Contract
Exhibit 10.2
This
Lease Agreement (the “Lease”) is made this 16th day of
January, 2009 by and between Integrated Holdings, LLC, a Washington limited
liability company (“Landlord”), and Integrated Technologies, Inc., a Washington
corporation (“Tenant”), who agree as follows:
1. Fundamental
Terms. As used in this
Lease, the following capitalized terms shall have the following
meanings:
1.1 “Premises” means that real
property commonly known as 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx,
XX 00000 and legally described in the attached Exhibit A, and all
improvements thereon.
1.2 “Building” means the structure
on the Premises.
1.3 “Commencement Date” means
January 16th,
2009.
1.4 “Expiration Date” means, August
31, 2016.
1.5 “Term” means the period of time
commencing on the Commencement Date and ending on the Expiration Date (the
“Initial Term” as
defined below), plus any extension of the Term, unless sooner terminated
pursuant to the terms of this Lease.
1.6 “Base Monthly Rent” means the
following amounts as to the following periods during the Term of this
Lease:
|
Lease Years
|
Monthly Installment
|
|
January
___, 2009 through August 31, 2009
|
$19,868.00
|
|
September
1, 2009 through August 31, 2010
|
$21,000.00
|
|
September
1, 2010 through August 31, 2011
|
$21,525.00
|
|
September
1, 2011 through August 31, 2012
|
$22,063.00
|
|
September
1, 2012 through August 31, 2013
|
$22,615.00
|
|
September
1, 2013 through August 31, 2014
|
$23,180.00
|
|
September
1, 2014 through August 31, 2015
|
$23,759.00
|
|
September
1, 2015 through August 31, 2016
|
$24,353.00
|
|
Extension Option Years
|
Monthly Installment
|
|
September
1, 2016 through August 31, 2021
|
Fair
Market Rent
|
|
September
1, 2021 through August 31, 2024
|
Fair
Market Rent
|
1.7 “Permitted Use” means use for
light manufacturing, materials testing, and general offices.
1.8 “Security Deposit” means
Nineteen Thousand Eight Hundred and Sixty-Eight Dollars
($19,868.00).
1.9 “Landlord's Address for Notice”
means
|
Integrated
Holdings, LLC
|
|
c/o Xxxxxxx
Xxxxxxxx
|
|
0000
XX 000xx Xx.
|
|
Xxxx
Xxxxxx Xxxx, XX 00000
|
1.10 “Landlord's Address for Payment of
Rent” means same address as for Notice.
1.11 “Tenant's Address for Notice”
means
|
c/o
LMI Aerospace
|
|
0000
Xxxxxxx Xx.
|
|
Xx.
Xxxxxxx, XX 00000-0000
|
|
Attn: Xxxxxxxx
X. Xxxxxxxxx
|
1.12 “Landlord's Agent” means such
other agent as Landlord may appoint from time to time.
1.13 “Broker(s)” does not refer to
any existing or past broker relationships.
1.14 “Exhibits” means the following
Exhibits to this Lease:
Exhibit A
- Legal Description of the Premises, including the improvements
thereon.
1.15 “Definitions” means the words
and phrases defined in Section 42 captioned “Definitions,” and other
defined terms herein.
2. Consent
and Notices. Except as
otherwise expressly provided in this Lease, whenever the consent of either
Landlord or Tenant is required under this Lease, such consent shall not be
effective unless given in writing and shall not be unreasonably withheld or
delayed, provided, however, that such consent may be conditioned as provided in
this Lease. All notices or requests required or permitted under this Lease shall
be in writing as provided in Section 43.7.
3. Premises
and Appurtenances.
3.1 Premises;
Changes. Landlord leases to Tenant and Tenant leases from
Landlord the Premises for the Term. Landlord shall have the right, in
Landlord's sole discretion, from time to time to make changes to the Building
exterior.
3.2 Easements. Tenant
understands and accepts that the Premises have the benefit and the burden of
those easements set forth on the title commitment (NBU No. 20804148) issued by
Chicago Title Insurance Company dated December 15, 2008. Tenant
accepts, and agrees to be bound by, the terms of the easements, and acknowledges
that it has received and examined a copy of each of the
easements. Tenant agrees to reimburse Landlord within thirty (30)
days of Tenant’s receipt of an invoice from Landlord evidencing the payment of
its share of expenses accrued after the Commencement Date and associated with
the maintenance of the driveway described in that certain Joint Use and
Maintenance Agreement dated October 29, 1996 and recorded in Document No.
9610290128 of the Snohomish County, Washington real estate
records. Any driveway maintenance expenses owed in connection with
this Section 3.2 shall be prorated on the basis of a 360 day year to account for
any fractional portion of a year included in the Term at its commencement and
expiration.
4. Term.
4.1 Commencement
Date. The initial term of this Lease (the “Initial Term”) shall be for
seven (7) years, commencing on the Commencement Date and expiring on the
Expiration Date. The Commencement Date shall be the date specified in
Section 1.
4.2 Extension.
4.2.1 Provided
Tenant is not in default beyond the applicable cure period at the time of each
of Tenant’s Extension Notices (defined below in this Section 4.2), Tenant shall
have the option to extend the Term of this Lease for two (2) additional periods
of five (5) years and three (3) years respectively (each an “Extension Term”), upon the
same terms and conditions as contained in this Lease. The rent for
each Extension Term shall be as set forth in Section 1.6
herein. To exercise an extension option, Tenant shall give Landlord
written notice at least ninety (90) days prior to the then-current Expiration
Date (“Tenant’s Extension
Notice”). Tenant’s Extension Notice for each Extension Term
shall be effective to extend the Term of the Lease for one Extension Term
without further documentation except as expressly provided in Section 4.2.2
below.
4.2.2 Each time
after Tenant has exercised its option to extend the Term of this Lease and the
rent for that Extension Term has been finally determined, Landlord and Tenant,
upon request of either, will each timely sign and acknowledge a written
memorandum evidencing Tenant’s exercise of the option to extend the Term and
stating the date to which such Extension Term will extend and the rental rates
that will be applicable during each such Extension Term.
5. Base
Monthly Rent; Late Charge.
5.1 Base Monthly
Rent. Tenant shall pay to Landlord the Base Monthly Rent
without deduction, offset, prior notice or demand, in advance on the first day
of each month during the Term. Base Monthly Rent for any partial
month shall be prorated at the rate of 1/30th of the Base Monthly Rent per
day. Base Monthly Rent is exclusive of any state tax based on rents
(to the extent such a tax is passed and implemented by the legislature of the
State of Washington) and should such taxes be implemented and apply during the
Term, the Base Monthly Rent shall be increased by the amount of such
taxes. All Rent shall be paid to Landlord at Landlord's Address for
Payment of Rent or at such other address as Landlord may specify by notice to
Tenant.
5.2 Extension Term
Rent. Beginning with the first Extension Term, Base Rent for
each Extension Term shall be the then current fair market rent for the
Premises. As used herein, “Fair Market Rent” means an
amount equal to the then prevailing rate for similar space in a comparable
building located in a comparable location within Snohomish County, Washington
during the previous six (6) month period. In the event that Landlord
and Tenant are unable to agree upon the Fair Market Rent within thirty (30) days
after the date of Tenant’s Extension Notice, then Fair Market Rent shall be
determined by appraisal as set forth below in this Section 5.2:
5.2.1 Either
Landlord or Tenant may submit the matter to appraisal by notifying the other
party in writing. Not less than ten (10) days after the date of such
notice, Landlord and Tenant shall each (a) appoint an appraiser; and
(b) give written notice to the other identifying that party’s appraiser and
indicating whether that party will submit supplemental written or oral evidence
to support its proposal for Fair Market Rent. Any appraiser selected
under this subsection shall be an appraiser with at least ten (10) year
experience in the appraisal of industrial space in Snohomish County, Washington
and who has not been regularly employed or retained as a consultant, appraiser
or agent of either party during the last twelve (12) months.
5.2.2 Upon
selection, such appraisers shall work together to agree upon the prevailing fair
rental of the Premises. If said appraisers cannot agree within twenty
(20) days after their appointment, then, within ten (10) days after the
expiration of such twenty (20) day period, such appraisers shall select a third
appraiser with at least ten (10) years of experience in the appraisal of
industrial space in Snohomish County, Washington. Once the third
appraiser has been selected, then such third appraiser shall within ten (10)
days after appointment make its determination of the prevailing fair rental
amount and such determination shall be binding upon both Landlord and Tenant as
the rental rate for such extended term. The parties shall each bear
the costs of their own appraiser and shall share equally in the costs of the
third appraiser. Notwithstanding the foregoing, in the event that the
prevailing fair rental amount (as determined above) is less than the minimum
annual rental payable during the final lease year of the Initial Term or the
final lease year of the first Extension Term, Landlord shall have the right to
decline the upcoming Extension Term and the Term shall terminate six (6) months
after written notice to the Tenant of Landlord’s decision to decline the
Extension Term (the “Modified Expiration Date”) (it being the agreement of the
parties that this provision may extend the Term beyond the then-current
Expiration Date in which event the Lease shall continue on the same terms and
conditions as contained in this Lease (including Rent at the rate then in effect
as of the then-current Expiration Date) until the Modified Expiration
Date).
5.3 Late Charge. Tenant
acknowledges that the late payment by Tenant of any Rent will cause Landlord to
incur administrative, collection, processing and accounting costs and expenses
not contemplated under this Lease, the exact amount of which are extremely
difficult or impracticable to fix. Therefore, if any Rent is not received by
Landlord from Tenant by the fifth (5th) calendar day after such Rent is due,
Tenant shall immediately pay to Landlord a late charge equal to the lesser of
five percent (5%) of the amount of Rent due or Five Hundred and No/100th Dollars
($500.00). Landlord and Tenant agree that this late charge represents
a reasonable estimate of such costs and expenses and is fair compensation to
Landlord for its loss caused by Tenant's nonpayment. Should Tenant
pay said late charge but fail to pay contemporaneously therewith all unpaid
amounts of Rent, Landlord's acceptance of this late charge shall not constitute
a waiver of Tenant's default with respect to Tenant's nonpayment nor prevent
Landlord from exercising all other rights and remedies available to Landlord
under this Lease or under law.
