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EXHIBIT 10.5
STANDARD INDUSTRIAL LEASE
Lease Date: November 16, 1998
Lessor: XXXX INLET REGION, INC.
AN ALASKA CORPORATION
DBA: WEST VALLEY BUSINESS PARK
Lessee: L.L. XXXXX INTERNATIONAL
A WASHINGTON CORPORATION
1. LEASE TERMS.
1.01 "Premises": That certain space containing approximately 4,200
rentable square feet, located in the area shown on the Site Plan
attached hereto as Exhibit A and more particularly described in
the Space Plan attached hereto as Exhibit A-1. The address of the
Premises is: 00000 X. Xxxxxx Xxx, Xxxxx X-000,XXXX,XXXXXXXXXX.
1.02 Project: The Project consists of approximately 205,655 rentable
square feet.
1.03 "Lessee's Notice Address": Lessee's Notice Address is the address
of the leased Premises as defined in paragraph 1.01 unless
otherwise specified here:
1.04 "Lessor's Notice Address": Lessor's Notice Address is: 0000 X.
000XX, XXX X000, XXXX, XX. 00000
1.05 "Lessee's Permitted Use": General Office.
1.06 "Lease Term": The Lease Term shall commence on January 1, 1999
and ends on February 29, 2004 (the "Expiration Date") (62 months,
and 0 days).
1.07 "Base Monthly Rent": $0 for months 1 through 2, payable in lawful
money of the United States of America, and increased pursuant to
the Base Monthly Rent Increase in accordance with the provisions
of this Lease.
1.08 "Base Monthly Rent Increase": Base Monthly Rent shall increase as
follows:
Effective Date New Monthly Rent
-------------- ----------------
Months 1 through 2 Rent Free
Months 3 through 14 $ 2,960
Months 15 through 26 $ 3,160
Months 27 through 38 $ 3,560
Months 39 through 50 $ 3,960
Months 51 through 62 $ 4,360
1.09 "Security Deposit": $3,800.00
"Lessee's Proportionate Share": ___.02 %, as of date of execution of this Lease.
The parties acknowledge that Lessee's Proportionate Share
has been calculated by dividing the approximate rentable
square footage of the Premises by the approximate rentable
square footage of the Project.
1.11 "Rent": Base Monthly Rent, Additional Rent and/or any other sum
required to be paid by Lessee to Lessor hereunder, whether or not
such sums are specifically designated as rent in any other
provision of this Lease.
1.12 "Project": The land, buildings, landscaping, parking and other
improvements comprising that certain business complex of which
the Premises are a part.
1.13 Lessee is entitled to 6 unreserved vehicle parking spaces,
subject to the provisions of Section 10. -
1.14 Attached Exhibits.
A: Site Plan
A-1: Space Plan
A-2: Legal Land Description
B: Work Letter
C: Signage Criteria
D: Rules and Regulations
2. DEMISE AND POSSESSION.
2.01 Demise. Lessor hereby leases to Lessee, and Lessee leases from
Lessor, the Premises for the Lease Term and upon and subject
to the terms, conditions and other provisions of this Lease.
Any statement of square footage set forth in this Lease, or
that may have been used in calculating any Rent due hereunder,
is an approximation which Lessor and Lessee agree is
reasonable and any Rent based thereon is not subject to
revision whether or not the actual square footage is more or
less.
2.02 Delay in Possession. If for any reason Lessor cannot deliver
possession of the Premises by the Commencement Date, Lessor
shall not be subject to any liability, nor shall the validity
of this Lease be affected. If Lessee has not contributed to
such delay there shall be a proportionate reduction of the
Base Monthly Rent covering the period between the Commencement
Date and the date Lessor actually tenders possession of the
Premises to Lessee. If the Premises have not been tendered to
Lessee on or before one hundred twenty (120) days from the
Commencement Date, then either Lessor or Lessee shall have the
right to terminate this Lease upon written notice to the other
(provided that the party giving such notice has not been the
cause of the delay).
2.03 Condition and Disclosure. Lessee acknowledges that it has
examined the Premises and accepts the Premises "as is" and in
its present condition, subject to any work described as
"Lessor's Work" to be performed by Lessor in accordance with
the terms and provisions of the Work Letter attached hereto as
Exhibit X. Xxxxxx makes no representation or warranty
whatsoever, express or implied, concerning the fitness or
suitability of the Premises or the Project for the conduct of
Lessee's business or for any other reason. Lessee acknowledges
that Lessee has made such investigations as it deems
reasonable and necessary with reference to such matters and
assumes all responsibility therefor as the same relate to
Lessee's use and occupancy of the Premises and the Project.
3. BASE MONTHLY RENT.
3.01 Base Monthly Rent. In advance, on the first day of each
calendar month of the Lease Term, Lessee shall pay, without
deduction or offset, prior notice or demand, Base Monthly Rent
at the place designated by Lessor, provided that Base Monthly
Rent for the third month of the Lease Term is due and payable
upon execution of this Lease. In the event that the Lease Term
commences or ends on a day other than the first day of a
calendar month, a prorated amount of Base Monthly Rent shall
be due for each such month, calculated using a thirty (30) day
month. Lessee's obligation to pay rent to the Lessor is
independent of any and all other obligations between the
Lessee and the Lessor arising under this Lease Agreement or
arising out of matters outside of this Lease Agreement.
3.02 Rent Adjustments. The Base Monthly Rent is subject to increase
in accordance with the Base Monthly Rent Increases set forth
in Section 1.08.
3.03 Late Charges. Any rent which is not paid when due shall be
deemed to be late, and if any rent is not paid within ten (10)
days after it becomes due Lessee shall pay to Lessor as
Additional Rent a late charge equal to ten percent (10%) of
the amount of such late rent or the sum of Fifty Dollars
($50.00), whichever is greater, for each month or fractional
month from the date due until paid. A Twenty-Five Dollar
($25.00) handling charge shall be paid by Lessee to Lessor for
each returned check and, thereafter, Lessee shall pay all
future payments of rent or other charges due by money order or
cashier's check. Lessor and Lessee agree that in the event of
late rent payments or returned checks, Lessor shall incur
damages, the exact of amount of which are extremely difficult
or impossible to ascertain, and that the late charges and
handling charges described herein are not penalties but are a
reasonable approximation of the actual amount of such damages.
3.04 Construction Obligations. The amount of Base Monthly Rent may
include the projected cost of construction of Lessee's
improvements as indicated on Exhibit B attached hereto. In the
event that Lessee requests Lessor to construct additional
improvements or if the final construction costs exceed the
original estimates, such costs or expenses, upon itemized
notice by Lessor, shall be paid by Lessee to Lessor, or Lessor
may in its sole and absolute discretion increase the Base
Monthly Rent according to the terms and conditions outlined on
Exhibit B or elsewhere in this Lease.
4. COMMON AREAS.
4.01 Definition. "Entire Premises": The Premises, the Project (of
which the Premises are a part), the Common Areas, the land
upon which the Project and the Common Areas are located, along
with all other improvements and facilities thereon are
collectively referred to as the "Entire Premises".
4.02 "Common Areas": As used in this Lease, the term "Common Area"
means all areas and facilities outside the Premises and within
the exterior boundary line of the Project that are provided
and designated by Lessor from time to time for the
non-exclusive use of Lessor, Lessee and other lessees in the
Project and their respective agents, employees, contractors,
and invitees. Common Areas include, without limitation, all
parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, driveways, corridors,
landscaped areas and restrooms on the Project.
4.03 Rights of Lessee. During the term of this Lease, Lessee, its
employees, agents, contractors, customers and invitees shall
have the non-exclusive right, in common with Lessor, other
lessees, and their respective employees, agents, contractors,
customers and invitees, to the use of the Common Areas. Lessee
agrees to abide by and conform to, and to cause its employees,
agents, contractors, customers and invitees to abide by and
conform to all rules and regulations governing the Common
Areas which Lessor may impose from time to time.
4.04 Rights of Lessor. Lessor reserves to itself the right, from
time to time and in Lessor's sole discretion, to make changes
to any or all of the Common Areas, including, without
limitation, the size, shape, number and location of driveways,
entrances, parking areas and walkways; to close temporarily
any of the Common Areas for maintenance purposes, so long as
reasonable access to the Premises remains available; to
construct or demolish improvement in the Common Areas; to use
the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project or any
portion thereof; and to do and perform any other acts in, or
make any other changes to, the Common Areas, which Lessor in
the exercise of its sound business judgment deems to be
appropriate.
5. ADDITIONAL RENT.
5.01 Definition. All charges payable by Lessee hereunder other than
Base Monthly Rent shall be deemed to be "Additional Rent," and
considered rent reserved under this Lease Agreement. Unless
this Lease provides otherwise, Additional Rent shall be due
and payable with the next monthly installment of Base Monthly
Rent and is subject to the provisions of Paragraph 3.03
hereof.
5.02 Operating Expenses.
(a) Lessee shall pay to Lessor on a monthly basis, in advance
and concurrently with Lessee's payment of Base Monthly Rent,
Lessee's Proportionate Share of Operating Costs as the same
shall be reasonably estimated by Lessor from time to time.
Lessor shall endeavor to provide Lessee, on or before April
1 of each year, with a statement setting forth the actual
Operating Costs for the previous calendar year and the
estimated Operating Costs for the current calendar year. In
the event the amount paid by Lessee in the previous year as
Lessee's Proportionate Share is less than Lessee's
Proportionate Share of the actual Operating Costs for such
period, such difference shall be payable by Lessee to Lessor
concurrently with the installment of Base Monthly Rent next
coming due. If the amount paid by Lessee in the previous
year as Lessee's Proportionate Share is more than Lessee's
Proportionate Share of the actual Operating Costs for such
period, such difference shall be credited by Lessor against
Lessee's Proportionate Share of Operating Costs next coming
due. Any failure by Lessor to provide Lessee with the above
described statement of Operating Costs shall not constitute
a waiver by Lessor of Lessor's right to collect Lessee's
Proportionate Share of Operating Costs.
