ONECAP
A Nevada Corporation
Exhibit 10 n.
Sublease Agreement with Sierra Pacific Energy Corporation,
Dated July 9, 2000
SUBLEASE
THIS SUBLEASE ("Sublease") is made and entered into as of this
/s/ 9th day of July, 2000 by and between Sierra Pacific Energy
Company, a Nevada corporation ("Sublessor"), and OneCap, a Nevada
corporation, on behalf of itself and its corporate affiliates and
subsidiaries ("Sublessee"), with respect to the following facts:
A. Sublessor is the tenant of that certain real
property situated in the County of Xxxxx, State of
Nevada, designated by number and street as 5450 W.
Sahara Avenue, 2nd floor, City of Las Vegas, which
includes all improvements located thereon (the
"Premises"), all pursuant to the terms and conditions
of a lease dated, June 23, 1999, by and between
Xxxxxx Incorporated as Landlord ("Master Landlord")
and Sublessor as Tenant, a copy of which is attached
hereto as Exhibit "A" and by this reference
incorporated herein (the "Master Lease"); and
B. Sublessor desires to sublease the Premises to
Sublessee as set forth herein.
NOW, THEREFORE, in consideration of mutual covenants and promises
contained herein, and for valuable consideration, the receipt and
sufficiency which are hereby mutually acknowledged and confessed,
the parties hereby agree as follows:
1. Premises.
Sublessor hereby subleases the Premises to Sublessee and
Sublessee hereby subleases the Premises from Sublessor for the
Term (as defined herein), at the rental rate and upon all the
conditions set forth herein.
2. Term.
2.1 The Term of this sublease shall be for the period
commencing on July 2000 (the "Commencement Date") and ending on
January 31, 2003 (the "Expiration Date") unless sooner terminated
pursuant to any provision hereof.
2.2 Sublessee shall have the option which shall be
exercised in writing no later than July 3, 2002, to extend the
sublease for an additional twenty (20) months through September
30, 2004.
2.3 Notwithstanding said Commencement Date, if for any
reason Sublessor cannot deliver possession of the Premises to
Sublessee on said date, Sublessor shall not be subject to any
liability therefore, nor shall such failure affect the validity
of this Sublease or the obligations to Sublessee hereunder or
extend the Term hereof, but in such case, Sublessee shall not be
obligated to pay Rent (as defined herein) until possession of the
Premises is tendered to Sublessee; provided, however, that if
Sublessor shall not have delivered possession of the Premises
within sixty (60) days from -aid Commencement Date, Sublessee
may, at Sublessee's option, by notice in writing to Sublessor
within ten (10) days thereafter, cancel this Sublease, in which
event the parties shall be discharged from all obligations
thereunder.
3. Rent.
Sublessee shall pay to Sublessor as Rent for the Premises
equal monthly payments of $19,759.50, in advance, on the 1st day
of each month of the Term hereof
For the period 8/1/00 - 9/30/00
and
$20,549.88 for the period 10/1
/00 - 9/30/01 and
$21,340.26 for the period 10/1/01
- 9/30/02 and
$22,130.64 for the period 10/1/02
- 9/30/03* and
$23,052.75 for the period 10/1/03
- 9/30104*
(*to the extent the Term is extended through Sublessee's
option is continuing during this period of time), and
parking charges as specified in Ex. E to the Master Lease.
Sublessee shall pay Sublessor upon the execution hereof,
$19,759.50 as rent for August, 2000, and $300.00 for parking as
specified in Ex. E to the Master Lease. Rent for any period
during the Term hereof which is for less than one month shall be
a pro rata portion of the monthly installment, except no rent
shall be due from Sublessee for the period July 8, 2000 thru July
31, 2000. Rent shall be payable in lawful money of the United
States to Sublessor at the address stated herein or to such other
persons or at such other places as Sublessor may designate in
writing.
4. Security Deposit.
Sublessee shall deposit with Sublessor upon execution
hereof, $19,759.50 as security for Sublessee's faithful
performance of Sublessee's obligations hereunder. If Sublessee
fails to pay Rent or other charges due hereunder, or otherwise
defaults with respect to any provision of this Sublease,
Sublessor may use, apply or retain all or any portion of said
Security Deposit for the payment of any Rent or other charge in
default, or for the payment of any other sum to which Sublessor
may become obligated by reason of Sublessee's default, or to
compensate Sublessor for any loss or damage which Sublessor may
suffer thereby. If Sublessor so uses or applies all or any
portion of said Security Deposit, Sublessee shall within ten (10)
days after written demand therefore, deposit cash with Sublessor
in an amount sufficient to restore said Security Deposit to the
full amount hereinabove stated and Sublessee's failure to do so
shall be a material breach of this Sublease. Sublessor shall not
be required to keep said Security Deposit separate from its
general accounts. If Sublessee performs all of its obligations
hereunder, said Security Deposit, or so much thereof as has not
theretofore been applied by Sublessor, shall be returned, without
payment of interest or other increment for its use to Sublessee
(or at Sublessor's option, to the last assignee, if any, of
Sublessee's interest hereunder) within thirty(30) days of the
expiration of the Term hereof, and after Sublessee has vacated
the Premises. No trust relationship is created herein between
Sublessor and Sublessee with respect to said Security Deposit.
5. Use.
5.1 The Premises shall be used and occupied only for
general office and administrative purposes and for no other
purpose.
5.2 Sublessor warrants to Sublessee that the Premises, in
its existing state but without regard to the use for which
Sublessee will use the Premises, does not violate any applicable
building code regulation or ordinance at the time that this
Sublease is executed. In the event that it is determined that
this warranty has been violated, then it shall be the obligation
of the Sublessor, after written notice from Sublessee, to
promptly, at Sublessor's sole cost and expense, rectify any such
violation. In the event that Sublessee does not give to Sublessor
written notice of the violation of this warranty within one (1)
year from the Commencement of the Term of this Sublease, it shall
be conclusively deemed that such violation did not exist and the
correction of the same shall be the obligation of the Sublessee.
5.3 Except as provided in paragraph 5.2 above, Sublessee
shall, at Subleessee's expense, comply promptly with all
applicable statutes, ordinances, rules, regulations, orders,
restrictions of records, and requirements in effect during the
Term or any part of the Term hereof regulating the use by
Sublessee of the Premises. Sublessee shall not use or permit the
use of the Premises in any manner that will tend to create waste
or a nuisance or, if there shall be more than one tenant of the
building containing the Premises, which shall tend to disturb
such other tenants.
5.4 Except as provided in paragraph 5.2 above, Sublessee
herein accepts the Premises in their condition existing as of the
date of the execution hereof, subject to all applicable zoning,
municipal, county and state laws, ordinances, and regulations
governing and regulating the use of the Premises, and accepts
this Sublease subject thereto and to all matters disclosed
thereby and by any exhibits attached hereto. Sublessor represents
that no liens have been filed against the Premises as a result of
Sublessor's failure to pay or perform any of its obligations.
Sublessee acknowledges that neither Sublessor nor Sublessor's
agent have made any representation or warranty as to the
suitability of the Premises for the conduct of Sublessee's
business.
6. Master Lease.
6.1 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
6.2 The terms, conditions and respective obligations of
Sublessor and Sublessee to each other under this Sublease shall
be the terms and conditions of the Master Lease including
Exhibits A - F except for those provisions of the Master Lease
which are directly contradicted by this Sublease in which event
the terms of this Sublease document shall control over the Master
Lease. Therefore, for the purposes of this Sublease, wherever in
the Master Lease the word "Landlord" is used, it shall be deemed
to mean the Sublessor herein and wherever in the Master Lease the
word "Tenant" is used, it shall be deemed to mean the Sublessee
herein.
6.3 During the Term of this Sublease and for all periods
subsequent thereto for obligations which have arisen prior to the
expiration or termination of this Sublease, Sublessee does hereby
expressly assume and agree to perform and comply with, for the
benefit of Sublessor and Master Landlord, each and every
obligation of Sublessor under the Master Lease except for
covenants and conditions which are related solely to or within
the exclusive control of Sublessor
6.4 The obligations that Sublessee has assumed under
paragraph 6.3 hereof are hereinafter referred to as the
"Sublessee's Assumed Obligations". The obligations that Sublessee
has not assumed under paragraph 6.3 hereof are hereinafter
referred to as the "Sublessors Remaining Obligations".
6.5 Sublessee shall hold Sublessor free and harmless of and
from all liability, judgments, costs, damages, claims or demands,
including reasonable attorneys; fees arising out of Sublessee's
failure to comply with or perform Sublessee's Assumed
Obligations.
6.6 Sublessor agrees to maintain the Master Lease during
the entire Term of this Sublease, subject, however, to any
earlier termination of the Master Lease without the fault of the
Sublessor, and to comply with or perform Sublessor's Remaining
Obligations and to hold Sublessee free and harmless of and from
all liability, judgments, costs, damages, claims or demand
arising out of Sublessor's failure to comply with or perform
Sublessor's Remaining Obligations.
6.7 Sublessor represents to Sublessee that the Master Lease
is in full force and effect and that no default exists on the
part of any party to the Master Lease.
6.8 Sublessee succeeds to Sublessor's rights as set forth
in Exhibit F. The signature signage displayed on the Sahara Vista
11 Professional Building shall be: "OneCap", and the triangle
logo.
7. Assignment of Sublease in Default.
7.1 If Sublessor shall default in the performance of its
obligations under the Master Lease, then Master Landlord may, at
its option, receive and collect, directly from Sublessee, all
Rent owing and to be owed under this Sublease but only to the
extent Sublessee has not already paid the Rent to Sublessor.
Master Landlord shall not, by reason of such default by Sublessor
under the Master Lease, nor by reason of the collection of the
Rents from the Sublessee, be deemed liable to Sublessee for any
failure of the Sublessor to perform and comply with Sublessor's
Remaining Obligations.
7.2 Sublessor hereby irrevocably authorizes and directs
Sublessee, upon receipt of any written notice from the Master
Landlord stating that a default exists in the performance of
Sublessors obligations under the Master Lease, to pay to Master
Landlord the Rents due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon
any such statement and request from Master Landlord, and that
Sublessee shall pay such Rents to Master Landlord without any
obligation or right to inquire as to whether such default exists
and notwithstanding any notice from or claim from Sublessor to
the contrary and Sublessor shall have no right or claim against
Sublessee for such Rents so paid by Sublessee.
8. Consent of Master Landlord.
8.1 In the event that the Master Lease requires that
Sublessor obtain the consent of Master Landlord to any subletting
by Sublessor then this Sublease shall not be effective unless
within ten (10) days of the date hereof, Master Landlord gives
its consent to this subletting.
8.2 In the event that Master Landlord does give such
consent then:
8.2.1Such consent will not release Sublessor of its
obligations or alter the primary liability of Sublessor to
pay the Rent and perform and comply with all of the
obligations of Sublessor to be performed under the Master
Lease.
8.2.2The acceptance of Rent by Master Landlord from
Sublessee or anyone else liable under the Master Lease shall
not be deemed a waiver by Master Landlord of any provisions
of the Master Lease.
8.2.3The consent to this Sublease shall not constitute
a consent to any subsequent subletting or assignment. it is
acknowledged that OneCap is procuring this office space for
itself and its corporate affiliates and subsidiaries and in
so doing is not subletting or assigning the Sublease in
contradiction of this provision.
8.2.4 In the event of any default of Sublessor under the
Master Lease, Master Landlord may proceed directly against
Sublessor, any guarantors or anyone else liable under the
Master Lease or this Sublease without first exhausting
Master Landlord's remedies against any other person or
entity liable thereon to Master Landlord.
8.2.5Master Landlord may consent to subsequent
sublettings and assignments of the Master Lease or this
Sublease or any amendments or modifications thereto without
notifying Sublessor or anyone else liable under the Master
Lease and without obtaining their consent and such action
shall not relieve such persons from liability.
8.2.6In the event that Sublessor shall default in its
obligations under the Master Lease, the Master Landlord, at
its option and without being obligated to do so, may require
Sublessee to attorney to Master Landlord in which event
Master Landlord shall undertake the obligations of Sublessor
under this Sublease from the time of the exercise of said
option to the Expiration Date or earlier termination of this
Sublease but Master Landlord shall not be liable for any
prepaid rents nor shall Master Landlord be liable for any
other defaults of the Sublessor under the Sublease,
8.2.7Sublessor will notify Sublessee of any notices or
matters requesting a response received from a lendor,
creditor, assignee, or successor in interest of the Master
Landlord, and Sublessor will undertake any actions pursuant
to such notice or matter to preserve Sublessee's rights under
this Sublease and the Master Lease.
8.3 The signatures of any guarantors of Sublessor or
Sublessee at the end of this document shall constitute their
consent to terms of this Sublease.
8.4 Sublessor acknowledges that no default presently
exists under the Master Lease of obligations to be performed
by Sublessor and that the Master Lease is in full force and
effect.
9. Notices.
All notices, demands, requests, consents, approvals or other
communications (for the purposes of this section collectively
called "Notices"), required or permitted to be given hereunder,
or which are given with respect to this Sublease shall be in
writing, and shall be given by express mail, Federal Express,
DHL, or other similar form of airborne/overnight delivery
service, or mailing in the United States mail by registered or
certified, return receipt requested, postage prepaid, addressed
to the appropriate party(les) as follows:
To Sublessor: Sierra Pacific Energy Company
Attn: Pres
X.X. Xxx 000, Xxx Xxxxx, XX. 00000
To Sublessee: OneCap
Attn: X. Xxxxxx
0000 X. Xxxxxx Xxx., Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000
To Master Landlord:
or such other address as the party (ies) shall have specified
most recently by like Notice. Any Notice shall have been deemed
to have been given upon delivery if made by express mail, Federal
Express, DHL, or any other similar form of airborne or overnight
delivery service, upon actual receipt, or if not received, upon
the third business day following the date mailed, as provided
herein. Sublessor, Sublessee and Master Landlord, and their
respective counsel, hereby agree that if Notice is given
hereunder by Sublessor's or Sublessee's counsel, such counsel may
communicate directly with all principals, as required to comply
with the foregoing Notice provisions.
