Exhibit 99.1
Exhibit (a)
COMMERCIAL AND INDUSTRIAL LEASE
THIS LEASE made and entered into this _13 th day of__June______, 2001, by and
between SilverCreek Engineering, L.L.C, hereinafter called "Landlord" and
Computerized Thermal Imaging. Inc. aka CTI, hereinafter called "Tenant.
WITNESSETH:IN CONSIDERATION OF THE COVENANTS AND PROMISES CONTAINED HEREIN AND
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED, IT IS AGREED BY THE PARTIES HERETO AS FOLLOWS:
I. DEMISED PREMISES: Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord all those certain premises hereinafter more fully
described, together with the buildings and other improvements thereon, for the
term and upon the rental herein set forth. Said demised premises consist more
particularly as approximately 7660 square feet of warehouse space and 2850
square feet of office space of a certain building located at .1719 West 2800
South. Xxxx 000 xxx Xxxx 000. Xxxxx Xxxxxxxxxx Xxxx. Ogden. Utah.
Tenant shall have the right to use the common and parking areas jointly with any
other tenants of the building. However, this right shall be subject to the
exclusive control and management of Landlord. Landlord shall have the right from
time to time to establish and modify and enforce reasonable rules and
regulations with respect to parking.
II. TERM:
TO HAVE AND TO HOLD said premises unto Tenant for a term of two years beginning
on the 15th day June, 2001 , and ending on the 3itst day of June, 2003. Tenant
shall take possession of Unit 101 on June 15, 2001 at 50% of base rent. Tenant
shall take possession of Unit 102 on or before September 15, 2001, with monthly
base rent prorated to move in date.
III. TERM AND CONDITION OF LEASE: This Lease is made on the following terms
and conditions, which are expressly agreed to by Landlord and Tenant:
1. RENT: Tenant agrees to pay as rental to Landlord, at the address
specified in this Lease or at such other place Landlord may from time to time
designate in writing, the. sum of Four thousand six hundred fifty five dollars
(S4.65: per month. The first month's rent and security deposit shall be paid
upon execution of the Lease. Said sum to be lawful money of the United States
payable on the first day of each month. There shall also be a 3% annual increase
in the base rent. (the increase will take affect July 1.2001 )
(a) If Tenant so requests Landlord agrees to build or otherwise provide a
12' x 40' office for Tenant's use for an additional monthly rent of $300.00. C
This rent will start when the space is
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turned Over to the tenant with the first months being prorated to fall due on
the first day of the month )
(b) If Tenant so requests Landlord agrees to build or otherwise provide two
12' x 40' offices for Tenant's use for an additional monthly rent of $600.00. (
This rent will start when the space is turned over to the tenant with the first
months being prorated to fall due on the First day of the month ) If Tenant
requests any of the above additions, construction dates and due dates for
increased rents shall be negotiated under separate agreement.
(c) Late Charges: In the event Tenant fails to pay said rental (including
any additional rental due hereunder) within five (5) days of the due date, a
late charge of five percent (5%) or $100.00, whichever is greater, shall be due
and payable to Landlord.
(d) If in the period of this lease the tenant and landlord come to an
agreement to move CTI to another Silvercreek Property this lease will be
transferred to that property. If for some unknown reason Silvercreek cannot
provide that property the tenant reserves the right to terminate this lease
provided they give a 60 day notice.
(f) Security Deposit: Tenant contemporaneously with the execution of this
Lease, has deposited with Landlord the sum of Five thousand two hundred fifty
Five dollars ($5,255.00), receipt of which is hereby acknowledged by Landlord,
said deposit being given to secure the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease by Tenant to be kept and performed
during the term hereof. Tenant agrees that if Tenant shall fail to pay the rent
herein served, promptly when due, said deposit may at the option of Landlord
(but Landlord shall not be required to) be applied to any rent due and unpaid,
and if Tenant violates the terms, covenants and conditions of this Lease, said
deposit shall be applied to any damages, suffered by Landlord as a result of
Tenant's default to the extent of the amount of the damages suffered.
