EXHIBIT 10.10
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of the 15th day of
March, 1995, by and between the Landlord and Tenant hereinafter named.
SECTION 1. DEFINITIONS AND BASIC PROVISIONS 1.01. The following definitions and
basic provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this Lease:
A. "Landlord": TOWNE CENTER LIMITED PARTNERSHIP
B. "Tenant": XXXXXXXXXXX HOMES CUSTOM HOME DIVISION, INC.
C. "Premises": Suite 200 comprising 10,492 net rentable
square feet as generally outlined on the
plan attached hereto as Exhibit "A".
D. "Building": Towne Xxxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000
E. "Net Useable Area", as used herein, shall refer to all rentable
floor area subject to lease by Tenant and all tenants as determined by
Landlord and applied on a consistent basis, excluding common areas
devoted to corridors, elevator foyers, restrooms, mechanical rooms,
janitor closets, vending areas and other similar facilities. No
deductions from useable area are made for columns or projections
necessary to the building. The useable area in the premises has been
calculated on the basis of the foregoing definition, and is hereby
stipulated for purposes hereof to be 10,492 square feet, whether the
same should be more or less as a result of minor variations resulting
from actual construction and completion of the premises for occupancy.
The total useable area of the Building shall be acknowledged as 20,892
square feet.
F. "Lease Term": A period of One Hundred Twenty (120) months,
commencing on March 1, 1996 (the "commencement date") or upon
building completion and ending on June 30, 2006.
G. "Basic Rental": Two hundred forty-five thousand five hundred
twenty dollars and 00/100 ($245,520.00) per year subject to adjustment
as provided herein.
H. "Monthly Basic Rental Installment": Twenty thousand four
hundred sixty dollars and 00/100 ($20,460.00).
I. "Security Deposit": Forty thousand nine hundred twenty
dollars and 00/100 ($40,920.00).
J. "Permitted Use": General office purposes and no other use.
K. "Development": The property owned by Landlord known as
Towne Center Office Building, having a street address of 0000
Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, including the building, all land
under and surrounding the building and all other improvements
appurtenant thereto.
L. The term "Tenant's Percentage Share" shall mean the percentage
figure obtained by dividing the net rented area of the Premises
specified hereinabove by the total net useable area of the rental space
in the Building, and by multiplying such quotient by One Hundred (100).
In the event that either the net rented useable area of the Premises or
the total net useable area of the Building is changed, then the
Tenant's Percentage Share shall be appropriately adjusted. Tenant's
Percentage Share for purposes of this Lease shall be deemed to be fifty
percent (50%).
SECTION 2. LEASE GRANT 2.01. Landlord, in consideration of the rent to be paid
and the other covenants and agreements to be performed by Tenant and upon the
terms and conditions hereinafter stated, does hereby lease, demise and let unto
Tenant the Premises (as defined in Section 1.C. hereof) commencing on the
commencement date (as defined in Section 1.01F hereof, or as adjusted as
hereinafter provided) and ending on the last day of the lease term, unless
sooner terminated as herein provided. Landlord shall not be liable for failure
to give possession of the premises for any reason, including but not limited to
the holding over of retention of possession by the previous tenant, tenants, or
occupants of same, nor shall any such failure impair the validity of this Lease
and Tenant agrees to accept possession of the premises on such date as Landlord
is able to tender the same, and such date shall continue for the lease term
described in Section 1.01F. hereof. If Landlord for any reason cannot deliver
possession of the Premises to Tenant by the date specified for the commencement
of the lease term, this lease shall not be void or voidable. Landlord hereby
2
agrees to waive payment of monthly rental installments covering any period prior
to the tendering of possession of the premises to Tenant hereunder. If Tenant
occupies the premises prior to the commencement date specified in Paragraph
1.F., the commencement date shall be deemed to be changed to coincide with the
date of Tenant's occupancy; however, the expiration date of the Lease shall
remain unchanged, and the amount of the Basic rental including Tenant's share of
Operating Expenses shall be increased pro rata based upon the increased lease
term. By occupying the premises, Tenant shall be deemed to have accepted the
same as suitable for the purposes herein intended, and to have acknowledged that
the same comply fully with Landlord's covenants and obligations. Tenant shall at
its sole cost and expense promptly comply with all laws, statutes, ordinances,
zoning rules and regulations, governmental rules, regulations or requirements
now in force or which may hereafter be in force or enacted with respect to the
demised Premises, as they relate to or in any way affect the condition, use, or
occupancy of the Premises, excluding requirements pertaining to structural
changes of the Premises and excluding requirements of ADA for the building.
SECTION 3. RENT 3.01. Tenant promises and agrees to pay Landlord the Basic
Rental (as defined in Section 1.G. hereof) without deduction, counterclaim or
setoff. It is agreed that, notwithstanding anything to the contrary, the
premises herein are leased for the Basic Rental for the lease term hereof,
payable at the time of the making of this Lease, and that the provisions herein
contained for the payment of such rent in monthly installments (as defined in
Section 1.H. hereof) are for the convenience of the Tenant only, and that upon
default in the payment of any such monthly rental installment as herein provided
in Section 3.02, the whole of the rent, hereby reserved for the whole of the
lease term herein provided for and then remaining unpaid, shall at the option of
the Landlord, become due and payable upon thirty (30) days notice and an
opportunity to cure such default.
