Exhibit 10.15
OFFICE LEASE
DURANGO COURTYARDS
Durango Trop, L.L.C., a Nevada limited liability company
LANDLORD
0000 X Xxxxxx #000
Xxx Xxxxx, XX 00000
000-000-0000 office
000-000-0000 fax
and
American Vantage Companies, a Nevada corporation
TENANT
0000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxx. XX 00000
000-000-0000 office
000-000-0000 fax
LEASE DATED: June 10, 2003 (for reference purposes)
Page 1 of 4l Revised on 7/1/03
LEASE SUMMARY UPON EXECUTION
1. TENANT NAME American Vantage Companies, a Nevada corporation
2. TENANT ADDRESS 0000 X. Xxxx Xxxx Xxxx, #000 Xxx Xxxxx, XX 00000
3. BUILDING / STORE 0000 X. Xxxxxxx Xx., Xxxxx 000, Xxx Xxxxx XX 00000
4. DATE OF LEASE (for reference purposes) June 10, 2003
5. RENT COMMENCEMENT Sixty (60) days following completion of Landlord's Work
6. LEASE COMMENCEMENT Upon execution of lease
7. EXPIRATION OF LEASE Four (4) years following Rent Commencement Date
8. BROKER NAME Las Vegas Valley Comm'l. Brokers (Landlord)
Tru-west Realty Inc. (Tenant)
9. POLE SIGN LOCATION NA
10. FACIA SIGN SIZE Per approved sign exhibit
11. T.I. DRAWINGS APPROVED -----------------------------------------------------------------
12. SIGN DRAWINGS APPROVED -----------------------------------------------------------------
13. NOTICE OF SUBSTANTIAL COMPLETION -----------------------------------------------------------------
14. TENANT WALK-THRU -----------------------------------------------------------------
I5. REQUEST FOR ESTOPPEL -----------------------------------------------------------------
16. ABC LICENSE APPROVAL -----------------------------------------------------------------
17. CONDITIONAL USE PERMIT APPROVED -----------------------------------------------------------------
18. COMP. RENT PERIOD -----------------------------------------------------------------
19. RENT INVOICE -----------------------------------------------------------------
20. INSURANCE VERIFIED -----------------------------------------------------------------
21. AUTOMOBILE VERIFIED -----------------------------------------------------------------
22. HVAC SERVICE CONTRACTOR -----------------------------------------------------------------
23. NOTICE OF NON-RESPONSIBILITY -----------------------------------------------------------------
24. PERFORMANCE BOND -----------------------------------------------------------------
25. TENANT'S CONTRACTOR -----------------------------------------------------------------
AMOUNT DUE: -----------------------------------------------------------------
----------
A. FIRST TWO MONTH'S RENT $2325.00 (Based on first 2 months at 1/2 rent rate)
B. LAST MONTHS RENT Waived
C. SECURITY DEPOSIT $2000.00
D. FIRST MONTHS NNN ESTIMATE $420.00
E. LAST MONTHS NNN Waived
F. COMP. MONTHS NNN Waived
G. FIRST MONTHS PARKING RENT $90 for 2 stalls (per separate parking agreement)
H. MISCELLANEOUS Tenant to pay costs, if any, in excess of $35/sf of leased
space upon Landlord's receipt of low bid per Tenant's approved plans. Any
excess in TI allowance shall he credited to Tenant.
TOTAL DUE UPON EXECUTION $4835.00 (-$2000 paid on 5/8/03)
Page 2 of 4l Revised on 7/1/03
LEASE
THIS LEASE ('Lease" ), dated for reference purposes only, the 10th day of June,
2003, is by and between Durango Trop, L.L.C., a Nevada limited liability company
(hereinafter called "Landlord"), and American Vantage Companies, a Nevada
corporation, (hereinafter called "Tenant"). Landlord, for and in consideration
of the covenants and agreements hereinafter set forth to be kept and performed
by Tenant, hereby demises and leases to Tenant, and Tenant does hereby take,
accept and hire from Landlord, the demised premises hereinafter described for
the term, at the rental and subject to and upon the terms, conditions and
agreements herein set forth as follows:
ARTICLE I
---------
FUNDAMENTAL LEASE PROVISIONS
1. (a) Landlord: Durango Trop X.XX., a NV limited liability company
Address for Notice: 0000 X Xxxxxx #000
Xxx Xxxxx, XX 00000
Landlord's Phone/Fax 000-000-0000 office/ 000-000-0000 fax
(b) Tenant: American Vantage Companies, a Nevada corporation
Address for Notice: 0000 X. Xxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Tenant's Phone/Fax 000-000-0000 / 000-000-0000 fax
(c) Tenant's Trade Name(s): American Vantage Companies
(d) Property Description: See Exhibit A.
(e) Demised Premises (See Exhibit A) The demised premises contains approx, 1500 square feet of floor area.
(f) Use: Professional office for administrative finances of public company
(g) Lease Term: The Lease Term commences on the Rent Commencement Date and
continues until the Expiration Date, forty-eight (48) months
thereafter, unless sooner terminated as provided herein. Lease is
in force upon execution by both Landlord and Tenant
(h) Minimum Monthly Rent: $2325.00 (based on $1.55 per square foot x 1500 sf of floor area)
(i) Rent Commencement Date: Sixty (60) days alter the completion of Landlord's Work.
(j) Expiration Date: Four (4) years after the Rent Commencement Date.
(k) Percentage Rent Amount NA
(l) Security Deposit: $2000.00
(m) Tenant Share NNN 13.5% based on 11,103 sf building (subject to revision in
accordance with Section 12.2(b) of this Lease), $420/mo. Based on
$0.28/sf estimate.
(n) Broker(s)(Article 34): Las Vegas Valley Commercial Brokers, LLC
Tru-West Realty Inc.
(o) Guarantor(s): Tenant's Corporation, Tax ID# 00-0000000
(p) Exhibit A Legal Description-Site Plan
Exhibit B Description of Landlord's and Tenant's Work
Exhibit C Rules and Regulations
Exhibit D Store Sign Agreement
Exhibit E Estoppel Agreement
Exhibit F Tenant Notice of Substantial Completion
Exhibit G Pole Sign Agreement
Exhibit H Guarantee of Lease
Exhibit I Corporate Resolution
Exhibit J Duties Owned by a Nevada Real Estate Licensee
Exhibit K Options to Renew
Exhibit L Notice of Non-Responsibility
Exhibit M Storefront Sign Installation Agreement
Exhibit N Standard Procedure for Distribution of Tenant Improvement
Allowance
Page 3 of 4l Revised on 7/1/03
ARTICLE 2
---------
DEMISED PREMISES
2.1 Demised Premises. The premises demised leased hereunder (hereinafter
referred to as the ("demised premises") are described on Exhibit A attached
hereto. The demised premises, together with and including other adjacent
property owned by Landlord, comprise a office plaza and commercial
development referred to hereinafter and throughout this Lease as the
"Office Plaza". A general site plan showing, among other things, the
principal improvements which will comprise the Office Plaza, is attached
hereto as Exhibit A and made a part hereof. Tenant acknowledges that
Landlord, in Landlord's sole discretion, may change the shape, size,
location, number and extent of the improvements shown on said site plan and
may eliminate or add any improvements to any portion of the Office Plaza,
provided Landlord shall not change the size or location of the demised
premises without Tenant's consent. Landlord reserves to itself the use of
the roof; exterior walls and the area beneath the demised premises,
together with the right to install, use, maintain and replace equipment,
machinery, pipelines, conduits and wiring through the demised premises,
which serve other parts of the Office Plaza.
2.2 Floor Area. The term "floor area" as used throughout this Lease shall be
deemed to mean and include all areas used for the exclusive use of and
occupancy by a tenant of Landlord, measured from the exterior surface of
exterior walls (and from the extensions thereof; in the case of openings),
and from the midpoint of interior or common walls, including mezzanines,
warehousing or storage areas, clerical or office areas, and employee areas,
then multiplied by the load factor: "floor area" shall not include truck
tunnels, docks, areas for truck loading and unloading (to the extent such
facilities lie outside exterior building lines). Landlord and Tenant shall
have ninety (90) days from the Lease Commencement Date to have its
respective architect or engineer verify actual square footage with square
footage of Demised Premises as set forth in Article 1, Section 1.(e), and
in the event of an error, Landlord agrees to adjust Tenant's square footage
to conform to annual dimensions and to adjust Tenant's lease, lease rate
and common area expenses accordingly. If adjustments are not made during
the above mentioned ninety (90) day period, the Landlord and Tenant shall
accept the square footage as set forth in Article 1, Section 1(e) as the
agreed upon calculations for the purpose of this Lease, without recourse.
ARTICLE 3
---------
TERM
3.1 Initial Term. The term of this Lease shall commence on the earlier of the
following dates below (the "Lease Commencement Data") and shall continue
for the term specified as "Lease Term" in Article 1(g) hereof unless sooner
terminated:
(a) Sixty (60) days following completion of Landlord's Work, which work
generally includes demised xxxx shell ready for Tenant to commence its
work
(b) Sixty (60) days following The date Landlord gives Tenant notice in
writing that the demised premises have been substantially complete (as
defined in Exhibit B and a copy of said notice is attached hereto as
Exhibit F) with respect to Landlord's construction obligations
therefor (as set forth in Exhibit B).
(c) According to the provisions of Exhibit "K", the Tenant shall be
granted two (2) consecutive three (3) year options to renew me lease.
The same terms and rental adjustments of the original lease term shall
apply unless stated otherwise in Exhibit "K" of the lease.
ARTICLE 4
---------
RENTAL
Tenant covenants and agrees to pay as rental for the use and occupancy of the
demised premises, at the times and in the manner hereinafter provided, the
following sums:
4.1 Minimum Monthly Rental. Commencing on the Rent Commencement Date, and for
the duration of the Lease Term, Tenant agrees to pay Landlord the minimum
monthly rental specified as minimum monthly rental ("Minimum Monthly
Rental") to Article 1(h) hereof, in advance, on the first day of each
calendar month during each year of the term of this Lease, without notice,
set off reduction or abatement, subject to adjustment a set forth below.
Notwithstanding the foregoing Tenant shall pay one (1) full month's Minimum
Monthly Rental to Landlord upon execution of this Lease to be applied
toward the Minimum Monthly Rental payable for the first full calendar month
following the Rent Commencement Date. If Tenant fails to faithfully perform
the covenants and conditions of this Lease prior to the Rent Commencement
Date, said monies may be applied to any damages suffered by Landlord as a
result of Tenants default. If the Rent Commencement Data occurs on a day
other than the first day of a month or the Lease terminates on a day other
than the last day of a month, then the installment of Minimum Monthly
Rental for such month shall be prorated based on the number of days in such
month. Nothing in this
Page 4 of 4l Revised on 7/1/03
Article 4.1 shall in any way diminish or be construed as waiving any of
Landlord's other remedies by law or equity.
4.2 Rent Adjustment. On each anniversary date ("Adjustment Date") of the Rent
Commencement Date, the Minimum Monthly Rental shall be subject to increase
of three percent (3%).
4.3 Additional Rent. Tenant shall pay as additional rent all other sums of
money or charges required to be paid pursuant to the terms of this Lease,
whether or not the same be designated "additional rent." Unless this Lease
provides otherwise, all additional rent shall be paid with the next
installment of Minimum Monthly Rental thereafter falling due hereunder, but
nothing herein contained shall be deemed to suspend or delay the payment of
any amount of money or charge at the time the same become due and payable
hereunder, or limit any remedy of Landlord.
4.4 Late Charge. Team acknowledges that the late payment by Tenant of any
monthly installment of Minimum Monthly Rental, additional rent or any other
charge required under this Lease will cause Landlord to incur certain costs
and expenses not contemplated under this Lease, the exact amount of which
costs being extremely difficult or impractical to fix. Such costs and
expenses will include, without limitation, administrative and collection
costs and processing and accounting expenses. Therefore, if any such sum is
not received by Landlord five (5) days from the date such sum becomes due,
Tenant shall immediately pay to landlord a late charge equal to twelve
percent (12%) of the sum that is due. Landlord and Tenant agree that this
late charge represents a reasonable estimate of such costs and expenses and
is fair compensation to Landlord for its loss suffered by such nonpayment
by Tenant. Acceptance of this late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent
Landlord from exercising all other rights and remedies available to
Landlord under this Lease.
4.5 Place of Payment. All rental and other payments shall he paid by Tenant to
Landlord at Landlord's address set forth on the first page of this Lease,
or at such other place as may from time to time be designated by Landlord
in writing at least live (5) days prior to the next ensuing payment date.
4.6 Percentage Rental. Intentionally deleted.
ARTICLE 5
---------
USE OF DEMISED PREMISES
5.1 Use and Trade Name. Tenant shall use the demised premises solely for the
purpose and under the trade name specified as "Use" and "Tenant's Trade
Name," respectively, in Article 1 hereof. Tenant shall not use or permit
the demised premises to be used for any other purpose or purposes or under
any other trade name whatsoever without the written consent of Landlord
(which may be withheld by Landlord in its sole discretion). Tenant further
covenants and agrees that it will not use or suffer or permit any person or
persons to use the demised premises or any part thereof for conducting
therein a secondhand store, auction, distress or fire sale or bankruptcy or
going-out-of-business sale, or for any use or purpose in violation of the
laws of the United States of America or the State of Nevada or the
ordinances, regulations and requirements of the City and/or County wherein
the demised premises are situated. Tenant further covenants and agrees that
during the term hereof the demised premises, and every part thereof shall
be kept by Tenant in a clean and wholesome condition, free of any
objectionable noises, odors and nuisances, and that all health and police
regulations shall, in all respects and at all times, be fully complied with
by Tenant.
5.2 Operating Covenant. Intentionally deleted.
5.3 Refuse. Tenant agrees that all trash and rubbish of Tenant shall be
deposited within receptacles within the enclosures and that there shall be
no trash receptacles permitted to remain outside of the building of which
the demised premises are a part. In the event Landlord provides or
designates trash receptacles, Tenant agrees to cause such receptacles to be
emptied and trash removed at its own cost and expense. Tenant agrees to
first bag the trash before depositing it in the authorized trash area.
5.4 Advertising. Any window displays, exterior signs and exterior advertising
displays shall be subject to the prior approval of Landlord (which may be
withheld in its sole discretion). Tenant agrees to have said approved
window displays, exterior signs and exterior advertising displays
adequately illuminated continuously during all hours on all days which the
demised premise are required to be open for business. Tenant may not
display or sell merchandise or allow carts, portable signs, devices or any
other objects to be stored or to remain outside the exterior walls and
permanent doorways of the demised premises. Tenant shall not permit any
audible noise from any source or device of any nature to be heard outside
of the demised premises. Tenant shall not plan or authorize to have placed
or affixed advertising materials on automobiles or improvements within the
Office Plaza.
5.5 Condition of Demised Premises. Tenant agrees to accept the demised premises
in its "as-is" condition as of the date of delivery (subject to a
walk-thru) and throughout the Lease Term. Without limiting the foregoing,
Tenant's rights in the demised premises are subject to all covenants,
conditions, restrictions (and other documents) recorded upon, or affecting,
the Office Plaza, and all laws, ordinances and regulations
Page 5 of 4l Revised on 7/1/03
governing and regulating the use and occupancy of the demises premises.
Tenant acknowledges that neither Landlord nor Landlord's agent has made any
representation or warranty as to present or future suitability of the
demised premises for the conduct of Tenant's business.
5.6 Compliance with Laws. Tenant hereby represents and warrants that it has
investigated whether its proposed use of the demised premises and its
proposed manner of operation will comply with all applicable laws, and
Tenant assumes the risk that let proposed use of the demised premises and
its proposed manner of operation are and will continue to be, in compliance
with all applicable laws, including, without limitation, all zoning laws
regulating the use and enjoyment of the demised premises. Tenant agrees
that under no circumstances will Tenant be released in whole or in part
front any of its obligations under this Lease as a result of any
governmental authority disallowing or limiting Tenant's proposed use of the
demised premises or its manner of operation. Additionally. Tenant agrees to
install and pay for any improvements, changes or alterations in the demised
premises, required by any governmental authority, as a result of its
proposed use of the demised premises or its manner of operation.
