Nevada-Las Vegas-5550 West Flamingo Road Lease - Walter L. Schwartz and Patlex Corp.
OFFICE LEASE
THIS LEASE made and entered into this __________ day of April, 1996, by
and between Walter L. Schwartz as (Landlord) and PATLEX CORPORATION as
(Tenant).
SECTION 1. DEMISE
Upon the conditions, limitations, covenants and restrictions contained
herein, Landlord hereby leases to Tenant and Tenant leases from Landlord, a
total of approximately 2,600 S.F. square feet of floor space (hereinafter
"Leased Property"), in The Office Complex (hereinafter the "Complex") of
Flamingo Place Office Park ("Center") located on the north west corner of
Flamingo Road and Lindell Ave., Las Vegas, Clark County, Nevada, said Leased
Property being more specifically indicated on the site plan attached hereto as
Exhibit A and incorporated herein by reference. The mailing address of the
Leased Property is 5550 W. Flamingo Road, Suite B-5, Las Vegas, Nevada 89103.
Tenant acknowledges that Landlord may not own or control the use of other
portions of the Complex or the Center. Tenant also acknowledges that although
Tenant may have been shown renderings, plot plans or other data showing
additional portions of the Center other than the portion in which the Leased
Property is located, such additional portions are conceptual only and this
Lease shall not be affected by the construction or failure to construct any
improvements on the property constituting such additional portions nor by the
relationship of said portions to the portion in which the Leased Property is
located. Tenant also acknowledges that the site plan shown on Exhibit A is
tentative and that Landlord may change the shape, size, location, number and
extent of the improvements shown thereon and eliminate or add any improvement
thereto.
SECTION 2. TERM
The term of this Lease shall be for a period of SIXTY (60) MONTHS,
commencing on the first day of the month next succeeding the occupancy date,
as hereinafter defined as June 10, 1996, unless terminated earlier as
elsewhere herein provided. Landlord may not be held liable by Tenant for any
delays in delivering the leased premises later than the scheduled occupancy
date as listed above. However, Tenant shall not be inclined to pay rent until
said space is delivered unto Tenant for occupancy. In the event that Tenant
fails or refuses to open the Leased Property for and to commence this lease
within thirty (30) days after the occupancy date, then at the option of
Landlord, Landlord may treat such failure or refusal as an event of default,
and may terminate this lease.
The words "occupancy date" whenever used in this Lease shall be deemed to
refer to June 10, 1996. Should Tenant hold possession of the Leased Property
with the consent of Landlord after the expiration of the stated term of this
Lease, such holding over shall create a tenancy from month to month only, upon
the same terms and conditions as are hereinafter set forth, except that basic
rent shall be one hundred fifty percent (150%) of the amount set forth in
Section 3 hereof.
SECTION 3. RENT
3.01 Subject to adjustment as hereinafter provided, Tenant shall pay
Landlord as basic rent for the term of this lease, the total sum of TWO
HUNDRED & TWENTY FIVE THOUSAND DOLLARS ($225,000.00). Beginning on the
commencement date, Tenant shall pay to Landlord basic month rent of $3,750.00.
In the event that the occupancy date is prior to the commencement of the term
as aforesaid, Tenant shall pay to Landlord, on or before the occupancy date, a
sum equal to such monthly installment amount for the use and occupancy thereof
prorated (on the basis of a 30-day month) to the commencement date of this
Lease.
3.02 After each lease year, the basic rent of the succeeding year shall
be adjusted for any increases in the cost of living in the manner hereinafter
provided. No adjustment shall be made for decreases in the cost of living, if
any. Landlord shall compute the increase in the cost of living for the
preceding period based on the Los Angeles-LongBeach-Anaheim Consumer Price
Index for All Urban Consumers for all items (1967=100), published by the
Bureau of Labor Statistics of the U.S. Department of Labor. Landlord shall
compute the rent adjustment by multiplying the basic monthly rent for the
preceding lease year by a fraction, the numerator of which shall be the index
for the month immediately prior to the first month of the lease year for which
such adjustment is made and the denominator of which shall be the index
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number for the month immediately prior to the first month for the preceding
lease year. In case of the adjustment at the end of the first year, the
denominator shall be the index number for the calendar month immediately
preceding the commencement date hereof. The product so obtained shall be the
adjusted basic monthly rent. ** C.P.I. increases shall not exceed 5%
annually.
3.03 Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for the computing of such increase, give Tenant
notice of any adjusted basic rent so determined, and Landlord's computation
thereof shall be conclusive and binding, but shall not preclude any adjustment
which may be required in the event of a published amendment of the index
figures upon which the computation was based, unless Tenant shall, within
thirty (30) days after the giving of such notice, notify Landlord in writing
of any claimed error therein.
3.04 The adjusted basic rent shall be due and payable for each month
commencing with the first month of the second lease year of this Lease.
However, pending the determination of the adjusted basic rent. Tenant shall
continue to pay basic rent in the same amount as the basis rent required for
the preceding lease year. When the adjusted basic rent has been determined,
Tenant concurrently with the next monthly basic rent payment due and payable
after the furnishing by Landlord to Tenant of the computation of the adjusted
basic rent, in addition to the adjusted basic rent for such month, shall pay
to Landlord a sum equal to the amount of the increase in the basic rent due
for each of the previous months in the lease year.
3.05 If at the time required for the determination of the adjusted basic
rent the above mentioned Consumer Price Index is no longer published or
issued, the parties shall use such index as Landlord reasonably determines to
be generally recognized and accepted for similar computations of purchasing
power.
3.06 The rent shall be paid to Landlord in advance on the first day of
each month during the term of this lease.
3.07 All rent and other monies payable under this Lease shall be paid
without prior demand therefor and without any deduction or offset whatsoever
in lawful money of the United States of America at such place or places as may
from time to time be designated in writing by Landlord.
3.08 "Lease year" shall mean the twelve (12) month calendar year. In the
event the commencement date occurs on a date other than January 1, the first
lease year shall be that fractional part of the calendar year from the
commencement date to December 31 of the same year and the final lease year
shall be that fractional part of the calendar year from January 1 to the
termination date.
3.09 If Tenant shall fail to pay, when the same is due and payable, and
basic rent, or any additional rent, or any other amount or charges to be paid
by Tenant hereunder, such unpaid amount shall be subject to a late charge in
an amount equal to ten percent (10%) of the amount overdue, which late charge
shall be payable as additional rent. In addition, if any basic rent,
additional rent, or any other amount or charges to be paid to Landlord by
Tenant hereunder, shall be more than thirty (30) days overdue, each such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the rate of eighteen percent (18%) per annum, which interest shall
be payable as additional rent.
