East: 1632.4179
Line Course: S S7-16-26 W Length: 316.39
North: 2492.2511 East: 1316.3860
Line Course: N 01-05-30 E Length: 334.37
North: 2826.5604 East: 1322.7564
Line Course: S 87-13-31 W Length: 315.98
North: 2811.2641 East: 1007.1469
Line Course: N 01-11-37 E Length: 334.42
North: 3145.6116 East: 1014.1131
Line Course: N 01-11-37 E Length: 334.42
North: 3479.9590 East: 1021.0794
Line Course: N 87-13-39 E Length: 314.79
North: 3495.1855 East: 1335.5010
Line Course: N 01-05-30 E Length: 317.84
North: 3812.9678 East: 1341.5565
Line Course: N 01-05-30 E Length: 16.54
North: 3829.5048 East: 1341.8716
Line Course: N 01-06-16 E Length: 567.00
North: 4396.3995 East: 1352.8005
Page 1
Perimeter: 7422.18 Area: 2,050,534 sq.ft. 47.074 ACRES
Mapcheck closure - (Uses listed courses and chords)
Error Closure: 0.0070 course: X 00-00-00 X
Xxxxx Xxxxx: 0.00684 East: -0.00160
Precision 1: 1,060,081.43
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter referred to as "Agreement") entered into
this 15th day of November by and between the COUNTY OF XXXXX, apolitical
subdivision of the State of Nevada (hereinafter referred to as "County") and
BELTWAY BUSINESS PARK WAREHOUSE NO.2, LLC, a Nevada limited liability company
authorized to do business in the State of Nevada (hereinafter referred to as
"Company").
WITNESSETH:
WHEREAS, County is the owner and operator of McCarran International Airport
(hereinafter referred to as "Airport") and wishes to cause the development and
construction of retail/office/warehouse facilities (hereinafter referred to as
"Commercial Facilities") on property owned by Xxxxx County within the
Cooperative Management Area (defined below) and controlled by the Airport to
ensure that the development of such property is compatible with Airport uses;
and
WHEREAS, it is for the benefit of County to more efficiently and
economically manage its Airport-controlled property to include such Commercial
Facilities; and
WHEREAS, Company is engaged in the business of developing, constructing,
maintaining, leasing and operating such Commercial Facilities; and
WHEREAS, County is willing and Company desires to enter this Agreement for
the construction and operation of such Commercial Facilities; and
WHEREAS, on August 21, 2001 the Board of County Commissioners approved a
Lease Option Agreement (hereinafter referred to as "Lease Option Agreement")
between County and Beltway Business Park, L.L.C., an affiliate of Company, which
was first amended on March 5, 2002, and then amended on December 3, 2002, and
then amended on September 20, 2005; and
NOW, THEREFORE, for and in consideration of the above recitals (which are
incorporated into this Agreement by this reference), and the agreements,
covenants and conditions herein, County and Company agree as follows:
ARTICLE I
1.1 DEFINITIONS
1.1.1 The term "Airport," whenever used herein, means the McCarran
International Airport and all property located within its general
environs at the date of execution of this Agreement or at any future
date during the term hereof.
1.1.2 The term "Airport Environs Map," means the McCarran International
Airport Environs Overlay District map, prepared by the Department of
Aviation and dated April 16, I998, or any subsequent version of such
maps as may be updated from time to time by the Department of
Aviation.
1.1.3 The term "Approval Date" means the date upon which this Agreement is
approved by the Board of County Commissioners.
1.1.4 The term "Approved Budget," whenever used herein, means the annual
written budget prepared by Company and approved by County's Designated
Representative pursuant to the procedure set forth in Section 1.6
(entitled BUDGET APPROVAL) below.
1.1.5 The term "Assignee," whenever used herein, means (i) any assignee of
Lender's interest in the Loan, or (ii) any purchaser or any heir,
successor, or assign of the leasehold estate evidenced by this
Agreement that acquires such leasehold estate at or subsequent to a
Foreclosure Transfer (as defined in Section 2.19.11.1 below), as
approved by County, to the extent such approval is required pursuant
to Section 2.19.11.1 below, or (iii) any assignee of Company's rights
and duties under this Agreement pursuant to Section 2.1 (entitled
ASSIGNMENT) below.
1.1.6 The term "Capital Improvement Expenditures," whenever used herein,
means the expenses of a capital nature associated with the Commercial
Facilities which exceed those set forth in the Approved Budget. Such
expenses will require prior written approval of County's Designated
Representative.
1.1.7 The term "County's Designated Representative (hereinafter referred to
as 'CDR')," whenever used herein, means the Director of the Department
of Real Property Management, or designee, acting on behalf of County.
1.1.8 The term "Commence Construction," whenever used herein, means
commencing construction of the Commercial Facilities on the Premises
by Company causing its construction contractor to obtain occupancy and
control the area and to begin actual construction of the Commercial
Facilities. The term shall not include any site preparation or
off-site work related to the Premises.
1.1.9 The term "Commercial Facilities," whenever used herein, means the
retail/office/warehouse improvements to be constructed on the Premises
by Company in accordance with the terms and conditions of this
Agreement.
1.1.10 The term -"Company," whenever used herein, means. BELTWAY BUSINESS
PARK WAREHOUSE NO. 2, LLC, a Nevada limited liability company,
entering into this Agreement as the developer and operator of the
Commercial Facilities on the Premises as described herein.
1.1.11 The term "Cooperative Management Area" or "CMA," whenever used
herein, means the land area included within the Airport's 60 and above
day-night average decibel level noise contours, as defined in the 1992
Interim Cooperative Management Agreement between the U.S. Department
of Interior's Bureau of Land Management and County, a copy of which is
attached hereto as Exhibit "A" and incorporated herein (the "CMA
Agreement"). Only those land uses defined in the CMA Agreement as
compatible with Aircraft (defined below) operations will be permitted
on County-owned parcels within the CMA that were acquired by
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County under the terms of Southern Nevada Public Land Management Act
of 1998 (the "SNPLMA" ), a copy of which is attached hereto as Exhibit
"B" and incorporated herein.
1.1.12 The term "County," whenever used herein, means Xxxxx County, Nevada,
as represented by the Xxxxx County Board of Commissioners and where
this Agreement speaks of "Approval by County," such approval means
action by the Xxxxx County Board of Commissioners.
1.1.13 The term "Debt Service," whenever used herein, means the Company's
payment of principal and interest for construction and/or permanent
financing for Commercial Facilities.
All financing for Commercial Facilities shall include any fees,
including loan points, fees, closing costs, and other loan charges
(monthly or otherwise) to any Lender, including without limitation,
lending institutions or shareholders, officers, directors, members,
and managers of Company for construction and/or permanent financing
for Commercial Facilities. Except as otherwise approved in writing by
CDR, the principal loan amounts of such financing shall not exceed
100% of the "Pro Forma Development Costs" (as set forth in Exhibit "C"
attached hereto and incorporated herein) and shall not be amortized
over more than thirty (30) years. Any such financing must be approved
by CDR as outlined in Section 2.19.1 below, and shall be at
commercially reasonable interest rates, points, fees, closing costs,
and other terms and conditions for the same type of loan from a bank
or other commercial lender.
1.1.14 The term "Effective Date," whenever used herein, means the date
established pursuant to Sections 1.2.6 and 1.7 below for the
commencement of the distribution of Net Revenues (first, to repayment
of any equity contribution and second, for distribution to County and
Company as provided in Section 1:7 below). All other terms and
conditions of this Agreement will become effective on the Approval
Date.
1.1.15 The term "Environmental Laws," whenever used herein, means any one
or all of the laws and/or regulations of the Environmental
Protection-Agency or any other federal, state or local agencies,
including, but not limited to the following as the same are amended
from time to time:
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT (42 U.S.C. Section 9601 et seq.)
RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. Section 6901 et
seq.)
TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. Section 2601 et seq.)
SAFE DRINKING WATER ACT (42 U.S.C. Section 300h et seq.)
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CLEAN WATER ACT (33 U.S.C. Section 1251 et seq.)
CLEAN AIR ACT (42 U.S.C. Section 7401 et seq.)
NEVADA SANITATION LAWS (Nevada Revised Statutes, Chapter. 444)
NEVADA WATER CONTROL LAWS (Nevada Revised Statutes Chapter 445A)
NEVADA AIR POLLUTION LAWS (Nevada Revised Statutes Chapter 445B)
HAZARDOUS MATERIALS, INCLUDING UNDERGROUND STORAGE TANK
REGULATIONS (Nevada Revised Statutes, Chapter 459)
NEVADA OCCUPATIONAL SAFETY AND HEALTH ACT (Nevada Revised
Statutes, Chapter 618)
and the regulations promulgated thereunder and any other laws, regulations and
ordinances. (whether enacted by the Federal, State or local government) now in.
effect or hereinafter enacted that deal with the regulation or protection of the
environment (including, but not limited to, the ambient air procedures and
records detailing chlorofluorocarbons [CFC]), ambient air, ground water, surface
water and land use, including sub-strata land.
1.1.16 The term "Hazardous Material," whenever used herein, means the
definitions of hazardous substance, hazardous material, toxic
substance, regulated substance or solid waste as defined within the
following:
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT (42 U.S.C. Section 9601 et seq.)
RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. Section 6901 et
seq.)
HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. Section 5101 et
seq.) and all present or future regulations promulgated thereto
DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIALS TABLE (49 C.F.R.
Part 172) and amendments thereto
ENVIRONMENTAL PROTECTION AGENCY (40 C.F.R. Part 300 and
amendments thereto--including Appendices thereto)
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HANDLING OF HAZARDOUS MATERIALS (including transportation of
Hazardous Materials by Motor Carriers) (Nevada Revised Statutes
459.700 through 459.780)
and all substances, materials and wastes that are, or that become, regulated
under, or that are classified-as hazardous or toxic under any environmental law,
whether such laws are Federal, State or local.
1.1.17 The term "Initial Improvements," whenever used herein, shall mean
completion of the site work and building shell for. (i) one hundred
percent (100%) of the proposed Commercial Facilities, if consisting of
two (2) or fewer commercial buildings; or (ii) not less than fifty
percent (50%) of the proposed Commercial Facilities, if consisting of
more than two (2) commercial buildings.
1.1.18 The term "Lender," whenever used herein, shall mean the provider of
construction or permanent financing (or any refinancing) to Company in
connection with the construction of the Commercial Facilities, which
financing arrangements are to be approved by CDR to the extent
required under Section 2.19 (entitled FINANCING) of this Agreement.
1.1.19 The "Loan," whenever used herein, shall mean a loan made by a Lender
to Company and secured by a mortgage or deed of trust encumbering the
leasehold estate evidenced by this Agreement
1.1.20 The term "Management Fee," whenever used herein, means a fee to be
deducted from Total Revenue in consideration of the expenses incurred
by Company or its property manager for the project administration of
the Commercial Facilities. It is understood and agreed that during the
term of this Agreement such fee is to be up to three percent (3%) (for
industrial space), up to four and one-half percent (4.5%) (for office
space), or up to five percent (5%) (for retail space) of the Total
Revenue received by Company from Sublessees or as otherwise negotiated
by County and Company: Such Management Fee shall include all
compensation and property management administration expenses of all
Commercial Facilities personnel. Such Management Fee may be adjusted
as necessary by mutual agreement of Company and CDR and as set forth
in an Approved Budget to be competitive with other fees that are
standard in the industry in the metropolitan area.
1.1.21 The term "Maintenance and Operations," whenever used herein, means
the expense for maintenance, operation, administration and repair of
the Commercial Facilities.
1.1.22 The term "Net Revenue," whenever used herein, means the amount of
available cash after allowable deductions have been made from Total
Revenue which is available for an equal fifty percent (50%)
distribution between the Participating Parties of this Agreement
Allowable deductions are defined as follows:
a. Debt Service;
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b. Actual expenses authorized in the Approved Budget, including
the cost of any Maintenance and Operations, or other Project
Costs approved by CDR, which approval will not be
unreasonably withheld;
c. Capital Improvement Expenditures;
d. Management Fee;
e. A reasonable reserve for Maintenance and Operations or any
reserve required by any Lender under any approved financing;
and
f. Repayment of equity contribution plus return on equity
contribution Of applicable), as per Section 1.7 (entitled
RENTALS AND FEES) below.
1.1.23 The term "Participating Parties" or "Parties," whenever used herein,
means Company as Lessee and County as lessor (hereinafter jointly
referred to as "Parties") to a participating leasing arrangement for
the sharing of Net Revenues as consideration for the development and
operation of the commercial facilities at the Premises.
1.1.24 The term "Premises," whenever used herein, means that area depicted
on Exhibit "D," which is attached hereto and made a part hereof. The
final legal description of the Premises will be attached to the
Memorandum of Lease described in Section 1.2.3 below.
1.1.25 The term "Project Cost," whenever used herein, means all costs of
Company actually incurred and paid by Company in designing,
developing, constructing, owning, leasing, and managing the Commercial
Facilities.
1.1.26 The term "Sublease," whenever used herein, means the documents
signed by a Sublessee or Tenant for the leasing of space in the
Commercial Facilities.
1.1.27 The term "Sublessee" or "Tenant," whenever used herein, means any
business firm or individual who leases office, retail, industrial or
warehouse space for a valid, legal commercial activity in the
Commercial Facilities. Subject to the terms of Section 1.4.1 below,
the CDR will retain the right to reasonably approve the uses of such
Sublessee or Tenant. These defined terms may be used interchangeably.
1.1.28 The term "Release," whenever used herein, means any releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping of any Hazardous
Material in violation of Environmental Laws.
1.1.29 The term "Rent Commencement Date," whenever used herein, means the
date established pursuant to Sections 1.2.6 and 1.7 Below for the
commencement of
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the distribution of Net Revenues. As used in this Agreement, the "Rent
Commencement Date" is synonymous with the "Effective Date."
1.1.30 The term "Total Revenue," whenever used herein, means the total
amount of all rents, charges, fees and/or other income collected by
Company from any use of the Commercial Facilities. Any space occupied
by Company or any related entity which is not exclusively used for the
necessary construction on and/or management of the Premises must be
charged at a similar rental rate to that being charged for a similar
type of rental property in the Las Vegas Valley. Such rental value
shall be' included in the Total Revenue, whether or not a cash payment
is made.
1.2 TERM
1.2.1 The term of this Agreement will expire fifty (50) years from the
Approval Date (the "Termination Date").
1.2.2 Except for Section 1.7 (entitled RENTALS AND FEES) below, all other
provisions of this Agreement will be in force and effect upon the
Approval Date.
1.2.3 As soon as practicable following the Approval Date, County and
Company agree to execute and acknowledge a Memorandum of Lease (1)
evidencing the existence of this Agreement, the ownership of the
Commercial Facilities by Company, the rights of Company in the
Premises, and the Approval Date and Termination Date of this
Agreement, and (2) containing a legal description of the Premises.
Such Memorandum of Lease shall be recorded with the official real
estate records of Xxxxx County, Nevada.
1.2.4 As soon as practicable following the Approval Date, Company will be
entitled to receive, as a Project Cost, an ALTA leasehold policy of
title insurance, together with those endorsements reasonably deemed
necessary by Company, all issued by a title company. selected by
Company, with liability in an amount reasonably determined by Company
and insuring Company's interests hereunder. Such leasehold policy will
be subject only to exceptions permitted by Company.
1.2.5 County hereby agrees to give Lender at least thirty (30) days prior
notice of any intended amendment, modification, revocation,
surrender, cancellation or termination of this Agreement. County
further agrees that it will not consent to or accept any surrender,
revocation, cancellation or other termination by Company or amendment,
nor agree to any modification of this Agreement without Lender's prior
written approval. No expiration or early termination of this Agreement
shall terminate or extinguish this Agreement without the prior written
consent of Lender, unless the termination arises after a default and
Lender has been given the notice and cure rights specified under
Sections 2.15.2 and 2.19 of this Agreement, and has failed to cure in
accordance therewith.