3.02. The Basic Rental and the corresponding monthly installments of
Basic Rental shall be adjusted upward annually commencing on the Tenant's first
anniversary date and shall continue and be adjusted on the anniversary date of
each consecutive year of the Lease term. The upward adjustment of Basic Rental
shall be an amount equal to no less than three percent (3%) and no more than
five percent (5%) of the Basic Rental for the year immediately preceding the
adjustment date, or an amount equal to a percentage rental adjustment based upon
the Consumer Price Index, whichever amount is greater. The base for computing
the adjustment shall be the Consumer Price Index for all Urban Consumers,
(1982-84 = 100), for the Los Angeles--Anaheim--Riverside Metropolitan Area,
published by the United States Department of Labor, Bureau of Labor Statistics
("Index"), which is published for the month nearest the date of the commencement
of the Lease term. Upon adjustment of the basic minimum monthly rental as
provided for in this Lease Agreement, the parties shall immediately execute an
Amendment to the Lease stating the new minimum monthly rent. If the foregoing
Consumer Price Index is discounted or revised during the Lease term, then the
parties agree to use such other Government Index of computation with which it is
replaced in order to obtain substantially the same result as would be obtained
if the Index had not been discontinued or revised.
3.03. One (1) monthly rental installment shall be payable by Tenant to
Landlord contemporaneously with the execution hereof, and a like monthly rental
installment shall be due and payable without notice or demand on or before the
first day of each succeeding calendar month during the term hereof. If
appropriate, a monthly rental installment for any fractional month at the
beginning or the end of the lease term shall be prorated.
3.04. If the monthly rental installment is not received by the Landlord
on or before the 15th day of the month, for which said monthly rental
installment is due, a late charge of five percent (5%) of the unpaid monthly
rental installment owed shall become due and payable in addition to the monthly
rental installment owed. Said late charge is for the purpose of reimbursing
Landlord for extra costs and expenses incurred in conjunction with the handling
and processing of late monthly installment payments and for the cost and expense
which may be incurred by Landlord for the necessity of advancing funds to
Landlord's lender or Mortgagee.
SECTION 4. SERVICES 4.01. Monthly rental installment shall include reasonable
electric, water, sewer and gas service attributable to each tenant's premises .
Tenant agrees to furnish, while occupying the premises, at its sole cost and
expense janitorial service for said premises.
4.02. In the event that the cost to Landlord for the services provided
under Section 4.01 exceeds $4.00 per square foot per year for the Towne Center
Office Building, during the Lease term hereof, then Landlord reserves the right
to charge Tenant , in addition to all other sums of rent and other charges due
hereunder, the Tenant's Percentage Share thereof, as defined in Section 1 (L).
Landlord shall make an adjustment upward to Tenant's Monthly Basis Rental
Installment to compensate the Landlord for the increased costs of such services,
and Tenant shall pay to Landlord the "Tenant's Percentage Share" with the next
installment of monthly basic rental due from Tenant.
SECTION 5. ALTERATIONS AND IMPROVEMENTS 5.01. The Premises shall be constructed
substantially in accordance with outline specifications entitled "Landlord's
Work" set forth in Exhibit "B", attached hereto. It is understood and agreed by
Tenant that reasonable changes from any plans or from said outline
specifications which may hereafter be made during construction of the building
or Premises shall at Landlord's discretion, not affect or change this Lease or
invalidate the same.
5.02. Tenant shall not make any additions, alterations, improvements or
changes in or to the Premises without the prior written approval of Landlord. In
no event shall any consent be granted if Tenant is in default hereunder. Except
as provided in Exhibit "B" hereof, any improvements shall be at the sole cost
and expense of Tenant. Any improvements shall be made promptly and in good and
workmanlike manner and in compliance with all insurance requirements and with
all applicable permits, authorizations, building regulations, zoning laws and
all other governmental rules, regulations, ordinances, statutes and laws, now or
hereafter in effect pertaining to the Premises or Tenant's use thereof. Any
improvements made by Tenant 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 such fixtures and
improvements, at Tenants' sole cost and expense, upon such termination of this
Lease and to surrender the Premises in the same condition as it was prior to the
making of any or all such improvements, ordinary wear and tear excepted.
5.03. Tenant will not create or permit to be created or to remain, and
will discharge, any lien, encumbrance or charge upon the Building, fixtures,
equipment, or personal property located within the Premises.
SECTION 6. USE 6.01. The Premises are leased to Tenant only for the permitted
use (as defined in Section 1.J. hereof). Tenant shall not use or suffer to be
used the Premises, or any portion thereof for any other purpose or purposes
whatsoever, without Landlord's prior written consent. Tenant shall conduct
business under the trade name of Xxxxxxxxxxx Homes and no other without prior
written consent.
6.02. Tenant shall not, without prior written consent of Landlord and
all insurance companies which have issued any insurance of any kind whatsoever,
sell or suffer to be kept, used, stored, or sold in, upon or about the Premises
any gasoline, distillate or other petroleum products or any other substance or
material of an explosive, inflammable or radiological nature, in such quantities
as prohibited by Landlord and any such insurance policy, or which may endanger
any part of the Building or its occupants, business patrons or invitees.
