NOTICE OF LEASE
NOTICE IS HEREBY GIVEN that as of the lst day of November, 1991, Xxxxxxx
Development Corporation, a Washington corporation, as Landlord, has entered
into a lease with CXT Incorporated, a Delaware corporation, as Tenant, with
regard to the following described premises:
Lot 18, Spokane County Binding Site Plan 88-21, recorded in
Volume 1 of Plats, page 23, records of Spokane County,
Washington;
1. TERM: The term of the lease commences November 1, 1991, and expires
March 31, ------ 2003.
2. OPTION TO RENEW: Tenant has the option to renew the lease for a term
commencing ----------------- April 1, 2003 and expiring on March 31, 2013.
3. RIGHT OF FIRST REFUSAL: Tenant has the right of first refusal to
purchase the ------------------------ Premises through the term of the lease,
including the renewal term.
EXECUTED as of the lst day of November, 1991.
XXXXXXX DEVELOPMENT CORPORATION CXT INCORPORATED
By _________________________ By ________________________
Its _______________________ Its _______________________
STATE OF WASHINGTON
ss.
County of Spokane
I certify that I know or have satisfactory evidence that
________________________ is the person who appeared bef re me, and said person
acknowledged that he/she signed
this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the ________________ of XXXXXXX DEVELOPMENT
CORPORATION to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated ______________________
Notary Public in and for the State of
Washington, residing at
Spokane,
My commission
expires: _________
STATE OF WASHINGTON
ss.
County of Spokane
I certify that I know or have satisfactory evidence that ___________________is
the person who appeared before me, and said person acknowledged that he/she
signed this
instrument, on oath stated that he/she was authorized to execute the instrument
and acknowledged it as the _______________of CXT INCORPORATED to be the free
and voluntary act, of such xxxxx for the uses and purposes mentioned in the
instrument.
Dated __________________
Notary Public in and for the State
of
Washington, residing
at Spokame
My commission expires: ____________
LEASE
Between
SPOKANE INDUSTRIAL PARK, A Division
of XXXXXXX DEVELOPMENT CORPORATION,
a Washington corporation,
Landlord,
and
CXT, INCORPORATED
a Delaware corporation,
Tenant
Dated as of November 1, 1991
(Lot 18 BSP 88-21)
TABLE OF CONTENTS
ARTICLE I 1
Definitions
ARTICLE 2 2
Premises Leased
ARTICLE 3 2
Term
ARTICLE 4 2
Base Rent
ARTICLE 5 3
Security Deposit
ARTICLE 6 3
Use of Premises
ARTICLE 7 4
Repairs and Maintenance of the Premises
ARTICLE 8 5
Hazardous Materials
ARTICLE 9 6
Taxes and Assessments
ARTICLE 10 7
Utilities
ARTICLE 11. 8
Common Area Expenses
ARTICLE 12. 9
All Expenses Other Than Specifically Dealt With, Audit Rights
ARTICLE 13. 9
Indemnification of Landlord
ARTICLE 14. 11
Insurance
ARTICLE 15. 13
Limit on Landlord's Liability
ARTICLE 16 13
Defaults and Remedies
ARTICLE 17. 15
Landlord's Right to Perform Tenant's Covenants
ARTICLE 18. 15
Costs and Attorneys Fees
ARTICLE 19 16
Interest on Overdue Payments
ARTICLE 20. 16
No Total Payment Abatement
ARTICLE 21. 16
Damage to Premises
ARTICLE 22. 17
Condemnation
ARTICLE 23. 17
Transfer of Tenant's Interest
ARTICLE 24. 19
Subordination
ARTICLE 25. 19
Surrender
ARTICLE 26. 20
Holding Over
ARTICLE 27. 20
Quiet Enjoyment
ARTICLE 28...... 21
Right of Inspection
ARTICLE 29. 21
Recording
ARTICLE 30. 21
Estoppel Certificates
ARTICLE 31. 22
Nonwaiver
ARTICLE 32. 22
Authority
ARTICLE 33. 23
Brokers
ARTICLE 34. ....................................23
Notices
ARTICLE 35. ....................................23
Construction
ARTICLE 36. 23
Convenants to Bind and Benefit Respective Parties
ARTICLE 37.
Understanding of Parties
ARTICLE 38 ................... 24
Further Documents
ARTICLE 39 ..................... 24
Venue
ARTICLE 40 ..................... 24
Consultation
LEASE
This LEASE (hereinafter referred to as "the lease" or "this lease") is
made and entered into as of the lst day of November, 1991, by and between
SPOKANE INDUSTRIAL PARK, a division of XXXXXXX DEVELOPMENT CORPORATION, . a
Washington corporation ("Landlord"), and CXT, INCORPORATED, a Delaware
corporation ("Tenant").
ARTICLE 1.
Definitions
As used in this lease, the following terms are defined as follows:
1.1 "Improvements" shall mean all buildings, structures and
improvements now or hereafter situated, erected or constructed on the Property
and all personal property, equipment and trade fixtures not capable of being
removed without permanent damage to real property. Damage shall not be
considered permanent if it can be, and is, repaired by Tenant as required by
ARTICLE 25. "Existing Improvements" shall mean all Improvements situated,
erected or constructed on the Property or any part thereof as of the date
hereof "New Improvements" shall mean all Improvements situated, erected or
constructed on the Property after the date hereof.
1.2 "Premises" shall mean the Property and the Improvements.
1.3 "Project" shall mean the following-described real property,
consisting of approximately 8,619,217 gross square feet, of which the Property
is a part:
All property located within
a) Spokane County Altered Binding Site Plan No. 87-17,
recorded in Volume 1 of Plats, page 22A, records of
Spokane County, Washington;
b) Spokane County Binding Site Plan No. 88-21, recorded in
Volume 1 of Plats, page 23, records of Spokane County,
Washington; and
C) Spokane County Binding Site Plan No. 88-22, recorded in
Volume______ of Plats, page _, records of Spokane
County, Washington.
Landlord and Tenant acknowledge that a portion of the Project
will not have final binding site plan approval by Spokane County until
completion of the Infrastructure Improvements described in SC-6 of the Special
Conditions attached hereto and made a part
hereof by this reference. Pending completion of the Infrastructure
Improvements, the portion of the Project described in Section 1.3(c) of the
Lease shall be that real property described on Exhibit A attached to and made a
part of this lease.
1.4 "Property" shall mean the following-described real property,
consisting of approximately 147,233 gross square feet, and all easements,
licenses, privileges, rights and appurtenances related thereto, subject to all
easements, rights-of-way, restrictions and reservations of record:
Lot 18, Spokane County Binding Site Plan No. 88-21, recorded in Volume 1 of
Plats, page 23, records of Spokane County, Washington.
1.5 "Total Payments" shall mean all monetary sums due from Tenant to
or for the account of Landlord during the term of this lease, including,
without limitation, all Base Rent and Additional Rent. "Base Rent" shall mean
all sums payable by Tenant under ARTICLE 4. "Additional Rent" shall mean and
include every other cost and expense which Tenant shall be obligated to pay
under any provision of this lease as well as all sums of money paid or advanced
by Landlord upon Xxxxxx's behalf.
ARTICLE 2.
Premises Leased
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, subject to all terms and conditions of this lease.
ARTICLE 3.
Term
3.1 The term of this lease shall commence on November 1, 1991, and shall
end on March 31, 2003
ARTICLE 4.
Base Rent
4.1 Tenant shall pay Landlord Base Rent for each calendar month during
the lease term in accordance with SC-3 of the Special Conditions.
4.2 Base Rent for each calendar month shall be paid in lawful U.S.
money, at the address specified in ARTICLE 34 or such other place as Landlord
may from time to time designate in writing. Base Rent for each calendar month
shall be paid in advance on the first day of each month and without demand,
offset or deduction, except as expressly provided in this lease. Base Rent for
any portion of a calendar month at the beginning of the lease term or at the
end of the lease term shall be prorated.
ARTICLE 5.
