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EXHIBIT 10.8
LEASE
XXXXXXX DEVELOPMENT CORPORATION
This Lease made and entered into this 5th day of July, 1995; between XXXXXXX
DEVELOPMENT CORPORATION hereinafter designated "Lessor", and
TELECT, INC.
hereinafter designated "Lessee",
WITNESSETH
It is agreed by and between Lessor and Lessee as follows:
1. Description of Premises. Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor those certain premises, hereinafter referred to as
"Premises", situated in Spokane County, State of Washington, described as: Xxxx
Xxxxxx Xxx xxx Xxxx Xxxxxx Xxx xx Xxxxxxxx #0 comprised of approximately 56,000
square feet; and the Xxxx Xxx xxx Xxxx Xxxxxx Xxx xx Xxxxxxxx #00 comprising
approximately 60,000 square feet (both Buildings totaling 116,000 square feet)as
the same may be expanded or vacated as set forth in Paragraph 3. which are
located within an organized industrial district called the "Spokane Business
&Industrial Park" shown on the attached Exhibit A and more particularly
described as follows:
The South Half of Section 1, and that portion of Section 12
lying North of the Northerly right of way line of the Spokane
International Railroad, Township 25 North, Range 44 East of the
Willamette Meridian, County of Spokane, State of Washington.
2. Term. The term of this lease shall be for a period of Five (5)years and Zero
(0)months, commencing on the 1st day of October, 1995 and ending at the
expiration of the 30th day of September, 2000.
3. Options to Expand. Lessor shall notify Lessee at such time(s)as space is
available in Building #12 (currently occupied by Quarry Tile). Lessee shall then
have a one time Option to Expand into the entire East Center Bay and a one time
Option to Expand into the e ire East Bay of said Building #12 Lessor shall
inform Lessee in writing of the availability of one or both of the Bays, at
which time(s)Lessee shall have a period of 30 days in which to exercise its
Option(s)to Expand into the Bay(s)at the same rental rate per square foot as
Lessee is then paying for square footage under this lease. If Lessee exercises
the foregoing Option(s)to Expand into Quarry Tile's vacated space, Lessee
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shall have the right to vacate an equal amount of square footage of space
in Building #5 (the entire East Center or West Center Bay(s)), with a
corresponding reduction in rent, upon the following conditions: 1) thirty
(30)days prior written notice is given to Lessor, 2) said right is only
available to Lessee within the first thirty (30)days of Lessee's exercising its
Option(s)to Expand.
Option to Terminate. During the Month of May, 1998, Lessee shall have
the option to terminate this Lease, either in its entirety or as to one or more
Bays or Buildings, effective December 1, 1998 by paying to Lessor a termination
fee equal to six months rent, at the then rental rate for the space as to which
the Lease is terminated, upon written notice of termination. This fee is a
penalty fee and shall not be construed to be a rental payment.
4. Rent. The monthly rental shall be as follows:
October 1, 1995 through September 30, 1996 $22,040.00
October 1, 1996 through September 30, 1997 $22,920.00
October 1, 1997 through September 30, 1998 $23,840.00
October 1, 1998 through September 30, 1999 $24,790.00
October 1, 1999 through September 30, 2000 $25,780.00
Said rental for each month shall be paid to Lessor in advance on or before the
1st day of the month for which said rent is due at the office of Lessor.
A late charge of 1-1/2% will be added to all amounts due that are not received
by the tenth of each month.
5. Possession. Lessee shall be entitled to possession of the leased Premises
during the term hereof and provided that the Lessee is in compliance with all of
the terms and conditions of this lease. In the event of the inability of the
Lessor to deliver possession of the Premises, or any portion thereof, at the
time of the commencement of the term of this lease, neither Lessor nor Lessor's
agent shall be liable for any damage caused thereby, nor shall this lease
thereby become void or voidable, nor shall the tern herein specified be in any
way extended, but in such event, Lessee shall not be liable for any rent until
such time as Lessor can deliver possession. If the Lessor shall deliver
possession of the Premises to the Lessee prior to the commencement date of this
lease, Lessee agrees to accept same at such time and both Lessor and Lessee
agree to be bound by all of the provisions and obligations here under during
such prior period, except that no rental shall be payable for such period.
6. Holdover. If the Lessee shall, with the written consent of Lessor, hold over
after the expiration of the term of this lease, or any option period, such
tenancy shall be on a month-to-month basis, which tenancy may be terminated as
provided by the laws of the State of Washington. During such tenancy, Lessee
agrees to pay to the Lessor the
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rental rate agreed upon by Lessor and referenced in the written consent, and to
be bound by all the terms, covenants and conditions as herein specified, so far
as applicable. In the event Lessee fails to request written consent to Holdover
at least 20 days prior to expiration of the Lease term, Lessor is authorized to
increase rent to equal 125% of the rate assessed for the same space during the
period immediately preceding holdover, beginning at the inception of the
Holdover period. Lessee agrees that at the expiration or sooner termination of
this lease, Lessee will quit the said Premises without notice, and in a neat and
clean condition, and will deliver up all keys belonging to said Premises to said
Lessor or Lessor's agents.