6.03. Tenant shall not, without Landlord's prior written approval,
operate or permit to be operated on the Premises any coin or token operated
vending machines or similar device for the sale or leasing to the public of any
goods, wares, merchandise, food, beverages and/or services, including without
limitation, pay telephones, pay lockers, pay toilets, scales and amusement
devices.
6.04. Tenant shall refrain from using or permitting the use of the
Premises or any portion thereof as living quarters, sleeping quarters or lodging
rooms.
6.05. Tenant shall not, without Landlord's prior written approval,
conduct or permit any fire, bankruptcy or auction sale in, on or about the
Premises other than in the normal course of Tenant's business.
6.06. All fixtures, showcases and other equipment to be used by Tenant
in, about or upon the Premises shall be subject to prior written approval of
Landlord.
6.07. Tenant shall refrain from keeping or permitting the keeping of
any animals of any kind, in, about or upon the Premises.
6.08. Except as provided elsewhere herein, Tenant shall keep and
maintain in good order, condition and repair, (including any such replacement
and restoration as required for that purpose) the Premises and every part
thereof and any and all appurtenances thereto wherever located, including, but
without limitation, the exterior and interior portion of all doors, door checks,
windows, plate glass, store front, all plumbing and sewage facilities within the
Premises including free flow up to the main sewer line, fixtures, electrical
systems (whether or not located in the Premises), fire sprinkler system, walls,
floors and ceilings, and any other work performed by or on behalf of Tenant
hereunder. Tenant shall store all trash and garbage in metal containers located
where designated by Landlord and so as not to be visible or create a nuisance to
customers and business invitees in the Building, and so as not to create or
permit any health or fire hazard, and arrange for prompt and regular removal
thereof.
6.09. Tenant shall at all times during the term of the Lease comply
with all governmental rules, regulations, ordinances, statutes and laws, and the
orders and regulations of the National Board of Fire Underwriters or any other
body now or hereafter exercising similar functions, now or hereafter in effect
pertaining to the Premises or Tenant's use thereof.
6.10. Tenant hereby covenants and agrees that it, its agents,
employees, contractors, subtenants, business invitees and licensees shall abide
by the rules and regulations set forth in this Section 7 and such additional
rules and regulation hereafter adopted and amendments and modifications of any
of the foregoing as Landlord may, from time to time, adopt for the safety, care
and cleanliness of the Premises or the Building or for the preservation of good
order thereon.
6.11. Tenant shall not do, permit or suffer anything to be done, or
kept upon the Premises which will obstruct or interfere with the rights of other
tenants, or their employees, agents, Landlord, or the patrons and customers of
any of them, or which will annoy any of them or their patrons or customers by
reason or unreasonable noise or otherwise, nor will Tenant commit or permit any
nuisance, cause disturbances, create odors which may be offensive on the
Premises or commit or suffer any immoral or illegal act to be committed thereon.
6.12. No slot machine or other gambling game or device shall be
permitted on the Premises without the prior written consent of Landlord.
6.13. All loading and unloading of goods shall be done only at such
times, in the areas and through the entrances designated for such purposes by
Landlord.
6.14. The delivery or shipping of merchandise, supplies and fixtures to
and from the Premises shall be subject to such rules and regulations as, in the
judgment of Landlord, are necessary for the proper operation of the Premises or
the Building.
6.15. No radio or television or other similar device shall be erected
on the roof or exterior walls of the Premises or in the Building. Any aerial so
installed without such written consent shall be subject to removal without
notice at any time at Tenant's expense.
6.16. Tenant shall not, without the prior written consent of Landlord,
use in or about the Premises any advertising or promotional media such as
searchlights, loud speakers, phonographs, or other similar visual or audio media
which can be seen or heard outside the Premises.
6.17. Tenant shall keep the Premises at a temperature sufficiently high
to prevent freezing of water in pipes and fixtures.
6.18. The exterior areas immediately adjoining the Premises shall be
kept clean and free from dirt and rubbish by Tenant to the satisfaction of
Landlord, and Tenant shall not place or permit any obstruction or merchandise in
such areas.
6.19. The plumbing facilities shall not be used for any other purpose
than that for which they are constructed, and no foreign substance of any kind
shall be thrown therein, and the expenses of any breakage, stoppage or damage
resulting from a violation of this provision shall be borne by the tenant who
shall, or whose employees, agents, customers or invitees shall have caused it.
6.20. Tenant shall keep the Premises free from pests and vermin.
6.21. Tenant shall not burn any trash or garbage of any kind in or
about the Premises or the Building.
6.22. Tenant and Tenant's employees and agents shall not solicit
business in the parking areas or other common areas, nor shall Tenant distribute
any handbills or other advertising matter in or on automobiles parked in the
parking areas or in other common areas.