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1.2.6 Subject to Section 1.7 (entitled RENTALS AND FEES) below, the
Effective Date (also known as the Rent Commencement Date) will be the
first of the following dates:
1.2.6.1 The date of completion of the Initial Improvements for the
Commercial Facilities, as evidenced by County's issuance of a
Certificate of Completion.
1.2.6.2 The date that any portion of the Premises generates any
revenue or has a Temporary Certificate of Occupancy with actual
occupancy and use.
1.2.6.3 Subject to the extension rights set forth in Section 1.10.3.1
below, upon the first day of the thirty-sixth (36th) month
following the Approval Date.
1.3 PREMISES
1.3.1 County does hereby demise and let unto Company and Company does
hereby take from County the Premises.
Company shall be responsible to provide County with a final legal
description of the entire Premises under this Agreement, which
includes the depiction of all current and proposed easements and/or
rights-of-way that County has or may wish to retain. Company will
submit a draft description, both narrative and graphic formats, to
County for its review and County has the right to modify the documents
to retain County's interests in any easements and/or rights of way
necessary for roads, utilities, and flood control. Once a final legal
description is agreed upon by both parties, such legal description
will be included in the Memorandum of Lease, as provided in Section
1.2.3 above.
1.3.2 Company acknowledges that it has inspected the Premises and accepts
the Premises "as is," including, but not limited to, grades, soil
conditions, and drainage with no further responsibility to Company by
County for any present or further improvements or maintenance thereof,
including, but not limited to, the existence of any utilities and
public roadways and the potential need to cap off or otherwise abandon
such utilities and/or roadways.
1.3.3 All improvements constructed on the Premises by Company (including,
without limitation, the Commercial Facilities) at any time and from
time to time during the term will be owned by Company during the term
of this Agreement.
1.4 USE OF PREMISES
1.4.1 Upon performance of the agreements, provisions and conditions
contained in this Agreement, Company., will have the use of the
Premises for the construction and operation of Commercial Facilities
and for other business activities directly related thereto and for no
other purposes, unless approved in writing by CDR.
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Such Commercial Facilities uses will be for purposes similar to other
commercial developments in the Las Vegas metropolitan area and if such
uses are Compatible Uses (defined below) and not Incompatible Uses
(defined below), they are deemed approved by CDR. CDR, however,
retains the sole right to determine if a use is compatible with
Airport operations. Notwithstanding the above (or any other language
in this Agreement) to the contrary, the uses set forth in Exhibit "E"
attached hereto and incorporated herein shall be deemed approved by
CDR as Compatible Uses.
1.4.2 Neither Company nor County shall have the right to erect (or cause or
permit any third party to erect) billboards (whether for commercial or
non-commercial purposes) on the Premises.
1.4.3 Company also agrees that use of the Premises is conditioned upon
Company's agreement that it will not develop the Premises and/or
adjoining or surrounding properties in a manner that County may find
objectionable to Airport and/or Aircraft operations. CDR, however,
retains the sole right to determine, in its reasonable discretion, if
the uses are Incompatible Uses or Compatible Uses, as defined below:
1.4.3.1 Incompatible Uses: The term "Incompatible Uses" means uses
which potentially expose persons to elevated levels of Aircraft
generated noise or to areas identified as necessary to protect
the safe passage of Aircraft, or which have been determined by
the Federal Aviation Administration (the "FAA"), the Director of
the Department of Aviation, and/or the Airport Height Hazard
Board of Adjustment to be hazardous to or incompatible with air
navigation. Incompatible Uses include, but are not limited to:
rural estate uses, residential uses, single- family homes, mobile
homes, low density, medium density and high density housing,
apartments, group quarters, condominiums, time-sharing
apartments, condominium hotels or motels, townhouses, churches,
hospitals, care centers, nursing homes, schools, auditoriums and
concert halls, fraternity and sorority housing, recreational
vehicle parks, places of public assembly, amusement parks,
outdoor sports arenas, zoos, uses that may in the future be
accessory to or enhance any of the uses described above on
adjacent parcels, and uses intended to fulfill development and/or
zoning requirements for any of the uses described above on an
adjacent parcel (including, without limitation, open space,
parking and landscaping requirements). The fact that any of the
foregoing uses is permitted under the Xxxxx County Code shall
have no bearing on whether they constitute an Incompatible Use
under this Restriction.
No "sexually oriented" business or "adult use," as defined in the
Xxxxx County Code (e.g. CCC 6.110, 6.140, 6.160, 6.170, 7.54,
30.08.030, and 30.44.010 and as amended from time to time), or
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other laws, regulations and ordinances now in effect or
hereinafter enacted that deal with such businesses and uses,
shall be allowed upon any part of the Premises. No use for which
a liquor or gaming license is required shall be allowed upon any
part of the Premises without the written consent of County
(refusal to consent to these uses is solely within the discretion
of the Board of County Commissioners and does not need to be
reasonable). Should County consent to a use involving a liquor or
gaming license, Company shall pay all costs, including the cost
of background investigations and attorney fees, relating to the
licensing process. Notwithstanding the foregoing, CDR consents to
liquor uses, subject to all normal and customary licensing
procedures, in such restaurants as may be developed on the
Premises.
1.4.3.2 Compatible Uses: The term "Compatible Uses," means land uses
which are appropriate given the area's exposure to Aircraft
overflight and noise, and the limitations on development
necessary to preclude potential hazards to air navigation.
Compatible Uses which may conform with the preceding definition
include, but are not limited to, commercial uses such as office,
warehousing, manufacturing, business, professional, and wholesale
and retail, provided any occupied structure is constructed using
noise attenuation construction techniques in compliance with FAA
regulations as further outlined in Sections 1.4.3.3, 1.4.3.4 and
3.18 below; communication uses; transportation uses such as
railroad, motor vehicle, rapid transit and street railway
transportation; street and highway rights-of-way; utility
rights-of way; parking; general dispersed recreation; golf
courses; and drainage facilities.
1.4.3.3 Avigation Easement: Company hereby grants and conveys to
County a perpetual and assignable right-of-way and easement for
the free and unobstructed passage of all Aircraft,. regardless of
the owner or operator of such, in, through, and across all of the
airspace above the Premises (including the Commercial Facilities
constructed thereon) subject to such rights, terms, and
conditions as contained herein. For purposes of this Agreement,
"Aircraft" is defined as any contrivance now known or hereafter
invented, used, or designed for navigation of or flight in the
air or space, regardless of the form of propulsion which powers
said Aircraft in flight.
County, its successors in interest and assigns, for the use and
benefit of Aircraft owners, operators and the general public,
shall have the continuing right to cause or allow in all of the
airspace above the surface of the Premises such noise, fumes,
vibrations, dust, fuel, particles and all other effects that may
be caused by or
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result from the operation of Aircraft, whether or not said
Aircraft over fly or intrude into the airspace above the
Premises.
County reserves unto itself, its successors and assigns, for the
use and benefit of Aircraft owners, operators and the general
public, a right of flight for the passage of Aircraft in the
airspace above the Premises (including the Commercial Facilities
constructed thereon), together with the right to cause in said
airspace such noise as may be inherent in the operation of
Aircraft, now known or hereafter used; for navigation of or
flight in said airspace, and for use of said airspace for landing
at, taking off from or operating at the facilities now known as,
or any future name or common reference that may be promulgated,
adopted or referred to, McCarran International Airport, Xxxxxx
Air Force Base, North Las Vegas Airport, Xxxxxxx Airport, Indian
Springs Air. Force Base, Xxxxxxxxx Executive Airport,
Xxxxxxxx/Bullhead Airport, Searchlight Airport, Mesquite Airport,
Boulder City Airport, and Xxxx Airport; or any-and all. future
facility or facilities developed in the Ivanpah Valley, Pahrump
Valley, and in the vicinity of the City of Mesquite (the
"Airports").
Company covenants and agrees not to allow any improvement to
become constructed. on the Premises which is, will be or has been
erected to a height and does extend into the airspace where, upon
making application of a FAA form 7460-1 if required, the FAA
determines such improvement to- be an obstruction and/or hazard
to air navigation pursuant to the rules and regulations of the
FAA under Code of Federal Regulations ("CFR") Title 14, Chapter
I, Part 77 ("Part 77"). Should the FAA determine such proposed,
erected, or grown improvement to be an obstruction and/or hazard
to air navigation, the improvement is to be removed, demolished,
and/or lowered to a height which the FAA determines not to be an
obstruction and/or hazard to air navigation, and until such
compliance is determined by the FAA, Company shall not be granted
a permit under. Xxxxx County Code Chapter 20 and Chapter 30,
including but not limited to Section 20.13 and Section 30.48 Part
B "Airport Airspace Overlay District" as amended, or any similar
federal state, or local regulation which may hereinafter be
enacted in total or in part:
Company covenants and agrees not to allow any vegetation to be
planted or grown on. the Premises which is, will be or has been
grown to a height and does extend into the airspace where, upon
making application of a FAA form 7460-I if required, the FAA
determines such vegetation to be an obstruction and/or hazard to
air navigation pursuant to the rules and regulations of the FAA
under Part 77. Should FAA determine such proposed or grown
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vegetation to be an obstruction and/or hazard to air navigation,
the vegetation is to be removed, trimmed, and/or lowered to a
height -which the FAA determines not to be an obstruction and/or
hazard to air navigation, and until such compliance is determined
by the FAA, Company shall not be granted a permit under Xxxxx
County Code Chapter 20 and Chapter 30, including but not limited
to Section 20.13 and Section 30.48 Part B "Airport Airspace
Overlay District" as amended, or any similar federal state, or
local regulation which may hereinafter be enacted in total or in
part.
Company shall, prior to 1) construction of any applicable
improvement; 2) planting any applicable vegetation; or 3) at such
time as any vegetation is grown to a height on the Premises that
meets or exceeds the notification requirements of Part 77; file
notice with the FAA in accordance with the requirements of Part
77 as applied to the Airports via FAA form 7460-1, as amended, or
any similar regulations which may hereinafter be enacted and,
where required by the Xxxxx County Code, receive either a
Director's Permit from the Department of Aviation or a Director's
Permit Variance from County's Airport Hazard Area Board of
Adjustment.
Company, in addition to all rights, terms, and conditions
contained herein, expressly acknowledges and consents to the
right of Aircraft flight set forth in Title 00 Xxxxxx Xxxxxx Code
("USC") Section 40102(a)(30), 49 USC Section 40103(a)(2), Title
14 CFR, Chapter I, Part 91., Part 101, and Part 103 as amended,
including but not limited to 14 CFR Part 91.119, or any similar
statute or regulation which may hereinafter be enacted in total
or in part, and Nevada Revised Statute ("NRS") Chapters,
including but not limited to, NRS 493.030, NRS 493.040 and NRS
493.050, as amended, or any similar regulation or statute which
may hereinafter be enacted in total or in part, as may be
undertaken by Aircraft arriving to or departing from the
Airports.
1.4.3.4 Waiver: Company, its successors, assigns, licensees, invitees,
and tenants, hereby waive, remise, and release any right, claim,
or cause of action which they may now have or may have in the
future against County, and its officers and employees, or
operators or users, and their officers, directors, employees, and
agents, of the above described Airports, for losses or
psychological or physical effects on account of or arising out of
noise, vibrations, fumes, dust, fuel, particles and all other
effects that may be caused or may have been caused by the
operation of Aircraft landing at, taking off from, or operating
at or on the Airports, or in or near the airspace above the
Premises. Company, its successors, assigns, licensees, invitees,
and tenants specifically waives any and all claims,
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including a claim that the easement is burdened by increases in
noise, fumes, vibrations, dust, fuel, particles, or any other
effects that may be caused by or result from the operation of
Aircraft; changes in the type or frequency of Aircraft
operations, the airport layout, or flight patterns; or increases
in nighttime operations.
Further, Company, its successors, assigns, licensees, invitees,
and tenants, hereby waive, remise, and release any right, claim,
or cause of action as to use and/or regulation of all airspace
more than fifty (50) feet above the finished grade of the
Premises (more than forty (40) feet above the finished grade will
require Airport and CDR written approval), except as may be
granted by County.
The above grant of Avigation Easement and Waiver do not require
the removal of an improvement or vegetation in the condition
existing on the Premises as of-the date of this Agreement.
Company expressly agrees for itself, its successors and assigns, to:
a. Submit to County plans showing exterior building finishes, including
but not limited to glass surfaces and exterior lighting, which
potentially may make it difficult for Aircraft pilots to distinguish,
between- airport lights and other lights; produce glare or reflection
which would impair Aircraft pilots landing or taking off at the
Airport, impair visibility in the vicinity of the Airport, or
otherwise endanger the landing, take off, or maneuvering of Aircraft;
and shall not install the same without receiving a Director's Permit
from the Department of Aviation or a variance from County's Airport
Height Hazard Board of Adjustment. Company shall not use, permit, or
suffer the use of the Premises in such manner a5 to create electrical
interference with radio communication to or from any Aircraft or
between any airport installation or navigational aid (NAVAID) and any
Aircraft.
b. Not authorize the construction of any facility or improvement on the
Premises, which attracts or results in the concentration of birds or
other wildlife which would interfere with the safe operation of
Aircraft in flight.
c. Use construction practices and materials to achieve an exterior to
interior noise level reduction sufficient to-achieve a maximum 40
decibel Day-Night Level (DNL 40 dB) interior noise level in any
permanent structures, based on Aircraft noise contours shown on the
McCarran International Airport Environs Overlay District Map, prepared
by the Department of Aviation and dated April 16, 1998, or on a
subsequent version of said map(s) as may be updated from time to time
by the Department of Aviation (Airport Environs Map). Land, buildings,
and structures shall be deemed to be impacted by the specific noise
contours that cross them as shown on the Airport Environs Maps. Where
a building is or would be
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impacted by one or more noise contours, the entire building shall be
considered to be within the most restrictive noise contour.
1.5 STANDARDS OF OPERATION
1.5.1 Company will develop and cause to be constructed Commercial
Facilities in accordance with - plans and specifications prepared by
Company and approved by CDR in order to provide a first-class
commercial facility operation for use by its Sublessees or Tenants.
1.5.2 Company may enter into a standard form Sublease (attached as Exhibit
"F' hereto and made a part hereof), which has been approved by CDR,
with Sublessees or Tenants. With CDR's approval, an entirely new form
of standard form. Sublease may be adopted for use by Company from time
to time.
1.5.2.1 Consistent with Section 2.2.1.4 below, Company must obtain the
written approval of CDR for any materially adverse change to the
standard form Sublease.
1.5.2.2 All Subleases must be for those uses permitted in Section I.4
(entitled USE OF PREMISES) above, and must incorporate by
reference all applicable provisions of this Agreement (as
reasonably determined by Company) to ensure every Sublessee's
operations and conduct are in compliance with such applicable
provisions of this Agreement.
1.5.3 Company will provide County with a copy of any rules, regulations or
other standards of operation developed by Company and distributed to
Sublessees and Tenants.
1.6 BUDGET APPROVAL
1.6.1 A written budget for each calendar year during the term of this
Agreement will be prepared for all expenses related to the use,
maintenance and operation of the Premises, including, without
limitation, maintenance, operation, administration, leasing and other
fees and expenses of any nature as follows:
1.6.1.1 On or within thirty (30) days following substantial completion
of the Commercial Facilities, Company and CDR will agree upon an
initial budget to cover the period from the Effective Date until
December 31 of the year in which the Effective Date falls.
1.6.1.2 By October 15, annually, Company will prepare and submit to
CDR a written budget for the following calendar year.