SECTION 4. SECURITY DEPOSIT
Tenant, concurrently with the execution of this Lease, has deposited with
Landlord the sum of $3,750.00, receipt of which is hereby acknowledged by
Landlord. Said deposit shall be held by Landlord as security for the faithful
performance by Tenant of all terms, covenants and conditions of this Lease by
said Tenant to be kept and performed during the term hereof, provided that
Tenant shall not be excused from the payment of any rent herein reserved or
any other charge herein provided. If Tenant defaults with respect to any
provision of this Lease, Landlord may, but shall not be required to, use or
retain all or any part of such security deposit for the payment of any rent,
to repair damages to the Leased Property, to clean the Leased Property 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 five
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(5) days after written demand therefor, deposit cash with Landlord in an
amount sufficient to restore the security deposit to its original amount and
Tenant's failure to do so shall be a material breach of this Lease. Should
Tenant comply with all said terms, covenants and conditions and promptly pay
all the rents herein provided for as it falls due, and all other sums payable
by Tenant to Landlord hereunder, then the said deposit shall be returned in
full to Tenant thirty (30) days after end of the term of this Lease or after
the last payment due from Tenant to Landlord, whichever last occurs. No
beneficiary of any Deed of Trust encumbering the Leased Property or the Center
shall be or at any time become liable for the return of any security deposit
hereunder unless such deposit is actually held by such Beneficiary as
security for Tenant's performance hereunder.
SECTION 5. POSSESSION AND SURRENDER OF LEASED PROPERTY
Tenant shall by entering upon and occupying the Leased Property be deemed
to have accepted the Leased Property and Landlord shall be liable only for
latent defects discovered therein in the first ninety (90) days, provided that
written notice is given to Landlord by Tenant within ten (10) days after any
such defect is discovered by Tenant. In no event shall Landlord be liable for
consequential damages. Upon termination of this Lease, if, and only if,
Tenant has fully and faithfully performed all of its obligations hereunder,
Tenant shall, at its sole cost and expense, remove all personal property which
Tenant has installed or placed on the Leased Property ("Tenant's property")
from the Leased Property and repair all damage thereto resulting from such
removal and Tenant shall thereupon surrender the Leased Property in the same
condition as on the occupancy date, reasonable were and tear expected. If
Tenant has not fully and faithfully performed all of its obligations under
this Lease, Tenant shall nevertheless remove Tenant's property from the Leased
Property, upon Landlord's written direction, in the same manner, and upon the
same terms and conditions, as provided above. In the event Tenant shall fail
to remove any of Tenant's property as provided herein, Landlord may, but is
not obligated to, at Tenant's expense, remove all such property not so removed
and repair all damage to the Leased Property resulting from such removal, and
Landlord shall have no responsibility to Tenant for any loss or damage to said
property caused by or resulting from such removal, and Landlord shall have no
responsibility to Tenant for any loss or damage to said property caused by or
resulting from such removal or otherwise.
Tenant covenants to occupy and do business from the Leased Property
throughout the term hereof. Tenant expressly recognizes that Landlord will be
injured should Tenant not comply with this provision and that the amount of
Landlord's damages thereby are incapable of exact measurement and Tenant,
therefore, expressly covenants to pay the Landlord as liquidated damages for
breach of this covenant an amount, in addition to all other rents and other
monies due Landlord hereunder, equal to fifty percent (50%) of the rent due
for the remainder of the term after such breach, said amount representing
Landlord and Tenant's best estimate of Landlord's probable damages.
SECTION 6. USE OF LEASED PROPERTY
The Leased Property is leased to Tenant solely for use as OFFICE SPACE.
Tenant shall not use or suffer to be used the Leased Property, or any portion
thereof, for any other purpose or purposes whatsoever, without Landlord's
prior written consent. Tenant shall at all times during the term hereof
comply with all governmental rules, regulations, ordinances, statues and laws,
and the orders and regulations of the Insurance Services Leased Office or any
other body now or hereafter exercising similar functions, now or hereafter in
effect pertaining to the Complex, the Leased Property or Tenant's use thereof.
Tenant shall not do, or permit or suffer anything to be done or kept in, on or
about the Leased Property which will obstruct or interfere with the rights of
other tenants, Landlord or any of their agents, employees, servants,
contractors, subtenants, licensees, customers or business invitees, or which
will annoy any of them by unreasonable noise or otherwise, nor will Tenant
commit or permit any nuisance in, on, or about the Leased Property or permit
any immoral or illegal act to be committed in, on or about said Leased
Property. Except as provided for elsewhere herein, Tenant shall maintain the
Leased Property in good condition and repair. Tenant hereby covenants that
it, its agents, employees, servants, contractors, subtenants, customers,
licensees and business invitees shall abide by the rules and regulations
attached hereto as Exhibit B and incorporated herein by reference, and shall
abide by such other reasonable rules and regulations, including amendments and
modifications thereof, as Landlord may, for time to time, adopt for safety,
care and cleanliness of the Leased Property or of the Complex or the adjoining
grounds or for the
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preservation of good order thereon. Landlord shall not be liable for the
failure of any tenant or occupant of the Complex to comply with such rules and
regulations or with the terms of any lease of space in the Complex.
SECTION 7. IMPROVEMENTS
Prior to delivery of possession of the Leased Property by Landlord to
Tenant, tenant improvements, if required to the Leased Property shall be
compensated by Landlord in accordance with the improvement agreements as
stated in Exhibit C. The working drawings shall be prepared by Tenant and
submitted to Landlord for approval in the following manner: Tenant shall hire
a space planner (the "Space planner," at Tenant's sole expense. Tenant shall
submit all of Tenant's space and improvement requirements for the Leased
Property to the space planner. Tenant and the space planner shall have
prepared a space study, and shall have submitted it to Landlord for approval.
If Landlord disapproves the space study, Tenant and the space planner shall in
good faith make such revisions to the space study as are necessary to cure the
reasons for Landlord' disapproval, and after such disapproval shall submit the
revised space study to Landlord for approval. Said procedure shall be
repeated until Landlord and Tenant agree upon the space study. After Landlord
has approved the space study, Tenant and the space planner shall have prepared
working drawings based on the approved space study, and shall have submitted
the same to Landlord for approval. If Landlord does not approve the working
drawings, Tenant and the space planner shall in good faith make such revisions
thereto as may be necessary to cure the reasons for Landlord's disapproval,
and shall submit the revised working drawings to Landlord for approval. Said
procedure shall be repeated until Landlord and Tenant agree upon the working
drawings. If Tenant fails to meet any of the processes set forth in this
Section 7, Landlord may at Landlord's sole option terminate the Lease. When
Landlord has approved the working drawings, the approved parties may construct
improvements to the Leased Property in accordance to those prescribed in
Exhibit C (except for minor deviations and/or substitutions of similar
materials made necessary by factors outside of Landlord's control). Tenant
agrees and acknowledges that the improvement schedule, attached as Exhibit C
hereto and incorporated by this reference herein, sets forth the standard
improvements for the Complex, and that the space study and working drawings to
be prepared by Tenant and the space planner shall incorporate and be based
upon the standard improvements described in Exhibit C. Notwithstanding the
foregoing, so long as approved in advance by Landlord, Tenant's improvements
may contain additional items not shown on Exhibit C, upgraded materials and/or
substitutions; provided, however, that Tenant shall bear the additional cost
of purchasing and installing any additional items, upgraded materials Landlord
on demand, and Landlord may at Landlord's obligation for the completion of the
Leased Property shall be defined and limited by the working drawings, and
Landlord shall not be required to furnish or install any item not shown
thereon. Landlord shall not be held liable by Tenant for any delays in
construction.
