LEASE AGREEMENT
THIS AGREEMENT is made and entered into this 7th day of January 2000, by and
between XXXX X. XXXXXX and XXXXX X. XXXXXX, husband and wife, hereinafter
referred to as "Landlord," and Parks America! Inc., President Xxxxxx Xxxxxxxxxx
hereinafter referred to as "Tenant."
The parties stipulate and recite that:
A. Landlord is the owner of certain real property situated at 000 X. Xxxxx
Xxxxxx, Xxxxx, Xxxxx, sometimes referred to herein as the "Premises"; and
B. Tenant desires to lease from Landlord a portion of the above-described real
property consisting of Approximately 2,200 square feet (being the main
floor excluding the basement floor), under the terms and conditions
hereinafter set forth and Landlord desires to lease the same to tenant.
For the reasons recited above, and in consideration of the mutual covenants
contained herein, the Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord the above-described premises under the terms and
conditions hereinafter set forth.
1. TERM OF LEASE. The term of this Lease shall be for five (5) years,
commencing on the 1~ day of March, 2000, and ending on the 28th of
February, 2005.
2. RENT. Tenant does hereby covenant and agree to pay to Landlord for rental
of the above-described Premises the sum of Two Thousand Five Hundred and
Fifty (S2550.00) per month with the March payment due upon signing this
lease, and subsequent payments due on or before the first day of each and
every month thereafter during the term of this lease. Provided, however,
that the monthly rental shall be adjusted, effective with the rent due
March 2002, and for all months during the remaining initial term of this
Lease after said date. The rent due for the month of March 2000, and for aU
months during the term of this lease during the years 2000 through 2005,
shall be a minimum of $2550.00 and shaU be increased by 3% for year three,
(March 2002 through February 2003), and an additional 3% each year
thereafter through the remaining term of the Lease.
Rent amounts shall be as follows:
Year one - S2550.00 per month
Year two - 2550.00 per month
Year three - 2626.00 per month
Year four - 2705.00 per month
Year five - 2786.00 per month
SECURITY DEPOSIT. Tenant shall deposit with Landlord the sum of Two
Thousand Five Hundred and Fifty Dollars (S2550.00) upon signing this lease.
Said sum shall be held by Landlord as a security for the faithful
performance by Tenant of all the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provision of this Lease, including but not
limited to the provisions relating to the payment of rent (including
additional rent), Landlord may (but shall not be required to) use, apply or
retain all or any part of this security deposit for the payment of any rent
or any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of Tenant's
default, or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
deposit is to be used or applied, Tenant shaU within five (5) days after
written demand therefor from Landlord, deposit cash with Landlord in an
amount aufficient to restore the security deposit to its original amount
and Tenant's failure to do so shall be a materiel breach of this Lease.
Landlord shall not be required to keep this security deposit separate from
its general funds, and Tenant shall not be entitled to interest on such
deposit. If Tenant fully and faithfuUy performed every provision of this
Lease to be performed by Tenant, the security deposit, or any balance
thereof, shall be returned to Tenant (or assignee of Tenant's interest as
outlined hereunder) at the expiration of the Lease term. In the event that
the Landlord's interest in this lease is assigned to a successor, Landlord
shaU transfer said deposit to Landlord's successor in interest.
3. COMMON AREA - FIRE &EXTENDED PROPERTY lNSURANCE - REAL PROPERTY TAX.
3.01 Addtional Rent Tenant agrees to pay as "Additional Rent", based on the
provisions herein, for Tenant's share of the common area expenses (see
Section 3.02), normal fire and extended coverage property insurance
(exclusive of insurance maintained on personal contents) (see Section
3.03) and real property
taxes (see Section 3.04). Payment of "Additional Rent" will be due on
the first day of each month in addition to the regular monthly rent.
Tenant's initial "Additional Rent" amount under this Lease shall be
Two Hundred and Fifteen Dollars ($215.00). The "Additional Rent" may
be adjusted periodically by Landlord based on Landlord's reasonable
estimation of anticipated costs.
3.02 Proration of Common Area Expenses. Tenant shall be responsible to pay
59% of the Common Area Expenses for Xxx 0, Xxxxx 0 xxx Xxx 0, Xxxxx 5
of Xxxxxxxxx'x Addition Subdivision, or 75% of the Common Area
Expenses for Xxx 0, Xxxxx 0 and the south 1/2 of Xxx 0, Xxxxx 0 of
Xxxxxxxxx'x Addition Subdivision if the Landlord chooses to eliminate
the north 1/2 of Xxx 0, Xxxxx 0 xxxx xxx Xxxxxx Xxxx Expenses.
3.03 Proration of Insurance. Tenant shall be responsible to pay 59% of the
cost of normal fire and extended coverage property insurance
(exclusive of insurance maintained on personal contents) for Xxx 0,
Xxxxx 0 xxx Xxx 0, Xxxxx 5 of Xxxxxxxxx'x Addition subdivision, or 75%
of the cost of normal fire and extended coverage property insurance
(exclusive of insurance maintained on personal contents) for Xxx 0,
Xxxxx 0 and the south 1/2 of Xxx 0, Xxxxx 0 of Xxxxxxxxx'x Addition
Subdivision if tbe Landlord chooses to eliminate the north 1/2 of Xxx
0, Xxxxx 0 from the insurance policy.