Nothing contained in this paragraph shall in any way diminish or be
construed as waiving any of Landlord's other remedies as provided herein or by
law. If the security deposit is applied by Landlord for the payment of overdue
rent or other sums due and payable to Landlord by Tenant hereunder, then Tenant
shall, on the written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore said security deposit to its original
amount, and Tenant's failure to do so within fifteen (15) days after receipt of
such demand, shall constitute a breech of this Lease. Should Tenant comply
withal] of the terms, covenants and conditions of this Lease and promptly pay
all of the rental herein provided for as it falls due, and all
other sums payable by Tenant to Landlord hereunder, said security deposit shall
be returned in full to Tenant at the end of the term of this Lease, or upon the
earlier termination of this Lease pursuant to the provisions hereof, except in
the event that the demised premises are sold as a result of the exercise of any
power of sale under any mortgage or deed of trust, in which event
this Lease shall be automatically amended to delete any reference to this
paragraph, and Tenant shall be entitled to immediate - reimbursement of its
security deposit from the party then holding said deposit.
2. AUTHORIZED USE: Tenant shall use the leased premises for the following
purpose, and for no other purpose whatsoever, without the written consent of
Landlord first had and obtained: Thermal imaging and light manufacturing.
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Tenant shall not commit or knowingly permit any waste of the leased
premises or use the same for any unlawful purpose. Tenant will comply with all
applicable federal, state and local laws, ordinances and regulations relating to
the leased premises and its use and operation by Tenant.
Tenant also agrees not to keep, use or permit to be kept or used on the
Leased Premises any flammable fluids, explosives or any "hazardous substance,"
"solid waste," or "hazardous waste" as said terms are defined in 42 U.S.C. 9601
(14) C.F.R. 261.1 et seq. without the prior written permission of Landlord.
3. PARAGRAPH DELETED.
4. FIRE AND CASUALTY INSURANCE: It shall be the responsibility of Tenant
to insure its equipment, furniture, fixtures and other personal property. Tenant
shall insure and keep insured its leasehold improvements against the perils of
fire, lightning, the "Extended Coverages," vandalism and malicious mischief in
an amount sufficient to provide recovery of not less than ninety percent (90%)
of the replacement value of Tenant's leasehold improvements. Such insurance
shall be made payable to Landlord and mortgagee (if any) as their interests may
appear. Tenant shall be responsible for any damage to premises as a result of
forced entry into its space or burglary thereof. Such insurance provided for
hereunder shall be in a company or companies acceptable to Landlord and shall be
procured and paid for by Tenant, and said policy or policies will be delivered
to Landlord. Such insurance may, at Tenant's election, be carried under any
General Blanket Insurance Policy of Tenant; provided, however, that a
satisfactory Certificate of Insurance, together with proof of payment of the
premium, shall be deposited with Landlord. If a satisfactory Certificate of
Insurance is not provided to Landlord within 30 days of Landlord's written
request to Tenant. Landlord shall have the right to secure adequate insurance as
stated above and xxxx Tenant for the cost of securing said insurance.
Upon Landlord's written request, Tenant agrees to reinvest all
insurance proceeds received from the loss or damage or destruction of said
leasehold improvements to rebuild said improvement in a manner satisfactory to
Landlord, regardless of whether or not Tenant elects to terminate this Lease as
herein provided. In the event Tenant elects to terminate this Lease as
provided-in Section III, Paragraph 13, and providing said leasehold improvements
are not rebuilt, Tenant does hereby assign all of.its right, title and interest
in the insurance proceeds covering leasehold improvements to Landlord. Landlord
shall insure the premises exclusive of Tenant's leasehold improvements against
the perils offire, lightning, the "Extended Coverages," vandalism and malicious
mischief in an amount sufficient to provide recovery of not less than ninety
percent (90%) of replacement value.
