EXHIBIT 10.21
XXXXXX PLAZA PARTNERSHIP
0000 XXXXXXXX XXXXX
XXXXXX XXXXXXX, XX 00000
LEASE AGREEMENT
Lessor hereby leases to Lessee and Lessee hereby hires from Lessor the premises
hereinafter described on the terms and conditions set forth in this Lease
Agreement (hereinafter referred to as "Lease").
BASIC LEASE PROVISIONS
The words, figures, and definitions set forth in Paragraphs A - L, inclusive,
are part of this Lease wherever appropriate reference is made thereto, unless
modified elsewhere in this Lease.
A. Date of the Lease: April 1, 2004
Projected commencement date: April 1, 2004
X. Xxxxxx: Xxxxxx Plaza Limited Partnership
C. Lessors Address for Notices: 0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
D. Lessee: WESTERN GOLDFIELDS, INC.
E. Lessee's Trade Name: WESTERN GOLDFIELDS, INC.
F. Lessee's Address for Notices: 000 XXXXXX XXXX XXXXX 000
X. Xxxxxx Plaza: The property outlined on the Site Plan attached hereto as
Exhibit "A". The property outlined on the Site Plan is referred to herein
as the "Commercial Center".
City: RENO
County: WASHOE
State: NEVADA
Address or nearest streets: 000 Xxxxxx Xxxx,
Xxxx, XX 00000
H. Premises: The area depicted on Exhibit "B" to this Lease containing the
following approximate measurements:
Total area: 0000 XXXXXX XXXX OF OFFICE
1830 SQUARE FEET OF WAREHOUSE
570 SQUARE FEET OF ACCESSED COMMON AREA
I. Permitted Use OFFICES AND WAREHOUSE
J. Term: TWO YEARS, RENEWABLE FOR ONE-TWO YEAR PERIOD
Minimum (Annual) Rent: $53,328.00 paid per year. $4444.00 per month ($1.10 SF
FOR OFFICE & S.55 SF FOR WAREHOUSE AND RECEPTION AREA AND RESTROOMS) for the
first two years. Years three and four will have a 5% increase in rent to
$55994.40 per year paid $4666.20 per month.
K. Security Deposit $4444.00
L PARTIES
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LEASE AGREEMENT
I. PARTIES
This Lease is made APRIL 1, 2002 between XXXXXX PLAZA PARTNERSHIP, as a
Partner ("Lessor"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, XX
00000, WESTERN GOLDFIELDS, INC. , ("Lessee") whose address is 000 Xxxxxx Xxxx
Xxxxx 000.
WITNESSETH
WHEREAS, Lessor is the owner of, or has the unqualified tight to lease the
Property more particularly described below; and
WHEREAS, Lessee is willing to lease such Property from Lessor according to
their terms and conditions as set forth herein.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration herein, the sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
SECTION 1.01 - PREMISES:
Lessor does hereby lease to Lessee, and Lessee hereby hires from Lessor the
following Premises (hereinafter referred to as the "Premises"), more
particularly described as follows:
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
SECTION 2.01 - BUSINESS NAME:
The name of such business will be WESTERN GOLDFIELDS INCLessee will be
solely responsible for any costs of changing the name as it is featured in any
signs of the XXXXXX PLAZA COMMERCIAL CENTER or in any business, advertising, or
like materials containing such name emanating from the XXXXXX PLAZA COMMERCIAL
CENTER.
SECTION 2.02 - USE:
The Premises shall be used and occupied by Lessee for the following
purposes, and not for other purpose whatsoever without obtaining the prior
written consent of Lessor: OFFICES AND WAREHOUSE
SECTION 3.01 - TERM:
The Term of the Lease shall be for two years commencing on April 1, 2004
and ending an March 31, 2006. Lessee shall have the right to renew the lease for
a two year period commencing on April 1, 2006 and ending on March 31, 2008.
If Lessee shall remain in possession of the Premises after the expiration of the
Term of this Lease, such possession shall be as a month-to-month Lease, during
which the rent shall be payable at a ten (10%) percent annual rent rate increase
in effect during the last month of the Term, and all other provisions of the
Lease shall be applicable, including those provisions which may become
applicable at the expiration of the Term of this Lease. Should the
month-to-month tenancy continue beyond a six (6) month period from the
expiration, then the rent payable shall increase an additional twenty (20%)
percent above the rate in effect during the previous month.
SECTION 3.02 - LESSEE'S VOLUNTARY BEGINNING:
If Lessee voluntarily chooses to, and does open for business at any time
before the beginning of the Term as contemplated under this Lease, then such day
of opening will constitute the actual beginning of the Term.
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SECTION 3.03 - DELAY IN POSSESSION
Notwithstanding said commencement date, if for any reason Lessor cannot
deliver possession of the Premises to Lessee on said date, Lessor shall not be
subject to any liability therefore, nor shall such failure affect the validity
of the Lease or the obligations of Lessee hereunder or extend the Term hereof,
but in such case, Lessee shall not be obligated to pay rent or perform any other
obligation of Lessee under the terms of this Lease, except as may be otherwise
provided in this Lease, until possession of the Premises is-tendered to Lessee;
provided, however, that if Lessor shall not have delivered possession of the
Premises within ninety (90) days from saidcommencement date, Lessee may, at
Lessee's option, by notice in writing to Lessor within ten (10) days thereafter,
terminate this Lease, in which event the parties shall be discharged from all
obligations hereunder, provided further, however, that if such written notice of
Lessee is not mailed to Lessor within said ten (10) day period, Lessee's right
to cancel this Lease hereunder shall terminate and be of no further force or
effect.
SECTION 4.01 - RENT AND SECURITY DEPOSIT:
Lessee shall pay to Lessor as minimum monthly rent, without prior notice of
demand, the sum of Four thousand four hundred forty dollars even in advance,
beginning on the date the Term commences and continuing thereafter. Monthly rent
for the first month or portion of it shall be paid on the date the Term
commences. Monthly rental for any partial month shall be-prorated. The Term
commences on April 1, 2004. All rent shall be paid to Lessor at the address
above specified for Lessor.