Tenant shall observe and perform all of its obligations under this Lease
from the time Tenant takes occupancy to the commencement date; in the same
manner as though the Lease term began upon such occupancy.
Tenant shall not make any additional improvements to the Leased Property
without the written consent of Landlord first had and obtained therefor. All
improvements made by Tenant pursuant to this Section 7 shall be made promptly,
at Tenant's sole expense, in a good and workmanlike manner, by duly-licensed
contractors, and in compliance with all insurance requirements and with all
applicable permits and authorizations, and all other governmental rules,
regulations, ordinances, statutes and laws, and all rating bureau
recommendations, thereof, and such improvements shall be done by recognized
union labor if so required by Landlord. Prior to the commencement of such
work, Tenant shall give evidence to Landlord that appropriate insurance
satisfactory to Landlord has been obtained for the protection of Landlord and
its tenants and invitees from damage or injury resulting from the making of
such improvements. Landlord shall secure, at Tenant's expense, performance,
labor and materials bonds for the full cost of such work satisfactory to
Landlord.
Any improvements made by Tenant pursuant to this Section 7 shall, at
Landlord's option, become the property of Landlord upon the expiration or
sooner termination of this Lease. However, Landlord shall have the right to
require Tenant to remove any or all improvements, at Tenant's sole cost and
expense, upon such termination of this Lease and to surrender the Leased
Property in the same condition as it was prior to the making of any or all
such improvements, reasonable wear and tear excepted.
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At any time during the original or any extension term thereof, Landlord
shall have the right to relocate the Leased Property, to any other part of the
Complex, on the following terms and conditions: The new premises shall be
substantially the same in size and nature as the Leased Property, and, if the
relocation occurs after the commencement date hereof, shall be placed in such
condition by Landlord at Landlord's expense. Landlord shall give Tenant at
least thirty (30) days advance written notice of any such relocation. Tenant
agrees to cooperate in effectuating any such relocation. As nearly as
practicable, the physical relocation of the Leased Property shall take place
on a weekend and shall be completed before the following Monday. If the
physical relocation has not been completed in such time, and so long as Tenant
has not caused the delay, the monthly minimum rent required by this Lease
shall abate pro rata for all business days during which the relocation remains
uncompleted. If the new premises are smaller than the original Leased
Property, minimum rent shall be reduced proportionately. Upon the conclusion
of the relocation, the new premises shall automatically become the Leased
Property for all purposes under this Lease, and Tenant agrees to execute an
amendment to this Lease, setting forth the relocation of the Leased Property,
and any resulting reduction in minimum rent.
SECTION 8. PARKING AND COMMON AREAS
Tenant, its employees and business invitees shall have the nonexclusive
right, in common with Landlord and all others to whom Landlord has granted or
may hereafter grant rights, to use such common areas in the Complex (including
but not limited to, the parking lot, walkways and sidewalks) as are designated
from time to time by Landlord, subject to such reasonable rules and
regulations as Landlord may from time to time impose, including the
designation of specific areas in which cars operated by Tenant, its employees
and business invitees must be parked. Notwithstanding the foregoing, Landlord
expressly reserves the right to reserve and/or designate parking spaces for
the exclusive use of any tenant or tenants, or officers or employees thereof,
which Landlord may specify; and Landlord further reserves the right to charge
such tenants (separate from and in addition to rent) Landlord's current rate
for reserved parking. Landlord may at any time close any common area to make
repairs or changes, to prevent the acquisition of public rights in such area,
or to discourage non-customer parking. Landlord may do such other acts in and
to the common areas as in its parking. Landlord may do such other acts in and
to the common areas as in its judgment may be desirable, and Landlord shall
have the right to diminish the common areas and to dedicate portions of the
common areas for utility purposes. Tenant shall, upon request, furnish to
Landlord the license number of cars operated by Tenant and its employees.
Tenant hereby agrees to pay Landlord, upon written demand, the sum of $25.00
per car per day, for each car of Tenant, or any of its employees, agents or
contractors, which is parked in any area of the complex or the Center other
than the area designated by Landlord. Tenant shall not at any time interfere
with the right of Landlord, other tenants, its and their agents, employees,
servants, contractors, subtenants, licensees, customers and business invitees
to use the parking lot or other common areas. The use of the Leased Property
and all common areas whatsoever by Tenant, its employees, agents, customers,
licensees, invitees and contractors, shall, at all times, be in compliance
with all covenants, conditions and restrictions, easements, reciprocal
easement agreements and all other matters, presently of public record or which
may hereafter be placed of public record, which affect the Leased Property or
the Complex, or any part thereof. Landlord shall maintain the parking areas
in the Complex in a clean and neat condition. However, Landlord assumes no
responsibility to police the use of said parking areas and Landlord shall not
be liable for the use thereof by Landlord, Landlord's other tenants, its or
their agents, employees, servants, contractors, subtenants, customers and/or
business invitees or by any other person or persons, entity or entities
whomsoever.
SECTION 9. TAXES
Tenant shall be liable for and shall pay before delinquency (and, upon
demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence
of the payment thereof) all taxes and assessments of whatsoever kind or
nature, and penalties and interest thereon, if any, levied against Tenant's
personal property and any other personal property of whatsoever kind and to
whomsoever belonging situated or installed in or upon the Leased Property,
whether or not affixed to the realty. Any leasehold improvements in excess of
those provided for in Exhibit C shall be deemed Tenant's personal property for
the purposes of this Section 9. If at any time during the term of this Lease
any such taxes on Tenant's property are assessed as part of the tax on the
real property of which the Leased Property is a part, then in
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such event Tenant shall pay to Landlord the amount of such additional taxes as
may be levied against the real property by reason thereof. Tenant shall use
its best efforts to have Tenant's property assessed separately from said real
property.
Tenant shall pay as additional rent that proportion of any increase in
Impositions, as hereinafter described, due and payable during the term of this
Lease, over and above the amount of such Impositions assessed for and
attributable to the base year ("base year," as hereinafter defined), which the
total number of square feet of floor space in the Leased Property bears to the
total number of square feet in the Complex. Any such increase due and payable
for the fiscal year in which this Lease terminates shall be prorated and
adjusted between Landlord and Tenant. The "base year" is hereby defined as
calendar 1996. Whenever Landlord shall receive any tax statement or bill
payable, in whole or in part, by Tenant hereunder, Tenant shall pay the amount
due within ten (10) days after demand therefor accompanied by delivery to
Tenant of a copy of the tax statements for 1996, a copy of the tax statement
for any year showing any increase in said taxes or assessments, and
Landlord's computations of Tenant's proportion of such increase in taxes.
