EXHIBIT 10.2
LEASE AGREEMENT
(Net)
THIS LEASE AGREEMENT ("LEASE") is made between Xxxxxxx Airport Business Center,
LLC, a Delaware limited liability company ("LANDLORD"), and VM Direct, LLC, a
Nevada limited liability company ("TENANT"), as of September 15, 2005 (the "DATE
OF THIS LEASE").
BASIC LEASE INFORMATION
DESCRIPTION OF PREMISES: 0000 Xxxxxxx Xxxx, Xxxxx 00-X, Xxx Xxxxx, Xxxxxx 00000,
(the PREMISES as shown on EXHIBIT A), consisting of approximately 749 square
feet within Building I (the "BUILDING") of Landlord's multi-tenant development
known as Xxxxxxx Airport Business Center (the "PROJECT"). "Tenant's
Proportionate Share" (a) of the Building is 1.922% and/or (b) of the Project is
0.677%.
PERMITTED USE: Tenant shall utilize the Premises for warehousing of a computer
server for an Internet marketing company focused on the use of streaming media
and for no other purpose.
INITIAL LEASE TERM: Seventeen (17) months EARLY OCCUPANCY DATA: N/A
SCHEDULED COMMENCEMENT DATE: September 1, 2005 SCHEDULED EXPIRATION DATE:
January 31, 2007
BASE RENT, OPERATING EXPENSES AND SECURITY DEPOSIT:
(a) Base Rent due pursuant to Paragraph 3:
September 1, 2005 through August 31, 2006 $412.00 per month
September 1, 2006 through January 31, 2007 $428.00 per month
(b) Tenant's Proportionate Share Estimated Operating Expenses pursuant to
Paragraph 4.2: $150.00 per month
(c) Security Deposit pursuant to Paragraph 6: $428.00
(d) Monthly HVAC Service Charge pursuant to Paragraph 7.1.2: $00.00 per
month
NOTICE NOTICE TO LANDLORD: NOTICE TO TENANT:
ADDRESSES: Xxxxxxx Airport Commerce Center, LLC VM Direct, LLC
0000 Xxxxx Xxxxxx Xxxx Xxxx., Xxxxx X-000 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
Attn: Property Manager Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
BILLING AND LOCKBOX REMITTANCE TO LANDLORD: BILLING TO TENANT:
PAYMENT Xxxxxxx Airport Center VM Direct, LLC
ADDRESSES: Unit No. 73 3035 E. Xxxxxxx Xxxx, Xxxxx 0-00
X X Xxx 0000 Xxx Xxxxx, Xxxxxx 00000
Xxxxxxxx, Xxxxxx 00000- 5000 Attn: Xxxxx Xxxxxx Fax:(000)000-0000
TENANT'S TAXPAYER ID #: 00-0000000
GUARANTOR: NONE (If any, see EXHIBIT G)
TENANT CONTACT: Xxxxx Xxxxxx Telephone: (000) 000-0000 Fax: (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting of
the foregoing Basic Lease Information, the following PARAGRAPHS 1 THROUGH 29
(the "STANDARD LEASE PROVISIONS") and EXHIBITS A (PREMISES/PROJECT), B
(INSURANCE), C (SIGNAGE CRITERIA), D (INTENTIONALLY OMITTED), E (RULES &
REGULATIONS) F (INTENTIONALLY OMITTED) and G (INTENTIONALLY OMITTED) all of
which are incorporated herein by this reference (collectively, this "LEASE"). In
the event of any conflict between the provisions of the Basic Lease Information
and the provisions of the Standard Lease Provisions, the Standard Lease
Provisions shall control.
LANDLORD TENANT
Xxxxxxx Airport Business Center, LLC, a VM Direct, a Nevada limited
Delaware limited liability company liability company
By: Xxxxxx Investment Properties By: /s/ Xxx Xxxxx
Managements, LLC -------------------------------
Its Manager Xxx Xxxxx
President
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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STANDARD LEASE PROVISIONS
(NET)
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, subject to the following terms and conditions, the
Premises located in the Project and described in the Basic Lease
Information and shown on the attached Exhibit A. Landlord reserves the
right to make such changes, additions and/or deletions to the Project
and/or the common areas and parking or other facilities thereof as it
shall determine from time to time.
2. TERM.
2.1. Unless delayed or sooner terminated in accordance herewith,
the term of this Lease (the "TERM") shall be as set forth in
the Basic Lease Information. If the Term Commencement Date
(defined below) is not the first day of a calendar month,
there shall be added to the Term the partial month ("PARTIAL
LEASE MONTH") from the Term Commencement Date through the last
day of that calendar month containing the Term Commencement
Date.
2.2. The Term shall commence as specified in the Basic Lease
Information on the Scheduled Term Commencement Date unless the
Landlord has not delivered the Premises to Tenant by that
date. In the latter event, the Term Commencement Date shall be
the earlier of the date Landlord delivers the Premises to
Tenant or the date Tenant takes possession or commences use of
any portion of the Premises for any business purpose
(including moving in). If this Lease contemplates the
construction of tenant improvements in the Premises by
Landlord, Landlord shall be deemed to have delivered the
Premises to Tenant on the date determined by Landlord's space
planner to be the date of substantial completion of the work
to be performed by Landlord (as described in the Tenant
Improvement Agreement, if any, attached hereto as EXHIBIT D).
Tenant acknowledges that Tenant has inspected and accepts the
Premises in their present condition, "AS-IS" (WITH ALL
FAULTS), except for tenant improvements (if any) to be
constructed by Landlord in the Premises.
2.3. This Lease shall be a binding contractual obligation upon
execution and delivery hereof by Landlord and Tenant,
notwithstanding the later commencement of the Term. If the
Term Commencement Date is delayed, this Lease shall not be
void or voidable, the Term shall not be extended (except as
provided in Paragraphs 2.1 & 2.2, and Landlord shall not be
liable to Tenant for any loss or damage resulting therefrom;
provided that Tenant shall not be liable for any Rent (defined
below) for any period prior to the Term Commencement Date.
2.4. Upon full execution and delivery of this Lease and receipt by
Landlord of satisfactory evidence of Tenant's compliance with
the insurance provisions of the Lease, Tenant may be permitted
to occupy the Premises prior to the Term Commencement Date to
install furniture, fixtures and the like. Early occupancy
shall not advance the expiration date of the Lease and no Base
Rent shall be payable, but Tenant shall be responsible for any
separately metered utility usage and bound by all other
provisions of the Lease, including, without limitation,
Additional Rent (defined below). During any early occupancy or
other period in which Landlord and Tenant are simultaneously
occupying and/or performing work in the Premises, Landlord's
construction supervisor shall be authorized to resolve any
conflicts as to scheduling, access or the like.
3. RENT; PAYMENT OF ADDITIONAL RENT; OPERATING EXPENSES.
3.1. Subject to the provisions of this Paragraph 3, Tenant agrees
to pay during the Term as rent for the Premises the sums
specified in the Basic Lease Information (as increased from
time to time as provided in the Basic Lease Information or as
may otherwise be provided in this Lease) (the "BASE RENT").
Base Rent shall be payable in consecutive monthly
installments, in advance, without prior notice, demand,
deduction or offset, commencing on the Term Commencement Date
and continuing on the first day of each calendar month
thereafter, except that the first full monthly installment of
Base Rent shall be payable upon Tenant's execution of this
Lease. If the Term Commencement Date is not the first day of a
calendar month, then the Base Rent for the Partial Lease Month
shall be prorated based on a 30-day month and shall be payable
on the first day of the calendar month following the Term
Commencement Date.
3.2. All monies to be paid by Tenant hereunder, including Tenant's
Proportionate Share of Operating Expenses as specified in
Paragraph 4 (estimated and/or revised), and all other amounts,
fees, payments or charges payable hereunder by Tenant
(collectively, "ADDITIONAL RENT"), together with Base Rent,
shall (i) each constitute rent payable hereunder (and shall
sometimes collectively be referred to herein as "RENT"), (ii)
be payable to Landlord in lawful money of the United States
when due without any prior demand therefor, except as may be
expressly provided to the contrary herein, (iii) be payable to
Landlord at Landlord's Remittance Address set forth in the
Basic Lease Information or to such other person or to such
other place as Landlord may from time to time designate in
writing to Tenant, and (iv) if applicable, be prorated based
upon a 30 day month for any partial month.
4. OPERATING EXPENSES.
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4.1. OPERATING EXPENSES. In addition to the Base Rent required to
be paid hereunder, Tenant shall pay as Additional Rent,
Tenant's Proportionate Share of the Building and/or Project
(as applicable), as defined in the Basic Lease Information, of
Operating Expenses (defined below) in the manner set forth
below. Landlord and Tenant acknowledge that if the number of
buildings which constitute the Project increases or decreases,
or if physical changes are made to the Premises, Building
and/or Project or the configuration of any thereof, Landlord
may at its discretion reasonably adjust Tenant's Proportionate
Share of the Building and/or Project to reflect the change.