7. Lease Deposit. As partial consideration for the execution of this lease by
Lessor, Lessee has paid Lessor the sum of $1,772.00(1) and Lessor acknowledges
receipt of said payment. If Lessee shall have performed each and every
obligation pursuant to the terms of this lease, said deposit shall be returned
to Lessee within thirty (30) days after Lessee has vacated the Premises. If
Lessee is in default, Lessor may at its option apply any or all of the deposit
to rental payments in arrears, repair of the Premises, or satisfy any other
obligation of Lessee to Lessor.
8. Business Purposes. The Premises are to be used for the purpose of conducting
therein the following business: Electronic and Electrical Assembly and for none
other without the prior written consent of Lessor. Lessee shall promptly notify
Lessor of any proposed change in use of the premises, but in no event later than
14 days prior to said change.
9. Acceptance of Premises. Unless otherwise provided in this lease, Lessee,
having ascertained the physical condition of said Premises from a careful and
complete inspection thereof, accepts said Premises in their present condition
and in such condition as same may be at the commencement of the term. without
any representations or warranties, and subject to any conditions that a personal
inspection might reveal.
10. Compliance with Laws. Lessee shall at all times keep and use said Premises
in accordance with applicable laws and ordinances and in accordance with
applicable directions, rules and regulations of public officials and
departments, at the sole expense of Lessee. Lessee shall not overload and shall
permit no waste of, or damage or injury to the Premises, and will not permit the
leased Premises to be used for any business or purpose which may be unlawful,
offensive or dangerous, or which may be or become a nuisance, or for any use
which is noxious or offensive by reason of the emission of dust, odor, gas.
fumes, smoke, or noise, or be deemed extra-hazardous on account of fire.
11. General Obligations of Lessee. Lessee shall keep the Premises, loading
platform, and service area adjacent to the Premises clean and free from snow,
ice, rubbish, dirt, and any unlawful structure at all times and shall store all
hazardous materials or dangerous substance, trash and garbage within the
Premises. Lessee is to arrange for
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(1) Lease deposit transferred from original lease dated September 13, 1992
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regular pick-up of such trash and garbage at the Lessee's expense. Should Lessee
fail to remove trash, garbage or materials unlawfully stored outside of the
leasehold premises within a reasonable period of time after receipt of a written
request for removal from Lessor, the latter party may, at its option, remove
said trash, garbage or materials at Lessee's expense. Lessee shall permit no
animals to be kept on premises.
At any time during the lease period or applicable holdover period, should Lessee
request any special services from Lessor not otherwise provided for in this
agreement, and Lessor agrees to provide said special services, Lessee shall be
obligated to reimburse Lessor for all reasonable costs incurred in providing
said services. Reasonable costs shall include but not be limited to such things
as attorney, engineering, and other professional fees, salary and benefit costs
attributable to employees and third parties employed by Lessor to provide the
special services. The term "special services" includes, but is not limited to,
such things as negotiations with financial institutions servicing Lessee and
execution of Consent and Waiver Agreements, and emergency response assistance
from employees or independent contractors employed by Lessor who assist Lessee
in eliminating damage to the leasehold premises caused by Lessee.
12. Alterations. Lessee shall not without the prior written consent which shall
not he unreasonably withheld of Lessor, which consent shall not be unreasonably
withheld, make any alterations, additions, or improvements in or to said
Premises, and if such alterations, additions or improvements are consented to
and made, Lessee shall at the expiration or sooner termination of the lease
leave said alterations, additions, or improvements intact as part of said
Premises, or at the request of Lessor remove the same or such parts as Lessor
may direct, all at Lessee's sole expense. Lessee shall make no perforations in
the building shell without prior review and approval of a duly licensed
structural engineer. Trade fixtures, appliances and equipment shall not be
deemed alterations, additions or improvements unless the removal of the same
would do material physical damage to the said Premises. Unless specifically
agreed to by Lessor in writing, in no event shall the Lessee be compensated in
any manner for an alteration, addition, or improvement to the Premises. Should
Lessee fail to request written consent from Lessor at least 14 days prior to
initiation of alterations, additions, or improvements, Lessee shall, at Lessor's
option, be obligated to pay all administrative costs associated with performing
a due diligence evaluation of the request as incurred by Lessor.
13. Repairs by Lessor. Lessor shall keep in good order, condition, and repair
the foundation, exterior walls (except the interior faces thereof), sprinkler
system, if any, down spouts, gutters, and roof of the Premises except as may be
caused by any act or negligence of Lessee, its employees, agents, invitees,
licensees or contractors, for which negligence Lessee shall be liable only to
the extent of the amount of the deductible under any policy of property damage
insurance maintained by Lessor, not to exceed the sum of $25,000 (however, for
damage caused by fire, such sum shall be $50,000), provided, however, that there
shall be no obligation to make such repairs until after the
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expiration of five days' written notice from Lessee to Lessor of the need
thereof.