As used herein, the term "Operating Costs" shall mean all costs and
expenses of ownership, operation, maintenance, management, repair and
insurance of the Project, including, but not limited to, the costs of
the following: all supplies, materials, labor and equipment, used in
or related to the operation and maintenance of the Project; all
utilities, including, but not limited to, water, electricity, gas,
heating, lighting, sewer, waste disposal,
security, air-conditioning and ventilating costs and all charges
relating to the use, ownership or operation of the Project; all
maintenance, management, janitorial and service agreements related to
the Project; all legal and accounting services; all business license
and similar fees; all insurance including, but not limited to, the
premiums and any other costs of fire, casualty and liability coverage,
rent abatement and earthquake insurance and any other type of
insurance related to the Project; all maintenance relating to the
public and service areas within and around the Project, including, but
not limited to, the Common Areas, sidewalks, landscaping, service
areas, driveways, parking areas, walkways, building exteriors
(including painting), roofs, signs and directories, including, for
example, costs of resurfacing and restriping parking areas;
amortization (along with reasonable financing charges) of capital
improvements made to the Project which may be required by any
government authority or which shall improve the operating efficiency
of the Project, including, without limitation, all expenses associated
with fire and life safety retrofitting; all Lessor's costs in
managing, maintaining, repairing, operating and insuring the Project,
including for example, clerical, supervisory and janitorial staff, and
a supervision fee equal to five percent (5%) of the amount of all of
the foregoing Operating Costs; however, Operating Costs shall not
include depreciation on the Project, loan payments, executive salaries
or real estate broker commissions.
Lessee shall be directly responsible for the cost associated with all
HVAC units and related equipment serving the Premises. All repair
invoices associated to the premises will be the responsibility of the
Lessee which costs will not be included in operating costs. Lessor
may, at its option, enter into a service agreement to maintain the
HVAC units per manufacturers recommendation, the cost of which shall
be passed through and borne by Lessee as operating cost. The cost of
such HVAC service agreement shall be competitively bid with qualified
contractors Lessor chooses, with the lowest bid being selected.
Notwithstanding the foregoing, in the event Lessor installs equipment
in or makes improvements or alterations to the Project which are for
the purpose of reducing energy costs, maintenance costs or other
Operating Costs or which are required under any governmental laws,
regulations or ordinances which were not required at the date of
commencement of the term of this Lease, Lessor may include in
Operating Costs reasonable charges for interest, not to exceed twelve
percent per annum, on such investment and reasonable charges for
depreciation on the same so as to amortize such investment over the
reasonable life of such equipment, improvement or alteration on a
straight line basis.
Failure by Lessor to provide Lessee with a statement by April 1st of
each year shall not constitute a waiver by Lessor of its right to
collect Lessee's share of Operating Costs. In addition, if for any
reason Lessor should not elect to xxxx Lessee for lump sum Operating
Costs or estimates for a particular calendar year, Lessor's right to
charge Lessee for such expenses in subsequent years in not waived.
* TRIPLE NET EXPENSES ARE ESTIMATED TO BE $.20 SQ. FT.
5.03 Taxes.
(a) As used herein, the term "Real Property Taxes" includes (i)
real estate taxes, general and special assessments, license
fees, license taxes, business license fees, commercial
rental taxes, transit charges or taxes, levies and charges,
and any penalties imposed by any taxing authority against
the Project; (ii) any taxes or fees on Lessor's right to
receive, or the receipt of, rent or income from the Project
or against Lessor's business of leasing and operating of the
Project; (iii) any taxes or charges for fire protection,
streets, sidewalks, road maintenance, refuse or other
services provided to the Project by any governmental agency;
(iv) any taxes imposed upon this transaction, or based upon
a reassessment of the Project due to a change in ownership
or transfer of all or part of Lessor's interest in the
Project; and (v) any charges or fees replacing, substituting
for, or in addition to any of the foregoing impositions
previously included within the definition of Real Property
Taxes. Real Property Taxes do not, however, include Lessor's
federal or state income, franchise, inheritance or estate
taxes.
Following the end of each tax year, Lessor shall provide Lessee a
statement of the actual Real Property Taxes, but failure to do so by
Lessor shall not constitute a waiver of Lessor's right to collect
Lessee's share of any Real Property Taxes. Upon receipt of the
statement, Lessee shall pay in full Lessee's Proportionate Share of
the Real Property Taxes. At Lessor's sole discretion, Lessor may
charge Lessee:
Estimated Real Property Taxes and such estimates shall be calculated
and paid in a manner similar to that described above for Operating
Costs estimates. Should the Lease Term expire before Lessor is able to
determine the actual Real Property Taxes for the last tax year of the
Lease, Lessor shall estimate Lessee's Proportionate Share thereof, and
Lessee shall pay the estimated amount upon demand by Lessor. If any
estimate by Lessor which has been paid by Lessee exceeds the actual
amount of Lessee's Proportionate Share of Real Property Taxes, such
difference shall be credited by Lessor against Lessee's future Real
Property Tax obligation, or, if at after the expiration of the Lease,
shall be refunded to Lessee within thirty (30) days following
determination of the actual amount of Real Property Taxes. If such
estimate is less than the actual amount of Lessee's Proportionate
Share of Real Property Taxes, Lessee shall pay such difference to
Lessor with the next installment of Base Monthly Rent, or, if at after
the expiration of the Lease, shall be paid to Lessor within thirty
(30) days following Lessor's notice to Lessee of such difference.
5.04 Personal Property Taxes. Lessee shall pay all taxes charged
against trade fixtures, furnishings, equipment or any other
personal property belonging to Lessee. Lessee shall have all
personal property taxes billed separately from the Project. If
any of Lessee's personal property is taxed with the Project,
Lessee shall pay Lessor the taxes for the personal property
upon demand by Lessor.
5.05 Other Impositions. Lessee agrees to pay as Additional Rent to
Lessor Lessee's share of any parking charges, utility
surcharges, occupancy taxes, or any other costs resulting from
the statutes or regulations, or interpretations thereof,
enacted by any governmental authority in connection with the
use or occupancy of the Project or the parking facilities
serving the Project, or any part thereof.
5.06 Place of Payment. All rent shall be paid by Lessee to Lessor
at Lessor's Notice Address or mailed directly to:
Dept 154-190
P.O. Box. 34935
Xxxxxxx, XX 00000-0000
6. SECURITY DEPOSIT.
6.01 Concurrently with the execution of this Lease, Lessee shall
pay the Security Deposit to Lessor as security for the
faithful performance by Lessee of all of the terms, covenants,
conditions and agreements of this Lease. If Lessee defaults
with respect to any provision of this Lease, Lessor may
retain, use or apply all or any part of the Security Deposit
to compensate Lessor for any loss or damage suffered by
Lessee's default including, but not limited to, the failure of
Lessee to pay
any rent due hereunder, and for the repayment of amounts
Lessor is obligated to spend by reason of Lessee's default. If
any portion is so retained, used or applied, Lessee, upon
demand, shall deposit with Lessor an amount sufficient to
restore the Security Deposit to the original amount plus any
increased amounts as required by this Lease. Lessor shall not
be required to keep the Security Deposit separate from its
general funds, and Lessee shall not be entitled to interest on
it. If Lessee fully and faithfully performs every provision of
this Lease, the Security Deposit shall be returned to Lessee
after the expiration of the Lease Term and the surrender of
the Premises. In no event shall Lessee have the right to apply
any part of the Security Deposit to any rent payable under
this Lease. At the same time the Base Monthly Rent is
increased, the Security Deposit shall also be increased by a
like amount and the deficiency shall be due concurrently with
the next payment of Base Monthly Rent.
7. LEASE DOCUMENTATION FEE.
7.1 For expenses incurred related to an assignment or subletting
as contemplated by this Lease including, but not limited to,
administration costs and credit verification, Lessee shall pay
to Lessor upon application for assignment or subletting, a
minimum processing fee of Two Hundred Fifty Dollars ($250.00).
Lessee shall also pay Lessor, as a condition to any sublease
or assignment becoming effective, all reasonable attorneys
fees and costs incurred in connection with such review.
8. USE OF PREMISES.
8.01 Permitted Use. The Premises may be used and occupied only for
Lessee's Permitted Use and for no other purpose. Lessee shall
not use the Premises or any portion of the Project in any
manner which will violate any covenants, conditions and
restrictions and any federal, state and local laws,
ordinances, orders and regulations, including, without
limitation, the Americans with Disabilities Act, (collectively
"Laws") affecting the Premises and the Project. Lessee shall
at all times during the term hereof promptly comply with all
Laws affecting the Premises and the Project; provided,
however, that if any such Laws require new construction or
installation in the Premises or in the Project, which are not
specifically required as a result of the use of the Premises
or the Project by Lessee or any assignee or sublessee of
Lessee, Lessee shall not be required to perform or pay for
such construction or installations (except to the extent that
the cost of such construction or installations may be deemed
to be an Operating Cost hereunder, in which case, Lessee shall
pay Lessee's proportionate share of such cost).
Notwithstanding the foregoing, to the extent that any
construction or installations to the Premises or the Project
are required by any Laws as a result of the use of the
Premises or the Project by Lessee or any assignee or sublessee
of Lessee, then Lessee shall, at its sole cost and expense,
(i) immediately notify Lessor in writing of all actions
necessary to comply with such Laws, and (ii) if such action is
required in the Premises, promptly take all such action
subject to the provisions of this Lease governing the making
of alterations. If any such action is required outside the
Premises, Lessor shall have the option to perform such
construction or installations and to be reimbursed therefore
by Lessee.
Lessee shall not perform any act or carry on any practices
that may injure the Project or the Premises or that may be a
nuisance or menace, or that may disturb the quiet enjoyment of
other occupants in the Project including, but not limited to,
any act or practice resulting in the picketing of the Project
or Premises by any person, the use of equipment which causes
vibration, the use or storage of chemicals, or the generation
of heat or noise which is not, in Lessor's sole opinion,
properly insulated. Lessee shall not cause, maintain or permit
any outside storage on or about the Project. In addition,
Lessee shall not perform any work or conduct any business
whatsoever in the Project, outside the premises, or allow any
condition or thing to remain on or about the Premises which
diminishes the appearance or aesthetic qualities of the
Premises and/or the Project and/or the surrounding property.
Lessee shall not allow any animal to be brought upon the
Project by its agents, employees, contractors or invitees.
8.02 Hazardous Substances.
(a) Definitions. For purposes of this Lease, the following terms
shall have the respective meanings indicated:
(i) "Hazardous Substances" shall include, but not be
limited to, substances defined as "hazardous
substances," "hazardous materials," "toxic substances,"
"infectious waste," or any similar substance as defined
and used in any federal, state or local environmental
control, health, or safety laws applicable to the
Premises or the Project (collectively, the
"Environmental Laws"), including the regulations
adopted or publications promulgated pursuant to any
such laws, and any other legal requirements, as they
may be amended from time to time.
(b) Lessee shall not introduce any Hazardous Materials onto the
Project, without the prior specific written consent of
Lessor, which Lessor may withhold in its sole and absolute
discretion, and Lessee shall comply with all applicable
legal requirements pertaining to the storage, handling, use
or disposal of any Hazardous Substances.
