Nevada-Las Vegas-3770 Howard Hughes Parkway Lease - 3770 Hughes Parkway Associates LP and Room Systems Finance Corp.
HUGHES CENTER
3770 HOWARD HUGHES PARKWAY
LAS VEGAS, NEVADA
[FULLY EXECUTED]
LEASE AGREEMENT
between
3770 HUGHES PARKWAY ASSOCIATES, LIMITED PARTNERSHIP
and
ROOM SYSTEMS FINANCE CORPORATION
Dated October 8, 1997
LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLES PAGE
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ARTICLE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
LEASE GRANT . . . . . . . . . . . . . . . . . . . . . . . . . -4-
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ARTICLE 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
LEASE TERM. . . . . . . . . . . . . . . . . . . . . . . . . . -4-
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ARTICLE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
USE OF PREMISES AND COMMON AREAS . . . . . . . . . . . . . . -5-
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4.1 Premises. . . . . . . . . . . . . . . . . . -5-
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4.2 Common Areas of Building. . . . . . . . . . -5-
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4.3 Landlord's Rights in Common Areas . . . . . -5-
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ARTICLE 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
BASE RENT AND ADDITIONAL RENT . . . . . . . . . . . . . . . . -6-
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5.1 Base Rent . . . . . . . . . . . . . . . . . . . -6-
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5.2 Cost of Living Increase. . . . . . . . . . . . -6-
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5.3 Additional Rent. . . . . . . . . . . . . . . . -6-
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5.4 Interest on Late Payments. . . . . . . . . . . -7-
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ARTICLE 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
BASE RENT ADJUSTMENT. . . . . . . . . . . . . . . . . . . . . -7-
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ARTICLE 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
SERVICES TO BE FURNISHED BY LANDLORD. . . . . . . . . . . . . -8-
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ARTICLE 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
IMPROVEMENTS TO BE MADE BY LANDLORD . . . . . . . . . . . . -9-
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ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD. . . . . . . -9-
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ARTICLE 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
GRAPHICS . . . . . . . . . . . . . . . . . . . . . . . . . -9-
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ARTICLE 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
CARE OF THE PREMISES BY TENANT . . . . . . . . . . . . . . . -9-
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ARTICLE 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
REPAIRS AND ALTERATIONS BY TENANT . . . . . . . . . . . . . -9-
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ARTICLE 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
USE OF ELECTRICAL SERVICES BY TENANT . . . . . . . . . . . . -10-
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ARTICLE 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
LAWS AND REGUALTIONS. . . . . . . . . . . . . . . . . . . . . -10-
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14.1 General . . . . . . . . . . . . . . . . . . . -10-
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14.2 Hazardous Materials . . . . . . . . . . . . . -11-
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14.3 Certain Insurance Risks. . . . . . . . . . . . -11-
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ARTICLE 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
BUILDING RULES . . . . . . . . . . . . . . . . . . . . . . . -11-
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ARTICLE 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ENTRY BY LANDLORD . . . . . . . . . . . . . . . . . . . . . . -12-
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ARTICLE 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . -12-
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TABLE OF CONTENTS
Section Page
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ARTICLE 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
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ARTICLE 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . -13-
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19.1 Property Insurance . . . . . . . . . . . . . -13-
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19.2 Liability Insurance . . . . . . . . . . . . -13-
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19.3 Requirements for Insurance Policies . . . . -13-
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19.4 Waiver of Subrogation Rights . . . . . . . . -13-
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ARTICLE 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . -14-
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ARTICLE 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
PROPERTY DAMAGE . . . . . . . . . . . . . . . . . . . . . . -14-
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ARTICLE 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . -15-
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ARTICLE 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
DAMAGES FROM CERTAIN CAUSES . . . . . . . . . . . . . . . . -15-
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ARTICLE 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . -15-
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ARTICLE 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
LANDLORD'S REMEDIES . . . . . . . . . . . . . . . . . . . . -16-
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ARTICLE 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
LANDLORD'S DEFAULT . . . . . . . . . . . . . . . . . . . . . -17-
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ARTICLE 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
PEACEFUL ENJOYMENT. . . . . . . . . . . . . . . . . . . . . -17-
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ARTICLE 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . -17-
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ARTICLE 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
SUBORDINATION TO MORTGAGE. . . . . . . . . . . . . . . . . . -18-
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ARTICLE 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
LANDLORD'S LIEN. . . . . . . . . . . . . . . . . . . . . . . -18-
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ARTICLE 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . . . . . . -18-
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ARTICLE 32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
NO IMPLIED WAVER . . . . . . . . . . . . . . . . . . . . . . -19-
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ARTICLE 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
PERSONAL LIABILITY. . . . . . . . . . . . . . . . . . . . . -19-
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ARTICLE 34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . -19-
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ARTICLE 35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
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ARTICLE 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . -19-
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ARTICLE 37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
RECORDATION . . . . . . . . . . . . . . . . . . . . . . . . -20-
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ARTICLE 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . -20-
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TABLE OF CONTENTS
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Section Page
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ARTICLE 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . -20-
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ARTICLE 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
TIME OF PERFORMANCE . . . . . . . . . . . . . . . . . . . . -20-
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ARTICLE 41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
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TRANSFER BY LANDLORD . . . . . . . . . . . . . . . . . . . . -20-
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ARTICLE 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
COMMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . -20-
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ARTICLE 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
EFFECT OF DELIVERY OF THIS LEASE. . . . . . . . . . . . . . . -20-
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ARTICLE 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY . . . . . . . . . -21-
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ARTICLE 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
JOINT AND SEVERAL LIABILITY. . . . . . . . . . . . . . . . . -21-
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ARTICLE 46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . -21-
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ARTICLE 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. . . . . . . -21-
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ARTICLE 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . -21-
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ARTICLE 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
NO MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
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ARTICLE 50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . -22-
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ARTICLE 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
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LIST OF EXHIBITS
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Principal Reference
Exhibit Description "In Section/Article"
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"A" Legal Description . . . . . . . . . . . . . . . . . 1.4
. . . . . . . . . . . . . . . . . . . . .
"B" Floor Plan of the Premises . . . . . . . . . . . . . 1.15
5
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"C" Parking Agreement . . . . . . . . . . . . . . . . . . 4.2 (ii)
"D" Work Letter . . . . . . . . . . . . . . . . . . . . . 8
"E" Rules and Regulations . . . . . . . . . . . . . . . 15
"F" Commencement Memorandum . . . . . . . . . . . . . . . 1.22
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HUGHES CENTER
LEASE AGREEMENT
THIS LEASE AGREEMENT the "Lease"), is made and entered into as of
the 8th day of October, 1997, between 3770 HUGHES PARKWAY ASSOCIATES, LIMITED
PARTNERSHIP a Nevada limited partnership ("Landlord"), and ROOM SYSTEMS FINANCE
CORPORATION, a _[TO BE INSERTED PRIOR TO EXECUTION]_ corporation ("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
1.1 "Adjustment Months" shall mean the thirteenth (13th) and
twenty-fifth (25th) months of the Lease Term. For purposes of the foregoing
definition, the "first month" of the Lease Term shall be deemed to be the first
full calendar month during the Lease Term.
1.2 "Allowance" shall mean an amount equal to ___N/A___ ($___N/A___)
per square foot of Usable Area in the Premises. The Premises are stipulated for
all purposes to contain six hundred sixty-one (661) square feet of Usable Area.
1.3 "Base Rent" shall mean the sum of One and 95/100 Dollars ($1.95)
per month for each square foot of Rentable Area comprising the Premises which is
equal to Seventeen Thousand Seven Hundred Eighty-Four and 00/100 Dollars
($17,784.00) per annum as adjusted pursuant to Section 5.2 hereof. The Base Rent
due for the first full calendar month during the Lease Term has been paid to
Landlord by Tenant comtemporaneously with Tenant's execution hereof.
1.4 "Building" shall mean (a) the parcel of real property described
in Exhibit "A" attached hereto and incorporated herein, (b) the office building
and parking structure built or to be built on such parcel of real property, and
(c) any and all other improvements thereon and appurtenances thereto. The street
address of the Building is 3770 Howard Hughes Parkway,
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Hughes Center, Las Vegas, Nevada 89109, such street address may be modified by
Landlord from time to time during the Lease Term.
1.5 "Building Core" shall mean the area within the outermost finish
face of that portion of the Building that incorporates those areas that provide
service to the tenants of that floor and to the Building. These areas of service
include: restroom facilities for men and women along with the vestibule and
access, electrical, mechanical, and telephone rooms, janitor closets, elevators
and service elevators along with lobby and stairs, vestibules, and all vertical
floor penetrations for mechanical/electrical/plumbing for the Building.