10. Laws and Jurisdiction.
This Sublease shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State
of Nevada applicable to agreements made and to be performed
wholly within the State of Nevada.
11. Entire Agreement.
This Sublease contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior understandings, if any, with respect thereto. This
Sublease may not be modified, changed, or supplemented, nor may
any obligations hereunder be waived, except by written instrument
signed by the parties or by an agent duly authorized in writing
or as otherwise expressly permitted herein. The parties do not
intend to confer any benefit hereunder on any person, firm or
corporation, other than the parties hereto.
12. Waiver .
No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any proceeding or
succeeding breach thereof, or of any other agreement or provision
herein contained. No extension of time for performance of any
obligations or acts shall be deemed an extension of time for
performance of any other obligations or acts contained herein.
13. Attorneys' Fees.
Should either party institute any action or proceeding to
enforce or interpret this Sublease, or any provision hereof, or
for damages by reason of any alleged breach of this Sublease, or
any provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and expenses,
including reasonable attorneys, and other fees, incurred by the
prevailing party in connection with such action or proceeding.
The term "attorneys' and other fees" shall mean and include
attorneys' fees, accountants' fees, and any and all other similar
fees incurred in the preparation of the action or proceeding. The
term "action" or "proceeding" shall mean and include actions,
proceedings, suits, arbitrations, appeals and other similar
proceedings.
14. Further Agreement
Sublessor and Sublessee each agree to do such further acts,
deeds and things and execute and deliver such additional
agreements and instruments as the other may reasonably require to
consummate, evidence or confirm the transaction (s) and/or any
other agreements(s) contemplated hereby or contained herein in
the manner contemplated by this Sublease.
IN WITNESS WHEREOF, the parties have executed this Sublease as of
the day and year first above written.
Sublessor: Sublessee:/s/ OneCap
BY:/s/ By:/s/ Xxxxxxx X. Xxxxxx
lts:/s/ President Its:President
Date:7/7/00 Date:7/6/00
By-: By:
Its: Its:
Date: Date:
3
LEASE AGREEMENT
THIS LEASE made and entered into this 23rd day of June,
1999, by and between Xxxxxx Incorporated, a Nevada corporation
(Landlord"), and Sierra Pacific Energy Company, a Nevada
corporation, d/b/a Nevada Power Services ("Tenant").
SECTION 1
DEMISE
1.01. Upon the conditions, limitations, covenants and
restrictions herein, Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, an area in the Sahara Vista
II Professional Building located at 0000 X. Xxxxxx Xxx., 00xx
xxxxx Xxx Xxxxx, Xxxxxx 00000 (hereinafter the "Building")
consisting of a total of approximately 13,173 gross rentable
square feet of floor space (hereinafter "Leased Property")
located in Las Vegas, Xxxxx County, Nevada, said Leased Property
being more specifically indicated on Exhibit A attached hereto
and incorporated herein by reference.
SECTION 2
TERM
2.01. The term of this Lease shall be for a period of
60 months, commencing on the first day of the month next
succeeding the Commencement Date, as hereinafter defined, unless
terminated earlier as elsewhere herein provided. So long as
Tenant is not in default hereunder beyond any applicable cure
period, Tenant shall have the right to extend the term hereof
for one (1) additional periods of three (3) Lease Years by
giving Landlord written notice thereof not later than three (3)
months and no earlier than six (6) months prior to expiration of
the original term, or the first extension period, as the case
may be. During the extension periods annual rental escalations
shall continue according to section 3.02 and all terms and
provisions of this Lease shall apply. At such time as the
Commencement Date shall have been established, Landlord and
Tenant shall execute a memorandum confirming said date and the
same shall be marked Exhibit B, and be attached hereto and be
deemed incorporated herein by reference. In the event that
Tenant fails or refuses to open the Leased Property for, and to
commence the conduct of, its business within forty-five (45)
days after the Commencement Date, then, at the option of
Landlord, Landlord may treat such failure or refusal as an event
of default. Should Landlord not terminate this Lease, Landlord
may, without waiving its right to thereafter terminate this
Lease for such failure to open, collect all rents due hereunder.
2.02. The words "Commencement Date" whenever used on
this Lease shall be deemed to refer to the date Landlord notifies
Tenant that the Leased Property and the improvements provided for
in Section 7 and Exhibit C hereof have been completed (in
accordance with Exhibit A and Exhibit C), or as soon as Tenant
commences to do business in, upon or from the Leased Property,
whichever first occurs. However, as used herein, delivery of
possession shall mean the date when Tenant receives notification
by Landlord that Landlord has completed its construction
obligations pursuant to this Section, including any material
corrections and as has received a Certificate of Occupancy or
temporary Certificate of Occupancy as issued by the City of Las
Vegas Building Department.
2.03. Notwithstanding the Commencement Date, if for any
reason Landlord cannot deliver possession of the Leased Property
within thirty (30) days of said date, Tenant may terminate this
Lease without any liability whatsoever to Landlord. If this
Agreement is terminated pursuant to this Section, Landlord shall
return any monies previously deposited by Tenant and the parties
shall be discharged from all obligations hereunder.
2.04. Should Tenant hold possession of the Leased
Property with the consent of Landlord after the expiration of the
stated term of this Lease, such holding over shall create a
tenancy from month to month only, upon the same terms and
conditions as are hereinafter set forth, except that basic
monthly rent shall be one hundred fifty percent (150%) of the
amount set forth in Section 3 hereof.
SECTION 3
RENT
3.01. Subject to adjustment as hereinafter provided,
during the term hereof Tenant shall pay Landlord a monthly basic
rental of nineteen thousand seven hundred fifty nine and 50/100
dollars ($19,759.50), per month ("Basic Rent").
3.02After each lease year the Basic Rent for the succeeding
lease year shall be increased at the fixed rate of four percent
(4.0%) per lease year over the entire term of the lease
("Adjusted Basic Rent"). The Adjusted Basic Rent shall be due and
payable for each month commencing with the first month of the
second lease year of this Lease.
Landlord shall, within a reasonable time after obtaining
the appropriate data necessary for computing such increase, give
Tenant notice of any Adjusted Basic Rent so determined, and
Landlord's computation thereof shall be conclusive and binding,
but shall not preclude any adjustment which may be required in
the event of a published amendment of the index figures upon
which the computation was based, unless Tenant shall, within
thirty (30) days after the giving of such notice, notify Landlord
in writing of any claimed error therein.
3.03. Basic Rent shall be paid to Landlord in advance of
the first day of each calendar month during the term of this
Lease. Simultaneously with the execution hereof, Tenant has paid
to Landlord the first month's rent, receipt whereof is hereby
acknowledged, subject to collection, however, if made by check.
In the event the Commencement Date occurs on a day other than the
first day of the month, then rent shall be paid on the
Commencement Date for the initial fractional month prorated on a
per-diem basis. Rent for the first month is payable upon
execution of this Lease Agreement. Except as otherwise stated in
this Agreement, all rent and other monies required to be paid by
Tenant hereunder shall be paid to Landlord without deduction or
offset, prior notice or demand, in lawful money of the United
States of America, at: 0000 X. Xxxxxx Xxxxxx,0xx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000. All Rent and/or any other sums which are due
and payable to Landlord which are paid late by Tenant are subject
to a late charge as described in section 29 herein.
3.04. If Tenant shall fail to pay, when the same is due
and payable, any Basic Rent, or any additional rent, or any other
amount or charges to be paid be Tenant hereunder, such unpaid
amount shall bear interest from the due date thereof to the date
of payment at the reference rate or "prime rate" of interest as
announced from time to time by Bank of America, Nevada plus six
percent (6%) per annum, adjusted effective with the change in the
reference or prime rate ( the "Default Rate").
3.05. The obligation of Tenant to pay Rent and other
sums hereunder provided to be paid by Tenant and the obligation
of Tenant to perform Tenant's other covenants and duties
hereunder constitute independent, unconditional obligations to be
performed at all times provided for hereunder, save and except
only when an abatement thereof or reduction herein is hereinabove
expressly provided for and not otherwise. Except as otherwise
stated in this Agreement, Tenant waives and relinquishes all
rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or offset against any rental
and other sums provided hereunder to be paid to Landlord by
Tenant.
3.05.1. Whenever Tenant shall be prevented in whole or in
part from the free, uninterrupted and unimpeded enjoyment of the
use of the Leased Property and the fixtures therein, by reason of
default of the Landlord, or by reason of Landlord's making any
repairs, alterations, extensions or additions to the Leased
Property and the fixtures therein, or the Building of which the
same is a part, then and in each and all such cases, Tenant shall
be allowed an abatement of rent and other charges payable
hereunder, unless Tenant otherwise uses or consumes other charges
in whole or in part based upon the duration and the extent of
such interrupted enjoyment.
SECTION 4
SECURITY DEPOSIT
Landlord hereby waives any requirement to have Tenant deposit or
otherwise pay a security deposit to Landlord under this Lease.
SECTION 5
POSSESSION AND SURRENDER OF LEASED PROPERTY
5.01. (This subsection intentionally left blank)
5.02. Upon the expiration or sooner termination of the term
of this Lease, if, and only if, Tenant has fully and faithfully
performed all of its obligations hereunder, Tenant shall, at its
sole cost and expense, remove all personal property which Tenant
has installed or placed on the Leased Property ("Tenant's
Property") from the Leased Property and repair all damage thereto
resulting from such removal and Tenant shall thereupon surrender
the Leased Property in the same or better condition as when the
Leased Property was ready for occupancy, reasonable wear and tear
excepted. If Tenant has not fully and faithfully performed all of
its obligation under this Lease, Tenant shall nevertheless remove
Tenant's property from the Leased Property, upon Landlord's
written direction, in the same manner, and upon the same terms
and conditions, as provided above. In the event Tenant shall fail
to remove any of Tenant's Property as provided herein, Landlord
may, but is not obligated to, at Tenant's expense, remove all
such property not so removed and repair all damage to the Leased
Property resulting form such removal, and Landlord shall have no
responsibility to Tenant for loss or damage to said property
caused by or resulting from such removal or otherwise.
5.03. Tenant covenants to occupy the Leased Property
throughout the term hereof.
5.04. If the Leased Property is not surrendered at the
end of the lease term, Tenant shall indemnify Landlord against
loss or liability resulting from delay by Tenant in so
surrendering the Leased Property, including, without limitation,
any claims made by any succeeding tenant founded on such delay.
5.05. (This subsection intentionally left blank)
SECTION 6
USE OF LEASED PROPERTY
6.01. The Leased Property is leased to Tenant for use by
Tenant solely for use as Administrative Offices or any other
lawful purpose. Landlord shall maintain reasonable approval
rights for any other use. Tenant shall not use or suffer to be
used the Leased Property, or any portion thereof, for any other
purpose or purposes whatsoever.
6.02. Tenant shall at all times, during the term hereof,
comply with all governmental rules, regulations, ordinances,
statutes and laws, and the orders and regulators of the Insurance
Services Office or any other body now or hereafter exercising
similar functions, now or hereafter in effect pertaining to the
Building, the Leased Property or Tenant's use thereof and,
subject to Section 7 hereof, Tenant shall make all necessary or
appropriate changes or repairs whether ordinary or
extra-ordinary, foreseen or unforeseen, required thereby. Tenant
shall not do, or permit or suffer anything to be done or kept in,
on or about the Leased Property which will obstruct or interfere
with the rights of other tenants, Landlord or any of their
agents, employees, servants, contractors, subtenants, licensees,
customers or business invitees, or which will annoy any of them
by unreasonable noise or otherwise, nor will Tenant commit or
permit any nuisance in, on or about the Leased Property or permit
any immoral or illegal act to be committed in, on or about said
Leased Property. Except as provided for elsewhere herein, Tenant
shall maintain the Leased Property in good condition and repair,
including, but without limitation, the exterior and interior
portion of all doors, plate glass, all plumbing and sewage
facilities within the Leased Property (including maintaining free
flow up to the main sewer line); interior fixtures, walls, floors
and ceilings in the Leased Property; and any work performed by or
on behalf of Tenant hereunder. Tenant's obligation for
maintenance and repair does not extend to structural portions of
the building, exterior roof, walls, foundations, parking lot and
any and all offsite improvements and systems.
6.03. Tenant hereby covenants that it, its agent,
employees, servants, contractors, subtenants, customers,
licensees and business invitees shall abide by the rules and
regulations attached hereto as Exhibit 0 and incorporated herein
by reference and shall abide by such additional rules and
regulations, including amendments and modifications thereof, as
Landlord may, from time to time, reasonably adopt for the safety,
care and cleanliness of the Leased Property or of the Building or
the adjoining grounds or for the preservation of good order
thereon. Landlord shall not be liable for the failure of any
tenant or occupant of the Building to comply with such rules and
regulations or with the terms of any lease of space in the
Building, but Landlord shall attempt to compel compliance by all
tenants with such rules and regulations and the terms of their
respective leases.
