EXHIBIT 10.11
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between Xxxxx Bank N.A. as
trustee of the Multi-Employer Property Trust, hereinafter referred to as
"Landlord", and Applied Voice Technology Inc., a Washington Corporation,
hereinafter referred to as "Tenant";
WITNESSETH
1. PREMISES AND TERM.
A. In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby
takes and leases from Landlord those certain Premises as outlined in red on
Exhibit "A" attached hereto (hereinafter referred to as the "Premises") and
incorporated herein by reference, together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way
appertaining to the Premises and together with the buildings and other
improvements situated or to be situated upon land described in Exhibit "B"
attached hereto.
B. TO HAVE AND TO HOLD the same for a term commencing on the "Commencement
Date", as hereinafter defined, and ending thereafter as specified in the
Basic Lease Information, attached hereto, (the "Lease Term"), provided,
however, that, in the event the "Commencement Date" is a date other than
the first day of a calendar month, said term shall extend for said number
of months in addition to the remainder of the calendar month following the
"Commencement Date".
C. The "Commencement Date" shall be the Scheduled Term Commencement Date
shown in the Basic Lease Information, attached hereto and incorporated
herein by reference, or the date upon which the Premises shall have been
substantially completed in accordance with the plans and specifications
described in Exhibit "C" attached hereto and incorporated herein by
reference, whichever is LATER UNLESS SUCH DELAY IS CAUSED BY A "TENANT
DELAY" AS DEFINED IN ADDENDUM TO PARAGRAPH 1C). If the Premises shall not
have been substantially completed as aforesaid by the Scheduled Term
Commencement Date, Tenant's obligations to pay Rent and its other
obligations for payment under this Lease shall commence on the date the
Premises are substantially completed as aforesaid, and Landlord shall not
be liable to Tenant for any loss or damage resulting from such delay.
Landlord shall notify Tenant in writing as soon as Landlord deems the
Premises to be substantially completed and ready for occupancy. In the
event that the Premises have not in fact been substantially completed as
aforesaid, Tenant shall notify Landlord of its objections. Landlord shall
have a reasonable time after delivery of such notice in which to take such
corrective action as may be necessary, and shall notify Tenant in writing
as soon as it deems such corrective action has been completed so that the
Premises are substantially completed and ready for occupancy. EXCEPT FOR
PUNCH LIST ITEMS IDENTIFIED BY TENANT, WHICH SHALL BE PROMPTLY COMPLETELY
OR REPAIRED BY LANDLORD, the taking of possession by Tenant shall be deemed
conclusively to establish that the Premises have been substantially
completed in accordance with the plans and specifications and that the
Premises are in good and satisfactory condition, as of when possession was
taken. Tenant acknowledges that no representations as to the repair of the
Premises have been made by Landlord, unless such are expressly set forth in
this Lease. After the Commencement Date, Tenant shall, upon demand, execute
and deliver to Landlord a letter of acceptance of delivery of the Premises,
specifying the Commencement Date and the rent commencement date, in
recordable form. In the event of any dispute as to the substantial
completion of work performed or required to be performed by Landlord, the
certificate of Landlord's architect or general contractor shall be
conclusive. (SEE ADDENDUM TO PARAGRAPH 1C.)
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord Base Rent for the Premises, in advance,
without demand, deduction or set off, for the entire Lease Term hereof at
the rate specified in the Basic Lease Information, payable in monthly
installments. One such monthly installment shall be due and payable on or
before the first day of each calendar month BEGINNING WITH the Commencement
Date recited above during the Lease Term, except that the rental payment
for any fractional calendar month at the commencement or end of the Lease
period shall be prorated on the basis of a 30-day month.
B.
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3. USE/HAZARDOUS SUBSTANCES.
A. USE. The Premises shall be used only for the purpose of general office,
receiving, storing, shipping, assembly, light manufacturing, and selling
(other than retail) products, materials and merchandise made and/or
distributed by Tenant and for such other lawful purposes as may be
incidental thereto. Outside storage, including without limitation, trucks
and other vehicles, is prohibited without Landlord's prior written consent.
Tenant shall at its own cost and expense obtain any and all licenses and
permits necessary for its use of the Premises. Subject to the provisions of
this Lease dealing with Access Laws, Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises, and shall promptly comply with all governmental orders and
directives including but not limited to those regarding the correction,
prevention and abatement of nuisances in or upon, or connected with, the
Premises, all at Tenant's sole expense. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, nor take any other action which would constitute
a nuisance or would disturb or endanger any other tenants of the building
in which the Premises are situated or unreasonably interfere with their use
of their respective Premises. In addition to any other remedies Landlord
may have for a breach by Tenant of the terms of this Section 3, Landlord
shall have the right to have Tenant evicted from the Premises. Without
Landlord's prior written consent, Tenant shall not receive, store or
otherwise handle any product, material or merchandise which is explosive or
highly inflammable. Tenant will not permit the Premises to be used for any
purpose or in any manner (including without limitation any method or
storage) which would render the insurance thereon void or the insurance
risk more hazardous or cause the State Board of Insurance or other
insurance authority to disallow any sprinkler credits. In the event
Tenant's use of Premises shall result in an increase in insurance premiums,
Tenant shall be solely responsible for said increase.