(c) Upon written request from time to time, Lessee shall
promptly provide to Lessor the following information
pertaining to all operations conducted in, on or about the
Premises:
(i) Copies of all permits obtained from any local, state or
federal agency or other authority;
(ii) Material safety data sheets for all chemicals in use
at, manufactured at, imported to or stored at the
Premises;
(iii)Copies of all materials filed with the Federal
Occupational Safety and Health Agency under the OSHA
Hazardous Communication Standard and all materials
filed with the Department of Health, Department of
Environmental Protection of any other federal, state or
local agency or entity;
Maps, diagrams and site plans showing the location of all
storage areas and containers for Hazardous Substances
including details as to the amounts stored or used;
(v) A description of the operations conducted on the
Premises and their processes;
(vi) A copy of any and all contracts entered into by Lessee
for the removal, transportation and/or disposal of any
Hazardous Materials from the Premises (if Lessee
directly or indirectly causes any Hazardous Materials
to be located on the Project, Lessee shall promptly
enter into such a contract for removal and proper
disposal thereof); and
(vii)Any other information that Lessor may reasonably
require.
The requirement to furnish information concerning Hazardous
Materials shall not be construed as meaning there are no
restrictions on the Hazardous Materials that may be stored
or used at the Premises.
(d) In the event the Hazardous Substances are discovered upon,
in, or under the Project, and the applicable governmental
agency or entity having jurisdiction over the Project
requires the removal of such Hazardous Substances, Lessee
shall be responsible for removing those Hazardous Substances
arising out of or related to the use or occupancy of the
Premises and/or the Project by Lessee or its agents,
affiliates, customers, employees, business associates or
assigns but not those of its predecessors. Notwithstanding
the foregoing, Lessee shall not take any remedial action in
or about the Premises or the Project, or enter into any
settlement agreement, consent decree or other compromise
with respect to any claims relating to any Hazardous
Substance in any way connected with the Premises or the
Project without first notifying Lessor of Lessee's intention
to do so and affording Lessor the opportunity to appear,
intervene or otherwise appropriately assert and protect
Lessor's interest with respect thereto. Lessee shall
immediately notify Lessor in writing of: (i) any spill,
release, discharge or disposal of any Hazardous Substance
in, on or under the Premises, the Project or any portion
thereof, (ii) any enforcement, cleanup, removal or other
governmental or regulatory action instituted, contemplated,
or threatened pursuant to any Environmental Laws, (iii) any
claim made or threatened by any person against Lessee, the
Premises, or the Project relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Substances; and (iv)
any reports made to any environmental agency arising out of
or in connection with any Hazardous Substances in, on or
removed from the Premises or the Project, including any
complaints, notices, warnings, reports or asserted
violations in connection therewith.
(e) Lessor shall have the right, in its sole discretion, to
require Lessee, at Lessee's sole cost and expense, to
undertake and submit to Lessor a periodic environmental
audit from an environmental company approved by Lessor,
which audit shall cover Lessee's compliance with this
Section 8.02. An environmental audit shall be conducted, at
Lessee's sole cost and expense, in connection with Lessee's
surrender of the Premises at the expiration or earlier
termination of the Lease. Lessee shall promptly comply with
all requirements of such audit and cure all matters raised
therein at Lessee's sole cost. Lessee also agrees to comply
with Lessor's request for additional information including
questionnaires, necessary to assure Lessor of Lessee's
compliance with the provisions of this Section 8.02.
(f) Lessee shall indemnify, protect, defend (with counsel chosen
by Lessor) and hold harmless Lessor, Lessor's affiliates,
and their partners, officers, directors, employees, agents
(including any managing agent of the Project) and other
representatives, and their successors and assigns, from and
against any and all claims, demands, actions or liabilities
for, and any and all loss or cost (including legal fees and
expenses) in connection with (i) any injury, death, or
damage, whether alleged or proven, direct or
consequential, foreseeable or unforeseeable, directly or
indirectly arising out of or related to the presence, use,
generation, storage, discharge, spillage, seepage or
disposal of Hazardous Substances by or with the knowledge or
consent of Lessee or its officers, directors, employees,
agents or representatives, and (ii) any required or
necessary removal, repair, clean up or detoxification
directly or indirectly arising out of or related to the
presence, use, generation, storage, discharge, spillage,
seepage or disposal of Hazardous Substances on, under or
about the Premises during the Lease Term.
(g) Throughout the Lease Term (and for any other period Lessee
or its successors and assigns may occupy all or part of the
Premises), Lessee shall post, publish, or otherwise give
notice of the existence of asbestos, asbestos-containing
materials, tobacco and tobacco smoke, and all other
Hazardous Substances in or about the Premises or the
Project, in accordance with all applicable legal
requirements, to Lessee's employees, contractors, visitors,
and invitees and any others who may be entitled to notice
under applicable legal requirements.
(h) All representations, warranties, covenants and other
obligations of Lessee with respect to Hazardous Substances
shall survive the expiration or earlier termination of this
Lease.
9. TENANT IMPROVEMENTS.
9.01 Any Tenant Improvements to be performed in the Premises
("Tenant Improvements") shall be performed in accordance with
the terms, conditions and other provisions of the Work Letter
attached hereto as Exhibit B. Except for that work designated
in the Work Letter as "Lessor's Work," Lessor shall be under
no obligation to alter, improve or otherwise perform any work
in the Premises prior to or during the Lease Term.
10. PARKING.
Lessee and Lessee's customers, suppliers, employees, and invitees
have the non-exclusive right to park in common with other
lessees and/or persons in the parking facilities as designated
by Lessor. In Lessors sole discretion Lessee shall not
overburden the parking facilities and shall cooperate with
Lessor and/or other lessees and persons in the use of the
parking facilities. Lessor reserves the right to assign
specific spaces and/or charge Lessee therefor as Additional
Rent, to make changes in the parking layout from time to time,
to designate specific areas for Lessee employee's parking and
to establish reasonable time limits on parking.
11. LESSOR'S RIGHTS.
11.01 All portions of the Project not within the Premises are
reserved to Lessor. Lessor also reserves to itself the use of
and access through the Premises to all spaces in or adjacent
to the Premises which are used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sink
or other building facilities, for the purpose of operating,
maintaining, repairing and/or replacing the same. Without
limiting the generality of the foregoing, Lessor shall have
the right, without notice or liability to Lessee for damage or
injury to property, persons or business, and without effecting
an eviction or disturbance of Lessee's use or possession or
giving rise to any claim for setoffs or abatement of rent, to
(i) change the location and/or arrangement of, and/or to
otherwise alter, plazas, entrances, passageways, doors,
elevators, stairs, restroom facilities, and other public or
common portions of the buildings and property not within the
Premises, (ii) decorate, remodel, repair, alter, or otherwise
prepare the Premises for re-occupancy or other use at any time
after Lessee abandons the Premises, (iii) impose such controls
on the manner of access to the buildings as Lessor may deem
appropriate for the security of such buildings and their
occupants (but Lessor shall have no duty to do so), and (iv)
do or permit to be done any work in or about the exterior of
such buildings or any adjacent or nearby building, land,
street or alley.
12. UTILITIES.
12.01 Payments. Lessee shall pay for all water, gas, heat, light,
power, sewer, electricity, or other services metered,
chargeable to or provided to the Premises. Lessor reserves the
right to install separate meters for any such utility.
12.02 No Liability. Lessor shall not be liable or deemed to be in
default hereunder, nor shall there be any abatement of rent
for any interruption or reduction of utilities (including
telephone service) or services to the Project or the Premises.
Lessee agrees to comply with all energy conservation programs
implemented by Lessor.
12.03 Telephone Service. Lessee shall contract and pay for all
telephone and similar services for the Premises subject to the
provisions of this Lease.
13. ALTERATIONS: MECHANIC'S LIENS.
13.01 Alteration. Lessee shall not make any alterations to the
Premises without Lessor's prior written consent, which shall
not be unreasonably withheld. Lessor's approval shall be
deemed not to have been unreasonably withheld if Lessor
refuses to grant approval because (i) Lessee's proposed
alterations would potentially disturb any asbestos or
Hazardous Substances in the Project, or (ii)Lessee's proposed
alterations would affect any roof, foundation or other
structural or mechanical system of the Project, would alter
any common area in the Project, would be visible from the
exterior of the Premises, or would fail to comply with any
design criteria uniformly applied to the majority of lessees
in the Project. Lessee shall have no right whatsoever to make
any alterations to any portion of the Project other than the
Premises. In the event Lessor gives its consent, no such
alterations shall proceed without Lessor's prior written
approval of (i) Lessee's contractor; (ii) insurance policies,
or other evidence acceptable to Lessor of the existence of
insurance coverage in favor of Lessee's contract, for public
liability including bodily injury any property damage with a
combined single limit of not less than $1,000,000 for
automobile liability, including owned, non-owned and hired
vehicles, with a limit of not less than $500,000 per
occurrence, each of the preceding policies to be endorsed to
name Lessor as an additional insured, for worker's
compensation in the limits required by law, and for employer's
liability with limits not less than $1,000,000; and (iii)
detailed plans and specifications for such work. Lessee shall
reimburse Lessor upon demand for all fees and other costs
incurred by lessor including, without limitation, any fees of
consulting architects, engineers or the like, and of any
managing agent for the review of proposed plans, whether or
not approved, including, without limitation, if the work is
approved, a fee (the "Work Review Fee") equal to five percent
(5%) of the construction cost of the work (including the value
of any change orders) to reimburse Lessor for the cost of
supervising Lessee's work. Lessor's approval of the plans,
specifications and working drawings for Lessee's alterations
shall create no responsibility or liability on the part of
Lessor for their completeness, design sufficiency or
compliance with all laws, rules and regulations of
governmental agencies or authorities. The Work Review Fee
shall be estimated and paid to Lessor prior to the
commencement of any alterations work. If the actual cost to
construct the work exceeds the initial estimate, the Work
Review Fee shall be increased accordingly, and such increase
shall be paid to Lessor upon demand. Before any alterations
may begin, valid building permits or other required permits or
licenses must be furnished to Lessor, and, once the
alterations begin, Lessee shall diligently and continuously
pursue their completion. At Lessor's option, any alterations
may become part of the realty and belong to Lessor. If
requested by Lessor, Lessee shall pay, prior to the
commencement of construction, an amount determined by Lessor
necessary to cover the costs of demolishing such alterations
and/or the cost if returning the Premises to their condition
before such alterations. Lessor may also require Lessee to
provide Lessor, at Lessee's sole cost and expense, a payment
and performance bond in form acceptable to Lessor, in a
principle amount not less than one and one-half times the
estimated costs of such alterations, to ensure Lessor against
any liability for mechanic's and materialmen's liens and to
insure completion of work.
13.02 Trade Fixtures. Notwithstanding anything to the contrary in
Section 13.01 above, Lessee may, with prior written consent of
Lessor, install trade fixtures, equipment, and machinery in
conformity with all applicable laws, and such fixture shall,
at the option of Lessor, be removed upon termination of this
Lease and the Premises shall be restored to their original
condition, except for reasonable wear and tear. Lessee shall
repair any damages to the Premises occasioned by the removal
of such fixtures.