If this Lease terminates before the expiration date for any reasons other
than Lessee's default, month rental shall be prorated to the date of
termination, and Lessor shall immediately repay to Lessee all rent then prepaid
and unearned.
SECTION 5.01 - REAL PROPERTY TAXES:
Lessee shall pay its proportionate share of all real property taxes and
general and special assessments ("real property taxes"), levied and assessed
against the building, other improvements, and land of which the Premises are a
part.
Lessee's proportional share shall be the ratio of the total real property
taxes levied and assessed against the building, other improvements, and land of
which the Premises are a part at a rate of 14 percent.
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Each year lessor shall notify Lessee of Lessor's calculation of Lessee's
proportionate share of the real property taxes and together with such notice
shall furnish Lessee with a copy of the tax xxxx. Lessee shall pay its
proportionate share of the real property taxes quarterly along with other CAM
costs as outlined in Section 7.01 of this Lease.
SECTION 6.01 - PERSONAL PROPERTY TAXES:
Lessee shall pay before delinquency all taxes, assessments, license fees,
and other charges that are levied and assessed against Lessee's personal
property installed or located in or on the Premises, and that become payable
during the term.
SECTION 7.01 - MAINTENANCE:
1. LESSOR'S OBLIGATIONS: Subject to the provisions of Section 15 and
except for damage caused by any negligent or intentional act or omission of
Lessee and Lessee's agents, employees or invitees, Lessor, at Lessor's expense,
shall keep in good order, condition, and repair the foundations, exterior walls,
and exterior roof of the Premises. Lessor shall not, however, be obligated to
paint such exterior walls, windows, doors, or plate glass. Lessor shall have no
obligation to make repairs under this Paragraph 7.01.1, until a reasonable time
after receipt of written notice of the need for such repairs.
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2. LESSEE'S OBLIGATIONS:
(a) Subject to the provisions of Sections 16 and 7.01, Lessee, at
Lessee's expense, shall keep in good order, condition, and repair the Premises
and every part thereof, regardless of whether the damaged portion of the
Premises or the means of repairing the same are accessible to Lessee, including
and without limitation thereto, all plumbing, electrical lighting facilities,
fire detection systems including sprinkler system maintenance repair, HVAC
system, and any and all movable or mechanically operated equipment or device
within the Lessee's Premises.
(b) Lessor will replace all broken glass within reasonable time with
respect to any glass featured on the exterior of Lessee's space, whether or not
the same glass is also contained on the interior of the space, whether at
Lessee's request or on Lessor's initiative, but all such replacements will be at
Lessor's expense unless broken by Lessee or his agents. In that event it will be
billed to and immediately payable by Lessee,
(c) Lessee shall cover a prorated portion of all costs to supervise
and administer said common area maintenance, parking lots, sidewalks, driveways,
and other areas used in common by the Lessee or occupants of the Premises.
Common area maintenance to be passed through to Lessees on a prorated basis may
include, but not be limited to parking lot sweeping and maintenance, landscaping
maintenance, and exterior light maintenance. Lessor shall furnish to Lessee a
statement showing the total common area costs, Lessee's share of common area
costs for the accounting period, within thirty (30) days after the end of each
accounting period, covering the accounting period just ended. Said costs shall
include such fees as may be paid to a third party in connection with same.
(d) Upon the expiration or early termination of this Lease, Lessee
shall surrender the Premises in the same condition as received, broom clean,
ordinary wear and tear and damage by fire, earthquakes, Act of God, disrepair
occasioned by Lessor's failure to comply with the provisions of section 7.01.1,
or the elements alone excepted. Lessee, at its sole cost and expense, agrees to
repair any damage to the Premises caused delay by Lessee in so surrendering the
Premises, including without limitation; any claims made by any succeeding Lessee
founded on such delay.
(e) All heating, air conditioning, and ventilation equipment for the
Lessee's space will be maintained and serviced by the Lessor and the cost of the
maintenance and servicing will be billed directly to the Lessee and is the
Lessee's responsibility for payment
(f) CAM AND PASS-THROUGH COSTS: All pass-through costs as detailed
above in Sections 5.01, Property Taxes; 7.01, Maintenance; 8.01, Utilities; and
9.01, Insurance, shall be Lessee's responsibility to pay his prorated share of
these costs. Lessee's prorated share of all CAM and pass-through costs is 14
percent of total costs.
3. LESSOR'S RIGHTS: In the event Lessee fails to perform Lessee's
obligations under this Section, Lessor shall give Lessee notice to do such acts
as are reasonably required to maintain the Premises; if Lessee shall fail to
commence such work and diligently prosecute it to completion, then Lessor shall
have the right, but not the obligation, to do such acts and expend such funds at
the expense of Lessee as are reasonably required to perform such work. Lessee
shall pay any amount so expended by Lessor promptly after demand, with interest
at ten (10) percent per annum from the xxxx of such work. Lessor shall have no
liability to Lessee for any damage, inconvenience, or interference with the use
of the Premises by Lessee as a result of performing any such work, excepting any
damage, loss, expense, or liability ari sing from Lessor's negligence or that of
its employees, agents, or contractors.
SECTION 8.01 - UTILITIES:
Lessee shall pay prior to delinquency for all utilities and services
furnished to or used by it, including without limitation electricity, gas, and
telephone service. Lessor
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shall supply separate meters as required for gas and electric to the Lessee's
own space and use. Lessee to pay its own gas, electrical, and telephone use by
Lessee.
Lessor shall supply a dumpster as existing for normal trash removal of the
entire building. Should the Lessee need additional trash removal, it shall be at
Lessee's cost.