3.04 Proration of Real Property Taxes Tenant shall be responsible to pay
59% of the cost of Property Taxes for Xxx 0, Xxxxx 0 xxx Xxx 0, Xxxxx
5 of Xxxxxxxxx'x Addition Subdivision (and all improvements thereon),
or 75% of the cost of insurance for Xxx 0, Xxxxx 0 and the south 1/2
of Xxx 0, Xxxxx 0 of Xxxxxxxxx'x Addition Subdivision (and all
improvements thereon) if the Landlord chooses to eliminate the north
1/2 of Xxx 0, Xxxxx 0 from the tax xxxx.
3.05 Actual Expenses. Within 120 days following the end of each calendar
year of the Term, or, at Landlord's option, its fiscal year, Landlord
shall furnish Tenant with a statement covering the calendar or fiscal
year (as the case may be) just expired, showing the actual Common Area
Expenses, normal fire and extended coverage property insurance
(exclusive of insurance maintained on personal contents) costs and
Properly Taxes for that year, the amount of Tenant's share of the
Common Area Expences, normal fire and extended coverage property
insurance (exclusive of insurance maintained on personal contents)
costs and Property Taxes for said calendar or fiscal year and the
"Additional Rent" payments made by Tenant during that year. lf
Tenant's share of the Common Area Expenses, normal fire and extended
coverage property insurance (exclusive of insmance maintained on
personal contents) costs and Property Taxes exceed Tenant's prior
"Additional Rent" payments, Tenant shall pay Landlord the deficiency
within thirty (30) days after receipt of the annual statement. Tf
Tenant's "Additional Rent" payments for the calendar or fiscal year
exceed Tenant's actual share of Common Area Expenses, normal fire and
extended coverage property insurance (exclusive of insurance
maintained on personal contents) costs and Property Taxes, and
provided Tenant is not in arrears as to the payment of any rent or
"Additional Rent", Tenant may offset the excess against the next
"Additional Rent" payment due Landlord.
3.06 Commoo Area Expenses. The term "Common Area Expenses" as used in this
Lease means all costs and expenses incurred by Landlord, in (a)
operating, managing, policing, insuring, repairing and maintaining the
Common Area, (b) maintaining, repairing and replacing the exterior
surface of exterior walls and maintaining, repairing and replacing
roofs of the buildings; and (c) operating, insuring, repairing,
replacing and maintaining the Common Utility Facilities. "Common
Utility Facilities" are defined to include but are not [united to,
sanitary sewer lines and systems, gas lines and systems, water lines
and systems, fire protection lines and systems, electric power,
telephone and communication lines and systems, and storm drainage and
retention facilities not exclusively serving the premises of any
tenant located at the Site. Common Area Expenses shall indude, without
limitation, the following: expenses for maintenance, landscaping,
repaving, resurfacing, repairs, replacements, site drainge system
installation, repair and/or replacement, painting, lighting, cleaning,
trash removal, security, fire protection and similar items; rental on
equipment; charges, surcharges and other levies related to the
requirements of any FederaL State or local governmental agency;
expenses related to the Common Utility Facilities; real and personal
property taxes and assessments on the improvements and land comprising
the Common Area and Common Facilities; public liability and property
damage insurance on the Common Area and Common Facilities; fire with
extended coverage insurance with vandalism and malicious mischief
endorsements with, at Landlord's option, an earthquake damage
endorsement, rental loss coverage and any additional coverages, and a
sum payable to Landlord for administration and overhead in an amount
equal to fifteen (15%) percent of the Common Area Expenses for the
applicable year.
3.07 Definitioo of Common Area The term "Common Area" as used in this Lease
means all areas within the exterior boundaries of Xxx 0, Xxxxx 0 xxx
Xxx 0, Xxxxx 5 both of Xxxxxxxxx'x Addition Subdivision, including
street improvements abutting both parcels and including any dumpster
area, or any other land later made available for the general use of
Landlord and other persons entitled to occupy floor area at the Site.
3.08 Maintenance and Use of Common Area. The manner in which the Common
Area shall be maintained shall be solely determined by Landlord. The
use and occupancy by Tenant of the Premises shall include the right to
use the Common Area, in common with Landlord and other tenants of the
Site and their customers and invitees, subject to such reasonable,
non-discrinunatory rules and regulations concerning the use of the
Common Area as may be established by Landlord from time to time.
Written notice of such rules and regulations and amendments and
supplements thereto, if any, shall be given to Tenant thirty (30) days
prior to their effective date. Tenant agrees to promptly comply with
all such rules and regulations upon receipt of written notice from
Landlord.