Security Deposit
5.1 Upon execution of this lease Tenant shall give to Landlord, and
thereafter within five (5) days after request shall deposit additional funds as
necessary to maintain with Landlord, a security deposit of waived . Dollars ($
waived ). The security deposit shall be held by Landlord and any interest
thereon shall belong to Landlord. If Tenant fails to make the "Total Payments"
required under this Lease or defaults in performance of its other obligations
under this Lease, Landlord may use all or part of the security deposit to pay
any such amounts in default or for payment of any other amount which Landlord
spends or becomes obligated to spend by reason of Tenant's default, or for the
payment to Landlord of any other loss or damage which Landlord may suffer by
reason of Tenant's default. Landlord shall not be required to utilize the
security deposit prior to declaring a default under the Lease, nor shall the
security deposit be a limitation on Landlord's damages or other rights under
this Lease for a payment of liquidated damages or an advance payment of Total
Payments. If Tenant shall have fully performed all of the promises, covenants,
terms and conditions of this lease and surrendered the Premises in accordance
with ARTICLE 25, the security deposit shall be returned to Tenant within thirty
(30) days after the expiration of this lease.
ARTICLE 6.
Use of Premises
6.1 The Premises shall be used for office purposes, the manufacture,
storage and distribution of pavers, concrete railroad ties, other concrete
products, and associated products, and for no other purpose without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
Xxxxxxxx's withholding of consent shall not be unreasonable if based upon
increased risks posed by Xxxxxx's use of hazardous substances.
6.2 Tenant shall not use or permit the Premises to be used for any
unlawful purpose and shall use the Premises and Improvements in accordance with
all laws, rules, regulations, ordinances and requirements now or hereafter in
effect, including without limitation, any applicable to the generation, use,
manufacture, treatment, transportation, storage or disposal of hazardous
substances.
6.3 No change, alteration or improvement to the Improvements shall be
undertaken nor shall New Improvements be constructed without Landlord's prior
consent, which consent shall not be unreasonably withheld; provided, however,
Tenant shall not be required to obtain such consent for (i) changes,
alterations, improvements, or construction costing less than Ten Thousand
Dollars ($10,000.00) which do not affect the roof, exterior building materials,
any structural component or the primary electrical, plumbing, HVAC or other
major system of the Improvements. Tenant shall give written notice to Landlord
of any proposed change, alteration, improvement or construction requiring
consent prior to making such change, alteration, improvement or construction.
If a change, alteration, improvement or construction would involve a cost of
more than Ten Thousand Dollars ($10,000.00) or would affect the roof, exterior
building materials, any structural component or the primary electrical,
plumbing, HVAC or other major system of the Improvements, Tenant (a) shall
provide Landlord with complete
plans and specifications therefor along with Xxxxxx's notice, and (b) shall not
proceed without Landlord's prior written consent, which shall be given or
denied within fifteen (15) days after receipt of Tenant's notice and complete
plans and specifications. Landlord shall be deemed to have consented to, and.
Tenant may proceed with any change, alteration, improvement or construction for
which Xxxxxxxx's consent is required, in the absence of any objection from
Landlord within such fifteen (15) day period. By written -notice to Tenant,
Landlord may extend the time for granting or withholding consent to any
proposed change, alteration, improvement or construction for up to a maximum of
thirty (30) additional days if necessary due to the scope of Xxxxxx's plans.
All changes, alterations, improvements and construction shall be at Tenant's
sole cost, free of claims of lien, and shall be performed in a good and
workmanlike manner and in conformance with applicable building codes and other
laws, ordinances, rules and regulations.
6.4 Tenant shall conduct its business and control its employees,
agents, invitees and visitors in such manner as not to create any unlawful
nuisance, or unreasonably interfere with, annoy or disturb any other tenant of
the Project. Tenant shall not do anything which would cause Landlord's
insurance rates to increase unless Tenant pays the amount of such increase.
Tenant shall not do anything which is prohibited by insurance policies
maintained by Landlord or Tenant under this lease or which would cause a
cancellation of any such policies, unless substitute policies are procured,
which would permit such activities. Tenant shall pay all excess costs of such
substitute policies. Landlord shall reasonably cooperate with Xxxxxx and
insurers in attempting to accommodate Xxxxxx's activities, provided such
accommodation does not adversely affect Landlord or other tenants of premises
covered by Landlord's insurance policies.
6.5 Tenant shall. comply with reasonable rules and regulations
promulgated from time to time by Landlord with respect to the use of common
access roads within and otherwise serving the Project, the private water and
sewer facilities, the appearance and location of signage within the Project,
and the appearance and regular maintenance of building exteriors and
landscaping within the Project. Landlord shall use good faith efforts to
uniformly enforce such rules and regulations; however, Landlord shall have no
liability for the failure of any other tenant to comply with such rules and
regulations, or for the conduct of tenants under leases predating the
promulgation of such rules and regulations.
ARTICLE 7.
Repairs and Maintenance of the Premises
7.1 Throughout the term of this lease, Tenant, at its sole cost, shall keep
the Premises in a habitable, safe, neat, clean and sanitary condition, and in
first class working order and repair, except as expressly set forth otherwise in
this lease. Tenant shall not cause or permit waste damage or injury to the
Premises.
7.2 Landlord shall, within a reasonable time after written notice from
Xxxxxx, perform all repairs to the Premises made necessary by casualty or other
loss insured against by Landlord's insurance policies described in Section 14.
1; provided, however, Tenant shall be liable for the lesser of (a) the cost of
such repairs or (b) the deductible under Landlord's insurance policy, up to a
maximum of One Thousand Dollars ($1,000.00).
7.3 Tenant shall make any and all repairs to the Premises, of any kind
or description whatsoever, made necessary by or arising out of Tenant's use and
occupancy of the Premises (excepting only (i) repairs to be performed by
Landlord pursuant to Section 7.2, and (ii) repairs
made necessary by uninsured catastrophic loss not attributable to Tenant's
negligence or other fault, including, without limitation, earthquake, flood,
war and nuclear reaction), structural or nonstructural, interior or exterior,
including, without limitation, repair or replacement of any glass as may become
cracked or broken, repair to the roof, floors, walls, sash, pipes, interior
partitions and doors, ceilings and to the heating, air conditioning and
refrigeration plants, electrical lighting, fire safety, fire sprinkler and
plumbing fixtures, and to all other fixtures, equipment and appurtenances
thereto, and to the irrigation system, parking lots, driveways and other
exterior Improvements. Any such repairs shall be performed in a good and
workmanlike manner, and all items shall be replaced with items of similar
quality and first class condition. Tenant shall make all repairs to the
Premises required by federal, state, county and city statutes, codes,
ordinances and regulations. All repairs, other than those covered by Xxxxxxxx's
insurance policy described in Section 14. 1, shall be at Tenant's sole cost.
Work on all repairs which Tenant is obligated to make under this lease shall
commence promptly after the need therefor becomes known to Tenant, and Tenant
shall pursue the repair work to completion with due diligence. Except in the
case of emergency (when notice shall be given as soon as practical), Tenant
shall notify Landlord in advance of any planned or necessary repairs to the
roof, exterior building materials or structural components or to the primary
electrical, plumbing, HVAC or other major system of the Improvements, and
Landlord shall have the option of performing such repairs at Tenant's cost;
provided, however, in no event shall Tenant be obligated to pay any costs in
excess of the lowest fixed price bid received by Tenant from a responsible
licensed contractor reasonably acceptable to Landlord to perform such repairs.
7.4 Tenant's obligations arising during the term of this lease under
this ARTICLE shall survive any termination or expiration of this lease.
ARTICLE 8.
Hazardous Materials
8.1 Tenant shall not, without prior written notice to Landlord, engage
in or allow the generation, use, manufacture, treatment, transportation,
storage or disposal of any hazardous substance in, on, under or adjacent to the
Premises. Prior to taking occupancy of the Premises, Tenant shall provide
Landlord with a description of any processes or activities involving the use of
hazardous substances to be conducted by Tenant as well as a description (by
type and amount) of any- hazardous substances Tenant plans to generate, use,
manufacture, transport, store or dispose of in connection with its use of the
Premises. Tenant warrants that such description is and will be true, accurate
and complete. Tenant shall-notify Landlord prior to any material changes in
such processes, activities or type and amount of hazardous substances utilized
by Tenant and in any event, Tenant shall report to Landlord at least once
yearly regarding any such processes, activities and hazardous substances.
