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EXHIBIT 10.7
XXXXXX BUILDING
TRIPLE NET LEASE
THIS TRIPLE NET LEASE is made and entered into by and between JUBILATION
ENTERPRISES, LLC, a Washington limited liability company (herein "Lessor"), and
TELECT, INC., a Washington corporation (herein "Lessee"), on the 23rd day of
August, 2000.
WHEREAS, Lessor owns real property upon which it intends to construct a building
consisting of approximately 52,000 square feet (the "Building") with adjacent
parking areas; and
WHEREAS, Lessee wishes to lease and occupy the real property and Building upon
its completion;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter expressed, the parties hereto agree as follows:
Premises. Lessor hereby leases unto Lessee and Lessee hereby leases from Lessor,
for the term and under the conditions hereinafter set forth, that certain parcel
of real property legally described on Schedule I attached hereto including the
Building and all present and to be constructed improvements thereon (hereinafter
called "Premises") at ___________ Xxxxxx Road, Liberty Lake, Washington, in
accordance with the site plan and elevation attached hereto as Schedules II and
III, and all easements and other rights appurtenant to the Premises, including
but not limited to nonexclusive rights to ingress, egress, and parking.
Commencement Date. The lease term shall commence at 12:01 a.m. on the date
(hereinafter called "Commencement Date") that a certificate of occupancy is
issued for the Building.
Term. The term of this lease shall be for the period commencing on the
Commencement Date and ending September 30, 2012; provided, however, that the
term of this lease may be extended as provided in Section 19 hereof. The phrase
"Lease Term," as used in this lease, shall be the term of this lease and any
extension thereof pursuant to said Section 19. Notwithstanding the foregoing, at
any time after September 30, 2002, and from time to time thereafter, Lessee may,
upon giving not less than twelve (12) months prior written notice to Lessor,
reduce the number of square feet of the Premises occupied by Lessee all within
the sole discretion of Lessee. The notice shall specify the amount of the square
foot reduction, the location thereof within the Premises and the effective date
such reduction is to take place. Lessee shall upon the effective date vacate
that portion of the Premises described in the notice in accordance with the
terms of this Lease and the Monthly Rent shall thereupon be proportionately
reduced. The parties shall forthwith execute an amendment to the Lease
describing such changes.
Monthly rental. Lessee shall, during the Lease Term, pay to Lessor at 00000 X.
Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, or such other
place as Lessor shall designate in writing from time to time, without setoff or
deduction for any reason whatsoever, a monthly rental in the amount of
Twenty-Six Thousand Two Hundred Twenty-Three Dollars ($26,223.00). The monthly
rental shall be prorated for partial months falling within the Lease Term, and
shall be payable in advance on or before the first day of each calendar month
during the Lease Term;
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provided, however, that the first payment shall be due on the Commencement Date.
If any rent payment is not received by Lessor within five (5) days after the due
date (or on the next business day if the fifth day is not a business day), then
Lessee shall pay as additional rent the sum of five percent (5%) of the
delinquent payment for each month or portion thereof that the payment remains
overdue.
Additional rental. In addition to the monthly rental, as additional rental
Lessee shall pay to the public authorities charged with the collection thereof,
promptly as the same becomes due and payable, all taxes, general and special,
permits, inspection and license fees, and other public charges or assessments,
whether of a like or different nature, levied upon or assessed against the
Premises and any buildings, structures, fixtures or improvements now or
hereafter located thereon, or arising in respect of the occupancy, use or
possession of the Premises, and which become, or installments of which become,
due and payable during the Lease Term or which may otherwise become the
obligation of Lessor in respect of the Lease Term. Where appropriate, such
charges shall be apportioned between Lessor and Lessee to account for the
commencement and termination of the Lease Term. Charges to be paid by Lessee as
additional rental shall include but not be limited to the following:
Real estate taxes. Lessee shall pay all real estate taxes imposed in
connection with the demised Premises, including any increase in such
taxes whether by reason of an increase in either the tax rate or the
assessed valuation, or the assessment or imposition of any tax on
real estate not levied, assessed or imposed at the commencement of
the Lease Term, or for any other reason.
Assessments. In the event of any assessment for public betterments
or improvements which may be levied on the Premises, Lessee shall
pay any such assessment or any installment thereof due and payable
at any time during the Lease Term. At Lessee's option, Lessor shall
take the benefit of the provisions of any statute or ordinance
permitting any such assessment to be paid over a period of time, and
Lessee shall be obligated to pay only installments which shall
become due and payable during the Lease Term.
Rental taxes. Lessee shall pay Lessor an amount which would be
sufficient to yield a net monthly rental equal to that set forth in
Section 4, above, after payment by Lessor of any tax based or levied
upon or measured by such gross or net rental income now or hereafter
imposed on Lessor by the State of Washington, the County of Spokane,
or any political subdivision of either of the foregoing.
Licenses and other taxes. Lessee shall be liable for and shall pay
for all licenses, excise fees, sales tax, use, business and
occupation taxes, together with any other taxes incurred in the
operation of its business. Lessee shall not permit any lien to be
filed against the Premises because or on account of any such fee,
license, tax or other charge.