ARTICLE 6
---------
CONSTRUCTION OF IMPROVEMENTS ON DEMISED PREMISES
Landlord shall, at its own expense, cause Landlord's Improvements to be
constructed upon the demised premises in accordance with the Work Letter
Agreement attached hereto as Exhibit B. Tenant shall at its own expense cause
Tenants Improvements to be constructed upon the demised premises in accordance
with the Work Letter Agreement attached hereto as Exhibit B. TENANT IMPROVEMENT
ALLOWANCE: So long as tenant is not in default of this Lease and Tenant opens
for business under the terms and conditions contained herein, Landlord agrees to
provide Tenant a " Tenants Improvement Allowance" over a demised Xxxx Shell in
the amount of thirty-five dollars ($35.00) per square foot of space in Premises
and payment shall be in accordance with Tenant's preference as noted on Exhibit
N. In the event that a mechanic's lien has been filed and recorded against the
Office Plaza only as it relates to Tenant's space or demised premises in
connection with Tenant's Work, Tenant shall immediately pay all such amounts
directly to contractors and secure unconditional lien releases, and Landlord
reserves the right to pursue all legal recourse allowed by Nevada Law against
Tenant or its contractors to immediately remove all such liens filed on the
demised premises or Office Plaza.
ARTICLE 7
---------
SIGNS
7.1 Advertising Media. Tenant shall not erect or install any exterior signs or
window or door signs, or window or door lettering or placards or any other
advertising media visible from the common areas (whether on or just behind
the windows), without Landlord's prior written consent (which may be
withheld by Landlord in its sole discretion). Tenant shall not install any
exterior lighting or plumbing fixtures, shades or awnings, or make any
exterior decoration or painting, or build any fences, or install any radio
or television antenna, loud speakers, sound amplifiers or similar devices
on the roof ceiling or exterior walls of the demised premises, or make my
changes to the storefront without Landlord's prior written consent (which
may be withheld by Landlord in its sole discretion). Landlord may, in its
sole discretion, require Tenant to procure material, payment and/or
performance bonds from Tenant's sign contractor.
7.2 Sign Criteria. Tenant may, at Tenants sole cost and expense, erect an
exterior sign on its storefront subject to Landlord's prior written
approval of said sign (which may be withheld by Landlord in its sole
discretion). Tenant agrees and covenants to comply with all of Landlord's
sign criteria as set forth, in the Storefront Sign Agreement attached
hereto as Exhibit D. Landlord shall have the right from time to time to
promulgate amendments thereto and additional and new sign criteria. After
delivery of a copy of such amendments and additional and new sign criteria,
Tenant shall comply with same. A violation of the Storefront Sign Agreement
or any amendments thereto shall constitute a default by Tenant under this
Lease. If there is a conflict between the Storefront Sign Agreement and any
of the provisions of this Lease, the provisions of this Lease shall
prevail.
ARTICLE 8
---------
TAXES
8.1 Tenant's Obligations. Tenant agrees to pay Landlord its proportionate share
of all taxes levied and assessed during the term of this Lease upon the
land, buildings and personal property comprising the Office Plaza including
the common area of the Office Plaza, including any reassessment resulting
from any sale of the Office Plaza. The share of taxes to be paid by Tenant
shall be deemed to be the product derived by multiplying the total of the
taxes levied or assessed against the Office Plaza by a fraction, the
numerator of which is the floor area (as defined in this Lease) contained
in the demised premises and the denominator of which is the total floor are
contained in the Office Plaza, exclusive of any portion of the total floor
area which may be assessed and taxed separately from the portion of the
Office Plaza in which the demised premised are located. Tenant shall pay
one-twelfth (1/12) of the amount estimated by Landlord for Tenant's share
of such taxes with each monthly installment of Minimum Monthly Rental due
hereunder.
Page 6 of 4l Revised on 7/1/03
Following Landlord's receipt of applicable tax xxxx, Landlord shall notify
Tenant relative to any additional amount owing, and Tenant shall pay such
additional amount to Landlord substantiated by true and correct copies of
said expense, if requested in writing by Tenant within thirty (30) days
thereafter. In the event Tenant's monthly tax payment exceeds the taxes
attributable to the demised premises, such excess shall be credited against
Tenant's future tax obligations. Taxes for the first and last years of the
term hereof shall be prorated between Landlord end Tenant. For the purposes
of this Article 8, taxes shall include, without limitation:
(a) Any assessment, reassessment including but not limited to any
reassessment resulting from a transfer of the Office Plaza, any
portion thereof, a change in the composition of Landlord, or any
construction or reconstruction at the Office Plaza, bond, license fee,
levy, penalty or tax (except as excluded pursuant to Section 8.3
below) imposed, assessed or levied against the Office Plaza by any
authority having the direct or indirect power to tax, including
without limitation any city, county, state or federal government or
agency thereof, or any school, agricultural lighting, drainage, fire,
street, sanitary or other improvement district thereof.
(b) Any tax assessed upon or measured by the rents received by Landlord
hereunder,
(c) Any tax, fee or charge on the operation and use of the Office Plaza
and/or the common area imposed by the United States Environmental
Protection Agency or any other federal, state or local governmental
entity, and
(d) Any impositions (whether or not such impositions constitute tax
receipts to governmental agencies) in substitution, partially or
totally, of any impositions now or previously included within the
definition of real property taxes, including those imposed or required
by governmental agencies to increase tax increments to governmental
agencies, and for such services as fire protection, street, sidewalk
and road maintenance, refuse removal and/or for other governmental
services formerly provided without charge to property owners or
occupants (it being the intention of Landlord and Tenant that all such
new and/or increased impositions and all similar impositions be
included within the definition of "taxes" for the purpose of this
Lease).
8.2 Personal Property Taxes. Tenant shall also pay before delinquency any and
all taxes, assessments, license fees and public charges levied, assessed or
imposed at any time and which become payable during the term of this Lease
upon Tenant's leasehold improvements, fixtures, equipment, furniture,
inventories or merchandise and any other personal property installed or
located on the demised premises whether or not such assessment is made
against Tenant or against Landlord, either separately or as part of the
assessment of the Office Plaza, and whether installed by Landlord or by
Tenant.
8.3 Exclusions. It is agreed and understood that the term "taxes" as used
herein shall not include any franchise, excise, gift, estate, inheritance,
succession, capital levy or transfer tax of Landlord arising out of or in
connection with this Lease or Landlord's rights in the demised premises, or
any net income, excess profits or revenue tax, charge or levy against
Landlord.
ARTICLE 9
---------
INSURANCE
9.1 Public Liability and Property Insurance. Tenant shall at all times during
the term and any extension hereof, and at its own cost and expense, procure
and continue in force workers compensation insurance and bodily injury
liability and property damage liability insurance adequate to protect
Landlord against liability for injury to or death of any person in
connection with the construction of improvements on the demised premises or
with the use, operation or condition of the demised premises. The policy
shall name Landlord and its manager as an additional insured. Such
insurance at all times shall be in an amount of not less than, One Million
Dollars ($1,000,000.00) combined each occurrence and in the aggregate
insuring against any and all liability of the insured with respect to the
demised premises or arising out of the maintenance, use or occupancy
thereof. All such bodily injury liability insurance and property damage
liability insurance shall specifically insure the performance by Tenant of
the indemnity agreement as to liability for injury to or death of persons
and injury or damage to property as required under the provisions of
Article 13 of this Lease. Notwithstanding anything to the contrary
contained herein. Tenant shall cause its property damage and public
liability policy limits to be adjusted upward annually by a percentage
equal to the average percentage increase in the underlying requirements for
excess liability carriers with a Bests average of A-VIII or better.
9.2 Leasehold Improvements and Personal Property. Tenant shall at all times
during the term hereof maintain in effect policies of insurance covering
(a) its leasehold improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of this
Lease), trade fixtures, merchandise and other personal property from time
to time on or upon the demised premises. In the amount not less than Fifty
Thousand Dollars ($50,000.00) or their actual replacement cost (whichever
is greater), providing protection against any peril included within the
classification "Fire and Extended Coverage," together with insurance
against sprinkler damage, vandalism and malicious mischief and (b) all
Page 7 of 4l Revised on 7/1/03
plate glass to the demised premisis. The proceeds of such insurance, so
long as this Lease remains in effect, shall be used for the repair or
replacement of the property so insured. Upon termination of this Lease, the
proceeds under (a) above shall be paid to Tenant, and the proceeds under
(b) above shall be paid to Landlord.
9.3 Reimbursement of Insurance Premiums. Landlord shall at all times during the
term hereof maintain in effect a policy or policies of insurance covering
(a) the building of which the demised premises are a part in an amount not
less than Fifty Thousand Dollars ($50,000.00) or eighty per cent (80%) of
the insurable value, which ever is greater, of such building, providing
protection against any peril generally included within the classification
"Fire and Extended Coverage Insurance," and insuring against such other
risks as Landlord may designate, and (b) the rents payable hereunder. The
insurance Landlord procures may include coverage on buildings or stores
other than the demised premises. Tenant shall pay to Landlord its pro rata
share of the cost of such insurance which shall be derived by multiplying
said cost by a fraction, the numerator of which is the floor area (as
defined in this Lease) contained in the demised premises and the
denominator of which is the total floor area of the buildings covered by
said insurance. Tenant shall pay one-twelfth (1/12th) of the amount
estimated by Landlord to be Tenant's share of such costs with each monthly
installment of Minimum Monthly Rental due hereunder. Any insurance coverage
herein provided shall be for the benefit of Landlord and all proceeds
payable thereunder shall be paid to Landlord free and clear of any claims
thereto by Tenant.
9.4 Business Interruption Insurance. Tenant shall at all times during the term
hereof maintain insurance covering business interruption insuring that the
Minimum Monthly Rental will be paid to Landlord for a period up to one (1)
year if the demised premises are destroyed or rendered inaccessible by a
risk required to be insured by Tenant under this Lease.
9.5 Policy Form. All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies qualified to do business in
the State of Nevada and acceptable to Landlord (in its sole discretion).
Each policy shall name Landlord as an additional insured and, if requested
by Landlord, Landlord's first mortgagee or beneficiary, as their interests
may appear, and copies of all policies, or certificates evidencing the
existence and amounts of such insurance, shall be delivered to Landlord by
Tenant at least ten (10) days prior to Tenant's opening for business in the
demised premises. No such policy shall be cancelable except after thirty
(30) days written notice to Landlord and all such policies or certificates
thereof shall so state. Tenant, shall, at least thirty (30) days prior to
the expiration of any such policy, furnish Landlord with renewals or
"binders" thereof, or Landlord may order such insurance and charge the cost
thereof to Tenant which amount shall be payable by Tenant upon demand. All
such policies of insurance shall be written as primary policies, not
contributing with, and not in excess of, coverage Landlord may carry. Any
policy may be carried under so-called "blanket coverage" form of insurance
policies.
9.6 Waiver of Subrogation. Tenant hereby waives any and all rights of recovery
against the officers, employees, agents and representative of Landlord for
loss of or damage of Tenant or its property or the property of others under
its control, arising from any cause generally covered by fire and extended
coverage insurance. Tenant shall obtain and furnish evidence to Landlord of
the waiver by Tenant's insurance carriers of any right of subrogation
against Landlord.
9.7 Mutual Release. Landlord and Tenant, and all parties claiming under them,
mutually release and discharge each other from all claims and liabilities
arising from or caused by any casualty or hazard covered or required
hereunder to be covered, in whole or in part, by insurance on the Demised
Premises or in connection with property on or activities conducted on the
Demised Premises; and waive any right of subrogation which might otherwise
exist in or accrue to any person on account thereof, provided, that such
release shall not operate in any case where the effect is to invalidate or
increase the cost of such insurance coverage (provided, that in the case of
increased cost, the other party shall have the right within thirty (30)
days following written notice, to pay such increased cost, thereby keeping
such release and waiver in full force and effect).
ARTICLE 10
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UTILITIES SERVICES
Tenant shall pay for all water, gas, sewer, power and electric current and all
other utilities used by Tenant on the demised premises from and after the Lease
Commencement Date. If any such charges are not paid when due, Landlord may pay
the same, and any amount so paid by Landlord shall thereupon become due to
Landlord from Tenant as additional rent. Landlord shall have the option of
requiring Tenant to install its own gas and electric meter, at Tenant's expense.
In the event that any utilities are furnished by Landlord, the rates charged
Tenant shall not exceed those of the local public utility company as if its
services were furnished directly to Tenant, and shall not be less than its pro
rata share of any jointly metered service based upon the floor area of the
buildings serviced. In the case of water and sewer services which may not be
separately metered or sub-metered, the Landlord shall obtain from the County or
City in which the property is located, the method with which the governing
entity calculates the water and sewer fees which may be according to the
Tenant's use (Equivalent Residential Units "ERU") and the number and type of
fixtures in Tenant's premises. Landlord shall not be liable in damages or
otherwise for any
Page 8 of 4l Revised on 7/1/03
failure Interruption of any utility service being furnished the demised
premises, and no such failure or interruptions shall entitle Tenant to terminate
this Lease or so state payment of any portion of the rest due hereunder. In the
event Landlord furnishes any utilities to the demised premises and elects to
discontinue, or is tumble to continue. furnishing such utilities for any reason
other than the failure by Tenant to pay any utility charge or any rental payment
due hereunder, Landlord shall so inform Tenant in writing and Tenant shall, upon
receipt of such notice, obtain its own utilities for the demised promises.
ARTICLE 11
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COMMON AREA
11.1 Common Area. Landlord shall make available at all times during the term of
this Lease, on such portions of the Office Plaza as landlord shall from
time to time designate or relocate, such automobile parking and other
common area as Landlord shall loss time to time deem appropriate. Tenant
shall have the nor-exclusive right during the term of this Lease to use the
common area (except for those portions of the common area on which have
been constructed or placed permanent or temporary, kiosks, displays, carts
or stands) for itself is employees, agents, customers. invitees and
licensees, subject to the restrictions contained herein.
11.2 Common Area Defined. The term "common area" shall mean the portions of the
Office Plaza that have at the time in question been designated and improved
for confirm use by in for the benefit of more than one (1) tenant or
concessionaire of the Office Plaza. Common area may include but not be
limited to any of the following: The land and facilities utilized as
parking area,; access and perimeter reads: truck passageways (which may be
in whole or in part subsurface); service corridors and stairways providing
seems from other promises; landscaped arena: exterior walks' stairways;
interior corridors; elevators; stairs; arcades; balconies; directory
equipment; wash rooms; comfort rooms; drinking fountains; toilets; and
other public facilities; and bus stations and taxi stands. but excluding
any portion thereof when designated by Landlord for a non-common use,
provided any portion of the Office Plaza which is not included within the
common area shall be so included when so, designated and improved for
common use.
11.3 Control of Common Area. The common area shall be subject to the exclusive
control and management of Landlord or each other persons or nominees as,
Landlord may have delegated or assigned to exercise such management or
control, in whole or in part, in Landlord's place and need. In no event
shall Xxxxx have the right to sell r solicit in any manner in any of the
common areas. Landlord shall have the right to close, if necessary, all or
any portion of the common area to such extent as may in the opinion of
Landlord's counsel be legally necessary to prevent a dedication thereof or
the accrual of any rights of any person or of the public therein; to close
temporarily all or any portion of the common area to discourage
non-customer use; to use portions of the common area while engaged in
mating add coal improvements or repairs or alterations to the Office Plaza;
and to do and perform such other acts in, to. and with respect to, the
common area as Landlord shall determine (in its sole discretion) to be
appropriate for the Office Plaza. Landlord shall have the right to increase
the size of the common area including the expansion thereof to adjacent
property; to reduce the common area; to turn common areas into floor area
to be occupied by, tenants of the Office Plaza; to rearrange the parking
spaces and improvements on the common area; and to make such changes which
in Landlord's sole opinion are deemed to be desirable and for the best
interests of all persons using the common area. Tenant agrees that it and
its concessionaire, agents, employees. vendors, suppliers and other
independent mroeraceoa will use, such access roads and will operate trucks
and trailers in delivering merchandise to and from the demised premises
upon and over such access roads as are designated therefore by Landlord as
a means of ingress to and egress from the demised promises and Tenant shall
no responsible for any damage or overloading.
11.4 Rules and Regulations. Landlord shall have the right to establish, and from
time to time to change, alter and amend, end to enforce against Tenant and
the other users of the common area such rules ad regulations (including the
exclusion of employees' parking from the common area) as Landlord, in its
sole discretion, may deem necessary or advisable for the proper ad
efficient operation and maintenances of the common area. Such rules and
regulations may provide, without limitation, the hours during which the
common area shall be open for use.
11.5 Parking. It is understood that the employee of Tenant and the other tenants
of Landlord within the Office Plaza shall not be permitted to park their
automobiles in the automobile parking areas which may from time to time be
designated for patrons of the Office Plaza. Tenant shall furnished Landlord
with its and in employees' automobile license numbers within fifteen (15)
days after opening for business and Tenant shall thereafter notify Landlord
of any changes within five (5) days after such change occur. If Tenant or
its employees park their cars in the automobile parking areas designated
for patrons of the Office Plaza or in reserved designated stalls of others.