Tenant and Tenant's employees and agents shall not solicit business in
the Common Areas, nor shall tenant distribute any handbills or other
advertising matter on automobiles parked in the Common Areas unless
approved in writing by the Landlord
3.09 Control of and Changes to Common Area. Landlord shall have the sole
and exclusive control of the Common Area, as well as the right to make
reasonable changes to the Common Area. Landlord's rights shall
include, but not be limited to, the right to (a) restrain the use of
the Common Area by unauthorized persons; (b) cause Tenant to remove or
restrain persons from any unauthorized use of the Common Area if they
are using the Common Area by reason of Tenant's presence at the Site;
(c) utilize from time to time any portion of the Common Area for
promotional, entertainment and related matters; (d) place permanent or
temporary kiosks, displays, carts and stands in the Common Area and to
lease same to tenants; (e) temporarily close any portion of the Common
Area for repairs, improvements or alterations, to discourage
non-customer use, to prevent dedication or an easement by
prescription, or for any other reason deemed aufficient in Landlord's
judgment; and (f) reasonably change the shape and size of the Common
Area, add, eliminate or change the location of improvements to the
Common Area, including, without limitation, buildings, decks,
lighting, parking areas, roadways and curb cuts, and construct
buildings on the Common Area. Landlord may determine the nature, size
and extent of the Common Area and whether portions of the same shall
be surface, underground or multiple-deck; as well as make changes to
the Common Area from time to time which in Landlord's opinion are
deemed desirable for the Site.
3.10 Common Area Parking Tenant and its employees shall park their vehicles
only in those portions of the Common Area from time to time designated
for such purpose by Landlord. Further, Landlord shall have the right
to adopt and implement such parking programs as may be necessary to
alleviate parking problems.
Tenant shall furnish Landlord with a list of its employees and the
license numbers of their vehicles within fifteen (15) days after
Tenant opens for business in the Premises. Tenant shall be responsible
for ensuring that its employees comply with all the provisions of this
section and such other parking rules and regulations as may be adopted
and implemented by Landlord from time to time which may be deemed
necessary or appropriate by Landlord to control, regulate or assist
parking by customers of the Site.
4. RENTAL PAYMENT WITHOUT NOTICE OR DEMAND. Rent and "Additional Rent" shall
be paid to Landlord without notice or demand or without abatement, offset,
or deduction except as expressly provided herein. All payments shall be in
lawful money of the United States of America, which shall be legal tender
at the time of payment, and shall be made to Landlord at X.X. Xxx 000,
Xxxxx, Xxxxx, attention: Xxxx X. Xxxxxx or such other address as Landlord
shall direct or to such other person or at such other place as Landlord may
from time to time designate in writing.
5. OPTION OF TENANT TO RENEW LEASE. So long as Tenant is not in default of its
performance of the teens hereof, it shall have the right and option, at the
end of the term hereof, to renew this Lease for an additional
five years commencing on the 1st day of March 2005 and ending on the 28th
day of February 2010. Such option may be exercised only by written notice
submitted by the Tenant to the Landlord no later than 180 days prior to the
expiration of the initial term of the Lease, setting forth therein the
Tenant's desire to exercise said option, which notice may be delivered
according to the terms hereinafter set forth.
If the option is exercised, the parties shall be bound by all of the terms
and conditions hereof, except that Tenant shall have no further option to
renew Lease. Provided. however. that the monthly base rental shall be at a
rate determined by the last month rental rate increased by five percent
(5%) and shall increase by five percent (5%) annually thereafter of the
option period commencing on March 1, 2005.
FIRST RIGHT OF REFUSAL TO LEASE LOWER FLOOR So long as Tenant is not in
default of its performance of the terms hereof, it shall be given first
right of refusal to lease the lower floor when the lease for the lower
floor, including any options for that Tenant(s) to renew that lease,
terminate. Any such right of refusal shall not be considered to be within
the teens and conditions of this lease, and Landlord reserves the right to
negotiate a new lease with conditions satisfactory to Landlord for any such
additional space.
6. POSSESSION.
6.01 If the Landlord, for any reason whatsoever, cannot deliver possession
of the said Premises to the Tenant at the commencement of the term
hereof, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, the
expiration date of the above term shall be extended by the time to
complete a full five year term, but in that event, all rent shall be
abated during the period between the commencement of said term and the
time when Landlord delivers possession. Landlord will provide
not)fication to Tenant if a delay appears imminent within 72 hours of
Landlord's becoming aware of such delay.
6.02 Prior to possession by Tenant, all items listed on Exhibit "A" as "To
Be Completed By Landlord" shall be completed by Landlord
7. SERVICES AND UTILITIES. Tenant, at its sole cost and expense, shall pay or
cause to be paid all charges for water, sewer, electricity, telephone,
trash or other services furnished to the premises or to Tenant with respect
to Tenant's operation therein during the term of this lease, and Tenant
shall indemnify Landlord and hold Landlord harmless against any liability
or damage for such services.
8. USE. Tenant,shall use the Leased Premises only in accordance with
applicable laws and for the purpose of conducting International Business
and or Entertainment Development offices and for those uses related or
incidental thereto, and for no other purposes whatsoever without prior
written consent of the Landlord.
9. MAINTENANCE AND REPAIRS.
9.01 Landlord's Maintenance Obligations. Landlord on behalf of Tenant and the
other occupants of the Building shall maintain in good condition and repair
the foundations and exterior surfaces of the exterior walls of the Building
(exclusive of doors, door frames, door checks, windows, window frames, and
store fronts); provided however if any repairs or replacements are
necessitated by the negligence, gross negligence, or willful acts of Tenant
or anyone claiming under Tenant or by reason of Tenant's failure to observe
or perform any provisions contained in this Lease or caused by alterations,
additions or improvements made by Tenant or anyone claiming under Tenant,
the cost of such repairs and replacements shall be solely borne by Tenant.