B. HAZARDOUS SUBSTANCES. (1) Tenant agrees that neither Tenant nor its
employees, agents, licensees or invitees will store, place, generate,
manufacture, refine, handle, or locate on, in or around the Premises any
Hazardous Substances, excepting for the storage, handling and use of
Hazardous Substances of types and in quantities as are reasonably necessary
for the operation of Tenant's business as described in the paragraph of
this Lease setting forth permitted uses; provided that (a) the storage,
handling and use of such permitted Hazardous Substances must at all times
conform to all Governmental Requirements and to all applicable fire, safety
and insurance requirements, (b) the types and quantities of permitted
Hazardous Substances which are stored in the Premises must be reasonable
and appropriate to the nature and size of the Tenant's operation in the
Premises and reasonable and appropriate for first-class industrial office
parks located in the I-405 Corridor market area, (c) no fluid Hazardous
Substances shall be stored in above-ground tanks or drums in the Leased
Premises or in sealed containers larger than (1) gallon, and (d) no
Hazardous Substance shall be spilled or disposed of on, in or around the
Premises or the building of which the Premises is a part (the "Building")
or any area adjacent thereto; provided further that, in no event will
Tenant be permitted to store, handle or use on, in or around the Premises
any Hazardous Substance which will increase the rate of fire or extended
coverage insurance on the Premises or the Building, unless (i) such
Hazardous Substance and the expected rate increase have been specifically
disclosed in writing to Landlord, (ii) Tenant has agreed in writing to pay
any rate increase related to each such Hazardous Substance and (iii)
Landlord has approved in writing each such Hazardous Substances, which
approval shall be subject to Landlord's sole and absolute discretion.
Tenant shall indemnify, defend and hold harmless the Landlord from and
against any and all loss, liability, damage, expense, cost, claim or injury
arising out of any breach of any provision of this paragraph, including,
but not limited to, attorneys' fees, laboratory testing fees, personal
injury claims, clean-up costs, and environmental consultants' fees. Tenant
agrees that Landlord may be irreparably harmed by Tenant's breach of this
paragraph and that a specific performance action may be appropriately
brought by Landlord; provided that, Landlord's election to bring or not
bring any such specific performance action shall in no way limit, waive,
impair or hinder Landlord's other remedies against Tenant.
(2). The term "Governmental Requirements" means any and all statutes,
ordinances, codes, laws, rules, regulations and directives of the United
States, the state in which the Leased Premises is located, any political
subdivision of that state or any board, agency or authority associated with
any such governmental entity, including, but not limited to, the
regulations of the fire department having jurisdiction over the Leased
Premises, excepting only the Americans with Disabilities Act of 1990 as now
or hereafter amended. The term "Hazardous Substance(s)" means asbestos
petroleum or petroleum based chemicals or substances, urea formaldehyde or
any chemical, material, element, compound, solution, mixture, substance or
other matter of any kind whatsoever which is now or hereafter defined,
classified, listed, designated or regulated as hazardous, toxic or
radioactive by any federal, state, or local governmental entity or agency.
4. TAXES AND OTHER CHARGES.
A. Tenant agrees to pay its proportionate share of any and all real and
personal property taxes, regular and special assessments, license fees,
public service impact fees and other charges of any kind and nature
whatsoever, payable by Landlord as a result of any public or quasi-public
authority, or owner's association levy, assessment or imposition against,
or arising out of Landlord's ownership of or interest in, the real estate
described in Exhibit "B" attached hereto, together with the building and
the grounds, parking areas, driveways, roads, and alleys around the
building in which the Premises are located, or any part thereof
(hereinafter collectively referred to as the "Charges"). During each month
of the Lease Term, Tenant shall make a monthly escrow deposit with Landlord
(the "Escrow Payment") equal to 1/12 of its proportionate share of the
Charges which will be due and payable for that particular calendar year.
Any lump sum public service impact fees paid by Landlord shall be amortized
over ten (10) years at interest not to exceed twelve percent (12%) per
annum, and equal installments of such fee, together with interest accrued
thereon, shall be payable monthly as a portion of the Charges. Tenant
authorizes Landlord to use the funds
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deposited by Tenant with Landlord under this Paragraph 4 to pay the
Charges. Each Escrow Payment shall be due and payable, as additional rent
at the same time and in the same manner as the payment of monthly rental as
provided herein. The amount of the Initial Monthly Escrow Payment will be
specified in the Basic Lease Information. The initial Escrow Payment is
based upon Tenant's proportionate share of the estimated Charges for the
year in question and the monthly Escrow Payment is subject to increase or
decrease as determined by the Landlord to reflect an accurate escrow of
Tenant's estimated proportionate share of the Charges. The Escrow Payment
account of Tenant shall be reconciled annually, AND TENANT SHALL RECEIVE A
WRITTEN STATEMENT SETTING FORTH THE ACTUAL CHARGES FOR THE PRIOR YEAR AND
TENANT'S ACTUAL PRO RATA SHARE OF SUCH CHARGES AS COMPARED TO TENANT'S
ESCROW PAYMENTS FOR THE PRIOR YEAR. If the Tenant's total Escrow Payments
are less than Tenant's actual pro rata share of the Charges, Tenant shall
pay to Landlord upon demand the difference; if the Tenant's total Escrow
Payments are more than Tenant's actual pro rata share of the Charges,
Landlord shall retain such excess and credit it to Tenant's Escrow Payment
account for the successive year's Charges. Tenant's proportionate share of
the Charges shall be computed by multiplying the Charges by a fraction, the
numerator of which shall be the number of gross leasable square feet of
floor space in the Premises and the denominator of which shall be the total
applicable gross leasable square footage; or such other equitable
apportionment as may be adopted. (SEE ADDITIONAL PARAGRAPH 37)
B. If Tenant should fail to pay any Escrow Payments required to be paid by
Tenant hereunder, in addition to any other remedies provided herein,
Landlord may, if it so elects, pay such Escrow Payments or taxes,
assessments, license fees and other Charges. Any sums so paid by Landlord
shall be deemed to be so much additional rental owing by Tenant to Landlord
and due and payable upon demand as additional rental plus interest at the
rate of eighteen percent (18%) per annum from the date of payment by
Landlord until repaid by Tenant.