Landlord may charge Tenant Fifty Dollars ($50.00) per day for each partial
day per car parked in any areas other than these so designated. Tenant
hereby authorized Landlord to tow away from the Office Plaza at Tenants
expanse and only after notice is given to Tenant by Landlord, any
improperly parked car or cars belonging to Tenant or Tenants employees
and/or attach violation stickers a notices to such cars.
Page 9 of 41 Revised on 7/1/03
ARTICLE 12
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COMMON AREA MAINTENANCE COSTS
12.1 Common Area Expenses. During the term of this Lease Landlord shall keep or
cause the common area to be kept in a neat, clean and orderly condition,
properly lighted and landscaped, and shall repair any damage to the
facilities thereof, but all costs and expenses incurred by Landlord in
connection therewith shall be charged and prorated in the manner
hereinafter set forth. It is understood and agreed that the term "costs and
expenses incurred" shall mean all sums expended by Landlord for payment of
all work deemed necessary by Landlord (in its sole discretion) for the
operation, maintenance, replacement and repair of the common area (the
"Common Area Expenses"), including the following (the specific recitation
of which shall not be deemed to limit the definition of such coats and
expenses): resurfacing, re-striping, cleaning and sweeping the parking
area; painting; janitorial services; maintenance, repair and replacement
when necessary of roofs, sidewalks, curbs, bumpers, all Office Plaza signs,
planting, and landscaping, and lighting and other utilities; operation,
maintenance and repair of any common fire protection systems, automatic
sprinkler systems and storm drainage systems; personnel to implement such
services including the cost of security guards; police and fire protection
services; any assessments imposed by governmental agencies; cost of utility
services; depreciation on maintenance and operating machinery and
equipment, if owned, and rental paid for such machinery and equipment if
rented; public liability and property damage insurance on the common area;
worker's compensation insurance for personnel; and (i) administrative and
overhead costs equal to ten (10%) of the common area costs; and (ii) in the
event Landlord supervises, manages and maintains the common area, an amount
equal to five percent (5%) of the gross rentals received by Landlord from
tenants at the Office Plaza for each calendar year ("gross rentals"); or
(iii) In the event an independent contractor supervises, manages and
maintains the common area, an amount equal to five percent (5%) of the
gross rentals to the independent contractor.
12.2 Proration of Common Area Expense. Tenant shall pay to Landlord, as
additional rent, Tenant's Share of the Common Area Expenses in the
following manner;
(a) From and after the Lease Commencement Date, Tenant shall pay Landlord
on the first day of each calendar month of the term hereof and option
periods, extension periods and holding over periods, the Tenant's
Share of Common Area Expenses, as estimated by Landlord, which amount
shall be deemed to be additional rent. Tenant shall pay the additional
rent during any free rent period provided under this Lease. The
foregoing estimated monthly charge may be adjusted by Landlord at the
end of any month, on the basis of Landlord's experience and
anticipated costs.
(b) Within ninety (90) days following the end of each calendar year,
Landlord shall furnish Tenant with a statement covering the calendar
year just expired, certified as correct by Landlord, showing the total
of the costs and expenses incurred, and if requested by Tenant in
writing true and correct copies of said expenses, with respect to the
common area, the amount of Tenants Share of Common Area Expenses for
such calendar year, and the payments made by Tenant with respect to
such calendar year as set forth in subparagraph (a) above. If the
amount of Tenant's Share of the Common Area Expenses exceed Tenants
payments so made, Tenant shall pay to Landlord the deficiency within
ten (10) days after receipt of said statement. If the amount of said
payments exceed the amount of Tenant's Share of Common Area Expenses,
Tenant shall be entitled to offset the excess against payments next
thereafter to become due to Landlord as set forth in said subparagraph
(a). The term "Tenant's Share" shall mean the percentage proportion
that the square footage of the floor area of the demised premises
bears to the total square footage of the floor area of all stores or
store spaces in the Office Plaza, including the demised premises.
Certain expenses may be calculated as "Building" Common Area Cost
versus "Center" Common Area Costs, in which case, their percentage
that the floor area of the Premises is to the total will vary. All
floor area computations shall be determined by Landlord in its sole
and reasonable judgment. For any expenses which are within Landlord
control (which excludes taxes, utilities and insurance), Landlord
shall not pass through any expense increases on expenses within
Landlord control, that are more than five percent (5%) over prior
year's cost.
12.3 Required Alteration. If at any time Landlord is required by any rule,
regulation or law ("building regulations") to make any changes,
alterations, or improvements to the common areas or demised premises or any
Portion of the Office Plaza, including without limitation electrical,
mechanical or other systems or components thereof ("required alterations"),
but excluding required alterations attributable to Tenants specific use and
occupancy of the demised promises, which alterations shall be Tenants sole
responsibility, all costs relating to such required alterations fairly
characterized as "expenses" under generally accepted accounting principles
shall be fully included in Common Area Expenses for the year in which such
charges accrue or in the year Landlord pays such charges, as Landlord shall
elect, and if under generally accepted accounting principles, any portion
of all such costs must be allocated to capital improvements to be
depreciated or amortized over two (2) or more years, landlord shall be
entitled each year during the term hereof to include that portion of such
capital costs toward Common Area Expenses as Landlord's accountant
reasonably determines to be a fair estimate of the depreciation or
amortization which would be chargeable for such capital improvements during
such year, based upon a reasonable estimate of the useful life of the
required alteration.
Page 10 of 4l Revised on 7/1/03
ARTICLE 13
----------
INDEMNITY
Tenant and Landlord hereby indemnifies and holds the other party harmless from
and against (a) any and all claims arising from Tenant's or Landlord's
construction on or use of the demised premises for the conduct of its business
or from any activity, work or thing done, pertained or suffered by Tenant or
Landlord and their respective agents and employees in or about the demised
premises; (b) any and all claims arising from any breach or default in the
performance of any obligation on Tenant's or Landlord's part to be performed
under the terms of this Lease, or arising from any as or negligence of Tenant or
Landlord, or any of its respective agents, contactors or employees; and (c) all
costs, reasonable attorneys' fees, expenses and liabilities incurred by Landlord
or Team in defending any such claim or any action or proceeding brought thereon;
and in case any action or proceeding be brought against Landlord or Tenant by
reason of any such claim, Tenant, upon notice from Landlord or Landlord, upon
notice from Tenant shall defend the same at the appropriate party's expense by
counsel reasonably satisfactory to Landlord or Tenant. Tenant, as a material
part of the construction to Landlord, hereby assumes all risks of damage to
property or injury to persona, in, upon or about the demised premises from any
cause by Tenant and Tenant hereby waives all claims in respect thereof against
Landlord. Landlord assumes all risks of damage caused by Landlord or its
employers or agents which are covered by Landlord's insurance policies on the
Office Building.
ARTICLE 14
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EXEMPTION OF LANDLORD FROM LIABILITY
Except in the case of Landlord's gross negligence, Tenant hereby agrees that
Landlord shall not be liable for injury or damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its employees, invitees
or customers, or by any other person in or about the demised promises causal by
or resulting from fire, storm, electricity, gas, water or rain which may leak or
flow from or into any part of the demised premises. or from the breakage,
leakage. obstruction or outer defects of the pipes, sprinklers, wires,
appliance., plumbing, air conditioning or lighting fixtures whether said damage
or injury results from conditions arising upon the demised premises or from
other sources. Tenant further agrees that Landlord shall not be liable for any
damages arising from any act or negligence of any other tenant of the Office
Plaza.
ARTICLE 15
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QUIET POSSESSION
Landlord agrees that Tenant, upon paying the rent and perfuming the covenants
and conditions of this Lease, may quietly have, hold and enjoy the demised
premises during the term hereof.
ARTICLE 16
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ESTOPPEL CERTIFICATE
Within five (5) business days after written request by Landlord. Tenant shall
execute and deliver to Landlord a statement substantially in the form of Exhibit
E attached hereto. Any such statement may be conclusively relied upon by any
prospective purchase or encumbrances of the demised premises or of all or any
portion of the Office Plaza of which the demised promises are a part. Further,
such failure to deliver such statement (showing any exceptions to any of the
statements of fact required thereby) shall be a material breach of this Lease
and Landlord may, in addition to any other remedies it has at law or in equity,
terminate this Lease.
ARTICLE 17
----------
REPAIRS AND MAINTENANCE
17.1 Tenant 's Maintenance Obligations. Tenant shall, during the term of this
Lease and any option periods thereof; keep the demised premises, including
ail improvements constructed by Tenant therein, in good order, condition
and repair, including the interior surface of exterior walls; all windows,
doors, door frames, and door closures all plate glass, storefronts and
showcases; all carpeting and other floor covering; all electrical
equipment; all handling and air conditioning equipment; and all plumbing
and sprinkler systems, if any, installed therein; and shall as necessary,
or when required by governmental regulations make modifications or
replacements thereof. Landlord shall have no obligation to repair or
maintain the demised premises or improvements constructed therein except as
expressly provided to this Lease. Tenant hereby waives the right to make
repairs at Landlord's expenses under the provisions of any laws permitting
repairs by a tenant at the expense of Landlord. [text struck through]
17.2 Tenant's Failure to Maintain Demised Premises. If Tenant refuses or
neglects to make repairs to and/or maintain the demised premises, or my
part thereof; in a manner reasonably satisfactory to Landlord. Landlord
shall have the right, but shall not be obligated, to make such repairs or
port perform such maintenance
Page 11 of 4l Revised on 7/1/03
on behalf of and for the account of Tenant. In such event, Tenant shall pay
promptly upon demand therefor, as additional rent, the cost of such work plus an
overhead surcharge of fifteen percent (15%) of such cost.
17.3 Landlord's Maintenance Obligations. Landlord, as a Common Area Expense,
shall keep in good order, condition and repair the foundations, exterior
walls (excluding the interior of all walls and the exterior or interior of
any windows, doors, plate glass and display windows) and roof (excluding
interior ceiling) of the demised promises, except for any damage thereto
caused by any act, negligent or omission of Tenant, except for reasonable
wear and tear, and except for any structural alterations or improvements
required by any governmental agency by reason of Tenants use and occupancy
of the demised premises.
17.4 Right of Entry. Tenant agrees to permit Landlord or Landlord's lender and
their authorized representatives to enter the demised premises at all times
during usual business hours for the purpose of inspecting the same. Tenant
further covenants and agrees that Landlord may go upon the demised promises
and make any necessary repairs to the demised premises and perform any work
therein that (a) may be necessary to comply with any law, ordinance, rule
or regulation of any public authority, (b) Landlord may deem necessary to
prevent waste or deterioration in connection with the demised premises; or
(c) Landlord may deem necessary to perform remodeling or other construction
work incidental to any portion of the Office Plaza, including without
limitation the premises of another tenant, adjacent to, above, or below the
demised premises. Nothing herein contained shall imply any duty on the part
of Landlord to do any such work which under any provisions of this Lease
Tenant may be required to do, nor shall it constitute a waiver of Tenants
default in failing to do the same. No exercise by Landlord of any rights
herein reserved shall entitle Tenant to any damage for any injury or
inconvenience occasioned thereby nor to any abatement of rent. In the event
Landlord makes or causes any such repairs to be made or performed, as
provided for herein, Tenant shall pay the cost thereof to Landlord,
forthwith, as additional rent upon receipt of a xxxx therefore. In the
event of emergency repairs, Tenant hereby grants to Landlord the right to
enter upon the demised premises at any time.
17.5 Condition of Demised Premises. Tenant agrees upon the expiration or earlier
termination of this Lease to surrender the demised premises to Landlord in
good order, condition and repair, ordinary wear and tear excepted.
ARTICLE 18
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ALTERATIONS
18.1 Permitted Alterations. After initial improvements are completed by
Landlord, Tenant shall not make any alterations or additions to the demised
premises nor make any contract therefore without first procuring Landlord's
written consent (which may he withheld by Landlord in its sole discretion),
except for non-structural, interior alterations, improvements or
adjustments costing less than five Thousand Dollars ($5,000.00) in any
calendar year. All alterations, additions and improvements made by Tenant
to or upon the demised premises including floor coverings but excluding
light fixtures, signs, cases, counters or other removable trade fixtures.
shall at once when made at installed be deemed to have become the property
of Landlord; provided, however if prior to termination of this Lease, or
within fifteen (15) days thereafter, Landlord so directs by written notice
to Tenant, Tenant shall promptly remove the additions. improvements,
fixtures, trade fixtures and installations which were placed in or on the
demised promises by Tenant and which are designated in said notice and
shall repair any damage occasioned by mob removal. If Tenant shall fail to
remove any such addition, improvement, fixture or trade fixture as directed
by Landlord, Landlord may effect such removal and repair at Tenant's
expense.
18.2 Standards of Construction. All work with respect to alternations,
additions, and changes shall not diminish the markets value of the demised
premises and shall be done in a good and workmanlike manner and diligently
pursue to completion to the end that the improvements on the demised
premises shall at all times be a complete unit except during the period of
work. Any such changes, alterations and improvements shall be performed and
done strictly in accordance with the laws and ordinances relating thereto,
and with the requirements of all carriers of insurance on the demised
premises and the Board of Underwriters, Fire Rating Bureau, or similar
organization. In performing the work of any such alterations, additions or
charges, Tenant shall have the work performed in such a manner so as not to
obstruct the access to the Office Plaza of any other tenant in the Office,
Plaza, nor interfere with the quiet enjoyment of the other tenants of the
Office Plaza.
18.3 Notification of Landlord. At least ten (10) days prior to commencing any
such work or construction in or about the demised promises, Tenant shall
notify Landlord in writing of the expected date of commencement thereof
Landlord shall have the right at any time and from time to time to post and
maintain on the demised premises such notices as Landlord deems necessary
to protect the demised premises and Landlord or vendors.
18.4 Performance and Completion Bond. After initial construction, before the
commencement of any alterations or additions to the demised premises.
Tenant, at its sole cost, shall furnish to Landlord a performance and
completion bond issued by an insurance company licensed to do business in
Nevada, in a sum equal to one and one-half times the cost of the
alterations (as determined by the construction contract
Page 12 of 4l Revised on 7/1/03
between Tenant and its contractor) guaranteeing, the completion of the
alterations or additions free and clear of all lines end other charger, in
accordance with the plans and specifications approved by Landlord, City, County,
and any other governmental agencies that may be dictated by the plans or the
lease agreement.
ARTICLE 19
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MECHANICS' LIENS
19.1 Mechanics' Liens. Tenant hereby agrees that it will pay or cause to be paid
all costs for work done by it or caused to be done by it on the demised
promises, and it will keep the demised premises free and clear of all
mechanics' liens on account of work done by Tenant or persons claiming
under it. Tenant hereby agrees to indemnify and save Landlord fee and
harmless against liability, loss. damage, costs, attorneys' fees, and all
other expenses on account of claims of lien of laborers or materialmen or
others for work performed or materials or supplies furnished for Tenant or
persons claiming under it.
19.2 Contest of Lien. If Tenant shall desire to contest any claim of lien, it
shell furnish Landlord adequate security of the value or in the amount of
the claim, plus estimated coats and interest or a bond or a responsible
corporate surety in such amount as is necessary to release the lien. If a
final judgment establishing the validity or existence of a lien for any
amount is entered, Tenant shall pay and satisfy the same at once.
19.3 Tenant's Default. If Tenant shall be in default in paying any charge for
which a mechanics' lien claim and suit to foreclose the lien have been
filed, and shall not have given Landlord security to protect the demised
premises and Landlord against such claim of lien, than Landlord may, but
shall not be obligated to, pay the said claim and any costs, and the amount
so paid, together with reasonable attorneys' fees incurred in connection
therewith, shall be immediately due and owing from Tenant to Landlord, and
Tenant agrees to and shall pay the same with interest at the maximum lawful
rate from the dates of Landlord's payments.
19.4 Notice. Should any claims of lien be filed against the demised premises or
any action affecting the title to such property be commenced, the party
receiving notice of such lien or action shall forthwith give the other
party written notice thereof.
19.5 Right of Entry. Landlord or its representatives shall have the right to go
upon and inspect the demised premise, including the improvements
constructed thereon, at all reasonable times.