Landlord's determination of Tenant's Proportionate Share of
the Building and/or Project shall be conclusive absent
manifest error. "Operating Expenses" shall mean all expenses
and costs of every kind and nature which Landlord shall pay or
become obligated to pay, because of or in connection with the
ownership, management, maintenance, repair, preservation,
replacement and operation of the Building and/or Project and
its supporting facilities and such additional facilities now
and in subsequent years as may be determined by Landlord to be
necessary or desirable to the Building and/or Project (as
determined in a reasonable manner) other than those expenses
and costs which are specifically attributable to Tenant or
which are expressly made the financial responsibility of
Landlord or specific tenants of the Building or Project
pursuant to this Lease. Operating Expenses shall include, but
are not limited to, the following:
4.1.1. TAXES. All real property taxes and assessments,
possessory interest taxes, sales taxes, personal
property taxes, business or license taxes or fees,
gross receipts taxes, service payments in lieu of
such taxes or fees, annual or periodic license or use
fees, excises, transit charges, and other
impositions, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any
kind (including fees "in-lieu" of any such tax or
assessment) which are now or hereafter assessed,
levied, charged, confirmed, or imposed by any public
authority upon the Landlord, Building, or the
Project, its operations or the Rent (or any portion
or component thereof), or any tax, assessment or fee
imposed in substitution, partially or totally, of any
of the above. Operating Expenses shall also include
any taxes, assessments, reassessments, or other fees
or impositions with respect to the development,
leasing, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises, Building
or Project or any portion thereof, including, without
limitation, by or for Tenant, and all increases
therein or reassessments thereof whether the
increases or reassessments result from increased rate
and/or valuation (whether upon a transfer of the
Building or Project or any portion thereof or any
interest therein or for any other reason). Operating
Expenses shall not include inheritance or estate
taxes imposed upon or assessed against the interest
of any person in the Project, or taxes computed upon
the basis of the net income of any owners of any
interest in the Project. If it shall not be lawful
for Tenant to reimburse Landlord for all or any part
of such taxes, the monthly rental payable to Landlord
under this Lease shall be revised to net Landlord the
same net rental after imposition of any such taxes by
Landlord as would have been payable to Landlord prior
to the payment of any such taxes.
4.1.2. Insurance. All insurance premiums and costs,
including, but not limited to, any deductible
amounts, premiums and other costs of insurance
incurred by Landlord, including for the insurance
coverage required under Paragraph 11.1 herein.
4.1.3. Common Area Maintenance.
4.1.3.1. Repairs, replacements, and general
maintenance of and for the Building and
Project and public and common areas and
facilities of and comprising the Building
and Project, including, but not limited to,
the roof and roof membrane, elevators,
mechanical rooms, alarm systems, pest
extermination, landscaped areas, parking and
service areas, driveways, sidewalks, truck
staging areas, rail spur areas, fire
sprinkler systems, sanitary and storm sewer
lines, utility services,
heating/ventilation/air conditioning
systems, electrical, mechanical or other
systems, telephone equipment and wiring
servicing, plumbing, lighting, and any other
items or areas which affect the operation or
appearance of the Building or Project, which
determination shall be at Landlord's
discretion, except for: those items to the
extent paid for by the proceeds of
insurance; and those items attributable
solely or jointly to specific tenants of the
Building or Project.
4.1.3.2. Repairs, replacements, and general
maintenance shall include the cost of any
improvements made to or assets acquired for
the Project or Building that in Landlord's
discretion may reduce any other Operating
Expenses, including present or future repair
work, are reasonably necessary for the
health and safety of the occupants of the
Building or Project, or for the operation of
the Building systems, services and
equipment, or are required to comply with
any Regulation, such costs or allocable
portions thereof to be amortized over such
reasonable period as Landlord shall
determine, together with interest on the
unamortized balance.
4.1.3.3. Payment under or for any casement, license,
permit, operating agreement, declaration,
restrictive covenant or instrument relating
to the Building or Project.
4.1.3.4. All expenses and rental related to services
and costs of supplies, materials and
equipment used in operating, managing and
maintaining the Premises, Building and
Project, the equipment therein and the
adjacent sidewalks, driveways, parking and
service areas, including, without
limitation, expenses related to service
agreements regarding security, fire and
other alarm systems, janitorial services to
the extent not furnished by Tenant under
Paragraph 7.2 hereof, window cleaning,
elevator maintenance, Building exterior
maintenance, landscaping and expenses
related to the administration, management
and operation of the Project.
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4.1.3.5. The cost of supplying any services and
utilities which benefit all or a portion of
the Premises, Building or Project to the
extent not furnished by Tenant under
Paragraph 7.2 hereof.
4.1.3.6. Legal expenses and the cost of audits by
certified public accountants; provided,
however, that legal expenses chargeable as
Operating Expenses shall not include the
cost of negotiating leases, collecting
rents, evicting tenants nor shall it include
costs incurred in legal proceedings with or
against any tenant or to enforce the
provisions of any lease.
4.1.3.7. A management fee equal to five percent (5%)
of the sum of the Landlord's effective gross
income from the Project which consists of
the gross rents charged the tenants of the
Project plus expense reimbursements and
other operating income.
If the rentable area of the Building and/or Project is not fully occupied during
any calendar year of the Term as determined by Landlord, an adjustment shall be
made in Landlord's discretion in computing the Operating Expenses for such year
so that Tenant pays an equitable portion of all variable items (e.g., utilities,
janitorial services and other component expenses that are affected by variations
in occupancy levels) of Operating Expenses, as reasonably determined by
Landlord; provided, however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the total variable Operating
Expenses from all of the tenants in the Building or Project, as the case may be.
The above enumeration of services and facilities shall not be deemed to impose
an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same. Without
limiting the generality of the foregoing, Tenant acknowledges and agrees that it
shall be responsible for providing adequate security for its use of the
Premises, the Building and the Project and that Landlord shall have no
obligation or liability with respect thereto, except to the extent if any that
Landlord has specifically agreed elsewhere in this Lease to provide the same.
4.2. PAYMENT OF ESTIMATED OPERATING EXPENSES. "ESTIMATED OPERATING
EXPENSES" for any particular year shall mean Landlord's
estimate of the Operating Expenses for such calendar year.
During the last month of each calendar year during the Term,
or as soon thereafter as practicable, Landlord shall give
Tenant written notice of the Estimated Operating Expenses for
the ensuing calendar year. Tenant shall pay Tenant's
Proportionate Share of the Estimated Operating Expenses with
installments of Base Rent for the calendar year to which the
Estimated Operating Expenses applies in monthly installments
on the first day of each calendar month during such year, in
advance, prorated for any partial month, if applicable. If at
any time during the course of the calendar year, Landlord
determines that Operating Expenses are projected to vary from
the then Estimated Operating Expenses by more than five
percent (5%), Landlord may, by written notice to Tenant,
revise the Estimated Operating Expenses for the balance of
such calendar year, and Tenant's monthly installments for the
remainder of such year shall be adjusted so that by the end of
such calendar year Tenant has paid to Landlord Tenant's
Proportionate Share of the revised Estimated Operating
Expenses for such year.
4.3. COMPUTATION OF OPERATING EXPENSE ADJUSTMENT. "OPERATING
EXPENSE ADJUSTMENT" shall mean the difference between
Estimated Operating Expenses and actual Operating Expenses for
any calendar year determined as hereinafter provided. Within
one hundred twenty (120) days after the end of each calendar
year, or as soon thereafter as practicable, Landlord shall
deliver to Tenant a statement of actual Operating Expenses for
the calendar year just ended, accompanied by a computation of
Operating Expense Adjustment. If such statement shows that
Tenant's payment based upon Estimated Operating Expenses is
less than Tenant's Proportionate Share of Operating Expenses,
then Tenant shall pay to Landlord the difference within twenty
(20) days after receipt of such statement. If such statement
shows that Tenant's payments of Estimated Operating Expenses
exceed Tenant's Proportionate Share of Operating Expenses,
then (provided that Tenant is not in default under this Lease)
Landlord shall pay to Tenant the difference within twenty (20)
days after delivery of such statement to Tenant. If this Lease
has been terminated or the Term hereof has expired prior to
the date of such statement, then the Operating Expense
Adjustment shall be paid by the appropriate party within
twenty (20) days after the date of delivery of the statement.
