EXHIBIT 10.24
TERMINATION TO COMMERCIAL LEASE
THIS TERMINATION TO COMMERCIAL LEASE is made this 24th day of July 2003, by
and between XXXXX X. XXXXXX/ XXXXXXXXX TRUST (hereinafter "Landlord") and
NUTRACEUTIX, INC. (hereinafter "Tenant").
WHEREAS, Landlord and Tenant entered into a Commercial Lease ("Lease") dated the
3rd of November 1999 for the lease of certain real estate; and
WHEREAS, the parties desire to terminate the lease.
NOW THEREFORE, in consideration of the mutual agreements and covenants contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties have this date agreed to terminate the Lease when the
following conditions are fulfilled:
1. Tenant shall enter into a new five (5) year Lease with Landlord for
the existing space including the adjoining space for an approximate
total square footage of 18,560.
2. This new Lease shall commence January 1, 2004 and the existing Lease
shall terminate December 31, 2003.
3. The above must be complete or the termination of the Lease shall be
void and Landlord at his option may enforce any or all terms of the
Lease.
When the above items are completed the Lease between Landlord and Tenant dated
November 3, 1999 shall be null and void as of December 31, 2003.
AGREED to this 10th day of July 2003.
LANDLORD: TENANT:
by: /s/ Xxxxx Xxxxxx by: /s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx Xxxxx X. Xxxxxx
STANDARD FORM
MULTI-TENANT, TRIPLE NET LEASE
1. PARTIES. This lease is made this(date) July 24, 2003 between XXXXX
XXXXXX/XXXXXXXXX TRUST TENANTS IN COMMON hereafter called Landlord, and
Nutraceutix, Inc. hereafter called Tenant.
2. PREMISES. Landlord agrees to lease to Tenant "the Premises" described in
Exhibit A and consisting of approximately 18,560SF. The Premises are a
part of the "Building," which Building is located on the real property
described in Exhibit B (the "Property"). As used herein, the term
"Building" includes all Buildings located on the Property. The Premises,
Building, and Property are a part of Willows East. Tenant understands that
square footage used in this Lease is approximate and is calculated from
the outside face of the exterior walls of the structure including
overhangs to the centerline of any interior demizing walls. Tenant and
Landlord mutually hold each other harmless for any discrepancies in the
square footage calculation after execution of the Lease.
3. TERM. The term of this lease shall be 60 months and 0 days commencing the
1st day of January 2004 and terminating on the 31st day of December 2008
unless sooner terminated as provided herein; or extended pursuant to
Paragraph 22 herein.
4. POSSESSION.
a) If the Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to the Tenant at the commencement date of
the term hereof, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting
therefrom, but in that event, all rent shall be abated during the
period between the commencement of said term and the time when
Landlord delivers possession.
b) If Landlord permits Tenant to occupy the Premises prior to the
commencement date of the term, such occupancy shall be subject to
all the provisions of this Lease and shall not advance the
termination date of this Lease. Tenant's Share of Common Costs and
Expenses shall be due and payable from the date of Tenant's
occupancy of the Premises.
c) If Tenant should cause any delay in Landlord's completion of the
Premises, thereby delaying Tenant's occupancy of the Premises beyond
the commencement date of this Lease, then the Landlord may at its
option require the Tenant to commence payment of rent on the stated
commencement date as specified herein.
5. RENT. Without prior notice or demand, Tenant agrees to pay to Landlord as
monthly rent for the Premises the sum $16,695.22 months 1-12, $13,000
months 13-60, on or before the first day of the first full calendar month
of the term hereof and a like sum on or before the first day of each and
every successive calendar month thereafter during the term hereof. Rent
for any period during the term hereof which is for less than one (1) month
shall be a prorated portion of the monthly installment herein, based upon
a thirty (30) day month. Rent shall be paid to Landlord at the address to
which notices to
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Landlord are to be given without deduction or offset in lawful money of
the United States of America, or to such other person or at such other
place as Landlord may from time to time designate in writing.
000 0xx Xxx X.
Xxxxxxx, XX 00000
6. PREPAID RENT AND TENANT DEPOSIT. Upon execution of Lease, Tenant shall
deposit with Landlord $13,500.00 (the "Deposit") as prepaid rent and
Tenant deposit $7,500 transferred from old Lease and $6,000 due at signing
of this Lease. The monies shall be allocated as follows:
a) Prepaid Rent.
N/A of the Deposit shall be applied to monthly rent due for the N/A
month of the Lease term.
b) Tenant Deposit.