6.04. Tenant is hereby given the exclusive right and
privilege on the Leased Property of conducting its energy
services business. Said exclusive right shall be limited to 0000
X. Xxxxxx Xxx., Xxx Xxxxx, Xxxxxx.
6.05. Any changes, alterations, improvements, or
additions, structural or otherwise, to or of the common areas of
the Building or any part thereof, which may be made necessary or
required by reason of any law, rule, regulation or order,
promulgated by competent governmental authority, shall become
part of the "Building Operating Costs" pursuant to Section 3.03.2
herein, however, Landlord shall pay any amount by which the
expense of said modifications during any calendar year exceeds
the amount of $50,000.
6.05.1. Any changes, alterations, improvements, or
additions, structural or otherwise, to or of the Leased Property
or any part thereof, which may be made necessary or required by
reason of any law, rule, regulation or order, promulgated by
competent governmental authority, shall be made by and at the
sole cost and expense of Landlord. Nothing herein contained shall
require Tenant to continuously operate an energy services
establishment or any other particular type of business.
SECTION 7
IMPROVEMENTS
7.01. Landlord shall install those improvements, and
only those improvements, required to be installed by it pursuant
to Floor plan known as Exhibit A and Building Standard
Specifications known as Exhibit C attached hereto and
incorporated herein by reference. Said improvements shall be
constructed in accordance with the plans and specifications
adopted pursuant to said Exhibit C, however, material deviations
and substitutions shall be allowed upon consent of Tenant which
shall not be unreasonably withheld.
7.02. It is understood and agreed by Tenant that any
minor changes from any plans or specifications which may
hereafter be made during construction shall not effect or change
this Lease or invalidate the same. Tenant shall pay to Landlord
any expense incurred by Landlord as a result of changes requested
by Tenant which affect Landlord's work. In addition, prior to the
commencement of such work, Tenant, if required by Landlord, shall
secure, at Tenant's expense, performance, labor and materials
bonds for the full cost of such work satisfactory to Landlord,
Landlord will direct electricians as to where and how telephone
wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the
Leased Property shall be subject to the approval of Landlord.
Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of
the Leased Property in any manner except as approved by Landlord.
The roof of the Leased Property shall not be penetrated without
Landlord's prior written consent.
7.03. Tenant shall observe and perform all of its
obligations under this Lease (except its obligations to pay rent)
from the date upon which the Leased Property is made available
for Tenant's work until the Commencement Date in the same manner
as though the lease term began when the Leased property was so
made available to Tenant.
7.04. Tenant, at its sole cost and expense, may make
additional additions, alterations, improvements or changes
("improvements") in and to the Leased Property, provided,
however, that Tenant shall not make any such improvements
without the prior written consent of Landlord which shall not be
unreasonably withheld.. All improvements made by Tenant pursuant
to this Section 7 shall be made promptly and in good and
xxxxxxx-like manner and in compliance with all insurance
requirements and with all applicable permits and authorizations,
and all other governmental rules, regulations, ordinances,
statutes and laws, and all rating bureau recommendations, now or
hereafter in effect pertaining to the Leased Property or
Tenant's use thereof. Prior to the commencement of such work,
Tenant shall give evidence to Landlord that appropriate
insurance satisfactory to Landlord has been obtained for the
protection of Landlord and its tenants and invitees from damage
or injury resulting from the making of such improvements.
7.05. Landlord's approval of any drawings, plans or
specifications shall not constitute any assumption of any
liability for the accuracy or sufficiency thereof.
7.06. Any improvements installed or constructed by
Tenant pursuant to this Section 7 shall at Landlord's option
become the property of Landlord upon the expiration or sooner
termination of this Lease. However, Landlord shall have the right
to require Tenant to remove any or all improvements, at Tenant's
sole cost and expense, upon such termination of this Lease and to
surrender the Leased Property in the same condition as it was
prior to the making of any or all such improvements, including
the removal of submetering and electrical system to Landlord's
specification metering and electrical system, reasonable wear and
tear excepted. Nothing herein contained shall be construed to
require tenant to make or pay for any repair, alteration,
improvement, or addition, or to do any other act or thing which
Landlord is required to make or do under any provision of this
Lease, or which is required or becomes necessary at any time
because of any failure of Landlord to perform any of its
obligations hereunder.
7.07. In order to expedite the commencement of Tenant's
business in the Leased Property, at any time after Landlord
notifies Tenant that Landlord's construction of Improvements
hereof has been substantially completed, Tenant may enter upon
the Leased Property for the purpose of installing trade fixtures
and furnishings and taking any other action deemed appropriate by
Tenant with respect to the Leased Property prior to the
Commencement Date. Tenant shall pay for all utilities consumed by
Tenant and its contractors in preparing the Leased Property for
the opening of Tenant's business, but shall not by reason of such
entry be required to pay any rent. Tenant shall not interfere
with the completion by Landlord of the construction of the
Improvements.
7.08. Landlord agrees that the Improvements shall be
constructed in a sound and workmanlike manner and in accordance
with all applicable federal, state and local laws, ordinances,
rules and regulations. Landlord warrants to Tenant that all
materials furnished in connection with the construction of the
Improvements will be new unless otherwise specified, and that
such construction will be of good quality in accordance with
industry standards, free from faults and latent and patent
defects and in conformance with the Plans. Construction work not
so conforming to these standards may be considered defective. No
payment or payments of rent hereunder shall be construed to
constitute an acceptance by Tenant of improper materials or
workmanship that do not conform to the requirements of the Plans
and the terms hereof.
7.09. Landlord shall indemnify and hold harmless Tenant,
its officers, directors, shareholders, agents, representatives,
employees and attorneys from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs
and expenses of any nature asserted against or incurred b~ Tenant
and arising out of or in connection with Landlord's construction
of the Improvements.
7.10. Notwithstanding the above, if Tenant enters the
Premises to commence any work, which causes delay to the
Certificate of Occupancy or Temporary Certificate of Occupancy,
the commencement of rents shall become thirty (30) days from said
commencement of work.
SECTION 8
SERVICES AND EXPENSES
8.01. Landlord agrees to keep in good order, condition
and repair the foundations, exterior walls and roof of the
Leased Property and the Building (but excluding the exterior and
interior of all doors) and the common areas, except for
reasonable wear and tear and except for any damage thereto
caused by any act or negligence of Tenant or its agents,
employees, servants, contractors, subtenants, licensees,
customers or business invitees. Landlord shall provide Tenant
with heating, ventilation and air conditioning at all times.
Heating, ventilation and air conditioning shall be
thermostatically controlled within the Leased Property and
Tenant agrees to operate the same so that the temperature within
the Leased Property will be sufficient for Tenant's comfort use
and occupancy. Electricity shall be provided by Landlord in
sufficient amounts to provide lighting and to operate an amount
of office machines commonly used in normal office uses excluding
computer operations which require additional or extraordinary
power usage or cooling requirements. /s/ Landlord shall provide
normal janitorial service five (5) days a week and adequate
elevator service to the I eased Property and the Building.
Landlord's obligation to furnish services shall be conditioned
upon the availability of adequate energy sources. Landlord shall
have the right to reduce heat, fighting and power as required by
any mandatory or voluntary fuel or energy conservation program
provided the voluntary reduction does not adversely affect
Tenant's comfort, use and occupancy of the Leased Property.
Except as specifically provided herein, Tenant shall pay, at its
sole cost and expense, all charges for services and utilities
used in, upon or about the Leased Property. Landlord may, from
time to time, prescribe rules and regulations for implementation
of this paragraph. Tenant shall separately meter, contract and
pay all costs for electricity supplied to the Leased Property.
8.02. Landlord shall not be obligated to perform any
service or to repair or maintain any structure or facility except
as provided in this Section and Section 9 hereof. Landlord shall
not furnish telephone facilities or service except as may be
provided in Exhibit C. As the Leased Property are part of an
entire building containing general systems of electricity and
plumbing, Tenant shall have no responsibility for the same beyond
the Leased Property, nor for any portions thereof running
through, in, or across the Leased Property but not serving the
same. Landlord agrees to keep said general systems in repair so
that the portions thereof which are a part of and serve the
Leased Property will function properly if such portions be kept
in good condition and repair by Tenant.
8.02.1. Landlord covenants that it will, at its own cost
and expense, make any and all repairs which may at any time be
necessary by reason of any structural defects in the Leased
Property or the Building or by reason of dry rot or termites, but
only to the extent that such structural defects or failure to
maintain affects the Leased Property, and will repair any and all
damage to the Leased Property which may result therefrom.
8.03.1. Throughout the term hereof, Tenant will pay to
Landlord monthly in advance in addition to the rental specified
in Section 3 hereof, as further additional rent, a pro rata
portion of the amount by which Building Operating Costs, (less
electricity expenses for other Tenants suites), incurred by
Landlord during each calendar year occurring during the term of
this Lease exceed an amount equal to $0.30 per month multiplied
by the gross leasable square footage of the Building, Tenant's
pro rata portion of said amount shall equal the percentage which
the number of gross leasable square feet of the Leased Property
bears to the total number of gross leasable square feet of the
Building.
8.03.2. "Building Operating Costs" shall include all costs and
expenses of every kind or nature incurred by Landlord in the
management, operation, maintenance and repair of the Building and
related structures in a manner deemed by Landlord to be
reasonable and appropriate and for the best interest of the
entire Building and that are generally passed on to tenants in
first class office buildings in the Las Vegas metropolitan area
under Lease provisions similar to this section 8.03.2, as
determined and expensed in accordance with generally accepted
accounting principles. Without otherwise limiting the generality
of the foregoing, there shall be included in such costs and
expenses, all impositions (as defined in section 10.02. herein),
premiums with respect to public liability, property damage,
workmen's compensation, fire and other insurance carried on or
with respect to the Building and related structures, payroll
taxes, unemployment taxes, social security taxes, cleaning of any
facilities, landscaping, signs, lighting, music systems,
janitorial services, management fees, reasonable legal and
accounting expenses, supervising of attendants and employment of
other personnel used in such operations, fire protection
services, alarm systems and equipment, materials and supplies,
painting, striping, removing of rubbish or debris, repair and
maintenance of all building systems including electrical,
plumbing, and mechanical (HVAC) systems, depreciation or rentals
of machinery and equipment, costs of replacement of paving, curbs
and walkways, drainage, repair and maintenance of parking and
other common areas, roof repairs and an administrative fee equal
to five percent (5%) of all of the foregoing excluding costs of
impositions and insurance and any credits to Landlord for
services normally provided to each tenant, but for which a
particular tenant has declined. Said credit shall be the same
amount as if Landlord had actually provided a certain service.
8.03.3. The additional rent provided to be paid in this
Section 8 shall be estimated in advance by Landlord and
one-twelfth (1 /12) of such estimate shall be paid in advance by
Tenant on the first day of each month without further demand or
any deduction or set-off whatsoever. When Landlord shall
ascertain the actual Building Operating Costs for a year,
Landlord shall so notify Tenant and Tenant shall pay to Landlord
on demand the amount, if any, equal to the difference between the
amount due for such year pursuant to this Section 8 and the
amount previously paid hereunder. Should the estimated payments
have exceeded the actual amount due, said excess shall be held by
Landlord and applied to the next monthly payment of additional
rent provided to be paid under this Section 8, and, if necessary,
each monthly payment thereafter until fully exhausted. Tenant
shall not be entitled to receive interest on any additional rent
paid hereunder. No delay by Landlord in submitting any statement
shall constitute a waiver of Landlord's right to submit such
statement and/or receive any additional rent pursuant hereto. The
additional rent due hereunder shall be prorated for the calendar
year in which this Lease terminates. Said amount shall be
calculated and paid as herein provided even though said
calculation may not occur until after the end of the term hereof.
8.03.4. There shall not be included in Building Operating
Costs the payments (such as salaries or fees) to Landlord's
executive personnel; costs for items that, by standard accounting
practice, should be capitalized, unless these costs reduce
operating expenses and are amortized over the reasonable life of
the capital item in accordance with generally accepted accounting
principles and the yearly amortization does not exceed the actual
costs reduction for the relevant year; depreciation or interest
(unless it is related to allowable capital items); taxes on
Landlord's business (such as income, excess profits, franchise,
capital stock, estate, inheritance); leasing commissions; legal
fees not directly relating to the operation and maintenance of
the entire Building such as Landlord and tenant issues; costs to
correct original construction defects; expenses paid directly by
a tenant for any reason (such as excessive utility use); costs
for improving any tenant space; any repair or work necessitated
by condemnation, fire, or other casualty; service or , benefits
or both provided to some tenants, but not to Tenant; and any
costs, fines, and the like due to Landlord's violation of any
government rule or authority.
SECTION 9
PARKING AND COMMON AREAS
9.01. Tenant, its employees and business invitees shall have
the nonexclusive right, in common with Landlord and all other to
whom Landlord has granted or may hereafter grant rights, to use
such common areas in or adjoining the Building (including but
not limited to, the parking lot, walkways and sidewalks) as are
designated from time to time by Landlord, subject to such rules
and regulations as Landlord may from time to time impose,
including the designation of specific areas in which cars
operated by Tenant, its employees and business invitee must be
parked. Landlord may at any time close any common area to make
repairs or changes (provided the closure does not unreasonably
impede access to the Leased Property by customers and employees
of Tenant), to prevent the acquisition of public rights in such
areas, or to discourage noncustomer parking. Landlord may do
such other acts in and to the common areas as in its judgment
may be desirable, including, but not limited to, the conversion
of portions thereof to other uses. Tenant shall upon request
furnish to Landlord the license number of cars operated by
Tenant and its employees. Tenant shall not at any time interfere
with the right of Landlord, other tenants, its and their agents,
employees, servants, contractors, subtenants, licensees,
customers and business invitees to use any part of the parking
lot or other common areas. Landlord assumes no responsibility to
police the use of said parking areas and Landlord shall not be
liable for the use thereof by Landlord, Landlord's other
tenants, its or their agents, employees, servants, contractors,
subtenants, licensees, customers and/or business invitees or by
any other person or persons, entity or entities whomsoever.