It is acknowledged by Tenant that the cost of Landlord's maintenance
obligations referenced in the preceding sentence (excluding the costs of
maintaining the structural portions of the walls and foundations of the
Building) shall be paid by Tenant as Common Area Expenses, as defined
herein. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be liable for failure to make repairs required to be
made by Landlord under the provisions of this Lease unless Tenant has
previously notified Landlord in writing of the need for such repairs and
Landlord has failed to commence and complete the repairs within a
reasonable period of time following receipt of Tenant's written
not)fication. Tenant waives any right of offset against any rent due
hereunder and agrees not to assert as an affirmative defense in any
judicial proceeding or arbitration brought by Landlord against Tenant on
claims made under this Lease any law permitting Tenant to make repairs at
Landlord's expense. Landlord shall not be required to furnish any services
or facilities to, or make any repairs to or replacements or alterations of
the demised premises, except as such services, facilities,
repairs, replacements or alterations shall be necessitated by acts of the
Landlord or his/her employees or agents or as expressly provided herein.
9.02 Tenant's Maintenance Obligations. Tenant, at its sole cost and expense,
shall keep the Premises in first class order, condition and repair and
shall make all repairs and replacements necessary to keep the Premises in
such condition. All repairs and replacements shall be of a quality equal to
or exceeding that of the original. Should Tenant fail to make these repairs
and replacements or otherwise so maintain the Premises for a period of
three (3) days after written demand by Landlord, or should Tenant commence,
but fail to complete, any repairs or replacements within a reasonable time
after written demand by Landlord, Landlord may make such repairs or
replacements without liability to Tenant for any loss or damage that may
occur to Tenant's stock or business, and Tenant shall pay to Landlord the
costs incurred by Landlord in making such repairs or replacements together
with interest thereon at the maximum rate permitted by law from the date of
commencement of the work until repaid. Tenant shall, at its expense, repair
promptly any damage to the Building or the Site caused by Tenant or its
agents or employees or caused by the installation or removal of Tenant's
personal property. Tenant shall contract with a service company licensed
and experienced in servicing HVAC equipment and approved by Landlord for
the quarterly maintenance of the HVAC equipment serving the Premises and
shall provide Landlord with a copy of the service contract within thirly
(30) days following its execution, or Landlord, at its option, may contract
with a service company of its own choosing, or provide such service itself,
for the maintenance of the HVAC equipment, and xxxx Tenant for the cost of
same. The sum so billed to Tenant shall become immediately due to Landlord
as additional rent.
Tenant shall, at its own expense, comply with all requirements, including
the installation and periodic maintenance of fire extinguishers or
automatic dry chemical extinguishing system, of the insurance underwriters
and other governmental authority having jurisdiction there over, necessary
for maintenance of reasonable fire and extended coverage insurance for the
Premises.
9.03 Plate Glass. Tenant shall replace, at its expense, any and all plate and
other glass damaged or broken from any cause whatsoever (except Landlord's
direct act) in and about the Premises. Tenant shall have the option either
to insure this risk or to self insure.
10. INTENTION OF PARTIES. It is the purpose and intent of the parties that
Landlord shall not incur or become liable for any costs, expenses or
obligations of any kind or nature whatsoever relating to the Leased
Premises during the term of this Lease, except as otherwise expressly
provided.
Tenant shall make or cause to be made on said Premises only such
improvements or alterations as shall be first approved in writing by
Landlord. Any improvements or alterations made by Tenant shall be a the
sole cost and expense of Tenant and Tenant shall save the premises and
Landlord harmless from any lien or claim of lien with respect thereto. Any
improvements or alteration so authorized and constructed shall become a
part of the demised Premises and shall be the property of the Landlord, and
shall remain without disturbance or injury upon the expiration or
termination of this Lease and extensions or renewals thereof. 11. SIGNS AND
AUCTIONS. Tenant shall not place any sign upon the Premises or Building or
Site or conduct any auction thereon without Landlord's prior written
consent. Upon termination of Lease, Tenant shall remove all signs at
Tenant's sole expense, and Tenant shall be responsible for restoration and
repair of any damage caused by said removal.
12. ASSIGNMENT OR SUBLETTING. Tenant shall not assign this Lease in whole or in
part, nor sublet all or any part of the Premises, without the prior written
consent of Landlord. The consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity for such consent
to any subsequent assignment or subletting. This proh bition against
assigning or subletting shall be construed to include a prohibition against
any assignment or subletting by operation of law. If this Lease is assigned
by Tenant, or if the Premises or any part thereof are sublet or occupied by
any person or entity other than Tenant, Landlord may collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver on the part of Landlord, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release
of Tenant from the further performance by Tenant of covenants on the part
of Tenant herein contained unless expressly made in writing by Landlord.