$13,500.00 of the Deposit shall be applied to the Tenant deposit for
the performance by Tenant of the provisions of the Lease. If Tenant
is in default, Landlord can use the Tenant deposit, or any portion
of it, to cure the default or to compensate Landlord for all damage
sustained by it resulting from Tenant's default. Tenant shall on
demand immediately pay to Landlord the sum necessary to replenish
the Tenant deposit to that initially deposited with Landlord. If
Tenant is not in default at the expiration or termination of this
Lease, Landlord shall return the Tenant deposit to Tenant, less any
amounts necessary to return the Premises to their original
condition, reasonable wear and tear excepted. Landlord's obligations
with respect to the Tenant deposit are those of a debtor and not a
trustee. Landlord may maintain the Tenant deposit separate and apart
from Landlord's general funds or may commingle that Tenant deposit
with Landlord's general and other funds. Landlord shall not be
required to pay Tenant interest on the Tenant deposit. In the event
that this Lease is terminated before the end of full term for any
reason, any rent paid for any period beyond the actual termination
date shall be considered an additional Tenant deposit.
7. USE. Tenant shall use the Premises for Office/production/warehousing and
incidental uses and hereby agrees that it has determined to its
satisfaction that the Premises can be used for those purposes. Tenant
waives any right to terminate this lease in the event the Premises cannot
be used for such purposes during the Lease term. The premises may not be
used for any other purpose without Landlord's written consent.
Tenant shall not do or permit anything to be done in or about the Premises
or bring or keep anything therein which will in any way increase the
existing rate of or affect any fire or other insurance upon the Building
or any of its contents, or cause cancellation of insurance policy covering
the Building or any part thereof or any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure or annoy
them or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall not place upon
or install in windows or other
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openings or exterior sides of doors or walls of the Premises any signs,
symbols, drapes or other materials without written consent of Landlord.
Tenant shall not, without Landlord's prior written consent, keep any
substances designated as, or containing components designated as,
hazardous, dangerous, toxic, or harmful, and/or subject to regulation
under any federal, state, or local law, regulation, or ordinance on or
around the Premises, common area, or property, except office supplies,
ordinary cleaning products and the like, normally found in general
business offices, which Tenant shall use, store and dispose of in
accordance with manufacturer's and suppliers' recommendations and all
applicable laws. Tenant shall be fully and completely liable to Landlord
for any and all cleanup costs and any and all other charges, fees, fines
expenses and penalties relating to the use, storage, disposal,
transportation, generation or sale by Tenant (or its employees, agents,
contractors or invitees) of hazardous substances on the Premises.
Landlord gives Tenant and its employees, authorized representatives, and
business invitees a nonexclusive right to the reasonable use and enjoyment
of the Common Areas, subject to Landlord's rights set forth herein.
8. TENANT'S SHARE OF COMMON COSTS AND EXPENSES. Tenant shall pay to Landlord,
as additional rent, an amount estimated by Landlord to be Tenant's Share
of Common Costs and Expenses ("Tenant's Share"). Tenant's Share shall be
payable on or before the first day of the first full calendar month of the
term hereof or upon Tenant's occupancy, whichever first occurs, and on the
first day of each and every successive calendar month thereafter during
the term hereof. Tenant's Share for any period less than one month shall
be paid by the Tenant on a per diem basis, based on a thirty (30) day
month.
Tenant's Share shall be equal to 32% of the total Common Costs and
Expenses; which percentage is determined by dividing the square footage of
the Premises by the total rentable square footage of the Building. Should
the total rentable square footage of the Building change for any reason
whatsoever, the percentage set forth herein shall be subject to adjustment
accordingly. Tenant's Share is estimated to be equal to $0.22 for each
square foot of the Premises per month for the first accounting period of
the Lease term which is then estimated to equal $4,083.20 per month for
the first accounting period of the Lease term.