6. Prepaid
Rent and Security Deposit. As partial
consideration for Landlord’s execution of this Lease, on execution of this
Lease, Tenant shall deposit with Landlord rent and the Security Deposit, as a
Security Deposit for the performance by Tenant of the provisions of this
Lease. If Tenant is in default, Landlord may use the Security
Deposit, or any portion of it, to cure the default, including without
limitation, paying for the cost of any work necessary to restore the Premises,
the Tenant improvements and any alterations to good condition or to compensate
Landlord for all damage sustained by Landlord resulting from Tenant's
default. Tenant shall within five (5) days of demand pay to Landlord
a sum equal to the portion of the Security Deposit expended or applied by
Landlord as provided in this Section so as to maintain the Security Deposit in
the sum initially deposited with Landlord. If Tenant is not in
default as of the expiration or termination of the Term, including without
limitation, in default in payment of the Rent for the last month of the Term,
then Landlord shall return the Security Deposit, without interest, to Tenant
within a reasonable period of time not to exceed thirty (30) days after the
expiration or termination of the Term. Landlord's obligations with
respect to the Security Deposit are those of a Tenant and not a trustee.
Landlord may commingle the Security Deposit with Landlord's general and other
funds.
7. Real
Property Taxes. Tenant shall pay, as Additional Rent, directly
to the applicable taxing authority all Real Property Taxes that are or will be
levied or assessed against the Premises during each calendar year during the
Term on or prior to the date on which such Real Property Taxes are
due. Such Additional Rent shall not include any sales, franchise,
business or occupation or other tax based on rents which may apply during the
Term. Tenant shall provide Landlord with a receipt from the taxing
authority evidencing that Tenant paid the Real Property Taxes prior to
delinquency. Tenant, at Tenant’s cost and expense, may attempt to
have the assessed valuation of the Property reduced or may initiate proceedings
to contest the real property taxes.
8. Personal
Property Taxes. Tenant shall pay
prior to delinquency all personal property taxes assessed against and levied
upon Trade Fixtures, furnishings, equipment and all other personal property of
Tenant contained in the Premises or elsewhere. If possible, Tenant
shall cause such Trade Fixtures, furnishings, equipment and all other personal
property of Tenant to be assessed and billed separately from the
Premises.
9. Landlord
Representations and Warranties. Landlord represents and
warrants that as of the Commencement Date (1) the Building shall contain no
structural defects or defective systems (whether known or unknown); (2) the
Building systems (including, but not limited to, the heating, air conditioning
and ventilation system) shall be in proper working order and condition and shall
be sufficient for the operation of Tenant’s business in the Premises; (3) the
Building and the Premises shall be in compliance and operated in accordance with
all applicable laws, ordinances, rules, regulations and codes (including, but
not limited to all environmental laws, ordinances, rules, regulations and
codes); (4) the Building is served by all utilities necessary for the
operation thereof and such utilities are adequate with respect to service and
capacity for the operation thereof; and (5) the Premises shall not contain
Hazardous Substances, except as set forth in the report(s) identified in
Schedule 9 and except in compliance with applicable laws, codes, rules and
regulations.
10. Intentionally
Deleted.
11. Use. Tenant shall use
the Premises for the Permitted Use and for no other use without Landlord's prior
consent. Landlord represents and warrants that the Permitted Use of the Premises
is a permissible use under all applicable zoning codes, laws, rules and
regulations. Tenant's use of the Premises shall be in accordance with
the following:
11.1 Insurance. Tenant
shall not do, bring, or keep anything in or about the Premises or the Premises
that will cause a cancellation of any insurance covering the
Premises.
11.2 Compliance with
Laws. Tenant shall comply with all laws concerning the
Premises and Tenant's use of the Premises. Landlord and Tenant
acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. §12101
et seq. and regulations and guidelines promulgated thereunder (“ADA”), and any similarly
motivated state and local Laws (“Local Barriers Acts”), as the
same may be amended and supplemented from time to time (collectively referred to
herein as the “Disabilities
Acts”) establish requirements for business operations, accessibility and
barrier removal, and that such requirements may or may not apply to the Premises
and Premises depending on, among other things: (i) whether Tenant’s business is
deemed a “public accommodation” or “commercial facility”, (ii) whether such
requirements are “readily achievable,” and (iii) whether a given alteration
affects a “primary function area” or triggers “path of travel” requirements. The
parties hereby agree that: (a) if required by the Disabilities Acts, Tenant
shall maintain the Premises in compliance with ADA Title III and related Local
Barriers Acts and shall perform any required ADA Title III and related Local
Barriers Acts compliance in the Premises, and (b) if required by the
Disabilities Acts, Landlord may perform, or require that Tenant perform, and
Tenant shall be responsible for the cost of, ADA Title III and related Local
Barriers Acts “path of travel” and other requirements triggered by any public
accommodation or other use of, or alterations in, the Premises. If Tenant’s use
of the Premises triggers compliance requirements by the Disabilities Acts,
Tenant shall be responsible for ADA Title I and related Local Barriers Acts
requirements relating to Tenant’s employees, and Landlord shall be responsible
for ADA Title I and related Local Barriers Acts requirements relating to
Landlord’s employees.
11.3 Waste, Nuisance and Improper
Use. Tenant shall not use the Premises in any manner that will
constitute waste, nuisance or unreasonable annoyance to neighbors of the
Premises, including without limitation, (i) the use of loudspeakers or sound or
light apparatus that can be heard or seen outside the Premises, (ii) or for
lodging or sleeping rooms. Notwithstanding the foregoing, Landlord
represents and warrants that the manner in which the Premises is being used on
the Commencement Date shall not be deemed to constitute a waste, nuisance or an
unreasonable annoyance.
11.4 Damage to
Premises. Tenant shall not do anything in, on or about the
Premises that will cause damage to the Premises, reasonable wear and tear
excluded.
12. Hazardous
Substances. Tenant shall not
dispose of or otherwise allow the release of any Hazardous Substances in, on or
under the Premises, or in any tenant improvements or alterations placed on the
Premises by Tenant. Tenant represents and warrants to Landlord that
Tenant's intended use of the Premises does not involve the use, production,
disposal or bringing on to the Premises of any Hazardous Substances, except for
products normally used in general business offices and light manufacturing and
industrial testing facilities which constitute Hazardous Substances, provided
that such products are used, stored and disposed of in accordance with
applicable laws and manufacturer's and supplier's guidelines. Tenant
shall promptly comply with all laws and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
Hazardous Substances, on or under the Premises, or incorporated in any tenant
improvements or alterations, at Tenant's expense.
12.1 Compliance;
Notification. After notice to Tenant and a reasonable
opportunity for Tenant to effect such compliance, Landlord may, but is not
obligated to, enter upon the Premises and take such actions and incur such costs
and expenses to effect such compliance as it deems advisable to protect its
interest in the Premises, provided, however that Landlord shall not be obligated
to give Tenant notice and an opportunity to effect such compliance if (i) such
delay might result in material adverse harm to the Premises, or (ii) an
emergency exists. So long as Landlord had a commercially reasonable
belief that a compliance issue existed on the Premises, Tenant shall reimburse
Landlord for the full amount of all costs and expenses incurred by Landlord in
connection with such compliance activities, and such obligation shall continue
even after expiration or termination of the Term. Tenant shall notify Landlord
immediately of any release of any Hazardous Substances on or from the
Premises.
12.2 Indemnity by
Tenant. Tenant agrees to defend, hold harmless, and indemnify
Landlord from and against any and all damages, charges, cleanup costs, remedial
actions, costs and expenses, which may be imposed on, incurred or paid by, or
asserted against Landlord, the Premises by reason of, or in connection with (1)
any misrepresentation, breach of warranty or other default by Tenant under this
Lease, or (2) the acts or omissions of Tenant, its authorized representatives,
or any subtenant or other person for whom Tenant would otherwise be liable,
resulting in the release of any Hazardous Substances on the
Premises.
12.3 Indemnity by
Landlord. Landlord agrees to hold Tenant harmless from and
against any and all damages, charges, cleanup costs, remedial actions, costs and
expenses, which may be imposed on, incurred or paid by, or asserted against
Tenant, the Premises by reason of, or in connection with (1) any
misrepresentation, breach of warranty or other default by Landlord under this
Lease, (2) the acts or omissions of Landlord, or its employees or authorized
representatives, resulting in the release of any Hazardous Substances on the
Premises or (3) the environmental condition of the Premises as of the
Commencement Date.
12.4 Acknowledgment as to Hazardous
Substances. Tenant acknowledges that the Premises may contain
Hazardous Substances, and Tenant accepts the Premises and the Building
notwithstanding such Hazardous Substances. If Landlord is required by
any law to take any action to remove or xxxxx any Hazardous Substances, or if
Landlord deems it necessary to conduct special maintenance or testing procedures
with regard to any Hazardous Substances, or to remove or xxxxx any Hazardous
Substances, Landlord may take such action or conduct such procedures at times
and in a manner that Landlord deems appropriate under the circumstances, and
Tenant shall permit the same; provided that Landlord use commercially reasonable
efforts to avoid interference with the operation of Tenant’s business on the
Premises.
12.5 Survival. The
provisions of this Section shall survive the expiration or sooner termination of
the Term. No subsequent modification or termination of this Lease by agreement
of the parties or otherwise shall be construed to waive or to modify any
provisions of this Section unless the termination or modification agreement or
other document expressly so states in writing.
13. Landlord's
Maintenance. Except as provided in Section 14 captioned
“Tenant's Maintenance; Remedies”, Section 24 captioned “Destruction” and Section
25 captioned “Condemnation” and except for damage caused by any negligent or
intentional act or omission of Tenant or its authorized representatives (which
damage shall be the responsibility of Tenant), Landlord shall maintain in good
condition and repair the following: (i) the structural parts of the Building,
which structural parts include only the foundations, bearing and exterior walls,
and roof, (ii) the unexposed electrical, plumbing and sewage systems, including
without limitation,
those portions lying outside the Premises.
14. Tenant's
Maintenance; Remedies.
14.1 Tenant's
Maintenance. Except as provided in Section 13 captioned
“Landlord's Maintenance”, Section 24 captioned “Destruction” and Section 25
captioned “Condemnation” and except for damage caused by any grossly negligent
or intentional act or omission of Landlord or its authorized representatives
(which damage shall be the responsibility of Landlord), Tenant, at its cost,
shall maintain in good condition and repair the Premises including the Building,
including without limitation, all of the Tenant Improvements, the heating,
ventilating and air-conditioning system servicing the Building, Tenant's
alterations, Tenant's Trade Fixtures, Tenant's personal property, signs, walls,
interior partitions, wall coverings, windows, window coverings, interior and
exterior glass, doors, interior and exterior glass entrance doors, carpeting and
resilient flooring, ceiling tiles, plumbing fixtures, and lighting
fixtures.