Contest of liability. Lessee shall not be required to pay, discharge
or remove any tax (including penalties and interest), tax lien,
forfeiture or other imposition or charge upon or against the
Premises, or any part thereof, or the improvements at any time
situated thereon, so long as Lessee shall in good faith contest the
same or the validity thereof by appropriate
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legal proceedings which shall operate to prevent the collection of
the tax, forfeiture, lien or imposition so contested, or the sale of
said Premises or any part thereof to satisfy the same. Pending any
such legal proceedings, Lessor shall not have the right to pay,
remove or discharge the tax, forfeiture, lien or imposition thereby
contested. Any proceeding or proceedings for contesting the validity
or amount of taxes, or other public charges, or to recover back any
tax or other imposition paid by Lessee, may be brought by Lessee in
the name of Lessor or in the name of Lessee, or both, as Lessee may
deem advisable. However, if any such proceeding be brought by
Lessee, Lessee shall indemnify and hold Lessor harmless against any
and all loss, costs or expenses of any kind that may be imposed upon
Lessor in connection therewith, and Lessor shall have the right, at
any time while such taxes remain unpaid, to demand and receive a
surety bond satisfactory to Lessor protecting Lessor against loss
arising out of such contested taxes, and Lessee agrees to furnish
such bond promptly on demand by Lessor.
Compliance. Lessee agrees to exhibit to Lessor on demand receipts
evidencing payment of all such taxes, assessments or other charges
to be paid by Lessee as additional rental. If Lessee shall default
in the payment of any taxes or public charges required to be paid by
Lessee, Lessor shall have the right, in addition to all other
remedies, to pay the same, together with any penalties and interest,
in which event the amount so paid by Lessor shall be paid by Lessee
to Lessor on demand, together with interest thereon at the rate of
fifteen percent (15%) per annum.
Use of Premises. The Premises shall be used and occupied only as combined
office, manufacturing and for general business purposes, and for no other
purpose without the written consent of Lessor. Lessee agrees that it shall not
permit any act to be done on or about the Premises that is unlawful or improper.
Lessee shall not commit, or allow to be committed, any waste, and shall not use
or permit any part of the Premises to be used for any illegal or immoral purpose
or in any way as to constitute a public or private nuisance. Lessee shall, at
its own expense, observe and comply with all laws, ordinances and regulations of
all duly constituted governmental authorities, and shall observe such reasonable
rules and regulations as may be adopted and published by Lessor for the safety,
care, cleanliness and benefit of the Premises, and for the preservation of good
order therein.
Utilities. Lessee shall be liable for and shall timely pay for all utilities
used on the Premises, including but not limited to heat, lights, electricity,
gas, water, sewage and garbage disposal service. Lessee shall promptly reimburse
Lessor for all such expenses mistakenly charged to Lessor.
Maintenance and repair. During the Lease Term, Lessee shall, at is own cost and
expense, care for and maintain in good condition and repair the foundations,
exterior walls and roof, and all other exterior portions of the Building on the
Premises. Lessee shall replace windows and other glass cracked or broken as a
result of forces from inside or outside the Building, and shall otherwise pay
for and perform all other maintenance necessary to keep the Premises in a good
state of repair, reasonable wear and tear excepted. Without limiting the
generality of the foregoing, Lessee shall, at Lessee's expenses, keep in good
order, condition and repair the heating, ventilating and air conditioning
system, boilers, elevators, doors, frames, moldings, locks and other hardware,
plumbing and any mechanical or electrical apparatus which services or
constitutes a fixture or part of the
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Premises. Lessee will pay all licenses and fees for the maintenance, inspection
and operation of any parts of the Premises requiring the same. Lessee shall, at
the expiration or termination of the lease, surrender and deliver the Premises
to Lessor in as good condition as when received by Lessee from Lessor, or as
thereafter improved, reasonable wear and tear from normal use with required
maintenance excepted. Lessee shall repair any damage to the Premises occasioned
by Lessee's use thereof, or by the removal of Lessee's trade fixtures or
equipment, which repairs shall include the patching and filling of any holes and
repair of any structural damage. Lessee agrees to maintain all sidewalks on or
appurtenant to the Premises in a clean condition according to local ordinances
under the directions of appropriate governmental offices, at its own costs and
expense, and to keep such areas reasonably free and clean of foreign objects,
papers, debris, obstructions, standing water, snow and ice. Lessee shall furnish
its own janitorial service and shall keep the Premises in a neat, clean and
orderly condition and will operate the same at all times in compliance with all
state and local laws, ordinances and regulations.