C. (1) If at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of
any taxes, assessments, fees or charges levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly
on the rents received therefrom and/or a franchise tax, assessment,
levy or charge measured by or based, in whole or in part, upon such
rents or the present or any future building or buildings, then all
such taxes, assessments, fees or charges, or the part thereof so
measured or based, shall be deemed to be included within the term
"Charges" for the purposes hereof.
(2) Tenant may, alone or along with other tenants of the building
containing the Premises, at its sole cost and expense, in its or their
own name(s) dispute and contest any Charges by appropriate proceedings
diligently conducted in good faith, but only after Tenant and all
other tenants, if any, joining with Tenant in such contest have
deposited with Landlord the amount so contested and unpaid or their
proportionate shares thereof as the case may be, which shall be held
by Landlord without obligation for interest until the termination of
the proceedings, at which time the amount(s) deposited shall be
applied by Landlord toward the payment of the items held valid (plus
any court costs, interest, penalties and other liabilities associated
with the proceeding(s)), and Tenant's share of any excess shall be
returned to Tenant. Tenant further agrees to pay to Landlord upon
demand Tenant's share (as among all Tenants who participated in the
contest) of all court costs, interest, penalties and other liabilities
relating to such proceedings. Tenant hereby indemnifies and agrees to
hold harmless the Landlord from and against any cost, damage or
expense (including attorney's fees) in connection with any such
proceedings.
(3) Any payment to be made pursuant to this Paragraph 4 with respect
to the calendar year in which this Lease commences or terminates shall
bear the same ratio to the payment which would be required to be made
for the full calendar year as that part of such calendar year covered
by the Lease Term bears to a full calendar year.
D. Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Premises AND Tenant shall pay to
Landlord upon demand that part of such taxes for which Tenant is primarily
liable hereunder.
5. TENANT'S MAINTENANCE.
A. Tenant shall at its own cost and expense keep and maintain all parts of
the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all
necessary repairs and replacements, including but not limited to, windows,
glass (EXCEPT IF REPAIRS TO WINDOWS OR GLASS IS REQUIRED BECAUSE OF
LANDLORD'S FAILURE TO MAINTAIN BUILDING AS SET FORTH IN PARAGRAPH 6 OF THE
LEASE) and plate glass, doors, any special office entry, interior walls and
finish work, floor and floor covering, heating and air-conditioning
systems, truck doors, plumbing work and fixtures, termite and pest
extermination, regular removal of trash and debris, keeping the whole of
the Premises in a clean and sanitary condition. Tenant shall not be
obligated to repair any damage caused by fire, tornado, or other casualty
covered by the insurance to be maintained by Landlord pursuant to
subparagraph 13(A) below, except that Tenant shall be obligated to repair
all wind damage to glass except with respect to tornado or hurricane
damage.
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and
expenses, promptly repair any damage or injury to any demising wall caused
by Tenant or
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its employees, agents, licensees or invitees.
C. Tenant and its employees, customers and licensees shall have the right
to use the parking areas, if any, as may be designated by Landlord in
writing, subject to such reasonable rules and regulations as Landlord may
from time to time prescribe and subject to rights of ingress and egress of
other tenants. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties, HOWEVER, TENANT MAY CONTACT
LANDLORD IF A PROBLEM DEVELOPS, AND LANDLORD AGREES TO USE COMMERCIALLY
REASONABLE EFFORTS TO ASSIST TENANT. If Tenant or any other particular
tenant of the building can be clearly identified as being responsible for
obstructions or stoppage of a common sanitary sewage line, then Tenant, if
Tenant is responsible, or such other responsible Tenant, shall pay the
entire cost thereof, upon demand, as additional rent. (SEE ADDENDUM TO
PARAGRAPH 5C)
D. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air-conditioning systems and
equipment within the Premises. (SEE ADDENDUM TO PARAGRAPH 5D)
6. LANDLORD'S REPAIRS. Landlord shall MAINTAIN THE EXTERIOR WALLS, FOUNDATION
AND ROOF IN GOOD CONDITION AND REPAIR, and the cost thereof shall be shared
as provided in Paragraph 7. TENANT SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO NOTIFY THE LANDLORD IF TENANT BELIEVES A REPAIR IS REQUIRED.
Tenant shall repair and pay for any damage to such items to be maintained
by Landlord caused by any act, omission or negligence of Tenant, or
Tenant's employees, agents, licensees or invitees, or caused by Tenant's
default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office
entries. Tenant shall immediately give Landlord written notice of defect or
need for repairs, after which Landlord shall have a reasonable opportunity
and time to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to
the cost of such repairs or maintenance or the curing of such defect.
7. MONTHLY COMMON-AREA MAINTENANCE CHARGE. Tenant agrees to pay as an
additional charge each month its proportionate share of the cost of
operation and maintenance of the Common Area which shall be defined from
time to time by Landlord. Common Area costs which may be incurred by
Landlord, at its discretion, shall include, but not be limited to costs
incurred for lighting, water, sewage, trash removal, exterior painting,
exterior window cleaning, accounting, policing, sweeping, services
negotiation, customary COMMERCIALLY REASONABLE property management fee not
to exceed 5% of rentals, sewer lines, plumbing, DOCK BUMPERS, DOCK BOARDS,
DOWNSPOUTS, GUTTERS, paving, landscape maintenance, plant material
replacement and other like charges, and for administration of the items set
forth in this paragraph. Landlord shall maintain the Common Areas in
reasonably good condition and repair. The proportionate share to be paid by
Tenant of the cost of operation and maintenance of the Common Area shall be
computed on the ratio that the gross leasable square feet of the Premises
bears to the total applicable gross leasable square footage or such other
equitable apportionment as may be adopted by Landlord. Tenant shall make
monthly or other periodic payments based upon the estimated annual cost of
operation and maintenance of the Common Area, payable in advance but
subject to adjustment after the end of the year on the basis of the actual
cost for such year. Any such periodic charges shall be due and payable upon
delivery of notice thereof. The initial Common-Area Maintenance Charges,
subject to adjustment as provided herein, shall be due and payable, as
additional rent, at the same time and in the same manner as the time and
manner of the payment of monthly rental as provided herein. The amount of
the initial monthly Common-Area Maintenance Charge shall be as specified in
the Basic Lease Information. (SEE ADDENDUM TO PARAGRAPH 7 AND ADDITIONAL
PARAGRAPH 37)