Irrespective of any assignment or sublease, Tenant shall remain fully
liable under this Lease and shall not be released from performing any of
the terms, covenants and conditions of this Lease. It is agreed that
Landlord will not be acting unreasonably in refusing to consent to an
assignment or sublease if, in Landlord's opinion, the quality
of the business operation of the proposed assignee or subtenant is not
equal to that of the Tenant, or such assignee or subtenant may adversely
affect the business of the other tenants or the tenant mix at the Site, or
if the net worth of such assignee or subtenant is less than that of Tenant,
or for any other reason deemed aufficient in Landlord's judgment. If Tenant
assigns this Lease or sublets the Premises to a third party who is not in
any way affiliated or connected with Tenant by way of a merger,
reorganization, consolidation or otherwise, any rent or additional rent
paid to tenant in addition to the rent payable to Landlord as set forth in
this Lease shall be paid by Tenant to Landlord as additional rent.
If the Tenant is a corporation, or is an unincorporated association or
partnership, the transfer, assignment or hypothecation of any stock or
interest in such corporation, association or partnership in the aggregate
in excess of forty-nine (49%) percent shall be deemed an assignment within
the meaning and provisions of this Section.
For any request to sublet Eight Hundred (800) square feet (gross) or more:
Tenant shall pay Landlord a nonrefundable processing fee of Five Hundred
Dollars ($500.00) for each requested assignment or sublease to cover
Landlord's costs. This fee shall accompany any request for assignment or
sublease. In addition, Tenant shall pay all costs incurred by Landlord in
connection with reviewing a request to consent to an assignment or
sub-lease, including all of Landlord's attorney's and accountant's fees.
For any request to sublet less than Eight Hundred (800) square feet (gross)
Landlord shall waive the fees noted in the preceding paragraph
13. LIABILITY INSURANCE AND HOLD HARMLESS AGREEMENT. Tenant at aU times during
the life of this agreement will carry public liability insurance in a
combined single limit of at least three million dollars ($3,00O,000.00).
The Landlord shall be named as an "additional insured" under the
above-described policy and Tenant shall furnish a certificate of insurance
to Landlord executed by the company issuing such policy in which said
company shall bind itself not to cancel said policy without giving previous
notice of its intent to do so to Landlord Tenant releases Landlord from,
and indemnifies Landlord against, and agrees to hold harmless from all
liability, loss, claims, demands, charges, liens, causes of action and
proceedings of every kind in nature, including damage to the person or
property of Tenant, arising directly or indirectly from use of the Leased
Premises or any public sidewalk, street or alley adjoining the same.
Landlord shall not be liable to Tenant or to any other person, by reason of
any act, omission, neglect or default arising on the Leased Premises,
because of any act or omission of Tenant, or any of the Tenant's agents, or
employees, whether due to negligence or otherwise, and Tenant shall pay all
sums required to be paid or discharged should legal proceedings be
commenced as a result of any such damage or injury. If Landlord is sued in
any court for darnages by reason of any of the acts referred to in this
paragraph, Tenant shall defend said action at his/her own expense and shall
pay and discharge any judgement that may be rendered against Landlord in
any such action, and if Tenant fails or neglects to so defend said action,
Landlord may defend the same and any expense, in addition to any judgement
that may result therefrom, including reasonable attorney fees which
Landlord may pay or incur in defending said action, shall be repaid to
Landlord by Tenant on demand.
14. FIRE INSURANCE. During the term of this Lease, Landlord shall maintain fire
insurance on the Leased Premises. As noted above, tenant shall pay
"Additional Rent" for the Tenant's prorated share of said premiums for fire
insurance policy. Provided. however, that at the sole cost to the Tenant,
tenant shall maintain insurance on all of Tenant's fixtures and equipment
located within the leased Premises. All proceeds from such policies for
loss or destruction of the leased Premises shall be paid directly to the
Landlord and said Premises shall be repaired and replaced in accordance
with the provisions of this Lease agreement.
15. CONDEMNATION. If title to all of the Premises is taken for any public or
quasi-public use under any statute or right of eminent domain, or by
private purchase in lieu of eminent domain, or if the title of so much of
the Leased Premises is to be taken that a reasonable amount of
reconstruction of the premises will not result in the premises being
suitable for Tenant's continued occupancy for the us and purposes for which
the premises are leased, then, in either event, the Lease shall terminate
on the date that possession of the premises or part of the premises is
taken.
"Suitable for continued occupancy" as used herein shall mean that the
building when reconstructed or the total area of the Leased Premises shall
not be so reduced that a profitable operation by Tenant is not reasonably
foreseeable.
In the event of such a taking of the whole or part of the Leased Premises,
the entire amount of any award received
for the Leased Premuses shall be paid to the Landlord, except any portion
of the reward which directly reflects and is identified in the award as the
value of fixtures or improvements installed or made by Tenant pursuant to
this Lease, or as the cost of moving from the Premises, which portions, and
no more, shall be paid to the Tenant. Each party agrees to execute and
deliver to the other all instruments that may be required to effectuate the
provisions of this paragraph.
16. COMPLIANCE WITH LAW. The Tenant, at its sole expense, shall comply with all
laws, orders and regulations of federal, state and municipal authorities,
and with any direction of any public officer, pursuant to law, which shall
impose any duty upon the Landlord or the Tenant with respect to the Leased
Property. The Tenant, at its sole expense, shall obtain all licenses or
permits which may be required for the conduct of the business within the
terms of this Lease, or for the making of repairs, alterations,
improvements or additions, and the Landlord, where necessary, will join
with Tenant in applying for all such permits or licenses.