9.02. All parking areas and common areas which Tenant
may be permitted to use are to be used under a revocable license,
and if any such license is revoked, or if the amount of such area
is diminished, Landlord shall not be subject to any liability,
nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall revocation or diminution of such
areas be deemed constructive or actual eviction. If Tenant's
beneficial use of Tenants reserved parking is diminished by
Landlord for a period more than ten (10) days then Tenant shall
be entitled to a rental abatement of $1.00 per day per space for
each space which has been diminished.
9.03. The bulletin board or directory of the Building,
if any, shall be provided exclusively for the display of the
names and locations of tenants only and other matters relating to
the Building, and Landlord reserves the right to exclude any
other names therefrom and otherwise limit the number of listings
thereon.
9.04. For the purpose of this Lease Agreement and this
section 9, the words "Common Area" shall include the following:
lobbies, hallways, staircases, elevators, service rooms,
sidewalks, courtyards, landscaped areas, and parking lot.
SECTION 10
TAXES
10.01. Tenant shall be liable for and shall pay before
delinquency (and, upon demand by Landlord, Tenant shall furnish
Landlord with satisfactory evidence of the payment thereof) all
taxes and assessments of whatsoever kind or nature, and penalties
and interest thereon, if any, levied against Tenant's personal
property of whatsoever kind and to whomsoever belonging situate
or installed in or upon the Leased Property, whether or not
affixed to the realty. Any leasehold improvements in excess of
those provided at Landlord's expense pursuant to Exhibit C shall
be deemed Tenant's personal property for the purposes of this
Section 10. If at any time during the term of this Lease any such
taxes on Tenant's property are assessed as part of the tax on the
real property of which the Leased Property is a part, then in
such event Tenant shall pay to Landlord the amount of such
additional taxes as may be levied against the real property by
reason thereof. Tenant shall use its best efforts to have
Tenant's property assessed separately from said real property.
10.02 For the purposes of this Section 10 and this
Lease, "Impositions" means:
(a) Any real estate taxes, assessments or other
charges assessed against the. Building and related
structures and parking facilities and the land on
which they are located.
(b) All personal property taxes on personal property
used in connection with the Building and related
structures other than taxes payable by Tenant
under Section 10.01 hereof and taxes of the same
kind as those described in said section payable by
other tenants in the Building pursuant to
corresponding provisions of their leases.
(c) Any and all environmental levies or charges now in force
affecting the Building or any portion thereof, or which may
hereafter become effective, including, but not limited to,
parking taxes, levies, or charges, employer parking regulations,
and any other parking or vehicular regulations, levies, or
charges imposed by any municipal, state or federal agency or
authority.
(d) Any other taxes levied or assessed in addition to
or in lieu of such real or personal property
taxes.
10.03. Notwithstanding anything to the contrary contained
in this Section 10, Tenant shall not be liable for any of the
following taxes and assessments:
(a) Personal property, fixture or equipment taxes
assessed against the property used by the
Landlord in operating, managing or leasing the
Building;
(b) Inheritance tax, estate taxes, gift taxes, income
taxes, transfer taxes and excess profit taxes.
10.04. If at any time during the term of this Lease,
under the laws of the United States, Nevada or any political
subdivision thereof, a tax or excise on rents or other tax
(except income tax), however described, is levied or assessed by
the United States, Nevada or said political subdivision against
Landlord on account of any rent reserved or space leased under
this Lease, all such tax or excise on rents or other taxes shall
be paid by Tenant. Whenever Landlord shall receive any statement
or xxxx for any such tax or shall otherwise be required to make
any payment on account thereof, Tenant shall pay the amount due
hereunder within ten (10) days after demand therefor accompanied
by delivery to Tenant of a copy of such tax statement, if any.
10.05. All taxes and assessments of whatever kind or
nature and penalties and interest thereon, if any, levied against
Tenant, other than Tenant's personal property as set forth in
Section 10.01 herein, shall be determined based upon Tenant's pro
rata portion of said tax and/or assessment equal to the
percentage which the number of gross leasable square feet of the
Leased Property bears to the number of gross leasable square feet
of the Building.
10.06. Tenant shall have the right to contest any
assessment of personal property and real estate taxes and
assessments and impositions; provided, however, that Tenant shall
indemnify and hold Landlord harmless from any cost, loss,
liability and expense (including reasonable attorneys' fees)
which Landlord may suffer by reason of such contest by Tenant.
SECTION 11
INSURANCE
11.01. Tenant shall not use or occupy, or permit the
Leased Property to be used or occupied in a manner which will
increase the rates of insurance for the Leased Property or the
Building, which will make void or voidable any insurance then in
force with respect thereto, which would constitute a defense to
any action thereon, or which will make it impossible to obtain
any insurance with respect thereto. If by reason of the failure
of Tenant to comply herewith, any insurance rates for the Leased
Property or the Building become higher than they otherwise would
be, Tenant shall reimburse Landlord, on the first day of the
calendar month next succeeding notice by Landlord to Tenant of
said increase, for that part of all insurance premiums thereafter
paid by Landlord which shall have been charged because of such
failure of Tenant. Any policy of insurance maintained by Tenant
insuring against any risk in, upon, about or in anyway connected
with the Leased Property or Tenant's use thereof shall contain an
express waiver of any and all rights of subrogation thereunder
whatsoever against Landlord, its officers, agents and employees.
11.02. Tenant shall, at all times during the term hereof, at
its sole cost and expense, procure and maintain in full force and
effect a policy or policies of comprehensive public liability
insurance issued by an insurance carrier approved by Landlord
assuring against loss, damage or liability for injury or death to
persons and loss or damage to property occurring from any cause
whatsoever in connection with the Leased Property or Tenant's use
thereof. Such liability insurance shall be in amounts of not less
than One Million Dollars ($1,000,000.00) for bodily injuries to
or death of any one person whomsoever, Two Million Dollars
($2,000,000.00) for bodily injuries to or death of any two or
more persons whomsoever, arising from the same occurrence, and
Two Hundred Fifty Thousand Dollars ($250,000.00) for damage to
property, including property of Tenant. All such insurance shall
specifically insure the performance by Tenant of the indemnity
agreement as to liability for injury to or death of persons and
loss of or damage to property contained in Section 13 hereof.
Tenant and Landlord shall be named as an additional insured (and
at Landlord's option, any other persons, firms or corporations
designated by Landlord shall be additionally named insured) under
each such policy of insurance which shall provide that Landlord,
although named as an additional insured, shall nevertheless be
entitled to recovery thereunder for any loss suffered by it, its
agents, servants and employees by reason of Tenant's negligence
or the negligence of any subtenant.
11.03. Tenant shall, at all times during the term
hereof, at its sole cost and expense, procure and maintain in
full force and effect all-risk fire insurance covering Tenant's
property and the personal property of others (including
Landlord's) in Tenant's possession in, up on or about the Leased
Property. Such insurance shall be in an amount equal to the
current replacement value of the property required to be
insured. Tenant and Landlord, as their interests may appear,
shall be the named as an additional insured (and at Landlord's
option, any other persons, firms or corporations designated by
Landlord shall be additionally named insured) under each such
policy of insurance. Tenant acknowledges that Landlord is not
required to maintain any personal property insurance for
Tenant's property.
11.04. Every policy required pursuant to this Section 11
shall provide that it will not be canceled or modified except
after thirty (30) days written notice to Landlord and any
Mortgagee, as defined in Section 14 hereof, and that it shall
not be invalidated by any act or neglect of Landlord or Tenant,
nor by occupation of the Leased Property for purposes more
hazardous than permitted by such policy, nor by any foreclosure
or other proceedings relating to the Building, nor by change in
title to the Building or Landlord's interest therein.
11.05. Tenant shall deliver to Landlord and any
Mortgagee original policies or certificates of insurers,
satisfactory to Landlord and such Mortgagee, if any, evidencing
the existence of all insurance which is required to be
maintained by Tenant hereunder, fully paid, such delivery to be
made (i) promptly after the execution and delivery hereof and
(ii) within thirty (30) days prior to the expiration of any then
current policies. Tenant shall not obtain or carry separate
insurance concurrent in form or contributing in the event of
loss with that required by this Section 11 unless Landlord is
named insured therein (and, at Landlord's option, any other
persons, firms or corporations designated by Landlord shall be
additionally named insured). Tenant shall immediately notify
Landlord whenever any such separate insurance is obtained and
shall deliver to Landlord and any Mortgagee the policies or
certificates evidencing the same.
11.06. Neither Landlord nor Tenant shall be liable to
the other or to any insurance company (byway of subrogation or
otherwise) insuring the other party for any loss or damage to
any building, structure or other tangible property, or any
resulting loss of income, or losses under workmen's compensation
laws and benefits, even though such loss or damage might have
been occasioned by the negligence of such party, its agents or
employees, if such loss damage is covered by insurance
benefiting the parties suffering such- loss or damage or was
required to be covered by insurance pursuant to this Lease.
SECTION 12
LIENS
Tenant shall at all times indemnify, save and hold Landlord
and the Leased Property free, clear and harmless from any
claims, liens, demands, damages, charges, encumbrances,
litigation and judgments arising directly or indirectly out of
any use, occupancy or activity of Tenant, or out of any work
performed, material furnished, or obligations incurred by Tenant
in, upon, about or otherwise in connection with the Leased
Property. Tenant shall give Landlord notice at least ten (10)
business days prior to the commencement of any such work on the
Leased Property to afford Landlord the opportunity to file
appropriate notices of non responsibility. Tenant shall, at its
sole cost and expense, within fifteen (15) days after the filing
of any lien for record, obtain the discharge and release
thereof. Nothing contained herein shall prevent Landlord, at the
cost and for the account of Tenant, from obtaining said
discharge and release in the event Tenant fails or refuses to do
the same within said fifteen (15) day period.
10
SECTION 13
INDEMNIFICATION
13.01.1 Indemnification by Tenant. Tenant shall indemnify
and hold harmless Landlord, its officers, directors,
shareholders, affiliates, agents, representatives and employees
from and against any and all claims arising from (a) Tenant's use
of the Leased Property or the conduct of its business on the
Leased Property; (b) any negligent act or omission done,
permitted or suffered by Tenant, its contractors, licensees,
invitees, agents, representatives or employees in or about the
Leased Property; or (c) any breach or default in the performance
of any obligation of Tenant under the terms of this Lease; which
indemnity shall include reasonable court costs and attorney's
fees; provided, however, that the foregoing shall not extend to
any claim arising out of the willful or negligent act or omission
of Landlord or its servants or employees. In any action or
proceeding brought against Landlord by reason of any claim
identifiable hereunder, Tenant may, at its sole option, elect to
assume the defense at Tenant's expense, with counsel reasonably
acceptable to Landlord, and Tenant shall have the right to
control the defense thereof and to determine the settlement or
compromise of any such action or proceeding; provided that such
settlement includes an unconditional release of liability of
Landlord for all claims that were or could have been raised in
such action.
13.01.2 Indemnification by Landlord. Landlord shall
indemnify and hold harmless Tenant, its officers, directors,
shareholders, affiliates, agents, representatives, employees and
attorneys from and against any and all claims arising from (a)
any willful or negligent act or omission done by Landlord or its
contractors, licensees, invitees, agents, representatives or
employees in or about the Leased Property or the Building; or (b)
any breach, default or failure of Landlord's representations,
warranties, covenants or agreements in this Lease, any exhibit
hereto or any certificate, document, record or other instrument
furnished hereunder, which indemnity shall include reasonable
court costs and attorneys' fees; provided, however, that the
foregoing shall not extend to any claim arising, in whole or in
part, out of the willful, or negligent act or omission of Tenant,
its agents, representatives, employees, contractors, licensees or
servants. In any action or proceeding brought against Tenant by
reason of any claim identifiable hereunder, Landlord may, at its
sole option, elect to assume the defense at Landlord's expense,
with counsel reasonably acceptable to Tenant, and Landlord shall
have the right to control the defense thereof and to determine
the settlement or compromise of any such action or proceeding;
provided that such settlement includes an unconditional release
of liability of Tenant for all claims that were or could have
been raised in such action.
SECTION 14
SUBORDINATION
14.01. Tenant agrees that, except as provided on Section
14.02 hereof, interest hereunder is and shall be subordinate to
the lien of any mortgage, deed of trust or other encumbrance
(including, but not limited to, sale-leases back transaction),
together with any renewals, extensions or replacements thereof,
hereafter placed, charged or enforced against the Leased
Property, or any portion thereof, or any property of which the
Leased Property is apart, and Tenant shall execute and deliver at
any time, and from time to time, upon demand by Landlord, such
documents as may be required to effectuate such subordination,
and in the event that Tenant shall fail, neglect or refuse to
execute and deliver any such documents to be executed by it,
Tenant hereby appoints Landlord, its successors and assigns, the
attorney-in-fact of Tenant irrevocably to execute and deliver any
and all such documents for and on behalf of Tenant; provided,
however, that such subordination shall be effective without any
such document; provided, further, however, the Tenant shall not
be required to effectuate such subordination, nor shall Landlord
be authorized to effectuate such subordination on behalf of
Tenant, unless the mortgagee, beneficiary or ground lessor named
in such encumbrance shall first agree in writing, for the benefit
of Tenant, that so long as Tenant is not in default under any of
the provisions, covenants or conditions of this lease on the part
of Tenant to be kept and performed, neither this lease nor any of
rights of Tenant hereunder shall be terminated or modified or be
subject to termination or modification, nor shall Tenant's
possession of the Leased Property be disturbed, by proceedings to
foreclose said mortgage, deed of trust or other encumbrance.
