LEASE AGREEMENT
THIS LEASE (the “Lease”) is made and
entered into this 1st day of
August 2005, by and between RJF COMPANY, LTD., a Utah limited partnership (the
“Landlord’) and Volu-Sol Reagents, Inc., 0000 Xxxx 0000 Xxxxx, Xxxx Xxxxxx Xxxx,
Xxxx 00000 (the “Tenant”).
For good and valuable consideration,
receipt and sufficiency of which hereby acknowledged, Landlord and Tenant agree
as follows:
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1.
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Leased
Premises. Landlord does hereby demise and lease to
Tenant, and Tenant does hereby lease from Landlord, on and subject to the
terms, provisions, covenants, conditions and limitations set forth in this
Lease, approximately 11,500 square feet of space (the “Leased Premises”)
in a building (the “Building”) at approximately 0000 Xxxx 0000 Xxxxx, Xxxx
Xxxxxx Xxxx, Xxxx. A site plan (the “Site Plan”) showing the
Building and the development (the “Development”) of Landlord of which the
Building is a part is set forth on Exhibit A which
is attached hereto. A floor plan showing the location of the
Leased Premises within the Building is set forth on Exhibit B which
is attached hereto.
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2.
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Common Areas;
Parking
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a.
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Tenant
and its employees and invitees shall also be entitled during the Lease
Term to non-exclusive use of the common areas (the “Common Areas”) of the
Development. The term “Common Areas” means those portions of
the Development which are designated by Landlord of the general
non-exclusive use of Landlord, Tenant, and other tenants in the
Development, and their respective employees and invitees, including,
without limitation, parking areas, roadways, sidewalks, driveways, and
landscaped areas. The Common Areas presently planned for the
Development are identified on the Site Plan. Common Areas
identified on the Site Plan will be constructed in phases to correspond to
the construction of buildings in the Development. Landlord may
from time to time change the size, location, nature and sure of any of the
Common Areas as long as such changes do not materially and adversely
affect Tenant’s use of the leased
Premises.
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b.
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Notwithstanding
anything herein to the contrary, Tenant’s use of the parking areas which
are part of the Common Areas shall be limited to eleven (11) standard size
automobiles or pickup utility vehicles. Tenant shall not cause
large trucks or other large vehicles to be parked in the parking areas of
the Development or on adjacent public streets, except to the extent
temporary parking of large delivery vehicles is permitted by the rules and
regulations established by
Landlord.
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3.
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Term. The
term of the Lease shall commence on December 1, 2005, (hereinafter called
the “Commencement Date”). The term of this Lease (hereinafter
called the “Lease Term”) shall continue for a period of 60 months until
November 30, 2010, (the “Termination Date”), unless otherwise extended in
accordance with the terms and conditions hereof. “Lease Year”
shall mean the period of one year from the Commencement Date until the
anniversary of the Commencement Date,
etc.
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4.
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Use. The
office space portion of the Leased Premises shall be used and occupied
only for general office purposes. The warehouse portion of the
Leased Premises shall be used only for warehouse
purposes.
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5.
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Rental;
Payment.
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a.
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Tenant
agrees to pay the Landlord, without deduction or set-off of any kind, and
without notice or demand, base rental for each month during the Lease Term
in the following amounts:
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Month During the Lease
Term
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Base Rental Per
Month
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December
1, 2005 – November 30, 2006
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$4,903.00
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December
1, 2006 – November 30, 2007
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$5,050.00
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December
1, 2007 – November 30, 2008
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$5,202.00
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December
1, 2008 – November 30, 2009
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$5,358.00
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December
1, 2009 – November 20, 2010
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$5,518.00
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The base
rental for the first month (Month 1) of the Lease Term shall be due and payable
at the time of execution of this Lease. The base rental for each
subsequent month (Month 2, etc.) of the Lease Term shall be due and payable, in
advance, on or before the first day of such month.
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b.
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Tenant
shall pay to Landlord as additional rental its prorate share, as defined
in other sections of this Lease, of certain insurance premiums (Section
11), expenses and costs of operation and maintaining the Common Area
(Section 19), certain utilities (Section 20), taxes (Section 21), and
other items.
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c.
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All
past due base rentals, additional rentals and/or other sums due to
Landlord under the terms of this Lease shall bear interest at the rate of
eighteen percent (18%) per annum or the maximum rate of interest which is
allowed by the law in the State of Utah, whichever is lesser, from the due
date until paid by Tenant, provided, however, that the foregoing shall not
give Tenant the right to pay any sums due hereunder on other than the
dates herein specified for the payment of same. In addition,
Tenant acknowledges that the late payment of any amount owed will cause
Landlord to lose the use of that money and to incur costs and expenses not
contemplated under this Lease, including, without limitation,
administrative and collections costs and processing and accounting
expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, in addition to interest, if any payment
is not made by tenant within five (5) business days from the date it is
due, Tenant shall pay Landlord, to partially reimburse Landlord of the
additional cost of handling such payment, a late charge equal to five
percent (5%) of such amount.
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d.
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All
rentals and other amounts provided to be paid by Tenant to Landlord under
this Lease shall be paid or mailed
to:
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RJF
Company, Ltd.
Attn:
Xxxxxx X. Xxxxxxxxx
0000 Xxxx
0000 Xxxxx
Xxxx
Xxxxxx, Xxxx 00000
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or
to such other payee or address as Landlord may designate in writing to
Tenant. For all purposes hereof, rentals and other amounts
shall be deemed to be paid when received by Landlord at the above address
or such other address as Landlord may designate in writing to
Tenant.
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6.
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Security Deposit;
Increases
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a.
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Upon
the execution of this Lease, no additional Security Deposit will be
required. Landlord may apply all or part of the Security
Deposit to any unpaid rent or other charges due from Tenant or to cure any
other defaults of Tenant. If Landlord uses any part of the
Security Deposit, Tenant shall restore the Security Deposit to its full
amount within ten (10) days after Landlord’s written
request. Tenant’s failure to do so shall be a material default
under this Lease. No interest shall be paid on the Security
Deposit. Landlord shall not be required to keep the Security
Deposit separate from its other accounts and no trust relationship is
created with respect to the Security
Deposit.
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b.
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Each
time the base rent is increased, Tenant shall deposit additional funds
with Landlord sufficient to increase the Security Deposit to an amount
which bears the same relationship to the adjusted base rent as the initial
Security Deposit bore to the initial base
rent.
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7.