1.6.1.3 Within fourteen (14) days of receipt of the proposed budget,
CDR will review and approve or disapprove the proposed budget
submitted by Company.
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1.6.1.3.1 If disapproved on reasonable grounds, CDR will inform
Company in writing of its disapproval, describing the
disapproved provisions of the proposed budget, or requesting
further clarification of the budget elements. Company will
respond Within fourteen (14) days with clarification of the
budget elements or with a modified written budget, which is
reasonably satisfactory to CDR. The Participating Parties
agree to negotiate in good faith to resolve any conflicting
issues that may arise. If CDR fails to timely respond, the
proposed budget will be deemed approved and will become an
Approved Budget.
1.6.1.3.2 If, however, the Participating Parties cannot agree
upon the elements contained in the proposed budget or if,
during the term of the following year, the parties cannot
agree upon the interpretation of the intent of the Approved
Budget, a neutral third party will be selected by CDR to
arbitrate the disputed terms.
1.6.1.3.2.1 If, however, Company does not accept the neutral
third party selected by CDR, Company will be allowed to
select a second neutral party. The two selected parties
will then select a third neutral party and the three
together will arbitrate the disputed terms. County
agrees that Company may operate under the prior year
Approved Budget until the dispute is resolved. All
neutral parties shall have at least five (5) years
experience in commercial real estate matters and must
be attorney(s) certified by the Nevada Court Annexed
Arbitration Program.
1.6.1.3.2.2 CDR and Company agree to be bound by the
decisions reached by the selected arbitrator. The
Participating Parties will cause the arbitrator to make
a determination within fourteen (14) days following
submittal.
1.6.1.3.2.3 The Participating Parties agree that each party
will bear its own costs and expenses incurred for
attorney's fees, preparation and presentation costs for
the arbitration process. The Participating Parties will
share the cost of any third arbitrator.
1.6.1.4 The agreed upon budget will be deemed the Approved Budget for
the applicable calendar year. Until a budget has been approved,
the prior year's budget will be used.
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1.6.2 Company will be entitled to expend funds in accordance with the
Approved Budget during the applicable calendar year. In the event
Company is over-budget on a particular line item, Company may
reallocate excess funds from one line item to another line item,
except that any salary line item reallocations must be approved by
CDR. Any expenses not covered by the Approved Budget are subject to
the reasonable written approval of CDR. In the event of emergency,
Company may immediately take action necessary to complete repair and
any expenses incurred by Company will be shared in accordance with the
provisions of Section 1.7 (entitled RENTALS AND FEES) below.
1.7 RENTALS AND FEES
Rentals and fees for the operation of the Commercial Facilities will be as
follows:
1.7.1 As soon as practicable following the Approval Date, Company, at its
election, will obtain financing for the Commercial Facilities in
accordance with the, terms and conditions of Section 2.19 (entitled
FINANCING) of this Agreement. Rentals and fees will be subject to such
financing and completion, of the Commercial Facilities as follows:
1.7.1.1 The Participating Parties acknowledge that Company may be
required to make an equity contribution to fund the difference
between total Project Costs and the amount of financing obtained
by Company.
1.7.1.2 Following completion of the Commercial Facilities and once the
Net Revenue from the Commercial Facilities is available, such Net
Revenue will be applied to Company's equity contribution, if
applicable, until such time as the amount is repaid in full
together with interest at the rate of eleven percent (11%) per
annum. Company will furnish documentation satisfactory to CDR
showing the Total Revenues received from the Commercial
Facilities and the payments applied to the equity contribution
amount. Company shall not finance more than thirty percent (30%)
of Pro Forma Development Costs with its equity. Notwithstanding
the prior sentence to the contrary, if, following Company's
reasonable efforts to obtain loans requiring not more than thirty
percent (30%) equity, Company is unable to obtain such loans (on
reasonable and customary terms), then, Company will be allowed to
increase its equity contribution to such amounts required by its
Lenders. Except as otherwise agreed by County, any amount in
excess of thirty percent (30%) that is self-financed will be
repaid with interest at a rate equal to the applicable loan rate
(whether construction or permanent loan) plus one hundred fifty
(150) basis points per annum, not to exceed eleven percent (11%)
per annum.
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1.7.1.3 The Participating Parties will acknowledge the date the equity
contribution is paid in full by written notice from Company and
acknowledgment by CDR.
1.7.1.4 In the event of default by Company and the subsequent
foreclosure and sale of the leasehold interest to an Assignee as
provided in Section 2.19 (entitled FINANCING) below, and assuming
County declines the right to assume the Loan (as provided in
Section 2.19.11 below), the above defined rentals will be abated
as described in Section 2.19.11.2 below. Following satisfaction
of the Loan obligation owed to an Assignee of Lender, payment to
County of the rentals and fees as described in this Section 1.7
will resume.
1.7.1.5 Any additional capital required to be contributed for
operation of the Property, following completion of construction
of the Initial Improvements shall be contributed by Company, as
an additional equity contribution, provided such capital is
required to pay obligations arising under either an Approved
Budget or a Sublease, or reasonably required to remedy an
unforeseen situation. Any such equity contribution shall be
repaid as described in Section 1.7.1.2 above.
1.7.1.6 Company recognizes that the Premises are within the boundary
of the Cooperative Management Area and that this Agreement is
subject to the provisions of the SNPLMA, and that County is
required by the SNPLMA to receive "fair market value" for all
leases on land within the Cooperative Management Area. The
Parties agree and acknowledge that they have negotiated this
Agreement to be a fair market lease. If it is determined by a
court of competent jurisdiction that any of the terms and
conditions of this Agreement violate the SNPLMA, then Company
agrees to renegotiate in good faith the applicable terms of this
Agreement with County, consistent with the provisions of Section
4.6 below.
1.7.2 Upon the date Company's and County's equity contributions (if
applicable) are paid in full, with interest, as described in Section
1.7.1.2 above, the rental for the Premises will consist of County's
share of Net Revenue, as defined in Section 1.1 22 of this Agreement,
calculated as follows:
Total Revenue
Less: Debt Service
Actual expenses authorized in the. Approved Budget,
including the cost of any Maintenance and Operations,
development fees, leasing commissions,
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capital market fees, or other Project Costs approved by
CDR
Capital Improvement Expenditures
Management Fees
Reasonable reserves for Maintenance and Operations and
capital improvements, or any other reserve required by
any Lender under any approved financing
Equals: Net Revenue (available cash)
Distribution 50% to County
of Net Revenue: 50% to Company
1.7.3 On or before the twenty-fifth (25th) of each month, Company will
submit a statement depicting Total Revenue received for the preceding
month and allowable deductions for the Net Revenue calculation. A
check for County's fifty percent (50%) share of Net Revenue will be
submitted with such report.
1.7.4 Company will make all payments by check made payable to the Xxxxx
County Department of Aviation and deliver or mail said payments to
County at XxXxxxxx International Airport, X.X. Xxx 00000, Xxx Xxxxx,
Xxxxxx 00000-0000 or to such other place as County may direct Company
in writing:
1.7.5 In the event any required payment is not made by Company to County as
required and remains unpaid for a period of thirty (30) days or more,
County will be entitled to, and Company will pay to County, interest
at the rate of eleven percent (11%) per annum on all amounts unpaid
and which remain unpaid thirty (30) days past the due date. However,
the County will not be prevented from terminating this Agreement for
default of payments of rents, fees, or charges or from enforcing any
other provisions contained herein or implied by law.
1.7.6 On or prior to April 30, annually, during the term of this Agreement
or any extension thereof and within ninety (90) days after the
expiration of the term of this Agreement, Company will provide County
with a statement showing the entire preceding year's business
operations, including revenue and expenses, which will be prepared in
accordance with sound accounting principles. Such statement is to be
prepared by Company's Certified Public Accountant and contain a
written opinion as to whether the gross revenues and distribution of
Net Revenue has been made in accordance with the provisions of this
Agreement Should such statements show that the amount paid during the
period of review was less than that which was due, Company will
immediately remit the additional amount to County. Should such
statement show that Company paid County more than was due, after
review and verification by CDR a credit will be issued to be applied
against future Net Revenue, except that if such should be the case at
the
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end of the last month of this Agreement, County will refund the
overpayment to Company.
1.7.7 Subject to the extension rights set forth in Section 1.10.3.1 below,
if the Initial Improvements are not completed by the first day of the
thirty-sixth (36th) month following the Approval Date, then Company
will pay flat ground rent equal to the then fair market ground rent
for unimproved real estate which is: (a) subject to the same rights
and interests encumbering the Premises, and (b) at this location. Such
payment of flat ground rent shall continue only until the completion
of the Initial Improvements.
1.8 RECORDS AND AUDIT
1.8.1 Within forty-eight (48) hours of request by County, Company agrees to
provide at a location in the metropolitan area of Las Vegas, Nevada,
accurate books, records, and accounts of all revenues received from
Company's business authorized under this Agreement. Company further
agrees to make such books, records and accounts available at any time,
Monday through Friday (excluding holidays), 9:00 a.m. to 5:00 p.m. for
the inspection of CDR, or such agents, employees or accountants as
he/she may designate for at least a six (6) year period following the
end of each annual period of this Agreement. In the event that County
detects error(s) in fees in favor of County by a greater margin of one
percent (1%) during such inspection, the cost of the inspection shall
be borne by Company.
1.8.2 County will, at any time, have the right to cause an audit of the
business of Company to be made by a Certified Public Accountant of
County's selection and if the financial statements previously made to
County by Company will be found to be intentionally understated in any
respect or to be understated (either intentionally or unintentionally)
by a greater margin of one percent (1%) of Company's Total Revenue for
the period of review, then Company will immediately pay to County the
reasonable cost of such audit, as well as the additional payments
shown to be payable to County by Company. Otherwise, the cost of the
audit will be paid by County.
1.9 IMPROVEMENTS, MAINTENANCE AND REPAIR BY COUNTY
1.9.1 County has no direct responsibility or obligation for any
maintenance, repair or replacement 'of the leased Premises or
improvements.
1.9.2 In connection with the Commercial Facilities, at any time and from
time to time during the term of this Agreement, County agrees to, upon
the written request of Company, assist Company in delivering such
instruments as may be appropriate, necessary, required or desired by
Company for the purpose of (a) the grant or dedication of any
easement, right of way or other property right to any public entity or
service corporation or for the development of the Premises, so long as
such grant or dedication does not substantially impair the value of
the County's fee interest in the real property underlying the
Premises, or (b) the application to
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any governmental authority for, or the obtaining of, approvals;
consents, zoning changes, conditional uses, variances, subdivision
maps or the like, in each instance for the purpose of providing
adequate utility services to the Premises or of permitting Company to
construct the Commercial Facilities on the Premises or make any
alteration or addition to the Commercial Facilities, or (c) obtaining
institutional construction and permanent financing, including such
Estoppel Certificates, Subordination Agreements, and/or
Non-Disturbance and Attornment Agreements, in customary form, as may
be reasonably required by such Lenders.
1.10 IMPROVEMENTS, MAINTENANCE AND REPAIR BY COMPANY
1.10.1 In the operations of Company's activities within the Premises,
Company will design, develop; construct, manage and maintain and
repair the following:
1.10.1.1 All leasehold improvements, including but not limited to
grading, fencing, paving, lighting, roadways, parking lots,
drainage, structures, all applicable permits, zoning requirements
as required by Company for the operation of the Commercial
Facilities in the conduct of the business as authorized by
Section 1.4 (entitled USE OF PREMISES) of this Agreement.
Notwithstanding the assumption of any of these responsibilities
by a Sublessee, Company shall remain responsible to ensure all
leasehold improvements are completed in accordance with this
Agreement.
1.10.2 Commencement of construction of the Initial Improvements will be as
soon as all approvals are obtained following the Approval Date of this
Agreement.
1.10.2.1 If Company has not commenced construction by the nineteenth
(19'4) month after the Approval Date, it will be a material
breach of this Agreement and County will have the right of
termination as defined in Section 2.15 (entitled TERMINATION BY
COUNTY) of this Agreement. County agrees to give Company ninety
(90) days prior written notice before executing its right to
terminate this Agreement. County agrees not to exercise its right
to terminate until any Lender has been given its rights to cure
or foreclose on Company as provided in Section 2.19 (entitled
FINANCING) of this Agreement.
1.10.3 Subject to Section 1.10.3.1 below, the dare of completion of the
Initial Improvements. will be on or before the first (1st) day of the
thirty-sixth (36th) month following the Approval Date.
1.10.3.1 In the event the Initial Improvements are not completed
within such thirty-six (36) months due to circumstances beyond
the control of Company, County, through its CDR, may extend the
completion of the Initial Improvements deadline for a period not
to exceed six (6) months. In no event, however, will the
extension
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period be longer than the commensurate time affected by the
circumstances beyond the control of Company.
1.10.3.2 Should the deadline for completion of the Initial
Improvements not be extended as provided above or if the Initial
Improvements are not completed by the time frame allowed in such
extension, County may declare this failure to perform a material
breach of this Agreement and County will have the right to
terminate set forth in Section 2.15 (entitled TERMINATION BY
COUNTY) of this Agreement. County agrees to give Company ninety
(90) days prior written notice before executing its right to
terminate this Agreement. County agrees not to exercise its right
to terminate until any Lender has been given its rights to cure
or foreclose on Company as provided in Section 2.19 (entitled
FINANCING) below.
1.10.3.3 If, at the end of such thirty-six (36) months (as such period
may be extended as provided above), Company has not completed the
Initial Improvements proposed for the Premises, then Company
forfeits any rights to lease and develop the remaining
undeveloped portion of the Premises (the "Undeveloped Portion").
Upon ninety (90) days written notice to Company of its intent,
County will have the right to enter and occupy the Undeveloped
Portion. County agrees not to exercise this right until any
Lender has been given its rights to cure Company's default under
this Agreement or foreclose its mortgage or deed of trust, as
provided in Section 2.19 (entitled FINANCING) of this Agreement.
A modified Exhibit "D," excluding the Undeveloped Portion, will
then be prepared by Airport Engineering and verified by an
exchange of correspondence. Such modified Exhibit "D" will be
attached hereto and made a part hereof in replacement of the
current Exhibit "D" to this Agreement.
1.10.4 Company will construct and install the following, each of which will
be considered a Project Cost:
1.10.4.1 Underground utility lines and connections. Company's expense
will include all connection fees or all other fees.
1.10.4.2 All leasehold improvements including, but not limited to,
grading, fencing, paving, lighting, roadways, parking lots,
drainage and structures which are required by Company in its
conduct of business as authorized under Section 1.4 (entitled USE
OF PREMISES) below.
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1.10.5 Maintenance is understood and agreed to include all janitorial
services and requirements and daily routine Premises cleanup, and all
dust mitigation requirements.
1.10.6 All improvements or alterations by Company will be in accordance
with the Xxxxx County Code and all other applicable governmental rules
and regulations. The shell drawings for the Initial Improvements are
also subject to the prior written approval of CDR; if requested by
CDR. In the event of a default hereunder by Company, Company will
provide County copies of all the following documents which are in
Company's possession: as-built drawings of all improvements, along
with a certification of construction costs for all permanent
improvements.
1.10.7 During the term or any extension of this Agreement, Company may, as
a Project Cost with -prior written approval of CDR, add to or alter
the Initial Improvements at any time subject to the applicable
provisions of this Section 1.10. Any such addition or alteration will
be performed in a workmanlike manner in accordance with all applicable
governmental regulations and requirements and will not weaken or
impair the structural strength or reduce the value of the Premises or
improvements thereon.