13.03 Telephones. Private telephone systems and/or other related
telecommunications equipment and lines may be installed as
necessary to conduct Lessee's Permitted Use. Lessee shall not,
however, proceed with any such installations without first
obtaining written approval from Lessor's construction manager.
All private telephone equipment shall be installed entirely
within the interior of the Premises. Prior to the expiration
of the Lease Term, all such equipment shall
be removed and the Premises restored to substantially the same
condition as before such installation.
13.04 Cost and Liens. Lessee shall pay when due all costs for
alterations and shall keep the Premises, the Project and the
underlying property free from any liens arising out of worked
performed for, materials furnished to or obligation incurred
by Lessee. Lessee shall give Lessor no less than three (3) and
no more than five (5) business day's prior written notice of
the date such alterations will commence, to enable Lessor to
post materials suppliers furnishing labor and materials in
connection with any such alterations, so as to avoid the
filing of any lien against the Premises or the Project. If any
such lien is filed, Lessee shall cause the same to be released
no later than ten (10) days following the filing thereof. If
Lessee fails to cause the release of any lien as provided
above, Lessor may pay the demand of the lien claimant in full
or otherwise cause the release of such lien, and Lessee shall
reimburse Lessor for all such costs upon demand.
13.05 Rights of Lessor. Lessor shall have the right to construct or
permit construction of tenant improvements in or about the
Project for existing and new lessees and to alter any public
areas in and around the Project. Notwithstanding anything in
this Lease to the contrary, no such construction shall be
deemed to constitute a breach of this Lease by Lessor and
Lessee waives any such claims which it might have arising from
any such construction.
14. FIRE INSURANCE; HAZARDS AND LIABILITY INSURANCE.
14.01 Use. Lessee shall not do or permit anything to be done within
or about the Premises which shall increase the existing rates
of insurance on the Project or cause the cancellation of any
insurance policy covering the Project. Nor shall Lessee keep,
use or sell, or permit anyone to keep, use or sell, any
article in or about the Premises, which may be prohibited by
the standard form of fire and other insurance policies. Lessee
shall, at its sole cost and expense, comply with any
requirements of any insurance organization insuring the
Project or any portion thereof. Lessee agrees to pay to
Lessor, as Additional Rent, any increases in premiums on
policies resulting from Lessee's Permitted Use or other use
consented to by Lessor which increases Lessor's premiums or
requires extended coverage by Lessor to insure the Premises.
14.02 Fire Insurance. Lessee, at all times during the term of this
Lease and at Lessee's sole expense, shall maintain a policy of
standard fire and extended coverage insurance with "all risk"
coverage on all Lessee's improvements and alterations in or
about the Premises and on all personal property and equipment
to the extent of their full replacement value. The proceeds
from this policy shall be used by Lessee for the replacement
of personal property and equipment and the restoration of
Lessee's improvements and/or alterations. This policy shall
contain an express waiver, in favor of Lessor, of any right of
subrogation by the insurer. Without limiting the generality of
any other waiver or release that may be contained in this
Lease, Lessee, on behalf of itself, its agents, directors,
officers, principals, employees, representatives and
successors and assigns, hereby releases Lessor, its agents,
directors, officers, principals, employees and representatives
of any claim that it might otherwise have against Lessor for
destruction, damage, or other loss with respect to Lessee's
property by fire or other cause as to which Lessee is required
to maintain insurance, whether or not such insurance is
actually maintained.
14.03 General Liability. Lessee, at all times during the term of
this Lease and at Lessee's sole expense, shall maintain a
policy of commercial general liability coverage with a
combined single limit of not less than $1,000,000 for bodily
injury and property damage insuring against all liability of
Lessee and its authorized representatives arising out of or in
connection with Lessee's use or occupancy of the Premises and
including contractual liability coverage for the
indemnification and other obligations of Lessee under this
Lease. This policy of insurance shall name Lessor and any
managing agent of the Project as an additional insured and
shall release Lessor and any managing agent of the Project
from any claims for damage to any person, any property, the
Premises, and the Project, and to Lessee's personal property,
equipment, improvements and alterations in or on the Premises
or the Project, caused by or resulting from risks which are to
be insured against by Lessee under this Lease.
14.04 Requirements. All insurance required to be provided by Lessee
under this Lease shall (a) be issued by insurance companies
authorized to do business in the state in which the Premises
are located, and maintaining during the policy term a "General
Policyholders Rating" of at least A-, Vl, or such other rating
as may be required by any Lender, as set forth in the most
current issue
of "Best's Insurance Guide," (b) be primary and
noncontributing with any insurance carried by Lessor, (c)
require a deductible of no more than $1,000, and (d) contain
an endorsement requiring at least thirty (30) days prior
written notice of cancellation to Lessor and any managing
agent before cancellation or change in coverage under any
policy. Lessee shall deliver a certificate of insurance or a
copy of the policy to Lessor prior to taking occupancy of the
Premises and shall provide evidence of renewed insurance
coverage prior to the expiration of any policies. No insurance
required or obtained by Lessee hereunder shall limit any
liabilities or obligations of Lessee to Lessor under this
Lease.
15. INDEMNIFICATION AND WAIVER OF CLAIMS.
15.01 Waiver. Lessee, on behalf of itself, its agents, principals,
employees, representatives, successors and assigns, hereby
releases Lessor and its agents, principals, employees,
representatives, successors and assigns, and waives all claims
against such parties for damage to any property in or about
the Premises or the Project and for injury to any persons,
including death resulting therefrom regardless of cause or
time of occurrence, except to the extent arising out of the
negligence or willful misconduct of Lessor or its authorized
agents.
15.02 Indemnification. Lessee shall defend, protect, indemnify and
hold Lessor, its agents, employees, principals,
representatives, successors and assigns, harmless from and
against any and all claims, actions, proceedings, expenses,
damages and liabilities, including attorneys' and consultants'
fees, arising out of, connected with, or resulting from any
use of the Project by Lessee, its agents, employees,
contractors, visitors or licensees, including, without
limitation, any failure of Lessee to comply fully with all of
the terms and conditions of this Lease.
15.03 Exemption of Landlord From Liability. Lessor shall not be
liable for injury or damage to the person or goods, wares,
merchandise or other personal property of Lessee, or that of
any employee, contractor, invitee or agent of Lessee, or of
any other person in the Project with or without the consent of
Lessee, whether such injury or damage is caused by or results
from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire
sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures, or from any other cause, whether the said
damage caused by persons on the Project with or without the
consent of Lessor or any other party, and regardless of
whether the means of repairing the same is accessible or not,
unless such injury or damage is caused by the negligence or
willful misconduct of Lessor or its authorized agents.
Notwithstanding Lessor's negligence or breach of this Lease,
Lessor shall under no circumstances be liable for injury to
Lessees business or for any loss of income or profit
therefrom.
16. REPAIRS.
16.01 In General. Lessee shall, at its sole cost, keep and maintain
the Premises and every part thereof including, without
limitation, interior windows, skylights, (including but not
limited to rollup doors), any store fronts and the interior of
the Premises, in good and sanitary order, condition and
repair. Lessee shall also at its sole cost keep and maintain
all utilities, fixtures, plumbing and mechanical equipment
used by Lessee in good order and repair and furnish all
expendables (e.g., light bulbs, paper goods, soaps, etc.) used
in the Premises. The standard for comparison and need of
repair will be the condition of the Premises at the
commencement of this Lease and all repairs shall be made by a
licensed and bonded contractor approved by Lessor.
16.02 Lessor's Rights. Lessee shall not make repairs to the Premises
at the cost of Lessor whether by reduction of rent or
otherwise; neither shall Lessee have any right to vacate the
Premises or terminate the Lease if repairs are not made. If
during the Lease Term, any alteration, addition or change to
the Premises is required by legal authorities, Lessee, at its
sole expense, shall promptly make the same. Lessor reserves
the right to make any such repairs not made or maintained in
good condition by Lessee and Lessee shall reimburse Lessor for
all such costs upon demand.
17. SALES: SIGNS.
17.01 Lessee shall not conduct or permit to be conducted any auction
or sale on the Premises or the Project. Lessor shall have the
exclusive right to control the placement, size, content and
quality of any signs, and Lessee shall comply with the terms
and conditions of the Sign Criteria set forth in Exhibit D
attached hereto. Lessee shall not place signs which are
visible from the outside of
any buildings of the Project. Any signs not in conformity with
this Lease or the Sign Criteria may be removed by Lessor at
Lessees expense.
18. ENTRY BY LESSOR.
18.01 In General. Lessor and Lessor's agents and contractors shall
have the right to enter the Premises at all reasonable times
for the purpose of inspecting the same, maintaining the
Project, or making repairs, alterations or additions to any
portion of the Project, including, without limitation, the
erection and maintenance of scaffolding, canopies, fences and
props, posting notices of non- responsibility, showing the
Premises to prospective tenants during the last six (6) months
of the Lease Term, or placing upon the Project any usual or
ordinary for sale signs, without any abatement of rent and
without any liability to Lessee for any loss of occupation or
quiet enjoyment of Premises thereby occasioned. Lessee shall
permit Lessor at any time within sixty (60) days prior to the
expiration of this Lease, to place upon the Premises any usual
or ordinary to let or to lease signs. Lessor shall at all
times have and retain a key with which to unlock all of the
doors in, upon and about the Premises, excluding Lessee s
vaults, safes and filing cabinets. Lessee shall not alter any
lock or install any new or additional lock or any bolt on any
door of the Premises without the prior written consent of
Lessor, which shall not be unreasonably withheld. If Lessor
gives its consent, such work shall be undertaken by a
locksmith approved by Lessor, at Lessee's sole cost, and
Lessee shall furnish Lessor with a key. Lessor retains the
right to charge Lessee for restoring any altered doors to
their condition at any time prior to or following the
installation of the new or additional locks.
19. ABANDONMENT.
19.01 Lessee shall not vacate or abandon the Premises at any time
during the Lease Term or permit the Premises to remain
unoccupied for a period longer than fifteen (15) consecutive
days during the Lease Term; provided, however, such action
shall not constitute a vacation or abandonment under this
Section if (i) Lessee provides Lessor thirty (30) days advance
written notice of such action, (ii) Lessee complies with all
of its obligations under this Lease, including, without
limitation the payment of all sums due hereunder, and (iii)
Lessee maintains and pays for all necessary utilities and
services in order to properly maintain the Premises. If Lessee
abandons, vacates or surrenders the Premises, or is
dispossessed by process of law, or otherwise, any personal
property belonging to Lessee left in or about the Premises
will, at the option of Lessor be deemed abandoned and may be
disposed of by Lessor in the manner provided for by the laws
of the state in which the Premises are located.