8. ALTERATIONS.
A. Tenant shall not make any alterations, additions or improvements to the
Premises (including but not limited to roof and wall penetrations) without
the prior written consent of Landlord WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD. Tenant may, without the consent of Landlord, but at
its own cost and expense and in a good workmanlike manner erect such
shelves, bins, machinery and trade fixtures as it may deem advisable,
without altering the basic character of the building or improvements and
without overloading or damaging such building or improvements, and in each
case complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions,
improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the Term of this Lease and Tenant shall, unless
Landlord otherwise elects as hereinafter provided, to remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their original condition by the date of termination
of this Lease or upon earlier vacating of the Premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant
prior to the termination of this Lease if Tenant so elects, and shall be
removed by the date of termination of this Lease or upon earlier vacating
of the Premises if required by Landlord; upon any such removal Tenant shall
restore the Premises to their original condition. All such removals and
restoration shall be accomplished in good workmanlike manner so as not to
damage the primary structure or structural qualities of the buildings and
other improvements situated on the Premises. (SEE ADDENDUM TO PARAGRAPH
8A).
B. Notwithstanding anything to the contrary contained herein, Landlord
agrees that the Tenant shall not be responsible for, and Landlord shall
hold Tenant harmless against, any costs of cleanup or removal arising from
or associated with
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any hazardous material existing in, on or throughout the Premises, as of
the date Tenant occupies the Premises pursuant to the terms of this Lease.
9. SIGNS. Tenant shall not install signs upon the Premises without Landlord's
prior written approval, and any such signage shall be subject to EXHIBIT G
ATTACHED HERETO, any applicable governmental laws, ordinances, regulations
and other requirements. Tenant shall remove all such signs by the
termination of this Lease. Such installations and removals shall be made in
such a manner as to avoid injury or defacement of the building and other
improvements, and Tenant shall repair any injury or defacement, including
without limitation discoloration caused by such installation and/or
removal.
10. INSPECTION.
A. EXCEPT IN THE EVENT OF AN EMERGENCY, Landlord and Landlord's agents and
representatives shall have the right to enter and inspect the Premises at
any reasonable time WITH REASONABLE NOTICE during business hours, for the
purpose of ascertaining the condition of the Premises or in order to make
such repairs as may be required or permitted to be made by Landlord under
the terms of this Lease. During the period that is six (6) months prior to
the end of the Term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any
reasonable time WITH REASONABLE NOTICE during business hours for the
purpose of showing the Premises (AND LANDLORD WILL MAKE REASONABLE EFFORTS
TO IDENTIFY THE PROSPECT TO TENANT IN ADVANCE) and shall have the right to
erect on the Premises a suitable sign indicating the Premises are
available.
B. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for
a joint inspection of the Premises prior to vacating. In the event of
Tenant's failure to give such notice or arrange such joint inspections,
Landlord's inspection at or after Tenant's vacating the Premises shall be
conclusively deemed correct for the purposes of determining Tenant's
responsibility for repairs and restoration. It shall be the responsibility
of Tenant, prior to vacating the Premises, to clean and repair the Premises
and restore them to the condition in which they were in upon delivery of
the Premises to Tenant at the Commencement Date, reasonable wear and tear
excepted. Cleaning, repair and restoration shall include, but not be
limited to, removal of all trash, cleaning OF WALLS and PATCHING OF HOLES
OR DAMAGED WALL AREAS AND TOUCH-UP repainting of walls where necessary,
VACUUMING AND SPOT cleaning of carpet and flooring, replacement of ALL NON-
FUNCTIONING light bulbs and tubes, cleaning and wiping down of all
fixtures, maintenance and repair of all heating and air-conditioning
systems, and all similar work, which shall be done at the latest practical
date prior to vacation of the Premises.
11. UTILITIES. Landlord agrees to provide at its cost water, electricity and
gas service connections into the Premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and
other utilities and services used on or from the Premises, together with
any taxes, penalties, surcharges or the like pertaining thereto and any
maintenance charges for utilities and shall furnish all electric light
bulbs and tubes. If any such services are not separately metered to Tenant,
Tenant shall pay a reasonable proportion as determined by Landlord of all
charges jointly metered with other premises. Landlord shall in no event be
liable for any interruption or failure of utility services on the Premises
UNLESS SUCH INTERRUPTION OR FAILURE IS A RESULT OF THE GROSS NEGLIGENCE OF
LANDLORD, ITS AGENTS, CONTRACTORS OR EMPLOYEES. IN THE EVENT OF ANY
INTERRUPTION OR FAILURE OF UTILITIES AFFECTING THE PREMISES OR BUILDING,
LANDLORD AGREES TO USE GOOD FAITH EFFORTS TO ASSIST IN THE RESTORATION OF
SUCH UTILITIES.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right, voluntarily or involuntarily, to
assign, convey, transfer, mortgage or sublet the whole or any part of the
Premises under this Lease without the prior written consent of Landlord
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. In the event Tenant
applies to Landlord for consent to assign, convey, transfer or sublet the
Premises, Landlord may condition such consent upon the right to receive
one-half of the profit, if any, which Tenant may realize on account of such
assignment, conveyance, transfer or sublease of the Premises. For purposes
of this paragraph, "profit" shall mean any sum which the assignee,
sublessee or transferee is required to pay, or which is credited to Tenant
as rent in excess of the rents required to be paid by Tenant to Landlord
under this Lease. IN THE EVENT TENANT MAKES A WRITTEN REQUEST TO SUBLEASE
MORE THAN FORTY-NINE PERCENT (49%) OF THE PREMISES, Landlord also 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 Lease as 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 hereunder. In the event that Landlord
shall not elect to recapture and shall thereafter give its consent, in
addition to any fees paid to outside parties assisting Tenant in subletting
or assignment, Tenant shall REIMBURSE Landlord FOR THE Landlord's ACTUAL
AND REASONABLE COSTS RELATED TO processing costs incurred in connection
with such consent (SEE ADDENDUM TO PARAGRAPH 12A)
B. Notwithstanding any permitted assignment or subletting, Tenant shall at
all times remain directly, primarily and fully responsible and liable for
the payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease.