Tenant shall contemporaneously provide Landlord with copies of all reports,
listings or other information required by any governmental entity relating to
any hazardous substances utilized by Tenant, and shall promptly provide any
other information related to Tenant's utilization of hazardous substances as
Landlord may reasonably request.
8.2 Tenant shall not engage in or allow the unlawful release (from
underground tanks or otherwise) of any hazardous substance in, on, under or
adjacent to the Property (including air, surface water and groundwater on, in,
under or adjacent to the Property). Tenant shall at all times be in compliance
with all applicable law (and shall cause its employees, agents and contractors
to be) with respect to the Premises or any hazardous substance and shall handle
all h:;7n dous substances in compliance with good industry standards and
practices. As used in this Lease, the term "hazardous substance" shall mean any
substance, chemical or waste, including any petroleum products or radioactive
substances, that is now or shall hereafter be listed, defined or regulated as
hazardous, toxic or dangerous under any applicable laws. As used in this
ARTICLE, "applicable law" shall mean any federal, state, or local laws,
ordinances, rules, regulations and requirements (including consent decrees and
administrative orders) relating to the generation, use, manufacture, treatment,
transportation, storage or disposal of any hazardous substance now or hereafter
enacted.
8.3 Tenant shall promptly notify Landlord, in writing, if Tenant has
or acquires notice or knowledge that any hazardous substance has been or is
threatened to be unlawfully released, discharged or disposed of, on, in, under
or from the Premises. Tenant shall immediately take such action as is necessary
to detain the spread of and remove, to the satisfaction of Landlord and any
governmental agency having jurisdiction, any hazardous substances released,
discharged or disposed of as the result of or in any way connected with the
conduct of Tenant's business, and which is now or is hereafter determined to be
unlawful or subject to governmentally imposed remedial requirements. Tenant
shall immediately notify Landlord and provide copies upon receipt of all
written complaints, claims, citations, demands, inquiries, reports or notices
relating to the condition of the Premises or compliance with environmental
laws. Tenant shall promptly cure and have dismissed with prejudice any such
actions or proceedings in any way connected to the conduct of Xxxxxx's
business, to the satisfaction of Landlord, and Tenant shall keep the Premises
free of any lien imposed pursuant to any environmental law. Landlord shall have
the right at all reasonable times and from time to time to conduct
environmental audits of the Premises (including sampling, testing, monitoring
and accessing environmental records required by applicable law) by a consultant
of Landlord's choosing, and Tenant shall cooperate with the conduct of these
audits. If any violation of any applicable law by Tenant or any violation of
Tenant's obligations under this ARTICLE are discovered, in addition to any
other right Landlord may have against Tenant, the fees and expenses of such
consultant shall be borne by the Tenant and shall be paid by Tenant to Landlord
on demand.
8.4 Tenant's obligations under this ARTICLE with respect to any
occurrence during the term of this lease shall survive any termination or
expiration of this lease.
ARTICLE 9.
Taxes and Assessments
9.1 Tenant shall pay when due any and all taxes, installments of
general or special assessments (amortized over the longest permissible time),
levies, license and permit fees and other governmental charges and impositions
of any kind and nature whatsoever, together with any interest or penalties
attributable to Tenant's failure to pay the same when due, which at any time
during the term of this lease may be assessed, levied or become due and payable
out of or M respect of, or become a lien on the Premises, including, without
limitation, any sales tax, business and operation tax, excise tax or similar
tax or imposition imposed upon rent or Landlord's business of leasing property
within the Project (collectively the "Impositions"); provided, however, Tenant
shall not be obligated to pay Landlord's net income taxes or any transfer or
excise tax imposed upon the conveyance of the Premises, or business and
occupation taxes imposed upon Xxxxxxxx's business activities other than leasing
property within the Project.
9.2 Impositions shall be paid by Tenant to Landlord in one or more
installments each year during the lease term, in an amount estimated by
Landlord. If Impositions are billed to Tenant based upon estimates, on or
before April lst of each year, Landlord shall, but not less than once annually,
furnish to Tenant a statement of the actual amount of Impositions incurred.
Within thirty (30) days after receipt of such statement, Tenant shall pay
Landlord the amount by which the actual Impositions exceed estimated
Impositions paid by Xxxxxx. If the estimated amount of Impositions paid by
Xxxxxx exceeds the actual Impositions, such excess shall be credited against
the next Imposition payment-due from Tenant. Notwithstanding the foregoing
Landlord may elect to require Tenant to pay all or some Impositions directly to
the governmental authority levying the same.
9.3 Tenant may seek a reduction in the assessed valuation of the
Premises for tax purposes and to contest in good faith by appropriate
proceedings, at Tenant's expense, the amount or validity of any tax or
assessment, provided that prior to the date when any penalties or interest may
be incurred, Tenant shall deposit with the appropriate entity making the tax or
assessment the sum contested or secure a bond in an amount sufficient to fully
satisfy the amount of any lien upon the Premises. Any bond posted shall name
Landlord as a co-obligee and shall be reasonably satisfactory, as to issuer and
form, to Landlord. Any refund allocable to the term of this lease shall belong
to Tenant.
9.4 Tenant's obligations under this ARTICLE with regard to Impositions
arising during the term of this lease shall survive any termination or
expiration of this lease.
ARTICLE 10.
Utilities
10. 1 Tenant shall pay, when due, any and all charges and fees for
gas, heat, electricity, water, sewer, garbage collection, telephone and all
other public or private utilities servicing the Premises and shall, upon
request, provide evidence of such payment. Tenant shall not be entitled to
terminate this lease or receive an abatement of rent as the result of any
failure, interruption or discontinuance of any utility service for any reason;
-provided however, if such interruption or discontinuance which materially
affects Tenant's occupancy of the Premises results from the negligence of
Landlord and continues, after notice to Landlord, for a period in excess of
seven (7) business days, Total Payments shall xxxxx until service is resumed.
10.2 Rates charged by Landlord to Tenant for utility services owned by
Landlord (upon execution of this lease, sewer and water) shall be based upon
consumption and will be the same rates charged to other tenants within the
Project.
10.3 Tenant's obligations under this ARTICLE with regard to utilities
furnished to the Premises during the term of this lease shall survive any
termination or expiration of this lease.
ARTICLE 11.
Common Area Exl&nses
11. 1 Tenant shall pay Landlord its proportionate share of all
reasonable and customary costs (not including depreciation or costs of repairs
resulting from Landlord's negligence), paid or incurred by Landlord in
operating and maintaining the common access roadways, sidewalks, pathways,
landscaped areas and other similar areas or improvements which may be provided
by Landlord for the common use or benefit of tenants of the Project, (but not
including common areas specific to a particular building other than the
Premises), including without limitation, costs of personnel, equipment and
material for maintenance, repair, replacement, snow removal, striping, signage.
and other traffic control measures, costs for lighting, insurance, property
taxes, licenses, permits and fees. Tenant's proportionate share of such
expenses shall be a fraction, the numerator of which is the area of the
Property and the denominator of which is the area of the Project (or, if the
expense is incurred with respect to property not co-extensive with the Project,
such other fraction as reasonably determined by Landlord). Capital expenses
shall be amortized over their reasonably expected useful life, as determined by
Landlord. Common area charges shall not include expenses of initial
installation of roadways, initial landscaping, management fees or Landlord's
general administrative expenses for the Project.
11.2 Common area charges shall be paid by Tenant in one or more
installments each year during the lease term in an amount estimated by
Landlord. On or before April 1 of each year, Landlord shall furnish to Tenant a
statement of the actual amount of Tenant's proportionate share of common area
expenses for the preceding calendar year. Within thirty (30) days after receipt
of such statement, Tenant shall pay Landlord the amount by which such expenses
exceed Xxxxxxxx's estimates. If Tenant has paid more than the actual amount of
such expenses, such excess shall be credited against expenses due for the
ensuing year.