ARTICLE 20
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DAMAGE AND DESTRUCTION
20.1 Restoration. In the event of the partial or total damage or destruction of
the building of which the demised premises are a part during the term
hereof from any cause, except if due to the negligent acts or emissions of
Tenant its agents or employees, or to the failure on the part of Tenant to
perform or observe any of Tenants covenants or conditions contained herein,
Landlord shall, to the extent of the proceed available to Landlord from the
insurance referred to in Station 9.3 hereof, forthwith repair and
reconstruct said building to substantially the same condition which said
building was in immediately prior to such damage or destruction, provided
such repairs a reconstruction can be made under then existing laws and
regulations. In the event of such reconstruction, Tenant, at its sole cost
and expense, shall be responsible for the repair and restoration of all
items set forth in "Description of Tenant's Work" in Exhibit B and all
improvements within Premises as those existing immediately prior to the
casualty, and the replacement of its stock-in-trade, trade fixture,
furniture, furnishings and equipment and Tenant shall commence such repair
and restoration and the installation of fixtures, equipment and merchandise
promptly upon delivery to it of possession of the demised premises and
shall diligently pursue such work and installation to completion. With
respect to any damage a destruction which Landlord is obligated to repair
or any elect to repair order the terms of this Article, Tenant hereby
waives the provisions of any law authorizing the termination of a lease
upon the complete or partial destruction of the demised premises.
Notwithstanding anything above m the contrary, in the event the demised
promises ere partially or totally damaged or destroyed by a cause or
casualty other than those covered by said insurance, or by any cause at any
time during the last two (2) years of the term hereof or in the event the
demised premises are, or the building in which the demised promises are
situated is, damaged or destroyed by any cause or casualty to the extent of
not less than thirty-three and one-third percent (33-1/3%) of the
replacement cost thereof at the time of such damage or destruction, or if
in the sole opinion of Landlord the restoration of the demised premises
cannot be completed within six (6) months from the occurrence of the damage
or destruction, or if in the sole opinion of Landlord repairs cannot be
adequately made, then Landlord may elect to terminate this Lease by giving
written notice to Tenant of such termination within ninety (90) days after
the occurrence of such damage or destruction.
20.2 Termination. Unless this Lease is terminated as provided above, such
destruction shall in no way annul or void this Lease and Tenant shall
continue the operation of its business during any such period. Provided,
however, that at Landlord's option either (a) the Minimum Monthly Rental
shall be reasonably reduced by
Page 13 of 4l Revised on 7/1/03
Landlord in proportion to the extant that Tenant is deprived of the use of the
demised premises, or (b) the Minimum Monthly Rental shall not be reduced but
Tenant shall be entitled to have the proceeds of the business interruption
insurance required under Section 9.4 hereof applied to such obligation.
ARTICLE 21
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EMINENT DOMAIN
21.1 Definitions of Taking. The term "mini taking" means the taking of so much
of the demised premises by right of eminent domain or other authority of
law, including a voluntary transfer under the threat of the exercise
thereat that the remainder of the demised premises is not suitable to
conduct the basins which Tenant intends to conduct therein. The term
"partial taking" means the taking of a portion of the demised premises
which does not constitute a total taking as above defined.
21.2 Total Taking. If during the term hereof there shall be a total taking by
public authority under the power of eminent domain, then this Lease, and
the leasehold estate of Tenant in and to the demised premise, shall cease
and terminate as of the date the condemning authority takes actual physical
possession of the demised premises.
21.3 Partial Taking. If during the term hereof them shall be a partial taking of
Tenants demised premises, this Lease, as to the portion of the demised
premises so taken, shall terminate m the dam on which the condemning
authority takes anal physical possession of such portion, but this Lease
shall continue in full force and efface as to the remainder of the demised
premises. The Minimum Monthly Rental payable by Tenant for the balance of
the tent shall be abated in the ratio that the floor area of the demised
premises taken boars to the total floor ones of the demised premises
immediately prior m such taking, and Landlord shall make all necessary
exterior and structural repairs or alteration in order to make the
remaining portion of the demised premises a complete architectural unit.
21.4 Award. All compensation and damages awarded far the taking of Tenants
demised premises or any portion thereof shall belong to and be the sole
property of Landlord, and Tenant shall not have any claim, or be entitled
to say award for diminution in value of its leasehold internal hereunder or
for the value of any unexpired term of this Lease; provided, however, that
Tenant shall be entitled to make its own claim for and receive any award
that may he made for Tenant's improvements, or an account of any cost or
loss Tenant may sustain in the removal of Tenant's trade fixtures,
equipment, and furnishings.
21.5 Proration of Rent. If this Lease is terminated pursuant to the provisions
of this Article, then all rentals and other charges payable by Tenant to
Landlord hereunder shall be paid up to the date on which possession shall
be taken by the condemning authority and any rentals and other charges
theretofore paid by Tenant which are applicable to any period subsequent to
the date possession is taken, shall be repaid to Tenant by Landlord, and
the parties shall thereupon be released from all further liability
hereunder.
21.6 Waiver of Rights of Termination. Tenser hereby waives my statutory rights
of termination which may arise by reason of any partial taking of the
demised promises under the power of eminent domain.
21.7 Subordination. The foregoing provisions of Article 21 are and shall be
subordinate to the lien of any trust deed of trust of any bank insurance
company or other lending institution now of record or recorded after the
date of this Lease affecting the demised premises. Such subordination is
effective without any further act of Tenant. Tenant shall, from time to
time on request from Landlord, execute and deliver any documents or
instruments that may be required by the lender to effectuate any
subordination.
ARTICLE 22
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DEFAULTS BY TENANT AND LANDLORD'S REMEDIES
22.1 Events of Default. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by
Tenant:
(a) Any failure by Tenant to pay the rental or make any otherpayment
required to be made by Tenant hereunder when due.
(b) The abandonment of the demised premises by Tenant, or the vacation
(defined to be ten [10] or more days of continual absence from the
demised premises) of the demised premises by Tenant
(c) A failure by Tenant to observe and perform any other provision of this
Lease to be observed or performed by Tenant, where such failure
continues for fifteen (15) days after written notice thereof by
Landlord to Tenant; provided however, that if the nature of such
default is such that the same cannot reasonably be cured within such
fifteen (15) day period, Tenant shall not be deemed to be in default
if Tenant shall within such period commence such case and thereafter
diligently prosecutes the same to completion. Said written notice
shall he In lieu of, and not in addition to, any notice required under
the laws of the Sate of Nevada, or any similar, superseding statute.
Page 14 of 4l Revised on 7/1/03
(d) The making by Tenant or by any guarantor of Tenant's obligations under
this Lease of any general assignment for the benefit of creditors; the
insolvency of Tenant or of any guarantor of Tenant's obligations under
this Lease or the inability of Tenant or any such guarantor to make
payment on it obligations generally as they become due; the filing by
or against Tenant or any such guarantor of a petition to have Tenant
or such guarantor adjudged a bankrupt or of a petition far
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant or such
guarantor, the same is dismissed within sixty [60] days) the
appointment of a trustee or receiver to take possession of
substantially all of Tenants assets located at the demised premises,
or of Tenant's interest in this Law, where possession is not restored
to Tenant within thirty (30) days; or the attachment, execution or
other judicial seizure of substantially all of Tenants assets located
at the demised premises or of Tenants interest in this Lease, where
such seizure is not discharged within thirty (30) days.
22.2 Landlord's Right to Terminate Lease. In the event of any such default by
Tenant, then in addition to any other remedies available to Landlord a law
or in equity, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect so to
terminate this Lease then 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 Tenant proven 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 have been reasonably
avoided; plus
(d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lien
of the foregoing as may be permitted from time to time by applicable
Nevada law. The term "rent" as used herein shall be deemed to include
Minimum Monthly Rental and all other sums required to be paid by
Tenant pursuant to the terms of this Lease. All such sums, other than
the Minimum Monthly Rental, shall be computed on the basis of the
avenge monthly amount thereof accruing during the immediately
preceding fifteen (15) month period prior to default except that if it
becomes necessary to compute such round before such a fifteen (15)
month period has occurred, then on the basis of the avenge monthly
amount seeming during such shorter period. As used In subparagraphs
(a) and (b) above. the "worth at the time of award" is computed by
allowing interest at eighteen percent (18%) per annum. or such lesser
amount as may then be the maximum lawful rate. As used in subparagraph
(o) 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%).
22.3 Landlord's Right to Reenter Demised Premises. In the event of any such
default by Tenant, Landlord shall also have the right with or without
terminating this Lease, to reenter the demised premises and remove persons
and property therefrom by summary proceedings or otherwise; such property
may be removed and stored in a public warehouse or elsewhere at the cost of
and for the account of Tenant
22.4 Right to Recover Rents or Rolet In the event of the vacation (a defined
herein) or abandonment of the demised premises by Tenant, or in the event
Landlord final elect to reenter as provided in Section 22.3 above or shall
take possession of the demised premises pursuant to legal proceedings or
pursuant to any notice provided by law, and if Landlord dose not elect to
terminate this Least as provided in Section 22.3 above, then Landlord may
from time to time without terminating this Lease, either recover all rental
as it becomes due or related the demised premises or any part thereof for
such term or terms and at such rental or rentals and upon other terms and
conditions a Landlord in its sole discretion may deem advisable, with the
right to make alterations and repairs to the demised premises.
22.5 Application for Rent. In the event that Landlord shall elect so to rolet,
then rentals received by Landlord from such relating shall be applied
first, to the payment of any indebtedness, other than rent due hereunder,
owed by Tenant to Landlord; second to the payment of any cost of such
reletting; third, to the payment of the cost of any alterations and repairs
to the demised premises; fourth, to the payment of rent due and unpaid
hereunder; and the residue if any, shall be held by landlord and applied in
payment of future rent as the same may become due and payable hereunder.
Should that portion of such rental received from such reletting during any
month, which is applied to the payment of rent hereunder, be less than the
rent payable during that month by Tenant hereunder, then Tenant shall pay
such deficiency to Landlord. Such
Page 15 of 4l Revised on 7/1/03
deficiency shall be calculated and paid monthly. Tenant shall also pay to
Landlord, as soon as ascertained, any costs and expenses incurred by
Landlord in such reletting or in making any such alteration, and repairs
not covered by the rentals received from such reletting.
22.6 No Termination. No reentry or taking possession of the demised premises by
Landlord pursuant to this Article shall be constructed as an election to
terminate this Lease unless a written notice of such intention be given by
Landlord to Tenant or unless the termination thereof be denied by a court
of competent jurisdiction. Landlord may at anytime after such reletting
elect to terminate this Lease for any such default by Tenant
22.7 Disposition of Fixtures. In the event of default under ibis Lease, Landlord
shall have the option (a) to take exclusive possession of Tenant's trade
fixtures, furniture, equipment, improvements, additions and alterations and
use the same rent or charge free until the default is cured, (b) to require
Tenant to remove same, at its sole cost and expense, or (c) in the event
this Lease is terminated by reason of such default, to take full possession
of same to be disposed of or to be put to any purpose Landlord desires.
Tenant agrees to keep all of Its trade fixtures, furniture and equipment
free of liens and shall not use the same as security in any loan
arrangement
ARTICLE 23,
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DEFAULTS BY LANDLORD
23.1 Tenant's Remedies. In the event Landlord shall neglect or fail to perform
or observe any of the covenants, provisions, or conditions contained in
this Lease on its part to be performed or observed within thirty (30) days
after written notice of default (or if more then thirty [30] days shall be
required because of the nature of the default, if Landlord shall fail to
proceed diligently to cure such default after written notion thereof), then
in that event Landlord shall be liable to Tenant for any and all damages
sustained by Tenant as a result of Landlord's breach; provided, however. it
is expressly understood and agreed that any money judgment resulting from
any default or other claim arising under this Lease shall be satisfied only
out of the net rents, issues, profits and other income (called "net income"
for purposes of this Article only) actually received from the operation of
the Office Plaza and no other real, personal or mixed property of Landlord
(the term "Landlord" for purposes of this Article only shall mean any and
all partners, both general and/or limited, if any, which comprise
Landlord), wherever situated, shall be subject to levy an any such judgment
obtained against Landlord, and if such net income is insufficient for the
payment of such judgment, Tenant will not institute any farther action,
suit, claim or demand, in law or in equity, against Landlord for or on the
account of such deficiency. Notwithstanding any provision of this Lease to
the contrary, Tenant shall have no right to terminate this Lease in an
event of default by Landlord hereunder.
23.2 Right to Cure. If the demised premises or any part thereof are at any time
subject to a first mortgage or a first deed of trust (hereinafter called
"Mortgagee" for purposes of this Article only) and Tenant is given written
notice thereof including the post office address of such Mortgagee, then
Tenant shall give written notice to such Mortgagee. specifying the default
In reasonable detail, and affording such Mortgagee a reasonable opportunity
to make performance for and on behalf of Landlord. If and when the said
Mortgagee has made performance on behalf of landlord. such default shall be
deemed cured.
ARTICLE 24
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LANDLORD'S RIGHTS TO EXHIBIT DEMISED PREMISES
Landlord and the authorized representative of Landlord may enter the demised
premises at all reasonable times for the purpose of exhibiting the same to
prospective purchasers and, during the final six (6) months of the term of this
Lease or any extension(s) therof; may exhibit the demised premises for hire and
may display on the property the usual "For Lease" signs, and such signs shall
remain unmolested upon the demised premises
ARTICLE 25
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SUBORDINATION, ATTORNMENT
25.1 Subordination- Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust. or other lien presently existing hereafter arising
upon the demised premises or the building of which the demised premises are
a part, and to any renewals, refinancing, and extension thereof upon
request of Landlord or its Lender, Tenant shall in writing subordinate its
rights hereunder to any mortgage or deed of trust or other lien presently
existing or hereafter arising upon the devised premises (or the building of
which the demised premises are a part), and to all advances made or
hereafter to be made upon the security thereof; or the interest of any
lease in which Landlord is lessee. Any such mortgage deed of trust trustee
or beneficiary or lessor of Landlord may at its option subordinate its
mortgage or lease to this Lease and Tenant agrees to execute any document
accomplishing some.
25.2 Attornment. In the event any proceedings are brought for the foreclosure of
such lien, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by the Landlord covering the
Page 16 of 4l Revised on 7/1/03
demised premises, or should the Lease in which Landlord is lessee be
terminated, Tenant shall attorn to the purchaser upon any such foreclosure
or sale or termination and recognize such purchaser or lessor as the
landlord under this Lease.
25.3 Lease Continues. The provisions of thin Article to the contrary
notwithstanding, and so long as Tenant is not in default hereunder, this
Lease shall remain in full force and effect for the full term hereof.
ARTICLE 20
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ASSIGNMENT, SUBLETTING AND ENCUMBRANCE
26.1 Consent of Landlord. Tenant shall not, directly or indirectly, voluntarily
or by operation of law assign, license, concede, franchise, transfer,
mortgage, hypothecate, or otherwise encumber all or any part of Tenants
interest in this Lease or in the demised premises, and shall not sublet,
franchise, change ownership licensee or concede all or any pant of the
demised premises (herein collectively referred to in this Article as
"Assignment") without the prior written consent of Landlord in each
instance, which consent may be withheld by Landlord in the sole discretion,
and any attempted Assignment without such consent shall be wholly void and
shall confer no rights upon any third parties. For purposes of this Article
26, the term "Assignee" shall mean any assignee, licenses, concessionaire,
franchisee. transferee, mortgagee, or sublessee.
26.2 Tenant's Application. In the event Tenant desires at any time to assign
this Lease or sublet the demised premises, or any portion thereof, Tenant
shall give written notice to Landlord of its intention, requesting
Landlord's consent thereto. Such written notice shall be submitted to
Landlord no more than ninety (90) days and no leas than sixty (60) days
prior to the effective date of such proposed assignment, and shall contain
the following information: (a) a notice of intention to assign the Lease or
sublet the demised premises. requesting Landlord's consent thereto; (b) the
proposed effective date of the proposed assignment (c) the name of the
proposed Assignee; (d) the nature of the business to he carried out upon
the demised premises by the proposed Assignee; (e) the terms and provisions
of the proposed assignment (f) a copy of the proposed assignment or, if the
name is not available, the letter of commitment or letter of intent; (g) a
current, audited financial statement of the proposed Assignee; and (h) such
other information Landlord may request. Landlord may, at any time within
thirty (30) days after its receipt of such notice of a proposed assignment
approve of disapprove of such proposed Assignment in writing to Tenant, or
elect to terminate this Lease as provided in Section 26.9 below. If
Landlord consents to the proposed assignment in writing, so long as Tenant
shall not be in breach or default of any of its obligations under this
Lease, Tenant may enter into the assignment in accordance with the terms
and conditions contained in Tenant's notice. If Landlord fails to exercise
its right to consent to or disapprove of the proposed assignment within
such thirty (30) day period, landlord shall be deemed to have disapproved
such proposed assignment.
26.3 Increased Rental Upon Assignment; Excess Consideration. If, in the event of
any approved Assignment by Landlord of all or say portion of the demised
premises, the Minimum Monthly Renal specified in Article I, or the portion
thereof related to that portion of the demised premises subject to the
Assignment, shall be increased (but never decreased) effective as of the
data of such Assignment, to the total rent payable by the Assignee so
Tenant.