6.23. Tenant acknowledges, represents and understands that it is
leasing the subject Premises in an existing "as is" condition. Tenant
acknowledges and represents it has inspected the Premises to confirm suitability
for Tenant's use and has entered this Lease solely on the basis of its own
investigation. Tenant further acknowledges and represents that neither Landlord,
nor its agents or brokers, have made any representations or warranties of any
kind whatsoever, express or implied, with respect to the suitability of the
Premises for Tenant's intended use. Accordingly, Tenant shall hold Landlord
harmless in the event the Premises prove unsuitable for Tenant's use.
6.24. Tenant shall not engage in any activities on the Premises or in
the Development, nor bring onto, create, or dispose of in or about the Premises
or Development, including but not limited to its sewage or storm drain systems,
any materials, the possession or use of which requires a permit from any
Federal, State or local agency having jurisdiction over hazardous, toxic or
infectious substances. Further, Tenant shall not engage in any activity in the
Premises or Development that violates any Federal, State, or local laws, rules
or regulations pertaining to hazardous, toxic or infectious substances, now or
during the term of this Lease, and Tenant shall promptly, at Tenant's expense,
take all investigatory and/or remedial action required or ordered for clean-up
of any contamination of the Premises or Development, or the elements surrounding
the same, which are created or suffered to be in existence by Tenant. If any
hazardous substance condition was caused or materially contributed to by the
Tenant, Tenant shall be solely responsible for its remediation, and shall
indemnify Landlord from the affects thereof. This covenant shall survive the
termination of this Lease.
SECTION 7. REPAIRS AND MAINTENANCE 7.01. By Landlord: Landlord shall, at its
expense, maintain in good repair and condition, except for reasonable wear and
tear, only the roof, foundation, heating and air conditioning systems, plumbing,
the structural soundness of the exterior walls, the paving outside the building,
the landscaping and interior common areas. Landlord shall also be responsible
for replacement or repair of windows and glass damaged due only to structural
movement, weather conditions and vandalism by outside persons or Landlord's
agents. Tenant shall give immediate written notice to Landlord of the need for
repairs or corrections and Landlord shall proceed promptly to make such repairs
or corrections. Landlord's liability hereunder shall be limited to the cost of
such repairs or corrections.
7.02. By Tenant: Tenant shall at its expense maintain all other parts
of the Premises and related facilities in good repair and condition, including
but not limited to repairs (including all necessary replacements) to the
windows, window glass, plate glass, doors and the interior of the Premises to
the extent that any damage was caused by Tenant or Tenant's agents, employees or
invitees. Tenant will not, in any manner, deface or injure the Premises and or
related facilities and will pay the cost of repairing any damage or injury done
by Tenant or Tenant's agents, employees or invitees. Tenant shall, throughout
the term of this Lease, take good care of the Premises and related facilities,
and keep them free from waste and nuisance of any kind. If Tenant shall fail to
make any repair required hereunder (including all necessary replacements), or
take steps to commence repair, within ten (10) days after written notification
to do so, Landlord may, at its option, make such repair, and Tenant shall, upon
demand therefor, pay Landlord for the cost thereof together with interest on any
such cost which remains unpaid following such demand and it is hereby agreed
that said interest shall be calculated at a rate equal to two percent (2%) above
the Bank of America prime rate.
SECTION 8. PARKING AND COMMON AREAS 8.01. Tenant, its agents, employees,
servants, contractors, subtenants, licensees, customers and invitees shall have
the nonexclusive right, in common with Landlord and all others to whom Landlord
has or may hereafter grant right, to use such common areas of the Premises
(including, but not limited to, the parking lot, walkways, and sidewalks) as
designated from time to time by Landlord, subject to such rules and regulations
as Landlord may from time to time impose.
Tenant agrees that it, its agents, employees, servants, contractors, subagents,
licensees, customers and invitees shall abide by such rules and regulations.
Landlord may at any time close any common area to make repairs or changes to the
common area, 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. Tenant shall not at any time
interfere with the rights of Landlord, other tenants, its and their agents,
employees, servants, contractors, subagents, licensees, customers and invitees
to use any part of the parking lot or other common areas. 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 such revocation of license or diminution of such areas be deemed
constructive or actual eviction.
8.02. Tenant, its agents, employees, servants, contractors, subtenants,
licensees, customers and invitees shall have the right to use 21 covered parking
stalls for an additional fee of thirty-five dollars per space ($35.00) per month
for the term of this Lease Agreement. Tenant agrees to adhere to reasonable
rules and regulations with regard to monitoring of tenant parking, including
license plate numbers, stickers and/or other reasonable means of control. Tenant
acknowledges that Landlord assumes no responsibility to enforce or monitor
Tenant's right to covered parking.
SECTION 9. ASSIGNMENT, MORTGAGE OR SUBLEASE 9.1. Neither Tenant nor his
successors or assigns shall assign, mortgage, pledge or encumber this Lease or
sublet the lease premises in whole or in part, or permit the premises to be used
or occupied by others, not shall this Lease be assigned or transferred by
operation of law, without the prior written consent in writing of Landlord in
each instance. If this Lease is assigned or transferred, or if all or any part
of the lease premises is sublet or occupied by anybody other than Tenant,
Landlord may, after default by Tenant collect rent from the assignee,
transferee, subtenant or occupant and apply the net amount collected to the rent
reserved herein, but no such assignment, subletting, occupancy or collection
shall be deemed as a waiver of any agreement or condition hereof, or the
acceptance of the assignee, transferee, subtenant or occupant as Tenant. Tenant
shall continue to be liable hereunder in accordance with the terms and
conditions of this Lease and shall not be released from the performance of the
terms and conditions hereof. The consent by Landlord to an assignment, mortgage,
pledge or transfer shall not be construed to relieve Tenant from obtaining the
express written consent of Landlord to any future transfer of interest.