14.02. In the event that the mortgagee, ground lessor or
beneficiary (each being a "Mortgagee") of any mortgage, ground
lease or deed of trust elects to have this Lease a prior lien to
its mortgage, deed of trust or ground lease then and in such
event, upon such Mortgagee's giving written notice to Tenant to
that effect, this Lease shall be deemed prior in lien to such
mortgage, deed of trust or ground lease whether this Lease is
dated prior to or subsequent to the date of recordation of such
mortgage, deed of trust or ground lease.
14.03. Tenant shall, in the event any proceedings are
brought for foreclosure of the Leased Property or in the event
of exercise of the power of sale under any deed of trust made by
Landlord covering the Leased Property, or the termination of any
ground lease, attorn to he purchaser or ground lessor, as the
case may be, and recognize such purchaser or lessor as Landlord
under this Lease. Tenant further agrees to promptly execute and
deliver any instrument which such purchaser or ground lessor may
reasonably request to further evidence such attornment;
provided, however, that such attornment shall be effective
without any such instrument.
14.04. Tenant hereby agrees not to look to any Mortgagee
for accountability for any security deposit required by Landlord
hereunder, unless said sums have been actually received by said
Mortgagee as security for Tenant's performance of this Lease.
SECTION 15
ASSIGNMENT AND SUBLETTING
Tenant shall not voluntarily assign or transfer all or any
part of Tenant's interest in the Leased Property, without the
prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld, and any attempted
assignment or transfer, without such consent shall be wholly
void. Notwithstanding the foregoing, Tenant shall have the
right, to sublet all or a portion of the Leased Property without
the consent of Landlord and Tenant may, without Landlord's
consent, assign this Lease to another corporation or other
entity controlling, controlled by or under common control with
Tenant, Tenant's parent or subsidiary of Tenant; provided that
Tenant shall notify Landlord in writing of any such assignment.
No subletting or assignment, even with the consent of Landlord,
shall relieve Tenant of its obligation to pay the rent and to
perform all of the other obligations to be performed by Tenant
hereunder. Consent to one assignment, or other transfer shall
not be deemed to constitute consent to any subsequent
assignment, or other transfer. A merger by Tenant into another
corporation shall not be deemed an assignment of this Lease so
long as the new corporate entity assumes this Lease.
SECTION 16
INSOLVENCY AND DEATH
16.01. It is understood and agreed that, except as
specifically provided below in this Section, neither this Lease
nor any interest herein or hereunder, nor any estate hereby
created in favor of Tenant, shall pass by operation of law under
any state or federal insolvency, bankruptcy or inheritance act,
or any similar law now or hereafter in effect, to any trustee,
receiver, assignee for the benefit of creditors, heir, legatee,
devisee or any other person whomsoever.
16.02. Landlord and Tenant hereby acknowledge and recognize
that Section 365 of Title 11 of the United States Code (the
"Bankruptcy Code") provides that a debtor-in-possession or a
trustee, with court approval, may assume or reject an unexpired
lease and that in a case under Chapter 11 of the Bankruptcy Code,
the court, on request of a party to such unexpired lease, may
order the trustee or debtor-in-possession to determine within a
specified period of time whether to assume or reject such
unexpired lease. Because of the fact that time is of the essence
to this Lease, Tenant expressly covenants, agrees and bargains to
file or cause to be filed a motion either to assume or to reject
this Lease within forty-five (45) days of the filing of a
voluntary petition under the Bankruptcy Code or the entry of an
order for relief in the event of the filing of an involuntary
petition.
16.03. Landlord and Tenant further recognize that
Section 365 of the Bankruptcy Code provides for the assumption
and assignment, subject to court approval, of unexpired leases.
Court approval of such assumption and assignment, is
pre-conditioned on, among other things, the provision of
adequate assurance of future performance. In view of the
forgoing, Landlord and Tenant do hereby bargain, covenant and
agree that the following, and each of them, specifically and
without limiting Tenant's obligations to continue to perform all
of the terms of this Lease, are conditions and covenants the
fulfillment of which are necessary to provide Landlord with
adequate assurance of future performance:
(1) The assumption and assignment of this Lease will not
breach any provision, such as a radius location or use
provision, in any other lease, financing agreement or
master agreement relating to the Building;
(2) The proposed assignee will not increase the burden on
the common area and will not use the Leased Property in
violation of the terms of this Lease and any restriction
covenant applicable to the Building then in force;
(3) The proposed assignee will, in Landlord's reasonable
opinion, be a suitable tenant for a first-class office
building; and
(4) The proposed assignee has adequate financial resources
to pay all rent and other consideration due under this
Lease and to assume all other obligations of Tenant under
this Lease.
SECTION 17
CONDEMNATION
(a) Taking. If any part of the Leased Property shall be
taken under the power of eminent domain, Tenant shall have the
option to terminate this Lease effective as of the date on which
the condemning authority takes title or possession, whichever
first occurs. In the event that Tenant elects not to terminate
this Lease, within 30 days of such taking, the Lease shall remain
in effect, but the monthly rental payable hereunder shall be
reduced on the basis of the square footage of the portion of the
Leased Property taken as compared to the portion remaining.
(b) Awards. Any award for taking of all or any part of the
Leased Property under the power of eminent domain shall be the
property of Landlord, except that Tenant shall be entitled to
compensation awarded for (i) the fair rental value to Tenant of
its interest remaining in this Lease in excess of the actual rent
then being paid by Tenant hereunder-, (ii) loss of or damage to
Tenant's trade fixtures and removable personal property; (iii)
Tenant's reasonable moving expenses. Landlord shall promptly pay
to Tenant any 6mounts which Landlord may receive for the account
of Tenant.
(c) Sale Under Threat of Condemnation. A sale by Landlord
to any authority having the power of eminent domain, either under
threat of condemnation or while condemnation proceedings are
pending, shall be deemed a taking under the power of eminent
domain for all purposes of this Section.
SECTION 18
DESTRUCTION OF PREMISES
18.01. In the case of the substantial or total
destruction or damage of the Leased Property, or any portion
thereof or of the Building substantially interfering with
Tenant's use of the Leased Property, whether by fire or other
casualty, not caused by the fault or negligence of Tenant, its
agents, employees, servants, contractor, subtenants, licensees,
customers or business invitees, this Lease shall terminate except
as herein provided. Except if Tenant at its sole option elects to
discontinue the operation of its business in the Leased Property
as a result of the substantial destruction or damage, in which
case this Lease Agreement shall terminate upon notice to Landlord
without any liability to Landlord, if Landlord notifies Tenant in
writing within thirty (30) days of such destruction of Landlord's
election to repair said damage, and if Landlord proceeds to and
does repair such damage with reasonable dispatch, this Lease
shall not terminate, but shall continue in full force and effect,
except that Tenant shall be entitled to a reduction on the Basic
Rent in an amount equal to that proportion of the. Basic Rent
which the number of gross leasable square feet of floor space on
the unusable portion bears to the total number of gross leasable
square feet of floor space on the Leased Property. Said reduction
shall be prorated so that the Basic Rent shall only be reduced
for those days any given area is actually u usable. In
determining what constitutes reasonable dispatch, consideration
shall be given to delays caused by labor disputes, civil
commotion, war, warlike operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental
regulation or control, fire or other casualty, inability to
obtain any materials, fuel, energy or services, weather or other
acts or God and other causes beyond Landlord's control. However,
if Landlord shall be obligated to repair or restore the Leased
Property under the provisions of, this Section and shall not
commence such repair or restoration within ninety (90) days after
such obligation shall accrue and diligently prosecute same to
completion, Tenant may, at its option (without waiving any of its
other remedies), cancel and terminate this Lease as of the date
of occurrence of such damage by giving Landlord written notice of
its election to do so at any time prior to the commencement of
such repair or restoration thereof. If this Lease is terminated
pursuant to this Section 18 and if Tenant is not in default
hereunder, rent shall be prorated as of the date of termination,
any security deposited with Landlord shall be returned to Tenant
as provided herein, and all rights and obligations hereunder
shall cease and terminate. Any other provision hereof to the
contrary notwithstanding, should any casualty have been the
result of any act, omission, or negligence of Tenant, its agents,
employees, servants, contractors, subtenants, licensees,
customers or business invitees, unless Landlord otherwise elects,
this Lease shall not terminate, Tenant shall repair such damage
and there shall be no apportionment or abatement of any rent. For
the purpose of this Section, "substantial" destruction or damage
to the Leased Property shall be deemed to be damage which renders
unusable more than twenty-five percent (25%) of the Leased
Property or for which the reasonably estimated time required to
repair such damage exceeds ninety (90) days, or for which
existing laws do not permit the repair and restoration thereof.
18.02. In the event of any damage not limited to, or not
including, the Leased Property, such that the Building is damaged
to the extent of twenty-five percent (25%) or more of the cost of
replacement, Landlord may elect to terminate this Lease upon
giving notice of such election in writing to Tenant within sixty
(60) days after the occurrence of the event causing the damage.
18.03. The provisions of this Section 18 with respect to
repair by Landlord shall be limited to such repair as is
necessary to place the Leased Property on the condition specified
for Landlord's work by Exhibit C and when placed on such
condition the Leased Property shall be deemed restored and
rendered tenantable, promptly following which time Tenant, at
Tenant's expense (unless insurance proceeds payable to Landlord
hereunder are made available for such repair by a Mortgagee and
said proceeds include payment for loss of Tenant improvements,
Landlord shall restore said improvements to the extent necessary
to render it reasonably suitable for the purpose for which it was
leased, provided that such work shall not exceed the scope of
work required to be done by Tenant in originally constructing
such improvements and the cost thereof shall not exceed the
insurance proceeds awarded to Landlord), shall perform Tenant's
work required prior to occupancy and Tenant shall also repair or
replace its fixtures, furniture, furnishings, floor coverings,
and equipment and, if Tenant has closed, Tenant shall promptly
reopen for business.
18.04. All insurance proceeds payable under any fire
and/or rental policy, except policies maintained under Section
11.03 hereof, shall be payable solely to Landlord and Tenant
shall have no interest therein. Tenant shall in no case be
entitled to compensation for damages on account of any annoyance
or inconvenience in making repairs under any provision of this
Lease. Except to the extent provided for in this Section 18,
neither the rent payable by Tenant nor any of Tenant's other
obligations under any provision of this Lease shall be affected
by any damage to or destruction of the Leased Property or any
portion thereof by any cause whatsoever.
18.05. Any other provision hereof to the contrary
notwithstanding, Landlord shall not be liable for any repair or
restoration until, and then only to the extent that, insurance
proceeds are received therefor.
SECTION 19
RIGHT OF ACCESS
19.01. Landlord shall have the right during reasonable
business hours to enter the Leased Property to inspect the same,
to supply janitorial service and any other service to be provided
by Landlord to Tenant hereunder, to exhibit the Leased Property
to prospective purchasers or lenders, to post notices of
nonresponsibility, to repair or construct any portion of the
Building or for any other lawful purpose, without abatement of
rent.
19.01.1. Landlord shall not have the right to enter
Tenant's confidential areas unless a representative of Tenant is
present. Landlord shall conduct its activities on the Leased
Property as allowed in this Section in such a manner as to cause
as little inconvenience, annoyance or disturbance to Tenant as
reasonably possible. Nothing herein shall permit Landlord, and
Landlord shall not have the right, to place any signs on the
Leased Property indicating the Leased Property is for lease,
except during the last six (6) months of the term hereof.
19.02. Landlord may, during the progress on any work on
the Leased Property, keep and store upon the Leased Property all
necessary material, tools and equipment and may erect scaffolding
or other similar structures. Landlord shall not in any event
except for Landlord's negligence or unreasonable interference be
liable for inconvenience, annoyance, disturbance, loss of
business or quiet enjoyment, or other damage or loss to Tenant by
reason of making any such repairs or performing any such work
upon the Leased Property, or on account of bringing materials,
supplies and equipment into, upon or through the Leased Property
during the course thereof or erecting such structures and the
obligations of Tenant under this Lease shall not thereby be
affected in any manner whatsoever. Landlord shall, however, in
connection with the performance of such work, cause as little
inconvenience, disturbance or other damage or loss to Tenant as
may be reasonably possible under the circumstances. Tenant hereby
waives any claim for damages for any injury or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of
the Leased Property, and any other loss occasioned by the
exercise of Landlord's rights hereunder. For each of the
aforementioned purposes, Landlord shall at all times have the
right to retain a key with which to unlock all doors in the
Leased Property. Landlord shall have the right to use any means
which Landlord may deem proper to open such doors in an
emergency. Entry into the Leased Property obtained by Landlord by
any such means shall not be deemed to be forcible or unlawful
entry into, or a detainer of, the Leased Property, or an eviction
of Tenant from the Leased Property or any portion thereof.
19.03. Nothing contained herein shall impose or be deemed
to impose any duty on the part of Landlord to do any work or
repair, maintenance, reconstruction or restoration, which under
any provision of this Lease is required to be done by Tenant and
the performance thereof by Landlord shall not constitute a waiver
of Tenant's default in failing to do the same.