An accounting period is a calendar year except the first accounting period
shall commence on the date the Lease term or Tenant's occupancy commences,
as the case may be, and the last accounting period shall end on the date
the Lease term expires. The first accounting period of the Lease term
shall be the first full calendar year in which the Lease term or Tenant's
occupancy, as the case may be, commences. Landlord can adjust the
Estimated Common Costs and Expenses at the commencement of each new
accounting period throughout the Lease term, whereupon Tenant's Share
shall be adjusted accordingly. If, at any time during any accounting
period, Landlord determines that the actual Common Costs and Expenses for
such accounting period will vary by more than five percent (5%) from
Landlord's original estimate, Landlord may, by written
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notice to Tenant, adjust the Common Costs and Expenses for the remainder
of such accounting period, and accordingly, Tenant's Share to be paid
hereunder. Landlord shall furnish to Tenant, after each accounting period,
a statement showing the actual total Common Costs and Expenses, the actual
Tenant's Share, and the payments made by Tenant as part of its Tenant's
Share during such accounting period. After Landlord supplies Tenant with a
Common Area Costs and Expense Statement for the previous year, Tenant
shall have sixty (60) days to request an audit of Landlord's books, with
respect to this Lease, by an independent accounting firm acceptable to
Tenant and Landlord. The cost of audit shall be the Tenant's unless the
audit discovers an overcharge of more than 5% in which case Landlord shall
pay for audit and pay Tenant the amount overcharged. If an audit discovers
Landlord undercharged the Tenant, the Tenant shall pay to Landlord
additional Common Area costs, and pay any costs related to the audit. If
Tenant does not exercise it's right to audit within the 60 (sixty) days
after receiving the Common Area Statement, Tenant has accepted Common Area
Statement as correct and waives all rights in the future to audit the year
in question. If the actual Tenant's Share exceeds Tenant's payments,
Tenant shall pay to Landlord the deficiency within thirty (30) days of
Tenant's receipt of such statement. If Tenant's payments made during the
accounting period exceed the actual Tenant's Share, Landlord may, at
Landlord's sole election pay the excess to Tenant at the time Landlord
furnishes said statement, or credit the excess toward Tenant's payments of
Tenant's Share in the next succeeding accounting period.
Common Costs and Expenses shall include the "Property Taxes" and
"Operating Expenses." "Property Taxes" shall include, without limitation,
all real and personal property taxes, charges and assessments imposed on
the Premises, Building, Property or Common Areas; and any other taxes,
charges or assessments assessed against the Landlord, Premises, Building,
Property, or Common Areas in connection with the use or occupancy of the
Premises at any time during the term of this Lease. "Operating Expenses"
shall mean the annual Operating Expenses which include, without
limitation, all operating costs incurred by Landlord or on behalf of the
Premises in maintaining, operating and providing services to and for the
Building, Property, Common Areas and the Corporate Park, including,
without limitation, the costs of utilities, supplies, insurance,
independent contractors, minor roof repair, property managers, other
suppliers, compensation of all persons who perform regular and recurring
duties connected with the Building, Property, and Common Areas, its
equipment, utilities, sprinkler systems, and parking facilities including
a fund to seal coat and restripe, thereto, and allowance to Landlord or
Landlord's agent for supervision of such maintenance, operation, services
and repair of the Building, Property, and Common Areas and any and all
assessments charged to Landlord or the Property by or through the Owners
Association of the Corporate Park, if any, in connection with the
operation, repair and maintenance of the Common Areas or the Corporate
Park.
9. REPAIR RESPONSIBILITY.
a) By taking possession of the Premises, Tenant shall be deemed to have
accepted the Premises as being in good, sanitary order, condition
and repair. Tenant shall, when and if needed, at Tenant's sole
expense, make repairs to the Premises and
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every part thereof, including without limitation the heating,
ventilating and air conditioning system (if any) serving the
Premises. Tenant shall surrender the Premises to Landlord in good
condition upon the expiration or sooner termination of this Lease;
provided, however, that Tenant shall not be held responsible for
damage to the Premises from causes beyond the reasonable control of
Tenant, to the extent covered by Landlord's fire and extended
coverage insurance policy, or for ordinary wear and tear. Except as
specifically provided in an addendum, if any, to this Lease,
Landlord shall have no obligation whatsoever to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof
and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Premises
or the Building except as specifically herein set forth. Truck doors
in Tenant Premises shall be maintained in good condition by Tenant.
b) Tenant is responsible for maintenance and repair of HVAC equipment
and shall contract to have scheduled maintenance performed, or
Landlord at its option may engage a maintenance firm to maintain the
heating, ventilating and air conditioning system (if any) servicing
the Premises. Tenant shall pay to Landlord, or, at Landlord's
election, directly to the maintenance firm, Tenant's share of the
cost of such maintenance.
c) Except as provided herein, Tenant shall, at its expense, clean,
maintain and keep in good repair throughout the term of this Lease
the entire Premises and appurtenances, including without limitation,
signs, windows, doors, skylights, light fixtures, and trade
fixtures.