9.02. Landlord shall have the right to approve or disapprove any
proposed Assignee or Sublessee. In exercising such right of approval or
disapproval, Landlord shall be entitled to take into account any fact or factor
which Landlord reasonably deems relevant to such decision, including but not
necessarily limited to the following, all of which are agreed to be reasonable
factors for Landlord's consideration:
a. The financial strength of the proposed Assignee or Subtenant;
b. The experience of the proposed Assignee or Subtenant with
respect to its business operation;
c. The quality and the nature of the services offered by the
proposed Assignee or Subtenant;
d. The effect of the type of services which the proposed Assignee
or Subtenant proposes to offer in the Premises, based upon the
Tenant mix of the Building;
e. Whether there then exists any default by Tenant pursuant to
this Lease or any nonpayment or nonperformance by Tenant under
this Lease which, with the passage of time, and/or the giving
of notice, would constitute a default under this Lease;
f. Any fact or factor upon which Landlord reasonably concludes
that the service or business to be conducted by the proposed
Assignee or Subtenant will not be a financial success in the
Premises.
9.03. Approval of any Assignment of Tenant's interest shall, whether or
not expressly so stated, be conditioned upon such Assignee assuming in writing
wall obligations of Tenant hereunder by a written instrument satisfactory to
Landlord. No withholding of consent by Landlord for any reason deemed sufficient
by Landlord shall give rise to any claim by Tenant or any proposed Assignee or
Subtenant or entitled Tenant to terminate this Lease or to any abatement of
rent. Under no circumstances will a Subletting or Assignment, even with the
consent of Landlord, relieve Tenant of its obligations to pay rent and perform
all of the other obligations to be performed under this Lease Agreement.
SECTION 10. INDEMNITY 10.01. Tenant hereby covenants and agrees to indemnify,
save and hold Landlord and the Premises, free, clear and harmless from any and
all liability, loss, expenses, including attorney's fees, judgments, claims,
liens and demands of any kind whatsoever in connection with, arising out of, or
by reason of any act, omission or negligence of Tenant, its agents, employees,
servants, contractors, subtenants, licensees, customers or business invitees
while in, upon, about or in any way connected with the Premises, the Building,
and the Development or arising from any accident, injury or damage, howsoever
and whomsoever caused, to any person or property whatsoever, occurring in, upon,
about or in any way connected with the Premises or any portion thereof other
than as a result of negligence of Landlord.
10.02. Landlord shall not be liable to Tenant or to any other person
whomsoever for any damage occasioned by falling plaster, electricity, plumbing,
gas, water, steam, sprinkler or other pipe and sewage system or by the bursting,
running, or leaking of any tank, washstand, closet or waste of other pipes, nor
for any damages occasioned by water being upon or coming through the roof,
skylight, vent, trap door or otherwise or for any damage arising from any acts
or neglect of co-tenants or other occupants of the Building or of adjacent
property or of the public, nor shall Landlord be liable in damages or otherwise
for any failure to furnish, or for interruption of service of any utility.
10.03 Landlord hereby covenants and agrees to indemnify, save and hold
Tenant and the Premises free, clear and harmless from any and all liability,
loss, expenses, including attorney's fees, judgments, claims, liens and demands
of any kind whatsoever in connection with, arising out of, or by reason of any
act, omission or negligence of Landlord, its agents, employees, servants,
contractors, subtenants, licensees, customers or business invitees while in,
upon, or about in any way connected with the Premises, the Building, and the
Development or arising from any accident, injury or damage, howsoever and
whomsoever caused, to any person or property whatsoever, occurring in, upon,
about or in any way connected with the Premises or any portion thereof other
than as a result of negligence of Tenant.
SECTION 11. MORTGAGES 11.01. Tenant accepts this Lease subject to any deeds of
trust, security interests or mortgages which might now or hereafter constitute a
lien upon the building, the Premises or the Development. Tenant further agrees
to comply with any zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of the Development. This clause
shall be self-operative and no further instrument need be required by any
mortgagee. In confirmation of such subordination, however, Tenant shall, at
Landlord's request, execute promptly an appropriate certificate or instrument
Landlord may request. Tenant hereby constitutes and appoints Landlord as
Tenant's attorney in fact to execute any such certificate or instrument for and
on behalf of Tenant.
SECTION 12. ESTOPPEL CERTIFICATE 12.01. Tenant agrees, on the Commencement Date,
and from time to time thereafter, upon not less than 5 days (5) prior written
request by Landlord, to execute, acknowledge and deliver to Landlord a statement
in writing, certifying (i) that this Lease is the entire agreement between the
Landlord and Tenant and is in full force and effect (or, if there have been any
modifications, that this Lease is in full force and effect as modified, and
setting forth such modifications); (ii) that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the basic rental and adjusted
rental and its obligations to perform its other covenants under this Lease;
(iii) that there are no uncured defaults of Landlord or Tenant under this Lease;
and (iv) the dates to which the basic rental, additional rental and other
charges have been paid. Any such statement delivered pursuant to this Paragraph
13 may be relied upon by any prospective purchaser or mortgagee of the Building
or any portion thereof, or any prospective assignee of any such mortgage.