Upon the occurrence of an "event of default" as hereinafter defined, if the
Premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided, or provided by law, may at
its option collect directly from such assignee or subtentant all rents
becoming due to Tenant under such assignment, transfer or sublease and
apply such rent against any sums due to Landlord from Tenant hereunder, and
no such collection shall be construed to constitute a novation or a release
of
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Tenant from the further performance of Tenant's obligations hereunder.
13. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which the
Premises are a part in an amount not less then ONE HUNDRED percent (100%)
(or such greater percentage as may be necessary to comply with the
provisions of any co-insurance clauses of the policy) of the "replacement
cost" thereof as such term is defined in the Replacement Cost Endorsement
to be attached thereto, insuring against the perils of Fire, Lightning,
FLOOD, EARTHQUAKE, Extended Coverage, Vandalism and Malicious Mischief,
extended by Special Extended Coverage Endorsement to insure against all
other Risks of Direct Physical Loss, such coverages and endorsements to be
as defined, provided and limited in the standard bureau forms prescribed by
the insurance regulatory authority for the State in which the Premises are
situated for use by insurance companies admitted in such state for the
writing of such insurance on risks located within such state. Subject to
the provisions of subparagraph 13, C, D, E below, such insurance shall be
for the sole benefit of Landlord and under its sole control. In the event
the insurance policy shall contain a deductible, Tenant shall be liable for
and pay ITS PROPORTIONATE SHARE, WHICH SHALL IN NO EVENT EXCEED $10,000.00,
OF any deductible withheld from insurance proceeds or payable under the
terms of the insurance policy in the event of a claim or insured loss
thereunder.
B. Tenant agrees to pay its proportionate share of Landlord's cost of
carrying fire, LIGHTNING, FLOOD, EARTHQUAKE, VANDALISM AND MALICIOUS
MISCHIEF and extended coverage insurance ("Insurance") on the building.
During each month of the term of this Lease, Tenant shall make a monthly
escrow deposit with Landlord equal to one-twelfth of its proportionate
share of the Insurance on the buildings and grounds which will be due and
payable for that particular year. Tenant authorizes Landlord to use the
funds deposited by him with Landlord under this paragraph to pay the cost
of such Insurance. Each Insurance Escrow Payment shall be due and payable,
as additional rent, at the same time and manner of the payment of the
monthly rental as provided herein. The initial share of the estimated
Insurance for the year in question, and the monthly Insurance Escrow
Payment is subject to increase or decrease as determined by Landlord to
reflect an accurate monthly escrow of Tenant's estimated proportionate
share of this Insurance. The Insurance Escrow Payment account of Tenant
shall be reconciled annually. If the Tenant's total Insurance Escrow
Payments are less than Tenant's actual pro rata share of the Insurance,
Tenant shall pay to Landlord upon demand the difference; if the total
Insurance Escrow Payments of Tenant are more than Tenant's actual pro rata
share of the Insurance, Landlord shall promptly refund the balance of such
excess to Tenant after first crediting the excess to the next monthly
payment by Tenant for its proportionate share of Taxes and Insurance.
Tenant's cost of insurance shall be computed by multiplying the cost of
Insurance by a fraction, the numerator of which shall be the number of
gross leasable square feet of floor space in the Premises and the
denominator of which shall be the total applicable gross leasable square
footage. The amount of the initial monthly Insurance Escrow Payment will be
as specified in the Basic Lease Information. (SEE ADDITIONAL PARAGRAPH 37)
C. If the building, in which the Premises are a part, should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
D. If the building, of which the Premises are a part, should be totally
destroyed by fire, tornado or other casualty, or if it should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage, this Lease shall terminate and the
rent shall be abated during the unexpired portion of this Lease, effective
upon the date of the occurrence of such damage. Landlord shall give notice
to Tenant in writing of its determination to terminate this Lease within
SEVENTY-FIVE (75) days following the date of the occurrence of such damage.
NOTWITHSTANDING ANYTHING IN THIS LEASE TO THE CONTRARY, IF THE BUILDING OF
WHICH THE PREMISES ARE A PART SHOULD BE TOTALLY DESTROYED DURING THE LAST
TWELVE (12) MONTHS OF THE THEN CURRENT LEASE TERM, EITHER PARTY MAY
TERMINATE THE LEASE BY WRITTEN NOTICE TO THE OTHER WITHIN FIFTEEN (15) DAYS
OF THE OCCURRENCE OF THE DAMAGE.
E. If the building, of which the Premises are a part, should be damaged by
any peril covered by the Insurance to be provided by Landlord under
subparagraph 13(A) above, but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within two hundred (200)
days after the date upon which Landlord is notified by Tenant of such
damage, this Lease shall not terminate, and Landlord shall at its sole cost
and expense thereupon proceed with reasonable diligence to rebuild and
repair such building to substantially the condition in which it existed
prior to such damage, except that Landlord shall not be required to
rebuild, repair or replace any part of the partition, fixtures, additions
and other improvements which may have been placed in, or about the Premises
by Tenant. If the Premises are untenantable in whole or in part following
such damage, the rent payable hereunder during the period in which they are
untenantable shall be reduced to such extent as may be fair and reasonable
under all of the circumstances AS MUTUALLY DETERMINED BY LANDLORD AND
TENANT. In the event that Landlord shall fail to complete such repairs and
rebuilding within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage, Tenant may at its option terminate
this Lease by delivering written notice of termination as Tenant's
exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate.
F. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the Insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
6
G. Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or
under them by way of subrogation or otherwise for any loss or damage to
property caused by fire or any other perils insured in policies of
Insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible; provided, however, that this release
shall be applicable and in force and effect only with respect to loss or
damage occurring during such times as the releasor's policies shall contain
a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of the
releasor to recover thereunder and then only to the extent of the Insurance
proceeds payable under such policies. Each of the Landlord and Tenant
agrees that it will request its Insurance carriers to include in its
policies such a clause or endorsement. If extra cost shall be charged
therefor, each party shall advise the other thereof and of the amount of
the extra cost, and the other party, at its election, may pay the same, but
shall not be obligated to do so.
14. LIABILITY. Landlord shall not be liable to Tenant or Tenant's employees,
agents, servants, guests, invitees or visitors, for any injury to person or
damage to property on or about the Premises, resulting from and/or caused
in part or whole by the negligence or misconduct of Tenant, its employees,
agents, servants, guests, invitees or visitors, entering upon the Premises,
or caused by the building and improvements located on the Premises becoming
out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises, or due to any cause whatsoever,
and Tenant hereby covenants and agrees that it will at all times indemnify
and hold safe and harmless the property, the Landlord (including without
limitation the trustee and beneficiaries if Landlord is a trust),
Landlord's employees, agents, servants, guests, invitees and visitors from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, arising out
of any such damage or injury; except injury to persons or damage to
property TO THE EXTENT CAUSED BY the negligence of Landlord or the failure
of Landlord to repair OR MAINTAIN any part of the Premises which Landlord
is obligated to repair and maintain hereunder within a reasonable time
after the receipt of written notice from Tenant of needed repairs. Tenant's
obligation to indemnify Landlord under this Paragraph 14 includes an
obligation to indemnify for losses resulting from death or injury to
Tenant's employees, and Tenant accordingly hereby waives any and all
immunities it now has or hereafter may have under any Industrial Insurance
Act, or other worker's compensation, disability benefit or other similar
act which would otherwise be applicable in the case of such a claim. Tenant
shall procure and maintain throughout the term of this Lease a policy or
policies of PUBLIC LIABILITY Insurance, at its sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions
arising out of or in connection with: (i) the Premises; (ii) the condition
of the Premises; (iii) Tenant's operations in and maintenance and use of
the Premises; and (iv) Tenant's liability assumed under this Lease, the
limits of such policy or policies to be in the amount of not less than
$1,000,000 per occurrence in respect of injury to persons (including death)
and in respect of property damage or destruction, including loss of use
thereof. All such policies shall be procured by Tenant from responsible
Insurance companies REASONABLY satisfactory to Landlord. CERTIFICATES OF
INSURANCE together with receipt evidencing payment of premiums therefor,
shall be delivered to Landlord prior to the Commencement Date of this
Lease. Not less than fifteen (15) days prior to the expiration date of any
such policies, RENEWAL CERTIFICATES (bearing notations evidencing the
payment of renewal premiums) shall be delivered to Landlord. Such
CERTIFICATES shall further provide that not less than thirty (30) days
written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
15. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by CONVEYANCE in lieu thereof
and the taking would prevent or, INSURANCE THE REASONABLE JUDGEMENT OF
TENANT AND LANDLORD, materially interfere with the use of the Premises for
the purpose for which they are being used, this Lease shall terminate and
the rent shall be abated during the unexpired portion of this Lease,
effective when the physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of
eminent domain, or by CONVEYANCE in lieu thereof, and this Lease is not
terminated as provided in the subparagraph above, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of
this Lease shall be reduced to such extent as may be fair and reasonable
under all of the circumstances.
C. In the event of any such taking or CONVEYANCE in lieu thereof, Landlord
shall be entitled to receive the entire award. Tenant shall be entitled to
make a claim in any condemnation proceedings which does not reduce the
amount of Landlord's award, for the value of any furniture, furnishings and
fixtures installed by and at the sole expense of Tenant.
16. HOLDING OVER. Tenant will, at the termination of this Lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Landlord
agrees in writing that Tenant may hold over after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in
writing on the terms of such holding over, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less THIRTY (30)
days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this Lease shall be applicable during that period, except
that Tenant shall pay Landlord from time to time upon demand, as rental for
the period of any hold over, an amount equal to ONE HUNDRED TWENTY PERCENT
(120%) OF the Base Rent in effect on the termination date, plus all
additional rental as defined
7
herein, computed on a daily basis for each day of the hold over period. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided. The
preceding provisions of this paragraph 16 shall not be construed as
Landlord's consent for Tenant to hold over.
17. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire before
Tenant takes possession of the Premises, good fee or leasehold title to the
Premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are
permitted by the terms of this Lease, zoning ordinances and other building
and fire ordinances and governmental regulations relating to the use of
such property, and easements, restrictions and other conditions of record.
In the event this Lease is a sublease, then Tenant agrees to take the
Premises subject to the provisions of the prior leases. Landlord represents
and warrants that it has full right and authority to enter into this Lease
and that Tenant, upon paying the rental herein set forth and performing its
other covenants and agreements herein set forth, shall peaceably and
quietly have, hold and enjoy the Premises for the term hereof without
hindrance or molestation from Landlord, subject to the terms and provisions
of this Lease.
18. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or any
other payment or reimbursement to Landlord required herein when due, and
such failure shall continue for a period of TEN (10) days from the date
such payment was due.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or an State thereof; or Tenant shall be adjudged bankrupt
or insolvent in proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all of
the assets of Tenant.