(a) INCREASING INSURANCE RISK ON LEASED PREMISES: Tenant will not permit
said leased premises to be used for any purpose which would render the insurance
thereon void or cause cancellation thereof or the insurance risk more hazardous
or increase the insurance premiums in effect at the time just prior to the
commencement of the term of this lease. Tenant will not keep, use or sell, or
allow to be kept, used or sold in or about the leased premises, any articles or
materials which are prohibited by law or by standard fire insurance policies of
the kind customarily in force withrespect to premises of the same general type
as those covered by this Lease. Tenant further agrees to pay to the Landlord on
demand, any increase in insurance
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premiums on the premises resulting from any cause whatsoever, over those
premiums in effect at the timejust prior to the commencement of the terms of
this Lease.
5. REPAIR AND CARE OF BUILDING AND PAYMENT OF UTILITIES BY TENANT: Tenant
agrees to keep the interior of the building and the improvements on the premises
outside the building in good condition and repair, normal wear and tear excepted
and agrees to pay .for all labor, materials and other repairs to the electrical
wiring, plumbing, air conditioning and heating systems, (including spring and
fall servicing, and replacement of filters as recommended by the manufacturers);
and to clean the interior of the leased premises as the same may or might be
necessary in order to maintain said premises in a clean, attractive and sanitary
condition. Tenant shall pay all charges, including but not limited to, snow
removal, trash removal, charges for heat, gas, electricity and other public
utilities used on the leased premises, including all replacement of light bulbs,
tubes, ballasts and starters within a reasonable time after they burn out.
6. REPAIR OF BUILDING BY LANDLORD: Landlord agrees, for the term of this
Lease, to maintain the roof in good condition and repair and to repair any
latent defects in the exterior walls, floor joists and foundations, and to
repair any defects in the plumbing, electrical, heating and air-conditioning
systems for one (1) year after date of occupancy, as well as any damage that
might result from acts of Landlord or Landlord's representatives. Landlord shall
not, however, be obligated to repair any such damage until written notice of the
need of repair shall have been given to Landlord by Tenant, and after such
notice is so given, Landlord shall have reasonable time in which to make such
repair. Landlord shall also be responsible for all landscaping, property taxes
and any charges for sewer and water.
7. CONDITION OF THE PREMISES: Tenant accepts the leased premises in the
condition they are in at the time of its taking possession of said premises.
Tenant agrees, if, during the term of this Lease, Tenant shall change the usual
method of conducting Tenant's business on the leased premises, or should Tenant
install therein any new facilities, or should new laws and regulations be
imposed, Tenant will, at the sole cost and expense of Tenant, make alterations
or improvements in or to the demised premises which may be required by reason of
any federal or state law, or by any municipal ordinance, or regulation
applicable thereto. Landlord warrants that the building, on the date of
occupancy, meets all currently applicable federal, state and municipal laws and
ordinances.
8. ALTERATIONS OF BUILDING AND INSTALLATION OF FIXTURES AND OTHER
APPURTENANCES: Tenant may, with written consent of Landlord, which consent shall
not be unreasonably withheld or delayed, but at Tenant's sole cost and expense
in a good and workmanlike manner, make such alterations and repairs to the
leased premises as Tenant may require for the conduct of its business without,
however, materially altering the basic character of the building or
improvements, or weakening any structure on the demised premises. Tenant shall
have the right, with the written permission and prior approval of Landlord, to
erect, at Tenant's sole cost and expense, such temporary partitions, including
office partitions, as may be necessary to facilitate the handling
ofTenant'x.xxxxxxxx and to install telephone and telephone equipment and wiring,
and electrical fixtures, additional lights and wiring and other trade
appliances. Landlord reserves the right to bid and construct all improvements
provided Landlord is low bidder. Any alterations or improvements to the leased
premises, including, partitions, all electrical fixtures, lights and wiring
shall, at the option of Landlord, become the property of Landlord, at the
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expiration or sooner termination of this Lease. Should Landlord request Tenant
remove all or any part of the above mentioned items Tenant shall do so prior to
the expiration of this Lease and repair the premises as described below.