SECTION 13. INSURANCE 13.01. Landlord shall, at all times during the term of
this Lease, maintain a policy or policies of insurance naming Tenant as
additional insured with the premiums thereon fully paid in advance issued by and
binding upon a solvent insurance company, insuring the Building against loss or
damage by fire, explosion or other hazards and contingencies, for the full
insurable value thereof; provided however, that Landlord shall not be obligated
to insure any furniture, equipment, machinery, goods or supplies not covered by
this Lease which Tenant may bring upon the premises, or any additional
improvements which Tenant may construct thereon. Tenant shall maintain personal
property and liability insurance on leased space, listing landlord as additional
insured.
SECTION 14. INSPECTION 14.01. Landlord or Landlord's representatives shall have
the right to enter into and upon any and all parts of the premises at reasonable
hours (i) to inspect same or to clean or make repairs or alterations or
additions as Landlord may deem necessary (but without any obligation to do so,
except as expressly provided for herein), or (ii) to show the premises to
prospective tenants, purchasers, or lenders; and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof, nor shall such be deemed
to be actual or constructive eviction of Tenant.
SECTION 15. CONDEMNATION 15.01. If, during the term of this Lease, or any
extension or renewal thereof, all of the premises should be taken for any public
or quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain or by private purchase in lieu thereof, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective on the date physical possession is taken by the condemning
authority, and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
15.02. In the event a portion but not all of the Premises shall be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or private sale in lieu thereof and
the partial taking or condemnation shall render the Premises unsuitable for
Tenant's business, then Landlord shall have the option, in its sole discretion,
of terminating this Lease, or, at Landlord's sole expense, restoring and
reconstructing the Premises to the extent necessary to make the same reasonably
tenantable. Should Landlord elect to restore the premises, this Lease shall
continue in full force and effect with the rent payable during the unexpired
portion of the lease term adjusted to such an extent as may be fair and
reasonable under the circumstances, and Tenant shall have no claim against
Landlord for the value of any interrupted portion of this Lease.
15.03. In the event of any condemnation or taking, total or partial,
Tenant shall not be entitled to any part of the award or price paid in lieu
thereof. Tenant hereby expressly waives any right or claim to any part thereof,
and Landlord shall receive the full amount of such award or price.
SECTION 16. FIRE OR OTHER CASUALTY 16.01. In the event that the Premises should
be totally destroyed by fire, tornado or other casualty (e.g., total destruction
shall mean damage to the extent of 80% of the then replacement value), or in the
event the Premises or the Building should be so damaged that rebuilding or
repairs cannot be completed within ninety (90) days after the date of such
damage, Landlord may, at its option, terminate this Lease in which event the
rent shall be abated during the unexpired portion of this Lease effective as of
the date of such damage. In the event the premises should be damaged by fire,
tornado or other casualty covered by Landlord's insurance, and if the necessary
rebuilding or repairs can be completed within ninety (90) days after the date of
such damage, or if such rebuilding or repairs would take more than ninety (90)
days to complete but Landlord does not elect to terminate this Lease, then, in
either such event, Landlord shall, within thirty (30) days after the date of
such damage, commence to build or repair the Premises, and shall proceed with
reasonable diligence to restore the premises to substantially the same condition
in which they were immediately prior to the happening of the casualty, except
that Landlord shall not be required to rebuild, repair or replace any part of
the furniture, equipment, fixtures and other improvements which may have been
placed by Tenant or other tenants within the Building or the Premises, or
related facilities. In the event that the Premises are untenantable, Landlord
shall allow Tenant a fair diminution of rent during the time the Premises are
unfit for occupancy. In the event any mortgagee under a deed of trust, security
agreement or mortgage on the Building or the Premises should require that the
insurance proceeds be used to retire the mortgage debt, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice of Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or to the Premises shall be first for the benefit of the Landlord.
SECTION 17. HOLDING OVER 17.01. Should Tenant or any of its successors in
interest continue to hold the Premises, or any part thereof, after the
expiration or earlier termination of this Lease, unless otherwise agreed in
writing, such holding over shall constitute and be construed as a tenancy from
month to month only at a monthly rental equal to One Hundred Ten Percent (110%)
of the sum of the monthly rental installment, plus the amount of the most
current rental adjustment which may have been made thereto pursuant to Sections
4 and 9 hereof. The inclusion of the preceding sentence shall not be construed
as Landlord's consent for the Tenant to hold over.