11.3 The common area shall consist of easements shown on the Binding
Site Plans of the Project, landscaping easements twenty (20) feet in width
adjacent to all public and private roadways within the Project, and other
perimeter easements and necessary rights-of-way for utilities and private
roadways servicing the Project, for public streets, pathways and "208" drainage
areas, all as reasonably designated by Landlord, and the private sewer and
water and systems serving the Project. Landlord shall provide and maintain
landscaping within the landscaping easement described above. The common areas
are for the joint benefit of all tenants of the Project and adjacent property
owned by Landlord, and Landlord reserves the following rights with respect to
the common areas:
(a) to establish reasonable rules and regulations for the use of the common
areas;
(b) to close all or any portion of the common areas for reasonable
periods to make repairs and changes, and to change the location, layout or
shape of the common areas, provided Tenant's access to the Premises is not
unreasonably impaired;
(c) to grant access to the common areas to utility providers,
governmental entities and others to maintain and repair the improvements
serving the Project and the public;
(d) to dedicate the common areas to public use.
11.4 Tenant's obligations under this ARTICLE with regard to common
area charges arising during the term of this lease shall survive any
termination or expiration of this lease.
ARTICLE 12.
All Expenses Other Than Specifically Dealt With, Audit Rights
12.1 If, during the term of this lease, expenses arise, become due, or
are incurred by Landlord, relating to or resulting from the Project, the lease
of the Premises, use of the Improvements and personal property subsequently
placed upon the Premises or the business conducted by Tenant, which expenses
are not specifically dealt with in the lease, such expenses shall be allocated
between Landlord and Tenant in a manner consistent with the allocation of
expenses specifically dealt with in the lease so that each party receives
substantially the benefit of the bargain reflected in the lease.
12.2 Not more than once each calendar year, Tenant shall have the
right, upon thirty (30) days' prior notice to Landlord, to examine Xxxxxxxx's
records for the prior year relating to Impositions (ARTICLE 9), insurance
(ARTICLE 14) and common area expenses (ARTICLE 11), and to challenge the amount
of any such charges. The amount of any charges found, by agreement or
otherwise, to be improper or excessive shall be credited against the next
installment(s) of Additional Rent due from Tenant.
ARTICLE 13.
Indemnification of Landlord
13.1 Tenant -releases and, subject to the provisions of Section 14.5,
shall defend, indemnify and hold harmless Landlord, and each of its officers,
directors, shareholders, employees, agents and representatives, against and
from all liabilities, obligations, damages, penalties, judgments, claims,
costs, charges, fees and expenses, including, but not limited to, costs of
investigation and correction, reasonable architects', attorneys' and
consultants' fees and costs, which may be imposed upon, incurred by or asserted
against Landlord or its officers, directors, shareholders, employees, agents
and representatives by reason of any of the following:
(a) any act or omission during the term of this lease in, on, about or
arising out of or in connection with the use, operation, maintenance and
occupancy of the Premises or any part thereof, whether or not consented to by
Landlord; by Xxxxxx, or
Tenant's agents, contractors, servants or employees (whether inside or outside
the scope of employment), licensees or invitees, except to the extent caused by
the negligence or intentional misconduct of Landlord or its agents,
contractors, subcontractors, servants or employees;
(b) any accident, injury, casualty, loss, theft or damage whatsoever
to any person or tangible property occurring in, on, about or arising out of or
in connection with the use or occupancy by Tenant of the Premises, any common
area, roadway, alley, basement, pathway, curb, parking area, passageway or
space under or adjacent thereto arising from any cause or occurrence
whatsoever, except to the extent caused by the negligence or intentional
misconduct of Landlord or its agents, contractors, subcontractors, servants or
employees;
(c) any failure on the part of Tenant or any of its agents,
contractors, subcontractors, servants or employees to perform or comply with
any of the covenants, agreements, terms, provisions, conditions or limitations
contained in this lease;
(d) any failure by Tenant to perform or comply with any of the terms
or provisions contained in this lease or any act performed by Landlord in
exercise of its rights under ARTICLE 17; or
(e) any presence, release, migration, discharge, disposal, dumping,
spilling or leaking (accidental or otherwise), now or hereafter determined to
be unlawful or subject to governmentally imposed remedial requirements, caused
by Tenant or in any way connected with Tenant's business, of any hazardous,
dangerous or toxic substance of any kind (whether or not now or hereafter
regulated, defined or listed as hazardous, dangerous or toxic by any local,
state, or federal government) into, onto or under the Property or the air,
soil, surface water, or groundwater thereof, or the pavement, structures, sewer
system, fixtures, equipment, tanks, containers or personality at the Property
or into, onto or under the property of others from the Premises. The foregoing
indemnity shall apply notwithstanding any provisions of federal, state or local
law which provides for the exoneration from liability in the event of
settlement with any governmental. agency, and notwithstanding Xxxxxxxx's
consent, knowledge, action or inaction with respect to the act or occurrence
giving rise to such right of indemnity.
13.2 In case any action or proceeding is brought against Landlord or
its officers, directors, shareholders, employees, agents and representatives by
reason of any claim indemnified under Section 13. 1, Landlord shall promptly
notify Tenant of such claim and Tenant shall, at Tenant's expense, immediately
resist or defend-such action or proceeding with counsel approved by Landlord in
writing, which approval shall not be unreasonably withheld. In connection with
any such action brought against Landlord by Tenant's employees, Tenant waives
any immunity, defense or other protection afforded by any worker's
compensation, industrial insurance or similar laws, with regard to such claim
or action against Landlord.
13.3 Xxxxxx xxxxxx and releases all claims against Landlord, its
officers, directors, shareholders, employees, agents and representatives, fcr
any loss, injury, or damage (including
consequential damages), to Tenant's property or business during the term of
this lease occasioned by theft, act of God, public enemy, injunction, riot,
strike, insurrection, war, court order, acquisition, order of governmental body
or authority, earthquake, flood, fire, explosion, falling objects, steam,
water, rain or snow, leak or by flow of water, rain or snow from the Premises
or onto the Premises or from the roof, street, subsurface or from any other
place, or by dampness, or by the breakage, leakage, obstruction or defects of
the pipes, sprinklers, wires, appliances, plumbing, heating, air conditioning,
lighting fixtures of the Improvements, or by the construction, repair or
alteration of the Premises or by any other acts or omissions of any other
tenant or occupant of the Project, or visitor to the Premises or any third
party whatsoever, or by any cause beyond Landlord's control.
13.4 Tenant's obligations under this ARTICLE shall survive any
termination or expiration of this lease.
ARTICLE 14.
Insurance
14.1 At all times during the term of this lease, Landlord shall carry
and maintain (a) Special Form property insurance (or its then equivalent in the
insurance industry) covering the Improvements to their full insurable
replacement value, subject to a deductible of not less than One Thousand
Dollars ($1,000.00), (b) rental value insurance in an amount sufficient to
cover Tenant's Total Payments during any period of rental abatement caused by
repair or reconstruction of the Improvements, and (c) commercial general
liability insurance (or its then equivalent in the insurance industry) for the
Project in such amounts as Landlord determines from time to time in its
reasonable discretion.
14.2 Tenant shall reimburse Landlord for the costs of all insurance
maintained pursuant to Section 14. 1. If Landlord maintains blanket property
damage policies Tenant shall pay only that portion of policy premiums
reasonably allocable to the Premises. The cost of Landlord's liability
insurance shall be allocated in accordance with Section 11. 1. Insurance
charges shall be paid by Tenant in one or more installments each year during
the lease term in an amount estimated by Landlord. On or before April I of each
year, Landlord shall furnish to Tenant a statement of the actual amount of
insurance costs incurred for the preceding calendar year. Within thirty (30)
days after receipt of such statement, Tenant shall pay Landlord the amount for
which actual insurance expenses exceed estimated expenses paid by Xxxxxx. If
the estimated amounts paid by Tenant exceed the actual insurance expenses, such
excess shall be credited against the next insurance expense payment due from
Tenant. Tenant's obligation under this Section shall survive any termination or
expiration of this lease.