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Construction. Landlord
shall, at its expense, construct the Building, including the Leased
Premises, and shall construct the Common Areas shown on this Site Plan,
substantially in accordance with the specifications entitled “Landlord’s
Work.” All work on the Leased Premises other than Landlord’s
Work is to be performed by Tenant, at Tenant’s
expense.
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8.
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Condition of
Premises. Tenant’s taking possession of the Leased
Premises shall be conclusive evidence of Tenant’s acceptance thereof in
good order and satisfactory condition. Tenant agrees that no
representations respecting the condition of the Leased Premises and no
promises to decorate, alter, repair or improve the Leased Premises, either
before or after the execution hereof, have been made by Landlord or its
agents to Tenant unless the same are expressly contained herein or made a
part hereof.
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9.
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Alterations. Tenant
shall not make any structural or mechanical alterations in any portion of
the Leased Premises, nor any alterations to the exterior of the Leased
Premises, nor any interior alterations without, in each instance, first
obtaining the written consent of Landlord. Consent will not be
unreasonably withheld or delayed for interior alterations. If
Landlord shall so consent, Tenant agrees, at Tenant’s expense, to obtain
and maintain public liability insurance and Workmen’s Compensation
insurance adequate to fully protect Landlord as well as tenant from and
against any and all liability for death of or injury to persons or damage
to property caused in or about, or by reason of, the construction of the
alterations by Tenant, and Tenant shall also confirm to, and comply with,
all federal, state, county and local laws, ordinances, permits, rules and
regulations applicable to such construction. All alterations, including
additions, improvements, and other work, shall become, upon completion,
the property of Landlord, subject to the terms of this
Lease. The quality of all alterations shall be in conformity
with the quality of Landlord’s Work applicable to the initial construction
of the Leased Premises.
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10.
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Repairs and
Maintenance.
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a.
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Landlord
agrees, at its expense, to keep the following portions of the Building in
good condition and repair: the foundations, the structural portion of the
exterior walls, the roof, and the electrical, water, sewer, and gas lines
located in the Building, but outside of the Leased Premises, and used in
common with other tenants. Landlord shall not be obligated to
make any repairs until it has had reasonable opportunity to have same
repaired after being notified in writing of the need of same by
Tenant. In no way shall Landlord be required to make any
repairs and maintenance where such repairs and maintenance are occasioned
by Tenant’s negligence. Landlord shall not be liable to Tenant
for any damage to merchandise, trade fixtures, inventory, work in process
or personal property of Tenant in the Leased Premises caused by water
leakage from roof, water lines, sprinkler or hearting and air conditioning
equipment.
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b.
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Subject
to the obligation of Landlord set forth in Section 9(a), Tenant agrees, at
Tenant’s expense, to keep the Leased Premises in good condition and
repair, clean, sanitary and safe, including, without limitation: the HVAC,
plumbing, and electrical systems and facilities (including, without
limitation, any such systems or facilities which are outside of the Leased
Premises (such as on the roof of the building) but service only the Leased
Premises, other building equipment, fixtures, any property of Landlord
that may be classified as personal property, and doors and windows
(including all plate glass). Tenant agrees to paint the
interior of the Leased Premises when, in Tenant’s reasonable discretion,
such painting shall be necessary, in order to maintain at all times a
clean and sightly appearance. If Tenant refuses or neglects to
make repairs and/or maintain the Leased Premises or any part thereof, in a
manner reasonably satisfactory to Landlord, Landlord shall have the right,
upon giving Tenant reasonable written notice of its election to do so, to
make such repairs or perform such maintenance on behalf of and for the
account of Tenant. In such event, such work shall be paid for
by Tenant as additional rental promptly upon receipt of a xxxx
therefore.
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c.
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Upon
execution of this lease agreement, the Landlord and the Tenant shall
coordinate a mutually acceptable schedule to have the paint the office
area of the leased space, at the Landlord’s
expense.
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11.
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Liens. Tenant
agrees to pay promptly for any work done by or for the account of Tenant
(or material furnished therefore) in or about the Leased Premises, and
Tenant shall not permit or suffer any lien to attach to the Leased
Premises and shall, within ten (10) days, cause any such lien or any claim
therefore to be released; provided, however, that in the event Tenant
contests any such claim, Tenant agrees to indemnify Landlord and, if
requested, to deposit with Landlord cash or surety bond in form and with a
company satisfactory to Landlord in an amount equal to such contested
claim. Tenant agrees to indemnify Landlord for, and hold
Landlord harmless from and against, any and all loss, costs, damage,
liability or expense (including attorney’s fees) arising out of or in
connection with any work done by or for the account of
Tenant.
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12.
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Insurance.
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a.
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Landlord
agrees to carry during the Lease Term insurance covering the Building (but
excluding Tenant’s trade fixtures and personal property) for the full
replacement value thereof (exclusive of the cost of excavations,
foundations and footing) providing protection against any period generally
included in the classification of “all risk,” including fire, earthquake,
and extended coverage, vandalism and malicious mischief, sprinkler
leakage, and such other perils as Landlord, in its discretion, may
reasonably elect to cover. Tenant, at its request, may carry any portion
of this coverage. Any coverage not carried by Tenant will be
covered by Landlord, and billed accordingly to tenant. Tenant
will be required to provide proof of coverage to
Landlord. Tenant agrees to pay its Building Prorata Share, as
defined in section 20(b), for the insurance to be carried by Landlord
pursuant to this part (a). Tenant shall make payment within
twenty (20) days after receipt of an invoice therefore from
Landlord.
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b.
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Landlord
agrees to carry during the Lease Term commercial general liability
insurance insuring Landlord against liability for personal injury and
property damage arising out of the operation, use or occupancy of the
Development, with limits of not less than $1,000,000 per occurrence and in
the aggregate. The premium for this insurance shall be deemed
part of the expenses of maintaining the Common Areas. Tenant
shall pay its Common Area Prorata Share, as defined in Section 19 herein,
for the insurance to be carried by Landlord pursuant to this
part(b).
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c.
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Tenant
agrees to carry during the Lease Term commercial general liability
insurance for personal injury and property damage arising out of Tenant’s
operation, use, or occupancy of the Leased Premises and the Common Areas,
covering both Tenant and landlord as insureds and, in the event that part
or all of the Leased Premises shall be subleased, covering such sublessee
or subtenant as insureds, with terms and in companies satisfactory to
Landlord, with limits of not less than $2,000,000 per occurrence and in
the aggregate, with such increases in such amount as Landlord’s
professional insurance advisers may reasonably recommend from time to time
based upon inflation, increased liability awards, and other relevant
factors. Each insurance policy shall provide that Landlord and
Tenant shall be given a minimum of (30) days written notice by the
insurance company prior to cancellation, termination or change of such
insurance required hereby, Tenant shall provide Landlord with
copies of the policies or certificates evidencing that such insurance is
in full force and effect and stating the terms
thereof.