Alterations and improvements. Lessee shall, at its own expense, make all
repairs, modifications or alterations to the Building on the Premises that may
be lawfully required pursuant to any Federal, state or municipal law, ordinance
or regulation. Lessee may from time to time and at its own expense make repairs,
replacements, additions, improvements, alterations or changes necessary or
appropriate for the proper and suitable use of the Building; provided, always,
that such repairs, modifications, replacements additions, improvements,
alterations or changes will not lessen the then value of the Premises, and shall
be in accordance with plans and specifications prepared by Lessee and submitted
to Lessor for approval, which approval shall not be unreasonably withheld. The
provisions of the preceding sentence with respect to submitting plans and
specifications to Lessor shall not apply if the change to be made involves an
expense of less than Five Thousand Dollars ($5,000.00). As a condition to giving
consent, Lessor may require that Lessee remove any such alterations,
improvements or additions, including utility installations, at the expiration of
the Lease Term, and restore the Premises to its prior condition. If Lessor shall
fail to object to such plans and specifications within thirty (30) days after
such submission, the same shall be deemed approved. All work shall be done in a
good and workmanlike manner, and when completed by free and clear of all claims
for liens by mechanics or materialmen for or on account of labor and materials
furnished in and about such operations. Nothing herein contained shall be
construed to authorize or empower Lessee to encumber the Premises with any kind
or form of lien, but such right of lien shall not exist, and this lease and its
recording or the recording of a memorandum hereof is intended as notice to any
and all persons doing work or labor or furnishing materials that none of them
shall have the right to a lien of any kind whatsoever upon the Premises. Except
as specifically provided herein otherwise, any improvements made by Lessee shall
become part of the Premises and owned by Lessor upon termination of this lease.
Lessee shall hold Lessor harmless from any damage, loss or expense arising out
of any work done pursuant to this Section 9.
Lessor's access. Lessor and its agents shall have unrestricted access to all
portions of the Premises at all times for the purpose of examining the condition
thereof, or for the purpose of showing the Premises to prospective purchasers,
Lessees or lenders. Furthermore, in the event it becomes necessary in order to
preserve the Premises, Lessor may elect to make necessary repairs, alterations
or additions thereto, it being understood, however, that such repairs,
alterations or additions should not be made by Lessor until having first served
Lessee with notice of the necessity of making the
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same, and Lessee shall have refused to comply with such notice for a period of
thirty (30) days. Lessee shall, on demand, reimburse Lessor for all sums
expended to make such needed repairs, together with interest compounded daily at
the rate of twelve percent (12%) per annum. No compensation shall be paid to or
claimed by Lessee from Lessor by reason of inconvenience, annoyance or damage of
any kind whatsoever arising from inspecting or showing the Premises, or for
making repairs, maintenance or alterations to the Premises. Nothing herein shall
be construed as an agreement on the part of Lessor to make and repair or
alteration whatsoever.
Signage. Lessee shall be entitled to place appropriate signage on the Premises
for purposes of identification and advertising, subject to the prior written
approval of Lessor, which shall not be unreasonably withheld. All signage shall
remain upon and be surrendered with the Premises at the expiration of the Lease
Term, subject to the right of Lessee to remove the signage itself if it can be
done without material damage. However, as a condition to giving consent to
improvements which display signage, Lessor may require that Lessee remove the
improvement at the expiration of the Lease Term and restore the Premises to its
prior condition.
Liability and insurance. Lessee, at is sole cost and expense, agrees to take out
or cause to be taken out and maintained in force during the Lease Term public
liability insurance in responsible insurance companies to protect Lessee and
Lessor against liability to the public occasioned through the use of or
resulting from any accident occurring in, upon or about the Premises. Such
insurance shall be in the minimum amount of Fifty Thousand Dollars ($50,000.00)
for property damage, the minimum amount of Five Hundred Thousand Dollars
($500,000.00) with respect to the claim of one (1) person and One Million
Dollars ($1,000,000.00) with respect to the claims of two (2) or more persons.
Lessor shall be named as an additional insured on all such policies and Lessee
shall furnish Lessor with a certificate evidencing that Lessee has obtained or
provided for such a policy and that the insurance carrier has assumed the
liability of Lessee as required under this agreement.
Exoneration of Lessor. All personal property in and upon the
Premises shall be at the sole risk of Lessee, and Lessor shall not
be liable for any damage, either to person or property sustained by
Lessee or any other person because of the use and occupancy of the
Premises, or on account of any act or omission of the Lessee, its
agents, employees, customers or patrons, or due to the happening of
any accident in connection with the use and occupation of the
Premises, unless such accident shall have been occasioned by the
negligence of the Lessor or its agents or employees. Lessor shall
not be liable for any damage to property or person from any water,
gas, smoke or electricity which may leak from or flow from any part
of the Premises or from the pipes or plumbing works of same.
Indemnity of Lessor. Lessee agrees to indemnify and hold Lessor
harmless from and defend Lessor against any and all claims, suits,
demands, or judgments from any injury or damage to any person or
property, including loss of use thereof, whatsoever arising out of
the use or occupancy of the Premises by Lessee or occasioned by the
negligence of Lessee, its agents, employees, sublessees, licensees
or concessionaires, or of any other person entering the Premises
under the express or implied invitation of Lessee, or arising out of
any breach or default by Lessee in the performance of its
obligations hereunder.
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Casualty loss and insurance. At all times during the term of this lease, Lessee
will keep or cause to be kept, at its own expense, the Building and other
improvements now existing or hereafter erected on the Premises, insured against
the risks covered by the uniform standard from of fire insurance policy with
extended coverage endorsement, in an amount sufficient to prevent Lessor or
Lessee from becoming a co-insurer within the terms of applicable policies, but
in any event in an amount of not less than the full replacement insurable cost
thereof. Lessee's obligation under the preceding sentence shall be deemed to
have been fully performed if the insurance is based upon the standard valuation
letter issued by the insuring company or its agent. All insurance policies
maintained pursuant to this clause shall be carried in favor of Lessor, Lessee
and any mortgagee of the Premises as their interests may appear. The originals
of all such policies and renewals shall be retained by Lessee, and duplicate
originals or suitable insurance certificates shall be delivered to Lessor and
any mortgagee of the Premises.