For the purposes of this Section 9 "Imposition" means:
(a) Any real estate taxes, assessments or other charges assessed
against the Complex and related structures and parking facilities and the
land on which they are located.
(b) All personal property taxes on personal property used in
connection with the Complex and related structures other than taxes
payable by Tenant under the first paragraph of this Section 9 and taxes
of the same kind as those described in said paragraph payable by other
tenants in the Complex pursuant to corresponding provisions of their
leases.
(c) Any other taxes levied or assessed in addition to or in lieu of
such real or personal property taxes.
If at any time during the term of this Lease, under the laws of the
United States, Nevada or any political subdivision thereof, a tax or excise on
rents or other tax (except income tax), however described, is levied or
assessed by the United States, Nevada or said political subdivision against
Landlord on account of any rent reserved under this Lease, the Leased Property
or the use thereof, all such taxes or excise on rents or other taxes shall be
paid by Tenant. Whenever Landlord shall receive any statement or bill for any
such tax or shall otherwise be required to make any payment on account
thereof, Tenant shall pay the amount due hereunder within ten (10) days after
demand therefor accompanied by delivery to Tenant of a copy of such tax
statement, if any.
SECTION 10. SERVICES AND UTILITIES
Tenant shall be responsible for all utilities and services to the Leased
Premises, although individual utility may be under the Landlord's service.
All utilities shall be the responsibility of Tenant (including, without
limitation, the monthly charges for electricity, janitorial services, and all
sewer and sanitation fees for other costs charged by any utility company for,
or in connection with, the installation of service). Landlord receives the
billing for electrical, water, sewer, refuse and janitorial fees. Landlord
shall then bill unto Tenant on a monthly basis for the expenses of electricity
and janitorial services, based upon the total cost of services divided by
Tenant's leasable square footage. Sewer charges and sanitation fees will be
billed according to Tenant's obligation to pay rent shall not be affected by
any failure of Tenant to timely arrange for the commencement of service of
interior utilities. Tenant may contract, at Tenant's sole expense, for such
janitorial services as Tenant desires for the interior of the Leased Property,
with the janitorial company which Landlord shall from time to time designate
to service the Complex. Said janitorial company shall bill Tenant directly
for Tenant's interior janitorial service, and Tenant shall pay such invoices
directly to the janitorial company. Tenant may contract directly with a
janitorial service of Tenant's choice, so long as such janitorial service
complies with Landlord standard security procedures, and so long as Landlord
has previously approved said janitorial service in writing (which approval
shall not be unreasonably withheld). Landlord shall provide normal janitorial
services five (5) days a week, at Landlord's expense, to the common areas of
the Complex. In addition, Landlord shall at Landlord's expense provide
lighting and any other appropriate utilities to the common areas of the
Complex. Landlord shall have the right to reduce
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any utility service as required by any mandatory or voluntary fuel or energy
conservation program. Except as specifically provided herein, Tenant shall
pay, at its sole cost and expense, all charges for services and utilities used
in, upon or about the Leased Property. Landlord may, from time to time,
prescribe reasonable rules and regulations for implementation of the
paragraph.
Landlord shall not be obligated to perform any service or to repair or
maintain any structure or facility except as provided in this Section.
Landlord shall not furnish telephone facilities or service. Landlord shall
not be obligated to provide any service or maintenance or repair is made
necessary because of the negligence or misuse of Tenant, Tenant's agents,
employees, servants, contractors, subtenants, licensees, customers or business
invitees. Landlord reserves the right to stop any service when Landlord deems
such stoppage necessary, whether by reason of accident or emergency, or for
repairs or improvements or otherwise. Landlord shall not be liable under any
circumstances for loss or injury however occurring, through or in connection
with or incident to any stoppage of such services. Landlord shall have no
responsibility or liability for failure to supply any services or maintenance
or to make any repairs when prevented from doing so by any cause beyond
Landlord's control. Landlord shall not be obligated to make any repairs or
perform any maintenance hereunder unless first notified of the need thereof in
writing by Tenant. In the event that Landlord shall fail to commence such
repairs or maintenance within five (5) days after said notice, Tenant's sole
right and remedy for such failure shall be, after further notice to Landlord,
to make such repairs or perform such maintenance and to deduct the cost and
expenses thereof from the rent payable hereunder, provided, however, that the
amount of such deduction shall not exceed the reasonable value of such repairs
or maintenance. Landlord shall not be liable for any loss or damage to
persons or property sustained by Tenant or other persons, which may be caused
by the Complex or the Leased Property, or any appurtenances thereto, being out
of repair or by bursting or leakage of any water, gas, sewer pipe, or by
theft, or by any act or neglect of any tenant of occupant of the Complex, or
of any other person, by failure to furnish, or interruption of, service of any
utility, or by any other cause of whatsoever nature, unless caused by the
negligence of Landlord.
Tenant agrees to pay Tenant pro rata portion of any increase in Complex
Operating Costs over and above the amount of Complex Operating Costs incurred
during the base year (as defined in Section 9 hereof). Tenant's pro rata
portion of said Complex Operating Costs shall equal the percentage which the
number of square feet in the Leased Property bears to the total number of
square feet in the Complex. Complex Operating Costs shall include all costs
and expenses of every kind or nature incurred by Landlord in the operation,
maintenance and repair of the Complex and related structures in a manner
deemed by Landlord to be reasonable and appropriate and for the best interests
of the entire Complex, as determined in accordance with generally accepted
accounting principles. Without otherwise limiting the generality of the
foregoing, there shall be included in such costs and expenses premiums with
respect to public liability, property damage, workmen's compensation, fire and
other insurance carried on or with respect to the Complex and related
structures, payroll taxes, unemployment taxes, social security taxes,
management fees, cleaning of any facilities, common area janitorial costs,
landscape maintenance, signs, lighting, music systems, depreciation on or
rentals of machinery and equipment, reasonable replacement reserves, legal and
accounting expenses, supervising of attendants and employment of other
personnel used in such operations, maintenance and repairs, fuel, energy and
utilities (including without limitation all utilities specified in this
Section 10 to be provided at Landlord's expense), and providing for security
and fire protection services. In addition, after the base year, an
administrative fee equal to 10% of all Complex Operating Costs shall be added
to the total of increases in Complex Operating Costs, and Tenant shall also
pay its pro rata share of said administrative fee. Any costs which are not
involved are allocated separately to the retail and office portions of the
Center shall be allocated and apportioned by Landlord in a fair and equitable
manner. Tenant agrees and acknowledges that any allocation based on the
respective square footages of said office and retail portions shall be
conclusively deemed to be fair and equitable. In the event that the Complex
hereafter consists of more than one parcel, as shown on the Complex's parcel
map of record, Landlord may at Landlord's sole option compute "Complex's
Operating Costs" in such a manner as will exclude any or all parcels (a) not
owned by Landlord, or (b) wholly leased or ground leased by one or more
tenants, so that third parties who own any parcel within the Complex or
tenants who lease a complete parcel within the Complex may at Landlord's
option be required to separately pay all expenses attributable to any such
parcels.