26.4 Fees. In the event Tenant shall request the consent of Landlord for an
Assignment as required by the provisions of this Article, Tenant shall pay
to Landlord the sum of five Hundred Dollars ($500.00) as a non-refundable
fee for the processing and reviewing of such application by Landlord. In
addition to said fees Tenant shall pay to Landlord all reasonable
attorneys' fees incurred by Landlord in connection with such processing and
review.
26.5 No Release of Tenant. No consent by Landlord to any Assignment by Tenant
shall relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether occurring before or after such consent or Assignment. The
consent by Landlord to any Assignment shall not relieve Tenant from the
obligation to obtain Landlord's express written consent to any other
Assignment. The acceptance of rent by Landlord from any person or entity
other than Tenant shall not be deemed to be a waiver by Landlord of any
provision of this Lease or a consent to any Assignment, or a release of
Tenant from any obligation under this Lease. Consent to one (I) Assignment
shall not be deemed to constitute consent to any subsequent Assignment
Tenant hereby specifically waives and releases any contract tort or other
claims or causes of action against Landlord arising out of Landlord's
failure to consent to any Assignment.
26.6 Form of Assignment. Each assignment to which there has been the consent of
Landlord shall be by an instrument in writing in form satisfactory to
Landlord and shall be executed by the transferor, assignor, sublessor,
licensor. concessionaire, hypothecator or mortgagor, and the assignee. One
(1) fully executed copy of such written instrument shall be delivered to
Landlord. Failure to first obtain in writing Landlord's consent or failure
to comply with the provisions of this Article shall operate to prevent any
such Assignment from becoming effective.
26.7 Assumption of Obligations. Each Assignee, other than Landlord, shall assume
all of the obligations of Tenant under this Lease, and shall be and shall
remain liable, both jointly and severally with Tenant' for the
Page 17 of 4l Revised on 7/1/03
payment of all rent, and for the due performance of all of the terms,
covenants, conditions and agreements herein contained on Tenant's part to
be performed for the remainder of the term of this Lease.
26.8 Assignment of Interest. If Tenant hereunder is either a partnership,
limited liability company, unincorporated association or a corporation
which, under applicable laws, is not deemed a public corporation, the
transfer, assignment or hypothecation of any stock or interest in such
corporation, association, limited liability company, or partnership, in the
aggregate in excess of twenty-five percent (25%) shall be deemed an
Assignment within the meaning and provisions of this Article 26.
26.9 Option to Terminate. Landlord may elect, by written notice to Tenant that a
new lease shall be executed by Landlord and Assignee given within thirty
(30) days after receipt of Tenant's notice of a proposed Assignment, to
terminate this Lease. or in the case of a proposed Assignment of a portion
of the demised premises, to terminate this Lease with respect to such
portion. effective as of a date not less than thirty (30) days following
Landlord's notice of such election. Upon such termination, Tenant shall be
relieved from any further liability under thus Lease (regarding the portion
of the demised premises which are no longer subject to this Lease)
according after the date of such termination.
ARTICLE 27
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NOTICES
Whenever under this Lease a provision is made for any demand, notice or
declaration of any kind or where it is deemed desirable or necessary by either
party to give or serve any such notice, demand or declaration to the other, it
shall be in writing and either saved personally or sent by registered mail or
certified mail, return receipt requested, with postage prepaid, addressed to
Tenant or Landlord, as the case may be, at the address specified as "Address for
Notices" for each in Article 1 of this Lease. Either party may by like notice at
any time and from time to time designate a different address to which notices
shall be sent. Notice shall be effective when personally delivered as above
specified. Notice deposited in the mail in the manner hereinabove described
shall be effective from and after the expiration of four (4) calendar days after
it is so deposited.
ARTICLE 28
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SALE OF DEMISED PREMISES BY LANDLORD
Notwithstanding anything contained herein to the contrary, Landlord may assign,
in whole or in part, Landlord's interest in this Lease, and may sell all or part
of the Office Plaza. In the event of any sale or exchange of the demised
premises by Landlord and/or an assignment by Landlord of this Lease, Landlord
shall be and is hereby entirely freed and relieved of all liability under any
and all of its covenants and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission relating to the demised premises
or to this Lease occurring after the consummation of such sale or exchange
and/or assignment.
ARTICLE 29
----------
SECURITY DEPOSIT
Upon execution of this Lease, Tenant will deposit with Landlord the sum
specified as "Security Deposit" in Article 1 hereof as security for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
Landlord may commingle the Security Deposit with Landlord's other funds. Said
deposit shall be held by Landlord without obligation or liability for payment of
income from or interest on said deposit. If Tenant defaults with respect to any
provisions of this Lease, including but not limited to the provisions relating
to the payment of any rent or other charges, Landlord may use, apply or retain
all or any part of said deposit for the payment of any rent or other charge in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss or damage which Landlord may .suffer by reason of
Tenant's default. If any portion of said deposit is so used or applied, Tenant
shall, within ten (10) days after written demand therefore, deposit cash with
Landlord in an amount sufficient to restore said deposit to the full amount
hereinabove stated, and Tenant's dilute to do so shall be a material breach of
this Lease. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, said deposit or so much thereof as has not
theretofore been applied by Landlord, shall be returned to Tenant (or, at
landlord's option, to the last assignee of Tenant's interest hereunder) at the
expiration of the term hereof. The making by Tenant of such deposit, or the
application thereof by Landlord in the manner hereinabove provided, shall not
constitute nor be construed as a limitation upon the exercise by Landlord of any
other rights or remedies provided to Landlord under the terms of this Lease in
the event of Tenant's default. In the event Landlord sells the Office Plaza,
then Landlord may assign said deposit t the purchaser of Landlord's interest in
the demised premises without liability to Tenant and upon such assignment
Landlord shall be discharged from further liability with respect to such deposit
ARTICLE 30
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TITLE OF LANDLORD
Page 18 of 4l Revised on 7/1/03
Landlord covenants that as of the date hereof there are no liens upon its estate
other than (a) the effect of covenants, conditions, restrictions, easements,
mortgages or deeds of trust ground leases, rights of way, and any other matters
or documents of record (hereinafter referred to as the "Agreements"); (b) the
effect of any zoning laws of the City, County and State where the Office Plaza
is situated; and (c) general and special taxes not delinquent. Tenant agrees:
(i) that as to its leasehold estate it, and all persons in possession or holding
under it, will conform to and will not violate the terms of the aforementioned
Agreement or said matters of record; and (ii) that this Lease is and shall be
subordinate to the Agreement and any amendments or modifications thereto, and
Tenant further agrees, at the option of Landlord, to execute and return to
Landlord within ten (10) days after written demand therefor by landlord, an
agreement in the form provided by Landlord with said written notice
subordinating this Lease to the Agreements.
ARTICLE 31
----------
NET LEASE
This Lease shall be a "Net Lease and Tenant recognizes and acknowledges,
notwithstanding terms or provisions to the contrary provided for herein and
without limiting the generality of the other terms or provisions of this Lease,
that it is the intent of the parties hereto that any and all rentals in this
Lease provided to be paid by Tenant to Landlord, shall be net to Landlord, and
any and all expenses incurred in connection with the demised premises and the
Office Plaza, or in connection with the operations thereon, including but not
limited to any administrative expenses, management services, outside
professional services, all taxes, assessments, general or special license fees.
insurance premiums, public utility bills and costs of repair, maintenance and
operation of the demised premises and the Office, Plaza and all buildings,
structures, roofs, permanent fixtures and other improvements comprised therein,
together with the appurtenances thereto, shall be paid by Tenant in addition to
the rental provided for herein.
ARTICLE 32
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RELOCATION OF DEMISED PREMISES
Intentionally deleted.
ARTICLE 33
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HAZARDOUS AND TOXIC MATERIALS
33.1 Hazardous Materials. For purposes of this Lease, "Hazardous Materials"
means any explosives, radioactive materials, hazardous wastes, or hazardous
substances, including without limitation substances defined as "hazardous
substance." in the Comprehensive Environmental Responses, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ## 9601.9657; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. ## 1801-1812; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ## 6901-6987; or any other
federal, state, or local statute, law, ordinance, code, rule, regulation,
order, or decree regulating, relating to. or imposing liability or
standards of conduct concerning hazardous materials, waste, or substances
now or at any time hereafter in effect (collectively, "Hazardous Materials
laws").
33.2 Notification. Tenant will not cause or permit the storage, use, generation,
or disposition of any Hazardous Materials in, on, or about the demised
premise, or the Office Plaza, by Tenant, in agents. employees, or
contractors. Tenant will not permit the demised premises or the Office
Plaza to be contaminated by any Hazardous Materials in violation of any
Hazardous Materials Laws. Tenant will immediately advise Landlord in
writing of (i) any and all enforcement cleanup, remedial, removal, or other
governmental or regulatory actions instituted, completed, a threatened
pursuant to any Hazardous Materials Laws relating to any Hazardous
Materials affecting the demised premises: and (ii) all claims made or
threatened by any third party against Tenant Landlord, or the demised
premises relating to the damage, contribution, cost recovery. compensation,
loss, or injury resulting form any Hazardous Materials in, on, or about the
demised premises.
33.3 Indemnification. Tenant will be solely responsible for and will defend,
indemnify and hold Landlord, its agents, and employees including attorneys'
fees and coats, arising out of or in connection with Tenant's breach of its
obligations in this Article 33. Tenant will be solely responsible for and
will defend, indemnify, and hold Landlord, its agents, and employees
harmless from and against any and all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or in connection with
the removal, cleanup, and restoration work and materials necessary to
return the demised premises to the condition existing prior to the
introduction of Hazardous Materials by Tenant, its agents. employees, a
contractors. Tenant's obligations under this Article 33 will survive the
expiration or other termination of this Lease.
ARTICLE 34
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MISCELLANEOUS
34.1 Negation of Partnership. Nothing herein contained, either in 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.
Page 19 of 4l Revised on 7/1/03
34.2 Applicable Law. The laws of the State of Nevada shall govern the
validity, performance and enforcement of this Lease. 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, Nevada.
34.3 Gender. The word "Tenant" shall be deemed and taken to mean each and
every person or party mentioned as a tenant herein, whether the same
shall be composed of one (1) or more individuals (a) or entity(ies); and
if Tenant shall be comprised of more than one (I) individual or entity,
any notice required or permitted by the terms of this Lease may be given
by or to any one (1) thereof and shall have the same force and effect as
if given by or to all thereof. The use of the neuter singular pronoun to
refer to Tenant shall be deemed a proper reference even though Tenant may
be an individual, a partnership, a corporation or a group of two (2) or
more individuals, partnerships or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural
sense where there is more than one (1) tenant and to either corporations,
associations, or individuals, males or females, shall in all instances be
assumed as though in each case fully expressed.
34.4 Successors. The terms and agreements as contained in this Lease shall
apply to. run in favor of and shall be binding upon and inure to the
benefit of the parties hereto, and their respective heirs, executors,
administrators, personal representatives and assigns and
successors-in-interest.
34.5 Entire Agreement. It is understood that there are no oral agreements or
representations between the parties hereto affecting this Lease, and this
Lease supersedes representations and cancels any and all previous
negotiations, arrangements, brochures, agreements or representations and
understandings, if any, between the parties hereto or displayed by
Landlord to Tenant with respect to the subject matter thereof, and none
thereof shall be used to interpret or construe this Lease. 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.
34.6 Corporate Tenant. In the event Tenant hereunder shall be a corporation,
the parties executing this Lease on behalf of Tenant hereby covenant and
warrant that the Tenant is a duly qualified corporation and all steps
have been taken prior to the date hereof to qualify Tenant to do business
in the State of Nevada and all franchise and corporate taxes have been
paid to date, and all future forms, reports, fees and other documents
necessary to comply with applicable laws will be filed when due. Each
individual executing this Lease, on behalf of said corporation,
represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of said corporation in accordance with the articles,
bylaws and properly executed resolution of the Board of Directors of said
corporation, that this Lease is binding and obligatory upon said
corporate Tenant, and shall deliver to Landlord, upon the execution
hereof a corporate resolution, in the form of Exhibit I attached hereto,
approving this Lease and the individual(s) to execute this Lease on
behalf of the Corporation. The requirements of this Paragraph shall also
apply should the Tenant be a Limited Liability Company or a Partnership.
34.7 Captions. The titles of Articles and Sections herein are for convenience
only and do not in any way define, limit or construe the contents thereof
34.8 Execution of Lease. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of,
or option for, the demised premises; and this document shall become
effective and binding only upon execution and delivery hereof by Tenant
and by Landlord (or, when duly authorized, by Landlord's agent or
employee). No act or omission of any agent of Landlord or of Landlord's
broker shall alter, change or modify any of the provisions hereof.
34.9 Waiver of Redemption. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event
of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the demised premises by reason of the
violation by Tenant of any of the covenants and conditions of this Lease
or otherwise.
34.10 Severability. If any provision of this Lease shall be determined to be
void by any court of competent jurisdiction, then such determination
shall not affect any other provision of this Lease and all such other
provisions shall remain in full force and effect; and it is the intention
of the parties hereto that if any provision of this Lease is capable of
two constructions, only one, (1) of which would render the provision
valid, then the provision shall have the meaning which renders it valid.
34.11 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefore, governmental restrictions,
governmental regulations' governmental controls, enemy or hostile
governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform
any term, covenant or condition of this Lease, shall excuse the
performance by such party for a period equal to any such prevention,
delay or stoppage except the obligations imposed with regard to rental
and other charges to be paid by Tenant pursuant to this Lease.
Page 20 of 4l Revised on 7/1/03
34.12 Rules and Regulations. Tenant agrees and covenants to comply with all of
Landlord's rules and regulations as set forth in Exhibit C attached
hereto. Landlord shall have the right from time to time to promulgate
amendments and additional and new rules and regulations for the care,
safety, maintenance and cleanliness of the demised premises and the
Office Plaza, or for the preservation of good order. On delivery of a
copy of such amendments and additional and new rules and regulations to
Tenant, Tenant shall comply with same. A violation of any of the rules
and regulations shall constitute a default by Tenant under this Lease. If
there is a conflict between the said rules and regulations and any of the
provisions of this Lease, the provisions of this Lease shall prevail
34.13 Interest on Unpaid Rent. Except as expressly provided herein, any amount
due to Landlord not paid when due shall bear interest from the date due
to the date of payment at the lesser of (i) eighteen percent (l8%) per
annum; or (ii) the maximum rate allowed by law. Payment of such interest
shall not excuse or cure any default by Tenant under this Lease.
34.14 Holding Over. In the event Tenant shall hold over the demised premises
after the expiration of the term hereof without the express written
consent of Landlord, Tenant shall became a tenant at sufferance only, at
a rental rate equal to one hundred twenty-five percent (125%) of the
Minimum Monthly Rental (which was in effect immediately prior to the
commencement of the hold over period), plus the avenge monthly percentage
rent, if any, paid by Tenant during the previous year, and otherwise
subject to the terms, covenants, and conditions herein specified, so far
as applicable.
34.15 Attorney's Fees. In the event that at any time after the due hereof
either Landlord a Tenant shall institute any action or proceeding against
the other relating to the provisions of this Lease, or any default
hereunder, then and in that event, the party not prevailing to such
action or proceeding shall reimburse the prevailing party for the
reasonable expenses of attorney's fees and all costs and disbursements
incurred therein by the prevailing party, including without limitation,
any such fees, costs, or disbursements incurred on any appeal from such
action or proceeding. The provisions contained in this Section 34.15
shall survive the expiration or earlier termination of this Lease.
34.16 Brokers. In connection with this Lease, Tenant warrants and represents
that it has had no dealings with any broker and that it knows of no
person who is or might be entitled to a commission, finder's fee or other
like payment in connection herewith other than the Broker named to
Article I and does hereby indemnify and agree to bold Landlord harmless
from and against any and all loss, liability and expenses that Landlord
may incur should such warranty and representation prove incorrect.
34.19 Merchants' or Promotional Fund. Intentionally deleted.
34.18 Mutual Agency; Co-Tenant. Each Tenant hereby appoints each remaining
Tenant as his/her or its agents, representative, and attorney in fact, to
act for and on behalf of said Tenant with respect to all matters relating
to, or arising from this Lease, the tenancy created hereby, the
obligations herein set forth, and the use and occupancy of the demised
premises, specifically including, but not limited to the right to alter,
modify, extend, and supplement this Lease, and the tenancy created
hereunder.
34.19 No Inducements. Tenant warrants and represents that there have been no
representations or statements of fact with respect to the demised
premises, the Office Plaza, the surrounding area or otherwise, whether by
Landlord, as agents or representatives, any lease broker a any other
person, which representations or statements have in any way induced
Tenant to enter this Lease or which have served as the basis in any way
for Tenant's decision to execute this Lease, except as contained in this
Lease. This agency shall continue and is irrevocable at all times during
the period that the demised premises are occupied by any Tenant.