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d.
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Tenant
further agrees to carry insurance against fire and such other risks as are
from time to time included in standard extended coverage insurance, for
the full insurable value, covering all of Tenant’s trade fixtures and
personal property located on or within the Leased Premises, and Tenant
shall provide Landlord with evidence of such coverage from time to
time.
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13.
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Indemnification
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a.
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Excluding
negligence or willful misconduct on the part of Landlord, tenant shall
indemnify and hold harmless Landlord, its partners, employees, and agents,
from and against any and all liability, claims, demands, expenses, fees,
fines, penalties, suits, proceedings, actions, and causes of action for
personal injury or property damage arising or growing out of or in any way
connected with: (i) the use, occupancy, management or control of the
Leased Premises or the Common Areas by Tenant, its employees, agents, and
invitees, (ii) any breach or default in the performance by Tenant of its
obligations under this Lease, and (iii) any negligently or willfully
tortuous act by Tenant, its employees, and agents on or about the Leased
Premises and Common Areas.
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b.
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Excluding
negligence or willfull misconduct on the part of the Tenant, Landlord
shall indemnify and hold harmless Tenant, its officers, directors,
employees, and agents, from and against any and all liability, claims,
demands, expenses, fees, fines, penalties, suits, proceedings, actions,
and causes of action for personal injury or property damage arising or
growing out of or in any way connected with: (i) the use, occupancy,
management or control of the Building or the Common Areas by Landlord, its
employees, agents, and invitees, (ii) any breach or default in the
performance by Landlord of its obligations under this lease, and (iii) any
negligently or willfully tortuous act by Landlord, its employees, and
agents on or about the Leased Premises and Common
Areas.
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14.
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Access to
Premises. Tenant agrees that Landlord, its employees and
agents, or any person authorized by Landlord, may enter the Leased
Premises for the purpose of: (a) inspecting the condition of the same; (b)
making such repairs, additions or improvements thereto, or to the building
of which they are a part, as Landlord may elect or by required to make;
(c) exhibiting the same to prospective purchasers or prospective lenders;
and (d) placing notices advertising the Leased Premises for sale within
120 days of the Termination Date, at such places as may be determined by
Landlord. Tenant agrees that neither Tenant nor any person within Tenant’s
control will interfere with such notices. Landlord shall not
disturb Tenant’s conduct of business, except in cases of
emergency. Landlord shall not be liable to Tenant for any
damage caused by any such entry, except where such damage is caused by
Landlord’s gross negligence or willful
misconduct.
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15.
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Surrender of
Premises. Tenant shall, upon expiration of the Lease
term or any earlier termination of this Lease for any
cause:
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a.
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Surrender
to Landlord the Leased Premises, including, without limitation, all
alterations, improvements and other additions thereto that any have been
made or installed by either party to, in, upon or about the Leased
Premises and all items of Landlord’s property on the Leased Premises at
the Commencement of the Lease Term. The Leased Premises and all
said property shall be surrendered to Landlord by Tenant without any
damage, injury, or disturbance thereto, or payment
therefore. Tenant at its expense shall immediately repair any
damage to the Leased Premises caused by its vacating the same or by
Tenant’s removal of such trade fixtures, signs and personal property, and
shall leave the Leased Premises in a neat and clean condition, free of
debris and in substantially the same condition as existed prior to
Tenant’s occupancy, ordinary wear and tear
expected.
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b.
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Tenant
may remove its trade fixtures, signs and personal property. The
removal by Tenant of all such trade fixtures and personal property shall
be done under Landlord’s supervision and any damage occasioned by such
removal shall be promptly repaired by Tenant at Tenant’s expense and to
Landlord’s specifications. However, if Tenant shall be then in
default, Tenant shall not have the right to remove any of said trade
fixtures, signs and personal property and Landlord shall have a lien
thereon to secure the performance by Tenant of its obligations under this
Lease.
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c.
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If
Tenant fails to remove said trade fixtures, signs and personal property
which Tenant has a right to remove pursuant hereto, at or prior to the
termination of the Lease Term or earlier termination of this Lease,
Landlord may, at its election, remove and store the same for the account
of Tenant and at Tenant’s cost and expense for thirty (30) day period and
thereafter consider the same abandoned and sell the same as Landlord’s
property in accordance with applicable
law.
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16.
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Tenant’s Conduct of
Business. Tenant agrees to conduct its business at all
times in a first-class manner consistent with reputable business standards
and practices and that it will keep the Leased Premises in a neat, clean
and orderly condition.
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17.
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Rules and
Regulations. Tenant covenants and agrees that Tenant
will comply with the following rules and regulations set by Landlord for
the operation of the Leased
Premises:
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a.
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Tenant
shall not affix or maintain upon the exterior windows, doors and exterior
walls of the Leased Premises, any signs, advertising placards, names,
insignia, trademarks, descriptive material or any other such like item or
items, and Landlord shall have the right, without giving prior notice to
Tenant and without any liability for damage to the Leased Premises
reasonably caused thereby, to remove any of the same from the Leased
Premises, except such as shall have first received written approval of
Landlord as to size, type, color, locations, copy, nature and display
qualities.
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b.
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No
awning or other projections shall be attached to the outside walls of the
Leased Premises or the Building without, in each instance, the prior
written consent of Landlord.
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c.
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All
unloading and loading of goods shall be done only in the areas and through
the entrances designated for such purpose by
Landlord.
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d.
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No
radio or television aerial shall be erected on the roof or exterior walls
of the Leased Premises or the Building without the prior written consent
of Landlord. Any aerial so installed shall be subject to removal without
notice at any time, and any damage to the walls or roof caused by such
removal shall be the responsibility of
Tenant.
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e.
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No
loudspeakers, televisions, phonographs, radios, flashing lights or other
devices shall be used in a manner so as to be heard or seen outside of the
Leased Premises without the prior written consent of
Landlord.
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f.
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No
auction, fire, bankruptcy or selling-out sales, except those which are
lawful and bona fide, shall be conducted on or about the Leased Premises
without the prior written consent of
Landlord.
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g.
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Nothing
is to be attached or placed on the exterior walls of the Leased
Premises.