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In the event of such an increase, as soon after each calendar quarter
(including the calendar quarter in which this Lease terminates) as such
information is available to Landlord, Landlord shall deliver to Tenant a
written statement, signed and certified by Landlord or any officer of Landlord
as being true and correct, setting forth the amount of such operating costs
during the previous calendar quarter, the increase, if any, over the base
amount, and Tenant's proportion of such increase. Said amount shall be paid
by Tenant to Landlord within five (5) days after Tenant's receipt of said
written statement. The additional rent due hereunder shall be prorated for
the calendar quarter in which this Lease terminates.
SECTION 11. INSURANCE
Tenant shall not use or occupy, or permit the Leased Property to be used
or occupied in a manner which will increase the rates of insurance for the
Leased Property or the Complex, which will make void or voidable any insurance
then in force with respect thereto, which would constitute a defense to any
action thereon, or which will make it impossible to obtain insurance with
respect thereto. If by reason of the failure of Tenant to comply herewith,
any insurance rates for the Leased Property or the Complex be higher than they
otherwise would be, Tenant shall reimburse Landlord, on the first day of the
calendar month next succeeding notice by Landlord to Tenant of said increase,
for the part of all insurance premiums thereafter paid by Landlord which shall
have been charged because of such failure of Tenant. Any policy of insurance
maintained by Tenant insuring against any risk in, upon, about or in any way
connected with the Leased Property or Tenant's use thereof shall contain an
express waiver of any and all rights of subrogation thereunder whatsoever
against Landlord, its officers, agents and employees.
Tenant agrees, at its sole expense to procure and maintain public
liability insurance from the Leased Property during the term of this Lease in
the minimum amount of $1,000,000.00, combined single limit, and such insurance
policy shall name Landlord as an additional insured. Prior to taking
occupancy of the Leased Property, Tenant shall furnish Landlord with a
certificate acceptable to Landlord, evidencing the existence of such
insurance, naming Landlord as an additional insured and certifying that such
insurance may not be canceled or coverage diminished without at least thirty
(30) days' prior written notice to Landlord. Thereafter, at least ten (10)
days prior to the expiration of any such insurance, Tenant shall furnish
Landlord with a certificate, in the form described above, evidencing the
renewal or replacement of such insurance.
SECTION 12. LIENS
Tenant shall at all times indemnify, save and hold Landlord and the
Leased Property free, clear and harmless from any claims, liens, demands,
charges, encumbrances, litigation and judgments arising directly or indirectly
out of any use, occupancy or activity of Tenant, or out of any work performed,
material furnished, or obligations incurred by Tenant in, upon, about or
otherwise in connection with the Leased Property. Tenant shall give Landlord
notice of at least ten (10) business days prior to the commencement of any
such work on the Leased Property to afford Landlord the opportunity to file
appropriate notices of non-responsibility. Tenant shall, at its sole cost and
expense, within fifteen (15) days after the filing of any lien for record,
obtain the discharge and release thereof. Nothing contained herein shall
prevent Landlord, at the cost and for the account of Tenant, from obtaining
said discharge and release in the event Tenant fails or refuses to do the same
within said fifteen (15) day period.
SECTION 13. INDEMNIFICATION
Tenant hereby covenants and agrees to indemnify, save and hold Landlord
and the Leased Property free, clear and harmless from any and all liability,
costs, expenses, including attorneys' fees, judgments, claims, liens and
demands of any kind whatsoever in connection with, arising out of, or by
reason of any act, omission or negligence of Tenant, its agents, employees,
servants, contractors, subtenants, licensees, customers or business invitees
while in, upon, about or in any way connected with the Leased Property or the
Center or arising from any accident, injury or damage, howsoever and by
whomsoever caused, to any person or property whatsoever, occurring in, upon,
about or in any way connected with the Leased Property, the Complex, or any
portion thereof other than as a result of the negligence of Landlord.
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SECTION 14. SUBORDINATION
Landlord reserves the right to encumber the Leased Property at any time,
including, but not limited to, sale-lease back transactions; and upon request
of Landlord or any mortgagee or beneficiary under a deed of trust, or ground
lease lessor, Tenant shall, in writing and within ten (10) days after request,
subordinate its rights hereunder to the lien of any mortgage or deed of trust
or any ground lease now or hereafter placed upon the land of which the Leased
Property is part and upon any buildings hereafter placed upon the land of
which the Leased Property is a part, and to all advances made or hereafter to
be made upon the security thereof. In the event that Tenant fails to execute
and/or deliver any such subordination to Landlord within said ten (10) days,
Tenant hereby irrevocably appoints Landlord as Tenant's duly authorized
attorney-in-fact for the purpose of executing and delivering any such
subordination, and Tenant hereby grants Landlord all power and authority
necessary to execute and deliver all such documents on behalf of Tenant.
Tenant acknowledges that the power of attorney granted hereby is coupled with
an interest.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of power of sale under any deed of trust, or upon termination
of any ground lease, Tenant shall attorn to the purchaser upon any such
foreclosure or sale, or ground lessor, and recognize such purchaser or ground
lessor as Landlord under this Lease.
SECTION 15. ASSIGNMENT AND SUBLETTING
Tenant shall not assign, mortgage, pledge, sublease or encumber the
Leased Property or any interest therein, except with the prior written consent
of Landlord (reference elsewhere herein to assignees notwithstanding). Tenant
acknowledges that Landlord shall have no implied duty whatsoever to consent to
any such assignment, mortgage, pledge, sublease or encumbrance, and that
Landlord may withhold its consent thereto for any reason or for no reason.
Any such sublease, assignment, mortgage, pledge, or encumbrance shall not
relieve Tenant for liability for payment of the rental herein provided or from
the obligation to keep and be bound by the terms, conditions and covenants of
this Lease. The acceptance of rent by Landlord from any other person shall
not be deemed to be a waiver of any of the provisions of this Lease or a
consent to the assignment or hypothecation of any stock or interest in such
corporation or partnership in the aggregate in excess of twenty-five percent
(25%) of such interests, as the same may be constituted as of the date of this
Lease, shall be deemed an assignment within the meaning of this Section 15.