1.10.8 Company will be responsible as a Maintenance and Operation expense
for the removal and disposal of garbage, debris, contaminants and any
other waste material (whether solid or liquid) arising out of its
occupancy of the leased Premises or out of its operation. Such removal
will conform with all governmental requirements and regulations as
more fully described hereinafter in Section 3.22 (entitled
ENVIRONMENTAL POLICY) below.
1.10.9 Should Company fail to perform its maintenance and repair
responsibilities, County may, but is not obligated to, provide
maintenance and make repairs thereon and thereto, upon thirty (30)
days prior written notice of its intent to do so; except in case of
emergency for which no notice is necessary. Company shall reimburse
County for any such reasonable amounts as billed, plus a ten percent
(10%) administrative fee. Company may then charge such costs to the
project as a maintenance expense.
1.10.10 In addition to this Agreement, County may enter into other ground
lease agreements on substantially similar terms with affiliates of
Company (the "Company Affiliates") for the development of other real
property owned or controlled by County on or in the vicinity of the
Airport (the "Related Lease Agreements"). Notwithstanding any language
to the contrary contained in this Agreement, Company may, with CDR's
prior written consent, alter the boundary lines of the Premises under
this Agreement, and under the Related Lease Agreements, and reorder
the sequence and timing of the commencement of construction of the
Commercial Facilities under this Agreement and under the Related Lease
Agreements; provided, however, that in no event shall such altering
and/or reordering excuse Company or any of the Company Affiliates
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from fulfilling their obligations under this Agreement or under the
Related Lease Agreements.
1.10.11 The Company shall submit a site plan ("Site Plan") for the proposed
Premises, including all areas that have previously been the subject of
an exercise of the lease option granted in the Lease Option Agreement,
to the CDR no later than the final Approval Date of this Agreement by
the Board of County Commissioners. In addition, Company shall submit
an updated Site Plan in connection with any proposed amendment to this
Agreement.
1.11 CONSTRUCTION STANDARDS, RULES AND REGULATIONS
All Initial Improvements by Company will be in accordance with the Xxxxx
County Code and all other applicable governmental rules and regulations.
Further, design and construction specifications and documents must be
reviewed by County Department of Building and Zoning prior to the issuance
of a building permit and will be subject to any statute, ordinance, rule or
regulation of any other applicable governmental agency, department or
authority whether Federal, State or local.
1.12 APPROVALS TO BE REASONABLY GIVEN
It is understood and agreed that all provisions of this Agreement which
require approval by or the consent of the County or CDR, except those that
are specifically noted as "sole" discretion (which still require responses
in a timely manner), will receive timely response and such approvals or
consents will not be unreasonably withheld, conditioned or delayed.
ARTICLE II
2.1 ASSIGNMENT
2.1.1 Company will not assign its rights or duties hereunder or any estate
created hereunder, in whole or in part, except with the prior written
consent of County. County agrees to provide such consent if the
proposed Assignee presented is a "proper and fit" person or entity,
which means one having (1) demonstrated experience in the management
of comparable commercial real estate properties (i.e., at least five
(5) years of such management experience or a contractual relationship
with a manager with such minimum experience), and (2) financial
resources sufficient, in County's reasonable business judgment, to be
financially secure to perform Company's obligations hereunder (i.e.,
having a net worth of at least Two Million Dollars ($2,000,000) as
increased annually according. to the percentage increase during the
preceding year in the Consumer Price index for all urban wage earners
and clerical workers [CPI-W] U.S. average all items prepared by the
Bureau of Labor Statistics of the United States Department of Labor,
with such increase not to exceed four percent (4%)). Further, any such
assignment will be specifically subject to all provisions of this
Agreement Except as provided below in this Section 2.1.1, any
assignment by Company without County's
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consent is void. Notwithstanding the above, if the proposed Assignee
is an institutional investor having a net worth of at least Twenty
Million Dollars ($20,000,000) or an entity owned or controlled,
directly or indirectly, by such an institutional investor, no prior
written consent of County is required, but County shall be provided
written notice of any such assignment within thirty (30).days
following its effective date.
2.1.1.1 Any voluntary transfer of fifty percent (50%) or more of
Company's equity interest will be deemed an assignment.
2.1.1.2 Before any assignment will become effective, the Assignee
will, by written instrument, assume and agree to be bound by the
terms and conditions of this Agreement during the remainder of
the term thereafter. When seeking consent to an assignment
hereunder, Company will submit a copy of the document or
instrument of assignment to County. Any assignment will not
release Company from its obligations under this Agreement arising
prior to the date of assignment.
2.1.1.3 Any transfers by the equity owners of Company or the equity
owners of the equity owners of Company to each other or to other
related parties for estate planning purposes will not be
considered an assignment hereunder. For purposes of this Section
2.1 (entitled ASSIGNMENT), "related parties" shall mean, in the
case of individuals, any persons related by blood or marriage
within the second degree of consanguinity, and in the case of
legal entities, entities that control, are controlled by or are
under common control with each other. Company shall notify CDR,
in writing, of any such actions.
2.2 SUBLEASING
Company Will not sublease, rent to, or permit any persons, firms or
corporations to occupy any part of the leased Premises without having first
complied with the following terms and conditions:
2.2.1 Any arrangements must be in the form of a written instrument and must
be specifically for purposes and uses of the Premises as authorized
under this Agreement and subject to the provisions of this Agreement.
2.2.1.1 Consistent with Section 1.5.2 above, all Subleases are to be
entered into using the standard form agreement approved by CDR;
provided, however, that in the course of negotiating the final
terms of a particular Sublease, Company may make commercially
reasonable revisions and modifications to the standard form
agreement as required to consummate the transaction, subject to
the terms of Section 2.2.1.4 below.
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2.2.1.2 Any arrangements for the leasing of space which are not based
on the use of the standard form agreement approved in accordance
with Section 1.12 above must receive the prior written approval
of CDR.
2.2.1.3 All license agreements of Company shall be entered into using
a standard form of license agreement approved by-County;
provided, however, that in the course of negotiating the
final-terms of a particular license agreement, Company may make
commercially reasonable revisions and modifications to the
approved form of agreement as required to consummate the
transaction, subject to the terms of Section 22.1.4 below.
2.2.1.4 CDR must approve any materially adverse change to the standard
form of Sublease or license agreement. For purposes of this
Section 2.2.1.4, the term "materially adverse change" shall mean
any change to the form of Sublease attached hereto (or the
approved form of license agreement) that would amend those
provisions (a) dealing with the obligations of a Sublessee (or
licensee) to comply with the pertinent provisions of this
Agreement, or (b) which incorporate by reference any of the terms
and provisions of this Agreement.
2.2.2 All Subleases and license agreements of Company will be subject to
all terms and conditions of this Agreement.
2.3 ATTORNMENT
2.3.1 In the event Company ceases to be a party to this Agreement and
perform its obligations hereunder to County, other than by a transfer
of interest and novation approved in writing by County, all Sublessees
will recognize County as the successor to Company, and render
performance hereunder to County as if the Sublease were executed
directly between County and the Sublessees; provided, however, County
agrees that so long as Sublessees are not in default, County agrees to
provide quiet enjoyment to the Sublessees and County agrees to be
bound by all of the terms and conditions of such Sublease. County
shall execute a separate Subordination, Non-Disturbance and Attornment
Agreement if so required by any Sublessee.
2.3.2 All Subleases of Company will provide that:
If by reason of a default on the part of Company as lessee in the
performance of the terms of the provisions of the underlying
Agreement, the underlying Agreement and the leasehold estate of
Company as lessee thereunder is terminated by summary proceedings or
otherwise in accordance with the terms of the underlying Agreement,
all Sublessees will attorn to County and recognize County as lessor,
provided, however, County agrees that so long as such
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Sublessees are not in default, County agrees to provide quiet
enjoyment to the Sublessees and to be bound by all the terms and
conditions of such Sublease.
2.3.3 In the event this Agreement is terminated for any reason, all
Sublessees will be liable to County for their payment of rents and
fees.
2.4 SUCCESSORS AND ASSIGNS
All covenants and conditions of this Agreement will extend to and bind the
legal representatives, successors and assigns of the respective parties
hereto and all agreements with Assignees will include all provisions
contained in this Agreement.
2.5 CONTROL OF PERSONNEL
Company will, in and about the leased Premises, exercise reasonable control
over the conduct, demeanor and appearance of its employees, agents and
representatives and the conduct of its contractors and suppliers. Upon
objection from CDR to Company concerning the conduct, demeanor or
appearance of such persons, Company will, within a reasonable time, remedy
the cause of the objection.
2.6 SIGNS AND/OR WORKS OF ART
2.6.1 Company will not erect, install, operate, nor cause or permit to. be
erected, installed, or operated upon Airport property (other than the
Premises), any signs or other similar advertising devices for its own
business.
2.6.2 Any identifying signs erected, installed, operated or attached to the
leased Premises will require the prior written approval of CDR, which
will not be unreasonably withheld. Such approval may consider and
provide conditions concerning factors including, but not limited to,
size, type, content, and method of installation.
2.6.3 Company will not commission, install or display any work of art
without the prior written approval of CDR and without a full written
waiver by the artist of all rights under the Visual Arts Rights Act of
1990, 17 U.S.C. Sections 106A and 113.
2.7 ENTRY AND INSPECTION OF PREMISES
County, its authorized officers, employees, agents, contractors,
subcontractors or other representatives will have the right to enter upon
the Premises for the following reasons by providing at least two (2)
business days prior written notice and while accompanied by a
representative of Company (except in an emergency, in which case County
will provide concurrent or reasonable subsequent notice specifying the
nature of the emergency and the need for immediate entry).
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2.7.1 To inspect at reasonable intervals during regular business hours (or
any time in case of emergency) to determine whether Company has
complied and is complying with the terms and conditions of this
Agreement.
2.7.2 For the purpose of inspecting the Premises and for fulfilling
County's obligations hereunder, provided however, that such entry will
be at such times and in such manner as to not unreasonably interfere
with the operations of Company or its Sublessees. County may, however,
enter at any time for emergency repairs or maintenance without
responsibility to Company for loss of business.
No such entry by or on behalf of County upon the Premises will cause
or constitute a termination of this Agreement nor be deemed to
constitute an interference with the possession thereof nor constitute
a revocation of or interference with any of Company's rights in
respect thereof for exclusive use of the Leased Premises.
The inspections contemplated by the parties to this Agreement,
pursuant to this Section, are for the sole benefit of the parties. No
benefit to any third party is contemplated nor intended.
2.8 INTENTION OF PARTIES
This Agreement is intended solely for the benefit of County and Company and
is not intended to benefit, either directly or indirectly, any third party
or member(s) of the public at large, except for those provisions of this
Agreement specifically applicable to and for the benefit of a Lender. Any
work done or inspection of the Premises by County is solely for the benefit
of County and Company.
2.9 LIENS
Company shall prepare for County, in a manner required by law, a Notice of
Non-Responsibility. Company shall post in a conspicuous location on the
Premises a Notice of Non-Responsibility for the benefit of County. Company
will cause to be removed any and all liens of any nature including, but not
limited to, tax liens and liens arising out of or because of any
construction or installation performed by or on behalf of Company or any of
its contractors or subcontractors upon Company's leased Premises or arising
out of or because of the performance of any work or labor to it or them at
the Premises or the furnishing of any materials to it or them for use at
the Premises. Should any such lien be made or filed, Company will bond
against or discharge the same within thirty (30) days after written request
by CDR. The cost of bonding against or discharging any Liens relating to
construction or installation of Commercial Facilities shall be a Project
Cost.
Should Company or any Sublessee cause any improvements to the Premises,
Company shall cause any contract with any contractor, designer, or other
person providing work, labor, or materials to the Premises to include the
following clause:
Contractor agrees on behalf of itself, its subcontractors, suppliers
and consultants and their employees that there is no legal right to
file a lien upon County-owned
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property and will not file a mechanic's lien or otherwise assert any
claim against County's real estate or any County's leasehold interest
on account of any work done, labor performed or materials furnished
under this contract. Contractor agrees to indemnify, defend and hold
the County and Company harmless from any liens filed upon the County's
property and County's leasehold interest and shall promptly take all
necessary legal action to ensure the removal of any such lien at
Contractor's sole cost.
2.10 TAXES, LICENSES AND PERMITS
Company will promptly, as a Project Cost, pay all taxes, excises, license
fees and permit fees of whatever nature applicable to its operation and
lease of Premises hereunder, including any real property taxes. Company
shall not be responsible for any of County's franchise, inheritance, income
or other tax levied on County or County's right to receive income from the
Premises. Company may elect, however, at its own cost and expense to
contest any such tax, excise, levy or assessment. Company will keep current
municipal, state or local licenses or permits required for the conduct of
its business.
2.11 INDEMNITY
Company agrees to indemnify and hold County forever harmless from and
against all liability, loss, demand, judgments or other expense (including,
but not limited to, defense costs, expenses and reasonable attorney fees)
imposed upon County by reason of injuries or death of persons (including
wrongful death) and damages to property caused during and because of
Company's use or occupancy of Airport property or the leased Premises or
any actions or non-actions of Company, its officers, employees, agents, or
other representatives, including movement of vehicles, provided, however,
that such indemnity will not apply as to any negligent act or omission of
County, its employees, agents or representatives.
2.12 INSURANCE AND BONDS
2.12.1 Bonds
2.12.1.1 County shall waive the requirement for Company's general
contractor to furnish Bonds unless County provides reasonable
evidence that such. general contractor(s) does not possess the
financial ability or experience/reputation to complete the
faithful performance of the construction of the tenant
improvements or installation of equipment. Otherwise, Company
will require its general contractor to furnish Bonds covering the
faithful performance of the construction of the tenant
improvements or installation of equipment, payment of all
obligations arising thereunder to take effect upon completion of
the project, in such a form and amount as CDR may approve. Bonds
may be secured through the Contractor's usual sources provided
the Surety is authorized and licensed to do business in the State
of Nevada.
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Company will be allowed to name any Lender as an additional
obligee under any such bond.
2.12.1.2 If required by Section 2.12.1.1 above, prior to execution of
a construction contract, and not later than ten (10) calendar
days after notification of award, Company will require its
contractor to furnish the following Bonds to CDR:
a. Labor and Material Payment Bond in the amount of one hundred
percent (100%) of the contract price.
b. Payment and Performance Bond in the amount of one hundred
percent (100%) of the contract price.
CDR may waive or modify the requirements of this Section 2.12.1
upon written request by Company.
2.12.1.3 The Bonds referred to in Section 2.12.1.1 and 2.12.1.2 above
will be written on the Payment and Performance Bond and Labor and
Material Payment Bond forms approved by CDR.
2.12.1.4 Company will require its contractor to require the
attorney-in-fact who executes the required Bonds on behalf of the
Surety to affix thereto a certified and current copy of his power
of attorney.
2.12.1.5 Any Labor and Material Payment Bond, Performance Bond, or
Guaranty Bond prepared by a licensed nonresident agent must be
countersigned by a resident agent as per the provisions of N.R.S.
680A.300.
2.12.2 Insurance
2.12.2.1 Prior to the commencement of any improvement or equipment
installation on or about the Premises, Company will require that
its construction contractor procure and maintain insurance for
such construction and installation protecting both Company and
County as well as the construction contractor. Such insurance
will provide coverage and limits as are determined customary in
the industry by CDR and Company. Such insurance will include, but
is not limited to:
- General Liability on an "occurrence" basis only
- Automobile Liability
- Builder's Risk equal to the maximum probable loss covering
the project and all materials and equipment.
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2.12.2.2 Company's (or its Contractor's) insurance will be primary as
respects County' and Company, their officers, employees and
volunteers acting as agents of County (hereinafter referred to as
"volunteers"). Any other coverage available to County, its
officers, employees and volunteers will be excess over the
insurance required by the contract and shall not contribute with
in
2.12.2.3 Company will maintain worker's compensation in the amounts
and form as required by the Nevada Industrial Insurance Act and
the Nevada Occupational Diseases Act. Certificates evidencing the
valid, effective' insurance policies will be provided to and kept
on file with CDR.