Tenant's Proportionate Share of the Operating Expense
Adjustment shall be prorated based on a month of 30 days and
the number of calendar months during such calendar year that
this Lease is in effect. Notwithstanding anything to the
contrary contained in Paragraph 4.1 or 4.2, Landlord's failure
to provide any notices or statements within the time periods
specified in those paragraphs shall in no way excuse Tenant
from its obligation to pay Tenant's Proportionate Share of
Operating Expenses.
4.4. NET LEASE. This shall be a net Lease and Base Rent shall be
paid to Landlord net of all costs and expenses, except as
specifically provided to the contrary in this Lease. The
provisions for payment of Operating Expenses and the Operating
Expense Adjustment are intended to pass on to Tenant and
reimburse Landlord for all costs and expenses of the nature
described in Paragraph 4.1. incurred in connection with the
ownership, management, maintenance, repair, preservation,
replacement and operation of the Building and/or Project and
its supporting facilities and such additional facilities now
and in subsequent years as may be determined by Landlord to be
necessary or desirable to the Building and/or Project.
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4.5. TENANT AUDIT. If Tenant shall dispute the amount set forth in
any statement provided by Landlord under Paragraph 4.3 above,
Tenant shall have the right, not later than twenty (20) days
following receipt of such statement and upon the condition
that Tenant shall first deposit with Landlord the full amount
in dispute, to cause Landlord's books and records with respect
to Operating Expenses for such calendar year to be audited by
certified public accountants selected by Tenant and subject to
Landlord's reasonable right of approval. The Operating Expense
Adjustment shall be appropriately adjusted on the basis of
such audit. If such audit discloses a liability for a refund
in excess often percent (10%) of Tenant's Proportionate Share
of the Operating Expenses previously reported, the cost of
such audit shall be borne by Landlord; otherwise the cost of
such audit shall be paid by Tenant. If Tenant shall not
request an audit in accordance with the provisions of this
Paragraph 4.5 within twenty (20) days after receipt of
Landlord's statement provided pursuant to Paragraph 4.3, such
statement shall be final and binding for all purposes hereof.
Tenant acknowledges and agrees that any information revealed
in the above described audit may contain proprietary and
sensitive information and that significant damage could result
to Landlord if such information were disclosed to any party
other than Tenant's auditors. Tenant shall not in any manner
disclose, provide or make available any information revealed
by the audit to any person or entity without Landlord's prior
written consent, which consent may be withheld by Landlord in
its sole and absolute discretion. The information disclosed by
the audit will be used by Tenant solely for the purpose of
evaluating Landlord's books and records in connection with
this Paragraph 4.5.
5. DELINQUENT PAYMENT; HANDLING CHARGES. If Tenant is more than ten (10)
days late in paying any amount of Rent, Tenant shall pay Landlord a
late charge equal to ten percent (10%) of the delinquent amount. In
addition, any amount due from Tenant to Landlord which is not paid
within ten (10) days of the date due shall bear interest at an annual
rate (the "Default Rate") equal to fifteen percent (15%).
6. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall pay to
Landlord the amount of Security Deposit specified in the Basic Lease
Information. If Tenant defaults with respect to any provision of this
Lease, Landlord may, but shall not be required to, use, apply or retain
all or any part of the Security Deposit. If any portion of the Security
Deposit is so used or applied, Tenant shall, within ten (10) days after
demand therefor by Landlord, deposit with Landlord cash in an amount
sufficient to restore the Security Deposit to the amount required to be
maintained by Tenant hereunder. Anytime the Base Rent increases during
the term of this Lease, Tenant shall, upon written request from
Landlord, deposit additional monies with Landlord sufficient to
maintain the same ratio between the Security Deposit and the Base Rent
as those amounts are specified in the Basic Lease Information. Within a
reasonable period following expiration or the sooner termination of
this Lease, provided that Tenant has performed all of its obligations
hereunder, Landlord shall return to Tenant the remaining portion of the
Security Deposit. The Security Deposit may be commingled by Landlord
with Landlord's other funds, and no interest shall be paid thereon.
7. REPAIRS AND MAINTENANCE.
7.1. LANDLORD'S OBLIGATIONS
7.1.1. Landlord shall, subject to reimbursement under
Paragraph 4, maintain in good repair, reasonable wear
and tear excepted, the structural soundness of the
roof, foundations, and exterior walls of the Building
together with the common areas and other equipment
used in common by tenants in the Project. The term
"exterior walls" as used herein shall not include
windows, glass or plate glass, doors, dock bumpers or
dock plates, special store fronts or office entries.
Any damage caused by or repairs necessitated by any
negligence or act of Tenant, including, without
limitation, any contractor, employee, agent, invitee
or visitor of Tenant (each, a "TENANT PARTY") may be
repaired by Landlord at Landlord's option and
Tenant's expense. Tenant shall immediately give
Landlord written notice of any defect or need of
repairs in such components of the Building for which
Landlord is responsible, after which Landlord shall
have a reasonable opportunity and the right to enter
the Premises at all reasonable times to repair same.
Landlord's liability with respect to any defects,
repairs, or maintenance for which Landlord is
responsible under any of the provisions of this Lease
shall be limited to the cost of such repairs or
maintenance, and there shall be no abatement of rent
and no liability of Landlord by reason of any injury
to or interference with Tenant's business arising
from the making of repairs, alterations or
improvements in or to any portion of the Premises,
the Building or the Project or to fixtures,
appurtenances or equipment in the Building, except as
provided in Paragraph 15. By taking possession of the
Premises, Tenant accepts them "as is," as being in
good order, condition and repair and the condition in
which Landlord is obligated to deliver them and
suitable for the Permitted Use and Tenant's intended
operations in the Premises, whether or not any notice
of acceptance is given.
7.1.2. At Tenant's expense, Landlord shall have
responsibility for the performance of preventive
maintenance, repair and replacement of the heating,
ventilation and air conditioning (HVAC) systems
serving the Premises. In addition to Base Rent,
Tenant shall pay a monthly HVAC Service Charge as set
forth in the Basic Lease Information, the amount of
which may be increased by Landlord no more frequently
than once per year. Alternatively, Landlord may, upon
notice to Tenant, require Tenant to obtain a
regularly scheduled preventative maintenance/service
contract at Tenant's own expense and in such event
both the maintenance contractor and the contract must
be approved by Landlord. Any service contract
obtained by Tenant must include all services
suggested by the equipment manufacturer within the
operation/maintenance manual and must become
effective and a copy thereof delivered to Landlord no
later than the date specified by Landlord.
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7.2. TENANT'S OBLIGATIONS.
7.2.1. Tenant shall (to the extent possible) contract for
and pay directly when due for all gas, heat, air
conditioning, light, power, telephone and data,
sprinkler charges, cleaning, waste disposal in excess
of that provided by Landlord, and other utilities and
services (the "Services") used on or from the
Premises, together with any taxes (other than real
estate taxes), penalties, surcharges or the like
pertaining thereto. If any such Services are not
separately billed or metered to Tenant, Tenant shall
pay an equitable share, as determined in good faith
by Landlord, of all charges jointly billed or metered
with other premises in the Project. Tenant shall also
be responsible and pay for any personal property,
sales, use or income taxes associated with Tenant's
use or occupancy of the Premises, insurance required
to be carried by Tenant under the Lease, and Tenant's
repair and maintenance duties under the Lease.
7.2.2. Tenant shall at all times during the Term at Tenant's
expense maintain all parts of the Premises and such
portions of the Building as are within the exclusive
control of Tenant in a good, clean and secure
condition and promptly make all necessary repairs and
replacements, as determined by Landlord, including
but not limited to, all windows, glass, doors, walls,
including demising walls, and wall finishes, floors
and floor covering, heating, ventilating and air
conditioning systems, ceiling insulation, truck
doors, hardware, dock bumpers, dock plates and
levelers, plumbing work and fixtures, downspouts,
entries, skylights, smoke hatches, roof vents,
electrical and lighting systems, and fire sprinklers,
with materials and workmanship of the same character,
kind and quality as the original. Tenant shall at
Tenant's expense also perform regular removal of
trash and debris. Notwithstanding anything to the
contrary contained herein, Tenant shall, at its
expense, promptly repair any damage to the Premises
or the Building or Project resulting from or caused
by any negligence or act of Tenant or Tenant's
Parties. Nothing herein shall expressly or by
implication render Tenant Landlord's agent or
contractor to effect any repairs or maintenance
required of Tenant under Paragraph 7.2, as to all of
which Tenant shall be solely responsible.