d) Notwithstanding the provisions of Article 9.a. herein above, but
subject to the provisions of Xxxxxxxxx 00, Xxxxxxxx shall repair and
maintain the structural portions of the Building, including the
basic plumbing, air conditioning, heating, and electrical systems,
installed or furnished by Landlord only in so far as such heating,
air conditioning and electrical systems provide service to the
entire Building, unless such maintenance and repairs are caused in
part or in whole by the act, neglect, fault or omission of any duty
by the Tenant, its agents, servants, employees or invitees, in which
case Tenant shall pay to Landlord the reasonable costs of such
maintenance and repairs. Landlord shall not be liable for any
failure to make any such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given
to Landlord by Tenant. Except as provided in Articles 14 and 15
hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or
to fixtures, appurtenances and equipment therein. Tenant waives the
right to make repairs at Landlord's expense under any law, statute
or ordinance now or hereafter in effect.
10. MAINTENANCE AND MANAGEMENT
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a) Landlord shall maintain the Common Areas in good condition at all
times. Landlord shall have the right to:
1. Establish and enforce reasonable written rules and regulations
applicable to all tenants concerning the maintenance, management,
use and operation of the Common Areas.
2. Make reasonable changes to the Common Areas including, without
limitation, changes in the location of driveways, entrances, exits,
vehicular parking spaces, parking area, or the direction of the flow
of traffic.
b) Common Areas, as defined in this Lease, mean all parts of the
Building, and related land areas and facilities outside the
individual Premises but constituting a part of the Property. Common
areas include, without limitation:
1. The property upon which the Premises are located, pedestrian
walkways and patios, landscaped areas, sidewalks, loading areas,
parking areas and roads located on the Property.
2. The structural parts of the Building and other improvements in which
the Premises are located, which structural parts include only the
foundation, bearing and exterior walls (excluding glass and doors),
sub-flooring, and roof (excluding skylights).
3. The unexposed electrical, plumbing, and sewage systems lying outside
the Premises.
4. Window frames, gutters, and downspouts on the Building in which the
Premises are located.
5. Those certain open areas, landscaped areas, and roadways, utility
systems and facilities located outside the Premises, Property and
Building but constituting a part of the Corporate Park.
c) Landlord shall not be liable, nor shall the rent be abated because
of interruption of services caused by accident, strikes, necessity
for repairs, or for any other reason beyond its control.
11. UTILITIES. Tenant shall pay prior to delinquency for heat, light, water
and other utility services supplied to the premises and will pay any
required deposits. Water sewer and other utility charges for which
separate xxxxxxxx are not available shall be prorated by Landlord based on
the ratio for the number of square feet in the building; provided,
however, that Landlord may increase Tenant's pro rata portion of any such
charges to reflect unusual or excessive utility system demands. Separate
charges may be made to reflect unusual or excessive utility system demands
where not separately metered.
12. ALTERATIONS AND ADDITIONS BY TENANT. Tenant may make, at its sole expense,
such additional improvements or alterations to the Premises which it may
deem
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necessary or desirable. However, any repairs or new construction by Tenant
shall be done in conformity with plans and specifications approved by
Landlord. All work performed shall be done in a workmanlike manner and
with materials (where not specifically described in the specifications) of
the quality and appearance standard in the Building and shall become the
property of the Landlord. Landlord may require Tenant to remove any
improvements or alterations at the expiration of the term, such removal to
occur at Tenant's sole cost and expense.
13. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. Landlord
may require, at Landlord's sole option, that Tenant shall provide to
Landlord, at Tenant's sole cost and expense, a lien and completion bond in
an amount equal to one and one-half (1-1/2) times any and all estimated
cost of any improvements, additions, or alterations in the Premises, to
insure Landlord against any liability for mechanics' and materialmen's
liens and to insure completion of the work.
14. INSURANCE. Landlord shall procure throughout the term of the Lease fire
and extended coverage insurance in the amount of the full insurable value
of the Building containing the Premises. Tenant assumes the risk of loss
of its furnishings, trade fixtures, equipment and supplies which shall not
be insured under the above policy. Tenant agrees to procure and maintain
throughout the term of the Lease, at Tenant's sole cost and expense,
liability insurance underwritten by a firm satisfactory to Landlord
covering all persons and property on the Premises in connection with
Tenant's business in the following amounts:
a. $2,000,000 combined Single Limit for Bodily Injury and Property
Damage, or
b. $2,000,000 each occurrence for Bodily Injury and $1,000,000 each
occurrence for Property Damage.
The Landlord and the Property Management Company shall be named as an
additional insured and shall be furnished with a certificate of insurance.