Temporary shelves, bins and machinery installed by Tenant shall remain the.
property of Tenant and may be removed by Tenant any time; provided, however,
that all covenants, including rent due hereunder to Landlord shall have been
complied with and paid. At the expiration or sooner termination of this Lease,
or any extension thereof, Tenant shall remove said shelves, bins and machinery
and repair, in a good workmanlike manner, all damage done to the leased premises
by such removal.
9. ERECTION AND REMOVAL OF SIGNS: No exterior signage shall be mounted to
the building without a minimum 36 month lease. Tenant may, if building policy
permits, place suitable signs on the leased premises for the purpose of
indicating the nature of the business carried on by Tenant in said premises;
provided, however, that such signs shall be in keeping with other signs in the
district where the leased premises are located; and provided, further, that the
location, size and installation of such signs shall be approved by Landlord
prior to their erection. Signs shall be removed prior to the expiration of this
Lease and any damage to the leased premises caused by installation or removal of
signs shall be repaired at the expense of Tenant. All work shall be completed in
a good workmanlike manner.
10. GLASS: Tenant agrees to immediately replace all glass in the demised
premises if broken or damaged during he term of this Lease with glass of the
same quality as that broken or damaged.
11. RIGHT OF ENTRY BY LANDLORD: Tenant shall permit inspection of the
demised premises duringreasonable business hours by Landlord or Landlord's
agents or representatives for the purpose of ascertaining the condition of the
demised premises and in order that Landlord may make such repairs as may be
required to be made by Landlord under the terms of this Lease. Sixty (60) days
prior to the expiration of this Lease, Landlord may post suitable notice on the
demised premises that the same are "For Rent" and may show the premises to
prospective tenants at reasonable times. Landlord may not, however, thereby
unnecessarily interfere with the use of the demised premises by Tenant.
12. ASSIGNMENT AND SUBLETTING: Neither this Lease nor any interest herein
may be assigned by Tenant voluntarily or involuntarily, by operation of law, and
neither all nor any part of the leased premises shall be sublet by Tenant
without the written consent of Landlord first had or otherwise obtained;
however, Landlord agrees not to withhold its consent unreasonably for Tenant to
sublet the demised premises. In the event the premises should be sublet, as
herein provided, at an increased rental, fifty percent (50%) of said increase
shall be paid to Landlord by Tenant as additional rental.
13. DAMAGE OR DESTRUCTION: If the demised premises or any part thereof
shall be damaged or destroyed by fire or other casualty, Landlord shall properly
repair all such damage and restore the demised premises without expense to
Tenant, subject to delays due to adjustment of insurance claims, strikes and
other causes beyond Landlord's control. If such damage or destruction shall
render the premises untenable in whole or in part, the rent shall be abated
wholly or proportionately, as the case may be, until the damage shall be
repaired and the premises restored. If the damage or destruction shall be so
extensive as to require substantial rebuilding, i.e.,
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expenditures of fifty percent (50%) or more of replacement cost of the building
or buildings on the demised premises, Landlord or Tenant may elect to terminate
this Lease by written notice to the other given within thirty (30) days after
the occurrence of such damage or destruction. Landlord and Tenant hereby release
each other from responsibility for loss or damage occurring on or to the leased
premises or the premises of which they are a part or to the contents of either
thereof, caused by fire or other hazards ordinarily covered by fire and extended
coverage insurance policies and each waives all rights of recovery against the
other for such loss or damage. Willful misconduct lawfully attributable to
either party, whether in whole or in part a contributing cause of the casualty
giving rise to the loss or damage, shall not be excused under the foregoing
release and waiver.
14. INJURIES AND PROPERTY DAMAGE: Tenant agrees to indemnify and hold
harmless Landlord from anyand all claims or any kind or nature,,arising from
Tenant's use of the demised premises during the term hereof, and herebywaives
all claims against Landlord for damage to goods, xxxx, merchandise or for injury
to persons in and upon the premisesfrom any cause whatsoever, except such as
might result from the negligence of Landlord or Landlord's representatives or
fromfailure of Landlord to perform its obligations hereunder within a reasonable
time after notice in writing by Tenant requiring such performance by Landlord.