2.12.2.4 Company will keep insured with responsible insurance
underwriters any improvements constructed by it upon and within
the leased Premises to the extent of not less than one hundred
percent (100%) of the full replacement cost of such improvements
using the "all risk" form of protection (or comparable coverage)
as acceptable to CDR. Company will be responsible for insuring
against any rental protection resulting in loss of income or
extra expense to Company.
2.12.2.5 Company will obtain and keep in full force and effect a
policy(s) of general liability on an "occurrence" basis only and
not "claims made." The coverage must be provided either on ISO
Commercial General Liability form, an ISO Broad Form
Comprehensive General Liability form, or equivalent, approved by
CDR and Company. Any exceptions to coverage must be fully
disclosed on the required Certificate. If other than these forms
are submitted as evidence of compliance, complete copies of such
policy forms will be. submitted to CDR within ten (10) days after
notice to Company. Policies must include, but need not be limited
to, coverages for bodily injury, property damage, personal
injury, Broad Form property damage, premises and operations,
severability of interest, products and completed operations,
contractual and independent contractors, with no exclusions of
coverage for liability resulting from the hazards of explosion,
collapse, and underground property damage.
Company will maintain limits of no less than One Million Dollars
($1,000,000) combined single limit per occurrence for bodily
injury (including death), personal injury and property damage.
2.12.2.6 Company will furnish Automobile Liability coverage for claims
for damage because of bodily injury or death of any person, or
property damage arising out of the ownership, maintenance or use
of any motor vehicles whether owned, hired or non-owned.
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Company will maintain limits of no less than One Million Dollars
($1,000,000) combined single limit "per accident" for bodily
injury and property damage.
2.12.2.7 All required insurance coverage as stated in this Section
2.12.2 will be evidenced by a current Certificate(s) of
Insurance. Such Certificates will include, but will not be
limited to, the following:
2.12.2.7.1 All Certificates. for each insurance policy are to be
signed by a person authorized by that insurer and licensed
by the State of Nevada.
2.12.2.7.2 Each insurance company's rating as shown in the latest
Best's Key Rating Guide will be fully disclosed and entered
on the required Certificates of Insurance. If the insurance
company providing the coverage has a Best rating of less
than A-NM, the adequacy of the insurance supplied by Company
(or its contractor), including the rating and financial
health of each insurance company providing coverage, is
subject to the approval by CDR. Such approval will not be
unreasonably withheld.
2.12.2.7.3 Company (or its contractor) will furnish renewal
Certificates for the required insurance during the period of
coverage required by this Agreement_ Company (or its
contractor) will furnish renewal Certificates for the same
minimum coverages as required in this Agreement. If such
certificate(s) are not provided in a timely manner, CDR may
declare Company (or its contractor) in default of its
obligation under this paragraph, subject to the cure rights
contained in Sections 2.15.2 and 2.19 below.
2.12.2.7.4 County, its officers, employees and volunteers must be
covered as additional insureds with respect to liability
arising out of the activities by or on behalf of the named
insured in connection with this Agreement. All property
insurance policies will contain a waiver of subrogation
clause in favor of Xxxxx County.
2.12.2.7.5 Each insurance policy supplied by Company (or its
contractor) must be endorsed to provide that the amount of
coverage afforded to County by the terms of this Agreement
will not be suspended, voided, canceled or reduced in
coverage or in limits except after thirty (30) days' prior
written notice by mail.
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2.12.2.7.6 Any deductible, as it relates to coverage provided
under this Agreement, will be fully disclosed on the
Certificates of Insurance. Any deductible provided will be
reasonable and customary for this type of risk.
2.12.2.7.7 If aggregate limits are imposed on the insurance
coverage, then the amounts of such limits must be not less
than Two Million Dollars ($2,000,000) per occurrence or per
accident. All aggregates must be fully disclosed and the
amount entered on the required certificate of insurance.
Company's insurer must notify CDR of any erosion of the
aggregate limits. The "per occurrence" limits of insurance
required herein must be maintained in full, irrespective of
any erosion of aggregate. A modification of the aggregation
limitation may be permitted if it is deemed necessary and
approved by CDR and Company.
2.12.2.8 If Company fails to maintain any of the insurance coverages
required herein, then County will have the option to declare
Company in breach, subject to the cure rights contained in
Sections 2.15.2 and 2.19 below, or CDR may purchase replacement
insurance or pay the premiums that are due on existing policies
in order that the required coverages may be maintained. Company
is responsible for any expenses paid by County to maintain such
insurance and County may collect the same from Company.
2.12.2.9 The insurance requirements specified herein do not relieve
the Company (or its contractor) of its responsibility or limit
the amount of its liability to the County or other persons and
the Company is encouraged to purchase such additional insurance
as it deems necessary.
2.12.2.10 Company (or its contractor) is responsible for and must
remedy all damage or loss to any property, including property of
County, caused in whole or in part by Company or its contractor,
any subcontractor or anyone employed, directed or supervised by
Company. Company is responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection
with this Agreement.
2.12.2.11 The minimum insurance limits set forth in this Section
2.12.2 are sufficient as of the anticipated Approval Date. It is
understood that due to the effect of inflation and/or other
factors, it may be necessary for County to raise the minimum
insurance limits to protect its interests. Company hereby agrees
to maintain such insurance limits as may be reasonably required
by County under the terms of this Agreement; provided, however,
that any increases
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in limits will not exceed the average increase within the
insurance industry in the State of Nevada for comparable
insurance coverage.
2.13 FIRE PROTECTION
From time to time and as often as reasonably required by County, Company
will conduct appropriate tests of any fire extinguishing apparatus located
on the Premises. Company or its Sublessees will keep in proper functioning
order all fire fighting equipment located on the Premises.
2.14 DAMAGE AND DESTRUCTION
In the event of damage, destruction, or substantial loss which materially
impairs Company's ability to operate or loss to any improvements
constructed upon the Premises, by any cause, which damage, destruction or
loss is not capable of being repaired within sixty (60) days, Company will
have the option to terminate this Agreement- which option will be
exercisable by written notice to County within ninety (90) days after the
occurrence of such event. Any such termination by Company shall require the
prior written consent of any Lender. In the event Company elects to
terminate this Agreement based upon such damage, destruction, or
substantial loss and Company or its employees or agents cause such damage,
destruction or substantial loss to occur, Company will be liable for and
will pay for all cleanup or demolition of the Premises necessary to make
the Premises ready for repair, replacement, restoration or rebuilding which
is not otherwise covered by insurance. In the event Company does not
exercise such option, or in the event said damage, destruction or loss is
capable of being repaired within sixty (60) days, then Company will
promptly repair, replace, restore or rebuild said improvements.
2.15 TERMINATION BY COUNTY
2.15.1 Default by Company
Company will be considered in default as Lessee under this Agreement
in the event of any one or more of the following occurrences:
2.15.1.1 The liquidation under federal bankruptcy statutes which
causes the discontinuance of the fulfillment of any required
provision of this Agreement by Company.
2.15.1.2 Company fails to pay the rental charges or other money
payments required by this Agreement when the same are due and the
continuance of such failure for a period of ten (10) days after
written notice thereof from CDR to Company.
2.15.1.3 Company voluntarily abandons any of the Premises leased or
assigned to it or discontinues the conduct and operation of its
business at the Premises.
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2.15.1.4 Company will be considered in default of this Agreement if
Company fails to fulfill any of the other terms, covenants, or
conditions set forth in this Agreement if such failure continues
for a period of more than thirty (30) days unless cured as
provided below.
2.15.2 Cure
Company will be considered in default of this Agreement if Company
fails to fulfill any of the terms, covenants, or conditions set forth
in this Agreement if such failure continues for a period of more than
thirty (30) days (except failure to pay rental charges as described in
2.15.1.2 above) after delivery by CDR of a written notice of such
breach or default, except if the fulfillment of its obligation
requires activity over a period of time, and Company will have
commenced in good faith to perform whatever may be required for
fulfillment within ten (10) days after receipt of notice and continues
such performance without interruption except for causes beyond its
control.
2.15.3 Termination For Default By Company
Subject to the lender protection provisions of Section 2.19 (entitled
FINANCING) below, if default is made by Company as described in
Section 2.15.1 or 2.15.2 hereinabove, and such default is not cured as
provided in such sections, County may elect to terminate this
Agreement with thirty (30) days' written notice to Company.
2.15.3.1 If County elects to terminate this Agreement, it will in no
way prejudice the right of action for rental arrearages owed by
Company.
2.15.3.2 In the event of any termination for default by Company,
County will have the right to enter upon the Premises and take
possession of same. Redelivery and disposal of improvements will
be as described in Section 2.18 (entitled REDELIVERY AND DISPOSAL
OF IMPROVEMENTS AT TERMINATION) of this Agreement.
2.16 TERMINATION BY COMPANY
2.16.1 Default By County
County will be considered in default as lessor under this Agreement if
County fails to fulfill any of the terms, covenants or conditions set
forth in this Agreement if such failure shall continue for a period of
more than thirty (30) days after delivery by Company of a written
notice of such breach or default.
2.16.2 Cure
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County will not, however, be considered in breach of this Agreement if
the fulfillment of its obligation requires activity over a period of
time and County has commenced in good faith to perform whatever may be
required for fulfillment within ten (10) days after receipt of notice
and continues such performance without interruption except for causes
beyond its control.
2.16.3 Termination For Default By County
If default is made by County as described in Section 2.16.1 above,
Company may elect to terminate this Agreement with thirty (30) days'
written notice to County.
2.16.3.1 In the event of the termination for default by County,
redelivery and disposal of improvements will be as described in
Section 2.18 (entitled REDELIVERY AND DISPOSAL OF IMPROVEMENTS AT
TERMINATION) of this Agreement.
2.16.3.2 In the event of any termination for default by County, it
will in no way prejudice the right of action for rental
arrearages owed by Company.
2.16.3.3 Company reserves the rights to any remedies it may have at
law or in equity arising from County's breach of this Agreement.
2.17 WAIVERS AND ACCEPTANCE OF FEES
2.17.1 No waiver of default by either party hereto of any of the terms,
covenants or conditions hereof to be performed, kept or observed will
be construed to be or act as a waiver of any subsequent default of any
of the terms, covenants, conditions herein contained to be performed,
kept and observed. Neither party hereto may waive any provisions
regarding Lender's rights without such Lender's prior written consent.
2.17.2 No acceptance of fees or other money payments in whole or in part
for any period or periods during or after default of any of the terms,
conditions or covenants to be performed, kept or observed by Company
will be deemed a waiver on the part of County of its right to
terminate this Agreement on account of such default.
2.17.3 Subject to the cure rights contained in Section 2.15.2 above and in
Section 2.19 below, no acceptance of fees or other money payments in
whole or in part for any period or periods during or after default of
any of the terms, conditions or covenants to be performed, kept or
observed by County will be deemed a waiver on the part of Company of
its right to terminate this Agreement on account of such default
2.18 REDELIVERY AND DISPOSAL OF IMPROVEMENTS AT TERMINATION
2.18.1 Company covenants that at the termination of this Agreement,
howsoever caused, it will quit and surrender such leased Premises in
good repair and condition,
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excepting reasonable wear and tear, acts of God, the public enemy or
the action of the elements.
2.18.2 Upon termination of this Agreement howsoever caused, County will
require Company to remove from the leased Premises, within thirty
(30) days of termination, all equipment, trade fixtures and personal
property belonging to Company.
For purposes of this Section 2.18.2, the words "equipment, trade
fixtures and personal property" will include, but not be limited to,
signs (electrical or otherwise) used to advertise or identify
Company's business, all equipment used in connection with the conduct
of its business whether or not such equipment is attached to the
Premises; any other mechanical device; and all other miscellaneous
equipment, furnishings and fixtures installed on or placed on or about
the leased Premises and used in connection with Company's business
thereon.
2.18.3 Upon termination of this Agreement, howsoever caused, County will
have option to require either of the following by giving written
notice prior to the date of termination:
2.18.3.1 Company will, commencing within thirty (30) days following
the termination date, remove all or part (as determined by CDR)
of the permanent improvements made to or placed upon the Premises
by Company. Company agrees that it will use due diligence in
completing the removal as may be required herein.
2.18.3.2 Company will leave in place all or part, as determined by
CDR, of the permanent improvements whereupon title and ownership
will pass from Company and vest in County without any further
consideration required from County. Company agrees that it will
immediately provide any transfers of title to County as may be
required.
2.18.3.3 If no written notice is received by Company from County prior
to termination of this Agreement pursuant to this Section 2.18.3,
Section 2.18.3.2 above will apply.
For purposes of this Section 2.18:3, the words "permanent
improvements" means all property of Company upon the Premises which
will include, but not be limited to, paving, buildings, structures and
related appurtenances, wall coverings, carpeting, draperies and light
fixtures.
2.19 FINANCING
2.19.1 Notwithstanding anything to the contrary contained in this
Agreement, Company will have the right at any time during the term
hereof to execute and deliver to any or all of its Lenders any
documents which will operate as collateral security for
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any Loan or Loans made, even if such document or documents result in a
form or type of conveyance or assignment of the leasehold interest
demised hereunder. It is hereby agreed that Company or any such
Lenders) will have the right to immediately record such document or
document(s) with an appropriate public official or officials. Company
agrees that copies of all such documents of conveyance or assignment
as contained in this Section 2.19 will be provided to CDR forthwith.
Any financing arrangement which hypothecates any interest of Company
in or under this Agreement or any conveyance or-assignment to be made
by Company of any interest in or under this Agreement must have the
prior written approval of CDR which consent shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, Company will have
the right to refinance the outstanding principal balance of any
previously approved Loan with any institutional lender at prevailing
market interest rates without County's consent, provided, in the case
of an existing term loan, such refinancing does not exceed the
remaining original amortization period of the previously approved
Loan. Such approval or consent of the initial or subsequent
assignments to. a Lender or purchaser will be in accordance with
Section 2.1 (entitled ASSIGNMENT) of this Agreement. Any Lender which
will succeed to Company's interest hereunder will so succeed subject
to all the terms and conditions of this Agreement
2.19.2 County will deliver to any such Lender written notice of any default
of Company under the terms of this Agreement and said notice will
specify the nature of the default Before terminating this Agreement,
County will allow such Lender to cure or commence to cure any default
of Company in accordance with Sections 2.15.2 above and this Section
2.19. The time period to cure any default of Company will commence
when said notice is delivered to Lender. Lender and any person
designated by Lender shall have and are hereby granted the right to
enter upon the Premises at any time and from time to time for the
purpose of taking any cure action as described herein. In the event
Company fails to timely cure a default after receipt of written notice
and expiration of any applicable cure period, County agrees to provide
any Lender with a second written notice and provide such Lender with
an additional thirty (30) day cure period. County will not have the
right to exercise any remedies under this Agreement so long as Lender
is diligently prosecuting to complete a cure of any default. If such
default is of a nature which is incapable of being cured by Lender,
County agrees not to exercise its remedies arising from such default
if (a) Lender notifies County in writing within such thirty (30) day
cure period that Lender intends to foreclose its mortgage and Lender
commences and diligently pursues such foreclosure; and (b) Lender
makes all payments due by Company under this Agreement through the
date of foreclosure, to the extent the amount of such payments can be
ascertained by-Len
2.19.3 Any default by Company in the payment of money as required under the
terms of this Agreement may be cured by Lender in accordance with the
terms of Sections 2.15.2 of this Agreement (and subject to the
notification and cure provisions of this Section 2.19), and County
will accept any such payment or cure from such Lender during the term
of Lender's Loan to Company.