17. RECONSTRUCTION. In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils covered by extended
coverage insurance, Landlord agrees to forthwith repair the same and this
Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate reduction of the rent while such repairs are
being made, such proportionate reductions based upon the extent to which
the making of such repairs shall interfere with the business carried on by
the Tenant in the Premises. If the damage is due to the fault or neglect of
Tenant or its employees, there shall be no abatement of rent. In the event
the Premises or the Building of which the Premises are a part are damaged
as result of any cause other than the perils covered by fire and extended
coverage insurance, then Landlord shall forthwith repair the same, provided
the extent of the destruction be less than fifty (50) percent of the full
replacement cost of the Premises of the Building of which the Premises are
a part. In the event the destruction of the Premises or the Building is to
an extent greater than fifty (50) percent of the full replacement cost,
then Landlord shall have the option; (1) to repair or restore such damage,
this Lease continuing in full force and effect, but the rent to be
proportionately reduced as herein above in this Article provided; or (2)
give notice to Tenant at any time within sixty (60) days after such damage
terminating this Lease as of the date specified in such notice, which date
shall be no less than thirty (30) and no more than sixty (60) days after
the giving of such notice. In the event of giving such notice, this Lease
shall expire and all interest of the Tenant in the Premises shall terminate
on the date so specified in such notice and the Rent, reduced by a
proportionate amount, based upon the extent, if any, to which such damage
materially interfered with the business carried on by the Tenant in the
Premises, shall be paid up to date of said such termination. Landlord shall
not be required to repair any injury or damage by fire or other cause, or
to make any repairs or replacements of any panels, decoration, office
fixtures, railings, floor covering, partitions, or any other property
installed in the Premises by Tenant. In the event of any dispute between
Landlord and Tenant with respect to this paragraph, the matter shall be
settled by arbitration in such a manner as the parties may agree upon, or
if they cannot agree, in accordance with the rules of the American
Arbitration Association.
18. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times have
the right to enter the Premises to inspect or exhibit the same to
prospective purchasers, or mortgagees, provided that the business of the
Tenant shall not be interfered with unreasonably, and Landlord will provide
advanced notice of its intent to enter. In the event of an emergency,
Landlord can enter the Premises without Tenant's consent Landlord shall
inform Tenant of such entry as soon as reasonably possible after entry.
19. TENANT'S RIGHT TO CONTEST REAL PROPERTY TAXES. Tenant at tenant's expense,
shall have the right to contest the amount or the validity of all or any
part of Uhe ad valorem real property taxes required to be paid by Tenant to
Landlord. Provided. however. that Tenant shall indemnify Landlord against
any loss or liability by reason of such contest. Landlord shall not be
required to join in any proceeding or contest brought by Tenant unless the
provisions of any law require that the proceeding or contest be brought by
or in the name of the Landlord or any owner of the Premises. In that case
Landlord shall join in the proceeding or contest or permit it to be brought
in Landlord's name as long as Landlord is not required to bear any cost.
Tenant, on final determination of the proceeding or contest shall
immediately pay or discharge his/her portion of any decision or judgement
rendered, together with all its portion of costs, charges, interests and
incidental to the decision or judgement.
20. BANKRUPCY. If Tenant should at any time be adjudged a bankrupt, or if there
shall be filed a voluntary or involuntary petition in bankruptcy by or
against Tenant or in the event a receiver is appointed for the management
of the business or any property of Tenant or in the event Tenant makes any
assignment for the benefit of creditors, either statutory or common law, or
should the interest of Tenant in the Leased Premised be seized in any legal
proceeding upon or under any attachment or judgement, Landlord may, at
his/her option declare this Lease terminated and may thereupon take
possession of the Leased Premises with or without legal proceeding or
process.
In no event shall any interest of Tenant in this Lease be deemed an asset
of Tenant, nor shall the same pass by operation of law without Landlord's
written consent Upon the Landlord's election to take possession of the
premises under this paragraph, all of the rights of the Tenant shall
immediately cease and terminate.