Tenant shall at all times during the term hereof keep in effect in responsible
companies liabilityinsurance in the name of and for the benefit of Tenant and
Landlord with limits as follows:
Bodily Injury, $500,000 each occurrence; Property Damage, $250,000 or
in lieu thereof, a combined limit ofbodily injury and property damage
liability of not less than $500,000.
Such insurance may, at Tenant's election, be carried under any general
blanket coverage of Tenant. A renewal policy shall be procured not less than ten
( 10) days prior to the expiration of any policy. Each original policy or a
certified copy there of, or a satisfactory certificate of the insurer evidencing
insurance carried with proof of payment of the premium shall be deposited with
Landlord. Tenant shall have the right to settle and adjust all liability claims
and all other claims against the insuring companies, but without subjecting
Landlord to any liability or obligation.
15. SURRENDER OF PREMISES: Tenant agrees to surrender the leased premises
at the expiration, or sooner termination ofthe term of this Lease, or any
extension thereof, in the same condition as when said premises were delivered to
Tenant, or as altered, pursuant to the provisions of this Lease, ordinary wear,
tear and damage by the elements excepted, and Tenant shall remove all of its
personal property. Tenant agrees to pay a reasonable cleaning charge or repair
costs should it be necessary for Landlord to restore or cause to be restored the
premises to the same good condition, normal wear and tear excepted, as when said
premises were delivered to Tenant.
16. HOLDOVER: Should the Landlord permit Tenant to holdover the leased
premises or any part thereof, after the expiration of the term of this Lease,
then and unless otherwise agreed in writing, such holding over shall constitute
a tenancy from month to month only, and shall in no event be construed as a
renewal of this Lease and all provisions of this Lease not inconsistent with a
tenancy from month to month shall remain in full force and effect. During the
month-to-month tenancy, Tenant agrees to give Landlord thirty (30) days prior
written notice of its intent to vacate
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the premises. Tenant agrees to vacate the premises upon thirty (30) days prior
written notice from Landlord. -The rental for the month-to-month tenancy shall
be equal to 110% of the rental'payable for the last month of the previous term
of this Lease.
17. QUIET ENJOYMENT: If and so long as Tenant pays the rents reserved by
this Lease and performs and observes all the covenants and provisions hereof,
Tenant shall quietly enjoy the demised premises, subject, however, to the terms
of this Lease, and Landlord will warrant and defend Tenant in the enjoyment and
peaceful possession of the demised premises throughout the term of this Lease.
18. WAIVER OF COVENANTS: The failure of any party to enforce the provisions
of this Lease shall not constitute a waiver unless specifically stated in
writing, signed by the party whose rights are deemed waived, regardless of a
party's knowledge of a breach hereunder
19. DEFAULT: If Tenant shall make default in the fulfillment of any of the
covenants and conditions hereof except default in payment of rent, Landlord may,
at its option, after fifteen (30) days prior notice to Tenant, make performance
for Tenant and for the purpose advance such amounts as may be necessary. Any
amounts so advanced, or any expense incurred, or sum of money paid by Landlord
by reason of the failure of Tenant to comply with any covenant, agreement,
obligation or provision of this Lease, or in defending any action to which
Landlord may be subjected by reason of any such failure for any reason of this
Lease, shall be deemed to be additional rent for the leased premises and shall
be due and payable to Landlord on demand. The acceptance by Landlord of any
installment of fixed rent, or of any additional rent due under this or any other
paragraph of this Lease, shall not be a waiver of any other rent then due nor of
the right to demand the performance of any other obligation of Tenant under this
Lease. Interest shall be paid to Landlord on all sums advanced by Landlord at an
annual interest rate of two percent (2%) over the prime rate charged by First
Interstate Bank.