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2.19.3.1 Should Company default under the terms of this Agreement and
should the default be such that it cannot be cured by the payment
of money, County will accept payments of rent from such Lender
and this Agreement will not terminate, but will remain in full
force and effect, pending Lender's cure of such default within
the time periods described herein or resort to foreclosure or
sale proceedings under its deed of trust or other security
instruments.
2.19.4 Notwithstanding the provisions of Section 2.19.3:1 above, should
Company default under the terms of this Agreement and should the
default be such that it cannot be cured by the payment of money and
the default (in the sole judgment of County's Designated
Representative) affects the security or safety of the Premises and if
Company's Lender does not wish this Agreement to terminate, then upon
written notice from County such Lender will have the option to cure
immediately or to commence to cure the default in accordance with
Section 2.15.2 of this Agreement. However, if the nature of the
default requires action before the cure time specified in Section
2.15.2 above, the County's Designated Representative may elect to cure
the default County will then present for payment to Company and Lender
a detailed and itemized invoice of County's reasonable expenses
incurred in curing the default.
2.19.5 Subject to the rights of a Lender as otherwise set forth in this
Section 2.19 (including, without limitation, those contained in
Section 2.19.13 below), and notwithstanding any other provisions of
this Agreement, provided that either Company or Lender pays the full
amount of the invoice described in Section 2.19.4 above within thirty
(30) days following receipt, this Agreement will not terminate sooner
than one (1) year from the date of County's notice of default to
Company and Lender, pending such Lender's resort to any foreclosure or
sale proceedings under its deed of trust or other security instrument.
2.19.6 If any default has been cured by a Lender or Assignee, County agrees
that upon completion of any foreclosure proceedings or sale under the
deed of trust or other security securing the Loan, or upon delivery of
a deed in lieu of foreclosure, Lender or Assignee at such sale or any
heir, successor, or Assignee subsequent to such sale will be
recognized by County as the lessee under the terms of this Agreement
for all purposes for the remaining term hereof, subject to County's
approval of such Assignee, to the extent such approval is required in
Section 2.19.11.1 below. The leasehold interest of Lender or such
Assignee will not be adversely affected or terminated by reason of any
non-monetary default occurring prior to the completion of such
proceedings or sale, provided such default has been promptly remedied,
or if such default requires possession to cure, provided such Lender
promptly commences to cure upon taking possession of the Premises.
2.19.7 Such Lender will not become personally liable under the terms and
obligations of this Agreement unless and until it assumes the
obligations and is recognized by County as lessee under this Agreement
and will be liable only so long as such
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Lender maintains ownership of the leasehold interest or estate and
recourse to such Lender shall be limited solely to Lender's interest
in the Premises.
2.19.8 Within thirty (30) days after a written request by Company or any
Lender (but not more than once in any calendar year, except in case of
a proposed financing or refinancing), County, through its Designated
Representative, will execute, acknowledge and deliver to Company or
such person or entity as Company designates, a certificate stating:
a. that this Agreement is the only agreement between County and
Company concerning the teased Premises and is unmodified and in
full force and effect in accordance with the terms (or if there
have been modifications, that this Agreement is in force and
effect as modified, and identifying the modification agreements,
or if this Agreement is not in full force and effect, that it is
not);
b. the commencement and expiration dates of this Agreement and the
date to which rental has been paid to County under this
Agreement;
c. whether or not there is an existing default by Company in the
payment of rental or any other sum of money under this Agreement,
and whether or not there is any other existing default by either
party under this Agreement with respect to which a notice of
default has been served, and if there is such a default
specifying its nature and extent;
d. whether or not there are any set-offs, defenses or counterclaims
against enforcement of the obligations to be performed by County
under this Agreement; and
e. such other information that a Lender or Assignee may reasonably
require.
2.19.9 The bankruptcy or insolvency of Company will not operate or permit
County to terminate this Agreement as long as all rent or other
monetary payments required to be paid by Company continue and other
required obligations are performed in accordance with the terms of
this Agreement. In the event that County or Company terminates this
Agreement, whether as a result of the rejection of this Agreement
pursuant to the federal Bankruptcy Code or otherwise, then, provided
that Lender has cured any monetary defaults under this Agreement, and
provided further that County has not elected to assume any approved
financing, as provided in Section 2.19.11 below, Lender shall have the
right within thirty (30) days after termination of this Agreement to
request and County shall execute a new lease covering the Premises for
the remaining term under same terms and conditions as set forth
herein.
2.19.9.1 The rejection of this Agreement by a trustee-in-bankruptcy of
County shall not affect or impair the lien of any mortgage or
deed of trust in favor of Lender or Lender's rights with respect
to this Agreement. In addition to the leasehold estate created
hereunder in
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favor of Company and all other interest specified in any mortgage
or deed of trust in favor of Lender, the lien of such mortgage or
deed of trust shall attach to, and shall encumber Company's right
to use and possession of the Premises if a trustee-in-bankruptcy
of. County rejects this Agreement This Agreement shall not be
treated as terminated by reason of County's rejection of this
Agreement pursuant to Subsection 365(h)(I) of the federal
Bankruptcy Code without Lender's prior written consent, and any
such purported termination without Lender's prior written consent
shall be null and void and of no force and effect.
2.19.10 To the extent any of the other terms of this Agreement are
inconsistent with the terms of this Section 2.19, this Section 2.19
will control.
2.19.11 Any uncured material default by Company under any approved
financing will be deemed a default under this Agreement. Such default,
however, will be deemed and treated by County as a default not curable
by Lender in accordance with Section 2.19.2 of this Agreement. In the
event of any default by Company under any approved financing, County
reserves the right to assume the financing obligations of Company
under the Loan before Lender resorts to any foreclosure or sale
proceedings under its deed of trust or other security instrument.
2.19.11.1 Following any foreclosure, deed in lieu of foreclosure, or
other transfer in full. or partial satisfaction of Lender's Loan
(a "Foreclosure Transfer"), County shall recognize Lender or any
Lender Affiliate (defined below) designated by Lender as an
Assignee ("Permitted Assignee")_ Such Permitted Assignee shall be
the ground lessee under this Agreement without further consent or
approval by County. In the event of a proposed assignment to an
Assignee other than a Permitted Assignee, whether in connection
with a Foreclosure Transfer or any subsequent assignment of the
leasehold interest evidenced by this Agreement made by Lender or
its Permitted Assignee (who shall have obtained such interest
through a Foreclosure Transfer), County shall have the right to
reasonably approve such Assignee as provided in Section 2.1.1
above. As used in this Section 2.19.11.1, "Lender Affiliate"
means a corporation, limited liability company or other entity
which controls, is owned or controlled by, or is under common
ownership or control with such Lender and such Lender has a net
worth of at least Twenty Million Dollars ($20,000,000).
2.19.11.2 In the event Lender gives County forty-five (45) days notice
of a default by Company under any approved Loan and County
declines the right to assume the financing obligations of Company
under the Loan, the parties agree that Lender or any Lender
Affiliate will be permitted to consider the total unpaid balance
of
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the existing Loan on the date of either (a) Lender's assumption
of the lease or assignment to a Lender Affiliate through
foreclosure sale, or (b) if through a deed or assignment in lieu
of foreclosure, on the date of the recording of such deed, as an
equity contribution to be repaid from all available Net Revenue
with interest at the same rate set forth in Section 1.7.1.2 above
(11% per annum) until such time as the total unpaid balance of
such Loan is fully recovered by such Lender or Lender Affiliate.
Any subsequent third-party Assignee of any such Lender's or
Lender Affiliate's ground leasehold interest in the Premises will
be permitted to consider its initial acquisition price (net of
any debt secured by the ground leasehold interest in the
Premises) as an equity contribution to be repaid from all
available Net Revenue with interest at a rate equal to an
interest rate typical for comparable loans in this market until
such time as such Assignee's total acquisition price is fully
recovered. Notwithstanding the above, if any Lender or Lender
Affiliate or any third-party Assignee makes an equity
contribution to the Project, then such equity contribution will
be entitled to receive the same repayment priority from Net
Revenue with interest at the same rate provided to those equity
contributions described in Section 1.7. 12 above.
2.19.11.3 Subject to County's right to assume the financing
obligations of Company under the Loan, before Lender resorts to
any foreclosure or sale under this Section, in the event of a
default under Lender's mortgage or deed of trust, Lender or
Lender Affiliate shall have the right, after giving notice to
County, to oust Company and take possession of the Premises in
accordance with the terms of Lender's mortgage or deed of trust.
Such ouster shall not constitute a termination of this Agreement,
but shall be deemed an exercise of the assignment of this
Agreement to Lender, which assignment shall not require any
further consent or approval by County.
2.19.11.4 Notwithstanding the above provisions of this Section 2.19.
(entitled FINANCING) to the contrary, the following shall apply:
(1) In the event any Lender forecloses and either a purchaser at
the foreclosure sale or a subsequent assignee of such Lender
acquires the leasehold estate under this Agreement, then, subject
to any right by County to approve such purchaser or Assignee as
provided in this Agreement, such purchaser or Assignee shall pay
the same rental amount that would have been payable by Lender;
(2) any Lender shall have the right to commence, but not complete
foreclosure during the forty-five. (45)-day period available to
County to notify Lender that County shall assume the Loan (as
provided in Section 2.19.11.2 above); and (3) if County assumes
the Loan, County shall not take or permit any action to terminate
this Lease or merge the ground leasehold estate into the fee
estate
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prior to payment of all obligations owing in connection with the
Loan. For purposes of this Section, "ground leasehold estate"
shall mean the leasehold estate granted to Company by County
pursuant to this Agreement
2.19.12 Any mortgage, lien, encumbrance or deed of trust placed by County
on the fee title to the Premises shall be subordinate to this
Agreement (and any replacement to or amendment of this Agreement), any
mortgage or deed of trust encumbering the leasehold estate in favor of
Lender, and all Subleases, whenever arising. County shall obligate the
holder of any such fee mortgage, encumbrance, or deed of trust to
execute and acknowledge any documentation requested by Company or any
Lender to confirm such subordination.
2.19.13 In connection with Lender's cure rights in this Section 2.19, any
Lender shall be allowed sufficient time necessary to complete any
foreclosure action, including delays due to official restraint
(including by law, process or injunction issued by a court), so long
as such Lender is making payments required by this Agreement which can
be reasonably determined prior to acquiring the Company's interest
under this Agreement. Lender shall have the right to terminate
foreclosure proceedings at any time if Company has cured all defaults
under any Loan from Lender.
2.19.14 So long as the mortgage or deed of trust in favor of a Lender is in
effect, there shall be no merger of the leasehold estate created by
this Agreement into the fee simple estate in the Premises without the
prior written consent of such Lender.
2.19.15 Any Lender shall have the right to participate in any settlement or
adjustment of losses under insurance policies maintained by Company
under this Agreement. Such Lender shall be named as a loss payee or
additional insured, as applicable, in accordance with any Loan
documents executed by Company, under the insurance policies required
under this Agreement. In the event any proceeds of such insurance
policies are to be distributed, County and Lender agree to be bound by
the provisions of the Loan documents executed by Company in favor of
Lender and approved by CDR concerning distribution of insurance
proceeds.
2.19.16 Whenever in this Agreement, Company shall have the right to request
any information, statements, documents, or anything else whatsoever
from County, Lender shall have the right to request the same from
County, and such information, statements, documents and other
requested material shall thereafter be given to Lender as if Lender
had requested the same. In addition, County shall furnish Lender with
copies of all notices of default and notices of intent served on
Company under this Agreement concurrently with any delivery to
Company. Such notices shall not be deemed delivered to Company until
they are delivered to Lender.
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2.19.17 In the event Lender succeeds. to title to Company's leasehold
estate through foreclosure or otherwise, all Subleases of the Premises
shall run directly to Lender and all such Sublessees shall attorn and
be permitted to attorn to Lender as the successor sublessor and
perform their obligations to Lender as successor to Company under this
Agreement as if the Sublease were executed directly between Lender and
the Sublessee. Provided County has elected not to assume the financing
obligations of Company under the Loan as provided in Section 2.19.11
of this Agreement, County hereby agrees to subordinate County's own
attornment rights with respect to any such Sublessee contained in this
Agreement to the attornment rights of Lender.
2.19.18 County agrees to notify Lender and Company of any assignment,
transfer, conveyance or sale of County's interest in this Agreement
and/or the fee interest in the Premises and will furnish Lender and
Company with the name and address of such assignee, transferee,
grantee or buyer.
2.19.19 Lender shall have the right to participate in any arbitration
proceedings in connection with any matter under this Agreement
materially affecting Lender's interest. Notwithstanding the foregoing,
Lender shall not have the right to participate in any arbitration
related to a proposed annual operating budget (as provided in Section
1.6 above).
2.20 RECOVERY OF PREMISES
2.20.1 County may, in its unlimited discretion, at any time during the term
of this Agreement or any extensions thereof, recover all or any part
of the Premises for other Airport or public uses (except for
commercial facilities purposes). Prior to the exercise of this power
of recovery, County agrees to give Company one (I) year's prior
written notice of its intention to exercise this power.
2.20.1.1 In the event of such recovery of the Premises by County (or
other condemnation or recovery of all or substantially all of the
Premises) during the first thirty (30) years of this Agreement,
County will pay to Company an amount equal to the greater of
either (i) all amounts outstanding under any Loan or under Loan
documents approved by County pursuant to Section 2.19 above,- or
(ii) the sum of all unreimbursed equity contribution and related
interest due to Company plus fifty percent (50%) of the value of
the improvements (excluding land, Company unreimbursed equity,
the existing approved Loan balance, if any, and any amounts paid
by County pursuant to Section. 2.20.1.1.1 below) as determined by
a competent real estate appraiser acceptable to Company and CDR.
2.20.1.1.1 Upon notice from Company, or, in the event of a total
recovery, upon notice from Company's Lender, County will pay
to Company's Lender all sums due to Lender under the
approved Loan documents evidencing and
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securing the Loan secured by the improvements on the
Premises. Notwithstanding and in replacement of the
foregoing, if Lender or approved Assignee of Lender has
succeeded to the interest of Company, and the outstanding
Loan has been repaid, County shall pay Lender the amount
which was due Lender on the date of foreclosure or transfer
of title (or to such approved Assignee the amount Assignee
paid Lender to assume this Agreement), and an amount equal
to any costs incurred by Lender or such Assignee to cure
Company's defaults under this Agreement or to otherwise
comply with Company's obligations under this Agreement, less
any amount of equity contributions or accrued interest (in
accordance with Section 2.19.11.2 above) that has previously
been repaid from Total Revenue.
2.20.1.2 In the event of such recovery of the Premises by County (or
any other condemnation or recovery of all or substantially all of
the Premises) during the last twenty (20) years of this
Agreement, County will pay to Company fifty percent (50%) of the
residual leasehold value of the improvements on the Premises
based on the remaining term of this Agreement, minus any
outstanding Loan balance. Such leasehold value shall exclude the
value of the land after deducting any amounts paid by County
pursuant to Section 2.20.1.2.1 below. The residual leasehold
value will be as determined by. a competent real estate
appraiser acceptable to Company and CDR.
2.20.1.2.1 Upon notice from Company or, in the event of a total
recovery, upon notice from Company's Lender, County will pay
to Company's Lender all sums due to Lender under the
approved Loan documents evidencing and securing the Loan,
and any subsequent financing that has been approved by CDR
secured by the improvements on the Premises. Notwithstanding
the foregoing, if Lender or approved Assignee of Lender has
succeeded to the interest of Company, and the outstanding
Loan has been repaid, County shall pay Lender the amount
which was due Lender on the date of foreclosure or transfer
of title (or to such approved Assignee the amount Assignee
paid Lender to assume this Agreement), and an amount equal
to any costs incurred by Lender or such Assignee to cure
Company's defaults under this Agreement or to otherwise
comply with Company's obligations under this Agreement, less
any amount or equity contributions or accrued interest (in
accordance with Section 2.19.11.2 above) that has previously
been repaid from Total Revenue to Lender or its assigns.