7.2.3. Tenant shall be responsible for and shall pay prior
to delinquency any taxes or governmental service
fees, possessory interest taxes, fees or charges in
lieu of any such taxes, capital levies, or other
charges imposed upon, levied with respect to or
assessed against its fixtures, furnishings,
equipment, personal property or its Alterations
(defined below), and on Tenant's interest pursuant to
this Lease, or any increase in any of the foregoing.
To the extent that any such taxes are not separately
assessed or billed to Tenant, Tenant shall pay the
amount thereof as invoiced to Tenant by Landlord.
8. IMPROVEMENTS, ALTERATIONS & MECHANIC'S LIENS.
8.1. IMPROVEMENTS; ALTERATIONS.
8.1.1. Tenant shall not make, or allow to be made, any
alterations, physical additions, improvements or
partitions, including without limitation the
attachment of any fixtures or equipment, in, about or
to the Premises ("ALTERATIONS") without obtaining the
prior written consent of Landlord, which consent
shall not be unreasonably withheld with respect to
proposed Alterations which: (1) comply with all
applicable Regulations; (2) are, in Landlord's
opinion, compatible with the Building or the Project
and its mechanical, plumbing, electrical,
heating/ventilation/air conditioning systems, and
will not cause the Building or Project or such
systems to be required to be modified to comply with
any Regulations (including, without limitation, the
Americans With Disabilities Act); and (3) will not
interfere with the use and occupancy of any other
portion of the Building or Project by any other
tenant or its invitees. Specifically, but without
limiting the generality of the foregoing, Landlord
shall have the right of written consent for all plans
and specifications for the proposed Alterations,
construction means and methods, all appropriate
permits and licenses, any contractor or subcontractor
to be employed on the work of Alterations, and the
time for performance of such work, and may impose
rules and regulations for contractors and
subcontractors performing such work. Tenant shall
also supply to Landlord any documents and information
reasonably requested by Landlord in connection with
Landlord's consideration of a request for approval
hereunder. Tenant shall cause all Alterations to be
accomplished in a good and workmanlike manner, and to
comply with all applicable Regulations. Tenant shall
at Tenant's sole expense, perform any additional work
required under applicable Regulations due to the
Alterations hereunder. No review or consent by
Landlord of or to any proposed Alteration or
additional work shall constitute a waiver of Tenant's
obligations under this Paragraph 8.1. Tenant shall
reimburse Landlord for all costs which Landlord may
incur in connection with granting approval to Tenant
for any such Alterations, including any costs or
expenses which Landlord may incur in electing to have
outside architects and engineers review said plans
and specifications. All such Alterations shall remain
the property of Tenant until the expiration or
earlier termination of this Lease, at which time they
shall be and become the property of Landlord;
provided, however, that Landlord may, at Landlord's
option, require that Tenant, at Tenant's expense,
remove any or all Alterations made by Tenant and
restore the Premises by the expiration or earlier
termination of this Lease, to their condition
existing prior to the construction of any such
Alterations. Ail such removals and restoration shall
be accomplished in a first-class and good and
workmanlike manner so as not to cause any damage to
the Premises or Project whatsoever. If Tenant fails
to remove such Alterations or Tenant's trade fixtures
or furniture or other personal property, Landlord may
keep and use them or remove any of them and cause
them to be stored or sold in accordance with
applicable law, at Tenant's sole expense.
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8.1.2. Notwithstanding the foregoing, at Landlord's option
(but without obligation), all or any portion of the
Alterations shall be performed by Landlord for
Tenant's account and Tenant shall pay Landlord's
estimate of the cost thereof (including a reasonable
charge for Landlord's overhead and profit) prior to
commencement of the work. In addition, at Landlord's
election and notwithstanding the foregoing, however,
Tenant shall pay to Landlord the cost of removing any
such Alterations and restoring the Premises to their
original condition such cost to include a reasonable
charge for Landlord's overhead and profit as provided
above, and such amount may be deducted from the
Security Deposit or any other sums or amounts held by
Landlord under this Lease.
8.1.3. At least ten (10) business days before beginning
construction of any Alteration, Tenant shall give
Landlord written notice of the expected commencement
date of that construction to permit Landlord to post
and record a notice of non-responsibility. Upon
substantial completion of construction, if the law so
provides, Tenant shall cause a timely notice of
completion to be recorded in the office of the
recorder of the county in which the Building is
located.
8.2. MECHANIC'S LIENS. Tenant shall not cause, suffer or permit any
mechanic's or materialman's lien or claim to be filed or
asserted against the Premises or the Project for any work
performed, materials furnished, or obligation incurred by or
at the request of Tenant or any Tenant Party.
9. USE.
9.1. PERMITTED USE. Tenant shall continuously occupy and use the
Premises only for the Permitted Use stated in the Basic Lease
Information (the "PERMITTED USE") and shall not create or
permit any nuisance or unreasonable interference with or
disturbance of any other tenants of Landlord. Tenant shall at
its sole cost and expense strictly comply with all existing or
future applicable governmental laws, rules, requirements and
regulations, and covenants, easements and restrictions of
record governing and relating to the use, occupancy or
possession of the Premises, or to Tenant's use of the common
areas together with all rules which may now or hereafter be
adopted by Landlord affecting the Premises and/or the common
areas (collectively "REGULATIONS"). Should any Regulation now
or hereafter be imposed on Tenant or Landlord by any
governmental body relating to the use or occupancy of the
Premises by Tenant or any Tenant Party, then Tenant agrees, at
its sole cost and expense, to comply promptly with such
Regulations.
9.2. HAZARDOUS MATERIALS. As used in this Lease, the term
"HAZARDOUS MATERIAL" means any flammable items, hazardous or
toxic substances, including any substances defined as or
included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials" or "toxic
substances" now or subsequently regulated under any applicable
federal, state or local laws or regulations, including without
limitation petroleum-based products, paints, pesticides,
asbestos, PCBs and similar compounds, and including any
materials subsequently found to have adverse effects on the
environment or the health and safety of persons. Tenant shall
not cause or permit any Hazardous Material to be generated,
produced, brought upon, used, stored, treated or disposed of
in or about the Property by Tenant or any Tenant Party without
the prior written consent of Landlord. Notwithstanding the
foregoing, Tenant may, without Landlord's prior written
consent but in compliance with all applicable laws and
Regulations, use any materials customarily used by occupants
of commercial office space, so long as such use docs not
expose the Premises, the Building or the Project to any
meaningful risk of contamination or damage or expose Landlord
to any liability therefore.
10. ASSIGNMENT AND SUBLETTING.
10.1. TRANSFERS; CONSENT. Tenant shall not, without the prior
written consent of Landlord, (a) assign, transfer, mortgage,
hypothecate, or encumber this Lease or any estate or interest
herein, whether directly, indirectly or by operation of law,
(b) permit any other entity to become a Tenant hereunder by
merger, consolidation, or other reorganization, (c) if Tenant
is a corporation, partnership, limited liability company,
limited liability partnership, trust, association or other
business entity (other than a corporation whose stock is
publicly traded), permit, directly or indirectly, the transfer
of any ownership interest in Tenant so as to result in (i) a
change in the current control of Tenant, (ii) a transfer of
twenty-five percent (25%) or more in the aggregate in any
twelve (12) month period in the beneficial ownership of such
entity or (iii) a transfer of all or substantially all of the
assets of Tenant, (d) sublet any portion of the Premises, or
(e) grant any license, concession, or other right of occupancy
of or with respect to any portion of the Premises, or (f)
permit the use of the Premises by any party other than Tenant
or a Tenant Party (each of the events listed in this Paragraph
9.1 being referred to herein as a "TRANSFER"). At least twenty
(20) business days prior to the effective date of any proposed
Transfer, Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed
Transfer and all consideration therefor, copies of the
proposed documentation, and such information as Landlord may
reasonably require. Any Transfer made without Landlord's
consent shall be void and shall constitute an Event of Default
by Tenant. Tenant shall pay to Landlord $500 as a review fee
for each Transfer request, and reimburse Landlord for its
reasonable attorneys' fees and all other costs incurred in
connection with considering any request for consent to a
proposed Transfer. Landlord's consent to a Transfer shall not
release Tenant from its obligations under this Lease (or any
guarantor of this Lease of its obligations with respect
thereto). Landlord's consent to any Transfer shall not waive
Landlord's rights as to any subsequent Transfers.
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10.2. CANCELLATION AND RECAPTURE. Notwithstanding Paragraph 10.1,
Landlord may (but shall not be obligated to), within ten (10)
business days after receipt of Tenant's written request for
Landlord's consent to an assignment or subletting, cancel this
Lease as to the portion of the Premises proposed to be sublet
or subject to an assignment of this Lease ("TRANSFER SPACE")
as of the date such proposed Transfer is proposed to be
effective and, thereafter, Landlord may lease such portion of
the Premises to the prospective transferee (or to any other
person or entity or not at all) without liability to Tenant.