14.2 Landlord's
Remedies. If Tenant fails to maintain the Premises in good
condition and repair as required by Section 15.1, and if such failure is not
cured within thirty (30) days after notice of such failure is given by Landlord
to Tenant, then Landlord may, at its option, cause the Premises to be maintained
in good condition and repair and Tenant shall promptly reimburse Landlord for
all reasonable costs incurred by Landlord in performance of Tenant's obligation
to maintain the Premises.
15. Tenant Improvements;
Alterations and Trade Fixtures.
15.1 Tenant
Improvements. Tenant accepts the Premises in their “AS IS”
condition without any agreements, representations, understandings or obligations
on the part of Landlord to perform any alterations, repairs or improvements or
to provide any allowances. Tenant shall not make any improvements or
alterations to the Premises without Landlord's prior consent, which consent
shall not be unreasonably withheld.
15.2 Alterations. Any
improvements and alterations made by either party shall remain on and be
surrendered with the Premises on expiration or termination of the Term, except
that Landlord can elect by giving notice to Tenant within thirty (30) days
before the expiration of the Term, or within thirty (30) days after termination
of the Term, to require Tenant to remove any improvements and alterations and
tenant improvements that Tenant has made to the Premises. If Landlord
so elects, Tenant, at its cost, shall restore the Premises to the condition
designated by Landlord in its election, before the last day of the Term, or
within thirty (30) days after notice of election is given, whichever is
later. Any improvements and alterations that remain on the Premises
on expiration or termination of the Term shall automatically become the property
of Landlord and title to such improvements and alterations shall automatically
pass to Landlord at such time without any payment therefore by Landlord to
Tenant. If Tenant or its authorized representatives make any
improvements or alterations to the Premises as provided in this Section, then
such improvements and alterations (i) shall be made in compliance with the
reasonable directions of Landlord given in writing to Tenant prior to
commencement of construction, (ii) shall be made pursuant to a valid building
permit to be obtained by Tenant, at its cost, and (iii) shall be made in
conformity with then applicable laws, including without limitation, building
codes.
15.3 Trade
Fixtures. Tenant shall not install any Trade Fixtures in or on
the Premises without Landlord's prior consent, which consent shall not be
unreasonably withheld. If Tenant shall install Trade Fixtures, and if
Landlord so elects, Tenant, at its cost, shall remove such fixtures and restore
the Premises to the condition designated by Landlord in its election, before the
last day of the Term, or within thirty (30) days after notice of election is
given, whichever is later. Any Trade Fixtures that remain on the
Premises on expiration or termination of the Term shall automatically become the
property of Landlord, and title to Trade Fixtures shall automatically pass to
Landlord at such time without any payment therefore by Landlord to
Tenant.
16. Mechanics'
Liens. Tenant
shall pay, or cause to be paid, all costs of labor, services and/or materials
supplied in connection with any Work. Tenant shall keep the Premises
free and clear of all mechanics' liens and other liens resulting from any
Work. Prior to the commencement of any Work costing more than an
amount equal to one (1) month’s Base Monthly Rent, or the supply or furnishing
of any labor, services and/or materials in connection with any such Work, Tenant
shall provide Landlord with a labor and material payment bond, a letter of
credit or other security satisfactory to Landlord in an amount equal to one
hundred percent (100%) of the aggregate price of all contracts therefore, with
release of the bond conditioned on Tenant's payment in full of all claims of
lien claimants for such labor, services and/or materials supplied in the
prosecution of the Work. Said payment bond shall name Landlord as a
primary obligee, shall be given by a surety which is satisfactory to Landlord,
and shall be in such form as Landlord shall approve in its sole
discretion. Tenant shall have the right to contest the correctness or
validity of any such lien if, immediately on demand by Landlord, it procures and
records a lien release bond issued by a responsible corporate surety in an
amount sufficient to satisfy statutory requirements therefore in the State of
Washington. Tenant shall promptly pay or cause to be paid all sums awarded to
the claimant on its suit, and, in any event, before any execution is issued with
respect to any judgment obtained by the claimant in its suit or before such
judgment becomes a lien on the Premises, whichever is earlier. If Tenant shall
be in default under this Section, by failing to provide security for or
satisfaction of any mechanic's or other liens, then Landlord may (but shall not
be obligated to), in addition to any other rights or remedies it may have,
discharge said lien by (i) paying the claimant an amount sufficient to settle
and discharge the claim, (ii) procuring and recording a lien release bond, or
(iii) taking such other action as Landlord shall deem necessary or advisable,
and, in any such event, Tenant shall pay as Additional Rent, on Landlord's
demand, all reasonable costs (including reasonable attorney fees) incurred by
Landlord in settling and discharging such lien together with interest thereon in
accordance with Section 40 captioned “Interest on Unpaid Rent” from the date of
Landlord's payment of said costs. Landlord's payment of such costs shall not
waive any default of Tenant under this Section.
17. Utilities and
Services.
17.1 Utilities and Services Furnished by
Landlord. Landlord shall not furnish any
utilities.
17.2 Payment for Excess Utilities and
Services. Tenant shall install or connect, if necessary, and be directly
responsible for all electricity, water, sewer, janitorial services, security
services or systems, snow removal, telephone, garbage removal services, or other
utilities and services supplied to the Premises, and Tenant shall contact the
suppliers to directly xxxx Tenant for those services.
17.3 Temperature
Balance. Landlord represents to Tenant that the heating,
ventilation and air conditioning systems in the Building are adequate to
maintain temperatures that may be required for Tenant’s purposes as the Premises
is being used on the Commencement Date. Landlord shall have no
liability for loss or damage suffered by Tenant or others if the temperature
otherwise maintained in any portion of the Premises by the heating, air
conditioning or ventilation system is affected as a result of (i) any lights,
machines or equipment (including without limitation electronic data processing
machines) used by Tenant in the Premises or the use of more than one personal
computer per person, (ii) the occupancy of the Premises by more than one person
per two hundred (200) square feet of rentable area therein, (iii) any
rearrangement of partitioning or other improvements. Tenant shall not
install or operate window-mounted heating or air-conditioning
units.
17.4 Special Electrical or Water
Connections; Electricity Use. Tenant shall not connect with
electric current except through existing outlets in the Premises and shall not
connect with water pipes except through existing plumbing fixtures in the
Premises. In no event shall Tenant's use of electricity exceed the
capacity of existing feeders to the Building or the risers or wiring
installation, and Landlord may prohibit the use of any electrical equipment
which in Landlord's opinion will overload such wiring or interfere with the use
thereof. If Landlord consents to the use of equipment requiring such
changes, Tenant shall pay the cost of installing any additional risers, panels
or other facilities that may be necessary to furnish energy to the
Premises.
Landlord
will not permit additional coring of the floor of the Premises in order to
install new electric outlets in the Premises unless Tenant furnishes Landlord
with X-ray scans of the floor area where the Tenant wishes to place additional
electrical outlets and Landlord, in its absolute discretion, is satisfied, on
the basis of such X-ray scans and other information obtained by Landlord, that
coring of the floor in order to install such additional outlets will not weaken
the structure of the floor.
17.5 Landlord's
Duties. Landlord shall not be in default under this Lease or
liable for any damages resulting from, or incidental to, any of the following,
nor shall any of the following be an actual or constructive eviction of Tenant,
nor shall the Rent be abated by reason of: (i) failure to furnish, or
delay in furnishing, any of the services described in this Section 17.5 when
such failure or delay is caused by any condition beyond the reasonable control
of Landlord, (ii) any electrical surges or spikes, or (iii) failure to make any
repair or to perform any maintenance, provided, however, that Landlord shall be
in default hereunder if such failure shall persist for thirty (30) days after
notice of the need for such repair or maintenance is given to Landlord by
Tenant. If the default cannot reasonably be cured within thirty (30)
days, then Landlord shall not be in default under this Lease if Landlord
commences to cure the default within thirty (30) days and diligently and in good
faith continues to cure the default. Landlord shall use reasonable
efforts to remedy any interruption in the furnishing of such
services.
17.6 Governmental
Regulations. Any other provisions of this Section 17.6
notwithstanding, if any governmental authority or utility supplier imposes any
laws, controls, conditions, or other restrictions upon Landlord, Tenant, or the
Building, relating to the use or conservation of energy or utilities, mandated
changes in temperatures to be maintained in the Premises or the Building or the
reduction of automobile or other emissions (collectively, the “Controls”), or in the event
Landlord is required to make alterations to the Building in order to comply with
the Controls, Landlord may, in its sole discretion, comply and may require
Tenant to comply with the Controls or make such alterations to the Building in
order to comply with the Controls. Such compliance and the making of
such alterations shall not constitute an actual or constructive eviction of
Tenant, impose on Landlord any liability whatsoever, or entitle Tenant to any
abatement of Rent.
18. Indemnity.
18.1 Generally. Tenant
shall defend, hold harmless and indemnify Landlord from and against any and all
damages arising out of any damage to any persons or property occurring in, on or
about the Premises resulting from the acts or omissions of Tenant or its
authorized representatives. Landlord shall defend, hold harmless and
indemnify Tenant from and against any and all damages arising out of any damage
to any persons or property occurring in, on or about the Premises resulting from
the acts or omissions of Landlord or its authorized
representatives. A party's obligation under this Section 18.1 to
indemnify and hold the other party harmless shall be limited to the sum that
exceeds the amount of insurance proceeds, if any, received by the party being
indemnified.
18.2 Concurrent Negligence of Landlord and
Tenant. Notwithstanding the provisions of Section 18.1 above, in the
event of concurrent negligence of Tenant, or its authorized representatives, on
the one hand, and that of Landlord, or its authorized representatives, on the
other hand, which concurrent negligence results in damage to any persons or
property occurring in, on or about the Premises, either party's obligation to
indemnify the other party as set forth in Section 18.1 shall be limited to the
extent of the negligence of the indemnifying party, or its authorized
representatives, including the indemnifying party's proportional share of costs
and attorneys' fees incurred in connection with any claims, actions or
proceedings brought with respect to such damage.
18.3 Waiver of Worker's Compensation
Immunity. The indemnification obligations contained in this
Section 18 shall not be limited by any worker's compensation, benefit or
disability laws, and each indemnifying party hereby waives (solely for the
benefit of the indemnified party) any immunity that said indemnifying party may
have under the Industrial Insurance Act, Title 51 RCW and similar worker's
compensation, benefit or disability laws.