In addition, Tenant agrees that if Tenant assigns or sublets this Lease with
Landlord's consent for a greater rent than Tenant is obligated to pay
hereunder, all rent payable to Tenant pursuant to such assignment or sublease,
including any increased rent or other cash consideration paid to Tenant by an
assignee or sublessee as consideration for such assignment or sublease, shall
be the property of Landlord and shall be paid to Landlord by Tenant (or, at
Landlord's option, shall be paid directly to Landlord by such assignee or
sublessee).
SECTION 16. INSOLVENCY
It is understood and agreed that neither this Lease nor any interest
herein or hereunder, nor any estate hereby created in favor of Tenant, shall
pass by operation of law under any state or federal insolvency or bankruptcy
act, or any similar law now or hereafter in effect, to any trustee, assignee
for the benefit of creditors, or any other person whomsoever.
SECTION 17. CONDEMNATION
Should the whole or any part of the Leased Property be condemned or taken
by a competent authority for any public or quasi-public purpose, all awards
payable on account of such condemnation and taking shall be payable to
Landlord, and Tenant hereby waives any and all interest herein. For the
purpose of this Section 17, a deed granted in lieu of condemnation shall be
deemed a taking.
If the whole of the Leased Property be condemned or taken, then this
Lease shall terminate upon such taking. If only part of the Leased Property
is so taken and if the remaining portion thereof will not be reasonably
adequate for the operation of Tenant's business after Landlord completes such
repairs or alterations as Landlord elects to make, either
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Landlord or Tenant shall have the option to terminate this Lease as of said
taking by notifying the other party hereto of such election in writing within
twenty (20) days after such taking. In no event shall a taking terminate this
Lease without such notification. If such partial taking does not terminate
this Lease, this Lease shall continue in full force and effect, but the rent
provided in Section 3 hereof shall be reduced by an amount equal to that
proportion of such basic rent which the rentable square footage of the portion
taken bears to the total rentable square footage of the Leased Property. If
any part of the Complex other than the Leased Property shall be so taken or
appropriated, Landlord shall have the right, at its option, to terminate this
Lease by notifying Tenant within six (6) months of such taking.
SECTION 18. DESTRUCTION OF PREMISES
If the Leased Property shall be destroyed or rendered untenantable,
either wholly or in part, by fire or other unavoidable casualty, Landlord may,
at its option, restore the Leased Property to its previous condition and in
the meantime basic monthly rent shall be abated in the same proportion as the
untenantable portion of the Leased Property bears to the whole thereof. This
Lease shall not terminate unless, within sixty (60) days after the happening
of such casualty, Landlord notifies Tenant of its election to terminate this
Lease. In the event Landlord does not elect to terminate this Lease, Landlord
shall repair the damage to the Leased Property caused by such casualty, any
other provision hereof to the contrary notwithstanding, should any casualty
have been the result of any act, omission or negligence of Tenant, its agents,
employees, servants, contractors, subtenants, licensees, customers or business
invitees, unless Landlord otherwise elects, this Lease shall not terminate,
Tenant shall repair such damage and rent shall not abate.
In the event of any damage not limited to, or not including, the Leased
Property, such that the Complex is damaged to the extent of twenty-five
percent (25%) or more the cost of replacement, or the buildings (taken in the
aggregate) in the Center owned by Landlord shall be damaged to the extent of
more than twenty-five percent (25%) of the aggregate cost of replacement,
Landlord may elect to terminate this Lease upon giving notice of such election
in writing to Tenant within ninety (90) days after the occurrence of the event
causing the damage.
Any other provision hereof to the contrary notwithstanding, Landlord
shall not be liable for any repair or restoration until, and then only to the
extent that, insurance proceeds are received therefor.
SECTION 19. RIGHT OF ACCESS
Landlord shall at all times have the right to enter the Leased Property
to inspect the same, to supply janitorial service and any other service to be
provided by Landlord to Tenant hereunder, to exhibit the Leased Property to
prospective purchasers or tenants, to post notices of nonresponsibility, and
to repair or construct any portion of the building of which the Leased
Property is a part or any other portion of the Center, without statement of
rent, and may keep and store tools, material and equipment upon the Leased
Property and may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, provided the
entrance to the Leased Property shall not be interfered with unreasonably.
Tenant hereby waives any claim for damages for any injury or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of other Lease
Property, and any other loss occasioned by the exercise of Landlord's rights
hereunder. For each of the aforesaid purposes, Landlord shall, at all times,
have the right to retain a key with which to unlock all doors in an emergency.
Entry into the Leased Property obtained by Landlord by any such means shall
not be deemed to be forcible or unlawful entry into, or a detainer, of, the
Leased Property, or an eviction of Tenant from the Leased Property or any
portion thereof.
SECTION 20. EXPENDITURES BY LANDLORD
Whenever under any provision of this Lease, Tenant shall be obligated to
make any payments or expenditures, or to do any act or thing, or to incur any
liability whatsoever, and Tenant fails, refuses or neglects to perform as
herein required, Landlord shall be entitled, but shall not be obligated, to
make any such payment or expenditure or to do any such act or thing, or to
incur any such liability, all on behalf of and at the cost and for the account
of Tenant. In such
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event, the amount or cost thereof with interest thereon at the rate of
eighteen percent (18%) per annum, compounded monthly, shall constitute and be
collectible as additional rent upon demand.
SECTION 21. OFFSET STATEMENT
Tenant agrees that within ten (10) days of any demand therefor by
Landlord, Tenant will execute and deliver to Landlord or Landlord's designee a
recordable certificate stating that this Lease is in full force and effect,
such defenses or offsets as are claimed by Tenant, if any, the date to which
all rentals have been paid, and such other information concerning the Lease,
the Leased Property and Tenant as Landlord or said designee may reasonably
request. In the event that Tenant fails to execute and/or deliver any such
certificate or offset statement to Landlord within said ten (10) days, Tenant
hereby irrevocably appoints Landlord as Tenant's duly authorized
attorney-in-fact for the purpose of executing and delivering any such
certificate or offset statement, and Tenant hereby grants Landlord all power
and authority necessary to execute and deliver all such documents on behalf
of Tenant. Tenant acknowledges that the power of attorney granted hereby is
coupled with an interest.