14.3 Any loss to Xxxxxx's personal property and fixtures or arising
out of the conduct of or interruption of Tenant's business shall be the sole
risk of Tenant. Tenant shall, at its sole cost, secure and maintain throughout
the term of this lease insurance policies with a company or companies
reasonably acceptable to Landlord and licensed to do business in the State,
insuring against the following perils:
(a) Liability Insurance. (i) Commercial general liability insurance
(or its then equivalent in the insurance industry) with combined single limits
of not less than One Million Dollars ($ 1,000,000.00) per occurrence for
personal injury and property damage. Such policy shall. name Landlord and any
lender of Landlord as additional insureds; shall contain cross liability
provisions and shall include but not be limited to coverage for the occurrences
described in subsections 13. l (a) and (b), and acts of independent contractors
retained by Tenant, and (ii) auto liability insurance for vehicles owned,
leased or used by Tenant, and non-owned vehicles used in connection with
Tenants' business, with liability limits of not less than One Million Dollars
($1,000,000.00) per occurrence.
(b) PropgM Insurance. Special Form property insurance (or its then
equivalent in the insurance industry) naming Landlord, any lender of Landlord,
and Tenant as their interests may appear, covering all leasehold improvements
in, on, or upon the Premises, in an amount not less than the full replacement
cost without deduction for depreciation. All policy proceeds shall be used for
the repair or replacement of the property damaged or destroyed; however, if
this lease ceases under the provisions of ARTICLE 21, Tenant shall be entitled
to any proceeds equal to the remaining value to Tenant of leasehold
improvements for which Tenant has paid, and Landlord shall be entitled to all
other proceeds. Notwithstanding the foregoing sentence, Landlord shall never
receive less than an amount equal to the reasonable cost of re-constructing
Improvements substantially identical to those originally delivered to Tenant.
(c) Other Insurance: Changes in Limits. Such other insurance in such
amounts as may from time to time be reasonably requested by Landlord against
other insurable hazards related to the Premises (including, without limitation,
hazards to the Premises related to Tenant's activities thereon), which at the
time are customarily insured against by owners or operators of similar types of
properties and Landlord may require changes in the amounts or limits of the
insurance to be maintained under this ARTICLE to maintain reasonably equivalent
coverage due to inflation, changes in Tenant's business operations, changes in
law or changes in policy terms.
14.4 Each insurance policy maintained by Tenant shall provide coverage
on an occurrence rather than a claims-made basis (or if coverage on an
occurrence basis is or becomes unavailable on commercially reasonable terms,
Tenant may obtain insurance coverage on a claims-made basis, provided such
policies are endorsed to provide for an extended reporting period of not less
than three (3) years) and shall provide that (a) no act, omission or default by
Tenant shall render the policy void as to Landlord or of Landlord's right to
recover thereon; and (b) the policy shall not be canceled or modified so as to
adversely affect Landlord until thirty (30) days after written notice to
Landlord. On or before commencement of the term hereof and thereafter upon the
request of Landlord, Tenant shall provide certificates of insurance evidencing
the required insurance and upon Landlord's request, copies of any required
policy. All policies shall be written as primary policies, not contributing
with, and not in excess of coverage which Landlord may carry.
14.5 Landlord and Tenant each waive any and all rights to recover
against the other or against the officers, directors, shareholders, employees,
agents or representatives of the other,
14.5 Landlord and Tenant each waive any and all rights to recover
against the other or against the officers, directors, shareholders, employees,
agents or representatives of the other, for any loss or damage to such waiving
party arising from any cause covered by any insurance required to be carried by
such party pursuant to this ARTICLE or any other insurance actually carried by
such party; provided, however, Tenant shall remain liable for the lesser of (a)
the loss incurred by Landlord or (b) the deductible under Xxxxxxxx's insurance
policies, up to a maximum of One Thousand Dollars ($1,000.00). Landlord and
Tenant from time to time shall cause their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all policies of
insurance carried in connection with the Premises or the contents of the
Premises. Xxxxxx agrees to cause all other occupants of the Premises claiming
by, under, or through Tenant to execute and deliver to Landlord such a waiver
of claims and to obtain such waiver of subrogation rights endorsements.
14.6 Landlord, its agents and employees make no representation that
the limits of liability specified to be carried by Tenant pursuant to this
ARTICLE are adequate to protect Tenant. If Xxxxxx believes that any of such
insurance coverage is inadequate, Tenant shall obtain, at Tenant's sole
expense, such additional insurance coverage as Tenant deems adequate.
ARTICLE 15.
Limitation on Landlord's Liability
15.1 Notwithstanding any other provision of this lease, in the event
of any actual or alleged default under this lease by Landlord, Landlord's
liability shall be limited to Landlord's interest in the Project. Neither
Landlord nor any officer, director, shareholder, agent or representative of
Landlord shall have any personal liability for the breach of any obligations
under this lease.
15.2 If Landlord, or any subsequent owner of the Premises, transfers
the Premises, its liability for the performance of its agreements under this
lease shall end with respect to obligations arising after the date of the
transfer of the Premises, and the Tenant shall thereafter look solely to the
transferee of the Premises for the performance of those agreements. Tenant
shall attorn to any transferee of the Premises.
ARTICLE 16.
Defaults and Remedies
16.1 Landlord shall be entitled to exercise any of the rights and
remedies provided for in this lease (and/or by applicable law) if any one or
more of the following "Events of Default" shall occur:
(a) if Base Rent is not paid when due and remains unpaid for ten (10) days
after written notice; or
(b) if any Additional Rent or any other sum payable by Xxxxxx is not paid
within twenty (20) days after written notice from Landlord to Tenant; or
(c) if default shall be made by Tenant in the prompt and full
performance or compliance with any of the promises, provisions, terms,
covenants or conditions in this lease other than those referred to in
subsections (a) and (b) of this Section, and any such default is not fully
cured within thirty (30) days after written notice from Landlord to Tenant, or
if such default may not be reasonably cured within such 30-day period, if
Tenant does not commence to cure within such 30-day period and thereafter
diligently pursue such cure to completion.
16.2 Upon the occurrence of any Event of Default, Landlord may, at its
discretion, apply the security deposit referred to in ARTICLE 5 against any
amounts due from Tenant; take any action permitted under ARTICLE 17; and
exercise any or all rights or remedies allowed under this lease or by law or
equity, including without limitation, the following:
(a) Landlord may terminate this lease in accordance with the laws of
the State of Washington, whereupon Tenant shall quit and peacefully surrender
the Premises. Upon termination, Landlord may re-enter the Premises and take
possession thereof, remove all parties in possession therefrom, and Tenant
shall have no further claim or demand whatsoever thereon or hereunder.