SECTION 9.01 - INSURANCE:
1. LIABILITY INSURANCE: Lessee shall, at Lessee's expense, procure and
maintain at all times during the Term of this Lease, a policy of comprehensive
public liability insurance insuring Lessor and Lessee against any liability
&rising out of the ownership, use, occupancy, or maintenance of the Premises and
appurtenant areas. Such insurance shall at all times be in the amount not less
than one million ($1,000,000.00) dollars per occurrence and one million
($1,000.000.00) dollars aggregate for any and all bodily injury and property
damage losses. The limits of such insurance shall not limit the liability of
Lessee. If the Premises are part of a larger property, said insurance shall have
a Lessor's protective liability endorsement attached hereto, All insurance
required hereunder shall be with companies rated AAA or better in Best's
Insurance Guide. Lessee shall deliver to Lessor Certificates of Insurance
evidencing the existence and amounts of such insurance with loss payable clauses
satisfactory to Lessor, provided that in the event Lessee fails to procure same
at Lessee's expense after ten (10) days prior written notice. No such policy
shall be cancelable or subject to reduction of coverage or other modification
except after thirty (30) days prior written notice to Lessor by the insurer. All
such policies shall be written as primary policies, not contributing with and
not in excess of coverage which the Lessor may carry. Lessee shall, within
twenty (20) days prior to the expiration of such policies, furnish Lessor with
renewals or binders or Lessor may order such insurance and charge the cost to
Lessee, which amount shall be payable by Lessee upon demand. Lessee shall have
the right to provide such insurance coverage pursuant to blanket polices
obtained by Lessee, provided such blanket polices expressly afford coverage to
the Premises and to Lessee as required by this Lease.
2. LESSOR'S LIABILITY AND PROPERTY INSURANCE OBLIGATION. Lessor shall
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury and Property Damage Insurance insuring Lessor, but
not Lessee, against any liability arising out of the ownership, use, occupancy
or maintenance of the Xxxxxx Plaza property in an amount not less than
$1,000,000.00 per occurrence. Lessor shall also obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or damage
to the Xxxxxx Plaza property, but not Lessee's personal property, fixtures,
equipment or tenant improvements, in an amount not to exceed the full
replacement value thereof, ass the same may exist from time to time, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, flood (in the event same is
required by a lender having a lien on the Premises) special extended perils,
("all risk", as such term is used in the insurance industry), and such other
insurance as Lessor deems advisable.
3. LESSOR'S RIGHTS: Lessor may inspect the Premises at reasonable times
on twenty-four (24) hours notice to Lessee that the inspection will be for
purposes of determining insurance requirements. After such inspection, if Lessor
gives written notice to Lessee that particular items are not covered or are
inadequately covered by insurance on the Premises, Lessee will immediately
proceed to so cover such items and furnish Lessor with copies of policies as
above provided.
SECTION 10.01 - ASSIGNMENT AND SUBLETTING:
1. LESSOR'S CONSENT REQUIRED: Lessee shall not assign, transfer,
mortgage, pledge, hypothecate, or encumber this Lease or any interest therein,
and shall not sublet the Premises or any part hereof, without the prior written
consent of Lessor and any attempt to do so without such consent being first had
and obtained shall be wholly void and shall constitute a breach of this Lease.
2. REASONABLE CONSENT: If Lessee complies with the following conditions,
Lessor shall not unreasonably withhold its consent to the subletting of the
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Premises or any portion thereof. Lessee shall submit in writing to Lessor: (a)
the name and legal composition of the proposed sub-Lessee; (b) the nature of the
proposed sub-Lessee's business to be carried on the Premises; (c) the terms and
provisions of the proposed sublease; (d) such reasonable financial information
as Lessor may request concerning the proposed sub-lessee.
3. NO RELEASE OF LESSEE: No consent by Lessor to any subletting by Lessee
shall relieve Lessee of any obligation to be performed by the Lessee under this
Lease, whether occurring before or after such subletting. The consent by Lessor
to any subletting shall not relieve Lessee form the obligation to obtain
Lessor's express written consent to any subletting. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of any
provision of this Lease or to be consent to any subsequent subletting or other
transfer. The terms of this paragraph shall not apply to an approved assignment.
4. ATTORNEY'S FEES: In the event Lessor shall consent to a sublease of
assignment under this Section 9, Lessee shall pay Lessor's reasonable attorney's
fees not to exceed five hundred ($500.00) dollars incurred in connection with
given such consent.
SECTION 11.01 -ALTERATIONS:
Lessee shall not make any structural or exterior alterations to the
Premises without Lessor's written consent, which consent shall not be
unreasonably withheld. Lessee at its cost shall have the right to make, without
Lessor's consent, non-structural alterations to the interior of the Premises
that Lessee requires in order to conduct its business therein. In making any
alterations having a value greater than one thousand ($1,000.00) dollars that
Lessee has the right to make, Lessee shall comply with the following:
A. The alterations shall not be commenced until seven (7) days after
Lessor has received notice from Lessee stating the date the alterations are to
commence.
B. The alterations shall be in conformance with all applicable local
agency permits, including but not limited to State or Federal laws and
regulations and all required local building and/or fire Xxxxxxxx permits. Lessee
will procure all permits at Lessee's expense.
C. The performed in a manner that will not interfere with the quiet
enjoyment of the other Lessees in the building in which the Premises are
located.
At the option of Lessor, Lessee shall have the obligation to remove from
the Premises immediately before the expiration of the Term, alterations Lessee
has made to the Premises. Lessee will be responsible for any damage to the
premises as a result of the removal of any alterations. Any alterations that
Lessor does not require Lessee to remove shall become the property of Lessor.
All tenant improvements installed in Lessee's space prior to the original
occupancy date shall remain as the Lessor's property, and shall not be removed
by Lessee.