1.6 "Building Shell" shall mean the condition of the Building
completed with the following improvements: (a) outside walls (not including
drywall), core walls, and elevator lobby areas completed to building standard
condition for public areas; (b) unfinished concrete floors throughout the
Premises, broom clean; (c) building standard 110 volt 220 amp. Power supplied to
the Building Core along with 277/480 volt fluorescent lighting power supplied to
the Building Core; (d) Men's and ladies' restroom facilities with building
standard finished located on each floor on which the Premises are located; (e)
building standard voice communication speakers and smoke detectors in accordance
with applicable building codes and provided only at the core; and (f)
mechanical, electrical, plumbing, life safety, heating, air conditioning and
ventilation in Building Core area as required to connect to and service the
Premises.
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1.7 "Commencement Date: shall mean the earlier of (i) the date that
Tenant actually commences any business operations from the Premises or (ii)
October 15, 1997.
1.8 "Expense Stop" shall mean the amount (per square foot of Rentable
Area of the Premises) Landlord herewith agrees to expend as its share of
Operating Expense (which shall be a credit for Tenant to apply to offset
Operating Expenses charged to the Premises), not to exceed the total amount of
Operating Expenses for calendar year 1997 (the "Base Year") (per square foot of
Rentable Area in the Building); provided, however, that if occupancy of the
Building during the Base Year is less than ninety-five percent (95%), Operating
Expenses for the Base Year shall be "grossed up" to that amount of Operating
Expenses that, using reasonable projections, would normally be expected to be
incurred if the Building were ninety-five (95%) occupied during the Base Year.
With respect to Real Property Taxes included in Operating Expenses for the Base
Year, such amount shall be determined under the assumption that the building is
fully assessed as a completed and occupied unit.
1.9 "Index" shall mean the Consumer Price Index, Urban Wage Earners
and Clerical Workers for Los Angeles, Anaheim and Riverside Area, all items
(1982-1984-100), as published by the Bureau of Labor Statistics of the United
States Department of Labor. In the event that the Index is discontinued or is
revised to substantially alter the calculations under Section 5.2, Landlord
shall select such other government index which provides substantially the same
result as would have been obtained if the Index had not been so discontinued or
revised.
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1.10 "Laws" shall mean all applicable statutes, regulations,
ordinances, requirements and orders promulgated by any federal, state, local or
regional governmental authority now in force or in the force after the
Commencement Date.
1.11 "Lease Interest Rate" shall mean the lesser of (a) that
fluctuating rate of interest equal to two percentage points (2%) over the rate
of interest announced from time to time by the Bank of America National Trust
and Savings Association as its prime or reference commercial lending rate (or in
the event such bank ceases to announce such rate, then by such other federally
regulated banking institution as Landlord shall determine), or (b) the maximum
interest rate permitted by law.
1.12 "Lease Term" shall mean the term commencing on the Commencement
Date and continuing until thirty-six (36) months after the first day of the
first full calendar month following the Commencement Date.
1.13 "Mortgagee" shall mean the mortgagee under a mortgage or
beneficiary under a deed of trust holding a lien encumbering the Building or any
holder of a ground leasehold interest in the Building or any part thereof.
1.14 "Operating Expenses" shall mean all costs of any kind paid or
incurred by Landlord in owning, operating, cleaning, equipping, protecting,
lighting, repairing, replacing, heating, air-conditioning and maintaining the
Building as a first class office project, and a proration of Operating Expenses
for all common areas within Hughes Center as provided in the REA or as otherwise
determined by Landlord, including by way of illustration but not limitation, all
of the following: (a) all amounts charged to the Building pursuant to the REA;
(b) Real Property Taxes; (c) all costs, charges and surcharges for utilities,
water, sewage, janitorial, waste disposal and refuse removal and all other
utilities and services provided to the Building; (d) insurance costs for which
Landlord is responsible under this Lease or which Landlord or any Mortgagee
deems necessary or prudent; (e) any costs levied, assessed or imposed pursuant
to any applicable Laws; (f) the cost (amortized over such period as Landlord
reasonably determines together with interest at the Lease Interest Rate on the
unamortized balance) of any capital improvements to the Building or equipment
replacements made by Landlord after the Commencement Date that are intended to
reduce other Operating Expenses or are required by any Laws or are necessary in
order to operate the Building at the same quality level as prior to such
replacement; (g) costs and expenses of operation, repair and maintenance of all
structural and mechanical portions and components of the Building including,
without limitation, plumbing, communication, heating, ventilating and
air-conditioning ("HVAC"), elevator, and electrical and other common Building
systems; (h) a pro rata portion of the cost of the management office rental for
Hughes Center; (i) all costs incurred in the management and operation of the
Building including, without
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limitation, gardening and landscaping, maintenance of all parking areas,
structures and garages, maintenance of signs, resurfacing and repaving,
painting, lighting, cleaning, and provision of Building security; (j) all
personal property taxes levied on or attributable to personal property used in
connection with the Building; (k) depreciation on personal property owned by
Landlord which is consumed in the operation or maintenance of the Building; (l)
rental or lease payments paid by Landlord for rented or leased personal property
used in the operation or maintenance of the Building; (m) management fees,
wages, salaries and other labor costs incurred in the management and operation
of the Building; (n) fees for required licenses and permits; (o) reasonable
legal, accounting and other professional fees; (p) reasonable and appropriate
reserves for repair and replacement; and (q) a reasonable allowance to Landlord
for supervision of all of the foregoing not to exceed five percent (5%) of the
total of all other Operating Expenses. If the Building is not fully occupied
during any portion of the Lease Term, Landlord shall make an appropriate
adjustment to Operating Expenses for such period employing sound accounting and
management principles, to determine the amount of Operating Expenses that would
have been incurred had the Building been fully occupied during such period
(collectively referred to as "Grossed-Up"). Operating Expenses shall not include
depreciation of the Building or equipment therein, commissions of real estate
brokers and leasing agents, nor any amounts expended for tenant improvements.
1.15 "Premises" shall mean that space known as Suite 175 as outlined
on the floor plan attached to this Lease as Exhibit "B" and incorporated herein.
The Premises are stipulated for all purposes to contain seven hundred sixty
(760) square feet of Rentable Area.
1.16 "REA" shall mean (i) that certain Amendment and Restatement of
the Grant of Reciprocal Easements and Declaration of Covenants (Phase I)
recorded in the Official Records of Clark County, Nevada on September 8, 1995,
in Book 950908 as Instrument No. 01919 as may be amended from time to time and
(ii) that certain Howard Hughes Declaration of covenants recorded in the
Official Records of Clark County, Nevada on October 11, 1985 in Book 2199 as
Instrument No. 2158547, as amended by the First Amendment to Howard Hughes
Center Declaration of Covenants dated August 29, 1995 recorded in the Official
Records of Clark County, Nevada on September 8, 1995 in Book 950908, Instrument
No. 01918 and as further amended by the Second Amendment to Howard Hughes enter
Records of Clark County, Nevada on December 6, 1995 in Book 951206, Instrument
No. 00257 as may be amended from time to time; provided, however, that no such
further amendment or supplement shall in any event decrease Tenant's rights,
materially increase Tenant's financial obligations, or increase Tenant's
non-financial obligations under this Lease.
1.17 "Real Property Taxes: shall mean and include any form of tax,
assessment, license fee, license tax, business license fee, commercial rental
having the direct power to tax, including any city, county, state or federal
government, or any school,. Lighting, drainage, transportation, air pollution,
environmental or other improvement or special assessment district thereof, as
against any legal or equitable interest of Landlord in the Building and/or the
Premises, including, but not limited to, the following: (a) any tax on
Landlord's "right" to rent or "right" to other income from the Premises or as
against Landlord's business of leasing the Premises; (b) any assessment, tax,
fee, levy or charge in substitution, partially or totally, of any assessment,
tax, fee, levy or charge previously included within the definition of Real
Property Taxes (it is the
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intention of Tenant and Landlord that all such new and increased assessments,
taxes, fees, levies and charges be included within the definition of "Real
Property Taxes: for the purposes of this Lease); (c) any assessment, tax, fee,
levy or charge allocable to or measured by the area of the Premises or the rent
payable hereunder, including, without limitation, any gross income tax,
political subdivision thereof, with respect to the receipt of such rent, or upon
or with respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use or occupancy of the Building, or any portion thereof;
(d) any assessment, tax, fee, levy or charge upon this transaction creating or
transferring an interest or an estate in the Premises; (e) any assessment, tax,
fee, levy or charge based upon the number of people employed, working at, or
using the Premises of the Building, or utilizing public or private
transportation
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to commute to the Premises or the Building; and (f) reasonable legal and other
professional fees, costs and disbursements incurred in connection with
proceeding to contest, determine or reduce Real Property Taxes.
Real Property Taxes shall not include federal or state income,
franchise, inheritance or estate taxes of Landlord or any of the parties which
comprise Landlord.