Landlord, without terminating this lease, may re-enter the Premises without
liability for trespass, remove by summary proceedings, ejectment, replevin,
unlawful detainer, lien foreclosure, or otherwise, all persons and personal
property from the Premises and may have, hold, and enjoy the Premises and have
the right to receive all rental income of and from the same. No act by Landlord
shall terminate this lease unless Landlord notifies Tenant in writing that
Landlord elects to terminate this lease. Upon any re-entry, Landlord may relet
the Premises or any part thereof for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance of
the term of this lease) and on such conditions as Landlord, in its reasonable
discretion, may determine and may collect and receive the rents thereto. If
Tenant abandons the Premises, Landlord shall in no way be responsible or liable
if the Premises or any part thereof are not relet, or for any inability to
collect any rent due upon any such reletting. Tenant assumes full
responsibility for mitigating damages upon abandonment of the Premises and
waives any defense or claim based on Landlord's failure to mitigate damages
except as set forth in Section 23.6. No re-entry by Landlord, if the lease has
not been terminated, shall excuse or relieve Tenant of its liability and
obligations under this lease, and Tenant, until the end of the term of this
lease, shall be liable to Landlord for and shall pay to Landlord the amount of
Total Payments which are due and payable under this lease by Tenant, less the
proceeds realized by Landlord from any reletting. Tenant shall pay such
deficiency to Landlord on the first day of each month for which rent would have
been paid under this lease, and Landlord shall be entitled to recover from
Tenant each monthly deficiency. In addition, Tenant shall pay upon demand all
of Landlord's reasonable expenses whatsoever reasonably incurred in connection
with any reletting, including, without limitation, all repossession costs,
brokerage and management commissions or fees, all operating expenses,
accounting expenses, attorneys' fees, reasonable costs incurred in making
alterations to the Improvements and removal, storage or disposition of personal
property on the Premises, and any expenses of advertising and preparation for
reletting and any reasonable concessions granted in connection with such
reletting. Any sums received by Landlord upon a reletting of the Premises in
excess of the Total Payments reserved herein shall be the sole property of
Landlord; or
(b) Landlord may accelerate all of the Total Payments reserved for the
remaining balance of the term of this lease. Upon such acceleration, all of the
Total Payments reserved herein for the entire term shall immediately become due
and payable, discounted to their then present value using a discount rate equal
to the prime rate as of the date of the Event of Default, less the reasonable
rental value of the Premises for the remainder of the lease term, also
discounted to present value at the prime rate. The "prime rate" shall mean the
interest rate per annum announced by Seattle-First National Bank (or its
successor) from time to time as its prime lending rate to its most creditworthy
commercial customers. Tenant shall pay, upon demand, such accelerated amount
plus an amount equal to the total of all of Landlord's reasonable costs
resulting from Tenant's default including, without limitation, costs of curing
any breach by Tenant of the terms of this Lease (other than failure to pay
Total Payments), repossession of the Premises, operating and administrative
expenses until the Premises may be relet, attorney's fees, costs of removal,
storage or disposition of personal property on the Premises, and the
unauthorized cost of any leasehold improvements or concessions granted in
connection with this Lease, plus interest thereon at the prime rate from the
date incurred until the date paid.
ARTICLE 17.
Xxxxxxxx's Right to Perform Tenant's Covenants
17.1 If Tenant shall at any time fail to make any payment or perform
any act required under this lease, then Landlord, after ten (10) days' notice
to Tenant in the case of monetary defaults (other than the payment of Base
Rent) or thirty (30) days' notice in the case of a nonmonetary default, or
immediately without notice in the case of emergency, and without waiving or
releasing Tenant from any obligation of Tenant contained in this lease or from
any default by Tenant and without waiving Landlord's right to take other action
permissible under this lease, may (but shall be under no obligation to) make
such payment or perform any other act required to be made, performed or
complied with by Tenant hereunder.
17.2 Landlord may enter the Premises for any purpose under Section
17.1 and take all such action thereon as may be necessary without incurring any
liability for trespass and without terminating Tenant's tenancy or interfering
with Xxxxxx's quiet enjoyment of the Premises. Any sums paid by Xxxxxxxx and
all costs and expenses reasonably incurred by Landlord (including reasonable
attorneys' fees), in connection with the performance of any act, together with
interest thereon at the rate set forth in ARTICLE 19, from the date of such
payment or incurrence by Landlord shall be paid by Tenant to Landlord upon
demand.
ARTICLE 18.
Costs and Attorneys' Fees
18.1 In the event of any breach, default, delinquency or violation by
either party or any dispute involving the interpretation of this lease, the
non-prevailing party shall be responsible
for and shall pay any and all reasonable attorneys' fees and costs, or expenses
incurred by the other party by reason of such breach, default, delinquency,
violation or dispute, whether or not a legal action is filed, including those,
if any, on appeal.
ARTICLE 19.
Interest on Overdue Payments
19.1 Any component of Total Payments payable by Tenant under the terms
of this lease, which Tenant does not pay when due, shall bear interest in favor
of Landlord from the due date at the rate of eighteen percent (18 %) per annum,
compounded monthly, or such lesser rate as may be the maximum allowed by law.
19.2 Any late or partial payments, if accepted by Landlord, may, at
Landlord's option, be applied first to interest, then to Additional Rent, and
finally to Base Rent.
ARTICLE 20.
No Total Payments Abatement
20.1 Except as otherwise expressly provided for in this lease, no
abatement, diminution, setoff, counterclaim or reduction of Total Payments or
charges due Landlord shall be claimed by or allowed to Tenant.
ARTICLE 21.
Damage to Premises
21.1 If the Improvements are damaged or destroyed by reason of fire or
any other cause, Tenant shall immediately notify Landlord. If the loss results
from a casualty covered by Landlord's insurance, provided Tenant is not in
default, Landlord shall apply the net proceeds of any fire or other casualty
insurance paid to Landlord (or to a trustee or depository at the request of the
holder of Landlord's mortgage), to repair or rebuild the Improvements. Provided
Tenant is not in default, if the loss results from a casualty not insured
against by Landlord's insurance and not attributable to Tenant's negligence or
other fault and the estimated costs of repair do not exceed fifty percent (50%)
of the sum of Base Rent due for the remainder of the lease term, Landlord shall
repair or rebuild the Improvements, in each case so as to make the Improvements
at least equal in value to the Improvements existing immediately prior to the
occurrence and as nearly similar in character as is practicable and reasonable,
subject to any applicable building regulations. Landlord shall prosecute the
repairs or rebuilding to completion with diligence; subject, however, to
strikes, lockouts, acts of God, embargoes, governmental restrictions, and other
causes beyond Landlord's reasonable control.
21.2 If (a) at any time during the last two (2) years of the term of
this lease the Improvements are damaged by fire or other insured casualty so
that the cost of restoration exceeds twenty-five percent (25 %) of the
replacement value of the Improvements (exclusive of foundations) immediately
prior to the damage or (b) in Landlord's reasonable judgment, repair or
restoration after any insured casualty cannot be completed by one (1) year
prior to the end of the lease term or (c) a loss exceeding fifty percent (50%)
of the sum of Base Rent due for the
remainder of the lease term results from a casualty not insured against by
Xxxxxxxx's insurance, then Landlord may, within thirty (30) days after such
damage, give notice of its election to terminate this lease and, subject to the
provisions of this section, this lease shall cease on the tenth (10th) day
after the delivery of that notice. Total Payments shall be apportioned and paid
to the time of damage.
21.3 Total Payments shall be abated on a pro rata basis from the date
of the damage until the date of the completion of such repairs, based on the
proportion of the Premises that Tenant is unable to use during the repair
period. If any casualty not covered by rental value insurance is the result of
the willful conduct or negligent act or omission of Tenant, its agents,
contractors, employees, or invitees, Total Payments shall not be abated. Tenant
shall have no right to terminate this lease on account of any damage to the
Premises, or the Project, except as set forth in this lease.
ARTICLE 22.
Condemnation
22.1 In the event the Premises or any part thereof shall be condemned
and taken for a public or quasi-public use, the leasehold estate and interest
of Tenant in the Premises or the part thereof so taken shall forthwith cease
and terminate as of the date of final award. In the event of a partial taking,
the lease shall remain in full force as to any portion of the Premises not
taken, and Tenant's obligation to pay Base Rent and Additional Rent herein
reserved shall be equitably reduced or abated in proportion to the value of the
portion of the Premises which is lost on account of any partial taking. Rent
shall not be abated if the taking does not unreasonably affect Xxxxxx's use of
the Premises. Notwithstanding the foregoing, in the event any part of the
Premises is taken which would render the remainder thereof unusable, Tenant may
elect to terminate this lease and all obligations of either party hereunder
accruing from and after the date of such partial taking.
22.2 Landlord reserves all rights to damages awarded for any partial
or total taking, and Tenant hereby assigns to Landlord any right Tenant may
have to such damages or award except for moving expenses, Xxxxxx's personal
property or damage to or interference with Xxxxxx's business, but only to the
extent awarded separately and not out of or as a part of the damages
recoverable by Landlord.
ARTICLE 23.