Such coverage shall be primary and noncontributing with any insurance
carried by the Landlord. The liability insurance policy shall contain
endorsements requiring 30 days notice to Landlord prior to any
cancellation or any reduction in amount of the coverage. Tenant, as a
material part of the consideration to be rendered to Landlord, hereby
agrees to defend, indemnify and hold harmless Landlord against any and all
claims, costs and liabilities, including reasonable attorney's fees,
arising from Tenant's use of the Premises, or from the conduct of Tenant's
business, or from any activity, work or things done, permitted or suffered
by Tenant or any of Tenant's agents, contractors or employees.
15. DESTRUCTION. If the Premises of the Building is destroyed or damaged by
fire, earthquake or other casualty to the extent that they are
untenantable in whole or in part, then Landlord may, at Landlord's option,
proceed with reasonable diligence to rebuild and restore the Premises or
such part thereof, provided that within thirty (30) days after such
destruction or injury Landlord shall in writing notify Tenant of
Landlord's intention
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to do so. During the period from destruction or damage until restoration,
the rent shall be abated in the same ratio as that portion of the Premises
which Landlord and Tenant determines is unfit for occupancy shall bear to
the whole Premises. If damage is due to the fault or neglect of Tenant or
its agents, employees, invitees or licensees there shall be no abatement
of rent. If Landlord shall fail to notify Tenant, then this Lease shall,
and the expiration of the time for the giving of notice as herein
provided, be deemed terminated and at an end.
16. CONDEMNATION. If all or part of the Premises are taken under power of
eminent domain, or sold under the threat the exercise of said power, this
Lease shall terminate as to the part so taken as of the date the
condemning authority takes possession. If more than 25% of the floor area
of Premises is taken by condemnation, Tenant may, by a written notice
within ten (l0) days after notice of such taking (or absent of such
notice, within ten (10) days after the condemning authority takes
possession) terminate this Lease as of the date the condemning authority
takes possession. If Tenant does not so terminate, this Lease shall remain
in effect as to the portion of the Premises remaining except that the rent
shall be reduced in the proportion that the floor area taken bears to the
original total floor area; provided that if circumstances making abatement
based on floor are unreasonable, the rent shall xxxxx by a reasonable
amount to be determined by Landlord. In the event that Tenant elects not
to terminate the Lease with respect to any part of the Premises remaining
after condemnation, Landlord shall have no responsibility to restore such
part of the Premises to its condition prior to condemnation. Any award for
the taking of all or part of the Premises under the power of eminent
domain, including payment made under threat of the exercise of such power,
shall be the property of Landlord, whether made as compensation for
diminution in value of the leasehold or for the taking of the fee or as
severance damages; provided, that Tenant shall be entitled to such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right for the loss of or damage to Tenant's trade fixtures
and removable personal property. Landlord shall not be liable to Tenant
for the loss of the use of all or any part of the Premises taken by
condemnation.
17. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, let or sublet this
Lease or any part thereof, either by operation of law or otherwise, or
permit any other party to occupy all or any part of the Premises, without
first obtaining the written consent of Landlord. This Lease shall not be
assignable by operation of law. Landlord reserves the right to recapture
the Premises, or applicable portion thereof, in lieu of giving its consent
by notice given to Tenant within twenty (20) days after receipt of
Tenant's written request for assignment or subletting. Such recapture
shall terminate this Leases to the applicable space effective on the
prospective date of assignment or subletting, which shall be the last day
of a calendar month and not earlier than sixty (60) days after receipt of
Tenant's request. If Landlord elects not to recapture and thereafter gives
its consent, Landlord and Tenant agree that Landlord may charge Tenant a
reasonable sum to reimburse Landlord for legal and administrative costs
incurred in connection with such consent; and that from the date of such
assignment, let, or sublease of this Lease, Landlord and Tenant shall
share equally in any rental and other proceeds paid to Tenant in excess of
the rent to be paid to Landlord under the terms of this Lease. If Tenant
is a corporation, any transfer of this Lease from Tenant by merger,
consolidation or
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liquidation or any change in the ownership, or power to vote the majority
of the outstanding voting stock of Tenant shall constitute an assignment
for the purpose of this section. If Tenant is a partnership, any change in
the individuals or entities of which the partnership is composed shall
constitute an assignment for purposes of this section. Subject to the
provisions above, this Lease shall be binding upon and inure to the
benefit of the parties, heirs and successors and assigns.