34.20 No Conditional Payments. No payment by Tenant or receipt by Landlord of
lessor amount than the total of all sums due hereunder shall be deemed to
be other than an account of the earliest stipulated rent, nor shall any
endorsement or statement on any check, other payments or any accompanying
letter be deemed an accord and/or satisfaction and Landlord may accept
such cash and/or negotiate such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease, or otherwise, regardless of whether
Landlord makes any notation on such instrument of payment or otherwise
notifies Tenant that such acceptance, cashing or negotiation is without
prejudice to any of Landlord's rights.
34.21 No Co-Tenancy Requirements. Landlord reserves the right to affect such
tenancies in the Office Plaza as Landlord, in the exercise of its sole
judgment, shall determine to best promote the interest of the Office
Plaza. Tenant is not relying on the fact, nor does Landlord represent,
that any specific tenant or kind of tenant or number of tenants shall,
during the term of this Lease, occupy any space in the Office Plaza, nor
that any specifieed percentage of the Office Plaza has heretofore been
leased.
34.2 Office Plaza Name Change. Landlord reserves the right to change the name
of the Office Plaza from time to rime during the term of this Lease.
Page 21 of 4l Revised on 7/1/03
34.23 City Permits and Approvals. It is mutually understood and acknowledged
that Landlord may be seeking the necessary permits to construct the
Office Plaza from the proper governing agencies. In the event that
Landlord can not obtain permits for: (i) building and appurtenant
improvements; (ii) site use; (iii) signs; and (iv) driveways, herein
collectively referred to as "permits" sufficient to enable Landlord (in
Landlord's sole judgment) to construct the Office Plaza, Tenant agrees
that landlord may cancel this Lease on thirty (30) days written notice to
Tenant. Tenant hereby waives any and all claims against Landlord without
liability to or by any party upon return of any deposits.
34.24 Acquisition of Properly. Intentionally deleted.
34.25 Tenant Approval. Prior to the execution of this Lease, Tenant agrees to
provide Landlord its financial statement and other additional financial
information requested by Landlord to ascertain its financial condition.
It is mutually understood and acknowledged that in consideration of
Landlord entering into a lease agreement with Tenant, Landlord is relying
on Tenants financial condition and as such, Landlord has the sole and
absolute right to approve or disapprove Tenant's financial condition, and
upon said disapproval, Landlord may terminate this Lease on written
notice to Tenant within ninety (90) days after the date of the Lease
without liability to or by any party and any money paid by Tenant to
Landlord hereunder shall be returned to Tenant immediately. Otherwise,
this Lease shall be in full force and effect.
34.25 Alternative Security.
(a) Landlord shall demand Alternative Security If in connection with
the Guaranty being executed by the Guarantor simultaneously with
this Lease:
(i) Landlord, in its sole judgment, determines that the
creditworthiness, economic strength, or financial status of
Guarantor falls below a level then acceptable to Landlord; or
(ii) A bankruptcy proceeding is filed by or against Guarantor.
(iii) Guarantor breaches the Guaranty;
(iv) Guarantor dies or becomes unable to perform such duties as
required of a Guarantor,
then, Landlord may, at any time and upon prior written demand to Tenant,
require Tenant to deliver to Landlord within thirty (30) days after
Tenant's receipt of Landlord's demand for:
(i) Increased Security Deposit to equal the Guaranty, or
(ii) Letter of Credit to equal the Guaranty; or
(iii) A new Guaranty from a Guarantor approved by Landlord;
(b) Landlord shall have the option to terminate this Lease if Tenant
fails to comply with Landlord's demand within the time period
required.
(c) Tenant's Burden. Because Tenant is in the best position to know of
Guarantors ability and capacity to function as a Guarantor it is
Tenant's responsibility to inform Landlord immediately upon
Guarantors actual or suspected inability to carry out it's duties.
Tenant's failure to inform Landlord of any change in circumstances
with regards to Guarantor is grounds for termination of Lease upon
Landlord's receipt of such facts.
34.27 Confidentiality. The terms and conditions of this Lease are confidential
between the parties hereto. Any disclosure by Tenant of the terms and
conditions of this Lease to any third party could have a significant and
determination effect upon either both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as indicated
below:
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Date: 7/9/03 Date: 7/9/03
EXHIBIT A
---------
DESCRIPTION OF DEMISED PREMISES
The demised premises are located in the store and building, at the address
set forth below.
The approximate location of the demised premises is crosshatched on the
following site plan.
SITE PLAN
[graphic ommitted]
IN WITNESS WHEREOF, this approved site plan is executed as of the date of
the execution of the Lease Agreement.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 23 of 41
EXHIBIT B
---------
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT is attached to that certain lease ("Lease"), dated
for reference June 10, 2003, between Durango Trop, LLC and American Vantage
Companies. All terms not defined herein shall have the meanings set forth in the
Lease.
1. DESCRIPTION OF LANDLORD'S WORK:
The following is a description of the costruction and limitations of same, which
will be provided by Landlord ("Landlord's Work").
LANDLORD'S WORK (XXXX SHELL) for which Landlord is obligated to construct and
pay:
1. Exterior building walls, roof, all structural items, including
storefront, per Landlord's and Tenant's design and specifications.
2. A smooth, flat concrete floor slab to receive Tenant's finish floor.
Tenant to pay the cost of utility lines and undergrounding for Tenant's
needs within the Premises.
3. Demising partitions or walls, including common walls to major tenants,
will consist of wood or metal studs (at Landlord's election) to meet
local building and fire codes. Concrete tilt-up panels and/or block on
any walls to be unfinished.
4. Electrical. All electrical work not expressly provided for below, shall
be part of the Tenant's work:
A. Two hundred (200) amp three (3) wire power available at
rear of Premises. Panels, breakers and distribution of
power are responsibility of Tenant.
5. Telephone. Landlord will provide conduit with pull-string from the
telephone service box (demarcation point) to the Premises. Tenant shall
be responsible for distribution and hook-up of all lines and equipment
from the demarcation point into and throughout the Premises.
6. Water and Sewer and Gas lines shall be provided at rear of Pad Building
7. Standard aluminum and glass storefront, eight (8) feet or higher (at
Landlord's option), with a single or double-acting entrance door not to
exceed a maximum of three (3) feet in width each.
8. Landlord shall provide Tenant with a $35.00/sf Improvement Allowance in
addition to Items 1-7 above and shall cause Tenant's Premises to be
completed in accordance with the attached floor plan and specifications.
Substantial Completion of the Landlord's work shall be defined as the date that
the Landlord's Contractor receives a Certificate of Completion of the Tenant's
Premises or the date which Tenant's contractors, if any, can have access to
commence with Tenant's Work. Tenant agree to prepare, or cause to be prepared,
and to submit to Landlord three sets of fully dimensioned one-quarter inch
(1/4") scale drawings showing the layout of the Premises including trade fixture
plans and any other matters which would affect the construction design of the
Premises, within thirty (30) days after the date that the Lease is fully
executed. Said plans shall be in conformity with the following description of
"Tenant's Work."
2. DESCRIPTION OF TENANTS WORK:
The work to be done by Tenants under the Lease shall be provided by Tenant at
Tenant's expense ("Tenant's Work"). This work shall include, but shall not be
limited to the purchase and/or installation and/or performance of the following
(including any and all applicable architectural and engineering fees therefor):
(a) All construction work in, and improvements to the demised premises, other
than these itemized in Paragraph I.above.
3. PROVISIONS FOR COMPLETION OF PLANS AND SPECIFICATIONS AND CONSTRUCTION OF
STORE:
(a) General Provisions.
(1) Landlord agrees that it will, at its own cost and expense after
execution of the Lease and as soon as practicable after the final
plans and specifications with respect thereto have been adopted
and approved as herein provided (unless prevented or delayed by
conditions over which it has no control), commence forthwith with
the erection of a building covering approximately all of the
demised premises. It is expressly understood and agreed that the
demised premises may constitute a portion of the larger building.
In the event that prior to commencement of the construction of the
Page 24 of 41 Revised on 7/1/03
demised premises or the building of which the demised premises are
a part, Landlord elects not to proceed with such construction,
Landlord may terminate the Lease upon thirty (30) days prior
written notice to Tenant and both parties shall be forthwith
released.
(2) When Landlord or landlord's architect has completed the basic
shell of the building (or if such drawings have already been
completed, then concurrently with the execution of the Lease),
Landlord shall deliver a floor plan of the demised premises to
Tenant showing thereon the columns and other structural) work in
the demised premises.
(3) Landlord at its sole cost and expense, shall construct for Tenant
an improved shell, including storefront, all in conformity with
the hereinabove set forth "Description of Landlord's Work." Tenant
shall be responsible, at Tenants sole cost and expense, to
complete the work hereinabove set forth in the "Description of
Tenant's Work." Tenant agrees to submit to Landlord working
drawings and specifications prepared by Tenants licensed architect
and/or engineer, which drawings shall indicate the requirements of
Tenant's Work under this Exhibit B. Said drawings shall be subject
to the approval of Landlord (which may be withheld by Landlord in
its sole discretion). Landlord's approval of drawings or plans
under this Lease or Work Letter shall create no responsibility or
liability on the part of Landlord for their completeness, design,
sufficiency, or compliance with all laws, rules, and regulations
of governmental agencies or authorities. The fees for Tenants
architect shall be paid by Tenant.
(4) Tenant may not install any exterior design, finish or construction
other than the one that has been approved by Landlord (which may
be withheld by Landlord in its sole discretion). Tenant shell not
be permitted to maintain or place on the building or upon the
demised premises any awnings except with the written consent of
Landlord (which may be withheld by Landlord in its sole
discretion).
(5) If Tenant engages its own contractor for the performance of
Tenants Work, Tenant agrees that Tenant shall, upon the
substantial completion of Landlord's Work or if Landlord's
contractor is used for both Landlord's and Tenants Work, then upon
substantial completion of Landlord's and Tenants Work, accept the
building in the condition in which it may then be, and waives any
right or claim against Landlord for my cause, directly or
indirectly, arising out of the condition of the demises premises,
the appurtenances thereto, the improvements thereon and the
equipment thereof, and Tenant shall thereafter save and hold
harmless Landlord from liability as provided in the Lease.
Landlord shall not be liable for any latent or patent defects in
or about the demised premises.
(6) Tenant agrees at Tenant's expense to obtain and maintain public
liability and worker's compensation insurance, (and such other
insurance as Landlord may require in its sole discretion),
adequate to fully protect Landlord as well as Tenant from and
against any and all liability for death of or injury to persons or
damage to property caused in or about, or by reason of the
construction of Tenants Work.
(7) Where deal plans and specifications are in conflict with this
Exhibit B. The provisions Of Exhibit B shall prevail.
(8) If Tenant uses its own contractor for completion of Tenants Work,
Tenant agrees to file for record in the office of the County
Recorder of the County wherein the demised premises are situated a
Notice of Completion, as required by law. Landlord shall file said
Notice in the event Landlord's contractor is engaged for
completion of Tenants Work.
(9) Tenant hereby releases Landlord from my claim whatsoever for
damages against Landlord for any delay in the date which the
demised premises shall be ready for occupancy by Tenant.
(10) For all purposes of this Exhibit B and the Lease to which it is
attached, the term "substantial completion," "substantially
complete," "substantially completed," or words of similar effect
is defined as follows:
(i) In the event Tenant uses its own contractor for the
performance of Tenants Work, substantial completion is
defined as the construction of Landlord's Work as set forth
in Exhibit B to the point where Landlord, in its sole
discretion, determines that Tenants contractor may commence
the construction of Tenants Work as set forth herein.
Tenant acknowledges that "temporary" electrical power shall
be sufficient power for Tenants contractor to commence the
construction of Tenant's Work.
(ii) In the event Landlord's contractor is used for the
performance of Tenant's Work, substantial completion is
defined as the date on which the Landlord's contractor
notifies both Landlord and Tenant that the demised premises
are substantially complete to the extent of Landlord's and
Tenants Work specified in this Exhibit B.
(b) Construction.
Page 25 of 41 Revised on 7/1/03
(1) In the event Landlord agrees in writing to perform any of Tenant's Work,
the following procedures and conditions shall apply:
(i) Within forty-five (45) days after Tenant's receipt of the floor
plan for the demised promises, Tenant agrees to submit to Landlord
four (4) sets of fully dimensioned one-quarter inch (1/1") scale
drawings prepared by Tenant's architect at Tenant's expense which
drawings shall indicate the specific requirements of Tenant's
space and shall clearly show the interior partitions, trade
fixture plans, lighting, electrical outlets and signs. Such
drawings shall be in conformity with the hereinabove set forth
"Description of Tenant's Work" The demised premises shall be
constructed in accordance with said drawings. Tenant shall insure
that such drawings comply with all City, County and State
ordinances, codes and regulations relating thereto, and Landlord
shall not be liable therefor.
(ii) The cost of all requirements shown on said drawings that are to be
paid for by Tenant shall be estimated prior to the start of
construction. Tenant shall have the prior right of approval of all
costs to be borne by Tenant pursuant to the Provisions of this
Exhibit B. The entire amount of the estimated cost shall be paid
to Landlord by Tenant prior to commencement of construction of
Tenant's Work.
(iii) The aforementioned drawings are subject to landlord's approval
(which may be withheld by Landlord in its sole discretion) and, if
approved, then Tenant shall cause its architect to prepare final
plans and specifications. A complete copy thereof shall be
delivered to Landlord and Landlord shall have fifteen (15) days
thereafter within which to examine and approve the same (which may
be withheld by Landlord in its sole discretion). Tenant shall make
any changes to such plans and specifications as may be reasonably
requested by Landlord.
(iv) Any additional charges, expenses, or costs arising by reason of
any subsequent change, modification, or alteration in said
approved plans and specifications, including architect's fees,
shall be at the sole cost and expense of Tenant and Landlord shall
have the right to demand payment for such change, modification, or
alteration prior to its performance of any work in the demised
premises. No such changes, modifications, or alterations in said
approved plans and specifications may be made without the written
consent of Landlord (which may be withheld by Landlord in its sole
discretion).
(v) In the event Tenant employs an architecht other than the
Landlord's architect to prepare the drawings and final plans and
specifications, then Tenant shall reimburse Landlord for the cost
of having Landlord's architect review Tenant's drawings and final
plans and specifications and to coordinate same with Landlord's
Work, said sum to be paid within ten (10) days after Landlord's
approval of the final plans and specifications. Said sum does not
include fees payable to any local governmental agency for plan
check and building permit, which sum shall be paid directly by
Tenant.
(vi) In the event Tenant desires to use the Landlord's architect to
prepare the drawings and final plans and specifications, then
Tenant shall pay the fees of Landlord's architect relating to such
plans and specifications. Said sum shall not include my plan check
fee nor any fee for a building permit and shall be paid in the
manner set forth in Paragraph (v) above.
(2) In the event Tenant desires to use its own contractor for the performance
of Tenant's Work, the following procedures and conditions apply:
(i) The provisions of subparagraph (i), (iii), (iv), (v) and (vi) of
Paragraph 3(b)(1) above shall be applicable to Tenant
(ii) Tenant may secure bids from any bondable contractor for any of the
work to be done by Tenant pursuant to Exhibit B; provided,
however, that said bids shall be obtained within twenty (20) days
from receipt of the bid submitted by Landlord's contractor in the
event any of said bids are less than the bid obtained by Landlord
from its contractor, Tenant shall than submit all bids to
Landlord. Within fifteen (15) days after receipt of said bids,
Landlord may elect to have its contractor perform the work at a
cost equal to the lowest bid obtained by Tenant, and in the event
of such election, shall notify Tenant in writing prior to the
expiration of said fifteen (15) day period.
(iii) Tenants contractor shall commence construction of Tenants Work
promptly upon substantial completion of landlord's Work and shall
diligently pursue such construction to completion.
(iv) It is further understood and agreed that the items set forth below
shall be incorporated as "Special Conditions" into the contract
between Tenant and its contractor as follows (with
Page 26 of 41 Revised on 7/1/03
a copy of the contract to be furnished to the Landlord prior to
the commencement of Tenant's Work):
(a) Prior to start of Tenants Work, Tenant's contractor shall
provide Landlord with the construction schedule in "bar
graph" form indicating the completion dates of the phases
of Tenants Work.
(b) Tenant's contractor shall perform said work in a manner and
at times which do nor impede or delay Landlord's contractor
in the completion of Landlord's Work. Any delays in the
completing of the demised promises or the commencement of
the minimum annual rental and any damage to any work caused
by Tenants contractor shall be at the sole cost and expense
of Tenant.