SECTION 18. EVENT OF DEFAULT 18.01 The following events shall be deemed to be
events of default by Tenant under this Lease:
a. Tenant shall fail to pay (i) any monthly rental installment;
(ii) any portion of the basic rental hereby specified; or
(iii) any additional monetary obligation required to be paid
hereunder when due, and such failure shall continue for a
period of fifteen (15) days after the same shall be due;
b. Tenant fails to perform any other term, condition or covenant
to be performed by it pursuant to this Lease within ten (10)
days after written notice of such default shall have been sent
to Tenant by Landlord.
c. Tenant or its agent shall falsify any reports required to be
furnished to Landlord hereunder.
d. Tenant or any Guarantor of this Lease shall become bankrupt or
insolvent or file any debtor proceedings or shall have taken
against such party in any court pursuant to State or Federal
Statute a petition in bankruptcy or insolvency,
reorganization, or appointment of a receiver or trustee; or
Tenant petitions for or enters into an arrangement; or Tenant
suffers this Lease to be taken under a writ of execution.
e. Tenant does not execute Landlord's standard Estoppel
Certificate within fifteen (15) days of request by Landlord.
f. Tenant shall make an assignment for the benefit of creditors.
g. Tenant shall abandon or vacate any substantial portion of the
Premises for a period of five (5) or more days.
SECTION 19. REMEDIES 19.01. Upon the occurrence of any event of default
specified in Section 18 hereof, Landlord shall have the option to pursue any one
or more of the following remedies:
a. Terminate this Lease by written notice to Tenant. In the event
of such termination, Tenant agrees to immediately surrender
possession of the premises to the Landlord. Should Landlord
terminate this Lease, it may recover from Tenant all damages
that it may incur by reason of Tenant's breach, including the
cost of recovering the Premises, reasonable attorney's fees,
and the worth at the time of termination of the excess, if
any, of the amount of rent and charges equivalent to rent
reserved in the Lease for the remainder of the stated term
over the then reasonable rental value of the Premises for the
remainder of the stated term, all of which amount shall be
immediately due and payable from Tenant to Landlord.
b. Upon Thirty (30) day notice re-enter and remove all persons
and property from the premises, storing said property in a
warehouse or elsewhere at the cost of and for the account of
Tenant. No such re-entry or taking possession of the premises
by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a specific written notice
of such intention is given by Landlord to Tenant. No such
action by Landlord shall be considered or construed to be a
forcible entry.
c. Collect by suit or otherwise each installment of rent or other
sum as it becomes due hereunder, or enforce, by suit or
otherwise, any other term or provision thereof on the part of
the Tenant required to be kept or performed.
d. Should Landlord re-enter the Premises, as provided herein, and
take possession pursuant to legal proceedings or notice as
provided for by law or as stated in this document, Landlord,
as additional damages, shall be entitled to recover any and
all costs associated with re-letting the leased property
including, but not limited to, reasonable attorney's fees,
brokerage fees, and all costs associated with restoring the
leased property to rentable condition including costs of
remodeling, renovating or otherwise preparing the Premises, or
any part thereof, for reletting.
19.02. No re-entry or taking possession of the premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant. Notwithstanding any such
re-letting or re-entry or taking possession, Landlord may, at any time
thereafter, elect to terminate this Lease for a previous default. Landlord's
acceptance of rent following an event of default hereunder shall not be
construed as Landlord's waiver of such event of default. Waiver by Landlord of
any violation or breach of any other term, provision or covenant shall not
constitute a waiver of any other violation or default. Forbearance by Landlord
to enforce one or more of the remedies herein provide upon any event of default
shall not be deemed or construed to constitute a waiver of any other violation
or default.
19.03. The remedies given to Landlord in this Section 21 shall be
cumulative and in addition and supplemental to all other rights or remedies
which Landlord may have under the laws of the State of Nevada then enforced.
SECTION 20. SURRENDER OF PREMISES 20.01. No act or thing done by the Landlord or
its agents during the term hereby granted shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless the same shall be made in writing and subscribed
to by the Landlord.
SECTION 21. ATTORNEY'S FEES 21.01. Should legal action be necessary to enforce
either parties rights or obligations under this lease, the prevailing party
shall be entitled to payment of their reasonable attorney fees as determined by
the Court.
SECTION 22. MECHANIC'S LIEN 22.01. Tenant will not permit any mechanic's lien or
liens to be placed upon the Premises or the Building during the term hereof
caused by or resulting from any work performed, materials furnished or
obligations incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant will promptly pay same or otherwise cause the
premises to be released from the lien. If default in payment thereof shall
continue for twenty (20) days after written notice thereof from Landlord to the
Tenant, the Landlord shall have the right and privilege, at Landlord's option,
of paying the same or any portion thereof and any amounts so paid, including
expenses and interest, shall be so much additional indebtedness hereunder due
from Tenant to Landlord and shall be repaid to Landlord immediately on rendition
of a xxxx therefor, together with interest thereon at Eight Percent (8%).
SECTION 23. WAIVER OF SUBROGATION 23.01. Anything in this Lease to the contrary
notwithstanding, the parties hereby waive any and all rights of recovery,
claims, actions or causes of action against each other, their agents, officers
and employees for any loss or damage that may occur to the Premises hereby
demised or any improvements thereto or the Building of which the Premises are a
part by reason of fire, the elements or other cause which could be insured
against under the terms of standard fire and extended coverage insurance
policies, regardless of cause or origin, including negligence of the parties
hereto, their agents, officers and employees.