Transfer of Tenant's Interest
23.1 Tenant shall not:
(a) transfer all or any portion of this lease or any of its leasehold
interest in the Premises, without the prior written consent of Landlord, which
may not be unreasonably withheld;
(b) mortgage, pledge, hypothecate or otherwise create or grant any security
interest in Tenant's leasehold interest (or any part thereof) in the Premises
without the
prior written consent of Landlord, which may not be unreasonably withheld or
delayed, and, subject to Tenant's right to contest in a manner similar to that
provided in Section 9.3 for Impositions, Tenant shall not voluntarily or
involuntarily suffer or permit to be placed or enforced against the Premises
any lien, claim, demand or encumbrance of any type or nature whatsoever.
23.2 Any request by Tenant for Landlord's consent to a transfer shall
be accompanied by information related to the proposed transferee's financial
position and proposed use of the property, and any other information Landlord
may reasonably request in order to evaluate the proposed transfer. Xxxxxxxx's
consent to a transfer shall not be effective until Landlord has received the
written agreement of the transferee to assume and perform all of the
obligations of Tenant for the payment of Total Payments and the performance of
all the terms, covenants, conditions and provisions contained in this lease.
Any consent by Landlord to any single transfer shall not release Tenant from
any obligations under this lease and such consent shall only apply to the
specific transaction thereby authorized and shall not be construed as a waiver
of the duty to obtain Landlord's consent to any subsequent transfer.
23.3 Tenant shall reimburse Landlord for any costs reasonably incurred
in connection with any proposed transfer or creation of a security interest,
including, without limitation, legal fees and costs of investigating the
acceptability of the proposed transferee or security interest and preparation
or review of necessary documentation.
23.4 Any violation of the terms of this ARTICLE without Xxxxxxxx's
prior written consent shall, at Landlord's option, be absolutely null and void.
23.5 Landlord's failure to detect or to protest an apparent or actual
default of this ARTICLE shall not constitute a waiver or estoppel thereof. The
acceptance of any rent by Landlord from a proposed transferee shall not
constitute consent by Landlord to any transfer or recognition of any transferee
or a waiver by Landlord of any failure of Tenant to comply with this ARTICLE.
23.6 If Xxxxxx believes that Xxxxxxxx has unreasonably withheld
consent to any transfer or creation of a security interest, Xxxxxx's sole
remedies shall be to (a) seek a declaratory judgment that Landlord has
unreasonably withheld consent or (b) seek specific performance or an injunction
requiring Landlord to give consent.
23.7 Landlord's withholding of consent to a proposed transfer shall
not be unreasonable if Landlord determines, in the exercise of Landlord's
reasonable discretion, that (a) the proposed transferee is financially unable
to fulfill its obligations under the lease; (b) the proposed transferee (or the
principals thereof) has a substantial history of defaults under prior leases or
other agreements; (c) the proposed transferee's use of the Premises would be
incompatible with other uses within the Project or would pose substantial risks
of pollution, casualty loss, property damage or personal injury; or (d) would
otherwise substantially increase Landlord's risk or expense in connection with
this Lease.
23.8 For the purpose of this ARTICLE, "transfer" shall include any
voluntary or involuntary sale, assignment, sublease, gift, conveyance,
disposition or parting with any or all of Tenant's rights, duties or interests
herein. Subject to the requirements of Section 23.2 relating to information and
documents to be provided by Xxxxxx, and Xxxxxxxx's right to object and withhold
consent on the grounds set forth in Section 23.7, Tenant may assign all or part
of this lease, or sublease all or a part of the Premises, to:
(a) any corporation or entity that has the power to direct Tenant's
management and operation, or any corporation or entity whose management and
operation is controlled by Tenant; or,
(b) any corporation or entity a majority of whose voting stock or ownership
interest is owned by Tenant; or
(c) any corporation or entity in which or with which Tenant or its
successors or assigns is merged or consolidated, in accordance with applicable
statutory provisions for merger or consolidation of corporations or other
entities, so long as the liabilities of the corporations or entities
participating in such merger or consolidation are assumed by the corporation or
entity surviving such merger or created by such consolidation; or
(d) any corporation or entity acquiring this lease and a substantial
portion of Tenant's assets.
ARTICLE 24.
Subordination
24.1 At Landlord's request, this lease shall be subordinated to any
mortgages, deeds of trust and other encumbrances arising through Landlord and
affecting the Premises, provided the mortgagee or beneficiary thereof agrees
not to disturb Xxxxxx's possession so long as Tenant is not in default under
this lease. Tenant shall sign and deliver any reasonable documents required to
evidence such subordination, within twenty (20) days of Xxxxxxxx's request.
ARTICLE 25.
Surrender
25.1 At the expiration of the lease term or upon any earlier
termination of this lease, Tenant shall immediately:
(a) deliver to Landlord free and clear title to the Improvements
(excepting only Tenant's personal property, equipment and trade fixtures which
can be, and are, removed by Tenant without permanent damage to the Premises)
without any payment to Tenant or allowance of any kind whatsoever by Landlord;
provided that nothing herein shall require Tenant to satisfy any obligations
arising through Landlord. Landlord may examine condition of title at Tenant's
cost to assure itself that the title offered is in conformity with the terms of
this lease; and
(b) restore the Premises to their condition at the commencement of the
lease, and repair any damage caused by removal of Tenant's personal property,
equipment or trade fixtures, or Tenant's occupancy of the Premises, and quit,
surrender and return possession of the Premises to Landlord in a neat, clean,
and sanitary condition, and in good working order, reasonable wear and tear and
casualty loss excepted, and shall deliver to Landlord all information documents
and tangible items necessary or convenient to the operation of the Premises,
including, without limitation, any keys, combinations to locks and access
systems, manuals and instruction booklets, warranties, receipts, bills,
invoices, statements, licenses, and permits, building plans and specifications,
contracts and other documents.
25.2 Any personal property remaining on the Premises after the
expiration of the lease term may, at Landlord's option, be deemed abandoned by
Xxxxxx and Tenant releases Landlord from all claims and liability in connection
with such personal property. Upon expiration, or if the lease is terminated
prior to its normal expiration, Landlord shall have the right, but not the
obligation, to remove all of Tenant's personal property from the Premises and
place the same in a public warehouse at Tenant's expense and risk. Landlord
shall have the right, but not the obligation, to sell such stored property if
it has not been claimed, and all charges for removal, packing, transport and
storage paid by Tenant within thirty (30) days, and the proceeds of sale shall
be applied first to the costs of sale, second to the costs of removal, packing,
transport and storage, third to the payment of any other sums due Landlord from
Tenant, and the balance, if any, shall be paid to Tenant.
ARTICLE 26.
Holding Over
26.1 This lease shall terminate without further notice upon the
expiration of the lease term as described in ARTICLE 3 or upon any earlier
termination of this lease. If Tenant holds over with the written consent of
Landlord, such action shall not constitute a renewal of this lease or any
extension thereof, but such tenancy shall be on a month-to-month basis, which
tenancy may be terminated as provided by the laws of the State of Washington.
During such period, Tenant shall pay to Landlord on the first day of each month
Base Rent equal to one-twelfth (1/12) the Total Payments payable by Tenant
during the prior calendar year multiplied by one hundred twenty-five percent
(125%) (plus all Additional Rent provided for in this Lease), and Tenant shall
continue to be bound by all of the promises, provisions, conditions and
covenants herein set forth, so far as the same may be applicable.
ARTICLE 27.
Quiet Enjoyment
27.1 Landlord hereby covenants that if Tenant is not in default in the
payment of any monetary obligations or in the performance or observance of any
of its other obligations under this lease, Tenant shall be free from Landlord's
interference in the enjoyment of sole and exclusive use, occupancy and
possession of the Premises; subject, however, to the exceptions, reservations
and conditions of this lease.
ARTICLE 28.
Right of Inspection
28.1 Landlord and its representatives shall be authorized to enter the
Premises upon notice (or at any time without notice in the event of emergency)
for the purposes of determining whether or not an Event of Default has
occurred; exhibiting the Premises to lenders, prospective purchasers and
tenants; making any necessary repairs to the Premises and performing any work
therein and for any other lawful purpose. Landlord shall not be liable for
inconvenience, annoyance, disturbance, loss of business or other damage to
Tenant or any other party by reason of such entrance or the making of such
repairs or the performance of any such work, or on account of bringing
materials, tools, supplies and equipment onto the Premises. In order to
preserve the security of Tenant's proprietary information, Tenant may accompany
Landlord on any inspection and may impose reasonable restrictions to prevent
unauthorized access to such proprietary information. Landlord shall not
disclose or use any confidential or proprietary information of Tenant learned,
observed or otherwise obtained by Landlord or its employees or agents in its
exercise of rights under this lease.