1.18 "Rentable Area" of the Premises shall mean the total of the
following measurements to be determined by Landlord: (a) the entire area
included within the Premises, being the area bounded by the inside surface of
any exterior glass walls (or the inside surface of the Permanent exterior wall
where there is no glass) of the Building bounding the Premises, the exterior of
all walls separating the Premises from any public corridors or other public
areas, and the centerline of all walls separating the Premises from other areas
leased or to be leased to other tenants, (b) a pro rata portion based on the
space occupied on the floor or floors on which the Premises is located ( the
"Floor(s)") of the areas covered by the elevator lobbies, corridors, restrooms,
and by mechanical rooms, electrical rooms and telephone closets situated on the
Floor(s) (such pro rata portion shall be the same percentage that the amount of
Rentable Area in the Premises bears to the Rentable Area on the Floor(s) on
which the Premises is located), other than those servicing the entire Building,
and (c) a pro rata portion of the lobby area on the ground floor of the Building
and of area of the Building containing the electrical/emergency equipment, fire
pump equipment, electrical switching gear, telephone equipment, mail delivery
room and other facilities serving the Building (such pro rata portion shall be
the same percentage that the amount of Rentable Area of the Premises bears to
the total Rentable Are in the entire Building). The Building is stipulated for
all purposes to contain sixty-three thousand seven hundred fifty-eight (63,758)
square feet of Rentable Area.
1.19 "Security Deposit" shall mean the sum of One Thousand Four
Hundred Eighty-Two and 00/100 Dollars ($1,482.00). The Security Deposit has been
paid to Landlord by Tenant contemporaneously with Tenant's execution hereof.
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1.20 "Tenant's Share" shall be a fraction of which the numerator is
the Rentble Area of the Premises as set forth in Section 1.15. and the
denominator is the Rentable Area in the Building as set forth in Section 1.18.
1.21 "Usable Area: for the Premises shall mean the Rentable Area for
the Premises, minus the following reductions as determined by Landlord: the
Premises pro rata portion of the lobby area on the ground floor and
electrical/emergency equipment, fir pump equipment, electrical switching gear,
telephone equipment, mail delivery facilities, elevator penthouse, security
rooms, trash rooms and other areas which service the entire Building as
specified in the definition of Rentable Area, and (b) the Premises' pro rata
portion of the space occupied on the Floor(s) of Premises covered by the
elevator lobbies, corridors, restrooms, mechanical rooms, electrical rooms and
telephone closets situated on such Floors as specified in the definition of
Rentable Area.
1.22 "Commencement Memorandum: shall mean a document similar to
Exhibit "F" attached hereto. The Commencement Memorandum, among other things,
shall contain a reference to the Rentable Area of the Premises and Useable Area
of the Premises. Tenant agrees that the Rentable Area and Useable Area of the
Premises stated in the Commencement Memorandum shall be binding throughout the
Lease Term.
ARTICLE 2
LEASE GRANT
Subject to and upon the terms and conditions herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises.
ARTICLE 3
LEASE TERM
Landlord will be deemed to have delivered to Tenant possession of
the Premises in its "as is" condition as of the Commencement Date. Tenant
acknowledges that neither Landlord nor its agent or employees have made any
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representations or warranties as to the suitability or fitness of the Premises
for the conduct of Tenant's business or for any other purpose, nor has Landlord
or its agents or employees agreed to undertake any alterations or construct any
tenant improvements to the Premises except as expressly provided in this Lease
and pursuant to Schedule 1 of the Work letter attached hereto as Exhibit "D". If
for any reason Landlord cannot deliver possession of the Premises to Tenant on
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or before the fixed date component of the Commence Date, this Lease will not be
void or voidable, and Landlord will not be liable to Tenant for any resultant
loss or damage.
Notwithstanding anything to the contrary contained herein, Tenant
shall have the right to terminate the Lease at any time, provided Tenant
satisfies the following conditions precedent to Tenant's right to terminate:
(i) Landlord and Tenant mutually execute a new lease ("Replacement
Lease") for replacement space ("Replacement Space") at Hughes Center, La
Vegas, Nevada 89109;
(ii) Tenant occupies the Replacement Space, makes the first month's
rent, and has not committed a default (or with the passage of time and
notice a default would occur) under the Replacement Lease; and
(iii) Tenant is not currently in default under the Lease or with the
passage of time and notice would be in default under the Lease.
Upon Tenant's satisfaction of all of the above conditions precedent to Tenant's
right to terminate, all future obligations under the Lease with respect to
Tenant and Landlord shall automatically terminate, provided Tenant shall
continue to be liable for all obligations arising prior to the termination of
the Lease.
ARTICLE 4
USE OF PREMISES AND COMMON AREAS
4.1 Premises. The Premises shall be used for general office purposes
and for no other purposes. Tenant will use the Premises in a careful, safe, and
proper manner. Tenant agrees not to use or permit the use of the Premises for
any purpose which is =illegal or prohibited by any applicable Laws, or which, in
Landlord's opinion, creates a nuisance or would increase the cost of insurance
coverage with respect to the Building. Tenant shall not use or occupy the
Premises exceeding the average pounds live load per square foot of floor area
specified for the Building by Landlord's architect, with the partitions to be
considered part of the live load. Landlord reserves the right to prescribe the
weight and position of all safes, files and heavy equipment which Tenant desires
to place in the Premises so as to distribute properly the weight thereof.
4.2 Common Areas of Building. Tenant shall have the nonexclusive right
to use in common with other tenants in the Building, and subject to the rules of
the Building referred to in Article 15 below, the following areas ("Common
Areas") appurtenant to the Premises:
(i) The common entrances, lobbies, restrooms, elevators,
stairways and accessways, loading dock, ramp, drives and platforms and any
passageways and serviceways thereto, and the common pipes, conduits, wires
and appurtenant equipment serving the Premises;
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(ii) Parking areas (subject to the provisions of the Parking
Agreement attached hereto as Exhibit "C"), loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways, driveways and
landscaped areas appurtenant to the Building.
4.3 Landlord's Rights in Common Area. Landlord reserves the right from
time to time without unreasonable interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, ducts,
conduits, wires and appurtenant meters and equipment for
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service to other parts of the Building above the ceiling surfaces, below the
floor surfaces, within the walls and in the central core areas, and to
relocate any pipes, ducts, conduits, wires and appurtenant meters and
equipment included in the Premises which are located in the Premises or
located elsewhere outside the Premises, and to expand the Building;
(ii) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas and walkways and, subject to the Parking
Agreement, parking spaces and parking areas;
(iii) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(iv) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building, or any portion
thereof;
(v) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Building as Landlord
may, in the exercise of sound business judgment, deem to be appropriate.
ARTICLE 5
BASE RENT AND ADDITIONAL RENT
5.1 Base Rent. Tenant agrees to pay to Landlord during the Lease Term,
without any setoff or deduction whatsoever the Base Rent, and all such other
sums of money as shall becom due hereunder as Additional Rent. Should Tenant
fail to pay any Additional Rent in a timely manner, Landlord shall be entitled
to exercise all such rights and remedies as are herein provided in the case of
th enonpayment of Base Rent. The annual Base Rent for each calendar year or
portion thereof during the Leae Term, together with estimated Additional Rent
pursuant to
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Article 6 hereof then in effect, shall be due and payable in advance, in lawful
money of the United States of America which shall be legal tender at the time of
payment, in twelve (12) equal installments on the first day of each calendar
month during the initial term of this Lease and any expensions or renewals
thereof, and Tenant hereby agrees to pay such Base Rent and Additional Rent to
Landlord at Landlord's address provided herein (or such other address and may be
designated by Landlord in writing from time to time) monthly, in advance, and
without demand. If the Lease Term commences on a day other than the first day of
a month or terminates on a day other than the last day of a month, then the
installments of Base Rent and Additional Rent for such month or months shall be
prorated, based on the number of days in such month.
5.2 Cost of Living Increases. The Base Rent shall be increased on the
first day of each Adjustment Month specified in Section 1.1 in proportion to the
increase in the Index which has occurred between the month which is three (3)
months prior to the first month of the Lease Term, in the case of the first
increase (and three (3) months prior to the first month of the previous
Adjustment Month subsequent increases) and the month which is three (3) months
prior to such Adjustment Month. In the event the increase in the Index for an
Adjustment Month is less than three percent (3%), the increase in the Index for
that Adjustment Month shall be deemed three percent (3%). Landlord shall notify
Tenant of each increase by delivering a written statement setting forth the
Indices, and the new amount of the Base Rent by reason of any decrease in the
Index. Tenant shall pay the new Base Rent from its effective date until the
periodic increase. If the Index for the month in which the Base Rent is to be
increased is not available at the time the Base Rent for such month is payable,
the most recently available Index shall be used as the basis for an estimate and
when the Index for such month becomes available, the parties shall adjust for
any variation between the estimated and actual Base Rent for such month.