Insurable restoration. If at any time after the commencement of the
term of this lease any of the improvements on the Premises shall be
damaged or destroyed by any of the perils covered by the type of
insurance policy described in this Section 13, this lease shall
continue in full force and effect, and Lessee shall promptly, and at
its sole expense, repair and restore the improvements on the
Premises to substantially the condition in which the same existed
prior to the casualty. The proceeds of such insurance policy shall
be disbursed to Lessee as construction progresses to be used for the
purpose of repairing and restoring the Premises as herein provided.
Insurable reconstruction. If the Building shall be damaged or
destroyed to such an extent that the construction of an entirely new
building shall be required or be advisable, Lessor may elect either
to terminate this lease or require the Lessee to erect, with
reasonable diligence, a suitable replacement building, in a good and
workmanlike manner, at its sole cost and expense, in compliance with
all requirements of law and governmental rules and regulations, and
in accordance with plans and specifications which shall be approved
by Lessor. Such new building shall not be of substantially cheaper
poorer or weaker character or construction that the Building so
destroyed. Lessor shall give written notice to Lessee of its
election within sixty (60) days after the occurrence of such
casualty.
Uninsurable damage or destruction. If the improvements on the
Premises are substantially damaged or destroyed as a result of any
cause or peril not covered by the type of insurance policy described
in this Section 13, either party shall have the option of
terminating this lease or of repairing or rebuilding the Building;
provided, however, that Lessee shall not have the option if such
damage or destruction is due to the negligence of Lessee or any of
its agents or employees. Within sixty (60) days after such damage or
destruction, each party shall notify the other of such party's
intentions.
Insufficient or excessive insurance proceeds. If for any reason
whatsoever Lessee has failed to keep and maintain insurance in the
amounts required by the Section 13, Lessee agrees to supply all such
additional funds as may be necessary for the repair, restoration or
rebuilding of the Premises as required by this Section 13. In any
other case, Lessee's obligation to rebuild and repair under this
Section 13 shall be limited to the extent of the net insurance
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proceeds available to Lessee for restoration or reconstruction. If
the insurance proceeds are in excess of the amount used by Lessee to
replace, repair or restore the Premises, such excess sums shall
inure to the benefit of Lessee.
Abatement of rent. In no event shall the minimum annual rental xxxxx
hereunder by reason of any damage or destruction, unless the Lease
Term is terminated by mutual agreement of the parties or at the
option of either party as provided in Section 13.
Miscellaneous insurance provisions. All insurance of any kind required to be
maintained by Lessee under this lease shall be governed by the following
provisions:
Qualifications. All insurance shall be issued as a primary policy
for a period of not less than one (1) year, by insurance companies
authorized to do business in the State of Washington and with a
financial rating of at least an A status as rated in the most recent
edition of Best's Insurance Reports. Policies shall contain an
endorsement requiring twenty (20) days' written notice from the
insurance company to both parties and any mortgagee of the Premises
before expiration, cancellation or change in the coverage, scope or
amount of any policy.
Waiver of subrogation. Lessor and Lessee hereby mutually release
each other and their respective officers, employees, agents and
representatives from all claims and liabilities for loss or damage
to any person or to the Premises or any property in or on the
Premises, that are caused by or result from risks insured against
under any insurance policy in force at the time of any such loss or
damage, whether or not such loss or damage shall be caused by the
negligence of either party or their agents. Each insurance policy
required under this lease shall provide that the insurance company
waives all right of recovery by way of subrogation against either
party in connection with any loss or damage covered by such
policy.
Proof. The originals of all insurance policies and renewals may be
retained by Lessee, but duplicate originals or suitable insurance
certificates shall be delivered to Lessor and any mortgagee of the
Premises. Not less than twenty (20) days prior to the expiration of
any policy of insurance, Lessee will deliver to Lessor a renewal or
new policy to take the place of the policy expiring.
Failure to maintain insurance. If Lessee shall fail to furnish
insurance policies as provided in this lease, or to deliver said
policies and renewals or certificates thereof or binders pro tempore
as provided herein, or to pay any premium on such insurance, Lessor
may procure such insurance or pay the premium therefor, or both, and
such amounts shall immediately become due to Lessor payable upon
demand by Lessor, together with interest compounded daily at the
rate of twelve percent (12%) per annum.
Combination insurance. With respect to insurance coverage required
under this lease, should Lessee desire to carry such coverages so as
to apply to the Premises together with other property owned or
controlled by Lessee, its parent or affiliated companies, customary
and proper certificates of the insurance carrier in each instance,
as to such insurance coverage, delivered to Lessor and any mortgagee
of the Premises shall be deemed sufficient proof of
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compliance with Lessee's insurance obligations under this lease, as
to both original coverage and renewals, provided that such
certificate shall show that the parties insured are Lessee, Lessor,
and any mortgagee of the Premises, as their interest may appear.