18.4 Provisions Specifically
Negotiated. LANDLORD AND TENANT ACKNOWLEDGE BY THEIR EXECUTION OF THIS
LEASE THAT EACH OF THE INDEMNIFICATION PROVISIONS OF THIS LEASE (SPECIFICALLY
INCLUDING BUT NOT LIMITED TO THOSE RELATING TO WORKER'S COMPENSATION BENEFITS
AND LAWS) WERE SPECIFICALLY NEGOTIATED AND AGREED TO BY LANDLORD AND
TENANT.
19. Exemption
of Landlord from Liability. Landlord and
Landlord's Agent shall not be liable for injury to Tenant's business or loss of
income therefrom or for damage which may be sustained by the person, goods,
wares, merchandise or property of Tenant, its authorized representatives, or any
other person in or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or into any part of
the Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures of the same, whether the said damage or injury resulting from
conditions arising upon the Premises or upon other portions of the Building
unless such injury or damage is caused by the gross negligence or willful
misconduct of Landlord or its authorized representatives or Landlord’s breach of
this Lease.
20. Commercial
General Liability and Property Damage Insurance. Landlord shall
maintain “all-risk” real and personal property insurance against physical loss
or damage to the Building under a “special form” property insurance policy in
amounts not less than the full replacement cost of the Building (“Landlord’s
Insurance”). Tenant shall reimburse Landlord for the cost of
Landlord’s Insurance within thirty (30) days of Tenant’s receipt of an invoice
from Landlord evidencing the payment of costs incurred by Landlord to obtain
Landlord’s Insurance. Any insurance costs owed to Landlord by Tenant pursuant to
this Section 20 shall be prorated on the basis of a 360 day year to account for
any fractional portion of a year included in the Term at its commencement and
expiration. Tenant, at its cost, shall maintain commercial general
liability insurance (including contractual liability and products and completed
operations liability) with liability limits of not less than $2,000,000 per
occurrence, and $5,000,000 annual aggregate, insuring against all liability of
Tenant and its authorized representatives arising out of or in connection with
Tenant's use and occupancy of the Premises and property damage insurance with
liability limits of not less than $1,000,000. All such commercial
general liability and property damage insurance shall insure performance by
Tenant of the indemnity provisions of Section 18 captioned
“Indemnity.” Landlord shall be an additional named insured on such
insurance policy.
21. Tenant's
Fire Insurance. Tenant, at its
cost, shall maintain on all of Tenant's Alterations, Trade Fixtures and Personal
Property in, on or about the Premises, a policy of standard Special Causes of
Loss or Special Form property insurance, in an amount equal to at least their
full replacement cost. The proceeds of any such policy shall be used
by Tenant for the restoration of Tenant's Alterations and Trade Fixtures and the
replacement of its Personal Property. Any portion of such proceeds
not used for such restoration shall belong to Tenant.
22. Waiver of
Claims; Waiver of Subrogation. Landlord and
Tenant release each other, and their respective authorized representatives,
from, and waive their entire claim of recovery for, any claims for damage to the
Premises and the Building and to Tenant's alterations, Trade Fixtures and
personal property that are caused by or result from fire, lightning or any other
perils normally included in an “Special Causes of Loss” or “Special Form”
property insurance policy whether or not such loss or damage is due to the
negligence of Landlord, or its authorized representatives, or of Tenant, or its
authorized representatives. Landlord and Tenant shall cause each insurance
policy obtained by it to provide that the insurance company waives all right of
recovery by way of subrogation against either party in connection with any
damage covered by such insurance policy.
23. Other
Insurance Matters. All insurance
required to be carried by Tenant under this Lease shall: (i) be
issued by insurance companies authorized to do business in the State of
Washington with a rating of A/VI or better as rated in the most recent edition
of Best's Insurance Reports; (ii) be issued as a primary policy; and (iii)
contain an endorsement requiring thirty (30) days' prior written notice from the
insurance company to both parties, to Landlord's Agent, and, if requested by
Landlord, to Landlord's lender, before cancellation or change in the coverage,
scope, or amount of any policy. Each policy or a certificate of the
policy, together with evidence of payment of premiums, shall be deposited with
Landlord on or before the Commencement Date, and on renewal of the policy not
less than ten (10) days before expiration of the term of the
policy.
24. Destruction.
24.1 Insured
Damage. If during the
Term the Premises or the Building are partially or totally destroyed by any
casualty that is covered by any insurance carried by Landlord covering the
Building, rendering the Premises partially or totally inaccessible or unusable,
Landlord shall restore the Premises or the Building to substantially the same
condition as they were in immediately before such destruction, if (i) Landlord’s
mortgagee permits Landlord to use the insurance proceeds for such restoration;
(ii) in the opinion of a registered architect or engineer appointed by Landlord
such restoration can be completed within one hundred twenty (120) days after the
date of the casualty, and (iii) such restoration is permitted under then
existing laws to be done in such a manner as to return the Premises, or the
Building, as the case may be, to substantially the same condition as they were
in immediately before such destruction. Such destruction shall not terminate
this Lease.
24.2 Major or Uninsured Damage. If
during the Term the Premises or the Building are partially or totally destroyed
by any casualty and Landlord is not obligated under Section 24.1 captioned
“Insured Damage” to restore the Premises or the Building, as the case may be,
then Landlord may, at its election, either (i) restore the Premises or the
Building to substantially the same condition as they were in immediately before
such destruction, or (ii) terminate this Lease effective as of the date of such
destruction. If in the opinion of a registered architect or engineer
appointed by Landlord such restoration cannot be completed within one hundred
twenty (120) days after the date of the casualty, Tenant shall have the right to
terminate the Lease effective as of the date of such destruction. If
Landlord does not give Tenant notice within sixty (60) days after the date of
such destruction of its election to restore the Premises or the Building, as the
case may be, Landlord shall be deemed to have elected to terminate this
Lease. If Landlord elects to restore the Premises or the Building and
Tenant has not otherwise terminated the Lease in accordance with this Section,
as the case may be, Landlord shall use commercially reasonable efforts to
complete such restoration within one hundred twenty (120) days after the date of
the casualty, provided, however, that such one hundred twenty (120) day period
shall be extended by a period equal to any delays caused by Force
Majeure. If Landlord does not complete such restoration within nine
(9) months following the date of such destruction, then Tenant may elect to
terminate this Lease by giving notice to such effect to Landlord within ten (10)
days following the end of such nine (9) month period.
24.3 Damage to the
Building. If during the Term the Building is partially
destroyed by any casualty and if in the opinion of Landlord the Building should
be restored in such a way as to materially alter the Premises, then either
Landlord or Tenant may terminate this Lease by giving notice to the other party
within sixty (60) days after the date of such destruction.
24.4 Damage Near End of
Term. In the event of partial or total destruction of the
Premises or the Building during the last year of the Term, then either Landlord
and Tenant may, at its election, terminate this Lease by giving notice to the
other party of such party's election to do so within sixty (60) days after the
date of such destruction. For purposes of this Section 24.4, the term
“partial destruction”
shall mean destruction to an extent of at least thirty-three and one-third
percent (33 1/3%) of the full replacement cost of the Premises or the Building,
as the case may be, as of the date of destruction.
24.5 Extent of Landlord's Obligation to
Restore. If Landlord is required or elects to restore the
Premises as provided in this Section, Landlord shall not be required to restore
alterations made by Tenant, Tenant's trade fixtures and Tenant's personal
property, such excluded items being the sole responsibility of Tenant to
restore.
24.6 Abatement or Reduction of Rent.
In case of damage to, or destruction of, the Premises or the Building the
Base Monthly Rent shall be abated or reduced, between the date of destruction
and the date of completion of restoration, by an amount that is in the same
ratio to the Base Monthly Rent as the total number of square feet of the
Premises that are so damaged or destroyed bears to the total number of square
feet in the Premises.
25. Condemnation. If during the
Term there is any taking of part or all of the Premises or the Building by
condemnation, then the rights and obligations of the parties shall be as
follows:
25.1 Minor Taking. If
there is a taking of less than ten percent (10%) of the Building and parking
area, this Lease shall remain in full force and effect.
25.2 Major Taking. If
there is a taking of ten percent (10%) or more of the Building and the parking,
and if the remaining portion of the Premises is of such size or configuration
that Tenant in Tenant’s reasonable judgment is unable to conduct its business in
the Premises, then the Term shall terminate as of the date of
taking.
25.3 Taking of Part of the
Building. If there is a taking of a part of the Building and
if in the opinion of Landlord the Building should be restored in such a way as
to materially alter the Premises or in the event that a taking results in the
inability of Tenant to comply with all laws concerning the Premises
(particularly zoning laws and regulations), then either Landlord or Tenant may
terminate this Lease by giving notice to such effect to the other party within
sixty (60) days after the date of vesting of title in the condemnor and this
Lease shall terminate as of the date specified in such notice, which date shall
not be less than sixty (60) days after the giving of such notice.
25.4 Award. The entire
award for the Premises, and the Building, shall belong to and be paid to
Landlord, Tenant hereby assigning to Landlord Tenant's interest therein, if any,
provided, however, that Tenant shall have the right to separately claim and
recover from the condemnor compensation for the then unamortized value of any
alterations paid for by Tenant, Tenant's Trade Fixtures, Tenant's personal
property and moving expenses. The cost of any alterations paid for by
Tenant shall be amortized over the Initial Term on a straight-line
basis.
25.5 Abatement of
Rent. If any part of the Building is taken by condemnation and
this Lease remains in full force and effect, on the date of taking the Base
Monthly Rent shall be reduced by an amount that is in the same ratio to the Base
Monthly Rent as the total number of square feet in the Building taken bears to
the total number of square feet in the Premises immediately before the date of
taking.
26. Assignment and
Subletting.
26.1 Landlord's Consent;
Definitions. Tenant acknowledges that the rental value of the
Premises may fluctuate during the Term in accordance with market conditions,
and, as a result, the Rent paid by Tenant under the Lease at any particular time
may be higher or lower than the then market rental value of the
Premises. Landlord and Tenant agree, and the provisions of this
Section are intended to so provide, that, if Tenant voluntarily assigns its
interest in this Lease or in the Premises or subleases any part or all of the
Premises, a portion of the profits from any increase in the market rental value
of the Premises shall belong to Landlord. Tenant acknowledges that,
if Tenant voluntarily assigns this Lease or subleases any part or all of the
Premises, Tenant's investment in the subject portion of the Premises
(specifically including, but not limited to, tenant improvements, good will or
other assets) may be lost or reduced as a result of such action.