11. INSURANCE. WAIVERS. SUBROGATION AND INDEMNITY.
11.1. INSURANCE. Each of Landlord and Tenant shall maintain
throughout the Term insurance policies as required on EXHIBIT
B attached hereto and shall otherwise comply with the
obligations and requirements provided on EXHIBIT B.
11.2. WAIVER OF SUBROGATION. Landlord and Tenant each waives any
claim, loss or cost it might have against the other for any
damage to or theft, destruction, loss, or loss of use of any
property (a "LOSS"), to the extent the same is insured against
(or is required to be insured against under the terms hereof)
under any "all risk" property damage insurance policy covering
the Building, the Project, the Premises, Landlord's or
Tenant's fixtures, personal property, leasehold improvements,
or business, regardless of whether the negligence of the other
party caused such Loss.
11.3. INDEMNITY. Subject to Paragraph 11.2, Tenant shall indemnify,
defend by counsel reasonably acceptable to Landlord, protect
and hold harmless Landlord and its affiliates, and each of
their respective directors, shareholders, partners, lenders,
members, managers, contractors, affiliates and employees
(collectively, "LANDLORD INDEMNITEES") from and against all
claims, losses, liabilities, causes of suit or action,
judgments, damages, penalties, costs and expenses (including,
without limitation, reasonable attorneys' fees, consultant's
fees, and court costs) arising from or asserted in connection
with the use or occupancy of the Premises, the Building or the
Project by Tenant or any Tenant Party, or any negligence or
misconduct or omissions of Tenant or of any Tenant Party in or
about the Premises or the Project, or Tenant's breach of any
of its covenants under this Lease, except in each case to the
extent arising from the gross negligence or willful misconduct
of Landlord or any Landlord Indemnitee. Except to the extent
expressly provided in this Lease, Tenant hereby waives all
claims against and releases Landlord and each Landlord
Indemnitee for any injury to or death of persons, damage to
property or business loss in any manner related to (i)
Tenant's use and occupancy of the Premises, the Building or
the Project by or from any cause whatsoever (other than
Landlord's gross negligence or willful misconduct), (ii) acts
of God, (iii) acts of third parties, or (iv) any matter
outside of the reasonable control of Landlord. This Paragraph
11.3 shall survive termination or expiration of this Lease.
12. SUBORDINATION; ATTORNMENT.
12.1. SUBORDINATION. This Lease is subject and subordinate to all
present and future ground or master leases of the Project and
to the lien of all mortgages or deeds of trust (collectively,
"SECURITY INSTRUMENTS") now or hereafter encumbering the
Project, if any, and to all renewals, extensions,
modifications, consolidations and replacements thereof, and to
all advances made or hereafter to be made upon the security of
any such Security Instruments, unless the holders of any such
mortgages or deeds of trust, or the lessors under such ground
or master leases (such holders and lessors are sometimes
collectively referred to herein as "HOLDERS") require in
writing that this Lease be superior thereto. Tenant shall,
within fifteen (15) days of request to do so by Landlord,
execute, acknowledge and deliver to Landlord such further
instruments or assurances as Landlord may deem necessary or
appropriate to evidence or confirm the subordination or
superiority of this Lease to any such Security Instrument.
12.2. ATTORNMENT. Tenant covenants and agrees that in the event that
any proceedings are brought for the foreclosure of any
mortgage or deed of trust, or if any ground or master lease is
terminated, it shall attorn, without any deductions or
set-offs whatsoever, to the purchaser upon any such
foreclosure sale, or to the lessor of such ground or master
lease, as the case may be, if so requested to do so by such
purchaser or lessor, and to recognize such purchaser or lessor
as "LANDLORD" under this Lease. In the event that the holder
of any such mortgage or deed of trust becomes the "Landlord"
under this Lease, such holder shall not be liable for any act
or omission of Landlord which occurred prior to such holder's
acquisition of title.
13. RULES AND REGULATIONS AND SIGNAGE. Tenant shall comply, and shall cause
each Tenant Party to comply, with the Rules and Regulations of the
Project which are attached hereto as EXHIBIT E and the signage criteria
which are attached hereto as EXHIBIT C and all such nondiscriminatory
modifications, additions, deletions and amendments thereto as Landlord
shall adopt in good faith from time to time.
14. CONDEMNATION. If the entire Project or Premises are taken by right of
eminent domain or conveyed by Landlord in lieu thereof (a "TAKING"),
this Lease shall terminate as of the date of the Taking. If any
material portion, but less than all of the Premises or the Building,
become subject to a Taking and such Taking will render the Premises
untenantable for a period of more than one hundred eighty (180) days,
then Tenant may terminate this Lease as of the date of such Taking by
giving written notice to Landlord within thirty (30) days after the
Taking, and all Rent paid or payable hereunder shall be apportioned
between Landlord and Tenant as of the date of such Taking. If any
material portion, but less than all, of the Project, Building or the
Premises becomes subject to a Taking, or if Landlord is required to pay
any of the proceeds received for a Taking to any Holder of any Security
Instrument, then Landlord may terminate this Lease by delivering
written notice thereof to Tenant within thirty
8
(30) days after such Taking, and all Rent paid or payable hereunder
shall be apportioned between Landlord and Tenant as of the date of such
Taking. If this Lease is not so terminated, then Base Rent thereafter
payable hereunder shall be abated for the duration of the Taking in
proportion to that portion of the Premises rendered untenantable by
such Taking. If any Taking occurs, then Landlord shall receive the
entire award or other compensation for the land on which the Project is
situated, the Project, and other improvements taken, and Tenant may
separately pursue a claim (to the extent it will not reduce Landlord's
award).
15. FIRE OR OTHER CASUALTY.
15.1. REPAIR ESTIMATE; RIGHT TO TERMINATE. If all or any portion of
the Premises or the Project is damaged by fire or other
casualty (a "CASUALTY"), Landlord shall, within ninety (90)
days after Landlord's discovery of such damage, deliver to
Tenant its good faith estimate (the "DAMAGE NOTICE") of the
time period following such notice needed to repair the damage
caused by such Casualty. Landlord may elect to terminate this
Lease in any case where (a) any portion of the Premises or any
material portion of the Project are damaged and (b) either (i)
Landlord estimates in good faith that the repair and
restoration of such damage under Paragraph 15.2
("Restoration") cannot reasonably be completed (without the
payment of overtime) within two hundred (200) days of
Landlord's actual discovery of such damage, (ii) the Holder of
any Security Instrument requires the application of any
insurance proceeds with respect to such Casualty to be applied
to the outstanding balance of the obligation secured by such
Security Instrument, (iii) the cost of such Restoration is not
fully covered by insurance proceeds available to Landlord
and/or payments received by Landlord from tenants, or (iv)
Tenant shall be entitled to an abatement of rent under this
Paragraph 15 for any period of time in excess of thirty-three
percent (33%) of the remainder of the Term.
15.2. REPAIR OBLIGATION; ABATEMENT OF RENT. Subject to Paragraph
15.1, Landlord shall, within a reasonable time after the
discovery by Landlord of any damage resulting from a Casualty,
begin with reasonable diligence to restore the Premises to
substantially the same condition as existed immediately before
such Casualty, except for modifications required by
Regulations, and modifications to the Project reasonably
deemed desirable by Landlord; provided, however, that Landlord
shall not be required as part of the Restoration to repair or
replace any of the Alterations, furniture, equipment,
fixtures, and other improvements which may have been placed
by, or at the request of, Tenant or other occupants in the
Premises. Landlord shall have no liability for any
inconvenience or annoyance to Tenant or injury to Tenant's
business as a result of any Casualty, regardless of the cause
therefor. Base Rent shall xxxxx if and to the extent a
Casualty damages the Premises and renders them unfit for
occupancy, and are not occupied by Tenant.
16. PARKING. Tenant shall have the right to the nonexclusive use of the
parking facilities of the Project for the parking of motor vehicles
used by Tenant and Tenant Parties only; such rights are not
transferable without Landlord's approval. The use of such parking
facilities shall be subject to such rules and regulations as may be
adopted by Landlord from time to time for the use of such facilities.