20. DEFAULT INRENT, INSOLVENCY OF TENANT: If Tenant shall make default in
the payment of the rent reserved hereunder, or any part thereof, or in making
any other payment herein provided for, and any such default shall continue for a
period often (10) days after written notice to Tenant, or if the leased premises
or any part thereof shall be abandoned or vacated, or if Tenant shall be legally
dismissed there from by or under any authority other than Landlord, or if Tenant
shall file a voluntary petition in bankruptcy, or if Tenant shall file any
petition or institute any proceedings under any insolvency or Bankruptcy Act or
any amendment thereto hereafter made, seeking to effect its reorganization or a
composition with its creditors, or if any proceedings based on the insolvency of
Tenant or relating to bankruptcy proceedings, a receiver or trustee shall be
appointed for Tenant or the leased premises or if any proceedings shall be
commenced for the reorganization of Tenant or if the leasehold estate created
hereby shall be taken on execution or by any process of law or if Tenant shall
admit in writing its inability to pay its obligations generally as they become
due, then Landlord, in addition to any other rights or remedies it may have,
shall have the immediate right of re-entry and may remove all persons and
property from the premises.
Such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. Landlord may elect to
re-enter, as herein provided, or Landlord may take possession pursuant to this
Lease and re-let said premises or any part thereof for such term or terms (which
may be for a term extending beyond the term of this Lease) and at such rental or
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rentals and upon such other terms and conditions as Landlord in the exercise of
Landlord's sole discretion may deem advisable with the right to make alterations
and repairs to said premises. Upon each subletting. Tenant shall be immediately
liable of and shall pay to Landlord, in addition to any indebtedness due
hereunder, the costs and expenses of such re-letting including advertising
costs, brokerage fees, any reasonable attorney's fees incurred and the cost of
such alterations and repairs incurred by Landlord, and the amount, if any, by
which the rent reserved in this Lease for the period of such re-letting (up to
but not beyond the term of this Lease) exceeds the amount agreed to be paid as
rent for the premises for said period of such re-letting. If Tenant has been
credited with any rent to be received by such re-letting and such rents shall
not be promptly paid to Landlord by the new tenant, such deficiency shall be
calculated and paid monthly by Tenant.
No such re-entry or taking possession of the premises by Landlord shall
be construed as an election by Landlord to terminate this Lease for such
previous breach. Should Landlord at any time terminate this Lease for any
breach, in addition to any other remedy Landlord may have, Landlord may recover
from Tenant all damages Landlord may incur by reason of such breach, including
the cost of recovering the premises including attorney's fees, court costs and
storage charges and including the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent to rent reserved in
this Lease for the remainder of the stated term over the then chargeable rent on
the premises for the remainder of the stated term, all of which amounts shall be
immediately due and payable from Tenant to Landlord. In no event shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency or reorganization proceedings.
21. ENFORCEMENT: In the event either party shall enforce the terms of this
Lease by suit or otherwise, the party at fault shall pay the costs and expenses
incident thereto, including a reasonable attorney's fee.
22. MEDIATION AND ARBITRATION: If any dispute or claim in law or equity
arises out of this Lease, Tenant and Landlord agree in good faith to attempt to
settle such dispute or claim by mediation under the Commercial Mediation rules
of the American Arbitration Association. If such mediation is not successful in
resolving such dispute or claim, then such dispute or claim shall be decided by
neutral binding arbitration before a single arbitrator in accordance with the
Commercial Arbitration rules of the American Arbitration Association. Judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. However, this paragraph does not apply to disputes of
claims arising under Section 78, Chapter 36, of the Utah Code.
23. FAILURE TO PERFORM COVENANT: Any failure on the part of either party to
this Lease to perform any obligations hereunder, other than Tenant's obligation
to pay rent, and any delay in doing any act required hereby shall be excused if
such failure or delay is caused by any strike, lockout, governmental restriction
or any similar cause beyond the control of the party so failing to perform, to
the extent and for the period that such continues.
24. TIME: Time is of the essence of this Lease and every term, covenant and
condition herein contained.