18. DEFAULT.
a. The occurrence of any one or more of the following events shall
constitute a material default and breach of the Lease by Tenant:
1. Vacation or abandonment of all or any portion of the Premises.
2. Failure by Tenant to make any payment required as and when
due, where such failure shall continue after three (3) days
written notice from Landlord.
3. Failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease, other than the making
of any payment, where such failure shall continue for a period
of thirty (30) days after written notice from Landlord.
4. (i) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by
or against Tenant a petition in bankruptcy, including
reorganization or arrangement, unless, in the case of a
petition filed against Tenant, the same is dismissed within
thirty (30) days; (iii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's
assets located at Premises or of Tenant's interest in this
Lease; (iv) the seizure by any department of any government or
any office thereof of the business or property of Tenant; and
(v) adjudication that Tenant is bankrupt.
b. Notice by Tenant of Default. Tenant shall notify Landlord promptly
of any default not by its nature necessarily known to Landlord.
c. Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform its obligations within thirty (30) days
after notice by Tenant specifying wherein Landlord has failed to
perform; provided that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for performance,
Landlord shall not be in default if Landlord commences performance
within thirty (30) days of Tenant's notice and thereafter completes
Landlord's performance within a reasonable time.
19. REMEDIES IN DEFAULT. In the event of any default or breach, Landlord may,
at any time without waiving or limiting any other right or remedy, reenter
and take possession of the premises or terminate the Lease, or pursue any
remedy allowed by law or equity. Tenant agrees to pay Landlord the cost of
recovering possession of the
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Premises, the expenses of re-letting, and any other costs of damages
arising out of Tenant's default, including, without limitation, the costs
of removing persons and property from the Premises, the costs of preparing
or altering the Premises for re-letting broker's commissions and legal
fees. Notwithstanding any reentry or termination, the liability of Tenant
for the rent provided for herein shall not be extinguished for the balance
of the term of this Lease, and Tenant covenants and agrees to make good to
the Landlord any deficiency arising from re-letting the Premises at a
lesser rent than herein agreed to. Tenant shall pay such deficiency each
month as the amount thereof is ascertained by the Landlord.
20. ACCESS. Tenant shall permit Landlord to enter the Premises at reasonable
times for the purpose of inspecting, altering and repairing the Premises
and ascertaining compliance with the provisions hereof by any Tenant, but
nothing herein shall be construed as imposing any obligation on Landlord
to perform any such work or duties. Landlord may also show the Premises to
prospective purchasers or tenants at reasonable times, provided that
Landlord shall not unreasonably interfere with Tenant's business
operation.
21. WAIVER OF SUBROGATION. Tenant and Landlord each releases and relieves the
other and waives its entire right of recovery against the other for loss
or damage arising out of or incident to the perils covered by fire and
extended coverage, and liability insurance endorsements approved for use
in Washington which occur in, on or about the Premises, whether caused by
the negligence of either party, their agents, employees, or otherwise.
Each party shall obtain from its insurer(s) provisions permitting waiver
of any claim against the other party for loss or damage within the scope
of the above insurance. The release and waiver of recovery contained
herein shall be limited by, and shall be coextensive with, the waiver
provisions of the insurance policies procured and maintained by the
parties pursuant to this Lease. If either Landlord or Tenant is unable to
obtain its insurer's permission to waiver of any claim against the other
party, such party shall promptly notify the other party of such inability.
22. HOLD-OVER TENANCY. If (without execution of a new lease or written
extension) Tenant shall hold over after the expiration of the term of this
Lease with Landlord's written consent, Tenant shall be deemed to be
occupying the Premises as a Tenant from month to month, which tenancy may
be terminated as provided by law. If Tenant shall hold over after
expiration of the term of this Lease without Landlord's written consent,
Tenant's rent payable hereunder shall be increased by seventy five percent
(75% ) over Tenant's rent required in the last month of the term of this
lease. During any such tenancy, Tenant agrees to be bound by all of the
terms, covenants and conditions as specified, insofar as applicable.
23. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will in any way conflict with
any law, statute, ordinance or governmental rule or regulation now in
force or which may hereafter be enacted or promulgated. Tenant shall, at
its sole cost and expense, promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force and with the requirements of a
board of fire insurance underwriters or other similar bodies now or
hereafter constituted, relating to, or
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affecting the conditions, use or occupancy of the premises, excluding
structural changes not related to or affected by Tenant's improvements or
acts. The judgment of any court of competent jurisdiction of the admission
of Tenant in any action against Tenant, whether Landlord be a part thereto
or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of the
fact as between the Landlord and Tenant.