14. Repairs by Lessee. Except as otherwise provided, Lessee shall keep and
maintain said Premises in a neat, clean and sanitary condition and in a
first-class state of repair, including without limitation all heating and air
conditioning equipment, all electrical wiring and fixtures, all plumbing and
sewage facilities and ail windows, overhead doors and pedestrian doors, docks
and appurtenances, within or attached to the building of which the Premises form
a part. At the expiration of the term of this lease or its earlier termination,
Lessee shall redeliver possession of said Premises to Lessor. Lessee covenants
and agrees that at the time of said expiration or termination said Premises will
be in the best physical condition in which they were at any time during the
lease term, ordinary wear and tear excepted, and damage by fire or other
casualty caused by Lessee's negligence in an amount in excess of Lessee's
limited responsibility for negligence-caused damage (as stated in Paragraphs 13
and 37) excepted. Lessee's duty to repair shall include the duty to replace
parts of, or fixtures in the Premises that cannot be repaired. In the event
Lessee fails to undertake and reasonably complete repairs required under this
paragraph, Lessor may at its option make the repairs at the expense of Lessee
and the cost of the repairs shall be added to the rental reserved under
Paragraph 3 and shall be immediately due and payable.
15. Mechanic's Liens. Lessee agrees to pay when due all sums of money that may
become due for, or purporting to be due for, any labor, services, materials,
supplies, or equipment alleged to have been furnished or to be furnished to or
for the Lessee, in, upon or about the Premises and which may be secured by any
mechanic's, materialman's or other lien against the Premises and/or Lessor's
interest therein, and will cause each such lien to be fully discharged and
released at the time the performance of any obligation secured by any such lien
matures and/or becomes due.
16. Signs. Lessee shall not erect or install any exterior signs or symbols
without Lessor's consent. Lessee agrees not to use any advertising media or
other media that shall be deemed objectionable to Lessor or other tenants of the
Industrial Park, such as loudspeakers, phonographs or radio broadcasts that can
be heard outside the Premises. Lessee shall not install any exterior lighting or
plumbing fixtures, shades or awnings or any exterior decorations or paintings,
or build any fences or make any changes to the exterior portions of the Premises
without Lessor's consent. Any signs or symbols so placed on the Premises shall
be so placed upon the understanding and agreement that the Lessee will remove
the same at the termination of the tenancy herein created and repair any damage
or injury to the Premises caused thereby; and if not so removed by Lessee, then
the Lessor may have the same removed at Lessee's expense.
17. Displays of Merchandise. Lessee shall not keep or display any merchandise on
or otherwise obstruct the street, loading platforms or areaways adjacent to the
Premises. Lessee shall store no materials in any areas outside of the leasehold
premises.
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18. Streets and Parking Areas. Lessor shall keep the streets 20 feet on each
side of the center line and areas used in common by the tenants of Spokane
Industrial Park, designated by Lessor, in reasonable repair and condition,
including such snow removal operations as Lessor may reasonably deem necessary
for normal access to the Premises. Lessor reserves the right to promulgate such
reasonable rules and regulations relating to the use of the streets and parking
areas within the confines of the industrial district as it may deem appropriate
and for the best interests of the tenants and Lessee agrees to abide by such
rules and to cooperate in the observance thereof. Such rules and regulations
shall be binding upon Lessee upon delivery of a copy thereof to Lessee. Said
rules and regulations may be amended by Lessor from time to time with or without
advance notice and all such amendments shall be effective upon the delivery of a
copy thereof to Lessee. Lessee is prohibited from obstructing any portion of the
above referenced common areas. Any violation of such rules and regulations by
Lessee, its officers, agents and employees will constitute a breach of this
lease and entitle the Lessor to claim a default thereunder in the same manner
and to the same extent as any other default under the lease. Rules and
regulations of fire protection agencies shall be complied with and enforced in
these areas by Lessee.
19. Access. Lessee shall allow Lessor free access to said Premises at all
reasonable times for purposes of inspecting of the same or of making repairs,
additions or alterations to said Premises or to the building in which said
Premises are located but this right shall not constitute or be construed as an
agreement on the part of Lessor to make any repairs, which Lessee is required to
make, or to make any additions or alterations to said Premises. Lessor shall
have the right to place and maintain "For Rent" signs in a conspicuous place or
places on said Premises for ninety (90) days prior to the expiration or sooner
termination of the term of this lease.
20. Services and Utilities. Lessee shall pay all charges for light, heat, water,
gas, sewage, telephone and aquifer protection which shall be charged against
said Premises during the term of this lease unless otherwise hereinafter
provided and to provide for any alterations or changes as well as repairs to its
own heating system, air conditioning and electrical wiring. In the event said
light, heat, water, etc., he furnished through Lessor, Lessee shall pay Lessor
therefor according to the consumption of said Premises at the rates established
therefor by Lessor, said rates to be no higher, however, than those which Lessee
would be required to pay an available public utility company if it directly
furnished such service to Lessee.
21. All Charges Deemed Rent. Ail costs, expenses, and other charges which the
Lessee assumes or agrees to pay pursuant to this lease shall be deemed to be and
shall be additional rent, and in the event of a non-payment, lessor shall have
ail the rights and remedies herein provided for in case of nonpayment of rent.