Condemnation. In the event that all or any portion of the Premises should be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or by private purchase in lieu
thereof, the following provisions shall apply:
Total condemnation. If the entire Premises shall be acquired or
condemned by eminent domain, then the term of this lease shall cease
as of the date title or possession shall be transferred in such
proceedings, whichever date shall first occur, and all rentals shall
be paid up to that date and Lessee shall have no claim against
Lessor for the value of any unexpired term of this lease.
Partial condemnation. If a substantial part of the Premises shall be
acquired or condemned by eminent domain, the whole determination of
which shall be in the reasonable discretion of Lessor, then the term
of this lease and all rights and obligations thereunder shall cease
and terminate as of the date of transfer of title or possession in
such proceeding, whichever date shall first occur. All rentals shall
be paid up to that date and Lessee shall have no claim against
Lessor for the value of any unexpired term of this lease. In the
event of a partial taking or condemnation which is not extensive
enough to be determined by Lessee as substantial, this lease shall
continue in full force and effect. To the extent that funds are paid
to Lessor out of award in condemnation, they will be used by Lessor
to promptly restore the Premises insofar as possible to a condition
comparable to the time before such condemnation, less the portion
lost in taking.
Damages. In the event of any condemnation or taking as hereinabove
provided, whether whole or partial, Lessee shall not be entitled to
any part of the award, as damages or otherwise, for such
condemnation, and Lessor is to receive the full amount of such
award. Lessee hereby expressly waives any claim or right to any part
thereof. Although all damages in the event of any condemnation are
to belong to Lessor whether or not such damages are awarded as
condemnation for the diminution of value in the leasehold or to the
fee of the Premises, Lessee shall have the right to claim and
recover from the condemning authority, but not from Lessor, such
compensation as may be separately awarded on recoverable by Lessee
in the Lessee's own right on account of any and all damage to
Lessee's business by reason of the condemnation and for and on
account of any costs or loss to which Lessee might be put in
removing the furniture, fixtures and equipment.
Events of default. The following events shall be deemed to be events of default
by Lessee under this lease:
Failure to pay rent. Lessee shall fail to pay any installment of
rent or additional rent hereunder and such failure shall continue
for a period of twenty (20) days after written notice thereof to
Lessee.
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Failure of Lease Terms. Lessee shall fail to comply with any term,
provision or covenant of this lease, and shall not cure such failure
within thirty (30) days after written notice thereof to Lessee.
Financial difficulties. Lessee shall: (i) become insolvent, or shall
make a transfer in fraud of creditors, or shall make an assignment
for the benefit of creditors; (ii) file a petition under any section
or chapter of the National Bankruptcy Act, as amended, or under any
similar law or statute of the United States or any state thereof, or
Lessee or any guarantor of Lessee's obligations under this lease
shall be adjudged bankrupt or insolvent in proceedings filed against
Lessee; or (iii) have a receiver or trustee appointed for all the
Premises or for all or substantially all of the assets of
Lessee.
Abandonment. Lessee shall desert or vacate the Premises.
Remedies upon default. In addition to any of the remedies Lessor may have at law
or in equity, upon the occurrence of any event of default Lessor shall have the
option to pursue any one or more of the following remedies without any notice or
demand whatsoever:
Continuation of lease. Lessor may continue this lease in full force
and effect, and the lease will continue in effect as long as Lessor
does not terminate Lessee's right to possession, and Lessor shall
have the right to collect rent when due. During the period Lessee is
in default, Lessor may enter the Premises and relet it, or any part
of it, to third parties for Lessee's account. Lessee shall pay to
Lessor the rent due under this lease on the dates the rent is due,
less the rent Lessor receives from any reletting.
Removal. Lessor may enter upon and take possession of the Premises
and expel or remove Lessee and any other person who may be occupying
the Premises or any part thereof, without being liable for
prosecution or any claim for damages therefor, and if Lessor so
elects, relet the Premises on such terms as Lessor may deem
advisable and receive the rent therefor; and Lessee agrees to pay to
Lessor on demand any deficiency that may arise by reason of such
reletting.
Termination. Lessor may terminate this lease, in which event Lessee
shall immediately surrender the Premises to Lessor, and if Lessee
fails to do so, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon
and take possession of the Premises and expel or remove Lessee and
any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution for any claim or
damages therefor; and Lessee agrees to pay to Lessor on demand the
amount of all loss and damage which Lessor may suffer by reason of
such termination.
Lease end. Lessee shall, upon the expiration or sooner termination of this
lease, peacefully vacate the Premises and remove all goods and effects not
belonging to Lessor in a manner which avoids material injury to the Premises,
and will deliver to Lessor the Premises free and in good, neat, clean and
sanitary condition in all respects, except for reasonable wear and tear and
damage not caused by any act or omission of Lessee, its employees, agents,
customers, licensees or concessionaires.
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Lessee shall surrender keys for the Premises to Lessor and shall inform Lessor
of all combinations, locks, safes and vaults, if any, in the Premises. Any
damage to the Premises occasioned by removal of Lessee's goods and effects shall
be repaired and paid for by Lessee.