The Lessee shall not cause any mechanic's liens (excepting those arising by
operation of law securing the payment of monies not yet due and payable) to be
filed against the premises subject to this Lease, and Lessee shall indemnify,
hold harmless, and commit not waste upon or to the Premises subject to this
Lease, and upon expiration of this Lease, the Lessee shall surrender to Lessor
the Premises subject to this Lease in the same order and condition in which
Lessee received the Premises, the effects of ordinary wear and tear, Acts of
God, casualty, insurrection, riot, public disorder, disrepair occasioned by
Lessor's failure to perform under section 5.01, or permanent alterations,
additions, and improvements made by Lessee excepted.
SECTION 12.01 - SIGNS:
Lessee, at its cost, shall have the right to place, construct, and maintain
an exterior sign on the east entrance of the leased premises advertising its
business. Lessor shall have the right to approve such signs, and any sign that
Lessee has the right to place, construct, and maintain shall comply with all
applicable laws. Upon termination of the tenancy
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herein created, Lessee shall remove any sign so placed and repair any damage or
injury to the Premises caused thereby.
SECTION 13.01 -ACCESS:
Lessor and its authorized representatives shall have the right to enter the
Premises during Lessee's business hours and at all other reasonable times with
twenty-four (24) hours prior notice for the purpose of:
1. Determining whether the Premises are in good condition and whether
Lessee is complying with its obligations under this Lease;
2. Do any necessary maintenance and to make any restoration to the
Premises or the building and other improvements in which the Premises are
located that Lessor has the right or obligation to perform;
3. Posting "for sale" signs at any time during the Term, or posting "for
rent" or "for lease" signs during the last four (4) months of the Term or at any
time after the Lessee is in default of the Lease,
If Lessor's entry and activities on the Premises result from Lessee's
default, Lessee shall not be entitled to any abatement of rent.
Lessor shall conduct its activities on the Premises as allowed in this
Section 11.01 in a manner that will cause the least possible inconvenience,
annoyance, or disturbance to Lessee.
SECTION 14.01 - INDEMNITY:
1. LESSEE'S INDEMNIFICATION: Lessee shall indemnify and hold Lessor
harmless from and against any and all claims of liability for any injury or
damage to any person or property arising from Lessee's use of the Premises, or
from the conduct of Lessee's business, or from any activity, work, or thing
being done, permitted, or suffered by Lessee in or about the Premises or
elsewhere. Lessee shall further indemnify and hold Lessor harmless from and
against any obligation of Lessee's part to be performed under this Lease, or
arising from any negligence of Lessee or Lessee's agents, contractors, or
employees, and from and against all costs, reasonable attorney's fees, expenses,
and liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. In the event any action or proceeding is brought
against Lessor by reason of any such claim, Lessee, upon notice from Lessor
shall defend same at Lessee's expense by counsel satisfactory to Lessor. Lessee,
as a material part of the consideration to Lessor, hereby assumes all risk of
damage to property or injury to persons in, upon, or about the Premises arising
from any cause excepting the acts or omissions of Lessor, its employees, agents,
and contracts, and Lessee hereby waives all claims in respect thereof against
Lessor.
2. LESSOR'S INDEMNIFICATION: Lessor shall indemnify and hold Lessee
harmless from and against any and all claims of liability for any injury or
damage to any person or property arising from Lessor's use of the Premises, or
from the conduct of Lessor's business, or from in or about the Premises or
elsewhere. Lessor shall further indemnify and hold Lessee harmless from and
against any and all claims arising from any breach or default in the performance
of any obligation of Lessor's part to be performed under this Lease, or arising
from any negligence of Lessor's agents, contractors, or employees, and from and
against all costs, reasonable attorney's fees, expenses, and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon. In the event any action or proceeding is brought against Lessee by
reason of any such claim, Lessor upon notice from Lessee shall defend same at
Lessor's expense.
3. EXEMPTION OF LESSOR FROM LIABILITY: Except for loss, injury, or damage
caused by Lessor's employees, agents, or contractors and Lessor's failure to
perform under Section 5.01, Lessor shall not be liable for injury to Lessee's
business or loss of income therefrom or merchandise or property of Lessee, its
employees, invitees, customers, caused by or resulting from fire, steam,
electricity, gas, water, or rain, which may be sustained by the person, goods,
wares, merchandise, or property of Lessee, its
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employees, invitees, customers, agents, contractors, or any other person in or
about the Premises from the breakage, leakage, obstruction or other defects of
the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or
lighting fixtures of the same, whether the said damage or injury results from
conditions arising upon the Premises or upon other portions of the building or
which the Premises are a part, or from other sources or places, and regardless
of whether the cause of such damage or injury of the means of repairing the same
is inaccessible to Lessee. Lessor shall not be liable for any damages arising
from any act or neglect of any other Lessee, if any, of the building in which
the Premises are located.
SECTION 15.01 - WAIVER OF SUBROGATION
Lessor and Lessee each hereby waive any and all rights of recovery against
the other or against the officers, employees, agents, and representatives of the
other, on account of loss or damage occasioned to such waiving party of its
property or the property of others under its control caused by fire or any of
the extended coverage risks described in Section 7.01.2 to the extent that such
loss or damage is insured against under any insurance policy in force at the
time of such loss or damage. The insuring party shall, upon obtaining the
policies of insurance required under this Lease, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is contained
in this Lease.
SECTION 16.01 - DAMAGE OR DESTRUCTION
1. PARTIAL DAMAGE - INSURED: In the event improvements on the Premises
are damaged by any casualty which is covered under an insurance policy required
to be maintained pursuant to Section 7.01, then Lessor shall repair such damage
as soon as is reasonably possible and this Lease shall continue in full force
and effect.
2. TOTAL DESTRUCTION: If the Premises are totally destroyed during the
Term of this Lease from any cause whether or not covered by the insurance
required under Section 7.01 (including any destruction required by any
authorized public authority), this Lease shall automatically terminate as of the
date of aiirh total within thirty (30) days after the date of occurrence of such
damage. Any adjustments made to previous payments should be refunded based on an
allocation per day, week, or month.