22. Indemnification of Landlord.
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22.1 Lessee releases and, subject to the provisions of Article 37, shall defend,
indemnify and hold harmless Lessor, and each of its officers, directors,
shareholders, employees, agents and representatives, against and from all
liabilities, obligations, damages, penalties, judgments, claims, costs. charges,
fees and expenses, including, but not limited to, costs of investigation and
correction, reasonable architects', attorneys' and consultants' fees and costs,
which may be imposed upon, incurred by or asserted against Lessor or its
officers, directors, shareholders, employees, agents and representatives by
reason of any of the following:
(a) any act or omission during the term of this lease in, on, about or arising
out of or in connection with the use, operation, maintenance and occupancy of
the Premises or any part thereof, whether or not consented to by Lessor; by
Lessee. or Lessee's agents, contractors, servants or employees (whether inside
or outside the scope of employment), licensees or invitees, except to the extent
caused by the negligence or intentional misconduct of Lessor or its agents,
contractors, subcontractors, servants or employees;
(b) any accident, injury, casualty. loss, theft or damage whatsoever to any
person or tangible property occurring in, on, about or arising out of or in
connection with the use or occupancy by Lessee of the Premises, any common area.
roadway, alley, basement, pathway, curb, parking area, passageway or space under
or adjacent thereto arising from any cause or occurrence whatsoever, except to
the extent caused by the negligence or intentional misconduct of Lessor or its
agents, contractors, subcontractors, servants or employees;
(c) any failure on the part of Lessee or any of its agents, contractors,
subcontractors, servants or employees to perform or comply with any of the
covenants, agreements, terms, provisions, conditions or limitations contained in
this lease;
(d) any failure by Lessee to perform or comply with any of the terms or
provisions contained in this lease or any act performed by Landlord in exercise
of its rights under this Agreement; or
(e) any presence, release, migration, discharge, disposal, dumping, spilling or
leaking (accidental or otherwise). now or hereafter determined to be unlawful or
subject to governmentally imposed remedial requirements, caused by Lessee or in
any way connected with Tenant's business, of any hazardous, dangerous or toxic
substance of any kind (whether or not now or hereafter regulated, defined or
listed as hazardous, dangerous or toxic by any local, state, or federal
government) into, onto or under the Property or the air, soil, surface water, or
ground water thereof, or the pavement, structure, sewer system, fixtures,
equipment, tanks, containers or personally at the Property or into, onto or
under the property of others from the Premises. The foregoing indemnity shall
apply notwithstanding any provisions of federal, state or local law which
provides for the exoneration from liability in the event of settlement with any
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governmental agency, and notwithstanding Lessor's consent, knowledge, action or
inaction with respect to the act or occurrence giving rise to such right of
indemnity.
22.2 Tenant Liability Insurance. Lessee agrees to carry Commercial General
liability insurance insuring both Lessee and Lessor with insurance carriers
satisfactory to Lessor providing liability limits of not less than $500,000
single limit and providing a Certificate of Insurance evidencing same with not
less than a 30-day cancellation clause, provided, however, that Lessee's
obligation to indemnify and hold harmless Lessor as provided in this paragraph
shall be to the extent only of the degree of negligence attributable to Lessee,
its officers, employees, agents, invitees, and guests. Such insurance
certificate shall also include not less than $50,000 "Fire Damage" liability for
damage to leased Premises. Coverage may optionally include "Building Legal
Liability Insurance 'Special Form" (insurance industry forms CP0040 and CP1030
or equivalent)for tenant's liability (pursuant to paragraphs 13, 14 and 37)for
up to $25,000 for damage from other than fire.
22.3 In case any action or proceeding is brought against Lessor or its officers,
directors, shareholders, employees, agents and representatives by reason of any
claim indemnified under Section 22.1, Lessor shall promptly notify Lessee of
such claim and Lessee shall, at Lessee's expense, immediately resist or defend
such action or proceeding with counsel approved by Lessor in writing, which
approval shall not be unreasonably withheld. In connection with any such action
brought against Lessor by Lessee's employees, Lessee waives any immunity,
defense or other protection afforded by any worker's compensation, industrial
insurance or similar laws, with regard to such claim or action against Lessor.
22.4 Lessee waives and releases all claims against Lessor, its officers,
directors, shareholders, employees, agents and representatives, for any loss,
injury or damage (including consequential damages), to Lessee's property or
business during the term of this lease occasioned by theft, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order, acquisition,
order of governmental body or authority, earthquake, flood, fire, explosion,
falling objects, steam, water, rain or snow, leak or by flow of water, rain or
snow from the Premises or onto the Premises or from the roof, street, subsurface
or from any other place, or by dampness, or by the breakage, leakage,
obstruction or defects of the pipes, sprinklers, wires, appliances, plumbing,
heating, air conditioning, lighting fixtures of the improvements, or by the
construction, repair or alteration of the Premises or by any other acts or
omissions of any other tenant or occupant of the Spokane Business &Industrial
Park, or visitor to the Premises or any third party whatsoever, or by any cause
beyond Lessor's control.
22.5 Lessee's obligations under this Article shall survive any termination or
expiration of this lease.
23. Fire. If the Premises are destroyed or damaged by acts of war, the elements
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(including earthquake), or fire to such an extent as to render the same
untenantable in whole or in substantial part, the Lessor has the option of
rebuilding or repairing the same by giving notice of its intent to rebuild or
repair the Premises or the part so damaged to Lessee within twenty (20) days
after the occurrence of any such damage. If the Lessor elects to rebuild or
repair and does so without unnecessary delay, Lessee shall be bound by this
lease except that during such period rent of the Premises shall be abated in the
same proportion that the portion of the Premises rendered unfit for occupancy by
Lessee shall bear to the whole of the leased Premises. If the Lessor fails to
give notice of its intent to repair, Lessee shall have the right to declare this
lease terminated. Lessor's obligation (should it elect to repair or rebuild)
shall be limited to the basic building and Lessee shall forthwith replace or
fully repair at its expense all exterior signs, trade fixtures, equipment and
other installations originally installed by Lessee. Lessee agrees to give prompt
written notice to Lessor of any fire or of any other damage which may occur to
the leased Premises or any portion thereof, or of any other condition or
occurrence causing the leased Premises to be untenantable.