Removal of fixtures. At the end of the term of this lease, or any extension or
renewal thereof, Lessor will permit the removal of all fixtures of the Lessee
placed by it in or on the Premises, including exterior signs, except those
fixtures permanently affixed to the real estate or those which cannot be removed
without permanent injury to said real estate. If Lessee shall fail to remove any
of its property of any nature whatsoever from the Premises at the termination of
this lease, or when Lessor has the right of re-entry, Lessor may, at its option,
remove and store said property without liability for loss thereof or damage
thereof, except as a result of Lessor's negligence, such storage to be for the
account, and at the expense, of Lessee. If Lessee shall not pay the cost of
storing any such property after it has been stored for a period of thirty (30)
days or more, Lessor may, at its option, sell or permit to be sold, any or all
of such property at public or private sale, in such a manner and at such times
and places as Lessor, in its sole discretion, may deem proper, upon ten (10)
days' prior notice to Lessee. The proceed of sale shall be applied in order of
priority: (i) to the cost and expense of such sale, including reasonable
attorneys' fees; (ii) to the payment of the costs or charges for storing any
such property; (iii) to the payment of any other sums of money which may then
be, or thereafter become, due Lessor form Lessee under any of the terms hereof;
(iv) the balance, if any, to Lessee. Except as specifically provided herein, all
erections, alterations, additions and improvements to the Premises, whether
temporary or permanent in character, which may be made upon the Premises either
by Lessor or Lessee, shall be the property of Lessor and shall remain upon and
be surrendered with the Premises as a part thereof at the termination of this
lease, without compensation to Lessee.
Holdover. If Lessee, with the consent (expressed or implied) of the Lessor,
shall holdover after the expiration of the Lease Term, the Lessee shall remain
bound by the terms, covenants and agreements hereof, except the tenancy will be
one from month to month.
Sale of Premises. The voluntary or involuntary sale or other disposition of the
Premises by Lessor shall not terminate or in any way affect the validity of this
lease.
Renewal options. Providing that Lessee is in compliance with all of the terms,
covenants and conditions of this lease, Lessor agrees that Lessee shall have the
option to renew this lease for one (1) additional period of five (5) years
beyond the initial term hereof at a rental to be agreed upon and otherwise upon
the same terms and conditions as set forth herein. Written notice of the
exercise of a renewal option shall be given by Lessee to Lessor at least ninety
(90) days prior to the expiration of the term of this lease. If the parties
hereto cannot agree on a rental for the renewal term prior to thirty (30) days
before the commencement thereof, then the same is to be submitted to arbitration
in accordance with Section 29.
Assignment and subletting. Lessee shall not assign or in any manner transfer
this lease or any estate or interest therein, or sublet the Premises or any part
thereof, or grant a license, concession or other right of occupancy of any
portion of the Premises, without the prior written consent of Lessor. Consent by
Lessor to one or more assignments or sublettings shall not operate as a waiver
of
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Lessor's rights as to any subsequent assignments and sublettings. The acceptance
of rent from any person other than Lessee shall not be deemed to have waived any
of the provisions of this paragraph or to be a consent to the assignment of this
lease or the subletting of the Premises, and shall not relieve Lessee from its
obligations hereunder. Every permitted assignee shall become such upon the
express condition that it become and remain responsible for the provisions of
this lease. Notwithstanding any assignment or subletting, Lessee and any
guarantor of Lessee's obligations under this lease shall at all times remain
fully responsible for compliance with all of its other obligations under this
lease. For the purpose of this lease, the sale, conveyance, lease, assignment,
transfer, pledge, encumbrance or other transaction which changes, or might
result in a change, of any ownership of stock in the Lessee, or control of the
assets of Lessee, shall be deemed an assignment within the meaning of this
lease. Any merger, dissolution, reorganization or other corporate change
modifying the control of Lessee shall be deemed an "assignment" which cannot be
accomplished without the prior written consent of Lessor. Any assignment,
sublease, mortgage, pledge or other encumbrance of Lessee's interest in this
lease or in the Premises without the prior written consent of the Lessor shall
be void.
Subordination. This lease shall at all times be subject, subordinate, and
inferior in lien with respect to any first mortgage or deed of trust that may be
placed upon the Premises or any part thereof given by Lessor to any
institutional or individual lender, and the recording of such mortgage or deed
of trust shall be deemed prior in lien to this lease, irrespective of the date
of recording of such mortgage, and Lessee will, upon demand, execute any
instrument necessary to effectuate such subordination; provided, however, that
such subordination shall not affect Lessee's right to possession, use and
occupancy of the Premises so long as Lessee shall not be in default under any of
the terms and conditions of this lease.
Triple net lease. It is the intention of the parties, and this lease is to be so
construed that during the term of this lease Lessor shall not be obligated to
pay any charges, expenses, taxes or costs of any sort whatsoever arising out of
or in connection with ownership of the Premises, the maintenance thereof, the
use and occupation thereof by Lessee, or the payment of rent by Lessee to
Lessor, all of which are to be borne by Lessee alone. However, this provision
shall not be construed to supersede explicit provisions regarding damage to the
Premises and condemnation of the Premises, set forth in Sections 13 and 15,
respectively.
Relationship of parties. Nothing herein contained shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
rent, nor any other provisions contained herein, nor any acts of the parties
hereto, shall be deemed to create any relationship between the parties hereto
other than the relationship of Lessor and Lessee.