SECTION 22. DEFAULT
Tenant's compliance with each and every one of its obligations hereunder
is a condition to each and every covenant and obligation of Landlord. In the
event that (a) Tenant shall default in the payment of any sum of money
required to be paid hereunder and such default continues for five (5) days
after receipt of written notice thereof, or (b) Tenant shall default in the
performance of any other of its obligations hereunder and such default
continues for ten (10) days after written notice thereof (except for defaults
which create a nuisance or illegal condition, or which cause or threaten
serious danger to life, limb or property, in which case there shall be no
requirement of written notice or right to cure); or (c) Tenant should vacate
or abandon the Leased Property during the term of this Lease; or (d) there is
filed by or against Tenant any petition in bankruptcy, or Tenant is
adjudicated as a bankrupt or insolvent, or there is appointed a receiver or
trustee to take possession of all or substantially all of the assets of Tenant
or of the Leased Property, or there is a general assignment by Tenant for the
benefit of creditors, or any such action is taken by or against Tenant under
any state or federal insolvency or bankruptcy, or any similar law now or
hereafter in effect, including without limitation, the filing of any petition
for or in reorganization or an arrangement, or should the Leased Property or
any portion thereof be taken or seized under levy of execution or attachment
against Tenant, then Landlord, at its sole option, shall, in addition to all
other rights and remedies hereunder or at law or in equity, have (i) the right
to declare the terms of this Lease ended and to re-enter the Leased Property
and take possession thereof, and to terminate all of the rights of Tenant in
and to the Leased Property; or (ii) the right without declaring the term of
this Lease ended, to re-enter the Leased Property and to occupy the same, or
any portion thereof, or to lease the whole or any portion thereof, for and on
account of Tenant as hereinafter provided, applying any monies received first
to payment of such expenses, including attorneys' fees and real estate
commissions paid, assumed or incurred by Landlord in or in connection with the
recovery, repairing or reletting of the Leased Property and then to the
fulfillment of the covenants of Tenant (any such reletting shall be for such a
term, at such a rent, and on such other conditions as Landlord in its
discretion deems advisable); or (iii) the right, even though it may have relet
all or any portion of the Leased Property as above-provided to thereafter at
any time terminate this Lease for such previous default on the part of the
Tenant. Pursuant to said rights of re-entry, Landlord may remove all persons
from the Leased Property and may, but shall not be obligated to, remove all
property therefrom, and may, but shall not be obligated to, enforce any rights
Landlord may have against said property, or store the same in any public or
private warehouse or elsewhere at the cost and for the account of Tenant or
the owner or owners thereof. Tenant agrees to hold Landlord free and harmless
of any liability whatsoever for the removal or storage of any such property,
whether of Tenant or any third part whomsoever. As security for Tenant's
compliance with all the terms of this Lease, Landlord is hereby given a lien
upon all of Tenant's property in, upon or about the Leased Property. Anything
contained herein to the contrary notwithstanding, Landlord shall not be deemed
to have terminated this Lease or any of Tenant's obligations hereunder by any
such re-entry, or by any action in unlawful detainer or otherwise to obtain
possession of the Leased Property, unless Landlord shall have notified Tenant
in writing that it has so elected to terminate this Lease.
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In any action brought by Landlord or Tenant to enforce or protect any of
its rights under or arising from this Lease, or related thereto, the
prevailing party shall be entitled to receive from the other party its costs
and legal expenses, including reasonable attorneys' fees, whether such action
is prosecuted to judgment or not. Landlord and Tenant hereby agree and
acknowledge, each for the benefit of the other, that for purposes of the
foregoing reciprocal attorneys' fees clause, they have bargained for attorneys
fees to be computed in the following manner: said attorneys' fees shall be
computed by multiplying the regular hourly fee rate of the attorney or
attorneys selected and utilized by the prevailing party by the number of hours
expended in such action by said attorney or attorneys. If such hourly rate or
rates, and the number of hours expended, are verified by the prevailing
party's attorney or attorneys in a sworn certificate accompanied by time
summaries, the resulting amount of such attorneys' fees shall be irrefutably
presumed to be reasonable.
The waiver by Landlord of any default or breach of any of Tenant's
obligations hereunder shall not be a waiver of any preceding or subsequent
breach of the same or any other of Tenant's obligations contained herein.
The subsequent acceptance of rent or any other payment or portion thereof so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rental or other payment. No payment by Tenant or
receipt by Landlord of a lesser amount than the rent herein provided shall be
deemed to be other than on account of the earliest rent due and payable
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept any such check or payment without prejudice to Landlord's
right to recover the balance of such sums as are due or pursue any other
remedy provided in this Lease. The consent by Landlord to any matter or event
requiring Landlord's consent shall not constitute a waiver of the necessity
for such consent to any subsequent matter or event. Tenant acknowledges and
agrees that, in the event of any failure of Tenant to pay any rent or other
sums required to be paid by Tenant to Landlord pursuant to this Lease, Tenant
shall immediately be in the status of default such that, at Landlord's option,
the five (5) day written notice required by the first paragraph of this
Section 22 may be a five-day notice as contemplated by N.R.S. Section 40.250
or N.R.S. Section 40.253, or may be given simultaneously or may run currently
with any five-day notice given by Landlord pursuant to N.R.S. Section 40.253.
SECTION 23. QUIET POSSESSION
Tenant, upon paying the rentals and other payments herein required from
Tenant, and upon Tenant's performance of all the provisions, covenants and
conditions of this Lease on its part to be kept and performed, may quietly
have, hold and enjoy the Leased Property during the term of this Lease.
SECTION 24. SALE BY LANDLORD
In the event of any sale or exchange of the Leased Property, the Center,
the Complex or the building of which the Leased Property is a part by
Landlord, Landlord shall be and is hereby 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 Leased
Property occurring after the consummation of such sale or exchange; provided,
however, that Landlord's successor agrees in writing to be bound by Landlord's
covenants and agreements herein. Tenant agrees to attorn to such purchaser or
grantee.
SECTION 25. DEFAULT BY LANDLORD
It is agreed that in the event Landlord fails or refuses to perform any
of its obligations hereunder, Tenant prior to exercising any right or remedy
it may have, shall give fifteen (15) days written notice to Landlord of such
default, specifying in said notice the default with which Landlord is charged.
However, if the default complained of is of such nature that the same can be
rectified or cured, but cannot with reasonable diligence be rectified or cured
within said fifteen (15) days, then such default shall be deemed to be
rectified or cured if Landlord within said fifteen (15) day period shall
commence the rectification and curing thereof and continue thereafter with all
due diligence to cause such rectification and curing to proceed.
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SECTION 26. FORCE MAJEURE
Whenever a day is appointed herein on which, or a period of time is
appointed in which, either party hereto is required to do or complete any act,
matter or thing, the time for the doing or completion thereof shall be
extended by a period of time equal to the number of days on or during which
such party is prevented from, or is unreasonably interfered with, the doing or
completion of such an act, matter or thing because of labor dispute, civil
commotion, war, warlike operation, sabotage, governmental regulations or
control, fire or other casualty, inability to obtain any materials, or to
obtain fuel or energy, weather or other acts of God, or other causes beyond
such party's reasonable control (financial inability excepted); provided,
however, that nothing contained herein shall excuse Tenant from the prompt
payment of any rent or charge required of Tenant hereunder, and nothing herein
shall excuse Tenant's default hereunder for creating any nuisance, illegal
condition, condition which causes or threatens serious injury to life, limb or
property.