24. Condemnation. If the Premises or any part are appropriated or taken for any
public use by virtue of eminent domain or condemnation proceeding, or if by
reason of law or ordinance or by court decree, whether by consent or otherwise,
the use of the Premises by Lessee for any of the specific purposes herein before
referred to shall be prohibited, Lessee shall have the right to terminate this
lease upon written notice to Lessor, and rental shall be paid only to the time
when the Lessee surrenders possession of the Premises. In the event of partial
appropriation, Lessee may elect to continue in possession of that part of the
Premises not so appropriated under the same terms and conditions hereof, except
that in such cases, Lessee shall be entitled to an equitable reduction of the
rental payment hereunder. All compensation awarded or paid upon such a total or
partial taking of the fee of the Premises shall belong to and be the property of
Lessor, whether such compensation be awarded or paid as compensation for
diminution in value of the leasehold or to the fee; provided however, Lessor
shall not be entitled to any award made to Lessee for loss of business,
depreciation to, and cost of removal of stock and fixtures, provided that any
award for such claims shall not operate to reduce the amount of any award made
to Lessor as hereinbefore provided.
25. Taxes and Other Capital Impositions. For the purpose of payment of general
real property taxes which may be assessed against the demised premises, the base
year amount of general real property taxes shall be those general real property
taxes assessed directly against the demised premises, or the prorata share of
taxes if not assessed directly, at the commencement date of the lease term for
the demised premises, hereinafter the "Base Year Taxes." Lessor shall pay the
Base Year Taxes throughout the duration of the lease. In the event the general
real property taxes assessed directly against the demised premises, or the
prorata share of taxes if not assessed directly against the premises, increase
(the "Increase"), Lessee shall pay the general real property tax Increase as
additional rent. Lessor shall pay the general property taxes assessed against
the demised premises less the Increase, and except those taxes levied,
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if any, against Lessee's leasehold interest therein.
Lessee shall pay all personal property taxes imposed on Lessee's fixtures and
equipment and all other taxes, installments of general special assessments
(amortized over the longest permissible time). levies, licenses and permit fees,
utility hook-up fees and facility charges, and other governmental charges and
impositions of any kind and nature whatsoever, together with any interest or
penalties attributable to tenant's failure to pay the same when due, which at
any time during the term of this Lease may be assessed, levied or become due and
payable out of or in respect of the Premises or Lessee's use thereof, or become
a lien on the Premises, including, without limitation. any sales tax, business
and operation tax, excise tax or similar tax or imposition imposed upon rent or
Lessor's business of leasing property, and the cost of compliance with any
governmental requirements or regulations relating the Lessee's use of the
Premises or the utility services thereto, or the conduct of Lessee's business
(collectively, the "Impositions"); provided, however, Lessee shall not be
obligated to pay Lessor's net income taxes or any transfer or excise tax imposed
upon the conveyance of the Premises, or business and occupation taxes imposed
upon Lessor's business activities other than leasing property. Impositions shall
be paid by Lessee when due if billed directly to Lessee, and within thirty (30)
days of receipt of billing by Lessor if such impositions relate to the Premises
and other property owned or controlled by Lessor. In the event any Imposition
relates to property which is not coextensive with the Premises, Lessor shall
reasonably allocate the cost of the Imposition among the affected properties.
26. Non-waiver of Breach. The waiving of any of the covenants of this lease by
either party shall be limited to the particular instance and shall not be deemed
to waive any other breaches of such covenants. The consent by Lessor to any act
by Lessee requiring Lessor's consent shall not be deemed to waive consent to any
subsequent similar act by Lessee. The failure of the Lessor to insist upon
strict performance of the covenants and agreements of this lease, shall not be
construed to be a waiver or relinquishment of any such covenants or agreements,
but the same shall remain in full force and effect.
27. Default. If Lessee should, after written notice, fail to remedy any default
(i) in the payment of any sum due under this lease for ten days or (ii) in the
keeping of any other term, covenant or condition herein with all reasonable
dispatch, not exceeding 20 days, then in any of which events, Lessor shall have
the right, at its option, in addition to and not exclusive of any other remedy
Lessor may have by operation of law, without any further demand or notice, to
re-enter the Premises and eject all persons therefrom, using all necessary force
so to do, and either (aa) declare this lease at an end, in which event Lessee
shall immediately pay Lessor a sum of money equal to the amount, if any, by
which the then cash value of the rent reserved here under for the balance of the
term of this lease exceeds the then cash reasonable rental value of the Premises
for the balance of said term, or (bb) without terminating this lease may relet
the Premises, or any part thereof, as the agent and for the account of Lessee
upon such terms and conditions as Lessor may deem advisable, in which event the
rents received on such re-letting shall be applied first to the expenses of such
re-
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letting and collection, including necessary renovation and alterations of the
Premises, reasonable attorneys' fees, any real estate commissions paid, and
thereafter toward payment of all sums due or to become due Lessor hereunder, and
if a sufficient sum shall not be thus realized to pay such sums and other
charges, Lessee shall pay Lessor any deficiency monthly, notwithstanding Lessor
may have received rental in excess of the rental stipulated in this lease in
previous or subsequent months, and Lessor may bring an action therefore as such
monthly deficiency shall arise.