3. DAMAGE NEAR END OF THE TERM: If the Premises are partially destroyed
or damaged during the last six (6) months of the Term of this Lease, Lessor may
at Lessor's option cancel and terminate this Lease as of the date of occurrence
of such damage by giving written notice to Lessee of Lessor's election to do so
within thirty (30) days after the date of occurrence of such damage. Any
adjustments made to previous payments should be refunded based on an allocation
per day, week, or month.
4. LESSOR'S OBLIGATIONS: The Lessor shall not be required to repair any
injury or damage by fire or other cause, or to make any restoration or
replacement of any paneling, decorations, office fixtures, partitions, railings,
ceilings, floor covering, equipment, machinery, or fixtures, or any other
improvements or property installed in the Premises by Lessee or at the direct or
indirect expense of Lessee. Lessee shall be required to restore or replace same
in the event of damage.
5. LESSOR'S REMEDIES: If Lessor shall be obligated to repair or restore
the Premises under this Section 14.01 and shall not commence such repair or
restoration within ninety (90) days after such obligation shall accrue, Lessee
at Lessee's option may cancel and terminate this Lease by written notice to
Lessor at any time prior to the commencement of such repair or restoration. In
such event this Lease shall terminate as of the date of such notice.
6. TERMINATION - ADVANCE PAYMENTS: Upon termination of this Lease
pursuant to Section 14.01, an equitable adjustment shall be made concerning
advance rent and any advance payment made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
therefore been applied by Lessor. Any adjustments made to previous payments
should be refunded based on an allocation per day, week, or month.
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SECTION 17.01 - CONDEMNATION:
1. LEASE TERMINATED: If the Premises or any portion thereof are taken
under the power of eminent domain, or sold by Lessor under the threat of the
exercise of said power (all of which is herein referred to as "condemnation"),
this Lease shall terminate as to the part so taken as of the date of condemning
authority takes title of possession, taken as of the date of condemning
authority takes title of possession, whichever occurs first if more than ten
(10) percent of the floor area of any building on the Premises, or more than
twenty-five (25) percent of the land area of the Premises not covered with
buildings, is taken by condemnation, either Lessor or Lessee may terminate this
Lease, as of the date of condemning authority takes possession, by notice in
writing of such election within twenty (20) days after Lessor shall have
notified Lessee of the taking, or in the absence of such notice then within
twenty (20) days after the condemning authority shall have taken possession. If
this Lease is terminated under threat of condemnation, Lessee shall be entitled
to a prorated portion of any rentals paid beyond the effective date of
condemnation.
2. LEASE NOT TERMINATED: If this Lease is not terminated by either Lessor
or Lessee, then it shall remain in full force and effect as to the portion of
the Premises remaining, provided the rent shall be reduced in the proportion
that the floor area of the buildings taken within the Premises bears to the
total floor area of all buildings located on the Premises. In the event this
Lease is not so terminated, then Lessor agrees, at Lessor's sole cost, to
restore the Premises to a complete unit of like quality and character as existed
prior to the condemnation as soon as is reasonably possible. All wards from the
taking of any part of the Premises or any payment made under the threat of the
exercise of any part of the Premises or any payment made under the threat of the
exercise of power of eminent domain shall be the property of Lessor, whether
made as compensation for diminution of value of a leasehold or for the taking of
the fee or as compensation for diminution of value of a leasehold or for the
taking of the fee or as severance damages; provided, however, that Lessee shall
be entitled to any award for loss or damage to Lessee's trade fixtures and
removable personal property. In the event that this Lease is not terminated by
reason of such condemnation, Lessor shall, to the extent of severance damages
received by Lessor in connection with such condemnation, repair any damage to
the Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefore by the condemning authority. Lessee shall pay any
amount in excess of such severance damages required to complete such repair.
3. LESSOR'S AND LESSEE'S RIGHT UNDER CONDEMNATION: Lessor will be
entitled exclusively to any condemnation award for the real property of the
building, and Lessee will not be entitled to any part of such an award or as a
result of any purported interest or time remaining under its Lease. Lessee will
have a claim exclusively for expenses for any other portion within it, for any
loss of business, and for any losses resulting to trade fixtures not a permanent
part of the building. If this Lease is terminated under threat of condemnation,
Lessee shall be entitled to a prorated portion of any rentals paid beyond the
effective date of condemnation.
SECTION 18.01 - DEFAULT, REMEDIES:
1. DEFAULT: The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee:
(a) Any failure by Lessee to pay the rent or any other monetary sums
required to be paid hereunder where such failure continues for ten (10) days
after written notice thereof by Lessor to Lessee;
(b) The abandonment or vacation of the Premises by Lessee;
(c) A material failure by Lessee to observe and perform any other
provisions of this Lease to be observed or performed by Lessee, where such
failure continues for twenty (20) days after written notice thereof by Lessor to
Lessee, provided, however, that if the nature of such default is such that the
same cannot reasonably be cured within such twenty (20) day period, Lessee shall
not be deemed to be in default if
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Lessee shall within such period commence such cure and thereafter diligently
prosecute the same to completion;
(d) The making by Lessee of any general assignment of general
arrangement for the benefit of creditors; the filing by or against Lessee of a
petition to have Lessee adjudge, bankrupt, or of a petition for reorganization
of arrangement under any law relating to bankruptcy (unless, in the case of a
petition days); the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or the attachment, execution, or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
2. REMEDIES: In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice and demand and
without limiting Lessor in the exercise of any right or remedy at law or in
equity which Lessor may have by reason of such default or breach:
(a) Maintain this Lease in full force and effect and recover the rent
and other monetary charges as they become due, without terminating Lessee's
right to possession, irrespective of whether Lessee shall have abandoned the
Premises. In the event Lessor elects to not terminate the Lease, Lessor shall
have the right to attempt to re-let the Premises at such rent and upon such
conditions and for such a term, and to do all acts necessary to maintain or
preserve the Premises as Lessor deems reasonable and necessary without being
deemed to have elected to terminate the Lease including removal of all persons
and property from the Premises, such property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of Lessee. In
the event any such re-letting occurs, this Lease shall terminate automatically
upon the new Lessee taking possession of the Premises. Notwithstanding that
Lessor fails to elect to terminate the Lease initially, Lessor at any time
during the term of this previous default of Lessee; or
(b) Terminate Lessee's right to possession by any lawful means, in
which case this Lease shall terminate and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event Lessor shall be entitled to
recover from Lessee all damages incurred by Lessor by reason of Lessee's default
including without limitation thereto, the following: () the worth at the time of
award of any unpaid rent which had been earned at the time of such termination;
(ii) the worth at the time of award of the amount by which theunpaid rent which
would have been earned after terminating until the time of award exceeds th
eamount of such rental loss that is proved could have been reasonably voided;
(iii) the worth at the time of award exceeds the amount of such rental loss that
is porved could have been reasonably voided; (iii) the worth at the time of
award of the amount by which the unpaid rent for the balance of the Term afer
the time of award exceeds the amount of such rental loss that is proved could be
reasonably avoided.