20. DAMAGE OR DESTRUCTION.
20.01 Definitions. The following terms shall have the meanings
hereinafter set forth:
(a) "Partial Damage" shall mean damage or destruction to
any improvements on the Project, other than those
owned by Lessee, which damage or destruction would,
in Lessor's judgment, require fewer than ninety (90)
days from the date such damage or destruction occurs
to repair or restore.
(b) "Total Destruction" shall mean damage or destruction
to the Project, other than to improvements owned by
Lessee, which damage or destruction would, in
Lessor's judgment, require longer than ninety (90)
days from the date such damage or destruction occurs
to repair or restore.
(c) "Insured Loss" shall mean damage or destruction to
improvements on the Project, other than to
improvements owned by Lessee, which was caused by an
event covered by the casualty insurance carried by
Lessor on the Project, irrespective of any deductible
amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost, at the time
of the occurrence of such damage or destruction, to
repair or rebuild the Project to its condition
existing immediately prior thereto, including,
without limitation, demolition, debris removal and
upgrading required by the operation of applicable
building codes, ordinances or laws, and without
deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the
occurrence or discovery of a condition involving the
presence of, or a contamination by, a Hazardous
Substance as defined in Section 8, hereof, on, under
or about any portion of the Project.
20.02 Partial Damage--Insured Loss. If any Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense,
repair such damage as soon as reasonably possible and this
Lease shall continue in full force and effect. Notwithstanding
the foregoing, if the insurance proceeds are not sufficient to
effect such repair, Lessor shall have no obligation to pay for
the shortage in insurance proceeds or to fully restore the
unique aspects of the Project unless Lessee provides Lessor
with the funds to cover same, or adequate assurance thereof,
within ten (10) days following receipt of written notice of
such shortage and request therefor. If Lessor receives said
funds or adequate assurance thereof within said ten (10) day
period, Lessor shall complete the repairs as soon as
reasonably possible and this Lease shall remain in full force
and effect. If Lessor does not receive such funds or assurance
within said period, Lessor may nevertheless elect by written
notice to Lessee within thirty (30) days thereafter to make
such restoration and repair as is commercially reasonable with
Lessor paying any shortage in proceeds, at Lessee's expense,
in which case this Lease shall remain in full force and
effect. If in such case Lessor does not so elect, then this
Lease shall terminate sixty (60) days following the occurrence
of the damage or destruction. Lessee shall in no event have
any right to reimbursement from Lessor for any destruction.
20.03 Partial Damage--Uninsured Loss. If Partial Damage that is not
an Insured Loss occurs, unless caused by a negligent or
willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense and this Lease shall continue in
full force and effect), Lessor may, at Lessor's option,
either: (i) repair such damage as soon as reasonably possible
at Lessor's expense, in which event this Lease shall continue
in full force and effect, or (ii) give written notice to
Lessee within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such damage of Lessor's desire
to terminate this Lease as of the date sixty (60) days
following the giving of such notice. In the event Lessor
elects to give such notice of Lessor's intention to terminate
this Lease, Lessee shall have the right within ten (10) days
after the receipt of such notice to give written notice to
Lessor of Lessee's commitment to pay for the repair of such
damage totally at Lessee's expense and without reimbursement
from Lessor. Lessee shall provide Lessor with the required
funds or satisfactory assurance thereof within thirty (30)
days following Lessee's said commitment. In such event this
Lessee shall continue in full force and effect, and Lessor
shall proceed to make such repairs as soon as possible and the
required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the
times specified above, this Lease shall terminate as of the
date specified in Lessor's notice to terminate.
20.04 Total Destruction. Notwithstanding any other provision hereof,
if a Premises Total Destruction occurs (including any
destruction required by and authorized public authority), this
Lease shall terminate sixty (60) days following the date of
such Premises Total Destruction, whether or not the damage or
destruction is an Insured Loss or was caused by a negligent of
willful act of Lessee. In the event, however, that the damage
or destruction was caused by Lessee, Lessor shall have the
right to recover Lessor's damages from Lessee.
20.05 Damage Near End of Term. If at any time during the last six
(6) months of the term of the Lease there is Partial Damage,
whether or not an Insured Loss, Lessor may, at Lessor's
option, terminate this Lease effective sixty (60) days
following the date of occurrence of such damage by giving
written notice to Lessee of Lessor's election to do so within
thirty (30) days after the date of occurrence of such damage.
Provided, however, if Lessee at that time has an exercisable
option to extend this Lease or to purchase the Premises, then
Lessee may preserve this Lease by, within twenty (20) days
following the date of occurrence of the damage, or before the
expiration of the time provided in such option for its
exercise, whichever is earlier ("Exercise Period"), (i)
exercising such option and (ii) providing Lessor with any
shortage in insurance proceeds (or adequate assurance thereof)
needed to make repairs. If Lessee duly exercises such option
during said Exercise Period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance
proceeds, Lessor shall, at Lessor's expense, repair such
damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise
such option and provide such funds or assurance during said
Exercise Period, then Lessor may at Lessor's option terminate
this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written
notice to Lessee of Lessor's
election to do so within ten (10) days after the expiration of
the Exercise Period, notwithstanding any term or provision in
the grant of option to the contrary.
20.06 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in Paragraph 20.02 above,
whether or not Lessor or Lessee repairs or restores the
Project, and provided that such damage or destruction was
not the fault of Lessee, the Base Monthly Rent and all other
charges payable by Lessee hereunder for the period during
which such damage, its repair or restoration continues,
shall be abated only to the extent that such damage or
destruction interferes with Lessee's ability to conduct
business in the Premises. Except for the abatement of rent
obligations hereunder, all other obligations of Lessee
hereunder shall be performed by Lessee, and Lessee shall
have no claim against Lessor for any damage suffered by
reason of any such repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Project under the provisions of this Section 20, and shall
not commence in a substantial and meaningful way, the repair
or restoration thereof within sixty (60) days after such
obligation shall accrue, and as a result thereof Lessee is
unable to conduct business in the Premises, Lessee may, at
any time prior to the commencement of such repair or
restoration, give written notice to Lessor and to any
mortgagee or beneficiary under any mortgage or deed of
trust, and any groundlessee under any groundlease,
encumbering the Project (jointly or severally herein, the
"Lenders" or a "Lender"), of which Lessee has actual notice,
of Lessee's election to terminate this Lease on a date not
less than sixty (60) days following the giving of such
notice. If Lessor or any Lender commences the repair or
restoration of the Premises within thirty (30) days after
receipt of such notice, this Lease shall terminate as of the
date specified in said notice. If Lessee gives such notice
to Lessor and such Lenders and such repair or restoration is
not commenced within thirty (30) days after receipt of such
notice, this Lease shall terminate as of the date specified
in said notice. If Lessor or any Lender commences the repair
or restoration of the Premises within thirty (30) days after
receipt of said notice, this Lease shall continue in full
force and effect. "Commence" as used in this Paragraph shall
mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the
actual work on the Premises, whichever first occurs.
20.07 Hazardous Substance Conditions. If a Hazardous Substance
Condition occurs and Lessee is not responsible to remediate
the same pursuant to Section 8 hereof, Lessor may, at Lessor's
option, either (i) give written notice to Lessee of Lessor's
intention to fund such remediation, in which event this Lease
shall continue in full force and effect, or (ii) give written
notice to Lessee of Lessor's election to terminate this Lease
as of the date sixty (60) days following the giving of such
notice. If Lessor elects to fund such remediation as provided
in (i) above, Lessor shall promptly commence the same. If a
Hazardous Substance Condition occurs and Lessee is not
responsible for remediation thereof pursuant to Section 8
hereof, Lessee's obligations under this Lease shall be abated
to the same extent as provided in Section 20.06 above.
20.08 Waiver Statutes. Lessor and Lessee agree that the terms of
this Lease shall govern the effect of any damage to or
destruction of the Premises or the Project with respect to the
termination of this Lease and hereby waive the provisions of
any present or future statute to the extent inconsistent
herewith.
21. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP.
21.01 No Transfer. Lessee shall not, without Lessor's prior written
consent, which shall not be unreasonably withheld, assign,
sell, mortgage, encumber, convey, or otherwise transfer all or
any part of Lessee's leasehold estate granted hereunder, or
permit the Premises to be occupied by anyone other than Lessee
and Lessee's employees, or sublet the Premises or any portion
thereof (collectively called "Transfer"). If Lessee is a
partnership or a corporation, any transfer of general
partnership interests or any transfer or issuance of stock
resulting in a change in control of Lessee, shall be deemed to
be an assignment hereunder.
21.02 Lessor's refusal to grant consent to any proposed Transfer
shall be deemed to have been reasonable if: (a) in the
reasonable judgment of Lessor the transferee is of a character
or is
engaged in a business which is not in keeping with the
standards of Lessor for the Project; (b) in the reasonable
judgment of Lessor any purpose for which the transferee
intends to use the Premises is not in keeping with the
standards of Lessor for the Project; provided in no event may
any purpose for which transferee intends to use the Premises
be in violation of this Lease; (c) the portion of the Premises
subject to the transfer is not regular in shape with
appropriate means of entering and exiting, including adherence
to any local, county or other governmental codes, or is not
otherwise suitable for the normal purposes associated with
such a Transfer; (d) Tenant is in default under this Lease or
any other lease with Lessor; (e) Lessee and/or the proposed
transferee provide or Lessor obtains evidence that
transferee's net worth or "Xxxxx'x rating" is less than the
net worth or "Xxxxx'x rating" of Lessee; (f) the proposed
transferee or its business is subject to compliance with
additional requirements of the law (including related
regulations) commonly known as the "Americans with
Disabilities Act" beyond those requirements which are
applicable to the tenant desiring to assign or sublease,
unless Lessee delivers to Lessor at the time of consent or
assignment an amount equal to the cost of constructing or
installing such improvements to the Premises or the Project as
may be required under the Americans with Disabilities Act as a
result of the proposed transferee being at the Premises; or
(g) the proposed transferee is an existing Lessee in the
Project, or is an individual or entity with whom Lessor is, at
the time such transfer is proposed, negotiating for the lease
of space in the Project, unless such proposed transferee
remains in its existing premises during the term of its
existing lease and any extensions to said lease then being
negotiated with Lessor.