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In
addition to the foregoing rules and regulations relating to the Leased Premises,
Landlord shall have the right from time to time to adopt and modify reasonable
rules and regulations relating to the Common Areas, and Tenant agrees to comply
with such rules and regulations as they may be adopted and modified. Landlord
shall, for the enforcement of the rules and regulations (the “Rules and
Regulations”) referred to in this section have all remedies in this Lease
provided for breach of the provisions hereof.
18.
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Tenant’s
Property. Landlord, its employees or agents, shall not
be liable and Tenant waives all claims for any damage to persons or
property sustained by Tenant or any person claiming through Tenant and
shall not be liable for the loss of or damage to any property of Tenant or
of other by theft or otherwise, whether caused by other tenants or persons
or in the Building or others. All property of Tenant kept or
stored on the Leased Premises shall be so kept or stored at the risk of
Tenant only, and Tenant agrees to indemnify and hold Landlord harmless for
any claims arising out of damage to the same or damage to Tenant’s
business, including subrogation claims by Tenant’s insurance
carrier.
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19.
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Holding over.
If Tenant remains in possession of the Leased Premises after the
expiration of this Lease without a new lease reduced to writing and duly
executed, even if Tenant shall have paid, and Landlord shall have
accepted, rent in respect to such holding over, Tenant shall be deemed to
be occupying the Leased Premises only as a tenant from month to month
subject to all covenants, conditions and agreements of this Lease at a
rate equal to one hundred fifty percent (150%) of the rate in effect
immediately prior to the expiration of this Lease. Nothing
contained in this section shall relieve Tenant of liability for damages
suffered by landlord on account of Tenant’s holding over the Leased
Premises.
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20.
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Common Area
maintenance; Payment by
Tenant.
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a.
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Landlord
shall maintain the Common Areas during the Lease Term. Tenant
agrees to pay $825.00 per month for all expenses and costs incurred by
Landlord in the operation and maintenance of the Common Areas during the
Lease Term excluding property taxes or any repairs to the building caused
by your employees. This amount is valid through November 20,
2010, at which time, the monthly amount may be adjusted for the remaining
lease agreement. The expenses and costs incurred by Landlord in
the maintenance of the Common Areas shall include, without limitation,
costs and expenses incurred for the following: snow removal; gardening and
landscaping; utilities, water, and sewer charges; maintenance of signs
(other than tenant signs); premiums for liability, property damage, fire,
earthquake and other types of casualty insurance on the Common Areas
(including the premiums for the commercial general liability insurance to
be maintained by Landlord pursuant to Section 11(b) herein); all personal
property taxes levied on or attributable to personal property used in
connection with the Common Areas; rental or lease payments paid by
Landlord for rented or leased personal property used in the operation or
maintenance of the Common Areas; repairing, resurfacing, repaving,
maintaining, painting, lighting, and cleaning; refuse removal; security
and similar items; and a reasonable allowance to Landlord for Landlord’s
supervision of the Common Areas (not to exceed five percent (5%) of the
gross rents of the Development for any calendar year). Landlord
may cause any or all of such services to be provided by third parties and
the cost of such services shall be included in the expenses and costs
incurred by Landlord in operating and maintaining the Common
Areas.
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b.
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Landlord
shall have the right to estimate for any calendar year amount of Tenant’s
Common Area Prorata Share of the expenses and costs to be incurred by
Landlord in the operation and maintenance of the Common Areas and to
require the payment of one-twelfth of such estimate at the time of payment
of each monthly payment of base rental. If actual expenses and
costs exceed the estimate, Tenant shall pay its Common Area Prorata Share
of the balance within twenty (20) days after receipt from Landlord of a
notice thereof. If actual expenses and costs are less than the
estimate, Tenant’s Common Area Prorata Share shall be applied toward the
next base rental payments becoming due under this Lease, or, at the
election of Tenant, refunded to Tenant. Landlord shall provide
Tenant with reasonable documentation supporting its determination of
expenses and costs incurred by landlord in the operation and maintenance
of the Common Areas.
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21.
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Services and
Utilities
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a.
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Tenant
shall arrange for electricity, gas, telephone, other utility services, and
water and sewer, to the Leased Premises, as Tenant may require, directly
with the utility providing such services. Tenant shall pay all
costs of installation and deposits required in connection with such
services and costs of the services
provided.
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b.
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Landlord
shall not be liable to Tenant for damages or otherwise if any utility
services are interrupted or terminated because of necessary repairs,
installations or improvements, or any cause beyond Landlord’s reasonable
control, nor shall any such interruption or termination relieve Tenant of
the performance of any of its obligations under this
Lease.
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22.
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Real Property
Taxes.
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a.
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Tenant
agrees to pay its prorata share of all real property taxes which are
levied or assessed against the Building and the land (the “Land”) on which
the Development is located during the Lease Term. Tenant’s
prorate share of real property taxes allocated to the Building will be
Tenant’s Building Prorata Share, as defined in Section 20
herein. Tenant’s prorata share with respect to real property
taxes on the Land will be Tenant’s Common Area Share, as defined in
Section 19 herein. Tenant shall pay such shares of real
property taxes within twenty (20) days after receipt by Tenant from
Landlord of the tax notice and Landlord’s calculation of Tenant’s Building
Prorata Share of the taxes allocated to the Building and Tenant’s Common
Areas Share of the real property taxes allocated to the
Land. The term “real property taxes” means: (i) any fee, tax,
levy, charge or assessment imposed by any taxing authority, against the
Building or the Land, (ii) any tax or charge for fire protection, streets,
sidewalks, road maintenance, refuse or other services provided to the
Building or the Development by any governmental or quasi-governmental
agency, and (iii) any charge or fee replacing any tax previously included
within the definition of real property tax. Real property taxes
do not, however, include Landlord’s federal or state income, franchise,
inheritance or estate taxes.
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b.
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Tenant
shall also pay on or before the due date thereof all property taxes and
assessments levied or assessed against Tenant’s fixtures and personal
property located at the Leased Premises. In the event any of
such taxes or assessments shall be included in the real property taxes for
the Building or the Land, Tenant shall pay the amount thereof at the same
time as, and in addition to, its required payments pursuant to part (a)
above.
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23.
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Defaults by
Tenant.
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a.
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The
occurrence of any of the following shall constitute a default and breach
of this Lease by Tenant:
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i.
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Landlord
Shall not have received any payment of rental or any other payment
required herein within ten (10) days of the due date thereof; landlord
shall have no obligation whatsoever to notify Tenant of any such monetary
default; or
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|
ii.