As used in subparagraph (i) above, the "worth at the time of award" is
computed by allowing interest at the rate of ten (10) percent per annum from the
date of default. As used in subparagraphs (ii) and (iii), the "worth at the time
of award' is computed by discounting such amount at the discount rate of the
U.S. Federal Reserve Bank at the time of award plus one (1) percent. The term
"rent" as used in this Section 16.01, shall be deemed to be and to mean the rent
to be paid pursuant to Section 4.01 and all other monetary sums required to be
paid by Lessee pursuant to the terms of this Lease.
3. LATE CHARGES: Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Lessor by the
terms of any mortgage of trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's design within ten (10) days after such amount shall be due,
Lessee shall pay to Lessor a late charge equal to ten (10%) percent of such
overdue amount. The parties hereby agree that such late charge represents
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a fair and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount, not
prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
4. DEFAULT BY LESSOR: Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no
event later than thirty (30) days after written notice by Lessee to Lessor,
specifying wherein Lessor has failed to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more than thirty
(30) days are required for performance, then Lessor shall not be in default if
Lessor commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same completion.
SECTION 19.01 - MISCELLANEOUS:
1. ESTOPPEL CERTIFICATES:
(a) Lessee shall at any time not less than ten (10) days prior
written notice from Lessor execute, acknowledge, and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) ani the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed. A
prospective purchaser or encumbrance of the Premises may conclusively rely upon
any such statement.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance; and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance said Premises, or
any part thereof, Lessee hereby agrees to deliver to any 1 ender designated by
Lessor such financial statements of Lessee as may be reasonably required by such
lender. All such financial statements shall be received by Lessor in confidence
and shall be used only for the purposes herein set forth.
2. TRANSFER OF LESSOR'S INTEREST: In the event of a sale of conveyance by
Lessor of Lessor's interest in the Premises other than a transfer for security
purposes only, Lessor shall be relieved from and after the date specified in
such notice of transfer of all obligations and liabilities accruing thereafter
on the part of the Lessor, provided that any funds in the hands of Lessor at the
time of transfer in which Lessee has an interest, shall be delivered to the
successor Lessor. This Lease shall not be affected by any such sale and Lessee
agrees to attorn to the purchaser or assignee provided all lessor's obligations
hereunder are assumed in writing by the transferee.
SECTION 20.01 - SUBORDINATION:
1. SUBORDINATION: This Lease at Lessor's option shall be subject and
subordinate to all ground or underlying Lease which now exist or may hereafter
be executed affecting the Premises or the land upon which the Premises are
situated or both, and to the lien of any mortgages or deeds of trust in any
amount or amounts whatsoever now may exist against the land or improvements, or
either thereof, of which the Premises are a part, or on or against Lessor's
interest or estate therein, or on or against any ground or underlying Lease,
without the necessity of the execution and delivery of any further instruments
on the part of Lessee to effectuate such subordination. If any mortgagee,
trustee, or ground Lessor shall elect to have this Lease prior to the lien of
its mortgage, deed of trust, or ground Lease, and shall give written notice
thereof to Lessee, this Lease shall be deemed prior or subsequent to the date of
said mortgage, deed of trust or ground Lease, or the date of the recording
thereof.
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2. SUBORDINATION AGREEMENTS: Lessee covenants and agrees to execute and
deliver upon demand without charge therefore, such further instruments
evidencing such subordination of this Lease to such existing ground or
underlying Leases and to the Lien of any such mortgages or deed of trust as may
be required by Lessor. Lessee hereby appoints Lessor, as Lessee's
attorney-at-fact, irrevocably, to execute and deliver any such agreements,
instruments, releases, or other documents.
SECTION 21.01 - MATTERS OF PERFORMANCE:
1. PARTIES NOT A SINGLE ENTITY: In collecting any amounts of rent or sums
payable for other purposes under this Lease, or in otherwise cooperating with
Lessee under these provisions, Lessor does not become a partner, joint venturer,
shareholder, associate investor, or the like in Lessee's business in any way;
but all such provisions simply define the obligations of the parties in respect
to their separate and independent positions as parties under a lessor-lessee
relationship toward the leasing of Premises in 000 Xxxxxx Xxxx, Xxxxx 000.
2. WASTE AND NUISANCE: Lessee will not commit waste in or at the Leased
Premises, or allow it to be committed, not permit maintenance of a nuisance or
any other matter which may interfere with the conduct of business or other
normal enjoyment of the Premises of any other Lessee or invitee of 000 Xxxxxx
Xxxx, xxxxx 000xx inhabitants of frequenters of the directly surrounding
community of the commercial center.