21. LANDLORD'S REMEDIES. If Tenant shall abandon or cease to occupy the Leased
Premises, or any part thereof, for more than ten (10) days without the
written consent of the Landlord, or if the Tenant's interest, or any part
of its interest in the Lease is assigned or transferred, either voluntarily
or by operation of law without Landlord's consent, or voluntary or
involuntary petition in bankruptcy, or for reorganization or for an
arrangement, be filed by or against the Tenant, or any member of Tenant if
Tenant is a partnership or a jointventure, or if Tenant is adjudicated
bankrupt or insolvent, or if a receiver is appointed of the business or of
the assets of Tenant, except a receiver appointed at the instance or
request of the Landlord, or if Tenant makes a general assignment or any
assignment for the benefit of creditors, or Tenant, after notice, fails to
remedy any default in the performance of any of the duties or obligations
created by this Lease or the payment of any sum due under this Lease within
fourteen (14) calendar days, then, in addition to any other remedy Landlord
may have by operation of law, Landlord shall have the right without any
further demand or notice, to re-enter the Leased Premises and eject all
persons from the Premises, using all necessary and reasonable force to do
so, and either (a) declare this Lease at an end, in which event Tenant
shall immediately pay Landlord a sum of money equal to the amount, if any,
by which the then cash value of the rent resened under this Lease for the
balance of the Lease term exceeds the then reasonable cash rental value of
the Leased Premises for the balance of the Lease term, or (b) without
terminating this Lease, re-let the Leased Premises or any part of the
Leased Premises, as the agent of and for the account of Tenant upon such
terms and conditions as Landlord may deem advisable in which event the
rents received on such re-letting shall be applied first to the expenses of
such re-letting and collection, including necessary renovation and
alteration of the Leased Premises, reasonable attomey fees, and real-estate
commission paid, and thereafter to pay all sums due or to become due
Landlord under Lease. If a sufficient sum shall not be thus realized to pay
the aforesaid sums and other charges, Tenant shall pay Landlord for any
such deficiency on a monthly basis, notwithstanding that the Landlord may
have received rental payments for said re-letting which are in excess of
the rental payments previously paid by Tenant under the terms of this
Lease, then Landlord may bring an action therefor as such monthly
deficiencies arise. Any such re-entry shall be allowed by Tenant without
hindrance and Landlord shall not be liable in damages for any such
re-entry, or be guilty of trespass or forcible entry.
The expense of preparing and seeing any such notice of default may be set
forth in said notice and that amount, including attorney fees, shall also
be paid to Landlord to correct any such default
22. SURRENDER OF PREMISES. At the expiration of the term of tbis Lease, or any
sooner termination of this Lease, Tenant shall quit and surrender the
Leased Premises, together with alterations, additions and improvements that
may have been made in, tO, or on the Leased Premises, in good condition and
repair, reasonable wear and tear and damage by acts of God excepted. So
long as Tenant is not in default under this Lease, he/she may remove all
movable furniture or unattached movable fixtures owned by Tenant If the
Leased Premises are not surrendered at the end of the Lease term, tenant
shall indemnify Landlord against loss of liability resulting from delay by
Tenant in surrendering the Premises including, without limitation, any
claims made by any succeeding Tenant founded on said delay.
On or before the expiration of the Lease term, the Tenant shall remove all
of his/her property from the Leased Premises, and all property not removed
shall be deemed abandoned by he Tenant. In tbat event Landlord shall have
the unrestricted right to dismantle, destroy, dispose of or use said
property in any manner which he/she may see fit whiteout any liability or
responsibility to Tenant, or to others claiming through Tenant, for said
property or for any proceeds Landlord may realize from any disposition or
use thereof. Tenant shall pay to Landlord any costs reasonably incurred by
Landlord in removing, storing, dismantling or disposing of any such
property to the extent that such costs exceed any amount realized by
Landlord from the disposition of such property.
23. HOLDING OVER BY TENANT. If tenant should hold over and remain in possession
of the premises after the expiration of the Lease term and without
executing a new Lease, than such holding over shall be construed as a
tenancy from month-to-month, subject to all conditions, provisions and
obligations of tbis Lease insofar as the same are applicable to a
month-to-month tenancy, but in no event shall it be construed as a renewal
or extension of this Lease. Such a tenancy shall not be permitted unless
approved in writing by the Landlord.
24. TENANT'S DUTY TO KEEP LEASED PREMISES FREE AND CLEAR OF LIENS OR CLAIMS.
Tenant shall pay, when due, all sums of money that may become due or
purportedly due for any costs, labor, services,
materials, supplies or equipment alleged to have been furnished or to be
furnished to or for tenant, in, at, upon or about the Leased Premises and
which may be secured by any mechanic's, materialmen's, or other lien
against the Premises of Landlord's interest in the Premises, and Tenant
shall cause each lien to be fully discharged and released at the time
performance of the obligation secured matures or becomes due.
25. TAXES AND ASSESSMENTS. Tenant shall pay, or cause to be paid, before
delinquency, any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises. In the
event any or all of the Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property shall be assessed and taxed with
the Building, Tenant shatl pay to Landlord its share of such taxes within
ten (10) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to Tenant's
property.
26.OFFSET STATEMENT. Tenant shall at any time and from time to time upon not
less than ten (10) days prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing, (a) certifying
that this Lease is unmodified and is in full force and effect (or, if
mod)fied, stating the nature of such mod)fication and certifying that this
Lease as so mod)fied, is in full force and effect), and the date to which
the rental and other charges are paid in advance, if any, and (b)
acknowledging tbat there are not, to Tenant's knowledge, any uncured
defaults on the part of the Landlord hereunder, or specifying such defaults
if any are claimed. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part.
27. HAZARDOUS OR TOXIC MATERIALS. Tenant shall not store, use or permit to be
used in, on or about the Premises any hazardous or toxic substance. Tenant
shall comply, at its expense, with all federal, state and local statutes or
regulations concerning environmental conditions, emissions, pollutants and
controls. Tenant shall indemnify Landlord from any proceedings brought as a
result of Tenant's violating this covenant
28. BROKERS. Tenant warrants that it has had no dealings with any real estate
broker or agents in connection with the negotiation of tbis Lease.