(c) Tenant's contractor shall be responsible for the repair of
any damage done by him to other contractors' work and any
cleanup work required due to such damage, which
specifically includes access ways to the demised premises
which may be concurrently used by others.
(d) Tenant's contractor shall contain his storage of materials
and his operations within the demised premises and such
other space as he may be assigned by Landlord. Should he be
assigned space outside the demised premises, he shall move
to such other space as the Landlord shall direct from time
to time to avoid interference with other work.
(e) All trash and surplus construction material shall be stored
within the demised premises and shall be promptly removed
from the "Office Plaza."
(f) Tenants contractor shall provide temporary utilities,
portable toilet facilities and portable drinking water as
required for Tenant's Work and shall pay to Landlord's
contractor the cost of any temporary utilities and
facilities provided by Landlord's contractor at Tenant's
contractor's request.
(g) Tenant's contractor shall notify Landlord and, if required
by Landlord, Landlord's architect of my planned work to be
done at my time other than Monday through Friday, 8:00 A.M.
to 6:00 P.M.
(h) Tenant and Tenant's contractor shall comply with all
applicable government codes and regulations (including
safety regulations) pertaining to the performance of
Tenant's Work and the temptation thereof by Tenant or
Tenant's contractor. Tenant shall also comply with all
applicable safety regulations established by Landlord's
contractor. Tenant further agrees to save and hold Landlord
harmless from any cause arising from the performance of
Tenant's Work. Prior to commencement of construction,
Tenant shall submit to Landlord evidence of insurance as
required by the Lease and this Exhibit B.
(i) Tenants contractor or subcontractors shall not post signs
on any part of the Office Plaza or on the demised premises.
(j) Tenant shall assign any and all warranties and guaranties
provided by Tenants contractor and subcontractors to
Landlord immediately upon completion of Tenants Work.
(k) Tenant shall protect all exterior surfaces prior to the
commencement of and during construction. These areas shall
include but are not limited to all landscape areas and
paver(s) or decorative sidewalks.
(l) Tenant shall contact the Landlord upon receipt of a
Certificate of Occupancy to perform a final walk-thru to
insure all sections of the lease have been complied with.
IN WITNESS WHEREOF, this Work Letter agreement is executed as of the date of
executution of the Lease Agreement.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 27 of 41 Revised on 7/1/03
EXHIBIT C
---------
RULES AND REGULATIONS
The Rules and Regulations Agreement is entered into as of the date of the Lease
Agreement (the "Lease"), by and between the parties named in Article I, and by
this reference is incorporated herein. Landlord hereby establishes the following
rules and regulations for the safety, care and cleanliness of (i) the store
areas thereinafter referred to as the "demised premises") of any tenant or
tenant's of the Office Plant (hereinafter referred to at the "Tenant"), (ii) the
common area; and (iii) the Office Plaza in general, or for the preservation of
good order:
A. FOR THE STORE AREAS:
1. All floor areas of the demised premises (including vestibules, entrances, and
air returns), doors, fixtures, windows, and plate glass shall be maintained in a
clean, safe and good condition.
2. All trash, refuse, and waste materials shall be stored in adequate containers
and regularly removed from the demised premises. These containers shall not be
visible to the general public and shall not constute a health or fire hazard or
nuisance to any tenant. In the event that any tenant shall fail to remedy such a
health or fire hazard or nuisance within five (5) days after written notice by
Landlord, Landlord may remedy and/or correct such health or fire hazard or
nuisance at the expense of the tenant involved.
3. All trash areas shall be fully enclosed.
4. No portion of the demised premises shall be used for lodging purposes.
5. Neither sidewalks nor walkways shall be used to display, store or place any
merchandise, equipment or devices, except in connection with sidewalk sales held
with Landlord's prior written approval.
6. No public telephone, newsstand, shoeshine stand, refreshment, vending or
other coin operated machine shall be installed or placed on the sidewalk or
walkway area adjacent tot the demised premises or on the common area without
Landlord's prior written approval in each instance.
7. No person or persons shall use The demised premises or my part thereof, for
conducting therein a second-hand store, auction, distress or fire sale or
bankruptcy sale, or "going-out-of-business" sale or "lost-our-lease" sale
without Landlord's prior written consent.
8. No portion of the demised promises shall be used for the storage of any
merchandise, materials or other properties, other than those reasonably
necessary for the operation of a tenant's business.
9. No display area of their demised premises shall be left vacant, and a tenant
shall not black out or otherwise obstruct the windows of the demised premises,
without Landlord's prior written consent. '
10. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed an any part of the outside or inside of
the building or storefront without prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule.
11. Landlord shall have the absolute right to enter upon the demised premises to
perform such cleaning and clearing of the pipes and drains servicing the demised
premises (including roto-rooter service), as Landlord shall dreem necessary. The
Tenant shall pay Landlord for all such required services if the problem is
caused by Tenant's operation of its business.
12. Any Tenant operating a carry-out food operation, including any ice cream
store, shall pay Landlord for all sidewalk and walkway clea-up work (including
without limitation steam cleaning) that Landlord shall determine is necessary to
preserve the sanitation, cleanliness, clean appearance, and safety of the Office
Plaza. Tenant shall be responsible for a clean-up area of not less than one
hundred feet (100') in radius from their entrance(s) to the demised promises.
The Tenant involved shall pay Landlord for this cost with the next succeeding
months rent.
13. Upon notice from Landlord that objectionable odors have been emitted from
the Premises, and/or that landlord has received reasonable complaints concerning
objectionable odors being omitted from the Premises from any tenant, invitee or
other visitor to the Office Plaza, Tenant shall, at its sole cost and expense,
use its best efforts to xxxxx the emission of objectionable odors being emitted
from the Premises as shall be directed by Landlord, in Landlord's reasonable
discretion, including but not limited to the installation, at Tenant's sole cost
and expense, of automatic ventilation equipment, and/or including the
installation of a draft stop extending to the roof on all demising walls.
Furthermore, all exhaust fans must be vented at a height that extends above the
level of the neighboring stores' heating and air conditioning vents, but not
above the parapet line and not to be visible from the Office Plaza or the
adjacent properties.
14. Landlord shall approve the weight, size and location of safes and other
heavy equipment and articles in or about the demised premises, and to require
that all such items which are to be moved in and out of the demised premises to
Page 28 of 41 Revised 7/1/03
be done only at such times and in such manner as landlord shall reasonably
direct in writing. Landlord shall not be responsible for loss or damage to any
such safe or personal property from any cause, and all damage done to the Office
Plaza by Tenant moving or maintaining any such safe or personal property shall
be repaired at the expense of the tenant.
B. FOR THE COMMON AREAS:
1. Use of the common area shall be in an orderly manner in accordance with
directional or other signs or guides. Roadways shall not be used at a speed in
excess of ten (10) miles per hour and shall not be used for parking or stopping,
except for the immediate loading or unloading of passengers. Walkways shall be
used only for pedestrian travel.
2. Customers and invitees of Tenants shall not use the parking areas for
anything but parking motor vehicles. No tenant or its employees shall park in
the visitors parking areas if an employee parking area has been designated by
the Landlord. All motor vehicles shall be parked in an orderly manner within the
painted lines defining the individual parking places. During peak periods of
business activity, Landlord may impose any and all controls landlord deems
necessary to operate the parking lot, including but not limited to, the length
of time for parking use.
3. No person shall use any utility area, truck loading area, or other area
reserved for use in conducting business, except for the specific purpose for
which permission to use these areas has been given.
4. Without the consent of the Landlord, no person shall use any of the common
area for,
a. Vending, peddling, or soliciting orders, for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet, or other matter;
b. Exhibiting any sign, placard, banner, notice, or other written material;
c. Distributing any circular, booklet, handbill, placard, or other written
material;
d. Soliciting membership in any organization, group or association, or
soliciting contributions for any purpose;
e. Parading, patrolling, picketing, demonstrating, or engaging in conduct that
might interfere with the use of the common area or be detrimental to any of the
business establishments in the Office Plaza;
f. Using the common area for any purpose when none of the business
establishments in the Office Plaza are open for business;
g. Discarding any paper, glass, or extraneous matter of any kind except in
designated receptacles;
h. Using a sound-making device of any kind or making or permitting any noise
that is annoying. unpleasant, or distasteful;
i. Damaging my sign, light standard, fixture, landscaping material Or other
improvement or property within the Office Plaza.
The above listing of specific prohibitions is not intended to be exclusive, but
is intended to indicate the manner in which the right to use the common area
solely as a means of access and convenience in shopping at the business
establishments in the Office Plaza is limited and controlled by Landlord.
C. IN GENERAL:
1. No pets, except seeing eye dogs, shall be allowed in or about the store areas
or common areas of the Office Plaza, without Landlord's prior written Approval.
2. All tenants and their authorized representatives and invitees shall not
loiter in the parking or other common areas that any tenant has the right to
use; nor shall they in any way obstruct the sidewalks, entry passages,
pedestrian passageways, driveways, entrances and exits; they shall use them only
as ingress to and egress from their work areas.
3. Tenants and their authorized representatives and invitees shall not throw
cigar or cigarette butts or other substances or litter of any kind in or about
the buildings of the Office Plaza, except in receptacles placed in it let that
purpose.
4. The toilet rooms, toilets, urinals, washbowls, and other apparatus available
to Tenants shall not be used for any purpose other than that for which they were
constructed. No foreign substances of my kind shall be thrown into them, and the
expense of any breakage, stoppage, or damage shall be paid by the Tenants.
5. Landlord shall not be responsible to any Tenant or to any other person for
the non-observance or violation of these rules and regulations by any other
Tenant or other person. All Tenants shall he deemed to have read these rules and
regulations and to have agreed to abide by them as a condition to their
occupancy of the space leased.
Page 29 of 41 Revised on 7/1/03
6. Tenant shall not place any outdoor seating, furniture, landscape, or pots of
any kind whatsoever, nor shall Tenant place or cause to be placed any outdoor
Kiosks or signage or anything else in or on the exterior portion of the Tenants
space without the prior written consent of the Landlord.
IN WITNESS WHEREOF this Rules and Regulations Agreemeat is executed as of
the execution of the Lease Agreement.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 30 of 41 Revised 7/1/03
EXHIBIT D
---------
STOREFRONT SIGN AGREEMENT
1. Signs shall consist of individually mounted nOn-illuminated gator foam or
similar plastic faces.
2. Prior to fabrication of signs, three (3) prints of the complete sign
plans and installation plans must be submitted to Landlord or agent for
approval.
3. There will be no exceptions to the sign criteria without written consent
of Landlord.
4. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the demised premises or Office Plaza without the
written consent of Landlord. Landlord shall have the right to remove any
such sign, placard picture, advertisement, name, or notice shall be
inscribed without notice to and at the expense of the Landlord.
5. All approved signs or lettering on doors shall be printed, painted,
affixed, or inscribed at the expense of the Tenant by a person approved
by Landlord.
IN WITNESS WHEREOF this Storefront Sign Agreement is executed as of the date
of execution of the Lease Agreement.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 31 of 41 Revised 7/1/03
EXHIBIT E
---------
ESTOPPEL CERTIFICATE ("sample")
The undersigned, as Tenant under that Lease ("Lease") dated for reference June
10, 2003, made with Durago Trop, LLC, as Landlord, hereby certifies as follows:
(1) That the undersigned has entered into occupancy of the demised premises
described in said Lease;
(2) That said Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way, except as follows
_______________;
(3) That the same represents the entire agreement between the parties as to
said Lease;
(4) That the Lease Commencement Date of said Lease is____________;
(5) That there is an expired term hereunder of __ months.
(6) That all conditions of said Lease to be performed by Landlord and
necessary to the enforceability of said Lease have been satisfied;
(7) That there are no uncured defaults by either Tenant or Landlord threunder
(8) That no rents have been prepaid, other than as provided in said Lease;
and
(9) That on this date there are no existing defenses or offsets which the
undersigned has against the enforcement of said Lease by Landlord;
(10) That the Minimum Monthly Rental is currently $____ and has been paid
through ______________;
(11) That the monthly cost of Tenants Share of monthly Common Area Expenses is
currently $____________;
(12) That the amount of the security deposit held by Landlord is currently
$__________;
The undersigned hereby agrees to disclaim all right, title or interest in said
demised premises except the rights granted by said Lease; and to give to the
holder of any mortgage affecting the demised premises, or its assignee, the same
right as the Landlord has to cure any default complained of in any notice or
demand. All terms not otherwise defined herein shall have the meaning set forth
in the Lease.
Executed this ____ day of _____, 200_.
"Tenant":
American Vantage Companies
a Nevada corporation
By:
Print Name:
Title:
Page 32 of 4l Revised 7/1/03
EXHIBIT F
---------
TENANT NOTICE OF SUBSTANTIAL COMPLETION ("sample")
Date:____________________________________-
To:_______________________
RE: DELIVERY OF POSSESSION.
Notice is hereby given as of the date hereof to American Vantage Companies,
tenant under that certain Lease Agreement dated June 10, 2003, that the demised
premises located at 0000 X. Xxxxxxx Xxxxx, Xxxxx 000 (# to be verified) are
substantially completed with respect to Landlord's obligations therefor.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 33 of 4l Revised 7/1/03
EXHIBIT G
---------
POLE SIGN AGREEMENT
Tenant agrees to pay a monthly fee for the right to use a designated portion of
Landlord's Pylon sign for advertising Tenant's business within the Office Plaza.
Such sign shall comply with the sign criteria as stated in Article 7 of the
Lease end Exhibit D attached thereto. Tenant shall pay all costs for design,
construction, permits and installation.
This use fee shall be $75.00 per month for two (2) signs (one (1) per each side
of a single Pylon). In the event Tenant requires a larger sign space and
provided there is sufficient space available, the use fee shall be multiplied by
the number of spaces requested. Tenant further agrees that this amount shall be
separate from the monthly rent payment provided for in Paragraph 5.1 of the
lease, but shall be subject to all other applicable provisions within the Lease,
and shall be paid to Landlord along with the monthly rental payment. In the
event Tenant fails to make any monthly rental payment when due. Landlord shall
then notify Tenant that Tenant has five (5) days to cure this breach. If Tenant
then fails to cure such breach, Landlord may, at Landlord's option, terminate
this agreement and remove Tenant's sign from Pylon. Landlord shall be indemnifed
by Tenant for any and all damage which may occur to Tenant's sign as a result of
Landlord's removal of said sign. Landlord shall then promptly return sign to
Tenant's possession.
Additionally, Tenant's use of the space on the Pylon shall be far a term of one
(1) year, and may be renewed for successive additional one (1) year terms
corresponding to Tenant's Initial Term as specified in the Lease, with the
consent of the Landlord. Landlord reserves the right to relocate Tenant's sign
on the Pylon and Landlord shall pay any and all cost incurred with such
relocation.
Tenant shall furnish Landlord with a copy of Tenant's proposed sign, which shall
be subject to Landlord's sole approval or disapproval, including but without
limitation, style and size of letters, color, dimensions, lighting criteria and
exact location of placement on the Pylon sign.
Tenant acknowledges that because of space and size limitations and Pylon size
dimensions, Tenant's requesting use of the Office Plaza Pylon may not be
permitted to place their individual sign an a particular pylon location of their
choice, but Landlord will use it's best efforts to accommodate Tenant's request.
Total signs: 0 x $75.00 per sign pa month = $0.00
[graphic omitted]
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Tassinawi
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Tassinawi
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 34 of 41 Revised on 7/1/03
EXHIBIT H
---------
GUARANTY OF LEASE (Corporate Guaranty of Tenant only)
Intentionally deleted.
Page 35 of 41 Revised 7/1/03
EXHIBIT I
---------
CORPORATE RESOLUTION ("sample")
Tenants resolution to be attached to lease
I, the undersigned, __________________________________________________________
hereby certify that I am and at all times mentioned herein have been the duly
elected and acting Secretary of ________________________, a_______________
corporation, and that at a ___________________________ meeting of the Board of
Directors of said corporation duly held on _______________, ________________,
the following resolution was adopted:
RESOLVED. that said corporation is authorized to lease from 9295 Flamingo, LLC,
space consisting of approximately 3000 square feet, at Crystal Palace Shopping
Center for a term of five years at a minimum monthly rental of $6600 upon all of
the terms and conditions contained in the lease attached hereto with such
amendments and supplements, thereto as may be agreed upon by the officer(s) of
this corporation hereinafter named; and
RESOLVED, FURTHER, that __________________________________________- the
_____________________________________________ (Executive Vice) President of this
corporation and/or _____________________________ the regular/assistant Secretary
of this corporation, be and they hereby are authorized and directed to execute
end deliver (either acting alone or acting in concert) in the name of and on
behalf of this corporation the lease and such other documents and instruments
related or incidental thereto as the said officer(s) may deem necessary or
convenient in his/ her full discretion in order to carry out the intent of this
resolution.