SECTION 20
EXPENDITURES BY LANDLORD
Whenever under any provision of the Lease, Tenant shall be
obligated to make any payments or expenditures, or to do any act
or thing, or to incur any liability whatsoever, and Tenant fails,
refuses or neglects to perform as herein required, Landlord shall
be entitled, but shall not be obligated, to make such payment or
expenditure or to do any such act or thing, or to incur any such
liability, all on behalf of and at the cost and for the account
of Tenant. In such event, the amount thereof with interest
thereon at the Default Rate from the date of expenditure shall
constitute and be collectible as additional rent upon demand.
SECTION 21
OFFSET STATEMENT
AND FINANCIAL DISCLOSURE
21.01. Tenant agrees that within three (3) business days
of any demand therefor. by Landlord, Tenant will execute and
deliver to Landlord or Landlord's designee a recordable
certificate, the form of which shall be provided by Landlord,
stating that this Lease is in full force and effect, such
defenses or offsets as are claimed by Tenant, if any, the date to
which all rentals have been paid, and such other information
concerning the Lease, the Leased Property and Tenant as Landlord
or said designee may reasonably request.
21.02. (This subsection intentionally left blank).
SECTION 22
DEFAULT
22.01. Tenant's compliance with each and every covenant
and obligation hereof on its part to be performed hereunder is a
condition precedent to each and every covenant and obligation of
Landlord hereunder. Landlord shall have all rights and remedies
provided in this Section or elsewhere herein, in the event of:
(a) the desertion, vacation or abandonment of the Premises by
Tenant.
(b) the desertion, vacation or abandonment of any substantial
portion of the Premises by Tenant.
(c) Tenant's failure to make any payment of Rent or any other
payment required to be made by Tenant hereunder, as and when
due.
(d) (This subsection intentionally left blank).
(e) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for benefit of
creditors.
(f) Tenant shall file a petition under any section or chapter of
the National Bankruptcy Code, as amended, or under any similar
law or statute of the United States or any state thereof; or
Tenant shall be adjudicated bankrupt or insolvent in a petition
filed against Tenant thereunder; or Tenant's financial condition
is such that Landlord may reasonably believe that Tenant's
continued performance of his obligations under the Lease is in
jeopardy; or Landlord otherwise reasonably deems itself insecure.
(g) a receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership
shall not be terminated or stayed within a reasonable time, as
determined by Landlord, or within the time permitted by law.
(h) If the failure of Tenant to comply with any term, condition
or covenant of this Lease, other than described in paragraphs (a)
through (g) above, or the Rules and Regulations described in
Exhibit D, is of such a nature that the same can be rectified or
cured by Tenant, but cannot with reasonable diligence be
rectified or cured within said thirty (30) day period, then such
default shall be deemed to be rectified or cured if Tenant within
said thirty (30) days shall commence the rectification and curing
thereof and shall continue thereafter with all due diligence to
cause such rectification and curing to proceed.
(i) Notwithstanding anything to the contrary herein,
in the event of any default by Tenant, Landlord shall use its
best efforts to mitigate its damages.
22.02. In the event of a default as designated in this
Section or elsewhere herein, and the failure to cure the same
within any grace period, if such a period is provided, in
addition to any other rights or remedies provided for herein or
at law or in equity, Landlord, at its sole option, shall have the
following rights:
(a) The right to declare the term of this Lease ended and
re-enter the Leased Property and take possession thereof, and to
terminate all of the rights of Tenant in and to the Leased
Property;
(b) The right without declaring the term of the Lease ended, to
re-enter the Leased Property and to occupy the same, or any
portion thereof, for and on account of Tenant as hereinafter
provided, and Tenant shall be liable for and pay to Landlord on
demand all such expenses as Landlord may have paid, assumed or
incurred in recovering possession of the Leased Property,
including costs, expenses, attorneys' fees, and expenditures
placing the same in good order and condition, or preparing or
altering the same for reletting, and all other expenses,
commissions and charges paid, assumed or incurred by Landlord in
or in connection with reletting the Leased Property. Any such
reletting as provided for here in may be for the remainder of the
term of this Lease or for a longer or shorter period. Such
reletting shall be for such rent and no such other terms and
conditions as Landlord deems appropriate. Landlord may execute
any lease made pursuant to the terms hereof either in Landlord's
own name or in the name of Tenant, or assume Tenant's interest in
and to any existing subleases to any tenant of the Leased
Property, as Landlord may see fit, and Tenant shall have no right
or authority whatsoever to collect any rent from such tenants,
subtenants, licensees or concessionaires on the Leased Property.
In any case, and whether or not the Leased Property or any part
thereof be relet, Tenant, until the end of what would have been
the term of this Lease in the absence of such default, shall be
liable to Landlord and shall pay to Landlord monthly an amount
equal to the amount due as rent hereunder, less the net proceeds
for said month, if any, of any reletting effected for the account
of Tenant pursuant to the provisions of this subparagraph, after
deducting from said proceeds all of Landlord's expenses in
connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, attorneys' fees,
expenses of employees, alteration costs, and expenses of
preparation for such reletting. AlI said costs are cumulative and
shall be applied against proceeds of releting until paid in full.
Landlord reserves the right to bring such actions for the
recovery of any deficits remaining unpaid by Tenant to Landlord
hereunder as Landlord may deem advisable from time to time
without being obligated to await the end of the term hereof for a
final determination of Tenant's account and the commencement or
maintenance of one or more actions by Landlord in this connection
shall not bar Landlord from bringing any subsequent actions for
further accruals pursuant to the provisions of this Section 22.
In no event shall Tenant be entitled to any excess rental
received by Landlord over and above that which Tenant is
obligated to pay hereunder;
(c) The right, even though it may have relet all or any portion
of the Leased Property in accordance with the provisions of
subparagraph (b) of this paragraph, to thereafter at any time
elect to terminate this Lease for such previous default on the
part of Tenant, and to terminate all of the rights of Tenant in
and to the Leased Property; or
(d) Landlord may pursue other remedy at law or in equity, now or
hereafter available under the laws or judicial decision of the
state in which the Premises are located.
22.03. Upon failure of Tenant to make any payment of Rent
as and when due, Landlord may, at Landlord's option, as an
alternative to the remedies set forth in this section 22.02,
accelerate and declare immediately due and payable, all payments
or Rent due to Landlord for the remaining Term of the Lease, by
written notice to Tenant. In no event shall Landlord terminate
the Lease when electing to so accelerate said payments of Rent;
Provided however, if Tenant fails to pay all of said accelerated
payments of Rent to Landlord within ten (10) days of the written
notice of such acceleration, Landlord may bring suit to collect
such accelerated Rent or may pursue any other remedy available
hereunder to Landlord. Landlord and Tenant agree and acknowledge
that damages, costs, losses and expenses which would be incurred
or suffered by Landlord if Landlord were required to recover
payments of Rent by repeated suits or by suit at the expiration
of the original Term of the Lease would be difficult or
impossible to accurately assess at the time of default.
22.04. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default, or delay
by Landlord in enforcing one or more of such remedies upon an
event of default, shall not be deemed or construed to constitute
a waiver of such default,
Pursuant to the rights of re-entry provided above, Landlord
may remove all persons from the Leased Property and may, but
shall not be obligated to, remove all property therefrom, and
may, but shall not be obligated to enforce any rights Landlord
may have against said property or store the same in any public or
private warehouse or elsewhere at the cost and for the account of
Tenant or the owner or owners thereof. Tenant agrees to hold
Landlord free and harmless of any liability whatsoever for the
removal and/or storage of any such property, whether of Tenant or
any third party whomsoever. Anything contained herein to the
contrary notwithstanding, Landlord shall not be deemed to have
terminated this Lease or the liability of Tenant to pay any rent
or other sum of money thereafter to accrue hereunder, or Tenant
liability for damages under any of the provision hereof, by any
such re-entry, or by any action in unlawful detainer or otherwise
to obtain possession of the Leased Property, unless Landlord
shall have specifically, with reference to this Section, notified
Tenant in writing that it has so elected to terminate this Lease.
Tenant covenants and agrees that the service by Landlord of any
notice pursuant to the unlawful detainer statutes of the State of
Nevada and the surrender of possession pursuant to such notice
shall not (unless Landlord elects to the contrary at the time or,
or at any time subsequent to, the service of such notice to
Tenant) be deemed to be a termination of this Lease, or the
termination of any liability of Tenant hereunder to Landlord.
22.05. In the event of termination of this Lease pursuant
to this Section, Landlord may recover from Tenant:
(a) the worth at the time of award of any unpaid rent which had
been earned at the time of such termination; plus
(b) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably
avoided; plus
(c) the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could
be reasonably avoided; plus
(d) as used on subparagraph (a) and (b) above, the
"worth at the time of award" is computed at the Default Rate per
annum. As used on subparagraph (c) above, the "worth at the time
of award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent (1 %).
22.06. In any action brought by either party to enforce
any of its rights under or arising from this Lease, or in
connection with the Leased Property, the prevailing party shall
be entitled to receive its costs and legal expenses including
reasonable attorneys' fees, whether such action is prosecuted to
judgment or not. The parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use
of occupancy of the Leased Property, and/or any claim of injury
or damage. In the event Landlord commences any proceedings for
nonpayment of any rent, Tenant will not interpose any
non-mandatory counterclaim of whatever nature or description in
any such proceedings. This shall not, however, be construed as a
waiver of the Tenant's right to assert such claims in any
separate actions brought by Tenant.
22.07. The waiver by Landlord of any default or breach
of any of the terms, covenants or conditions hereof on the part
of Tenant to be kept and performed shall not be a waiver of any
preceding or subsequent breach of the same or any other term,
covenant or condition contained herein. The subsequent
acceptance of rent or any other payment hereunder by Tenant to
Landlord shall not be construed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this
Lease other than the failure of Tenant to pay the particular
rental or other payment or portion thereof so accepted,
regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rental or other payment. No
payment by Tenant or receipt by Landlord of a lesser amount than
the rent herein provided shall be deemed to be other than on
account of the earliest rent due and payable without prejudice
to Landlord's right to recover the balance of such sums as are
due or pursue any other remedy provided on this Lease. The
consent by Landlord to any matter or event requiring Landlord's
consent shall not constitute a waiver of the necessity for such
consent to any subsequent matter or event. This Section 22.07
may not be waived.
SECTION 23
QUIET POSSESSION
Tenant, upon paying the rentals and other payments herein
required from Tenant, and upon Tenant's performance of all of the
provisions, covenants and conditions of this Lease on its part to
be kept and performed, may quietly have, hold and enjoy the
Leased Property during the term of this Lease without any
disturbance from Landlord or from any other person claiming
through Landlord.
SECTION 24
SALE BY LANDLORD
In the event of any sale or exchange of the Leased Property
or the Building by Landlord, Landlord shall be and is hereby
relieved of all liability under any and all of its covenants and
obligations contained on or derived from this Lease, arising out
of any act, occurrence or omission relating to the Leased
Property occurring after the consummation of such sale or
exchange provided the successor to Landlord hereunder agrees and
covenants to be bound by the terms and conditions of this Lease.
Tenant agrees to attorn to such purchaser or grantee.
SECTION 25
DEFAULT BY LANDLORD
In the event Landlord fails or refuses to perform any of
the provisions, covenants or conditions of this Lease on
Landlord's part to be kept or performed, Tenant, prior to
exercising any right or remedy Tenant may have against Landlord
on account of such default, shall give written notice to Landlord
of such default, specifying in said notice the default with which
Landlord is charged and Landlord shall not be deemed on default
if the same is cured within thirty (30) days of receipt of said
notice. Notwithstanding any other provision hereof, Tenant agrees
that if the default complained of in the notice provided for by
this Section 25 is of such a nature that the same can be
rectified or cured by Landlord, but cannot with reasonable
diligence be rectified or cured within said thirty (30) day
period, then such default shall be deemed to be rectified or
cured if Landlord within said thirty (30) days shall commence the
rectification and curing thereof and shall continue thereafter
with all due diligence to cause such rectification and curing to
proceed.
SECTION 26
FORCE MAJEURE
Whenever a day is appointed herein on which, or a period of
time is appointed in which, either party hereto is required to do
or complete any act, matter or thing, the time for doing or
completion thereof shall be extended by a period of time equal to
the number of days on or during which such party is prevented
from, or is unreasonably interfered with, the doing or completion
of such act, matter or thing because of labor disputes, civil
commotion, war, warlike operation, sabotage, governmental
regulation or control, fire or other casualty, inability to
obtain any materials, fuel, energy, or services, weather or other
acts of God, or other causes beyond such party's reasonable
control (financial inability excepted); provided, except as
otherwise stated in this Agreement, nothing contained herein
shall excuse Tenant from the prompt payment of any rent or charge
required of Tenant hereunder.
SECTION 27
SERVICES AND NOTICES
Any and all notices and demands shall be in writing and
shall be validly given or made if served either personally or if
deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested. If such notice or
demand be served by mail, service shall be conclusive deemed made
three (3) days after mailing. Any notice or demand to Landlord
shall be addressed to Landlord at: Xxxxxx Incorporated, PROPERTY
MANAGEMENT DIVISION, 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx,
00000. Any notice or demand to Tenant shall be addressed to
Tenant at the Leased Property. Any party hereto may change its
address for the purpose of receiving notices, payments or demand
as herein provided by a written notice given in the manner
aforesaid to the other party hereto, which notice of change of
address shall not become effective, however, until the actual
receipt thereof by the other party.
SECTION 28
LIMITATION ON LIABILITY
The obligations of Landlord and Tenant under this Lease do
not constitute personal obligations of the individual partners,
directors, officers or shareholders of Landlord and Tenant or any
of their personal assets for satisfaction of any liability in
respect to this Lease.