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25. LIENS: Tenant agrees not to permit any lien for monies owing by Tenant
to remain against the leased premises for a period of more than thirty (30) days
following discovery of the same by Tenant; provided, however, that nothing here
in contained shall prevent Tenant, in good faith and for good cause, from
contesting the claim or claims of any person, firm or corporation growing out of
Tenant's operation of the demised premises or costs of improvements by Tenant on
said premises, and the postponement of payment of such claim or claims, until
such contest shall finally be decided shall not be a violation of the Lease or
any covenant thereof. Should any such lien be filed and not released or
discharged or action note commenced to declare the same invalid within thirty
(30) days. after discovery of the same by Tenant, Landlord may at Landlord's
option (but without any obligation to do so) pay and discharge such lien and may
likewise pay and discharge any taxes, assessments or other charges against the
leased premises which Tenant is obligated hereunder to pay and which may or
might become alien on said premises. Tenant agrees to repay any sum so paid by
Landlord upon demand therefore, as provided for in paragraph 19 herein.
26. CONSTRUCTION OF LEASE: Words of .any gender used in this Lease shall be
held to include any other gender and, words in the singular number shall be held
to include, the plural when the sense requires.
27. SUBORDINATION: Landlord shall have the right to subordinate this Lease
to any ground lease, deed of trust or mortgage encumbering the Property, any
advances made on the security thereof and any renewals, modifications,
consolidations, replacements or extensions thereof, whenever made or recorded.
However, its right to quiet possession of the Property during the lease term
shall not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
landlord, beneficiary or mortgagee elects to have this Lease prior to the lien
of its ground lease, deed of trust or mortgage and gives written notice thereof
to Tenant, this Lease shall be deemed prior to such ground lease, deed of trust
or mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording there of.
28. ATTORNMENT: If Landlord's interest in the Property is acquired by any
ground landlord, beneficiary under a deed of trust, mortgagee or purchaser at a
foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as Landlord under this Lease. Tenant waives the protection of any statute or
rule of law-which gives or purports to give Tenant any right to terminate this
Lease or surrender possession of the Property upon the transfer of Landlord's
interest.
29. SIGNING .OF DOCUMENTS: Tenant shall sign and deliver any instrument or
documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so. Such subordination and attornment documents
may contain such provisions as are customarily required by any ground landlord,
beneficiary under a deed of trust or mortgagee. If Tenant fails to do so within
ten (10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
30. ESTOPPEL CERTIFICATES: (a) Upon Landlord's written request, Tenant
shall execute, acknowledge and deliver to Landlord a written statement
certifying: (i) that none of the terms or
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provisions of this Lease have been changed (or if they have been changed,
staling how they have been changed); (ii) that this Lease has not been canceled
or terminated; (iii) the last date of payment of the Base Rent and other charges
and the time period covered by such payment; (iv) that Landlord is not in
default under this Lease (or, if Landlord is claimed to be indefault, staling
why); and (v) such other matters as may be reasonably required by Landlord or
the holder of a mortgage, deed of trust or lien to which the Property is or
becomes subject. Tenant shall deliver such statement to Landlord within ten (10)
days after Landlord's request. Any such statement by Tenant may be given by
Landlord to any prospective purchaser or encumbrance of the Property. Such
purchaser or encumbrance may rely conclusively upon such statement as true and
correct.
31. TENANT'S FINANCIAL CONDITION: Within ten (10) days after written
request from Landlord, Tenant shall deliver to Landlord such financial
statements as arc reasonably required by Landlord to verify the net worth of
Tenant, or any assignee, subtenant or guarantor-of Tenant. In addition, Tenant
shall deliver to any lender designated by Landlord any financial statements
required by such lender to facilitate the financing or refinancing of the
Property. Tenant represents and warrants to Landlord that each such financial
statement is a true and accurate statement as of the date of such statement. All
financial statements shall be confidential and shall be used only for the
purposes act forth herein. This offer to lease is contingent upon Landlord's
approval of Tenant's financial information.