28. Litigation Costs. If any legal action is instituted to enforce this lease,
or any part thereof, the prevailing party shall be entitled to recover
reasonable attorneys' fees and court costs. If any legal fees are incurred by
Lessor relative to the enforcement of any term of this lease, Lessee shall be
liable to Lessor for said fees and shall pay the same to Lessor as a condition
of continuing possession of the leased Premises, within ten (10) days of demand
by Lessor therefor. Venue of any legal action brought hereunder shall be Spokane
County, State of Washington.
29. Removal of Personal Property by Lessee. Lessee shall have the right to
remove all personal property, trade fixtures, and office equipment, whether
attached to the Premises or not, provided that such may be removed without
serious damage to the building or Premises. Ail holes or damage to the building
or Premises caused by removal of such items shall be restored or repaired by
Lessee promptly. All property not so removed shall be deemed abandoned by
Lessee.
30. Removal of Property by Lessor. If Lessor reenters the Premises or takes
possession of the Premises prior to normal expiration of this lease, Lessor
shall have the right, but not the obligation, to remove from the leased Premises
ail personal property located therein and may place the same in storage in a
public warehouse at the expense and risk of Lessee, with right to sell such
stored property, without notice to Lessee, after it has been stored for a period
of thirty (30) days or more, the proceeds of such sale to be applied first to
the cost of such sale, second to the payment of the charges for storage, if any,
and third to the payment of any other sums of money which may then be due from
Lessee to Lessor under any of the terms hereof, the balance, if any, to be paid
to the Lessee.
31. Loading Platforms. Loading platforms attached to multiple tenant buildings
may be used for loading and unloading by all tenants in the building. All
responsibility for each portion of the loading platform here under related to
the "Premises" shall be borne by the tenant occupying the space adjacent to such
portion of the loading platform. No tenant utilizing a portion of the platform
adjacent to another's Premises shall leave vehicles or goods unattended, and all
tenants shall cooperate to avoid obstruction of the use of the platform.
32. Insolvency. If Lessee becomes insolvent, voluntarily or involuntarily
bankrupt, or
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if a receiver, assignee, or other liquidating officer is appointed for the
business of Lessee, then Lessor may cancel this lease at its option.
33. Assignments by Lessee. Lessee shall not assign, mortgage or hypothecate this
lease, or any interest therein, or permit the use of the Premises by any person
or persons other than Lessee, or sublet the Premises, or any part thereof,
without the prior written consent of Lessor. Any transfer of this lease from the
Lessee by merger, consolidation or liquidation shall constitute an assignment
for purposes hereof. This lease shall not be assigned by operation of law. If
consent is once given by Lessor to the assignment of this lease or any interest
therein, Lessee shall not be barred from afterwards refusing to consent to any
further assignment. Any attempt to sell, assign, mortgage, hypothecate, or
sublet without the written consent of the Lessor shall be deemed as a default by
Lessee, entitling Lessor to reenter pursuant to Paragraph 27 if it so elects.
Lessor shall not unreasonably withhold its consent to assignments of this lease
or subletting of the Premises or a portion or portions thereof by Lessee to
responsible assignees or tenants. Without affecting any of its other obligations
under this lease, Lessee will pay Lessor, as additional rent, fifty percent
(50%) of any money or other economic consideration that (a) is actually paid to
or for the benefit of Lessee as a result of an assignment or subletting, whether
or not denominated rental under the assignment or sublease, and (b) exceeds the
sums which Lessee is obligated to pay Lessor under this lease (prorated to
reflect obligations allocable to that portion of the Premises subject to such
assignment or sublease). Lessee will not amend the assignment or sublease in
such a way as to reduce or delay payment of amounts that are provided in any
assignment or sublease approved by Lessor.
The failure or inability of the assignee or subtenant to pay Lessee pursuant to
the assignment or sublease will not relieve Lessee from its obligations to
Lessor under this Lease.
Lessor's consent to any assignment or subletting may be conditioned upon the
agreement of the assignee or subtenant to guaranty or assume Lessee's
obligations under the lease (prorated to reflect obligations allocable to that
portion of the Premises subject to such assignment or sublease). Lessee shall
reimburse Lessor upon demand for Lessor's reasonable costs (including without
limitation, attorneys fees) incurred in reviewing, analyzing, or otherwise
responding to Lessee's requests for Lessor's consent to assignments, subletting,
or Lessee's other requests connected with the lease or any of Lessee's
financing, including without limitation, waivers and other consents, estoppels,
certificates, plan reviews and any amendments, extensions or other modifications
to the lease. Nothing contained in the preceding sentence shall obligate Lessor
to review or approve any request by Lessee and Lessee shall reimburse Lessor for
all costs regardless of whether consent is granted or withheld.