29. GENERAL PROVISIONS.
(i) WAIVER. The waiver by Landlord of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant
or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other
tban the failure of the Tenant to pay the particular rental to accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
the acceptance of such rent
(ii) NOTICES. All notices and demands shall be in writing All notices and
demands by the Landlord to the Tenant shall be sent by United States MaiL
postage pre-paid, addressed to the Tenant at, or to such other place as
Tenant may from time to time designate in a notice to the Landlord. All
notices and demands by the Tenant to the Landlord shall be sent by United
States Mail, postage pre-paid, addressed to the Landlord at XX XXX 000,
Xxxxx, Xxxxx 00000, or such other person or place as the Landlord may from
time to time designate in a notice to the Tenant.
(iii) MARGINAL HEADINGS. The marginal headings and Article titles to the
Articles of tbis Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
(iv) TIME. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
(v) SUCCESSORS AND ASSIGNS. The covenants and conditions herein containedL
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
(vi) RECORDATION. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
pany.
(vii) QUIET POSSESSION. Upon Tenant paying the rent reserved hereunder and
observing
and performing all of the covenants, conditions and provisions on Tenant's
part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease. (viii) LATE CHARGES. Tenant hereby acknowledges
tbat late payment by tenant to Landlord of rent or other sums due hereunder
will cause Landlord to incur costs not contemplated by tbis Lease, the
exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and
late charges which may be imposed upon Landlord by terms of any mortgage or
trust deed covering the Premises. Accordingly, if any installment of rent
or of a sum due from Tenant shall not be received by Landlord or Landlord's
designee within ten (10) calendar days after its due date, then Tenant
shall pay Landlord a late charge of five percent (5%) of the rent due plus
interest on the unpaid amount on a daily basis, from the date due until
paid, at the rate of 1.5 percent per month. The parties hereby agree tbat
such late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment by Tenant. Acceptance of
such late charges by the Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other right and remedies granted hereunder.
(ix) PRIOR AGREEMENTS. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in tbis
Lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provision of this Lease may
be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest This Lease shall
not be effective or binding on any party until fully executed by both
parties hereto.
(x) INABILITY TO PERFORM. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is unable
to furfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor troubles, acts
of God, or any other cause beyond the reasonable control of the Landlord
(xi) ATTORNEY'S FEES. In the event that either party to this Lease shall
bring suit for possession of the Premises or recovery of any sum due
hereunder, or for the breach of any covenant herein provided, or for any
other relief arising out of this Lease, it is agreed that the prevailing
party shall be awarded, in addition to any other recovery, reasonable
attorney fees incurred at trial and on any appeals.
(xii) SALE OF PREMISES BY LANDLORD. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and relieved of
all liability under any and all of its covenants and obligations contained
in or derived from this Lease arising out of any act, occurrence or
omission occurring after the consummation of such sales and the purchaser,
at such sale or any subsequent sale of the Premises shall be deemedL
without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of the
Landlord under this Lease.
(xiu) NAME WITHOUT LANDLORD'S CONSENT. Tenant shall not use the name of the
Building or of the development in which the Building is situated for any
purpose other than for the address of the business which is to be conducted
by the Tenant in the Premises.
(xiv) SEV'ERABILITY. Any provision of this Lease which shall prove to be
invalid void or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provision shall remain in full force
and effect.
(xv) CUMULATIVE REMEDES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
(xvi) CHOICE OF LAW. This Lease shall be governed by the laws of the State
of Idaho.
(xvii) JANITORIAL AND PEST CONTROL. Janitorial services and pest control
shall be the responsibility of the Tenant.
(xviii) PERSONAL GUARANTEE. The Tenant's signature hereon is a personal
guarantee for this lease.
(xix) REVIEW BY LEGAL COUNSEL. The signatures of Landlord and Tenant, on
this lease, acknowledge the fact that both the Landlord and Tenant have
consulted their respective Legal Counsels prior to signing hereon.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day
and year first above written.
''LANDLORD"
By:
----------------------
Xxxx X. Xxxxxx
By:
----------------------
Xxxxx X. Xxxxxx
Address: XX Xxx 000
Xxxxx, XX 00000
'TENANT"
By:
----------------------
Xxxxxx Xxxxxxxxxx
President
Address: XX Xxx 0000
Xxxxx, XX 00000
EXHIBIT "A"
000 X. Xxxxx Xxxxxx
1. Land Lord shall provide an allowance of $1000.00 for interior painting
(color of paint to be chosen by the tenant).
2. Landlord shall provide an allowance of $3000.00 for floor covering (design
and type of floor covering to be approved by landlord.
3. Landlord shall install surface mounted fluorescents in conference room and
4 floor plugs on East and West sides. Plugs in alcove.
4. Landlord shall install one handicapped accessible bathroom.
5. Landlord shall install an HVAC unit in the attic above the stage area.
Exposed style ducting shall be used.
6. Landlord shall replace existing old windows with fixed pane vinyl windows
with grids.
7. Landlord shall construct a wall to separate the stage from the remaining
portion of the main hall. Wall constructed with glass front and glass door
up 2' or so from floor.
8. Tenant shall pay for any other interior work as may be proposed by the
Tenant and approved by the Landlord including phone line wiring, computer
wiring, window coverings, and anything else desired which is not listed
above unless re-negotiated between the Landlord and Tenant.