21.03 Conditions. If Lessor elects to consider any proposed
assignment or subletting by Lessee, Lessor may require that,
as conditions precedent to such consideration of any proposed
assignment of Lessee's interest in this Lease, or any
subletting of the Premises, (i) at least thirty (30) days
prior to the proposed effective date of any such transfer,
Tenant shall provide Landlord with a statement containing (a)
the name and address of the proposed sublessee or assignee;
(b) a financial statement, prepared in accordance with
generally accepted accounting principles, of the proposed
assignee or sublessee containing bank and credit references;
and (c) all of the principal terms and conditions of the
proposed assignment or subletting, including, but not limited
to, the commencement and expiration dates, the rent payable,
and the precise area of the Premises subject to such
assignment or subletting; (ii) Upon Lessee's request Lessor
will provide the appropriate document, which for the purpose
of assignment or sublease executed by Lessee and the proposed
assignee or sublessee which shall expressly provide (a) for
the assumption consideration payable by Lessee to Lessor under
this Lease, as and when such monies are received by Lessee
from its assignee or sublessee, in connection with such
assignment or subletting. Any consideration by Lessor of any
particular proposed assignment or subletting shall not be
deemed a waiver by Lessor of Lessor's absolute right to
withhold consent to, or to refuse to consider, any proposed
assignment or subletting ion by such proposed assignee or
subtenant of all of Lessee's obligations under this Lease; (b)
that Lessee shall indemnify and hold Lessor harmless from any
and all claims, obligations and liabilities (including
reasonable attorneys' fees) arising from the use or occupancy
by an assignee or sublessee of the Premises; (c) that Lessee
shall further indemnify and hold Lessor harmless from any
costs, obligations or liabilities (including reasonable
attorneys' fees) arising from any act or negligence of any
such assignees or sublessee, and from any claim, action or
proceeding brought thereon; (d) that in no event shall Lessee
be deemed relieved of any obligation or liability under this
Lease; and (e) that any proposed assignment or subletting
shall not be deemed effective for any purpose unless and until
Lessor's written consent thereto is obtained; and (iii) Lessee
shall deliver to Lessor the sum of $250 as a processing fee to
reimburse Lessor for the administrative costs of reviewing
such information. Lessee shall also pay Lessor, as a condition
to any sublease or assignment becoming effective, all
reasonable attorneys fees and costs incurred in connection
with such review as described in Section 7.01, along with all
consideration received by Lessee in excess of Base Monthly
Rent, and monthly proportionate share of operating cost
21.04 No Waiver. Any consent to any Transfer which may be given by
Lessor, or the acceptance of any rent, charges or other
consideration by Lessor from Lessee or any third party, shall
not constitute a waiver by Lessor of the provisions of this
Lease or a release of Lessee from the full performance by it
of the covenants stated herein; and any consent given by
Lessor to any Transfer shall not relieve Lessee (or any
transferee of Lessee) from the above requirements for
obtaining the written consent of Lessor to any subsequent
Transfer.
21.05 Collection. If a default under this Lease should occur while
the Premises or any part of the Premises are assigned, sublet
or otherwise transferred, Lessor, in addition to any other
remedies
provided for within this Lease or by law, may at its option
collect directly from the transferee all rent or other
consideration coming due to Lessee under the Transfer and
apply these monies against any sums due to Lessor by Lessee;
and Lessee authorizes and directs any transferee to make
payments of rent or other consideration direct to Lessor upon
receipt of notice from Lessor. No direct collection by Lessor
from any transferee should be construed to constitute a
novation or a release of Lessee or any guarantor of Lessee
from the further performance of its obligations in connection
with this Lease.
22. BREACH BY LESSEE.
22.01 Lessee shall be in material breach of this Lease if at any time
during the Lease Term:
(a) Lessee fails to make payment of any installment of Base
Monthly Rent, Additional Rent, or of any other rent herein
specified to be paid by Lessee as and when due, or fails to
provide reasonable evidence of insurance or surety bond as
required under this Lease, or fails to fulfill any
obligation under this Lease and thereby threatens or
endangers life or property, where any such failure continues
for a period of five (5) days following written notice
thereof (written notice shall not be provided more than
twice in any consecutive twelve (12) month period); or
(b) Lessee fails to observe or perform any of its other
covenants, agreements or obligations hereunder, and such
failure is not cured within ten (10) days after Lessor's
written notice to Lessee of such failure; provided, however,
that if the nature of Lessee's obligation is such that more
than ten (10) days are required for performance, then Lessee
shall not be in breach if Lessee commences performance
within such ten (10) day period and thereafter diligently
prosecutes the same to completion; or
(c) Lessee commences voluntarily, or have commenced against
Lessee involuntarily, any receivership, insolvency petition,
or any proceeding under any bankruptcy or insolvency laws,
including, but not limited to, proceedings under the
Bankruptcy Reform Act of 1978, as amended, 11
U.S.C.ss.ss.101-1330, or in the event Lessee dissolves or
terminates its existence as a going concern, or in the event
a receiver is appointed for any part of Lessee's property,
or in the event Lessee makes any assignment for the benefit
of creditors, or in the event foreclosure or forfeiture
proceedings are commenced against Lessee or any of Lessee's
property, whether by judicial proceeding, self-help
repossession, or any other method, including garnishment,
attachment, or levy on any of Lessee's property, or if any
of the preceding events occurs with respect to any guarantor
or surety of any of the obligations of Lessee under this
Lease Agreement; or
(d) Lessee vacates or abandons the Premises; or
(e) Any representation or warranty made by Lessee to Lessor in
connection with this transaction is or becomes untrue.
23. REMEDIES OF LESSOR.
23.01 Repossession of Premises. Upon any termination of this Lease
or of Lessee's right to possession without termination of the
Lease, Lessee shall surrender possession and vacate the
Premises immediately and deliver possession thereof to Lessor.
Lessee hereby grants Lessor the full and free right, whether
by changing or picking locks, if necessary, to enter and
repossess the Premises, with or without process of law, but
only to the extent permitted by law. Lessee releases Lessor of
any liability for any damage resulting therefrom and waives
any right to claim damage for such re-entry. Lessee also
agrees that Lessor's right to re-lease or any other right
given to Lessor hereunder or by operation of law is not
relinquished.
23.02 Termination of Lease After Breach. If Lessee breaches this
Lease before the end of the Lease Term, or if its right to
possession is terminated by Lessor because of Lessee's breach
of this Lease, then this Lease may be terminated by Lessor at
its option, exercised without further notice to Lessee, beyond
that required by Section 22.01. On such termination, Lessor
may recover from Lessee, in addition to any other amounts
permitted by law:
(a) The worth, at the time of the award, of the unpaid Base
Monthly Rent and Additional Rent which had been earned at
the time of termination of this Lease;
(b) The worth, at the time of the award, of the amount by which
the unpaid Base Monthly Rent and Additional Rent which would
have been earned after the date of termination of this Lease
until the time of the award exceeds the amount of the loss
of rents that Lessee proves could have been reasonably
avoided;
(c) The worth, at the time of the award, of the amount by which
the unpaid Base Monthly Rent and Additional Rent for the
balance of the Lease Term after the time of award exceeds
the amount of such rental loss for such period that Lessee
proves could be reasonably avoided; and (d) Any other
amounts necessary to compensate Lessor for all detriment
proximately caused by Lessee's breach of its obligations
under this Lease, or which in the ordinary course of events
would be likely to result therefrom. The detriment
proximately caused by Lessee's breach shall include, without
limitation, (i) expenses for cleaning, repairing or
restoring the Premises, (ii) expenses for altering,
remodeling or otherwise improving the Premises for the
purpose of reletting, (iii) brokers' fees and commissions,
advertising costs and other expenses of reletting the
Premises, (iv) costs of carrying the Premises such as taxes,
insurance premiums, utilities and security precautions, (v)
expenses in retaking possession of the Premises, (vi)
attorneys' fees, legal expenses and related costs whether
incurred in proceedings to terminate the lease, or incurred
by Lessor during insolvency, bankruptcy, or similar
proceedings involving Lessee, (vii) any unearned brokerage
commissions paid in connection with the Lease, (viii)
parking fees or occupancy taxes due under the Lease, (ix)
reimbursement of any concessions made or paid by Lessor to
or for the benefit of Lessee in consideration of this Lease
including, but not limited to, any moving allowances,
contributions or payments by Lessor for Tenant Improvements
or build-out allowances, free or reduced rent, free or
reduced parking, and/or assumptions by Lessor of any of
Lessee's previous lease obligations.
23.03 Continuation of Lease After Breach. Notwithstanding the
foregoing, in the event Lessee has breached this Lease and
abandoned the Premises, this Lease, at Lessor's option, shall
continue in full force and effect so long as Lessor does not
terminate this Lease, and in such event Lessor may enforce all
of its rights and remedies hereunder, including, without
limitation, the right to recover rent as it becomes due. In
addition, Lessor shall not be liable in any way whatsoever for
its failure or refusal to relet the Premises. For purposes of
this Subparagraph 23.03, the following acts by Lessor shall
not constitute the termination of this Lease:
(a) Acts of maintenance or preservation or efforts to relet the
Premises, including, but not limited to, alterations,
remodeling, redecorating, repairs, replacements and/or
painting as Lessor shall consider appropriate for the
purpose of attempting to relet the Premises or any part
thereof; or
(b) The appointment of a receiver upon the initiative of Lessor
to protect Lessors interest under this Lease or in the
Premises. Bankruptcy Remedies. In the event that Lessee
commences voluntarily, or has commenced against Lessee
involuntarily, any proceedings under the bankruptcy laws,
including, but not limited to, proceedings under the
Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. xx.xx.
101-1330, the following provisions shall apply:
23.04 Definitions and Incidental Rights.
(a) "The worth at the time of the award" of the amounts referred
to above in Sections 23.02(a) and 23.02(b), shall be
computed by allowing interest at the highest rate allowable
under state law in which the award is made.
(b) Any efforts by Lessor to mitigate the damages caused by
Lessee's breach of this Lease shall not waive Lessor's right
to recover the damages set forth above.
(c) Nothing herein shall be construed to limit, impair or
otherwise affect other provisions of this Lease regarding
Lessor's right to indemnification from Lessee for liability
arising prior to the termination of this Lease for personal
injuries or property damage.
(d) No right or remedy conferred upon or reserved to Lessor in
this Lease is intended to be exclusive of any other right or
remedy granted to Lessor by statute or common law, and each
and every such right and remedy shall be cumulative.
23.05 Right to Cure. Lessor may, but shall not be obligated to, cure
any default on the part of Lessee under this Lease (whether or
not such default would entitle Lessor to terminate this
Lease), at any time and without notice to Lessee. Whenever
Lessor shall so elect, all costs incurred by Lessor shall be
paid by Lessee to Lessor on demand as Additional Rent.
23.06 Lessor's Designation. If Lessee shall be in arrears in the
payment of rent, Lessee hereby irrevocably waives any right
Lessee may have to designate the items against which any
payments made by or on behalf of Lessee are to be credited,
and Lessor may apply any payments made by or on behalf of
Lessee to such items as Lessor may determine, regardless of
and notwithstanding any designation or request by Lessee as to
the items against which any such payments are to be credited.