Time of essence. Time is declared to be of the essence of this entire lease,
notwithstanding that as to some provisions it may expressly be provided that
time is of the essence. However, whenever a period of time is herein prescribed
for action to be taken by Lessor or Lessee, the parties shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays, due to strikes, riots, acts of God, shortages of
labor or materials, war governmental
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laws, regulations or restrictions of any other causes of any kind whatsoever
which are beyond the reasonable control of the parties.
Nonwaiver. No failure of Lessor to insist upon the strict performance of any
provision of this lease shall be construed as depriving Lessor of the right to
insist upon strict performance of such provision or any other provisions in the
future. No waiver by Lessor of any provision of this lease shall be deemed to
have been made unless expressed in writing and signed by Lessor. No acceptance
of rent or of any other payment by Lessor from Lessee after any default by
Lessee shall constitute a waiver of any such default or any other default.
Consent by Lessor in one instance shall not dispense with the necessity of
consent by Lessor in any other instance.
Notices. All notices, requests, demands and other communications which are
required or may be given under this lease shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by certified
mail, return receipt requested, postage prepaid, addressed to the last known
post office address of the party to be notified.
Consent. Any consent which may be required for any action of Lessee shall not be
unreasonably withheld. In determining the acceptability of a proposed assignee
or subtenant, the continued liability of Lessee under the lease shall not be
considered as a factor. In addition to other criteria which landlord may deem
relevant, the assignee or subtenant must meet the minimal requirement of being
compatible with other tenants sharing common areas, if any, and shall have good
credit standing, the financial ability and business experience necessary to
perform this lease, and Lessor may require that the owners of a closely-held
business assignee personally guarantee the performance of this lease.
Attorneys' fees and costs. Should any action be commenced to enforce any of the
terms of this lease, or to cancel this lease, or to collect any rentals due
hereunder, the prevailing party in such action shall be entitled to recover
reasonable attorneys' fees and costs from the other party.
Arbitration. If any dispute shall arise under this lease, the parties hereto
agree to submit the matter to arbitration. Such arbitration shall be conducted,
before three (3) arbitrators, unless the Lessor and the Lessee agree to one (1)
arbitrator. Said arbitrators shall be designated by the American Arbitration
Association and said arbitration shall be held in accordance with the rules of
such Association. The arbitrators designated and acting under this lease shall
make their award in strict conformity with such rules and shall have no power to
depart from or change any of the provisions hereof. Expenses of the arbitration
proceedings conducted hereunder shall be borne equally by the parties.
Integration and modification. This lease constitutes the entire agreement
between the parties pertaining to the subject matter contained herein, which
alone fully and completely expresses their agreement, and the same is entered
into after full investigation, neither party relying on any statement or
representation, not embodied in this lease, made by the other. No change shall
be effective unless in writing and signed by both parties.
Construction and venue. The provisions of this lease shall be interpreted and
enforced in accordance with the laws of the State of Washington, and venue shall
lie in Spokane County. If a court of
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competent jurisdiction rules invalid or unenforceable any of the provisions of
this lease, the remainder shall nevertheless be given full force and effect. The
captions are for convenience and reference only, and they shall not define,
limit or construe the contents of any provision. Except where the context
indicates otherwise, words in the singular number shall include the plural, and
vice versa, and words in the masculine, feminine or neuter gender shall include
each other gender as well.
Benefit and burden. This lease shall be binding upon and inure to the benefit of
the parties, their heirs, legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this lease, effective on the day
and date first written above.
JUBILATION ENTERPRISES, LLC, a Washington limited liability company, Lessor
__________________________________ _________________________________________
DATE: XXXX X. XXXXXXXX, XX., Member
__________________________________ _________________________________________
DATE: XXXXXX X. XXXXXXXX, Member
TELECT, INC., a Washington corporation, Lessee
__________________________________ _________________________________________
DATE: XXXXX X. XXXXXXXX, President and Chief
Executive Officer
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STATE OF WASHINGTON )
) ss.
County of Spokane )
I certify that I know or have satisfactory evidence that XXXX X. XXXXXXXX, XX.
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as Member of JUBILATION ENTERPRISES, LLC, to be
the free and voluntary act of such limited liability company for the uses and
purposes mentioned in the instrument.
Dated: ____________________
_________________________________________
Print Name:
Notary Public in and for the State of
Washington, residing at Spokane
My commission expires:
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STATE OF WASHINGTON )
) ss.
County of Spokane )
I certify that I know or have satisfactory evidence that XXXXXX X. XXXXXXXX
signed this instrument, on oath stated that she was authorized to execute the
instrument and acknowledged it as Member of JUBILATION ENTERPRISES, LLC, to be
the free and voluntary act of such limited liability company for the uses and
purposes mentioned in the instrument.
Dated: ____________________
_________________________________________
Print Name:
Notary Public in and for the State of
Washington, residing at Spokane
My commission expires:
STATE OF WASHINGTON )
) ss.
County of Spokane )
I certify that I know or have satisfactory evidence that XXXXX X. XXXXXXXX
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President and Chief Executive Officer of
TELECT, INC., to be the free and voluntary act of such corporation for the uses
and purposes mentioned in the instrument.