SECTION 29
LATE CHARGES
Tenant hereby acknowledges that late payment by Tenant to
Landlord of Rent and other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting
charges, and late charges which may be imposed on Landlord by the
terms of any mortgage or deed of trust covering the Premises.
Accordingly, if any installment of Rent or any other sum due from
Tenant shall not be received by Landlord or Landlord's designee
within five (5) days after said installment or other sum is due
and payable hereunder, then in that event Tenant shall pay to
Landlord a late charge equal to ten (10%) of such overdue amount.
The parties hereby agree that such late charge represents a fair
and reasonable estimate of the cost Landlord will incur by reason
of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted
hereunder. Nothing herein contained shall entitle Landlord, upon
the arising of any contingency whatsoever, to collect or receive
any late payment charge hereunder or pursuant to any other
provision of this Lease determined at a rate in excess of the
highest lawful rate allowed by applicable laws of the State of
Nevada (or by applicable federal laws if such laws either
pre-empt or are in conflict with otherwise applicable laws of the
State of Nevada) on any money obligation hereunder, and in the
event Landlord ever receives an amount determined to be in excess
of such highest lawful rate, such amount shall be applied to the
payment of Rent otherwise due under this Lease, or returned to
Tenant.
SECTION 30
LANDLORD'S LIEN
(This section intentionally left blank)
SECTION 31
BROKERS
The parties hereto acknowledge that RealNet Commercial
Brokerage, was the real estate broker that represented the
Landlord herein and that no broker represented the Tenant herein,
and that Landlord shall pay the commission to the above named
broker pursuant to a separate agreement. No other commissions are
due any brokers whatsoever other than the above named broker. Any
valid claims by any real estate broker, other than the herein
referenced brokers shall be the responsibility and liability of
the party who obtained the services of such real estate broker,
and such party shall indemnify the other hereto against all
costs, losses and damages suffered or incurred by such other
party as a result of such claim.
SECTION 32
MISCELLANEOUS
1. The submission of this Lease for examination and/or
execution hereof by Tenant does not constitute a reservation
of, or option for, the Leased Property and this Lease
becomes effective as a Lease only upon execution and
delivery thereof by Landlord and Tenant.
2. The various rights, options, elections and remedies of
Landlord and Tenant contained in this Lease shall be
cumulative and no one of them shall be construed as
exclusive of any other, or of any right, priority or remedy
allowed or provided for by law and not expressly waived on
this Lease.
3. The terms, provisions, covenants and conditions
contained in this Lease shall apply to, bind and inure to
the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns (where assignment is
permitted) of Landlord and Tenant, respectively, except as
otherwise provided in this Lease.
4. If any term, provision, covenant or condition of this
Lease, or any application thereof, should be held by a court
of competent jurisdiction to be invalid, void or
unenforceable, all other terms, provisions, covenants and
conditions of this Lease shall continue in full force and
effect and shall in no way be affected, impaired or
invalidated thereby.
5. Time is of the essence of this Lease and all of the
terms, provisions, covenants and conditions hereof.
6. It is understood that there are no oral agreements or
representations between the parties hereto affecting this
Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, agreements or
representations and understandings, if any, between the
parties hereto with respect to the subject matter thereof.
There are no other representations or warranties between the
parties and all reliance with respect to representations is
solely upon the representations and agreements contained in
this document.
7. The captions appearing at the commencement of the
section hereof are descriptive only and for convenience in
reference to this Lease and in no way whatsoever define,
limit or describe the scope or intent of this Lease, nor in
any way affect this Lease.
8. Masculine and feminine pronouns shall be substituted
for the neuter form and vice versa, and the plural shall be
substituted for the singular form and vice versa, on any
place or places herein in which the context requires such
substitutions.
9. The laws of the State of Nevada shall govern the
validity, construction, performance and effect of this
Lease.
10. Whenever in this Lease any words of obligations or duty
are used in connection with either party, such words shall
have the same force and effect as though framed in the form
of covenants on the part of such party.
11. In the event Tenant now or hereafter shall consist of
more than one person, firm or corporation, then such person,
firms or corporation shall be jointly and severally liable
as parties hereunder.
12. Should any claim or lien be filed against the Leased
Property, or any action or proceeding be instituted
affecting the title to the Leased Property, Tenant shall
give Landlord written notice thereof as soon as Tenant
obtains actual or constructive knowledge thereof.
13. This Lease shall not be construed either for or against
Landlord or Tenant, but this Lease shall be interpreted in
accordance with the general tenor of its language.
14. Tenant shall pay all costs, expenses and reasonable
attorney's fees that may be incurred or paid by Landlord on
processing, documenting or administering any request of
Tenant for Landlord's consent required pursuant to this
Lease.
15. If Tenant hereunder is a corporation or partnership,
the person(s) executing this Lease on behalf of Tenant
represents to the best of his knowledge and belief and
warrants to Landlord that Tenant is a valid and existing
corporation or partnership, as the case may be, all things
necessary to qualify it to do business in Nevada have been
accomplished prior to the date of this Lease, all franchise
and other corporate taxes have been paid to the date of this
Lease, all forms, reports, fees, and taxes required to be
filed or paid by said corporation or partnership in
compliance with applicable laws will be filed and paid when
due, and this Lease is the valid and binding obligation of
the party, enforceable in accordance with its terms.
16. Except as otherwise stated herein, Landlord reserves
the absolute right to effect such other tenancies in the
Building as Landlord, in the exercise of its own business
judgment, shall determine. Tenant does not rely on the fact,
nor does Landlord represent, that any specific tenant or
number of tenants shall or shall not, during the term of
this Lease or any extension thereof, occupy any space in the
Building. There are no other representations or warranties
between the parties hereto, and all reliance with respect to
representations is based solely on such representation and
agreements as are contained in this Lease.
17. Notwithstanding any other provisions of this Lease, in
the event the term of this Lease shall not have commenced
within twenty-one (21) years from the date of execution
hereof, this Lease shall become null and void and Landlord
and Tenant shall thereupon be released from any and all
obligations with respect thereto.
18. Landlord represents and warrants that it is a
corporation, duty organized, validly existing and in good
standing under the laws of Nevada and has the requisite
power and authority to enter into and perform this Lease.
19. Landlord represents and warrants that Landlord's
execution and delivery of this Lease have been authorized by
the Board of Directors of Landlord, and no further action on
the part of Landlord is necessary to authorize this Lease or
the consummation of the transactions contemplated herein.
This Lease constitutes the valid and binding obligation of
Landlord duly enforceable in accordance with its terms.
20. Landlord represents and warrants that there is no
contract or agreement or other instrument to which Landlord
is a party or by which Landlord or its assets are bound
which prohibits the execution or delivery by landlord of
this Lease or the performance or observance by Landlord of
any term or condition of this Lease and, subject to the
fulfillment of all conditions set forth therein, neither
execution and delivery of this Lease nor the consummation of
the transactions contemplated hereby will violate any term
or provision of any such contract, agreement or instrument.
21. Landlord represents and warrants that subject to the
fulfillment of all conditions set forth herein, neither the
execution and delivery of this Lease nor the consummation
of the transactions contemplated hereby will constitute a
violation by Landlord of any law, regulation, rule,
ordinance, or any judgment or order of any court or
governmental authority applicable to Landlord.
22. One or more waivers of a breach of any covenant, term
or condition of this Lease by either party shall not be
construed by the other party as a waiver of a different or
subsequent breach of the same covenant, term or condition.
The consent or approval of either party to or of any act by
the other party of a nature requiring consent or approval
shall not be deemed to waive or render unnecessary consent
to or approval of any other or subsequent similar act.
23. Nothing herein contained, either in the method of
computing rent or otherwise, shall create between the
parties hereto, or be relied upon by others as creating,
any relationship of partnership, association, joint
venture, or otherwise. The sole relationship of the parties
hereto shall be that of Landlord and Tenant.
24. Should either party institute legal suit or action for
enforcement of any obligation contained herein, it is
agreed that the venue of such suit or action shall be in
Xxxxx County, State of Nevada.
25. Landlord, within thirty (30) days after demand from
Tenant, shall execute and deliver any document which
Landlord deems to be reasonable by the terms of this Lease
which is required by any supplier, lessor, or lender in
connection with the installation in the Leased Property of
Tenant's personal property or Tenant's trade fixtures in
which landlord waives any rights it may have or acquire
with respect to that property, if the supplier, lessor, or
lender agrees in writing that: It will remove that property
from the Leased Property before the expiration of the term
or within ten (10) days after termination of the term, but
if it does not remove the property within ten (10) days it
shall have waived any rights it may have had to the
property. Furthermore, and personal property or trade
fixture must be removed by the date of expiration or
termination of the Lease Agreement, otherwise it shall
become the property of the Landlord and Landlord shall have
the right to remove said fixture or property and restore
the premises to its original condition at Tenant's sole
cost and expense, except for reasonable wear and tear.
SECTION 33
RECORDATION PROHIBITED
Except upon the written consent of Landlord, neither Tenant
nor anyone acting on behalf of Tenant shall record this Lease
nor any memorandum or notice thereof nor cause the same to be
recorded.
UPON EXECUTION, THE FOREGOING INSTRUMENT WILL CONSTITUTE A
BINDING LEASE WITH ACCOMPANYING LEGAL RESPONSIBILITIES AND
CONSEQUENCES. PRIOR TO EXECUTION, YOU SHOULD CONSULT WITH AN
ATTORNEY.
IN WITNESS WHEREOF, the parties here to have executed this
Lease the day and year first above written.
LANDLORD: Xxxxxx Incorporated TENANT: Sierra Pacific Energy
Corporation
a Nevada corporation a Nevada corporation,
d/b/a
Nevada Power Services
By: /s/ Xxxxx X. Xxxxxx By: /s/
Xxxxx X. Xxxxxx
ITS: President ITS: President
DATE: DATE:6/24/99
EXHIBIT B
COMMENCEMENT DATE MEMORANDUM
The Commencement Date of that Lease by and between Xxxxxx
Incorporated, a Nevada corporation, as Landlord, and Sierra
Pacific Energy Company, a Nevada corporation, d/b/a Nevada Power
Services, as Tenant, dated the 23rd day of June, 1999, is hereby
acknowledged and agreed to be /s/ Oct. 1 , 1999.
LANDLORD: Xxxxxx Incorporated TENANT: Sierra Pacific Energy
Company
a Nevada corporation a Nevada corporation,
d/b/a
Nevada Power Services
By: By: /s/
Xxxxx X. Xxxxxx
ITS: President ITS:
DATE: DATE:
EXHIBIT C
BUILDING STANDARD SPECIFICATIONS
1. If the work described in Tenant's drawings and
specification requires additions or changes to Landlord's
construction obligations under Exhibit A and this Exhibit C,
Tenant agrees to pay Landlord any increased costs resulting from
the additions or changes, including construction expenses and
architectural and engineering costs.
2. Landlord's construction and standard finishes are designed
for normal office use. Any reference to construction by Landlord
to Code requirements shall be deemed to mean Code requirements
for normal office use.
3. Landlord shall provide a shell office building to contain
the Leased Property as hereinafter set forth:
3.1. All structural wall, floor and roof support systems to
support office floor live loads including partitions,
ceilings, etc.
3.2. All exterior glass, wall finishes and weather
protection systems.
3.3. Common toilet facilities, per Code, common lobbies,
foyers, stairs and elevators.
3.4. Automobile parking facilities including paving and
lighting.
3.5. Heating and air conditioning with main supply to
tenant suites, including air handling equipment to Usable
Area. Distribution duct work is included.
3.6. Main electrical service to the Building and
distribution of electrical power from main service to
predetermined distribution points on each floor.
3.7. Installation and connection of light fixtures is
included.
3.8. Main fire sprinkler piping with heads established on a
predetermined pattern.
4. Landlord has established the components set forth in
Paragraph 4.1 through 4.16 as being those leasehold improvements
necessary to construct premises within the Building to a state of
completion at which time tenants may take occupancy, for general
office purposes, without further improvements. Landlord's
Building Standard Improvements are set forth below for the
purpose of establishing the scope of leasehold improvements which
will be supplied at Landlord's expense.
4.1. Public Corridor Partitions: Building Standard 5/8"
thick, gypsum board attached to each side of 3-5/8" metal
studs on 16" centers with acoustic insulation built from
floor to deck above. Corridor partitions will be furnished
with Building Standard base molding on Tenant side only.
4.2. Non-Public Partitions: Building Standard, 5/8" thick
ceiling high gypsum board attached to each side of 2-1/2"
metal studs on 24" centers. Non-Public partitions will be
furnished with Building Standard base molding on both sides.
4.3. Entry Door, Frame and Hardware: Building Standard, UL
20 minute wood door with stain grade finish and UL 20 minute
hollow metal door frame with self-closer, passage set,
deadlock, ball bearing hinges and door stop.
4.4. Interior Doors, Frames and Hardware: Building
Standard, hollow metal frames, hollow core wood doors with
stain grade finish and hardware. Hardware shall include
passage sets, hinges and door stops for openings on all
interior doors.
4.5. Ceiling: Building Standard, 2'x 4'acoustic tile on a
suspended exposed grid system, as required throughout Leased
Property.
4.6. Lighting: Building Standard, 2'x 4', recessed
fluorescent prismatic lighting fixture.-
4.7. Duplex Electrical Outlets: Building Standard, wall
mounted duplex electrical outlets (120 volts) in the amount of
one per 12 linear feet of interior partition within the Leased
Property.