E. Tenant shall desert or vacate any substantial portion of the Premises
UNLESS TENANT HAS RECONFIRMED IN WRITING ITS OBLIGATIONS UNDER THE LEASE
AND IS CURRENT WITH RESPECT TO THE PAYMENT OF ALL MONTHLY BASE RENT AND
ADDITIONAL RENT, AND IS OTHERWISE NOT INSURANCE DEFAULT OF THE LEASE.
F. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than the foregoing in this Paragraph 18), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant
(OR SUCH LONGER PERIOD AS MAY BE REASONABLY NECESSARY UNDER THE
CIRCUMSTANCES PROVIDED TENANT HAS COMMENCED TO CURE WITHIN SUCH TWENTY (20)
DAYS AND THEREAFTER DILIGENTLY AND IN GOOD FAITH PURSUE SUCH CURE.)
NOTWITHSTANDING THE PRECEEDING SENTENCE, IN THE EVENT THAT LANDLORD
REASONABLY DETERMINES THAT COMPLETION OF THE CURE BECOMES IMPOSSIBLE, OR
CANNOT BE COMPLETED PROIR TO THE LEASE EXPIRATION DATE, LANDLORD MAY CALL
AN EVENT OF DEFAULT.
19. REMEDIES. Upon the occurrence of any such events of default described in
Paragraph 18 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever.
A. Landlord may accelerate all rent payments due hereunder FOR THE
REMAINDER OF THE LEASE TERM AND TENANT SHALL PAY THE PRESENT VALUE
(DISCOUNTED AT THE PRIME RATE AS PUBLISHED IN THE WALL STREET JOURNAL) OF
THE AGGREGATE OF SUCH AMOUNTS TO LANDLORD LESS A REASONABLE ESTIMATE AND
PROJECTION OF THE MONEYS TO BE REALIZED OVER THE REMAINDER OF THE LEASE
TERM FROM FUTURE LEASES OF THE PREMISES PROCURED THROUGH LANDLORD'S GOOD
FAITH EFFORTS TO MITIGATE DAMAGES REDUCED BY THE REASONABLY PROJECTED COSTS
(INCLUDING THE REASONABLE COST OF ATTORNEY'S FEES) OF OBTAINING SUCH MONEYS
AND ACCOMPLISHING SUCH MITIGATION.
B. Terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails so to do, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying such
Premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor, and Tenant agrees to pay
to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet
the Premises on satisfactory terms or otherwise.
C. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the Premises for such terms ending
before, on or after the expiration date of the Lease Term, at such rentals
and upon such other conditions (including concessions and prior occupancy
periods) as Landlord in its sole discretion may determine, and receive the
rent therefor; and Tenant agrees to pay to the Landlord on demand any
deficiency that may arise by reason of such reletting. Landlord shall USE
GOOD FAITH EFFORTS to relet the Premises or any part thereof BUT shall not
be liable for refusal or failure to relet. In the event of reletting, THE
LANDLORD SHALL NOT BE LIABLE for refusal or failure to collect any rent due
upon such reletting. In the event Landlord is successful in reletting the
Premises at a rental in excess of that agreed to be paid by Tenant pursuant
to the terms of this Lease, Landlord and Tenant each mutually agree that
Tenant shall not be entitled, under
8
any circumstances, to such excess rental, and Tenant does hereby
specifically waive any claim to such excess rental.
D. Enter upon the Premises, by force if necessary, without being liable for
prosecution or any claim for damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, UNLESS caused by the negligence
of Landlord.
E. Whether or not Landlord retakes possession or relets the Premises,
Landlord shall have the right to recover unpaid rent and all damages caused
by Tenant's default, including attorney's fees. Damage shall include,
without limitation, all rents lost, all legal expenses and other related
costs incurred by Landlord following Tenant's default, all costs incurred
by Landlord in restoring the Premises to good order and condition, or in
remodeling, renovating or otherwise preparing the Premises for reletting,
all costs (including without limitation any brokerage commissions and the
value of Landlord's time) incurred by Landlord, plus interest thereon from
the date of expenditure until fully repaid at the rate of eighteen percent
(18%) per annum.
F. In the event Tenant fails to pay any installment of rent, additional
rent or other charges hereunder as and when such installment is due, to
help defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such installment; and the failure to pay such
amount within ten (10) days after demand therefor shall be an event of
default hereunder. The provision for such late charge shall be in addition
to all of Landlord's other rights and remedies hereunder. The provision for
such late charge shall be in addition to all of Landlord's other rights and
remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Landlord's remedies in any manner.
G. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law, such remedies being cumulative and non-exclusive, nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent
due to Landlord hereunder or of any damages accruing to Landlord by reason
of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by the Landlord or its agents during the
Lease Term hereby granted shall be deemed a termination of this Lease or an
acceptance of the surrender of the Premises, and no agreement to terminate
this Lease or accept a surrender of said Premises shall be valid unless in
writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall
be deemed or construed to constitute a waiver of any other violation or
breach of any of the terms, provisions and covenants herein contained.
Landlord's acceptance of the payment of rental or other payments hereunder
after the occurrence of an event of default shall not be construed as a
waiver of such default, unless Landlord so notifies Tenant in writing.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default or of Landlord's right to enforce any
such remedies with respect to such default or any subsequent default. If,
on account of any breach or default by Tenant in Tenant's obligations under
the terms and conditions of this Lease, it shall become necessary or
appropriate for Landlord to ENGAGE THE SERVICES OF an attorney concerning
or to enforce or defend any of Landlord's rights or remedies hereunder,
Tenant agrees to pay any reasonable attorney's fees so incurred.