Dated: ____________________
_________________________________________
Print Name:
Notary Public in and for the State of
Washington, residing at Spokane
My commission expires:
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SCHEDULE I
XXXXXX BUILDING
TRIPLE NET LEASE
Legal Description
PARCEL "A":
Parcels 1 and 2, Block 2 of BINDING SITE PLAN 33-92, according to plat recorded
in Book 1 of Binding Site Plans, Pages 61 and 62, in Section 10, Township 25
North, Range 45 East, X.X., in Spokane County, Washington, EXCEPTING THEREFROM
that portion of Parcel 2 lying within the following described parcel:
COMMENCING at a found iron pipe monumenting the Southeast corner of said Section
10; thence along the Southerly line of the Southeast quarter of said Section 00
Xxxxx 00(xxxxxxx)00'00" Xxxx 708.58 feet; thence leaving said Southerly line
North 03(degrees)17'39" West 60.00 feet to a found steel pin on the Northerly
right-of-way of Mission Avenue; thence along said Northerly right-of-way South
87(degrees)03'56" West 610.00 feet to a point on the Easterly right-of-way of
Xxxxxx Street; thence leaving said Northerly right-of-way along said Easterly
right-of-way the following courses and distances: Northwesterly 31.42 feet along
the arc of a circular curve concave to the Northeast, said curve having a radius
of 20.00 feet, a central angle of 90(degrees)00'00" and a long chord that bears
North 47(degrees)56'04" West 28.28 feet; thence North 02(degrees)56'04" West
240.07 feet to a found steel pin, said steel pin being the real point of
beginning; thence North 02(degrees)56'04" West 5.20 feet; thence Northeasterly
204.75 feet along the arc of a circular curve concave to the Southeast, said
curve having a radius of 315.00 feet, a central angle of 37(degrees)14'30" and a
long chord that bears North 15(degrees)41'21" East 201.15 feet; thence
Northeasterly 75.42 feet along the arc of a circular curve concave to the
Northwest, said curve having a radius of 380.00 feet, a central angle of
11(degrees)22'21" and a long chord that bears North 28(degrees)37'18" East 75.30
feet; thence leaving said Easterly right-of-way North 87(degrees)03'56" East
523.09 feet; thence South 03(degrees)17'39" East 260.01 feet; thence South
87(degrees)03'56" West 528.37 feet to the real point of beginning.
AND EXCEPTING THEREFROM that portion of said Parcel 1 lying within the following
described parcel:
COMMENCING at a found iron pipe monumenting the Southeast corner of said Section
10; thence along the Southerly line of the Southeast quarter of said Section 00
Xxxxx 00(xxxxxxx)00'00" Xxxx 708.58 feet; thence leaving said Southerly line
North 03(degrees)17'39" West 60.00 feet to a found steel pin on the Northerly
right-of-way of Mission Avenue; thence along said Northerly right-of-way South
87(degrees)03'56" West 610.00 feet to a point on the Easterly right-of-way of
Xxxxxx Street; thence leaving said Northerly right-of-way along said Easterly
right-of-way the following courses and distances:
Northwesterly 31.42 feet along the arc of a circular curve concave to the
Northeast, said curve having a radius of 20.00 feet, a central angle of
90(degrees)00'00" and a long chord that bears North
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47(degrees)56'04" West 28.28 feet; thence North 02(degrees)56'04" West 245.27
feet; thence Northeasterly 204.75 feet along the arc of a circular curve concave
to the Southeast, said curve having a radius of 315.00 feet, a central angle of
37(degrees)14'30" and a long chord that bears North 15(degrees)41'12" East
201.16 feet; thence Northeasterly 75.42 feet along the arc of a circular curve
concave to the Northwest, said curve having a radius of 380.00 feet, a central
angle of 11(degrees)22'21" and a long chord that bears North 28(degrees)37'18"
East 75.30 feet; thence Northeasterly, 267.39 feet along the arc of a circular
curve concave to the Northwest, said curve having a radius of 280.00 feet, a
central angle of 40(degrees)19'03" and a long chord that bears North
02(degrees)46'29" East 261.91 feet to a point, said point being the true point
of beginning; thence Northeasterly 84.42 feet along the arc of a circular curve
concave to the Southwest, said curve having a radius of 380.00 feet, a central
angle of 12(degrees)43'43" and a long chord that bears North 23(degrees)44'40"
West 84.24 feet; thence leaving said Easterly right-of-way North
59(degrees)53'21" East 280.00 feet; thence North 86(degrees)42'21" East 274.94
feet; thence South 03(degrees)17'39" East 174.78 feet; thence South
83(degrees)11'10" West 496.33 feet to the true point of beginning.
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SCHEDULE II
XXXXXX BUILDING
TRIPLE NET LEASE
Site Plan
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SCHEDULE III
XXXXXX BUILDING
TRIPLE NET LEASE
Building Elevation
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================================================================================
XXXXXX BUILDING
TRIPLE NET LEASE
August ___, 2000
Between
JUBILATION ENTERPRISES, LLC, a Washington limited liability company,
as Lessor;
and
TELECT, INC., a Washington corporation,
as Lessee.
================================================================================
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