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2.20.1.3 County will have no obligation for any encumbrance of the
improvements, which has not received County written approval' as
defined in Section 2.19 (entitled FINANCING) above.
2.20.1.4 In the event of any partial condemnation or recovery by any
agency other than County, or in the event of any such
condemnation or recovery, Company will be entitled to file an
action to receive condemnation proceeds for recovery of its
leasehold improvements and its leasehold interest.
2.20.1.5 In the event of a partial condemnation or recovery by another
agency, this Agreement shall remain in full force and effect as
to the portion of the Premises remaining.
On a partial recovery, all sums, including damages and
interest, awarded for the fee or the leasehold or both shall
(i) be delivered to County and Company (or to any Lender),
respectively, if such award has been apportioned between
County and Company by such condemning authority, or (ii) be
deposited promptly with an escrow agent selected by Company
in the reasonable exercise of its discretion if there is
only a single award, to be distributed and disbursed as
follows:
a. First, to taxes constituting a superior lien on the
portion of the Premises taken;
b. Second, to County an amount equal to the then present
value of County's interest in the income stream from
rental payments attributable to the portion of the
Premises being taken, measured by the diminution in
rental payments, plus an amount equal to the then
present value of the reversionary interest of County at
the expiration of this Agreement in that portion of the
real property underlying the Premises that is taken in
such partial recovery; and
c. Third, subject to the rights of any Lender of record,
the balance of the award to Company.
Sums being held by an approved escrow agent pending
disbursement shall be deposited in one or more federally
insured interest-bearing account(s) and, upon disbursement,
each party having aright to any of the sums being disbursed
shall be entitled to receive the interest attributable to
its share of said sums.
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2.20.1.6 Notwithstanding any language to the contrary in this Section
2.20, in the event of partial taking of the Premises by
condemnation, if, in the opinion of County, Company, and Lender,
the remainder of the Premises are suitable for continued
operation, this Lease shall not terminate in regard to the
portion not taken. In the event of a partial or total taking of
the Premises by condemnation, County and Company agree (a) to be
bound by the provisions of the Loan documents executed by Company
in favor of Lender concerning condemnation process and proceeds,
including the right of Lender to recover from such condemnation
proceeds an amount up to the then unpaid balance of its Loan, and
(b) that Lender shall have the right to participate in any
condemnation proceedings as set forth in this Section 2.20 or as
otherwise provided by law.
ARTICLE III
3.1 MAINTENANCE AND OPERATION NONDISCRIMINATION COMPLIANCE
Company, for itself, its heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that in the event
facilities are constructed, maintained, or otherwise operated on the said
property described in this Agreement for a purpose for which a U.S.
Department of Transportation program or activity is extended or for_
another purpose involving the provision of similar services or benefits,
Company will maintain and operate such facilities and services in
compliance with all other requirements imposed pursuant to 49 CFR Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation and as said Regulation may be amended.
3.2 NONDISCRIMINATION IN PARTICIPATION, CONSTRUCTION AND USE OF PREMISES
Company, for itself, its personal representatives, successors in interest
and assigns and as a part of the consideration hereof, does hereby covenant
and agree as a covenant running with the land that:
3.2.1 No person on the grounds of race, color, or national origin will be
excluded from participation in, denied the. benefits of, or be
otherwise subjected to discrimination in the use of said facilities.
3.2.2 That in the construction of any improvements on, over, or under such
land and the furnishing of services thereon, no person on the grounds
of race, color or national origin will be excluded from participation
in, denied the benefits of, or otherwise be subject to discrimination.
3.2.3 That Company will use the Premises in compliance with all other
requirements imposed by or pursuant to 49 CFR. Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation and as said Regulations may be amended.
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3.3 TERMINATION RIGHTS FOR BREACH OF SECTIONS 3.1 AND 3.2 ABOVE
In the event of breach of any of the nondiscrimination covenants described
in Sections 3.1 and 3.2 above, County will have the right to terminate this
Agreement and to reenter and repossess this land and the facilities
thereon, and hold the same as if this Agreement had never been made or
issued. This provision, however, does not become effective until the
procedures of 49 CFR Part 21 are followed and completed including
expiration of appeal rights. Promptly upon the receipt of any complaint or
other notice alleging violation of the covenants in Sections 3.1 and 3.2
above, County will notify Company and will provide Company the opportunity
to defend the same. Unless disapproved by the U.S. Department of
Transportation, any such termination and reentry rights shall not be
exercised by County so long as the current Lender elects to exercise its
rights and remedies and acquire Company's interest under this Agreement
Such Lender will not be required to cure any breach by Company of any
covenants in Sections 3.1 through 3.5 of this Agreement, provided, however,
such Lender shall be obligated to comply with such Sections upon any
acquisition of Company's interest under this Agreement.
3.4 NONDISCRIMINATION IN FURNISHING ACCOMMODATIONS AND/OR SERVICES
Company will furnish its accommodations and/or services on a fair, equal
and not unjustly discriminatory basis to all users thereof and it will
charge fair, reasonable and not unjustly discriminatory prices for each
unit or service; provided that Company may be allowed to make reasonable
and nondiscriminatory discounts, rebates or other similar type of price
reductions to volume purchasers.
3.5 RIGHTS FOR NONCOMPLIANCE WITH SECTION 3.4
Noncompliance with Section 3.4 above will constitute a material breach of
this Agreement and in the event of such noncompliance, County will have the
right to terminate this Agreement and the estate hereby created without
liability therefor or at the election of County or the United States of
America either or both said Governments will have the right to judicially
enforce the provision. Unless disapproved by the U.S. Department of
Transportation, any such termination and reentry rights shall not be
exercised by County so long as the current Lender elects to exercise its
rights and remedies and acquire the Company's interest under this
Agreement. Such Lender will not be required to cure any breach by Company
of any covenants in Section 3.4 above, provided, however, such Lender shall
be obligated to comply with such Sections upon any acquisition of Company's
interest under this Agreement.
3.6 COMPANY'S OBLIGATION 49 CFR PART 26, SUBPART F
3.6.1 This Agreement is subject to the requirements of the U.S. Department
of Transportation's regulations, 49 C H Part 26, Subpart F. Company
agrees that it will not discriminate against any business owner
because of the owner's race, color, national origin or sex in
connection with the award or performance of any agreement covered by
49 CFR Part 26, Subpart F.
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3.6.2 Company agrees to include the language in Sections 3.1 through 3.6.1
above in any subsequent Sublease, professional services and/or
construction agreements that it enters and cause those businesses to
similarly include the statements in further agreements; provided
however, that the foregoing is neither intended to nor shall require
any Sublessee to include any such provisions in any contracts or
agreements relative to the operations of its business. Such inclusion
may be made by way of reference to such sections (as opposed to
restatement of such sections in any such agreement).
3.7 SUBAGREEMENT NONDISCRIMINATION COMPLIANCE
Company hereby assures it will include Sections 3.1 through 3.6.1 above in
all Subleases and cause Sublessees to similarly include such sections in
further Subleases; provided however, that the foregoing is neither intended
to nor shall require any Sublessee to include any such provisions in any
contracts or agreements relative to the operations of its business. Such
inclusion may be made by way of reference to such sections (as opposed to
restatement of such sections in any such Sublease).
3.8 COMPANY OBLIGATION
Company hereby assures that no person shall be excluded from participation
in, denied the benefits of or otherwise be discriminated against in
connection with the award and performance of any contract, including
leases, covered by 49 CFR Part 26 on the grounds of race, color, national
origin or sex.
3.9 APPENDIX 9, GENERAL CIVIL RIGHTS PROVISION
Company assures that it will comply with pertinent statutes, Executive
Orders and such rules as are promulgated to assure that no person shall, on
the grounds of race, creed, color, national origin, sex, age or handicap be
excluded from participating in any activity conducted with or benefiting
from Federal assistance. This provision obligates Company or its transferee
for the period during which Federal assistance is extended to the Airport
program, except where Federal assistance is to provide, or is in the form
of, personal property or real property or interest therein or structures or
improvements thereon. In these cases, this provision obligates the party or
any transferee for the longer of the following periods: (a) the period
during which the property is used by the sponsor or any transferee for a
purpose for which Federal assistance is extended, or for another purpose
involving the provision of similar services or benefits; or (b) the period
during which the Airport sponsor or any transferee retains ownership or
possession of the property. In the case of contractors, this provision
binds the contractors from the bid solicitation period through the
completion of the contract Compliance with the Americans With Disabilities
Act, 42 U.S.C. Section 12101, et seq., as amended, by Company, shall be
considered compliance with Company's duty to assure that no person shall,
on the grounds of handicap be excluded from participating in any activity
conducted with or benefiting from Federal assistance.
3.10 AFFIRMATIVE ACTION EMPLOYMENT PROGRAMS
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3.10.1 Company assures that it will undertake an Affirmative Action Program
as required by 14 C.1-R. Part 152, Subpart E, to ensure that no person
shall on the grounds of race, creed, color, national origin, or sex,
be excluded from participating in any employment activities covered in
14 CFR Part 152, Subpart E. Company assures that no person will be
excluded on these grounds from participating in or receiving the
services or benefits of any program or activity covered by this
subpart. Company assures that it will require that its covered
sub-organizations provide assurances to Company that they similarly
will undertake Affirmative Action Programs and that they will require
assurances from their sub-organizations, as required by 14 CFR Part
152, Subpart E to the same effect.
3.10.2 Company agrees to comply with any affirmative action plan or steps
for equal employment opportunity required by 14 CFR Part 152, Subpart
E, as part of the Affirmative Action Program, and by any Federal,
State, or local agency or court, including those resulting from a
conciliation agreement, a consent decree, court order or similar
mechanism. Company agrees that State or local affirmative action plans
will be used in lieu of any affirmative action plan or steps required
by 14 CFR Part 152, Subpart E, only when they fully meet the standards
set forth in 14 CFR, Subpart 152.409. Company agrees to obtain a
similar assurance from its covered organizations, and to cause them
to require a similar assurance of their covered sub-organizations, as
required by 14 CFR Part 152, Subpart E.
3.10.3 In the event Company employs fifty (50) or more employees on the
Airport, it agrees to prepare and keep on file for review by the FAA
Office of Civil Rights, an affirmative action plan developed in
accordance with standards in 14 CFR, Subpart 152.409. Such program
will be updated on an annual basis. Should Company employ less than
fifty (50) employees on the Airport, it will annually send written
correspondence confirming the exemption.
3.10.4 This Section 3.10 is not intended to apply to any Sublessee of
Company.
3.11 AIRPORT MAINTENANCE, REPAIR, DEVELOPMENT AND EXPANSION
County reserves the right to further develop or improve the landing area or
any other area, building or other improvement within the present or future
boundaries of the Airport as it sees fit in its sole judgment regardless of
the desires or view of Company and without interference or hindrance by
Company. Further, County retains the absolute right to maintain, repair,
develop and expand the terminal building, any other Airport facility,
Airport improvement or Airport property free from any and all liability to
Company for loss of business or damage of any nature whatsoever as may be
occasioned during or because of the performance of such maintenance,
repair, development or expansion.
3.12 MAINTENANCE, REPAIR, DIRECTION AND CONTROL
County reserves the right, but is not obligated to exercise the right, to
maintain and keep in repair the landing area of the Airport and all
publicly owned facilities of the Airport, together with the right to direct
and control all activities of Company in this regard. These
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areas will include, but are not limited to, those areas which are not
necessary to serve the aeronautical users of the Airport, except that
County will not be obligated to maintain and keep in repair such areas of
the Airport as may be leased to or under the control of Airport tenants
whether such area serves aeronautical users or otherwise.
3.13 AGREEMENTS WITH THE UNITED STATES OF AMERICA
This Agreement will be subject and subordinate to the provisions and
requirements of any existing or future agreement between County and the
United States of America relative to the development, operation or
maintenance of the Airport. Notwithstanding the foregoing, County agrees
that no existing agreements between County and the United States of America
relating to the same (i) currently prohibit or materially affect the use
and/or operation of the Premises as contemplated under this Agreement, or
(ii) defeat the lien of the mortgage or deed of trust in favor of a Lender
and/or the leasehold estate in favor of Company created by this Agreement.
Should any future agreements between County and the United States of
America materially impair the use of the Premises or Lender's interest
therein, such agreements shall be considered an action to recover the
Premises under Section 220 above.
3.14 OPERATION OF AIRPORT BY THE UNITED STATES OF AMERICA
This Agreement and all the provisions hereof will be subject to whatever
right the United States of America now has or in the future may have or
acquire, affecting the control, operation, regulation and taking over of
the Airport or the exclusive or nonexclusive use of the Airport by the
United States during the time of war or national emergency.
3.15 PART 77 OF FEDERAL AVIATION REGULATIONS
Company agrees to comply with the notification and review requirements
covered in Part 77 of the Federal Aviation Regulations in the event future
construction of a building is planned for the Premises, or in the event of
any planned modification or alteration of any present or future building or
structure situated on the Premises.
3.16 NONEXCLUSIVE
It is understood and agreed that nothing herein contained will be construed
to grant or authorize the granting of an exclusive right within the meaning
of 49 U.S.C. Section 40103(e) (formerly known as Section 308 of the Federal
Aviation Act of 1958 (49 U.S. C. Section 1349a)).
3.17 AIRSPACE
There is hereby reserved to County, its successors and assigns, for the use
and benefit of the public, a right of flight for the passage of Aircraft in
the airspace above the surface of the Premises herein leased. This public
right of flight will include the right to cause or allow in said airspace,
any noise inherent in the operation of any Aircraft used for navigation or
flight through the said airspace or landing at, taking off from or
operation
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on the Airport. No liability on the part of County will result from the
exercise of this right.
3.18 AIRPORT OBSTRUCTIONS
Company by accepting this Agreement expressly agrees for itself, its
successors and assigns, that it will not erect nor permit the erection of
any structure or object nor permit the growth of any tree on the land
leased hereunder which will exceed such maximum height as may be stipulated
by County. It is understood and agreed that applicable laws, codes,
regulations or agreements concerning height restrictions will govern the
maximum height to be stipulated by County. In the event the aforesaid
covenants are breached, County reserves the right to enter upon the land
leased hereunder and to remove the offending structure or object and cut
down the offending tree all of which will be at the expense of Company and
without liability to County.
3.19 AIRPORT HAZARDS
Company by accepting this Agreement agrees for. itself, its successors and
assigns, that it will not make use of the Premises in any manner which
might interfere with the landing and taking off of Aircraft from the
Airport or otherwise constitute a hazard or obstruction. In the event the
aforesaid covenant is breached, County reserves the right to enter upon the
Premises hereby leased and cause the abatement of such interference at the
expense of Company and without liability of any kind.
3.20 AIRPORT RULES AND REGULATIONS AND AIRPORT OPERATING DIRECTIVES
County, through its Designated Representative, will have the right to
adopt, amend and enforce reasonable rules and regulations and operating
directives with respect to use of and the conduct and operation of the
Airport, its terminal buildings or any improvements within the present or
future boundaries of the Airport which Company agrees to observe and obey.
3.21 COMPLIANCE WITH PUBLIC AUTHORITIES
3.21.1 Company will not use or permit the use of the demised Premises or
any other portion of the Airport for any purpose or use other than
authorized by this Agreement or as may be authorized by other,
separate; written agreement with County.