3. LESSEE'S COMPLIANCE WITH LAWS: Lessee will comply with all
governmental requirements respecting the conduct of business or use of the
Leased Premises in a timely and appropriate manner and at its sole cost, and
will pay and be solely responsible for all taxes, levies, assessments, licenses,
or fines set out by any such authorities directed to the conduct of such
business, carrying of inventory, utilization of personnel, arrangements with
suppliers or customers, or the like.
4. LESSOR'S RIGHT OF ENTRY: Lessor may enter into Lessee's Premises at
reasonable times with twenty-four (24) hours notice and while it is open for
business and, without unreasonably interfering with the course of conduct of
Lessee's business, engage in any activities designed to accomplished under any
relevant provisions of this Lease. Lessor also may enter in the same manner to
show the Premises or enclosing structure to various persons who might be
interested for reasons connected with Lease provisions, such as, but limited to,
lenders, insurers, prospective purchasers or tenants, and the like. Lessor may
enter in the same manner to repair structures or improvements in the Leased
Premises or an adjoining space. No such actions may be considered a constructive
eviction.
5. NOTICES AND AUTHORIZATION: All rents or payments, notices, or
approvals in writing provided for under this Lease will be sent by either party
or certified mail return receipt requested, to the other party as follows: to
Lessor at Xxxxxx Plaza Limited Partnership, 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx,
XX 00000; to Lessee at Leased Premises. Additional copies may be sent by any
post to any other address where such parties also may be reached. Such
addresses may be changed by written notice of the addressee.
6. LEASE EXECUTION AUTHORIZATION: The person or persons executing this
Lease on behalf of Lessee shall be presumed to be authorized to bind Lessee in
all future actions pertaining to this Lease. Lessee agrees to be bound by the
actions and communications of such person or persons unless Lessee notifies
Lessor in writing that authority to such person or persons has been terminated
and supplies Lessor with the names and addresses of new persons who are
authorized to act on behalf of Lessee in connection with this Lease.
7. WAIVERS: No waiver of any term, condition, or covenant of this Lease
may be presumed but must be made in writing by the part so waiving to the other
party. No acceptance by Lessor from Lessee of any amount paid for any reason
under this Lease in a sum less than what is actually owing will constitute a
compromise, settlement,
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accord, and satisfaction, or other final disposition of the amount owing in the
absence of writing from Lessor to the contrary.
8. INTEREST ON OBLIGATIONS: Any payments regularly scheduled under this
Lease as daily, monthly, or annual charges, whether construed as rent or
otherwise, will be due promptly and will bear interest from the due date of
fifteen (15) percent per annum until actually paid.
9. PREVENTION OF PERFORMANCE: Any prevention, delay, or stoppage of work
to be performed by Lessor or Lessee which is due to strikes, labor disputes,
inability to obtain labor, materials, equipment, or reasonable substitutes
therefore, Acts of God, governmental restriction or regulations or controls,
judicial orders, enemy or hostile government actions, civil commotion, fire or
other casualty, or other cases beyond the reasonable control of the party
obligated to perform hereunder, shall excuse performance of the work by that
party for a period equal to the duration to that prevention, delay, or stoppage.
Nothing in this Section 19.01 shall excuse or delay Lessee's obligation to pay
rent or other charges under this Lease.
SECTION 22.01 - BANKRUPTCY:
In the event Lessee or Lessor shall file a voluntary petition in
bankruptcy, make assignments for the benefit of all or substantially all of
their respective assets, or fail to secure dismissal of an involuntary petition
in bankruptcy within sixty (60) days after filing thereof, then such an event
shall be deemed an act of default and the nondefaulting party may terminate this
Lease upon ten (10) days written notice to the other.
SECTION 23.01 -SURRENDER OF PREMISES:
Upon termination of this Lease by lapse of time or otherwise, Lessee shall
surrender the Premises in as good condition as they were in at the beginning of
the Term, ordinary wear and tear for alterations, changes, or additions, made in
compliance with this Lease, Acts of God, or other casualty excepted.
SECTION 24.01 - NOTICES:
Any notice, demand, request, or consent that either party desires or is
required to be given by this Lease shall be in writing and shall be deemed
sufficient if sent by United States mail to the following:
LESSOR: LESSEE:
Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxx XXXXXXX XXXXXXXXXX
0000 Klosters Court 000 Xxxxxx Xxxx Xxxxx 000
Xxxxxx Xxxxxxx, XX 00000 Xxxx, Xxxxxx 00000
SECTION 25.01 - EXHIBITS:
All Exhibits referred to are attached to this Lease and incorporated herein
by reference.
SECTION 26.01 - INTERPRETATION:
This Lease shall be construed and interpreted in accordance with the laws
of the State of Nevada.
SECTION 27.01 - WAIVERS:
No delay or omission by either party in exercising any right occurring upon
any noncompliance or default by the other party with respect to any of the terms
hereof shall impair any such right or be construed to waiver thereof. A waiver
by either party of any of the covenants and agreements to be performed by the
other shall not be construed to be a waiver of any succeeding breach thereof or
of any other covenants or agreements herein contained.
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SECTION 28.01 - HEIRS AND SUCCESSORS:
Subject to the provisions hereof pertaining to assignment and subletting,
the covenants and agreements of this Lease shall be binding upon the heirs,
legal representatives, successors, and assignees of the parties hereto.
SECTION 29.01 - CORPORATE AUTHORITY:
If Lessee is a corporation, each individual executing this Lease on behalf
of said corporation represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of said corporation or in accordance
with the By-Laws of said corporation, and that this Lease is binding upon said
corporation in accordance with its terms. If Lessee is a corporation, Lessee
shall within thirty (30) days after execution of this Lease, deliver to Lessor a
certified copy of a resolution of the Board of Directors of said corporation
authorized or rectifying the execution of this Lease.
SECTION 30.01 - RECORDATION:
This Lease shall not be recorded unless both parties mutually agree to the
content of the short form.
SECTION 31.01 - CAPTIONS:
The captions used in this Lease shall have no effect on its interpretation.