5.3 Additional Rent. All charges payable by Tenant hereunder other
than Base Rent (including, without limitation, Operating Expenses payable
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pursuant to Article 6 below) are called " Additional Rent." Unless this Lease
provides otherwise, all Additional Rent shall be paid with the next monthly
installment of Base Rent. Base Rent and Additional Rent are sometimes referred
to collectively as "Rent."
5.4 Interest on Late Payments. All installments of Rent not paid when
due and payable shall bear interest at the Lease Interest Rate from the date due
until paid. In addition, if any installment of Rent is not received by Landlord
within five (5) days after notice that said amount is past due from Landlord to
Tenant, Tenant shall pay to Landlord, as Additional Rent, five percent (5%) of
the overdue amount as a late charge. Landlord's acceptance of any late charge or
interest shall not constitute a waiver of Tenant's default with respect to the
overdue amount nor prevent Landlord from exercising any of the other rights and
remedies available to Landlord under this Lease or any law now or hereafter in
effect.
ARTICLE 6
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BASE RENT ADJUSTMENT
The Base Rent payable hereunder shall be adjusted upward from time to
time in accordance with the following provisions:
(a) Tenant shall pay to Landlord as an adjustment to Rent, an amount
equal to the excess (the "Excess") from time to time of total annual
Operating Expenses per square foot of Rentable Area of the Premises, as
Grossed-Up, over and above the Expense Stop. The Excess shall be obtained by
multiplying (I) the difference between the annual Operating Expense per
square foot of Rentable Area in the Premises and the Expense Stop, by (ii)
the total Rentable Area of the Premises as set forth in Section 1.15. Such
amount shall be pain in advance in monthly installments on the same dates as
Base Rent is due an payable hereunder based on Landlord's notice delivered
to Tenant from time to time setting forth Landlord's good faith estimate of
the Operating Expenses for the current calendar year. Landlord shall have
the right to adjust such amount no more than once a year to reflect any
changes in Landlord's estimate of Operating Expenses.
(b) By April 1 of each calendar year during the lease Term, or as soon
thereafter as practical but no later than May 1, Landlord shall furnish to
Tenant a statement. ("Actual Statement") of Landlord's annual Operating
Expenses, as Grossed-Up, for the previous calendar year. If for any calendar
year the amounts collected from Tenant for the prior year, as a result of
Landlord's estimate of Operating Expenses, exceeds the amount of the Excess
actually due during such prior year, then Landlord shall refund to Tenant
any overpayment (or at Landlord's option, apply such amount against Rent due
or to become due hereunder). Likewise, Tenant shall pay to the Landlord, on
demand, any underpayment with respect to the prior year.
(c) In the event of any good faith dispute as to the amount of the
Excess as set forth in the statement of actual Operating Expenses, Tenant
shall have the right, no more frequently than once per calendar year, after
reasonable notice to Landlord and at reasonable times, to inspect and
photocopy Landlord's Operating Expenses records at Landlord's officer. If,
after such inspection and photocopy, Tenant continues, in good faith, to
dispute the amount of the Excess, as set forth in said statement, Tenant
shall be entitled not later than one (1) year following Tenant's receipt of
an Actual Statement to retain a national, independent, certified public
accountant who is not contracted on a contingency fee basis and is mutually
acceptable to landlord and Tenant to and is mutually acceptable to Landlord
and Tenant to audit Landlord's Operating Expenses records with respect to
the calendar year covered by Actual Statement to determine the proper
amount of the Excess. Landlord shall be entitled to review the results of
such audit promptly after completion of same. If the results of such audit
prove that Landlord has overcharged Tenant, then within fifteen (15) days
after the results of the audit are made available to Landlord, Landlord
shall credit Tenant the amount of such
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overcharge toward the payments of Base Rent and Additional Rent next coming
due under this Lease. If the audit proves that Landlord has undercharged
Tenant, then within fifteen (15) days after the results of the audit are
made available to Tenant, Tenant shall pay to Landlord the amount of any
such undercharge. Tenant agrees to pay the cost of such audit, provided
that Landlord shall reimburse Tenant the amount of such cost if the results
of such audit prove that Landlord's determination of the Operating Expenses
(as set forth in the Actual Statement) was in error by more than six
percent (6%). If Tenant does not request an audit in accordance with the
provisions of this Section 6(c) within one (1) year after Tenant's receipt
of an Actual Statement, such Actual Statement shall be conclusively binding
upon Tenant. Landlord shall be required to maintain records of all
Operating Expenses for three (3) years following the issuance of the
Operating Expense statement for such Operating Expenses. The payment by
Tenant of any amounts pursuant to this Article shall not preclude Tenant
from questioning the correctness of any such statement.
ARTICLE 7
SERVICES TO BE FURNISHED BY LANDLORD
Landlord agrees to furnish Tenant the following services as an
Operating Expense for the Building (except as specifically provided below):
(a) Hot and cold water at those points of supply provided for general
use of other tenants in the Building, central heat and air conditioning in
season, at such temperatures and in such amounts as are considered by
Landlord to be standard or as required by governmental authority; provided,
however, heating and air conditioning service at times other than "Normal
Business Hours" for the Building (which are 8:00 a.m. to 6:00 p.m. on
Mondays through Fridays and 8:00 a.m. to 1:00 p.m. on Saturdays, exclusive
of federally recognized holidays), shall be furnished upon receipt of a
phone request by Tenant utilizing Landlord's computer which permits Tenant
to make phone requests for such heating and air conditioning services.
Tenant shall bear the entire cost of such additional services. Tenant shall
bear the entire cost of such additional service as such costs are determined
by Landlord from time to time. Currently, Landlord is charging Forty-Five
and 00/100 Dollars ($45.00) per hour for each hour of other than " Normal
Business Hours: heating and air conditioning service.
(b) Routine maintenance and electric lighting service for all Common
Areas and service areas of the Building in the manner and to the extent
deemed by Landlord to be standard.
(c) Janitorial service, five (5) days a week, exclusive of federally
recognized holidays; provided, however, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the additional
cleaning cost attributable thereto as Additional Rent upon presentation of a
statement therefor by Landlord.
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(d) Subject to the provisions of Article 13, facilities to provide all
electrical current required by a typical office user, as determined by
Landlord, in its use and occupancy of the Premises.
(e) All Building Standard fluorescent bulb replacement in the Premises
and fluorescent and incandescent bulb replacement in the Common Areas of the
Building.
(f) Security in the form of limited access to the Building during other
than Normal Business Hours shall be provided in such form as Landlord deems
appropriate. Landlord may charge a fee for card keys or other security
devices. Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to theft or
burglary, or for damages resulting from the actions of unauthorized persons
on the Premises or in the Building and Landlord shall not be required to
insure against any such losses. Tenant shall cooperate fully in Landlord's
effort to
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maintain security in the Building and shall follow all regulations
promulgated by Landlord which respect thereto.
(g) Access to the Premises, the Building, and the parking facilities
twenty-four (24) hours a day, seven (7) days per week and fifty-two (52)
weeks per year; provided, however, such access shall be limited by the
building access system, parking facilities access system, and temporary
closures that may be necessary to maintain the Building and/or parking
facilities.
The failure by Landlord to any extent to furnish, or the interruption or
termination of these defined services in whole or part, resulting from
causes beyond the reasonable control of Landlord shall not render Landlord
liable in any respect nor be construed as an eviction of Tenant, nor work
and abatement of Rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used
in the provision of such services for any cause cease to function properly,
Tenant shall have no claim for offset or abatement or rent or damages on
account of an interruption in service resulting therefrom.
ARTICLE 8
IMPROVEMENTS TO BE MADE BY LANDLORD
Except as otherwise provided in the Work Letter attached hereto as
Exhibit "D," all installations and improvements now or hereafter placed on
the Premises shall be for Tenant's account and at Tenant's cost (and Tenant
shall pay ad valorem taxes and the cost
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of any increased insurance premiums thereon or attributable thereto), which
cost shall be payable by Tenant to Landlord upon demand as Additional Rent.
ARTICLE 9
MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD
Except as otherwise expressly provided herein, Landlord shall not be
required to perform any maintenance or to make any repairs to the Premises.
ARTICLE 10
GRAPHICS
Landlord shall provide and install, at Tenant's cost, all letters or
numerals on doors in the Premises; all such letters and numerals shall be in
the standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent. Tenant
shall have the right to designate one (1) name on the directory board in the
lobby of the Building. Landlord shall have the option to maintain, in place
of the directory board in the lobby of the Building, a computerized
directory with display screen which has the capacity to accommodate Tenant's
name designation.
ARTICLE 11
CARE OF THE PREMISES BY TENANT
Tenant agrees not to commit or allow any waste to be committed on any
portion of the Premises, and at the termination of the Lese agrees to
deliver up the Premises to Landlord in as good condition as at the
Commencement Date of this Lease, ordinary wear and tear excepted.