24. RULES AND REGULATIONS*. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from time to time to make all
reasonable modifications to said rules. The additions and modifications to
those rules shall be binding upon Tenant upon delivery of a copy of them
to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any said rules by any other tenants or occupants.
*See Exhibit C.
25. PARKING. Tenant shall have the right to use, in common with other tenants
and occupants of the Building, the parking facilities of the Building
subject to the rules and regulations, and any charges of Landlord for such
parking facilities which may be established or altered by Landlord at any
time or from time to time during the term hereof.
26. MORTGAGES, DEEDS OF TRUST, PURCHASERS (ESTOPPEL STATEMENT). It is
understood and agreed that Landlord may sell, mortgage, or grant deeds of
trust with respect to the Premises, the Building or the Property. Tenant
agrees to execute and return, within fifteen (15) days following
Landlord's request, such reasonable certificates as may be required by a
mortgagee or trust deed beneficiary stating that the Lease is in full
force and effect and the dates to which the rent and charges have been
paid. If Tenant does not return Estoppel Certificate within this period of
time, landlord shall send an Estoppel Certificate to Tenant by Certified
Mail. If Tenant has not responded within Fifteen (15) days after delivery
by Certified Mail of the Estoppel Certificate to Tenant, it will
constitute admission that all information presented on the Estoppel
Certificate is correct. Tenant shall be responsible for all costs incurred
by Landlord for handling Estoppel Certificates after the initial fifteen
(15) day period. Upon a foreclosure or conveyance in lieu of foreclosure,
and a demand by Landlord's successor, Tenant shall attorn to and recognize
such successor as Landlord under this Lease.
27. SUBORDINATION. Tenant agrees that this Lease shall be subordinate to the
lien of any mortgage or deeds of trust now or hereafter placed against the
Property or Building of which the Premises comprise a part, and to all
renewals and modifications, supplements, consolidations and extensions
thereof; provided, however, in the event that any mortgagee or beneficiary
shall so elect, Landlord reserves the right to subordinate said mortgage
lien to this Lease upon the terms required by such mortgagee or
beneficiary. Notwithstanding the above, so long as Tenant is not in
default herein, this Lease shall remain in full force and effect for the
full term hereof.
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28. TENANT'S PROPERTY. Furnishings, trade fixtures and equipment installed by
Tenant shall be the property of Tenant. On termination of the Lease,
Tenant shall remove any such property. Tenant shall repair or reimburse
Landlord for the cost of repairing any damage to the Premises resulting
from the installment or removal of such property.
29. REMOVAL OF PROPERTY. All personal property of Tenant remaining on the
Premises after reentry or termination of this Lease shall conclusively be
deemed abandoned and may be removed by Landlord. Landlord may store such
property in any place selected by Landlord, including but not limited to a
public warehouse, at the expense and risk of the owner thereof, with the
right to sell such stored property without notice to Tenant. The proceeds
of such sale shall be applied first to the cost of such sale, second to
the payment of the cost of removal and storage, if any, and third to the
payment of any other sums of money which may then be due from Tenant to
Landlord under any of the terms hereof, and the balance, if any, to be
paid to Tenant.
30. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all personal property taxes levied or assessed and
which become payable during the term hereof upon Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property located
in the Premises. In the event any or all of the Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property shall
be assessed and taxed with the Building, Tenant shall pay to Landlord its
share of such taxes within ten (10) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's personal property.
31. NOTICES. All notices under this Lease shall be in writing and shall be
effective when mailed by certified mail or delivered to Landlord, c/o THE
XXXXX XXXXX CORPORATION, 000 0XX XXX X XXXXXXX, XX 00000 or to Tenant at
the following address, or to such other address as either party may
designate to the other in writing from time to time: TENANT AT PREMISES
32. GENERAL PROVISIONS.
a. Plats and Riders. Clauses, plats and riders, if any, signed by the
Landlord and the Tenant and endorsed on or affixed to this Lease are
a part thereof.
b. Waiver. The waiver by either party of any term, covenant or
consolidation herein contained shall not be deemed to be a waiver of
such term, covenant or condition on any subsequent breach of the
same or any other term, covenant or condition herein contained. The
subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No covenant, term, or condition of this
Lease shall be deemed to have been waived by Landlord unless such
waiver shall be in writing and signed by Landlord's duly authorized
representatives.