34. Statements by Lessee. Lessee agrees at any time and from time to time upon
not less than ten days' prior request by Lessor, to execute, acknowledge and
deliver to
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Lessor a statement in writing, certifying that this lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), and the dates
to which the fixed rent and other charges have been paid in advance, if any, it
being intended that any such statement delivered pursuant to this paragraph may
be relied upon by any prospective purchaser, mortgagee, or assigns or any
mortgagee of the Premises.
35. Subordination. Lessee, upon request of Lessor, will subordinate this lease
to any mortgage which now or hereafter affects the demised Premises, and to any
renewals, modifications or extensions of such mortgage. Lessee will execute and
deliver at Lessor's expense such instruments subordinating this lease to any
mortgage now or conforming or evidencing such subordination. Provided, however,
Lessor shall deliver or cause to be delivered to Lessee an agreement in writing
from any such mortgagee to the effect that so long as Lessee shall faithfully
discharge his obligations under this lease, his tenancy will not be disturbed
nor this lease affected by any default of such mortgage, and that in the event
of a sale of the demised Premises in foreclosure or any sale, transfer or
conveyance in lieu thereof, that same will be sold, transferred or conveyed
subject to this lease.
36. Short Form Lease. Each party agrees to execute upon request a short form
lease for the purpose of recordation. Each party agrees to re-execute this lease
at any time upon the request of the other.
37. Insurance and Waiver of Subrogation. Lessor agrees it will maintain
appropriate property insurance on the building, office, and appurtenances which
are the property of Lessor. If Lessee shall substantially increase the cost of
such insurance or jeopardize the availability of coverage due to Lessee's
operations or failure to comply with fire codes and regulations, Lessor shall
have the right to increase the rental payable here under in an amount equal to
the increased cost of insurance premiums resulting therefrom. Should Lessor's
insurance here under be canceled due to any actions of Lessee, Lessor may
terminate this lease upon ten (10) days notice to Lessee and proceed as outlined
in Paragraph 27.
Lessee shall maintain appropriate property insurance covering the personal
property, assets, and fixtures owned by Lessee and located within the Premises.
Lessor and Lessee waive all rights to recover against each other or against the
officers, directors, shareholders, partners, joint ventures, employees, agents,
customers, invitees, or business visitors of each other for any loss or damage
to its property arising from any cause except that Lessee shall remain liable
for Lessor's deductible up to a maximum amount of $25,000 (however, for damage
caused by fire, such sum shall be $50,000) for its obligations under Paragraphs
13 and 14 and the waiver described herein to that extent shall not apply. Lessor
and Lessee will cause their respective insurers to
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issue, appropriate waiver of subrogation rights endorsements to all policies of
insurance carried in connection with the building or the Premises or the
contents of either of them.
38. Definitions. Whenever the singular number is used in this lease and whenever
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 or association. If there be more than one
lessee, the obligations here under imposed upon Lessee shall be joint and
several. This instrument contains all of the agreements and conditions made
between the parties hereto and may not be modified orally or in any other manner
than by an agreement in writing signed by all of the parties hereto or their
respective successors in interest. Time is and shall be of the essence of each
term and provision of this lease.
39. Heirs and Successors. All the covenants, agreements, provisions, and
conditions of this lease shall inure to the benefit of and be binding upon the
parties hereto, their successors, heirs, executors, administrators and assigns.
40. Severability. The invalidity of any provision of this lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
of the provisions hereof.
41. No Other Agreements. Both parties acknowledge that no representation or
condition or agreements varying or adding to this lease have been made either
orally or in writing and further that no modification, addition, or change shall
be made or shall be effective unless reduced to writing and executed by both
parties.
42. Notices. All notices and demands required or agreed to be given here under
by either party shall be in writing and sent by registered or certified mail,
return receipt requested, to the respective parties at the following addresses,
or at such other address that either xxxxx may designate in writing:
Lessor: 0000 X. Xxxxxxxx Xxxx, Xxxxxxxx X-00, Xxxxxxx, XX 00000
Lessee: 0000 X. Xxxxxxxx Xxxx, Xxxx #00, Xxxxxxx, XX 00000
43. Riders. The riders or exhibits, if any, attached to this lease are made part
hereof by refinance.
44. Hazardous Materials. Lessee shall not, without prior written notice to
Lessor, engage in or allow the generation, use, manufacture, treatment,
transportation, storage, investigation, testing, or disposal of any hazardous
substance in, on, under or adjacent to the Premises. Lessee shall ensure that at
all times Lessor has true, complete and accurate information regarding any of
Lessee's activities on the Premises involving hazardous substances. Without
limiting the generality of the foregoing sentence, prior to
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taking occupancy of the Premises, Lessee shall provide Lessor with (a) a
description of any processes or activities involving the use of hazardous
substances to be conducted by Lessee on the Premises, (b) a description (by type
and amount)of any hazardous substances Lessee plans to generate, use,
manufacture, transport, store or dispose of in connection with its use of the
Premises, and (c) a description of techniques and management practices to be
utilized by Lessee to reduce the amount of hazardous substances used and wastes
generated, to prevent release of hazardous substances to the environment and to
ensure the proper handling, labeling, use and disposal of hazardous substances
used by Lessee on the Premises. Lessee shall notify Lessor prior to any material
changes in such-processes, activities, type and amount of hazardous substances
and/or techniques and management practices and in any event, Lessee shall report
to Lessor at least once yearly, which report may be part of Lessee's self
environmental audit, regarding any such processes, activities, hazardous
substances, techniques. and management practices. Lessee shall contemporaneously
provide Lessor with copies of all reports, listings or other information
required by any governmental entity relating to any hazardous substances
utilized by Lessee, and shall promptly provide any other information related to
Lessee's utilization of hazardous substances as Lessor may reasonably request.