17. EVENTS OF DEFAULT. Each of the following occurrences shall be an "EVENT
OF DEFAULT" and shall constitute a material default and breach of this
Lease by Tenant: (a) any failure by Tenant to pay Rent or any other
amount due and payable hereunder when due; (b) the abandonment or
vacation of the Premises by Tenant; (c) any failure by Tenant to obtain
insurance and/or deliver insurance certificates required under
Paragraph 11; (d) any failure by Tenant to execute and deliver any
estoppel certificate or other document described in Paragraphs 12 or 21
requested by Landlord, where such failure continues for five (5) days
after delivery of written notice of such failure by Landlord to Tenant;
(e) any failure by Tenant to fully perform any other obligation of
Tenant under this Lease, where such failure continues for thirty (30)
days after delivery of written notice of such failure by Landlord to
Tenant; (f) the voluntary or involuntary filing of a petition by or
against Tenant or any general partner of Tenant or any guarantor (i) in
any bankruptcy or other insolvency proceeding, (ii) seeking any relief
under any state or federal debtor relief law, or (iii) for the
appointment of a liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease; (g) the
default, repudiation or revocation of any guarantor of Tenant's
obligations hereunder. Any notice of any failure of Tenant required
under this Paragraph 17 shall be in lieu of, and not in addition to,
any notice required under applicable law.
18. REMEDIES. Upon the occurrence of any Event of Default by Tenant,
Landlord shall have, in addition to any other remedies available at law
or in equity, the option to pursue any one (1) or more of the following
remedies, each and all of which shall be cumulative and nonexclusive,
without any notice or demand whatsoever:
18.1. Terminate this Lease, and Landlord may recover from Tenant all
amounts permitted by law necessary to compensate Landlord for
the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease (specifically
including, without limitation, brokerage commissions and
advertising expenses incurred, expenses of remodeling the
Premises, the Building, or any portion thereof for a new
tenant, whether for the same or a different use, and any
special concessions made to obtain a new tenant);
18.2. If Landlord does not elect to terminate this Lease on account
of any Event of Default by Tenant, Landlord may, from time to
time, without terminating this Lease, enforce all of its
rights and remedies under this Lease, including the right to
recover all Rent as it becomes due.
9
18.3. Landlord shall at all times have the right to seek any
declaratory, injunctive, or other equitable relief, and
specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.
18.4. Following the occurrence of two instances of payment of Rent
more than ten (10) days late in any twelve (12) month period,
the late charge set forth in Paragraph 5 shall apply from the
date payment was due and Landlord may require that all
remaining monthly installments of Rent payable under this
Lease shall be payable by cashier's check or electronic funds
transfer two (2) months in advance, and may require that
Tenant increase the Security Deposit to an amount equal to two
times the current month's Rent at the time of the most recent
default.
18.5. Cure Tenant's default at the expense of Tenant (A) immediately
and without notice in the case (1) of emergency, (2) where
such default unreasonably interferes with any other tenant in
the Project, or (3) where such default will result in the
violation of any Regulation or the cancellation of any
insurance policy maintained by Landlord, and (B) in any other
case if such default continues for ten (10) days following the
receipt by Tenant of notice of such default from Landlord and
all costs incurred by Landlord in curing such default(s),
including, without limitation, attorneys' fees, shall be
reimbursable by Tenant as Rent hereunder upon demand, together
with interest thereon, from the date such costs were incurred
by Landlord, at the Default Rate.
19. SURRENDER OF PREMISES. No agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord.
At the expiration or earlier termination of this Lease, Tenant shall
deliver to Landlord all keys to the Premises, and Tenant shall deliver
to Landlord the Premises in the same condition as existed on the date
Tenant originally took possession thereof, ordinary wear and tear
excepted. In addition, prior to the expiration of the Term or any
sooner termination thereof, (a) Tenant shall remove such Alterations as
Landlord shall request (even if installed with Landlord's consent) and
shall restore the portion of the Premises affected by such Alterations
and such removal to its condition existing immediately prior to the
making of such Alterations, (b) Tenant shall remove from the Premises
all unattached trade fixtures, furniture, equipment and personal
property located in the Premises, including, without limitation, phone
equipment, wiring, cabling and all garbage, waste and debris, and (c)
Tenant shall repair all damage to the Premises or the Project caused by
any such removal including, without limitation, full restoration of all
holes and gaps resulting from any such removal and repainting required
thereby. All personal property and fixtures of Tenant not so removed
shall, to the extent permitted under applicable Regulations, be deemed
to have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to
Tenant and without any obligation to account for such items.
20. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Term hereof, with or without the express or implied
consent of Landlord, Tenant shall be only a month-to-month tenant and
otherwise upon the terms, covenants and conditions herein specified and
Tenant's Base Rent shall be at a rate equal to one hundred fifty
percent (150%) of the monthly installment of Base Rent payable by
Tenant immediately prior to such expiration or termination.
21. SUBSTITUTION OR DEMOLITION.
21.1. SUBSTITUTION. Upon at least sixty (60) days prior written
notice, Landlord may relocate Tenant within the Project (or to
any other facility owned by Landlord or an affiliate of
Landlord within the vicinity of the Project) to substitute
space. As used herein, "substitute space" means space
containing square footage which is not more than 15 percent
greater or lesser than the approximate square footage of the
Premises set forth in the Basic Lease Information and which is
comparable in utility and condition to the Premises. If
Landlord exercises this right to relocate Tenant, Landlord
shall reimburse Tenant for (a) Tenant's reasonable
out-of-pocket expenses for moving Tenant's furniture,
equipment and supplies from the Premises to the substitute
space; (b) the cost of installing leasehold improvements in
the substitute space comparable to those in the Premises; (c)
reprinting Tenant's stationery of the same quality and
quantity as Tenant's stationery supply on hand immediately
before Landlord's exercise of this relocation right. In the
event Tenant is relocated pursuant to this Paragraph 21,
Tenant shall surrender the Premises to Landlord in accordance
with all terms and conditions of this Lease prior to the
termination of the 60-day period and shall promptly upon
Landlord's request execute an amendment to this Lease which
shall designate the substitute space as the "PREMISES" subject
to this Lease and adjust the Base Rent and Additional Rent to
reflect any increase or decrease in the floor area of the
substitute space or, if Tenant is relocated outside the
Project, to execute a new lease in substantially the same form
as the existing Lease with the affiliate of Landlord.
21.2. DEMOLITION. Landlord shall have the right to terminate this
Lease in the event Landlord elects to demolish 75 percent or
more of the total floor area in the building containing the
Premises. In such event, Landlord shall give Tenant a notice
of termination at least 180 days prior to the effective date
of such termination and shall pay Tenant, on the termination
date, the cost (less depreciation) of Tenant's fixtures (other
than removable trade fixtures) and of leasehold improvements
installed in the Premises at Tenant's expense. For the
purposes of this provision, depreciation of Tenant's fixtures
and leasehold improvements shall be calculated on a
straight-line basis over the Term of this Lease (exclusive of
any permitted extensions of the Term). Upon payment to Tenant
of the amount specified in this paragraph and any prepaid Rent
or security deposit, Landlord shall be relieved of all further
liability to Tenant hereunder and the Lease shall terminate as
of the effective date of such termination except for the
rights and obligations accrued as of the date of such
termination.
10
22. LANDLORD TRANSFERS AND LIABILITY. Landlord may, without restriction,
sell, assign or transfer in any manner all or any portion of the
Project, any interest therein or any of Landlord's rights under this
Lease and then Landlord shall automatically be released from any
further obligations hereunder. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease or with respect
to any obligation or liability related to the Premises or the Project
shall be recoverable only from the interest of Landlord in the Project,
and neither Landlord nor any affiliate thereof shall have any personal
liability with respect thereto and in no case shall Landlord be liable
to Tenant for any lost profits, damage to business, or any form of
special, indirect or consequential damage on account of any breach of
this Lease. In the event that the holder of a mortgage or deed of trust
on the Premises becomes the "Landlord" under this Lease, such holder
shall not be liable for any act or omission of Landlord which occurred
prior to such holder's acquisition of title.
23. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS. At any time and from time
to time during the Term, Tenant shall, without charge, execute,
acknowledge and deliver to Landlord within ten (10) days after
Landlord's request therefor, an estoppel certificate in recordable form
containing such factual certifications and other provisions as are
commonly found in the estoppel certificate forms requested by
institutional lenders and purchasers.
24. NOTICES. All Notices, demands, consents, or other information desired
or required to be given under this Lease shall be effective only if
given in writing and sent by (a) certified United States mail, postage
prepaid, return receipt requested, (b) nationally recognized express
mail courier that provides written evidence of delivery, fees prepaid,
(c) facsimile, (d) United States first-class mail, postage prepaid, or
(e) personal delivery, and addressed to the Addresses For Notices as
set forth in the Basic Lease Information, or at such other address as
may be specified from time to time, in writing, or, if to Tenant, at
the Premises. Any such notice, demand, consent, or other information
shall be deemed given (i) if sent by certified mail, on the date of
delivery shown on the receipt card, (ii) if sent by courier, on the
date it is officially recorded by such courier, (iii) if delivered by
facsimile, on the date the sender obtains written telephonic
confirmation that the electronic transmission was received, (iv) if
sent by United States first-class mail, three (3) business days from
the date mailed, or (v) if delivered personally, upon delivery or, if
refused by the intended recipient, upon attempted delivery.