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c. Joint Obligation. If there be more than one Tenant, the obligations
hereunder imposed upon Tenants shall be joint and several.
d. Marginal Headings. The marginal headings and Section titles in the
Sections of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part
hereof.
e. Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
f Recordation. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of Landlord.
g. Late Charges. Tenant acknowledges that late payment by tenant to
Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of
which would be extremely difficult and impractical to ascertain.
Such costs include, but are not limited to, processing and
accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the
Premises; therefore, in the event Tenant should fail to pay any
installment of rent or any other sum due hereunder within ten (5)
days after such amount is due Tenant shall pay to Landlord as
additional rent a late charge equal to 5% of each installment. A
$50.00 charge will be paid by Tenant to Landlord for each returned
check. In addition, any sum due and payable to Landlord under the
terms of this lease which is not paid when due shall bear interest
at the rate of 18% from the date the same becomes due and payable
until paid.
h. Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in
this Lease, and no prior agreements or understanding pertaining to
any such matters shall be effective for any purpose. No provision of
this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respected successors
in interest. This Lease shall not be effective or binding on any
party until fully executed by both parties hereto.
i. Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability is caused by reason of strike, labor
trouble, acts of God, or any other cause beyond the reasonable
control of the Landlord.
j. Attorney's Fees. In the event either party requires the services of
an attorney in connection with enforcing the terms of this Lease, or
in the event suit is brought for the recovery of any rent due under
this Lease, or for the breach of any covenant or condition of the
Lease, or for the restitution of said Premises to Landlord and/or
eviction of Tenant during said term or after the expiration thereof,
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the prevailing party will be entitled to a reasonable sum for
attorney's fees, witness fees and court costs, including costs of
appeal.
k. In the event of any sale of the Building or Property, or any
assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of all liability under any and
all of its covenants and obligations contained in or derived from
this Lease arising out of any act, occurrence, or omission occurring
after the consummation of such sale or assignment; and the purchaser
or assignee at such sale or assignment or any subsequent sale or
assignment of Lease, the Property or Building, shall be deemed,
without any further agreement between the parties or their
successors in interest or between the parties and any such purchaser
or assignee to have assumed and agreed to carry out any and all of
the covenants and obligations of the Landlord under this Lease.
l. Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other
than as an address of the business to be conducted by the Tenant in
the Premises.
m. Severability. Any provision of this Lease which shall be found to be
invalid, void or illegal by a court of competent jurisdiction shall
in no way affect, impair or invalidate any other provision hereof
and such other provision shall remain in full force and effect.
n. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
o. Choice of Law. This Lease shall be governed by the laws of the State
in which the premises are located.
p. Light, Air and View. Landlord does not guarantee the continued
present status of light, air, or view over any improvements
adjoining or in the vicinity of the Building.
q. Interpretation. This Lease has been submitted to the scrutiny of all
parties hereto and their counsel, if desired, and shall be given a
fair and reasonable interpretation in accordance with the words
hereof, without consideration or weight being given to its having
been drafted by any party hereto or its counsel.
r. Keys. Upon termination of this Lease, Tenant shall surrender all
keys to the Premises to Landlord at the place then fixed for payment
of rent and shall inform Landlord of all combination locks, safes,
and vaults, if any, in the Premises.
33. SIGNS. The sign criteria for the Premises is set forth in Exhibit D.
34. AUTHORITY OF PARTIES.
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a. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation, in accordance with a duly
adopted resolution of the board of directors of said corporation or
in accordance with the by-laws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms.
b. Limited Partnerships. If the Landlord herein is a limited
partnership, it is understood and agreed that any claims by Tenant
on Landlord shall be limited to the assets of the limited
partnership, and furthermore, Tenant expressly waives any and all
rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the
extent of their interest in said limited partnership.
35. COMMISSIONS. __________________ shall pay a commission or fee to
__________ in the amount of __________________. Each party represents that
it has not had dealings with any other real estate broker or salesman with
respect to this Lease, and each party shall defend, indemnify and hold
harmless the other party from all costs and liabilities including
reasonable attorney's fees resulting from any claims to the contrary.
THIS LEASE IS SUBJECT TO ACCEPTANCE BY LANDLORD.
IN WITNESS WHEREOF, the parties hereto have executed this lease the date and
year above written.
EXECUTED BY LANDLORD, this 24th day of July, 2003.
/s/
-----------------------------------------------------
By Xxxxx Xxxxxx
Its
---------------------------------
EXECUTED BY TENANT, this 10th day of July, 2003.
/s/ This lease is personally guaranteed by:
-----------------------------
By Xxxxx X. Xxxxxx _______________________________________
Title President & CEO _______________________________________
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