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The
abandonment or vacation of the Leased Premises by Tenant;
or
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iii.
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A
failure by Tenant to observe and perform any other provision of this Lease
to be observed or performed by Tenant, where such failure continues for
ten (10) days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of such default is such that the
same cannot reasonably be cured within such ten (10) day period, Tenant
shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to
completion; or
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iv.
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The
making by Tenant of any general assignment for the benefit of creditors;
the filing by or against Tenant of a petition to have Tenant adjudged a
bankrupt or of a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days) the appointment of a
trustee or receiver to take possession of substantially all of Tenant’s
assets located at the Leased Premises or of Tenant’s interest in this
Lease, where possession is not restored to Tenant within thirty (30) days,
or the attachment, execution or other judicial seizure of substantially
all of Tenant’s assets located at the Leased Premises or of Tenant’s
interest in this Lease, where such seizure is not discharged within thirty
(30) days.
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b.
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In
the event of any default under this Lease as hereinabove set forth or
otherwise, Landlord may at any time hereafter, with or without notice or
demand, and without limiting Landlord in the exercise of any other legal
remedy under the law or in equity or otherwise which Landlord may have by
reason of the default, do one or more of the
following:
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i.
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Landlord
shall have the option to terminate this Lease and all rights of Tenant
hereunder by giving written notice of such intention to
terminate. In such event Landlord may recover from
Tenant:
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1.
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The
worth at the time of award of any unpaid rental which had been earned at
the time of such termination; plus
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2.
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The
worth at the time of award of the amount by which the unpaid rental which
would have been earned after termination until the time of xxxx exceeds
the amount of such rental loss Tenant proves could have been reasonably
avoided; plus
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3.
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The
amount by which the unpaid rental for the balance of the term exceeds the
amount which Landlord is able to obtain by renting the Leased Premises;
plus
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4.
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Any
other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant’s failure to perform its obligations under
this Lease or which in the ordinary course of things would be likely to
result therefrom; and
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5.
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At
Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable
law.
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The term
“rental” as used herein shall be deemed to be and to mean the base rental and
all other amounts required to be paid by Tenant, pursuant to the terms of this
Lease. All such sums, other than the base rental, shall be computed
on the basis of the average monthly amount thereof accruing during the
immediately preceding twenty-four (24) month period prior to default, except
that if it becomes necessary to compute such amounts before such twenty-four
(24) month period has occurred, then such amounts shall be computed on the basis
of the average monthly amount accruing during such shorter period. As used in
Sections (1) and (2) above, the “worth at time of award” is computed by allowing
interest at the rate charged by the Federal Reserve Bank of San Francisco to
member banks at the time of award plus one percent (1%).
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ii.
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Landlord
can continue this Lease in full force and effect, regardless of whether or
not Tenant has abandoned the Leased Premises, and the Lease will continue
in effect as long as Landlord does not terminate Tenant’s right to
possession, and Landlord shall have the right to collect rent when
due. In addition:
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1.
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During
the period Tenant is in default, Landlord, at its election, may enter the
Leased Premises and relet them or any part of them upon such terms as
Landlord, in its sole discretion shall deem appropriate. Any
rentals received by Landlord from such reletting shall be applied; first,
to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; Second, to the payment of any cost of such reletting,
including, but not limited to, leasing commissions and reasonable
attorney’s fees; third, to the payment of the cost of any necessary
alterations to the Leased Premises, and repairs to the Leased Premises;
and fourth, to the payment of rentals and other amounts due and unpaid
hereunder. Should that portion of such rentals received from
such reletting during any month which is applied to the payment of rent
hereunder, be less than the rent payable during that month by Tenant
hereunder, then Tenant shall pay such deficiency to
Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall also pay to Landlord, as soon as
ascertained, any cost and expense incurred by Landlord in such reletting
or in making such alterations and repairs not covered by the rentals
received from such reletting of the Leased
Premises.
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2.
|
Neither
Landlord’s (a) acts of maintenance or preservation or efforts to relet the
Leased Premises, nor (b) the appointment of a receiver upon the initiative
of the Landlord to protect Landlord’s interest under the Lease, shall
constitute a termination of Tenant’s rights to possession unless Landlord
notifies Tenant that landlord elects to terminate this
Lease.
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iii.
|
In
the event of any such default by Tenant, Landlord shall also have the
right to reenter the Leased Premises and remove all persons and property
from the Leased Premises; such property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of
Tenant.
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iv.
|
No
re-entry or taking possession of the Leased Premises by Landlord pursuant
to this section shall be construed as an election to terminate this Lease
nor shall it cause a forfeiture of rentals or other amounts remaining to
be paid during the balance of the Lease Term, unless a written notice of
such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding
any reletting, without termination by Landlord because of any default by
Tenant, Landlord may at any time after such reletting elect to terminate
this Lease for any such default.
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24.
|
Damage to
Premises. In the event the Leased Premises are hereafter
damaged or destroyed or rendered partially untenantable for their
accustomed uses by fire or other casualty insured under the coverage which
landlord is obligated to carry pursuant to Section 11 herein, then upon
receipt of the proceeds of such insurance, Landlord shall promptly repair
the Leased Premises and the Building and restore the same to substantially
the condition in which they were immediately prior to the happening of
such casualty, and from the date of such casualty until the Leased
Premises are so repaired and restored, rental payments and all other
charges and items of additional rent payable hereunder, shall xxxxx in
such proportion as the part of the Leased Premises thus destroyed or
rendered untenantable bears to the total Leased Premises, provided,
however, that in the event thirty percent (30%) or more of the Leased
Premises or the Building be hereafter destroyed or rendered untenantable
by fire or other casualty during the last twelve (12) months of the term
of this Lease (based upon the cost to repair the Leased Premises or the
Building damaged or destroyed as compared with the market value of the
Leased Premises or the Building immediately prior to such fire or other
casualty as shown by certificate of Landlord’s architect), then either
party hereto shall have the right to terminate this Lease effective as of
the date of such casualty, by giving to the other party hereto within
thirty (30) days after the happening or such casualty, written notice of
such termination. If said notice be given within said thirty
(30) day period this Lease shall terminate and base rental and all other
charges and items of additional rent shall xxxxx as aforesaid from the
happening of such casualty, and Landlord shall promptly repay to Tenant
any rental theretofore paid in advance which has not been earned at the
date of such casualty. If said notice be not given and Landlord
is required or elects to repair or rebuild the Leased Premises as herein
provided, then Tenant shall repair and replace its trade fixtures and
personal property in a manner and to at least a condition equal to that
prior to its damage or destruction. Except as herein expressly
provided to the contrary, this Lease shall not terminate nor shall there
be any abatement of rent or other charges or items of additional rent as
the result of a fire or other casualty including causes due to negligence
or willful misconduct of Tenant, its employees and/or
invitees.