SECTION 32.01 - ATTORNEY'S COSTS:
If by reason of any default on the part of Lessee or Lessor, the
non-defaulting party shall bring suit to recover any rent due hereunder, or for
the breach of any provision of this Lease or to recover possession of the
Premises, or if Lessee shall bring any action for any relief against Lessor,
declaratory or otherwise arising out of this Lease, or if any party to this
Lease institutes a lawsuit against the other party; which arises out of or
related to this Lease, the prevailing party shall have recovery against the
other party in addition to the costs allowed by law, such sums as the court may
judge to be a reasonable attorney's fees.
SECTION 33.01 - SPECIAL FACTS PERTAINING TO LEASE, INTEGRATED AGREEMENTS, AND
MODIFICATIONS:
1. ENTIRE AGREEMENTS: This Lease constitutes the entire Agreement between
the parties, along with its exhibits and addenda; and no alteration or
modification of such agreement may be made except in writing to the other party
and signed by the party to be charged.
2. INVALIDITY OR UNENFORCEABILITY: If any term, condition, covenant, or
provision of this Lease is held to be invalid or unenforceable, either in itself
or as to any particular party, then the remainder of the Lease, or the
applicability of such provision to other parties, will continue in validity and
force.
SECTION 34.01-ATTACHED EXHIBITS:
Exhibit A: Xxxxxx Plaza Commercial Center
Exhibit B: Demised Premises
Exhibit C: First Amendment to Lease
SECTION 34.01- EASEMENTS:
Lessor reserves the right, from time to time, to grant such easements,
rights, and dedications that Lessor deems necessary or desirable, and to cause
the recordation of Parcel Maps and restrictions, so long as such easements,
rights, dedications, maps, and restrictions do not unreasonably interfere with
this use of the Premises by Lessee. Lessee shall sign any of the aforementioned
documents upon request of Lessor and failure to do so shall constitute a
material default of this Lease by Lessee without the need for further notice to
Lessee.
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IN WITNESS WHEREOF the parties hereto have executed this Lease the day and
year first above written.
LESSOR: LESSEE:
XXXXXX PLAZA LIMITED PARTNERSHIP WESTERN GOLDFIELD S, INC.
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2. Lease Of Additional Space. If, during the team of this Lease, Lessee
-------------------------
desires to occupy any Additional Space, Lessee shall immediately notify Lessor
in writing describing the square footage to be occupied and whether the
Additional Space is comprised of office space, warehouse space, or both. Upon
approval thereof by Lessor, the Lease shall be further amended to include as
part of the Premises the Additional Space and to adjust the rent payable
hereunder to include additional rent at the rate of One and 101100ths Dollar
($1.10) per square foot for office space and Fifty-Five Cents (55 ) per square
foot for warehouse space. The inclusion in the Lease of the Additional Space
shall not extend the term of the Lease. The right to lease the Additional Space
shall be subject to the prior written consent
EXHIBIT "C"
-----------
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment To Lease Agreement ("Amendment") relates to that
certain Lease dated April 1, 2004, by and between XXXXXX PLAZA
PARTNERSHIP("Lessor") and WESTERN COLDFIELDS, INC- ("Lessee").
RECITALS
--------
A. Lessor and Lessee entered into that certain Lease Agreement dated
April 1, 2004("Lease") whereby Lessor leased to Lessee the premises ("Premises")
particularly described on Exhibit "B" to the Lease and is a part of Suite 120
("Suite 120"), 000 Xxxxxx Xxxx, Xxxx, Xxxxxx.
B. For purposes of this Amendment, the following definitions shall apply:
(i) "Additional Space" shall mean any portion of the Remaining Part of
Suite 120 not subject to a lease to other tenant(s).
(ii) "Common Areas" shall mean Men (117), Women (118), Corridor (114),
and Reception (105)
(iii) "Premises" shall mean the approximate 5,000 square feet described by
Exhibit "B" to the Lease.
(iv) "Remaining Part of Suite 120" shall mean all or any part of Suite 120
other than the Premises (i.e., Suite 120 excluding the Premises).
(v) "Suite 120" shall mean all the space within Xxxxx 000, 000 Xxxxxx
Xxxx, Xxxx, Xxxxxx consisting of approximately 15,000 square feet. The
Premises are located within Suite 120
C. The parties desire to amend the Lease to add thereto the following
provisions:
NOW THEREFORE, IT IS AGREED;
1. Common Areas. So long as there are no other tenants occupying
-------------
any part of Suite 120, Lessee shall have the right to use the Common Areas
without further or additional rent. However, upon Lessor leasing any portion of
the Remaining Part of Suite 120 as further set forth in Paragraph 4 hereof.
does not exercise this right to lease all of Suite 120, the Lease shall
terminate at the end of the lease term. Thereupon Lessee shall surrender the
Premises to Lessor as required by the terms of the Lease.
6. Right Of Entry. During the term of the Lease, Lessor, its
--------------
representatives and agents, shall have the right, upon reasonable notice, to
enter upon the Premises for purposes of showing Suite 120, or any portion
thereof, to prospective tenants. Lessor shall use reasonable efforts to minimize
any inconvenience to Lessee; however, Lessor shall not be responsible for any
interruption caused to Lessee thereby, nor will Lessor be responsible to Lessee
for any inconvenience or interruption incurred by Lessee by reason of the
exercise of any of the rights set forth in this Amendment, and there shall be no
16
reduction of rent thereby.
7. Remaining Terms. All remaining terms and provisions of the Lease shall
---------------
remain in full force and effect without modification unless otherwise set in
writing subsequent hereto.
IN WITNESS WHEREOF, the parties have executed this First Amendment To
Lease.
LESSOR: LESSEE:
XXXXXX PLAZA PARTNERSHIP WESTERN GOLDFIELDS, INC.
By _____________________ By _______________________
Its ____________________ Its ______________________
Date It ________________ Date _____________________
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