ARTICLE 12
REPAIRS AND ALTERATIONS BY TENANT
Tenant covenants and agrees that Tenant shall be responsible, at
Tenant's own cost and expense, for costs incurred by Landlord to repair or
replace any damage done to the Building, or any part thereof, caused by
Tenant or Tenant's agents, employees, invitees, or visitors, to as good a
condition as requested by Landlord to do so, at Tenant's sole cost and
expense, maintain and make all repairs to the Premises and the improvements
therein, to keep, maintain
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and preserve the Premises in first-class condition, excepting ordinary wear
and tear. Any such maintenance and repairs shall be performed by a
contractor approved by Landlord. If Tenant fails to make such repairs or
replacements promptly, Landlord may, at its option, make repairs or
replacements, and Tenant shall pay the cost thereof to Landlord on demand as
Additional Rent. Tenant agrees with Landlord not to make or allow to be made
any alterations to the Premises, install any vending machines on the
Premises, or place signs on the Premises which are visible from outside the
Premises, without first obtaining the written consent of Landlord in each
such instance, which consent way be given on Landlord's approval prior to
the construction of any alterations, a complete set of plans and
specifications for the proposed alterations, additions or improvements,
copies of contracts with general contractors, evidence of contractor's
insurance and bonds, and all necessary permits for such construction.
Landlord may require Tenant to provide demolition and/or lien and completion
bonds in form and amount satisfactory to Landlord. All alterations,
additions, and improvements will be accomplished in a good and workmanlike
manner, in conformity with all applicable laws, and by a contractor approved
by Landlord. Landlord's approval of the plans, specifications and working
drawings for Tenant's alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design,
sufficiency, or compliance with all laws, rules and regulations of
governmental agencies or authorities. Upon completion of any such work,
Tenant shall provide Landlord with "as built" plans, copies of all
construction contracts, and proof of payment for all labor and materials.
Any and all alterations to the Premises shall become the property of
Landlord upon termination of this Lease (except for movable equipment or
furniture owned by Tenant). Landlord may, nonetheless, require Tenant to
remove any an all fixtures, equipment and other improvements installed on
the Premises. In the event that Landlord so elects, and Tenant fails to
remove such improvements, Landlord may remove such improvements at Tenant's
cost, and Tenant shall pay landlord on demand the cost of restoring the
Premises to the condition that existed immediately prior to the construction
of such improvements.
ARTICLE 13
USEE OF ELECTRICAL SERVICES BY TENANT
Tenant's use of electrical services furnished by Landlord shall be
subject to the following:
(a) Landlord agrees to furnish to the Premises, at no extra cost to
Tenant but as an Operating Expense, five (5) watts of electric current,
connected load, per square foot of Usable area during Normal Business
Hours within the Premises on an annualized basis for normal lighting,
normal fractional horsepower office machines, and HVAC as required in
Landlord's judgment for the use and occupation of the Premises.
(b) In the event that Tenant requires or uses more electric power than
specified in Section 13(a) above, Landlord may, at Landlord's option,
require Tenant to pay the cost as reasonably determined by Landlord of
such extraordinary usage as Additional Premises, at Tenant's sole cost
and expense, and Tenant shall thereafter pay all charges of the utility
company providing electric service and landlord shall make and
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appropriate adjustment to Tenant's obligation to pay a proportionate
share of the Operating Expenses to account for the fact that Tenant is
directly paying such metered charges.
ARTICLE 14
LAWS AND REGULATIONS
14.1 General. At its sole cost and expense, Tenant will promptly
comply with all Laws, statutes, ordinances, and governmental rules, regulations,
requirements now in force or in force after the commencement Date, with the
requirements of any board of fire underwriters or other similar body constituted
now or after the date, with any direction or occupancy certificate issued
pursuant to any law by any public officer or officers, as well as with the
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provisions of all recorded documents affecting the Premises, insofar as they
relate to the condition, use, or occupancy of the Premises.
14.2 Hazardous Materials,
(a) For the purposes of this Lease, "Hazardous Materials"
means any explosives, radioactive materials, hazardous wastes, or hazardous
substances, including without limitation substances defined as "hazardous
substances: in the Comprehensive Environmental Response, compensation and
Liability Act of 1980, as amended, 43 U.S.C. ## 90601-9657; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. ## 1801-1812; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ## 6901-6987; or any other
federal, state, or local statute, law, ordinance, code, rule, regulation, order,
or decree regulating, relating to, or imposing liability or standards of conduct
concerning hazardous material, waste, or substances now or at any time hereafter
in effect (collectively, "Hazardous Materials Laws").
(b) Tenant will not cause or permit the storage, use,
generation, or disposition of any Hazardous Materials in, on, or about the
Premises or the project by Tenant, its agents, employees, or contractors. Tenant
will not permit the Premises to be used or operated in a manner that may cause
the Premises or the project to be contaminated by any Hazardous materials in
violation of any Hazardous Materials Laws. Tenant will immediately advise
Landlord in writing of (1) any and all enforcement, cleanup, remedial, removal,
or other governmental or regulatory actions instituted, completed, or threatened
pursuant to any Hazardous Materials Laws relating to any Hazardous Materials
affecting the Premises; and (2) all claims made or threatened by any third party
against Tenant, landlord, or the Premises relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any Hazardous materials
on or about the Premises. Without Landlord's prior written consent, Tenant
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will not take any remedial action or enter into any agreements or settlements in
response to the presence of any Hazardous Materials in, on, or about the
Premises.
(c) Tenant will be solely responsible for and will defend,
indemnify and hold Landlord, its agents, and employees harmless from and against
all claims, costs, and liabilities, including attorneys' fees and costs, arising
out of or in connection with Tenant's breach of its obligations in this Article
14. Tenant will be solely responsible for and will defend, indemnify, and hold
Landlord, its agent, and employees harmless from and against any and all claims,
costs, and liabilities, including attorneys' fees and costs, arising out of or
in connection with the removal, cleanup, and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located in, on, or about the Building, to their condition existing prior to the
introduction of Hazardous Material by Tenant, its agents, employees or
contractors. Tenant's obligations under this Article 14 will survive the
expiration or other termination of this Lease.
14.3 Certain Insurance Risks. Tenant will not do or permit to be done
any act or thing upon the Premises or the Building which would (i) jeopardize or
be in conflict with fire insurance policies covering the Building or covering
any fixtures and property in the Building; (ii) increase the rate of fire
insurance applicable to the Building to an amount higher than it otherwise would
be for general office use of the Building; or (iii) subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon the Premises.
ARTICLE 15
BUILDING RULES
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invitees and visitors to do so; all changes to such rules will be sent by
Landlord to Tenant in writing.
ARTICLE 16
ENTRY BY LANDLORD
Tenant agrees to permit Landlord or its agents or representatives to
enter into and upon any part of the Premises at all reasonable hours (and in
emergencies at all times) to inspect the same, or to show the Premises to
prospective purchasers, Mortgagees, tenants or insurers, to clean or make
repairs, alterations or additions thereto, and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof.
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ARTICLE 17
ASSIGNMENT AND SUBLETTING
17.1 Tenant shall not assign, sublease, transfer or encumber this
Lease or any interest therein. Any attempted assignment or sublease by Tenant in
violation of the terms and covenants of this Article 17 shall be void.
17.2 If Tenant requests Landlord's consent to an assignment of this
Lease or subletting of all or part of the Premises, Landlord shall have the
option (without limiting Landlord's other rights hereunder) of terminating this
Lease upon thirty (30) days notice. Landlord may then, at Landlord's option,
lease space to the prospective assignee or subtenant. If Landlord should fail to
notify Tenant in writing of its decision within a thirty (30) day period after
Landlord is notified in writing of the proposed assignment or sublease, Landlord
shall be deemed to have refused to consent to such proposed assignment or
sublease, and to have elected to keep this Lease in full force and effect.
17.3 All cash or other proceeds of any assignment, sale or sublease of
Tenant's interest in this Lease, whether consented to by Landlord or not, shall
be paid to Landlord notwithstanding the fact that such proceeds exceed the Rent
called for hereunder, unless Landlord agrees to the contrary in writing, and
Tenant hereby assigns all rights it might have or ever acquire in any such
proceeds to Landlord. This covenant and assignment shall run with the land and
shall bind Tenant and Tenant's heirs, executors, administrators, personal
representatives, successors and assigns. Any assignee, subleasee or purchaser of
Tenant's interest in this Lease (all such assignees, subleasees and purchasers
being hereinafter referred to as "Successors"), by assuming Tenant's obligations
hereunder, shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such Successor in consideration of any such sale,
assignment or subletting, in violation of the provisions hereof.