26.2 Consent
Required. Tenant shall not voluntarily assign or encumber its
interest in this Lease or in the Premises, or sublease any part or all of the
Premises, without Landlord's prior consent, which consent shall not be
unreasonably withheld. Any assignment, encumbrance or sublease
without Landlord's consent shall be voidable and, at Landlord's election, shall
constitute a default by Tenant under this Lease. In determining
whether to approve a proposed assignment or sublease, Landlord shall place
primary emphasis on the proposed transferee's reputation and creditworthiness,
the character of the business to be conducted by the proposed transferee at the
Premises. In addition, Landlord shall have the right to approve the specific
form of any assignment or sublease agreement. In no event shall
Landlord be obligated to consent to any assignment or subletting which increases
the foot traffic, or security concerns in the Building (for example, but not
exclusively, Landlord may deny consent to an assignment or subletting where the
space will be used for a school or training facility, an entertainment, sports
or recreation facility, retail sales to the public (unless Tenant's permitted
use is retail sales), a personnel or employment agency, a medical office, or an
embassy or consulate or similar office). Landlord shall not be
obligated to approve an assignment or subletting to a prospective tenant of the
Building with whom Landlord is then negotiating. Landlord's foregoing
rights and options shall continue throughout the entire term of this
Lease. No consent to any assignment, encumbrance or sublease shall
constitute a waiver of the provisions of this Section 26.2 and no other or
subsequent assignment, encumbrance or sublease shall be made without Landlord's
prior consent. Neither an assignment or subletting nor the collection of Rent by
Landlord from any person other than Tenant, nor the application of any such Rent
as provided in this Section shall be deemed a waiver of any of the provisions of
this Section 26 or release Tenant from its obligation to comply with the terms
and provisions of this Lease and Tenant shall remain fully and primarily liable
for all of Tenant's Obligations (as that term is defined herein) under this
Lease, including the obligation to pay Rent under this Lease. Any
guarantee(s) of Tenant's Obligations under this Lease shall remain in full force
and effect following any such assignment or subletting. In addition
to Landlord’s other rights under this Section, Landlord may condition approval
of an assignment or subletting hereunder on an increase in the amount of the
Security Deposit or on receipt of personal guarantees of the assignee's or
sublessee's obligations under this Lease. If Landlord approves of an
assignment or subletting hereunder and this Lease contains any renewal or
extension options, expansion options, rights of first refusal, rights of first
negotiation or any other rights or options pertaining to additional space in the
Building, such rights and/or options shall not run to the assignee or subtenant,
it being agreed by the parties hereto that any such rights and options are
personal to Tenant named herein and may not be transferred.
26.3 Conditions to Assignment or
Sublease. Tenant agrees that any instrument by which Tenant
assigns or sublets all or any portion of the Premises shall expressly provide
that the assignee or subtenant may not further assign or sublet the assigned or
sublet space without Landlord's prior consent (which consent shall not, subject
to Landlord's rights under this Section, be unreasonably withheld or delayed),
and that the assignee or subtenant will comply with all of the provisions of
this Lease and that Landlord may enforce the Lease provisions directly against
such assignee or subtenant. If this Lease is assigned, whether or not in
violation of the terms and provisions of this Lease, Landlord may collect Rent
from the assignee. If the Premises, or any part thereof, is sublet, Landlord
may, upon a default under this Lease, collect rent from the
subtenant. In either event, Landlord may apply the amount collected
from the assignee or subtenant to Tenant's obligation to pay Rent under this
Lease.
26.4 Events Constituting an Assignment or
Sublease. The following events shall not be deemed an
assignment or sublease requiring the prior written consent of Landlord: (i) the
issuance of equity interests (whether stock, partnership interests or otherwise)
in Tenant, or any assignee or subtenant, if applicable, or any entity
controlling any of them, to any person or group of related persons, in a single
transaction or a series of related or unrelated transactions, such that,
following such issuance, such person or group shall have Control (as defined
below) of Tenant, or any assignee or subtenant, if applicable; (ii) a transfer
of Control of Tenant, or any assignee or subtenant, if applicable, or any entity
controlling any of them, in a single transaction or a series of related or
unrelated transactions (including, without limitation, by consolidation, merger,
acquisition or reorganization); or (iii) an assignment to any affiliate of
Tenant or to any successor of Tenant resulting from a merger, consolidation or
other corporate restructuring, to any entity under the common Control of Tenant,
or to any partner or joint venturer of Tenant. “Control” shall mean direct or
indirect ownership of fifty percent (50%) or more of all the legal and equitable
interest in any business entity.
26.5 Processing
Expenses. Tenant shall pay to Landlord the amount of
Landlord's cost of processing each proposed assignment or subletting, including
without limitation, reasonable attorneys' and other professional fees, and the
cost of Landlord's administrative, accounting and clerical time (collectively,
“Processing Costs”), and
the amount of all reasonable direct and indirect expense incurred by Landlord
arising from the assignee or sublessee taking occupancy of the subject space,
including without limitation, reasonable costs of security service, janitorial
and cleaning service, rubbish removal service, costs of changing signage, and
costs of changing locks and making new keys (collectively, “Occupancy
Costs”). Notwithstanding anything to the contrary herein,
Landlord shall not be required to process any request for Landlord's consent to
an assignment or subletting until Tenant has paid to Landlord One Thousand
Dollars ($1,000.00), or Landlord's estimate of the Processing Costs and the
Occupancy Costs, whichever is greater.
26.6 Consideration to
Landlord. In the event of any assignment or sublease, whether
or not requiring Landlord's consent, Landlord shall be entitled to receive, as
Additional Rent, one-half (1/2) of any consideration, including without
limitation, payment for leasehold improvements paid for by Landlord, paid by the
assignee or subtenant for the assignment or sublease, and, in the case of
sublease, one-half (1/2) the excess of the amount of rent paid for the sublet
space by the subtenant over the total amount of Base Monthly Rent under Section
5 and Additional Rent. Upon Landlord's request, Tenant shall assign
to Landlord all amounts to be paid to Tenant by the assignee or subtenant and
shall direct such assignee or subtenant to pay the same directly to Landlord. If
there is more than one sublease under this Lease, the amounts (if any) to be
paid by Tenant to Landlord pursuant to the preceding sentence shall be
separately calculated for each sublease and amounts due Landlord with regard to
any one sublease may not be offset against rental and other consideration due
under any other sublease.
26.7 Procedures. If
Tenant desires to assign this Lease or any interest therein or sublet all or
part of the Premises, Tenant shall give Landlord written notice thereof
designating the space proposed to be sublet and the terms proposed. If the
proposed sublease covers the entire Premises and if the term of the proposed
sublease (including any renewal or extension terms) will expire during the final
six (6) months of the Term (or if Tenant has exercised a renewal or extension
option, if any, then during the final six (6) months of the subject renewal or
extension period), then Landlord shall have the prior right and option (to be
exercised by written notice to Tenant given within fifteen (15) days after
receipt of Tenant's notice) (i) to terminate this Lease, or (ii) to approve
Tenant's proposal to sublet conditional upon Landlord's subsequent written
approval of the specific sublease obtained by Tenant and the specific subtenant
named therein. If Landlord exercises its option described in (ii) above, Tenant
shall submit to Landlord for Landlord's written approval Tenant's proposed
sublease agreement (in which the proposed subtenant shall be named) together
with a current reviewed or audited financial statement prepared by a certified
public accountant for such proposed subtenant and a credit report on such
proposed subtenant prepared by a recognized credit reporting
agency. If Landlord fails to exercise its option to terminate this
Lease, this shall not be construed as or constitute a waiver of any of the
provisions of this Section. If Landlord exercises its option to terminate this
Lease, Landlord shall not have any liability for any real estate brokerage
commission(s) or with respect to any of the costs and expenses that Tenant may
have incurred in connection with its proposed subletting, and Tenant agrees to
hold Landlord harmless from and against any and all claims (including, without
limitation, claims for commissions) arising from such proposed subletting.
Landlord's foregoing rights and options shall continue throughout the
Term. For purposes of this Section, a proposed assignment of this
Lease in whole or in part shall be deemed a proposed subletting of such
space.
26.8 Documentation. No
permitted subletting by Tenant shall be effective until there has been delivered
to Landlord a counterpart of the sublease in which the subtenant agrees to be
and remain jointly and severally liable with Tenant for the payment of Rent
pertaining to the sublet space and for the performance of all of the terms and
provisions of this Lease; provided, however, that the subtenant shall be liable
to Landlord for rent only in the amount set forth in the sublease. No
permitted assignment shall be effective unless and until there has been
delivered to Landlord a counterpart of the assignment in which the assignee
assumes all of Tenant's Obligations under this Lease arising on or after the
date of the assignment. The failure or refusal of a subtenant or
assignee to execute any such instrument shall not release or discharge the
subtenant or assignee from its liability as set forth above.
26.9 No Merger. Without
limiting any of the provisions of this Section, if Tenant has entered into any
subleases of any portion of the Premises, the voluntary or other surrender of
this Lease by Tenant, or a mutual cancellation by Landlord and Tenant, shall not
work a merger, and shall, at the option of Landlord, terminate all or any
existing subleases or subtenancies or, at the option of Landlord, operate as an
assignment to Landlord of any or all such subleases or
subtenancies.
27. Default. The occurrence of
any of the following shall constitute a default by Tenant under this
Lease:
27.1 Failure to Pay Rent. Failure
to pay Rent when due, if the failure continues for a period of five (5) days
after notice of such default has been given by Landlord to Tenant;
27.2 Other Defaults. Failure to
perform any other provision of this Lease, if the failure to perform is not
cured within thirty (30) days after notice of such default has been given by
Landlord to Tenant. If the default cannot reasonably be cured within thirty (30)
days, then Tenant shall not be in default under this Lease if Tenant commences
to cure the default within thirty (30) days and diligently and in good faith
continues to cure the default; or
27.3 Appointment of Trustee or
Receiver. The appointment of a trustee or receiver to take possession of
substantially all of the Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within sixty
(60) days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within sixty (60)
days.
28. Remedies. If Tenant commits a default,
Landlord shall have the following alternative remedies, which are in addition to
any remedies now or later allowed by law:
28.1 Maintain Lease in
Force. Maintain this Lease in full force and effect and
recover the Rent and other monetary charges as they become due, without
terminating Tenant's right to possession, irrespective of whether Tenant shall
have abandoned the Premises. If Landlord elects to not terminate the Lease,
Landlord shall use commercially reasonable efforts to re-let the Premises at
such rent and upon such conditions and for such a term, and to do all acts
necessary to maintain or preserve the Premises as Landlord deems reasonable and
necessary without being deemed to have elected to terminate the Lease including
removal of 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. In the event any such re-letting occurs, this Lease shall
terminate automatically upon the new tenant taking possession of the Premises.