ARTICLE 29.
Recording
29.1 This lease shall not be recorded. On the request of either party, a
memorandum of this lease may be recorded.
ARTICLE 30.
Estoppel Certificates
30.1 Tenant shall, without charge to Landlord, at any time and from
time to time, within ten (10) days after request, certify by written
instrument, duly executed, acknowledged and delivered, to Landlord or any other
person, firm or corporation specified by Landlord:
(a) that this lease is unmodified and in full force and effect or, if
there have been any modifications, that the same is in full force and effect as
modified and stating the modifications or, indicating that this lease is not in
full force and effect if appropriate and stating the reason why;
(b) that any existing Improvements required by the terms of this lease
to be completed by Landlord have been completed to the satisfaction of Tenant
or specifying any Improvements which require correction by Landlord;
(c) whether or not there are then existing any set-offs or defense
against the enforcement of any of the agreements, terms, covenants or
conditions of this lease and any modifications thereto upon the part of the
certifying party to be performed or complied with and, if so, specifying the
same;
(d) the amount of monthly Base Rent and Additional Rent then due under
this lease, the dates, if any, to which any portion of the Base Rent and
Additional Rent due hereunder have been paid in advance;
(e) the amount of security deposit held by Landlord;
(f) the date of expiration of the current term and whether Tenant has
rights to extend the term (and the term of such extensions) or to purchase the
Premises or to lease additional property, if any; and
(g) any other information reasonably requested.
30.2 Tenant's failure to deliver a certificate within the time
specified shall be an Event of Default under ARTICLE 16 and shall conclusively
be deemed Xxxxxx's approval of the statements set forth in the certificate
presented to Tenant, and may be relied upon as such by Landlord or any third
party.
ARTICLE 3 1.
Nonwaiver
31.1 No waiver by Landlord or Tenant of any default by the other party
or of any circumstances permitting Landlord or Tenant to terminate this lease
shall be implied or inferred and no written waiver shall constitute a waiver of
any other circumstance permitting such termination, and no failure or delay on
the part of Landlord or Tenant to exercise any right it may have by the terms
hereof or by law upon the occurrence of an Event of Default shall operate as a
waiver of that or any other Event of Default, nor as a modification of this
lease. The subsequent acceptance of any payment or performance pursuant to this
lease shall not constitute a waiver of any prior default by Tenant other than
the default of the particular payment or the performance so accepted. The
consent or approval to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Xxxxxx. No payment by
Tenant or receipt by Landlord of a lesser amount than the Total Payments due
shall be deemed to be other than on account, nor shall any endorsement or
statement on any check or letter accompanying any check or payment as rent be
deemed an accord and satisfaction or a waiver of any other or additional amount
owed.
ARTICLE 32.
Authority
32.1 Landlord and Tenant or each person signing this lease on behalf
of Landlord and Tenant, warrants that he or she is authorized to execute this
lease.
32.2 If Tenant or Landlord is not a natural person, then such party wan-ants
that:
(a) such party is duly organized, validly existing and qualified to conduct
business in the State of Washington;
(b) that the lease was duly authorized, executed and delivered by such
party and is the binding obligation of such party, in accordance with its
terms.
ARTICLE 33.
Brokers
33.1 Tenant and Landlord, respectively, represent that they have not
dealt with any broker or finder with respect to the Premises or this lease
other than Kiemle & Xxxxxx, whose fee shall be paid by Landlord. Tenant and
Landlord shall indemnify the other and the other's agents and representatives,
and hold them harmless from any claims for fees or commissions by parties
(including, without limitation, all attorneys' fees and costs of defending any
alleged claim) arising out of the acts of the indemnifying party or its agents
or employees.
ARTICLE 34.
Notices
34.1 Any notices, demands, requests, consents, objections or other
communications required to be given or which may be given under or by the terms
and provisions of this lease or pursuant to law or otherwise shall be in
writing and delivered or mailed to the address set forth below each party's
signature on this lease or at such other place as either Landlord or Tenant may
hereafter designate in writing and shall be deemed given three (3) days after
deposit in the United States mail, certified or registered, return receipt
requested, postage prepaid, addressed to the party entitled to receive the
notice, or upon receipt when hand delivered.
ARTICLE 35.
Construction
35.1 This lease shall be construed in accordance with the laws of the
State of Washington. The table of contents, article headings and captions are
for convenience only and shall not be considered in any construction or
interpretation of this lease. If any ambiguity exists, the provision in
question shall not be construed or interpreted for or against Landlord or
Tenant by reason of any rule of construction. If any term, provision, Section,
ARTICLE or sentence in this lease or portion thereof shall, to any extent,
become invalid or unenforceable either by operation. of law, statute, or by
court decree, the remainder of said term, provision, Section, ARTICLE or
sentence as well as the remainder of this lease shall not be affected thereby,
and each term, provision, Section, ARTICLE, sentence or portion thereof as well
as the remainder of this lease shall be valid and shall be enforceable to the
fullest extent permitted by law.
ARTICLE 36. -
Covenants to Bind and Benefit ReMggtLive Parties
36.1 All of the promises, terms, covenants, provisions and conditions
set forth in this lease shall inure to the benefit of and shall be binding on,
the heirs, personal representatives, trustees, receivers, permitted assignees
and permitted transferees of the parties named herein.
ARTICLE 37.
Sole Understanding of Parties
37.1 This lease contains the entire understanding between the parties
with respect to its subject matter, the promises, duties, terms, covenants,
conditions and all other aspects of the relationship between Landlord and
Tenant, and here are no verbal agreements, representations, warranties, or
other understandings affecting the Property or its use or development that have
not been reduced in writing in this lease. No change in this lease in any
manner whatsoever shall be valid unless in writing and signed by both parties.
ARTICLE 38.
Further Documents
38.1 Landlord and Tenant shall, whenever and as often as it shall be
reasonably requested to do so by the other, execute, acknowledge and deliver or
cause to be executed, acknowledged or delivered any and all such further
confirmations, instruments and documents and take any and all actions as may be
reasonably helpful, necessary, expedient or proper, in order to evidence or
complete any and all transactions or to accomplish any and all matters provided
for in this lease.
ARTICLE 39.
Venue
Venue in any action arising out of this lease shall be laid in the
Superior Court of Spokane County, Washington.
ARTICLE 40.
Consultation
Tenant acknowledges that it has consulted or has had ample opportunity
to consult with an attorney concerning the content of this lease. Tenant
represents that it has read and understands the terms and conditions set forth
in this lease.
EXECUTED as of the date first set forth above.
LANDLORD: TENANT:
SPOKANE INDUSTRIAL PARK, a CXT, INCORPORATED,
Division of XXXXXXX DEVELOPMENT a Delaware corporation
CORPORATION, a Washington corporation
BY ________________________ BY _____________________
its its
Address: North 0000 Xxxxxxxx Xxxx Address: North 0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, XX00000
STATE OF WASHINGTON
:ss.
County of Spokane
I certify that I know or have satisfactory evidence that ____________________
is the person who appeared before me, and said person acknowledged that he
signed this instrument and that he was authorized to execute the instrument and
acknowledged it as the ____________________of SPOKANE INDUSTRIAL PARK, a
division of XXXXXXX DEVELPMENT CORPORATION, a Washington corporation, to be the
free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated _____________________
----------------------------
Notary Public in and for the
State
of Washington, residing at
Spokane
My commission expires:
------------
STATE OF WASHINGTON
:ss.
County of Spokane
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the ________________ of CXT, INCORPORATED, a Delaware
corporation, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated _____________________
----------------------------
Notary Public in and for the
State
of Washington, residing at
Spokane
My commission expires:
------------