17.4 No assignment, sublease or other transfer consented to by
Landlord, shall release Tenant or change Tenant's primary liability to pay the
rent and to perform all other obligations of Tenant under this Lease. Upon the
occurrence of any default under this Lease, Landlord may proceed directly
against Tenant without the necessity of exhausting any remedies against any
subtenant or assignee. Upon termination of this Lease, any permitted subtenant
shall, at Landlord's option, Attorn to Landlord and shall pay all Rent directly
to constitute a waiver of any provision of this Article 17. Consent to one
transfer shall not constitute a consent to any subsequent transfer. Landlord may
consent to subsequent assignments or modifications of this Lease by Tenant's
transferee, without notifying Tenant or obtaining its consent. Such action shall
not relieve Tenant of its liabilities.
17.5 No merger shall result from Tenant's sublease of the Premises
under this Article 17, Tenant's surrender of this Lease or the termination of
this Lease in any other manner. In any such event, Landlord may terminate any or
all subtenancies or succeed to the interest of Tenant as sublandlord thereunder.
ARTICLE 18
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LIENS
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Tenant will not permit any mechanic's lien(s) or other liens to be
placed upon the Premises or the Building and nothing in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any person for the
performance of any labor or the furnishing of any materials to the Premises, or
any part thereof, nor giving Tenant any right, power, or authority to contract
for or permit the rendering of any services or the furnishing of any materials
that would give rise to any mechanics' or other liens against the Premises. In
the event any such lien is attached to the Premises, then, in addition to any
other right or remedy of Landlord, Landlord may, but shall not be obligated to,
discharge the same. Any amount paid by Landlord for any of the aforesaid
purposes shall be paid by Tenant to Landlord on demand as Additional Rent.
ARTICLE 19
INSURANCE
19.1 Property Insurance. Landlord shall maintain property coverage
insurance on the Building Shell and appurtenant structures in the Common Areas
in such amounts as Landlord and any Mortgagees may deem necessary or
appropriate. Such insurance shall be maintained at the expense of Landlord (as a
part of Operating Expenses), and payments for losses thereunder shall be made
solely to Landlord or the Mortgages as their respective interests shall appear.
Tenant shall obtain and keep in force at all times during the Lease Term, a
policy or policies of insurance covering loss or damage to all of the
improvements, betterments, income and business contents located within the
Premises other than the Building Shell (including all improvements constructed
pursuant to Exhibit "D") in the amount of the full replacement value thereof as
ascertained by the Tenant's insurance carrier, as the same may exist from time
to time, against all perils normally covered in an "all risk" policy (including
the perils of flood and surface waters), as such term is used in the insurance
industry; provided, however, that Tenant shall have no obligation to insure
against earthquake.
19.2 Liability Insurance Tenant shall, at Tenant's expense, maintain a
policy of Commercial General Liability insurance insuring Landlord and Tenant
against liability arising out of the ownership, use, occupancy or maintenance of
the Premises. Such insurance shall be on an occurrence basis providing
single-limit coverage in an amount not less than One Million Dollars
($1,000,000) per occurrence. The initial amount of such insurance shall be
subject to periodic increase upon reasonable demand by Landlord based upon
inflation, increased liability awards, recommendation of professional insurance
advisers, and other relevant factors. However, the limits of such insurance
shall not limit Tenant's liability nor relieve Tenant of any obligation
hereunder. Landlord shall be named as an additional insured on said policies and
the
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policies shall contain the following provision: "Such insurance as afforded by
this policy for the benefit of Landlord shall be primary as respects any claims,
losses or liabilities arising out of the use of Premises by the Tenant or by
Tenant's operation and any insurance carried by Landlord shall be excess and
non-contributing." The policy shall insure Tenant's performance of the indemnity
provisions of Articles 14 and 20.
19.3 Requirements for Insurance Policies. Insurance required to be
maintained by Tenant hereunder shall be in companies holding a "General
Policyholders' Rating" of A or better and a "financial rating" of 10 or better,
as set forth in the most current issue of "Best's Insurance Guide." Tenant shall
promptly deliver to Landlord, within thirty (30) days of the Commencement Date,
original certificates evidencing the existence and amounts of such insurance. No
such policy shall be cancelable or subject to reduction of coverage except after
sixty (60) days prior written notice to Landlord. Tenant shall, within thirty
(30) days prior to the expiration, cancellation or reduction of such policies,
furnish Landlord with renewals or "binders" thereof. Tenant shall not do or
permit to be done anything which shall invalidate the insurance policies
required under this lease.
19.4 Waiver of Subrogation Rights. Tenant and Landlord shall obtain
from the issuer of the insurance policies referred to in Section 19.1 a waiver
of subrogation provision in said policies and Tenant and Landlord hereby
release, relieve and waive any and all rights of recovery against Landlord or
Tenant, or against employees, officers, agents and representatives of Landlord
or Tenant, for loss or damage arising out of or incident to the perils insured
against under Section 19.1 which perils occur in, on or about the Premises or
the
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Building, whether due to the negligence of Landlord or Tenant or their agents,
employees, contractors or invitees. The extent of the waiver described in the
immediately preceding sentence is limited to the extent of insurance carried by
Landlord and Tenant pursuant to Section 19.1 of this Lease.
ARTICLE 20
INDEMNITY
Tenant shall indemnify and hold harmless landlord and all agents,
servants and employees of Landlord from and against all claims, losses, damages,
liabilities, expenses (including reasonable attorneys' fees), penalties and
charges arising from or in connection with (i) Tenant's use of the Premises
during the Lease Term, or (ii) the conduct of Tenant's business, or (iii) any
activity, work or things done, permitted or suffered by Tenant in or about the
Premises during the Lease Term. Tenant shall further indemnify and hold harmless
Landlord from and against any and all claims, loss, damage, liability, expense
default in the performance of any obligation on Tenant's part5 to be performed
under the terms of this Lease, or arising
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from any negligence of Tenant, or any of Tenant's agents, contractors, or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by legal counsel
reasonably satisfactory to Landlord. Tenant, as a material part of its
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in or upon the Premises arising from any cause and Tenant
hereby waives all claims in respect thereof against Landlord. Notwithstanding
the foregoing, Tenant shall not be required to defend, save harmless or
indemnify Landlord from any liability for injury, loss, accident or damage to
any person or property resulting from Landlord's negligence or willful acts or
omissions, or those of Landlord's officers, agents, contractors or employees.
Tenant's indemnity is not intended to nor shall it relieve any insurance carrier
of its obligations under policies required to be carried by Tenant pursuant to
the provisions of this Lease to the extent that such policies cover the results
of negligent acts or omissions of Landlord, its officers, agents, contractors or
employees, or the failure of Landlord to perform any of its obligations under
this Lease.
ARTICLE 21
PROPERTY DAMAGE
If the Premises or any part thereof shall be damaged by fire or
other peril, Tenant shall give prompt written notice thereof to Landlord. In
case the Building shall be so damaged that substantial alteration or
reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such peril) or in the
event of any Mortgagee shall require that the insurance proceeds payable as a
result of a peril be applied to the payment of the mortgage debt or in the event
of any material uninsured loss to the Building, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within
ninety (90) days after the date of such casualty. If Landlord does not thus
elect to terminate this Lease, Landlord shall, as Landlord's sole obligation,
commence and proceed with reasonable diligence to restore the Building Shell to
substantially the same condition in which it was immediately prior to the
occurrence of the peril. When the Building Shell has been restored by Landlord,
Tenant shall complete the restoration of the Premises, including the
reconstruction of all improvements in order to complete the Premises and restore
the Premises to the same condition and build-out as prior to the casualty,
including all improvements constructed pursuant to Exhibit "D." Any planes and
specifications for such restoration and reconstruction shall be subject to the
approval of Landlord. All insurance proceeds payable pursuant to policies
maintained by Tenant pursuant to Section 19.1 shall be applied by Tenant to such
reconstruction. Landlord shall not be liable for any inconvenience or annoyance
to Tenant or injury to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the provisions of the next
sentence, Landlord shall allow Tenant a fair diminution of rent to the extent
the Premises are unfit for occupancy during the period commencing as of the date
of the casualty and continuing for the period of time, as determined by
Landlord, required for Tenant
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25
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and Landlord to complete the repairs described in this Article 21. If the
Premises or any other portion of the Building is damaged by fire or other peril
resulting form the fault or negligence of Tenant or any of Tenant's agents,
employees, or invitees, the rent hereunder shall not be diminished during the
repair of such damage and Tenant shall be liable to Landlord for the cost of the
repair and restoration of the Building caused thereby to the extent such cost
and expense are not covered by insurance proceeds.
ARTICLE 22
CONDEMNATION
If the whole or substantially the whole of the Building or the
Premises shall be taken for any public or quasi-public use, by right of eminent
domain or otherwise or shall be sold in lieu of condemnation, then this Lease
shall terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the building or the Premises is thus taken or sold,
Landlord (whether or not the Premises are affected thereby) may terminate this
Lease by giving written notice thereof to Tenant, in which event this Lease
shall terminate as of the date when physical possession of such portion of the
Building or Premises is taken by the condemning authority. If the Lease is not
so terminated upon any such taking or sale, the Base Rent payable hereunder
shall be diminished by an equitable amount, and Landlord shall, to the extent
Landlord deems feasible, restore the Building and the Premises to substantially
their former condition, but such work shall not exceed the scope of the work
done by Landlord in originally constructing the Building and installing Building
Standard Improvements in the Premises, nor shall Landlord in any event be
required to spend for such work an amount in excess of the amount received by
Landlord as compensation for such taking. All amounts awarded upon a taking of
any part or all or the Building or the Premises shall belong to Landlord, and
Tenant shall not be entitled to and expressly waives all claims to any such
compensation.