20. LANDLORD'S LIEN. LANDLORD SHALL HAVE ALL RIGHTS OF LANDLORDS LIEN IN
ACCORDANCE WITH THE STATE OF WASHINGTON STATUTES.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the Premises or the improvements
situated thereon, provided, however, that if the mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's
interest in this Lease superior to any such instrument, then by notice to
Tenant from such mortgagee, trustee or holder, this Lease shall be deemed
superior to such lien, whether this lease was executed before or after said
mortgage or dead of trust. Tenant shall at any time hereafter on demand
execute any instruments, releases or other documents which may be
REASONABLY required by any mortgagee for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage. (SEE ADDENDUM TO
PARAGRAPH 21.)
22. LANDLORD'S DEFAULT. In the event Landlord should become in default in any
payment due on any such mortgage described in Paragraph 21 hereof or in the
payment of taxes or any other item which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease, Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided, however, that Tenant shall not be authorized and empowered
9
to make any payment under the terms of this Paragraph 22 unless the item
shall be superior to Tenant's interest hereunder. In the event Tenant pays
any mortgage debt in full, in accordance with this paragraph, it shall, at
its election, be entitled to the mortgage security by assignment or
subrogation.
23. MECHANIC LIENS. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the Premises or
to charge the rentals payable hereunder for any claim in favor of any
person dealing with the Tenant, including those who may furnish materials
or perform labor for any construction or repairs, and each such claim shall
affect and each such lien shall attach to, if at all, only the leasehold
interest granted to Tenant by this instrument. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it
on account of any labor performed or materials furnished in connection with
any work performed BY TENANT OR ON TENANT'S BEHALF on the Premises on which
any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that it will save
and hold Landlord harmless from any and all loss, cost or expense based on
or arising out of asserted claims or liens against the leasehold estate or
against the right, title and interest of the Landlord in the Premises or
under the terms of this Lease.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending,
mailing or delivery of any notice or the making of any payment by Tenant to
Landlord shall be deemed to be complied with when and if the following
steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth
or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts have been actually received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address hereinbelow set forth, or at such other
address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
C. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when
deposited in the United States mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
Xxxxx Bank N.A. Applied Voice Technology, Inc.
as trustee of the Multi-Employer
Property Trust 00000 XX 000xx Xxx
x/x Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxx X-0, Suite 110
0000 000xx Xxxxxx XX Xxxxxxxx, XX 00000
Suite 250 Attn: Chief Financial Officer
Xxxxxxxx, XX 00000
with a copy to:
Xxxxx Bank N.A./MEPT
000 00xx Xxxxxx X.X.
X.X. Xxx 00000
Xxxxxxxxxx X.X. 00000-0000
Attn: Xxxxxx Xxxxxx
Xxxx Xxxxxxx
XxXxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of
notices and payments to landlord; if and when included within the term
"Tenant", as used in this instrument, there are more than one person, firm
or corporation, all shall jointly arrange among themselves for their joint
execution of such a notice specifying some individual at some specific
address within the continental United States for the receipt of notices and
payments to Tenant. All parties included within the terms "Landlord" and
"Tenant", respectively, shall be bound by notices given in accordance with
the provisions of this paragraph to the same effect as if each had received
such notice.
25. MISCELLANEOUS.
10
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization
by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
C. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this
Lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date
to which rent has been paid, the unexpired term of this Lease and such
other matters pertaining to this Lease as may be requested by Landlord. It
is understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
E. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the Term hereof, including without
limitation of all payment obligations with respect to taxes and insurance
and all obligations concerning the condition of the Premises. Upon the
expiration or earlier termination of the Term hereof, and prior to Tenant
vacating the Premises. Tenant shall COMPLY WITH Paragraph 10(B) hereof.
Tenant shall also, prior to vacating the Premises, pay to Landlord the
amount, as estimated by Landlord, of Tenant's obligation hereunder for REAL
estate taxes and insurance premiums for the year PRORATED THROUGH THE
EXPIRATION DATE OR TERMINATION DATE OF THE LEASE. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied, as the case may be.
Any security deposit held by Landlord shall be credited against the amount
payable by Tenant under this Paragraph 25(F).
G. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of
this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and
it is also the intention of the parties to this Lease that in lieu of each
clause or provision of this Lease that is illegal, invalid or
unenforceable, there be added as part of this Lease contract a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
H. Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Premises being
subject to prior lease and such offer subject to withdrawal or non-
acceptance by Landlord or to other use of the Premises without notice, and
this Lease shall not be valid or binding unless and until accepted by
Landlord in writing and a fully executed copy delivered to both parties
hereto.
I. All reference in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
J. During the term of this Lease and any subsequent option periods,
Landlord shall have the right to request and obtain Tenant's current
financial statements with reasonable advance notice. Tenant shall comply
with Landlord's request for financial statements in a reasonable time frame
not to exceed thirty (30) days from the date of request.
26. LIABILITY OF LANDLORD. Tenant agrees that no trustee, officer, employee,
agent or individual partner of Landlord, or its constituent entities, shall
be personally liable for any obligation of Landlord hereunder, and that
Tenant must look solely to the interests of Landlord, or its constituent
entities in the subject real estate, for the enforcement of any claims
against Landlord arising hereunder.
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27. ADDITIONAL PROVISIONS. The addendum and paragraph(s) attached hereto are
hereby incorporated and made a part of this lease. In the event of any
conflict between the terms of the Addendum and the terms of the printed
form portion of this Lease, the terms of the Addendum shall control.
LANDLORD: TENANT:
Xxxxx Bank N.A., as Trustee of Applied Voice Technology, Inc. a
The Multi-Employer Property Trust Washington Corporation
By: By: /s/ Xxxxxxx X. XxXxxxx
----------------------------- -------------------------------
Xxxxxx Xxxxxx Xxxxxxx X. XxXxxxx
Its: Vice President Its: President - CEO
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