Notwithstanding that Landlord fails to elect to terminate the Lease initially,
Landlord at any time during the term of this Lease may elect to terminate this
Lease by virtue of such previous default of Tenant; or
28.2 Terminate Lease. Terminate
Tenant's right to possession by any lawful means, in which case this Lease shall
terminate and Tenant shall immediately surrender possession of the Premises to
Landlord. In such event Landlord shall be entitled to recover from Tenant all
damages incurred by Landlord by reason of Tenant's default including without
limitation thereto, the following: (i) The worth at the time of award
of any unpaid Rent which had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the unpaid Rent which
would have been earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; plus (iii) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its Obligations
under this Lease, including without limitation, any costs or expenses incurred
by Landlord in (A) retaking possession of the Premises, including reasonable
attorney fees therefore, (B) maintaining or preserving the Premises after such
default, (C) preparing the Premises for reletting to a new tenant, including
repairs or necessary alterations to the Premises for such reletting, (D) leasing
commissions incident to reletting to a new tenant, and (E) any other costs
necessary or appropriate to relet the Premises; plus (iv) at Landlord's
election, such other amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable state law. The amounts described in
clauses (C) and (D) shall be amortized over the term of the new tenant’s lease,
and Tenant shall only be liable to Landlord for the portion of such amounts
attributable to the period prior to the Expiration Date of this Lease set forth
in Section 1. Upon any such re-entry Landlord shall have the right to make any
reasonable repairs, alterations or modifications to the Premises, which Landlord
in its sole discretion deems reasonable and necessary. As used in Section 28.2
the “worth at the time of award” is computed by allowing interest at the rate of
eight percent (8%) per year from the date of default.
29. Bankruptcy.
29.1 Assumption of Lease. If Tenant
becomes a Tenant under Chapter 7 of the Bankruptcy Code (“Code”) or a petition
for reorganization or adjustment of debts is filed concerning Tenant under
Chapters 11 or 13 of the Code, or a proceeding is filed under Chapter 7 of the
Code and is transferred to Chapters 11 or 13 of the Code, the Trustee or Tenant,
as Tenant and as Tenant-In-Possession, may not elect to assume this Lease
unless, at the time of such assumption, the Trustee or Tenant has:
29.1.1 Cured all
defaults under the Lease and paid all sums due and owing under the Lease or
provided Landlord with “Adequate Assurance” (as defined below) that: (i) within
ten (10) days from the date of such assumption, the Trustee or Tenant will
completely pay all sums due and owing under this Lease and compensate Landlord
for any actual pecuniary loss resulting from any existing default or breach of
this Lease, including without limitation, Landlord's reasonable costs, expenses,
accrued interest, and attorneys' fees incurred as a result of the default or
breach; (ii) within twenty (20) days from the date of such assumption, the
Trustee or Tenant will cure all non-monetary defaults and breaches under this
Lease, or, if the nature of such non-monetary defaults is such that more than
twenty (20) days are reasonably required for such cure, that the Trustee or
Tenant will commence to cure such non-monetary defaults within twenty (20) days
and thereafter diligently prosecute such cure to completion; and (iii) the
assumption will be subject to all of the provisions of this Lease.
29.1.2 For
purposes of this Section 29, Landlord and Tenant acknowledge that, in the
context of a bankruptcy proceeding involving Tenant, at a minimum, “Adequate
Assurance” shall mean: (i) the Trustee or Tenant has and will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the Trustee or Tenant will have
sufficient funds to fulfill the Obligations of Tenant under this Lease; (ii) the
Bankruptcy Court shall have entered an Order segregating sufficient cash payable
to Landlord and/or the Trustee or Tenant shall have granted a valid and
perfected first lien and security interest and/or mortgage in or on property of
Trustee or Tenant acceptable as to value and kind to Landlord, to secure to
Landlord the obligation of the Trustee or Tenant to cure the monetary and/or
non-monetary defaults and breaches under this Lease within the time periods set
forth above; and (iii) the Trustee or Tenant, at the very minimum, shall deposit
a sum equal to two (2) month's Base Monthly Rent to be held by Landlord (without
any allowance for interest thereon) to secure Tenant's future performance under
the Lease.
29.2 Assignment
of Lease. If the
Trustee or Tenant has assumed the Lease pursuant to the provisions of this
Section 29 for the purpose of assigning Tenant's interest hereunder to any other
person or entity, such interest may be assigned only after the Trustee, Tenant
or the proposed assignee have complied with all of the terms, covenants and
conditions of this Lease, including, without limitation, those with respect to
Additional Rent. Landlord and Tenant acknowledge that such terms, covenants and
conditions are commercially reasonable in the context of a bankruptcy proceeding
of Tenant. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon
request execute and deliver to Landlord an instrument confirming such
assignment.
29.3 Adequate
Protection. Upon
the filing of a petition by or against Tenant under the Code, Tenant, as Tenant
and as Tenant-In-Possession, and any Trustee who may be appointed agree to
adequately protect Landlord as follows: (i) to perform each and every obligation
of Tenant under this Lease until such time as this Lease is either rejected or
assumed by Order of the Bankruptcy Court; (ii) to pay all monetary obligations
required under this Lease; (iii) provide Landlord a minimum of thirty (30) days
prior written notice, unless a shorter period is agreed to in writing by the
parties, of any proceeding relating to any assumption of this Lease or any
intent to abandon the Premises, which abandonment shall be deemed a rejection of
this Lease; and (iv) to perform to the benefit of Landlord as otherwise required
under the Code. The failure of Tenant to comply with the above shall result in
an automatic rejection of this Lease.
30. Leasehold
Mortgage; Security Agreement. Tenant may, without the prior
written consent of Landlord, subject the leasehold estate created by this Lease,
as amended from time to time, and Tenant’s personal property and Trade Fixtures
to a leasehold mortgage and/or security agreement to secure financing or other
obligations which Tenant may obtain or incur from time to time. In
connection with any such leasehold mortgage and/or security agreement, Landlord
will, promptly following receipt of written request therefore, provide to
Tenant’s lender(s) an estoppel agreement confirming whether or not this Lease
has been amended, whether or not there are any uncured defaults under this
Lease, and such other matters pertaining to the Lease as such lender(s) may
reasonable require. In addition, Landlord will agree to provide
Tenant’s lender(s) with written notice of any defaults by Tenant under this
Lease and a reasonable opportunity to cure such defaults before landlord
exercises its remedies under this Lease, and to provide Tenant’s lender(s) with
a reasonable opportunity to enter upon the Property for the
purpose of removing any property of Tenant which has been pledged as
collateral to Tenant’s lender(s) or which has been subjected to any such
leasehold mortgage and/or security agreement.
31. Limitation
on Landlord's Liability. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements or for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the Premises, but are made and intended
for the purpose of binding only the Landlord's interest in the
Premises. No personal liability or personal responsibility is assumed
by, nor shall at any time be asserted or enforceable against Landlord or its
partners and their respective heirs, legal representatives, successors and
assigns on account of this Lease or on account of any covenant, undertaking or
agreement of Landlord contained in this Lease.
32. Signs. Tenant shall not have the
right to place, construct or maintain any sign, advertisement, awning, banner or
other exterior decoration without Landlord's consent, which consent shall not be
unreasonably withheld. Any sign that Tenant has Landlord's consent to place,
construct and maintain shall comply with all laws, and Tenant shall obtain any
approval required by such laws. Landlord makes no representation with
respect to Tenant's ability to obtain such approval.
33. Landlord's
Right to Enter the Premises. Landlord and its
authorized representatives shall have the right to enter the Premises at
reasonable times and upon twenty-four (24) hours prior notice (except in an
emergency when no such notice shall be required) for any of the following
purposes: (i) to determine whether the Premises are in good condition and
whether Tenant is complying with its Obligations under this Lease, (ii) to do
any maintenance; to make any restoration to the Premises or the Building that
Landlord has the right or the obligation to perform, and to make any
improvements to the Premises or the Building that Landlord deems necessary,
(iii) to serve, post or keep posted any notices required or allowed under the
provisions of this Lease, (iv) to post any ordinary “For Sale” signs at any time
during the Term and to post any ordinary “For Lease” signs during the last
ninety (90) days of the Term, and (v) to show the Premises to prospective
brokers, agents, purchasers, tenants or lenders, during the last six (6) months
of the Term.
Landlord
shall not be liable in any manner for any inconvenience, annoyance, disturbance,
loss of business, nuisance, or other damage arising out of Landlord's entry on
the Premises as provided in this Section, except damage resulting from the
grossly negligent or willful acts of Landlord or its authorized representatives
and provided Landlord’s entry does not materially interfere with Tenant’s
operation of its business in the Premises. . Tenant shall not be
entitled to an abatement or reduction of Rent if Landlord exercises any right
reserved in this Section provided Landlord’s entry into the Premises does not
materially interfere with Tenant’s operation of its business in the
Premises. Landlord shall conduct its activities on the Premises as
allowed in this Section in a reasonable manner so as to cause minimal
inconvenience, annoyance or disturbance to Tenant.
34. Subordination. This Lease is and
shall be prior to any mortgage recorded after the date of this Lease affecting
the Premises. If, however, a lender requires that this Lease be
subordinate to any mortgage, this Lease shall be subordinate to that mortgage if
Landlord first obtains from the lender a written agreement that provides
substantially the following:
“As long
as Tenant performs its obligations under this Lease, no foreclosure of, deed
given in lieu of foreclosure of, or sale under the mortgage, and no steps or
procedures taken under the mortgage, shall affect Tenant's rights under this
Lease. “
Tenant
shall attorn to any purchaser at any foreclosure sale, or to any grantee or
transferee designated in any deed given in lieu of
foreclosure. Tenant, within ten (10) business days after notice from
Landlord, shall execute and deliver the written agreement and any other
documents required by the lender to accomplish the purposes of this
Section.
35. Right to
Estoppel Certificates. Tenant, within
ten (10) business days after notice from Landlord, shall execute and deliver to
Landlord, in recordable form, a certificate stating that this Lease is
unmodified and in full force and effect, or in full force and effect as modified
and stating the modifications. The certificate shall also state the
amount of Base Monthly Rent, the dates to which Rent has been paid in advance,
and the amount of any Security Deposit and such other matters as Landlord may
reasonably request. Failure to deliver the certificate within such
ten (10) business day period shall be conclusive upon Tenant for the benefit of
Landlord and any successor to Landlord, that this Lease is in full force and
effect and has not been modified except as may be represented by Landlord
requesting the certificate.