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25.
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Eminent
Domain.
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|
a.
|
In
the event the entire Leased Premises shall be appropriated or taken under
the power of eminent domain by any public or quasi-public authority, this
Lease shall terminate and expire as of the date of such and both Landlord
and Tenant shall thereupon be released from any liability thereafter
accruing hereunder. In the even more than twenty percent (20%)
of the square footage of floor area of the Leased Premises is taken under
the power of eminent domain by any public or quasi-public authority, or if
by reason of any appropriation or taking, regardless of the amount so
taken, the remainder of the Leased Premises is not usable for the purposes
for which the Leased Premises were leased, then either Landlord or Tenant
shall have the right to terminate this Lease as of the date Tenant is
required to vacate a portion of the Leased Premises so taken upon giving
notice to the other in writing of such election within thirty (30) days
prior to date of such taking. In the even of such termination, both
Landlord and Tenant shall thereupon be released from any liability
thereafter accruing hereunder.
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b.
|
Whether
or not this Lease is terminated, Landlord shall be entitled to the entire
award or compensation in such proceedings, but nothing herein shall be
deemed to affect Tenant’s right to bring a separate action to recover
damages for the loss of its fixtures and personal property. If
this Lease is terminated as hereinabove provided, and provided that Tenant
is not in default of any of the covenants, conditions or provisions of
this Lease, all items of base rent, additional rent and other charges for
the last month of Tenant’s occupancy shall be prorated, and Landlord
agrees to refund to Tenant any base rental, additional rental, or other
charges paid in advance.
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c.
|
If
both Landlord and Tenant elect not to so terminate this Lease, Tenant
shall remain in that portion of the Leased Premises which shall not have
been appropriated or taken as herein provided, and Landlord
agrees, at Landlord’s cost and expense, to, as soon as reasonably
possible, restore the remaining portion of the Leased Premises to a
complete unit of like quality and character as existed prior to such
appropriation or taking; and thereafter the rental provided for in this
Lease shall be adjusted on an equitable basis, taking into account the
relative value of the portion taken as compared to the portion remaining.
For the purpose of this section, a voluntary sale or conveyance in lieu of
condemnation, but under threat of condemnation, shall be deemed an
appropriation or taking under the power of eminent
domain.
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26.
|
Subordination and
Attornment. This Lease is subject to all ground or
underlying leases, mortgages and deeds of trust which now affect the
Leased Premises or any part of the Leased Premises and to all renewals,
modifications, consolidations, replacements and extensions
thereof. This Lease may, at the option of Landlord, be
subordinated to any ground or underlying leases, mortgages,
deed of trust or other lien which maybe hereafter affect the Building or
any part thereof and Tenant will execute and deliver upon the demand of
Landlord from time to time any and all instruments desired by Landlord,
subordinating, in the manner requested by Landlord, this Lease to such
lease, mortgage, deed of trust or other lien provides that in the event of
the termination of such lease or foreclosure of such mortgage, deed of
trust or lien, any successor to any interest of Landlord in the Building
or Common Areas will not disturb Tenant’s possession of the Leased
Premises or Common Areas if Tenant attorns to such successor as Landlord
and otherwise performs its obligations under this Lease. Tenant
agrees that Tenant shall attorn to any purchaser upon foreclosure or sale
pursuant to any lien. Landlord may from time to time grant or
declare such restrictions or covenants as may be reasonably required by
Landlord or adopt and record such parcel maps, subdivision maps or
condominium plans as may be reasonably required by Landlord relating to
all or any portion of the Land or the Building and the provisions of all
such documents shall be senior to this Lease and Tenant shall sign any of
such documents upon receipt of Landlord provided such documents do not
unreasonably interfere with the use of the Leased Premises or Common Areas
by Tenant as permitted by this
Lease.
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27.
|
Assignment, Subletting
and Ownership.
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|
a.
|
Tenant
shall not transfer, assign, sublet, enter into license or concession
agreements, change ownership or hypothecate, by operation of law or
otherwise, this Lease or the Tenant’s interest in and to the Leased
Premises. Any attempt at transfer, assignment, subletting,
license or concession agreement, change of ownership or hypothecation
without the Landlord’s written consent shall be void and confer no rights
upon any third person. Notwithstanding the foregoing, Tenant
may assign or sublet this Lease upon first procuring the written consent
of Landlord, which consent shall not be unreasonably withheld by
Landlord. Without limiting the generality of the foregoing,
Landlord’s refusal to give consent to an assignment or sublease shall not
be deemed unreasonably withheld if:
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|
i.
|
the
proposed use of the Leased Premises shall be different from that permitted
under this Lease; and
|
|
ii.
|
the
character, reputation or financial responsibility of the proposed assignee
are not reasonably satisfactory in Landlord’s judgment; or, in any event,
not at least equal to those possessed by Tenant (or represented to be
possessed by Tenant) as of the date of execution of this Lease;
or
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iii.
|
the
proposed assignee fails to agree in writing to assume and be bound by all
of the obligations of Tenant under the Lease, as provided
below.
|
No
consent to assignment given by Landlord pursuant to the foregoing shall be
deemed to release Tenant from any liability under this Lease, nor, after any
consent to assignment, shall Landlord’s failure to give Tenant notice of default
under any of the terms or conditions of this Lease release Tenant from any
liability hereunder. Without limiting any of the Landlord’s rights
hereunder, Landlord shall have the right, in the even of a purported assignment
of this Lease by the Tenant, without Landlord’s consent, to declare this Lease
null and void and of no further force and effect, there by permitting Landlord
to negotiate with the prospective assignee for a lease on terms and conditions
acceptable to Landlord.
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b.
|
Tenant
agrees to reimburse Landlord for Landlord’s attorney’s fees in an amount
not less than $400.00 incurred in conjunction with the processing and
documentation of any such requested transfer, assignment, subletting,
licensing or concession agreement, change of ownership or hypothecation of
this Lease or Tenant’s interest in and to the Leased Premises. The consent
by Landlord to any transfer, assignment, subletting, license or concession
agreement, subletting, license or concession agreement, change of
ownership or hypothecation shall not constitute a waiver of the necessity
for such consent to any subsequent attempted transfer, assignment,
subletting, license or concession agreement, change of ownership or
hypothecation. Tenant shall further pay any and all costs
incurred with respect to such assignment or subletting, including, without
limitation, the costs of any additional alterations or modifications to
the Leased Premises.