I hereby certify that said resolution has not been modified or amended and is in
full force and effect as of the date hereof.
IN WITNESS WHEREOF, I have executed this certificate on this __ day of
___________, _____.
_____________________________
"Secretary"
Page 36 of 41 Revised 7/1/03
EXHIBIT J
---------
DUTIES OWED BY A NEVADA REAL ESTATE LICENSEE
This form doees not constitute a contract for services.
In Nevada, a real estate license can (1) act for only one party to a real estate
transaction, (2) act for more than one party to a real estate transaction with
written consent of each party, or (3) if licensed as a broker, assigned
different licenses affiliated with the broker's company to separate parties to a
real estate transation. A licensee, acting as an agent, must act in one of these
capacities in every real estate transaction. If this form is used for a lease,
the term Seller shall mean Landlord/Lessor and the term Buyer shall mean
Tenant/Lessee.
LICENSEE: The licensee in the real estate transaction is Xxxxxxx Xxxxxx ___
("Licensee) whose license number is 26738 The licensee is acting for the
---------
landlord.
BROKER: The broker in the real estate transaction is Xxxxxxx Xxxxxx ___
("Broker"), whose company is Las Vegas Valley Commercial Brokers, LLC ___
("Company").
A NEVADA REAL ESTATE LICENSE IN A REAL ESTATE TRANSACTION SHALL:
1. Disclose to each part to the real estate transaction as soon as
practicable:
a) Any material and relevant facts, data or information which Licensee
knows, or which by the exercise of reasonable care and diligence
licensee should have know, relating to the property which is the
subject of the real estate transaction.
b) Each source from which Licensee will receive compensation as a result
of the transaction.
c) That Licensee is a principal to the transaction or has an interested
in a principal transaction.
d) Any changes in Licensee's relationship to a party to the real estate
transaction.
2. Disclose, if applicable, that Licensee is acting for more than one party to
the transaction. Upon making such disclosure the Licensee must obtain the
written consent of each party to the transaction for whom Licensee is
acting before Licensee may continue to act in Licensee's capacity as an
agent.
3. Exercise reasonable skill and care with respect to all parties to the real
estate transaction.
4. Provide this form to each party to the real estate transaction.
5. Not disclose, except to the Broker, confidential information relating to a
client.
6. Exercise reasonable skill and care to carry out the terms of the brokerage
agreement and to carry out Licensee's duties pursuant to the term of the
brokerage agreement.
7. Not disclose confidential information relating to a client for 1 year after
the revocation or termination of the brokerage agreement, unless Licensee
is required to do so by order of the court. Confidential information
includes, but is not limited to the client's motivation to purchase, sell
or trade and other information of personal nature.
8. Promote the interest o his client by:
a) Seeking a sale, lease or property at the price and terms stated in the
brokerage agreement or at a price acceptable to the client.
b) Presenting all offers made to or by the client as soon as is
practable.
c) Disclosing material facts of which the licensee has knowledge
concerning the transaction.
d) Advising the client to obtain advice from an expert relating to
matters which are beyond the expertise of the licensee.
e) Accounting for all money and property Licensee receives (in which the
client may have an interest) as soon as is practicable.
9. Not deal with any party to a real estate transaction in a manner which is
deceitful, fraudulent or dishonest.
10. Abide by all duties responsibilities and obligations required for Licensee
in chapters 119, 119B, 645, 645A, and 645C of the NRS.
--------------------------------------------------------------------------------
I/We acknowledge receipt of this list of licensee duties, and have read and
understood this disclosure.
/s/ illegible /s/ illegible 9 July 03 0920
----------------- ------- ------- ----------------- ------- ---------
Seller/Landlord Date Time Buyer/Tenant Date Time
--------------------------------------------------------------------------------
CONFIRMATION REGARDING REAL ESTATE AGENT RELATIONSHIP
This form does not constitute a contract for services.
Property Address
0000 X. Xxxxxxx Xxxxx, Xxxxx __, Xxx Xxxxx, XX 00000 (Suite # to be determined
upon issue of building permits for Tenant's premises)
In the event any part to the real estate transaction is also represented by
another licensee who is affiliated with the same Company, the Broker may assign
a licensee to act for each party, respectively. As set forth within the Duties
Owed form, no confidential information will be disclosed.
This is [] is not [X] such a transaction.
--------------------------------------------------------------------------------
I/We confirm the duties of a real estate licensee of which has been presented
and explained to me/us.
My/Our representative's relationship is:
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx | Xxxx Xxxxxx
|
--------------------------------------------------------------------------------
|
Is the AGENT of | Is the AGENT of
|
[X] Seller/Landlord Exclusively (2) | [X] Buyer/Tenant Exclusively (3)
[ ] Buyer/Tenant Exclusively (3) | [ ] Seller/Landlord Exclusively (2)
[ ] Both Buyer/Tenant and | [ ] Both Buyer/Tenant and
Seller/Landlord (1) | Seller/Landlord (1)
|
--------------------------------------------------------------------------------
(1) IF LICENSEE IS ACTING FOR MORE THAN ONE PARTY IN THIS TRANSACTION, you will
be provided a Consent to Act form for your review, consideration and
approval or rejection. A licensee can legally represent both the
Seller/Landlord and Buyer/Tenant in a transaction, but ONLY with the
knowledge and written consent of BOTH the Seller/Landlord and Buyer/Tenant.
(2) A licensee who is acting for the Seller/Landlord exclusively, is not
representing the Buyer/Tenant and has no duty to advocate or negotiate for
the Buyer/Tenant.
(3) A licensee who is acting for the Buyer/Tenant exclusively, is not
representing the Seller/Landlord and has not duty to advocate or negotiate
for the Seller/Landlord.
--------------------------------------------------------------------------------
LAS VEGAS VALLEY COMMERCIAL BROKERS, LLC | TRU-WEST REALTY INC.
|
------------------------------------- | -----------------------------
Seller's/Landlord's Company | Buyer/Tenant's Company
|
by /s/ Xxxxxxx Xxxxxx | by
------------------------------------- | -----------------------------
Licensed Real Estate Agent | Licensed Real Estate Agent
7-1-03 11:00 am |
------------- ----------------- | ------------- --------------
Date Time | Date Time
--------------------------------------------------------------------------------
/s/ illegible /s/ illegible
--------------------------------------- -----------------------------------
Seller/Landlord Buyer/Tenant
9 July 03 09 20
----------------- -------------------- ------------- -------------------
Date Time Date Time
Page 37 of 41 Revised on 7/1/03
EXHIBIT K
---------
OPTIONS TO RENEW
As further consideration for Tenant'S performance of all obligations hereunder,
Tenant shall have the option to renew this Lease for one or more of the Renewal
Terms specified in Section 1.1(j) and 3.1 (c) of the Lease, upon the same terms
and conditions of the Lease except as herein set forth, provided the following
conditions are satisfied ("Option to Renew"):
A. The option for each Renewal Term is exercised by the Tenant. Tenant can only
assign this Lease and each option for each Renewal Term upon the conditions set
forth in Article 26 of the Lease
B. Tenant is not then in default, and has not been in default of any obligation,
covenant or provision of this Lease for a period of twenty-four (24) months
xxxxx to the exercise of each option for each renewal term.
C. Tenant shall have given Landlord written notice of Tenant's election to
exercise each option at least one hundred eighty (180) days prior to the
expiration of the current term of this Lease. Only one option may be exercised
at a time in this fashion. No Renewal Term shall become effective
(notwithstanding when Tenant exercises the option for such Renewal Term), if
Tenant is in default of any of the terms or conditions of the Lease and has not
used due diligence to correct any default in the time period covered.
D. The renewal of this Lease pursuant to each option shall not carry with it any
xxxxxx right or option to renew this Lease.
E. Tenant shall have the option to extend this Lease for only two (2)
consecutive terms of three (3) years each and Renewal Term shall commence
immediately following the expiration of the previous term hereof. Each year of
the Renewal Term shall be on the same terms, conditions and covenants as
provided for herein as to the Initial Term except that the minimum rent payable
during such Renewal Term shall be at the existing Fair Market Rate of comparable
space as of the date of renewal (but not less than the minimum rent, including
adjustments thereto, payable with respect to the final year of the immediately
preceding term). Failure by Tenant to notify Landlord of Tenant's election to
exercise any renewal option herein granted within the time limits set forth for
each exercise shall constitute a waiver of such option.
F. The Minimum Rent for the option period is stated in Section 3.1 (c) of this
Lease.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 38 of 4l Revised 7/1/03
EXHIBIT L
---------
NOTICE OF NONRERPONSIBILITY
---------------------------
(NRS 108.234)
DURANGO COURTYARDS
------------------
NOTICE IS HEREBY GIVEN THAT:
1. Durango Trop, LLC, a Nevada limited liability company is the owner of certain
property located on the County of Xxxxx, State of Nevada, described as follows:
0000 X. Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (Suite # to be
verified upon issue of building permits) (AMERICAN VANTAGE COMPANIES, Tenant)
2. The owner has obtained knowledge of construction, alteration or repair of the
real property described herein.
3. Three (3) days have not elapsed since the owner obtained this knowledge.
4. The owner will not be responsible for the Improvement, alteration or repair
or for the materials or labor used or to be used on said building or land upon
which it is situated.
Durango Trop, LLC
a Nevada limited liability company
BY: /s/ XXXXXX XXX
-------------------------------
FOR: GREAT AMERICAN HOMES
ITS: MANAGING MEMBER
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
XXXXXX XXX, being duly sworn, deposes and says;
That he is the owner of the real property described herein; that he has xxxx
the foregoing Notice of NonResponsibility, knows the contents thereof and
states that the same is true of his own knowledge, except for those matters
therein contained stated upon information and belief, and as to those
matters, he believes them to be true.
Durango Trop, LLC
a Nevada limited liability company
BY: /s/ XXXXXX XXX
-------------------------------
FOR: GREAT AMERICAN HOMES
ITS: MANAGING MEMBER
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
On ________ before me, the undersigned, a Notary Public in and for said County
and State, potentially appeared XXXXXX XXX, known to me to be the person
described in and who executed the foregoing instrument, who acknowledged to me
that he executed the same freely and voluntarily and for the uses and purposes
therein mentioned.
WITNESS my hand and official seal.
-----------------------------
NOTARY PUBLIC
When recorded return to:
Great American Capital
0000 X. Xxxxxx Xxxxxx, Xxx. 000
Xxx Xxxxx, XX, 00000-0000
Page 39 of 41 Revised 7/1/03
EXHIBIT M
---------
STOREFRONT SIGN INSTALLATION AGREEMENT / CONTRACTOR ATTACHMENT
QUALIFICATION LIST FOR SIGNAGE COMPANIES
Date:_________________
Project Name: DURANGO COURTYARDS Tenant Unit #:______________
Tenant Name: American Vantage Companies Contact:____________________
Sign Company: ____________________ Representative: _____________
1) Sign installer and sign company shall protect all stucco surfaces (including,
but not limited to: walls, soffits, popouts, and any other architectural
details) during signage installation from any scratching, denting, pressure
marks, paint damage, or my other damage to finished surfaces.
2) Installer is aware of the fact that the popout details on the buildings are
of foam based material, covered with a thin layer of stucco. These pop-outs are
soft and therefore can be damaged easily. Extra care shall be taken by the
installer to proteet these surfaces. As an example, NO LADDERS SHALL BE PLACED
AGAINST THESE SURFACES and these are NOT in my way capable of supporting a human
body.
3) While drilling ANY surface on the building, installer and Sign Company are
responsible to clean ANY AND ALL leftover drilling dust and debris. All areas on
the building where drilling occurs, shall be brushed clean and WASHED with
plenty of water as not to leave my water and dust marks anywhere (including all
shelves, windowsills, floors, pop-outs and architectural details, etc.)
4) Installer is aware to the fact that the interlocking paver bricks ("pavers"),
which are used on the ground, are an expensive finished surface. This surface
MUST be protected during sign installation. These pavers DO NOT have the same
cleaning abilities as concrete and are very difficult to maintain and keep
clean. It is the responsibility of the sign installer to keep the pavers clean
and protected during installation; whereas said contractor will be held liable
for any damages therein.
5) Sign company shall not fabricate and/or install any signs without prior
written approval from Great American Capital ("GAC"). Two COLOR copies shall be
submitted with my proposal as per samples available from our offices. Any
questions should be directed to Xxxxxxxx Xxxxxxx at 000-000-0000, x 233.
6) Sign company is aware of the fact that Great American Capital does not allow
start and stop or any other partial installation. Sign Company, after approval
from developer, shall fabricate the sign and ONLY after the sign is completely
fabricated and ready it will be installed on-site. No partial signs will be
allowed to be installed. Sign Company must provide an installation commencement
date in order for GAC to monitor installation.
7) Sign Company shall tender a deposit with Great American Capital before any
approvals will be given. Deposit will be held by Great American Capital until
the sign installation is completed, then checked and approved by a
representative of GAC. All damage to any structures or the surrounding area
shall be deducted from said deposit. Such deposit will be calculated on a per
square foot basis according to the size of the store at $0.50 per square foot.
However, any spaces exceeding 8,000 square feet will have a fixed deposit amount
of $3,000.00.
8) Only licensed and insured sign companies will be allowed to work on GAC's
developments. It is the Tenant's responsibility to verify those stipulations and
enforce this requirement.
THESE TERMS ARE NON-NEGOTIABLE
AGREED AND ACCEPTED:
Signature of Tenant: ______________________ Dated: ____________
Print Name: _______________________
Name of Business:__________________
Signature of Sign Company Rep: _________________ Dated:
Print Name: __________________________
Name of Business: _____________________
Page 40 of 41 Revised 7/1/03
EXHIBIT N
STANDARD PROCEDURE FOR DISTRIBUTION OF TENANT IMPROVEMENT ALLOWANCE
The following procedure in the standard procedure employed by Great American
Capital to disburse any Tenant Improvement Allowance specified within lease
documents.
Alternative I
Great American Capital will make a lump sum payment directly to the Tenant
for the full amount of the Tenant Improvement Allowance. In order to qualify for
this Alternative, the following items must be accomplished:
Created on 7/11/2003 8:57 AM
1. The Tenant Improvements must be 100% completed said signed off by the
appropriate building departments.
2. GAC must be provided with Unconditional Lien releases from the General
Contractor and his Sub-contractors and material suppliers indicating
that they have received payment in full and that there are no
outstanding balances due or open/contested/retention items
outstanding.
3. Upon receipt of all the appropriate paperwork, GAC will release the
funds within a week to 10 days.
Alternative II
Great American Capitol will make progress payments during the course of the
build-out of the Tenant Improvements. This alternative will work as follows:
1. GAC will make pro-rata payments to the General Contractor as the work
progress in accordance with the percentage that the Tenant Improvement
Allowance has to the total Tenant Improvement Contract. For example:
Assuming the total cost of the Tenant improvement contract is
$200,000.00, and GAC is obligated to provide a $100,000.00 Tenant
Improvement allowance, for each draw submitted by the General
Contractor to the Tenant, GAC will fund 50% and the Tenant will fund
50%.
2. The following paperwork must be submitted to GAC prior to the first
draw request:
a. Copy of the executed contract for the Tenant Improvement
allowance between the Tenant and General Contractor (Contract
must contain a line item cost breakdown).
b. Copy of the General Contractors SIIS Insurance and Liability
Insurance naming the Landlord is additional insured.
3. The following paperwork must accompany each draw request to GAC which
an be submitted no morn than twice monthly.
a. Copy of the General Contractors draw request to the Tenant,
approved for payment by the Tenant (each draw request must
contain the line item cost breakdown indicating from which line
and in what amount the draw request pertains accompanied by
subcontractor invoices in support of request).
b. Conditional releases from the General Contractor and the
subcontractors/material suppliers performing the work for which
payment is being requested.
c. Each subsequent draw request must contain Unconditional Lien
releases showing that the Conditional Lien releases submitted
with the prior draw were paid in full.
d. The Lien releases accompanying the final draw request must state
"Conditional or Unconditional" upon final payment.
e. Any additional Information/documentation that CAC may reasonably
request. Upon receipt of the required information/documentation,
GAC will request and make payment within a week to 10 days.
"Landlord": "Tenant"
DURANGO TROP L.L.C. AMERICAN VANTAGE COMPANIES
a Nevada limited liability company a Nevada corporation
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------- ---------------------------
Print Name: Xxxxxx Xxx Print Name: Xxxxxx X. Xxxxxxxxx
Title: V.P. GREAT AMERICAN HOMES ITS MGR. Title: CEO & President
Page 41 of 41 Revised 7/1/03