23.07 Interest. In the event that any rental payment, Additional
Rent, or other sum or amount required to be paid by Lessee
under this Lease Agreement is not paid when due and is more
than 30 days past due, Lessee shall also pay to Lessor
interest on such amount at the rate of 10.5% per annum until
such amount is paid in full. Interest accrued and unpaid shall
be deemed part of the rent reserved under this Lease
Agreement. Without limiting the generality of the foregoing,
Lessor shall be entitled to pre-judgment and post-judgment
interest on any amount adjudged to be owed by Lessee to Lessor
under this Lease Agreement at the rate of 10.5% per annum.
23.08 Bankruptcy Remedies. In the event that Lessee commences
voluntarily, or has commenced against Lessee involuntarily,
any proceedings under the bankruptcy laws, including, but not
limited to, proceedings under the Bankruptcy Reform Act of
1978, as amended, 11 U.S.C. xx.xx. 101-1330, the following
provisions shall apply:
(a) Lessee shall promptly cure or provide adequate assurance
that Lessee will promptly cure any defaults then existing
under this Lease Agreement. Lessee agrees that a prompt cure
shall be accomplished within 60 days of the date of the
order for relief in the bankruptcy case.
(b) Any failure or waiver by Lessor to insist upon strict
compliance with lease terms prior to the bankruptcy case
shall not be deemed in any way to be a waiver of Lessor's
right to a prompt cure or to adequate assurance of prompt
cure under applicable provisions of the bankruptcy laws and
rules of procedure.
(c) Any assignment and assumption of this Lease Agreement shall
be in accordance with the applicable bankruptcy laws and
rules of procedure, but in such event, Lessee agrees that
this Lease Agreement may not be assigned or assumed if doing
so would result in a substantial breach of this Lease
Agreement or a substantial change to the type of Lessee or
Lessee-mix in the premises.
(d) In the event that Lessee after the date of the order for
relief in a bankruptcy case fails to make any post-petition
payment of rental, Additional Rent, or any other sum
required to be paid under this Lease Agreement, then
Lessee's failure to make such post-petition payment when due
is agreed to constitute Lessee's consent to the immediate
lifting of the automatic say under 11 U.S.C.ss.362 for the
purpose of Lessor's exercise of its rights and remedies with
respect to the premises, including, but not limited to, the
remedy of termination of this Lease Agreement and the right
of Lessor to commence proceedings to obtain possession of
the premises. 24. SURRENDER.
24.01 At End of Lease Term. At the end of the Lease Term, Lessee
shall surrender the Premises to Lessor, together with all
additions, improvements and other alterations thereto, in
broom-clean condition and in good order and repair except for
ordinary wear and tear and damage for which Lessee is not
obligated to make repairs under this Lease. If the Lease Term
ends on the Expiration Date (rather than as a result of an
early termination), then on or before the Expiration Date,
Lessee shall remove all additions, improvements and other
alterations made to the Premises by Lessee, repair all damage
to the Premises caused by such removal and restore the
Premises to the condition in which they were prior to the
alterations so removed.
Notwithstanding the foregoing, Lessee shall leave in place any
and all alterations which Lessor requests Lessee to leave in
place.
24.02 Requirements. No act or thing done by Lessor or any employee
or other agent of Lessor during the Lease Term shall be deemed
to constitute an acceptance by Lessor of a surrender of all or
part of the Premises unless such an intent is specifically
acknowledged in a writing duly signed by Lessor; without
limiting the generality of the foregoing, the delivery of keys
to the Premises to Lessor or any employee or other agent of
Lessor shall not constitute a surrender of the Premises or
effect a termination of this Lease, whether or not the keys
are thereafter retained by Lessor.
24.03 Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof will, at the option
of Lessor, (i) either constitute a merger of the leasehold
estate into Lessor's interest(s) in the Project, or not
constitute a merger (if no written election is made, no merger
shall occur); and (ii) either terminate all or any existing
subleases or other Transfers, or at the option of Lessor,
operate as an assignment to it of any or all of such
Transfers.
25. ATTORNEYS FEES/COLLECTION CHARGES.
25.01 Proceedings. In the event of any legal action or arbitration
proceeding between the parties hereto, reasonable attorneys'
fees and consultants' fees and expenses of the prevailing
party in any such action or proceeding shall be added to the
judgment or award therein, provided, however, that where a
party files multiple causes of action against the other party,
or where there are cross claims or counterclaims, the court or
arbitrator shall award reasonable attorneys' fees to the
prevailing party only to the extent such fees reflect services
performed in connection with those causes of action on which
the prevailing party has prevailed.
25.02 Collection. If Lessor utilizes the services of any attorney
for the purpose of collecting any rent due and unpaid by
Lessee or in connection with any other breach of this Lease by
Lessee, Lessee agrees to pay Lessor actual attorneys' fees as
determined by Lessor for such services, regardless of the fact
that no legal action may be commenced or filed by Lessor.
Lessor shall also be entitled to recover its reasonable
attorneys fees and legal expenses incurred with respect to any
insolvency forfeiture, bankruptcy, or similar proceeding
involving Lessee.
26. CONDEMNATION.
26.01 If twenty-five percent (25%) or more of the Premises is taken
for any public or quasi-public purpose by any lawful
government power or authority, by exercise of the right of
condemnation, eminent domain or other right of
appropriation, or sold to prevent such taking, Lessee or
Lessor may at its option terminate this Lease as of the
effective date thereof. Lessee shall not because of such
taking, assert any claim against Lessor or the taking
authority for any compensation because of such taking, and
Lessor shall be entitled to receive the entire amount of any
award without deduction for any estate or interest of
Lessee. If less than twenty-five percent (25%) of the
Premises is taken, Lessor at its option may terminate this
Lease. If Lessor does not so elect, Lessor shall promptly
proceed to restore the Premises to substantially its same
condition prior to such partial taking, allowing for any
reasonable effects of such taking, and a proportionate
allowance shall be made to Lessee for the Base Monthly Rent
corresponding to the time during which, and to the part of
the Premises which, Lessee is deprived on account of such
taking and restoration.
27. RULES AND REGULATIONS.
27.01 Lessee shall faithfully observe and comply with the Rules and
Regulations printed on or attached to this Lease and Lessor
reserves the right to modify and amend them as it deems
necessary. Lessor shall not be responsible to Lessee for the
nonperformance by any other lessee or occupant of the Project
of any of said Rules and Regulations, or of any provision of
such lessee's or occupant's lease.
28. ESTOPPEL CERTIFICATE.
28.01 Within ten (10) days following request by Lessor from time to
time, Lessee shall execute and deliver to Lessor a certificate
in writing certifying (i) that this Lease is in full force and
effect and unmodified (or if modified, stating the nature of
such modification and identifying the instrument by which such
modification arose); (ii) the amount of the Base Monthly Rent
and Additional
Rent payable hereunder and the date to which rent and other
charges are paid in advance, if any; (iii) acknowledging that
there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder or events or conditions that with
the passage of time, the giving of notice or both would
constitute a default (or specifying such defaults if they are
claimed), and (iv) such other matters concerning this Lease
and the Premises as may be requested. Within ten (10) days
following the request of Lessor, Lessee shall also deliver to
Lessor financial statements of Lessee and any guarantor(s) of
Lessee, prepared in accordance with generally accepted
accounting principles. Any such certificate or financial
statement may be conclusively relied upon by any prospective
purchaser or encumbrances of the Premises or the Project or
any portion thereof. Lessee's failure to deliver any such
certificate or statement within the required time shall be
conclusive upon Lessee that (1) this Lease is in full force
and effect, without modification except as may be represented
by Lessor; (2) there are no uncured defaults in Lessor's
performance; and (3) not more than one (1) month's rent has
been paid in advance. Lessee hereby appoints Lessor as
Lessee's attorney-in-fact for the purpose of executing a
certificate on behalf of Lessee setting forth the facts
described in the previous sentence if Lessee fails to deliver
such certificate within the required time.
29. HOLDOVER.
29.01 If Lessee remains in the Premises after the Lease Expiration
Date, such continuance of possession by Lessee shall be deemed
to be a month-to-month tenancy at the sufferance of Lessor
terminable on thirty (30) days notice at any time by either
party. All provisions of this Lease, except those pertaining
to term and rent, shall apply to the month-to-month tenancy.
Lessee shall pay Base Monthly Rent in an amount equal to
one-hundred and twenty-five (125%) percent of all rents
payable for the last full calendar month of the regular Lease
Term.
30. PROJECT REQUIREMENTS.
30.01 In the event Lessor requires the Premises for use in
conjunction with another suite or for other reasons
connected with the Project planning program, Lessor, upon
notifying Lessee in writing, shall have the right to
relocate Lessee to alternative space in the Project
comparable to the Premises and the alternate space shall not
be increased or decreased more than ten percent (10%) than
the square footage of the Premises. The relocation shall be,
at Lessor's sole cost and expense (excluding private
telephone systems which Lessee must bear the cost of moving
and installing), and the terms and conditions of this Lease
shall remain in full force and effect excepting that the
Premises shall be in a new location and the Base Monthly
Rent and any Additional Rent shall be adjusted as necessary
to reflect any increase or decrease in square footage.
However, if such alternative space does not meet with
Lessee's approval, Lessee shall have the right to cancel
this Lease upon giving Lessor thirty (30) days' notice
within twenty (20) days of receipt of Lessor's notification
of such relocation. If Lessee fails to give written notice
of Lessee's cancellation of this Lease within such twenty
(20) day period, Lessee shall be deemed to have approved the
alternative space provided by Lessor. Should Lessee elect to
cancel the Lease as provided in this paragraph, the
effective expiration date shall be the projected move-in
date of such alternative space as indicated in Lessor's
written notification to Lessee.
31. BREACH BY LESSOR/LIMITATION OF LIABILITY.
31.01 Lessor's Breach. In the event of any breach by Lessor
hereunder, Lessee shall give notice of such breach and Lessor
shall have a reasonable opportunity to cure the same, which
shall not exceed thirty (30) days unless additional time is
needed because of the nature of the cure and Lessor is
diligently pursuing a cure. A copy of such notice shall be
delivered to any mortgagee or beneficiary under any mortgage
or deed of trust encumbering the Project, and to any ground
lessor of the Project, if any such parties request such
notice, and no such notice shall be deemed effective until all
such parties are in receipt thereof.
31.02 Limitation of Liability. In the event of any actual or alleged
failure, breach or default hereunder by Lessor, Lessee's sole
and exclusive remedy shall be against Lessor's interest in the
Project, and no principal, agent, or representative of Lessor
shall be sued, be subject to service of process, or have a
judgment obtained against him in connection with any alleged
breach or default, and no writ of execution shall be levied
against the assets of any such persons. These provisions are
for the benefit of, and are enforceable by Lessor and also
without limitation by any partner,
shareholder, director, officer, employee or representative of
Lessor, and by their successors in interest.