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c.
|
Each
transfer, assignment, subletting, license or concession agreement and
hypothecation to which there has been consent shall be by instrument in
writing, in form satisfactory to Landlord, and shall be executed by the
transferor, assignor, sublessor, concessionaire, hypothecator or mortgagor
and the transferee, assignee, sublessee, licensee, concessionaire, or
mortgagee shall agree in writing for the benefit of the Landlord to assume
and to be bound by, and to perform the terms, covenants and conditions of
this Lease to be done, kept and performed by Tenant. Two
executed copies of such written instruments shall be delivered to
Landlord. Failure to first obtain in writing Landlord’s consent
or failure to comply with the provisions of this section shall operate to
prevent any such transfer, assignment, subletting, license, concession
agreement or hypothecation from becoming
effective.
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d.
|
If
Tenant is a corporation and if the control thereof changes at any time
during the term hereof, then Landlord at its option may declare such a
change a breach of this Lease, subject to the remedies provided for breach
in Section 22 herein. For purposes hereof the term “Control”
shall be defined to mean fifty percent (50%) or more of the voting
interest in said Corporation.
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|
e.
|
No
interest of Tenant in this Lease shall be assignable by operation of law,
legal process, receivership, bankruptcy or otherwise (“involuntary
assignment”). An involuntary assignment shall include but not
be limited to the following:
|
|
i.
|
If
Tenant is or becomes bankrupt or insolvent, makes an assignment for the
benefit of creditors, or institutes a proceeding under the Bankruptcy Act
in which Tenant is the bankrupt; or, if Tenant is a partnership or
consists of more than one person or entity, if any partner or the
partnership or other person or entity is or becomes bankrupt or insolvent,
or makes an assignment for the benefit of creditors;
or
|
|
ii.
|
If
a writ of attachment or execution is levied on this Lease;
or
|
|
iii.
|
If,
in any proceeding or action to which Tenant is a party, a receiver is
appointed with authority to take possession of the Leased
Premises.
|
An
involuntary assignment shall constitute a default by tenant, and Landlord shall
have the right to elect to terminate this Lease, in which case this Lease shall
not be treated as an asset of Tenant. If a writ of attachment or
execution is levied on this Lease or a receiver is appointed, Tenant shall have
thirty (30) days in which to cause the attachment or execution or receiver to be
removed. If any involuntary proceeding in bankruptcy is brought
against Tenant, Tenant shall have sixty (60) days in which to have the
involuntary proceedings dismissed.
28.
|
Laws and
Ordinances.
|
|
a.
|
Tenant
agrees to comply with all laws, ordinances, orders and regulations
affecting the use and occupancy of the Leased Premises and the
cleanliness, safety, or operation thereof. Tenant agrees to
comply with the regulations and requirements of any insurance underwriter,
inspection bureau or similar agency with respect to the Leased
Premises. Tenant agrees not to: (i) permit any illegal practice
to be carried on or permitted on the Leased Premises; (ii) make sure of or
allow the Leased Premises to be used for any purposes other than that
permitted under this Lease; (iii) keep or use or permit to be kept or used
on the Leased Premises any inflammable fluids, explosives, or toxic
substances or wastes (as defined in any federal, state or local law or
regulation), without the prior written permission of Landlord; (iv) use
the Leased Premises for any purpose whatsoever which might create a
nuisance or injure the reputation of the Leased Premises or of the
Building; (v) deface or injure the Building or the Leased Premises; (iv)
overload the floors;(vii) commit or suffer any waste; or (viii) install
any electrical equipment that overloads
lines.
|
|
b.
|
In
connection with the installation of any electrical equipment, Tenant
shall, at Tenant’s own expense, make from time to time whatever changes
are necessary to comply with the requirements of the insurance inspectors,
underwriters and governmental
authorities.
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29.
|
Waiver of Subrogation.
Landlord and Tenant hereby waive all causes of action and rights of
recovery against each other, against all subtenants or assignees of
Tenant, against all other tenants of the Building and their assignees and
sublessees and against any other person, or entity holding an interest in
the Leased Premises (together, the “Affected Parties”), and against the
agents, officers and employees of the Affected Parties, for any loss
occurring to the property of the Affected Parties resulting from any of
the perils insured against under any and all casualty insurance policies
in effect at the time of any such loss regardless of cause or origin of
such loss, including the negligence of the Affected Parties or the agents,
officers or employees of the Affected Parties, to the extent of any
recovery on such policies of
insurance.
|
30.
|
Attorney’s
Fees. In the even that at any time during the term of
this Lease or thereafter, either Landlord or Tenant shall institute any
action or proceeding against the other relating to the provisions of this
Lease, on any default hereunder, then, and in that event, the unsuccessful
party in such action or proceeding agrees to reimburse the successful
party for the reasonable expense of attorney’s fees and disbursements
incurred therein by the successful party. This section shall
survive the expiration or termination of this
Lease.
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31.
|
Sale of Premises by
Landlord. In the even of any sale or exchange of the
Leased Premises by Landlord and assignment by Landlord of this Lease,
Landlord shall be and is hereby entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in
or derived from this Lease arising out of any act, occurrence or omission
relating to the Leased Premises or this Lease occurring after the
consummation of such sale or exchange and
assignment.
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32.
|
Notices. Notices
and demands required or permitted to be given hereunder shall be given by
personal delivery by certified mail return receipt request or by overnight
courier and shall be effective upon receipt. Such notices shall
be addressed, if to Landlord, at:
|
RFJ
Company, Ltd.
c/o
Xxxxxx X. Xxxxxxxxx
0000 Xxxx
0000 Xxxxx
Xxxx
Xxxxxx Xxxx, Xxxx 00000
With
duplicate copy to
Xxxxxx
& XxXxxxxx
00 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx
Xxxx, Xxxx 00000-0000
Attn: Xxx
Xxxxxxx
if to Tenant, at:
Volu-Sol Reagents Inc
000 Xxxx Xxxxx Xxxxxx Xxxxx
#000
Xxxxx, Xxxx 00000
Attn: Xxxx Xxxxx
or to
such other address as Landlord shall notify Tenant of in writing. If
Tenant, any such notice shall be addressed to Tenant at the Leased Premises, or
such address as Tenant shall notify Landlord of in writing. All
notices from Tenant to Landlord hereunder shall also require Tenant to send a
copy of such notice to Landlord’s Mortgagees(s), if any.