36. Transfer
of Landlord's Interest. If Landlord sells
or transfers the Premises, Landlord, on consummation of the sale or transfer,
shall be released from any liability thereafter accruing under this Lease if
Landlord's successor has assumed in writing, for the benefit of Tenant,
Landlord's obligations under this Lease. If any Security Deposit has
been paid by Tenant, Landlord shall transfer such Security Deposit to Landlord's
successor and on such transfer Landlord shall be discharged from any further
liability with respect to such Security Deposit.
37. Attorneys'
Fees. If either party
shall bring any action for relief against the other party, declaratory or
otherwise, arising out of this Lease, including any action by Landlord for the
recovery of Rent or possession of the Premises, the substantially non-prevailing
party shall pay the substantially prevailing party a reasonable sum for
attorneys' fees which shall be deemed to have accrued on the commencement of
such action and shall be paid whether or not such action is prosecuted to
judgment.
38. Surrender;
Holding Over.
38.1 Surrender. On expiration or
ten (10) days after termination of the Term, Tenant shall surrender the Premises
and all Tenant's improvements and alterations to Landlord broom clean and in
good condition. Tenant shall remove all of its Trade Fixtures and
personal property, which personal property specifically includes all cabling
installed in the Premises by Tenant (unless Tenant has received consent from
Landlord that such cabling may be surrendered with and remain in the Premises),
within the time period stated in this Section. Tenant, at its cost, shall
perform all restoration made necessary by, and repair any damage to the Premises
caused by, the removal of its Trade Fixtures, personal property and signs to
Landlord's reasonable satisfaction within the time period stated in this Section
38. Landlord may, at its election, retain or dispose of in any manner
any of Tenant's Trade Fixtures or personal property that Tenant does not remove
from the Premises on expiration or within ten (10) days after termination of the
Term as allowed or required by the provisions of this Lease by giving ten (10)
days notice to Tenant. Title to any such Trade Fixtures and personal property
that Landlord elects to retain or dispose of on expiration of such ten (10) day
period shall vest in Landlord. Tenant waives all claims against
Landlord for any damage to Tenant resulting from Landlord's retention or
disposition of any such Trade Fixtures and personal property. Tenant
shall be liable to Landlord for Landlord's reasonable costs for storing,
removing and disposing of Tenant's Trade Fixtures and personal
property. If Tenant fails to surrender the Premises to Landlord on
expiration or ten (10) days after termination of the Term as required by this
Section, Tenant shall pay Landlord Rent in an amount equal to 150% of the Base
Monthly Rent applicable for the month immediately prior to the expiration or
termination of the Term, or the amount provided by law, whichever is greater,
for the entire time Tenant thus remains in possession and Tenant shall be liable
for, shall indemnify Landlord against and shall hold Landlord harmless from all
damages resulting from Tenant's failure to timely surrender the Premises,
including without limitation, (i) any Rent in excess of 150% of Base Monthly
Rent payable by, or any damages claimed by, any prospective tenant of any part
or all of the Premises, and (ii) Landlord's damages resulting from such
prospective tenant rescinding or refusing to enter into the prospective lease of
part or all of the Premises by reason of Tenant's failure to timely surrender
the Premises. If Tenant, without Landlord's prior consent, remains in possession
of the Premises after expiration or termination of the Term, or after the date
in any notice given by Landlord to Tenant terminating this Lease, such
possession by Tenant shall be deemed to be a tenancy at sufferance terminable at
any time by either party.
38.2 Holding
Over with Landlord's Consent. If Tenant, with Landlord's
prior consent, remains in possession of the Premises after expiration or
termination of the Term, or after the date in any notice given by Landlord to
Tenant terminating this Lease, such possession by Tenant shall be deemed to be a
month-to-month tenancy terminable by Landlord by a notice given to Tenant at
least twenty (20) days prior to the end of any such monthly period or by Tenant
by a notice given to Landlord at least thirty (30) days prior to the end of any
such monthly period. During such month-to-month tenancy, Tenant shall
pay Rent in the amount then agreed to in writing by Landlord and Tenant. All
provisions of this Lease, except those pertaining to term, shall apply to the
month-to-month tenancy.
39. Agency Disclosure;
Broker.
There are
no brokers involved in this Lease.
40. Interest
on Unpaid Rent. In addition to
the Late Charge as provided in Section 5.3, Rent not paid when due shall bear
interest from the date due until paid at the rate of twelve percent (12%) per
year, or the maximum legal rate of interest, whichever is less.
41. Intentionally
Deleted.
42. Definitions. As used in this Lease, the
following words and phrases, whether or not capitalized, shall have the
following meanings:
42.1 “Additional Rent” means
monetary sums other than Base Monthly Rent to be paid by Tenant under the
provisions of this Lease.
42.2 “Alteration” means any
addition or change to, or modification of, the Premises made by Tenant,
including without limitation, fixtures, but excluding Trade Fixtures as defined
in this Section.
42.3 “Authorized representatives”
means any officer, agent, employee, independent contractor or invitee of
either party.
42.4 “Award” means all
compensation, sums or anything of value awarded, paid or received on a total or
partial condemnation.
42.5 “Condemnation” means the
exercise of any governmental power, whether by legal proceedings or otherwise,
by a condemnor and a voluntary sale or transfer by Landlord to any condemnor,
either under threat of condemnation or while legal proceedings for condemnation
are pending.
42.6 “Condemnor” means any public
or quasi-public authority or entity having the power of
condemnation.
42.7 “Damage” means any injury,
deterioration, or loss to a person, property, the Premises or the Building
caused by another person's acts or omissions or by Acts of God. Damage includes
death.
42.8 “Damages” means a monetary
compensation or indemnity that can be recovered in the courts by any person who
has suffered damage to his person, property or rights through another's acts or
omissions.
42.9 “Date of taking” means the
date the condemnor has the right to possession of the property being
condemned.
42.10 “Encumbrance” means any
mortgage, deed of trust or other written security device or agreement affecting
the Premises, and the note or other obligation secured by it, that constitutes
security for the payment of a debt or performance of an obligation.
42.11 “Expiration” means the coming
to an end of the time specified in the Lease as its duration, including any
extension of the Term.
42.12 “Force majeure” means strikes,
lockouts, labor disputes, shortages of labor or materials, fire or other
casualty, Acts of God or any other cause beyond the reasonable control of a
party.
42.13 “Good condition” means the
good physical condition of the Premises and each portion of the Premises,
including without limitation, all of the tenant improvements, Tenant's
alterations, Tenant's Trade Fixtures, Tenant's Personal Property, all as defined
in this Section, signs, walls, interior partitions, windows, window coverings,
glass, doors, carpeting and resilient flooring, ceiling tiles, plumbing fixtures
and lighting fixtures, all of which shall be in conformity with building
standard finishes, ordinary wear and tear, damage by fire or other casualty and
taking by condemnation excepted.
42.14 “Hazardous substances” means
any industrial waste, toxic waste, chemical contaminant or other substance
considered hazardous, toxic or lethal to persons or property or designated as
hazardous, toxic or lethal to persons or property under any laws, including
without limitation, asbestos material or materials containing
asbestos.
42.15 “Hold harmless” means to
defend and indemnify from all liability, losses, penalties, damages as defined
in this Section 42, costs, expenses (including without limitation, attorneys'
fees), causes of action, claims or judgments arising out of or related to any
damage, as defined in this Section, to any person or property.
42.16 “Law” means any constitution,
statute, ordinance, regulation, rule, resolution, judicial decision,
administrative order or other requirement of any federal, state, county,
municipal or other governmental agency or authority having jurisdiction over the
parties or the Premises, or both, in effect either at the time of execution of
this Lease or at any time during the Term, including without limitation, any
regulation or order of a quasi-official entity or body (e.g., board of fire
examiners or public utilities) and any legally effective conditions, covenants
or restrictions affecting the Premises.
42.17 “Lender” means the mortgagee,
beneficiary, secured party or other holder of an Encumbrance, as defined in this
Section.
42.18 “Lien” means a charge imposed
on the Premises by someone other than Landlord, by which the Premises are made
security for the performance of an act.
42.19 “Maintenance” means repairs,
replacement, repainting and cleaning.
42.20 “Mortgage” means any deed of
trust, mortgage or other written security device or agreement affecting the
Premises, and the note or other obligation secured by it, that constitutes
security for the payment of a debt or performance of an obligation.
42.21 “Mortgagee” means the
beneficiary under a deed of trust or mortgagee under a mortgage.
42.22 “Mortgagor” means the grantor
or trustor under a deed of trust or mortgagor under a mortgage.
42.23 Intentionally
Deleted.
42.24 “Parties” means Landlord and
Tenant.
42.25 “Party” means Landlord or
Tenant.
42.26 “Person” means one or more
human beings, or legal entities or other artificial persons, including without
limitation, partnerships, corporations, trusts, estates, associations and any
combination of human beings and legal entities.
42.27 Intentionally
Deleted.
42.28 “Provision” means any term,
agreement, covenant, condition, clause, qualification, restriction, reservation,
or other stipulation in this Lease that defines or otherwise controls,
establishes, or limits the performance required or permitted by either
party.
42.29 “Real Property Taxes” means
any form of tax, assessment, general assessment, special assessment, lien, levy,
bond obligation, tax on rent (to the extent such a tax is passed and implemented
by the legislature of the State of Washington) together with any statutory
interest thereon, (in no event shall the term “Real Property taxes” include
Landlord’s general income, inheritance, estate, gift, or franchise taxes)
(individually and collectively, the “Impositions”), now or hereafter imposed or
required by any authority having the direct or indirect power to tax, including
any federal, state, county or city government or any school, agricultural,
lighting, drainage or other improvement or special assessment district thereof,
(individually and collectively, the “Governmental Agencies”) on any interest of
Landlord or Tenant or both (including any legal or equitable interest of
Landlord or its mortgagee, if any) in the Premises, including without
limitation:
42.29.1 any
Impositions upon, allocable to or measured by the area of the Premises;
or
42.29.2 any
Impositions upon any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; or
42.29.3 any
Impositions by Governmental Agencies (whether or not such Impositions constitute
tax receipts) in substitution, partially or totally, of any impositions now or
previously included within the definition of Real Property Taxes, including
those calculated to increase tax increments to Governmental Agencies and to pay
for such services as fire protection, water drainage, street, sidewalk and road
maintenance, refuse removal or other governmental services formerly provided
without charge to property owners or occupants; or
42.29.4 any and
all costs, including without limitation, the fees of attorneys, tax consultants
and experts, incurred by Landlord should Landlord elect to negotiate or contest
the amount of such Real Property Taxes in formal or informal proceedings before
the Governmental Agency imposing such Real Property Taxes (provided that Tenant
shall only be liable for such fees should the amount of Real Property Taxes owed
in a given tax year be reduced as a result of the negotiation or contest in an
amount which is greater than the fees incurred by Landlord in connection with
the negotiation or contest).