ARTICLE 23
DAMAGES FROM CERTAIN CAUSES
Landlord shall not be liable to Tenant for any loss or damage to any
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, or order
of governmental body or authority or by any other cause beyond the control of
Landlord. In addition, Landlord shall not be liable for any damage or
inconvenience which may arise through repair or alteration of any part of the
Building or Premises.
ARTICLE 24
EVENTS OF DEFAULT
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The following events shall be deemed to be events of default
("Events of Default") by Tenant under this Lease:
(a) If Tenant abandons the Premises or if Tenant vacates the
Premises for thirty (30) consecutive days;
(b) If Tenant fails to pay Rent or any other charge required to be
paid by Tenant, as and when due;
(c) If Tenant fails to perform any of Tenant's non-monetary
obligations under this Lease for a period of ten (10) days after written
notice from Landlord; provided that if more than ten (10) days are
required to complete such performance, Tenant shall not be in default if
Tenant commences such performance within such ten (10) day period and
thereafter diligently pursues its completion;
(d) If (i) Tenant makes a general assignment or general arrangement
for the benefit of creditors; (ii) a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against
Tenant and is not dismissed within thirty (30) days; (iii) a trustee or
receiver is appointed to take possession of substantially all of Tenant's
assets located at the Premises or of
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Tenant's interest in this Lease and possession is not restored to Tenant
within thirty (30) days; or (iv) substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease is subjected
to attachment, execution or other judicial seizure which is not discharged
within thirty (30) days. If a court of competent jurisdiction determines
that nay of the acts described in this subsection (d) is not a default
under this Lease, and a trustee is appointed to take possession (or if
Tenant remains a debtor in possession) and such trustee or Tenant
transfers Tenant's interest hereunder, then Landlord shall receive, as
Additional Rent, the difference between the rent (or any other
consideration) paid in connection with such assignment or sublease and the
rent payable by Tenant hereunder; or
(a) If any representation or warranty made by Tenant or by a
subtenant or assignee in connection with this Lease shall have been false
or misleading as of the date such representation or warranty was made.
ARTICLE 25
LANDLORD'S REMEDIES
27
<PAGE>
Upon the occurrence of any Event of Default by Tenant, Landlord
may at any time thereafter, with or without notice or demand and without
limiting Landlord in the exercise of any right or remedy which Landlord
may have:
(a) Terminate Tenant's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. In
such event, Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default, including without
limitation (i) the worth at the time of the Award of the unpaid Base Rent,
Additional Rent and other charges which had been earned at the time of the
termination; (ii) the worth at the time of the award of the amount by
which the unpaid Base Rent, Additional Rent and other charges which would
have been earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; (iii) the worth at the time of the award of the amount by which
the unpaid Base Rent, Additional Rent and other charges which would have
been paid for the balance of the Lease term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; and (iv) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to
perform its obligations under the Lease or which in the ordinary course of
things would be likely to result therefrom, including, but not limited to,
any costs or expenses incurred by Landlord in maintaining or preserving
the Premises after such default, the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation incurred
in connection therewith, and any real estate commission paid or payable.
As used in subparts (i) and (ii) above, the "worth at the time of the
award" is computed by allowing interest on unpaid amounts at the rate of
eighteen percent (18%) per annum, or such lesser amount as may then be the
maximum lawful rate, accruing the date such payments are due until paid.
As used in subpart (iii) above, the "worth at the time of the award" is
computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award, plus one percent
(1%);
(b) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned
the Premises. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to
recover Rent as it becomes due hereunder. Landlord's election to maintain
Tenant's right to possession shall not prejudice Landlord's right, at any
time thereafter to terminate
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Tenant's right to possession and proceed in accordance with Section 25 (a)
above; or
(C) Pursue any other remedy now or hereafter available to Landlord
under Laws or Judicial decisions of the State of Nevada.
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Landlord's exercise of any right or remedy shall not prevent it from
exercising any other right or remedy.
ARTICLE 26
LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not
begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within thirty (30) days of
receipt by Landlord of written notice from Tenant of the alleged failure
to perform. In no event shall Tenant have the right to terminate or
rescind this Lease as a result of Landlord's default as to any covenant or
agreement contained in this Lease or as a result of the breach of any
promise or inducement hereof, whether in the Lease or elsewhere. Tenant
hereby waives such remedies of termination and rescission and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement shall be limited to a suite for damages and/or
injunction. In addition, Tenant hereby covenants that, prior to the
exercise of any such remedies, it will give any Mortgagee notice and a
reasonable time to cure any default by Landlord.
ARTICLE 27
PEACEFUL ENJOYMENT
Tenant shall, and may peacefully have, hold, and enjoy the Premises,
subject to the other terms hereof, provided that Tenant pays the Rent and
other sums herein recited to be paid by Tenant and performs all of
Tenant's covenants and agreements herein contained. This covenant and any
and all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of Landlord's interest hereunder. Landlord
shall be entitled to cause Tenant to relocate from the Premises to other
space (a "Relocation Space") within the Building at any time after
reasonable written notice of Landlord's election (not in excess of ninety
(90) days) is given to Tenant. Any such relocation shall be entirely at
the expense of Landlord or the third party tenant replacing Tenant in the
Premises. Such a relocation shall not terminate or otherwise affect or
modify this Lease except that from and after the date of such relocation,
"Premises" shall refer to the Relocation Space into which Tenant has been
moved, rather than the original Premises as herein defined.
ARTICLE 28
HOLDING OVER
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In the event of holding over by Tenant after the expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Article 25 above, Tenant shall, throughout the entire holdover period, pay rent
equal to twice the Base Rent and Additional Rent which would have been
applicable had the term of this Lease continued through the period of such
holding over by Tenant. If Tenant remains in possession of all or any part of
the Premises after the expiration of the Lease Term, with the express written
consent of Landlord: (a) such tenancy will be deemed to be a periodic tenancy
from month-to-month only; (b) such tenancy will not constitute a renewal or
extension of this Lease for any further term; and (c) such tenancy may be
terminated by Landlord upon the earlier of thirty (30) days prior written
notice or the earliest date permitted by law. Such month-to-month tenancy will
be subject to every other term, condition, and covenant contained in this Lease
including the Base Rent and Additional Rent provisions. Nothing contained in
this Article 38 shall be construed as consent by Landlord to any holding over
of the Premises by Tenant, and Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises to Landlord upon the expiration
or earlier termination of this Lease. If Tenant fails to surrender the Premises
upon the expiration or earlier termination of this Lease despite demand to do
so by Landlord, Tenant
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shall indemnify and hold Landlord harmless from all loss or liability,
including, without limitation, any claim made by any succeeding tenant founded
on or resulting form such failure to surrender.
ARTICLE 29
SUBORDINATION TO MORTGAGE
Tenant accepts this Lease subject and subordinate to any mortgage
deed of trust or other lien presently existing or hereafter arising upon the
Premises, upon the Building as a whole, and to any renewals, refinancing and
extensions thereof, but Tenant agrees that any such Mortgagee shall have the
right at any time to subordinated such mortgage, deed of trust or other lien to
this Lease on such terms and subject to such conditions as such Mortgagee may
deem appropriate in its discretion. Landlord is hereby irrevocably vested with
full power and authority to subordinate this Lease to any mortgage, deed of
trust or other lien now existing or hereafter placed upon the Premises, or the
Building as a whole, and Tenant agrees upon demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Landlord may request. In the event that any mortgage or deed of trust
is foreclosed or conveyance in lieu of foreclosure is made for any reason,
Tenant shall, if requested by the Mortgagee, attorn to and become the Tenant of
the successor-in-interest to Landlord and in such event Tenant hereby waives
its right under any current or future law which gives or purports to give
Tenant any right to terminate or otherwise adversely affect this Lease and the
obligations of Tenant hereunder. If in connection with obtaining construction,
interim or permanent financing for the Building, the lender shall request
modifications to this Lease as a condition to
30
<PAGE>
such financing, Tenant will not withhold or delay its consent thereto, provided
that such modifications do not increase the obligations of Tenant hereunder and
do not otherwise materially adversely affect Tenant's rights hereunder. In the
event that Tenant should fail to executes any instrument described in this
Article 29 promptly as requested, Tenant hereby irrevocably constitutes Landlord
as its attorney-in-fact to execute such instrument in Tenant's name, place and
stead, it being agreed that such power is one coupled with interest. Tenant
agrees that it will from time to time within ten (10) business days following a
request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as so modified), stating the dates to which rent and
other charges payable under the Lease have been paid, stating that Landlord is
not in default hereunder (or if Tenant alleges a default stating the nature of
such alleged default) and further stating such other matters as Landlord shall
reasonably require. Tenant acknowledges that any such statement may be relied
upon by any Mortgagee, prospective Mortgagee, purchaser of the Building or any
interest therein.