33.
|
Remedies. All
rights and remedies of Landlord herein created or otherwise extending at
law are cumulative, and the exercise of one or more rights or remedies
shall not be taken to exclude or waive the right to the exercise of any
other. All such rights and remedies may be exercised and
enforced concurrently and whenever and as often as deemed
desirable.
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34.
|
Successors and
Assigns. All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon,
apply and inure to the parties hereto and their respective heirs,
executors, administrators, successors and assigns; it being understood and
agreed, however, that the provisions of Section 26 herein, are in nowise
impaired by this section.
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35.
|
Representations. It
is understood and agreed by Tenant that Landlord and Landlord’s agents
have made no representations or promises with respect to the Leased
Premises, the Building, or the Development, or the making or entry into
this Lease, except as in this Lease expressly set forth, and that no claim
or liability, or cause for termination, shall be asserted by Tenant
against Landlord for, and Landlord shall not be liable by reason of, the
breach of any representations or promises not expressly stated in this
Lease.
|
36.
|
Waiver. The
failure of Landlord to insist upon strict performances by Tenant or any of
the covenants, conditions, and agreements of this Lease shall not be
deemed a waiver of any of Landlord’s rights or remedies and shall not be
deemed a waiver of any subsequent breach or default by Tenant in any of
the covenants, conditions and agreements of this Lease. No
surrender of the Leased Premises shall be effected by Landlord as
acceptance of rental or by any other means whatsoever unless the same be
evidenced by Landlord’s written acceptance of such as a
surrender.
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37.
|
Interpretation. The
parties hereto agree that it is their intention hereby to create only the
relationship of Landlord and Tenant, and no provision hereof, or act of
either party hereunder, shall ever be construed as creating the
relationship of principal and agent, or a partnership, or a joint venture
or enterprise between the parties
hereto.
|
38.
|
Covenant of
Title. Landlord covenants that is has full right, power and
authority to make this Lease, and that tenant or any permitted assignee or
sublessee of Tenant, upon payment of the rentals and performance of the
covenants upon Tenant’s part to be performed hereunder, shall and may
peaceably and quietly have, hold and enjoy the Leased Premises and
improvements thereon during the term or any renewal or extension
hereof. The above referenced covenants shall apply only to the
Tenant hereunder and shall not be assignable to any assignee or subtenant
under this Lease, should Landlord permit such an
event.
|
39.
|
Agents, Brokers,
etc. Not
applicable.
|
40.
|
Lease
Status. Within five (5) days after a request of
Landlord, Tenant will execute, acknowledge and deliver to Landlord an
instrument prepared by Landlord, stating, if the same by true, that this
Lease is a true and exact copy of the lease between the parties hereto,
that there are no amendments hereof (or stating what amendments there may
be), that the same is then in full force and effect and that, to the best
of Tenant’s knowledge, there are then no offsets, defenses or
counterclaims with respect to the payment of rent reserved hereunder or in
the performance of the other terms, covenants and conditions hereof on the
part of Tenant to be performed, and that as of such date no default has
been declared hereunder by either party hereto and that Tenant at the time
has no knowledge of any facts or circumstances which it might reasonably
believe would give rise to a default by either party. Tenant’s
failure to execute such statement within the time period set forth herein
shall be deemed that the Lease is in full force and effect and that there
are no offsets, defenses or counter claims with respect to
Landlord. Tenant hereby acknowledges that said certificate may
be relied upon by any existing or prospective lender or
purchaser.
|
41.
|
Recording. Tenant
shall not record this Lease without the written consent of Landlord,
however, upon the request of either party hereto, the other party shall
join in the execution of a memorandum or so-called short form of this
Lease for the purpose of recordation. Said memorandum or short
form of this Lease shall describe the parties, the Leased Premises and the
term of this Lease and shall incorporate this Lease by
reference. Upon such a request by Tenant, Tenant shall execute
a quit claim deed in favor of Landlord or such other instrument as
Landlord may designate upon the expiration or sooner termination of this
Lease.
|
42.
|
Force
Majeure. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act
required hereunder (other than the performance of monetary obligations) by
reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrections, war or other reason of a like nature not the fault
of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of delay and the period for the performance of any such excuse
Tenant from the prompt payment of rent, additional rent or any other
payments required by the terms of this
Lease.
|
43.
|
Mortgagee Protection
Clause. Tenant agrees to give any mortgagees and/or
trust deed holders, by registered mail, a copy of any notice of default
served upon Landlord provided that prior to such notice Tenant has been
notified, in writing (by way of notice of assignment of rents and leases
or otherwise) of the address of such mortgagees and/or trust deed
holders. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease,
then the mortgagees and/or trust deed holder shall have an additional 30
days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary, if within
such 30 days, any mortgages and/or trust deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default
(including, but not limited to commencement of foreclosure proceedings, if
necessary to effect such cute) this Lease shall not be terminated while
such remedies are being so diligently
pursued.
|
44.
|
Captions. Captions
throughout this instrument are for convenience of reference only and the
words contained therein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction or meaning of the
provisions of this Lease.
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45.
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Partial
Invalidity. If any term or provision of this Lease or
application thereof shall in any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to
the persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
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46.
|
Governing
Law. This Lease shall be governed by the laws of the
State of Utah.
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47.
|
Entire
Agreement. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provision of
this Lease may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in
interest. This Lease shall not be effective or binding on any
party until fully executed by both parties
hereto.
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48.
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Option. Tenant
shall have one (1) option to extend the term for an additional period of
five (5) years with a base rent as
follows:
|
December
1, 2010 – November 30, 2011
|
$5,684
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December
1, 2011 – November 30, 2012
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$5,854
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December
1, 2012 – November 30, 2013
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$6.030
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December
1, 2013 – November 30, 2014
|
$6,210
|
December
1, 2014 – November 30, 2015
|
$6,397
|
IN
WITNESS WHEREOF the parties hereto have executed this Lease agreement on the day
and year first above mentioned, the corporate party or parties by its or their
property officers duly authorized hereunto.
TENANT: | LANDLORD: |
VOLU-SOL
REAGENTS INC.
|
RJF
COMPANY, LTD.,
|
A
Utah limited partnership
|
|
By: /s/
Xxxxxxx X. Xxxxx
|
By:______________________
|
Its: CFO______ ___
|
Its:
______________________
|
ATTEST:
|
|
By:___________________
|
|
Its:___________________
|