SECTION 24. NOTICES 24.01. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice, or with reference to the
making of any payment by Tenant to Landlord, shall be deemed to be complied with
when and if the following steps are taken:
a. All rent and other payment required to by made by Tenant to
Landlord hereunder shall be payable to Landlord in the City of
Las Vegas, County of Xxxxx, State of Nevada, at the address of
the managing agent hereinbelow set forth, or at such other
address as Landlord may specify from time to time by written
notice deliver in accordance herewith;
b. Any notice or document required to be delivered hereunder
shall be deemed to be delivered if actually received, and
whether or not received when deposited in the United States
mail, postage pre-paid, certified or registered mail (with or
without return receipt requested) addressed to the parties
hereto at the respective addresses set out opposite their
names below, or at such other address as they have here
heretofore specified by written notice delivered in accordance
herewith:
Landlord: Towne Center Limited Partnership
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Tenant: Xxxxxxxxxxx Homes Custom Home Division, Inc.
0000 Xxxxxxxx Xxxxx, Xxx 000
Xxx Xxxxx, Xxxxxx 00000
SECTION 25. FORCE MAJEURE 25.01. Whenever a period of time is herein prescribed
for action to be taken by Landlord, the Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes riots, Acts of God, shortages of labor
or materials, war, governmental laws, regulations or restrictions or any other
causes of any king whatsoever which are beyond the control of Landlord.
SECTION 26. SEVERABILITY 26.01. If any clause or provisions of this Lease is
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby,
and it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or unenforceable,
there be added as a part of this Lease a clause or provision as similar in terms
to such clause or provision as may be possible and be legal, valid and
enforceable.
SECTION 27. ENTIRE AGREEMENT, AMENDMENTS AND BINDING EFFECT 27.01. Landlord and
Tenant agree that this Lease Agreement including its Exhibits, Addendums and
Riders incorporated herein, and Rules and Regulations, are made a part hereof
and consist of the entire agreement between the Landlord and Tenant, and that no
changes, additions or deletions may be made to this Agreement except as set
forth in writing mutually agreed to between Landlord and Tenant. The terms,
provisions, covenants, and conditions contained in this Lease shall apply to,
inure to the benefit of and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
SECTION 28. QUIET ENJOYMENT 28.01. Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the rental herein set forth, shall peaceably and quietly have, hold and enjoy
the Premises for the term hereof without hindrance or molestation from Landlord,
subject to the terms and provisions of this Lease.
SECTION 29. RULES AND REGULATIONS 29.01. Tenant and Tenant's agents, employees,
servants, contractors, subtenants, licensees, customers or business invitees
will comply fully with all requirements of the rules and regulations of the
Building and related facilities which are attached hereto as Exhibit "C" and
made a part hereof as though fully set forth herein. Landlord shall, at all
times, have the right to change such rules and regulations or to promulgate
other rules and regulations in such reasonable manner as may be deemed advisable
for the safety, care or cleanliness, and for preservation of good order therein,
all of which rules and regulations, changes and amendments will be forwarded to
Tenant in writing and shall be carried out and observed by Tenant. Tenant shall
further be responsible for the compliance with such rules and regulations by the
agents, employees, servants, contractors, subtenants, licensees, customers or
business invitees of Tenant.
SECTION 30. BROKER'S OR AGENT'S COMMISSION 30.01. Tenant represents and warrants
that there are no claims for brokerage commission or finder's fees in connecting
with the execution of this Lease except as listed below, and Tenant agrees to
indemnify and hold harmless Landlord against all liabilities and costs arising
from such claims, including without limitation, attorney's fees in connecting
therewith.
SECTION 31. GENDER 31.01. Words of any gender used in this Lease shall be held
and construed to include any other gender, the words in the singular number
shall be held to include the plural, unless the context otherwise requires.
SECTION 32. GUARANTY, JOINT AND SEVERAL LIABILITY 32.01. If there be more than
one Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. If there be a guarantor of Tenant's obligations hereunder, the
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor and Landlord need not first proceed
against the Tenant hereunder before proceeding against such guarantor, nor shall
any such guarantor be released from its guaranty for any reason whatsoever,
including, without limitation, in case of any amendments hereto, waivers hereof
or failure to give such guarantor any notices hereunder. Any guaranty hereto is
an integral part of this Lease and constitutes consideration given to Landlord
to enter into this Lease.
SECTION 33. CAPTIONS 33.01. The captions contained in this Lease are for
convenience of reference only, and in no way limits or enlarges the terms and
conditions of this Lease.
SECTION 34. NO PERSONAL LIABILITY 34.01. The obligations of the Landlord herein
are intended to be binding only upon the property in the Development, and shall
not be personally or otherwise binding upon the entity acting as Landlord, nor
shall any resort be had to the private properties of the general or limited
partners of the Landlord, or any employees or agents of Landlord.
EXECUTED as of the date first above written.
LANDLORD: TENANT:
Towne Center Limited Partnership Xxxxxxxxxxx Homes Custom Home
Division, Inc.
By:________________________________ By:___________________________________
J. Xxxxxxxxxxx Xxxxxxx, President J. Xxxxxxxxxxx Xxxxxxx, President
J. Xxxxxxxxxxx Xxxxxxx, Inc., as
General Partner