SECTION 27. SERVICE OF NOTICES
Any and all notices and demands shall be in writing and shall be validly
given or made if served either personally or if deposited in the United States
mail, certified or registered, postage prepaid, return receipt requested. If
such notice or demand be served by mail, service shall be conclusively deemed
made five (5) days after mailing, or upon actual receipt, whichever is sooner.
Any notice or demand to Landlord shall be addressed to Landlord at P.O. Box
81225 Las Vegas, Nevada 89102. Any notice or demand to Tenant shall be
addressed to Tenant at the Leased Property. Any party hereto may change its
address for the purpose of receiving notices, payments or demands as herein
provided by written notice given in the manner aforesaid to the other party
hereto, which notice of change of address shall not become effective, however,
until the actual receipt thereof by the other party.
SECTION 28. MISCELLANEOUS
1. If this lease is terminated pursuant to any provision hereof and
Tenant is not in default hereunder, rent shall be prorated as of the date of
termination.
2. The various rights, options, elections and remedies of Landlord and
Tenant respectively contained in this Lease shall be cumulative and no one of
them shall be construed as exclusive of any other, or of any right, priority
or remedy allowed or provided for by law and not expressly waived in this
Lease.
3. The terms, provisions, covenants and conditions contained in this
Lease shall apply to, bind and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns (where
assignment by Tenant is permitted) of Landlord and Tenant, respectively,
except as otherwise provided in this Lease.
4. If any term, provision, covenant or condition of this Lease, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable, all provisions, covenants and conditions of
this Lease, and all applications thereof, not held invalid, void or
unenforceable, shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
5. Time is of the essence of this Lease and all of the terms,
provisions, covenants and conditions hereof .
6. This Lease contains the entire agreement between the parties and
cannot be changed or terminated orally.
7. Tenant agrees that Landlord shall not be required to maintain any
security deposit given hereunder in a separate account, but that such security
deposit may be commingled with Landlord's other funds. Tenant further
acknowledges that no interest shall accrue or be payable to Tenant on account
of Tenant's security deposit.
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8. Notwithstanding that this Lease is a binding agreement, Landlord
may, at Landlord's sole option, terminate this Lease by written notice to
Tenant given within fifteen days after the execution hereof, if Landlord's
trust deed lender notifies Landlord that it has disapproved this Lease for any
reason.
9. Tenant acknowledges that Tenant has been advised by Landlord or
Landlord's agents to consult an attorney in connection with the negotiation
and execution hereof, and that neither Landlord nor Landlord's agents have
given Tenant any legal advice.
10. Tenant covenants and agrees to keep the terms and provisions of this
Lease confidential, and not to disclose said terms and provisions to any
person or entity whatsoever (except as may be required by law, or by any
governmental entity). Tenant acknowledges that Landlord may have made special
concessions to Tenant to induce Tenant to execute this Lease, which, if known,
could damage Landlord's future business and/or bargaining power. Tenant
therefore agrees that any breach of the covenant contained in this paragraph
by Tenant shall be an automatic and incurable default of this Lease.
11. The captions appearing at the commencement of the sections hereof
are descriptive only and for convenience in reference to this Lease and in no
way whatsoever define, limit or describe the scope or interest of this Lease,
nor in any way affect this Lease. In addition, in the event that a "Lease
Summary" or other cover sheet shall be attached to the front of this Lease,
such shall be for convenience only, and the same shall not in any way affect
the terms of this Lease nor shall it be used in limiting, construing or
defining any term, covenant or condition of this Lease.
12. Masculine and feminine pronouns shall be substituted for the neuter
form and vice versa, and the plural shall be substituted for the singular form
and vice versa, in any place or places herein in which the context requires
substitutions.
13. The laws of the State of Nevada shall govern the validity,
construction and effect of this Lease.
14. Whenever in this Lease any words of obligation or duty are used in
connection with either party, such words shall have the same force and effect
as though framed in the form of covenants on the part of such party.
15. Tenant acknowledges that, by entering into this Lease with Landlord,
Tenant has not become a third-party beneficiary of any lease between Landlord
and any other tenant, and that no part of the inducement to Tenant to enter
into this Lease was any promise or covenant of Landlord, express or implied,
to enforce any other lease for the benefit of Tenant.
16. In the event either party hereto now or hereafter shall consist of
more than one person, firm or corporation, then and in such event, such
persons, firms or corporations shall be jointly and severally liable as
parties hereunder; provided, however, nothing herein shall be deemed to impose
personal liability on any limited partner of Landlord or Tenant.
17. Tenant warrants that it has had no dealings with any broker or agent
in connection with this Lease except for TONY GREEN - SBO COMMERCIAL & FRANK
BRUNO - THE BRUNO GROUP and Tenant covenants to pay, hold harmless and
indemnify Landlord from and against any and all costs, expense or liability
for any compensation, commissions and charges claimed by any other broker or
agent with respect to this Lease or the negotiation thereof.
18. Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal
and agent or of partnership or of joint venture or of any association between
Landlord and Tenant, except the relationship of Landlord and Tenant.
19. Tenant agrees that all amounts or charges, except for basic rent, to
be paid by Tenant to Landlord pursuant to the terms and provisions of this
Lease, shall be conclusively deemed to be additional rent.
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20. Tenant agrees and acknowledges that Landlord may, at Landlord's
discretion, install a conference room at a location within the Complex.
Landlord may, from time to time, change the location of the conference room,
and Landlord shall have the right to any time to reclaim the conference room
space and to utilize it for any other purpose. Tenant further agrees and
acknowledges that any such conference room shall not be deemed to be a portion
of the common areas, and that nothing in this Lease affords Tenant any claim
of right to use any such conference room, or to require that any such
conference room be construed or maintained. Any use of conference room
facilities by Tenant shall be by separate agreement with Landlord, and shall
be subject to such rules and regulations, and at such rates, as Landlord may
from time to time establish.
SECTION 29. RECORDATION PROHIBITED
Except upon the written consent of Landlord, neither Tenant nor anyone
acting on behalf of Tenant shall record this Lease or any memorandum or notice
thereof nor cause the same to be recorded.
SECTION 30. FINANCIAL STATEMENTS
Tenant agrees to prepare and keep (1) quarterly financial statements, and
(2) annual financial statements, both of which shall be prepared in accordance
with generally accepted accounting principles. Within the (10) days after
Landlord's written request therefor, Tenant shall furnish true and correct
copies of Tenant's most recent quarterly financial statement and Tenant's most
recent annual financial statement to Landlord. Said annual financial
statement shall be accompanied by a letter from a firm of Certified Public
Accountants, stating that it was prepared by them in accordance with generally
accepted accounting principles.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
TENANT LANDLORD
PATLEX CORPORATION MR. WALTER L. SCHWARTZ
BY: /s/ Richard Laitinen By: /s/ Walter Schwartz
----------------------- ------------------------
Mr. Richard Laitinen Mr. Walter Schwartz
President Landlord
Patlex Corp. Flamingo Place Office Park
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