42.30 “Rent” means Base Monthly Rent,
as adjusted from time to time under this Lease, and Additional Rent as defined
in this Section 42.
42.31 “Restoration” means the
reconstruction, rebuilding, rehabilitation and repairs that are necessary to
return damaged portions of the Premises and the Building to substantially the
same physical condition as they were in immediately before the
damage.
42.32 Intentionally
Deleted
42.33 “Successor” means assignee,
transferee, personal representative, heir, or other person or entity succeeding
lawfully, and pursuant to the provisions of this Lease, to the rights or
obligations of either party.
42.34 “Tenant improvements” means
(i) window coverings, lighting fixtures, plumbing fixtures, cabinetry and other
fixtures installed by either Landlord or Tenant at any time during the Term, and
(iii) improvements and alterations of the Premises made by Tenant, if any, at
any time during the Term.
42.35 “Tenant's personal property”
means Tenant's equipment, furniture, and movable property (including cabling)
placed in the Premises by Tenant.
42.36 “Trade Fixtures” means all
machinery, apparatus, furniture, fixtures and equipment located in the Premises
as of the Commencement Date or hereafter installed by Tenant and used in
connection with the conduct of Tenant’s business in the Premises, other than
fixtures and items of personal property of Landlord that are integral to the
ownership, maintenance and operation of the Building by Landlord.
42.37 “Termination” means the ending
of the Term for any reason before expiration, as defined in this
Section.
42.38 “Work” means the construction
of any improvements or alterations or the performance of any repairs done by
Tenant or caused to be done by Tenant on the Premises as permitted by this
Lease.
43. Miscellaneous
Provisions.
43.1 Entire Agreement. This Lease
sets forth the entire agreement of the parties as to the subject matter hereof
and supersedes all prior discussions and understandings between them. This Lease
may not be amended or rescinded in any manner except by an instrument in writing
signed by a duly authorized officer or representative of each party
hereto.
43.2 Governing Law. This Lease
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Washington.
43.3 Severability. Should any of
the provisions of this Lease be found to be invalid, illegal or unenforceable by
any court of competent jurisdiction, such provision shall be stricken and the
remainder of this Lease shall nonetheless remain in full force and effect unless
striking such provision shall materially alter the intention of the
parties.
43.4 Jurisdiction. In the event any
action is brought to enforce any of the provisions of this Lease, the parties
agree to be subject to exclusive in personam jurisdiction in the Superior Court
of the State of Washington in and for the County of King or in the United States
District Court for the Western District of Washington and agree that in any such
action venue shall lie exclusively at Seattle, Washington.
43.5 Waiver. No waiver of any right
under this Lease shall be effective unless contained in a writing signed by a
duly authorized officer or representative of the party sought to be charged with
the waiver and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future right or of any other right
arising under this Lease.
43.6 Captions. Section captions
contained in this Lease are included for convenience only and form no part of
the agreement between the parties.
43.7 Notices. All notices or
requests required or permitted under this Lease shall be in writing. If given by
Landlord such notices or requests may be personally delivered, delivered by a
reputable express delivery service such as Federal Express or DHL, or sent by
certified mail, return receipt requested, postage prepaid. If given by Tenant
such notices or requests shall be sent by certified mail, return receipt
requested, postage prepaid. Such notices or requests shall be deemed given when
so delivered or mailed, irrespective of whether such notice or request is
actually received by the addressee. All notices or requests to Landlord shall be
sent to Landlord at Landlord's Address for Notice and all notices or requests to
Tenant shall be sent to Tenant at Tenant's Address for Notice. Either party may
change the address to which notices shall be sent by notice to the other
party.
43.8 Binding Effect. Subject to the
provisions of Section 26 captioned “Assignment and Subletting”, this Lease shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. No permitted assignment of this
Lease or Tenant's rights hereunder shall be effective against Landlord unless
and until an executed counterpart of the instrument of assignment shall have
been delivered to Landlord and Landlord shall have been furnished with the name
and address of the assignee. The term “Tenant” shall be deemed to
include the assignee under any such permitted assignment.
43.9 Effectiveness. This Lease
shall not be binding or effective until properly executed and delivered by
Landlord and Tenant.
43.10 Gender and Number. As used in
this Lease, the masculine shall include the feminine and neuter, the feminine
shall include the masculine and neuter, the neuter shall include the masculine
and feminine, the singular shall include the plural and the plural shall include
the singular, as the context may require.
43.11 Time of the Essence. Time is
of the essence in the performance of all covenants and conditions in this Lease
for which time is a factor.
43.12 Joint and Several
Liability. If Tenant is composed of more than one person or
entity, then the obligations of all such persons and entities under this Lease
shall be joint and several.
43.13 No Recordation Without Consent of
Landlord. Tenant shall not record this Lease or any memorandum
of this Lease without Landlord’s prior written consent. If Landlord
or any lender elect to record a memorandum of this Lease, then Tenant shall
promptly execute, acknowledge and deliver the same on a form prepared by
Landlord or such lender.
Dated the
date first above written.
|
Landlord:
|
Tenant:
|
|
Integrated
Holdings, LLC,
a
Washington Limited Liability Company
|
Integrated
Technologies, Inc.,
A
Washington Corporation
|
|
By: _______________________________
|
By: _______________________________
|
|
_______________________________
|
Xxxxxxxx
X. Xxxxxxxxx
|
|
Its:
Authorized Member
|
Its: Secretary
|
STATE OF
WASHINGTON
)
) ss.
COUNTY OF
KING
)
On this
day personally appeared before me _________________________, to me known to be
the Authorized Member of Integrated Holdings, LLC, the limited liability company
that executed the foregoing instrument, and acknowledged the said instrument to
be the free and voluntary act and deed of said company, for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute
the same instrument.
GIVEN
under my hand and official seal this _____ day of January, 2009.
|
________________________________________
|
|
________________________________________
|
|
(print
notary's name)
|
|
Notary
Public in and for the State of Washington,
|
|
residing
at ______________________________
|
|
My
commission
expires: __________________
|
STATE OF
MISSOURI )
) ss.
COUNTY OF
ST.
LOUIS
)
On this
day personally appeared before me Xxxxxxxx X. Xxxxxxxxx, to me known to be the
Secretary of Integrated Technologies, Inc., the corporation that executed the
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 s/he was authorized to execute the same
instrument.
GIVEN
under my hand and official seal this _____ day of January, 2009.
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________________________________________
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________________________________________
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(print
notary's name)
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Notary
Public in and for the State of Missouri,
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residing
at ______________________________.
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My
commission
expires: __________________.
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CONTINUING
GUARANTY
For and
in consideration of the execution of that Lease Agreement by Integrated
Holdings, LLC (“Landlord”) to Integrated Technologies, Inc. (“Tenant”), for the
business premises more fully described in Exhibit A to that Lease Agreement,
which Landlord is unwilling to do without the execution and delivery by the
undersigned LMI Aerospace, Inc. of this Continuing Guaranty (this “Guaranty”),
the undersigned (“Guarantor”), absolutely and unconditionally guaranties and
promises to pay to Landlord when due the full amount of all obligations (whether
for principal, interest, fees, expenses or otherwise) that Tenant now or
hereafter may have to Landlord, however arising, whether such obligations of
Tenant are direct or indirect, joint or several, absolute or contingent, or now
owing or to become due (all such obligations of Tenant being the
“Obligations”). Guarantor agrees to pay to Landlord, or to reimburse
Landlord for, any and all costs and expenses (including reasonable attorneys’
fees and expenses) that Landlord incurs (whether or not any action or proceeding
is commenced) in enforcing or attempting to enforce this Guaranty or otherwise
by reason of any default by Tenant in respect of the Obligations, including in
bankruptcy proceedings. All payments under this Guaranty shall be in
lawful money of the United States of America and shall be made free and clear
of, and without deduction for, any claim of setoff or counterclaim of Tenant and
any present or future taxes, levies, imposts, deductions, charges or
withholdings.
This
Guaranty shall continue to be effective or shall be reinstated if at any time
any payment of any of the Obligations is rescinded or otherwise must be returned
by Landlord for any reason (including the insolvency, bankruptcy or
reorganization of Tenant), all as though such payment had not been
made.
Guarantor
hereby waives (a) any defense arising by reason of any disability or other
circumstance that might constitute a defense available to, or a discharge of,
Tenant, (b) any requirement of promptness or diligence on the part of Landlord
and (c) all presentments, demands for performance, protests and notices with
respect to any of the Obligations or this Guaranty, including notices of
nonperformance, protest, dishonor and acceptance of this Guaranty and notices of
the creation, existence or incurring of new or additional
Obligations.
Landlord
shall not be required to proceed first against Tenant or any other person before
resorting to Guarantor for payment under this Guaranty. Landlord
shall have the absolute right in its sole discretion, and without notice to or
consent of Guarantor, at any time and without in any way affecting or
discharging the liability of Guarantor under this Guaranty, (a) to change the
time, manner or place of payment of, or any other term of, any of the
Obligations, (b) to take, hold, enforce, exchange, release or waive security for
the Obligations or this Guaranty and (c) to settle and compromise any liability
of Tenant. The liability of Guarantor under this Guaranty shall not
be affected in any way by any release, discharge or substitution of any other
guarantor or obligor. All obligations of Guarantor under this
Guaranty are independent of the obligations of Tenant.
Guarantor
hereby irrevocably waives any and all rights and claims that Guarantor has or
hereafter may have or acquire (whether arising directly or indirectly, by
operation of law, by contract or otherwise) against Tenant by reason of any
payment to Landlord pursuant to this Guaranty, including, but not limited to,
rights of exoneration, indemnity, contribution, reimbursement and
subrogation.
This
Guaranty shall be binding upon Guarantor and it’s heirs, legal representatives,
successors and assigns, and shall inure to the benefit of and be enforceable by
Landlord and its successors, transferees and assigns. This Guaranty
shall be deemed for all purposes to be made in, and shall be governed by and
construed in accordance with the laws of, the State of Washington. At
Landlord’s option, the venue of any action or proceeding to enforce this
Guaranty may be in King County, State of Washington.
IN
WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the 16th day of
January, 2009.
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Guarantor:
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LMI
Aerospace, Inc.
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By: Xxxxxxxx
X. Xxxxxxxxx
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Title:
Vice President and
Secretary
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