3.21.2 Company, its employees, representatives or agents will comply with
all present or future laws, rules and regulations and amendments or
supplements thereto governing or related to the use of the Airport or
the demised Premises as may from time to time be promulgated by
Federal, State or local governments and their authorized agencies.
3.22 ENVIRONMENTAL POLICY
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3.22.1 Violation Of Environmental Laws
Company will not cause or permit any hazardous material to be used,
generated, manufactured, produced, stored; brought upon, transported
to or from, or otherwise released on, under or about the Premises or
transported to and from the Premises by Company, its Sublessees, their
agents, employees, contractors, invitees, or a third party in
violation of the Environmental Laws as defined in Section 1.1
(entitled DEFINITIONS) above.
3.22.1.1 CDR will have access to the Premises to inspect same to
insure that Company is using the Premises in accordance with
environmental requirements.
3.22.1.2 3Company, at CDR's reasonable request, at Company's expense,
will conduct such testing and analysis as necessary to ascertain
whether Company is using the Premises in compliance with
environmental requirements_ Any such tests will be conducted by
qualified independent experts chosen by Company and subject to
CDR's reasonable written approval. Copies of such reports from
any such testing will be provided to CDR.
3.22.1.3 Company will provide copies of all notices, reports, claims,
demands or actions concerning any' environmental concern or
release or threatened release of hazardous materials or special
wastes to the environment.
3.22.2 Contamination Of Premises
If the presence of any Hazardous Material on, under or about - the
Premises caused or permitted by Company results in any contamination
of the Premises, in violation of an Environmental Law, Company will
promptly take all actions, at its sole cost and expense, as are
necessary to return the Premises to the condition existing prior to
the introduction of any such Hazardous Material to the Premises.
Company will take all steps necessary to remedy and remove any such
hazardous materials and special wastes and any other environmental
contamination as is presently or subsequently discovered on or under
the Premises as are necessary to protect the public health and safety
and the environment from actual or potential harm and to bring the
Premises into compliance with all environmental requirements;
provided, however, County will be solely responsible for any
environmental condition existing on or about the Premises prior to the
Approval Date or any environmental conditions caused by County during
the term or arising in any way and at any time from the Airport, Such
procedures are subject to:
3.22.2.1 Prior written approval of CDR, which approval will not be
unreasonably withheld. Company will submit to CDR a written plan
for completing all remediation work. CDR retains the right to
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review and inspect all such work at any time using consultants
and/or representatives of his/her choice.
3.22.2.2 Such actions of remediation by Company will not potentially
have any material adverse long-term effect on the Premises in the
reasonable judgment of CDR.
3.22.3 Compliance With All Governmental Authorities
Company will promptly make all submission to, provide all information
to, and comply with all requirements of the appropriate governmental
authority under. all Environmental Laws as defined in Section 1.1
(entitled DEFINITIONS) of this Agreement.
3.22.3.1 Should the Government determine that a site characterization,
site assessment, and/or cleanup plan be prepared or that a
cleanup should be undertaken because of any spills or discharges
of hazardous materials at the Premises which occur during the
term of this Agreement then. Company shall prepare and submit
required plans and financial assurances, and carry out the
approved plans. Company will promptly provide all information
requested by CDR to determine the applicability of the
Environmental Laws to the Premises, or to respond to any
governmental investigation or to respond to any claim of
liability by third parties which is related to environmental
contamination.
3.22.3.2 Company's obligations and liabilities under this provision
will continue so long as County bears any responsibility under
the Environmental Laws for any action that occurred on the
Premises during the term of this Agreement.
3.22.3.3 This indemnification of County by Company includes, without
limitation, costs incurred in connection with any investigation
of site conditions or any cleanup, remedial, removal,
restoration, any fines or penalties issued to Company, or any
other work required by any Federal, State or local governmental
agency or political subdivision because of hazardous material
located on the Premises or present in the soil or ground water
on, under or about the Premises.
3.22.3.4 The parties agree that County's right to enforce Company's
promise to indemnify is not an adequate remedy at law for
Company's violation of any provision of this Agreement. County
will also have the rights set forth in Section 3.22.4 (entitled
County's Termination Rights for Violation of Environmental Laws),
or Section 2.15 (entitled TERMINATION BY COUNTY)
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of this Agreement, in addition to all other rights and remedies
provided by law or otherwise provided in this Agreement.
3.22.4 County's Termination Rights for Violation of Environmental Laws
3.22.4.1 Company's failure or its Sublessees, their agents, employees,
contractors, invitees, or the failure of a third party to comply
with any of the remediation requirements of this Agreement or
applicable Environmental Laws will constitute a material default
under this Agreement and will permit County to pursue the
following remedies, in addition to all other rights and remedies
provided by law or otherwise provided in this Agreement, to which
County may resort cumulatively, or singularly, in the
alternative:
3.22.4.1.1 County may, at County's election, keep this Agreement in
effect and enforce all of its rights and remedies under this
Agreement, including (i) the right to recover rent and other sums
as they become due by the appropriate legal action and/or (ii)
the right, upon ten (10) days' written notice to Company, to make
payments required of Company or perform Company's obligations
and, be reimbursed by Company for the cost thereof, unless such
payment is made or obligation performed by Company within such
ten (10) day period.
3.22.4.1.2 County may, at County's election, subject to Lender's right
to cure as provided in Section 2.19 (entitled FINANCING) above,
terminate this Agreement upon written notice to Company as
provided in Section 2.15 (entitled TERMINATION BY COUNTY) above.
If this Agreement is terminated under this provision, Company
waives all rights against County, including, but not limited to,
breach of contract, costs of design, installation or construction
of improvements and/or interruption of business.
3.22.4.1.3 Notwithstanding any other provision in this Agreement to
the contrary, County' will have the right of "self-help" or
similar remedy in order to minimize any damages, expenses,
penalties and related fees or costs, arising from or related to a
violation of Environmental Law on, under or' about the Premises.
3.23 AMERICANS. WITH DISABILITIES ACT
Company will throughout the term of this Agreement be in compliance with
all applicable provisions of the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq.
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ARTICLE IV
4.1 FORCE MAJEURE
Neither County nor Company will be deemed to be in breach of this Agreement
by reason of failure to perform any of its obligations hereunder if, while
and to the extent that such failure is due to strikes, boycotts,
labor-disputes, embargoes, shortages of materials, acts of God, acts of the
public enemy, acts of governmental authority, unusual weather conditions,
floods, riots, rebellion or sabotage. However, the provisions of this
Section will not apply to failure by Company to pay rents, fees or any
other money payments required under other provisions, covenants or
agreements contained in this Agreement.
4.2 QUIET ENJOYMENT
County agrees that, on payment of the rentals and fees and performance of
the covenants, conditions and agreements on the part of Company to be
performed hereunder, Company will have the right to peaceably occupy and
enjoy the Premises.
4.3 NONLIABILITY OF INDIVIDUALS
No officer, member, manager, agent or employee of either party to this
Agreement will be charged personally or held contractually liable by or to
the other party under any term or provision of this Agreement or because of
any breach thereof, or because of its or their execution or attempted
execution.
4.4 NOTICES
Any notice or communication to be given under the terms of this Agreement
("Notice") shall be in writing and shall be personally delivered or sent by
facsimile, overnight delivery, by nationally-recognized courier, or
registered or certified mail, return receipt requested.
Notices shall be addressed as follows:
If to County: Xxxxx County, Nevada
Department of Real Property Management
Airport Lands Xxxx
000 Xxxxx Xxxxx Xxxxxxx Xxxxxxx, 0xx Xxxxx
X.X. Xxx 000000
Xxx Xxxxx, Xxxxxx 00000-0000
FAX: (000) 000-0000
If to Company: Beltway Business Park Warehouse No. 2, LLC
c/o Majestic Realty Co.
0000 X. Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
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FAX: (000) 000-0000
with a copy to:
Beltway Business Park Office Warehouse No. 2, LLC
c/o Majestic Realty Co.
13191 Crossroads Parkway North, Sixth Floor
City of Industry, California 91746
Attn: Xxxxxx X. Xxxx, Xx.
FAX: (000) 000-0000
and
Beltway Business Park Warehouse No. 2, LLC
c/o Thomas & Xxxx Co.
0000 X. Xxxxxx Xxx., Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
FAX: (000) 000-0000
4.5 HEADINGS, TITLES OR CAPTIONS
Article, section or paragraph headings, titles or captions are inserted
only as a matter of convenience, and for reference, and in no way define,
limit or describe the scope or extent of any provision of this Agreement.
4.6 INVALID PROVISIONS
It is expressly understood and agreed by and between the parties hereto
that in the event any covenant, condition or provision herein contained is
held to be invalid by any court of competent jurisdiction, the invalidity
of such covenant, condition or provision will in no way affect any other
covenant, condition or provision herein contained; provided, however, that
the invalidity of any such covenant, condition or provision does not
materially prejudice either County or Company in their respective rights
and obligations contained in the valid covenants, conditions or provisions
of this Agreement.
Should any portion of this Agreement be determined by any court of
competent jurisdiction to be in violation of the SNPLMA it is expressly
agreed that Company and County will negotiate in good faith to modify such
terms or portions of this Agreement in order to comply with such Act.
County and Company agree that they will negotiate in good faith to resolve
any issue regarding compliance with the Act for a period of one hundred
eighty (180) days. If the parties cannot agree on a resolution during such
period, either party may terminate this Agreement with ninety (90) days
written notice to the other party. Notwithstanding the above to the
contrary, no such termination shall be effective without the prior written
consent of all current Lenders.
4.7 STATE OF NEVADA LAW
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This Agreement will be interpreted under and governed by the laws of the
State of Nevada.
4.8 CONSENT TO AMENDMENTS
In the event that the FAA or its successors require modifications or
changes in this Agreement as a condition precedent to the granting of funds
for the improvement of the Airport, or otherwise, Company agrees to consent
to such amendments, modifications, revisions, supplements, or deletions-of
any of the terms, conditions, or requirements of this Agreement as may be
reasonably required. Any expenses resulting from such amendments,
modifications, revisions, supplements or deletions, shall be born solely by
Company.
4.9 ADVERSE TENANCY
Any unauthorized holding over by Company for more than one hundred eighty
(180) days after the termination of this Agreement or the expiration of its
terms without the written consent of County, except for the period
authorized for removal of Company's property upon the expiration or
termination hereof, shall entitle County to collect from Company as
liquidated damages for such holding over, one hundred twenty five percent
(125%) of the then rent. County may perfect a lien on the property of
Company as security for the payment of any damages or unpaid rentals, fees,
and/or revenues and shall be entitled to collect the same by foreclosure of
such lien and sale of such property. Any such lien shall be subordinate to
the lien of a Lender. Nothing herein shall limit County's rights to seek
immediate eviction.
4.10 DISPUTES
Any and all disputes arising under this Agreement, which cannot be
administratively resolved, shall be determined according to the laws of the
State of Nevada, and Company agrees that the venue of any such dispute,
shall be in Xxxxx County, Nevada. Company agrees as a condition of this
Agreement that notwithstanding the existence of any dispute between the
parties, insofar as is possible under the terms of this Agreement, each
party shall continue to perform the obligations required of it during the
continuation of any such dispute, unless enjoined or prohibited by a court
of competent jurisdiction.
4.11 AGENT FOR SERVICE OF PROCESS
The parties hereto expressly understand and agree that if Company is not a
resident of the State of Nevada, or is an association or partnership
without a member or partner resident of said State, or is a foreign
corporation, and then in any such event Company does designate its State of
Nevada registered agent as its agent for the purpose of service of process
in any court action between it and County arising out of or based upon this
Agreement, and the service shall be made as provided by the laws of the
State of Nevada by serving also Company's registered agent. The parties
hereto expressly agree, covenant, and stipulate that Company shall also
personally be served with such process out of this State by the registered
mailing of such complaint and process to Company at the address set forth
herein. Any such service out of this State shall constitute valid
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service upon Company as of the date of receipt thereof. The parties hereto
further expressly agree that Company is amenable to and hereby agrees to
the process so served, submits to the jurisdiction, waives any and all
obligations and protests thereto, any laws to the contrary notwithstanding.
4.12 GENDER
Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
4.13 ENTIRE AGREEMENT
4.13.1 This document represents the entire agreement between the parties
hereto and will not be modified or canceled by mutual agreement or in
any manner except by instrument in writing, executed by the parties or
their respective successors in interest, and supersedes all prior oral
or written agreements and understandings with respect to the subject
matter hereof. The parties further understand and agree that the-
other party and its agents have made no representations or promises
with respect to this Agreement or the making or entry into this
Agreement, except as in this Agreement expressly set forth, and that
no claim or liability for cause for termination shall be asserted by
either party. against the other, and such party shall not be liable by
reason of, the making of any representations or promises not expressly
stated in this Agreement, any other written or oral agreement with the
other party being expressly waived.
4.13.2 The individuals executing this Agreement personally warrant that
they have full authority to execute this Agreement on behalf of the
entity for whom they are acting herein.
4.13.3 The parties hereto acknowledge that they have thoroughly read this
Agreement, including any exhibits or attachments hereto, and have
sought and received whatever competent advice and counsel was
necessary for them to form a full and complete understanding of all
rights and obligations herein.
4.14 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, personal representatives,
successors, or assigns, as the case may be.
4.15 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
when so executed shall constitute in the aggregate but one and the same
document.
4.16 SUSPENSION AND ABATEMENT
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In the event that County's operation of the Airport or Company's operation
from the Premises should be restricted substantially by action of the
federal government or agency thereof or by any judicial or legislative
body, then either party hereto will have the right, upon written notice to
the other, to a suspension of this Agreement and an abatement of an
equitable proportion of the payments to become. due hereunder, from the
time of such notice until such restrictions will have been remedied and
normal operations restored.
4.17 INDEPENDENT CONTRACTOR
Company is deemed to be an independent contractor for all purposes
regarding its operations at the Premises, and no agency, express or
implied, exists.
4.18 FURTHER ASSURANCES
Each party to this Agreement shall perform any and all acts and execute and
deliver any and all documents as may be necessary and proper under the
circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
(Intentionally left blank -- signature page to follow)
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IN WITNESS WHEREOF, County and Company have executed these presents as of
the day and year first above written.
ATTEST: COUNTY:
COUNTY CLERK COUNTY OF XXXXX, a political subdivision
of the State of Nevada
By: By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Its: Deputy Clerk Name: Xxxxxx X. Xxxxxxx
Its: Director of Real Property Mgt.
APPROVED AS TO FORM:
Xxxxx Xxxxxx, District Attorney
COMPANY:
By: /s/ Xxxxx Xxxxxx BELTWAY BUSINESS PARK WAREHOUSE
--------------------------------- NO. 2, LLC, a Nevada limited liability
Xxxxx Xxxxxx company
Deputy District Attorney
By: MAJESTIC BELTWAY WAREHOUSE
BUILDINGS, LLC, a Delaware limited
liability company, its Manager
By: MAJESTIC REALTY CO.,
a California corporation,
Manager's Agent
By: /s/ Xxxxxx X. Xxxxx, XX.
------------------------------------
Name: Xxxxxx X. Xxxxx, XX.
Its: Chairman and Chief Executive
Officer
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
By: XXXXXX & XXXX BELTWAY, L.L.C.,
a Nevada limited liability company,
its Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Its: Manager
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EXHIBIT J
TENANT'S LIMITED RESTORATION OBLIGATION
All buildings and other above-ground improvements located on the
Additional Land, but excluding perimeter walls (other than those which front a
public roadway, which must be removed by Tenant if so requested in writing by
Landlord), underground utility lines and facilities, paving, curbs, gutters, and
other roadway and driveway improvements, sidewalks, landscaping, surface water
drainage facilities, parking bumpers, and other similar improvements.
0000 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx
Nevada Power Company
J-1