32. SUBORDINATION.
32.01 Without the necessity of any additional documents being
executed by Lessee for the purpose of effecting a
subordination, and at the election of Lessor or any
mortgagee with a lien on the Project or any ground lessor
with respect to the Project, this Lease shall be subject and
subordinate at all times to (a) all ground leases or
underlying leases which may now exist or hereafter be
executed affecting the Project, and (b) the lien of any
mortgage or deed of trust which may now exist or hereafter
be executed in any amount for which the Project, ground
leases or underlying leases, or Lessor's interest or estate
in any of said items is specified as security. In the event
that any ground lease or underlying lease terminates for any
reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason,
Lessee will, notwithstanding any subordination, attorn to
and become the Lessee of the successor in interest to
Lessor, at the option of such successor in interest. Lessee
covenants and agrees to execute and deliver, upon demand by
Lessor and in the form requested by Lessor any additional
documents evidencing the priority or subordination of this
Lease with respect to any such ground lease or underlying
leases or the lien of any such mortgage or deed of trust.
Lessee hereby irrevocably appoints Lessor as attorney-in-fact
of Lessee to execute, deliver and record any such document in
the name and on behalf of Lessee.
33. MISCELLANEOUS PROVISIONS.
33.01 Sale by Lessor. In the event of a sale or other conveyance by
Lessor of the Project, including without limitation, a
conveyance by trustee's deed, the same shall operate to
release Lessor from any liability upon any of the covenants or
conditions, expressed or implied, herein contained in favor of
Lessee, and in such event Lessee agrees to look solely to the
responsibility of the successor in interest of Lessor in and
to this Lease. This Lease shall not be affected by any such
sale, and Lessee agrees to attorn to the purchaser, successor
or assignee.
33.02 Notices. All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments,
or designations under this Lease by either party to the other
shall be in writing and shall be considered sufficiently given
and served upon the other party if delivered personally to the
attention of a partner or officer of Lessee, if Lessee is not
an individual, or if sent by certified mail, on the third day
after mailing, postage prepaid, return receipt requested, and
addressed to the parties' respective Notice Addresses. Either
party may change its Notice Address in the manner specified
herein for the giving of notices. Any notice from Lessor to
Lessee may be signed and delivered by the managing agent of
the Project with the same force and effect as if signed and
delivered by Lessor.
33.03 Waivers. The failure of Lessor to insist in any case upon the
strict performance of any term, covenant or condition of this
Lease shall not be construed as a waiver of a subsequent
breach of the same or any other covenant, term or condition;
nor shall any delay or omission by Lessor to seek a remedy for
any breach of this Lease or the acceptance of rent by Lessor,
be deemed a waiver by Lessor of its remedies or rights with
respect to such a breach. No waiver by either party shall be
deemed effective unless in writing and signed by the waiving
party. Lessee hereby waives all rights under any law in
existence during the Lease Term authorizing a tenant to make
repairs at the expense of a landlord or to terminate a lease
upon the complete or partial destruction of the Premises.
33.04 Number and Gender. Whenever the singular number is used in
this Lease and when required by the context, the same shall
include the plural, and the masculine gender shall include the
feminine and neuter genders, and the word "person" shall
include corporation, firm, partnership, or association. If
there be more than one Lessee, the obligations imposed upon
Lessee under this Lease shall be joint and several.
33.05 Headings. The headings or titles to paragraphs of this Lease
are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part of this Lease.
33.06 Modifications. This instrument contains all of the agreements
and conditions made between the parties to this Lease and may
not be modified orally or in any other manner than by an
agreement
in writing signed by all parties to this Lease. Lessee
acknowledges that neither Lessor nor Lessor's agents have made
any representation or warranty as to the suitability of the
Premises to the conduct of Lessee's business. Any agreements,
warranties or representations not expressly contained herein
shall in no way bind either Lessor or Lessee, and Lessor and
Lessee expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if
any, not expressly contained in this Lease.
33.07 Time. Time is of the essence of each term and provision of
this Lease.
33.08 Binding Effect. The terms and provisions of this Lease are
binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of Lessor and Lessee.
33.09 Non-Disclosure. In consideration of Lessor's covenants and
agreements hereunder, Lessee hereby covenants and agrees not
to disclose any terms, covenants or conditions of this Lease
to any other party without the prior written consent of
Lessor.
33.10 Consent. If Lessee shall request Lessor's consent and Lessor
shall fail or refuse to give such consent, Lessee shall not be
entitled to any damages for any withholding by Lessor of its
consent; Lessee's sole remedy shall be an action for specific
performance or injunction, and such remedy shall be available
only in those cases where Lessor has expressly agreed in
writing not to unreasonably withhold its consent or where as a
matter of law Lessor may not unreasonably withhold its
consent.
33.11 Deposits. Lessor and Lessee hereby agree that Lessor shall be
entitled to immediately endorse and cash Lessee's rent, Lease
Documentation Fee, and the Security Deposit check(s)
accompanying this Lease. It is further agreed and understood
that such action shall not guarantee acceptance of this Lease
by Lessor. This Lease shall be effective only after Lessee has
received a copy fully executed by Lessor.
33.12 Governing Law. This Lease is governed by and construed in
accordance with the laws of the state in which the Premises
are located, and venue of any suit shall be in the county
where the Premises are located. If any term of this Lease
Agreement, or the application thereof to any person or
circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease Agreement, or the
application of such term to persons or circumstances other
than those as to which it is valid and enforceable to the
fullest extent permitted by law.
33.13 Negotiated Terms. This Lease is a result of negotiations of
the parties, each of which is knowledgeable in commercial
leasing matters and each of which has had the opportunity to
be represented by counsel, and all of the terms have been
agreed to by both Lessor and Lessee after prolonged
negotiations. Accordingly, any rule of law or legal decision
that would require interpretation of any provision of this
Lease against the party that has drafted it is not applicable
and is waived. The provisions of this Lease shall be
interpreted in a reasonable manner to effect the purposes of
the parties hereto.
33.14 Severability. If any provision of this Lease is found to be
unenforceable, all other provisions shall remain in full force
and effect.
33.15 Lender Requirements. Lessee hereby consents to amendment of
this Lease as and to the extent required by any lender,
provided that no such change shall increase the rent payable
under this Lease or impair Lessee's occupancy or use of the
Premises.
33.16 Counterparts. This Lease may be executed in one or more
counterpart copies, and each of which, so executed,
irrespective of the date of execution and delivery, shall be
deemed to be an original, and all such counterparts together
shall constitute one and the same instrument. The signature
pages of one or more of the counterpart copies may be removed
from such counterpart copies and all be attached to the same
copy of this Lease which, with all signature pages attached,
shall be deemed to be an original Lease.
33.17 No Third-Party Benefits. Except as may be specifically
provided to the contrary, this Lease is solely to establish
various rights between parties to this Lease, and no
"third-party" or other person will be entitled to any rights
or benefits from this Lease or to rely on this Lease in any
way, nor may this Lease serve as the basis of any obligation
or other liability of a party to a person who is not a party.
33.18 Survival. Any obligation of Lessor or Lessee that by its
nature or under the circumstances can only be, or by the
provisions of this Lease may be, performed after the
expiration or earlier termination of the Lease Term, and any
liability for a payment or other obligation that shall have
accrued or otherwise relates to any period ending prior to or
at the time of expiration or other termination of the Lease
Term, or the end of Lessee's occupancy of the Premises if
later, unless specifically otherwise provided in this Lease,
shall survive the expiration or other termination of this
Lease.
33.19 No Recording. Lessee shall not record this Lease or any short
form or memorandum of this Lease.
33.20 Expansion. If during the Lease Term, Lessee executes a Lease
within the Project for space larger than the Premises with a
lease having a lease term longer than that which remains on
this Lease or one (1) year, whichever is greater, with a base
monthly rent amount at least equal to the Base Monthly Rent
then payable under this Lease, then this Lease shall be
terminated upon the commencement date of the lease for such
new space. Notwithstanding the foregoing, Lessee shall be
obligated to pay for any adjustments in rent pursuant to
Paragraphs 3 and 5 hereof, and this obligation shall survive
the termination of this Lease.
33.21 Commissions. Lessee represents and warrants to Lessor that
Lessee's sole real estate broker in connection with this Lease
is Xxxx Xxxxxxxx of the Andover Company and that there are no
other persons entitled to the payment of a commission as a
result of Lessee and Lessor entering into this Lease; and
Lessee agrees to indemnify, protect, defend and hold Lessor
harmless from and against any claims for any commissions or
other fees arising out of a claim therefor by any other
broker, finder or salesperson. No commission or fee shall be
paid if Lessee elects to exercise its option for the Renewal
Term, if any description in this lease.
33.22 No Partnership. No provision of this Lease and no actions of
the parties hereto shall be construed to create a partnership
or joint venture between Lessor and Lessee, or make either
party responsible for the debts and losses of the other.
34. QUIET ENJOYMENT.
Lessor covenants and agrees with Lessee that if Lessee pays the rent
and performs all of the covenants and conditions described in this Lease to be
observed and performed by Lessee, Lessee shall and may reasonably and quietly
have, hold, and enjoy the Premises for the Lease Term described in this Lease.
35. SPECIAL PROVISIONS.
35.01 NONE
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of
the day and year indicated by Lessor's execution date as written below.
Individuals signing on behalf of Lessee warrant that they have the authority to
bind their principals. In the event that Lessee is a corporation, Lessee shall
deliver to Lessor, concurrently with the execution and delivery of this Lease, a
certified copy of corporate resolutions adopted by Lessee authorizing said
corporation to enter into and perform the Lease and authorizing the execution
and delivery of the Lease on behalf of the corporation by the parties executing
and delivering this Lease.
THIS LEASE, WHETHER OR NOT EXECUTED BY LESSEE, IS SUBJECT TO ACCEPTANCE AND
EXECUTION BY LESSOR, ACTING ITSELF OR BY ITS AGENT ACTING THROUGH ITS SENIOR
VICE PRESIDENT, VICE PRESIDENT, REGIONAL VICE PRESIDENT, REGIONAL MANAGER AT ITS
HOME OFFICE.
LESSOR LESSEE
XXXX INLET REGION, INC., L.L. XXXXX INTERNATIONAL
an Alaska corporation a Washington corporation
DBA: West Valley Business Park
By /s/ Xxxxx Xxxx By/s/ Xxxxxxx Xxxxx Xxxxx
--------------------------- ------------------------------
Xxxxx Xxxx Xxxxxxx Xxxxx Xxxxx
President
Date: 1-8-99 Date: 11-25-98
By:/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx Xxxxx
Vice President
Date:11-25-98