Lessee shall not engage in or allow the unlawful release (from underground tanks
or otherwise)of any hazardous substance in, on, under or adjacent to the
Property (including air, surface water and ground water on, in, under or
adjacent to the Property). Lessee shall at all times be in compliance with all
applicable law (and shall cause its employees, agents and contractors to be)
with respect to the Premises or any hazardous substance and shall handle all
hazardous substances in compliance with good industry standards and management
practices. As used in this Lease, the term "hazardous substance" shall mean any
substance, chemical or waste, including any petroleum products or radioactive
substances, that is now or shall hereafter be listed, defined or regulated as
hazardous, toxic or dangerous under any applicable laws. As used in this
Paragraph 44, "applicable law" shall mean any federal, state, or local laws,
ordinances, rules, regulations and requirements now or hereafter enacted
(including consent decrees and administrative orders) relating to the
generation, use, manufacture, treatment, transportation, storage, disposal, or
release of any hazardous substance.
Lessee shall promptly notify Lessor, in writing, if Lessee has or acquires
notice or knowledge that any hazardous substance has been or is threatened to be
unlawfully released, discharged or disposed of, on, in, under or from the
Premises. Lessee shall immediately take such action as is necessary to report to
governmental agencies as required by applicable law and to detain the spread of
and remove, to the satisfaction of Lessor and any governmental agency having
jurisdiction, any hazardous substances released, discharged or disposed of as
the result of or in any way connected with the conduct of Lessee's business, and
which is now or is hereafter determined to be unlawful or subject to
governmentally imposed remedial requirements. Lessee shall immediately notify
Lessor and provide copies upon receipt of all written complaints, claims,
citations,
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demands, inquiries, reports or notices relating to the condition of the Premises
or compliance with environmental laws: Lessee shall promptly cure and have
dismissed with prejudice any such actions or proceedings in any way connected to
the conduct of Lessee's business, to the satisfaction of Lessor, and Lessee
shall keep the Premises free of any hen imposed pursuant to any environmental
law. Lessor shall have the right at all reasonable times and from time to time
to conduct environmental audits of the Premises (including sampling, testing,
monitoring and accessing environmental records required by applicable law) by a
consultant of Lessor's choosing, and Lessee shall cooperate with the conduct of
these audits. If any violation of any applicable law by Lessee or any violation
of Lessee's obligations under this Paragraph 44 are discovered, in addition to
any other right Lessor may have against Lessee, the fees and expenses of such
consultant shall be borne by the Lessee and shall be paid by Lessee to Lessor on
demand.
Lessee shall at all times maintain an employee or consultant charged with
responsibility for Lessee's compliance with all applicable law relating to
hazardous substances and shall advise Lessor of the title, address and phone
number of such employee or consultant. Lessee shall implement a system to review
Lessee's hazardous substance activities on a regular basis and shall in good
faith (consistent with sound business practices) implement and maintain best
management practices to minimize the hazards posed by materials utilized by
Lessee, for example, by reducing the amounts of hazardous substances used and
disposed of, by utilizing less dangerous or less toxic materials or by
implementing programs to ensure the safe and proper handling, labeling, use and
disposal of hazardous substances.
Each year, between February and April and the Lessee shall conduct a Self
environmental audit of the Lessee operations, regulatory compliance status, and
the Premises utilizing Lessor's standard format and checklists. Lessee shall
present the results of the environmental audit, and proposed operational changes
to address any audit deficiencies. to Lessor within six weeks after conducting
the audit.
Prior to vacation of the Premises, in addition to all other requirements under
this Lease, Lessee shall remove any Hazardous Substances placed on the Premises
during the term of this Lease or Lessee's possession of the Premises, and shall
demonstrate such removal to the Lessor's satisfaction.
Lessee's obligations under this Paragraph 44 with respect to any occurrence
during the term of this lease shall survive any termination or expiration of
this lease.
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IN WITNESS WHEREOF, the parties hereto have executed this lease the day and year
first above written.
Lessee: Lessor:
TELECT, INC. XXXXXXX DEVELOPMENT
CORPORATION
By: By:
-------------------------------- --------------------------
Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Its: President Its: President
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STATE OF WASHINGTON )
) ss
COUNTY OF SPOKANE )
On this 11th day of July, 1995, personally appeared Xxxxx Xxxxxxxx to me known
to be the President of Telect, Inc., the corporation that executed the within
and foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said corporation, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute the said
instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year first above written.
----------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Spokane
My commission expires:
------------
STATE OF WASHINGTON )
) ss
COUNTY OF SPOKANE )
On this 12th day of July, 1995, personally appeared Xxxxxxx Xxxxxxxx to me known
to be the President of Xxxxxxx Development Corporation, the corporation that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on oath stated that he was
authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year first above written.
-----------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Spokane
My commission expires:
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