25. PAYMENT BY TENANT; NON-WAIVER. Landlord's acceptance of Rent following
an Event of Default shall not waive Landlord's rights regarding such
Event of Default. No waiver by Landlord of any violation or breach of
any of the terms contained herein shall waive Landlord's rights
regarding any future violation of such terms. Landlord's acceptance of
any partial payment of Rent shall not waive Landlord's rights with
regard to the remaining portion of the Rent that is due, regardless of
any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith;
accordingly, Landlord's acceptance of a partial payment of Rent shall
not constitute an accord and satisfaction of the full amount of the
Rent that is due.
26. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord hereby reserves and shall
have the following rights with respect to the Premises and the Project:
(a) to make inspections, repairs, or improvements, whether structural
or otherwise, in and about the Premises or any part thereof; and (b) to
enter the Premises at reasonable hours (or at any time in an emergency)
to perform repairs, to take any action authorized hereunder, or to show
the Premises to prospective purchasers or lenders, or, during the last
six (6) months of the Term, prospective tenants.
27. MISCELLANEOUS. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby. This Lease may
not be amended except by instrument in writing signed by Landlord and
Tenant. No provision of this Lease shall be deemed to have been waived
by Landlord unless such waiver is in writing signed by Landlord. The
terms and conditions contained in this Lease shall inure to the benefit
of and be binding upon the parties hereto, and upon their respective
successors in interest and legal representatives, except as otherwise
herein expressly provided. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto.
Tenant and the person or persons signing on behalf of Tenant represent
and warrant that Tenant has full right, power, and authority to enter
into this Lease, and that all persons signing this Lease on its behalf
are authorized to do so. If Tenant is comprised of more than one party,
each such party shall be jointly and severally liable for Tenant's
obligations under this Lease. All exhibits and attachments attached
hereto are incorporated herein by this reference. This Lease shall be
governed by and construed in accordance with the laws of the
jurisdiction where the Project is located. In any action which Landlord
or Tenant brings to enforce its respective rights hereunder, the
unsuccessful party shall pay all costs incurred by the prevailing
party, including without limitation, reasonable attorneys' fees and
court costs. Tenant shall not record this Lease or any memorandum
hereof. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD AND TENANT
EACH WAIVE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
WITH RESPECT TO THIS LEASE. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original. Time is of the
essence as to the performance of each covenant hereunder in which time
of performance is a factor.
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28. NO BROKER. Landlord and Tenant each warrant that they have dealt with
no real estate broker in connection with this transaction with the
exception of the brokers, if any, named in Exhibit F. Landlord and
Tenant each agree to hold each other harmless from and against any and
all damages, costs and expenses resulting from any claim(s) for a
brokerage commission or finder's fee that may be asserted against
either of them by any broker or finder with whom the other has dealt.
29. FURTHER PROVISIONS, IF ANY, ARE CONTAINED IN EXHIBIT F, ATTACHED
HERETO.
SUBMISSION OF THIS LEASE TO TENANT DOES NOT CONSTITUTE AN OPTION OR OFFER TO
LEASE AND THIS LEASE IS NOT EFFECTIVE OTHERWISE UNTIL EXECUTION AND DELIVERY BY
BOTH LANDLORD AND TENANT.
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EXHIBIT A
SITE PLAN
XXXXXXX AIRPORT BUSINESS CENTER
3035, 3065 and 0000 X. Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx
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EXHIBIT B
INSURANCE
Tenant's Insurance. Tenant shall, at Tenant's sole cost and expense, procure and
keep in effect from the date of this Lease (or earlier authorized occupancy) and
at all times until the end of the Term, the following insurance coverage:
1. PROPERTY INSURANCE. Insurance on all personal property and fixtures of
Tenant and all improvements made by or for Tenant to the Premises on an
"All Risk" or "Special Form" basis, for the full replacement value of such
property.
2. LIABILITY INSURANCE. Commercial General Liability insurance written on an
ISO CG 00 01 10 93 or equivalent form, on an occurrence basis, with a per
occurrence limit of at least $1,000,000, and a minimum general aggregate
limit of at least $2,000,000, covering bodily injury and property damage
liability occurring in or about the Premises or arising out of the use and
occupancy of the Premises and/or the Project by Tenant or any Tenant Party.
Such insurance shall include contractual liability coverage insuring
Tenant's indemnity obligations under this Lease, and shall be endorsed to
name Landlord, any Holder of a Security Instrument and any other party
specified by Landlord as an additional insured with regard to liability
arising out of the ownership, maintenance or use of the Premises.
3. WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. (a) Worker's
Compensation Insurance as required by any Regulation, and (b) Employer's
Liability Insurance in amounts not less than $1,000,000 each accident for
bodily injury by accident and for bodily injury by disease, and for each
employee for bodily injury by disease.
4. COMMERCIAL AUTO LIABILITY INSURANCE. Commercial auto liability insurance
with a combined limit of not less than One Million Dollars ($1,000,000) for
bodily injury and property damage for each accident. Such insurance shall
cover liability relating to any auto (including owned, hired and non-owned
autos).
5. ALTERATIONS REQUIREMENTS. In the event Tenant shall desire to perform any
Alterations, Tenant shall deliver to Landlord, prior to commencing such
Alterations (i) evidence satisfactory to Landlord that Tenant carries
"Builder's Risk" insurance covering construction of such Alterations in an
amount and form approved by Landlord, (ii) such other insurance as Landlord
shall reasonably require, and (iii) a lien and completion bond or other
security in form and amount satisfactory to Landlord.
6. GENERAL INSURANCE REQUIREMENTS. All coverages described in this Exhibit B
shall be endorsed to (i) provide Landlord with thirty (30) days' notice of
cancellation or change in terms; and (ii) be primary and non-contributing
with Landlord's insurance. The property insurance coverage required of
Tenant shall be endorsed to waive all rights of subrogation by the
insurance carrier against Landlord or shall otherwise state that the
carrier shall be so bound by Tenant's waiver of the carrier's right of
subrogation. If at any time during the Term the amount or coverage of
insurance which Tenant is required to carry under this Exhibit B is, in
Landlord's reasonable judgment, materially less than the amount or type of
insurance coverage typically carried by owners or tenants of properties
located in the general area in which the Premises are located which are
similar to and operated for similar purposes as the Premises or if Tenant's
use of the Premises should change with or without Landlord's consent,
Landlord shall have the right to require Tenant to increase the amount or
change the types of insurance coverage required under this Exhibit B. All
insurance policies required to be carried by Tenant under this Lease shall
be written by companies rated AX or better in "Best's Insurance Guide" and
authorized to do business in the State of Nevada. Deductible amounts under
all insurance policies required to be carried by Tenant under this Lease
shall not exceed $10,000 per occurrence. Tenant shall deliver to Landlord
on or before the Term Commencement Date, and thereafter at least thirty
(30) days before the expiration dates of the expired policies, certified
copies of Tenant's insurance policies, or a certificate evidencing the same
issued by the insurer thereunder, and, if Tenant shall fail to procure such
insurance, or to deliver such policies or certificates, Landlord may, at
Landlord's option and in addition to Landlord's other remedies in the event
of a default by Tenant under the Lease, procure the same for the account of
Tenant, and the cost thereof (with interest thereon at the Default Rate)
shall be paid to Landlord as Additional Rent.
LANDLORD'S INSURANCE. All insurance maintained by Landlord shall be for the sole
benefit of Landlord and under Landlord's sole control.
1. PROPERTY INSURANCE. Landlord agrees to maintain property insurance insuring
the Building against damage or destruction due to risk including fire,
vandalism, and malicious mischief in an amount not less than the
replacement cost thereof, in the form and with deductibles and endorsements
as selected by Landlord. At its election, Landlord may instead (but shall
have no obligation to) obtain "All Risk" coverage, and may also obtain
earthquake, pollution, and/or flood insurance in amounts selected by
Landlord.
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2. OPTIONAL INSURANCE. Landlord, at Landlord's option, may also (but shall
have no obligation to) carry (i) insurance against loss of rent, in an
amount equal to the amount of Base Rent and Additional Rent that Landlord
could be required to xxxxx to all Project tenants in the event of
condemnation or casualty damage for a period of twelve (12) months; and
(ii) liability insurance and such other insurance as Landlord may deem
prudent or advisable, including, without limitation, liability insurance in
such amounts and on such terms as Landlord shall determine. Landlord shall
not be obligated to insure, and shall have no responsibility whatsoever for
any damage to, any furniture, machinery, goods, inventory or supplies, or
other personal property or fixtures which Tenant may keep or maintain in
the Premises, or any leasehold improvements, additions or alterations
within the Premises.