32. PARAGRAPH HEADINGS: The paragraph headings as to the contents of
particular paragraphs herein are inserted only for convenience and. are in no
way to be construed as part of such paragraph or as a limitation on the scope of
the particular paragraph to which they refer.
33. NOTICES: It is agreed that all notices required or permitted to be
given hereunder, or for purposes of billing, process, correspondence and any
other legal purposes whatsoever, shall be deemed sufficient if given by a
communication in writing by United States mail,, postage prepaid and .certified
and addressed as follows:
If to Landlord, at the following address:
SilverCreek Engineering, L.L.C.
X.X. Xxx 000
Xxx, XX 00000
If to Tenant, at the following address:
XXX
Xxx Xxxxxxxxxxxx Xxxxx Xxxxx 000
Xxxx Xxxxxx, XX 00000
34. GOVERNING LAW: The terms of this Agreement shall be governed by and
construed in accordance with Ulah law.
35. DOCUMENTATION: The parties hereto agree to execute such additional
documentation as may be necessary or desirable to carry out the intent of this
Lease.
36. CONTINGENCY REGARDING USE: This Lease is contingent upon there being no
restrictions, covenants, agreements, laws, ordinances, rules or regulations
which would prohibit Tenant from using the above described premises for the
purposes described herein.
37. INDEMNIFICATION OF LANDLORD: Tenant, as a material part of the
consideration to be rendered to Landlord under this Lease, shall hold Landlord
exempt and harmless from any
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damage or injury to any person, or the goods, wares and merchandise of any
person, arising from the use of the premises by Tenant, or from the failure of
Tenant to keep the premises in good condition and repair, as herein provided.
38. EMINENT DOMAIN: If at any time during the term of this Lease the entire
premises or any part thereof shall be taken as a result of the exercise of the
power of eminent domain or by an agreement in lieu thereof, this Lease shall
terminate as to the part so taken as of the date possession is taken by the
condemning authority. If all or any substantial portion of the premises shall be
taken, Landlord may terminate this Lease at its option, by giving Tenant written
notice of such termination within thirty (30) days of such taking. If all or a
portion of the premises taken are so substantial that Tenant's use of the
premises is substantially impaired, Tenant may terminate this Lease pursuant to
this Article. Unless terminated as herein provided for, this Lease shall remain
in full force and effect, except that the rent payable by Tenant hereunder shall
be reduced in the proportion that the area of the premises so taken bears to the
total premises. Landlord shall be entitled to and Tenant hereby assigns to
Landlord the entire amount of any award in connection with such taking. Nothing
in this Article shall give Landlord any interest in or preclude Tenant from
seeking, on its own account, any award attributable to the taking of personal
property or trade fixtures belonging to Tenant, or for the interruption of
Tenant's business.
39. REPRESENTATION REGARDING AUTHORITY: The persons who have executed this
Lease represent and warrant that they are duly authorized to execute this Lease
'in their individual or representative capacity as indicated.
40. ENTIRE AGREEMENT: This lease constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior discussions,
understandings and agreements. This Lease may not be altered or amended except
by a subsequent written agreement executed by all the parties hereto.
41. REVIEW OF DOCUMENTS: The parties hereto represent that they have read
and understand the terms of this Lease and that they have sought legal counsel
to the extent deemed necessary in order to protect their respective interests.
42. KEYS AND LOCKS: Tenant, upon the termination of the tenancy, shall
deliver to Landlord all keys to the offices, rooms and restrooms which have been
furnished to Tenant.
43. AUCTION, FIRE OR BANKRUPTCY SALE: Tenant shall not conduct any auction
nor permit any fire or bankruptcy sale to be held on the premises.
44. PARAGRAPH DELETED.
45. IMPROVEMENTS TO BE MADE BY LANDLORD: Tenant shall take the demised
premises in an as-is condition.
46. ACCEPTANCE: This Lease must be accepted by all parties on or before.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed
as of the day and year first above written.
LANDLORD: TENANT:
SilverCreek Engineering, L.L.C.
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