4.8. Telephone Outlets: Building Standard, roughed-in
electrical provisions for wall mounted telephone outlets in the
amount of one per 20 linear feet of interior partition or one
per office contained within the Leased Property, whichever is
less.
4.9. Finished Floors (Tenant's spaces): Building Standard
carpeting in colors selected by Tenant from Landlord's Building
Standard selection and limited to one color in each room, area
or corridor and two colors overall. In lieu or carpeting in any
area of Tenant's suite, Tenant may select an alternate floor
finish as approved by Landlord.
4.10.Heating, Ventilation and Air Conditioning: Building
Standard, including duct work and air diffusers (one (1) per
office).
4.11. Window Covering: Building Standard architectural
vertical blinds on all exterior windows.
4,12. Interior Wall Finish: Install gypsum wall board
finish on interior side of exterior walls. All interior walls and
partition shall be fire taped, textured, and painted.
4.13 The maximum interior partitioning which Landlord shall
provide is as follows: 64 linear feet shall be provided for
every 1,000 sq. ft. of usable lease space to be occupied by
Tenant. Any additional partitioning necessary for Tenant's
improvements shall be charged to Tenant at the rate of $48.00
per linear foot.
4.14.Sprinkler Systems: Standard Grid System per Code and
Landlord's plans. Modifications (additions, relocations, raising
or lowering) of standard system to accommodate Tenant's
requirements are to be done by Landlord's fire sprinkler
contractor at Tenant's expense and in accordance with
underwriter's requirements.
4.15. Smoke detector provided by Landlord per U.B.C. and
the Las Vegas Fire Department.
4.16.Exclusions: Furniture, fixtures, and equipment;
telephone system, wire and conduit for computer system
(network); cabinetry and/or shelving; break room and any
fixtures associated therewith (including sewer fees); counter
tops; interior windows; special door hardware; security system.
EXHIBIT D
RULES AND REGULATIONS
1. Without Landlord's written consent therefor first had
and obtained, no sign or other object or thing visible to public
view outside of the Leased Property not provided for in plans
and drawings and approved by Landlord shall be placed or allowed
on the exterior of the Leased Property or in the interior of the
Leased Property in such a manner as shall be visible from
outside the Leased Property, except that Tenant shall, at
Tenant's sole cost and expense, place one name sign of such size
and design as is designated by Landlord on an exterior door or
such other exterior surface of the Leased Property as is
designated by Landlord. Tenant shall not put any curtains,
draperies or other hangings on or beside the windows of the
Leased Property without first obtaining Landlord's written
consent therefor.
2. The sidewalks, halls, passages, exits, entrances,
elevators, stairways and other common areas shall not be
obstructed by Tenant or used for any purpose other than for
ingress and egress to the Leased Property. The halls, passages,
exits, entrances, stairways and roof are not for the use of the
general public, and Landlord shall, in all cases, retain the
right to control and prevent access thereto by all persons whose
presence in the judgment of the Landlord shall be prejudicial to
the safety, character, reputation and interests of the Building
and its lessees. No tenant and no employees or invitees or any
tenant shall go upon the roof of the Building.
3. Landlord reserves the right to exclude or expel from
the Building any person who, in the judgment of Landlord, is
intoxicated or under the influence of liquor, or shall in any
manner do any act of violation of any of the rules or regulation
of the Building.
4. Tenant shall not disturb, solicit, or canvas any
occupant of the Building and shall not solicit business from, buy
from or otherwise do business with any person soliciting or
canvassing occupants of the Building.
5. Without the written consent of Landlord, Tenant shall
not use the name, picture, or representation of the Building in
connection with or in promoting or advertising the business of
Tenant except as Tenant's address. Landlord shall have the right
to prohibit any advertising by Tenant which, in Landlord's
opinion, tends to impair the reputation of the Building or its
desirability as a location for offices, and upon written notice
from Landlord Tenant shall refrain from or discontinue such
advertising.
6. The toilet rooms, urinals, washbowls and other plumbing
apparatus shall not be used for any purpose other than that for
which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein and the expense of any
breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the tenant who, or whose employees or
invites, shall have caused it.
7. Tenant shall not place a load upon any floor of the
Leased Property exceeding the floor load per square foot which
said floor was designed to carry or which is allowed by low,
whichever is less.
8. No furniture, freight or equipment of any kind shall be
brought into the Building without the consent of Landlord and all
moving of the same into or out of the Building shall be done at
such time and in such manner as Landlord shall designate.
Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the
Building and also the times and manner of moving the same in and
out of the Building. Safes or other heavy objects shall, if
considered necessary by Landlord, stand on webbing of such
thickness and size as is necessary to properly distribute their
weight. Landlord will not be responsible for loss or damage to
any such safe or other property from any cause and all damage
done to the Building by moving or maintaining any such safe or
other property shall be repaired at the expense of Tenant.
9. No vending machines of any description shall be
installed, maintained or operated upon the Leased Property
without the written consent of Landlord.
10. Tenant shall not use or keep in the Leased Property or
the Building any kerosene, gasoline or inflammable or combustible
fluid or material, or use any method of heating or air
conditioning other than that supplied by Landlord.
11. Tenant, upon termination of the Lease, shall deliver to
Landlord the keys of offices, rooms and toilet rooms which shall
have been furnished Tenant or which Tenant shall have made, and
in the event of loss of any keys so furnished, shall pay Landlord
therefor. Tenant shall not alter any lock or install any new or
additional locks or any bolts on any doors of the Leased
Property, except for Tenant's confidential areas within the
Leased Property.
12. Furniture, packages, supplies, equipment or merchandise
will be received in the Building or carried up or down in the
elevators between such hours and in such elevators as shall be
designated by Landlord. Any merchandise not capable of being
carried by hand shall utilize a hand truck equipped with rubber
tires and rubber side guards.
13. Except as may be required by law or regulation
applicable to any tenant, Landlord reserves the right to close
and keep locked all entrance and exit doors or the Building
during hours Landlord may deem advisable for the adequate
protection of the property. Use of the Building and Leased
Property shall be on a 24 hour - 7 days a week basis. Tenant, its
employees, agents or associates, or other persons entering or
leaving the Building at any time when so locked, may by required
to sign the Building register, and the watchman or Landlord's
agent in charge shall have the right to refuse admittance to any
person into the Building without a pass or other satisfactory
identification showing right of access at such time. Landlord
assumes no responsibility and shall not be liable for any damages
resulting from the admission or refusal to admit any authorized
or unauthorized person to the Building. In case of invasion, mob,
riot, public excitement or other commotion, Landlord reserves the
right to prevent access to the building during the continuance of
the same by closing the doors, or otherwise.
14. Tenant shall see that the doors of the Leased Property
are closed at all times when not in use for ingress egress and
securely locked before leaving the Building, and that all
electricity, gas, heating or air conditioning shall likewise be
carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injuries
sustained by other tenants or occupants of the Building or by
Landlord.
15. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instruction from Landlord, and none of Landlord's employees will
admit any person to any office without specific written
instructions from Landlord or Tenant, as appropriate.
16. If the Leased Property is leased for use as
professional offices, all professional practice conducted on the
Leased Property shall be in compliance with the Code of Ethics of
such profession. All advertising, if any, by Tenant, its agents,
employees, servants, contractors, subtenants and licensees in
connection with the Leased Property shall be in compliance with
said Code of Ethics.
17. Landlord may charge Tenant a reasonable amount (without
profit to Landlord) for air conditioning and heating provided
outside normal business hours or in excess of normal use, as
determined upon mutual agreement of Landlord and Tenant. Before
installing any equipment in the Leased Property that generates
more than a minimum amount of heat Tenant shall obtain the
written permission of Landlord and Landlord may refuse to grant
such permission if, in the reasonable opinion of Landlord, the
amount of heat generated would place an undue burden on the air
conditioning system of the Building. Without limiting the
foregoing, whenever heat generating machines or equipment are
used in the Leased Property which affect the temperature
otherwise maintained by the air conditioning systems, Landlord
reserves the right to install supplementary air conditioning
units therein and the cost thereof, including, but not limited
to, installation and maintenance costs, shall be paid by Tenant
upon demand.
18. Tenant shall not without the written consent of
Landlord operate any computer, data processing machine, punch
card machine or any machine using current in excess of 110 volts
or which in any way increase the amount of electricity or water
used over that ordinarily furnished or supplied for use of the
Leased Property as general and office space, nor connect with
electric current or water except through existing electrical
outlets or water pipes in the Leased Property any apparatus or
device for the purposes of using electric current or water. If,
in Landlord's judgment, Tenant shall require water or electric
current in excessive amount or shall use the same in an
unreasonable manner, Tenant shall first procure Landlord's
written consent, which Landlord may refuse, to the use thereof
and/or Landlord may cause a water meter or electric current meter
to be installed in the Leased Property to measure the water and
electric current consumed for any such other use. The cost of any
such meter(s) and the installation, maintenance and repair
thereof shall be paid by Tenant, and Tenant shall pay on demand
for all such water and electric current consumed as shown by said
meters at the rates charged for such services by the local public
utility furnishing the same, plus any additional expense incurred
by Landlord in keeping accounts or the water and electric current
so consumed. Tenant shall not overload the electric system.
19. Tenant shall not hire or allow for use upon the Leased
Property any service for delivery of music, ice, drinking water,
waxing, cleaning, interior glass polishing, rubbish removal,
towel and other similar services or accept barbering or shoe
shining or coffee cart services, milk, soft drinks or other like
services on the Leased Property, except from persons authorized
by Landlord and at the hours and under regulations fixed by
Landlord.
20. Tenant shall not obstruct, alter or in any way impair
the efficient operation of Landlord's heating, ventilating and
air conditioning system. Landlord shall provide adjustable
thermostats within a reasonable temperature range.
21. Tenant shall not use the Leased Property for storage
or warehouse purposes.
22. No cooking shall be done or permitted by any tenant in
the Leased Property or the Building except in designated break
room areas fitted with adequate safety and ventilation systems.
23. Landlord shall not be responsible to any tenant for any
loss of property on the premises, however occurring, or for any
damage done to the effects of any tenant by the janitor or any
other employee or any other person. Janitor service shall include
ordinary dusting, cleaning of carpets or rugs and normal
vacuuming except moving of furniture or other special services.
24. Tenant shall not suffer or permit any animals to be
kept in, about or upon the Leased Property without Landlord's
prior written consent.
EXHIBIT E
PARKING LEASE AGREEMENT
This Rider is incorporated by reference into that certain Lease
Agreement dated as of the 23rd day of June, 1999 between and
Sierra Pacific Energy Company, a Nevada corporation, d/b/a
Nevada Power Services as Tenant and Xxxxxx Incorporated, a
Nevada corporation as Landlord (the "Lease").
1. Definitions. All capitalized terms contained in this
Rider that are not defined herein shall have the same definition
as set forth in the Lease.
2. Parking Facilities. The parking facilities appurtenant
to the Building include asphalt surface parking with some covered
spaces. Tenant shall be entitled to use twenty-four (24) vehicle
parking spaces within the covered portions of the parking area,
designated by Landlord. Tenant's use of the uncovered and covered
non-reserved parking spaces within the parking area shall be
based upon a non-exclusive use in common with Landlord, other
tenants of the Building, and their guests and invitees. Tenant
shall not use more covered parking spaces than said number, or
any spaces (a) which have been specifically assigned by Landlord
to other tenants or for such other uses as visitor parking or (b)
which have been designated by governmental entities of competent
jurisdiction as being restricted to certain uses. Landlord
reserves the right to erect such security and access and egress
control devices as it may reasonably deem to be appropriate
(including, without limitation card controlled gates) and Tenant
agrees to cooperate fully with Landlord in such matters. Tenant
shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers,
customers, or invitees to be loaded, unloaded, or parked in areas
other than those designed by Landlord for such activities. If
Tenant permits or allows any of such prohibited activities, then
Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable upon demand by Landlord.
3. Parking Fee. Tenant shall pay, throughout the entire
Term, an amount equal to the number of covered parking spaces
Tenant is entitled to use as follows: the first twelve (12)
vehicle parking space for: zero and 00/100 Dollars ($0.00)
thereafter for each additional covered space up to twenty four
(24) spaces: twenty-rive and 00/100 Dollars (S25.00) (the
"Parking Fees") which Landlord is charging for use of the parking
facilities. Landlord shall have the right from time to time to
increase the Parking Fees being charged Tenant upon ninety (90)
days prior written notice, which Parking Fees shall in no event
exceed the rates then being charged for parking in comparable
parking areas having a comparable method of operation. Tenant
agrees and acknowledges that Tenant shall be obligated to pay
such rates regardless of whether or not Tenant actually uses or
needs the covered parking spaces which Tenant is entitled to use.
Such Parking Fees shall be payable monthly commencing with the
first installment of Base Rent due under the Lease. If the
Commencement Date is other than the first day of a calendar
month, the first installment of the Parking Fees shall be
prorated on the basis of a thirty-(30) day calendar month.
EXHIBIT F
SIGNAGE AGREEMENT
Landlord shall allow Tenant to place a double panel on the pylon
sign fronting W. Sahara Avenue. Landlord shall also allow Tenant
to place signature signage on the building of the Sahara Vista 11
Professional Building. Notwithstanding the above, Landlord shall
have the right to approve any signage prior to the installation
of same on the Building or the pylon sign. Tenant shall have the
right to place Land lord-approved messages on the reader board
portion of the pylon sign fronting W. Sahara Ave. Landlord
approval of the above mentioned signage shall not be unreasonably
withheld.
(Specific details and drawings to be added when agreed upon by
the parties)