ARTICLE 30
LANDLORD'S LIEN
Tenant hereby grants to Landlord a lien and security interest on
all property of Tenant now or hereafter placed in or upon the Premises, and
such Property shall be and remain subject to such lien and security interest of
Landlord for payment of all rent and other sums agreed to be paid by Tenant
herein. The provisions of this paragraph relating to such lien and security
interest shall constitute a security agreement under and subject to the Nevada
Uniform Commercial Code so that Landlord shall have and may enforce a security
interest on all property of Tenant now or hereafter placed in or on the
Premises, in addition to and cumulative of the Landlord's liens and rights
provided by law or by the other terms and provisions of this Lease. Tenant
agrees to execute as debtor such financing statement or statements as Landlord
now or hereafter may request. Landlord may at its election at any time file a
copy of this Lease as a financing statement. Notwithstanding the above,
Landlord shall neither sell nor withhold from Tenant, Tenant's business
records.
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ARTICLE 31
ATTORNEY'S FEES
In the event Tenant, defaults in the performance of any of the
terms of this Lease and Landlord employs an attorney in connection therewith,
Tenant agrees to pay Landlord's reasonable attorney's fees.
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ARTICLE 32
NO INPLIED WAIVER
The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement herein, or to exercise any option,
right, power or remedy contained in this Lease, shall not be construed as a
waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount that the monthly installment of Rent due
under this Lease shall be deemed to be other than on account of the earliest
Rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy in this Lease provided.
ARTICLE 33
PERSONAL LIABILITY
The liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease shall be limited to the lesser of (i) the
interest of Landlord in the Building, or (ii) the interest Landlord would have
in said Building if the same were encumbered by third party debt in an amount
equal to eighty percent (80%) of the value of said Building (as such value is
determined by Landlord) and Tenant agrees to look solely to such amount for
recovery of any judgment form Landlord, it being intended that Landlord shall
not be personally liable for any judgment or deficiency.
ARTICLE 34
SECURITY DEPOSIT
The Security Deposit shall be held by Landlord without liability
for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of rental or a
measure of damages caused by Tenant in case of default by Tenant, Landlord may
commingle time, without prejudice to any other remedy, use the Security Deposit
to the extent necessary to make good any arrearage of rent or to satisfy any
other covenant oar obligation of Tenant hereunder. Following any such
application of the Security Deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant. If Landlord transfers its interest in the
Premises during the term of this Lease, Landlord may assign the Security
Deposit to the transferee and thereafter shall have no further liability for
the return of such Security Deposit to Tenant.
ARTICLE 35
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NOTICE
Any notice in this Lease provided for must, unless otherwise
expressly provided herein, be in writing, and may, unless otherwise in their
Lease expressly provided, be given or be served by depositing the same in the
United States mail, postage paid and certified and addressed to the party to be
an officer of such party, or by prepaid telegram, when appropriate, addressed
to the party to be notified at the address stated in this Lease or such other
address, notice of which has been given to the other party. Notice deposited in
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the mail in the manner hereinabove described shall be effective from and after
the expiration of three (3) calendar days after it is so deposited.
ARTICLE 36
SEVERABILITY
If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law notwithstanding the invalidity of any other term or provision
hereof.
ARTICLE 37
RECORDATION
Tenant agrees not to record this Lease or any memorandum hereof.
ARTICLE 38
GOVERNING LAW
This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the laws of
the State of Nevada.
ARTICLE 39
FORCE MAJEURE
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Whenever a period of time is herein prescribed for the taking of
any action by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation of such period of time, and delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any other cause whatsoever
beyond the control of Landlord.
ARTICLE 40
TIME OF PERFORMANCE
Except as expressly otherwise herein provided, with respect to all
required sets of Tenant, time is of the essence of this Lease.
ARTICLE 41
TRANSFERS BY LANDLORD
Landlord shall have the right to transfer and assign, in whole or
in part, all its rights and obligations hereunder and in the Building and
property referred to herein, and in such event and upon such transfer Landlord
shall be released from any further obligations hereunder, and Tenant agrees to
look solely to such successor in interest of Landlord for the performance of
such obligations.
ARTICLE 42
COMMISSIONS
Except for a commission to be paid by Landlord to Dunn Properties
("Broker") in accordance with a separate commission agreement to be entered
into by Landlord and Broker, Landlord and Tenant hereby indemnity and hold each
other harmless against any loss, claim, expense or liability with respect to
any of this Lease due to any action of the indemnifying party.
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ARTICLE 43
EFFECT OF DELIVERY OF THIS LEASE
Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to Tenant or
option. This Lease shall not be
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<PAGE>
effective until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord.
ARTILCE 44
CORPORATE AUTHORITY; PRATNERSHIP AUTHORITY
If Tenant is a corporation, each person signing this Lease on
behalf of Tenant represents and warrants that he or she has full authority to
do so and that this Lease binds the corporation. Within thirty (30) days after
this Lease is signed, Tenant shall deliver to Landlord a certified copy a
resolution of Tenant's Board of directors authorizing the execution of this
Lease or other evidence that of such authority reasonably acceptable to
Landlord. If Tenant is a partnership, each person signing this Lease for Tenant
represents and warrants that he or she is a general partner of the partnership,
that he or she has full authority to sign for the partnership and that this
Lease binds the partnership and all general partners of the partnership. Tenant
shall give written notice to Landlord of any general partner's withdrawal or
addition. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a copy of Tenant's recorded statement of partnership or
certificate of limited partnership.
ARTICLE 45
JOINT AND SEVERAL LIABILITY
All parties signing this Lease as Tenant shall be jointly and
severally liable for all obligations of Tenant.
ARTICLE 46
INTERPRETATION
The captions of the Articles of this Lease, and each specific
Section within the respective Articles, are to assist the parties in reading
this Lease and are not a part of the terms or provisions of this Lease.
Whenever required by the context of this Lease, the singular shall include the
plural and the plural shall include the singular. The masculine, feminine and
neuter genders shall each include the other. In any provision relating to the
conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's
agents, employees, contractors, invitees, successors or others using the
Premises with Tenant's expressed or implied permission.
ARTILCE 47
INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS
This Lease is the only agreement between the parties pertaining to
the lease of the Premises and no other agreements are effective. All amendments
to this Lease shall be in writing and signed by all parties. Any other
attempted amendment shall be void.
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ARTICLE 48
WAIVER OF JURY TRIAL
Landlord and Tenant by this Article 48 waive trial by jury in any
action, proceeding, or counterclaim brought by either of the parties to this
Lease against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Premises, or any other claims (except claims for
personal injury or property damage), and any emergency statutory or any other
statutory
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ARTICLE 49
NO MERGER
The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord or the
termination of this Lease on account of Tenant's default will not work a
merger, and will, at Landlord's option, (a) terminate all or any subleases and
subtenancies or (b) operate as an assignment to Landlord of all or any
subleases or subtenancies. Landlord's option under this Article 49 will be
exercised by written notice to Tenant and all known subleasees or subtenants in
the Premises or any part of the Premises.
ARTICLE 50
COUNTERPARTS
This Lease may be executed in counterparts, and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument.
ARTICLE 51
EXHIBITS
All Exhibits as listed on the "List of Agreements" attached hereto
are incorporated herein and made a part of this Lease for all purposes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
(which may be in multiple original counterparts) as of the day and year first
above written.
Address: LANDLORD:
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3770 HUGHES PARKWAY ASSOCIATES 3770 HUGHES PARKWAY ASSOCIATES
LIMITED PARTNERSHIP LIMITED PARTNERSHIP, a
3800 Howard Hughes Parkway Nevada limited partnership
Las Vegas, Nevada 89109
Attention: Property Management By its managing partner:
HOWARD HUGHES PROPERTIES
LIMITED PARTNERSHIP, a
Delaware limited partnership
By its sole general partner:
THE HOWARD HUGHES CORPORATION,
A Delaware corporation
By: /s/ John A. Kilduff
Print Name: John A. Kilduff
-------------------------
Print Title: Executive Vice President
--------------------------
Address: TENANT:
-------- ------
____________________________________ ROOM SYSTEMS FINANCE CORPORATION
____________________________________ a (TO BE INSERTED PRIOR TO NEVADA
EXECUTION) corporation
Attention:
---------------------------- By: /s/Derek K. Ellis
---------------------------------
Print Name: Derek K. Ellis
Print Title: Chief Financial Officer
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