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EXHIBIT C
SIGN CRITERIA
1. PURPOSE. These Sign Criteria have been established for the purpose of
maintaining a consistent overall appearance of the Project and shall be
strictly enforced.
2. SIGNAGE. As used herein. Signage shall mean any signs, advertising
placards, banners, pennants, names, insignias, trademarks, balloons,
flags, decals or other decorative or descriptive material installed on
the Project.
3. TENANT RESPONSIBILITY. Tenant, at its sole expense, shall be
responsible for any Signage it requires at the Premises, including
conforming with these Sign Criteria and all applicable laws, obtaining
required permits, installing, maintaining and removing such Signage, as
well as restoring the Premises to Landlord's satisfaction after such
Signage is removed.
4. APPROVED CONTRACTOR. Tenant shall contract with a professionally
licensed sign company approved by Landlord for the design, fabrication
and installation of Tenant's Signage.
5. LANDLORD APPROVAL REQUIRED. Tenant shall obtain Landlord's written
approval prior to the installation or removal of any Signage on the
Premises. Prior to Tenant's Signage installation, Tenant shall submit
to Landlord for its review and approval, a scaled drawing of Tenant's
proposed Signage including colors, construction details, method of
attachment, electrical loads and electrical plans. Any sign installed
without the prior approval of Landlord will be brought into conformity
or removed at Tenant's expense.
6. PERMITTED SIGNAGE. Tenant shall be permitted Identification Signage at
Tenant's main entrance displaying Tenant's business name, type of
business and/or logo only. Tenant shall also be permitted Information
Signage at Tenant's main entrance displaying Tenant's hours of
operation and such other information approved by Landlord. Landlord
shall designate the specific location of Tenant's Signage.
7. SIGN SPECIFICATIONS. All Tenant Signage shall comply with these Sign
Criteria and the Sign Specifications attached hereto as Exhibit C-1.
8. INSTALLATION. Tenant shall notify Landlord prior to the installation of
any Signage. Tenant or its contractor shall repair any damage to any
property caused by such installation work.
9. MAINTENANCE. Tenant shall be solely responsible for the proper
maintenance of its Signage, including illumination. Landlord may repair
or maintain Tenant's Signage, at Tenant's expense, if Tenant has not
commenced required maintenance of its signage within ten days after
receipt of written notice from Landlord informing Tenant of such
required repairs or maintenance.
10. REMOVAL. Tenant shall remove all of its Signage upon the expiration or
early termination of the Lease. Tenant shall notify Landlord prior to
such removal. Landlord, at Tenant's expense, shall repair any damage to
the building required as a result of Tenant's sign removal.
11. INTERIOR SIGNAGE. Except as provided herein, no signs visible from the
exterior of the Premises shall be permitted in the interior of the
Premises without Landlord's consent.
12. VEHICLE SIGNS. Without restricting Tenant's right to park its delivery
or other vehicles used in the normal course of business on the Project,
no signs may be affixed to any vehicles or trailers parked on the
Project that advertise promotions or direct customers to the Premises.
13. PROHIBITED SIGNS. Signs consisting of moving, swinging, rotating,
flashing, blinking, scintillating, fluctuating or otherwise animated
light are prohibited. Off-premise signs or any sign installed for the
purpose of advertising a product, event, person, or subject not related
to the premises upon which said sign is located are prohibited, without
written consent of the Landlord.
14. NO EXCEPTIONS. Except as provided herein, no Signage shall be affixed,
without Landlord's prior approval, anywhere on the Project, including
but not limited to on the glass, in the window area or on the exterior
walls of the building, landscaping areas, sidewalks or the driveways or
parking areas of the Project.
15. CHANGES. These Sign Criteria are subject to change by Landlord. In the
event Landlord changes the Sign Criteria for the Project during the
term of this Lease, Landlord may update Tenant's Signage in compliance
with the new Sign Criteria provided that any costs associated with such
change shall be at Landlord's sole expense.
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EXHIBIT C-1
SIGN SPECIFICATIONS
XXXXXXX AIRPORT BUSINESS CENTER
These sign criteria have been established for the purpose of maintaining the
overall appearance of Xxxxxxx Airport Business Center.
IDENTIFICATION SIGNAGE
1. Signs shall be made from high-density foam cut letters with black
fascia with black sides in a font style to be specified by Tenant.
Signs will be glue adhered to the concrete face of the building in a
location to be designated by Landlord.
2. The letter style, wording and logo shall be submitted to Landlord for
approval.
3. The maximum sign dimensions, including Tenant's logo, shall be 2' 6" in
height and 9' 0" in length. The sign and/or logo shall be centered
within the center panel above the main entrance. Letters and logo shall
have a depth of 2" to 2 !4".
4. No electrical signs shall be permitted.
5. Following, for the purpose of reference only, is an example of a
typical to-scale sign layout.
INFORMATION SIGNAGE
1. Tenant's information signage shall only be installed in the area
designated by Landlord on the door or storefront of the building at
Tenant's main entrance.
2. Tenant's Information signage shall consist of white vinyl letters not
to exceed 2" in height.
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EXHIBIT E
RULES AND REGULATIONS
Except as otherwise provided in the Multi-Tenant Lease to which this exhibit is
attached, the following rules and regulations shall apply:
1) The sidewalk, entries and driveways of the Project shall not be obstructed
by Tenant or its agents or used by them for any purpose other than ingress
and egress to and from the Premises.
2) Tenant shall not place any objects, including antennas, outdoor furniture,
etc., in the parking areas, landscaped areas or other areas outside of its
Premises or on the roof of the Project.
3) Except for seeing-eye dogs or service animals, no animals shall be allowed
in the offices, halls or corridors in the Project.
4) Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making of
loud or improper noises.
5) If Tenant desires telegraphic, telephonic or other electric connections in
the Premises, Landlord or its agent will direct the electrician as to where
and how the wires may be introduced and, without such direction, no boring
or cutting of wires will be permitted. Any such installation or connection
shall be made at Tenant's expense.
6) Tenant shall not install or operate any steam or gas engine or boiler or
carry on any mechanical business in the Premises except as specifically
approved in the Lease. The use of oil, gas or flammable liquids for
heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the
Project.
7) Parking any type of recreational vehicles is specifically prohibited on or
about the Project. No vehicle of any type shall be stored in the parking
areas at any time. In the event a vehicle is disabled, it shall be removed
within 48 hours. There shall be no "For Sale" or other advertising signs on
or about any parked vehicle. All vehicles shall be parked in designated
parking areas in conformity with all signs and other markings. All parking
will be open parking; numbering or lettering of individual spaces will not
be permitted except as specified by Landlord.
8) Tenant shall maintain the premises free from rodents, insects and other
pests.
9) Landlord reserves the right to exclude or expel from the Project any person
who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
10)
a. Tenant agrees that all Tenant's trash and rubbish shall be deposited
in receptacles and that Tenant shall not cause or permit any trash
receptacles to remain outside the building. All movable trash
receptacles provided by the trash disposal firm for the Premises must
be kept in the trash enclosure areas, if any, provided for that
purpose. In the event Landlord provides or designates trash
receptacles, Tenant agrees, at its own cost and expense, to cause such
receptacles to be emptied and trash removed. Tenant agrees to bag
trash before depositing it in the authorized trash area. Landlord
reserves the right to contract for trash removal and xxxx Tenant for
said service.
b. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss
of property on die Premises, however occurring, or for any damage done
to the effects of Tenant by the janitors or any other employee or
person.
11) Tenant shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus or any other service equipment affecting the Premises
12) Tenant shall not permit storage outside the Premises including, without
limitation, outside storage of trucks and other vehicles or dumping of
waste or refuse or permit any harmful materials to be placed in any
drainage or sanitary system or trash receptacle in or about the Premises.
13) No auction, public or private, will be permitted on the Premises or the
Project.
14) No awnings shall be placed over the windows in the Premises except with the
prior written consent of Landlord.
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15) The Premises shall not be used for lodging, sleeping or cooking or for any
immoral or illegal Purposes or for any purpose other than that specified in
the Lease.
16) Tenant shall ascertain from Landlord the maximum amount of electrical
current that can safely be used in the Premises, taking into account the
capacity of the electrical wiring in the Project and the Premises and the
needs of other tenants and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not
relieve Tenant from the obligation not to use more electricity than such
safe capacity.
17) Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
18) Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary
use of the Premises and shall keep all such machinery free of vibration,
noise and air waves which may be transmitted beyond the Premises.
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